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Should Past Incarceration End Rehabilitated Moms’ Rights?

August 24, 2004

For Immediate Release
Tuesday, August 24, 2004

Contact Information:
Patricia Allard, 212 998–6740
Gail Smith, Chicago Legal Advocacy for Incarcerated Mothers, 312 675–0911

Should Past Incarceration End Rehabilitated Moms Rights?
Brennan Center for Justice Supports Rights of Formerly Incarcerated Parents

New York, NY A mother who spent the first two years of her daughters life in prison for a nonviolent offense now seeks to overturn a ruling that she is an unfit parent solely because of crimes committed before the birth of her child. The ruling could affect thousands of parents in Illinois and their children.

The mother in the case, now before the Illinois Supreme Court, had completed drug treatment and successfully stayed off drugs after her release from prison. She was hired as a detox specialist by a drug treatment program, and had been working in that job for seven months when the case went to trial. She established a relationship with her child despite a lack of assistance from foster care workers.

The Brennan Center for Justice at NYU School of Law, serving as co-counsel for several family rights groups in Illinois, urged the Illinois Supreme Court to overrule the Appellate Courts decision to take the child away from her mother permanently. Joined by the law firm of Baker 26 McKenzie, the Center filed the brief on behalf of four organizations – Chicago Legal Advocacy for Incarcerated Mothers (CLAIM), the Legal Assistance Foundation of Metropolitan Chicago (LAF), Loyola University of Chicago School of Laws ChildLaw Center and Companions Journeying Together. The Court ruling being challenged on appeal found the formerly incarcerated mother to be a fit parent under all relevant provisions of the states Adoption Act except the provision permitting a determination of unfitness based on past incarceration. At the time of the hearing, the mother was ready to take full responsibility for her child and had rehabilitated herself.

The brief argues that the Appellate Courts interpretation of the statute is inconsistent with Illinois law in cases when the parent is able to care for the child. In authorizing the drastic step of terminating a persons right to parent, the law requires individualized findings and determinations based on each persons unique circumstances. The mother in this case completed drug treatment, parenting classes and other requirements. She got a stable job and built an affectionate relationship with her daughter despite the obstacles the foster care system posed. While considering the mothers past incarceration, the Court disregarded her heroic rehabilitation.

The number of mothers in prison for minor, nonviolent offenses has skyrocketed in recent years, affecting an estimated 35,000 Illinois children. The Appellate Courts reading of the provision places a large number of children at risk of permanently losing their parents, creating a generation of legal orphans children whose legal ties to their parents have been broken, but for whom the Department of Children and Family Services will be unable to find permanent homes.

As of June 30, 2004, Illinois imprisoned 2,806 women an annual increase of almost 50% since 1993 and 67% of those women are African American. According to the Office of Planning and Research of the Illinois Department of Corrections (IDOC), the annual rate of incarceration of women in the past decade has accelerated at approximately twice the rate of men, increasing nearly fivefold in 20 years. Issues of parental rights are critical to this population. Researchers Robert Lalonde and Susan George at the University of Chicago found that more than 80 percent of women in Illinois prisons have at least one child. They project that 60,000 children are likely to have a mother in Illinois prisons in the next generation. The disproportionate incarceration of African-American women is compounded by the reality that African-American children experience the lowest rates of adoption.

A mother who is fully capable of caring for her child, who has succeeded in turning her life around and building a relationship with her child, should not be cut off permanently, said Gail Smith of Chicago Legal Advocacy for Incarcerated Mothers. A child belongs with her parent, unless there is a compelling reason to end parental rights. Its not in the best interest of children or parents for the state to cut off that relationship needlessly.

Illinois own Constitution says that all penalties shall be determined with the objective of restoring the person to useful citizenship, says Joanne Archibald, CLAIMs Advocacy Director. That is exactly what the parent in this case did, but she is still being punished. I served a year in prison when my son was a baby, and I cant imagine what our lives would be if I had lost him.

I dont know how I could go on without my mother, says her son, David Mingus, age 19. David returned to his mothers custody upon her release, and the two have a close relationship today.

For additional information, please contact Patricia Allard Brennan Center for Justice (212) 998–6740, or Gail Smith Chicago Legal Advocacy for Incarcerated Mothers (312) 675–0911.

The Brennan Center for Justice at NYU School of Law, founded in 1995, unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Its missi