Loss of Parental Rights

For many offenders, potentially one of the severest consequences of engaging in criminal behavior is the loss of parental rights. Every state in the United States has its own laws that dictate when a court may terminate parental rights. Depending on the [Page 240]type and length of sentence imposed on the offender, the law may require that the offender's parental bond be permanently severed. In other cases, termination of parental rights is not mandatory, but the underlying behavior, regardless of the sentence, may trigger a court action to assess and possibly intervene in the parent-child relationship. The rights of one parent can be terminated without negating the rights of the other parent, but if both parents lose their rights to the child, the child becomes a ward of the state and may be placed in a permanent adoptive family or guardianship.

The Adoption and Safe Families Act (ASFA), a federal statute passed in 1997, has had a major impact on the parental rights of offenders, particularly those who are incarcerated. According to the Bureau of Justice Statistics, the majority of inmates in the nation's prisons are parents of minor children. One goal of ASFA was to protect children from the instability of long-term foster care by streamlining adoption procedures. ASFA set strict timetables for terminating the rights of parents whose children are in foster care, so that the children could be quickly placed for permanent adoption. Under ASFA, state agencies are required to initiate proceedings to terminate a parent's rights to his or her child once the child has been in foster care for 15 of the previous 22 months. As a result, offenders who are sentenced to serve time for even low-level nonviolent felonies often run afoul of ASFA's 15-month time limit. If their child must be placed in foster care while they serve their sentence, the parent-child relationship will be legally severed before they get out of prison. For this reason, community correctional programs that allow offenders to reside with their young children have the effect of allowing families to remain unified, as opposed to being statutorily broken apart.

Laws implementing ASFA vary somewhat from state to state. Although ASFA only requires termination proceedings when the parent has been apart from the child for 15 months, some states have shortened this time period to as few as six months. On the other hand, when ASFA mandates the initiation of termination proceedings, roughly half of the states allow at least some exceptions to be made that would enable offenders to retain their parental rights. These exceptions include situations in which the child is placed in the custody of a family member while the offender is incarcerated, or where the state can document a compelling reason that severing the parent-child relationship would violate the child's best interests.

Parental rights may be terminated depending on the type and length of sentence imposed or the inability of the parent to provide for the child's needs. Each U.S. state is responsible for establishing its own statutory grounds.

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