In late August of this year, I had the privilege of attending the National Association of Counsel for Children (NACC) 34th National Child Welfare, Juvenile, and Family Law Conference in San Diego, California, which was held at the Hotel Del Coronado, a historic resort on Coronado Island. NACC’s stated goal is to ensure that attorneys representing families and children are well-trained and effective. Toward that end, the theme of this year’s conference was “Eliminating Unintended Bias.” The opening speaker was Nell Bernstein, acclaimed writer, award-winning journalist, and coordinator of the San Francisco Children of Incarcerated Parents Partnership (SFCIPP). She is also the author of “All Alone in the World: Children of the Incarcerated.”
Nell Bernstein presented data from studies related to children of incarcerated parents and their families. Indeed, the figures she shared are staggering- according to the U.S. Department of Justice, 2.4 million American children have a parent behind bars today. Seven million, or one in ten of the nation’s children, have a parent under criminal justice supervision.1 The conclusion was obvious for Bernstein and her colleagues- that a children’s perspective is the logical framework from which future work should evolve.
Thus, a Bill of Rights for children of the incarcerated was born. Nell Bernstein interviewed over 30 young people who had experienced parental incarceration and along with other advocates and SFCIPP, created a Bill of Rights for children of the incarcerated, first published in 2003. Those rights are:
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1. I have the right to be kept safe and informed at the time of my parent’s arrest.
2. I have the right to be heard when decisions are made about me.
3. I have the right to be considered when decisions are made about my parent.
4. I have the right to be well cared for in my parent’s absence.
5. I have the right to speak with, see and touch my parent.
6. I have the right to support as I face my parent’s incarceration.
7. I have the right not to be judged, blamed or labeled because my parent is incarcerated.
8. I have the right to a lifelong relationship with my parent.
As Nell Bernstein pointed out, children of the incarcerated are subject to three main forms of unintended bias: stigma, invisibility, and judgment toward their families.
Children of the incarcerated are often stigmatized by people coming to help them with preconceived notions and they are then treated according to that bias. Children of the incarcerated are label “at risk” to offend themselves. Rather than labeling children of the incarcerated parents “at risk” and judging them, Bernstein contends that we should approach them as we would any other child whose parent has been involved in some tragedy and not afforded the necessary support, and assess what each child needs as a result.
Moreover, children of the incarcerated are often “invisible”. For example, many law enforcement agencies lack protocol when dealing with children at the time of their parent’s arrest. The available figures show that 70% of children of the incarcerated where present at the time of their parent’s arrest and 30% children were present when dangerous weapons where drawn on their parent.2 Many children who witnessed the arrest of a parent later exhibited post-traumatic stress disorder.3 Many children suffered classic symptoms of post-traumatic stress, such as being unable to sleep or concentrate and had flashbacks to the moment of the arrest.4
Judgment toward families is another form of unintended bias which frequently arises in this context. Bernstein noted the existence of a “dual system” where children of the incarcerated are often involved with juvenile justice system. Bernstein further stated that many parents, upon intake, will underreport the existence of children or the custodial status of their children, for fear that their subsequent incarceration will result in their children becoming wards of the state, or will result in the termination of their parental rights. While the current figures show that 11% of all incarcerated persons were custodial parents at intake, Bernstein contends that the figures are much higher due to underreporting, and could be as high as 25%.
So, what can be done to address these inherent biases and the other issues that face the children of the incarcerated? SFIPP, building off the Bill of Rights, began the Rights to Realties Initiative, a correlating action plan with the long term goal of ensuring that every child in San Francisco whose parent had been arrested and incarcerated is afforded the aforementioned rights. The agenda for action is as follows:
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1. I have the right to be kept safe and informed at the time of my parent’s arrest.
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Develop arrest protocols that support and protect children.
Offer children and/or their caregivers basic information about the post-arrest process.
2. I have the right to be heard when decisions are made about me.
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Train staff at institutions whose constituency includes children of incarcerated parents to recognize and address these children’s needs and concerns.
Tell the truth.
Listen.
3. I have the right to be considered when decisions are made about my parent.
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Review current sentencing law in terms of its impact on children and families.
Turn arrest into an opportunity for family preservation.
Include a family impact statement in pre-sentence investigation reports.
4. I have the right to be well cared for in my parent’s absence.
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Support children by supporting their caretakers.
Offer subsidized guardianship.
5. I have the right to speak with, see and touch my parent.
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Provide access to visiting rooms that are child-centered, non-intimidating and conducive to bonding.
Consider proximity to family when siting prisons and assigning prisoners.
Encourage child welfare departments to facilitate contact.
6. I have the right to support as I face my parent’s incarceration.
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Train adults who work with young people to recognize the needs and concerns of children whose parents are incarcerated.
Provide access to specially trained therapist, counselors, and/or mentors.
Save five percent for families (allocate 5% of corrections budget to support prisoners’ families both during and after a parent’s incarceration.)
7. I have the right not to be judged, blamed or labeled because my parent is incarcerated.
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Create opportunities for children of incarcerated parents to communicate with and support each other.
Create a truth fit to tell.
Consider differential response when a parent is arrested.
8. I have the right to a lifelong relationship with my parent.
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Re-examine the Adoption and Safe Families Act.
Designate a family services coordinator at prisons and jails.
Support incarcerated parents upon reentry.
Focus on rehabilitation and alternatives to incarceration.
The Rights to Realities Initiative seems like a tall order, however, currently fourteen states have partnered to implement the Rights to Realities Initiative via the National Partnership for Children of Incarcerated Parents.
Some goals of the Initiative are already being met in Nebraska- for example, the 1997 federal Adoption and Safe Families Act mandates that states must bring proceedings to terminate parental rights if a child has been in foster care for 15 out of the past 22 months. Nebraska, by statute, prohibits filing a termination proceeding “if the sole factual basis for the petition is that … the parent or parents of the juvenile are incarcerated.” Neb. Rev. Stat. § 43-292.02(2) (Reissue 2004). However, other goals seem to be noticeably unmet- such as providing a family impact statement in pre-sentence investigation reports and considering proximity to family when assigning prisoners. It is questionable whether law enforcement agencies among our 93 counties have developed protocols for dealing with children at the time of their parent’s arrest. And are guardianships with family given priority over adoption with non-relatives in our courts?
Nebraska currently is not involved in the partnership, which begs the question- are we doing enough from the child’s perspective and should we be implementing the Rights to Realities Initiative?
Jennifer D. Joakim, Joakim Law Office, Valparaiso, Nebraska
Resources:
1: “Children of Incarcerated Parents: A Fact Sheet,” Federal Resource, Center for Children of Prisoners, http://www.fcnetwork.org/AECFChildren%20of%20Incarcerated%20Parents%20Factsheet.pdf.
2: Survey, American Bar Association (ABA) Center on Children on the Law.
3: Christina Jose Kampfner, “Post-Traumatic Stress Reactions in Children of Imprisoned Mothers,” in Katherine Gabel and Denise Johnston, M.D. eds. Children of Incarcerated Parents (New York: Lexington Books, 1995).
4: Id.
