With its release to Netflix on Friday, the new season of Orange Is the New Black will be coming to the small screen. Among the plot points left open last year is the plight of Daya Diaz (played by Dascha Polanco), who was impregnated in the first season, as she tries to figure out where her baby will live after birth. Immediate family is out: Her own mother is incarcerated in the same prison, her father has been out of her life since she was a toddler, and the baby’s father is a correctional officer who risks his own prison sentence if he confesses to parenthood. Diaz must grapple with whether she should give her baby up for adoption or have the newborn go into foster care as she finishes her 36-month sentence.
Sadly, Diaz’s dilemma is all too real for many mothers behind bars. As Sharona Coutts and Zoe Greenberg investigated as part of their Women, Incarcerated series, thousands of incarcerated mothers whose children are in foster care risk losing custody each year. In 1997, then-President Clinton signed the federal Adoption and Safe Families Act (ASFA) into law, requiring that states begin proceedings to terminate parental rights if a child is in foster care for 15 out of 22 months. If states did not comply, they risked losing federal funding. Parents can fight the termination, but must prove that they are doing everything in their power to maintain a relationship with their children. And for many women in prison, the institution’s distance from their children’s home, the high price of collect calls, and the reluctance of caregivers to bring children to visit makes proving their continued involvement an uphill battle.
In some states, parents who have formerly been in jail or prison—including the federal prison that inspired the one in Orange Is the New Black—and their allies have united to attempt to combat this cycle of injustice. Still, they face nearly a decade of precedents that have set up countless obstacles for women trying to preserve custody of their children beyond their sentencing.
A Ticking Clock
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When ASFA was passed, only two states—Nebraska and New Mexico—recognized that children may be in foster care because of parental incarceration and made exceptions to the “15 out of 22 month” rule for those cases. But in other states, once a child entered foster care, the clock starts.
That’s what Alise Hegle, whose story appeared in Truthout and other outlets in 2013, learned when she was arrested a month after giving birth to her daughter in Washington state. With her newborn in foster care, she had to try to attend custody hearings from behind bars, an undertaking that involved having jail officers transport her to family court, wait for the hearing, and then escort her back. She ended up missing a family court hearing.
Fortunately, the family court judge noticed her absence. Not only did he issue a court order requiring that the jail transport her to family court proceedings, but, according to Hegle, he also appointed her an attorney. That made all the difference. Hegle, whose daughter is now 6, has been a full-time mother since her daughter was 17 months old.
Meanwhile, when a woman named Chandra entered a Washington prison in February 2012, her two daughters were placed in foster care. Like Hegle, she faced a lack of resources and information about family law and her rights as a parent with children in foster care. Prison officials, she says, refused to help.
Recalling her experiences under her first name only in a piece for the zine Tenacious: Art and Writings by Women in Prison, Chandra wrote that, at the beginning of her prison sentence, her 13-year-old daughter said during a phone call, “Child Protective Services said I should just allow the adoption to take place because your mom has a lot on her plate when she gets out and she don’t need you!”
But Chandra would not let her children go without a fight. She kept meticulous documentation of each time the foster family rejected her collect calls, of every postage stamp she bought to mail her daughters a letter, and each time the foster family did not bring her daughters to visit. Armed with this documentation, she showed the family court that she was doing her best to stay involved. She did not lose custody and, upon her release, the family was reunited.
Not every story ends so happily, however. A 2003 study found that termination proceedings involving incarcerated parents increased nationwide from 260 in 1997, the year ASFA was passed, to 909 in 2002. During the five years before ASFA’s passage, the number of termination proceedings had increased from 113 in 1992 to 142 in 1996. As Sharona Coutts and Zoe Greenberg reported, nearly 60,000 of the 402,000 children in foster care in 2013 were waiting to be adopted after the rights of their living parents (both in prison and not in prison) had been terminated. Termination is more likely to affect mothers than fathers—as Coutts and Greenberg also noted, a 2013 study of parents incarcerated in New York State found that 17 percent of mothers had lost parental rights compared to 10 percent of fathers.
The Changing Tide
In several states, parents who have experienced both incarceration and the threat of losing their children have organized to change this situation. Beginning in 2007, prison advocacy and monitoring group the Correctional Association of New York began working with legislators and advocates, including formerly incarcerated mothers, to pass the ASFA Expanded Discretion Bill, which allows foster care agencies not to file for termination of parental rights if the child is in foster care because the parent is or has previously been in prison or a residential drug treatment program. Mothers in prison also added their voices—the Long Termers Committee, consisting of women serving lengthy or life sentences, at the Bedford Hills Correctional Facility, put together an 80-page memorandum in support of the bill with handwritten testimonies by mothers, some of whom had experienced foster care and permanent separation from their own mothers as children.
The memorandum also contained copies of letters and drawings from the women’s children demonstrating how much they loved and needed their mothers to remain in their lives. “Dear Mom, I can’t wait to see you,” wrote one child. Another drew a picture of two figures in a circle of hearts.
Outside of prison, formerly incarcerated parents spoke about their own experiences of struggling against the ASFA timeline at public events and to press. They helped create a photo slideshow illustrating the bill’s importance. They drove to Albany for a series of advocacy days. In 2010, their efforts were successful, and the bill was signed into law. However, as the aforementioned 2013 study shows, mothers behind bars still face barriers to proving that they are meaningfully engaged in their children’s lives and avoiding permanent loss of their children.
The ASFA Expanded Discretion Bill affected more than parents in New York state. Across the country, Lillian Hewko, then a law student, learned about it and decided that parents incarcerated in Washington state needed similar protections. The following year as a new attorney, Hewko began working with Legal Voice, a women’s legal organization that had helped pass Washington’s 2010 anti-shackling legislation, on what would become SHB 1284, or the Children of Incarcerated Parents Bill.
Like the ASFA Expanded Discretion Bill, SHB 1284 gave courts the discretion to delay termination of parental rights if the parent’s imprisonment or previous imprisonment is the reason for the child’s continued foster care placement. Hewko partnered with parents who had previous child welfare involvement to raise awareness and gain support for the bill. Hegle was one such parent. She and others told their stories again and again—to organizations that work with children, on radio shows, and even at their children’s schools. They drove to Olympia to testify before the legislature about their experiences—and the importance of maintaining family connections.
They succeeded. On May 8, 2013, the Children of Incarcerated Parents Bill was signed into law.
Massachusetts’ New Initiative
Now, in Massachusetts, formerly incarcerated women are taking a different approach—pushing to keep primary caregivers out of prison altogether. Andrea James is the director of Families for Justice as Healing, an organization of currently and formerly incarcerated women. She is also a mother who spent 18 months at the Federal Correction Institution, Danbury—the institution now made famous by Orange Is the New Black—and the force behind HB 1382, which would provide community-based alternatives to incarceration for primary caregivers. In Massachusetts, 66 to 75 percent of women behind bars are mothers to dependent children; most of these are single parents.
HB 1382, sponsored by Massachusetts House Rep. Russell E. Holmes (D-Boston), pushes the courts to determine whether a person who has been convicted of a non-violent offense is a primary caregiver of a child under 18. If that person is, the court will sentence that person to an alternative to incarceration “based on community rehabilitation, with a focus on parent-child unity and support.”
The bill, James said, grew out of a number of kitchen-table conversations with formerly incarcerated women and their families across the state. Recognizing that many people lack transportation or the money to access it, James and other members will visit formerly incarcerated women and their families in their homes.
“Usually, we show up and there are two or three other mothers and grandmothers at the table,” she explained in an interview with Rewire. There, they talk about the effects of mass incarceration—and how to challenge them. James said that she and Families for Justice as Healing also reach out to women who don’t have homes, conducting workshops at day shelters and other areas where women who have been incarcerated end up after leaving jail or prison.
As of May 4, 1,277 women were behind bars in Massachusetts. Had courts been pushed to consider those individuals’ roles in caring for children, that number would likely be much lower. A 2008 study found that only 15 percent of women in the state’s jails and sole women’s prison were incarcerated for actions involving violence. If the same percentage holds true today, hundreds of mothers could be diverted from prison to community alternatives—and get to maintain custody of their children.
“It’s a really critical element that’s not being asked at sentencing—is this person responsible for their children? What is their absence going to mean for those children?” said James.
HB 1382 is currently before the Judiciary Committee of the Massachusetts state legislature. As they await a hearing date, the women helping to push it are preparing their testimonies. Some have lost custody of their children because of their incarceration. Some have lost their parents to addiction and incarceration. Some have been on both ends: James told the story of a woman named Diana McGuire, who was placed in foster care because of her own parents’ addiction and incarceration. As an adult, she has been in and out of prison for more than 17 years, losing custody of her own children in the process. Now, says James, McGuire is determined to make a difference for other families facing similar situations and is preparing to share her own painful experiences to illustrate the bill’s importance.
For her and other women, this will be their first time before the legislature. They’ve been meeting to practice what to say during the three minutes each speaker is allotted—and they’ve supported one another as they share their experiences over and over again. “There’s not a dry eye in the room by the end of it,” describes James. “But there’s also a lot of hugging, there’s a lot of encouraging.”
Working on the bill isn’t only about enabling parents to stay out of prison, giving their children stable support systems, and avoiding possible termination of custody. It’s also about trying to change public perceptions of women who are incarcerated, says James.
James noted that poverty, under-education, racism and, in many cases, addiction are factors in women’s incarceration. While the bill does not address all of these underlying issues, the discussion surrounding HB 1382 brings the topics into conversations about criminal justice and parenting. “We’re trying to shift the paradigm of the ‘bad mother.’ Even women who are struggling with addiction are doing their best to parent,” James said.
Recognizing the destruction that imprisonment wreaks on individuals, families, and communities, James explained, “Our goal is to reduce the incarceration of women. So everything we do starts from there and we try to figure out how to accomplish that.”