The complicated and overlapping nature of the criminal system and child welfare system[1]  means that involvement in one likely causes involvement in the other. Though the goals of child welfare systems include “the safety, permanence, and well-being of children and families,”[2] national data indicates that foster systems are failing to adequately support youth. The systems are instead punishing parents with removal[3] and putting children at risk of future criminal activity.[4] Children involved in neglect cases have likely been touched by the criminal justice system in some way, and are more likely to be justice-involved after going through the foster care system.[5] This article will outline the ways in which the criminal justice system and the child welfare system overlap and suggest solutions that will produce better outcomes for the children and families involved.

The Effect of Justice-Involved Parents

About 15-20% of children entering the foster care system have an incarcerated parent,[6] and while there is no evidence that children of incarcerated parents are more likely than their peers to be incarcerated,[7] they do experience greater risk of poverty and household instability.[8] Children with corrections-involved parents are at the highest risk of becoming involved in either the child welfare or criminal justice systems.[9]

The increasing incarceration of women is driving even more children into the linked foster care and carceral systems. Women are the fastest growing incarcerated population,[10] which has a big impact on their children’s foster status. While 90% of children remain with their mother when their father is incarcerated, only 25% of children live with their father when their mother is incarcerated, though another 50% live with a grandmother.[11] But even short-term temporary removals can have lasting effects on children.[12]

Incarcerated parents also face a disproportionately high risk of permanently losing their parental rights, because their sentences are often longer than stringent placement timelines.[13] The Adoption and Safe Families Act generally requires States to file a petition to terminate parental rights once the child has been in foster care for fifteen out of the prior twenty-two months.[14] Furthermore, incarcerated parents miss out on precious milestones and lose the ability to form close relationships with their children, especially because most prisons are inaccessible and collect calls from prisons are prohibitively expensive.[15] Incarceration also results in a variety of collateral barriers upon release, further hindering families’ ability to successfully reunify.[16] Having a criminal record can often hinder the ability to find employment, housing, receive public benefits, and pursue educational opportunities,[17] and these conditions can affect parents’ ability to regain custody of their child.

The Effect of Foster-Care Involvement

Children in foster care are much more likely than their peers to become involved in the criminal justice system.[18] An estimated 25% of foster care children will become involved with the criminal system within two years of leaving care,[19] and over half of youth in care experience an arrest, conviction, or overnight stay at a correctional facility by age seventeen.[20] For children who have been moved through multiple placements, the risk is even higher, with one study indicating that over 90% of foster youth who move five or more times will end up in the juvenile justice system.[21] Children placed in group homes are also much more likely to become involved in the justice system than children placed in an actual foster home.[22] The correlation between foster care and criminal involvement is strong enough that advocates refer to this criminalization of children as the foster care-to-prison pipeline.[23]

Poverty and Racial Disparity Are Correlated with Both the Criminal and Welfare Systems

Poverty and instability correlate with high risks of incarceration, as about 80% of all criminal defendants are indigent.[24] And impoverished individuals are more susceptible to arrest and more likely to be charged with harsher crimes and to receive a longer sentences.[25] Poverty, with overcriminalization, is a root cause of mass incarceration.[26] Poverty and instability also correlate with the risk of entering the child welfare system.[27] A family’s likelihood of being involved in the child welfare system correlates with low-income status and factors related to poverty.[28]

There is also a high racial disparity in both the child welfare and the criminal systems.[29] People of color are overrepresented in the criminal system; children of color—and especially Black children—are more likely to have an incarcerated parent.[30] Black children are also overrepresented in foster care and are more likely to remain in foster care for longer periods of time compared with white children.[31] These racial disparities may be caused by systemic barriers for communities of color that have led to intergenerational poverty,[32] fewer educational opportunities, and other structural and institutional exclusions.[33] While individual biases in decision-making may play a role, structural bias and systemic exclusion from social and economic opportunities have left families of color at higher risk of facing the punitive carceral and child welfare systems than white families.[34]

Potential Solutions

Solutions to reducing involvement in these mutually reinforcing systems involve addressing three major issues: one is reducing systemic poverty and investing in communities, because underfunded communities and communities of color have been intentionally deprived of resources and prevented from accumulating generational wealth.[35] The second is reducing mass incarceration, which requires reducing surveillance, sentences,[36] and arrests—especially for drug offenses and other nonviolent crimes. The third is reducing the biases and racism that permeate our systems, which must go beyond individual decision-making and challenge institutional structures themselves.

For children already within the foster care system, they can be better served by increased mental health services and by fewer group home placements, where conflicts are more likely to be solved by police calls than by internal mediation.[37] Some reforms have already shown to be promising, and should be expanded, like mental health and other diversion courts.[38] For families with a parent who is already justice-involved, trauma-informed practices and programs that promote parent-child contact and relationship-building can aide long-term family stability.[39]

Conclusion

Systemic poverty and the punishment of poverty through the criminal justice and child welfare systems are the result of bad policy choices. Likewise, mass incarceration was caused by policy choices, not increased criminal behavior,[40] so it can be solved by targeted policies. Instead of continuing to fund bloated police budgets, lawmakers should fund more community programs and educational opportunities[41] to support families before they reach one of these systems. Lawmakers can eliminate restrictions on those who were previously incarcerated and encourage successful reintegration with society.[42] Lawmakers can also fund more services for individuals who have been involved in either the criminal system or the child welfare system and their family members so that support and resources do not cease after families exit the system. Solutions must support community members who have already entered one of these systems as well as members who have not—reintegration and prevention can be dual goals. Ultimately, to decrease the number of people involved in the criminal and child welfare systems, policymakers need to start adequately supporting the communities that have been and continue to be systemically denied opportunity across our nation.

[1] The child welfare system includes interventions with families designed to promote the well-being of children. See Children’s Bureau, How the Child Welfare System Works (2020), https://www.childwelfare.gov/pubpdfs/cpswork.pdf. Child welfare systems encompass more than just foster care, but this article will focus on impacts to children who are removed from the care of their parent(s) and placed in foster care.

[2] Child & Family Serv. Agency , Introduction to the CFSA Policy Unity and Online Policy, DC.gov, https://cfsa.dc.gov/page/cfsa-policy-unit-and-policy-development (last visited Dec. 8, 2020).

[3] Removal means the physical removal of the child from the parent’s care and placement in foster care. In 2019, only 47% of those children who exited foster care were reunified with their parent or primary caretaker. U.S. Dep’t of Health & Hum. Serv., Admin. For Child. & Fam., The AFCARS Report (2019), https://www.acf.hhs.gov/media/9238.

[4] See Rachel Anspach, The Foster Care to Prison Pipeline: What It Is and How It Works, Teen Vogue (May 25, 2018), https://www.teenvogue.com/story/the-foster-care-to-prison-pipeline-what-it-is-and-how-it-works; Mark E. Courtney et al., Midwest Evaluation of the Adult Functioning of Former Foster Youth: Outcomes at Age 26, 92-93 (2011), https://www.chapinhall.org/wp-content/uploads/Midwest-Eval-Outcomes-at-Age-26.pdf.

[5] Courtney, supra note 4 (finding youth in foster care were considerably more likely to have been arrested than non-foster youth).

[6] Rutgers University – Camden, National Resource Center on Children and Families of the Incarcerated, Children and Families of the Incarcerated Fact Sheet (2014), https://nrccfi.camden.rutgers.edu/files/nrccfi-fact-sheet-2014.pdf [hereinafter Rutgers].

[7] Id.

[8] Id.

[9] See Keva M. Miller, Exploring the Intersection of Child Welfare and Criminal Justice, Child Welfare 360°, Spring 2018, at 4, 5, https://cascw.umn.edu/wp-content/uploads/2018/04/CW360_Spring2018_WebTemp.pdf.

[10] Prism Restorative Justice, Incarceration Statistics (Dec. 9, 2017), https://static1.squarespace.com/static/59d8219fa8b2b06fbefeb652/t/5a3985c98165f52ed3ad034e/1513719243596/Incarceration+Statistics.pdf.

[11] Rutgers, supra note 6.

[12] Stephanie Clifford & Jessica Silver-Greenberg, Foster Care as Punishment: The New Reality of ‘Jane Crow’, N.Y. Times (July 21, 2017), https://www.nytimes.com/2017/07/21/nyregion/foster-care-nyc-jane-crow.html.

[13] Rutgers, supra note 6.

[14] 42 U.S.C.A. § 675(5)(E) (2018).

[15] See Rutgers, supra note 6., Amy C. D’Andrade, How Does Incarceration Affect the Likelihood of Reunification? Child Welfare 360°, Spring 2018 at 12, 12, https://cascw.umn.edu/wp-content/uploads/2018/04/CW360_Spring2018_WebTemp.pdf.

[16] See Roberta Meyers, The Impact of Collateral Consequences of Criminal Conviction on Children and Families, Child Welfare 360°, Spring 2018 at 10, 10, https://cascw.umn.edu/wp-content/uploads/2018/04/CW360_Spring2018_WebTemp.pdf.

[17] Id.

[18] See Anspach, supra note 4 (children in America’s foster care system “face a disproportionate risk of being incarcerated”).

[19] Id. 

[20] What is the Foster Care-to-Prison Pipeline? Juvenile L. Ctr. (May 26, 2018), https://jlc.org/news/what-foster-care-prison-pipeline [hereinafter Pipeline].

[21] Miriam Aroni Krinsky, Disrupting the Pathway from Foster Care to the Justice System—A Former Prosecutor’s Perspectives on Reform, 48 Fam. Ct. Rev. 322, 325 (2010), https://archive.constitutionproject.org/wp-content/uploads/2012/10/399.pdf (citing J.P. Ryan & M.F. Testa, Child Maltreatment and Juvenile Delinquency: Investigating the Role of Placement and Placement Instability, 27 Child & Youth Serv. Rev. 227, 230 (2005)).

[22] Pipeline, supra note 20.

[23] See e.g., id.

[24] Prism Restorative Justice, supra note 10.

[25] Tara O’Neill Hayes & Margaret Barnhorst, Incarceration and Poverty in the United States, Am. Action Forum (June 30, 2020), https://www.americanactionforum.org/research/incarceration-and-poverty-in-the-united-states/.

[26] Id.

[27] See Rob Green & Karen C. Tumlin, The Urban Inst., State Efforts to Remake Child Welfare: Responses to New Challenges and Increased Scrutiny 20 (1999), https://www.urban.org/sites/default/files/publication/69646/309196-State-Efforts-to-Remake-Child-Welfare.PDF (“Nationally, more than half of the children in foster care come from homes that are eligible for welfare”).

[28] Id.

[29] See generally Miller supra note 9.

[30] Id. (Black children are 7.5 times more likely than white children to have a parent in a correctional facility).

[31] Id., see also Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. of L. & Social Change, 523, 538 (2019) (African Americans are disproportionately targeted in the child welfare system).

[32] See Dan Hurley, Can an Algorithm Tell When Kids Are in Danger?, N.Y. Times Mag. (Jan. 2, 2018), https://www.nytimes.com/2018/01/02/magazine/can-an-algorithm-tell-when-kids-are-in-danger.html (“Studies . . . have attributed the disproportionate number of black families investigated by child-welfare agencies across the United States not to bias, but to their higher rates of poverty.”).

[33] See Miller, supra note 9.

[34] See e.g., Clifford & Silver-Greenberg, supra note 12 (“‘In another community, your kid’s found outside looking for you because you’re in the bathtub, it’s ‘Oh, my God’’ –a story to tell later, he said. ‘In a poor community, it’s called endangering the welfare of your child.’”).

[35] Kara Gotsch Families and Mass Incarceration, Child Welfare 360°, Spring 2018 at 7, 7, https://cascw.umn.edu/wp-content/uploads/2018/04/CW360_Spring2018_WebTemp.pdf.

[36] See id.

[37] See Anspach, supra note 4.

[38] See Ann O’Regan Keary, Mental Health Diversion for Criminal Defendants: One Judge’s Experience, Am. Bar Ass’n (May 1, 2015), https://www.americanbar.org/groups/judicial/publications/judges_journal/2015/spring/mental_health_diversion_for_criminal_defendants_one_judges_experience/.

[39] See Miller, supra note 9 at 6; see also Justin Jouvenal, Raising Babies Behind Bars, Wash. Post (May 11, 2018), https://www.washingtonpost.com/news/local/wp/2018/05/11/feature/prisons-are-allowing-mothers-to-raise-their-babies-behind-bars-but-is-the-radical-experiment-in-parenting-and-punishment-a-good-idea/.

[40] Ctr. for Community Change, The Relationship between Poverty & Mass Incarceration, https://www.masslegalservices.org/system/files/library/The_Relationship_between_Poverty_and_Mass_Incarceration.pdf (last visited Mar. 17, 2020); Gotsch, supra note 35.

[41] Gotsch, supra note 35.

[42] Id.