By Anna Iskikian
Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge’s ability to adequately consider a defendant’s parenthood at sentencing.
This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.