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NCJRS Abstract

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NCJ Number: 147263 Find in a Library
Journal: Journal of Family Law  Volume:30  Issue:4  Dated:(1991-1992)  Pages:757-846
Author(s): P M Genty
Date Published: 1992
Page Count: 90
Type: Survey
Format: Article
Language: English
Country: United States of America
Annotation: This article examines State statutes and case law involving State-commenced proceedings to terminate the rights of incarcerated parents whose children are in foster care.
Abstract: These laws were historically targeted at parents who voluntarily abandoned their children; they are not adequate for dealing with the situation of parents who are involuntarily separated from their children through incarceration but who wish to continue to act as parents. The article examines the nature of the parent-child relationship and the constitutional requirement that a parent be found unfit by clear and convincing evidence before parental rights are terminated. Three principles of due process are explored. States must provide an adversarial hearing at which the parent is present and represented by counsel. States may not focus exclusively on pre-incarceration conduct, but must also consider the parent's present circumstances including the degree of involvement in prison rehabilitation programs. Finally, States may not place undue weight on the length of time that the family will be separated, but must consider the parent's ability to act in the parental role while incarcerated. Statutes which are analyzed here include those that define procedural rights available to incarcerated parents, those that focus on the parent's past conduct, and those that focus on the parent's future ability to be reunited with the child. The constitutional ideal would be "present- focused" laws which look at parental conduct while in prison and evaluate the current parent-child relationship. 266 notes
Main Term(s): Corrections
Index Term(s): Children of incarcerated offenders; Parental rights; Right to Due Process
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