An exploratory study of the range of implications of families' criminal justice system involvement in child welfare cases

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Abstract

This article describes findings from a review of child protective services case records that was conducted to further understanding of the relevance of families' criminal justice system involvement in child welfare cases. Records suggest there are four broad categories of scenarios in which families' criminal justice and child welfare involvement intersect. These include: (1) instances in which parental arrest and child maltreatment investigations coincide; (2) consideration of parents' criminal histories in the decision to remove children from the care of their parents; (3) consideration of relatives' criminal histories in decisions to place children in foster care; and (4) instances in which child protective services agencies become involved with children whose parents are incarcerated because of risks to children's current safety or inadequate resources. Variations within these categories are described and discussed in the context of ongoing advocacy on behalf of incarcerated parents and their children.

Introduction

Policy makers enacted various criminal justice reforms in the 1980s and 1990s. These reforms increased the number of police on the streets, made more crimes punishable by prison sentences, took away discretion judges once had in considering offenders' family circumstances when passing sentence, and increased the amount of time people spend in prison before they are eligible for release (Caplow & Simon, 1999). Because of these reforms, prison populations skyrocketed, reaching historically unparalleled levels (Blumstein and Beck, 1999, Tonry, 1995, Tonry and Petersilia, 1999). As a result, more children experience the arrest and incarceration of parents today than ever before.

Many of the problems associated with arrest and incarceration are also risk factors for child maltreatment (e.g., substance abuse, mental illness, family violence, poverty). Accordingly, one would expect some degree of overlap between families involved in the criminal justice and children welfare systems. The extent of that overlap, however, is difficult to pinpoint because criminal justice entities (i.e., law enforcement agencies, probation officials, jails and prisons, parole departments) do not routinely track information about offenders' children and the child welfare system does not routinely track information about parents' current criminal justice system involvement. At present, the most reliable information about the extent of families' dual involvement in these systems comes from two national surveys — one based on a nationally representative sample of children who were subjects of reports of maltreatment, and the other based on a nationally representative sample of people in State and Federal prisons. According to these sources: (1) approximately 1 in every 8 children who are subjects of reports of maltreatment have a parent who was recently arrested (Phillips, Burns, Wagner, & Barth, 2004, (2) about 1 in 3 children who are not removed from their parents' custody live with a primary caregiver who has an arrest history (Phillips & Dettlaff, 2007), and (3) approximately 11% of mothers and 2% of fathers in prison have children in foster care (Glaze & Maruschak, 2008).

Although some amount of overlap between the criminal justice and child welfare systems might be explained by commonalities in risk factors for arrest and for children maltreatment, there has been increasing interest in the possibility that arresting and incarcerating parents could be a direct cause of children coming to the attention of child protective services (CPS) agencies and also contribute to children being placed in foster care (see for example Seymour, 1998). Also, because many children whose parents are in prison are cared for by relatives, the rise in incarceration rates stimulated interest in how the child welfare system might help and support relative caregivers (Phillips & Bloom, 1998).

The section that follows provides an overview of what we know about these areas of interest and concern. It also explains why discussions about the intersection of the criminal justice and child welfare systems may reflect a myopic perspective of the role families' criminal justice system involvement plays in child welfare cases.

The unparalleled levels of incarceration in the U.S. in the last two decades led to concerns about possible unintended consequences that the expansion of the criminal justice system might have for families' involvement in the child welfare system, particularly in the case of maternal arrest and incarceration (Administration for Children's Services, 2002, Beckerman, 1998, Johnson and Waldfogel, 2002, Seymour, 1998). One concern has been that arresting mothers might precipitate children's involvement with child welfare authorities simply because mothers are rendered unable to care for their children when they are taken into custody by law enforcement officers (Barry et al., 1995, Johnson and Waldfogel, 2002, Nieto, 2002, Puddefoot and Foster, 2007).

Law enforcement officers make millions of arrests each year, but no one currently knows how many arrests involve parents or how often the arrest of a parent results in children becoming involved with CPS agencies. Nonetheless, surveys of law enforcement agencies affirm that officers do, in fact, sometimes call CPS when they arrest parents and no one is available to take responsibility for their children (Smith & Elstein, 1994).

In terms of the child welfare population, data from a national study show that as many as 1 in every 8 children who are subjects of reports of alleged maltreatment have a primary caregiver (typically a mother) who was recently arrested (Phillips et al., 2004). It is difficult to ascertain what proportion of these children may have become involved with CPS agencies simply because there was no one to take responsibility for them when their parents were arrested. However, the types of alleged maltreatment that were documented in children's case records (i.e., 26.8% of children were allegedly physically abused and 8.7% were allegedly sexually abused) suggest there may be other explanations for why these children were subjects of CPS reports (Phillips et al., 2004). To the extent CPS agencies were contacted by law enforcement officers, it may well have been in keeping with their responsibilities as mandated reporters in a substantial proportion of cases. Furthermore, substance abuse and domestic violence are more prevalent in families in which parents were recently arrested; therefore, law enforcement officers might also initiate contact with CPS because of protocols that have been established to guide their response to children when they make arrests for drug-related crimes or domestic assaults (see Cross, Finkelhor, & Ormrod, 2005).

There have also been concerns that parental arrest and incarceration (again, particularly maternal arrest and incarceration) result in children entering foster care (Seymour, 1998). A number of studies have found that children whose parents are or have been involved with criminal authorities are more likely than other children to spend time in foster care. For example, a study of children in the general population found that 4.1% of young people whose parents had arrest histories had been in foster care compared to only 1.6% of children whose parents had never been arrested (Phillips, Erkanli, Costello, & Angold, 2007). Similarly, data on children who were subjects of reports of maltreatment show that 9% of children whose parents were recently arrested entered foster care compared to only 4% of the other children with whom CPS agencies had contact (Phillips et al., 2004).

The incidence of foster care placement may be higher among children whose parents have been involved with criminal authorities, but that does not necessarily mean that parental arrest or incarceration were the cause of children entering the foster care system. Research shows that the recent arrest of a parent is marginally related (p = .06) to children not being in their parents' care (Phillips et al., 2004). Once removed from their parent's care, other factors weigh more heavily on the decision to place children in foster homes. These include the severity of emotional and behavioral problems children are experiencing, the total number of different parent and family problems workers identify, and the number of different types of maltreatment children allegedly experienced (Phillips et al., 2004). Consistent with this, a study of child welfare case records in New York City found that children's placement in foster care often occurred before their mothers were incarcerated. That being the case, maternal incarceration could not logically have been the cause of children's entry into foster care (Ehrensaft, Khashu, Ross, & Wamsley, 2003).

One of the limitations of our current knowledge about the intersection of the criminal justice and child welfare system is that efforts to understand the relationship between parental arrest/incarceration and children's entry into foster care have focused almost exclusively on maternal arrest and incarceration and, more specifically, on mothers' most recent or current episodes of arrest and incarceration. One of the reasons maternal incarceration is emphasized is because mothers in prison are proportionately more likely than are fathers in prison to report having a child in foster care (11 percent of mothers versus 2 percent of fathers) (Glaze & Maruschak, 2008). That fact notwithstanding, there are nearly 10 times more fathers than mothers in prison at any given time. Because of the greater number of fathers in prison, on any given day there are actually a greater number of incarcerated fathers with children in foster care (approximately 11,000) than there are incarcerated mothers (5600). The role that the incarceration of fathers might play either directly or indirectly in the State taking custody of children and placing them in foster care has been largely overlooked, as has the role of fathers more generally in the child welfare system.

Second, discussions of the consequences of maternal versus paternal arrest/incarceration for children often treat children of incarcerated mothers and fathers as if they are two distinct groups. Studies of children in the general population suggest this is not the case. Approximately two-thirds of children whose mothers have been arrested also have fathers who have been arrested (Farrington et al., 2001, Phillips et al., 2007).

Third, children's parents may not be the only members of their families who experience arrest and incarceration. Approximately 50% of inmates have relatives who have been incarcerated (Dallaire, 2007, Glaze and Maruschak, 2008). These individuals are the grandparents, aunts, and uncles of incarcerated parents' children, and their alternate parents. Because child welfare policies pose barriers to placing children with relatives who have criminal records, the criminal histories of these family members may also contribute to children entering foster care.

Finally, advocacy and research typically focus on only a single, recent episode of maternal arrest and incarceration, ignoring mothers' involvement with criminal authorities over time. In actuality, many parents in State prisons were sentenced to probation or incarcerated multiple times prior to their current prison sentences (Mumola, 2000). Data on children in the child welfare system show that children whose parents have extensive arrest histories live in families with a significantly greater number of problems than children whose parents have had limited or no contact with the criminal justice system (Phillips & Erkanli, 2008). Accordingly, differences in parents' arrest histories may be relevant when it comes to fully understanding the relationship between parental arrest/incarceration and children's involvement with child welfare systems.

Finally, there are concerns about the stability of the living arrangements of children whose mothers are incarcerated. Approximately 45% of mothers as well as 13% of fathers in prison report having a child who is living with grandparents. Again, because there are so many more fathers in prison than mothers, there are a greater number of incarcerated fathers who have children living with relatives (approximately 73,000) than there are mothers (approximately 23,000) (Glaze & Maruschak, 2008). When relatives assume responsibility for children, it can create immediate material and economic crises (Phillips and Bloom, 1998, Stanton, 1980). There are also concerns that children in informal kinship care arrangements may experience repeated family disruptions because of ongoing economic difficulties or problems caregivers may have managing children's emotional and behavioral problems (Dubowitz and Sawyer, 1994, Dubowitz et al., 1993, Phillips and Bloom, 1998, Webster et al., 2000).

The purpose of the current study was to explore the range of ways in which family members' criminal justice system involvement might be relevant in CPS cases by examining information in CPS agency investigative case records. Although this study is exploratory, it takes previous research on the consequences of arrest and incarceration for families in the child welfare system in a new direction by allowing for the possibilities: (1) that in addition to the arrest and incarceration of mothers, the arrest and incarceration of children's fathers and other relatives may also be relevant in CPS cases, and (2) that, in addition to parents' recent or current arrests, their histories of incarceration may also be relevant.

Section snippets

Methods

The current study is based on a review of the investigative case records of children who were removed from their parents care by the Texas Department of Family and Protective Services in a metropolitan county in Texas. Texas vies with California for having the largest prison system in the country. Not only are more people incarcerated in Texas than in most other states (which one might expect given the size of Texas), but it also has the highest per capita incarceration rate.

Results

A systematic review of the investigative case records of children removed from their parents' care in a large, metropolitan county in Texas suggests there are four different categories of ways in which the criminal justice system involvement of children's family members intersects with child welfares cases (Table 2). They are: (1) parental arrests that coincide with child maltreatment investigations (n = 21, 19.2% of all cases); (2) the consideration of parents' and other caregivers' criminal

Discussion

Because of criminal justice reforms that were passed in the 1980s and 1990s, more children than ever before experience the arrest and incarceration of parents. The criminal justice system is likely to be involved with some of the same families as the child welfare system by virtue of the fact that many risk factors associated with arrest and incarceration are also risk factors for child maltreatment. The expansion of the criminal justice system, however, raised concerns about possible

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