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More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in many cases, requires states to institute termination proceedings against a parent whose child has been in state care for twelve out of the last fifteen months. Legal doctrine has been slow to respond to this pressing problem. This Article suggests reconceiving the state's role in intervening in these families. It suggests that the ubiquitous “best interests of the child” standard fails to adequately protect incarcerated parents' liberty interests in maintaining ties with their children and that, in these cases, the standard has metamorphosed into a “best parent” standard. To address this problem, this Article proposes a number of reforms including using a higher standard of proof than is currently required in termination proceedings and instituting policies to preserve families during periods of parental incarceration.

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26 Berkeley J. Gender, L. & Just. 78