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REPRESENTING INCARCERATED PARENTS

REPRESENTING INCARCERATED PARENTS. Kathleen Creamer Community Legal Services Philadelphia, PA. REPRESENTING INCARCERATED PARENTS. Key Legal Issues. Reasonable Efforts for Incarcerated Parents.

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REPRESENTING INCARCERATED PARENTS

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  1. REPRESENTING INCARCERATED PARENTS Kathleen Creamer Community Legal Services Philadelphia, PA

  2. REPRESENTING INCARCERATED PARENTS Key Legal Issues

  3. Reasonable Efforts for Incarcerated Parents What reunification efforts is the Department of Children and Families (DCF) required to provide to incarcerated parents?

  4. Reasonable Efforts for Incarcerated Parents The Adoption and Safe Families Act (ASFA) does not define reasonable efforts for incarcerated parents

  5. Reasonable Efforts for Incarcerated Parents Most state statutes are silent on what constitutes reasonable efforts for incarcerated parents. In Connecticut, “reasonable efforts” are required, but not defined, by C.G.S.A. § 17a-111b.

  6. Reasonable Efforts for Incarcerated Parents Exceptions to Reasonable Efforts Requirement: C.G.S.A. § 17a-111b. The court may find that reasonable efforts need not be made upon clear and convincing evidence that, among others, • the parent has inflicted or knowingly permitted another person to inflict sexual molestation or exploitation or severe physical abuse on the child or engaged in a pattern of abuse of the child • the parent has killed, through deliberate, nonaccidental act, another child of the parent or a sibling of the child, or has requested, commanded, importuned, attempted, conspired or solicited to commit or knowingly permitted another person to commit the killing of the child, another child of the parent or sibling of the child, or has committed or knowingly permitted another person to commit an assault, through deliberate, nonaccidental act, that resulted in serious bodily injury of the child, another child of the parent or a sibling of the child; • the parent was convicted by a court of competent jurisdiction of sexual assault, except a conviction of a violation of section 53a-71 or 53a-73a (statutory rape) resulting in the conception of the child

  7. Reasonable Efforts for Incarcerated Parents California: Defining Reasonable Efforts For Incarcerated Parents

  8. Reasonable Efforts for Incarcerated Parents California Cal.Welf. & Inst. Code § 361.5(e)(1) In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated or otherwise institutionalized parent's access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the child's case plan… Services may include, but shall not be limited to, all of the following:(A) Maintaining contact between the parent and child through collect telephone calls.(B) Transportation services, where appropriate.(C) Visitation services, where appropriate.(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.

  9. Reasonable Efforts for Incarcerated Parents California (continued) An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided. The social worker shall document in the child's case plan the particular barriers to an incarcerated or institutionalized parent's access to those court-mandated services and ability to maintain contact with his or her child.

  10. Reasonable Efforts for Incarcerated Parents But see: N.D. Cent. Code § 27-20-02 (3) “Aggravated circumstances” means circumstances in which a parent…Has been incarcerated under a sentence for which the latest release date is:(1) In the case of a child age nine or older, after the child's majority; or (2) In the case of a child, after the child is twice the child's current age, measured in days… AND Ala.Code 1975 § 12-15-312(c)(1)f An aggravated circumstance may also include any of the following…(f) When a parent is incarcerated and the child is deprived of a safe, stable, and permanent parent-child relationship.

  11. Visitation for Incarcerated Parents Does the parent have a right to visitation at the detention facility?

  12. Visitation for Incarcerated Parents Two approaches: • Best interest of child • Harm to child

  13. Visitation for Incarcerated Parents Best Interest of Child: Visitation will be permitted if it is in the child’s best interest

  14. Visitation for Incarcerated Parents Best Interest Approach N.Y. Soc. Serv. Law § 384-b(7)(f)(5) Agency is required to make “suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interests of the child.”

  15. Visitation for Incarcerated Parents Harm to Child Approach: Visitation will not be denied unless it can be shown to be harmful to the child

  16. Visitation for Incarcerated Parents Harm to Child Approach In re C.J., 729 A.2d 89, 95 (Pa. Super. Ct. 1999) “Where, as here, reunification still remains the goal of the family service plan, visitation will not be denied or reduced unless it poses a grave threat. …the ‘best interests’ standard, in this context, is less protective of parents' visitation rights than the ‘grave threat’ standard. “

  17. Visitation for Incarcerated Parents Connecticut “A respondent's imprisonment…does not, in and of itself, excuse DCF from providing her with visitation” In re Shafari B., 2007 WL 155169 *15 (Conn. Super. 2007)(unpublished)

  18. Visitation for Incarcerated Parents Connecticut DCY does not have a policy specifically addressing visitation for incarcerated parents but generally encourages visitation, especially when the goal is reunification See DCY Policy Manual 34-10-7.1, Visitation “The Department shall ensure that children under the Commissioner’s care and custody be provided with visitation with their parents and siblings.”

  19. Participation in Court Hearings Does the incarcerated parent have the right to participate in court hearings?

  20. Participation in Court Hearings Yes, but the right is not absolute. Most courts in resolving this issue have used the Mathews v. Eldridge test.

  21. Participation in Court Hearings Mathews v. Eldridge, 424 U.S. 319 (1976) In determining how much procedural due process is required, courts consider three factors: 1) The nature of the private interest at stake 2) The risk of erroneous deprivation of such interest resulting from the use of current procedures as compared to the value of additional safeguards 3) The nature of the government’s interest

  22. Participation in Court Hearings States applying Mathews have come to different conclusions: 1) Physical presence is required if balancing test supports it 2) Phone presence is sufficient 3) No presence is required so long as parent is represented by counsel

  23. Participation in Court Hearings: Connecticut Connecticut considers the Matthews factors on a case-by-case basis to determine adequacy of participation in hearings. Prong 1: Nature of the Private Interest: Courts consider parental rights (and the possible termination thereof) as constitutional interests of high magnitude, thereby satisfying the first prong. See In re Juvenile Appeal, 187 Conn. 431, 446 A.2d 808, 811 (1982). Prong 3: Nature of the Government’s Interest: Particularly when a child is young, the court has a strong parens patrie obligation to protect and secure adoption for the child. Time is of the essence. Id. Where the children were not immediately adoptable and were older (ages 13, 10 and 6), the government interest was not as strong. In Re Shaquanna M., 61 Conn.App. 592, 767 A.2d 155 (2001).

  24. Participation in Court Hearings: Connecticut Prong 2: The risk of erroneous deprivation of such interest resulting from the use of current procedures as compared to the value of additional safeguards The court will look at the specific of the case when analyzing second prong, and particularly considers whether the incarcerated parent was not present because of her own voluntary acts or as a result of state action.

  25. Participation in Court Hearings: Connecticut Lack of Physical Presence is Error: Where the court was aware that father was on his way to the courthouse after a writ of habeas corpus had been issued to ensure his presence at the hearing, the trial court should not have started the trial until his arrival. The appellate court reasoned that father was prevented from participating in trial because of state sanctioned action (i.e., not being transported to the court even though a writ of habeas corpus had been issued to this effect). In re Jonathan P., 23 Conn.App. 207, 579 A.2d 587 (1990).

  26. Participation in Court Hearings: Connecticut Representation by Counsel Alone Sufficient: Father voluntarily chose not to be present where he did not notify the parties when he was incarcerated nor request that the Department of Corrections transport him to the hearing. The second factor weighed against father because there was no affirmative act by the state resulting in the father’s absence and “there is no indication in the record that [father] availed himself…of any of the procedures that would have allowed him to be present for the termination of parental rights trial and to confront witnesses.” In re Tremaine C., 117 Conn.App. 521, 980 A.2d 317 (2009)

  27. Incarceration and Termination of Parental Rights Is the fact of parental incarceration sufficient to terminate parental rights?

  28. Incarceration and Termination of Parental Rights ASFA is silent on this question 3 major trends: • Incarceration is a ground for termination of parental rights (based on length of incarceration) • Incarceration is a factor that may be considered • Incarceration is an exception to the 15/22 month requirement (minority)

  29. Incarceration and Termination of Parental Rights Incarceration as a ground for termination of parental rights: Michigan Compiled Laws Annotated 712A.19b(3)(h) “The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.”

  30. Incarceration and Termination of Parental Rights Incarceration as a factor to be considered in termination of parental rights: Ala. Code 1975, § 12-15-319(a)(4) “In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following…Conviction of and imprisonment for a felony.”

  31. Incarceration and Termination of Parental Rights Incarceration as an exception to the 15/22 month filing requirement: Colo. Rev. Stat. Ann. § 19-3-604(2)(k)(IV) “The child has been in foster care under the responsibility of the county department for such period of time due to circumstances beyond the control of the parent such as incarceration of the parent for a reasonable period of time…”

  32. Incarceration and Termination of Parental Rights: Connecticut In Connecticut, the fact that a parent is incarcerated alone is not a statutory ground for termination of parental rights. But, incarceration is relevant to the court’s analysis of a number of the statutory TPR grounds.

  33. Incarceration and Termination of Parental Rights: Connecticut Connecticut TPR Statute C.G.S.A. § 17a-112 (j) (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and

  34. Incarceration and Termination of Parental Rights: Connecticut C.G.S.A. § 17a-112 (j) (continued) (3) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child; (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families; (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent; or (G) the parent was convicted as an adult or a delinquent by a court of competent jurisdiction of a sexual assault resulting in the conception of the child, except a conviction for a violation of section 53a-71 or 53a-73a, provided the court may terminate such parent's parental rights to such child at any time after such conviction.

  35. Incarceration and Termination of Parental Rights: Connecticut Incarcerated Parents and Abandonment: C.G.S.A. § 17a-112 (j)(3)(a) Incarceration alone is not sufficient to establish abandonment. See In re Juvenile Appeal, 187 Conn. 431, 446 A.2d 808, 811 (1982). But “The inevitable restraints imposed by incarceration do not in themselves excuse a failure to make use of available though limited resources for contact with the distant child.” Id. Also, the court may consider the parent’s commission of a crime which carries a risk of incarceration, or actual incarceration, as part of a pattern of unconcern for the child’s wellbeing. Id.

  36. Incarceration and Termination of Parental Rights: Connecticut Incarcerated Parents and Personal Rehabilitation: C.G.S.A. § 17a-112 (j)(3)(b) The fact that a parent is incarcerated, the parent’s behavior while incarcerated, the child’s reaction to the parent’s incarceration, and the length of incarceration have all been considered in determining whether the parent has achieved personal rehabilitation Examples: TPR affirmed where the incarcerated father had not participated in any substance abuse or parenting programs available to him while incarcerated, had a long criminal history, and did not report any plan to care for his children post-release. In re Hector L., 53 Conn.App. 359, 730 A.2d 106 (1999) TPR affirmed where father received a five year robbery sentence when children were 13 months old, the children had adverse reactions to visits, the father missed some visits and was late for others, and had a poor disciplinary record in prison. In re Latifa K., 67 Conn.App. 742, 789 A.2d 1024 (2002)

  37. Incarceration and Termination of Parental Rights: Connecticut Incarcerated Parents and Ongoing Parent-Child Relationship: C.G.S.A. § 17a-112 (j)(3)(d) The effects of parental incarceration may be considered in determining this ground. The inquiry for the court is “whether the child has no present memories or [positive] feelings for the natural parent” In re Tabitha T., 51 Conn.App. 595, 722 A.2d 1232 (1999) See: In re S.D., 115 Conn.App. 111,972 A.2d 258. (2009) (finding no relationship where father was incarcerated for a number of years, did not provide financial support, sent cards, gifts or letters, or show interest in the child's health or welfare); In re Alexander C., 262 Conn. 308,813 A.2d 87 (2003) (affirming holding that no ongoing parent-child relationship existed where father was incarcerated most of child’s life and never contacted DCF regarding child’s well-being); In re Savanna M., 55 Conn.App. 807,740 A.2d 484 (1999) (no relationship where father was incarcerated or impaired during child’s first five years of life and child had no positive memories of her father).

  38. REPRESENTING INCARCERATED PARENTS Practice Tips

  39. REPRESENTING INCARCERATED PARENTS: Practice Tips Communicate Regularly with Your Client • What is your client’s desired outcome? Counsel your client on the role she can play in the child welfare case • Reunification resource • Identify kinship resources • Identify family and community supports • Share knowledge of child’s special medical, therapeutic or educational needs • Share knowledge of family history

  40. REPRESENTING INCARCERATED PARENTS: Practice Tips Communicate Regularly with Your Client • Ensure that your client understands what the court and DCFexpect of her. • Ensure your client understands court proceedings. • Know your client’s charges and criminal sentence.

  41. REPRESENTING INCARCERATED PARENTS: Practice Tips Advocate for Reasonable Efforts • Ask DCF to include your client in developing the Treatment Plan • Ensure Treatment Plan goals are feasible • Ask DCF to support the parent’s completion of their goals

  42. REPRESENTING INCARCERATED PARENTS: Practice Tips Advocate for Reasonable Efforts • If parent/child contact is part of the Treatment Plan, ask DCF to facilitate this, by providing transportation for visits, paying for collect calls, and providing writing materials/stamps for correspondence

  43. REPRESENTING INCARCERATED PARENTS: Practice Tips Encourage regular parent/child contact • Advocate for visitation. • Know what the prison visitation facilities are like. • If visitation is denied, advocate for regular parent/child contact by phone and/or letter.

  44. REPRESENTING INCARCERATED PARENTS: Practice Tips Advocate for your client’s inclusion in important court hearings and DCF or Treatment Plan meetings. • Request that your client be brought to court for every hearing. • When in-person presence is not permitted, find out what alternative means of participation are available. Phone? Videoconference? Deposition?

  45. REPRESENTING INCARCERATED PARENTS Special Issues in Representing Incarcerated Parents: Criminally Charged Parents

  46. Special Issues in Representing Incarcerated Parents: Criminally Charged Parents The 5th Amendment UNDERSTANDING THE USE OF THE 5TH AMENDMENT IN CHILD WELFARE CASES

  47. What is the 5th Amendment? “No person shall be … compelled in any criminal case to be a witness against himself…”

  48. What is the 5th Amendment? The 5th Amendment is available to the states through the 14th Amendment Also can be found in state constitutions such as Article I, Section 6 of the Alabama Constitution

  49. The 5th Amendment in Child Welfare Cases: When Does it Apply? The 5th Amendment applies to statements made in both criminal and civil proceedings: “The privilege is not ordinarily dependent upon the nature on the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject criminal responsibility on him who gives it.” McCarthy v. Ardnstein, 266 U.S. 34 (1924) See also: “The Fifth Amendment privilege against self-incrimination must be liberally construed in favor of the accused, and the privilege is applicable in state as well as in federal proceedings, and in civil as well as in criminal proceedings.” (internal citations omitted) Ex parte Pegram, 646 So.2d 644, 645 (Ala. 1994).

  50. The 5th Amendment in Child Welfare Cases: When Does it Apply? • Applies when the witness is being asked to answer a question that “incriminates”, “tends to incriminate” or is a “link in the chain of evidence needed to prosecute.” • Link in the Chain of Evidence: “The privilege afforded not only extends to answers that would themselves support a conviction [under a federal criminal statute], but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute [a claimant for a federal crime].” Hoffman v. United States, 341 U.S. 479, 486 (1951)

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