UPHOLD THE RIGHTS OF INCARCERATED PARENTS AND THEIR CHILDREN IN FOSTER CARE BY ENSURING CONSISTENT COMMUNICATION AND VISITATION; PROVIDING EDUCATION AND RESOURCES TO PARENTS ON THEIR RIGHTS; AND ADDRESSING ISSUES FACED BY INCARCERATED PARENTS WHO MISS KEY DEADLINES WHEN THEY ARE TRANSFERRED TO NEW FACILITIES
CHILDREN & PARENTS NEED CONTINUED CONTACT AFTER PARENTAL INCARCERATION
Los Angeles County must uphold the rights of incarcerated parents and their children in foster care by ensuring consistent communication and visitation; providing education and resources to parents on their rights; and addressing issues faced by incarcerated parents who miss key deadlines when they are transferred to new facilities.
CHILDREN & PARENTS ARE HARMED WHEN THEY ARE SEPARATED BY PARENTAL INCARCERATION
The criminal justice system effectively ensures family separation when a parent is arrested; throughout their incarceration, and after release. Police officers who arrest a parent are not required to allow the parent to arrange for a caregiver to pick up a child.(1) Rather, the police have discretion either to allow the parent to seek a caregiver’s help or to involve Child Protective Services (“CPS”).(2) If the child is detained by CPS on an emergency basis, the incarcerated parent may be allowed a mere 48 hours to find a caregiver that is deemed accepted by CPS. If a caregiver is found, a parent may also be expected to enter a power-of-attorney, Caregivers Authorization Affidavit, or other written agreement in this limited timeframe.(3) If the parent is unable to do so, CPS will file court papers to make the child a dependent of the court.(4) In either situation, the time allotted is not enough for parents to arrange long-term care, especially given the communication limits imposed by the jail facilities.
In studies conducted by the Marshall Project it was discovered, mothers and fathers who have a child placed in foster care because they are incarcerated but who have not been accused of child abuse, neglect, endangerment, or even drug or alcohol use are more likely to have their parental rights terminated than those who physically or sexually assault their kids.
The incarceration of a parent is not sufficient grounds for denying Family Reunification (FR) Services. The Reunification time limitations are as follows:
For children aged three (3) or older at the time of initial removal, services are to be provided for 12 months, unless the child is returned home.
For children under the age of three (3), services are to be provided for 6 months, unless the child is returned home.(5)
When a parent is incarcerated in a state prison, the California Rehabilitation Center, a county jail, or a Division of Juvenile facility, the court must issue a removal order 15 days before the hearing for a parent to be released from the facility to attend court hearings for the following two purposes:
The adjudication of their child as a dependent of the court; and
A WIC 366.26 hearing to terminate their parental rights.(6)
For hearings where the incarcerated parent does not have a statutory right to appear, social workers are required to send notice to the parents of all appearance hearings, as well as copies of the court reports. If a parent wishes to attend a hearing other than the adjudicatory hearing or the WIC 366.26 hearing to terminate parental rights, the social worker is to notify the court of this preference and should direct the parent to contact their attorney. If the parent does not have an attorney, the social worker may submit a request for a removal order so that an attorney may be appointed.
Even though an incarcerated parent legally retains parental rights to a child who stays with a relative caregiver or enters the foster care system, the DCFS, prisons/jails and the court system often limit the meaningful exercise of this right. For example, a parent who seeks reunification upon release from incarceration needs to prove, in part, they have a strong bond with their child.
Prisons and jails create and enforce their own visitation policies, but the problem stems primarily from the fact that incarcerated parents do not have a right to visitation. These facilities view visitation as a privilege that can be revoked and withheld to punish the incarcerated. Additionally, most prisons like CDCR require visitors to complete an exhaustive application. CDCR requires visitors to disclose every encounter with a law enforcement officer—an impossible task, especially, for example, if the visitor had encounters with officers that were not documented or did not result in a citation. Prisons may also subject visitors to automobile searches and deny visitors based on the contents of their automobile. For children, prisons may require guardians to bring proof of relation, as evidenced through birth certificates and other governmental documentation. Certainly, in our digital age this vetting process could be more efficient.
For children in foster care, social workers by their own choice may assist or frustrate the visitation and reunification processes. The best way to support the child-parent relationship after the parent has been incarcerated is to create opportunities for contact. It is the responsibility of the child welfare system to provide services to support the reunification of families. Those services must include parental visitation. Child social workers are required to provide reasonable services to an incarcerated parent. At a minimum, social workers must:
Inform the incarcerated parent of the service plan objectives and activities;
Contact the facility and determine what programs are available and how the parent can enroll;
Request a change in the parent/guardian’s prison housing if services are only available in a different portion of the facility;
Inform the parent/guardian of the programs that are available and how to enroll;
Maintain monthly contact with the parent/guardian and monitor their progress;
Ensure visitation and contact is maintained as ordered;
Upon request, provide the parent/guardian with literature on subjects related to the reunification plan, such as parenting or drug abuse
Counsel the parent/guardian on their progress;
Advise the parent/guardian to contact the child social worker and enroll in DCFS-approved programs upon release from incarceration.(7)
There is an impression among some involved in the child welfare system that incarcerated parents do not deserve to have a family. Courts often schedule hearings to suit their calendars without ensuring DCFS notices the parent of the hearing, nor do they ensure the parent’s appearance. In dependency court, parents are brought in for their child’s hearing only to be sent back before the case is called, because transportation leaves at noon.
The situation worsens for parents in probate court. Unlike in dependency court, the probate court does not appoint counsel for parents in probate court and may waive notice to parents upon a showing of good cause. This means parents may be completely unaware that an action has been filed to suspend their rights and they may miss a court date that results in them forfeiting their right to maintain custody of their child.
Removing children from their families is a destructive act for parents and children -- the most devastating possible collateral consequence of a criminal conviction. Prison time alone should not be grounds for severing the bond between parent and child, which can lead to profound negative effects on children’s mental and physical health.(8)
The dichotomy between what is best for parents and what is best for kids is false. Along with siblings and other relatives, the child welfare system must help incarcerated parents stay in their children’s lives. Even without reunification goals, it is important to recognize the existence and significance of the child-parent relationship. It is important to recognize the positive impact planned contact with an incarcerated parent can have on the emotional well-being of the child as they are developing strengths to handle a myriad of life challenges.
Dorothy Roberts, sociologist, law professor, social justice advocate, and author of Shattered Bonds and Torn Apart says the underlying problems in the child-welfare system are caused by bias against poor parents, especially incarcerated mothers of color. The right thing to do as a society, she says, is to better support families with affordable housing, food assistance, drug treatment and childcare, especially services in prisons. In a recent twitter post, Dr. Roberts said, “Instead of actually responding to the struggles of poor families … we’ve decided that it’s simpler to take their children away...”(9)
PROPOSAL FOR LOS ANGELES COUNTY
Visitation as a right
Los Angeles County should create a presumptive right to phone calls and visitation or family bonding time for children with incarcerated parents that all county agencies must follow. This right will help parents in their reunification efforts and help mitigate the effects of family separation on the whole family. Parents will be more involved in their dependency court cases and for actively planning for their children’s daily care while they are not available to provide that care themselves and may be more likely to reunify with their children upon release.
Transportation for visitation
California allocated millions of dollars to CDCR to help families receive transportation for visitation, but CDCR has not effectuated a transportation program.(10) Community-based organizations can help advocate for CDCR to partner with local “get on the bus” and “family express” programs to transport family members to the prison for visitation. Los Angeles County should ensure transportation for children in Los Angeles to be able to visit their parents in jail or prison.
Mandatory phone calls for arrestees
New York passed a law requiring police officers to allow arrested parents to arrange for child care.(11) Los Angeles County should create a countywide requirement to do the same, and should support any statewide efforts to enact legislation creating a law similar to New York’s. Los Angeles County should also provide the necessary support to parents to obtain a power-of-attorney, Caregiver’s Authorization Affidavit, or other legal document to help arrestees place their children in the care of safe caregivers until they can return to their care.
Advocate for family reunification clinics and visitation programs in jails and prisons
Los Angeles County should fund community-based reentry organizations to provide family reunification clinics and visitation programs within jails and prisons. The reunification clinics could (1) help parents understand the processes in family, probate, and dependency court, (2) help ensure parents are connected to social services to support eventual reunification, and (2) help incarcerated parents enter into formal agreements with their child’s caregivers, such as caregiver affidavits that may be necessary to avoid DCFS oversight. The visitation programs would involve the organization’s social workers / visitation monitors troubleshooting visitation issues with DCFS social workers, foster parents / guardians, and children and serving as neutral third-party monitors during the regularly scheduled visitation program. The organization would ensure social workers’ denial of reunification services is not arbitrary or discriminatory, and their social worker / visitation monitors could better document the quality of the visits between parents and their children by preparing declarations to provide to DCFS social workers and to use in support of reunification after incarceration.
Support for Continued Chest/Breastfeeding
As with regular visitation, maintaining an established chest/breastfeeding relationship between mothers and their children helps to mitigate the negative impact of forced separation due to incarceration and aids in the reunification process. California Penal Code § 4002.5 requires county jails to develop and implement an infant and toddler breast milk feeding policy for people who are lactating and detained in or sentenced to county jail. DCFS must assist with the regular transfer of human milk to children whose parents are expressing and storing milk for them while incarcerated, as well as education for caregivers, both kinship and nonkinship, on the benefits of human milk feeding and proper storage and handling. Visitation policies also need to include support for incarcerated individuals to feed their child/ren directly at the chest/breast when desired.
Right to Counsel
The court should appoint parents in probate court, and particularly parents who have had contact with DCFS, with counsel to ensure parents are not forced to represent themselves or assume the monetary responsibility for counsel.
While legal counsel is appointed for every parent in Los Angeles County who has a dependency case, to ensure these attorneys can aggressively advocate for their clients and report case updates to bench officers, appointed counsel must have caseloads, far fewer than the 3-digit case counts they currently manage. Additionally, they must be provided with comprehensive resources necessary to address the families’ many psycho-social-educational-vocational needs.
If Los Angeles County is committed to the mandate of family reunification, court appointed counsel and DCFS social workers must be allowed to work collaboratively for the good of the family; a relationship developed and encouraged in almost every jurisdiction nationwide.
There must be flexibility added to the reunification time limits, incarcerated parents must be informed about and present for their child welfare court hearings, especially during the critical, albeit short, family reunification period. Case plan services must be funded and accessible. All-important visitation opportunities for incarcerated parents with their children must be implemented.(12)
1. Legal Services for Prisoners with Children, Incarcerated Parents Manual: Legal Rights and Responsibilities 1, https://www.courts.ca.gov/documents/BTB_23_4K_4.pdf (last visited Apr. 5, 2022).
3. Id. at 2.
5. Cal. Welf. & Inst. Code § 361.5(a).
6. Cal. Pen. Code §§§ 2625(b), (c), and (d).
7. Department of Children and Family Services, Child Welfare Policy Manual, Selecting and Arranging Services for Incarcerated, Institutionalized, Detained and Deported Parents, 0080-506.16, https://policy.dcfs.lacounty.gov/content/Incarcerated_Parents.htm#ProvidingServices2IncarceratedParents, (last updated 08/31/2016).
9. Roberts, “Prison, Foster Care”; Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Penguin Random House, 2002); Roberts, “Shattered Bonds”; Dorothy Roberts, “The Social and Moral Costs of Mass Incarceration in African American Communities,” Stanford Law Review 56, 5 (2004): 1271; Dorothy Roberts, “The Racial Geography of State Child Protection,” in Jane L. Collins et al., eds., New Landscapes of Inequality: Neoliberalism and the Erosion of Democracy in America (2008), http://cap.law.harvard.edu/wp-content/uploads/2015/07/robertsrd.pdf
11. S.B. 4053, 2021-2022 Gen. Assemb., Reg. Sess. (N.Y. 2022).