REPRESENTING INCARCERATED PARENTS

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REPRESENTING INCARCERATED PARENTS

• Kathleen Creamer
• Community Legal Services
• Philadelphia, PA

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REPRESENTING INCARCERATED PARENTS

• Key Legal Issues

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Reasonable Efforts for Incarcerated Parents

• What reunification efforts is the Department of
  Children and Families (DCF) required to provide
  to incarcerated parents?

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Reasonable Efforts for Incarcerated Parents

• The Adoption and Safe Families Act (ASFA) does
  not define reasonable efforts for incarcerated
  parents

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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.

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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

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Reasonable Efforts for Incarcerated Parents

• California
• Defining Reasonable Efforts For Incarcerated
  Parents

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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.

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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.

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Reasonable Efforts for Incarcerated Parents

• But see
• N.D. Cent. Code 27-20-02 (3)
• Aggravated circumstances means circumstances in
  which a parentHas 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.

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Visitation for Incarcerated Parents

• Does the parent have a right to visitation at the
  detention facility?

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Visitation for Incarcerated Parents

• Two approaches
• Best interest of child
• Harm to child

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Visitation for Incarcerated Parents

• Best Interest of Child Visitation will be
  permitted if it is in the childs best interest

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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.

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Visitation for Incarcerated Parents

• Harm to Child Approach Visitation will not be
  denied unless it can be shown to be harmful to
  the child

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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.

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Visitation for Incarcerated Parents

• Connecticut
• A respondent's imprisonmentdoes not, in and of
  itself, excuse DCF from providing her with
  visitation
• In re Shafari B., 2007 WL 155169 15 (Conn.
  Super. 2007)(unpublished)

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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 Commissioners care and custody be provided
  with visitation with their parents and siblings.

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Participation in Court Hearings

• Does the incarcerated parent have the right to
  participate in court hearings?

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Participation in Court Hearings

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

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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 governments interest

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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

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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 Governments 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).

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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.

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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).

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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 fathers absence and there is
  no indication in the record that father availed
  himselfof 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)

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Incarceration and Termination of Parental Rights

• Is the fact of parental incarceration sufficient
  to terminate parental rights?

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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)

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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.

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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 followingConviction of
  and imprisonment for a felony.

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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

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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 courts
  analysis of a number of the statutory TPR
  grounds.

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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

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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.

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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 parents
  commission of a crime which carries a risk of
  incarceration, or actual incarceration, as part
  of a pattern of unconcern for the childs
  wellbeing. Id.

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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
  parents behavior while incarcerated, the childs
  reaction to the parents 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)

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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 childs life and
  never contacted DCF regarding childs
  well-being) In re Savanna M., 55 Conn.App. 807,
  740 A.2d 484 (1999) (no relationship where father
  was incarcerated or impaired during childs first
  five years of life and child had no positive
  memories of her father).

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REPRESENTING INCARCERATED PARENTS

• Practice Tips

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REPRESENTING INCARCERATED PARENTS Practice Tips

• Communicate Regularly with Your Client
• What is your clients 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 childs special medical,
  therapeutic or educational needs
• Share knowledge of family history

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REPRESENTING INCARCERATED PARENTS Practice Tips

• Communicate Regularly with Your Client
• Ensure that your client understands what the
  court and DCF expect of her.
• Ensure your client understands court proceedings.
• Know your clients charges and criminal sentence.

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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 parents completion of
  their goals

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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

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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.

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REPRESENTING INCARCERATED PARENTS Practice Tips

• Advocate for your clients 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?

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REPRESENTING INCARCERATED PARENTS

• Special Issues in Representing Incarcerated
  Parents Criminally Charged Parents

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Special Issues in Representing Incarcerated
Parents Criminally Charged Parents

• The 5th Amendment

UNDERSTANDING THE USE OF THE 5TH AMENDMENT IN
CHILD WELFARE CASES
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What is the 5th Amendment?

• No person shall be compelled in any criminal
  case to be a witness against himself

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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

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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).

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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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The 5th Amendment in Child Welfare Cases

• Practice Tips
• When to Assert the 5th

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The 5th Amendment in Child Welfare Cases When to
Assert the 5th

• Blanket assertions of the privilege are not
  permitted. See United States v. White, 589 F.2d
  1283 (5th Cir. 1979)
• The claim of your clients 5th Amendment right
  must be asserted to specific questions not the
  testimony as a whole.
• Your client cannot refuse to take the stand
  and/or answer questions which do not violate her
  5th Amendment privilege.

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The 5th Amendment in Child Welfare Cases When to
Assert the 5th

• There does not need to be a pending criminal
  matter, just the possibility of one.
• The 5th amendment applies to direct as well as
  cross-exam.
• Even if your client has been previously tried,
  she may still assert the 5th as she may open
  herself up to uncharged conduct such as
  prosecution for conspiracy.
• Failure to address the 5th amendment issue can
  seriously affect the outcome of both the custody
  and the criminal case.

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The 5th Amendment in Child Welfare Cases When to
Assert the 5th

• When in doubtAssert the 5th!!!
• You should (almost) never permit your client to
  testify regarding facts that could implicate her
  5th Amendment interests.
• Be careful to address the 5th Amendment issue
  because failure to do so can cause you to face an
  ineffective assistance of counsel claim.
• If your client chooses to testify, be sure she is
  fully aware of the right she is waiving and the
  possible consequences.
• If your client decides to testify, ask the court
  to question your client on the record to ensure
  your clients waiver of her 5th Amendment rights
  is knowing and voluntary.

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The 5th Amendment in Child Welfare Cases When to
Assert the 5th

• Be Aware of the Consequences of Asserting the
  5th
• A negative inference may be drawn from your
  clients failure to testify. Baxter v.
  Palmigiano, 425 U.S. 308 (1976)
• In a child welfare case, a reasonable inference
  adverse to a party is allowed to be drawn from
  the refusal of that party to testify on the
  grounds of self-incrimination. In re Antj.P.,812
  A.2d 965 (D.C. 2002)
• The adverse inference drawn from the failure of a
  party to testify is not sufficient, by itself, to
  meet an opponents burden. Baxter

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The 5th Amendment in Child Welfare Cases

• Practice Tips
• How to Assert the 5th

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The 5th Amendment in Child Welfare Cases How to
Assert the 5th

• Communicate your clients intention to assert the
  5th to the Court.
• Request permission to communicate with your
  client while she is on the stand.

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The 5th Amendment in Child Welfare Cases How to
Assert the 5th

• Request permission to stand next to your client
  while on the stand or speak to your client about
  how to communicate with her while she is on the
  stand.
• For example standing each time an objectionable
  question is asked.
• Be careful not to reveal to the judge the content
  of your clients anticipated testimony. It is not
  necessary that a witness explain how an answer
  could incriminate him. Malloy v. Hogan, 378 U.S.
  1 (1964)

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The 5th Amendment in Child Welfare Cases How to
Assert the 5th

• Practice Tips
• The Role of the Criminal Defense Attorney

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The 5th Amendment in Child Welfare Cases How to
Assert the 5thThe Role of the Criminal Defense
Attorney

• Can the criminal defense attorney participate in
  the child welfare proceedings for the purpose of
  protecting your clients 5th Amendment Rights?

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The 5th Amendment in Child Welfare Cases How to
Assert the 5thThe Role of the Criminal Defense
Attorney

• In Re Ti.B, 762 A.2d 20 (D.C. 2000)
• Issues
• whether the trial court abused its discretion in
  prohibiting father from conferring with his
  criminal defense attorney during trial about his
  5th amendment privilege
• barring defense counsel from the courtroom while
  he asserted that privilege and
• prohibiting Fathers counsel on the child
  welfare case from discussing the testimony with
  the criminal defense counsel.

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The 5th Amendment in Child Welfare Cases How to
Assert the 5thThe Role of the Criminal Defense
Attorney

• In Re Ti.B, 762 A.2d 20 (D.C. 2000)
• Held The parent has a right to be counseled by
  his criminal attorney regarding statements made
  in his child welfare hearing.
• The Court rulings which were not justified by
  any substantial threat to the integrity or
  confidentiality of the proceeding, arbitrarily
  infringed upon fathers common law and First
  Amendment right to consult freely with his lawyer
  and deprived father of informed legal advice
  about his Fifth Amendment right

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The 5th Amendment in Child Welfare Cases How to
Assert the 5thThe Role of the Criminal Defense
Attorney

• Practice Tip
• When possible, ask the criminal attorney to
  attend any child welfare proceeding at which your
  client may be asked to testify.

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Special Issues in Representing Incarcerated
Parents Criminally Charged Parents

• The Criminal Defense and the Child Welfare
  Defense Coordinating with the Criminal Attorney

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsCoordinating
With the Criminal Attorney

• Speak to the criminal attorney prior to any
  hearing.
• Meet to discuss possible strategies and ways to
  limit potential statements.
• Make sure you are aware of each and every charge
  and any potential charges.
• Request that the criminal attorney be allowed to
  be present in the courtroom to advise yourself
  and/or your client.
• Understand the criminal attorneys theory of
  defense. Consider whether the two theories of
  defense can be harmonized.

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsCoordinating
With the Criminal Attorney

• Theory of the Defense
• Understand the theory of defense in the criminal
  case.
• Also understand the goal of the defense in the
  criminal and child welfare case. These goals may
  differ Liberty interest is paramount in a
  criminal case while parental rights are of
  concern in the child welfare case.

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsCoordinating
With the Criminal Attorney

• Theory of the Defense
• Is the criminal attorney alleging incompetency or
  insanity?
• What impact will evidence establishing these
  things have on the child welfare case?

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsCoordinating
With the Criminal Attorney

• Theory of the Defense
• Evaluations completed in the criminal context
  geared toward establishing your clients
  incompetency or insanity may be harmful to your
  child welfare defense
• In criminal case, the goal may be long-term
  incompetency or insanity commitment in child
  welfare case, the clients case is best if she
  can rehabilitated with treatment

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsCoordinating
With the Criminal Attorney

• Case Strategy
• Delay in a criminal matter is often helpful
• State (DA) loses witnesses
• Evidence gets lost
• Witnesses lose memory
• But, delay in a child welfare case can be very
  harmful
• Attachment to caretaker
• Relapse of a substance abuser
• ASFA clock running out
  

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The 5th Amendment in Child Welfare Cases

• Watch for incriminating statements made out of
  court!

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The 5th Amendment in Child Welfare
CasesProtecting Your Client from Incriminating
Out-of-Court Statements

• Statements to DCF or its social workers.
• Statements to service providers such as battering
  groups, anger management and parenting classes
  may be introduced against your client.
• Statements recorded in any official documents
  of DCF which may be turned over to the District
  Attorney.
• Statements to court-appointed investigators who
  are required to file reports with the court.
• Statements to Guardians ad Litem appointed by the
  court.

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The 5th Amendment in Child Welfare
CasesProtecting Your Client from Incriminating
Out-of-Court Statements

• Evaluations requested by DCF or ordered by the
  court Beware of MH, D/A, Parenting Capacity
  Evals
• Limit scope of the evaluations ordered by the
  court
• Limit evaluators questions in advance be sure
  the questions do not implicate your clients
  criminal interests
• Be aware of what instruments will be used and how
  they could implicate your clients 5th amendment
  interests
• Attend your clients evaluation to protect your
  clients interests

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The 5th Amendment in Child Welfare
CasesProtecting Your Client from Incriminating
Out-of-Court Statements

• Meeting with DCF social workers
• Limit the number of DCF employees meeting with
  your client.
• Be present at meetings with DCF.

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• Defending the client from adjudication,
  aggravated circumstances, and TPR when she cant
  tell her side of the story.

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• How to put on a defense at adjudication phase or
  when a finding of aggravated circumstances is
  requested?
• How to deal with ASFA requirement that
  termination petitions be filed after 15 months
  when criminal charges have not yet been tried?

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• Courts are generally unwilling to stay the child
  welfare proceedings pending the resolution of the
  criminal case
• The assertion of the privilege by a party in a
  civil case does not require the court to issue a
  blanket injunction staying the future course of
  the litigation. Nor is there a constitutional
  requirement that the civil proceeding must yield
  to the criminal case. United States Trust of
  N.Y. v. Herriot, 10 Mass.AppCt. 313, 316 (1980)

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• However, courts may be willing to delay the
  proceedings for a short time
• We can conceive of situations where a brief
  delay might be perfectly reasonable. For example,
  where a parent charged with a crime advises the
  trial judge that he or she has filed a demand for
  speedy trial in his or her criminal case and
  would therefore have to be tried on those charges
  within sixty days-a first request for a brief
  continuance to accommodate that schedule might be
  warranted.
• C.J. v. Department of Children and
  Families, 756 So.2d 1108, 1110, n.1 (Fla. Dist.
  Ct. App. 2000)

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• If court wont grant stay of proceedings
• Request that court hold decision in abeyance with
  the understanding that the evidence may be
  reopened once criminal charges are resolved.

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• If court wont grant stay of proceedings
• If request to reopen in the future is denied
• Vigorously defend your client at trial! Put on
  witnesses who can support your theory of the
  defense. Use cross to weaken the allegations and
  evidence presented against your client. Prep your
  client for possible testimony (testimony that
  does not implicate clients 5th Amendment
  interests).

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Special Issues in Representing Incarcerated
Parents Criminally Charged ParentsDealing with
Dependency Trial, Aggravated Circumstances, and
ASFA

• If court wont grant stay of TPR
• Look to TPR filing exceptions, C.G.S.A.
  17a-111a (b)(1)-(3)
• Child is residing with relative
• TPR is not in childs best interest
• Agency failed to provide needed reunification
  services