May 01, 2017

Holistic Defense for Incarcerated Parents

Erin Lecocq, JD and Cameron Buhl, JD

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Parents in the child welfare system fight an uphill battle of societal stigmas, cultural incompetence, and subjective parenting standards. If the parent is incarcerated, either unable to meet bail or in jail or prison for a long-term sentence, those battles become harder and nearly impossible to win. The good news is that working together, parent attorneys and criminal defense attorneys can help mitigate the effects of a conviction and get parents and children on a path toward reunifying instead of losing their rights. 

The Stigma of Parenting Behind Bars

Parents find themselves in the child welfare system in many ways. Abuse, neglect, and abandonment can lead to child protective services involvement. Additionally, some states, like Washington and California, have a “catch-all” provision allowing a dependency finding if there is no available parent or guardian capable of providing adequate care for the child and the child’s psychological or physical development is at risk of harm.1

This “catch-all” provision can be the basis of many dependency findings for parents who are incarcerated. There may be no specific findings of abuse or neglect, yet because the parent is in the criminal justice system and unable to care for the child, the parent and child often end up in the child welfare system. Because of strict permanency timelines for the child, many parents risk having their parental rights terminated due solely to the length of their incarceration. 

Often, social workers, guardians ad litem, and even judges believe that terminating parental rights of these incarcerated parents is a fitting consequence for the parent. Phrases like, “You should have thought of that before you broke the law,” or “It is impossible to parent from prison” muddy the waters that are supposed to separate sentences in the criminal justice system from collateral consequences arising from incarceration. 

Several states recognize the difficult road incarcerated parents face and provide hope for them through statutes that protect parents from termination of their rights when certain conditions are met. For example, a Washington state statute helps parents who maintain a “meaningful role” in the lives of their children avoid termination.2

A California statute gives parents recently released from incarceration more time to complete court-ordered reunification services if they are making progress toward establishing a safe home for the child and the court finds a substantial probability the child may return to the parent within the extended time period.

Even with statutory protections, these cases take significant advocacy to help parents navigate the long and obstacle-laden paths ahead of them. 

Best Practices

If a parent is undergoing concurrent child welfare and criminal cases, attorneys on both sides must work together at each stage of each case. The truth is the longer the sentence, the more likely the child welfare case will end in termination. It is critical that the parent attorney work closely with the criminal defense attorney to ensure the resolution of the criminal case does not unnecessarily harm the dependency case, and vice-versa. 

Opportunities for Advocacy: The Criminal Case 

Parent attorneys can be equally important advocating during the criminal case as they are during the dependency case. From arrest to sentencing, there are many opportunities for parent attorneys to advocate for better outcomes that can reduce time served and keep families together. 

Be aware of fifth amendment issues that arise in the dependency case. Fifth amendment issues often arise when parents are either being advised by the court or child protection agency to admit wrongdoing to resolve the dependency case, or when parents are ordered to engage in services such as psychological or mental health evaluations. In these cases, it is critical to consult the criminal defense attorney and involve him or her in the process to prevent any inadvertent loss of fifth amendment protections. 

It is rare that psychological evaluations turn upon the single incident resulting in criminal prosecution; rather, the provider is more interested in the general mental health of the parent. In these cases, both attorneys can advocate for the provider to avoid questions that will implicate the criminal case while still gathering useful information for the evaluation. Other issues can make the criminal/dependency juxtaposition more complex. Regardless of how these issues implicate each case, the attorneys should keep the fifth amendment protections in mind when determining the best case strategy.

Use declarations to discuss collateral consequences and the parent’s progress while incarcerated. Declarations are important tools to educate the court; many criminal court judges and criminal defense attorneys do not consider the collateral consequence of a disposition of a criminal case. Criminal defense attorneys can use declarations to advocate for low-end sentences or downward departures based on the effect long sentences would have on the dependency case and the likelihood of reunification. For example, a judge might impose a low-end sentence if the fate of the family rested on a difference of just one year, in an effort not to punish the children with their parent. 

Parent attorneys can also highlight for the criminal court what the parent is doing to be a better person and parent. Using these declarations, they can discuss how the parent is participating/progressing in services and volunteering for other services or programs in jail, and their motivation to return to parenting their child in the community. 

Contact the parent’s family and friends for statements to show support and community connection at bail and sentencing hearings. As parent attorneys, many of our first conversations with clients are about family members or friends who are potential placement options. Part of this information gathering may also explore sources of support—family, friends, or teachers/staff at their child’s school. This support network can form a strong defense for the defendant and help the judge see him or her as a person and a parent. 

Provide social science research to the criminal defense attorney. Social science research is invaluable for parent attorneys in motions practice to bolster arguments for increased visitation with an incarcerated parent, the importance of reunification, etc. This research is just as valuable to the criminal defense attorney. Educating the criminal court on issues such as alternative sentencing options that allow clients to parent their children in the community, how keeping families together reduces recidivism and children’s criminal justice system involvement could result in a four-year sentence instead of eight years or more. 

Opportunities for Advocacy: The Dependency Case 

Just as many criminal defense attorneys may not consider the role the parent attorney plays in their client’s life, many parent attorneys may not consider how the criminal defense attorney could help their case. In practice, criminal defense attorneys can play a critical role in mitigating the effects of the dependency case.

Argue to modify no-contact orders involving children when appropriate. In criminal cases where the child is a witness or victim of the incident resulting in criminal prosecution, courts will often impose a no-contact order (NCO) between the parent and child. Criminal NCOs harm the dependency case by impairing visitation and other forms of communication necessary to maintain, or in cases involving child trauma, repair the parent-child relationship. Criminal defense attorneys are in the best position to argue to modify the NCO by narrowly tailoring the language to address only necessary issues.

In one complicated case involving an NCO pertaining to the children, the criminal defense attorney was integral in getting the NCO modified nine times over three years. As a result of this advocacy, the mother was eventually allowed to have in-person supervised visits at the jail, as long as no details of the crime were discussed. All of these modifications became instrumental in showing the dependency court that the parent was maintaining a relationship with her children. 

Discuss all plea options with the parent attorney before accepting a plea offer. Often, a plea will significantly affect the parent’s ability to reunify with her children, even if the plea does not include prison time. Seeking mental health treatment, accepting assault or manslaughter of another family member, or stipulating to facts showing a potentially dangerous situation awaits the children if returned, should be carefully considered and framed in a way that limits potential damage to the parent’s dependency case. 

Participate in dependency hearings and share resources. When parents are incarcerated, particularly in county jails, it can be difficult for them to access services required by the dependency court to remedy parental deficiencies. A parent’s inability to participate in services like parenting classes, substance abuse treatment, or psychological evaluations can be the death knell in a dependency case. However, the criminal defense attorney can mitigate the court’s concerns about a parent’s progress by writing declarations that share what the parent is doing to participate in his/her own defense and resolve the criminal case. 

Criminal defense attorneys might also consider attending dependency hearings for support and to ensure the parent is not being asked to disclose information about the criminal case. Additionally, criminal defense attorneys can share expert reports used in the criminal case with the parent attorney. This practice goes both ways as reports can often be used to benefit both cases. Expert investigators for the criminal case can turn up helpful information for the parent’s dependency case, and it keeps the cost and time spent to a minimum.

When criminal defense and parent attorneys join forces, brainstorm together, and share resources, they can create a strong defense on both sides of the parent’s case. This ensures children and their parents maintain their relationship and improves their chances of staying together.

Erin Lecocq, JD, is executive financial director and co-founder of Infinitum Legal Counsel, P.S., Tacoma, WA. 

Cameron Buhl, JD, is executive managing director and co-founder of Infinitum Legal Counsel, P.S., Tacoma, WA. 

 

Endnotes

1. See e.g., RCW 13.34.030(6) (“A dependent child is one who...has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child’s psychological or physical development...”).

2. Wash. Rev. Code § 13.34.145(5)(a) (2015). 

3. Cal. Welf. & Inst. Code § 366.22(b) (2016).