REPRESENTING
INCARCERATED PARENTS
Kathleen Creamer
Community Legal Services
Philadelphia, PA
REPRESENTING
INCARCERATED PARENTS
Key Legal Issues
Reasonable Efforts for Incarcerated
Parents
What reunification efforts is the
Department of Children and Families
(DCF) required to provide to
incarcerated parents?
Reasonable Efforts for Incarcerated
Parents
The Adoption and Safe Families Act
(ASFA) does not define reasonable efforts
for incarcerated parents
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.
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
Reasonable Efforts for Incarcerated
Parents
California:
Defining Reasonable Efforts For
Incarcerated Parents
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.
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 courtmandated services and ability to maintain
contact with his or her child.
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.
Visitation for Incarcerated Parents
Does the parent have a right to visitation at
the detention facility?
Visitation for Incarcerated Parents
Two approaches:
1) Best interest of child
2) Harm to child
Visitation for Incarcerated Parents
Best Interest of Child: Visitation will be
permitted if it is in the child’s best
interest
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.”
Visitation for Incarcerated Parents
Harm to Child Approach: Visitation will
not be denied unless it can be shown to
be harmful to the child
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. “
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)
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.”
Participation in Court Hearings
Does the incarcerated parent have the right
to participate in court hearings?
Participation in Court Hearings
Yes, but the right is not absolute. Most
courts in resolving this issue have used
the Mathews v. Eldridge test.
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
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
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).
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.
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).
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)
Incarceration and Termination of
Parental Rights
Is the fact of parental incarceration
sufficient to terminate parental rights?
Incarceration and Termination of
Parental Rights
ASFA is silent on this question
3 major trends:
1)
Incarceration is a ground for termination of
parental rights (based on length of
incarceration)
2)
Incarceration is a factor that may be considered
3)
Incarceration is an exception to the 15/22 month
requirement (minority)
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.”
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.”
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…”
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.
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
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.
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.
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)
Incarceration and Termination of
Parental Rights: Connecticut
Incarcerated Parents and Ongoing Parent-Child Relationship: C.G.S.A. § 17a112 (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).
REPRESENTING INCARCERATED
PARENTS
Practice Tips
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


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
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
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 client’s charges and criminal
sentence.
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
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
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.
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?
REPRESENTING INCARCERATED
PARENTS
Special Issues in Representing Incarcerated
Parents: Criminally Charged Parents
Special Issues in Representing
Incarcerated Parents: Criminally
Charged Parents
The 5th Amendment
UNDERSTANDING THE USE OF THE 5TH
AMENDMENT IN CHILD WELFARE CASES
What is the 5th Amendment?
“No person shall
be … compelled
in any criminal
case to be a
witness against
himself…”
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
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 selfincrimination 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).
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)
The 5th Amendment in Child Welfare
Cases
Practice Tips:
When to Assert the 5th
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 client’s 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.
The 5th Amendment in Child Welfare
Cases: When to Assert the 5th
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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.
The 5th Amendment in Child Welfare
Cases: When to Assert the 5th
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When in doubt………Assert 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 client’s waiver of
her 5th Amendment rights is knowing and voluntary.
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 client’s
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 opponent’s
burden. Baxter
The 5th Amendment in Child Welfare
Cases
Practice Tips:
How to Assert the 5th
The 5th Amendment in Child Welfare
Cases: How to Assert the 5th

Communicate your
client’s intention to
assert the 5th to the
Court.

Request permission
to communicate with
your client while she
is on the stand.
The 5th Amendment in Child Welfare
Cases: How to Assert the 5th
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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 client’s anticipated testimony. It is not
necessary that a witness explain how an answer
could incriminate him. Malloy v. Hogan, 378 U.S. 1
(1964)
The 5th Amendment in Child Welfare
Cases: How to Assert the 5th
Practice Tips:
The Role of the Criminal Defense Attorney
The 5th Amendment in Child Welfare Cases:
How to Assert the 5th
The Role of the Criminal Defense Attorney
Can the criminal defense attorney
participate in the child welfare
proceedings for the purpose of protecting
your client’s 5th Amendment Rights?
The 5th Amendment in Child Welfare Cases:
How to Assert the 5th
The 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 Father’s counsel on the child welfare case from
discussing the testimony with the criminal defense counsel.
The 5th Amendment in Child Welfare Cases:
How to Assert the 5th
The 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 father’s common law and First
Amendment right to consult freely with his
lawyer and deprived father of informed legal
advice about his Fifth Amendment right”
The 5th Amendment in Child Welfare Cases:
How to Assert the 5th
The 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.
Special Issues in Representing
Incarcerated Parents: Criminally
Charged Parents
The Criminal Defense and the Child
Welfare Defense: Coordinating with
the Criminal Attorney
Special Issues in Representing Incarcerated Parents:
Criminally Charged Parents:
Coordinating 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 attorney’s theory of defense.
Consider whether the two theories of defense can be
harmonized.
Special Issues in Representing Incarcerated Parents:
Criminally Charged Parents:
Coordinating 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.
Special Issues in Representing Incarcerated Parents:
Criminally Charged Parents:
Coordinating 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?
Special Issues in Representing Incarcerated Parents:
Criminally Charged Parents:
Coordinating With the Criminal Attorney
Theory of the Defense
 Evaluations completed in the criminal context
geared toward establishing your client’s
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 client’s case is best if she can
rehabilitated with treatment
Special Issues in Representing Incarcerated Parents:
Criminally Charged Parents:
Coordinating 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
The 5th Amendment in Child Welfare Cases
Watch for incriminating statements made
out of court!
The 5th Amendment in Child Welfare Cases:
Protecting Your Client from Incriminating Out-ofCourt Statements
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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.
The 5th Amendment in Child Welfare Cases:
Protecting Your Client from Incriminating Out-ofCourt 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 evaluator’s questions in advance: be sure the
questions do not implicate your client’s criminal
interests
 Be aware of what instruments will be used and
how they could implicate your client’s 5th
amendment interests
 Attend your client’s evaluation to protect your
client’s interests
The 5th Amendment in Child Welfare Cases:
Protecting Your Client from Incriminating Out-ofCourt Statements
Meeting with DCF social workers
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Limit the number of DCF employees meeting
with your client.
Be present at meetings with DCF.
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing with Dependency Trial, Aggravated Circumstances,
and ASFA
Defending the client from adjudication,
aggravated circumstances, and TPR
when she can’t tell her side of the story.
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing 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?
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing 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)
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing 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)
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing with Dependency Trial, Aggravated Circumstances,
and ASFA
If court won’t 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.
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing with Dependency Trial, Aggravated Circumstances,
and ASFA
If court won’t 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 client’s 5th Amendment interests).
Special Issues in Representing Incarcerated Parents: Criminally
Charged Parents:
Dealing with Dependency Trial, Aggravated Circumstances,
and ASFA
If court won’t 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 child’s best interest
 Agency failed to provide needed reunification
services