Family Reunification Programs
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BARRIERS TO REUNIFICATION FOR INCARCERATED PARENTS—
A JUDICIAL PERSPECTIVE
Honorable Marguerite D. Downing
Within the child welfare system, going to jail does not automatically mean losing your children. As the number of incarcerated parents rises, California dependency bench officers are looking at the effects incarceration has on parents seeking to
reunify with their children. The California legislature passed legislation allowing a dependency judicial officer to consider
the effect incarceration has on parents’ performance and to grant additional reunification if a parent’s progress is hindered
by incarceration. In Los Angeles County, the Incarcerated Parents Working Group was specifically created in 2009 to look
at the services available to incarcerated parents and what barriers these parents face in their efforts to reunify. Additionally,
the working group has created judicial training on this subject for their bench officers and for other judicial officers
throughout the state.
Keywords: incarcerated parents; reunification services; barriers to reunification; dependency; dependent children
On January 1, 2009, A.B. 3270 went into effect allowing dependency court judicial officers in
California to extend reunification services beyond the 18 month status review period where a parent
receiving reunification services is incarcerated. The new legislation requires judicial officers to take
into consideration whether the particular barriers to incarcerated or institutionalized parents’ access
to court ordered services and their ability to maintain contact with their child(ren) during incarceration have prevented compliance. More importantly in my mind, this legislation marks a new
philosophy on behalf of the courts regarding parents who are incarcerated. It is an affirmation that
neither the courts nor the child welfare system subscribe to the mentality of “go to jail, lose your
children.”
The new provision which also applies to parents and guardians who are institutionalized or are
in residential treatment facilities created new 24 month status review hearings also known as “.25
hearings”.
1
Therefore, parents who qualify are entitled to 6 months of additional services, which
extends the possible statutory period of reunification to 24 months. However, it is the new provision’s effect on incarcerated parents which has driven our efforts since the implementation of this
new law.
BACKGROUND
The most recent national numbers on incarcerated parents stem from a count dated December
31, 2009. At that time, there were at least 1.2 million incarcerated parents in the United States,
where over 834,000 parents were in state and federal prisons and over 411,000 of these parents
were in local jails. The majority, over 90 % of these incarcerated parents, are fathers.
2
In spite of
their incarceration, 80% of these parents retain full custody of their children while incarcerated.
Additionally, incarcerated parents differ demographically from other prisoners in the system in
being:
* less likely to be male (92.6% vs. 95.2% of the incarcerated population)
* more likely to be Black (49.4% vs. 42.8%) or Hispanic (18.9% vs. 14.5%)
* more likely to be married (23% vs. 8.7%)
FAMILY COURT REVIEW, Vol. 50 No. 1, January 2012 71–76
© 2012 Association of Family and Conciliation Courts
* less likely to be mentally ill (14.1% vs. 18.7%)
* more likely to have been employed prior to arrest (70.9% vs. 64.8%)
3
Even with these numbers, there is a concern that the count is either overestimated or underestimated. Since official correctional population estimates are based on 1-day counts and do not include
all persons incarcerated in a calendar year, the numbers may be underestimated. In California,
prisoner counts do not include California residents imprisoned in other states. Additionally, our Los
Angeles County prisoner counts do not include county residents incarcerated in other county jails.
Since parentage is often self reported, there is a concern that parents will not volunteer the presence
of a child(ren) for fear that child protection services will intervene to remove the child(ren). Adding
to reasons for underestimates is that some inmates may be unaware of a child born after a relationship
has dissolved or after a parent is incarcerated.
Some numbers may be overestimated since most women prisoners have children by male offenders
so these children could be counted twice if both parents are incarcerated.
INCARCERATED PARENTS WORKING GROUP
In Los Angeles County, where I sit, all dependency cases for the entire county are handled at one
courthouse, aptly entitled “Children’s Court.” Following the passage of A.B. 3270, the Los Angeles
Superior Court decided to create a committee to look at issues impacted by these new status review
hearings. The heads of the minors’ counsel and parents’ counsel firms, Children’s Law Center (CLC)
and Los Angeles Dependency Lawyers (LADL), respectively, then approached me to chair the new
working group. I have always believed that the suggestion to chair this committee stemmed from the
fact that I had been a career deputy public defender prior to my appointment to the bench.
Out of that discussion, the Incarcerated Parents Working Group (IPWG) was created to identify the
issues affecting parents who are incarcerated and the institutional barriers to their successful reunification with their children. To ensure that the working group had as many perspectives as possible on
this committee we broadly sent out the announcement of the formation of this committee. The
Department of Children and Family Services (hereafter “the agency”), various service providers, the
firms representing both the children and the parents, community partners, the Los Angeles Sheriff’s
Department, and the Department of Corrections (CDCR) were all invited to participate to ensure that
all views were included in the discussion. The local District Attorney and the Public Defender offices
were also invited to join our efforts since decisions in the criminal justice area determine who is
incarcerated and who is not.
Ultimately, the members of the working group came from all the stakeholder areas in the dependency system and from some entities that are not traditionally associated with this system. IPWG
decided to meet monthly and to focus on identifying barriers affecting reunification, ways around
those barriers, solutions to break down those barriers and creating judicial training for judicial officers
in dependency.
The articulated mission established by the working group is to identify barriers to successful
reunification for parents who are incarcerated and minor parents who are detained; to assist in
facilitating visitation between children and parents where possible; to develop training for judicial
officers, attorneys and Department of Children and Family Services’ (DCFS) staff on issues affecting
incarcerated parents; increase the parents’ participation in the court proceedings; and see what
improvements can be made in the process.
The working group operates with the hypothesis that children of incarcerated parents remain in the
dependency system longer than other children; have fewer successful reunifications with parents; and
are more likely to be adopted than other children in the dependency system. Unfortunately, on inquiry,
the working group discovered that DCFS does not keep statistics that either confirm or refute this
proposition. However, the working group continues to use this proposition as our starting point.
72 FAMILY COURT REVIEW
THE PROCESS
After spending the first couple of months learning about general issues affecting these incarcerated
parents and the availability or lack of services to them, the committee decided that one of our priorities
would be providing information to the judicial officers through a series of training programs. Prior to
actually preparing the judicial training materials, Dr. Denise Johnston, a member of the working group
and Director of the Center for Children of Incarcerated Parents, suggested sending out a survey to all
the judicial officers at Children’s Court to determine what information the judicial officers wanted or
felt they needed. Dr. Johnston opined that by tailoring our training to our audience, the training would
be more effective.
Accordingly, we created a survey asking the judicial officers to identify logistical obstacles to
serving these parents, coupled with legal and procedural concerns. The surveys were distributed to all
the judicial officers with an explanation of how the information was to be used and why we were
seeking their input. Answered anonymously, the surveys were collected and tallied by Dr. Johnston.
Only the responses in percentage terms were presented to the working group so that the training
document could be developed.
One hundred percent of the judicial officers surveyed felt that the biggest logistical obstacle
encountered in these cases was the case social worker’s difficulty in locating and communicating with
the incarcerated parent. The next two issues both garnering 85%, were the difficulty in achieving the
incarcerated parent’s presence at the hearings and in facilitating the court ordered visitation. In fourth
place with 69%, was parent’s counsel’s difficulty in communicating with their client.
JUDICIAL TRAINING
Our initial goal when we sent out the surveys was to fashion a single training for the judicial
officers at Children’s Court. However, as the working group delved more deeply in this subject
area, we discussed that one training program was not sufficient. There was so much material that
we could not present it within our standard lunchtime training time restraints. Plus, we wanted to
present the information effectively. For these reasons, we divided the presentations into parts and
then further designed three separate training modules. The first program focused on the results of
the survey, the barriers identified, any efforts and progress made toward removing these barriers or
working around them. We also wanted to provide the judicial officers with as much material as we
could about the services that were available to address the specific needs of the incarcerated
parents.
Months later, we presented the second installment of training. This powerpoint training focused on
the effects that incarceration has on the children in the dependency system and identifying symptomatic behaviors of these children that are challenged by the separation from their parents. The powerpoint presentation was supplemented with community-based service providers speaking about their
individual treatment programs and other available reunification services.
The third installment of the training, which was presented in July 2011, addressed special issues
involving minor parents who are detained by the Probation Department through the juvenile delinquency court and the adult criminal court system. The training module also addressed teen parents’
concerns, such as programs for pregnant minor mothers, visitation for minor parents housed in
juvenile offender camps and the Fatherhood program also available at juvenile camp facilities.
The judicial training portion of this project has expanded beyond the doors of Children’s Court
here in Los Angeles. As word of our efforts moved through the courthouse, the county, and beyond,
invitations flowed in requesting presentations on this topic from various sources and for different
audiences. Examples of these outside presentations include a training entitled “Barriers to Reunification for Incarcerated Parents” at our annual Juvenile Law Institute. This annual institute serves as
training for all judges in California currently handling either juvenile delinquency or dependency
issues. Joining me as a presenter was a representative from the California Department of Corrections
Downing/BARRIERS TO REUNIFICATION FOR INCARCERATED PARENTS 73
and Rehabilitation, who participated in the training to discuss the process for getting parents to court
after receiving removal orders from the court and to illustrate why it takes 3 to 4 weeks to get the
parent into court.
I have also presented on this topic along with parents’ counsel representatives to attendees at the
National Association for Children’s Counsel’s annual 2010 conference in Austin, Texas. Other
presentations have included training presentations in northern California to social workers, attorneys,
judicial officers, service providers, as well as to attendees at the National Council of Juvenile and
Family Court Judges in Reno, Nevada, and at the American Bar Association’s 2
nd
Annual Children and
the Law Conference. Additional presentations are still scheduled. One of the most interesting aspects
of these various presentations is that while similar, they have not been identical. Rather, they have
been tailored for the audience and the specific learning objectives; and although I continue to present,
my co-presenters change yet continue to come from the working group membership.
As an additional learning opportunity, on September 19, 2011, California Institution for Women
hosted a “field trip” for the judicial officers at Children’s Court to go out to the prison and to tour the
facilities. Not only did the judicial officers get an opportunity to meet with staff and see inmates
participating in the programs, they had the opportunity to learn about new programs and visit the New
Enhanced Visitation Program Center.
THE BARRIERS TO REUNIFICATION
After months of discussion and input, the list of barriers identified by the working group includes:
1. Difficulty in locating incarcerated parents and getting them to court;
2. Difficulty in arranging visitation for incarcerated parents;
3. Lack of programs available to parents while incarcerated;
4. Costs of programs—unlike most counties, Los Angeles county does not pay for services (in
counties where the child protection agency pays for services, there might be an equal protection argument where a department pays for services for non-incarcerated parents, but not for
incarcerated parents);
6. Lack of coordination for parents with pending criminal law matters between their dependency
attorney and their criminal law attorney;
7. Adequate training of agency employees and parents’ and minors’ counsel;
8. Lack of knowledge or attention to parents’ immigration issues and the effect that these
considerations have on dependency court outcomes.
We have been extremely successful in working with state correctional personnel.
However, that success has not been duplicated in working with the federal correctional authorities. It has been our experience at Children’s Court that federal officials ignore removal orders
from judicial officers for incarcerated parents’ appearance at dependency court proceedings. So
much so that federally-incarcerated parents are not even ordered out as a matter of course. Additionally, Immigration and Customs Enforcement (ICE) deports parents irrespective of there being
future scheduled court dates on their children’s case. Furthermore, the federal authorities do not
provide accurate information to social workers seeking to obtain information on parents in federal
facilities.
During the beginning months of the committee, CDCR was represented by Ms. Debra Herndon.
When Ms. Herndon was promoted to Assistant Director of Gender Responsive Services within CDCR
a couple of months later, she was committed to the success of this project. Currently, Guillermo
Garcia, the warden of California Institution for Women (CIW), the closest correctional facility, is an
active member of the working group. Attending monthly meetings, he also brings his staff with him
to personally address our concerns. The impact of having an actual warden on the committee cannot
be discounted. Until the California budget crisis brought drastic cuts, a representative from the CDCR
74 FAMILY COURT REVIEW
administrative officers in Sacramento also routinely attended. This close working relationship has
brought us numerous victories.
One of our first victories involves the CDCR inmate locator going online ahead of schedule. CDCR
planned to put their new inmate locator online. However, due to budget cuts, the debut of this locator
was postponed. After repeatedly hearing about the difficulties of the agency case social workers trying
to locate incarcerated parents, the inmate locator went online sooner than planned.
Another benefit to incarcerated parents as a result of our collaboration here is that more parents are
being transported to court in a timely manner in response to our removal orders. Lacking any
empirical evidence to substantiate my view, I believe that incarcerated parents who participate or are
involved in these cases have better outcomes. These parents also experience increased communication
with the agency and with their children through actual visitation and contact through cards and letters.
Another victory was the passage of legislation creating a pilot project for court appearances via
video conferencing. The project allows incarcerated parents to “virtually” appear at their child(ren)’s
dependency court hearing without leaving their correctional facility. The force behind this pilot
project and the subsequent passage of the legislation were members of the committee working for Los
Angeles Dependency Lawyers.
Another benefit of the committee’s work has been a higher standard of professionalism with the
agency, due to repeated focus on what constitutes “reasonable efforts” by the agency and the
case-carrying social worker. Case-carrying social workers know that judicial officers will hold them
and the agency responsible for providing reasonable services to parents that are incarcerated. In
addition to providing judicial officers here with additional tools to determine what services are
available to parents within the different facilities, we have also worked to train the social workers with
best practices to locate and communicate with incarcerated parents.
Our collaboration has brought many unintentional benefits for the court. The court has developed
a better working relationship with our service providers and also with the custodial agencies that
transport our parents to Children’s Court.
CONCLUSION
In conclusion, we still have a long way to go. However, I am convinced that any change must begin
and end with the judicial officers. If we as judicial officers see that the best interest of our children in
care are served by involving the parents in the handling of the case, then we need to make it happen.
We as stakeholders need to ensure that incarcerated parents participate in the dependency case and
make “reasonable efforts” to facilitate their participation. Parents’ counsel have told me on more than
one occasion that there has been a culture shift in the courthouse as a result of our work, and I hope
that is true. In other state jurisdictions, such as Oklahoma, Florida, and Vermont, legislation covering
similar issues has been proposed.
4
Recently, I presented a training program on this topic to dependency court stakeholders in a small
county on behalf of the Administration Office of the Courts (AOC), which is the administrative arm
of the Supreme Court of California responsible for the management of our statewide court system.
California has a unified structure where courts are no longer “county,” but state entities. After I was
initially contacted about teaching, the AOC staff trainer forwarded the desired learning objectives for
the presentation to me. The first objective to be taught was one mentioned at the beginning of the
article: that from a court-wide perspective, going to jail does not mean losing your children. This
stated philosophy by the AOC shows the court’s intention of not only following the letter of the
Welfare and Institutions Code, Section 366.25, but the spirit as well.
The next steps are to get the statistical information which tracks rates of reunification of incarcerated parents with their child(ren). Hopefully, getting the statistical information will confirm that our
efforts as the Incarcerated Parents Working Group are making a difference in the lives of children with
incarcerated parents and their families.
Downing/BARRIERS TO REUNIFICATION FOR INCARCERATED PARENTS 75
NOTES
1. WELF.&INST, § 366.25, (codified as amended at A.B. 1325 (Stats. 2009, ch. 287), Section operative until January 1,
2014, and as of that date repealed, unless a later statute is enacted before January 1, 2014.
2. DENISEJOHNSTON,CTR.FORCHILDREN OFINCARCERATEDPARENTS ATPAC.OAKSCOLL., PASADENA,HOWMANY
ARETHERE? (2010); LAURENE. GLAZE&LAURAM. MARUSHAK,BUREAU OFJUST.STATISTICS, U.S. DEP’T. OFJUST.,
PARENTS INPRISON AND THEIRMINOR CHILDREN, (2008);Charlene Wear Simmons, Children of Incarcerated Parents, 7(2)
CALIFORNIARESEARCHBUREAU(2000).
3. CHRISTOPHERJ. MUMOLA,BUREAU OFJUST.STATISTICS, U.S. DEP’T. OFJUST., INCARCERATEDPARENTS ANDTHEIR
CHILDREN, (2000).
4. H.B. 1197, (OK 2011); S.B. 388 (FL 2011); H.B.273 (VT 2011),SeeNational Council of Juvenile and Family Court
Judges, 43(3)Juvenile and Family Law Digest, (March 2011).
Judge Marguerite D. Downing serves on the Los Angeles Superior Court. Appointed August 21, 2007, she presides over
dependency cases at the Edelman Children’s Court. Since January 2009, Judge Downing has chaired the Incarcerated
Parents Working Group for Los Angeles County working to address issues effecting this population of parents and the
effect incarceration has on dependent children in the child welfare system. Judge Downing has lectured and trained on
this and other dependency subjects within California and in such far flung places as Beijing, China, Dubai, Guam and
Saipan. She has been an active member of both the National and American Bar Associations as both a lawyer and as
a judge. Currently, Judge Downing serves as a Commissioner for the ABA Commission on Youth at Risk.
76 FAMILY COURT REVIEW
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