July 13, 2017
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Double Punishment: After Prison, Moms Face Legal Battles to Reunite With Kids

By Victoria Law, Truthout | Report

This story is the first in a new Truthout series, Severed Ties: The Human Toll of Prisons. This series will dive deeply into the impact of incarceration on families, loved ones and communities, demonstrating how the United States' incarceration of more than 2 million people also harms many millions more -- including 2.7 million children.

Since becoming a mother, Vanetta Richardson had never spent a day apart from any of her six children. But, on December 1, 2013, the 34-year-old was arrested at her home in Renton, just outside Seattle, and spent the first night away from her children, who ranged in age from six to 16. A friend took her children in that night, but shortly after, her mother-in-law went to family court and became the children's caregiver, bringing the state's child welfare system into the picture.

Richardson spent over two years battling second-degree murder charges in the death of her abusive husband. Ultimately, she pled guilty to first-degree manslaughter. She and her attorney argued for a shorter sentence, noting both the history of domestic violence at the hands of her husband and the fact that, the longer she spent in prison, the more her relationship with her children was in jeopardy. The judge ultimately sentenced her to 60 months in prison and credited her 888 days (nearly 30 months) in jail as time served. The judge also imposed a no-contact order between Richardson and any member of her husband's family.

But Richardson's legal troubles weren't over yet. She still had to contend with family court, a mother-in-law who was understandably upset about the death of her son and hostile to Richardson, and a court-appointed special advocate (or guardian ad litem) who believed that the children would be better off without their incarcerated mother.

Richardson's experience is one shared by many incarcerated parents. Approximately 2.7 million children under the age of 18, or more than 3.6 percent of children in the United States, currently have a parent behind bars. More than 5 million have had a parent incarcerated at some point in their lives. In Washington alone, 109,000 children (or 7 percent of the state's children) had experienced parental incarceration between 2011 and 2012.

If parents do not have sympathetic family members able to take care of their children during their incarceration, they risk having their family entangled in the child welfare and foster care systems. No one knows the true extent of how many families this affects. In 2013, an estimated 19,858 (8 percent) of the children who entered foster care in the US did so because of a parent's incarceration. Child welfare advocates believe that number does not include cases in which a parent is incarcerated just before or at any time after a child's foster care placement or cases in which a parent was not the child's primary caregiver. Moreover, this estimate does not include cases in which the caseworker did not select incarceration as the cause of foster care placement. "Nationally, there's no system in place to keep track of anything related to incarcerated parents and their children, so there's no system for collecting data," Ann Adalist-Estrin, the director of the National Resource Center on Children and Families of the Incarcerated (NRCCFI), told Truthout.

Entanglement in the foster care system comes with the very real risk of permanently losing one's parental rights -- and often contact -- with one's children. This phenomenon has escalated over the past two decades, since the federal Adoption and Safe Families Act (ASFA) passed in 1997. Under ASFA, if a child is in foster care for 15 of the past 22 months, state agencies are required to begin proceedings to terminate parental rights. Nearly immediately after ASFA was passed, parents with children in foster care began to feel its impact. Nationally, the number of parents whose rights have been terminated rose from 60,000 in 1998 to 73,000 in 2000. A 2003 study found that rights termination proceedings involving incarcerated parents more than tripled from 260 in 1997 to 909 in 2002. For incarcerated mothers, the risk of parental rights termination is higher, given that their children are five times more likely to end up in foster care or dependency than children of incarcerated fathers.

When Richardson was first incarcerated, her oldest daughter lived with a family friend, and so her other five children were sent to their grandmother. However, because her mother-in-law had gone to family court, child welfare became involved. This meant that, so long as Richardson remained incarcerated, the threat against her parental rights continues to loom.

Richardson, like so many other parents behind bars, did everything possible to avoid the termination of her parental rights. She documented each and every letter and phone call to her children in an effort to demonstrate that she was doing her best to stay involved in their lives. She signed up for every parenting class that the prison offered to show that, even behind bars, she was planning for a future with her family.

Does Incarceration Render a Parent Unfit?

Richardson is fighting not only to maintain a relationship with her child, but also to challenge the implicit assumption that incarceration renders her an unfit parent.

Adalist-Estrin of NRCCFI has spent decades working around issues of incarceration and families. Part of that work involves battling the pervasive notion that the children are better off without their incarcerated parents. She notes that in some states, there are actually laws that mitigate the incarceration-termination effect: Nebraska, New Mexico and Oklahoma have statutes that specifically prohibit the termination of parental rights solely because of parental incarceration. However, regardless of what laws are on the books, human bias plays an enormous role in whether parental rights are removed. Oftentimes, the discretion of child welfare case workers determines the fates of parents and children.

Child welfare workers in every state make the decision about whether to define incarceration as "neglect." Those decisions, Adalist-Estrin pointed out, are influenced by assumptions and implicit biases about race, class and, of course, incarceration.

For incarcerated parents, trying to meet the requirements set by child welfare officials can be an uphill battle. States generally require parents to meet a series of benchmarks in order to be reunited with their children. These requirements may include undergoing classes and counseling, securing permanent housing or a job, receiving drug treatment, and other steps that may be difficult or impossible to undertake behind bars. Jails and prisons may not offer parenting or other required classes. In Richardson's case, the prison doesn't offer reunification counseling mandated by family court. Even if a course or counseling is offered, the waiting list may stretch far beyond the parent's sentence -- or they may be transferred before finishing the class.

"There needs to be systematic policy and practice review in both [child welfare and corrections] departments," Adalist-Estrin said. Yet there's often little to no communication between the two departments. Child welfare workers face the challenge of trying to understand the often-byzantine rules of jail and prison systems, while jail and prison counselors say that they often cannot reach child welfare workers. While parents are required to meet formidable benchmarks along the way to reunification, the state itself is held to no such standards.

"When I put the proposed bill in there, it showed that I did my research."

Melissa Vosbough was already involved with Washington State's child welfare system when she missed a hearing in criminal court and was sent to prison in 2011. It was her third time behind bars; all of her prison stints stemmed from her struggles with crack-cocaine. "There's not a lot of funding [for drug treatment], so there's not a lot of treatment opportunities unless you're court-ordered," she told Truthout. She spent the next two years at the Washington Correctional Center for Women. Meanwhile, her seven-year-old daughter and one-year-old son were placed in foster care.

In 2012, Vosbough was still in prison when she learned that the state was seeking to terminate her parental rights. She immediately strove to take action. "I went to the law library every day," she recalled. Vosbough, who had never taken a law class, spent eight hours each day poring over thick legal tomes, teaching herself about the Adoption and Safe Families Act, California's Children of Incarcerated Parents Bill of Rights, and the effects of severing the parent-child bond.

At the same time, she met another mother who was also fighting efforts to terminate her parental rights. That mother told Vosbough about the Children of Incarcerated Parents bill that was then under review in the state Senate. If passed, the bill would allow family court judges the discretion to delay terminating parental rights if the parent's incarceration or past incarceration is a significant reason for the child's placement in foster care. Vosbaugh's friend encouraged her and other mothers to write declarations supporting the bill.

Vosbough wrote a declaration. She also included information about the bill, as well as her post-release parenting plan, in the 61-page brief she filed in family court. "As an incarcerated parent, I know firsthand the difficulties of keeping my family intact," she wrote in her brief. "Serving my time and taking accountability should not mean my children lose their mother."

The family court judge agreed and granted her a continuance, meaning that her rights were not terminated. "I believe that when I put that proposed bill in there, it showed that I did my research, that I really wanted my children back and I was willing to do the footwork," she reflected. "I'm sure it had a huge influence on me getting a continuance."

Vosbough is now out of prison and reunited with her children. It's been a rocky road. While she was able to build a relationship with her son over the years through prison visits, a clerical error on the part of the child welfare agency prevented her from seeing her daughter for two years. "She didn't even know where I was," she recalled. "They [the social workers and foster mother] kept it from her till I got out."

As one might expect, reunification hasn't been easy. When she was released from prison, Vosbough was only allowed supervised visits with her children. Eventually, she was allowed overnight visits. At that point, her children showed their resentment at her prolonged absence. Her son, who had just turned four, kicked, scratched and bit her; her 10-year-old daughter would try to physically fight her.

Despite the ups and downs, Vosbough is grateful to have her children -- and for the law that kept them from being taken from her. Now she and her children live together full time. "After two years, we're finding our little family -- what works and what doesn't," she said.

"If the law hadn't been in place, my rights would have been terminated."

The Children of Incarcerated Parents bill was signed into law in May 2013 -- but many incarcerated parents were not alerted of its passage. In late 2013, when Richardson was jailed, she had no idea that the law existed. That changed in early 2014 when law students Erin Lecocq and Cameron Buhl learned about her case. The two were graduating from law school and about to take the bar exam when they learned about Richardson during a class presentation. After passing the bar, they applied to represent her in family court, using the law to prevent termination of, and demand regular contact with, her children. Richardson did her part, sending hundreds of letters to her children.

In September 2016, the court-appointed special advocate asked the court to terminate Richardson's rights to her two youngest children. Richardson and her attorneys fought the request and won, a success that Buhl and Lecocq credit to the Children of Incarcerated Parents bill. They note that the court's standard relies on whether the children can be returned to their parent in the near future, a timeline that varies depending on the child's age. For children who are no longer babies, that timeline usually doesn't extend beyond one year.

"It's very rare to have a dependency case go on for a few years," Buhl told Truthout. "They really advocate for 'permanency' -- and I put 'permanency' in quotes because, in reality, [most] kids go from foster home to foster home." Richardson's children lived with their grandmother. If they weren't reunited with their mother, they would have had a permanent home, but "permanency" would have meant a permanent separation from their mother. "Had the bill not been in place, we would have been talking about termination years ago," stated Buhl.

"How do you increase recidivism? Take someone's children from them."

Had she lost her children, Vosbough isn't sure she would have gotten clean and sober or stopped the revolving door of incarceration. "How do you increase recidivism? Take someone's children from them," she said. "For some people, their children are all they have."

That was what happened to Shermaine Smith. For Smith, child welfare involvement became the funnel into the jail system. "I had never been incarcerated until they took my son," she told Truthout.

In 2005, Smith and her 15-month-old son were living on New York's Lower East Side. Earlier that year Smith, who struggled with a crack addiction, attempted to get into rehab. Admission to rehab required a physical exam. When the doctor, who had treated Smith during her pregnancy, asked the reason for the physical, she told him the truth. He, in turn, called child welfare.

Smith's caseworker found her a spot in an in-patient rehab. Entering the treatment center required Smith to leave her son with her aunt, who agreed to care for the boy for the next 28 days. But then a city-wide transit strike shut down all buses and trains for three days. Smith was unable to get from her home downtown to her aunt's apartment in Harlem and then to the treatment facility in midtown, by the required 8 am admission time. She called her caseworker to let her know she was going to be late. Her caseworker called her back five hours later with transportation arrangements. By then, Smith told Truthout, she had lost her slot and told her caseworker that the offer was too late. Her caseworker marked her down as noncompliant and, three days before Christmas, child welfare officials removed her son. That night, Smith went out and got high.

Her son was placed with her aunt. Smith was sent to rehab for a month. Upon release, she spent every moment possible at her aunt's house. Then her aunt, fueled partly by a concern that Smith wasn't actively working on recovery and partly by the inconvenience of Smith's frequent presence, asked her to visit less often. Without the daily visits with her son, Smith was less motivated to stay sober. "On days I couldn't see my son, I'd get high," she recalled.

From there, Smith's life spiraled downward. She began selling crack to support her habit. She began getting arrested and detained at Rikers Island, New York's island-jail complex. The first time, she was arrested, held overnight, then released. Then she was arrested and held for a week, then a month, then 90 days, then a year.

Whether at Rikers or home, Smith continued to try to stay in touch with her son. She called her aunt's house every day, undeterred when her aunt either hung up on her or refused to answer. She mailed a letter or card to her aunt's house every week, though she never knew if her son received them.

In 2010, Smith learned that New York legislators were attempting to pass the ASFA Expanded Discretion Act, which allows foster care agencies the discretion to not file for termination even if 15 months have passed, if a parent is in prison or drug treatment, or if a parent's prior incarceration or program participation is a significant reason for the child's foster-care placement. She joined advocates, including other formerly incarcerated mothers, in a trip to Albany. There, she spoke about her experiences to garner legislative support for the bill. Their efforts were successful and, in June 2010, the Act was signed into law.

But it was too late for Smith and her son. In 2012, Smith completed drug treatment. However, when she called the foster care agency to continue the process of trying to reunite with her son, she learned that her rights had been terminated in 2007 and that her aunt had since adopted him; there was nothing Smith could do to reverse the adoption. Smith says that, though she maintained the same address for years, she never received notice of a termination hearing. "It could have occurred while I was in jail. I haven't the foggiest," she reflected. While she was in and out of jail, no one had bothered to let her know what was happening with her child welfare case.

Smith recognizes that the termination wasn't solely caused by incarceration. "Substance abuse got him removed," she said. But, she added, when the state took her child, it set off a downward spiral that resulted in multiple arrests and incarcerations. In turn, being in jail left her unable to meet the requirements imposed by child welfare for reunification.

"A lot of times, I may have been high, but I showed up [to visit my son]," she said. "I was able to be there. I couldn't be there when I was at Rikers." A parent's failure to visit their child is documented by social workers and considered when a judge determines whether a strong parent-child relationship exists. This, of course, is another requirement that incarcerated people cannot meet.

In addition, Rikers offered no assistance in navigating family court. "By the time you had a chance to put in a slip to see someone at social services, your family court appointment has passed," Smith said. Due to this gap, she failed to appear in court, causing the family court judge and ACS [Administration for Children's Services] workers to assume that she didn't care enough about her son.

Behind Bars, the Threat of Termination Still Looms

Thus far, the Children of Incarcerated Parents bill has prevented Richardson from losing her parental rights and allowed her to stay in contact with her children. She sees her oldest five children whenever they can travel the two hours to the women's prison, and is hoping to see her youngest, now age 10, soon. In November 2017, she'll be eligible for work release, a transitional program that allows people to leave prison early to work in the community. The following May, if all goes as planned, she will be eligible for release from prison custody altogether. But the threat of terminated parental rights hasn't entirely disappeared. Every six months she undergoes a review hearing in family court. Plus, so long as she is behind bars, there's always the threat of the Department of Social and Health Services filing a petition to grant guardianship to her mother-in-law, allowing her to make decisions about Richardson's involvement and contact with the children.

If that happens and the courts don't dismiss the petition, explained Lecocq, Richardson will have to go through a trial in which the state and child welfare officials will try to prove that granting guardianship to the children's grandmother is in their best interest. Given the considerable tension between Richardson and the grandmother, as well as the no-contact order, this most likely would mean the end of the children's visits to prison and an uphill battle to maintain any sort of mother-child relationship while behind bars.

Adalist-Estrin noted that, in recent years, she's seen a shift in attitudes and perceptions around parental incarceration, a shift that she hadn't seen during previous decades. That shift is due, in large part, to awareness raised by Nell Bernstein's book All Alone in the World, the Children of Incarcerated Parents Bill of Rights, which recognizes children's need to maintain a relationship with their imprisoned parent(s), and Sesame Street's materials around incarceration, as well as governmental recognition. Still, she notes that much more needs to be done to fight the policies that hurt incarcerated parents and their children. Part of that work involves pushing back against negative assumptions about the value of reunification.

Adalist-Estrin predicts that shifting policy and public sentiment around parental incarceration will be a slow process. "Training is huge," she said. "Every county and every state should have trainings specifically for working with incarcerated parents." She also recommends developing positions on the state level that focus on investigating and addressing the needs of children of incarcerated parents. Sentencing judges could also consider the impact of incarceration on the entire family, particularly for parents facing first-time or minor-level charges.

Adalist-Estrin does not expect the system's practices regarding incarcerated parents to change overnight. That's why it's so critical, she says, to grow a real movement to counter the stigma and punitive policies that keep parents separated from their kids.

"We can keep building the groundswell of people who are concerned about this issue," she said.

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