3Reasonable Efforts for Incarcerated Parents What reunification efforts is the Department of Children and Families (DCF) required to provide to incarcerated parents?
4Reasonable Efforts for Incarcerated Parents The Adoption and Safe Families Act (ASFA) does not define reasonable efforts for incarcerated parents
5Reasonable 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.
6Reasonable 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 childthe 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
7Reasonable Efforts for Incarcerated Parents California:Defining Reasonable Efforts For Incarcerated Parents
8Reasonable Efforts for Incarcerated Parents CaliforniaCal.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.
9Reasonable 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.
10Reasonable Efforts for Incarcerated Parents But see:N.D. Cent. Code § (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…ANDAla.Code 1975 § (c)(1)fAn 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.
11Visitation for Incarcerated Parents Does the parent have a right to visitation at the detention facility?
12Visitation for Incarcerated Parents Two approaches:Best interest of childHarm to child
13Visitation for Incarcerated Parents Best Interest of Child: Visitation will be permitted if it is in the child’s best interest
14Visitation for Incarcerated Parents Best Interest ApproachN.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.”
15Visitation for Incarcerated Parents Harm to Child Approach: Visitation will not be denied unless it can be shown to be harmful to the child
16Visitation for Incarcerated Parents Harm to Child ApproachIn 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. “
17Visitation 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 *15 (Conn. Super. 2007)(unpublished)
18Visitation for Incarcerated Parents ConnecticutDCY does not have a policy specifically addressingvisitation for incarcerated parents but generallyencourages visitation, especially when the goal isreunificationSee DCY Policy Manual , Visitation“The Department shall ensure that children under the Commissioner’s care and custody be provided with visitation with their parents and siblings.”
19Participation in Court Hearings Does the incarcerated parent have the right to participate in court hearings?
20Participation in Court Hearings Yes, but the right is not absolute. Most courts in resolving this issue have used the Mathews v. Eldridge test.
21Participation 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 stake2) The risk of erroneous deprivation of such interest resulting from the use of current procedures as compared to the value of additional safeguards3) The nature of the government’s interest
22Participation in Court Hearings States applying Mathews have come to different conclusions:1) Physical presence is required if balancing test supports it2) Phone presence is sufficient3) No presence is required so long as parent is represented by counsel
23Participation 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).
24Participation 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 safeguardsThe 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.
25Participation 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).
26Participation 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)
27Incarceration and Termination of Parental Rights Is the fact of parental incarceration sufficient to terminate parental rights?
28Incarceration and Termination of Parental Rights ASFA is silent on this question3 major trends:Incarceration is a ground for termination of parental rights (based on length of incarceration)Incarceration is a factor that may be consideredIncarceration is an exception to the 15/22 month requirement (minority)
29Incarceration 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.”
30Incarceration and Termination of Parental Rights Incarceration as a factor to be considered in termination of parental rights:Ala. Code 1975, § (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.”
31Incarceration and Termination of Parental Rights Incarceration as an exception to the 15/22 month filing requirement:Colo. Rev. Stat. Ann. § (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…”
32Incarceration 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.
33Incarceration and Termination of Parental Rights: Connecticut Connecticut TPR StatuteC.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
34Incarceration 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.
35Incarceration 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.
36Incarceration 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 rehabilitationExamples: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)
37Incarceration 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 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).
39REPRESENTING INCARCERATED PARENTS: Practice Tips Communicate Regularly with Your ClientWhat is your client’s desired outcome? Counsel your client on the role she can play in the child welfare caseReunification resourceIdentify kinship resourcesIdentify family and community supportsShare knowledge of child’s special medical, therapeutic or educational needsShare knowledge of family history
40REPRESENTING INCARCERATED PARENTS: Practice Tips Communicate Regularly with Your ClientEnsure 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.
41REPRESENTING INCARCERATED PARENTS: Practice Tips Advocate for Reasonable EffortsAsk DCF to include your client in developing the Treatment PlanEnsure Treatment Plan goals are feasibleAsk DCF to support the parent’s completion of their goals
42REPRESENTING INCARCERATED PARENTS: Practice Tips Advocate for Reasonable EffortsIf 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
43REPRESENTING INCARCERATED PARENTS: Practice Tips Encourage regular parent/child contactAdvocate 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.
44REPRESENTING 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?
45REPRESENTING INCARCERATED PARENTS Special Issues in Representing Incarcerated Parents: Criminally Charged Parents
46Special Issues in Representing Incarcerated Parents: Criminally Charged Parents The 5th AmendmentUNDERSTANDING THE USE OF THE 5TH AMENDMENT IN CHILD WELFARE CASES
47What is the 5th Amendment? “No person shall be … compelled in any criminal case to be a witness against himself…”
48What is the 5th Amendment? The 5th Amendment is available to the states through the 14th AmendmentAlso can be found in state constitutions such as Article I, Section 6 of the Alabama Constitution
49The 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).
50The 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)
51The 5th Amendment in Child Welfare Cases Practice Tips:When to Assert the 5th
52The 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.
53The 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.
54The 5th Amendment in Child Welfare Cases: When to Assert the 5th 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.
55The 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
56The 5th Amendment in Child Welfare Cases Practice Tips:How to Assert the 5th
57The 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.
58The 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 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)
59The 5th Amendment in Child Welfare Cases: How to Assert the 5th Practice Tips:The Role of the Criminal Defense Attorney
60The 5th Amendment in Child Welfare Cases: How to Assert the 5th The Role of the Criminal Defense AttorneyCan the criminal defense attorney participate in the child welfare proceedings for the purpose of protecting your client’s 5th Amendment Rights?
61The 5th Amendment in Child Welfare Cases: How to Assert the 5th The Role of the Criminal Defense AttorneyIn 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.
62The 5th Amendment in Child Welfare Cases: How to Assert the 5th The Role of the Criminal Defense AttorneyIn 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”
63The 5th Amendment in Child Welfare Cases: How to Assert the 5th The Role of the Criminal Defense AttorneyPractice Tip:When possible, ask the criminal attorney to attend any child welfare proceeding at which your client may be asked to testify.
64Special Issues in Representing Incarcerated Parents: Criminally Charged Parents The Criminal Defense and the Child Welfare Defense: Coordinating with the Criminal Attorney
65Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Coordinating With the Criminal AttorneySpeak 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.
66Understand the theory of defense in the criminal case. Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Coordinating With the Criminal AttorneyTheory of the DefenseUnderstand 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.
67Is the criminal attorney alleging incompetency or insanity? Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Coordinating With the Criminal AttorneyTheory of the DefenseIs the criminal attorney alleging incompetency or insanity?What impact will evidence establishing these things have on the child welfare case?
68Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Coordinating With the Criminal AttorneyTheory of the DefenseEvaluations completed in the criminal context geared toward establishing your client’s incompetency or insanity may be harmful to your child welfare defenseIn 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
69Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Coordinating With the Criminal AttorneyCase StrategyDelay in a criminal matter is often helpful:State (DA) loses witnessesEvidence gets lostWitnesses lose memoryBut, delay in a child welfare case can be very harmful:Attachment to caretakerRelapse of a substance abuserASFA clock running out
70The 5th Amendment in Child Welfare Cases Watch for incriminating statements made out of court!
71The 5th Amendment in Child Welfare Cases: Protecting Your Client from Incriminating Out-of-Court StatementsStatements 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.
72The 5th Amendment in Child Welfare Cases: Protecting Your Client from Incriminating Out-of-Court StatementsEvaluations requested by DCF or ordered by the court: Beware of MH, D/A, & Parenting Capacity EvalsLimit scope of the evaluations ordered by the courtLimit evaluator’s questions in advance: be sure the questions do not implicate your client’s criminal interestsBe aware of what instruments will be used and how they could implicate your client’s 5th amendment interestsAttend your client’s evaluation to protect your client’s interests
73Meeting with DCF social workers The 5th Amendment in Child Welfare Cases: Protecting Your Client from Incriminating Out-of-Court StatementsMeeting with DCF social workersLimit the number of DCF employees meeting with your client.Be present at meetings with DCF.
74Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFADefending the client from adjudication, aggravated circumstances, and TPR when she can’t tell her side of the story.
75Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFAHow 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?
76Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFACourts 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)
77Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFAHowever, 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)
78If court won’t grant stay of proceedings… Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFAIf 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.
79If court won’t grant stay of proceedings… Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFAIf 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).
80If court won’t grant stay of TPR… Special Issues in Representing Incarcerated Parents: Criminally Charged Parents: Dealing with Dependency Trial, Aggravated Circumstances, and ASFAIf 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 relativeTPR is not in child’s best interestAgency failed to provide needed reunification services