Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hi, everyone. My name is liliana yearns. I'm a 1L at Harvard Law School, and I'm here today with Mia. We're really excited to talk about her blog topic. So, Mia, could you tell us a little bit more about yourself and what made you interested in the topic?
[00:00:52] Speaker C: Sure thing. So my name is Mia Robertson. I'm also a 1L at Harvard Law School, and I'm really excited to be here talking about this really interesting and important access to justice issue, which is the child welfare system and the access to justice issues presented by it for incarcerated parents. Prior to law school, I worked for a youth court judge in Mississippi.
And very often in our cases, we would have parents who were incarcerated or who would become incarcerated during the pendency of their cases.
And so we were constantly exploring questions about how do we keep those parents meaningfully involved? How do we ensure that they have access to these proceedings and access to their children and access to their caseworker? And so these were questions we were constantly wrestling with. And I was very fortunate to work for a judge who was very cognizant of those issues and who was very cognizant of making sure our incarcerated parents were included. But we would often read and talk about cases where that was not the case.
And it made me really interested about this issue as an access to justice issue specifically, and is one that I think is really important.
[00:02:10] Speaker B: Absolutely. And just for people who don't know, could you tell us a little bit more about the child welfare system more generally?
[00:02:17] Speaker C: Sure, yeah. So I think it's really important to understand the process, to be able to understand kind of where the access to justice issues arise.
So at a very threshold level, a report gets made to a child welfare agency, and that report alleges abuse or neglect or exploitation or abandonment.
From there, the child welfare agency will conduct an investigation. So they will make contact with the family, they'll make contact with the child, and they will just try to see, like, are these allegations substantiated or are they unsubstantiated?
If the conditions warrant removal, then the child welfare agency can and will remove custody of that child from their parent.
And so the child will come into the custody of the child welfare agency, and that triggers a legal process.
And that process is pretty unique.
[00:03:17] Speaker B: And so what makes these proceedings particularly unique?
[00:03:20] Speaker C: So these proceedings are quite unique. Even to lawyers, they look a little bit different from other proceedings. So at the very baseline, these matters are regulated both by federal and by state law. So in practice, state law governs these cases, period.
However, there's a lot of federal guidance that ties federal funding for child welfare and foster care systems to certain limitations and conditions. So I think the most pertinent of those is the Adoption and Safe Families act that was passed in 1997 by President Bill Clinton. And the Adoption and Safe Families act effectively ties federal funding for foster care systems to a lot of different conditions. So many of those include that the state must make reasonable efforts, which we will talk much more about, but that the state must make reasonable efforts to kind of achieve permanency and achieve safety for this child.
And I think also in relevant part, the Adoption and Safe Families act sets very strict timelines, both for hearings and for just the process as a whole.
So in relevant part, the Adoption and Save Families act says that for any child in foster care for 15 of the last 22 months, the state must file a petition to terminate parental rights. And there are some exceptions to that, but those exceptions are pretty limited. So you can definitely imagine that in the context of incarcerated people, this means that obviously, absent any aggravating circumstances, a parent whose incarceration is for a longer term than 15 months would have a petition to terminate their parental rights filed. So that's really interesting. So, like I said, the Adoption and Safe Families act kind of ties these conditions to federal funding. And so, as one can imagine, whenever states craft their child welfare statutes, they really craft them around federal statutes like this one to ensure that they're kind of being able to obtain that funding.
So from there, like I mentioned, the Adoption and Safe Families act sets really strict timelines, and we see those mirrored in state statutes. So, for example, once a child is taken into custody, the court has to have regular review hearings, and those are called permanency hearings at least every 12 months. Now, in those hearings, parents have a right to participate, and very often in practice, they have an obligation to participate to get their children back at those hearings as well. Like I mentioned, the judge sets a permanency plan, and that permanency plan is basically the strategy by which we attain permanency for the child. So how do we get this child into a safe environment? How do we get them into the care of someone who is safe and who is a permanent caregiver?
Now, the Adoption and Safe Families act says that the default permanency plan should be reunification with a parent. So we should just presume off the bat what we're trying to work towards is reunification of this parent with their child.
Obviously, there are very often aggravating circumstances that may not make reunification a viable default permanency plan, but the Adoption and Saved Families act says that should be our default. And then once we find aggravating circumstances justifying something else, then we can do something else.
Very often in practice, permanency plans kind of tie reunification to certain tasks and goals. So, for example, the court might say, if you want to be reunified with your child, you have to complete drug treatment, you have to complete parenting classes, you have to complete anger management.
And so that's really all in the discretion of the judge. It's very fact dependent, you know, what kind of conditions resulted in the removal of this child from their parent. So the court will try to remedy those through conditions on the permanency plan.
Now, like I mentioned, the court has to make a reasonable efforts determination at these hearings. And so they have to find, well, is the child welfare agency actually helping the parent to achieve that permanency plan? So it's not like once the permanency plan is ordered, the parent is just kind of, you know, floating off on their own trying to achieve it. The child welfare process is supposed to assist them in doing that. And so the court must make that reasonable efforts determination. And what governs that is, like I mentioned, the Adoption and Safe Families Act. So the Adoption and Safe Families act says that judges have to make this reasonable efforts determination, and they have to find that the child welfare agency made reasonable efforts if they want to get federal funding as to that particular child.
So that's huge, right? That, that's a huge check on the agency. If the court finds you didn't make reasonable efforts to help this parent reunify with their child, the agency will lose funding to place that child. And so in that way, courts can act as a, as a check on the efforts of the agency.
And finally, sorry, I know we've gone through a lot of ways that these proceedings are unique, but finally, these proceedings are unique because in practice, they are less adversarial than other proceedings. So because the court is having to make this reasonable efforts determination, and because we've Set a permanency plan.
Often in practice, the court, the agency, and the parent are kind of working as a team to achieve that permanency plan. Now, it might not feel that way for the parent, obviously, who's sitting opposite this agency that is talking about terminating their rights or something like that, or they maybe feel like that's happening. But in practice, what's supposed to be happening is that the agency is charged with making reasonable efforts helping the parent, and the court facilitates that.
[00:09:06] Speaker B: So does this process change at all when a parent is incarcerated?
[00:09:11] Speaker C: It's a really good question, Liliana, and the answer is generally no.
So the Adoption and Safe Families act says that, period, absent aggravating circumstances, the default plan should be reunification. Now, judges obviously can and often should change the permanency plan if that's in the best interest of the child. So if they say, hey, look, this parent is going to be incarcerated for five years, it's not tenable to have this child, you know, wait in foster care, limbo while this parent is serving out their sentence. And so maybe in this case, reunification is not a viable plan. And so we'll do something else like custody with a relative or relative guardianship or something like that. But importantly, that finding has to be made so. So the judge has to change the permanency plan before the agency can stop working with the parent. So to answer your question, generally, no, the default is we will work towards reunification with this parent until the judge decides otherwise.
[00:10:13] Speaker B: Interesting. I feel like that feels maybe a little bit counterintuitive, like the parent is in jail.
So do we expect that the child will be reunited with their parent in jail?
[00:10:24] Speaker C: Good question. And the answer is, of course, no. So we don't envision that the child will be reuniting with their parent in jail.
And that's why, like I said, the discretion is really in the hands of the judge. So they might say this incarceration is an aggravating factor. So the judge is within their discretion to say reunification is unworkable. This is not in the best interest of the child. Let's adopt a different permanency plan.
But under most state statutes, or under many state statutes, that decision has to weigh different factors. So the mere fact of incarceration is not enough to change the permanency plan to termination of parental rights. The judge has to make certain findings like the length of incarceration is simply too long. The nature of the charge involved grotesque violence or something about the safety of this particular child. And so mere incarceration in most states is not enough to order termination. Instead, the judge has to weigh factors. And this makes sense, right? Like, maybe at first glance, it seems a little bit unintuitive, but just think about, there's a lot of parents who aren't serving super lengthy sentences. Like, there's a lot of parents who will be incarcerated for a few months, or maybe they were working with the child welfare agency and then during the pendency of that case, became incarcerated. So they already have a relationship with a child welfare worker, They've been working a permanency plan, and then they become incarcerated. Right. It's like, in those cases, it makes sense, especially insofar as the parent is going to be released or like, we know that's on the horizon. It makes total sense that the welfare agency should be continually working with them.
Otherwise, anytime a parent became incarcerated for, you know, 15 or more months, they would automatically lose their rights or their parental rights. Right. And so it, it does make intuitive sense, just when you crack a little bit below the surface that, yeah, these parents should still be engaged in this process even if they are incarcerated.
[00:12:35] Speaker B: Got it. So it sounds like it's. It's pretty uniquely difficult to. To go through this process for incarcerated people.
But you also talked about permanency plans. So does incarceration pose any barriers to the permanency plan?
[00:12:50] Speaker C: Yeah. So first, there are really meaningful barriers to court participation.
So like I mentioned, the Adoption in Safe Families act requires. And so accordingly, state laws provide that courts should have regular hearings. And these are regular permanency hearings where they basically assess the progress of the permanency plan. What needs to change to achieve permanency.
Parents have constitutional rights to participate in these hearings, but incarceration makes that really difficult.
So most state laws provide that parents, incarcerated parents do not have the right to attend hearings in person. An absolute right to attend hearings in person.
And so what that means is that the judge is often just making a judgment call about whether the parent should be transported to the hearing to participate in person or whether they should remain at their facility where they're incarcerated.
And because transportation to and from prison is often very costly, especially considering how far away many people are incarcerated from their homes, judges will often choose to just have a virtual hearing if that parent is included at all. And virtual hearings can pose access to justice issues just in general. So think about if you're, you know, sitting in the courtroom, sitting next to your attorney, physically sitting next to them, if you ever have, like, a spontaneous comment that you need to make or just some kind of important information to share. You can lean over and literally tell your attorney, like, hey, you know, this is really important, or whatever. You can consult with your attorney in real time.
But if you're sitting on a zoom screen, it's really difficult to have that spontaneous discussion. Now, of course, there are breakout rooms. You might say, like, judge, I need to talk to my attorney. And then they can put you two into a breakout room. But that's obviously a much more convoluted process than simply having to lean over. And so we can imagine that as a result, that just happens a little bit less. It's just more difficult to do that whenever you're incarcerated. And it makes sense why we don't really see these kind of accommodations or just like, maybe thoughtfulness with respect to how to accommodate incarcerated people during these virtual hearings. So if we look at the Adoption and Safe Families act and we look at the chapter titled Court Processes, no mention is made at all about incarcerated parents or how they should be accommodated during these hearings. And so we don't have a lot of guidance on what that should look like. And so very often, it just doesn't look like access to justice at all. And we just have these hearings where the parent really can't at least meaningfully consult with their attorney as you. As one would in person.
Now, we also have just the general problem with virtual hearings about connectivity. If you get disconnected from the hearing, obviously that's an issue.
[00:15:59] Speaker B: Well, what else is maybe unique about incarceration and in these virtual hearings?
[00:16:05] Speaker C: Yeah, that's a really good question. So incarceration can pose really special problems. So you might be thinking, like, you know, any. Anytime somebody joins by Zoom, they're, you know, it's. It's difficult to consult in real time. Like, what's the big deal? But at least for other clients or other parents, they can freely communicate with their attorney in the weeks and days leading up to the hearing. Right. And so being able to consult in real time may not feel or be as fatal, but for incarcerated parents, they have to pay to call or to write their attorneys. And so that makes things a lot more difficult to prepare.
And it just feels a little bit foreign to us because you think, like, well, in criminal proceedings, like in many states, those conversations with your attorney, like, you have a sixth amendment constitutional right to counsel. And so that includes, of course, being able to freely communicate with them. But we have to keep in mind these are civil proceedings, and so there's no constitutional right to counsel in these proceedings. So if you want to speak with your attorney, you're going to have to pay to do that.
And so preparing a defense looks a lot different when you're incarcerated in these cases.
Also, the just video communication equipment in jail is notoriously bad.
The connectivity is notoriously bad, and so the possibility of being disconnected is a lot greater.
[00:17:34] Speaker B: So you also talked about permanency plans. Does incarceration pose any barriers to the permanency plan?
[00:17:41] Speaker C: Yes. So there are pretty massive barriers to achieving your permanency plan as an incarcerated parent. So first is just connectivity with your caseworker. So really, the same barriers that exist to contacting your attorney exist to contacting your caseworker.
So obviously, if you want to call them, you have to pay to do that. If you want to write them, you have to pay to do that. So that just makes it just baseline a lot more difficult.
But also, there's very often a lack of coordination between the child welfare agency and the incarcerated parent. So we see in practice that some parents report not hearing from their caseworkers for months on end and having no clue where their children are placed, how they're doing, what the parent needs to do to move further in their permanency plan. And so that's a huge issue, especially insofar as the agency is supposed to be working with that parent and is supposed to be making reasonable efforts with that parent. So we see this in practice.
A study by Adela Beckerman at Florida International University showed that 28% of mothers in New York State prisons with children in foster care were not notified of their upcoming hearings, 49% of them did, did not receive any letters from their child's caseworker, and 68% of them did not receive a single phone call from their caseworker during the pendency of their incarceration.
So, like I mentioned, that's obviously a big problem, right? How do you progress in your case if you can't even speak to your caseworker and know where you are in the process or how to get connected with things? And like I mentioned, courts can be a very important change. Check on those efforts. So the court can, you know, kind of be an enforcer and say, you guys haven't spoken to this parent for months. You didn't make reasonable efforts. But in practice, we actually don't see that happen a lot. So a 2025 analysis of 348 child welfare cases found that in every single one of them, the judge ruled the agency had made reasonable efforts towards reunification. And so we see that judges are really deferential to the findings and to the efforts of agencies. And this certainly isn't necessarily a bad thing.
There are good reasons for this.
One of the most pertinent is that like I said, under the Adoption and Safe Families act, funding is tied to reasonable efforts. And so the court knows, like if I find there's no reasonable efforts here, the agency is going to lose their funding with respect to this child. And that's a really serious sanction, especially insofar as we remember the court is kind of a partner with the agency in these cases and of course with the parent.
[00:20:33] Speaker B: Right.
[00:20:34] Speaker C: We're trying to work towards a permanency plan. And so that's just a really serious sanction to order of the agency.
Also, the court views these caseworkers as experts, right? They're the ones on the ground.
They are the ones who kind of know the situation really intimately. And so it makes sense why you'd want to defer to them. And also, of course, I mean, caseworkers are well intentioned too. It's not like they just don't care to contact these parents, but it's just a lot more difficult to contact a parent who's incarcerated. And so the court just doesn't want to penalize them whenever, you know, maybe there's good reasons to not be consulting with the parent as much as they might otherwise like to.
It's also really difficult just to complete your permanency plan, period. Even if there was perfect coordination between the welfare agency and the parent. So like I mentioned, reunification is often conditioned on certain tasks like visitation or completing parenting classes. And it's just difficult to do that from jail. A lot of these services simply aren't offered and the jail certainly has no obligation to provide them or to accommodate the parent by providing them. And so a lot of times it's kind of up to the parent and up to the caseworker to just find these services and to make it work. And so if there is no coordination between the caseworker and the parent, that's going to be really difficult for the parent to make any progress.
[00:22:01] Speaker B: So what about attorneys? Can attorneys help the parent achieve their permanency goals?
[00:22:06] Speaker C: Well, I'm really glad you asked.
Like I very briefly mentioned, in these cases, there actually is no constitutional right to counsel. So in child welfare proceedings, so state laws can provide that the parent has a right to counsel, but they certainly don't have to. And so in a lot of cases, these parents don't have counsel to help them.
We've also seen the Supreme Court even rule there's no right to counsel when the permanency plan is termination of parental rights.
So when the parent is at risk of permanently being severed legally from their child, having no rights to the child, no legal connection to the child, we still don't have a constitutional right to counsel there.
And so this presents in practice a really huge access to justice problem.
Counsel is critical to safeguarding parents rights in these proceedings, especially because these proceedings are so procedurally unique for a lot of parents. It's like, even if you've been involved maybe in the criminal system, this just looks so different.
So it's just so much more difficult to represent yourself and to make any headway without counsel.
But to answer your question, if an attorney was present, that could be a huge help. Obviously, the attorney could assist the parent in, in locating services, and the attorney could challenge the reasonable efforts determination or the reasonable efforts findings of the agency and say, hey, no, you guys didn't make reasonable efforts, and so you should be sanctioned for that.
[00:23:40] Speaker B: So where do we go from here?
[00:23:42] Speaker C: Sure. So I think even though this feels like a really big problem, I think in practice there is a lot that can be done to remedy this access to justice issue. So first, states have a lot of leeway in enacting federal law, and specifically the asfa to make it more accessible and deferential to a parent's particular circumstances. So in context, the ASFA kind of like sets the floor. And then states have absolute authority, if they'd like to, to kind of go beyond that and to require more of the agency or to require more of courts. So that's one really viable solution. And we've seen it kind of implemented in several different states. So New York is kind of a trailblazer on this front. New York has passed the ASFA, explained, a discretion bill of 2010, which basically amends New York's child welfare law to reflect the special circumstances of incarcerated parents or criminal justice involved families generally.
So in New York, they implement the ASFA to say that foster care agencies have discretion to delay findings of termination of parental rights when the parent is incarcerated or participating in a drug treatment program. And so they kind of give the, the agency some leeway or some flexibility. And so in that way, we see that states can require a lot more of agencies to say, hey, whenever a parent is incarcerated, your reasonable efforts have to look a little bit different. So federal law says you must make reasonable efforts, period.
State law can say, whenever a parent is incarcerated, this is what reasonable efforts look like.
You have to facilitate transportation, you have to call them at least once a month. Right. So states can implement that in a way that is tailored to an incarcerated parent's positioning and make sure that they can actually be meaningfully participatory.
We can also see a lot of benefit from more coordination between the child welfare agency and the parent.
So again, we see a lot of states that are acting kind of as trailblazers on this front. So for example, in Los Angeles, they have implemented a program that basically has these almost liaisons between the child welfare agency and the incarcerated parent. And their sole job is to ensure that there's coordination and to ensure that the parent is actually being able to meaningfully participate.
And so that can be a huge help. Especially because the caseworkers are already so overburdened by their caseloads and already have so much to do. Kind of having that liaison to coordinate with the facility and to coordinate with the parent can be a huge help.
Also, just educating caseworkers about their obligations to incarcerated parents can be really huge. You know, like I said, caseworkers are well intentioned and it's not like they don't care or they don't want to work with these parents, but to them it might just be like, how on earth do I do this? Like, it's just so, so difficult. There's so many barriers. And so educating them about the fact that they still do have to make reasonable efforts and how in practice they can do that can be a big help. And finally, while I know this might feel kind of pie in the sky, it would be huge if counsel could be guaranteed you in these cases, at least where the permanency plan is termination.
If you're a parent listening to this, I think you would probably agree with me that you would rather go to jail for a year than lose your parental rights to your child.
I think we could agree on that.
And yet where we acknowledge that these stakes are so high and that the consequences of these matters are just so monumental in a person and in a child's life, we don't recognize a right to counsel there.
And so I think if we could just recognize here, counsel is essential here, counsel is a critical safeguard to the parents rights. Here counsel should be provided.
That could make a really big difference.
[00:28:11] Speaker B: Yeah, I don't think that's pie in the sky at all. And I really appreciate you laying this all out for us. So thank you so much, Mia.
[00:28:18] Speaker C: Yeah, thank you so much for having me and for giving me the opportunity to talk a little bit more about my blog. I think that this is a really big Access to Justice issue that more of us should be talking and thinking about for the benefit of our parents and for the benefit of our children.
[00:28:36] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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Here's a sneak preview of what we'll bring you next week.
Today's episode features my recent interview with Chief Judge Wilson of the New York Court of Appeals, in which we discuss the challenges currently facing litigants in New York Family Court. The topic of his 2026 State of the Judiciary address.
