America is a country that believes in second chances and loves nothing more than a comeback. But try telling that to the formerly incarcerated women who have their newborn children forcibly taken away by authorities for the flimsiest of reasons.
Just over 2 million women are jailed every year in the United States, and 80% of them are mothers. Roughly 55,000 women are pregnant when they enter.
When women are incarcerated — most often for non-violent crimes — family bonds are always affected. Alternative arrangements need to be made for the care of their children, and most parents never have a single visit with their children while incarcerated. Trying to reunify their families after they are free is difficult, but the treatment faced by women who give birth after their release is especially brutal.
With the largest local child welfare agency in the United States, Los Angeles County is ground zero for this problem. When a pregnant person arrives at the hospital to give birth here, it is standard procedure for staff to ask if the parents have ever been investigated by the L.A. County Department of Children and Family Services (DCFS), the agency charged with promoting child safety and well-being.
For mothers who have been previously incarcerated, the answer is often yes. That is because frequently, law enforcement loops DCFS in when arresting a primary caregiver.
After the previously incarcerated mother answers that she has had involvement with DCFS, the hospital makes a referral to DCFS, which then investigates the mother’s fitness to parent with the apparent purpose of removing the newborn into foster care. In this context, our practice has seen an emergency DCFS social worker immediately detain a previously incarcerated mother’s newborn after a nurse reports something as simple as the mother falling asleep while recovering from a cesarean section and nursing the newborn in her hospital bed.
If DCFS social workers permit the previously incarcerated mother and her newborn to return home from the hospital, DCFS still requires a social worker to make a home visit shortly thereafter. The home visit is the next step in determining whether the mother should be allowed to keep the newest member of her family. Some of the things that can sink a mother’s chances during these social worker visits include having a partially empty fridge or an unrepaired hole in the wall.
Based on these minor infractions, DCFS can remove the baby. Unfortunately, incentives are baked into the system that end up promoting these outcomes. In California, far from being neutral expert witnesses, social workers are the ones who bear the burden of proving parental unfitness in dependency court.
States are also financially motivated to pursue adoptions under the federal Adoption and Safe Families Act. California receives between $5,000 and $12,000 for every child who’s successfully adopted — depending on age and any special circumstances — but only if the number of adoptions increases each year. Over the past two decades, California has received more federal incentive payments for finalizing adoptions than any other state, except Texas.
While the primary goal of the law is to prevent children from lingering in foster care, one undeniable byproduct is the routine separation of previously incarcerated women from their babies.
So how do we help these women avoid having their newborns taken from them on shaky grounds?
For starters, they should get legal support (i.e., pre-petition representation) as soon as the county social worker begins the process of evaluating their parenthood. Currently, the parent will be appointed an attorney only after a social worker brings a dependency court action and detains a child. That attorney usually makes first contact with the parent on the day of, or shortly before, the first dependency court hearing. That is too late in the game.
Contrast this with the process in a criminal case. When someone is arrested, they’re read their rights and notified that they have the right to an attorney. Even before a prosecutor brings charges, they have a right to legal counsel and to have that lawyer advocating for them every step of the way. There is no comparable right for child welfare cases, even though what’s at stake is the constitutional right to parent.
Additionally, these new mothers should be afforded holistic legal services to help navigate all interactions with the courts necessary to petition for or defend custody rights during and after incarceration. These encounters range across dependency courts, family courts, probate courts and sometimes criminal courts if there are unresolved charges.
Even better, mothers should have access to family reunification services while they are still incarcerated to ensure they have a meaningful right to visitation with their children (a disrupted bond will be an obstacle for family reunification in all courts), follow court orders, and get notice of hearings. Tragically, mothers have lost their children to involuntary adoption at hearings that occurred without notice while they were incarcerated.
A New Way of Life is providing these holistic legal services as well as piloting a family reunification clinic within Century Regional Detention Facility, a jail in L.A. As the number of incarcerated women climbs nationally, this problem is only growing. We are also working with state Senator Sydney Kamlager to pass SB 1085, which would prohibit a child from being a ward of the juvenile dependency court due to conditions of poverty, another essential step. And on the federal level, there are growing calls to repeal or amend the Adoption and Safe Families Act, which is essential.
Taking these steps to level the legal playing field for previously incarcerated mothers will deliver immediate change for women as they reenter society and try to protect their families.
Let’s give these women the second chance they deserve and stop needlessly separating committed mothers from their children.