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New Law Gives Parents Behind Bars in Washington State a Way to Hold Onto Their Children

Washington Governor Jay Inslee. (Photo: ThomasSoerenes / Flickr)

On May 8, 2013, Washington State governor Jay Inslee signed SHB1284, or the Children of Incarcerated Parents bill, into law. The law guides the courts’ discretion to delay the termination of parental rights if the parent’s incarceration or prior incarceration is a significant factor for the child’s continued stay in the foster care system.

Alise Hegle gave birth to her daughter while facing a seven-year sentence for her meth addiction. Her daughter was born two months early and tested positive for a small amount of meth (“.001,” Hegle clarified). Her daughter was placed in foster care. One month later, Hegle was arrested and sent to jail.

“I’d been in and out of jail throughout my pregnancy,” Hegle told Truthout. But, with her daughter in foster care, Hegle now had to contend with trying to attend custody hearings from behind bars. “I sent in seventy kites [requests] to try to get transported to court hearings,” she recounted. She repeatedly asked the guards about attorneys and social workers. Lacking money for phone calls, she was unable to call to search for resources.

Hegle’s difficulties navigating the child welfare system from behind bars are not uncommon.

One week after losing his trial, Shayne Rochester lost his son to the child welfare system. Despite having a service plan that included visitation with his son, he was sent to a Washington state prison for men across the state. “I only saw my son once in that first thirteen months,” he recounted. He spent his entire prison sentence trying to access services he would need to maintain contact and plan for reunification. “I didn’t get the services I needed till I was six months to the gate,” he told Truthout. He won his appeal and was released from prison only six days before his parental rights would have been terminated under the Adoption and Safe Families Act.

The Federal Adoption and Safe Families Act and Its Impact

In 1997, Congress passed the federal Adoption and Safe Families Act, stating that its intention was to address the number of children who seemed to linger in foster care and help these children find safe and permanent homes. However, the Act did not take into consideration the dramatic increase in incarceration, particularly for drug law violations. When ASFA was passed, only Nebraska and New Mexico excluded incarcerated parents from ASFA’s time frame if the only reason to file for termination is because of parental incarceration.

ASFA’s impact has been profound. Nationally, the number of children in foster care with living parents who have had their rights terminated increased from 60,000 in 1998 to 73,000 in 2000. A 2003 study found that termination proceedings involving incarcerated parents increased nationwide from 260 in 1997 to 909 in 2002. In contrast, in the five years preceding ASFA, the number of termination proceedings increased from 113 in 1992 to 142 in 1996.

In Washington State in 2013, according to the Children Defense Fund’s statistics, the number of children in foster care in the state is 9,533. The number of children adopted from foster care is 1,583. The report does not state how many children are in foster care because of parental incarceration, how many are eligible for adoption or how many youth age out of foster care.

In 2009, the state’s Children of Incarcerated Parents Advisory Committee recommended that the legislature consider a law to address ASFA’s timeline. No such law was considered. Once the committee lost its funding, no further meetings were held to discuss the issue.

Veteran Parents Get Organized

Despite the difficulties of maintaining contact and communicating with the court system, both Hegle and Rochester were able to reunite with their children. Both became involved with their local Parent Advocacy Committees as veteran parents, or parents who have successfully navigated the child welfare system and reunited with their children.

“I know firsthand how powerless you feel,” said Hegle. In December 2010, Hegle became the lead veteran parent of Parents for Parents, which pairs parents who have successfully navigated the child welfare system with parents currently in the system and trying to reunite with their children. “I have a purpose to be there for parents who are navigating the system, to let them know that no matter what’s going on, we can overcome the barriers and lifestyle deficiencies that brought us into the system.” In her work with Parents for Parents, she has seen many incarcerated parents miss court dates from lack of transportation from jails and prisons. “Unless they’re court-ordered, they won’t be transported to their court date,” she stated.

Upon Rochester’s release, a social worker referred him to a support group called Life Under CPS (Child Protective Services). There, he met veteran parents who connected him with housing and other resources. Rochester became a veteran parent. “It was empowering to help other parents,” he stated.

Moving Toward the Children of Incarcerated Parents Bill

In 2010 New York passed its ASFA Expanded Discretion Act, allowing foster care agencies the discretion to delay termination proceedings if parental incarceration or participation in drug treatment is a significant factor in the child’s foster care placement.

In Washington, law student Lillian Hewko heard about the Act. She met with veteran parents (and members of the King County Parent Advocacy Committee (PAC), composed of veteran parents, child welfare attorneys, people from the Administration of Children’s Services and even a retired Superior Court judge. “We talked about the New York law a lot,” Hewko told Truthout.

The following year, as a new attorney, Hewko approached Legal Voice, a women’s legal organization that had been instrumental in helping pass Washington’s 2010 anti-shackling legislation. Hewko proposed working on a bill similar to the ASFA Expanded Discretion Act for Washington. Her proposal was accepted and Hewko received an Equal Justice Fellowship to work with incarcerated mothers, veteran parents and a child welfare advocacy coalition to pass similar legislation.

SHB1284, or the Children of Incarcerated Parents bill, guides the courts’ discretion to delay the termination of parental rights if the parent’s incarceration or prior incarceration is a significant factor for the child’s continued stay in the foster care system. It does not absolve incarcerated parents from doing their utmost to participate in their children’s lives, Hewko emphasized. “Parents must show that they are maintaining a significant role in their children’s lives and it [delaying termination] must be in the best interest of the child,” she stated in her testimony before the Washington state legislature.

“DSHS [the Department of Social and Health Services] believed we were creating a ‘special class’ of parent. They were concerned that parental rights would supersede the rights of the child. But the bill is for parents who have done everything they can, but because of barriers in the legal and prison system, can’t access what they need for reunification,” she told Truthout. “Like the New York bill, this bill looks at these barriers and requires more time for attorneys, social workers and parents because of these barriers. It allows parents to have a fair chance.”

“I don’t believe it’s right for every parent to be given a continuance just because they’re incarcerated,” agreed Rochester. “Remembering his own experiences trying to navigate the child welfare system from prison, he says, “I was blessed, but a lot of parents aren’t. They need this bill.”

Terminating parental rights does not ensure that foster children will be adopted into permanent homes. The U.S. Department of Health and Human Services found that, at the end of 2011, more than 104,000 children in foster care were waiting for an adoptive family. The average age of a child awaiting adoption was eight years old and the average length of time was two years. Approximately 35% had been in foster care for over three years. The same report found that in 2011, only 50,516 foster children had been adopted – less than half the 109,456 who had been awaiting adoption the year before. And, in 2011, more than 26,000 youth aged out of foster care without a permanent family. The report did not distinguish between youth in foster care because of parental incarceration and those in care for other reasons.

Members of Washington Parent Advocacy Network and Legal Voice brought the issue before the Child Welfare Advocacy Committee. Noting the stigma against parents who use drugs or are incarcerated, Hewko recalled, “We did a lot of education to child welfare advocates about how the incarceration timeline bumps up against the ASFA timeline.”

Veteran parents also mobilized. Shayne Rochester has told his story many times to galvanize support for SHB1284. He recalls, “Just six days after my release I found myself in dependency court begging the judge not to take my son. Explaining that I tried to do all I could from prison but the services and resources were never made available to me … The judge gave me a chance and now I’ve been reunified with my son for a year.” The Life Under CPS support group held a Valentine’s Day event and a shamrock event to both raise awareness and push for action. “People sent shamrocks asking legislators to support the bill,” Rochester recalled. “They actually got form letters back thanking them for their concern.”

Both Rochester and Hegle have testified about their experiences and the bill’s importance. Hegle has also spoken about the bill, appearing on radio and even speaking about it in her college classes. Hegle received little negative response. “The statistics showing the impact [of termination] on kids is so strong that the people I’ve talked to get it,” she told Truthout. “Professionals working in the field – attorneys, social workers – get it.”

Hewko agrees. “A cultural shift is occurring. I’ve met individual social workers who believe these changes need to occur.”

Some foster parents have also supported a second chance for incarcerated parents. Sue Lewis is a visit supervisor for the Department of Human Services as well as a foster parent who, in 27 years, has fostered 400 children. “If parents are incarcerated and doing what they’re supposed to be doing, they should be given the chance to do what they gotta do,” she told Truthout. “Just because they’re incarcerated doesn’t mean that they don’t love their children.” She recounts taking one foster daughter to visit her mother in prison. “I left early on Saturday morning to drive there and visit. We spent the night there so she could see her mom twice – both Saturday and Sunday morning. The mom was so excited. But there aren’t a lot of foster parents willing to do that.”

About the bill, Lewis says, “At least there’s going to be a chance. Like in Shayne’s case, he had a very short period of time. He was lucky and he’s now parenting his kids. If he hadn’t gotten out [of prison] when he did, he wouldn’t be able to do that.” As a foster parent, she’s seen the low reunification rate of foster children and their birth parents. “But,” she points out, “if the parents aren’t participating [in visits, meetings, other benchmarks] because they’re incarcerated, that’s a different story.”

Not every foster parent feels the same way. Gary Malkasian, a foster parent and founder of the Foster Care Justice Alliance, testified against the bill before the Senate Human Services and Corrections Committee. Hewko also reported receiving phone calls from several foster and adoptive parents opposing the bill. “Once people saw the bill and saw that [incarcerated] parents had to show that they were working to maintain a relationship with their children, they came around,” she said.

Bill Becomes Law

On May 8, 2013, Washington State governor Jay Inslee signed SHB1284, or the Children of Incarcerated Parents bill, into law. Hewko credits the efforts of veteran parents in pushing the bill. For those wanting to push similar legislation in their home states, she advises, “Connect with existing groups of parents who have been involved in the system. What do they wish to see? Challenge views on how they’re seen as parents.”

Hegle agrees. “People who have been impacted by the experience – it’s so important to get down there to testify. If you can’t testify in person, write letters of support or call your legislators.” She also points out that having a network of supportive organizations was pivotal to the bill’s success. “There are a lot of hours that Lillian Hewko and others put in.” The day SHB1284 became law, Hegle said, “My daughter and I are thriving today because we had the opportunity to reunify. I think about all the kids who are going to be able to hug their parents whom they’ve been away from for a long time. And I’ve been able to give back to my community because I’ve had the opportunity to overcome incarceration and addiction and be with my daughter.”

Both Shayne Rochester and Lillian Hewko were present at the signing. Shortly after meeting the governor, Rochester told Truthout, “I was obviously blessed through my whole process. Parents in prison need more time and special considerations. I don’t know where myself or my son would be today if I had lost him.”

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