Bill Could Terminate Prisoners’ Parental Rights

A bill to allow courts to strip away the parental rights from incarcerated people was ripped in public testimony by people who said it could well be unconstitutional and cause more harm than good.

The bill, AB627, could create new pressures on the court system and delay getting permanent homes for children, according to the Department of Children and Families.

The bill was introduced by State Rep. Barbara Dittrich and State Sen. Duey Stroebel as part of a package of bills that Dittrich claimed was designed to seek “both the best welfare of the child while ensuring parents’ rights are upheld.”

Many who testified at a public hearing on the measure earlier this month did not think it would do either of those things.

The bill would allow courts to take parental rights from anyone sentenced to at least four years in prison.
​
DCF, which in a fiscal estimate warned of the potential delays in finding permanent homes, also submitted testimony opposing the bill.

“First, parental incarceration is already a factor that may be considered in a TPR, and adding a ground making parental incarceration on its own a sufficient basis to terminate parental rights could raise constitutional concerns,” the agency said.

Elements of the bill may be “unconstitutionally vague, leading to significant litigation.,” the agency said. The testimony was submitted by Deputy DCF Secretary Jeff Pertl; Division of Safety and Permanence Administrator Wendy Henderson; Legislative Advisor Amanda Merkwae; and attorney Rachel Nili of the DCF Office of Legal Counsel

The bill would allow a judge to determine whether a parent is likely to be incarcerated for “a substantial period of the child’s minority,” the officials said.

“This language essentially asks the fact-finder to speculate as to whether the parent is going to re-offend and be incarcerated again in the future once they are released without outlining how one would predict whether it’s likely a parent will be incarcerated for a substantial period,” they said.

The bill also would disproportionately affect children of color, who are overrepresented in the child welfare system, they said.

“Finally,” they said, a “significant bond and relationship may exist or can be formed between an incarcerated parent and their child.

Incarcerated parents continue to exercise responsibility by “maintaining contact through letters, phone calls, and visitation, and being emotionally available for their child, and the parent may reunify with their child and continue parenting them upon release.”

The Ho-Chunk Nation Legislature said the bill would “result in a disproportionate impact on Indian families. American Indians represent a disproportionate rate of those incarcerated in Wisconsin. In 2013, Wisconsin had the highest rate of American Indians incarcerated in the country. And those rates do not seem to be going down.”

“The Indian Child Welfare Act (ICWA) requires that active efforts be provided to prevent the breakup of an Indian family…” the Ho-Chunk testimony said. “Yet, over and over conditions recommended from county social workers for incarcerated parents are essentially nothing…. Instead of making it easier to terminate parental rights, the system should be enhanced on the prevention side. When a parent is incarcerated, they are the easiest to locate and work with. This is an optimal time to work with them on parental safety.”

The State Public Defender’s Office noted that a four-year-or-greater sentence could change or be reversed on appeal.

“There is no mechanism to allow for a termination to be undone if a person successfully appeals the criminal case,” said the testimony submitted by Adam Plotkin, SPD’s legislative liaison. “And even if there were, this will have unnecessarily created trauma for the child.”

The bill also would allow the termination of parents incarcerated now even though they had no way of knowing that their imprisonment could lead to the loss of their children.

“This raises constitutional due process issues in terms of not having provided notice in the prior case that is now leading to termination based on this new ground,” SPD said.

“AB 627 would do nothing to help parents or families,” Legal Action of Wisconsin said in prepared testimony. “Rather, it would break families apart, create additional punishments on parents already incarcerated, and violate parents’ constitutional substantive due process rights while removing judicial discretion and adding additional stress to already overburdened systems.”

“While we respect and understand the concern for the safety and well-being of vulnerable children, we do not believe that TPR based on incarceration supports survivors of violence and their children,” End Domestic Abuse Wisconsin said. “In fact, we are concerned that this legislation would do more harm than good.

“​We understand that perpetrators of violence present a danger to children and that custody and placement decisions should be made in such a way that incorporates the significant adverse effects that proximity to an abusive parent has on the child’s health and well-being. However, we also know that survivors of violence often accrue criminal records due to victimization and experience incarceration. As a result, abuse victims may be ‘likely to be incarcerated for a substantial period of time.’ ”

Registering against the bill were the ACLU of Wisconsin, Community Advocates, Disability Rights Wisconsin, End Domestic Abuse Wisconsin, the League of Women Voters of Wisconsin, Wisconsin Association of Family and Children’s Agencies, the Wisconsin Coalition Against Sexual Assault, and the Wisconsin Council of Churches.

​No organization or individual registered in favor of the bill.

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.”