By Mia Robertson, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
For a child, parental incarceration is often more than separation from a parent. It is a legal gateway into the child welfare system. Between 2006 and 2016, tens of thousands of children entered foster care because a parent was incarcerated. This custody change triggers a civil legal process that determines whether and how the family should be reunified. Parents have rights to participate in these proceedings, but incarceration erects barriers that can make meaningful participation difficult. Partially as a result, one in eight of them lose their parental rights. This blog explores and proposes solutions to these barriers that, if left unchecked, can effectively lock incarcerated parents out of the child welfare process.
Overview of the Child Welfare Process
State law governs the child welfare system. However, federal law plays an important role in shaping state child welfare policy. Through statutes like the Adoption and Safe Families Act (“ASFA”) and the Child Abuse Prevention and Treatment Act (“CAPTA”), Congress conditions federal funding on compliance with specific policy requirements. State law typically mirrors federal law to maintain this funding.
When children enter foster care, federal law requires that the court adopt a “permanency plan,” or a strategy by which the child can safely leave state custody. Permanency plans range from reunification with a parent to termination of the parents’ rights. While judges have discretion to decide permanency plans, the ASFA requires that reasonable efforts be made towards reunification of the child with their parent. Reunification is often conditioned, though, on the completion of tasks like parenting classes, visitation, and drug treatment. Only once these tasks have been completed may a child return home. The fact of parental incarceration does not negate a child welfare agency’s duty to seek reunification.
Courts monitor the progress of the permanency plan through regular hearings. Parents have the right to be notified of and to participate in these hearings, though state laws vary on whether they have the right to be represented by counsel.
Physical and Technological Barriers to Meaningful Court Participation
Child welfare hearings are interactive and iterative. They depend on ongoing dialogue among the court, child welfare agency, and parents to monitor and amend permanency goals. A parent’s attendance at and participation in these hearings is thus crucial. Incarceration presents barriers to meaningful court participation.
In most states, incarcerated parents do not have a right to attend hearings in person. Judges thus decide whether the parent should attend the hearing in person or by videoconference. Unsurprisingly, most judges opt for incarcerated parents to attend the hearings virtually because in-person court appearance requires costly transportation to and from prison. If not implemented well, virtual attendance can raise access to justice issues.
First, remote proceedings can alter the client-attorney relationship. If a court does not provide break-out rooms in its video-conferencing software, virtual attendance reduces opportunities for parents to confer privately with counsel, hindering counsel’s ability to obtain information from the parent and prepare a defense. A survey by the National Center for State Courts found that “37 percent of courts using videoconferencing have no provisions to enable private communications between attorneys and their clients when they are in separate locations.” This challenge is salient for incarcerated parents, who in most states must pay to call or even write their attorneys.
Remote hearings also risk technical challenges. Videoconferencing services in prisons are often grainy, glitchy, and poor in quality. These deficiencies can make it difficult for parents to maintain a stable connection to the hearing.
Communication Barriers Impede Case Progress
Poor coordination with caseworkers can also leave parents effectively locked out of the process. First, prison policy can unduly restrict communication with caseworkers. Phone costs, long distance, and limited, unpredictable visiting hours make planning and conversations difficult. If the parent cannot reach the agency, they are left with little information about where their children are and how the permanency plan is progressing. The lack of information can determine a parent’s case because the court may view a lack of demonstrated involvement with the agency as a lack of investment in the children.
Incarceration also hinders a parent’s ability to comply with a plan to regain custody. Case plans often require participation in services (parenting classes, therapy, supervised visitations) that prisons do not provide. Prisons and jails are not required to accommodate a parent by providing services, nor are child welfare agencies required to accept prison programming as satisfactory progress towards reunification. The result is a perfect storm in which a court requires the parent to perform tasks that the state does not allow the parent to perform. In one 2011 case, a caseworker testified that a father had made no progress on his treatment plan because “there was nothing [they] could provide [the father] while he was in jail.” The court terminated his parental rights.
A lack of coordination between child welfare agencies and parents amplifies these barriers. While federal law requires caseworkers to make reasonable efforts towards reunification by engaging with parents, coordination is often minimal. For example, some incarcerated parents report receiving no information from their caseworkers for months. In one study, 68% of mothers in New York state prisons with children in foster care reported that their caseworker did not call them a single time.
Courts can play an important role in checking this apparent lack of coordination, but courts are often deferential to the findings of child welfare agencies. A 2025 analysis of 348 child welfare cases found that, in every case, the judge ruled the agency made reasonable efforts towards reunification.
Counsel is Not Guaranteed
Unlike criminal proceedings, child welfare cases do not always feature counsel for parents. State laws vary on whether parents have a right to counsel. The United States Supreme Court has held that the federal constitution does not guarantee a parental right to counsel in termination proceedings, and thus few think that a federal right exists when courts consider matters short of termination. The factual and procedural complexity of child welfare proceedings suggests that quality legal representation is an essential safeguard of parents’ rights. An advocacy piece by the University of Washington found that providing counsel to indigent parents results in higher permanency rates and more timely permanency for children.
The Path Forward
Access to justice requires that incarcerated parents be equipped with the tools, information, and support to engage meaningfully in their cases. One promising model for enhancing access to justice is the integration of liaison and peer support roles. Programs such as Los Angeles’s Incarcerated Parents Program function as formal liaisons between social workers and incarcerated parents, facilitating visitation, service completion, and communication. These roles can be transformative. Parents become empowered, integrated members of their cases, equipped with support and the ability to progress. Social workers gain standardized procedures that ensure incarceration is considered from the outset. When such supports are built into agency operations, engagement with incarcerated parents becomes streamlined.
States can also strengthen the federal “reasonable efforts” standard, which at present is deliberately broad and leaves discretion to states. Some states require incarceration-specific reasonable efforts. In Florida, for example, caseworkers must coordinate with correctional facilities to ensure parents participate in proceedings and can accomplish their service plan. These statutory models offer guidance on how reasonable efforts can be responsive to a parent’s carceral status.
Finally, guaranteeing quality counsel is essential. Providing quality counsel ensures that parents can assert their rights, advocate for appropriate services, and challenge agency decisions when necessary. While resource-constrained states might resist guaranteeing counsel, some argue that the right pays for itself. One publication suggested that in New York, guaranteeing counsel–and the accompanying reduction of time spent in foster care–saves the state up to $40 million annually.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.