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  #1  
Old 03-28-2004, 06:19 PM
Oso's Girl Oso's Girl is offline
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Default Visitation Rights for Incarcerated Parents

Can someone please help me find information concerning past cases that have been filed where the incarcerated parent is seeking visitation rights with their child? I attempted to gather information from a legal assistance firm here in our state (Illinios) and was told that there are no legal rights to visitation for incarcerated parents. I found this to be outlandish and I just can't believe it's true. Does anyone know anything different?
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Old 04-04-2004, 07:57 PM
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I'm from CA so I've been hanging onto this...just in case!
I highlighted the main things!!!!!!!!!! LOL
Teri


http://www.courtinfo.ca.gov/programs.../depend/19.htm


Dependency Case Law

In re Dylan T. (1998) 65 Cal.App.4th 765 [76 Cal.Rptr.2d 684]. Court of Appeal, Fifth District.

The juvenile court denied visitation to a mother while she was incarcerated. The mother had been incarcerated after she was convicted of possession of a controlled substance when the child was one year of age. The juvenile court had found that visitation while the mother was incarcerated was inappropriate because the child's tender age. The mother was incarcerated at Lerdo Facility, a farm with an open visitation area.

The mother appealed, contending that the juvenile court abused its discretion when it refused all jail visitation based solely on the child's age. The mother further contended that visitation was crucial to reunification, that visits while she was incarcerated were not shown to be detrimental, and that the juvenile court failed to make an informed decision on the question of visitation. The Court of Appeal agreed, finding that a juvenile court cannot determine that visitation with an incarcerated is detrimental to a child based solely on the child's age without further showing.

As a threshold issue the court found that the issue was not moot even though the mother was in a residential treatment program and no longer in jail. Specifically, it found that her release from jail did not remedy the alleged damage because her relationship with the child had eroded and because she was still subject to incarceration. Furthermore, the court noted that since the child was under three years old, the case was on a dependency fast track and reunification could be terminated after six months.

On the visitation issue the court began by reiterating that visitation must be provided to an incarcerated parent absent certain circumstances. Welfare and Institutions Code section 361.5 sets forth the requirements for family reunification services for incarcerated parents. Specifically, it requires a parent to be provided reunification services unless the court determines by clear and convincing evidence that providing the parent with reunification services would be detrimental to the child. The court reviewed case law dealing with incarcerated parents and noted that "[w]hat can be gleaned from these cases is that visitation between an incarcerated parent and a minor cannot be arbitrarily determined based on factors which do not show by clear and convincing evidence that visitation would be detrimental to the minor." The court noted that although the child's age is a factor in considering whether visitation should be granted, it found that age alone does not constitute a reason to deny visitation. The court found that had the Legislature wanted to restrict visitation between an incarcerated parent and a young child, it would have done so explicitly. Here, age is just one factor for the court to consider when determining whether to grant visitation.
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Old 04-05-2004, 04:20 PM
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Thank you VERY much! I think that this will be of great use in our petition!
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Old 04-05-2004, 04:54 PM
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Oso's Girl, what type of petition are you filing? Who is refusing the visitation between child and incarcerated parent? Here's some information are groups that may be helpful:
It's sad to think that there are all kinds of programs for incarcerated mothers to maintain contact with their children, but barely anything for fathers.

C. Information About Programs for Incarcerated Parents, their Children and Families
Directory of Programs and Organizations: Directory of Programs Serving Families of Adult Offenders, edited by James W. Mustin, available from the National Institute of Corrections, www.nicic.org, 800/877-1461, provides an extensive state-by-state listing of programs and organizations focused on children and families of offenders.

Establishing a Program: For information about establishing a program in your community, contact the Family and Corrections Network (FCN) at 804/589-3036 or access the website at www.fcnetwork.org. FCN is a membership organization that provides information about programs serving families of offenders and offers consultation and technical assistance in program development.

And here's another site:

http://prisonerswithchildren.org/

Hope you find these helpful. Let me know the progress of your petition.
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Old 04-05-2004, 09:42 PM
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Oso's Girl:

Is your petition just for your state? We need something here in CA.!

Right now I just stopped at home in between things I have to do. When I get back I can send you more cases. I didn't realize you wanted the case laws for a petition!

Well, as usual, I started this over an hour ago and then figured I would search a little bit for you. I really never found anything with anything that would be to your benefit but have 2 emails out asking about Incarcerated Parents Rights. Will let you know what they say when I get responses!

Did you check out 'case laws' on the site I posted to you above? It has other case laws but the one above was the only one that I saw that was 'positive'. I could have overlooked something though.

Okay. Now I had better go and do what I was supposed to have done earlier!

Teri
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Old 04-06-2004, 08:27 AM
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Jus' Mom and Grandma:
Thank you VERY much! I am so thankful that people are helping me with this, because as you know sometimes research can be very overwhelming and it can take it's tole on my brain! You are both being so helpful. I have been to check out that site and so far, I have not found anything that's too positive. THere is this site..........Child Welfare league of America that has been helpful. Anyone else who is searching for info about this, I recommend that site.

The petition we are filing is to the court. The reason he cannot see his daughter is because her mother will not sign the consent form for her to visit with someone else. We are of course hoping that she can come with me and that the court will grant transportation privileges to myself as I am the sole visitor anyway. However, we would settle for her to grant that privilege to his Mother and I would take them both. We have the forms from the prison and are trying to get her to sign them. Her reasons for not signing them is that he is no longer with her.......he hasn't been since before he was locked down he has been with me and she has never been happy about losing him. It seems horrible to punish the child for this. We hope that we can convince her to submit paperwork for his daughter to visit with us, but if she does not, we are preparing to petition the court for visitation rights. That is why I am gathering all this info!

Again, thank you SOOOOOo much for your help. Anything that you find is greatly appreciated!

Quote:
Originally Posted by Jus' Mom
Oso's Girl:

Is your petition just for your state? We need something here in CA.!

Right now I just stopped at home in between things I have to do. When I get back I can send you more cases. I didn't realize you wanted the case laws for a petition!

Well, as usual, I started this over an hour ago and then figured I would search a little bit for you. I really never found anything with anything that would be to your benefit but have 2 emails out asking about Incarcerated Parents Rights. Will let you know what they say when I get responses!

Did you check out 'case laws' on the site I posted to you above? It has other case laws but the one above was the only one that I saw that was 'positive'. I could have overlooked something though.

Okay. Now I had better go and do what I was supposed to have done earlier!

Teri
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Old 04-06-2004, 09:26 AM
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That is practically identical to my son and his daughter's situation!

So, that is what I'll have to do huh...petition the court.

Teri

PS: Not done looking for you just got carried away signing up for freebies last night! Pretty bad when the excitement in my life is getting a freebie sample in the mail.
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Old 04-06-2004, 12:07 PM
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Well, the parent (non custodial), your son would have to file suit against the mother (custodial parent) and then leave the decision to the court as to whether or not visitation will be ordered. Many judges will say that prison is not a good environment and is detrimental to the child. So, I am trying to find evidence that counters that to help in the decision.
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Old 04-07-2004, 02:22 AM
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What you said is pretty much what I was told. I'll tell you all that maybe tomorrow sometime (I had left the WordPad on my desktop all day today. Every time I found something that would help you, I just add to it. Some of the info I don't know that I can find again, but, anyway A friend asked me to email her a pdf file I have which I did. For some reason right when I clicked my comp froze up and I lost everything. I'm going to have to remember to save things periodically). Anyway, after losing it all I had a hard time getting back into it again.

Here is a start anyway. I had emailed the Family and Corrections Network asking, If Incarcerated Parents have Visitation Rights. I got this back today:

Jim Mustin
Family and Corrections Network
32 Oak Grove Road
Palmyra, VA 22963

434/589-3036
434/589-6520 Fax

www.fcnetwork.org

The "rights" question sounds like a legal issue. FCN doesn't
give any legal advice so I can't answer that.

We have some material in the Incarcerated Fathers Library at
www.fcnetwork.org/library/library.html Basically, our
material says that incarcerated fathers can have a terrible
time but those who persist sometimes eventually succeed in
building relationships with their children. Sometimes, the
best an incarcerated father can do is write to the child and
save the letters so that some day the child can see that the
father cared.

A great person for you to contact about this issue is:

Michael Carlin, FatherRight, Center for Children of
Incarcerated Parents, PO Box 41-286, Eagle Rock, CA 90041,
http://www.e-ccip.org, ccip@earthlink.net, 626/449-2470. He's an expert.

Incarcerated Fathers and Their Children

Only about one fifth of incarcerated fathers live in a two-parent family with at least some of their children before their arrest. These are usually the fathers that have stable, long-term partnerships with their children’s mothers and everyday parenting relationships with their children. They are also the men most likely to retain a partnership with the mothers of their children after they go to prison and are usually part of the 10-20% of incarcerated fathers who have visits (and other types of communication) with their children at least monthly.

At the other end of the spectrum are the fathers who have little or no relationship with their children. This group includes most of the 21% of fathers in prison who have no contact at all with any of their children during their incarceration. Many of these fathers lost contact with their children long before getting locked up

In between is the largest group of incarcerated fathers, those who had contact with their children before getting arrested, but did not live with or provide daily care for them. The Department of Justice has found that over 60% of imprisoned fathers did not live with any of their children or the mothers of their children immediately prior to incarceration. It is fathers in this group that appear to be most at risk for losing contact with their children during incarceration.

How Do Incarcerated Parents and Their Children Lose Contact?

Perhaps the biggest factor in the loss of contact between incarcerated parents and their children is the character of the relationship between the parent and the children’s caregiver. The less friendly the relationship between prisoners and their children’s caregivers, the more likely they are to lose contact with their children.

Most of the children of incarcerated fathers live with their birth mothers. Because male prisoners typically have had their children by two or more women, only a minority of these fathers and mothers are in an on-going partnership when the father gets arrested. In addition, families of prisoners commonly experience stressors---such as poverty, discrimination, unemployment, substance dependency and domestic violence---that make it likely that the partnerships between male prisoners and their women will be fragile. In fact, the partnerships of fathers in prison and their children’s mothers often end during the father’s incarceration. These separations are the most common cause of loss of contact between male prisoners and their children.

However, even though many women prisoners were not living with their children before incarceration, the children were often living in the care of their grandmothers and the mother-child relationship was maintained through the grandmother. Relationships between women prisoners and their mothers also tend to remain intact during the women’s incarceration, and this fact alone may account for the higher rates of contact incarcerated mothers have with their children, as compared to incarcerated fathers.

Should Incarcerated Parents Attempt to Find “Lost” Children?

The Center for Children of Incarcerated Parents urges incarcerated parents to look for and reconnect with their children. However, we also encourage parents to be prepared for a long process of multiple efforts, many of which will be unsuccessful. Parents should prepare themselves for the process by truthfully answering the following questions:

· Why do I want to communicate with my missing child(ren)? What are my motives?

· What do I expect to achieve by contacting my child(ren)?

· What are some potential consequences of the search process for me as a parent? as a prisoner?

· If I find my child(ren), what might be the effects of any contact we have on the child(ren)?

· If I find my child(ren), what might be the effects of any contact we have on the child(ren)’s caregiver?

· What will I do if my child(ren) don’t want to communicate with me after I find them?

Some prisoners decide to look for their child(ren) because they want to get in touch with the child(ren)’s other parent or caregiver. Some look for their children for other reasons that have nothing to do with the children or the parent-child relationship. Searching for children is not a healthy or positive thing to do for every incarcerated parent.

If, after reflecting on and answering these questions, incarcerated parents want to continue to look for children with whom they have lost contact, they should follow a simple but organized search plan.

How Can Incarcerated Parents Begin to Look for “Lost” Children?

Prisoners who want to begin looking for “missing” children can follow these initial steps for each child:

Step 1. Write out the following factual information about each child:

o The child’s full legal name

o The full legal name, birthdate and birthplace of the other birth parent

o The child’s birth date and birthplace

o The child’s Social Security number

o The addresses at which the child has lived, particularly while attending school

o The names, addresses and telephone numbers of relatives, friends or neighbors who knew the child or the child’s caregiver well

o Names of the schools the child has attended and the names of teachers who knew the child well.

o The names, addresses and telephone numbers of any Child Protective Services (CPS) social workers assigned to the child

Step 2. Write out a sentence that clearly and correctly describes the status of your legal (parental) rights to the child, including the name of the court(s) and date(s) of court actions that affected the child’s custody. Parents may have:

o Full legal custody and parental rights. In families that have not been involved in either Family Court or the child welfare system (foster care), parents will have full legal custody of their children. In families that have been involved with those systems, parents may or may not have full legal custody. Most prisoners have full legal custody of their children.

o Shared custody. In this circumstance, a court has given another party physical custody of the child but the incarcerated parent retains his/her other legal rights to the child.

o No custody, when the child is in a foster care or a legal guardianship. In this situation, some parental rights (like communication and visitation) may be retained.

o No custody and no parental rights, when the parental rights have been terminated by the Juvenile or Family Court.

Step 3. Write out a short “Parent’s Statement” that summarizes the reasons you are looking for the child and what you hope to achieve by reconnecting with the child.

Step 4. Open a “search” file for each child. Place a copy of the child’s birth or baptismal certificate in the file along with any legal papers pertaining to the child’s custody. (Birth certificates can be obtained by mail from county or state Departments of Records or Vital Statistics for a small fee. This public information is available to anyone.) Other documents that identify the prisoner as the child’s birth or legal parent should also be included. Prisoners without documentary proof of a parental relationship to the child may have difficulty obtaining information from teachers, social workers and other sources outside of friends and family.

Step 5. Call or write a letter to every friend or family member who previously had or may currently have a relationship with the child; include your Parent’s Statement somewhere in the text of the letter. The letter should ask the recipient to write back with 1) any information about the current status and well-being of the child that they are willing to provide; 2) any information about the child’s current location; and/or 3) any reason(s) why they are unwilling to help the parent locate the child.

Step 6. Write a letter to each teacher, daycare worker or social worker who had previously worked or may currently work with the child; put your Parent’s Statement in the letter. Parents should also include the child’s full legal name and birth date in the letter. Ask the recipients to write back with 1) any information about the current status and well-being of the child that they are willing to provide; 2) any information about the child’s current location; and/or 3) the reason(s) why they are unwilling to help the parent locate the child.

Step 7. Write a letter to the Child Protective Services in any jurisdiction in which the child lived, requesting information about any cases that may involve the child. The letter should contain a copy of the child’s birth certificate or other documentation establishing the writer as the child’s birth parent. The child’s full legal name, birth date and birthplace, social security number and caregiver’s name should be included, as well as the Parent’s Statement and the name of the social worker assigned to the child’s case, if any. Ask for a written response to the letter.

Step 8. Make copies of each document sent and received; these should be kept in the child’s search file.

Next Steps

The responses to these many letters should guide incarcerated parents’ next steps in searching for their children. Parents who receive no responses to these inquiries, or who receive information that cannot be followed up by prisoners or their freeworld friends and family should consider seeking the assistance of advocacy organizations that work with incarcerated parents.

The CHICAS Project continues to assist prisoners who are searching for their children. However, because the demand for help from CHICAS is overwhelming, project staff will request that prisoners seeking our assistance complete the above process before submitting an application for services.

The FatherRight Project


The FatherRight Project of the Center for Children of Incarcerated Parents is focused on building or enhancing healthy relationships, healthy sexuality, healthy reproduction and healthy parenting among male offenders. This project is in implementation in 2001.

FatherRight is a replication of the MotherRight Project, which was designed in 1991 and is now offered in four sites throughout Southern California.

FatherRight offers combinations of the following services for fathers in residential and community corrections settings:
  • A psycho-educational parent education course
  • A psycho-education family life education course
  • A fathers' support group
  • Therapeutic services
FatherRight is funded through a combination of public contracts and private grants. As in all Center projects, FatherRight services are offered to clients free of charge.


For more information about the FatherRight Project, you may write or email the Center at:

The Center for Children of Incarcerated Parents
P.O. Box 41-286
Eagle Rock, California 90041
Email: ccip@earthlink.net

There is alot more on that site he sent but this will give you a little idea of what you would find by going there.

I've got so much info on floppys and everywhere it's coming out my ears. After posting something, then I get rid of it. I haven't done much posting so I've got to get on the ball.

Be back tomorrow!

Teri

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Old 04-07-2004, 11:11 AM
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Thanks! I am going to email this man now and see what he has to say. I will post his reply as maybe it will help someone else! Wish me luck!

Thanks for doing so much! You have been so helpful! Don't worry that it was lost. I am being patient because that is just the best we can do. They do talk and write and I hope that it allows her to know just how much he does love her.
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Old 04-07-2004, 06:05 PM
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I'll have to write Mr. Mustin and see if he can help. With my son-in-law's issue with visitation with his son, it's not the Court system or spouse that is stopping him completely. It is the Department of Corrections. Because of his internet sting charges, the prison system is saying he cannot have visitation with his child. Geez, I'm the maternal grandma and I want my grandson to be able to continue to build and maintain his contact with this father who loves him very much. We'll just have to be PERSISTENT.
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Old 04-08-2004, 03:08 PM
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Oso's Girl: Here is another answer. Sorry, I put CA in my question. Maybe you would want to ask for your state so here is the info. completely. Below all this is his reply (post the question to the Law Guru site). Teri

Your question "Does CA have Incarcerated Parents Visitation Rights?"
posted to the LawGuru.com BBS on 4/7/2004, has
received a new reply.

The link to the reply can be found below your original
question located at:

http://www.lawguru.com/cgi/bbs/mesg.cgi?i=385107286

Just go the the above page, scroll down past your question
and go to the section called "Replies". The reply can be
found by clicking on the reply title.

The attorney who posted the reply to your question is:

Michael Stone
Alexandria, VA
email: michael.b.stone@att.net
phone: 703-823-0853 | fax: 703-997-8885 | toll free:
Web Page: http://www.lawguru.com/cgi/bbs/attyPages/mbstone.html

PLEASE REMEMBER that any responses from attorneys on the BBS can't
replace a face to face meeting or telephone consultation with a
"real live" attorney about your particular case, problem or question.

Thanks for using LawGuru.com. Come back often and please tell your
freinds about us!

---------------
Attorney Profile
Michael Stone

http://www.lawguru.com/newimages/111.gifFirmLaw Offices of Michael B. StoneAddress:P.O. Box 9503
Alexandria VA 22304-0503
Country:Phone Main:703-823-0853Phone Alt.:562-598-9875Toll Free:N/AFax:703-997-8885Primary e-mail:michael.b.stone@att.netAlternate e-mail:N/AWeb Page:N/A Areas of Practice:Admiralty Law, Appeals and Writs, Business Law, Civil Rights Law, Computer & Technology Law, Constitutional Law, Consumer Law, Credit, Debt and Collections Law, Criminal Law, Disability Discrimination Law (ADA), Drunk Driving & DUI Law, Entertainment & Sport Law, Family Law, Divorce, Child Custody and Adoption, General Civil Litigation, Insurance Law, Intellectual Property, Juvenile Dependency, Other Discrimination Law (Age, Race, Sex, Gender), Personal Injury Law and Tort Law, Products Liability States of Practice:California,VirginiaNumber of Attorneys:1Comment:N/ALook up answers for this attorney

--------------------
Reply:Incarcerated parents usually have the right to receive visitors including minor children, depending on whether they are incarcerated in a state prison or county jail. In county jail an adult must accompany the child and you get a telephone visit through glass. In state prison, unless the committed offense involved child abuse or other specified crimes, after registering with the prison and when accompanied by a registered adult, minor children may have contact visits. If by your question do you mean do incarcerated parents have the right to compel the custodial parent or caretaker to bring the child, it depends on the type of court that would issue the order (family law or juvenile dependency), the willingness or unwillingness of the custodial parent to participate (visiting jails and prisons is a major hassle, often involving significant travel, cost, and time) and other factors. If you are female, incarcerated in state prison, and your child is very small there is a limited live-in program available through CDC.
Reply Posted By:
Michael Stone
Law Offices of Michael B. Stone
P.O. Box 9503
Alexandria, VA 22304-0503


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Old 04-08-2004, 03:17 PM
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Checking my emails and found another response (this was from PA, I'm assuming this could also be done in each state): Teri



"Weber, Deb" <Deb.Weber@pacourts.us> wrote:

I asked our legal department about this and they suggest that you contact the Pennsylvania Department of Corrections
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Old 04-08-2004, 04:35 PM
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Thanks! That was actually very encouraging and it gave me a new spark of hope!
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Old 04-09-2004, 05:13 PM
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Oso's Girl:

Here is another answer from an email. Figured out what I had been doing wrong. I was putting 'Parent' where I should have been putting 'Father'. There are plenty of places to go and get 'free' help for the mothers it's the fathers that don't have help!!! **See red highlight below -You would want to contact them!!!

David C. Bruer, M.A., Executive Director
Fathers Resource Center
1020 Second St, Ste A
Encinitas, CA 92024

760.634.DADS (3237)
619.702.DADS
760.634.3282 FAX

http://www.fathersresourcecenter.org
tfrc@earthlink.net

www.fathersresourcecenter.org/links.htm

Hi Teri,

I have put together some stuff but I wear all the hats around here and
cannot dig it up right now. One way to search for this is by
reflecting
what communities are doing for incarcerated women (e.g. parenting
programs,
volunteer lawyer availability, visitation, etc.) We are most
interested in
what you are doing so please stay in touch.
Also check with local
authorities (jail, prison, law enforcement, probation officers, public
defenders, attorneys). We are interested in expanded
offerings/services
for incarcerated fathers.
Thank you for sharing. Dave Bruer,
Executive
Director
At 09:33 PM 4/8/2004 -0700, you wrote:
> Doing a search for: Incarcerated Fathers Visitation Rights your site
came >up but I can't find anything there with information for incarcerated
>fathers. Can you help? Thank you,
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Old 04-10-2004, 07:46 AM
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I will contact this latest one Jus' Mom! You are such a big help! I did email the Center For CHildren of Incarcerated parents and they reponded within a day. The director linked us to one of the advocates there and requested that Oso write directly to her. I have forwarded that info to him and after he writes, I will post any helpful information that she can give him so that others can be of benefit! Thanks again for all your heard work.
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Old 05-15-2004, 10:10 PM
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Here is some good info.

http://www.cwresource.org/hotTopics/...v/inPrison.htm

Included in the site I found this interesting:
Fathers in Prison: Changing Child Welfare Policy
  • Child welfare and correctional leaders should establish national standards covering parents and their children and adopt these standards as a part of the accreditation process for correctional institutions and child welfare agencies.
  • State-level departments of child welfare and federal-level child welfare agencies should provide leadership in developing model policies and administrative regulations to guide child welfare proactively when children are involved in the child welfare system and their parents are in correctional institutions.
  • Family advocates and child welfare and criminal justice professionals should promote the development of a national research, knowledge-building, and knowledge-dissemination agenda focusing on prisoners and their families and children.
  • Social service organizations and practitioners should provide leadership for the development of public policies and service programs that help parents in prison maintain ties with their children and address family needs related to correctional supervision.
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