Republican family law bills make it easier to use ‘civil death penalty’

Emily Parkin

A series of bills introduced by Republicans in the Wisconsin Legislature to change the state’s child services system puts too much power in the hands of prosecutors and unfairly targets Native Americans and people of color, advocates say. 

All of the bills, according to their author, Rep. Barbara Dittrich (R-Oconomowoc), are meant to get children into a permanent home faster through the termination of parental rights (TPR). 

“These bills are not aimed at taking children away from parents arbitrarily or prematurely, but rather ensuring children more expeditiously achieve permanency and stability for their childhood,” Dittrich, who did not respond to a request for comment, stated in her written testimony about the bills.

Rep. Barb Dittrich

Advocates and social workers say they don’t believe this is the best way to serve children in the state.

A TPR is an extreme measure and should only be used when it’s absolutely warranted, Nicole Homer, an Eau Claire-based attorney who focuses on family law cases involving Native Americans, says. This means parents shouldn’t be unfairly punished because of a disease such as addiction. 

“We’re using the civil death penalty to terminate the parental rights because of a disease,” she says. “It seems fairly unfair that we’re using somebody’s disability or disease against them. We should be focused on helping these individuals as opposed to destroying families.”

The bills, which were introduced in October and received a public hearing earlier this month, come from the 2019 Speaker’s Task Force on Adoption and in many cases make it easier to remove children from their parents’ homes. 

AB 626, for example, gives a court the ability to grant a TPR if a child is “drug-impacted.” AB 627 allows for a TPR if a person is incarcerated and has been amended to allow for the TPR if the sentence is for more than four years. AB 628 eliminates a parents’ right to a jury trial in certain family court proceedings.

A TPR is often the last resort and county human services employees typically try a number of interventions, services and treatments in order to help someone be a better parent and provide a safe home for their children. Instead of making it easier to permanently separate a child from their parents, advocates believe legislation should work to provide more resources and access to services such as drug treatment or parental training.

“Social work best practice is you should only remove a child if that child is unsafe,” Homer says. “Even if it’s absolutely needed to protect that child, children still love their parents. Every removal is traumatic. Focusing on safety lessens the number of inappropriate or unneeded removals. Let’s prevent these families from being broken up and get individuals into evidence-based treatment programs so we don’t get to the point where there needs to be a removal or TPR.”

Of all the proposed bills, taking a person’s children away because they’ve been incarcerated — even if the crime doesn’t involve child welfare — is needlessly cruel, unfair to defendants and likely to disproportionately affect people of color. 

“This is a pretty clear violation of parents’ constitutional rights,” says Mike Bare, research and program coordinator for Community Advocates, a Milwaukee-based social services organization. “The 14th Amendment guarantees due process. It would be impossible for them to meet this condition to keep their child. There wouldn’t be some process there to make that determination. Basing a TPR on someone’s incarceration status would be a punishment above and beyond the sentence of the crime for which they’re incarcerated. If you were sentenced for something simple, a drug sale, you may not realize your sentence could also result in a termination of parental rights.”

The provision would also give a significant amount of power to prosecutors, according to Adam Plotkin, legislative liaison for the Wisconsin State Public Defender. If a person is accused of a crime that comes with a 3-5 year possible sentence, the prosecutor will be able to push people toward taking a plea deal with a three year sentence in order to avoid losing their children. 

“The biggest concern, especially with the amendment, [is] we’ve created a direct connection between criminal cases and family law cases,” Plotkin says. “If you’re a defendant with a potential sentence between 3-5 years, it puts a tremendous amount of power in the hands of prosecutors. You’ve made the loss of your kids a condition of a criminal conviction. What parent isn’t going to fight to keep the legal right to their own children? Again it’s that coercive aspect of that that puts all the power of the family law system in the hands of the criminal prosecutor.”

Advocates say that the long term ramifications of this could be devastating, and in a state such as Wisconsin, in which Native Americans and people of color are disproportionately represented in the prison population, will only make current disparities worse. 

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“There are a lot of parents in Wisconsin state prison, many of which find ways to remain active, engaged parents while they’re serving,” Plotkin says. “If we’re terminating their rights, they’re legally no longer connected to that child in any way. We’ve taken a generational problem and made it significantly worse.”

Homer, the attorney who advocates for tribal children, says this bill is only repeating historic injustices against Native Americans such as the forced attendance of boarding schools. 

Native Americans have some of the highest rates of incarceration and substance abuse in Wisconsin, issues Homer says compound the potential effects of these bills on top of the historical traumas faced by indigenous communities. 

“If you think about it, the boarding school era was not that far back,” she says. “There are people still alive today that went through boarding school. If you step back and look at it from a wider lens, you have to consider the fact that entire generations of children were removed from their parents and placed in boarding schools or were removed through the child welfare system and placed in either foster homes or whatever facilities were available. 

“Especially with the boarding school era, you have several generations of children who were removed, placed in these schools and were never parented,” she continues. “You have children that were never parented, never loved … With multiple generations of children that were never parented, they just don’t know. That trickles down through historical trauma and having generations of parents who don’t know how to parent. It’s in a cyclical situation and we’re trying to break that but it takes a lot of time.”

Even before the generational effects of removing children from their parents takes hold, the mental health effects on people facing a criminal conviction will be severe, according to Dante Martin, who was formerly incarcerated and now works in the City of Milwaukee’s violence prevention program, 414Life. 

“When you’re sitting inside the county jail or something like that, waiting to get sentenced, you’re already feeling like your family is suffering just like you are,” Martin, who also works to provide services to the formerly incarcerated, says. “You’re going to be away from them, as a man, as a brother, uncle. Now, you’re getting your kids taken away from you? You’re being punished more, which has nothing to do, possibly, with your crime. You’re adding more mental health issues on a person that’s incarcerated or about to be incarcerated.”

Martin and Homer emphasized the trauma a child being removed from their home causes, not only for that individual but for the community as the effects ripple out. 

The bills not only put a tremendous amount of pressure on the individuals in the system, but could put a burden on the system itself as more children are removed from their homes and require a place to go. 

“There’s already a tremendous burden on the foster and adoption system, this would create more of a burden,” Bare says. “Without the resources and forethought that are not included in this bill that would be creating a new class of children that would be in need of a safe, quality place to live.”

Republican family law bills make it easier to use ‘civil death penalty’

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