Guardianship and Infant Placement

If a pregnant patient is going to give birth while in custody and then return to jail, it’s important to discuss and create a plan for who will take care of the infant.

image of 2 hands with infant in the middle
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Key Points

HOW 

  • Have a conversation with the pregnant patient at no later than 30 weeks gestation to discuss her desires for infant placement. Some patients don’t have many options, so help them figure out what’s realistic. Possibilities include:
    • Family member, partner or trusted individual
    • Community-based residential alternatives for both the mom and baby (e.g. drug treatment program)
    • Adoption
    • Foster care
  • Based on the pregnant patient’s selection, there are next steps for each of the options mentioned:
    • Identify the patient’s selected caregiver and file the baby placement paperwork
    • Communicate the baby placement plan with the birthing hospital when the patient goes there for birth hospitalization. This can be done with documentation part of the patient’s medical record that goes with them to the hospital, and/or warm hand-off discussion to hospital caregivers. This should contain the name and phone number of the identified caregiver.
    • Apply to the identified community-based residential program (if available and appropriate)
    • Help facilitate the adoption
    • Discuss the nuances of state custody (foster care)
  • Create a Plan of Safe Care (POSC) for the birthing person and infant which is a plan that will address the needs of the parent and child focused on family engagement, treatment, recovery, and support. The POSC can (and should) be started by any member of the patient’s care team before delivery. Having a POSC already drafted can demonstrate the parent’s efforts to engage in treatment and strengthen their support system.
  • Hospital staff may refer the family to Child Protective Services (i.e. Child Welfare) due to the mother’s incarceration and substance use treatment status. This can be traumatic. Counsel the patient so they are prepared.
  • Separation of the mother and infant is a traumatic experience and can lead to lasting emotional, psychological, and behavioral consequences for both parties. Speak with the birthing patient to assess their emotional and mental health support needs postpartum.
  • If the pregnant patient wishes to remain in contact with their infant, discuss the following:
    • Visitation opportunities while in jail
    • Reunification planning for post-incarceration
    • Parenting guidance/training

WHY

  • Guardianship and infant placement planning is important, takes time, and helps alleviate some stress for the birthing patient.
  • Sometimes caregivers must go through multiple processes to get approved to take the infant home after birth.
  • Pregnant patients in custody have limited access to communicating with folks outside the facility and will need assistance with making arrangements.

KEEP IN MIND

  • Facility staff should assist the pregnant patient in making arrangements for their newborns, including helping with official paperwork. Staff should keep the patient informed of the progress of her application regularly to help ease any emotional and mental stress. Even if there are no updates, saying “I checked on your application and have no updates for you at this time” will go a long way!
  • It is ideal for patients to select one (or more) backup options just in case they are not approved for their first choice. Make a list of patients and keep a copy in their medical records.
  • When the patient goes to the hospital for birth, have someone at the jail contact the caregiver so they can start to make their plans to take the baby at discharge.

Deeper Dive

HOW 

When should baby placement planning happen and who should do it?

A social worker, behavioral health professional, or medical personnel should speak with and counsel the pregnant patient about their desires and values around who will take care of the baby. This should be a bi-directional conversation to probe and discuss the patient’s thoughts and feelings and not simply asking them what they want to do.

Baby placement discussions should begin no later than ~30 weeks, or as soon as possible if someone enters jail after 30 weeks, and a plan should be finalized no later than 37 weeks.

What options does the pregnant patient have for baby placement if she gives birth and remains in custody after birth?

The staff member should review the pregnant patient on options for baby placement if she gives birth while in custody, including:

OPTION 1: Placement with a family member, partner, or trusted individual in the community, someone who does not have an open (and likely past) case with “Child Protective Services.”

  • Help the patient reach out to the selected person to confirm that they are willing to assume caregiving responsibilities for the infant.
  • Sign the appropriate paperwork that the hospital requires no later than 37 weeks so that the caregiver can assume responsibility for the infant without delay.
  • Communicate what to expect with the caregiver:
    • That the hospital will call them when the baby is born. It may be from a number with “no caller ID.” If the jail is amenable, you can inform the caregiver that the patient has gone into labor.
    • Supplies they will need to have when they go to the hospital (e.g. car seat, their photo ID)
    • Other helpful ways to prepare for a newborn include diapers (provide local diaper bank information), a bassinet for baby sleeping, information about safe sleep, newborn clothes, swaddle blankets, bottles, and formula.

It would be very helpful if the jail staff would help facilitate this conversation and make sure the caregiver knows what to expect (when they will be called, what they will need to have with them when they get to the hospital, like a car seat and ID) and other helpful ways to prepare.

OPTION 2: If your community has community-based, residential, alternatives to incarceration for parents and babies, find out before talking to the patient if this might be an option for them. Some communities even have residential drug treatment programs for moms and newborns. See if yours has one!

OPTION 3: Adoption. Discuss with the patient if she does not want to raise the child.

  • Adoption is an emotionally and legally complex process. Patients expressing interest in adoption should speak with a social worker to explore if this is the right path for them.
  • The social worker or other knowledgeable staff in the jail should help facilitate this process with a local adoption agency.
  • If the jail does not have a staff member knowledgeable about adoption, a staff member can reach out directly to a local adoption agency to help initiate the process.

OPTION 4: Foster Care. If the patient cannot identify a caregiver for the child, the state assumes custody of the child and responsibility for placement, which would be in a temporary home or foster care. Staff should explain what the process is for maintaining contact with the child and getting custody after jail release.

 

What is a plan of safe care (POSC) and should one be created for pregnant patients in custody?

A plan to address the needs of the parent and child focused on family engagement, treatment, recovery, and support.  The POSC may involve a range of short-term infant care arrangements, from the infant going to a family member while the parent engages in treatment (or is incarcerated) to placement in foster care.  It also often includes SUD treatment plans for the parent and other recommended or required services. The POSC can (and should) be started by any member of the patient’s care team before delivery–having a POSC already drafted can demonstrate the parent’s efforts to engage in treatment and strengthen their support system. 

What else can jail staff to make infant placement less stressful for birthing patients?

Jail staff should approach the conversation of infant placement with care and compassion. Oftentimes, pregnant patients fear infant placement the most when nearing birth. Allow birthing patients as much bonding time in the hospital with their newborns as possible—do not pressure hospital staff to expedite hospital discharge back to jail. Discussing and arranging opportunities for the mother to keep in contact with the baby while the mother is back in jail is helpful. This could entail frequent contact visits (make exceptions for new moms to have multiple visitations per week), video calls, phone calls, letters, etc.

 

When the mother gets out of jail, will she be able to care for her newborn, especially if she has a substance use disorder?

Remember, a drug test is not a parenting test! Many patients who are in recovery or working on recovery can safely and lovingly care for their child. Legally, there are usually steps that need to be taken to transfer caregiving and child custody responsibilities. This is something that a case manager or social worker from jail or a partner community organization should help with. Prepare the patient for the fact that they may have probation or other reporting requirements and that they may need caregiving help as they navigate appointments. Also talk to her about the supplies she will need, such as diapers, bottles, formula (if not breastfeeding), car seat, clothes, etc. Some organizations can help supply these, and she may also be eligible to sign up for WIC benefits.

WHY 

  • Planning for what happens to the newborn after birth in custody is an important part of caring for pregnant incarcerated patients. Efforts to forge this plan should be made early so all are prepared.
  • Being proactive in making placement decisions and arrangements can help alleviate some stress and ensure there is adequate time to consider multiple options.
  • Planning for baby placement can also help the facility prepare for how to best care for the patient after the birthing experience.

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