Preventing Family Separation

What’s Wrong with Foster Care?

And how can reforming the legal system help?

I beat my addiction. The doctor says I need to stay on MAT to stay sober, But the DsS says I can’t get my kids back unless I get off it. I can’t win!

We may need help, but we want to be great parents!

An initiative of the Legal Aid Justice Center and the Virginia Poverty Law Center, bringing the Holistic Model of Family Legal Representation to the Child Welfare System in Virginia

working to empower & strengthen Virginia families

What’s wrong with the child welfare system?

From Casey Family Programs, a national research institute:

“In 2020, 3 of every 4 children that the child protection system deemed victims of child maltreatment fell into the category of neglect, not abuse.

“The system is not effective at distinguishing between intentional neglect (such as abandonment or refusal to seek medical treatment) and neglect from inequitable community conditions (such as a lack of access to adequate food, housing, child care, and other material resources).

“Families from low-income households average at least one civil legal need each year, potentially putting them at risk for unwarranted referral to the child protection system — and the family surveillance, separation, and related traumas that can follow.”

What about VIRGINIA’s child welfare system?

Virginia is among the worst states annually for children aging out of foster care. Why?

Among other reasons: the poor quality of legal representation currently provided to parents by the Commonwealth in removal cases:

• As noted by VCOY in 2015, court-appointed parent’ attorneys are not trained in parent representation and are paid a maximum of $120 per petition, which can include multiple hearings.

• Better legal representation for parents of children in foster care has been proven to be better for the children!

• Virginia parents receive profoundly inadequate representation. Virginia is failing parents AND their children.

We can do BETTER!

Virginia’s failure to support families

Recent Virginia cases:

I miss my mom. She struggled with depression and lost her job. We were put in foster care.

If only they had given my mom the money they are paying to this foster home, we could have stayed with her.*

• DSS threatening removal of children when parents request help for eviction.

• Children removed simply due to financial need.

• Recent federal lawsuit: finding that removal was in violation of law.

*actual quote from a youth in foster care

Virginia Child Welfare Statistics

Virginia is among the worst three states annually for children aging out of foster care. Why?

More than half of all reports to Virginia CPS are invalid. Of valid reports, only slightly more than a quarter merit investigation.

• Nearly three-quarters of all reports relate to “neglect,” often due not to intent or capacity, but due to poverty and resulting challenge to provide for a family’s needs.

• The most vital: childcare, out of reach for many families; and high rates of eviction coupled with unaffordable housing.

(VDSS FY 2022)

Virginia Poverty-Adjacent Neglect (PAN) stats

Why are children separated from their families?

Prior to seeking court involvement or removal of a child, a local department MUST, under federal and state law, provide services to keep the family together. But in Virginia, many departments do not.

Bias, lack of training, failure to follow the law or procedures, and lack of support for low-income families lead to many separations, and:

• Higher rates of removal by some agencies than others

• Lower rates of “permanency,” the gold standard for children in care.

Without good legal representation for parents, agencies are free to ignore the law and guidance. This harms children.

Black families more at risk than others

Black families are especially at risk for over-policing and surveillance

Bias, beliefs about Black families, and lack of resources

• In some Virginia communities, Black children enter foster care at 2-4 times the rate of others. In Northern Virginia, Hispanic children also face higher rates of removal.

• Removal of Black and brown children perpetuate intergenerational trauma and continue a cycle of systemic harm to families and communities.

Other families at risk

I beat my addiction. The doctor says I need to stay on MAT to stay sober, But the DsS says I can’t get my kids back unless I get off it. I can’t win!

In Southwestern Virginia, high poverty rates, inadequate access to mental health and SUD treatment, and bias against medical treatment protocols play a large role in family separation.

• Many agencies do not follow proper protocols for handling cases, leading to more removals and fewer reunifications.

• Without trained attorneys to address families’ needs, challenge agency narratives and evidence, and bring additional evidence to the court’s attention, many families and children are permanently harmed.

Virginia: COST of child welfare

the DIRECT costs: Virginia spends over $305 million annually to keep 5,000 kids in foster care.

• Improved legal assistance for parents has been shown to save money: fewer children enter foster care, and more exit faster

• Better legal assistance means fewer delays in the legal process and a more efficient court system

Virginia could save over $50m per year by implementing quality parent legal representation using available federal funds!

the LONG-TERM costs: Separating children from families is highly traumatic, causing permanent brain changes and life-long impacts.

Children separated from their families face worse life outcomes than those who remain home with parents:

• Homelessness, early pregnancy, justice system involvement, low educational attainment

• Lifelong loss of opportunity for young people

• Impact to state budget and economic losses

When CPS investigates a family

A 2018 Federal law requires states to put more money into services to keep families together.

DSS agencies are required by law to provide “reasonable efforts” to prevent child removal.

*Actual quote from parent

We asked for help from DSS when we faced eviction. They acted as if asking for help was wrong. They threatened to take our children!*

What is child dependency?

Following an investigation, if CPS files a petition for removal, a court may declare a child “dependent” on the state and put the child in foster care. And, due to lack of trained and dedicated legal counsel for parents:

• Virginia families lack due process protections;

• Agencies are not held accountable;

• Courts not well-informed

• Virginia children have poorer outcomes.

What happens to children in state custody?

No one told me why I am with this strange family.

Foster care has been shown to be traumatic with long-lasting harms and should be used only as a last resort and for as short a time as possible.

• Studies show foster care is more harmful than remaining home in many situations.

I want to go home. I want my mom!!

The Process

In Virginia an attorney is appointed to represent a parent only AFTER a child has been removed from her family.

That attorney is not trained, supported, nor compensated properly to assist the family.

parents’ attorneys in Virginia ARE the lowest paid in the country,* Nor are there standards for training or practice.

* Source: Virginia Commission on Youth, 2015; unchanged since 2000

The system is stacked against families

I’m the government’s attorney:

Well-trained and compen-sated parents’ attorneys are vital:

• Virginia’s system of rules and statutes make it difficult to prepare for court.

• Without diligence, parents’ attorneys’ may not gain access to review the evidence the gov-ernment intends to use against families.

I’m all set!

But wait! The court denied my discovery request, the DSS attorney refused permission to interview witnesses, and the law doesn’t allow witness depositions. how can I try this case for only $120?

Virginia’s legal model doesn’t work

• Attorneys only appointed AFTER removal

• Attorneys not trained to represent parents

• Judges can’t find attorneys to appoint*

• Attorneys not supported in assisting clients

• Attorneys paid a very small flat fee – worst in the country,** unchanged in 23 years!

• Attorneys rarely meet clients, file motions, review evidence, subpoena witnesses, make arguments

• POOR OUTCOMES FOR CHILDREN–for decades!***

* As documented in 2022 and 2023 by SB393 & SJR 241 Workgroups on

** As documented in 2015 by the Virginia Commission on Youth Legal Representation in Child Dependency Cases

*** As reported by the federal Children’s Bureau

How Virginia’s model fails

My attorney didn’t talk to me or speak for me in court

I can’t even find attorneys to appoint!

I can’t prepare for three hearings for $120 total!

Lack of training, practice standards, or oversight means:

• Cases take longer, burden court dockets

• No due process

• Poor outcomes for children

Why does Virginia need Holistic Legal Representation for Parents?

Virginia families are being needlessly separated everyday. Virginia needs to take advantage of this proven model that:

• Keeps children safely at home

• Prevents the long-term harmful developmental consequences from the trauma of separation and foster care

• Preserves families who are simply struggling to get by

• Saves money in our social services system, which is already spread thin –both in the short-term budget cycle and in the long-term

CHILDREN WIN WHEN WE DO BETTER BY PARENTS!

Pre-Petition Representation

• Advocacy is not delayed; begins when CPS starts investigation

• In states that appoint BEFORE removal, fewer children enter the system while remaining safe

• Accountability in a “hidden” system

When an attorney is appointed BEFORE the case goes to court, they can negotiate safe alternatives to maintain the family and avoid trauma to the child.

If a case goes to court…

• If a child is removed, a series of court hearings are mandated by federal and state law, over many months

• Only the holistic model provides in- and out-of-court help to speed up the process and protect children and families

I’ll work with you to address the issues that brought your child into care, and to regain custody of your child as quickly as possible!

The holistic legal representation difference

• The complexity of laws and procedures are difficult to navi-gate–especially for an untrained, underpaid attorney without institutional support to assist the family in addressing the agency and court demands.

• Courts miss out on vital information in making decisions affecting the life of a child.

• Holistic legal representation meets families’ needs and gives them a fighting chance.

We’re ready for the hearing.The case law is on our side, our parent advocate helped the client meet her plan requirements, and our arguments are prepared.

What must parents do to reunify?

Parents must take parenting classes, get treatment for mental health or substance use disorders.

Holistic teams with parent advocates can help navigate programs.

I finally got the substance use treatment I needed.

I was told to do a parenting class, parent mentoring, therapy, and stay employed. I want to do whatever my child needs, but my boss is going to let me go if I miss any more work.

What is at risk for a family in these matters?

The agency filed to terminate our rights to our children – even though we worked diligently on the issues they said we needed to fix. Fortunately, we had good legal representation, who showed the court that our children would be safe in our care.

When a parent’s rights are terminated, the child loses her relationship to her entire family: grand-parents, siblings, aunts, uncles.

Virginia’s failures re-sult in a high rate of children

“aging out” of foster care without a permanent family.

The holistic model works!

States adopting the holistic model of legal representation for parents see higher rates of reunification and faster resolution of cases.

• Courts get vital information they need to make decisions impacting a child’s entire life.

• Children exit the system to “permanency” faster–even to relative guardianship or adoption–safely.

• Virginia’s poor outcomes can be improved by adopting this model

I know you’re scared, but I’m prepared! The judge is ready to sign the order returning the kids to your custody.

Virginia MUST adopt this model, because:

• Families are denied advocacy and problem-solving to keep children safely at home

• When children are removed, families can be reunited faster, mitigating the harm of separation (and saving money)

• COURTS are missing vital information needed to make decisions–and to efficiently handle cases without excessive continuances

• Virginia children are delayed on permanency goals

• We expend limited resources on cases where separation was not needed, could have been prevented, or resolved sooner

• Federal funds are available to offset costs – Virginia is leaving money on the table

Virginia has the opportunity to do better by families & children in care!

Why must Virginia act now?

• Foster care is expensive: over $305 million

• The holistic model of representation could save Virginia millions: potentially up to $83m per year

• Virginia children are suffering due to misguided policies, over-surveillance of certain families, lack of access to supports and resources, and Virginia’s poor permanency rates

The Virginia General Assembly has considered this issue multiple times in the past 8 years without enacting it.

Members of the Committee, we’ve passed legislation to address this in past years, but haven’t funded them. It’s time for us to act!

It’s time for Virginia to show that families matter.

What else could we do to help families?

• Nationally, there’s a growing awareness that we must change our approach to child welfare which has resulted in decades of policies that are harmful to children, detrimental to families, and costly to states.

• Studies show that supports such as Child Tax Credits, access to affordable child care, eviction protections, and even increased minimum wage are associated with family stability, child wellbeing, and lower rates of reports to CPS.

• Remember: Virginia spends over $305 million annually to keep 5000 kids in foster care. That’s $61,000 annually per child in care. Imagine how many families could remain together if we provided direct supports.

Bottom line: Children do best, and states save money when we support family integrity.