‘It’s all set up to make you fail’: Parents struggle to keep their kids with poor legal support in custody cases

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In the 30 years that Tiffini Wise has been talking to parents who are at risk of losing custody of their child, she says she’s seen it all: cases that present with flat-out abuse, cases tangled with claims of false and misleading information, and plenty where the parent is being told they have no rights.

Since her own rights were terminated those years ago in a Loudoun County courtroom for what she identified as several issues, including a drug possession conviction, she said one thing that’s helped her find peace is advocating for other parents going through something similar, even if they’re states away. Between the complex regulations, paperwork and latent trauma, she said it leaves many parents with a mess.

“It’s all set up to make you fail,” she said. “…The stories are all the same.”

Child dependency cases, where parental custody is at risk because of allegations of abuse or neglect, are almost universally understood to be long, frustrating and confrontational processes. At worst, professionals on the sidelines might see opportunities for family reunification that slip through the cracks.

One large crack is the paltry legal support dedicated to parents who can’t afford to hire a lawyer — the vast majority of them. Virginia guarantees court-appointed counsel for those parents, but their lawyers are paid a maximum of $120 per case, an amount that the General Assembly hasn’t changed since 2000.

That $120 pay cap works out to a mere 1.3 hours of work at the going rate of $90 per hour, is on par with rates paid for misdemeanor criminal cases and can sometimes work out to less than minimum wage when preparing for high-stakes hearings or keeping up with long, drawn-out affairs. 

Wise and other stakeholders interviewed for this article said that’s translated to a lack of action and poor representation in cases. Judges, private attorneys and state agency officials have seen court-appointed counsel lists for family court crumble, especially in rural areas.

It’s an extremely squeaky wheel as identified by a state government-commissioned work group, and money is essentially what will grease it: $14.1 million in the state budget proposed for court-appointed compensation, offset by $3 million of federal reimbursement. Currently, the state allocates $3.1 million to that end.

The boost would translate to a new recommended maximum payout of $445 per case, which is about on par with court-appointed compensation for certain felony criminal cases, or $1,235 for termination of parental rights hearings.

Though the compensation boost is but one simple step in addressing a multifaceted problem, the work group — established by a 2022 General Assembly bill under the newly established Office of the Children’s Ombudsman — holds that it’s a vital first step, contingent on the temperamental budget wand.

Foster care by the numbers

Virginia has been hit with a consistently poor report card when it comes to serving children in foster care, who are the subject of many child dependency cases: it’s among the worst states for reuniting kids with their parents and for seeing teens age out of foster care. The Joint Legislative Audit & Review Commission (JLARC) called the Virginia Department of Social Services (VDSS) to task on this in a scathing 2018 report, and though there’s been some improvement in those benchmarks, it’s a slow climb.

In December, VDSS reported that just under half of children in foster care had a social worker-set goal of either reuniting with their parents or living with other relatives. Most of the remaining half were on track for adoption.

And among Virginia’s 5,000-some children in the foster care system, an outsized portion of them live in the southwestern part of the state. VDSS data puts around 18% of foster kids in that region, reaching up to Floyd and Montgomery counties — three times its share of overall population.

When that boundary expands to Augusta County, Lynchburg and Pittsylvania County, it accounts for just over 42% of kids in Virginia’s foster care system. Lynchburg and Roanoke combined see 8.5% of the state’s foster cases alone.

Of course, reunification isn’t always in the cards. But many stakeholders say they see the towel thrown in too soon and too easily.

Where’s the solution?

Glenda Collins is the executive director of Lonesome Pine Office on Youth, which has worked for over 40 years with families in Lee, Wise and Scott counties that are tangled with Child Protective Services and the courts. Time and time again, she said her team has seen case authorities assume the worst of parents right off the bat and families not getting resources available to them.

“The problems that we’re having are bigger and bigger and bigger: homelessness, drug issues, there’s all kinds of things that play into that,” she said. “Parents are overwhelmed, and they get marked as that bad parent quickly if something happens.”

She recalled a case early in her 28 years with the office that struck her, where one mother’s attorney was meeting their client for the first time at the start of a hearing. And it’s not just the attorneys. Collins said there are also well-known workforce issues among social workers and guardians ad litem (GAL), a different type of court-appointed attorney in family cases that represents the best interests of the child.

As the work group pointed out, the parent attorney list is drawn from the GAL list. But even the GAL list, with its hourly pay scale and lack of pay limits, is a strenuously small one in some parts of the state. Among the GAL list in the 25th Judicial District — a swath of 10 localities surrounding Lexington with over 220,000 residents — 23 attorneys, or less than a third of the list, are actually based in the district. 

Part of this is also because of workforce factors that Collins alluded to. Cristy Horsley has managed court-appointed special advocates — non-attorney agents volunteering to work on behalf of kids in court cases — out of Lynchburg for nearly 10 years at CASA of Central Virginia, and said the area has a more steady supply of court-appointed counsel from Liberty University School of Law. She’s seen Lynchburg’s courts keep close tabs on GAL performance, and even take some off of the list.

But “there are literally no standards for parents’ attorneys,” she said.

That’s another route of action for the legislative work group: establishing enforceable standards and specific training for parents’ attorneys. 

Next door to Lynchburg in Bedford County, Senior Assistant County Attorney Brandon Butler said the locality similarly benefits from a sizable pool of nearby lawyers taking on cases. But many who are willing to take on the family cases are new and less experienced, without observation or mentorship experience if they’re not in a firm with more seasoned colleagues.

Butler handles the bulk of social services cases on behalf of the county, previously serving as a court-appointed GAL himself. Between his own experiences in the courtroom and cases he’s observed over the years, there are several different sticking points.

“[New] Attorneys don’t know enough about the court system or timeline,” he said. “In some cases, the evidence is what it is and you just need to tell them, ‘This is the route you need to go.’ Then they create an unnecessarily combative situation and the parent doesn’t know what’s going on.”

In other cases, he said, the parent’s lawyer doesn’t know how or when to push back on the DSS lawyer’s case. And he acknowledged that high rates of turnover within DSS — around 30%, according to industry sources — lead to inexperienced case workers who might set unrealistic goals.

Right off the bat, Butler said many parents in the area feel attacked and see the social worker as an enemy, much of it stemming from an innate distrust of government and related entities. There’s a lot parents can do and programs they can take advantage of even before court-appointed counsel gets involved, but it’s a complex system to navigate without some researched familiarity or an advocate guiding them.

Adding a holistic family support system

There aren’t any attorneys working with the parents involved in Bedford County’s young family drug court program, only dedicated social workers.

Drugs are nearly a third of the reason why kids end up in foster care in the first place, VDSS data shows, and all five active family drug courts in Virginia lie west of Richmond. Such models are a large investment of time and resources into addressing a root cause of those child dependency cases, and involve a team of case workers all supporting the involved parents on their journey, with volunteers in Bedford County even providing transportation to appointments. Even then, any participant will tell you it’s a hard, uphill battle.

Butler, who isn’t involved in that docket, said that having social workers dedicated to the parents — not just the child’s welfare — is key in the setup. 

And that’s another part of the legislative work group’s final prong of recommendations: establishment of pilot multidisciplinary offices in different parts of the state, where attorneys, social workers and advocates would provide wraparound support to parents at risk of losing their children, no matter the root cause. 

Other states and cities have test-driven similar programs and shared best practices. The legislative group cited a study from New York that found such offices help children leave foster care nearly four months earlier than if their parents didn’t have that support.

Failed budget amendments introduced in Virginia’s 2022 session by Del. Terry Kilgore, R-Scott County, and Sen. John Edwards, D-Roanoke, would’ve set up two such pilot offices: one in Alexandria and another in Wise County, handled by Collins’ Lonesome Pine Office on Youth.

She said Lonesome Pine is uniquely positioned to be a steward of such a pilot center, working with at-risk families and youth using mentorship programs, classes and some case management.

Preliminary discussions about how the center would be structured were encouraging, she said, promising parents guidance through the processes and timelines of their case alongside legal and personal support. That, to her, is what can measurably help families reunite when possible.

“It’s no one individual — it’s the system that doesn’t allow for enough investigation into it, enough services into it, enough time into it to get the full story,” she said.

Weighing costs and impacts

The legislative work group’s conclusions aren’t really new, though they’re more refined as presented in the November report to legislators. 

A similar 2015 report from the state’s Commission on Youth laid out many of the same goals and recommendations. The availability of more federal funds to reimburse attorneys is relatively new, said work group member Valerie L’Herrou, who is an attorney for family and child welfare at Virginia Poverty Law Center.

The support center recommendation is new, too, and is estimated to cost $1.4 million for the operation of two centers for one year, though L’Herrou said an additional Tidewater-area pilot program is under consideration.

Legislators have considered at least the court-appointed pay boost three times thus far, and L’Herrou said the buck has stopped at the budgeting level. It’s a matter of convincing them that the short-term expenses will pay off in the long run, namely in foster care costs, which vary depending on the child but can be “wickedly expensive,” Butler said.

He said there are easily three or four kids currently in Bedford County’s system with specific needs that run costs into six digits per child per year. Besides that, foster parent payments can range from $3,000 to $5,000 per month — money that could be spent on services upfront to keep the government out of families and kids out of foster care.

Casey Family Programs, a national foundation focused on child welfare, pointed out in a report last year that the U.S. spends nine times as much on foster care services as it does on prevention services, and impacts 14 times as many children with those prevention services than it does through foster care.

Recent legislation unlocks federal foster care funding for more preventative services, though, and the work group factored that in with its $3 million projected reimbursement for court-appointed parent attorneys.

Considering projections for the pilot centers and the average reduction of foster care durations though centers in New York, a very rough estimate of potential savings realized by the Southwest Virginia center alone is $2.7 million per year.

Butler, who identified himself as a fiscal conservative, said he recognizes any increases in spending is a risk with Virginia’s divided government.

“Yes, it costs money up front, but it’s going to save money in the long term and reunite families,” he said. “…Hopefully it’ll be viewed that way.”