Episode 3: Parents Can't Win

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LUKE FOUNTAIN, HOST: Welcome back to “Virginia’s Foster Care: Crawling Through Broken Glass.” I’m Luke Fountain. In this episode, I’ll be discussing the barriers that parents face in the legal system as they work towards reunification.

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KATIE BAKER: It was the most heartbreaking thing I’ve ever been through in my life. I don’t know what to do… how to live without them.

FOUNTAIN: In 2023, a judge terminated Katie Baker’s parental rights to her three children in Harrisonburg Rockingham County Juvenile and Domestic Relations Court. Social workers suspected that she had been using drugs. She’ll never regain custody of her two daughters and son.

In Virginia, a parent’s odds of reuniting with their children plummet the moment they are taken from their home and placed into foster care.

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FOUNTAIN: During a three-month investigation, the Rockbridge Report found that the social services system in Virginia is weighted against parents, particularly in the courts, where they don’t receive adequate legal support. An analysis of 201 cases filed by parents in Virginia’s Court of Appeals revealed that only two won.

Two.

That’s less than one percent.

But even those two victories may not have been true wins. In both cases, the court did not send the children home with the birth parents. Instead, it sent the cases back to a lower court and gave parents more time to address the reasons their children were removed in the first place.

So how does this happen? What’s behind these numbers? To understand why it’s so hard to win, it’s necessary to go back to the moment the local Department of Social Services steps in and removes a child.

That’s when the clock starts ticking. Because in Virginia, parents have about a year to get their children back.

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FOUNTAIN: Social workers cannot take a child without cause.

It all starts with a report —maybe from a teacher, a neighbor or a doctor— who sees something that doesn’t look right. Signs of abuse. Neglect. Unsafe living conditions.

DSS steps in to investigate.

Children who aren’t safe at home can be removed. Most of the time, social workers get court orders to do that. But in rare emergencies, they don’t have to wait. Social workers can remove a child without a judge’s permission for up to 72 hours if they believe the risk is severe.

That’s when the court process begins.

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FOUNTAIN: A judge in Juvenile and Domestic Relations District Court holds a preliminary removal hearing within five days after a child is taken from the home.

Hearings are closed to the public. No jury. No reporters. There’s just the judge. There’s a DSS attorney. There might be a legal representative for the child. Parents often have to rely on court-appointed lawyers they barely know.

At the first hearing, the judge has to answer three questions: Is the child in immediate danger? Is foster care the only option? And did DSS make a real effort to avoid removal?

Most of the time, the answer is yes to all three questions, and the child goes into foster care.

Baker says this hearing took only a few minutes in her case.

BAKER: It’s like they already had everything said and done before we were in that courtroom because we were in there two minutes and walked right back out. And I’m not even exaggerating when I tell you that. We walked in there, they said, ‘Okay, Judge, we’re coming back again, I guess, in three months. And blah, blah, you know, and the kids will remain in foster care.’

FOUNTAIN: Roanoke City Juvenile and Domestic Relations Judge Heather Ferguson says it’s important to understand that at this point, the goal is for the separation to be temporary.

The most important hearing occurs about 30 days later. That’s what is known as an adjudicatory hearing. Judges decide whether abuse or neglect actually happened.

HEATHER FERGUSON: If DSS prevails at the adjudicatory hearing, then we’re going to start down that foster care process and if you look at statistics, once a child enters care, it’s a pretty low percentage of them returning home ever.

FOUNTAIN: In this hearing, everything hinges on evidence. And almost all of it comes from DSS. Social workers do the investigation. They collect the records. Their workers testify.

Roanoke attorney John Koehler represents parents. He’s appointed by judges.

JOHN KOEHLER: Most parents are not in a position to hire their own legal counsel.

FOUNTAIN: Koehler says that lawyers are overwhelmed by the caseloads and they’re underpaid. For nearly 25 years, the compensation for Virginia’s court-appointed lawyers was $120 per court appearance. In 2024, Virginia’s General Assembly increased the pay. It’s now up to $680 per court appearance in termination of parental rights cases.

Judge Ferguson says court-appointed attorneys don’t accompany parents in early meetings with social workers.

FERGUSON: They’re not at the table with the parent to advocate for them kind of at every step of the process. And you know, oftentimes they’re just meeting with the parent five minutes before the hearing out in the lobby.

FOUNTAIN: Ferguson says she’s afraid of making a mistake—sending a child home who gets hurt or worse, dies.

FERGUSON: What if I get it wrong? What if I send the child home? But I have to do what the law requires of me as a judge with the evidence in front of me. I can’t make a decision based on the what ifs and it is hard and it does worry me sometimes.

FOUNTAIN: Social workers are supposed to come up with a family service plan within 30 days of the adjudication hearing. They go back to court and present the plan to the judge. The plan outlines steps parents need to take to get their children back—and what services the local DSS office will provide to help.

Throughout the process, the clock has been ticking. By this point, parents have lost about two months out of the year they have to get their kids back.

Judge Ferguson and others say that on paper, the plans are supposed to provide a roadmap to reunification of the family. But Eric Reynolds, director of the state’s Office of Children’s Ombudsman, says that’s the theory. Not reality.

ERIC REYNOLDS: Unfortunately what we see are the boilerplate foster care service plans like okay, parenting classes, substance abuse treatment, drug screens, you know just going through… and you need to do a psychological evaluation and probably a detachment assessment too. All this stuff that really is meaningless in the long run.”

FOUNTAIN: Judge Ferguson says the plans should address the reasons children came into the foster care system.

FERGUSON: It is not supposed to be a cookie-cutter. So, if you’re looking at a service plan for Jane Doe, it shouldn’t look exactly the same as a service plan for, you know, Coretta Smith. They shouldn’t be the same.

FOUNTAIN: Plans should be reasonable too.

FERGUSON: They shouldn’t be a laundry list… Sometimes it’s when you look at that service plan and 24 responsibilities for the parent on there.

FOUNTAIN: She says it gets even harder.

FERGUSON: They are to work a full-time job so they can financially support the child. They are to go to anger management, you know, one night a week, they are to go to individual counseling. They are to visit with their children, but there’s problems with each of those. For example, DSS only allows visitation during DSS hours, which is Monday through Friday, eight to five. Okay, how can you have a full-time job and still see your kids? You know, these people don’t have leave time the way professionals have it so they risk losing their job for that same thing with how are they supposed to work full-time and be in an intensive outpatient program? So, I think sometimes when a parent looks at that initial service plan, they are so overwhelmed with what needs to be done that I think sometimes they lose hope even before they get started.

FOUNTAIN: Social workers can decide that a parent isn’t making enough progress with the plan. When that happens, social workers ask judges like Ferguson to terminate parental rights.

FERGUSON: Termination of parental rights is second only to the death penalty and it is a fundamental right of a parent to raise their child. So, it’s a big decision and it shouldn’t be taken lightly. And I think that’s kind of always at the forefront of my mind when I have a termination because it is such a drastic action.

FOUNTAIN: By now, the 12-month deadline is looming.

The judge has to answer two questions: Have social workers proven by clear and convincing evidence that the parent didn’t fix the problems that led to the removal? And is it in the child’s best interest to sever that legal relationship permanently?

If the answer to both questions is yes, the judge can abandon efforts to reunite a family, end the parent’s rights and clear the way for adoption.

FERGUSON: Typically, the goal change to adoption and termination of parental rights happens at the same time. I have to look at both of those petitions separately, but I hear all of the evidence combined.

FOUNTAIN: Judge Ferguson says that deciding what’s in the best interest of a child is affected by time. Koehler, the lawyer who represents parents, says the longer a child’s been out of the home, the harder it is to justify sending them back, even if the parent has made real progress.

KOEHLER: I have been in trials where I thought the evidence was going very strongly in favor of denying the termination petition… and yet, the judge has ended the decision by saying, in the final analysis, additional time is not in the best interest your the child.

FOUNTAIN: Terminations of parental rights can be appealed to circuit courts to retry the case. But judges and attorneys largely agree: If parents lose at the juvenile and domestic relations court, they are unlikely to win in the circuit court.

If a case goes to circuit court, Koehler says that’s the point when DSS can hire expert witnesses to bolster cases for termination of parental rights.

KOEHLER: It is very difficult for the parents to have their own experts come in and testify to counteract the testimony of the department’s experts. That is probably one of the great failings of the system is that all of the resources are very much dependent on what the department can obtain.

FOUNTAIN: Judge Ferguson says the DSS expert witnesses rarely recommend the reunification of families.

Koehler says parents theoretically could ask their court-appointed attorneys to hire experts to present their side of the story. But it rarely happens.

KOEHLER: There are very few independent psychologists, family parenting experts that can be appointed to assist the parents. It’s not, it’s not a question of whether they [parents] have the ability to seek that from the court, but whether there’s just any realistic prospect of obtaining it.

FOUNTAIN: Even if parents lose at the circuit court, parents can take their cases to the Virginia Court of Appeals.

But the odds get even steeper. In the Court of Appeals, there are no new witnesses who can be called. Parents can’t present new evidence. The appeals court judges simply review the transcripts of what happened in the lower courts.

KOEHLER: In order to get a reversal, you have to show that no reasonable jurist would have made that ruling. So, it’s an incredibly difficult standard to overcome on appeal.

FOUNTAIN: Judge Ferguson says it doesn’t matter if a parent has changed—they’ve completed rehab, found housing, landed a job.

FERGUSON: Everything in the Court of Appeals and Supreme Court says we’re going to give deference to the circuit court judge, because that circuit court judge is the one who heard the evidence, saw the credibility of the witnesses, was able to weigh the evidence. So, by the time it gets to the Court of Appeals, it’s really pro forma more than anything else because it’s very technical. And unless the circuit court judge was plainly wrong or without evidence to support its decision, the Court of Appeals is not going to reverse.

FOUNTAIN: Koehler says that deference usually goes to DSS.

KOEHLER: By the time you obtain a review by the Court of Appeals of a decision to terminate parental rights, it’s often been years that there’s been no contact between the parent and the child and so as a practical matter that has to affect the decision of the court.

FOUNTAIN: He says parents are considered to be strangers to their children in the eyes of the law.

KOEHLER: Termination of parental rights is such an extreme result. [I] cannot overstate the trauma that that causes, when a government official tells you can no longer parent your child.

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FOUNTAIN: Up next, Ruby Gregg will track the children who fall through the cracks when reunification goals fail. To read the full story, visit our investigative reporting page on the Rockbridge Report’s website at rockbridgereport.wlu.edu.

Music credit: “Mystery Box” by Amir Marcus