When Virginia fails to provide meaningful legal representation to parents, it’s rural, low-income, and Black families who are torn apart.
Monday, January 23rd, 2023
Author: Anna Daniszewski/VPLC Legal Fellow
Impressive reporting from Cardinal News this week shows the crisis of parents’ legal representation in Virginia. Services providers for children and even a county attorney – the person who brings child welfare cases against parents – agree: children suffer the consequences when parents have “paltry legal support.”
When parents have adequate representation, children spend less time in foster care and families are more likely to be reunified and get the help they need. However, Virginia’s current system appoints private attorneys borrowed from the list of children’s advocates (“guardians ad litem”), compensates them a mere $120 per case, and offers no training or performance standards for representing parents. Sources told Rachel Mahoney of Cardinal News that this “translated to a lack of action and poor representation in cases.”
Southwest Virginia is hit especially hard. Mahoney found that children from Southwest are disproportionately placed in foster care; they make up three times their share of the regular population. The Office of the Children’s Ombudsman also reported that 65% of its investigations into violations of law and policy last year were by departments of social services in the Piedmont and Western regions.
Lawyers help ensure that DSS fulfills their legal obligations to families before irreparable violations happen. But “[j]udges, private attorneys and state agency officials have seen court-appointed counsel lists for family court crumble, especially in rural areas,” according to Mahoney’s article.
Black families are also overrepresented in Virginia’s (and the nation’s) foster system. In Richmond, for example, 79% of children in foster care are Black, while Black people only represent 45% of the city’s population.
In sum, when Virginia fails to provide meaningful legal representation to parents, it’s rural, low-income, and Black families who are torn apart.
Bills currently before the General Assembly would address the problems identified by the Southwest Virginia news outlet – that is, if the legislature finally decides to take action.
Budget Amendment #44 2s would increase compensation for court-appointed parents’ attorneys
Glenda Collins, the executive director of Lonesome Pine Office on Youth, told Cardinal News about one instance in which an attorney only met the parent for the first time at the court hearing. Sadly, that’s not surprising given that the rate of compensation for court-appointed attorneys is capped at $120 or 1.3 hours of work, which barely covers court-time. Budget Amendment #44 2s, carried by Senator Edwards, would increase the cap to $445. The price tag can be offset by federal funds, which are available for parents’ legal representation because of its demonstrated success with strengthening and safely reunifying families.
New York City is currently under a court injunction to increase their compensation for court-appointed attorneys. The judge said that the rate of $90 per hour (not per case) constituted ineffective assistance of counsel. Hopefully Virginia won’t require court intervention to provide justice to families.
Senate Bill 1443 and Senate Joint Resolution 241 could finally bring multidisciplinary representation to Virginia families.
By providing a holistic legal team of an attorney and social worker, Virginia could be addressing the root cause that brought the family into contact with child protective services, such as substance use and homelessness. Brandon Butler, the County Attorney who represents Bedford County’s Department of Social Services, said in the article that a parent-dedicated social worker is key to an improved set-up.
Senator Deeds’ bill (SB 1443) creates a study to explore establishing a Parents Advocacy Commission and opening parent defense offices, the process used to create Virginia’s public criminal defender agency. SJ 241 would task the Child Dependency Legal Representation Workgroup created last general assembly with making recommendations for pilot multidisciplinary offices. These offices could employ social workers and parent advocates who coordinate with DSS to ensure families receive necessary services and who work with parents to consider kinship living arrangements when appropriate.
That’s why the multidisciplinary model has proven so successful in other states: more children find permanent homes and faster when parents have multidisciplinary legal representation, even if the family is not reunified. In New York City, which adopted this representation model, children spent on average four fewer months in foster care. That’s huge for a child and for a family’s chance of reunification. Reducing time in foster care would also pay for the offices and then some. In just a year, Virginia spends on average over $94,000 per child in foster care and $500 million total.
Butler, the County Attorney, noted “Yes, it costs money up front, but it’s going to save money in the long term and reunite families.” He hopes that the General Assembly views it that way.
SB 1443 and SJ 241 would also lead to the creation of standards for parents’ attorneys.
As Christy Horsley, who oversees volunteer court-appointed special advocates for children at CASA of Central Virginia, put it: “there are literally no standards for parents’ attorneys.”
Attorneys are ethically obligated to represent their clients zealously. However, with only 1.3 hours of work compensated and no standards of practice, parents and children are torn apart, sometimes permanently, without meaningful inquiry. This is important because, as Collins described, “[t]ime and time again, . . . her team has seen case authorities assume the worst of parents right off the bat and families not getting resources available to them.”
Like the Virginia Indigent Defense Commission, a Parents Advocacy Commission would oversee qualification and performance standards for parents’ attorneys. In the meantime, the Workgroup would also take up developing these standards.
“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,” Collins said.
CONTACT: Connie Stevens, Communications Director, Virginia Poverty Law Center