HAMPTON ROADS, Va. — Following a News 3 investigation into CPS removing children from their homes, people across the state reached out to us about problems they’re experiencing with their local departments of social services and child protective services.
Custody cases are complex and rarely straightforward.
The Office of the Children’s Ombudsman (OCO) was created by lawmakers and put into place in 2021 to aid in investigations after problems were identified statewide.
The OCO has statutory authority to investigate complaints involving children who are alleged to have been abused or neglected, are receiving child protective services, are in foster care, or are placed for adoption, according to its website.
However, Director Eric Reynolds said while they have the ability to shine a light on problems and inform the right people, they don’t have any legal authority to make changes or take action.
There are 120 local departments of social services across the state of Virginia. They all operate individually. The 2022 annual report from the Office of the Children’s Ombudsman said this creates inconsistency among the state's departments.
“As a result, practices vary across the Commonwealth. Although the Virginia Department of Social Services (VDSS) develops the regulations and policies for local departments to follow in administering Child and Family Services programs, its ability to ensure consistency, quality, and effectiveness of local departments’ practices is limited as is its authority to enforce its policies,” the report stated.
State Delegate A.C. Cordoza, (R) from Hampton in District 91 has been looking into these issues and said, “There is no clear state oversight that has authority to really intervene when there’s a problem that occurs at the local level.”
Among other issues across the state, the OCO report found legal issues concerning the constitutional rights of parents in certain situations.
“Some of these temporary arrangements should last about three or four months, right? But some of these cases were going on for years,” said Reynolds.
Cordoza said part of the issue is local agencies don’t have enough oversight from people at the state level, citing the fact that the OCO can only alert others about violations of law and policy.
He said he doesn’t think that is good enough and wants laws in place that allow for action to be taken when violations have occurred.
Other problems cited by the OCO in its annual report are turnover rates among caseworkers in the local agencies and a lack of training.
“Let me make it clear. The majority of CPS workers do a great job, heroic actions every day. The issue is when there is a lack of staff with such high turnover,” said Cordoza.
He said in certain cases, accusations made against parents don’t have to be proved and can be used as evidence in court. He added that if you take children away from their parents, you should have evidence of wrongdoing.
Cordoza is exploring possible legislative changes that he believes could improve the system, but said this is an extremely complex issue. He thinks there should be more of a focus on fixing problems and keeping families together and says too often, that’s not happening.
“It’s appalling and it’s completely unacceptable. That’s another reason there must be something done, and I intend on making sure that happens through the legislative process,” said Cordoza.
Cordoza said he has been trying to help a Hampton mother, Brittany Whitworth, who had her two children taken away in December of 2021.
We first shared Whitworth's story back in June. She has been trying to get her rights restored to see her kids without restrictions.
“I haven’t physically seen my children since January 13, 2022," said Whitworth. She added, “Instead of getting help with what happened, I ended up with the ultimate punishment.”
The ultimate punishment she referred to is not getting to see her children without approval from the person who has them currently. She said her relationship with this relative is extremely strained.
Whitworth said she was struggling mentally in December of 2021. She admits that she lied to police about domestic violence involving her fiancé, but now says the string of events that unfolded after this incident caused her to lose custody of her two children.
She filed a complaint with the OCO and they completed a report on her case and found several problems with how it was handled. The report states that CPS expressed concerns about a firearm, and a protective order was put in place against her fiancé.
She said since then, she has seen therapists and received treatment for issues she was having. She said she regrets lying to the police and knows it was wrong.
“I have to live with that every day, and it really bothers me because I feel like I was in a position where I really needed help,” said Whitworth.
“There’s a clear mishandling of the case by some officials,” said Cordoza, referring to Whitworth’s case.
The report done by OCO cited statements made by CPS that read, “Ms. Whitworth’s screens were positive for marijuana. Based on the positive drug screens, the children's young ages, and concerns about Ms. Whitworth’s ability to provide adequate protection, the agency decided to file for removal and request a temporary custody transfer to a relative of the children on January 6, 2022."
The report further states that on February 28, 2022, the court held a dispositional hearing where custody of the children was permanently transferred to the relative and the case was closed.
The report also said the agency, “ceased providing any further services or support to Ms. Whitworth.”
Whitworth said she does not feel like she has received due process and is trying to appeal the court's decision.
Part of the conclusion in the report read: “We commend the agency’s decision to place the children with a relative whom the children knew, but Ms. Whitworth was given no clear plan for the children to return home and was offered no services to assist her in addressing the safety issues that led to the children’s removal.”
The conclusion further states: “Also, closing the case when custody is legally transferred to a relative after such a short period of time and refusing to work with the parent to regain custody of their children does not promote the parent-child connection and may not result in true permanence.
The concerns expressed by Ms. Whitworth mirror those we have heard from parents across the state when local departments of social services engage in diversionary practices to prevent children from entering formal foster care.”
Under state law, a child may be taken into immediate custody and placed in shelter care pursuant to an emergency removal order in cases in which the child is alleged to have been abused or neglected.
Virginia law also states that in order for an emergency removal order to be issued, reasonable efforts must have been made to prevent the removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably protect the child's life or health pending a final hearing on the petition.
You can read the law here.
We reached out to the Hampton City Social Services Department when our original story aired in late June and, again this time, they issued the same response:
“While the City is legally unable to respond to questions about a specific case, the Hampton Department of Human Services endeavors to make all reasonable efforts to keep children with their parents whenever it is safely possible and in the best interest of the child/children. When that cannot be achieved, relative placement options may be deemed more suitable. Or, as a last resort, a child may be brought into HDHS custody. Parents have the right to appeal all decisions regarding the placement of a child outside of parental custody through the appropriate judicial processes.”
The OCO gathers and reviews complaints from people across the state having various kinds of problems.
They said as of early July, they’ve received about 600 complaints. Of those, 462 moved beyond the intake state to become preliminary assessments and 50 turned into investigations that involved potential violations of policies or laws.
Many times, when children are taken from their homes, they’re either put in foster care or alternative living arrangements which puts them with someone they know, like a relative.
Reynolds said they saw a lot of alternative living arrangement cases that were not handled very well and in some cases, the parents' constitutional rights were potentially violated.
He said the foster care system has more structures and policies in place compared to when kids are put in alternative living arrangements.
News 3 was contacted by people from around the state who reached out to us expressing problems with their own situations after our original story aired, including Grandmother Marilyn Morgan in Lynchburg.
She said her daughter, a mother of six, has suffered from drug problems and mental issues.
Morgan said she was given custody of one of her daughter’s children, a 5-year-old girl, in 2014 and there were no reports of any issues with CPS during that time.
Her daughter gave birth to another child who was potentially exposed to drugs in 2019.
Morgan took the child home from the hospital and was working to get custody.
CPS started an investigation and took the infant out of Morgan’s care with an emergency removal order after Morgan took the children on a trip to Maryland to see family. A few weeks later, they also removed the 5-year-old girl from Morgan's care.
Morgan filed a complaint with the OCO and they created a report about her case.
The report stated that the court found that the infant was abused and neglected, citing the following as evidence: The child was exposed to substances upon birth, taken out of state with the other child who was sick at the time, and did not get proper care. In regard to the 5-year-old, the court said she was taken out of Morgan's care due to other issues, including missing school.
Morgan said the information presented in court was not accurate, especially regarding past dealings with CPS, and she denies abusing or neglecting the children.
She lost all appeals in court to get the children back but was granted custody of another grandchild in a separate case.
One of Morgan’s attorneys, Steven McFadgen, said the fact that she was a grandmother and not the mother of the children made it more challenging to regain custody of the children. He said he believes the system got it wrong in Morgan’s case and she should have custody of the children because they are family.
The report done by the OCO stated that they couldn’t comment or investigate on the judicial findings, only the process involving CPS.
Part of the findings in the report stated that the agency's decision to validate the CPS report alleging that the child was abused and neglected was contrary to law and policy and was made without an adequate statement of reason.
It stated the agency’s decision to execute the emergency removal order and take the infant into custody was based on irrelevant, immaterial, or erroneous grounds.
According to the report, CPS said that Morgan was noncompliant with requests made by the agency, but Morgan claims that she was highly skeptical of the agency and its motives.
Morgan said, unfortunately, the findings in the report from the OCO were not used in her court hearings as evidence.
McFadgen wrote a letter to Governor Youngkin asking for his office to investigate the situation and help her get her grandkids back.
News 3 reached out to the City of Lynchburg’s Department of Social Services about the matter. They provided us with the following statement:
“As much as we seek to foster positive relationships with our local media, we are unable to disclose any information regarding a CPS matter, per Virginia Codes §63.2-104 and 63.2-105 [law.lis.virginia.gov]. Removing children is always the last resort as we firmly believe children belong with their families. When it has been alleged that a child has been subjected to an imminent threat to life or health, a child may be taken into immediate custody. An Emergency Removal Order would then be filed with the local Juvenile and Domestic Relations Court. Within five days, the court must hold a Preliminary Removal Hearing with notice to all interested parties and an opportunity to be heard. Lynchburg DSS prioritizes placement with relatives and currently has more children in foster care placed with relatives than any other locality in the Commonwealth.”
Apreal Flood of Franklin said she lost custody of her children last year after allegations of abuse were made. She denies any abuse, and says she has struggled to receive guidance on what she needs to do to get the kids back.
“There is nowhere to go. There is no one to help,” Flood said.
She said she has been fighting to get her kids back and hasn't received insight on what she has to do to have them returned to her care. She, too, filed a complaint with the OCO.
The office's report found there was a lack of clarity at the beginning of her case, which it states is a problem with agencies across Virginia, but stated they did not find policy violations.
We reached out to the Franklin Department of Social Services, who provided the following statement:
“Thank you for reaching out to our agency. We have received your inquiry regarding a specific CPS matter. Pursuant to Virginia Code Sections 63.2-104 and 63.2-105, we are unable to respond to questions about specific cases. If you have questions about this or any other aspect of the statutory framework within which our agency operates, I would recommend you contact the Division of Public Affairs at the Virginia Department of Social Services for more information.
From the onset of our involvement with families, the Franklin City Department of Social Services strives to engage parents to ensure child safety and well-being. In accordance with governing law, including the Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272 and Virginia Code Sections 16.1-251, 16.1-253, and 16.1-278, FCDSS makes all reasonable efforts to keep children with their parents. Whenever this is not safely possible or in the child’s best interest, we explore options regarding relative placement. If a relative placement cannot be successfully achieved, a child may be brought into foster care and placed in the legal custody of FCDSS. Once a child enters foster care, the judicial process commences, and parents have the right to appeal all decisions regarding the placement of a child outside of their custody. Please let me know if you have any additional questions about our process generally. Thank you for contacting FCDSS.”
We sent these follow-up questions:
How does your agency work to reunite families?
What specific actions are taken by FCDSS to ensure that children keep with their parents as in accordance with the law?
When is a safety plan put into place?
Who makes the determination when and if a child will be removed from a home?
Who provides oversight to this decision?
Below was the second response:
“Thank you again for reaching out to our agency. To reiterate, pursuant to Virginia Code Sections 63.2-104 and 63.2-105, we are unable to respond to questions about specific cases.
Assessing safety and risk is a continual process in CPS which FCDSS takes seriously. Please refer to 22 VAC 40-705-110 A, 22 VAC 40-705-10, and 22 VAC 40-705-110 B, as well as the VDSS public site for more information on this process.
If you have questions about this or any other aspect of the statutory framework within which our agency operates, I would recommend you contact the Division of Public Affairs at the Virginia Department of Social Services for more information.”
News 3 originally reached out to the Virginia Department of Social Services three weeks ago to ask how many children are in alternative living arrangements across the state and who tracks those cases. Below is the answers to our questions:
(VDSS) Due to the limitations of Virginia’s Child Welfare Information System (OASIS), we are unable to provide specific numbers related to the Alternative Living Arrangements/Diversion cases throughout the Commonwealth. Additionally, many of these arrangements are handled informally. These situations are not currently tracked within our information systems. Virginia has received funding and is in the beginning processes of replacing this system with one that will allow for more detailed querying of our data.
(VDSS) As mentioned above, Virginia is in the beginning processes of replacing our current system (OASIS), with one that will allow for more detailed tracking and querying of our data.
Later, we asked about the department's processes for investigating child custody cases.
The department has been responsive to our questions but they said they needed more time to gather other information we were looking for and we are waiting for more information.
