10/11/2024 

The Hon. Don Carey, Chair 
VDSS Office of Legislative and Regulatory Affairs 
5600 Cox Road 
Glen Allen, VA 23060  

Dear Chairman Carey:  

I am writing on behalf of the Center for Family Advocacy at the Virginia Poverty Law Center (VPLC). Virginia Poverty Law Center uses advocacy, education, and litigation to break down systemic barriers that keep low-income Virginians in the cycle of poverty. We have advocated for services, supports, and protections for families in the situations that the proposed regulations seek to address for many years.

As documented in the comments of the VLSSE, VPLC has long been involved in the numerous attempts to address issues of child safety, family preservation, and support for kinship caregivers, and to increase Virginia’s use of kin foster parents, ensure extended family and kin are brought into cases early, and ensure due process for parents.  

VPLC has supported the legislative initiatives to create and expand KinGAP, as well as the Relative Maintenance Payment for kin caregivers, knowing how important these are to the wellbeing of children. We also have been critical of the practice of “kinship diversion,” also known as “hidden foster care,” which has in practice often allowed local departments to abdicate their responsibility to provide what is known, under both federal and Virginia law, as “reasonable efforts” to prevent a child entering care, and to bring the child back home to the parent in a reasonable time. 

We also note that low-income and African-American families are over-represented in Virginia’s child welfare system, which tends to over-scrutinize such families and that Virginia’s rate of reunification and permanency for children tends to be low overall. We ask that any regulations implemented by the Virginia Department of Social Services are designed to keep these concerns in front of mind and to push local departments to develop policies to address these in the communities they serve. 

VPLC is concerned that the “Parental Child Safety Placement Program” does not properly address these issues, and will not ensure that families are preserved, that parents' rights are protected, that child-wellbeing is improved, and that families are reunified timely. We hope to be proven wrong, and have viewed the proposed regulations in that light. 

Accordingly, the Center for Family Advocacy at VPLC submits the following comments regarding the draft regulations 22VAC40-705, sections 60 & 200: 

Section A 

Nowhere in the proposed regulation are the provisions of Va Code § 63.2-1533 (B)(3) addressed. The regulations do not require the local departments to comply with the statute, nor give guidance on how to effectuate this provision. 

Va Code § 63.2-1533 (B)(3) states “A parental child safety placement agreement shall contain the following... A statement that the child's parent, guardian, or legal custodian and the caregiver may seek legal counsel prior to entering into the agreement.” 

Because putting such a statement in the agreement—which, by the time it has been written has, presumably, already been negotiated between the agency and the parent—will not aid the family in timely finding such legal counsel, and could delay the process (since most families coming to the attention of a local department do not have a retained attorney on speed dial), VPLC proposes this be addressed in both Section A, as a preliminary matter, and in Section G, to ensure the family has the option of having an attorney review the agreement before signing.

VPLC therefore recommends that the following paragraph be added to Section A: 

“At the outset of an investigation that may lead to the entry of an agreement leading to change of living arrangement for the child, the local department must provide the following statement to the child’s parent, guardian or legal custodian: 

“You may seek legal advice or counsel prior to entering into this agreement or signing any documents or plans. If you cannot afford to hire an attorney, you may be eligible for free legal help from your local Legal Aid office. You may search for your nearest office here: https://www.valegalaid.org/, or call 1-866-LEGLAID.  

"If your local Legal Aid Office cannot help you or you are not eligible for their services, there are some other legal resources available. 

·         Virginia Lawyer Referral Service (VLRS) is not free, but an initial 30-minute consultation is only $35. Contact the VLRS at https://vlrs.community.lawyer/ or (800) 552-7977.  

·         Virginia Free Legal Answers allows financially-eligible persons to submit legal questions online for an attorney to answer, at https://virginia.freelegalanswers.org 

·         If the reason CPS is asking you to enter into this agreement is because you are a victim of domestic violence, you may be able to get legal help from the Virginia Sexual and Domestic Violence Action Alliance:  https://vsdvalliance.org/get-help-ayuda/legal-services/, or (800) 838-8238. 

·         Guardians over age 60 may seek help through the Senior Legal Helpline, at 844-802-5910.”  

Section C 

We recommend adding an additional qualification to the list: 

"Willing to support the relationship and contact between the child and parent, and the parent’s efforts to remedy the issues within 90 days" 

Section D(2) 

We agree with comments from the Virginia League of Social Services Executives (VLSSE) on the subject of substance use disorder screening in Section D(2). We share the concern expressed by VLSSE and the analysis from Casey Family Programs on the potential harm and lack of usefulness of drug testing and the disparate impacts of such. Black families, particularly, are over-represented in Virginia’s child welfare system. Assessments for treatment and safety can get people the help they need to be a supportive and safe environment for children and prevent over-reactive actions that can prevent family cohesion and safe placements (and which have already led to federal litigation). We support the VLSSE’s recommendations regarding Section D(2).

Section D(4):  

We recognize that kinship placement may ameliorate, but does not eliminate, the harm to a child of separation from their parent. We cite this statement from Casey Family Programs:  

The trauma of family separation is profound and can itself lead to or compound behavioral health challenges. Therefore, to address behavioral health, child protection agencies must first acknowledge the damaging effects of out-of-home placement and do everything in their power to keep children safe within their families. (Casey Family Programs, “How can child protection agencies partner to address behavioral health?” August 2024). 

Accordingly, we recommend that Section D(4) be rewritten as follows:  

“A written determination that the placement is in the child’s best interest, that the concern the placement seeks to address is not outweighed by the trauma of separation, and does not pose a threat to the child’s safety or well-being. This determination must be made and documented before separating the family and placing the child in the home.” 

Section F 

We are concerned that Section F provides for local departments to “schedule a facilitated meeting with the family within five business days of the child's placement in the caregiver's home...”  

Ideally, such a meeting should take place before the change in the child’s living arrangements. As stated in the Family and Child Services Manual of the Virginia Department of Social Services, such a facilitated meeting, known as a Family Partnership Meeting or FPM, should be held “At the point that a critical case decision must be made: potential child removal; potential child placement change (placement disruption or change in foster care goal); or reunification.” (VDSS Family and Child Services Manual, Section 2, Page 52 (July 2024).) 

The purpose of the meeting, as described in proposed Section F, is to “discuss all potential options for the child, family, and caregiver. The local department must discuss the benefits, requirements, advantages, and disadvantages of the following options at the facilitated meeting: (i) the child’s entry into foster care and the potential for the caregiver to become an approved kinship foster parent; and (ii) financial assistance that may be available to the caregiver if the child remains with the caregiver under the Parental Child Safety Placement Program, including the process for accessing such financial assistance.” 

VPLC therefore recommends that Section F be revised to read: 

 F. The local department must schedule a facilitated meeting with the parent or guardian and relative caregiver—and the child, if age 12 or older—preferably before such change in living arrangements, but in no case later than within five business days of the child's placement in the caregiver's home to discuss all potential options for the child, family, and caregiver.  

If the parent or guardian, child, or relative caregiver is deaf, hard of hearing, or not proficient in English, an interpreter must be provided at this meeting, and any documents provided must be translated into the appropriate language. 

If the facilitated meeting cannot be scheduled prior to the change in living arrangements, the local department must discuss with the parent or guardian and relative caregiver, prior to such change, the benefits, requirements, advantages, and disadvantages of the available options, including (i) the child’s entry into foster care and the potential for the caregiver to become an approved kinship foster parent; and (ii) financial assistance that may be available to the caregiver if the child remains with the caregiver under the Parental Child Safety Placement Program, including the process for accessing such financial assistance. 

The issues that must be discussed at the facilitated meeting include these, a specific plan for the parent or guardian child, and caregiver, including a detailed plan for how the local department will provide reasonable efforts to reunify the parent(s) and child, and any other issues the family, including the parent, child, and/or relative caregiver may raise. If they so wish, the parent(s), child, and/or kinship caregiver may have an advocate or support person may be present at the meeting. 

Section G.  

The provisions of Parental Child Safety Placement Program are intended to be voluntary on behalf of the parent, but Section G as written does not provide for this voluntariness. Nor does it address the right of the parent to consult with legal counsel before entering into the agreement, as provided for Va Code § 63.2-1533 (B)(3). VPLC therefore recommends the following revisions to Section G: 

“If it is determined at the facilitated meeting that the family is willing to participate in the Parental Child Safety Placement Program, the parent, guardian, or legal custodian must enter into a Parental Child Safety Placement Agreement as designated by the Department in the Child and Family Services Manual with the local department within three business days of the facilitated meeting. The Parental Child Safety Placement Agreement must:  

(i) be in writing and contain the terms outlined in § 63.2-1533 of the Code of Virginia;  

(ii) be written with the input of the child’s parent, guardian, or legal custodian, and translated into their preferred language if not proficient in English; 

(ii) be provided to the child’s parent, guardian, or legal custodian for review prior to signing, including, at the parent or guardian’s option, and as provided for in Va Code § 63.2-1533 (B)(3), an attorney for the parent or guardian;  

(iii) include the signatures of the child’s parent, guardian, or legal custodian, the caregiver, and the local department; and 

(iv) be scanned into the child welfare information system. 

Section J. 

Because the agreement is voluntary, any extension of the Parental Child Safety Placement Agreement must be voluntary as well.  

Therefore, VPLC recommends the following change to the first sentence of Section J: 

The Parental Child Safety Placement Agreement may be extended once, if the parent or guardian so agrees, for no longer than 90 calendar days and the reasons for such extension must be documented. 

Section K 

As written, Section K seems to unnecessarily burden both the family and the local department, and again, does not include a child age 12 or over in planning. VPLC therefore recommends the following amendments to Section K1, and eliminating Section K2: 

If is determined that the child can be safely returned home, the local department must hold a facilitated meeting to develop a safety plan with the child's parent, guardian or legal custodian, the child if age 12 or over, and the caregiver to plan for the safe return of the child to the child's parent, guardian, or legal custodian or to another legal custodian.   

If it is determined that a safety plan, and/or continued services are required for the child to safely return home, the local department must document the need for them, what they are, and how long they will remain in place. If the child's parent, guardian, or legal custodian, agrees, the local department will document the In-Home Services case for continued services and the date on which the case will be closed. 

b. If the child's parent, guardian, or legal custodian does not agree to the In-Home Services case remaining open for continued services, or if it is determined the child cannot be returned home safely, the local department may seek a child protective order or other appropriate court action. 

c. Any and all case decisions, continued services, safety plans, or court orders must be documented in the child welfare information system. 

Section K2 

VPLC believes the above recommendations for Section K1 obviate the need for Section K2, and therefore recommends this section be deleted. 

We appreciate your consideration of these recommendations.

Sincerely, 

Valerie L’Herrou, Esq. 

Deputy Director, Center for Family Advocacy 

Virginia Poverty Law Center