State Parent Defender weighs in with panel for 2025 report to the U.S. Commission on Civil Rights

August 7, 2024, State Parent Defender Wendy Sotolongo gave testimony to the North Carolina Advisory Committee to the United States Commission on Civil Rights. She provided seven specific recommendations to the committee through a lens of having spent more than 35 years practicing abuse, neglect and dependency (A/N/D) law in North Carolina. She said outright that child safety is non-negotiable, but most of the children in the system are there because of neglect, not abuse. And she asked the question: “What if those families labeled neglectful were offered the support and resources they needed instead of an investigation.” What if we took care of families’ needs so they could be well and avoid the trauma of investigations and separation altogether?

This particular advisory committee out of North Carolina landed on studying the child welfare system for the current term, which closes May 2025. Since March 2024, it has worked toward answering the guiding question of “whether the implementation of Rylan’s Law has a disparate impact on individuals that are members of a protected class.”

According to the committee’s project proposal, it would focus specifically on outcomes of state intervention so far; an analysis of disparities, if any, in the child welfare system based on race, color, age, disability, or other federally protected category that state intervention has and/or can address; the impacts of Rylan’s Law on child/parent reunification rates; and areas for improvement in the implementation of Rylan’s Law.

Sotolongo was a guest speaker for the “Policy and Governance” panel.  This panel was the third of five planned public briefings where the committee would hear from stakeholders, experts and citizens on the topic of the child welfare system in North Carolina. Those invited to give testimony spoke to their own expertise, experience and perspectives to inform the committee and shape how it might identify areas for improvement. And while it is difficult to guess what will come out of the North Carolina study of this national issue, the committee aims to consider every testimony, every data point, every written public comment, to develop informed recommendations to the United States Commission on Civil Rights around Rylan’s Law.

Sotolongo said she had many approaches she considered in addressing the committee about a topic she is so deeply passionate about. She settled on making certain she only spoke to her area of expertise, knowledge and access to information, which called for her to “be the lawyer.” So, she discussed the impact of the law upon families and what, from her vantage point, can be done to improve the system by way of amending NC’s juvenile code.

Sotolongo spent 16 years of her career as a DSS representative, early on, and later as a Guardian ad Litem attorney advocate, believing all the while that she was “helping children.” But in each of those jobs, she admitted seeing no real results from her court cases that pointed to improvements in the outcomes for children and families who are caught up in the system. And so, she offered these seven recommendations:

1. North Carolina should study its Mandated Reporting statute. Sotolongo cited a report showing that 42.1 percent of reports to a county DSS are screened out and another report showing that only 17 percent of all abuse, neglect and dependency reports received are substantiated. “Clearly, there is a lack of understanding or training around what should be reported, leading to over-reporting by mandated reporters and unnecessary investigations.” Sotolongo recommends the state use a research organization to study whether the universal mandated reporting law is keeping children safe and whether alternatives may be more effective in identifying children at risk of harm.
2. Parents should have access to attorneys during a Child Protection Services (CPS) investigation. Sotolongo said that by the time a petition has been filed, the parent’s child has often already been removed from the home. Removal creates long lasting trauma for the family. She recommends providing legal representation before a petition is filed, to help stabilize families and prevent removal. Such pre-petition, preventive legal representation programs can prevent child maltreatment. “North Carolina should amend NCGS 7B-602 to ensure parents have access to quality legal representation during a CPS investigation.”
3. North Carolina should amend its statutes that address the removal of a child from a parent to require the court of address the trauma of removal and the steps taken to mitigate the trauma. Sotolongo pointed out that there several North Carolina statutes address the criteria for removing a child from a parent’s custody. But none of those statutes address the impact that removal has on the child. “Investigation, removal and placement are traumatic events, in and of themselves, for all involved.” She recommends the state incorporate consideration of the emotional and psychological harms of removal in these statutes and require CPS to detail its plan to mitigate traumatic effects.
4. North Carolina must fundamentally change the culture of parent-child contact after removal. One hour per week is not enough time to tell if a parent can demonstrate they have done all they were supposed to, in order to reunify with their child. Sotolongo said North Carolina should amend its statute that addresses visitation and establish the presumption of weekly, multi-hour, unsupervised visitation unless it has proven contrary to the safety of the child.
5. North Carolina should pass the Senate version of SB 625 to allow children to maintain ties with their families after adoption. “Termination of parental rights is rightly termed the ‘Death Penalty of Civil Cases,’” said Sotolongo. Recent trends that give parents some right to have contact with or receive information about their child after adoption are called “open” adoptions. Recent decades trend toward more adoptions that are open are especially beneficial to older children, who often have strong attachment to their parents. They can often benefit from maintaining some form of connection after adoption.
6. Increase the pay for attorneys providing legal services to parents in A/N/D cases. Rylan’s Law fails to address the need for high-quality legal representation for parents in A/N/D cases. Fewer and fewer attorneys are available to take court-appointed cases. Caseloads grow and quality suffers. Due to a slash in the hourly rate for A/N/D cases in 2011 from $75 to $55 per hour, and then a slight bump in 2022 to $65/hour, good attorneys who were compelled to “serve justice and protect a parent’s constitutional rights” were forced to leave parent defense because they could not afford to do the work any longer. The rate should be increased to meet inflation so attorneys can stay in business and earn a wage that keeps up with the cost of living.
7. Provide interdisciplinary legal representation to all parents with an A/N/D case. Sotolongo is a proponent of Interdisciplinary Parent Representation (IPR). She launched an IPR program in 2022 in the State Office of the Parent Defender because attorneys need resources to provide holistic representation to their clients. For example, having a social worker as part of the defense team can improve legal representation for parents, shorten lengths of stays in foster care by children and improve overall outcomes for families.

North Carolina Session Law 2017-41, House Bill 630, Part X, known as “Rylan’s Law/CPS Observation” was approved June 21, 2017. The NC General Statute 7B-903.1(c) was revised to address parent-child visitation prior to physical custody being restored to the care of the parent or caretaker from which the child was removed. Essentially, it would require county child welfare agencies to observe and document two visitations between the parent/caretaker and the child, for no less than one hour each and conducted at least seven days apart, before the agency might recommend the child be returned to the parent/caretaker from which they were removed.

About the Advisory Committee:

“On average, advisory committees produce at least one report to the Commission per four-year term that reports salient civil rights concerns in the state,” said Ana Victoria Fortes.

Fortes is the Designated Federal Official appointed to this advisory committee. She said the committee is “in no way an enforcement agency;” its role is strictly advisory and that its report to the Commission serves as a “document that could potentially be used to move public policy.”

“Its main purpose is to bring forth the concerns found through the study. Generally, the report is a public policy tool—used not to enforce anything, but to capture what is occurring at this time in North Carolina,” she said.

She said before the report comes out, there will be several meetings to debrief testimony and review drafts of the report. After member of a fifth panel gave testimony on September 27, the Committee members were left with an incredible amount of information to go through, to understand, and to consider as they move toward deciding what to report and whether to include recommendations or not.

According to Fortes, the goal is to have the report voted on before May 16, 2025, and to have its findings and recommendations released to the public by July 2025.

Before the report is finalized, the committee will answer some reflective questions and identify themes that surfaced throughout the study. If a panel participant is cited in the study, there will be time for the DFO and editors to reach out to them in time for a draft report sometime in April 2025. If cited, the panelists will be contacted to ensure factual accuracy and to clarify anything that wasn’t clear in their original presentation.