In some states, an unpaid foster care bill could mean parents lose their kids forever

When Sylvia and Brandon Cunningham got out of jail in North Carolina several years ago, after serving months on drug charges, a judge laid out the steps they needed to take to get their children back from foster care.

After a balky start, they followed through. They got sober and stayed sober. They attended parenting classes and therapy. They got jobs. They showed up for weekly visits with their kids.

Eventually, a judge determined that the Cunninghams had shown they could be good parents and that their house — a tidy trailer at the end of a dirt road — was safe for their children.

But only three of their four children came home.

In 2021, the Supreme Court of North Carolina ruled that one of their sons — who was then 5 — was properly placed for adoption on the grounds that the Cunninghams had failed to reimburse the government for some of the cost of their child's foster care.

And in North Carolina, that's reason enough for a court to permanently take away your child.

"It's crazy," Sylvia Cunningham said. "No one understands it."

Added Brandon Cunningham: "I don't understand how we get three of our kids back and that one child is just gone."

North Carolina is one of at least 12 states, according to an NPR survey, in which mothers and fathers can lose the rights to parent their children forever if they don't pay a little-known and controversial debt to the government.

That debt — from a bill that many parents get for some of the costs when their child is placed into foster care — is under attack around the country. Federal law requires states to bill parents, in order to reimburse some of what Washington pays states for foster care. But because the federal underwriting of foster care applies only to families eligible for welfare, the bill to collect that money targets the poorest families.

That bill can be a big one, often hundreds of dollars a month.

Now, there are mixed signals coming from Washington. Last summer, the U.S. Department of Health and Human Services issued new guidance to states and recommended that they stop charging and collecting money from poor families when their children go into foster care.

That new guidance came after an NPR investigation in 2021 showed the practice keeps struggling parents in debt and can delay or even prevent them from being reunited with their children.

But even as the federal government urges states to stop making poor parents pay, a new NPR survey finds that at least 12 states make failure to pay an acceptable reason for courts to terminate a parent's rights to their child altogether.

In addition to North Carolina, Georgia, Kansas, Kentucky, Massachusetts, Minnesota, Nebraska, Oklahoma, Oregon, Rhode Island, Vermont and Wisconsin have similar laws.

In most states, it's rare that parents lose their rights to their children for failure to pay the foster care bill.

But in North Carolina, NPR reviewed 200 appeals court decisions — in the state's Supreme Court and Court of Appeals — over the last two years. The failure to pay some of the cost of foster care came up in 30% of termination of parental rights cases.

Most of the time, the cases also included more serious grounds, like abuse or abandonment. Often these are cases where there is a long and continuing record of problems.

But in a dozen cases, failure to pay was the sole reason.

Among the families NPR found:

• One mother — the victim of domestic violence — reported her abusive partner to police. Her five kids went into foster care. Then she lost her children for good for failure to pay — even though she speaks limited English, was from another country, unfamiliar with American courts and, according to court filings, says no one told her to pay.
• One man spoke of being penalized because when he was in prison, he didn't put aside some of the pennies an hour he made from a prison job.
• One young woman, who was 15 when she got pregnant, had her daughter taken because she didn't pay the foster care bill — even though both she and her child were in foster care themselves.

It's "absolutely wrong" and "immoral," says Sydney Batch, a Raleigh family law attorney and member of the North Carolina state Senate, to use failure to pay for foster care as a ground for ending parental rights.

Batch says North Carolina law already has plenty of other grounds for, if necessary, ending a parent's rights to their child.

She wants her colleagues in the legislature to change the law that uses failure to pay for foster care as a reason against impoverished families.

"It's a tax on the poor," Batch says. "And it is a permanent, irrevocable penalty because you happen to be poor in North Carolina and are not able to pay your bills. So, therefore, you lose custody of your children."

In North Carolina, an appeals court needs just one ground for ending a mother or father's rights to their child.

To court observers like attorney Wendy Sotolongo, who runs a network of child welfare lawyers for North Carolina's Office of Indigent Defense Services, judges rely on the failure to pay as an easy way out. "It is, by far, the most unfair ground to parents," says Sotolongo. "And it's the easiest ground to prove."

Judges, she complains, will sometimes use that ground without considering whether a parent has complied with the rest of a court's order — to get sober, or find a job, or to get involved in the child's life.

"Did my parents just leave us? Did they just not care?"

In July, Courtney and Jeremy Johnson took Matchbox cars, clothes and other presents on their monthly visit to see their twin sons in foster care. There was a happy celebration of the boys' seventh birthday.

The Johnsons, who faced allegations of neglect, were seeking to get their boys home for good.

But days later, the state Supreme Court ruled against them — on the single ground that they had failed to pay for some of the cost of foster care. They never got to see their boys again or to say goodbye.

Courtney wonders what her boys must be thinking.

"'Did my mom, did my parents just leave us? Did they just not care?'" she asks, tearing up. "And as a mom, you should be able to fix their pain."

Courtney and Jeremy say they weren't told they owed the money until after officials in Beaufort County, N.C., moved to terminate their rights to their twin boys.

County social service officials did not respond to requests for comment. But court documents show that officials argued that they'd mentioned their intention to seek the money in a report submitted to the court. The Johnsons say, in court documents, that they didn't see it.

Still, it took another two years for another county agency to issue a "child support" order to calculate what was owed and collect it. By then, the county had already started the process to terminate parental rights, arguing that the Johnsons had failed to pay.

The Johnsons say they would have tried to pay earlier, had they been told. Jeremy already paid — faithfully — a child support order for his teen daughter from a previous relationship.

The boys had gone into foster care in 2017 after county officials alleged that Courtney hadn't taken them to some necessary medical appointments. The boys were born premature and showed signs of developmental delays. Courtney says officials overestimated the delays and court documents show the boys caught up.

The twins came back home for a trial home placement in late 2018.

Then, in May of 2019, one of the boys burned his fingers on a barrel of burning trash in his grandfather's backyard and Courtney, after calling a nurse for advice, put burn cream on his blistered fingers. Department of Social Service workers argued that she should have taken him to the doctor right away. The county took the boys again.

The Johnsons say, and court documents indicate, that their son's fingers healed normally and that they complied with the court-ordered steps to get their sons home. They went to parenting classes. Courtney found a job and put the boys into day care.

And they found better, more stable housing — a three-bedroom trailer that they filled with family photos. There are bedrooms with bunk beds and toys, the walls painted in fun colors.

There is room, too, for Courtney's four children from a previous relationship, who now live with a family member.

The bill for the twins "came out of the blue," Jeremy says. He didn't find out until the day he was summoned to court and was surprised to find out how much he owed: $17,000.

That bill — for three years of foster care for the two boys — is a big expense to a couple that lives from paycheck to paycheck.

They were already paying more for the bigger home they were told to get. They started paying down the bill for foster care. The county garnishes Jeremy's paycheck — about $500 a month, he says — and it takes his tax refunds.

"We had to save up and borrow, dig myself out of a hole for a while," Jeremy says. "Got a better job."

Jeremy quit his job driving for the nearby egg farm and got a better-paying job on a construction site, even though it's often a five-hour commute, round-trip.

"When families have additional bills, children stay in foster care longer"

The bill that parents get for part of the cost of their child's foster care is often a big one. The NPR investigation last year found bills in states across the country ranging from $25 to more than $1,000 a month.

It's a bill that goes to poor families, ones eligible for foster care that is subsidized by the federal government under Title IV-E of the Social Security Act.

A federal law, nearly 40 years old, tells states to collect money from those parents when their children go into foster care. That law was passed at a time when policymakers in Washington wanted people who got assistance from government to share responsibility and pay some of the cost of that care.

President Ronald Reagan, when he signed the bill, called the failure of some parents to provide financial support for their children a "blemish on America."

The thinking about what's best for children has changed since then. Research and best practice in child welfare hold that, in most cases, children do best when they can be reunited with their parents. In 2018, Congress passed legislation to push child welfare agencies to make reunification easier and the first priority.

The 1984 law gave states discretion to go after the money or not. It says parents should be charged when it's "appropriate." Many child welfare agencies interpret that clause as a reason not to charge parents — especially when the agency is hoping to reunify parents with their children.

But many child welfare officials say they feel obligated by the federal law to bill parents. NPR found that every state and the District of Columbia try to collect money. In 2021, $96 million was collected from parents and returned to the federal government.

Last summer, the Children's Bureau and the Office of Child Support Enforcement at the U.S. Department of Health and Human Services issued new guidance to states and recommended that they stop billing poor parents.

A few, including Washington state and California, have taken steps to change the practice, and others, like North Carolina, have indicated they will.

"We know that when families have additional bills, children stay in foster care longer. Which is not what we want," says Aysha Schomburg, associate commissioner of the Children's Bureau of the Administration on Children, Youth and Families at the U.S. Department of Health and Human Services.

"A goal is to increase the opportunity for economic stability and mobility and not adding challenges," says Tanguler Gray, commissioner of the Office of Child Support Enforcement, also part of HHS.

One study from Wisconsin found that for every $100 charged to parents, reunification with their children was delayed by 6.6 months.

It even costs states money when they try to collect these payments.

Studies in Minnesota, Washington state and Orange County, Calif., found that agencies collected only 24 to 41 cents for every dollar spent trying to track down families and collect.

Parents are often so poor that they don't pay. Or they move around and can't be found.

But states continue to send bills to these parents even after their parental rights have been terminated or their children are out of foster care.

"It's putting an extra burden on parents"

For the Cunninghams, Johnsons and other families in North Carolina who had their parental rights to children terminated by courts for failing to pay the bill for foster care, there's often another confusing factor.

They say in court filings they were never told they owed the money and that no formal child support order was ever issued.

"Your child is never coming home because you failed to give the government money. Even though the government never asked you to pay a dime," says Benjamin Kull, the attorney for Brandon Cunningham and Courtney Johnson. "How can you say this is right?"

The state Supreme Court said the Cunninghams and Johnsons had an "inherent duty" to support their children. It didn't matter if they'd been told to pay or not because they should have known.

The court referred to a February 2020 ruling against a mother who was the victim of domestic violence but lost her five children.

The opinion in that case, In Re S.E., set the precedent about a parent's obligation to pay. "The absence of a court order, notice or knowledge of a requirement to pay support is not a defense to a parent's obligation to pay reasonable costs," the court wrote, "because parents have an inherent duty to support their children."

The mother, the court continued, "cannot hide behind a cloak of ignorance to assert her failure to pay a reasonable portion of the cost of her children was not willful."

Timothy Heinle, at the University of North Carolina School of Government, who teaches child welfare law to attorneys who represent indigent parents, says the court's argument is "reminiscent of the old saying, 'ignorance of the law is no defense.'" Someone speeding down a city street at 70 miles per hour should know that's above the speed limit.

But Heinle, an attorney, counters: "Speed limits are posted." Nothing is similarly posted for parents in child welfare cases. "The lack of a notice requirement to the parent certainly puts parents in a challenging position," Heinle says.

Heinle says a parent can't just "walk up to my social worker and hand her $20 or $50." The social worker is not allowed to take that money, he says.

Instead, there needs to be a formal child support order issued to set up the government system to make those payments.

The mother in that precedent-setting 2020 case says she doesn't want to be anonymous anymore.

Seram Enos tells NPR: "It was incredibly sad and it caused me a lot of heartache. I lost five of my kids."

Families of color, like hers, are the most likely to permanently lose their rights to their children, according to federal statistics.

Enos was born in the Marshall Islands. Citizens of that Pacific Island nation, the site of U.S. atomic weapons tests in the 1940s and 1950s, can get work permits in the United States.

Many, like Enos, take jobs in poultry processing facilities. Enos assembles sandwiches at one in Burke County, N.C.

After her young daughter said her father was hitting her, Enos took the girl to the police station. There, the 9-year-old girl said her father hit her — and that he touched her, too. The child's father, Seram Enos' partner, would later plead guilty to child rape.

Enos, who speaks limited English, spoke with NPR through an interpreter. She said that when she was at the police station — without an interpreter — she struggled to understand what was happening.

Enos says, and the court acknowledges, that she was a frequent victim, too, of her partner's violence. She says when she took her daughter to the police station, she wanted to be placed in a shelter for victims of domestic violence.

But Enos faced charges, too, accused of being aware of her daughter's abuse. She was indicted for failing to protect her daughter and, according to court documents, that she "did allow" the sexual abuse to occur.

Enos told NPR that she didn't know. She says she worried about what her partner was doing but when she tried to ask her daughter she didn't get an answer.

Enos went to jail. She had no money for bail. After more than three months, court documents show, she signed a plea deal. She was released from jail and given a suspended sentence.

A judge, under rules for "extraordinary mitigation," allowed the original charge to be substituted with a different one, a felony for intentional child abuse. Enos admitted to a single incident of slapping her daughter so hard that it left "bruising and swelling of her right cheek," according to court documents. This happened at the time she'd brought the girl to the police station.

The documents also say Enos "acknowledged wrong doing" when, in a moment of "duress," she'd slapped her daughter.

Enos told NPR she disputes this, too, saying it was her partner, not her, who hit the girl but that her priority was to get out of jail so she could work on getting back with her children.

"Her role in this brought the abuse to light," the court document for mitigation notes, "when she turned in her husband, even though she was facing a great deal of fear."

Once she left jail, another court laid out conditions for her to get her five children out of foster care. She got a new job, a car, an apartment. She went to therapy and a mental health evaluation.

"They're trying to say that I didn't care about my kids," Enos tells NPR. "Why would I have taken her to the police station? That shows that I really did. I wanted to take care of her and protect her and everything."

In the end, the state Supreme Court ended her parental rights — not because of her arrest or whether she'd adequately followed the conditions laid out by the judge. Her parental rights were terminated because she'd failed to fully pay the bill for foster care.

It's a bill, she says, she never was told to pay. Enos said she got no court order to pay, was not told she owed that money and, as a result, had no way to pay.

Enos says she would have tried to pay, had she known, and that later, she did. As she was trying to restart her life with her children, the county garnished money from her paycheck. That deduction, she says, made it hard to pay rent on the new apartment she was required to find in order to be reunited with her children and to provide for her children as a single parent in a low-wage job.

To get a bill to pay some of the cost of foster care sets parents up to fail, she argues. "It's putting an extra burden on parents and it's very challenging," Enos says. "Supposedly, they're helping you get your kids back, but that keeps you from getting your kids back."

Critics want North Carolina's child welfare agencies to not only stop billing parents for the cost of foster care but to stop using that as grounds to ask courts to remove their children.

A solution is not easy

"There's a disconnect between the policy, practice and the statute," says Sara DePasquale of the University of North Carolina School of Government. "They are not aligned right now."

Part of the problem, she says, is that child welfare policy is a highly complicated "spider's web" of federal, state and local laws and practice.

Even North Carolina's statute that lays out the 11 grounds for terminating parental rights has its contradictions. The law specifies that a mother or father's rights can't be "terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty."

But because the vast majority of people caught in the child welfare system are poor or slightly above the poverty line, most who lose their parental rights are impoverished.

"The country club neighborhoods are not the neighborhoods where DSS (the Department of Social Services) is knocking on the door," says parent defender Wendy Sotolongo.

North Carolina's state Department of Health and Human Services is moving to comply with the new guidance from Washington, according to a spokesperson. But that requires gaining consensus between the state's child welfare officials and others who collect child support.

In North Carolina, child welfare is run by counties. So guidance from the state agency, DePasquale notes, then gets interpreted by child welfare directors in 100 counties.

Even if the state agency follows the recent federal guidance and tells county agencies to stop collecting foster care payments, there's still the law on the books that lets courts end parental rights.

Batch, the family law attorney and member of the North Carolina Senate, says that's why there needs to be legislation to end failure to pay for foster care as a ground for termination of parental rights.

Batch says she'll ask North Carolina lawmakers to remove failure to pay for the cost of foster care from the list of grounds for terminating parental rights.

There's one more possible solution: The attorney for Courtney Johnson petitioned the U.S. Supreme Court and asked it in a writ of certiorari to take up the issue. The petition asks the high court to tell North Carolina to stop taking children from families like the Johnsons — for failing to pay something they were never told they needed to pay.

"I never thought I could be this guy. But, hey, here I am."

The trailer where Brandon and Sylvia Cunningham live in Martin County, N.C., is filled with echoes of bad times — but also of their new and more hopeful life.

They live with their three children who came home: two older children — a 19-year-old son and 17-year-old daughter — and a 2-year-old boy.

That youngest child went into foster care days after he was born because the family was already involved in the child welfare system and facing the termination of parental rights for their other children.

The house is filled with pictures of their kids and many of the son, now 7, who is gone.

Brandon stays at home on the weekends when Sylvia works two jobs at restaurants.

On a Saturday morning, Brandon reads picture books, which came in the mail from Dolly Parton's book gifting program, with the 2-year-old son.

Brandon makes good money now. He works at a company that cuts lumber for fence posts. He's been promoted to supervisor and recently hired his older son, Brandon Jr., to work there, too.

Now Brandon and Sylvia save their money and watch it grow in a brokerage account. They've got their eyes on a new house, a brick rambler not far away.

"I was always blowing money. I'd come home on Fridays, paycheck gone. Wake up broke on Saturday," says Brandon. "Now I'm the most responsible guy with money you can be. I've always got money in the bank account. Always take care of the bills, finances. I never thought I could be this guy. But, hey, here I am."

On this day, as on most weekends, Brandon gets up for an early breakfast in town. It's 5 a.m. when he drives his white pickup along the dark road, shrouded in fog, to Cherry's Cupboard. It's a convenience store and grill with tables pushed together in the center next to racks of chips and coolers of sodas.

Customers come here for a pre-dawn breakfast or a cup of coffee before heading off to work. Some are old men who've known Brandon since he was a kid. Others went to high school with him. Brandon feels comfortable here. "They don't do a lot of judging. They know my past," he says. "They're proud of how far I've come."

On the streets of the tiny town of Bear Grass, some people praise Brandon and Sylvia for how they turned their lives around. But others, they know, figure their success won't last. Those are the ones who expected that "as long as we'd been addicts and our history," Sylvia says, "we would never be productive citizens. We would never stay sober."

But, she adds: "They're wrong. Once you get clean and you see how great life can be, you don't ever want to go back to that and be that person again. You never wanted to be that person to start with."

This story was edited by Robert Little. It was produced by Meg Anderson. Art direction and photo editing by Emily Bogle and Catie Dull.

Copyright 2023 NPR. To see more, visit https://www.npr.org.