In Durham, Children in Foster Care Struggle to Reunite With Birth Families

Jatoia Potts stared out the window of the Triangle Coffee House on an overcast, late Sunday morning, and a fountain of tears washed over her face. 

She was thinking about the last time she saw her oldest son, whom we will call Mark, in September 2019, during a one-hour visit with the then three-year-old at the Family Life and Recreation Center. 

“I just kissed his hand, made a little fist with his hand, and told him to put it in his pocket and take it everywhere he goes,” Potts says. “I can still see him walking across the parking lot and looking back at me.”

Earlier that year, charges of child abuse and negligence—related to injuries her youngest son, Ken, who was born prematurely, sustained—were dropped against Potts. A Durham County prosecutor wished her well and said, “Go get your kids.”

But Potts’s family was ripped apart in July 2021, when Durham district court judge Shamieka Rhinehart ruled against her in her quest to reunite with her children.

“Your kids have been in the same [foster care] placement for so long, it’s in their best interest to stay there,” Potts says Rhinehart told her at the time. 

Still, Potts says, she recalls the judge “was literally crying.”

“Why are you crying?” Potts recalls thinking. “You are taking my rights away.”

Elizabeth Simpson, an attorney with Emancipate NC, a nonprofit dedicated to dismantling structural racism, told the INDY this week that Rhinehart’s decision—along with her order in October 2020 to cease any reunification plans for Potts to regain custody of her children—paved the way for Potts’s two sons to be adopted by a Fuquay-Varina couple who have had custody of her children from the onset of her legal nightmare in November of 2018.

“This family has wanted to adopt my kids from the beginning,” Potts says.

Over the past two years, more than 75 percent of children in Durham County’s foster care program have been African American, according to NC FAST, a state program that tracks data for the Department of Health and Human Services and county social services departments.

For Potts’s supporters, the disproportionate number of Black children in foster care custody ignites an uncomfortable comparison to slavery, especially if they are adopted by nonrelatives, as it’s a process that severs all ties to the child’s blood kin.

Felton Woods, Potts’s grandfather, who lives in Georgia and who is now trying to adopt Potts’s sons through a process known as the Interstate Compact on the Placement of Children (ICPC), was in the courtroom the day Rhinehart terminated his granddaughter’s parental rights. Potts says he told the judge, “It is not slavery time.” 

And on Monday, Woods attended a virtual press conference led by Emancipate NC intended to shine a light on what its leaders describe as a child welfare system in Durham County in need of systemic reforms. 

Last week, Emancipate NC attorneys filed a complaint in Durham County superior court accusing the county’s Department of Social Services (DSS) and county officials of colluding “to tear Black families apart,” according to Dawn Blagrove, the nonprofit’s executive director. 

“It’s a form of torture that dates back to slavery,” Blagrove said.

Woods says he asked DSS if he could see his great-grandsons, but the agency never gave him an answer.

“They barred me from seeing them,” he said during the press conference. “They treated me as a noncitizen of this country. It was like back in the slaves’ day, when they would put them on the auction block. The day of [the termination] hearing, I just cried.”

DSS’s foster care program has received pointed criticism in recent months. In September, Emancipate NC published a 28-page report that ultimately calls for reforming the county’s child welfare system. The report illustrates what Potts has endured on a large scale. It points to understaffed and underpaid social workers and attorneys who represent parents. It cites inefficient court proceedings that can drag out with months of court continuances, along with employee burnout. The report portrays DSS as agency-centric instead of family-focused.

In order to bolster the agency and “fulfill its mission of protecting children,” the report offers a list of recommendations that include increasing funding for DSS social workers, extending parents’ visitation with their children to more than one hour each week, and focusing on family-centered treatment plans that address underlying causes that break families apart in the first place—unstable housing and a lack of access to medical, mental health, and substance abuse treatment.

“Instead of DSS taking children out of the home, parents should get a stipend,” Simpson, Potts’s attorney of the past three years, says. “DSS is paying, but they are not paying the biological family. They get a stipend to place a child in another home.” 

Simpson says that, anecdotally, Durham County has a reputation for splitting up families: “If someone is trying to adopt a kid, Durham allows families to adopt out of the foster care system,” she says. “Durham will make sure you get to adopt, whereas in other [North Carolina] counties, they might give the child back [to the biological parents].”

On paper at least, Durham DSS is already following guidelines that are among Emancipate NC’s recommendations. According to the county’s website, the foster care program provides temporary care for children subjected to abuse, neglect, or dependency. Young people who are unable to remain safely in their home can be placed in foster care that’s described as “temporary legal custody.”

The county website adds that foster care placement has the goal of reunifying children with their birth parents or caretaker within 12 months. The agency also touts a case management approach that is “family centered, strength-based, and trauma-focused.”

The website further states that adoption is “a means of providing for children who are legally free for adoption because they cannot return to their parent or removal caretaker.”

But Simpson describes a county foster care system that is at odds with its stated goals for foster care. 

“I have never seen a court so unfair, where the odds are stacked against people’s rights, and the stakes are so high: the loss of their kids,” Simpson says of the DSS child welfare cases. “But it’s in district court, where the matter is treated like a traffic infraction.”

Parents, she adds, “are being railroaded.”

“[If DSS has] an agenda where they want to take your kids, they will find the reason to justify it,” Simpson says. “They will find some reason against you, and the district court will accept it.”

Sarah Bradshaw, the DSS interim director, declined to comment on Potts’s case or on the Emancipate NC report from last year. But she shared records of the number of children who have entered foster care in Durham County over the past decade, as well as how many youngsters were reunited with their parents for each year.

Over the past five years, the average annual number of kids in Durham County reunited with their birth parents declined, specifically from 2018 to 2020.

Although her parental rights were terminated in 2021, Potts continues to fight to regain custody of her children.

During Monday’s press conference, Simpson said a DSS social worker and county attorney have interfered with Potts’s family members—Felton and Guseral Woods, the children’s great-grandparents—who filed kinship-adoption petitions on February 3 with the county’s special proceedings office to adopt Potts’s sons.

Late last week, Simpson filed a writ of mandamus, a request for a court order that compels a government official or lower court to properly fulfill their official duties or correct an abuse of discretion. Simpson says there is evidence of collusion and obstruction by DSS officials acting to prevent petitions from Potts’s family members from being filed with the county.

The writ of mandamus, which names clerk of court Aminah Thompson and DSS interim director Bradshaw as the respondents, asks that Thompson “duly stamp and file the petitions,” order DSS to “cease advising the clerk’s office about whether to file documents,” and call on DSS to “fill out and expeditiously process paperwork” that will allow for an ICPC so that Potts’s children can live in Georgia. The motion also asks the court to withhold DSS’s “consent to any competing petition [presumably from the foster parents in Fuquay-Varina] until the Georgia kin’s applications are complete and given fair consideration.”

“As a result of Durham DSS’s ongoing scheme to route children into a grossly premature foster-to-adopt non-kin placement,” Potts’s sons “have been deprived of a loving, stable and appropriate kinship placement in … Georgia that has been available to them for several years,” Simpson stated in the motion.

The writ of mandamus marks Potts’s latest attempt to have a visible role in her sons’ lives, but her story starts in late 2017.

In August of that year, Potts, six months pregnant with her second child, went into labor. Her older son Mark was not quite two years old. 

Three months early, the new baby, whom we’re calling Ken, weighed three pounds when he was born. He was treated at Duke Hospital’s neonatal intensive care unit for three months before his parents could take him home. 

Potts had her son at home for 22 days. During that time she took him to an ophthalmologist at Duke Hospital for an appointment. Everything appeared to be fine with the child.

But shortly after the visit with the eye doctor, the child’s health deteriorated. 

“He was really sleeping a lot, and not eating. He was sleeping for over three hours at a time,” Potts says.

“I was changing his diaper and his leg jumped, like a muscle spasm,” she continues. “His upper body was shaking, and his eyes were glazed and, like, on one side.”

Potts took the infant to Duke’s emergency room, where medical officials told Potts her baby was lethargic. They questioned whether he was having silent seizures. Doctors did X-rays and called child protective services (CPS) after determining the child had multiple leg fractures in different healing phases.

“They said some [of the fractures] could be months old,” Potts says. “But he had just come home [from] the hospital, where he was for three months and [was at] home for three weeks.”

Hospital officials described the child’s injuries as resulting from “nonaccidental trauma,” directing their suspicions at the couple.

CPS workers placed the child in DSS custody and assigned Potts’s mother as the child’s custodial parent. But Potts’s mom was struggling with a terminal illness. She has family members living in Georgia and Florida, so she asked DSS officials to place her kids with them through ICPC, which relies on social workers from different states working together to determine whether a child can be safely placed in home out of state.

Instead, DSS social workers deemed the baby’s case “an emergency dependency” and put the kids in the foster system on January 5, 2018, Potts says. A social worker called her and told her the kids were being taken out of their home.

“She said it like it was so simple,” Potts says about the phone call. “I was just screaming and hollering.”

Potts was not allowed to see her younger son, Ken, but she was granted one-hour visits with her older son, Mark, once a week.

Potts and the children’s father were both arrested on felony abuse charges on November 7, 2018. 

In 2017, after taking Ken to the emergency room, Potts requested his medical records from Duke Hospital. She did not receive the records until the beginning of 2018. The documents were “thousands of pages,” she says. She was looking for clues that might explain his injuries.

“I mean, I know I didn’t hurt my child. So I got his records,” she adds.

While poring over the records, Potts saw where a physician had written that her son had “weak bone marrow, osteopenia,” a condition that may be present in premature children that’s caused by a decrease of calcium and phosphorus in the bone. The condition can cause bones in premature babies to be weak and break, according to the National Institutes of Health.

“It was clear as day,” Potts says. “They sent my baby home, but anything could’ve fractured his bones.”

The children’s father in May 2020 wrote a lengthy email to the social worker handling the case. He confessed that he had accidentally dropped his youngest son and was sentenced to five years’ probation while agreeing to plead guilty to one count of child negligence.

The man is now a convicted felon who has no contact with his children or their mother, who filed for a restraining order after he said he dropped the child.

But now, Potts says, she does not believe he dropped his son.

“No,” she says while shaking her head. “He figured if he confessed, they would drop the charges against me and we could get our kids back.”

In July 2021 Potts appealed Rhinehart’s decision with support from the ACLU of North Carolina, the NC Justice Center, the state NAACP, and the NC Coalition Against Domestic Violence, who all filed amicus briefs on her behalf when she petitioned the NC Court of Appeals to review the case.

On September 6, 2022, the state appeals court issued a 95-page opinion upholding Rhinehart’s decision. And yet, the appeals court also found that Potts had “neither participated in or condoned” abuse of her children, Simpson stated in the writ of mandamus.

Potts is mostly out of touch with her children’s father, the man who was there for the home birth of their first child, whom Potts describes as a very caring and present father who was looking forward to a home delivery with their youngest boy.

“We were a normal, young Black family. We were young, but we had our stuff together,” she says. “He doesn’t have a job, and no place to live. He’s somewhere in Raleigh. To be honest, with losing our kids, he literally lost his mind. That could have been me, to lose my mind like that. The system did this to him.”

Potts now works full-time as an organizer with Emancipate NC. She spends her time fighting for her children and for other families in a similar dilemma. 

“I just feel like parents give up because things are stacked so much against them,” she says. “I’m pretty sure that’s what [my sons’ father] did. He just gave up.”

Potts says she will persist in her efforts to get her children back. 

“I was literally placed on this planet to do this,” she says. “I’ll continue to share my story. My kids will grow up and see later that their mom was still out there, still doing stuff, still fighting for them.”

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Follow Durham Staff Writer Thomasi McDonald on Twitter or send an email to tmcdonald@indyweek.com. Comment on this story at backtalk@indyweek.com.