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This is the second in a three-part investigation published as a partnership between The Assembly and WBTV in Charlotte. Read parts 1 and 3.
Elizabeth Simpson vividly recalls her first day in Durham’s abuse, neglect, and dependency court, which decides child welfare cases. While she’d represented prisoners and immigrants, and recently started working for the civil rights group Emancipate NC, she had no background in the field back in January 2020.
But a colleague had introduced her to Jatoia Potts, who was fighting to regain custody of her children after the Durham County Department of Social Services (DSS) accused her of abuse and neglect. Two years earlier, her youngest son had suffered unexplained injuries that doctors attributed to “non-accidental trauma.”
Potts was unhappy with her court-appointed lawyer. Simpson hadn’t taken her case, but she was curious. What she saw startled her.
Watch our partner WBTV’s television segment on this story.
Potts’ family had driven to Durham from Georgia for the hearing, expecting her attorney to file motions to place Potts’ children with them instead of foster care, or at least reinstate visitation with Potts, which had been suspended. But that didn’t happen. Nothing happened. No motions were filed. No witnesses were called. Potts’ children remained in foster care. She wasn’t allowed to see them.
The cases that followed Potts’ went the same way, Simpson said. Attorneys appointed to represent parents, lawyers for the DSS and the guardian ad litem—a program run by the Administrative Office of the Courts that represents children—and the judge and clerks shared jokes and stories while nervous parents looked on.
“It just seemed like a clubhouse,” Simpson said. “I hadn’t really experienced anything like that.”
Simpson, who is also an adjunct professor at the University of North Carolina School of Law, agreed to become Potts’ lawyer. Though child welfare wasn’t her specialty, she figured she couldn’t do worse than Potts’ previous attorneys.
But in July 2021, District Court Judge Shamieka Rhinehart terminated Potts’ parental rights.
Representing Potts opened Simpson’s eyes to a part of the legal system that operates unlike any other and disproportionately affects Black, low-wealth parents who have been accused of abuse or neglect in Durham and across the state. According to state records, Potts, who is Black, was one of 34 Durham parents who lost their rights in the 2021-22 fiscal year; only one was white.
Since 2018, North Carolina courts have terminated the rights of nearly 1,200 parents per year, including an average of 32 per year in Durham, according to state records. Only 30 percent of the 5,020 North Carolina children who left foster care in the 2022-23 fiscal year were reunited with their parents. In Durham, the reunification rate was just 22 percent, less than half of the national average.
“It’s almost impossible to get the court to give the child back,” said Wendy Sotolongo, who heads the Office of the Parent Defender for the state’s Indigent Defense Services, which helps people who cannot afford attorneys.
This is the second in The Assembly and WBTV’s three-part investigation into Durham County’s child welfare system. The first part told the story of a mother charged with neglect—by far the most common allegation in these cases, and a term often synonymous with poverty. The final part details the bureaucratic and legal machinations that have prevented a father who has never been accused of abuse or neglect from gaining custody of his son.
Potts’ legal battle shows what can happen within the state’s slow-moving, secretive child welfare courts—and why critics say the system needs reform.
“Nobody wants children to be abused or neglected,” Simpson said. “But the way this system is being operated is harming families. It’s harming both children and parents. It is multiplying trauma.”
‘No Plausible Explanation’
Jatoia Potts’ problem was that she couldn’t explain what happened to her son.
She hadn’t planned to give birth to her second child, Kimoni, in North Carolina. She lived in Decatur, Georgia, but was in Durham visiting her mother, who had lung cancer and was in hospice care, when she went into labor two months early in August 2017. WBTV covered her case in-depth earlier this year.
According to court filings and medical records Potts provided to The Assembly and WBTV, the baby spent the first 11 weeks of his life in the neonatal intensive care unit battling respiratory complications and a bacterial infection. Potts said she and the father of both her children, A.J. Thompson, got an apartment near the hospital.
Doctors sent the baby home on November 7, 2017, and his doctor’s appointments over the next few weeks showed no concerns. But on December 3, his parents rushed him to the emergency room. He was suffering from “a head bleed, seizures, and possible blood loss in the abdomen,” according to court records. The injuries were life-threatening, and he remained in the hospital for the rest of the month.
Doctors and social workers suspected abuse. In January, the DSS petitioned for custody of not only Kimoni but their older son, Mansa, though there was no indication he’d been abused.
Potts and Thompson denied harming Kimoni, but the petition noted that they “could not offer any explanation” for his injuries. Child Protective Services investigators took that as evidence of guilt. In August 2018, Rhinehart declared that Kimoni had been abused and neglected and Mansa was the victim of neglect. (Under state law, children can be deemed neglected based solely on the fact that they live with an abused sibling.)
Court records say Potts “consented to all the facts” underpinning Rhinehart’s decision—that Kimoni had severe injuries stemming from non-accidental trauma, and she and Thompson were the sole caregivers—though neither parent admitted to harming the baby. Potts says her attorney told her that going along with the court would help her get her kids back.
In November 2018, police charged Potts and Thompson with abusing Kimoni, and they were jailed on $250,000 bonds that neither could pay. Potts spent the next eight months behind bars before being released following a change in Durham County’s bail policies. Thompson was freed a month later.
Potts said she refused several plea offers that required her to admit guilt or blame Thompson. “I’ve never seen anybody do anything, nor have I hurt my own kids. So I just sat there for that,” she said.
“It’s almost impossible to get the court to give the child back.”
Wendy Sotolongo, parent defender for the state’s Indigent Defense Services
During the first year that her kids were in foster care, Potts offered a few guesses for Kimoni’s injuries: She suggested his fractures might have come from being swaddled too tightly or from his treatments in intensive care. She also said a family member who had abused her as a child had access to Kimoni, according to court records.
But she was consistent that she didn’t know. Just as consistently, Rhinehart didn’t believe her, saying she had “continued concerns” that “there is no plausible explanation for [Kimoni’s] injuries.”
While Potts was in jail, the judge ruled that the DSS should plan to put the two boys up for adoption. The court scheduled a final hearing on their permanent plan for February 2020.
‘Bizarro-land’
Simpson prepared for her first hearing as Potts’ attorney like she would for any other court appearance. She lined up testimony from family members and readied arguments that the children should be placed with relatives in Georgia rather than a foster home. (State law prioritizes kinship placements.)
But abuse, neglect, and dependency courts don’t operate like other courtrooms. Simpson learned this when Rhinehart threatened to jail her for bringing people to the hearing to support Potts or discussing the case with third parties. “She was like, ‘This is a confidential courtroom, Miss Simpson. You cannot share anything that happens in this courtroom.’”
In North Carolina, child welfare courtrooms are open to the public unless a judge declares it closed, which they can do for any reason. And while all court filings in these cases are sealed—the records used in this series have been provided by parents or referenced in appellate court opinions, which are public records—state law prohibits judges from barring observers, including journalists, from reporting what they witness. But that’s not necessarily what happens.
As The Assembly reported in September, a Guilford County judge imposed a legally dubious gag order on a journalist and seized her notebook. A bailiff in Durham County also ordered an Assembly reporter not to take notes during an open hearing in child welfare court in September, saying, “What happens in there stays in there.” (The reporter was covering a hearing about a restraining order imposed on an adult activist.)
Simpson said the docket was packed that day in February 2020, and the court moved rapidly. When they got to Potts’ case, and Simpson began calling witnesses, “it seemed like it was an act of war,” she said. “The anxiety and the tension was just ratcheting up to a level I’d never seen in court before.”
Simpson tried to admit expert testimony from April Harris-Britt, a psychologist appointed by the court to evaluate Potts’ capacity as a parent. According to court records, after interviewing Potts and people who knew her, Harris-Britt believed Potts could “provide safety to her children.” But Rhinehart dismissed her testimony because Harris-Britt had not reviewed the children’s complete medical file.
However, court records say Harris-Britt could not review the documents because the compact disc the DSS had given her was password-protected. Simpson said she asked Rhinehart to allow Harris-Britt to review the records and return, but the judge refused.
“I was just very shocked by this because it was so unfair,” Simpson said. “I was like, this is bizarro-land.”
They didn’t finish the hearing, and Simpson expected it to resume the next day. Instead, Rhinehart scheduled it for April. Then, because of the pandemic, it was pushed back to July. (A recent report from the Durham Community Safety and Wellness Task Force found that the county’s child welfare courts continue to be “notoriously backlogged and slow.”)
In October, three months after the hearing, Rhinehart issued an order saying the DSS should abandon attempts at reunification.
By then, prosecutors had dropped charges against Potts. Thompson had accepted a plea deal and told a social worker that he accidentally dropped Kimoni when Potts was not home. But Rhinehart said that didn’t matter. Potts had previously testified that she had “continuously” cared for her children at home, which the judge took to mean that she never left them with their father for even a few minutes. In Rhinehart’s view, Potts’ statements that she constantly watched her kids but didn’t know what happened to Kimoni contradicted each other.
Potts “continues to have no explanation for [Kimoni’s] injuries, which is a risk to their health and safety,” Rhinehart wrote. Without an explanation, Rhinehart ruled that Potts couldn’t make “reasonable progress” toward proving she was a good mother.
“At the end of the day, I’m a mom. When everybody is coming at you, it’s like, maybe I should have known, but I just didn’t,” Potts said in a recent interview. “If I did, I would do anything in my power to make sure nothing happens to my child.”
The DSS filed a petition to terminate Potts’ parental rights. Rhinehart held a five-day trial in May 2021, where Simpson called experts and character witnesses on Potts’ behalf. But the result wasn’t in doubt. Experts say that when DSS attorneys seek terminations, they almost always win.
“There really is a feeling across the state that judges—not all, clearly—but there are a lot of judges who pretty much defer to DSS,” Sotolongo said.
State law provides 11 grounds for terminating parental rights. A judge only needs one—and a finding of abuse or neglect counts. So does not paying to offset childcare costs or not completing court-ordered classes. And by this point, many children have been in foster care for years, some living with families who wish to adopt, and judges are often reluctant to break up what they perceive to be stable situations.
That was the case with Kimoni and Mansa.
On July 5, 2021—two months after the trial—Rhinehart ruled that it was in the children’s best interest that they not see their mother again. “Returning these children to their parents is a risk that this court cannot afford to take,” she wrote.
Rhinehart—whom Gov. Roy Cooper elevated to the superior court earlier this year—did not respond to requests for comment. The Durham DSS said it could not comment on specific cases.
‘Deferential to Judges’
Simpson asked the Court of Appeals to overturn Rhinehart’s decision, but Potts faced an uphill climb there, too.
From 2021 to October 2023, the North Carolina Supreme Court and the Court of Appeals issued opinions on more than 250 appeals from parents seeking to reverse district court decisions. Only about 20 percent of the parents prevailed—and in many cases, the appeals court wanted to fix technical defects in a lower court’s ruling that seemed unlikely to affect custody.
“They are bound by what is presented at trial, so if you have poor representation, it’s not like you can get new evidence,” said state Sen. Sydney Batch, a Wake County Democrat and attorney who has spent 18 years defending parents in court. “What they say is, ‘We were not in the courtroom to determine the credibility of witnesses and to get the tenor of what occurred, so we’re going to be deferential to judges.’”
The Court of Appeals scheduled oral arguments in Potts’ appeal, a rare move for a parental termination case. At points during the August 2022 hearing, the three-judge panel appeared sympathetic to her case.
“So what is required of the mother more than saying, ‘I didn’t do this, and I wasn’t there’?” Judge Allegra Collins asked. She added, “Although [the father’s] explanation is insufficient, if the mother was not there, how can she make his explanation any more sufficient?”
“The mother’s testimony was that she was with both boys through the entire time,” a DSS attorney responded. “She was with both boys, and she had no explanation.”
“But you will concede that it was likely that she slept at some point?” Collins retorted.
However, the unanimous opinion, released a month later, said that while “there is no direct evidence of exactly what happened,” the appeals court’s hands were tied. The district court hadn’t made any obvious legal mistakes or unreasonable decisions, so the judges upheld Rhinehart’s ruling.
“We conclude the trial court properly determined reunification efforts would be inconsistent with the children’s health or safety based on [Potts’] failure to fully explain [Kimoni’s] injuries and condition when admitted to the hospital,” Chief Judge Donna Stroud wrote.
‘Assembly Line’
In Simpson’s view, Potts never had a chance.
“I think that goes back to the roots of this type of courtroom,” Simpson said. “Family courts are supposed to be more touchy-feely and looking at holistic-type things. But what it’s led to is a lack of advocacy, a lack of adherence to the legal standards.”
Three weeks after the Court of Appeals ruling, Emancipate NC published a report that proposed reforms to Durham County’s child welfare system.
“The purpose was really to start a public conversation,” Simpson said. Elected officials in Durham, a liberal stronghold, responded to her concerns about mass incarceration or policing. “But when I started talking to some of them about DSS, it was like, ‘Oh, no, you’re wrong about that.’”
“Parents and their children are forced to reckon with inefficient processes, long court delays, and a system that adjudicates weighty questions of family rights in a courtroom better designed for traffic matters,” the report said.
“Vicarious trauma” and “layering bureaucratic processes on top of human suffering” led to burnout and high turnover among caseworkers and attorneys, and the child welfare court had become an “assembly line of paperwork and case plans.”
According to interviews with attorneys and lawmakers, these issues aren’t unique to Durham.
Most parents in the system can’t afford their own lawyers, so their attorneys are usually court-appointed private contractors. (Public defender’s offices in Durham and some other jurisdictions have a few staff attorneys assigned to parent defense—Durham has two—though they can’t handle the volume of cases.) However, fewer have been willing to take these cases since the General Assembly slashed pay rates for attorneys representing indigent clients in 2011.
When the pandemic shut down courtrooms—leaving no cases to be assigned—even more attorneys abandoned parent defense, Sotolongo said. And because court-appointed lawyers aren’t eligible for loan-forgiveness programs that help public defenders pay law school debt, there’s little incentive to return.
“It is a struggle on many levels to get attorneys who have the time, resources, and commitment to really provide the level of representation that the clients need,” Sotolongo said.
“Nobody wants children to be abused or neglected. But the way this system is being operated is harming families. It’s harming both children and parents.”
Elizabeth Simpson, attorney with Emancipate NC
Their clients are usually low-income and sometimes struggle with housing instability, substance abuse, and mental health issues. They don’t always respond to calls or emails, and lawyers sometimes don’t even meet them until minutes before a hearing.
“We start off with the odds against you,” said Timothy Heinle, a professor at the UNC School of Government who specializes in civil indigent defense. They don’t improve from there.
The guardian ad litem attorneys appointed to represent the children support the DSS’ position “99.9 percent of the time,” Heinle said. And many judges “rubber-stamp what DSS is doing because they’re the experts,” said state Rep. Marcia Morey, a Durham Democrat and former judge who presided over these cases.
But as Sotolongo pointed out, county social services departments are “also in crisis.” Statewide, 45 percent of all frontline social services staff left during 2021, according to N.C. Department of Health and Human Services data. In Durham, 51 percent did. Last year, 40 percent of frontline DSS workers departed, including 37 percent in Durham.
Social workers are “in defensive mode,” Sotolongo said. “They don’t have time to work the cases. They’re like the sixth social worker who comes in. They don’t think the parents are engaged, so they’re just like, ‘We’re done here. We’re not recommending reunification. We’re gonna go to termination.’”
The result, Heinle said, is that “parent wins can feel hard to come by.”
‘Building Trust’
Emancipate NC’s proposals include creating a space in Durham’s courthouse for attorneys to privately discuss cases with parents—something that doesn’t currently exist.
The report also said the court should assign each child welfare case a time slot to prevent parents from waiting all day and called on the county to better fund parent defenders and provide lawyers to parents before their kids are removed. And judges should rotate more frequently to avoid “overly familiar relationships” with DSS and guardian ad litem officials, the report argued.
It’s unclear what Durham County plans to do with these recommendations. The DSS director did not respond to a request for comment.
Simpson also asked Durham’s court system to change its rules so that multiple judges hear cases. She wrote in a June letter that by the time judges decide whether to terminate a parent’s rights, they might “harbor bias about incidents that occurred many years prior.” At this final stage, she argued, assigning a new judge “will permit unbiased adjudication.”
The court system rejected her request, she says.
Durham’s Community Safety and Wellness Task Force echoed many of Emancipate NC’s recommendations in its July report. Like Emancipate NC, it said the county should fund more partnerships between parent defenders and social workers, which studies show reduces time in foster care and promotes reunification.
Durham’s public defender’s office has only one social worker to assist its two staff parent defenders, who handle most abuse and neglect cases. The private attorneys appointed to represent the other parents have no help.
The Office of the Parent Defender is slowly taking this concept statewide. Over the last year, Sotolongo launched pilot programs that pair social workers with attorneys in Buncombe, Cleveland, Mecklenburg, and New Hanover counties. Wake County came online in October, and Lincoln County will do so soon.
Modeled after programs in New York City, Washington state, and Colorado, the pilots became possible after a 2019 policy change freed up federal funds. The pilots allow a handful of trained parent defenders to hire social workers as assistants, though there’s not enough money for every case. Cases with allegations of physical or sexual abuse don’t qualify, nor do ones where social workers are pushing to terminate parental rights.
The social workers help parents navigate the system. They drive them to court-ordered parenting classes, therapy appointments, and drug tests. They also help them find jobs and housing, coordinate with their attorneys, and advocate outside the courtroom.
Sotolongo says her office hasn’t yet analyzed data about the pilots’ first-year outcomes. But the qualitative results are promising.
“What we’re finding is that, just like other states, it increases parental engagement,” Sotolongo said. “Giving a trained social worker to help the parent really increases their ability to access resources. They’re building trust. They’re building relationships.”
‘Win on the Law’
Simpson was back in Durham’s child welfare court on September 15, representing Child Protective Services investigator turned activist Amanda Wallace. Late last year, Judge Doretta Walker issued a restraining order against Wallace and her advocacy organization, Operation Stop CPS, after an attorney for the guardian ad litem program accused her of harassment.
In this case, at the guardian ad litem’s request, Walker had declared the mother incompetent. At this point, Wallace said, the mother’s case had been ongoing for three years without any questions about her competency. Wallace said all that changed was that “we started advocating for her,” and “more awareness started to come to the situation.”
Wallace wanted to appeal the restraining order on First Amendment grounds, but she needed transcripts of several court hearings to do so. Walker ruled that Wallace had no right to appeal the restraining order because she was not a party to the mother’s case, and she rejected her request for the transcripts.
“When everybody is coming at you, it’s like, maybe I should have known, but I just didn’t. If I did, I would do anything in my power to make sure nothing happens to my child.”
Jatoia Potts
That same day, Simpson filed a motion on behalf of members of a national organization investigating child welfare proceedings, Civil Rights Corps, whom Walker had ejected from her courtroom earlier that week.
She asked the court coordinator to schedule a hearing, but the coordinator refused. “You will need to speak to an attorney,” the coordinator responded in an email reviewed by The Assembly and WBTV.
Simpson—who is an attorney—asked the Court of Appeals to order the court to give her a hearing. That appeal is pending.
Simpson says she’s embraced a more adversarial approach to Durham’s child welfare court and regrets not going public with Potts’ case earlier. “I thought I could win on the law because I naively thought they would follow the law,” she said.
Last month, Emancipate NC sponsored a conference at Duke University’s law school on reimaging a system that “truly values children and families.” Among the panelists were activists, attorneys, and law professors from across the country—and Jatoia Potts, who is now an organizer with Emancipate NC.
Simpson hasn’t given up on Potts’ sons.
In September, she filed a federal lawsuit on behalf of Potts’ grandfather Felton Woods, who says that the DSS and a court clerk conspired to block his petition to adopt his great-grandchildren earlier this year.
Simpson said she sees “some possibility” that the lawsuit will lead to Woods gaining custody of Kimoni and Mansa. But it’s a “very, very long shot.”
Potts hasn’t seen either of her boys in over four years.
“I see them in my dreams sometimes,” she said in an interview last week. “To live every day without my children, without seeing them, not knowing what they’re doing, not knowing how they are, not getting any updates, not getting any pictures—it’s hard. I have good days, but I also have days where I’m just, like, this is a lot. This is really overwhelming.”
Potts said she wants to share her story to “leave a trail for my children. They’re going to look for me one day. And they’re going to see that [I] never stopped fighting.”
WBTV’s Jamie Boll contributed reporting.
Jeffrey Billman reports on politics and the law for The Assembly. Email him at jeffrey@theassemblync.com.
Whitney Clegg is an investigative producer at WBTV. She has previously reported for Reveal, ProPublica, and CNN’s investigative unit, as well as for books on Jeffrey Epstein, Donald Trump, and Turning Point USA. Email her at whitney.clegg@wbtv.com
Nick Ochsner is executive producer and chief investigative reporter for WBTV. He is also co-author of the book The Vote Collectors. Email him at nick.ochsner@gray.tv.