The 2019 lawsuit alleged that the state health department had failed to protect more than 6,000 foster kids and that too many of them were left to languish in the troubled system.
BY: AMELIA FERRELL KNISELY – AUGUST 18, 2023 9:21 AM
A sweeping foster care lawsuit against the state’s health department has been granted class-action status, meaning children in the state’s troubled system can join the legal filing.
The lawsuit, which was first filed in 2019, said that the West Virginia Department of Health and Human Resources violated the constitutional rights of more than 6,000 kids in the state foster care system. The allegations included that the state had failed to protect children, sent them to unsafe institutions and left them to languish in the system without any plan for permanency. Additionally, the lawsuit alleged DHHR had overburdened its child protective services workers.
U.S. District Judge Joseph R. Goodwin granted the lawsuit class-action status on Thursday, marking forward movement in the complex suit that has seen little progress in the last five years.
“Plaintiff’s claims, challenging systemic in West Virginia’s foster care system, are tailor made for class resolution,” Goodwin wrote in the order.
He added that the plaintiffs had substantiated many of their allegations against DHHR’s foster care system, including that the department maintained an inadequate array of placements to meet the needs of foster children.
A Better Childhood, a New York-based nonprofit, along with Shafer and Shafer and Disability Rights West Virginia brought the lawsuit against DHHR and Gov. Jim Justice on behalf of 12 foster kids. The attorneys have sought class action from the beginning.
“This is a careful, thoughtful decision, which will allow us to fully represent all these children and finally prove that the state’s foster care system exposes children to the unreasonable risk of serious harm, which the Constitution bars the state from inflicting on children,” ABC Executive Director Marcia Robinson Lowry said in a news release following Goodwin’s decision.
Rich Walters, an attorney with Shaffer & Shaffer, added, “Our children deserve better, and the court’s decision today will help us continue the fight to protect West Virginia’s children and fix a broken DHHR.”
West Virginia has the nation’s highest rate of foster children coming into care, which health department leaders have attributed to poverty and the drug epidemic. The state has struggled to meet the needs of the overburdened system, especially in the mostly rural state with a lack of behavioral and emotional support for kids. There’s a shortage of foster families, too.
After the suit was filed, DHHR leadership said they’d made “substantive changes” to its child welfare system and attempted to dismiss the lawsuit.
The lawsuit has faced several hurdles since it was filed. In 2021, a U.S. district judge granted the state’s motion to dismiss the case, saying that the state court system should have jurisdiction over child welfare cases. An appeals court revived the suit in 2022.
Earlier this year, U.S. District Judge Thomas E. Johnston recused himself from the case after Mountain State Spotlight, a nonprofit newsroom, pointed out ethical concerns regarding Johnston’s communication with lawmakers and DHHR about legislation impacting foster care and possibly the lawsuit.
Lowry said that the class-action status will now allow attorneys to uncover additional evidence about the problems within the state’s foster care system.
“We will be moving forward to now present evidence of the state’s long-term neglect of these children, and how they have been seriously damaged by the state’s foster care system,” said Lowry.
The suit was filed against several DHHR leaders who are no longer with the department, including former Cabinet Secretary Bill Crouch, who stepped down at the end of 2022.
DHHR is currently in the process of restructuring the behemoth department, a move mandated by lawmakers, in part, due to its poor outcomes in foster care. This year, the department has made strides in improving its CPS vacancy rate – currently at 17% — due to Legislature-backed pay raises, retention bonuses and more.
The department is also already working to meet the foster care requirements outlined in a 2019 Department of Justice settlement. A DOJ investigation found the state had sent too many kids, particularly kids with disabilities, to institutions.
As part of the settlement, DHHR recently shared with lawmakers the state’s plan to hopefully incentivize in-state kids’ mental health and residential providers to help keep patients near their communities. Providers have raised concerns about the plan that could restructure how they provide and bill for care.
There are more than 500 kids in residential care in- and out-of-state, according to state data.
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