Lawyers Ask To Represent All W.Va. Foster Kids In Lawsuit Against Justice, DHHR

A complaint filed last year against West Virginia officials, alleging that they violated the rights of a dozen foster care children, could expand after attorneys filed a new motion this week to represent the more than 6,900 minors in the state’s child welfare system. 

Lawyers for A Better Childhood, a national child advocacy group, and Disability Rights of West Virginia asked a federal judge Wednesday morning to widen their 2019 class action lawsuit to cover all of West Virginia’s foster children.

The group filed a complaint in federal court in October 2019, denouncing the Department of Health and Human Resource’s “over-reliance” on shelter care, shortages in case workers and a “failure to appropriately plan for the children in its custody.”

The DHHR oversees the state’s child welfare system.

Attorneys wrote Wednesday, almost a year after filing their initial complaint, that the “unabashed failures of foster care in West Virginia have not driven [state officials] to undertake wholehearted reform.”

“Critically, these practices and policies affect all foster children in DHHR custody — whether they entered foster care due to a child abuse or neglect proceeding or a juvenile justice proceeding,” attorneys wrote Wednesday.

West Virginia has the highest number of kids per capita in state custody, according to non-profit child welfare organization the Children’s Home Society. The number of West Virginia children in foster and kinship care has doubled since 2015 largely due to the opioid epidemic. 

By July, according to the motion for class certification on Wednesday, the DHHR had approximately 6,970 children in its custody.

“The lawsuit is really designed to bring systemic change,” Lori Waller, a staff attorney for Disability Rights of West Virginia, said Wednesday. “This is not like a pharmaceutical suit, where it’s like, ‘OK, well, you’ve taken this kind of drug, we can get you some money.’ This is strictly like looking at systemic change.”

State officials named in the lawsuit — including leadership at the DHHR, commissioner Linda Watts from the Bureau for Children and Families and Gov. Jim Justice – are requesting a two-month extension to file their response to Wednesday’s motion.

State Response

In a written statement to West Virginia Public Broadcasting on Wednesday, DHHR Cabinet Secretary Bill Crouch said the 12 children named in the lawsuit misrepresent the state’s foster care population.

He said the lawsuit “completely ignore[s] the legislative and executive branch work of the 2019 and 2020 legislative sessions” and that it downplays a settlement that the DHHR reached with the U.S. Department of Justice in 2019, following an investigation from the federal government years earlier.

“It further alleges that foster children are subject to widespread placement instability, but ignores the fact that DHHR has one of the best records in the country of keeping children in stable placements,” Crouch said of the complaint.

DHHR spokesperson Allison Adler clarified that Crouch was referring to a few charts at the end of a three-year aggregate report compiled by the federal Children’s Bureau, following the agency’s review of various states’ child welfare systems.

According to one chart, in West Virginia, more than 45 percent of all children in foster care for more than two years found permanent placement within a 12-month review period.  

Children who had been in West Virginia’s foster care system for one to two years found permanent placement nearly 60 percent of the time, according to another chart following the same 12-months.

A third graph estimated that West Virginia foster care children, during the 12-month review period, moved on average less than 2.5 times per 1,000 days.

West Virginia ranked better than other states in these graphics, although the report’s writers said it was “inappropriate to compare” states due to the “variations in the size, structure, and timing” of each state’s review.

Marcia Lowry, an attorney for A Better Childhood, said that she believes more West Virginia-specific data from the same report, featured in a different document, paints a more accurate picture.

In this document, the Children’s Bureau states “The agency [DHHR] struggled to make concerted efforts for the goals of timely reunification, discharge to guardianship, and timely adoption. Additionally, the agency did not make concerted efforts to place youth with a goal of another planned permanent living arrangement in a permanent arrangement in applicable cases.”

According to Lowry, nine of the original 12 children in the class action were moved more than 100 times since entering foster care. 

“That’s pretty appalling,” Lowry said. “And that’s in part because they don’t the state of West Virginia has been unable to continue to recruit enough foster families for the kids. And so, these kids are moving from place to place, and you can imagine how good that is for children. I mean, it’s basically destroying them to move so frequently.”

Working Toward Systemic Change

Both the Children’s Bureau report and the DHHR’s Crouch referenced the work West Virginia has done to better its system. In 2014, West Virginia piloted its “Safe at Home” project, which the state has since expanded to all counties, providing intensive in-home services to families with children between 12 and 17 years of age, who risk separation.

Most recently the Legislature passed a bill pledging $16.9 million to increase foster and kinship family payments, and in 2019 the state transitioned to a managed care system for health services.

Lowry said those efforts have fallen short of the systemic change she and others are requesting in federal court.

“Has the settlement with the Department of Justice made a difference? Not at all, not so far,” she said on Friday. “Is the new managed care system for health services going to make a difference? Maybe a little, and maybe that’ll be better, but it’s not going to deal with the fundamental problems that we’ve seen in the child welfare system.”

A scheduling order from the federal judge overseeing this case called on the DHHR to respond to the class certification motion by Sept. 16.

The DHHR request for a two-month extension likely will further delay a trial scheduled for June 15, 2021.

Emily Allen is a Report for America corps member.