West Virginia Record

Monday, February 17, 2020

State wants lawsuit alleging foster care failure dismissed, plaintiff responds

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By Kyla Asbury | Nov 26, 2019


HUNTINGTON — Gov. Jim Justice wants to throw out a lawsuit filed against the state for its alleged failure to properly care for all of the state's foster children.

"Caring for children in foster care is one of the State of West Virginia’s most important, solemn responsibilities, the Nov. 26 memorandum in support of the motion to dismiss states. "The State’s child welfare system is the last hope for children who have been physically abused, sexually abused, or neglected and left to fend for themselves, or all of the above."

The memorandum says it undisputed that the opioid crisis has made the state’s task considerably harder because the number of children in foster care in West Virginia has increased by a staggering 80 percent between 2010 and 2017.

The state argues that it has met the challenges head-on, with transparency, determination and innovation.

"In West Virginia’s case, some of the allegations in the Complaint are wrong, some display a lack of familiarity with West Virginia’s child welfare system, and some are true but wholly devoid of context," the memorandum states. "But Defendants do not believe this Court will need to sort out which is which, because Plaintiffs’ claims do not belong in federal district court."

The defendants claim the principles of federalism and comity mandate that this court abstain from ongoing oversight of child welfare decisions over which the state courts have exclusive and continuous jurisdiction, as well as federal laws upon which the plaintiffs premise their claims do not provide a basis for the relief that they are seeking.

"Administration of the child welfare program in West Virginia is challenging, complex, and dynamic, requiring DHHR to work closely not only with state legislators and state judges but also with its federal counterparts at the Children’s Bureau and now with DOJ," the memorandum states. "All of these state and federal officials are already working together to achieve the system-wide improvements that Plaintiffs now ask this Court to order, oversee, and monitor."

Marcia Lowry, the executive director of A Better Childhood, said they will be responding to the motion to dismiss soon.

"There is nothing new in the papers," Lowry said in an interview with The West Virginia Record. "The cases are cases we have seen before. There are a lot of cases that they don’t cite because (those cases) are very supportive of our position."

Lowry said what the defendants are saying is that the issues all belong in individual proceedings in state court.

"The federal courts have rejected that proposition in case after case," Lowry said. "It actually presents a rather preposterous position to say that a child for whom there is no placement available can litigate these issues in an individual case. That’s not possible for that to happen."

Lowry said the state court tries to do the best it can with the options it has, and sometimes the courts know full well that it doesn’t have a good option, but still try to do the best they can.

"The problem is not an individual problem, it is a systemic problem," Lowry said. "The problem is that the state has failed to develop enough appropriate placements for children. The state has overworked, overtaxed, untrained caseworkers who have too many cases and basically no options for where to put kids."

Lowry said many of the state’s statistics show that it is a very damaging system.

"We will file papers in opposition to the motion to dismiss and we’ll see what happens in the court," Lowry said. "I think one of the things that the defendants do is they totally ignore the studies and information out there. Although the state is using kinship homes, according to the study done earlier this year, the homes don’t see a caseworker often ever again after they place a child in the home."

Lowry said with the caseworkers having such giant caseloads, they can't pay attention to the kinship homes.

"Kinship homes can be a good thing, but the state isn’t prepared to do anything to help those homes and that’s an important point," Lowry said. "The bigger issue is that their argument boils down to this isn’t a federal court issue and it is. The state has ignored these children for such a long time is a federal issue, without a doubt."

A Better Childhood filed the lawsuit against the state in September, alleging that foster children have been abused and neglected on the defendants' watch and were left without necessary services, forced to unnecessarily languish in the foster care system and were abused and neglected by inadequate and dangerous placements.

U.S. District Court for the Southern District of West Virginia Case number: 3:19-cv-00710

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