CHARLESTON — The Fourth Circuit Court of Appeals revived a lawsuit in federal court alleging the state failed to protect foster children.
Judges Pamela A. Harris, Allison Jones Rushing and Henry F. Floyd affirmed in part and reversed in part the lower court's decision and remanded the case back to the U.S. District Court for the Southern District of West Virginia. Floyd authored the majority opinion, while Rushing wrote a separate opinion partially dissenting.
Floyd wrote in the opinion that the plaintiffs in the case, who were foster children and their families, described an "ineptly structured program" that was plagued with unmanageable caseloads, staff shortages and budgetary constraints, all of which resulted in tragedies for the foster care system.
"Because West Virginia courts retain jurisdiction over foster children until they leave state custody, the court reasoned, any federal intervention into that process would undermine our fundamental notions of comity and federalism and reflect negatively upon the state court’s ability to enforce constitutional principles," Floyd wrote in the July 20 opinion.
The case was initially filed in 2019 on behalf of a dozen children in foster care and the following year, a request was made to expand the case to represent all children in the foster care system.
The lawsuit was dismissed by the federal court in 2021 and deferred to state court. The Fourth Circuit Court of Appeals reversed that dismissal, finding that the plaintiffs have a right to a decision at the federal level if that is their interest. Floyd wrote that forcing the plaintiffs to litigate again would be the opposite of federalism.
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, according to the 2019 lawsuit.
"Today, West Virginia continues to infringe upon the rights of its foster children, jeopardizing their most basic needs," the complaint stated.
Because of the opioid crisis in the state, the number of youth entering the foster care system has skyrocketed in recent years and had gone up 67 percent, according to the suit.
In a 2019 statement, Crouch said the DHHR began to make changes to the state's child welfare system in 2012 and has increased those efforts every year since.
"Important and significant changes to the system have continued under the leadership of Gov. Jim Justice, including children’s wraparound services, increasing the number of Child Protective Service (CPS) staff in the state, becoming one of the early adopters to begin implementation of the Family First Prevention Services Act, submission of an application for Medicaid waiver for Children with Serious Emotional Disorders and more," Crouch said in the statement.
Crouch said the lawsuit was aimed to gain attention in the press.
"The lawsuit that was filed today will cost the State of West Virginia millions of dollars and was filed by a company that has never contacted us to ask the question: 'What are you doing to fix these problems?' We welcome the opportunity to make our case in court," Crouch said.
U.S. District Court for the Southern District of West Virginia case number: 3:19-cv-00710
U.S. Court of Appeals for the Fourth Circuit case number: 21-1868