CHARLESTON – A federal judge says a federal lawsuit challenging systemic deficiencies in the state’s foster care system is “tailor-made” for class action status.
On August 17, U.S. District Judge Joseph Goodwin issued an order granting in part and denying in part a renewed motion for class certification and appointment of class counsel in the case. That means more than 6,000 children in the system can be included in the lawsuit.
“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,” Marcia Robinson Lowry, founder and executive director of A Better Childhood, said in a press release about the ruling. “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.
“The state is supposed to protect, not further harm, these vulnerable children. Instead, this system has ignored these children for far too long. It is time that the state is finally held accountable.”
A Better Childhood is a national nonprofit advocacy group that has attorneys representing the plaintiffs in the case.
Currently, the plaintiffs in the case are 12 current and former foster care children who are challenging key aspects of West Virginia’s child welfare system. They filed the lawsuit in 2019 against the West Virginia Department of Health and Human Resources, Gov. Jim Justice, former DHHR Secretary Bill Crouch, former DHHR Deputy Secretary Jeremiah Samples and former Bureau for Children and Families Commissioner Linda Watts seeking federal reform they say is caused by the state executive branch of government.
“Plaintiffs paint a grim picture of a deeply flawed system that inflicts on vulnerable children much of the same abuse and neglect that it was designed to redress,” Goodwin wrote in his 47-page memorandum order and opinion. “West Virginia’s foster care system is ‘in a state of crisis.’ ...
"As the Fourth Circuit illustrated, reforming foster care case-by-case would be like patching up holes in a sinking ship by tearing off the floorboards. Indeed, the court could not give to Jonathan without depriving Gretchen and, therefore, declines to play a zero-sum game."
The plaintiffs describe longstanding deficiencies that include a shortage of foster care homes, overreliance on residential care facilities, high caseworker caseloads, inadequate case planning and a failure to maintain critical infrastructure that would allow children with mental health service needs to remain in their communities.
In 2021, a federal judge granted the five motions to dismiss filed by the defendants. The plaintiffs appealed that decision to the 4th Circuit Court of Appeals, which rejected the rulings and remanded the case back to federal court. In May, the judge told the plaintiffs to file a renewed motion if they still sought class certification. They did so, asking the court to certify a general class, an ADA subclass and a Kinship subclass.
The general class would include all West Virginia foster children who are or will be in the foster care custody of the DHHR or any successor agency. The ADA subclass would include all members of the general class who have physical, intellectual, cognitive or mental health disabilities. The Kinship subclass would include all members of the general class who are or will be in kinship placements for whom the DHHR is required to provide initial home safety assessments and other services.
Goodwin’s order grants class status for the general class and for the ADA subclass. He denied class status for the Kinship subclass, maintaining that the questions common to the general class are the same as the ones that would apply to the kinship subclass.
The court said the plaintiffs have shown the DHHR “maintains an inadequate array of placements to meet the needs of these foster children” and that the DHHR “contrary to its own stated policies, fails to include families in the case planning process and engage in permanency planning for children.”
The plaintiffs also say children are referred to the West Virginia foster care system at a rate more than one-and-a-half times the national average. They also say many children are placed out-of-state or isolated in inadequate facilities and that children who age out of the system often aren’t prepared for life outside of foster care.
Goodwin also appointed the 12 named plaintiffs as the class representatives for the general class and nine of them for the ADA subclass. In addition, Goodwin appointed class counsel for the case. Those include attorneys from A Better Childhood, Shaffer & Shaffer and Disability Rights of West Virginia, another nonprofit.
Earlier this year, the state Legislature passed laws ordering the DHHR to split at the beginning of 2024 into three agencies.
“For decades DHHR has failed the children of West Virginia, not only by directly placing them in harm’s way but also by failing to prepare them for life after foster care,” said Rich Walters of Shaffer & Shaffer. “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.”
U.S. District Court for the Southern District of West Virginia case number 3:19-cv-710