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Attorneys in foster care lawsuit raise issues with West Virginia Department of Human Services

(Capitol Notes - Graphic Illustration/MetroCreative)

CHARLESTON — Attorneys representing children in West Virginia’s foster care system said the state is actively hiding behind privileges meant to shield leaders of executive branch departments and their internal decision-making processes.

Attorneys for A Better Childhood, Disability Rights West Virginia, and the Shaffer and Shaffer law firm filed a memorandum of law last week replying to opposition attorneys for Gov. Jim Justice and the Department of Human Services filed earlier this month after the attorneys representing foster care children filed a motion to compel certain documents and testimony from state officials in May.

The coalition of attorneys represent 12 children in the state’s overloaded foster care system in a case filed in 2019 in the U.S. District Court for the Southern District of West Virginia. The lawsuit alleges that foster children in the state are often housed either in hotels, shelters, institutions or out of state and are subject to abuse and neglect.

The lawsuit seeks several reforms to the foster care system, including requiring children be placed in foster homes within 30 days, the filing of individualized plans for care within 60 days, ensuring the placement of children in safe homes and facilities with adequate monitoring, the hiring of more case workers and limiting of caseloads, and more.

Attorneys for the foster children are seeking hundreds of thousands of documents from the former Department of Health and Human Resources, now split in three with foster care under the Department of Human Services. But the state human services officials and the Governor’s Office have tried to use deliberative process privilege to avoid turning over certain documents and object to certain questions of individuals being deposed.

According to a June 6 memorandum in opposition filed by attorneys for the state, they argue that out of more than 700,000 documents provided to the plaintiffs, only 2,610 documents have been withheld citing deliberative process privilege, which is meant to protect how government departments and agencies develop specific policies and decisions. During a recent deposition of former DHHR deputy secretary Jeremiah Samples, state attorneys said they only objected to questions 17 times.

“Plaintiffs have not established that each and every one of the thousands of documents that they seek to compel are particularly relevant to their claims,” wrote attorneys for the state. “Plaintiffs have made no effort to explain why the remaining (2,610) documents are so relevant that Plaintiffs’ interest in disclosure outweighs the purpose of the privilege.

“…The West Virginia child welfare system, like all child welfare systems, is subject to intense media scrutiny, and disclosing candid conversations (in e-mail or otherwise) about sensitive policy decisions ‘would hinder frank and independent discussion regarding contemplated policies and decisions,'” they continued.

Attorneys representing the foster children argue that despite having been provided with more than 700,000 documents, the state hasn’t reviewed all of those documents and could make further objections citing deliberative process privilege, and with other current and former officials with the former DHHR and current DoHS expected to testify, further objections could be made.

They also argued that the state has a history of hiding information and applying pressure in order to keep negative information out of the view of the public.

“Defendants improperly claim that evidence of the government’s deliberate indifference should be hidden from Plaintiffs and from the Court through the deliberative process privilege,” the foster care attorneys wrote. “This is consistent with Defendants’ past pattern and practice of attempting to conceal information from the public and their general lack of transparency…DoHS executives have sought to prevent disclosure to the public and the Legislature information that would reflect poorly on the child welfare system.”

The attorneys cited testimony from Samples in April, stating the then-department officials constantly pressured the Foster Care Ombudsman’s Office to limit the kinds of information it releases to the Legislature. Attorneys for the state objected during that line of questioning, citing the deliberative process privilege. The foster care lawyers said the state should not be able to hide behind that privilege in instances where the state showed clear indifference to issues in the foster care system.

“Deliberative process privilege should not apply in this case where Defendants’ deliberate indifference is centrally at issue and where Defendants – and specifically those named Defendants whose discovery is at issue – have already shown a lack of transparency,” the foster care attorneys wrote.

“DHHR officials such as then-Secretary (Bill) Crouch and then Deputy Secretary Cammie Chapman had knowledge of the failures of the child welfare system and instead of using it to make improvements, actively worked to hide that information from the public,” the attorney continued. “The information which Defendants have withheld in this case doubtlessly provide more detail as to the nature of Defendants’ knowledge of the system’s failings and decisions to cover it up rather than implement successful changes.”

The deadline for depositions and close of discovery is July 5, with a bench trial scheduled for Nov. 5 unless a settlement is reached before then.

According to the DoHS Child Welfare Dashboard, there are 6,126 children in state custody as of the end of May, which is a 40% increase from 4,366 children in state custody in May 2014. The number of children in state custody peaked in the 2020s, climbing north of 7,000.

Of the 6,126 children in state custody, 39% of those children are in a certified kinship or relatives’ home and 30% are in therapeutic foster care. There were 480 children in various out-of-state placements, with 57% of those children in group residential care outside of West Virginia’s borders. Only 79% of Child Protective Services positions are filled.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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