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CHARLESTON -- Despite touting the lowest number of children in West Virginia's foster care system since 2017, attorneys representing foster care children in a class action lawsuit believe their case needs to continue.
Attorneys for A Better Childhood, Disability Rights West Virginia, and the Shaffer and Shaffer law firm filed a memorandum Monday in opposition to a motion for summary judgment filed July 8 by attorneys representing the state seeking dismissal of the lawsuit.
The state -- represented by the West Virginia Attorney General's Office and the Washington D.C.-based Brown and Peisch law firm -- argued in its motion that actions by the state have already made positive improvements in the foster care system. The attorneys argue that many of the concerns raised in 2019 when the lawsuit was filed about the condition of foster care in the state have already been addressed.
The state Department of Human Services issued a press release on July 18 showing that there were 5,991 children in state custody as of June 30, down from 6,286 children in state custody at the end of June 2023 and down from a peak of 7,433 children in April 2020. The 5,991 children in state custody is also the first time those numbers have dipped below 6,000 children since March 2017.
The department credited the decrease in children in state custody with working to return children to families as soon as possible, including half of child placements going to kinship care. They also credit improvements in pay and benefits for Child Protective Services workers, reducing the number of vacancies over the last six months from 31% in January to 19% as of June. DoHS also alluded to better response rates for its abuse and neglect centralized intake system.
But attorneys for the foster care children, writing in their memoranda, argue that much of the improvements to the foster care system came after they filed their class action lawsuit in 2019 against Gov. Jim Justice and current and former DoHS officials in the U.S. District Court for the Southern District of West Virginia on behalf of 12 children in the state's foster care system.
"Defendants do not deny that the West Virginia child welfare system has been failing on multiple fronts to provide basic and fundamental care to children in their custody," the attorneys wrote. "Instead, they ask this Court to credit 'policies' and 'plans' -- which, for the most part, they created after this litigation was commenced and some only within the last few months -- while ignoring all the evidence showing that problems remain or are worsening."
"Defendants' 'undisputed facts' are not only disputed; they are cherry-picked and/or irrelevant to the issues in this case," the attorneys continued. "Defendants cannot escape liability through ineffectual action."
The attorneys for the foster care children argue that DoHS does not systemically track children when it comes to caseloads for social workers, instead tracking caseloads by families instead of individual children, skewing the caseload numbers. They also point to severe backlogs in abuse and neglect cases due to staffing shortages and overworked social workers. According to the attorneys, that backlog is more than 3,000 cases.
The attorneys also questioned DoHS successes when it comes to pay for CPS workers and increases in payments to foster families. According to internal DoHS documents cited by the foster care attorneys in an accompanying statement of facts, the turnover rate for employees in the Bureau for Social Services was 7% between July 1, 2023, Jan. 1. That number increased to 9% between July 2023 and Feb. 1, to 10% between July 2023 and Feb. 29, and to 11% between July 2023 and March 31.
"In recent months, Defendants increased salaries for caseworkers, but they present no admissible evidence that this solved high caseloads, rapid employee turnover, or chronic understaffing," the attorneys wrote. "Payments to foster parents have modestly increased, but foster homes are closing their licenses faster than new ones open. Therapeutic foster homes are almost non-existent, particularly for vulnerable teenagers, and Defendants continue to steadily place children in high numbers in residential placements, some of which have lengthy records of physical and sexual abuse, and neglect."
According to the 2024 West Virginia Annual Progress and Services Review (APSR), caseworkers said the main reason for missed timeframes for referrals and investigations was caseload size, with insufficient staffing levels the main reasons for missed timeframes for district-level management staff. Backlogs were defined as assessments or investigations not completed within 30 days.
"Districts with high staff turnover rate score significantly lower on all measures," according to the 2024 APSR. "The lack of staff results in the failure to initiate investigations into child maltreatment in a timely manner. It also creates a backlog of assessments that have not been documented and cleared."
The statement of facts filed by the attorneys for the foster children goes on to cite decreased caseworker visits with parents, decreases in arranged visits between foster children and biological parents or siblings, and delays in written case plans and safety and risk assessments.
Emails between DoHS officials claim that West Virginia "moves more children (more quickly) to TPR (termination of parental rights) when compared to other states," with 24% of children entering foster care experiencing a TPR within one year of entering the foster care system, with the national rate at 6%. According to the email, 5.8 out of 1,000 children in West Virginia have experienced a termination of parental rights compared to just under 1 per 1,000 children nationally.
According to testimony earlier this summer in a sworn deposition by Jeffrey Pack, the former commissioner of the Bureau for Social Services, "West Virginia terminates (parental rights) at whatever point in the process without regard to whether or not a permanency plan is in place."
The state has also seen a shortage of foster care homes and a limited number of facilities for foster children with severe behavioral issues, with foster children being placed temporarily in emergency shelters, hotels, DoHS offices, and even state parks. While some of these stays were for days or weeks, some stays were for months if not longer.
"A September 20, 2021 report listed several children in emergency shelters for over 6 months," the foster care attorneys wrote. "Some children were in emergency shelters for over one year."
The attorneys for the foster children seek 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.