Trending
CHARLESTON -- Arguing that improvements have been made to West Virginia's foster care system over the last several years, attorneys for Gov. Jim Justice and state human services officials filed a motion for a federal judge to take their side in a class action lawsuit filed five years ago.
Attorneys for Justice and current and former officials of the now-defunct Department of Health and Human Resources and the new Department of Human Services filed a motion Monday with U.S. District Judge Joseph Goodwin seeking a summary judgment in the state's favor.
Attorneys for A Better Childhood, Disability Rights West Virginia, and the Shaffer and Shaffer law firm filed a class action lawsuit against Justice and human services officials in 2019 in the U.S. District Court for the Southern District of West Virginia on behalf of 12 children in the state's overloaded foster care system. 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 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.
However, 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 for summary judgment 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 about the condition of foster care in the state have already been addressed.
"In class actions, plaintiffs must prove that defendants' deliberate indifference caused the entire class to suffer, or caused the entire class to face an 'imminent' risk of suffering, a deprivation of one of the constitutional 'basic human needs,'" the state's attorneys wrote. "In this case, the undisputed facts show that the overwhelming majority of (foster care children) are not subject to maltreatment; 'unnecessary intrusions into' their 'wellbeing'; unacceptable conditions or unnecessarily long duration in foster care; lack of treatment, care or services; or any other deprivation of 'basi(c) human needs.'
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. The state's foster care crisis has been largely fueled by the state's substance use disorder crisis and drug overdose issues.
But the state's attorneys point to a number of improvements to the foster care system through the Bureau of Social Services, including the consolidation of services, pay increases for case workers, broadening the hiring requirements for caseworkers, implemented new software for tracking cases, focusing on placing children in kinship care with family members, expanded programs to keep higher needs children living with family members, launched new programs for continuum of services, and reformed delivery of community-based behavioral health services.
"Indeed, because of Defendants' efforts, the State's spending on community-based mental health services for foster children nearly tripled from 2015 to 2023, and the percent of foster children placed in residential treatment has decreased from 28% to 17% over the last decade," the state's attorneys wrote. "Further, on a number of system-wide statistics compiled by the federal government, West Virginia's child welfare system is one of the highest performing systems in the country, despite serving a State with one of the highest rates of poverty and opiate addiction."
According to statistics provided by the state's attorneys, West Virginia has the third lowest rate of maltreatment of children in foster care based on federal data, the highest rate of placement stability, and the highest rate of placement of children in kinship care.
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.
The deadline for depositions and close of discovery was last week. Attorneys for the foster children have been fighting with the state over documents, depositions, and other discovery issues. DoHS came under criticism for what they called the unintentional deletion of emails of former DHHR officials. In a stipulation filed Tuesday, the state agreed to provide electronically stored information, including e-mail communications, spanning the period of December 1, 2023, to April 30 by an Aug. 20 deadline.
A bench trial scheduled for Nov. 5 unless a settlement is reached before then.