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W.Va. foster care lawsuit still alive after federal appeals court decision

CHARLESTON – A federal class action lawsuit filed during the administration of former governor Jim Justice challenging the condition of West Virginia’s foster care system is alive again following a ruling Thursday.

A three-judge panel of the U.S. Fourth Circuit Court of Appeals reversed a 2025 judgment issued by U.S. District Judge Joseph R. Goodwin dismissing a class-action lawsuit brought in 2019 on behalf of thousands of foster children in West Virginia.

“Because federal courts not only have the authority, but also a duty, to remedy systemic constitutional rights violations, we reverse,” wrote Senior Judge Henry F. Floyd, who penned the majority opinion on behalf of himself and Judge Pamela A. Harris.

Attorneys for A Better Childhood, Disability Rights West Virginia, and the Shaffer and Shaffer law firm filed a class action lawsuit against former governor Justice and the former Department of Health and Human Resources (now the Department of Human Services) 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 sought 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, limiting of caseloads, and more.

The state – previously represented by the West Virginia Attorney General’s Office and the Washington D.C.-based Brown and Peisch law firm – has since argued that actions by the state have already made positive improvements in the foster care system, with many of the concerns raised in 2019 about the condition of foster care having already been addressed.

In his Feb. 28, 2025, memorandum opinion and order dismissing the case, Goodwin said the federal courts lacked the power under Article III of the Constitution to grant the sweeping injunctive and declaratory relief sought by the plaintiffs. The Fourth Circuit rejected this interpretation, citing nearly a century of legal precedent – from school desegregation to prison reform – establishing that federal courts may mandate and oversee institutional changes when state systems fail to protect the fundamental rights of citizens.

“At its core, this appeal is about the extent to which federal courts may intervene in state institutions to remedy rights violations,” Floyd wrote. “Their requests are neither inconsistent with nor anomalous to the many forms of structural reform imposed on state institutions in the last eight decades.”

“Given Plaintiffs’ allegations of systemic rights violations of one of West Virginia’s most vulnerable groups, we are confident the district court has the legal authority and guiding principles to fashion a comprehensive decree incorporating any and all of these requests, should Plaintiffs prevail,” Floyd continued.

Attorneys for the foster children requested that the case be reassigned to a different district judge upon remand, citing Goodwin’s “long-held beliefs” against institutional reform. The appeals court panel denied this request, finding no evidence of bias or inability to follow the appellate mandate. It noted that while the district judge committed a legal error, his analysis was “thoughtful” and did not suggest a “suspicion of partiality.”

Judge Allison Jones Rushing filed a separate opinion agreeing with the majority in part and dissenting in part. While concurring in the judgment to reverse the dismissal, she dissented regarding the cross-appeal and certain standing issues. Attorneys for the state had filed a conditional cross-appeal seeking to decertify the plaintiff classes, but the majority determined that the state had missed its window to make that appeal.

“West Virginia has filed a conditional cross-appeal, asking us to reverse the district court’s order granting class certification if we reverse the final judgment from which Plaintiffs appeal,” Rushing wrote. “I would exercise our discretion to consider the cross-appeal and resolve West Virginia’s arguments about the infirmities in the class certification order. In that respect, I dissent from the majority’s judgment.”

Gov. Patrick Morrisey recently announced that the state will participate in the national “A Home for Every Child” initiative in a May event with Alex Adams, assistant secretary with the U.S. Department of Health and Human Services’ Administration for Children and Families.

The federal partnership seeks to enhance the state’s foster care system by increasing the availability of stable homes. The program prioritizes modernizing child welfare services by reducing administrative hurdles and focusing on measurable success for families. West Virginia is the 19th state to join the program. Morrisey has also discussed ways to bring children in out-of-state foster placements back to West Virginia.

However, Morrisey vetoed several bills following the end of the 2026 legislative session that dealt with child welfare and foster care.

Senate Bill 744 would have moved the Critical Incident Review Team — charged with investigating fatalities and near fatalities of children in the child welfare system — from the Department of Human Services to the Office of Inspector General, with the Foster Care Ombudsman serving as the group’s chairperson. House Bill 2880 created the Critical Incident Review Team last year.

House Bill 4393 would have required DoHS to develop a statewide prevention plan to provide prevention services to children under the age of 18 and their families, including foster and kinship parents. Services listed in the bill include trauma-informed care, services aimed at at-risk children in the child welfare system, pregnant youth, post-adoption children, and children aging out of the foster care system.

House Bill 4730 would have required DoHS to develop and maintain a coordinated continuum of services and supports for all youth who are preparing to exit foster care or who have recently aged out of care. The bill was meant to bring the state in line with a November 2025 executive order issued by President Donald Trump.

According to the state’s Child Welfare Dashboard, there are 5,912 children in state custody as of the end of April, with 47.2% of children placed in kinship care and 6.9% of children in out-of-state placements.

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