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West Virginia seeks U.S. Supreme Court review to halt ‘systemic’ foster care lawsuit

CHARLESTON — West Virginia child welfare officials are seeking a stay of proceedings in a long-running lawsuit concerning the state’s foster care system following an appeals court decision that reversed a previous dismissal of the case.

The West Virginia Attorney General’s Office, representing Gov. Patrick Morrisey and officials in the Department of Human Services, filed a motion June 26 in the U.S. District Court for the Southern District of West Virginia seeking a stay on proceedings in R. vs. Morrisey while the state files a petition with the U.S. Supreme Court seeking rulings in the case.

The Attorney General’s Office filed a petition for a writ of certiorari with the Supreme Court, seeking the nation’s highest court to order the U.S. Fourth Circuit Court of Appeals to explain its June 4 ruling that revived R. vs. Morrisey, a 2019 lawsuit against former governor Jim Justice and the formerly named Department of Health and Human Resources regarding the treatment of foster children in state custody.

According to the June 26 memorandum of law explain the state’s motions, the Attorney General’s Office is seeking a stay of the case or a stay of additional discovery requests until the Supreme Court grants or rejects the petition for a writ of certiorari.

The stay is requested on the grounds that a Supreme Court ruling on the issues of standing for systemic reform and the reviewability of class certification could fundamentally alter or terminate the litigation.

“If the Supreme Court were to grant the petition and agree with this Court that Plaintiffs’ claims for ‘systemic relief’ exceed the court’s Article III equitable powers, this case would be dismissed in its entirety,” wrote Steven R. Compton with the Attorney General’s Office and Philip Peisch, an attorney with Brown and Peisch PLLC, a Washington, D.C., law firm.

The Defendants also argued that continuing with discovery and trial preparations while the petition is pending would result in a significant waste of judicial resources, impose undue hardships on state officials and taxpayers, and offer no substantial prejudice to the Plaintiffs.

“…Not staying the action imposes hardship on the state officials, state employees, and the taxpayers of West Virginia, as Defendants will need to prepare for trial and/or take on the potential burdens of renewed discovery in a case that has already been crushingly resource intensive,” the state’s attorneys wrote. “In either case, state officials and staff will need to devote substantial time, attention, and financial resources to the litigation rather than the important day-to-day management and operations of the child welfare system.”

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 on behalf of thousands of foster children in West Virginia by attorneys for A Better Childhood, Disability Rights West Virginia, and the Shaffer and Shaffer law firm.

The case, brought on behalf of 12 children in the state’s overloaded foster care system, alleged 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 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.

Goodwin, in his Feb. 28, 2025, memorandum opinion and order dismissing the case, 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.

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