HUNTINGTON — A federal class-action lawsuit has been filed against Gov. Jim Justice and his Department of Health and Human Resources, alleging the state has violated the federal and constitutional rights of the more than 6,000 children in the state’s custody.
Twelve children in the state’s foster care system, ranging from ages 2 to 17, are named as plaintiffs in the lawsuit filed by A Better Childhood, a national advocacy group for children, Disability Rights West Virginia, a statewide disability rights organization, and Shaffer & Shaffer PLLC, a state law firm.
Lawyers for the children cite a range of alarming statistics and charge the state and DHHR with failing to provide the necessary services that will protect all of the children in the state’s custody. The lawsuit is brought as a class action, seeking to represent all of the 6,800 children in foster care, and focuses on three subclasses of children: 1,700 in foster care with disabilities, 1,600 close to aging out of the system without any preparation for adulthood, and 3,400 children in kinship care.
The lawsuit, filed in the U.S. District Court for Southern West Virginia, seeks an order directing the fundamental reform of the state’s foster care system. The lawsuit names Justice, DHHR Secretary Bill Crouch, DHHR Deputy Secretary Jeremiah Samples, and Linda Watts, commissioner of the Bureau of Children Welfare.
The information pertaining to the lawsuit was provided to The Herald-Dispatch as confidential until midnight Tuesday, so the state could not be contacted for comment for this story.
Many of the statistics and issues cited in the lawsuit are issues DHHR has been open about, including high rates of institutionalism for older children, high rates of out-of-state placements, overloaded caseworkers, lack of adequate foster families, and a lack of services for children with severe emotional and behavioral issues.
Marcia Robinson Lowry, executive director of A Better Childhood, said her organization conducted hundreds of interviews with foster children, foster families, former child welfare workers and lawyers before determining a lawsuit was the best course of action to create change.
“The problems in the foster care system have been a problem for a very long time,” Lowry said. “We know the opioid crisis is a piece of it, but it’s not what caused the problems. The problems have been there for 15 years. No one stepped up. It’s a failure of leadership, a failure of people not paying attention to the problem. Sure, the opioid crisis has driven numbers up, but it’s been a problem for a long time.”
The 12 plaintiff stories paint a picture of system failures — if you can call such a tattered system a system, Lowry said — that lead to further harm to already neglected and abused children.
Dennis C., for example, is a 16-year-old with cerebral palsy, most likely the result of shaken baby syndrome. He was split from his younger brother and bounced from placement to placement. He was at one point placed in the care of his step-grandmother, but he did not receive any support for the trauma he already experienced and acted out.
He now resides in a residential treatment center that provides a higher level of care than is necessary.
Despite Dennis’ expressed desire to graduate from high school and eventually to live on his own, DHHR’s plan is to transition him to the adult side of the facility he is in, setting him up to be institutionalized for the rest of his life, according to the lawsuit.
Then there are toddlers Calvin, Chris and Caroline, who have been in state custody nearly since birth. Their first foster family made moves to adopt them, but when they had to move for work, the adoption fell through, mainly because of DHHR, the suit alleges. They’ve since bounced from placement to placement.
Other stories tell of traumatized children who acted out in fear or anger, and instead of receiving help, were taken to yet another family, group home or treatment center. Many are behind in school or barely receiving any formal education. The older plaintiffs do not have any permanency plans in place, nor do they have a plan for when they age out of the system.
The lawsuit also alleges the 49% of foster youths in the care of a relative, or kinship care, are also being neglected by the state.
Lowry said kinship care is not bad, but when children are being “dumped” into houses without checks and check-ups, it can be.
A little less than half of kinship placements are not certified. This means families do not receive the same funding as certified families, but the children should still have regular check-ins with caseworkers. Oftentimes, they do not, the suit alleges with support from a 2019 independent study of West Virginia kinship care.
The suit contends that the measures the state has taken already to try and improve the system are too little, too late. The reform bill passed in the Legislature this past session does not go far enough to address all of the issues with the system, and the state’s current memorandum of understanding with the U.S. Department of Justice has “no teeth.”
Lowry said she hopes the state realizes how serious the lawsuit is and seriously consider their response to it. She said they will be pursuing it as vigorously as they can.