The West Virginia Department of Health and Human Resources, located at One Davis Square in Charleston, W.Va. (Lexi Browning | West Virginia Watch)
A sweeping class-action lawsuit about the state’s overwhelmed foster care system is moving forward with a trial date set for March 4. The suit, filed in 2019 on behalf of children, alleges that the state sent children to unsafe homes, overworked Child Protective Services workers and left kids to languish in the system.
A Better Childhood, a New York-based nonprofit, Disability Rights West Virginia and local attorneys filed the suit in hopes of holding foster care leaders accountable for the system, which has struggled to keep up with the influx of children alongside the state’s drug epidemic.
“The problems obviously continue today,” said Marcia Lowry, executive director for A Better Childhood.
The Department of Human Services has paid out millions of dollars for legal representation in the case. In July, department leaders requested a summary judgment in the case, saying they’d made improvements to the foster care system – like hiring more CPS workers – since the suit was filed in 2019.
DoHS spokesperson Whitney Wetzel said that DoHS continues to focus on improving the system. She said that the federal judge in the case is still considering the state’s request to avoid a trial.
“After five years of burdensome and costly discovery, DoHS is confident that the plaintiffs cannot prevail on their claims,” Wetzel wrote in an email. “ … These legal costs – while unavoidable given plaintiffs’ decision to sue DoHS – represent resources that could otherwise be used to benefit our state’s most vulnerable populations.”
Lowry said the state’s filings in the suit showed only plans to make improvements.
“They don’t know if their plans will work. They’re closing their eyes to the realities of children in the foster care system,” she said.
On Wednesday, Justice told reporters that the case had “no merit.”
“I don’t know a lot about this case at all,” he said during a virtual press briefing in response to a question from West Virginia Watch. “From what I know, there’s no merit to the case at all. There’s a motion for summary judgment. I’d like to add more, but I don’t know anything else I can add.”
Foster care leaders have told lawmakers they’ve struggled to fill CPS positions as the number of kids in care ballooned, and state records show that children were sent to dangerous out-of-state institutions. Both of those issues were included in the lawsuit’s allegations.
DoHS: Suit would divert ‘taxpayer resources’ from foster care
Public information available through the State Auditor’s website shows that DoHS has paid more than $6.3 million to Brown and Peisch, a law firm in Washington, D.C. that has provided the state’s legal counsel since 2020.
Wetzel wouldn’t confirm if the amount paid was solely for the foster care lawsuit.
Instead, she wrote, “DoHS has always believed that this suit was unnecessary and would divert taxpayer resources from important programs that serve the most vulnerable West Virginians. The cost of this case has been driven by the plaintiffs’ aggressive litigation strategy. In an effort to build their case, the plaintiffs chose to depose dozens of DoHS employees and issue hundreds of document requests, requiring the State to produce over 700,000 documents, totaling more than 3 million pages.”
Senate Finance Chair Eric Tarr, R-Putnam
Senate Finance Chairman Eric Tarr, who has scrutinized DoHS spending, said he’d want to examine how the department made the determination of its legal counsel in the suit and what the money was being spent on.
“I would want to make sure that the funds are being allocated, especially since they’re going with the private sector, that they are doing it in a fair process,” said Tarr, R-Putnam.
Jim McKay is the state coordinator for Prevent Child Abuse West Virginia.“Every dollar spent on lawsuits is a dollar that could be used to strengthen families here in West Virginia, McKay said. “Instead of lengthy, legal battles, we could invest in effective, common sense solutions — like expanding home visiting programs, supporting parents and ensuring access to childcare to address challenges facing families and help children thrive.”
Lawsuit has faced hurdles since 2019
The lawsuit has faced several hurdles since it was filed. In 2021, a U.S. district judge granted the state’s motion to dismiss the case, saying that the state court system should have jurisdiction over child welfare cases. An appeals court revived the suit in 2022.
In 2023, U.S. District Judge Thomas E. Johnston recused himself from the case after Mountain State Spotlight, a nonprofit newsroom, pointed out ethical concerns regarding Johnston’s communication with lawmakers and the former Department of Health and Human Resources about legislation impacting foster care and possibly the lawsuit.
Meanwhile, attorneys suing the state say they have struggled for years to get key documents about foster care despite the plethora of documents provided by DoHS in filings. “We have very limited information,” Lowry said.
DoHS was sanctioned earlier this year for its role in failing to preserve emails from former top foster care officials related to the case. The misstep could cost the state $172,000 in sanctions, according to fees requested by plaintiffs.
The state’s motion for summary judgment outlined improvements DoHS made to its child welfare system, including increasing CPS case workers. The vacancy rate for CPS workers dropped to 17% with 87 total vacancies statewide; the vacancy rate climbed to 33% in 2023.
“I think most CPS workers who are out there are good people, but I think, at times, they’re given an almost impossible task in West Virginia because of the demand that’s been placed on that system overall,” Tarr said.
Lowry said CPS is still “waiting a long time” to investigate reports of child abuse and neglect, and DoHS data showthat some counties are still missing the mandated timeframes to check on kids. “We know the maltreatment reports are not being investigated,” she said.
The department said it also reduced its reliance on residential treatment for children, and the percent of foster children placed in residential treatment has decreased from 28% to 17% over the last decade.
While DoHS has faced criticism for shielding how it manages its child welfare system, Tarr said that, more recently, leaders have been more forthcoming with lawmakers about shortfalls in the system.
“They’ll pull leadership in and say, ‘Here’s the information we can give you without violating HIPPA,” he said
Lowry said all of the problems outlined in the 105-page lawsuit persist today.
“We are preparing for trial,” she said.