Federal judge dismisses lawsuit meant to improve WV's troubled foster care system, problems persist
The West Virginia Department of Health and Human Resources, located at One Davis Square in Charleston, W.Va. (Lexi Browning | West Virginia Watch)
A federal judge on Friday threw out a lawsuit brought by foster children in 2019 against the state that sought to mandate changes in the troubled system.
West Virginia foster care, which has been overburdened amid the state's substance abuse crisis, continues to house children in hotels and group homes due to a shortage of foster families and appropriate mental health care for kids. There's a shortage of child protective services workers to check on children, and current workers remain overburdened with cases.
While problems persist, U.S. District Judge Joseph R. Goodwin said that the issues can't be resolved by a federal court.
'This court cannot take over the foster care system of West Virginia,' Goodwin wrote in an opinion dismissing the case. 'West Virginia's foster care system has cycled through inaction, bureaucratic indifference, shocking neglect and temporary fixes for years. The blame squarely lies with West Virginia state government.'
'When elected officials fail, the ballot box is the remedy,' he said.
A Better Childhood, a New York-based nonprofit organization that brought the lawsuit with the children, said they will appeal the decision.
'We are stunned and shocked by the court's decision,' said Marcia Lowry, A Better Childhood's executive director.
She referenced a recent Kanawha County incident where a child in an abuse and neglect case attempted suicide after being placed in a hotel by state CPS. Goodwin's dismissal order came on the same day that Kanawha County Circuit Court Judge Maryclaire Akers ordered a monitor be put in place to oversee CPS placements in hotels and camps.
'Neither the Legislature nor the executive branch have acted to protect children from the horrors of abusive homes, placements in hotels, attempted suicide brought on by despair. Now the court – the last resort to protect constitutional rights – turns its back too and says that it will not protect the children. We plan to appeal as quickly as possible,' Lowry said.
The Department of Human Services, which oversees foster care, did not immediately return a request for comment.
The lawsuit also alleged that the state failed to properly care for thousands of children by leaving them to languish in the system with no plans for permanent homes.
DoHS has tried to have the case thrown out, citing improvements to the system like hiring additional CPS workers.
The state 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 in the case since 2020.
Goodwin, in his 19-page order, said he recognized that this result was 'an unsatisfying result to years-long litigation demanding improvement of West Virginia's foster care system.'
'I know that there are children who deeply suffer in the custody of the state,' he wrote. 'This compelled dismissal is in no way an endorsement of the system as it remains … State officials can no longer hide behind this lawsuit to avoid the consequences of their political decisions.'
Disability Rights West Virginia also represented children in the lawsuit.
'West Virginia's policymakers and politicians have failed our children, and DRWV has a number of legal initiatives in the works to do what our state leaders fail to do,' said DRWV Legal Director Mike Folio. The organization recently launched a children's first initiative to 'prioritize limited resources to protect West Virginia's children in foster care and the juvenile justice system,' he said.
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