West Virginia Child Welfare System Hit with Class-Action Lawsuit (UPDATED)

West Virginia State Capitol building. Photo: WVTourism.com

West Virginia, the third poorest state in the nation with the highest rate of foster care removals in the country, is handing children off to unsupported and unverified relatives and dooming hundreds to age out of foster care from institutions and group homes.

Those are the topline allegations in a lengthy class-action lawsuit filed against the state’s child welfare system by A Better Childhood (ABC), a New York-based nonprofit litigator that has taken action against four child welfare systems in just the past six months.

“Children in West Virginia’s foster care system, have been abused and neglected, put in inadequate and dangerous placements, institutionalized and segregated from the outside world, left without necessary services, and forced to unnecessarily languish in foster care for years,” said the lawsuit, which was filed today in the U.S. District Court for the Southern District of West Virginia.

“Defendants, well aware of these problems, have answered with empty promises and unfulfilled initiatives. Today, West Virginia continues to infringe upon the rights of its foster children, jeopardizing their most basic needs.”

Named in the lawsuit are Gov. Jim Justice (R); Bill Crouch, secretary of the Department of Health and Human Resources (DHHR); his deputy, Jeremiah Samples; and Linda Watts, commission of the Bureau for Children and Families (BCF).

Crouch released a statement this afternoon that suggests the state was blindsided by the lawsuit.

“The company that filed this lawsuit…has not reached out to me or any member of our leadership team to ask questions regarding what we are doing in this state or to even engage in a conversation regarding these issues,” he said. “It appears that their 12 a.m. embargoed lawsuit was aimed to gain attention in the press, as they have done in several other states.”

Crouch’s statement argues that the state has been proactive under Gov. Justice in improving the child welfare system. He asserted several developments in the statement:

  • Creating 50 new child protective services positions, and raising salaries for those workers by 20 percent
  • A Title IV-E waiver that allowed the state to build wraparound services
  • The state’s early implementation of the Family First Prevention Services Act, a new law aimed at reducing the use of foster care and congregate care in particular
  • A planned Medicaid waiver to improve services to children with serious emotional disorders

The lawsuit leans on the stories of 12 different children in West Virginia’s custody. ABC hopes to have a general class status approved, along with three subclasses of children in the system:

  • Those living with relatives or fictive kin, which ABC estimates in its brief is about half of all children in care.
  • Approximately 1,600 children who are 14 or older, and are thus likely candidates to “age out” of the system into adulthood.
  • About 1,700 children with disabilities, more than half of which are living in group homes, institutions and other “congregate care” settings. About a third of the kids in group care are placed outside the state, ABC said.

The plaintiffs list includes Anastasia, an 11-year-old with an IQ of 130 that has experienced 10 placement disruptions and a failed adoption. She has spent time in a juvenile detention facility and is now living in an institution in Georgia. It also includes Garrett, who as a child was moved from New York to West Virginia to live with relatives after his mother died of an overdose. Garrett has lived most of his life in congregate care and is set to age out of the system next year.

Seven-year-old Theo bounced around relative and non-relative homes before being hospitalized for acute developmental disabilities. He has since been moved to a Virginia treatment facility, and ABC states that he is currently prescribed five different mental health drugs.

“Children are being sent to institutions, placed in foster homes without any services, and abandoned by the state,” said Marcia Robinson Lowry, executive director of A Better Childhood. “West Virginia has some of the worst child welfare statistics in the country, and the state can no longer use the opioid epidemic as an excuse to avoid responsibility for this shameful system.”

DHHR is the legal guardian of children in West Virginia foster care, and BCF manages the state’s mostly-privatized network of foster care and adoption services. The state recently also moved all foster care health and residential services into a contract with a managed care organization (MCO), a move opposed by child welfare advocates at the time and criticized in the lawsuit.

“The MCO will cost the state $200 million per year; money which could have been spent to improve the existing system,” it states in the lawsuit.

Nearly 18 out of every 1,000 children in West Virginia were in foster care in 2017, according to federal data, the highest of any state in the country and more than three times the national rate of 5.8 per 1,000.

The state’s system “fails to maintain an adequate number of appropriate placements for youth entering foster care in West Virginia,” it states in the lawsuit. “As a result, they resort to quickly placing children into kinship placements that are not sufficiently vetted, supported or monitored to ensure children’s safety and well-being while in those placements, or institutionalizing them.”

According to foster care capacity data recently collected from every state by The Chronicle of Social Change, West Virginia currently has 3,066 total licensed foster homes. About half of those – 1,492 – are non-relatives, and the rest are kin licensed to care for children in their family.

According to the state, the number of relatives with an active, ongoing placement increased from 2,466 in 2018 to 2,849 this year.

The lawsuit asserts that 13 percent of West Virginia foster youth live in congregate care, though the most recent federal data from 2017 had it at 18 percent. But that belies an extremely heavy reliance on that option for older youth, ABC asserts: 71 percent of youth between 12 and 17 are in congregate care. And as of June 2019, the lawsuit states, 327 of those youth were living in institutions outside the state.

ABC lists a long slate of requests for relief that mostly aim to require the agencies to fill open social and caseworker positions, train and support kinship caregivers, and develop a serious and better-resourced protocol for case planning.

It also asks the court to “prohibit DHHR from refusing to place a young person in a foster care placement because the child is 14 or older.”

West Virginia was investigated in 2014 by the Justice Department over compliance with the Americans with Disabilities Act, a probe that focused on state services for children with mental illness. The state entered into a memorandum of understanding with the Justice Department in May of 2019.

“The lawsuit that was filed today will cost the State of West Virginia millions of dollars and was filed by a company that has never contacted us to ask the question: ‘What are you doing to fix these problems?’,” Crouch said in his statement. “We welcome the opportunity to make our case in court.”

ABC is joined in the lawsuit by the West Virginia law firm Shaffer and Shaffer, and Disability Rights West Virginia.

“The foster care crisis in West Virginia is not an issue that just arose in the last four to five years, it’s a systemic problem that has festered in the state for almost 20 years,” said Jeremiah Underhill, the legal director of Disability Rights West Virginia, in a statement released today. “The children of West Virginia deserve a system that works.”

Lowry started A Better Childhood in 2014, after leaving another nonprofit litigation firm she helped start, Children’s Rights. The organization has filed class-action litigation against four systems since April: Oregon, Indiana, New York City and now West Virginia.

In 2018, the organization received an anonymous donation from a Tulsa-based foundation that Lowry said would enable her to double ABC’s staff.

Note: This story was updated with the state’s response to the lawsuit on October 1.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.