Judge sanctions state in foster care lawsuit over deleted emails, but says it wasn’t intentional

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 has ordered sanctions against the state health department for its role in failing to preserve emails for an ongoing lawsuit over alleged mistreatment of thousands of foster children.

The sanction was less harsh than plaintiffs have sought against the state, as U.S. Magistrate Judge Cheryl Eifert noted in an order issued Thursday that she didn’t find the state had intentionally deleted the evidence.

Eifert required the state health department to pay an undetermined amount to reimburse plaintiff s for their attorneys fees and other costs related to bringing the request for the sanction.

The judge acknowledged that the prior top officials with the Department of Health and Human Resources didn’t do enough to ensure that the state’s Office of Technology kept emails belonging to former foster care leaders. A former top DHHR attorney resigned in the wake of the deleted email scandal.

Eifiert’s order follows a hearing in January at Huntington’s federal courthouse where attorneys for both sides discussed the issue.

The emails were requested as part of a 2019 lawsuit filed on behalf of foster children against DHHR and Gov. Jim Justice. The sweeping class-action suit outlined both documented and hardly-known problems in the system: overburdened Child Protective Services workers, children sent to unsafe and abusive group homes, a failure to find kids permanent homes and more.

The deleted emails came to light last fall, when plaintiffs, led by legal nonprofit A Better Childhood, said the state had failed to preserve thousands of emails that they’d requested in 2020. They argued that the emails could have shown how foster leaders responded to child welfare crises.

Plaintiffs also argued that the failure to preserve the emails was intentional amid growing transparency concerns about how DHHR ran its overburdened foster care system.

While Eifert acknowledged shortcomings in the state’s steps to preserve the emails, she said that the deletion was tied to a misunderstanding between DHHR and the state Office of Technology.

“ … A classic example of the right hand not knowing what the left hand was doing,” she wrote.

Eifert rejected the plaintiff’s request for sanctions for intentional evidence spoliation.

“Certainly, their communication failures were negligent, perhaps even grossly negligent, but they do not support a finding by clear and convincing evidence that defendants intended to deprive plaintiffs of information,” she wrote, adding that the state health department had made a significant effort to recover as many of the lost emails as possible.

She still ordered a sanction and required DHHR to reimburse the plaintiffs for “reasonable attorneys fees and costs associated with the motion for sanctions.”

Additionally, the judge said that DHHR cannot use the deleted evidence as part of their arguments that they didn’t act with deliberate indifference to foster care problems.

In a press release , the West Virginia Department of Human Services — which has replaced DHHR in running child welfare — said it was “pleased with the judge’s decision to reject the plaintiff’s allegation that DoHS intentionally failed to preserve emails of former employees.”

“While DoHS does not agree with all conclusions in the magistrate judge’s decision, DoHS appreciates the court’s careful consideration of these issues,” the release said. “Over the last several years, DoHS has devoted a large number of resources to improving the child welfare program, including significantly increasing caseworker resources and transforming the community-based mental health system that serves foster children.”

Justice hasn’t publicly commented on the deleted emails.

There are currently more than 6,100 kids in foster care.

A Better Childhood Executive Director Marcia Lowry said in an email, “ We thought the court’s decision was reasonable and fair … The court also agreed to award plaintiffs fees for the costs of bringing this motion, a highly unusual remedy at this stage of the litigation. We don’t yet know the amount because we have to calculate it, which we will do.”

ABC and others who filed the lawsuit, including Disability Rights West Virginia and local attorneys, have struggled for years to get key documents from the state about its foster care system.

Through the lawsuit, attorneys are hoping to force DoHS to reform parts of its child welfare system, including shortening the amount of time kids are lingering in care without permanent homes and providing better oversight to kids living in group homes in- and out-of-state.

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