State seeks conclusion of suit alleging mistreatment of foster kids, wants to avoid ‘costly’ trial

Department of Human Services Secretary Cynthia Persily, seen here speaking to lawmakers on April 5, 2024 in Charleston, W.Va., said that the department has "devoted substantial resources" to making improvements in the foster care system, and "will continue to do so." (Will Price | West Virginia Legislative Photography)

The state Department of Human Services is seeking a conclusion in a years-long lawsuit over West Virginia’s overwhelmed foster care system. The agency vowed that it has made improvements that dispute the lawsuit’s allegations of mistreatment of vulnerable kids in the state’s care.

There are more than 6,100 children in West Virginia foster care — a number that surged alongside the state’s drug epidemic.

A 2019 class-action lawsuit , filed by nonprofit organization A Better Childhood and West Virginia attorneys, alleged that for years state foster care leaders f ailed to properly care for thousands of foster kids, putting some in dangerous and unsafe situations .

It also alleged Child Protective Services workers were understaffed with high case loads, and, in turn, ignored or delayed responding to complaints of child abuse.

DoHS leaders this week requested a summary judgment in the case that would avoid “a costly and unnecessary trial.”

“As required by federal litigation rules, over the last five years, DoHS has turned over 3.2 million pages of documents, including reams of data, and made dozens of its employees available for examination by plaintiffs’ counsel,” the agency said in a news release . “The motion … asks the court to find, based on undisputed facts reflected in these documents and testimony, that there is no scenario under which plaintiffs could win if this case were allowed to proceed to trial at the taxpayers’ expense.”

The motion went on to outline improvements DoHS has made to its child welfare system, including increasing the rate of CPS workers, recruiting foster families and reducing reliance on residential treatment for children. The percent of foster children placed in residential treatment has decreased from 28% to 17% over the last decade, according to the agency.

DoHS also boasted that it has the nation’s highest rate of placing children in what’s known as kinship care, which regularly involves family members.

“The child welfare program of 2024 looks vastly different from the program as it existed when plaintiffs brought suit,” they wrote.

Attorneys for the state also pushed back on the class-action status of the suit, saying that “undisputed facts” show that the overwhelming majority of children in foster care were not subject to maltreatment, unacceptable conditions or any deprivation of basic human needs.

“While there is still room for improvement, DoHS has devoted substantial resources to making those improvements, with the support of the West Virginia Legislature and the courts, and will continue to do so,” said DoHS Cabinet Secretary Cynthia Persily.

A Better Childhood Executive Director Marcia Robinson Lowry said she does not believe that the DoHS filing is persuasive. She added that a judge will make that decision.

“Most importantly, the state simply does not have and is not even trying to hire enough caseworkers to protect children.  Their latest data shows that they currently have 100 unfilled caseworker positions — based on a serious undercount of what they need. Backlogs on investigations into harm to children are extraordinarily high — a year ago they were 400 for Kanawha County [and] more than 3,000 statewide,” she wrote in an email.

She continued, “Professional standards require that caseloads be counted by children — West Virginia continues to count them by families, leaving many children unprotected and workers unable to get their critically important jobs done.  Children continue to suffer because the state simply won’t address this problem.”

The suit, which was originally filed against Gov. Jim Justice and the now-defunct West Virginia Department of Health and Human Resources, ultimately sought improvements to the state’s foster care system.

DoHS has faced criticism for hiding how it manages its foster care system, and recently, journalists were denied documents that could show if or how CPS responded to alleged calls made before 14-year-old Kyneddi Miller was found dead in April in her Boone County home. Police discovered the girl in a skeletal state; her mother and two grandparents were charged with child neglect related to her death.

Attorneys suing the state have struggled for years to get key documents in the suit. They said in court filings last month that DoHS was again attempting to shield emails, documents and more related to foster care.

The department was already 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.

Editor’s note: This story has been updated to include a response from A Better Childhood.

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