Attorneys suing state over foster care say suit should move forward, kids are still ‘in danger’

Attorneys suing West Virginia over its treatment of foster children say that the lawsuit should move forward. (Getty Images)

Attorneys suing the state over its treatment of foster children say that the lawsuit should move forward, arguing that problems continue to permeate the system and put kids in danger.

The new filings were in response to a motion filed earlier this month by attorneys for the Department of Human Services, who asked a federal judge for a summary judgment in the ongoing class-action suit to avoid a “costly” trial.

West Virginia officials outlined improvements to the system that dispute the lawsuit’s allegations of mistreatment of thousands of children in the state’s care. They also recently publicly celebrated a reduction in the number of children in foster care as the number dropped below 6,000 to 5,991.

However, plaintiffs’ attorneys said the state “cherry-picked” data points to bolster their case, and that, in reality, the system continues to have negative consequences for children who come into foster care.

They cited high caseloads for Child Protective Services workers, inadequate CPS visits to children in care, failure to provide necessary services to kids and more.

“The defendants take the position that there are no material, disputed facts in this case, which is necessary for a motion for summary judgment to succeed. But they must have blinders on if they think that foster children are not being harmed, today, in West Virginia,” said Marcia Lowry, executive director for nonprofit A Better Childhood. The organization sued the state along with Disability Rights West Virginia and West Virginia attorneys with Shaffer and Shaffer law firm.

“Even the so-called experts that the state hired acknowledge that they do not know whether the system is improving — all they looked at were the written policies and not what is happening to children. Unfortunately, this is an ongoing tragedy. We hope the court will act to end it,” she continued.

The lawsuit was filed in 2019 on behalf of children in foster care. It alleged that the state failed to properly care for thousands of children by, in part, sending them to dangerous institutions and leaving them to languish in the system with no plans for permanent homes.

West Virginia has the nation’s highest rate of children coming into foster care, and attorneys said the state didn’t have enough CPS workers to follow up on children’s cases or respond to allegations of abuse and neglect.

Attorneys have also said that they’ve struggled to get key documents about the child welfare system. The state was sanctioned earlier this year for its role in failing to preserve emails from former top foster care officials related to the case.

DoHS officials said they’ve turned over 3.2 million pages of documents related to the case. They hope improvements in child welfare, including investments in child mental health services and improving the state’s CPS worker rate, will convince a judge to grant their motion for summary judgment and negate the need for a trial.

“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,” DoHS Cabinet Secretary Cynthia Persily said in a new release on June 10.

Attorneys suing the state argued in the new filings that CPS workers continue to grapple with high caseloads, and chronic understaffing has still caused a backlog of child abuse and neglect referrals.

“Caseloads — which Defendants do not even track systematically and are for the most part measured not by individual children, but by families — remain unconscionably high, with the majority of caseworkers carrying caseloads well above full capacity, some up to triple-digits,” attorneys wrote.

They also pushed back on the DoHS’ new plan to reduce its reliance on out-of-state residential facilities, arguing that there aren’t enough community-based services to properly care for children in state.

There are currently 266 children in out-of-state group homes, according to state data .

Under the DoHS-proposed plan, which has also raised concerns from child residential providers, providers will only be paid by the state for providing certain types of services.

“West Virginia health care providers have warned that the likely effect will only be to force these children into more restrictive settings than they need or leave them without adequate services, but [DoHS] executives dismiss these concerns out of hand,” plaintiffs’ attorneys wrote.

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