Delegate Jeff Pack, R-Raleigh, majority vice chairman of the House Health and Human Resources Committee, speaks during a committee meeting in January 2020. Perry Bennett photo

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Scores of children in West Virginia’s foster care system are unaccounted for at any given time, and state officials can’t seem to find records about them, according to new information uncovered in an ongoing lawsuit that seeks better protections for thousands of kids under the state’s care. 

Lawyers representing the foster kids allege the state Department of Health and Human Resources has failed to turn over “basic information,” including an accurate count of kids in state custody and paperwork about them. 

At the end of August, there were 62 children missing from state custody, according to DHHR, and the state has reported 364 kids missing from foster care so far this year. 

Last year, 648 kids were reported missing.

“We found the state does not have caseloads data,” said Marcia Robinson Lowry, executive director of A Better Childhood, a New York-based nonprofit that teamed up with West Virginia attorneys and filed the lawsuit last year. “And there seem to be missing documents from the children’s records. The documents [we received] have not been in any particular order.”

“So far, this seems like a very disorganized system,” she added. “There’s a real problem with the documents that the agency has and how they maintain them.”

Child welfare experts from Massachusetts, New York and Ohio, who reviewed West Virginia’s data for the nonprofit, said the records were like a “disassembled jigsaw puzzle rather than a professionally organized case record that serves as both a case history and a tool for future planning,” according to a press release from the nonprofit.

In an email to Mountain State Spotlight, Linda Watts, commissioner of the Bureau for Children and Families, called the allegations “inaccurate.” Watts said, “Thousands of pages of requested records were provided timely and consistent with the requirements of the federal rules regarding discovery.”

She said the state’s database of foster children has kept up with the surge in caseloads.  

The dispute over unaccounted for children and their records has slowed the pace of the case. Lowry said the coronavirus pandemic also stalled some of the judicial proceedings.

State leaders and lawmakers have grappled with the growing number of foster kids in the wake of the state’s opioid crisis. 

The children’s lawyers allege that DHHR, the legal guardian for children in foster care, violated the constitutional rights of the 7,000 children in state custody by exposing them to further neglect, abuse and trauma.

The child-welfare lawyers accuse the state of sending kids to unsafe institutions and homes, hiring and keeping unqualified Child Protective Services workers, and failing to help teens who age out of the system — pushing some into homelessness.

Earlier this year, state legislators passed a bill that aimed to reform West Virginia’s problem-plagued foster care system, but they never addressed the allegations.

West Virginia has the highest rate of foster care removals in the country. Over the past decade, the number of cases has increased more than 70 percent. Child welfare officials said the bulk of children were removed due to parental substance abuse and neglect. 

The state has asked a judge to dismiss the lawsuit, citing numerous reasons — that it seeks unconstitutional federal court oversight, that some children named in the suit have since been adopted, and no records show that adoptive parents gave consent for the suit.

Gov. Jim Justice and DHHR Cabinet Secretary Bill Crouch are named as defendants in the lawsuit. 

DHHR Secretary Bill Crouch

Crouch has said the agency had made “substantive changes” to the state’s child welfare system” before the suit, including creating dozens of new Child Protective Services jobs and increasing support services for kids in foster care. 

In a press release issued just after the suit was filed, Crouch criticized the legal action, and said that the department would not be “distracted” by the suit, and that the state would continue to improve its child welfare system.

But, a few months later, DHHR stopped sending West Virginia kids to an Ohio facility that was among those whose treatment of those kids was questioned in the lawsuit.

The suit includes the story of “Gretchen C.,” a 15-year-old girl from Wood County who was removed from her home because of her mother’s drug abuse. After the girl was shuffled through multiple facilities, the suit said the state placed her in a residential facility in Ohio, which houses juveniles convicted of violent crimes. Gretchen didn’t have a criminal record. 

The lawsuit alleges The Children’s Center of Ohio, engages in “controversial therapeutic practices” and “requires children to perform unusual forms of manual labor,” where a child uses dangerous farm equipment to clear a field.

The suit said Gretchen expressed discomfort about a male staff member at the center after he told her, “I should restrain you,” and when she asked why, he responded “no reason.” Later, the same male staff member allegedly said, “I would like for you to try to restrain me.” 

DHHR stopped putting children at that facility in February, “due to physical plant issues and non-compliance with West Virginia’s rules and policies,” agency spokeswoman Allison Adler recently confirmed.

Last year, a legislative audit revealed West Virginia CPS workers didn’t respond to half of all abuse and neglect cases in a timely manner, leaving kids at risk for additional trauma. 

Child Protective Services employees and procedures came under scrutiny again in December 2019 when a West Virginia woman sued DHHR. She claimed CPS left her in an unsafe home after she told adults that her father had impregnated her when she was 11 years old. And, in August, a teen sued the DHHR after she alleged a CPS worker kidnapped her, raped her and forced her to use illegal drugs. 

The nonprofit lawsuit came on the heels of the state reaching an agreement in 2019 with the U.S. Department of Justice after federal investigators found the state had violated the Americans with Disabilities Act. 

A 2015 DOJ investigation revealed the state sent too many children with serious emotional or behavioral disorders to out-of-state residential facilities. The agreement required the state to bring those kids home to West Virginia within five years.

Lawmakers didn’t discuss suit amid ‘foster-care reform’ bills

State lawmakers have touted foster care reform for the past two sessions, and their work in 2019 included passing a bill that placed the health care of foster children into a managed-care program run by Aetna, a health insurance company. 

During the legislative session earlier this year, a second foster care bill upped the reimbursement rate for foster families in an effort to recruit and maintain foster home families.

The lawsuit’s alarming claims rarely, if ever, came up at the statehouse, lawmakers said. The lawsuit was filed more than four months before the session started. 

Delegate Jeffrey Pack, R-Raleigh, who sponsored the 2020 foster care reform bill and served as vice-chairman of the House Health and Human Resources Committee, said he was only “vaguely familiar” with the allegations in the suit.

“[It] wasn’t discussed during committee meetings,” he said.

As for the future of state foster care reform, Pack said he’d like to “leave foster care alone for a couple of years.”

“Oftentimes, what we do is pass laws, and we never step back and say, ‘Is this working? Is this a disaster?’” Pack said. “Let’s just leave [foster care] alone and watch and see what happens.”

Suit: foster kids abused in out-of-state facilities

Twelve children, ages 2 through 17, are named as plaintiffs in the lawsuit, only appearing by their first name and first initial of their last name. 

Attorneys for the plaintiffs have asked a judge to allow the named children to represent a class of all of the 7,000 foster children.

The suit tells, in detail, the 12 children’s stories of abuse, neglect and mismanagement while in the state’s care. 

“We think it’s very important for the public to know what has been happening to these children in this system that was designed to help,” Lowry said. “It’s subjecting a lot of them to further punishment when they’ve done nothing to deserve it.”

The state doesn’t have an adequate number of places to put children entering the foster care system, according to the suit. 

There are fewer than 3,178 licensed foster homes in West Virginia, and state leaders say there aren’t always in-state options to provide services for foster kids.

West Virginia has institutionalized 70% of foster children between the ages of 12 and 17, and sent hundreds of foster kids to out-of-state for-profit residential facilities, according to the lawsuit.

In 2005, West Virginia lawmakers created the Commission to Study Residential Placement of Children in an effort to reduce putting children in out-of-state facilities. The group includes DHHR personnel, judges and child advocates. 

Cindy Largent-Hill, a committee member who directs the state’s judicial branch of the Division of Children and Juveniles, did not recall the group discussing the allegations in the suit, such as those made against out-of-state facilities with state contracts.

A commission review released earlier this year found violations — a lack of education oversight, poor record-keeping and cleanliness issues — at out-of-state facilities not mentioned in the lawsuit.

The lawsuit includes the story of 15-year-old, “Jonathan R.,” who was allegedly sent to a facility in Nashville, Tennessee, for juvenile sex offenders, even though the boy wasn’t a sex offender. The boy’s move to Tennessee followed years of DHHR ignoring allegations of physical abuse in Jonathan’s adoptive home, the suit said.

In July, the state reported 444 foster children living out of state. More than half of those kids were living in long-term psychiatric facilities. The second largest group — 32% — were at group residential homes.

The lawsuit is set to go to trial in 2021.

As part of the suit, A Better Childhood asks a judge to require DHHR to place kids in family-like settings instead of facilities. The nonprofit also wants the state agency to develop plans to increase the number of foster homes, fill vacant CPS jobs and help children aging out of the foster care system. 

“It’s clear things need to change for the foster system in West Virginia,” said Lowry, the nonprofit’s director. 

And that starts, she said, with a complete count of foster kids, along with their case files.

Help us investigate the West Virginia foster care system. If you’re a current or former foster care parent, a child or adult who has been a part of the foster care system, or have news to share with us about the subject, please email wvfostercaretips@gmail.com.

Amelia Ferrell Knisely is a Report for America Corps member who covers poverty. A native of Rand in Kanawha County, started her career in her home state then served as editor of The Contributor in Nashville,...