Calling the experiences of children it heard about “shocking” but perhaps also “shockingly common,” a federal appeals court has reinstated a major lawsuit that seeks systemic reforms of West Virginia’s troubled foster care system.
The ruling this week by the 4th U.S. Circuit Court of Appeals sends the case back to a district judge in Charleston, where the state Department of Health and Human Resources — and lawmakers who oversee the agency — have failed so far to come up with solutions to the state’s foster care crisis.
“The West Virginia child welfare system harms children every day, with its shockingly inadequate staffing, lack of programs and services, and general mismanagement,” said Marcia Robinson Lowry, an attorney for children who brought the case against the DHHR. “We hope this is a significant step forward toward real reform of a very serious problem that the state has repeatedly dodged for far too long.”
Nearly three years ago, Lowry’s nonprofit law firm, A Better Childhood, sued the DHHR and Gov. Jim Justice over conditions in the state’s foster care system.
In a 45-page opinion issued Tuesday, Judge Henry F. Floyd described the suit’s allegations this way: “Rather than taking children away from abuse and neglect, plaintiffs charge, the department only compounds it. It houses children in inadequate and outright dangerous environments, deprives them of badly-needed social and mental-health services, and, when all else fails, — which it often does in West Virginia — simply institutionalizes the children for years, segregating them from the outside world at the time socialization matters most.”
Last year, a series of stories by Mountain State Spotlight and The GroundTruth Project highlighted these conditions in the state’s foster care system. Lawmakers have promised to examine those findings and seek reforms, but have so far not taken any substantive steps to fix the system’s problems.
Last year, U.S. District Judge Thomas Johnston dismissed the lawsuit, ruling that questions about the foster care system belonged in West Virginia’s state judicial system, not in federal court.
But Floyd said that state court cases over the system typically focus on individual children and their situations, and fail to address the broad problems and solutions raised in the current lawsuit.
“For years, West Virginia’s response to any foster-care orders entered as part of the individual state hearings seems to have been to shuffle its money and staff around until the orders run out, entrenching rather than excising structural failures,” Floyd wrote.
The case now goes back to Johnston’s courtroom, where the state could continue with other legal avenues to potentially have it dismissed again.
Updated: In a prepared statement Thursday evening, DHHR spokeswoman Allison Adler called the 4th Circuit ruling “discouraging” and said the agency “is considering its next steps.” Adler also noted moves by the state to increase salaries for child protective service workers and payments to foster families.