The West Virginia Department of Health and Human Resources building in downtown Charleston. Photo by Kristian Thacker.

When a massive lawsuit over West Virginia’s foster care system was first filed in 2019, lawyers representing former foster kids asked the state Department of Health and Human Resources for some information they assumed the agency would have, like the number of cases each social worker handles and copies of the federally-required 60-day plans for kids entering the system. 

Four years later, DHHR has continued to delay and lawyers still haven’t gotten most of the information they’ve requested.

“How can you run an agency of this magnitude if you don’t know what is happening within it?” asked Marcia Lowry, the attorney representing West Virginia’s former foster children suing the state. 

The class action lawsuit against DHHR filed in September 2019 — which stemmed from allegations of severe neglect and abuse — is asking for more manageable caseloads for social workers,  greater overall accountability for the foster care system and proper investigation of allegations of abuse and neglect. 

Over the last few years, a district court judge dismissed the lawsuit and a panel of appellate judges reversed the dismissal, sending the case back to the district court. Earlier this year, U.S. District Judge Thomas Johnston recused himself after reporting from Mountain State Spotlight revealed he had involved state lawmakers in settlement talks.

With a trial date set for June 2024, Lowry said that the information her team has requested should be readily available from DHHR, however, the response she has received by the agency is that they “don’t have that aggregate information.”

“On behalf of all kids in foster care… we have asked the state for a great deal of information and discovery, to see what is actually happening in the system,” Lowry said. “One of the things that has become clear is that the state, basically has a primitive computer information system, and some of the information we want, are registered with a form that is not usable to us.”

A DHHR spokesperson did not respond to an inquiry on the lawsuit, the filing process of the agency, or general record accessibility within the agency. 

The agency has been slow to produce any discovery in the case, according to Lowry, and court records show that the first of eight requests was made on Dec. 3, 2019. Most of these requests have been followed with DHHR requests for more time to respond. 

Recently, Lowry filed a motion to compel, or obligate, the DHHR to produce the material requested. But there has yet to be a ruling on the motion or a response by the agency, according to court records.  

Lawmakers respond to DHHR troubles by splitting agency

As Lowry takes the state to court to make changes within the foster care system in West Virginia, legislators have attempted and failed to make changes that would have met some of the demands in the lawsuit.   

In 2022, HB 4344 would have improved what Del. Mike Pushkin, D-Kanawha, called the “bare minimum” of communication between the DHHR, state lawmakers, foster and kinship families. 

“That should be a top priority for the state taking care, taking care of people who have nobody else to take care of them, and foster children should be at the top of that list,” Pushkin said in an interview.  

Though that bill died in the final hours of the regular session, lawmakers focused more recently on splitting up the agency in hopes of fixing its problems. Earlier this year lawmakers passed a bill that split the agency into three new departments, or bureaus, as of Jan. 1, 2024. The goal is to make administration of the foster care system and other systems easier. 

“It just seemed like there were problems everywhere across the board,” Del. Don Forsht, R-Berkeley said, about the move to split DHHR. “There were just too many problems, and it was hard to hold anyone accountable.”

Under the new structure that will take place on New Year’s, the foster care system would be a branch under Human Resources, according to Forsht, who said, there are hopes that people focused on making the system better will come onboard.

For Lowry that’s the point. 

“The state has not tried to develop appropriate foster homes or support services for foster homes… because some of these kids come into care with terrible problems, their home situation has not been good. And the state has not tried to deal with that at all, it just shuts kids out,” Lowry said.