When Gov. Jim Justice stood before the West Virginia Legislature in January for his final State of the State address, he recognized — without giving much detail — the failings in the state’s foster care system.
“You know, our foster care system needs us to continue to step up, doesn’t it? That’s all there is to it,” he said, praising the states’ move last year to split the large Department of Health and Human Resources into three smaller agencies.
“There’s still tons of work to do. Tons and tons and tons of work to do,” Justice said.
Yet Justice didn’t ask lawmakers to introduce a bill to do this “tons of work” and a spokesperson didn’t return an email asking for details about how the governor plans to improve the foster care system.
Meanwhile, more than 6,000 West Virginia kids are in the foster care system, and a class action lawsuit filed five years ago by former foster kids that alleges chronic systemic neglect and abuse is still on-going. And while lawmakers have advanced a handful of bills on foster care, no one has introduced legislation that takes on the very specific system deficiencies brought to light through that lawsuit.
The lawsuit alleges that, for years, the department endangered the kids in its care by placing them in facilities known to physically and sexually abuse their young residents. It also alleges that the social workers repeatedly ignored or delayed responding to the complaints of the children in each of the cases alleging abuse.
Ultimately, the lawsuit is seeking judicial oversight over the foster care system, but settlement discussions last year outlined other actions lawmakers could take.
Those include making sure foster kids receive medical screenings within three days of entering the child welfare system, that no one under the age of 10 be placed in a group living facility except in special circumstances and no one over that age be placed in a group facility for more than a year.
“West Virginia has the highest rate of removal of children in the country. Part of that is probably because it is a poor state,” said Marcia Lowry, the attorney representing West Virginia’s foster children in the lawsuit, in a previous interview. “But more importantly, it’s also because the state has never made any attempt to really take care of the children who come into foster care.”
The lawsuit is also calling for a 30 and 60 day plan for each child coming into the system, and more follow up on the cases by both social workers and field supervisors.
The pieces of legislation still alive this year don’t address those aspects of the system. Instead, lawmakers are considering bills to prohibit cameras in foster kids’ bedrooms and bathrooms and create an information portal for foster parents. Other bills would add more oversight to the system by giving the current foster care ombudsman access to confidential Child Protective Service records and expand the role of the Inspector General.
Sen. Jason Barrett, R-Berkeley, said these moves to expand the ombudsman’s role and place the Inspector General — who currently only oversees the Department of Health — over foster care will increase transparency. There’s also a bill to require the new agencies to provide annual reports to a legislative oversight commission — as well as letting that commission meet behind closed doors to investigate allegations of neglect and abuse.
In an email, he said lawmakers were working through a list of problems that could be addressed by executive or legislative action, including lack of funding to build foster care system infrastructure, lowering regulatory barriers like staff ratio requirements and a lack of coordination in managed care policy.
In response to questions about lawmakers’ foster care priorities, House of Delegates spokeswoman Ann Ali said an “informal workgroup” of delegates was regularly meeting to discuss the issue. Several of the bills still alive — including one to create the foster care communications portal and another one to increase the pay of attorneys acting as guardians ad litem — had come from this group, she said.
Legal woes and the changes in the system
Last year, many lawmakers agreed splitting DHHR was necessary — but said it was the first step.
Del. Mike Pushkin, D-Kanawha, also said broader issues that burden foster care, like addiction, mental health, and poverty, have to be addressed.
“You can’t do that with a flat budget every year,” Pushkin said. “We really have to prioritize what we value here in West Virginia, and have a serious conversation about the role of government. In many cases it means stepping up when there’s no one else.”
Last year, lawmakers also passed two bills that spoke to the concerns laid out in Lowry’s lawsuit, one of which aims to clarify the role of the foster care ombudsman, which investigates complaints in the system, one to increase pay for and change the distribution of child protective services workers throughout the state.
These social workers are tasked with not only investigating child abuse allegations, but checking in regularly on foster kids in state custody. Barrett was a cosponsor of that bill. He says increasing pay in his part of the state — where workers can cross a state line easily and earn more — has gone a long way.
“We have provided that flexibility to allow the Department of Human Services additional salary for areas where the market rate salary rate is considerably higher than what the state agency is paying,” he said. “And, frankly, I think that is the model in which we should really implement in all of the state agencies.”
The department has filled 81% of its open CPS worker jobs, according to their website. Director of Communications Whitney Wetzel added that they’re also working on filling positions by supporting internships, and offering hiring and retention incentives in some counties.
However, the agency had requested more funding to hire 100 additional CPS workers to comply with the distribution bill Barrett co-sponsored. None of the current versions of the budget — governor, House and Senate — include that increase.
That CPS worker shortage and unmanageable caseloads for those currently working is likely to remain in the spotlight this spring.
The issue is one of the major factors in the ongoing lawsuit from former foster kids against the state, and last month, U.S. Magistrate Judge Cheryl A. Eifert ordered that the DHS release additional discovery material to the plaintiffs. This information relates to a case where five Black children were removed from a home in Sissonville, after law enforcement discovered two had been kept locked in a shed without running water, food or a bathroom.
Though the children — who were adopted outside of West Virginia — were not in state custody at the time of the incident, Eifert ruled the material is relevant as part of the larger issue with the agency.
While the department argued against the release of the documents, Eifert overruled them, saying the material would help shed light on some of the larger issues with the system, like caseworker loads and DHHR’s general response to allegations of abuse and neglect.
Clarification 3/7/24: The lead image caption has been updated to clarify that the billboard photo was part of a 2021 foster parent recruitment campaign. A new campaign with similar goals was announced this week.