A federal appeals court has reversed a lower court decision, reviving a sweeping case brought on behalf of West Virginia foster kids.
The case has been pending for nearly seven years. It alleges West Virginia’s response to longtime and well-documented problems in its foster care system — including too few foster homes, not enough community mental health support and insufficient staffing — has been “slow, indecisive and inadequate.” Because of this, the lawsuit argued, kids are being harmed: unnecessarily warehoused, shuffled from place to place and suffering further abuse. It asked for specific reforms and independent oversight to address those issues.
West Virginia officials under two administrations — current Gov. Patrick Morrisey and former Gov. Jim Justice — have spent years fighting the lawsuit. In court documents, they’ve argued they’ve been working to implement reforms without judicial intervention. In the meantime, Mountain State Spotlight has reported that the state continues to over-rely on institutional settings for foster kids with disabilities and is failing to connect kids aging out of the system with available federal funding.
The case has now been dismissed by U.S. District Court judges twice — and been sent back to those very courts both times by the higher appeals court. In the opinion released Thursday, the appeals court agreed with the lawyers representing the foster kids that federal courts are able to address their concerns.
“Because federal courts not only have the authority, but also a duty, to remedy systemic constitutional rights violations, we reverse,” Senior Circuit Judge Henry F. Floyd wrote in the opinion.
In a statement, A Better Childhood, the advocacy group leading the effort on behalf of the foster kids, applauded the decision.
“The dismissal from the district court was an inexplicable interruption to much-needed reform efforts,” said Executive Director Marcia Lowry. “The state continues to ignore desperately needed changes to protect the vulnerable foster children of this state. When the court dismissed the case, we were only months away from the trial. Since the legislature and the leaders of the agency have again failed to take action to protect these children, we look forward to getting to trial as quickly as possible to seek relief from the court.”
West Virginia Department of Human Services spokeswoman Angel Hightower said the department would not comment on pending litigation. Spokespeople for Morrisey did not immediately return emails seeking comment.
Seven years of litigation
A Better Childhood filed the initial complaint in 2019, on behalf of twelve kids in foster care. Later, it was expanded as a class action lawsuit to include all current and future foster kids.
In 2021, U.S. District Judge Thomas Johnston dismissed the lawsuit, saying that it belonged in the state judicial system rather than federal court. The appeals court disagreed and sent it back down to Johnston the following year. In 2023, Johnston recused himself from the case after Mountain State Spotlight began asking questions about emails and documents showing the judge was in regular communication about the case with state lawmakers and government staffers.
Then, the case went to U.S. District Judge Joseph R. Goodwin. Before the case could go to trial last year, Goodwin also dismissed the lawsuit. While he acknowledged the bleak state of West Virginia’s foster care system, saying it has “cycled through inaction, bureaucratic indifference, shocking neglect, and temporary fixes for years,” he ruled it didn’t present issues that could be resolved by a federal court. Instead, he said the remedy was for voters to elect different representatives if they’re unhappy with the state government’s response.
But in the opinion released Thursday, the appeals court disagreed with Goodwin’s take. It found that not only were these issues redressable by the federal court, but that the case sufficiently demonstrates ongoing injury to the kids in West Virginia’s foster care system.
In the appeal, the state Department of Human Services argued the plaintiffs didn’t sufficiently show that the reforms they asked for would address the problem. But the appeals court disagreed.
“Measures reducing caseloads for workers, enforcing strict time limits on initial evaluations, and requiring the state to hire more employees if necessary are all likely to result in quicker foster placement as well as greater attention and treatment for each child in the system,” the judges wrote. This, they said, would alleviate some of the suffering the lawsuit argues kids in the state’s care have endured.
Now, the lawsuit will go back to Goodwin. The lawyers for the foster kids requested the appeals court assign the case to a different judge, but that request was denied.