West Virginia officials move to dismiss federal lawsuit over foster care system

CHARLESTON, W.Va. — West Virginia officials have moved to dismiss a federal lawsuit over the state’s foster care system, saying the plaintiff doesn’t recognize the recent steps taken to improve.

The plaintiff, A Better Childhood, countered in a telephone interview that it’s well aware of those steps but they’re not enough.

What the two sides do agree on is the overwhelming status of West Virginia’s foster care system. The number of children in the system has grown by 80 percent in recent years, from about 4,000 in 2010 to 6,633 by 2017.

A Better Childhood, a New York-based legal organization for child welfare reform, filed suit at the beginning of October in U.S. District Court for the Southern District of West Virginia.

The lawsuit contended West Virginia has failed to protect all of the children in the state’s custody, violating their federal and constitutional rights. Twelve children in the state’s foster care system, ranging from ages 2 to 17, are named as plaintiffs.

The lawsuit asks for a monitor to report on how the state agency is complying with a court order.

Lawyers for the state responded today with a motion to dismiss and an accompanying 39-page memorandum. The Department of Health and Human Resources put out a statement detailing recent efforts to improve West Virginia’s foster care system.

WV DHHR Secretary Bill Crouch

“We will not be distracted by this lawsuit,” stated DHHR Secretary Bill Crouch.

He cited a 2019 memorandum of understanding with the U.S. Department of Justice to improve aspects of West Virginia’s system, as well as steps such as establishing managed care for the health needs of foster children and a new ombudsman for the child welfare system.

The state’s memorandum in federal court suggests the lawsuit doesn’t reflect the true condition of West Virginia’s foster care system.

“In West Virginia’s case, some of the allegations in the complaint are wrong, some display lack of familiarity with West Virginia’s child welfare system, and some are true but wholly devoid of context,” wrote lawyers for the state.

Lawyers for the state also contend the lawsuit by A Better Childhood simply follows the model of other, very similar lawsuits it has filed in other states:

heart-rending allegations regarding individual children;system-wide allegations based on frank public assessments by state officials that are then used against them; cookie-cutter causes of action that bear little or no relationship to the facts alleged; and virtually identical prayers for relief, all of which call for appointing a third-party monitor to oversee the program.

Last week, a legislative audit unrelated to the federal lawsuit concluded that West Virginia continues to struggle retaining child protective services workers, with 27 percent turnover in the past year.

An alarming outcome was that CPS workers failed to look into half of the 2018 reports of child abuse in the required time.

Marcia Lowry

Marcia Lowry, the executive director of A Better Childhood, said West Virginia’s foster system problems remain overwhelming but are not new. She said the opioid crisis has put further strain on longstanding issues.

“The problems in West Virginia have been going on a long time. They’re not something that happened last year or the year before that,” Lowry said in a telephone interview. “The steps the state is taking now are very, very minimal. This is a system in crisis.”

She agreed the opioid crisis has put further strains on the system but said West Virginia’s child welfare

A Better Childhood brings lawsuits in states where problems are so severe that they are not going to be addressed without the pressure of the court system, Lowry said.

“The steps the state is taking may feel like a lot to the people who are running the system, but compared to the suffering of the children in the system it’s very minimal,” she said.

“It’s not like they all turned their back and went out to play golf. But it’s very, very minimal compared to the problem.”

Wvsd 0018 MEMORANDUM of LAW by Bill Crouch Jeremiah Samples Linda Watts West Virginia Department of Health 11 26 2019 (Text)

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