Lawyers representing the state Department of Human Services are asking a federal judge to knock out a longstanding lawsuit over the foster care system, saying it has no merit.
The attorneys for the state this week filed a motion for summary judgment in U.S. District Court for the Southern District of West Virginia. An accompanying memorandum makes an argument that West Virginia has steadily improved its child welfare system to the point of undermining the plaintiffs’ allegations.
Such a motion asks the court for a ruling on the merits of the case before it ever goes to trial.
The lawyers for the state say they have filed more than 3.2 million pages of documents and made dozens of state employees available for examination, concluding that there is no scenario under which plaintiffs could win if the case were allowed to proceed to trial at the taxpayers’ expense.
The state Department of Human Services distributed a press release on Wednesday to highlight the filing for summary judgment.
“While there is still room for improvement, DoHS has devoted substantial resources to making those improvements, with the support of the West Virginia Legislature and the courts, and will continue to do so,” stated Cynthia Persily, secretary of the West Virginia Department of Human Services.
“In West Virginia, as in every State child welfare program, there are always individual cases in which DoHS could improve. However, the statistics are clear that, on a system-wide basis, West Virginia has much to be proud of.”
The foster care lawsuit was filed in 2019 on behalf of thousands of children. The suit was filed by A Better Childhood, a national child advocacy organization, Disability Rights West Virginia and Shaffer and Shaffer, a West Virginia law firm.
The lawsuit alleged rampant issues with institutionalization for children, moves outside of West Virginia, available community-based mental health services and overextended caseworkers. The case has been moving along in the courtroom of U.S. District Judge Joseph R. Goodwin.
The latest filing by the state contends the child welfare program of 2024 looks vastly different from the program as it existed when the lawsuit was filed.
“For example, there is no dispute that, in the last several years, Defendants have, among many other things: reorganized the child welfare functions within the Department of Human Services (“DoHS”) to improve caseworker support and supervision; dramatically increased caseworker compensation; reformed and expedited the caseworker hiring process; implemented the ChildStat program to better monitor and improve casework within each district; significantly expanded access to kinship family placements in the community; redesigned the Safe at Home Program from a federal demonstration to a sustainable, state-funded program to support higher needs children living in family homes; launched the Mountain Health Promise program to coordinate and improve access to a continuum of services for foster children; and, pursuant to an agreement with the U.S. Department of Justice (“DOJ”), transformed the system for delivering community-based behavioral health services for children, including by launching a statewide mental health crisis hotline, mobile crisis support, the Pathway to Children’s Mental Health Services, and the Children with Serious Emotional Disorder Waiver program, which now provides hundreds of foster children with a broad range of community-based services.”
The plaintiffs have not yet filed responses, but their representatives indicated they would oppose the motion.
“The judge will, of course, decide but we do not think the brief is persuasive. Most importantly, the state simply does not have and is not even trying to hire enough caseworkers to protect children,” said Marcia Robinson Lowry, executive director of A Better Childhood, one of the plaintiffs in the case.
“Their latest data shows that they currently have 100 unfilled caseworker positions– based on a serious undercount of what they need. Backlogs on investigations into harm to children are extraordinarily high – a year ago they were 400 for Kanawha County, more than 3,000 statewide. Professional standards require that caseloads be counted by children — West Virginia continues to count them by families, leaving many children unprotected and workers unable to get their critically important jobs done. Children continue to suffer because the state simply won’t address this problem.”