As a West Virginia judge dismissed a sprawling lawsuit contending the state’s foster care system has let down thousands of children, the judge said the true responsibility for reform lies with elected leaders like the governor and legislature.
More than 6,000 West Virginia children are in state custody.
The state government retains every tool to improve the foster care system, and elected officials are entrusted and obligated to do so. If they fail, they can be thrown out of office, U.S. District Judge Joseph Goodwin wrote in a memorandum accompanying his dismissal order.
“State officials can no longer hide behind this lawsuit to avoid the consequences of their political decisions,” Goodwin wrote. “Now the legislature, the governor, and his appointees must do their job.”
Goodwin, a federal judge in West Virginia’s southern district, dismissed the case on Friday — not based on the merits but because, he concluded, the federal court system does not have the jurisdiction to set the kind of detailed policies that are properly carried out by the other branches of government.
‘Serious problems in foster care’
The national organization that was at the heart of the case says that if the executive and legislative branches were holding up their obligation to vulnerable children, then a lawsuit wouldn’t have been necessary in the first place.
“We know that the judiciary is the third branch of government that is supposed to act when constitutional acts are violated and when the Legislature, for example, doesn’t act,” Marcia Lowry, executive director of A Better Childhood, said in a telephone interview with MetroNews.
“The Legislature has known for 20 years, for quite a long time, that there are very serious problems in the foster care system in West Virginia.”
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.
Lawyers for the State of West Virginia have contended the state has steadily improved its child welfare system to the point of undermining the plaintiffs’ allegations.
‘An unsatisfying result’
Although the case has lingered for years in the court system, it advanced to the point that in late January the judge issued a scheduling order that indicated trial would begin at 9 a.m. May 6.
Goodwin, in his latest order, acknowledged that his move to dismiss the case would be jarring.
“I recognize the constitutional bar to the case is an unsatisfying result to years-long litigation demanding improvement of West Virginia’s foster care system. I know that there are children who deeply suffer in the custody of the State,” Goodwin wrote.
“This compelled dismissal is in no way an endorsement of the system as it remains. But the United States Constitution prohibits this court from assuming control of West Virginia’s foster care agency.”
But the judge said that until now the issue of the degree to which the court could or should intervene had not been pressed by the parties to the case.
“In recent times, the public has turned to the courts for answers to intractable policy issues. It is not difficult to understand why. When government fails—when promises are made and usually broken, when reforms are always delayed or abandoned—people turn in desperation to the judiciary. But there are limits to what the courts can do,” he wrote.
Goodwin wrote that the plaintiffs were asking the court to step beyond constitutional limits, seeking judicially crafted policies that would, in effect, place West Virginia’s foster care system under indefinite federal control.
That could have included court-ordered reforms of the state Department of Human Services to oversee agency hiring, budget allocations and caseworker caseloads. None of that is within the constitutional authority of a federal judge, he wrote.
“This court cannot take over the foster care system of West Virginia. Constitutional limits prevent the court from crafting public policy and administering state agencies. West Virginia’s foster care system has cycled through inaction, bureaucratic indifference, shocking neglect, and temporary fixes for years,” Goodwin wrote.
“The blame squarely lies with West Virginia state government. When elected officials fail, the ballot box is the remedy.”
‘Constitutional rights violated’
West Virginia’s courts, particularly at the local level, have had a series of collisions with the child welfare system.
On Friday, Kanawha Circuit Judge Maryclaire Akers ordered that a monitor be put in place to oversee state child protective services placements in hotels and camps after a 12-year-old boy in state care attempted suicide in a hotel room.
Last month, Pleasants Circuit Judge Timothy Sweeney ordered state officials to serve as child protective services workers because of severe understaffing.
In the case of the federal judge’s dismissal of the foster care class action suit, A Better Childhood will ask for review from the region’s 4th Circuit Court of Appeals, Lowry said.
“We know that children are not getting what the constitution requires. So when a group such as children, who cannot vote, get their constitutional rights violated, the federal judiciary is where they need to turn to get their rights established and enforced,” Lowry said.
“Constitutional rights of these children are being violated all the time, and there’s been ample documentation of that. So our next step will be to appeal this to the 4th Circuit and see what the 4th Circuit is going to do with this.”
Disability Rights West Virginia agreed with Judge Goodwin that “West Virginia’s politicians and policymakers have failed our state’s children.
“Children are being locked up in juvenile facilities and treatment centers at alarming rates. Foster children are aging out of the system and being dumped at the state’s psychiatric hospitals,” said Michael Folio, legal director for Disability Rights West Virginia.
He said the organization remains committed to working with legislators and policy leaders to craft solutions with measurable goals to expand community capacity and reduce costly institutional placements.
“Any solution requires cooperation, commitment, and compassion,” Folio said, adding that Disability Rights West Virginia “invites our state’s policymakers to work with us to stop squandering taxpayer dollars on costly out of state placements and give our state’s youth a chance to succeed.”
Jim McKay, state coordinator of Prevent Child Abuse West Virginia, also said the dismissal doesn’t change the reality that West Virginia’s child welfare system is in crisis.
“The court acknowledged that serious problems persist and that children continue to suffer in a system meant to protect them. This ruling doesn’t mean those concerns have been resolved or that they can be ignored. It’s a stark reminder that the courts alone can’t fix what’s broken,” McKay said.
“Now is the time for action—by communities across the state, as well as the governor, lawmakers and agency leaders. We must invest in proven solutions like early childhood home visitation that strengthen families before crises happen, ensure children in foster care have the stability and support they deserve, and commit to building a system that truly protects every child.”