Attorneys suing over WV's troubled foster care system seek to review lawsuit, request new judge
The West Virginia Department of Human Services, located at One Davis Square in Charleston, W.Va. (Lexi Browning | West Virginia Watch)
A group representing children suing the state of West Virginia over its troubled foster care system wants the lawsuit revived after a judge tossed the case in February.
A Better Childhood, a nonprofit legal advocacy group based in New York, is also seeking a new judge to preside over the class-action lawsuit, according to a filing on Tuesday.
'We're asking to get the decision reversed, and we're asking to get the judge off the case,' said Marcia Lowry, the organization's executive director. 'We continue to think this is a very serious and unconstitutional situation.'
The 2019 lawsuit brought by foster children sought to address pervasive issues in West Virginia's overburdened child welfare system, including a shortage of Child Protective Services workers and safe homes for children. Kids were left to linger in the system for years with no plans for permanent homes or ending up in abusive group homes, the lawsuit said.
In his dismissal of the case, U.S. District Judge Joseph R. Goodwin didn't deny problems still persist, but said the situation couldn't be fixed through the courts. 'This court cannot take over the foster care system of West Virginia,' Goodwin wrote in an opinion dismissing the case, adding that it was an 'unsatisfying result' to years of litigation.
'I know that there are children who deeply suffer in the custody of the state,' he continued. 'West Virginia's foster care system has cycled through inaction, bureaucratic indifference, shocking neglect and temporary fixes for years. The blame squarely lies with West Virginia state government.'
Lowry said that Goodwin failed to rule on underlying issues in the system and has 'firmly-held beliefs against institutional reform litigation.'
'The first thing he's supposed to do is decide liability. This judge has made it clear that he does not think that, regardless that there are serious problems in the system, he still can get relief. In our view, that is wrong,' she said. 'In the interest of justice and fairness, we think the case should go to a judge that doesn't have such firmly-held beliefs.'
Additionally, Lowry believes the suit should continue, saying a court ruling in the case is likely to address children's needs. The lawsuit asks the courts to mandate that the Department of Human Services place children in safe homes or facilities, receive necessary services and more. They're also asking for an outside monitor to 'conduct record reviews as necessary to ensure compliance.'
'No doubt, institutional reform of a state agency is a daunting and arduous task,' the filing reads. 'Federal courts have a constitutional duty to confront that task, not to shy away from it.'
Shafer and Shafer, a West Virginia-based law firm, and Disability Rights West Virginia are also plaintiffs in the case.
DoHS did not immediately return a request for comment. Prior to Godowin's dismissal order, the agency sought to have the case thrown out, citing improvements to the system that included hiring more CPS workers.
The lawsuit was previously thrown out in 2021 then revived by an appeals court in 2022.
In 2023, U.S. District Judge Thomas E. Johnston recused himself from the case after Mountain State Spotlight, a nonprofit newsroom, pointed out ethical concerns regarding Johnston's communication with lawmakers and the former Department of Health and Human Resources about legislation impacting foster care and possibly the lawsuit.
Public information available through the State Auditor's website shows that DoHS has paid more than $8 million to Brown and Peisch, a law firm in Washington, D.C. that has provided the state's legal counsel in the case since 2020.
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