·  Legal News, Analysis, & Commentary

Lawsuits & Litigation

West Virginia Foster Care Lawsuit Can Move Ahead, Appeals Court Says

— July 22, 2022

An appeals court ruled that a lawsuit against the state of West Virginia can proceed.

A federal lawsuit against the state of West Virginia was recently revived by an appeals court after a lower court dismissed it. It was filed over claims that the state is failing to “protect children and fix its overwhelmed foster care system.”

Image of the The West Virginia Supreme Court
The West Virginia Supreme Court; Image Courtesy of the W.V. Supreme Court,

Earlier this week, the 4th U.S. Circuit Court of Appeals sent the lawsuit back to U.S. District Court in Charleston, “pushing back on state claims that a federal court should have no part in disputes about the system.”

The suit was originally filed back in October 2019 and is seeking class-action status. It was filed against Gov. Jim Justice on behalf of about 12 children. The state Department of Health and Human Resources and a handful of other state officials are also named in the suit.

Last year, a U.S. district judge granted a motion to dismiss the case from the state. That judge stated that the “state court system should have jurisdiction over child welfare cases,” and he determined that “six of the plaintiffs had left the foster care system, rendering their claims moot.”

The appeals court disagrees and actually supports the class-action proposition. Senior U.S. Circuit Judge Henry F. Floyd wrote the following in the majority opinion:

“For years, West Virginia’s response to any foster-care orders entered as part of the individual state hearings seems to have been to shuffle its money and staff around until the orders run out, entrenching rather than excising structural failures…Forcing Plaintiffs to once more litigate their claims piecemeal would get federalism exactly backwards.”

Allison Adler, a spokeswoman with the Department of Health and Human Resources, said the recent decision is discouraging. In a statement issued yesterday, she wrote the agency “believes the federal lawsuit seeks to interfere with West Virginia state circuit courts’ decision-making abilities related to foster care cases.”

The lawsuit alleges that the child welfare system in West Virginia has “significant administrative problems that hinder its ability to operate effectively.” The complaint goes on to describe numerous stories of “neglect and harm done to foster children while under the department’s care…many were in inadequate and dangerous placements, left without necessary services or forced to languish in foster care for years, including a 17-year-old suicidal boy who slept in a locked cell at a juvenile detention center.”

On top of that, the suit claims the state “failed to maintain an adequate number of appropriate foster homes, and that it resorts to quick placements among relatives without vetting or monitoring to ensure children’s safety. The reliance upon kinship caregivers has increased significantly in the past decade.”

It’s important to note that nearly 6,600 children are in the West Virginia foster care system. Some claim the demand for services is linked to the fact that the state has the “highest drug overdose death rate in the nation.” However, the suit argues that the state cannot continue using the opioid epidemic as an excuse.


West Virginia foster care system lawsuit revived by court

Inside West Virginia’s Overwhelmed Foster Care System


Join the conversation!