Federal judges have dismissed two nascent lawsuits filed over the treatment of relative caregivers in Ohio and of foster youth in West Virginia, with litigators in both cases vowing to appeal.
In Ohio, Judge Michael Barrett of the U.S. District Court for the Southern District of Ohio halted an action initiated in November of 2020 that sought to compel the state to ensure that relatives and other kin were financially supported by county child welfare systems at the same rate as non-relatives. Attorneys in the case argued that Ohio was required to pay kin on an equal basis by D.O. v. Glisson, a Kentucky case that set precedent for all of the states in the 6th U.S. Circuit.
In late December, the state Legislature and Gov. Mike DeWine (R) worked out a plan that would start to pay relative caregivers $10.20 per child per day, the minimum amount in Ohio’s foster care payment range, for up to nine months. Non-relative foster parents can receive up to $200 per day to care for children with acute health needs.
Attorneys involved in the lawsuit said the plan did not address their concerns.
“These are not foster care payments, and they’re not close to what most foster parents receive in Ohio,” said Ira Lustbader, litigation director for the nonprofit Children’s Rights, in January. “What’s particularly frustrating is that in their own policies, the state agrees that kin deserve the same level of support.”
“This difference in payment due to a difference in placement, in a licensed home or not, is neither ideal nor even satisfactory,” Judge Barrett wrote, in his dismissal of the case. But ultimately, he ruled that the difference in payments was about licensure, and that relatives did have a path to full payments by becoming licensed foster parents.
Lustbader told The Imprint this week that the Glisson decision instructed states to treat “approved” relatives, whose homes are deemed suitable to care for children, the same as non-relatives who are licensed as foster parents.
“This case is all about fairness. It challenges Ohio’s practice of providing significantly less financial support for foster children living with approved relative caregivers than for children living with non-relative, licensed caregivers,” said Lustbader. “Because Black children make up a disproportionate share of the pool of relative foster families, those families in particular carry an unequal and unfair burden when the state fails to provide financial support to children in their care.”
The number of youth in Ohio foster care has risen nearly every year since 2012, from 11,877 up to 16,733 by March of 2020. About one in five foster youth in the state lives with a relative, but according to data provided to The Imprint by the state last year, just 7% of its licensed foster homes are kinship caregivers.
Richard Dawahare, a lead attorney on the lawsuit who was also involved in the Glisson case, told local media outlet LimaOhio.com that they would appeal the dismissal.
Litigators pursuing a class action lawsuit on behalf of foster youth in West Virginia have also sworn to fight the recent dismissal of their case by U.S. District Court of Southern West Virginia Judge Thomas Johnston. The lawsuit, filed by the New York City-based A Better Childhood and Disability Rights West Virginia, alleges that West Virginia’s foster care system relies heavily on relatives who are not vetted nor financially supported by the state, and that teens in the state’s custody are often warehoused in residential centers such as group homes or institutions.
The lawsuit leans on the cases of 12 different children in West Virginia’s custody, with the hopes of gaining a general class status along with subclasses focused on teens in the system, children with disabilities and children living with relatives or other kin.
Johnston specifically dismissed six of the 12 cases because the youth had exited foster care. He dismissed the entire case on the grounds that plaintiffs should have initiated the action in state circuit court.
The state Department of Health and Human Resources, in a statement to Herald-Dispatch reporter Taylor Stuck, said the decision “confirmed that there is not a need for an outside entity to interfere with West Virginia’s child welfare system.”
Marcia Lowry, executive director of A Better Childhood, said she has successfully overturned dismissals based on those grounds in previous actions against states.
“We feel fairly confident that the Circuit will agree with plaintiffs and reverse this decision,” Lowry said in an email to The Imprint. She said Johnston’s decision runs “contrary to law and the precedent that has developed over the last 20 years.”
