One year after a judge tossed out a class-action lawsuit on behalf of West Virginia foster children, a federal court of appeals has reversed course and reinstated a case that alleges widespread failures in the state’s foster care system.
Late last month, the 4th U.S. Circuit Court of Appeals sent the lawsuit back to the U.S. District Court for the Southern District of West Virginia, disagreeing with its claim that a federal court had no role in overseeing the state’s troubled foster care system.
A 2019 lawsuit filed by the New York City-based A Better Childhood and Disability Rights West Virginia alleged that West Virginia’s child welfare system does not adequately support or vet relative caregivers and that foster children are frequently warehoused for years in group homes and other institutional placements.
The original case featured 12 different foster children from West Virginia, and aimed to gain class-action status on behalf of roughly 7,000 youth in the state, along with subclasses focused on teens in the system, children with disabilities and children living with relatives or other kin. West Virginia Gov. Jim Justice (R), Department of Health and Human Resources Secretary Bill Crouch and other state child welfare officials were named as defendants in the suit.
In a 45-page decision issued on July 20, Circuit Court of Appeals Judge Henry Floyd said that West Virginia’s foster care system “only compounds” abuse and neglect that cause youth to be removed from their homes.
“It houses children in inadequate and outright dangerous environments, deprives them of badly-needed social and mental-health services, and, when all else fails — which it often does in West Virginia — simply institutionalizes the children for years, segregating them from the outside world at the time socialization matters most,” Floyd wrote.
Ford also seemed to support the suit’s class-action status.
“Forcing Plaintiffs to once more litigate their claims piecemeal would get federalism exactly backwards,” he wrote.
A Better Childhood Executive Director Marcia Robinson Lowry hailed the reinstatement of the lawsuit.
“The West Virginia child welfare system harms children every day, with its shockingly inadequate staffing, lack of programs and services, and general mismanagement,” Lowry said in a statement released to reporters. “We hope this is a significant step forward toward real reform of a very serious problem that the state has repeatedly dodged for far too long.
A representative from the West Virginia Department of Health and Human Resources described the appeals court’s decision as “discouraging.” Spokesperson Allison Adler wrote that the agency believes the federal lawsuit seeks “to interfere with West Virginia state circuit courts’ decision-making abilities related to foster care cases,” according to an Associated Press report. In August 2021, U.S. District Court of Southern West Virginia Judge Thomas Johnston threw out the lawsuit. In agreeing with the state’s motion to dismiss the case, Johnston cited the fact that six out of the 12 youth included in the court filing had exited foster care and that plaintiffs should have filed the suit in a different court.