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CHILDREN SEEK RULING FROM FEDERAL COURT THAT FOSTER CARE CASE CAN PROCEED AS CLASS ACTION

September 1, 2020

Lawyers for twelve foster children, who brought a class action lawsuit against the West Virginia Department of Health and Human Resources for violating the legal rights of these children, filed in federal court on Wednesday a lengthy motion for class certification so that these children can proceed as class representatives for all of the almost 7,000 children in foster care.

The lawsuit charges that the West Virginia child welfare system is marked by high caseloads and frequent caseworker turnover, by an over reliance on temporary shelters and institutions, by workers failing to engage in planning for these children or to provide them with necessary services, and by moving children from place to place with little attention paid to the consequences and to the devastating impact on these children.

In support of the motion for class certification, the children’s lawyers presented reports from three expert child welfare officials from Massachusetts, New York, and Ohio.  These experts found that their case records were like “a disassembled jigsaw puzzle rather than a professionally organized case record that serves as both a case history and a tool for future planning.”

All twelve of the children moved frequently from place to place, after first spending years with their parents but with multiple allegations of both physical and sexual abuse, and repeated recommendations of the need for services, virtually all of which were unheeded, until the children finally entered foster care.  Since they entered foster care, the twelve children have experienced 108 moves thus far.

“The reviewed foster children were resilient, demonstrated real strengths and yearned – without exception – to belong to a family forever,” wrote one of the reviewers, Susan Getman.  “For most, this hope has yet to be realized.”

The children have also asserted that in addition to presenting stories of experiences that are common to other children in the foster care system, they also represent sub-classes of children in kinship care, children with disabilities, and children who are 14 years old and older.  The motion is also accompanied by affidavits from experts on kinship care, on services for children with disabilities, and on the provision of transition and independent living services for older children, who attest that the West Virginia child welfare system violates the law.

The state’s own data shows that 71% of youth between 12 and 17 are institutionalized, and more than 300 of those children are sent to expensive, for-profit institutions out of state.  Both Gov. Jim Justice and Cabinet Secretary Bill Crouch are among the defendants.

“These stories are just the tip of the iceberg; these children’s tragic circumstances are repeated time and again for most of the children in foster care in West Virginia,” said Marcia Lowry, lead lawyer for plaintiffs and director of A Better Childhood.  “The foster care system, unfortunately, continues to victimize the children it was designed to protect.” 

The lawsuit does not seek money damages, but does seek an injunction declaring that the state’s policies and practices violate the federal constitution, and discriminate against children with disabilities, and urges the federal court to require the state to make necessary reforms.

        Richard Walters, co-counsel on the lawsuit and with the firm of Shaffer and Shaffer, said, “Today we are asking the federal court to declare that all West Virginia children in foster care are part of this class action.  To do so will allow us to continue to fight for these children and make certain that  they are no longer denied their constitutional right to be free from continued abuse, neglect and abandonment.”

Lori Waller, a staff member at Disability Rights of West Virginia, stated, “The motion for class certification is an important step in this litigation.  If we can obtain it, we would be able to help all children in foster care, many of whom have disabilities, and who need advocacy to obtain essential services such as mental health and behavioral health services.”

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 A Better Childhood is a national nonprofit advocacy organization that uses the courts to reform dysfunctional child welfare systems around the country.

Disability Rights of West Virginia (DRWV) is the federally mandated protection and advocacy system for people with disabilities in West Virginia. DRWV is a private, nonprofit agency. 

Since 1909, Shaffer & Shaffer is a West Virginia firm with services including general civil practice in state and federal courts in West Virginia, with an emphasis on personal injury, industrial accidents, employment law, commercial transactions and litigation, employment law and insurance defense.

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Oklahoma Press Releases Uncategorized

MALTREATMENT IN FOSTER CARE REMAINS SERIOUS PROBLEM IN OKLAHOMA, ACCORDING TO COURT MONITORS (1.2.18)

MALTREATMENT IN FOSTER CARE REMAINS SERIOUS PROBLEM IN OKLAHOMA, ACCORDING TO COURT MONITORS

D.G. vs. Yarborough, Civil Action No. 08-CV-74

The three national experts (“Co-Neutrals”) who assess the progress being made by the Oklahoma child welfare systemunder the settlement agreement inthe class-action foster care lawsuit D.G. vs. Yarborough, released their 11threport on New Years’ Eve.  Among its major findings was the fact that the state had once again failed to make “good faith efforts” to protect children from being subject to maltreatment while in the state’s foster care custody.

The 11thCommentary, assessing whether the state had reached targeted outcomes set by the Co-Neutrals and agreed to by the state, shows some progress from the last Commentary in August 2018. At that time, the Co-Neutrals found nine areas of “lack of good faith progress,” while they only found five such areas this time. But the report continues to show major problems in several different areas, including lagging far behind in developing additional foster homes for children with special needs.

“If children are not safe in the foster care system,” said Marcia Robinson Lowry, Executive Director of A Better Childhood and co-lead counsel in D.G. vs. Yarborough, “that system is failing in it most fundamental duty to protect children.”

According to the Co-Neutrals, the state has failed to make good faith efforts in five of the target areas, the standard which the state is required to achieve under the settlement agreement, as compared to nine target areas in the last report.  However, seven years into the settlement agreement, the state has still not achieved the target outcomes in almost any of the measures to which it has agreed, including such outcomes as:

  • The number of nights children of different age groups remain in shelters;
  • The development of a sufficient number of regular and specialized foster homes;
  • The maltreatment in care rates;
  • The number of workers and supervisors employed by the state; and,
  • Whether the state achieves permanency for children, as measured by a national standard.

The issue of maltreatment in care and the failure to develop an adequate number and range of “therapeutic” foster home for children with special needs have both been long-standing problems and have not yet been addressed adequately by the state during the most recent period, the Co-Neutrals noted in their report, finding a lack of “good faith progress” in those areas.

In commenting on the regular reviews they routinely conduct of children’s case records, the Co-Neutrals noted in their most recent report that “the quality and depth of these reviews has been an ongoing challenge for the department to improve, which has resulted in some children remaining in unsafe foster homes when there was information available to the department that, if taken into account, should have led to the removal of children from the homes.”

The report noted further, “This period, the Co-Neutrals’ review of substantiated maltreatment referrals continue to identify foster homes with concerning histories that were documented during the home approval process but were nonetheless approved to care for children in DHS custody.”

On the need to develop additional placements for children with special needs, the Co-Neutrals noted the state’s continuing failure to even come up with a plan to do so, now seven years into a settlement agreement that was only intended to take five years to implement.  The duration of the agreement has been extended indefinitely by the parties.

“We are pleased with some of the state’s progress in certain areas but are deeply troubled by a combination of high rates of maltreatment in care, the state’s failure to act to develop additional placements for children with long-recognized needs for specialized placements, and the fact that the state’s rate of hiring additional workers has dropped to an unacceptable low point, putting children in further jeopardy,” said Ms. Lowry.  “We are very troubled that the state currently has 271 unfilled vacancies for caseworkers, and a backlog of more than 550 abuse and neglect investigations that are overdue for completion. This seems like a situation that is approaching crisis proportions at a time when we should instead be celebrating achievements.”

Co-Lead Counsel, Frederic Dorwartof the law firm Frederic Dorwart, Lawyers in Tulsa, OK stated, “The failure to achieve so many target goals, even where the co-neutrals believe DHS is making the required effort, is as troubling as the failure of DHS to make the required efforts in such mission critical areas.  It is evident that the efforts of the co-neutrals to drive progress is crucial.”

To interview Marcia Robinson Lowry or Frederic Dorwart and for a copy of the Co-Neutral 11thCommentary, December 2018, please contact Geoffrey Knox at 917-414-1749 or gknox@geoffreyknox.com.

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 A Better Childhood, (ABC) is a national child welfare advocacy organization that represents foster children in dysfunctional child welfare systems. In Oklahoma, Executive Director Marcia Robinson Lowry is co-lead counsel along Frederic Dorwart of the law firm Frederic Dorwart, Lawyers in Tulsa, OK. Lowry is also lead counsel in foster care lawsuits in Minneapolis, MN, Mississippi, New Jersey, Texas, New York City, and the District of Columbia.

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For more information, please contact:

A Better Childhood
media@abetterchildhood.org
844-422-2425

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Media Articles Texas Uncategorized

TEXAS MAY BE UNDER JUDGE’S SCRUTINY FOR YEARS ON CPS WORKERS’ CASELOADS, POLICING OF FOSTER-CARE PROVIDERS (11.23.18)

Texas may be under judge’s scrutiny for years on CPS workers’ caseloads, policing of foster-care providers

Dallas Morning News, November 25, 2018

“This is a thorough, careful set of remedies all supported by the circuit [court] decision that will finally protect the constitutional rights of Texas children,”

> Read full article