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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