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Foster Child Advocates Ask Court To Reject State’s Motion to Dismiss

CHARLESTON — Child advocates who filed a class action lawsuit against the state over its handling of the foster care system are asking a federal judge to reject a motion to dismiss their lawsuit.

Attorneys for national foster child advocacy organization, A Better Childhood, along with Disability Rights of West Virginia and the Shaffer and Shaffer law firm filed responses Monday to a motion to dismiss filed by the state Department of Health and Human Resources Nov. 27 and a motion to stay discovery filed by DHHR Dec. 9.

The advocacy groups filed a class action suit on behalf of 12 children in West Virginia’s foster care system Sept. 30. The suit alleges that DHHR houses children either in hotels, shelters, institutions, or out-of-state and are subject to abuse and neglect. The state, represented by the Brown and Peisch law firm, argued last month for dismissal, saying that the U.S. District Court for the Southern District of West Virginia has no jurisdiction over county circuit court decisions regarding placement of children in foster care. The state attorneys also argue that the federal court should abstain from hearing the case.

“West Virginia’s foster care system is in a state of chaos. The opioid epidemic toppled what was already a collapsing system,” the response stated. “By willfully disregarding the continuing failures of West Virginia’s child welfare system, (the state has) jeopardized the safety and well-being of the 6,800 foster children in DHHR custody.”

According to the filing, West Virginia led the nation in removing children from families in 2018, increasing by 67 percent between 2013 and 2017, institutionalizing 71 percent of children between the ages of 12 and 17, and sending more than 300 children out of the state.

Attorneys for the advocacy organizations allege that DHHR relies on placing children with distant relatives and provides little oversight. According to the Charleston Gazette-Mail, an 11-year-old girl placed in foster care was impregnated by her biological father. A separate lawsuit accuses DHHR of not thoroughly vetting the father, whom girl barely knew, before placing her with him.

Recent legislative audits also found that Child Protective Services within DHHR is unable to meet statutorily required timeframes for investigating abuse and neglect cases. In 2018 cases, Child Protective Services was only able to meet the timeframes 50 percent of the time due to high employee turnover. DHHR’s Bureau of Children and Families also doesn’t make sure social workers maintain their licenses and doesn’t conduct background checks for social workers.

Even though the state has settled a complaint brought in 2015 with the U.S. Department of Justice regarding DHHR’s treatment of foster children with intellectual and developmental disabilities, the advocacy groups argue that the settlement is week and unenforceable. They also put little faith in the new managed care contract between DHHR and Aetna Better Health to manage foster medical and behavioral health services.

“Disarray within DHHR only compounds these problems: Defendants maintain high caseworker vacancy rates; employ caseworkers who are underqualified, undertrained, and carry excessive caseloads; and fail to screen applicants for criminal backgrounds and drug use,” according to the response. “By willfully disregarding the continuing failures of West Virginia’s child welfare system, Defendants have jeopardized the safety and well-being of the 6,800 foster children in DHHR custody.”

A scheduling conference is scheduled for 3 p.m., Dec. 30, by U.S. District Judge Thomas Johnston.


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