A lawsuit filed Tuesday alleging that West Virginia is violating the constitutional rights of foster children will cost the state millions to defend, Department of Health and Human Resources Secretary Bill Crouch said.
“The lawsuit that was filed today will cost the State of West Virginia millions of dollars and was filed by a company that has never contacted us to ask the question: ‘What are you doing to fix these problems?’ We welcome the opportunity to make our case in court,” Crouch said in a statement.
Twelve children in the state’s foster care system, ranging from ages 2 to 17, are named as plaintiffs in the federal lawsuit filed Tuesday by A Better Childhood, a national advocacy group for children, Disability Rights West Virginia, a statewide disability rights organization, and Shaffer & Shaffer PLLC, a state law firm.
Lawyers for the children cite a range of alarming statistics and charge the government with failing to provide the necessary services that will protect all of the children in the state’s custody. The lawsuit is brought as a class action, seeking to represent all of the 6,800 children in foster care, and focuses on three subclasses of children: those with disabilities, those close to aging out of the system without any preparation for adulthood and children in kinship care.
The lawsuit names Gov. Jim Justice, Crouch, DHHR Deputy Secretary Jeremiah Samples and Linda Watts, commissioner of the Bureau for Children and Families.
Justice could not be reached for comment Tuesday.
The lawsuit, filed in the U.S. District Court for Southern West Virginia, seeks an order directing the fundamental reform of the state’s foster care system. It also wants the court to order the DHHR to hire a neutral monitor to oversee the terms of the lawsuit.
The allegations in the lawsuit are issues the DHHR has been vocal about, including high rates of institutionalism for older children, high rates of out-of-state placements, overloaded caseworkers, lack of adequate foster families and a lack of services for children with severe emotional and behavioral issues.
In his statement, Crouch said the DHHR began making changes to the child welfare system in 2013 and has increased those efforts every year since then. He cited the current transition to a managed-care organization to organize health care, early adoption of the federal Family First Prevention Services Act, expansion of the Medicaid waiver for Children with Serious Emotional Disorders, more wraparound services for children and an increase in Child Protective Services staff.
“This administration and the West Virginia Legislature have invested more resources into the child welfare system than any other administration,” Crouch said. “We have been consistent and deliberate in our commitment to the safety and well-being of West Virginia’s children.”
Crouch said the DHHR has added more than 50 CPS positions, in the past year in areas were caseloads were high, and also funded additional CPS workers in the upcoming budget. He said salaries have increased 20 percent over the past two years, along with added recruitment and retention incentives.
Crouch also addressed lawsuit allegations that the state sends children to dangerous facilities out of state, such as The Children’s Center of Ohio, which the lawsuit alleges utilizes controversial therapeutic tactics, like peer shaming, and requires children to perform manual labor, such as clearing fields with a scythe.
“West Virginia has a quality group of residential providers who are committed to caring for children in our state; they share the same goal regarding the safety and well-being of our children and are considered partners with these ongoing improvements to the child welfare system,” Crouch said.
He also said his agency is working closely with the U.S. Justice Department.
“We value their guidance and input,” Crouch said. “This is being done through a Memorandum of Understanding that avoids an expensive lawsuit that would likely cost the state millions of dollars; money that would reduce the amount that we have available for services and improvements to the system.”
The lawsuit states that the DOJ agreement does not go far enough to address the issues and is self-enforcing, with no teeth.
“The company that filed this lawsuit against the State of West Virginia has not reached out to me or any member of our leadership team to ask questions regarding what we are doing in this state or to even engage in conversation regarding these issues,” Crouch said. “It appears that their 12 a.m. embargoed lawsuit was aimed to gain attention in the press, as they have done in several other states. We are always willing to talk about our problems in West Virginia, and work together with our partners and others to improve the services and care of our children.”
Marcia Robinson Lowry, executive director of A Better Childhood, said Tuesday her organization is willing to discuss the possibility of resolving the case without litigation.
“But we believe that far more than a promise to reform is required and that substantial oversight of this system, by an outside monitor, will be required,” Lowry said.