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A federal judge has dismissed a lawsuit against the West Virginia Department of Health and Human Resources alleging the department has harmed foster children through failure to address issues with the system.

U.S. District Court of Southern West Virginia Judge Thomas Johnston dismissed the lawsuit Thursday after reviewing five motions for dismissal over the past two years, stating the plaintiffs’ requested relief was “highly problematic.”

Twelve children in the state’s foster care system, ranging from ages 2 to 17, were named as plaintiffs in the lawsuit filed in the fall of 2019 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 cited a range of statistics and charged the state and department with failing to provide the necessary services that will protect all the children in the state’s custody. The lawsuit was brought as a class action, seeking to represent all the 6,800 children in foster care, and focused on three subclasses of children: 1,700 in foster care with disabilities, 1,600 close to aging out of the system without any preparation for adulthood, and 3,400 children in kinship care.

Johnston dismissed six of the 12 specific cases, as the children were no longer a part of the foster system, either due to adoption or movement to the juvenile corrections system.

The entire lawsuit was dismissed as Johnston found the relief the plaintiffs sought would take decisions out of the hands of state courts and place the power in federal court, which the judge said was highly problematic.

The order filed Thursday says the plaintiffs have a misunderstanding of how abuse and neglect proceedings work in West Virginia.

“Plaintiffs argue that ‘West Virginia circuit courts, like other state courts, review agency placement decisions’ and ‘the state circuit courts do not identify placements or place children in specific foster care setting.’ ... However, this argument is contradicted expressly by Rule 36 of West Virginia’s Rules of Procedure for Child Abuse and Neglect Proceedings ... Further, Plaintiffs’ arguments ignore the fact that West Virginia’s Circuit Courts are involved from the moment an abuse and neglect petition is filed and retain continuous jurisdiction over the case as it proceeds,” the order read.

Johnston says the plaintiffs should have started in state circuit court.

In a statement from a spokesperson, the department said it is pleased with the decision.

“This decision reinforces the efforts of the many federal, state and community partners who are working tirelessly to transform and improve our system. By granting the motion to dismiss, the Court confirmed that there is not a need for an outside entity to interfere with West Virginia’s child welfare system,” the statement said.

Reach Taylor Stuck at

tstuck@hdmediallc.com or follow @TaylorStuckHD on Twitter and Facebook.

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