Representatives for the government of West Virginia and its Department of Health and Human Resources have filed a motion to dismiss a lawsuit filed last month alleging the state has violated the federal and constitutional rights of the nearly 7,000 children in its custody.
The motion was filed Tuesday in the U.S. District Court for Southern West Virginia.
The lawsuit was filed 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. The government is being defended by Brown & Peisch PLLC, a Washington, D.C.-based firm, and two state deputy attorneys general.
Lawyers for the 12 children named in the lawsuit cite a range of statistics and charge the state and the DHHR with failing to provide the necessary services that protect children in the state’s custody. The lawsuit was brought as a class action, seeking to represent all children in foster care, and focuses on three subclasses of children: those in foster care with disabilities; those close to aging out of the system without any preparation for adulthood; and children in kinship care.
In its motion to dismiss, representatives for the state said the federal district court does not have jurisdiction over child welfare decisions because the state circuit court system has exclusive jurisdiction, per Supreme Court precedents. Even if the federal court chooses to hear the case, the lawsuit says, the plaintiffs failed to prove as a matter of law that the state has violated the federal and constitutional rights of the children in its care.
DHHR Secretary Bill Crouch said Tuesday at a news event with Gov. Jim Justice that the state strongly opposes the lawsuit. He said A Better Childhood never contacted the government to discuss the efforts already happening to reform the foster care system.
“The issues they raise are generally those the department has already publicly reported to the Legislature and is working to resolve with the input of the Department of Justice, our local stakeholders, the West Virginia judicial branch and the West Virginia Legislature,” Crouch said. “For an out-of-state group to sue the state of West Virginia to take over our child welfare system is offensive to the many federal, state and community partners who have worked tirelessly to transform and improve our system.”
Marcia Lowry, executive director of A Better Childhood, said the state cannot accuse her group of not knowing what is going on in the state because it is working with two in-state organizations that are aware of how the system functions.
“We’ve seen these cases before. We’ve seen these arguments before,” Lowry said. “We maintain our position that West Virginia is in a crisis situation. The [foster] population is going up. The number of kids out of state is very high. The number of kids running away from placements is going up. There are serious problems here, and we think they violate constitutional and federal law. The state has little [to] say, other than citing some, frankly, pretty old cases. We are going to deal with all that in our responsive papers.”
Part of the remedy A Better Childhood and its partners are seeking is a court-appointed monitor to review the state’s child welfare system and oversee changes. The motion to dismiss says the court does not have the jurisdiction over the decisions of lower courts.
Lowry, however, said they have been granted monitors in many of their cases. She said the monitor is a neutral party that could even determine that the state is doing terrific.
She said that, while she is sure there are conscientious judges and lawyers working in the best interest of the children, it is “pathetically laughable” to believe the circuit court system could deal with the class-wide issues the lawsuit addresses.