DHHR files motion to dismiss foster care lawsuit

CHARLESTON — West Virginia Department of Health and Human Resources filed a motion Tuesday in federal court to dismiss a lawsuit accusing the agency of mishandling the state’s exploding foster care population.

DHHR filed a motion in the U.S. District Court for the Southern District of West Virginia to dismiss a class action lawsuit brought by the Shaffer and Shaffer law firm in Charleston, Disability Rights of West Virginia, and A Better Childhood, a national foster child advocacy organization.

The suit, filed Sept. 30 on behalf of 12 foster children ranging from ages 2-17, alleges that these children are often housed either in hotels, shelters, institutions, or out-of-state and are subject to abuse and neglect.

“We will not be distracted by this lawsuit,” said DHHR Secretary Bill Crouch. “Substantive changes have been made, and are continuing to be made, to the state’s child welfare system with the help of the West Virginia Legislature and many experts in the field. We continue to move forward with critical initiatives to improve family stability and ensure the well-being of the children of our state.”

Attorney Philip Peisch of the Washington, D.C. law firm Brown and Peisch drafted the motion for the state. Peisch argued that the federal court has no jurisdiction over cases decided by West Virginia’s circuit courts, and that the federal laws cited do not apply.

“In West Virginia’s case, some of the allegations in the complaint are wrong, some display a lack of familiarity with West Virginia’s child welfare system, and some are true but wholly devoid of context,” Peisch wrote. “But defendants do not believe this court will need to sort out which is which, because plaintiffs’ claims do not belong in federal district court.”

Marcia Robinson Lowry, executive director of A Better Childhood, said in a phone interview Tuesday said federal court was the best venue of this kind of lawsuit.

“I think the law, frankly, is pretty well settled about whether this kind of a case belongs in state or federal courts,” Lowry said. “And I think it is ludicrous to suggest that the problems that we’re complaining of can be addressed in individual children’s proceedings in state court. That just cannot happen. It just doesn’t happen. And it in fact can’t happen because the problems are not within a particular individual child. The problems are much more widespread.”

Both Crouch and Peicsh said that neither Disability Rights of West Virginia and A Better Childhood reached out to DHHR to find out what the agency was doing to handle the flood of new foster care cases brought about by the opioid crisis.

These initiatives include a 2015 pilot program to provide behavioral health services for children at risk for foster care to keep them with families. Senate Bill 2010 which provided a new managed care program to provide health care and social services to foster children. Aetna Better Health of West Virginia was selected Nov. 5 as the managed care organization in a year 3.5-year contract. The state also signed a memorandum of understanding with the U.S Department of Justice to expand mental health services to children in the state’s custody.

“This lawsuit was filed by some New York-based law firm that not once contacted the leadership at DHHR, never attempted to ask us what we were doing with regard to child welfare, and never once attempted to engage in discussions with DHHR prior to filing this suit,” Crouch said. “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.”

“My organization has been in this state I don’t remember how many times,” Lowry said. “We’d been working on this case for quite a long time with our partners, so we know very well what the state is doing…and not doing, and we know they’re not doing very much.”

Crouch accused A Better Childhood of trying to wrest control of the foster care system from the state and put it in the hands of a court-appointed monitor.

“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,” Crouch said.

Lowry said that a court-appointed monitor wouldn’t be in charge of West Virginia’s foster care system, but only report back to the federal court on the state’s progress meeting certain benchmarks in improving the foster system.

“I don’t think it is in terms of whether we’re asking for a federal court takeover. That’s not the case at all,” Lowry said. “We’re asking only for a monitor who would report to the court whether or not the state is making progress on meeting whatever standards and requirements the court would lay down for them.”

The state has seen a 75-percent increase in foster placements between 2010 and 2019. There are 6,996 children in foster care as of October, with many of the placements due to opioid use by parents and guardians. Since 2015, caseloads for Child Protective Services workers involving substance abuse referrals increased by 79 percent.


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