West Virginia

 Jonathan R. v. Governor justice

Plaintiffs: 12 children in foster care, aged 2 through 17 years old, representing the class of over 6,800 children in foster care in West Virginia.

Read the original complaint here (filed September 30, 2019).

Read the class certification decision here (August, 17, 2023).

about the West Virginia foster care system

 

West Virginia is the legal parent for 6,800 defenseless children who’ve entered the state’s foster care system due to serious allegations of abuse and neglect.

  • Referrals to the WV foster care system run by the Department of Health and Human Services (DHHR) are over one-and-a-half times the national average. Caregiver addiction and deaths stemming from substance abuse have driven more and more children into the system. West Virginia suffers from the highest age-adjusted rate of drug overdose deaths involving opioids in the nation.

  • Child victims of maltreatment are double the national average.

  • Child deaths due to abuse and neglect are over double the national average.

  • DHHR relies indiscriminately on out-of-state institutional care for children who shuffle between multiple placements, isolated in facilities that offer insufficient services.

  • Caseworkers receive inadequate training and then face impossible caseloads, many as high as 50. As of January 2019, 23% of caseworker positions were vacant.

  • Foster children age out of the system at 18 with no supports and end up homeless. At age 19, 18% of aged-out foster youth experienced homelessness in the previous two years and, by age 21, 28% percent experienced homelessness.

  • The USDOJ stated that West Virginia “needlessly segregated thousands of children far from family and other people important in their lives.”

  • Children languish in care because DHHR does not create adequate permanency plans that are stable and/or safe.

allegations

 

West Virginia fails to exercise sufficient oversight over its child welfare system and to take necessary steps to ensure that the DHHR complies with federal law and constitutional rights of children. West Virginia has assumed responsibility but failed to protect children by not providing necessary services nor placing them in safe homes and appropriate facilities.  The result of these failures is that the West Virginia foster care system devastates and permanently damages the children in its care.

advocacy goals

progress

On behalf of a class of over 6,800 children, we ask that the Court enforce these children’s constitutional, federal, and state law rights to be safe while in state custody and to grow up in a permanent family.

After the 4th Circuit Court of Appeals reversed the district court’s decision to dismiss the case, the case has gone back to the district court.  The district court addressed the remaining legal issues in the state’s motion to dismiss, and has ruled that we have stated strong constitutional and federal statutory claims on which we can proceed.  Following that very helpful decision, the district judge proposed mediation in an attempt to resolve the issues and stayed the litigation for mediation efforts but the mediation has been unsuccessful.  We have now asked the judge to lift the stay so that we can proceed to prove the case and finally get results for the children of West Virginia.  The class action motion, filed two and a half years ago and still undecided, will be the next important step.  Meanwhile, the legislature has just passed a bill to split the agency into three parts.     

meet our plaintiffs

(All names below are pseudonyms)

jonathan

Jonathan R. is a 15-year-old boy and has spent the last seven years in DHHR care. After being sexually, physically, and emotionally abused by his birth parents, Jonathan was adopted by a family friend. After being adopted, Jonathan was abused by his adopted parents but DHHR repeatedly failed to open an investigation. He later became suicidal and was institutionalized. He was eventually moved to an out-of-state facility in Georgia which didn’t provide him appropriate services. Through the years, he was moved several more times. With proper planning and services, Jonathan’s risk of harm could be significantly reduced but instead, the state has only continued to contribute to his trauma.

karter

Karter W. is a 13-year-old boy who has been in foster care for over three years and has only had one community-based foster home placement. DHHR has otherwise bounced Karter between numerous temporary shelters, residential facilities, hospitals, and, now, an out-ofstate institution. At one point, Karter has been prescribed 32 pills a day to try to control his behavior. DHHR even prevented him from speaking with his dying grandfather.

gretchen

Gretchen C. is a 15-year-old girl who has been in foster care for over five years. During Gretchen’s time in foster care, she has lived in temporary shelters, four group homes, and a large out-of-state institution, where she currently resides. Gretchen has repeatedly asked for individual therapy, but DHHR has ignored her requests, instead leaving her in a facility that engages in peer shaming and requires children to reap undeveloped land with a primitive farming tool called a scythe.

dennis

Dennis C. is 16 years old and has been in the custody of DHHR since he was 11. As a likely result of shaken baby syndrome, Dennis was diagnosed with cerebral palsy. Even with multiple reports to DHHR regarding the possibility of physical abuse for years, DHHR only removed Dennis from his abusive parents when he was 11 years old. He has been in five foster home placements and requires a therapeutic foster home but DHHR has never provided him with one. Dennis is smart but has been placed in a facility geared for low-functioning, severely disabled children, and has not been taught to read or write. The facility also has had reports of physical and sexual abuse. DHHR has not provided him with the services or appropriate placements that he needs, and which would have alleviated the consequences of many of the traumas that Dennis currently must deal with daily.

calvin, chris + caroline

Calvin, Chris, and Caroline K. are ages 4, 3 and 2 years old, respectively and entered DHHR care when Calvin was 14 months old and Chris and Caroline were just born. They experienced trauma and neglect from their birth parents, who were addicted to drugs before the children entered care. Upon entering DHHR care, they were placed together with a family who expressed interest in adoption. Unfortunately, DHHR delayed the process and the adoption did not take place. They were then moved to another foster family but were removed shortly after from claims the children were in “imminent danger”; later, the court ruled that this claim by DHHR was unfounded. The three siblings are in yet another foster home, thus experiencing multiple placements due to DHHR's inability to appropriately develop case plans and to follow department procedures.

serena

Serena S. is an 11-year-old girl who has Down syndrome. She is verbal but dependent on others to perform daily activities such as maintaining basic hygiene. Serena’s birth parents stopped sending Serena to school and eventually were sentenced to jail time due to educational abuse. Serena and her siblings were taken into care. Serena was eventually separated from her siblings and put in several placements that couldn’t handle her special needs. DHHR has not put forth any known effort to find Serena a pre adoptive home, or engaged in reasonable case planning and placement matching throughout Serena’s time in care.

anastasia

Anastasia M. is an 11-year-old girl who has been in foster care twice. She was shuffled through seven different placements including four foster homes and three respite care placements. In one facility, Anastasia slept on a mattress on a cement floor in a single-room cell. She told advocates repeatedly, “I don’t think I need help, I need love”. Anastasia is exceptionally bright and has an IQ of 130. As a result of her early childhood trauma and subsequent traumas related to her multiple placement disruptions, Anastasia suffers from the symptoms of attention deficit/hyperactivity disorder, reactive attachment disorder, and other psychological issues.

theo

Theo S. is a 7-year-old boy and entered DHHR care after multiple investigations into physical abuse within his home. He was born addicted to opioids and experienced withdrawal symptoms, yet DHHR still did not remove him from his home. Finally, after several years of more abuse, Theo entered foster care and was shuffled amongst approximately 12 placements. Now, this young boy is living in an out-of-state segregated institution, located over five hours from his home.

garrett

Garrett M. Is a 17-year-old boy who has been in DHHR care since 2012. Before entering care, Garrett was physically abused by his family, including being tied up and struck with a belt. He has been in group homes, residential care centers, and currently resides in a juvenile detention center. At the detention center, he sleeps on a mattress on a cement floor in a locked cell. He is deeply depressed and has made several suicide attempts, including when a staff member found him slowly suffocating after a failed attempt to hang himself with a noose made from his belt. He ages out of the system within the year and will be homeless since he has no family and does not trust DHHR.

ace

Ace L. is a 12-year-old-boy and has been in the care and custody of DHHR since 2016. Before entering care, Ace was sexually and physically abused by his stepfather. Stemming from his abuse, he was diagnosed with encopresis, which causes him to have occasional accidents. His previous foster family physically abused him due to these accidents, and the abuse was reported to DHHR but not investigated. Ace has been tormented by his medical diagnosis in other foster families, in every group home, and throughout his education. DHHR is aware of the challenges that Ace’s previous trauma has had on him, but has not provided therapeutic services to support him and has intensified his problems.