Emily Rice Published

Attorneys Seek Sanctions In Delayed Lawsuit Against DHHR

A gavel rests on a wooden block. In the background is a scale representing checks and balances.Africa Studio/Adobe Stock

Attorneys say they have new evidence that shows the now split West Virginia Department of Health and Human Resources (DHHR) purposely deleted emails related to a class action lawsuit.

Plaintiffs in the suit, A Better Childhood, a New York-based nonprofit, along with Shafer and Shafer and Disability Rights West Virginia, recently asked for sanctions in the case due to lack of evidence retention from the defendants.

The lawsuit alleges the DHHR failed to properly care for thousands of foster kids, putting some in dangerous and unsafe situations.

In the original court filing, the Plaintiffs allege, “Children in West Virginia’s foster care system have been abused and neglected, put in inadequate and dangerous placements, institutionalized and segregated from the outside world, left without necessary services, and forced to unnecessarily languish in foster care for years.”

The group filed a complaint in federal court in October 2019, denouncing the DHHR’s “over-reliance” on shelter care, shortages in case workers and a “failure to appropriately plan for the children in its custody.”

The following year, a motion for class action status was filed but left undecided when the case was dismissed in 2021. In 2022, that decision was reversed by the Fourth Circuit Court of Appeals and the class action motion was renewed in May 2023.

According to the DHHR Child Welfare Dashboard, on Jan. 16, 2024, there are 6,087 

children in state care.

The Missing Emails

Recently, the case has taken a turn as attorneys battle for sanctions against the DHHR for failing to preserve emails from former top officials that were relevant to the case.

In an email, Wetzel said the DHHR instructed the West Virginia Office of Technology (WVOT) to preserve all emails relevant to the case.

“Unfortunately, a litigation hold was not placed by WVOT on certain email accounts, resulting in some emails not being preserved,” Wetzel said in an email. “Subsequently, Gov. Jim Justice has directed WVOT to develop an updated form and process for legal hold requests.”

Wetzel also said in an email that all emails of current employees, including all emails between current employees and former employees have been preserved.

“Therefore, the majority of relevant emails involving dozens of employees are available to be produced to plaintiffs in this case, as requested,” Wetzel said in an email. “Over the last four years, DoHS (West Virginia Department of Human Services) and its predecessor agency have preserved and produced to plaintiffs more than 1.2 million pages of documents, including hundreds of thousands of emails and attachments.”

The DHHR said the Office of Technology was responsible for the statewide policy of deleting the emails of people who left the state’s employment within 30 days.

However, relevant emails had a litigation hold placed on them, according to court documents.

In November, defendants in the case filed an opposition to the plaintiffs’ motion for sanctions, apologizing to the court and the plaintiffs for the lost electronically stored information.

In the midst of an ongoing class action lawsuit and possible sanctions for lack of record keeping, the state health department’s top attorney retired at the beginning of 2024.

DHHR General Counsel April Robertson retired effective Jan. 2, 2024, said Jessica Holstein, a spokesperson for the DHHR, in an email.

The news of Robertson’s retirement comes after attorneys who brought the class action lawsuit announced in October that they were filing for sanctions, because the DHHR had failed to preserve about three years of requested emails.

Robertson gave a deposition on Nov. 21, 2023, stating that she had been General Counsel at the DHHR since May of 2019, the duration of the pendency of the class action litigation.

The lawyer questioning Robertson, J. Alexander Meade of Shaffer & Shaffer PLC, asked her if the General Counsel’s office had followed up with the Office of Technology to ensure that the electronically stored information of the named defendants or individuals within the matter was being preserved. 

She responded that she did not follow up, and when asked why, she said, “I had no reason to assume that there would be any problem.” She later testified she had never needed to follow up on a litigation hold with the Office of Technology.

Robertson testified that she submitted the litigation hold in December 2019 via email. She said she received signed acknowledgments from the individuals who were subject to the litigation hold, but not from the Office of Technology.

“I can’t speak to what they may read or not read in their inboxes,” Robertson said in her deposition.

Meade asked Robertson about the purpose of the acknowledgment form if no signed acknowledgment was received from the Office of Technology.

“The purpose in my mind is primarily to make sure our DHHR folks are seeing it and making sure that they understand,” Robertson said.

Robertson also testified that, before September 2023, she was not aware of the Office of Technology’s policy regarding the deletion or purging of electronically stored information about staff who had separated from state employment.

“What we have learned is it seems that there’s a great deal of either incredible carelessness or willful destruction of documents,” said Marcia Robinson Lowry, the lead plaintiff for the class and executive director of A Better Childhood (ABC).. “It’s very unclear what’s happening.”

In an affidavit, Michael Folio, legal director of Disability Rights of West Virginia (DRWV) and a previous attorney at the DHHR, testified that officials at the agency, namely Robertson and previous DHHR Secretary Bill Crouch, knew about policies surrounding preserving documents.

“Well, I had conversations with each of April Robertson and Bill Crouch, that arose as a result of an employee’s emails not having been preserved who was going to be a witness in a pending civil action,” Folio said. “And I raised the issue at that time about the spoilation of evidence. And this was wholly unrelated to the foster care lawsuits.”

Lowry said in a lawsuit similar to this one, she has to show that not only were the children’s constitutional rights violated, but that it was done with deliberate indifference to the children’s rights.

“The way you usually do it is by getting emails from the key players,” Lowry said. “And showing that there’s a pattern of saying that they knew about it, they knew about the harm being put on children, etc. Because people don’t admit it.”

However, in this case, the emails and the evidence they contained have not been turned over to the Plaintiffs.

Lowry said the loss of that information brought her to ask the judge for sanctions against the DHHR.

“There seems to be some sort of a pattern here with the state, not just not keeping information that’s necessary to prove your case,” Lowry said. “And the rule is that if they have done it willfully, then there are influences that can be made in the plaintiff’s favor.”

Lowry called the case highly unusual and said defendants know that when they are being sued, or even about to be sued, they have to maintain documentation.

“Whether they didn’t do it because they were incompetent or willful or just happened, we don’t know,” Lowry said. “But we do think it’s a very serious issue, and it’s never happened in another case that I’ve been involved in.”

Lowry said settlement discussions were had years ago, at the beginning of the lawsuit in 2019, but that they were “not fruitful conversations,” so she decided to proceed to a trial. She said one of the best things about settlement is being able to discuss with defendants the best ways of fixing the system.

“We’re still fighting about whether the system violates the Constitution, and we think it clearly is, it’s got to be one of the very worst systems in the country,” Lowry said.

When asked whether the division of the original DHHR into three separate departments would have an impact on the case, Lowry said only if the new secretaries presented concrete plans for improvement.

“If they were to say that, we would be very, very happy to talk to them,” Lowry said. “But that’s not happened, and that doesn’t mean it won’t happen.”

Folio said the splitting of the DHHR into three agencies is a bold and symbolic gesture.

“To me, the split is not just coming up with a new organizational chart,” Folio said. “The split requires a cultural change. It requires a change of individuals in leadership who manage the day-to-day affairs, and admittedly, there are three new secretaries, but the people under them, by and large, are still the same individuals who were there that resulted in the criticism by the legislature that resulted in the split of DHHR into the three agencies.”

The trial date has recently been moved from June to September because the defendants have not produced the information the plaintiffs are seeking. The court has ordered them to give the plaintiff’s more information by the end of January.

“They haven’t given it to us yet,” Lowry said. “It’s not due till the end of this month. It is a real system in total disarray and children, but the bottom line here is his lives are being damaged by how poorly the system is run.”

All parties will go before a magistrate judge who will hear arguments on sanctions on Jan. 17, 2024.

Abuse And Neglect

Plaintiffs cite federal data and reports in claims that in 2017, the rate of child deaths related to abuse and neglect per 100,000 children in West Virginia was more than double the national average and allege the rate of child victims of maltreatment was double the national average.

Nationally, during the Federal Fiscal Year (FFY) 2017, an estimated 1,720 children died due to abuse or neglect. The overall rate of child fatalities was 2.32 deaths per 100,000 children in the national population.

This claim appears to be verified by a 2019 Bureau for Children and Families Critical Incident Report, citing the annual Child Maltreatment Report produced by the U.S. Department of Health and Human Services, Administration for Children and Families (ACF), in which West Virginia has a higher recorded rate of deaths per 100,000 children than the national average for eight of the 12 years studied.

That same audit found that information on child fatalities in West Virginia is “not well documented, hindering the ability to determine the state’s needs for training, policy or field improvements that could reduce future child fatalities and near fatalities.”

Plaintiffs also allege the rate of child abuse and neglect investigations or assessments was more than triple the national average and near fatalities of children known to DHHR due to abuse or neglect rose by more than 20 percent per year between 2014 and 2018.

According to the same report from the Bureau for Children and Families, in FFY 2015, seven children were seriously injured due to abuse and neglect known to the bureau. This is an increase of two children from FFY 2014 to FFY 2015. 

In FFY 2016, nine children were seriously injured due to abuse and or neglect known to the bureau. FFY 2017 saw the first and only recent decrease in critical incidents with two children seriously injured due to abuse and neglect known to the bureau.

This is a decrease from all previous years of the critical incident review for near-fatal incidents.  

In FFY 2018, there were five children who were seriously injured due to abuse and neglect known to the bureau. In FFY 2019, there were eight children who were seriously injured due to abuse and neglect known to the agency. 

According to findings from the Child Welfare League of America, in 2020 West Virginia had 37,695 total referrals for child abuse and neglect. Of those, 26,572 were referred for investigation.

According to the U.S. Department of Health and Human Services, there were 6,116 child victims of abuse or neglect in West Virginia in 2020, at a rate of 17 children per 1,000.

Influx Of Children Entering The System

According to the plaintiffs, the number of youth entering the West Virginia foster care system has skyrocketed in recent years. They say in court filings that, “Between 2013 and 2017, the foster care population swelled by 67 percent — substantially higher than the national average increase of 11 percent during the same three years. A variety of factors played a role in causing this spike. For one, the opioid crisis disproportionately affected West Virginia, the 47th poorest state in the nation.”

West Virginia suffers from the highest age-adjusted rate of drug overdose deaths involving opioids in the nation. Plaintiffs claim caregiver addiction and deaths stemming from substance use disorder have driven more children into the system.

As of 2017, West Virginia had the highest rate of foster care entries for youth ages 14 to 17, at 14.2 per 1,000 children, as compared to the national average of 2.8 per 1,000 children.

The plaintiffs argue that the defendants fail to maintain an adequate number of appropriate placements for youth entering foster care in West Virginia. They allege that, as a result, the DHHR placed children in homes that have not been sufficiently vetted, supported or monitored to ensure children’s safety and well-being while in those homes, or institutionalizing them.

Plaintiffs argue that the DHHR increased their reliance upon kinship caregivers by more than 30 percentage points over the last five years. 

They also argue that in West Virginia, a disproportionate number of adolescents in foster care are sent to residential facilities, citing that 71 percent of youth between the ages of 12 and 17 are institutionalized in West Virginia, and in out-of-state facilities. 

Court filings claim that “as of June 2019, DHHR placed 327 foster children in out-of-state institutions. In-state, DHHR placed 588 youth in residential care and 83 in psychiatric facilities.”

In September 2023, there were 6,298 children in West Virginia state care and 31.79 percent of those children were between the ages of 13 and 17 years old. That means slightly more than 2,000 of them are teens.

According to West Virginia’s Child Welfare Dashboard, there are currently 488 West Virginia children in state-group residential care and 256 in out-of-state group residential care.

In an email response, Whitney Wetzel, a spokesperson for the West Virginia Department of Human Services (DoHS), formerly a part of the DHHR, said that DoHS continues to expand West Virginia’s children’s mental health system, “to ensure that children can receive appropriate mental health and social services in their homes, schools and communities through home and community-based services including West Virginia Wraparound and Children’s Mobile Crisis Response and Stabilization.”

“DoHS has implemented several initiatives including the Resource Rundown webinar to educate parents and caregivers about the Pathway to Children’s Mental Health Services (Assessment Pathway) to streamline access to mental and behavioral health services for children and families while quickly connecting them with a Wraparound Facilitator to help children and families navigate the process,” Wetzel said in an email.

Recently, DoHS published its semi-annual report outlining the expansion of children’s mental health system.

Staffing Shortages

Plaintiffs argue that West Virginia’s child welfare system is fraught with significant administrative problems that hinder its ability to operate effectively.

During the 2023 West Virginia Legislative Session, state lawmakers voted to divide the DHHR into three separate departments to increase transparency and improve outcomes in foster care. The new departments went into effect on Jan. 1.

There is now a Department of Human Services for programs like Child Protective Services, a Department of Health (DoH) and a Department of Health Facilities for facilities like state-run hospitals. Each agency has its own secretary to lead each agency.

In August 2023, Commissioner of the Bureau for Social Services Jeffrey Pack provided updates on hiring and retention initiatives in the department.

He said the bureau’s vacancy rate has been reduced from 31 percent in January to 19 percent as of June 2023.

Pack credits this reduction with pay increases for those who work multiple years of service in the department.

Another retention tool the department is using is trauma response for Child Protective Service (CPS) workers.

However, the 2019 lawsuit alleges that West Virginia fails to employ and retain a sufficient number of appropriately trained caseworkers and fills vacancies with unqualified applicants.

In an email response, Wetzel said the DoHS is committed to improving West Virginia’s child welfare system and children’s mental health system. 

“Last year, with the assistance of the governor, DoHS markedly increased the salaries for all child welfare workers and provided additional positions to help support child welfare workers,” Wetzel said in an email. “DoHS’s Bureau for Social Services (BSS) implemented ChildStat, an accountability tool used by senior leadership to monitor and track progress on key performance indicators of child welfare.”