Emily Rice Published

DoHS Seeks To Avoid Trial In Foster Care Lawsuit

A gavel rests on a wooden block. In the background is a scale representing checks and balances.
The Department of Human Services has asked the U.S. District Court for the Southern District of West Virginia to decide a foster care lawsuit on a summary judgment.
Africa Studio/Adobe Stock

The West Virginia Department of Human Services (DoHS) filed a motion Tuesday asking for summary judgment in a class action lawsuit that alleges the department neglected the children in its care by placing them in unsafe or unstable environments and lacked the necessary staff to serve them.

A summary judgment is a decision made based on statements and evidence without going to trial. It is a final decision by a judge meant to resolve a lawsuit before trial.

The lawsuit against the department was filed in September 2019. The original complaint against West Virginia officials alleged that they violated the rights of a dozen foster care children. The case was granted class action status in 2023.

In a press release, DoHS said a jury trial would be “costly and unnecessary,” claiming the more than 3.2 million pages of documents they’ve provided over the past five years prove that the plaintiffs could not win the case, based on “undisputed facts reflected in these documents and testimony.”

The motion, containing many thousands of pages of evidence, claims the department has decreased its reliance on residential treatment over the last decade by 11 percent and decreased the turnover rate for CPS and Youth Services workers by more than 11 percent.

According to the state’s Child Welfare Dashboard, child welfare positions in the state are 83 percent staffed with the most vacancies – currently 100 open positions – remaining for Child Protective Service workers.

“While there is still room for improvement, DoHS has devoted substantial resources to making those improvements, with the support of the West Virginia Legislature and the courts, and will continue to do so,” said Cynthia Persily, secretary of DoHS. “In West Virginia, as in every state child welfare program, there are always individual cases in which DoHS could improve. However, the statistics are clear that, on a system-wide basis, West Virginia has much to be proud of.”

Citing federal data, the department’s press release claims West Virginia has the third lowest rate of maltreatment of children in foster care, the highest rate of placement stability and the highest rate of placement in kinship care in the country.

Marcia Robinson Lowry is the lead plaintiff for the class and executive director of A Better Childhood (ABC). ABC is counsel for the children, along with Shaffer & Shaffer, a West Virginia law firm and the nonprofit organization Disability Rights of West Virginia.

“The judge will, of course, decide but we do not think the brief is persuasive,” Lowry said in an email. “Most importantly, the state simply does not have and is not even trying to hire enough caseworkers to protect children.”

Lowry said the number of unfilled caseworker positions is “based on a serious undercount of what they need.”

She also said backlogs on investigations into harm to children are “extraordinarily high – a year ago they were 400 for Kanawha County, more than 3,000 statewide.” 

“Professional standards require that caseloads be counted by children – West Virginia continues to count them by families, leaving many children unprotected and workers unable to get their critically important jobs done,” Lowry said. “Children continue to suffer because the state simply won’t address this problem.”