Foster Care Lawsuit Dismissal Overturned By Appellate Court

A federal foster care lawsuit against West Virginia officials and the Department of Health and Human Resources reopened Monday after the previous decision to dismiss the case was overturned in an appellate court.

The case was originally filed in 2019 as a civil lawsuit on behalf of 12 children in foster care. A request was made in 2020 to expand the case to represent every child in the foster care system as part of a class action lawsuit.

Lawyers from New York City-based nonprofit A Better Childhood argued that DHHR failed to appropriately plan for the minors in its custody, citing over-reliance on shelter care and a shortage of case workers.

The lawsuit was dismissed by the U.S. District Court of Southern West Virginia last year, deferring the case to the state courts.

The U.S. Court of Appeals for the Fourth Circuit reversed the dismissal, arguing that because the plaintiffs are most interested in pursuing the case as a federal class action suit, they have a right to a decision at the federal level.

In the court’s opinion, senior judge Henry Floyd said “forcing plaintiffs to once more litigate their claims piecemeal would get federalism exactly backwards.”

The DHHR’s online Child Welfare Dashboard reports nearly 6,600 children are in foster care statewide and that 68 percent of Child Protective Service worker positions have been filled as of July 11.