Years-Long Foster Care Lawsuit Dismissed

A federal judge dismissed years-long litigation against West Virginia’s child welfare system last week based not on the merits of the case but on the limits of the court.

On Friday, U.S. District Judge Joseph Goodwin issued an opinion stating West Virginia’s state government is to blame for “inaction, bureaucratic indifference, shocking neglect, and temporary fixes” in its child welfare system but said the court is limited in what action it can take. He wrote, “When elected officials fail, the ballot box is the remedy.”

Judge Goodwin dismissed the case for lack of jurisdiction, explaining that, “Constitutional limits prevent the court from crafting public policy and administering state agencies.”

Marcia Lowry, the executive director of A Better Childhood, a New York-based nonprofit organization, brought the lawsuit on September 30, 2019.

“It is not impossible to fix this system,” Lowry told WVPB on Monday. “It’s just that the executive branch won’t do it. The legislature won’t make them do it, and now the Federal Court has said, ‘It’s too difficult. I’m not going to do it.’ So where are the kids supposed to turn?”

Lowry said that after getting through motions for dismissals and summary judgements from the defendants and the court changing the trial date twice, she and her team were prepping for court proceedings when they received Judge Goodwin’s decision on Friday.

“The court itself decided that it was just not going to protect these kids, not even to hear the arguments about what’s happening to these kids,” Lowry said. “That was quite a surprise to us.”

Lowry said West Virginia’s child welfare system is so inadequate that it is infringing upon the children’s rights.

“The fact that the federal court has now also ignored those rights is very, very troubling, Lowry said. “There was an earlier instance in which the prior judge in this case had dismissed the case. We went to the Fourth Circuit, and the Fourth Circuit issued a very strong decision and sent it back down. Now the judge to whom it’s been sent, who has the case now, has said he’s not going to deal with it. We think that’s wrong. We think the judge is wrong.”

Lowry said there is legal precedent for a court to intervene in a child welfare system, citing examples in New Jersey and Oklahoma.

“It’s not easy, it’s hard,” Lowry said. “The other side has to dig in because there’s now a court order hanging over their heads. But when the system really tries to improve itself, it can do it.”

Lowry said she will appeal Judge Goodwin’s opinion and order.

“We will do everything we can to try to get a hearing for the children we represent,” Lowry said.

A communications specialist for the West Virginia Department of Human Services (DoHS) told West Virginia Public Broadcasting (WVPB) in an email exchange that it “seeks to collaborate with the judiciary and other partners to develop a strategic approach for necessary improvements” and acknowledged the difficulties faced across the system.

When asked how the DoHS plans to continue improving staffing shortages, the communications specialist told WVPB the department will engage with community partners and stakeholders to gain a better understanding of the Child Protective Services (CPS) worker shortage in the state.

“These discussions will inform the development of a strategic approach to address critical challenges. Additionally, we will continue to assess internal opportunities to improve processes, strengthen accountability, and support the needs of our workforce.”