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Attorneys suing state over foster care say DHHR ‘deliberate’ in deleted email scandal 

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Attorneys suing state over foster care say DHHR ‘deliberate’ in deleted email scandal 

Nov 29, 2023 | 6:00 am ET
By Amelia Ferrell Knisely
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Attorneys suing state over foster care say DHHR ‘deliberate’ in deleted email scandal 
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The West Virginia Department of Health and Human Resources, located at One Davis Square in Charleston, W.Va. (Lexi Browning | West Virginia Watch)

Attorneys who sued the state over its treatment of foster children will continue to pursue sanctions against the state health department over deleted emails. The evidence could have shown the realities of the state’s overwhelmed child welfare system. 

Plaintiffs attorneys sought the emails as part of an ongoing class-action lawsuit against the West Virginia Department of Health and Human Resources and Gov. Jim Justice. 

Children were sent to dangerous out-of-state institutions and the state failed to help kids find permanent homes, according to the lawsuit. Attorneys, who’ve struggled for years to get foster care information from DHHR, wanted to scrutinize top department officials’ emails to see if they took the appropriate action when alerted to problems in the child welfare system.

Those emails were deleted and likely couldn’t be retrieved, attorneys recently discovered. They pursued sanctions against DHHR over the missing evidence.

“The extent of lost emails containing valuable information like this is immeasurable, and plaintiffs have been severely prejudiced as a result,” they wrote in a filing. 

Attorneys with DHHR blamed the state Office of Technology for the deleted emails, and they said that they weren’t aware of a state policy to delete emails 30 days after an employee leaves their job. The plaintiffs’ attorneys argued that the state didn’t do nearly enough to preserve the emails and the lack of efforts was “intentional” and likely “deliberate indifference.” 

It’s an emerging pattern in the state, they added, and pointed to a recently-settled lawsuit over jail conditions where state corrections leaders had their own missing email fiasco.

DHHR attorneys said they made “reasonable efforts” to preserve the information and sanctions weren’t necessary. They’ve recovered some emails that were sent to other DHHR employees, according to court records.  

Attorneys with A Better Childhood, a nonprofit that brought the lawsuit against the state, pushed back on that claim. 

“Defendants’ ‘reasonable steps’ limited to sending a single email that included a form litigation hold letter that failed to specify whose accounts were to be preserved, was never followed up on, and was ultimately ignored,” they wrote in a filing on Monday. 

They added that DHHR’s failure to confirm the “failure to seek confirmation from the people who did not acknowledge receipt of the memorandum is so baffling that it can only be understood as deliberate.”

According to the documents, the Office of Technology’s Chief Information Security Officer Danielle Cox said DHHR’s attempts were “insufficient to preserve email accounts.”

Plaintiffs attorneys pointed to another high-profile case against the state — this one over alleged inhumane conditions in a state jail. In that case, which was recently settled, emails, inmate grievances, cell phone records and more were missing.

U.S. Magistrate Judge Omar Aboulhosn recommended default judgment over the lost or destroyed evidence, which included emails, inmate grievances and cell phone records. He believed that the state intentionally destroyed the evidence. 

Following his judge’s recommendation, the state recovered some evidence then hastily settled the suit for $4 million. 

Plaintiffs’ attorneys argued that Aboulhosn’s harsh response to the state about the missing jails evidence was relevant to the ongoing foster care suit, where state-funded agencies failed to secure critical information. 

They’ll keep pursuing sanctions against DHHR.

“Plaintiffs respectfully request that the court issue the following sanctions, and any additional sanctions that this court sees fit,” the filing said. 

Alongside the missing evidence, there have been calls from Republican and Democrat lawmakers for an outside investigation into how DHHR handled a Kanawha County case where two children were found living in a shed. 

DHHR doesn’t have travel records showing if they checked on the kids after neigbbors called CPS about the situation. 

On Tuesday, Del. Mike Pushkin, D-Kanawha, said that the case wasn’t an isolated incident and that there are “systemic failures within the DHHR that have led to such egregious oversights.”

He called on Justice to launch an investigation.