Children suing WV over troubled foster care system win appeal, suit will move forward 

Foster children suing West Virginia officials over the state’s troubled child welfare system will have another chance to pursue legal action following a successful appeal.

The Fourth Circuit Court of Appeals on Thursday reversed and remanded a decision last year made by U.S. District Judge Joseph R. Goodwin dismissing the lawsuit meant to improve West Virginia’s long-troubled foster care system. 

“Now is the time to get back to work and effectuate real change. The children of West Virginia deserve better,” said Richard Walters, a partner with Shaffer & Shaffer who is representing children in the case.

The 2019 class-action lawsuit brought by foster children sought to address pervasive issues, including a shortage of Child Protective Services workers and safe homes for children. Kids were left to linger in the system for years with no plans for permanent homes or ending up in abusive group homes, the lawsuit said. 

The lawsuit also alleges that the state violated the constitutional rights of thousands of children in foster care.

A Better Childhood, a New-York-based nonprofit legal firm, and West Virginia attorneys representing the children hoped to force the state to improve foster care and wanted to put a monitor in place to enforce the proposed changes.

In his 2025 dismissal, Goodwin didn’t refute the lawsuit’s allegations against the state but said, “This court cannot take over the foster care system of West Virginia.” The judge said, “The blame squarely lies with the West Virginia state government.”

The appeals court ruled that Goodwin erred in ruling that federal courts did not have power to grant relief for systemic issues in foster care. 

Circuit Judge Henry F. Floyd, writing for the court, stated “federal courts not only have the authority, but also a duty, to remedy systemic constitutional rights violations.”

The case will now head back to the district court with guidelines to follow the appeals court decision and continue to hear this case to final judgment. 

“The dismissal from the district court was an inexplicable interruption to much-needed reform efforts,” said Marcia Lowry, executive director of A Better Childhood, in a news release. “The state continues to ignore desperately needed changes to protect the vulnerable foster children of this state. When the court dismissed the case, we were only months away from the trial. Since the Legislature and the leaders of the agency have again failed to take action to protect these children, we look forward to getting to trial as quickly as possible to seek relief from the court.”

The lawsuit was originally filed against previous Gov. Jim Justice and former foster care officials then continued under Gov. Patrick Morrisey.

It was previously thrown out in 2021 then revived by an appeals court in 2022. 

In 2023, U.S. District Judge Thomas E. Johnston recused himself from the case after Mountain State Spotlight, a nonprofit newsroom, pointed out ethical concerns regarding Johnston’s communication with lawmakers and the former Department of Health and Human Resources about legislation impacting foster care and possibly the lawsuit. 

The next year, a federal judge ordered sanctions against the state after finding that the West Virginia Department of Health and Human Resources failed to preserve foster care leaders’ emails and other electronic communications related to the case. The sanctions were proposed to cost $172,000.

Walters said they were pleased with the Fourth Circuit’s decision that the District Court can grant relief for children that he and other lawyers requested in 2019.

“Both the District Court and the Fourth Circuit agree that children in the custody of the state’s foster care system have suffered far too long,” he said.

There are more than 5,900 children in West Virginia’s foster care system.