Lawyers representing children say new legislation falls short of fixing the system

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The out-of-state facilities with histories of child abuse. The unwillingness to match kids with the medical treatment they need. The placement of children in situations with high risk of sexual assault.

These are some of the many allegations brought by West Virginia foster children against the Department of Health and Human Resources, a massive state agency that runs the child welfare system. Lawyers representing the kids have been suing the agency for nearly four years, alleging DHHR repeatedly breaks state law and, in the process, endangers children.

“I think it’s safe to say that West Virginia has one of the worst systems in the country for foster children,” said Marcia Lowry, a lawyer on behalf of the kids and one who has litigated similar cases seeking systemic reforms in 10 other states. 

In recent months, U.S. District Judge Thomas E. Johnston, who was presiding over the case, pushed to use pending legislation – largely the split of DHHR – to settle the case. After these efforts and closed-door meetings with lawmakers came to light, Johnston recused himself over concerns that his impartiality could be questioned. Ultimately, the settlement talks failed and the case remains ongoing.

Settlement talks are usually conducted behind closed doors and a lot of the documents are supposed to be kept confidential. However, because the Legislature was involved, Mountain State Spotlight obtained emails and letters between stakeholders in the case through a public records request.

One of those documents offers a rare opportunity to see inside settlement discussions and why the legislation that passed during this session falls far short of what lawyers representing the children are seeking to help fix West Virginia’s foster care crisis. It could involve, they write, a settlement where the court enforces current laws, more data reporting from the agency, new legislation and additional funding. 

Not all of these fixes fall to state lawmakers, but several do. And while legislators have touted some bills they say will address the foster care crisis, most of the proposals outlined as important by Lowry have not been implemented. She and local experts worry kids will continue to be put in high-risk situations.

Potential changes to current law

In a January letter to Johnston, the judge presiding over the lawsuit at the time, Lowry listed action she believes is necessary to keep kids in the child welfare system safe. The most important action, she has said in interviews, is court-mandated oversight to make sure the state health department follows existing laws. 

“The judicial branch is there to make sure that the laws are followed,” Lowry said.

Despite that, her letter outlined steps West Virginia’s Legislature could take in the 2023 session to improve the foster care system.

Some of Lowry’s suggestions became law. State senators and delegates completed bills to increase pay for and change the distribution of child protective services employees, and they added new credential requirements for state social workers.

Lawmakers also passed a bill to clarify the role of the foster care ombudsman, an office tasked with investigating complaints in the system. And they touted their efforts to pass a major bill that split up DHHR into three separate agencies, which legislative leaders said was intended to fix long standing issues in the department, including the child welfare system.

“The fact that the Legislature now thinks it’s better to divide it is fine, is good,” Lowry said. “The Legislature, though, has not passed laws that say things have to be improved for children.”

Some of those laws, as outlined in Lowry’s letter, were provisions that foster kids receive medical screenings within three days of entering the child welfare system, that no one under the age of 10 be placed in a group living facility except in special circumstances and no one over that age be placed in a facility for more than a year.

A law clerk for Johnston sent Lowry’s letter to an attorney for House Speaker Roger Hanshaw, R-Clay, and House Health and Human Resources Chair Amy Summers, R-Taylor. Both declined to be interviewed for this story.

In a February radio interview, Summers, the lead sponsor of the split bill, said separating DHHR into three agencies will allow each to focus on issues – such as the foster care crisis – that had previously been neglected. She said the agency split is the “first step of many” changes needed to improve the state’s foster care system.

“We, the Legislature, are going to be required from this day forward to give this our utmost attention,” Summers said. “Some of these programs have failed too many people and we’ve got to do better.” 

Court oversight is the biggest ask

Now that the settlement talks have stalled, Lowry and the lawyers continue to litigate the case. They’re pressing for court-ordered oversight that forces the health department to comply with its own rules and terms outlined in a potential settlement or ruling.

A February draft of a settlement, one that DHHR’s lawyers ultimately walked away from, would have required the health department give the ombudsman and lawyers representing the former foster children “all reasonable requests for additional data and information.” DHHR lawyers did not respond to requests for comments.

Marissa Sanders, a West Virginia foster care advocate and a foster adoptive parent, said that with currently available data she fears the severity of many problems remains unknown, like whether the state has enough foster parents for the number of children.

“We don’t even know how to make things better for kids until we know what’s happening,” Sanders said.

Senate Bill 273, the child protective services worker pay law, also requires DHHR to post federal child welfare system indicators on its existing data dashboard. But it doesn’t require the state to report the number of available foster parents, nor the number of foster parents willing to take in children with special circumstances like behavioral disabilities or medical needs.

The key piece of oversight requested in Lowry’s letter is an independent overseer, one she described as a “neutral fact-finding entity.” That unit, through court-order, would be able to conduct random testing to make sure the health department was following the settlement terms every six months.

During the 2023 legislative session, lawmakers expanded the investigative powers and protected the autonomy of the foster care ombudsman. While January court transcripts indicate Johnston believed the ombudsman would address oversight of DHHR, Lowry’s team said it falls short.

“It doesn’t feel like it has the teeth that we’re looking for to actually hold them accountable,” said Richard Walters, an attorney representing the children with Lowry. “And 10 years from now we’ll be in the same boat.”

Reach Allen Siegler at [email protected]