CHARLESTON — A group of advocates plans to appeal a federal judge’s decision to dismiss its lawsuit against the West Virginia Department of Health and Human Resources and the Bureau for Children and Families.
Twelve children in the state’s foster care system, ranging from ages 2 to 17, were named as plaintiffs in the lawsuit filed in the fall of 2019 by A Better Childhood, a national advocacy group for children; Disability Rights West Virginia, a statewide disability rights organization; and Shaffer & Shaffer PLLC, a state law firm.
The lawyers for the children cited a range of statistics and charged the state and DHHR with failing to provide the necessary services that will protect all the children in the state’s custody.
Following five motions to dismiss the lawsuit from the state, U.S. District Court of Southern West Virginia Judge Thomas Johnston on Thursday dismissed the lawsuit, stating the plaintiffs’ requested relief was “highly problematic.” Johnston found the suit should have started in state circuit court, since that is where abuse and neglect cases are adjudicated.
“Although Plaintiffs are disappointed by the District Court’s decision to dismiss this action, the fight to protect West Virginia’s foster care children is far from over,” a statement from the three groups leading the lawsuit said. “Plaintiffs are steadfast in our allegations regarding the West Virginia Department of Health and Human Resources’ longstanding and systemwide failure to provide for the health and welfare of children in its care. These failures continue to constitute a violation of the constitutional rights of every child who is or will ever be in the State’s care. This action was dismissed on the Court’s interpretation of legal procedure, not for lack of relevant evidence or facts to support Plaintiffs’ claims. Plaintiffs believe that the Court’s decision in this case is not consistent with existing law and are intent on an appeal.”
The order filed Thursday says the plaintiffs have a misunderstanding of how abuse and neglect proceedings work in West Virginia.