Class Action Advances the Welfare of 6,000 Foster Children in West Virginia

Marcia Lowry, Executive Director - A Better Childhood 

Jonathan’s Story 

After years of sexually, physically, and emotionally abusing young Jonathan, his parents relinquished their rights to him and gave the child to family friends, who later said they only adopted him because he had been left on their doorstep. An open investigation into the child’s care was completely abandoned by the West Virginia child welfare agency that was supposed to protect him. Unfortunately, his new home was as bad as the one into which he had been born; his new caretakers continued to abuse him. By his 11th birthday, Jonathan had serious trauma and PTSD, often threatening suicide. 

As the child welfare agency continuously ignored reports that Jonathan was being abused, his new parents washed their hands of him, dumping him into a psychiatric facility. The child welfare agency finally took custody of him, but all it offered was constant shuffling between different in-state and out-of-state residential facilities, Sadly, his circumstances have continued to deteriorate. The child welfare agency that was supposed to protect him has failed.   

Far too many children are “graduating” from West Virginia’s child welfare system even more damaged than when they entered it.   

Unfortunately, Jonathan’s Story Is Not Unique 

There are currently over 6,000 children who are also being neglected, abused, and ignored because of the failures of West Virginia’s Department of Health and Human Resources (DHHR). West Virginia has the highest rate of foster care placement in the country. Caseloads for workers – many of whom are well-meaning and want to do a good job of protecting and helping damaged children – are astronomical. They can’t do it.  

The state makes few resources available for its suffering children. Kids can’t get the treatment, services, and homes they need to help them heal from childhood traumas, to help their parents get the help necessary for them to be able to make a nurturing home for their children, or to ensure that children who can’t go back home will be adopted by loving families. Far too many children are “graduating” from West Virginia’s child welfare system even more damaged than when they entered it.   

In 2019, the children, represented by non-profit A Better Childhood (ABC), filed a lawsuit on behalf of all foster children in the state: Jonathan R. v. Justice. The lawsuit, like Jonathan, was initially ignored; the judge dismissed the case. But the appellate court, in a strongly worded decision, found that the case should be reinstated and sent the case back to the district court.   

Class Certification: A Huge Win for Kids in West Virginia 

Last month, in a huge step forward for the children, the case was granted class action status, meaning that the case is now proceeding not only on behalf of Jonathan, but on behalf of all children in foster care in West Virginia. The children’s lawyers now have the opportunity to prove that children in the West Virginia foster care system are being subjected to an “unreasonable risk of harm,” which the state is constitutionally barred from inflicting on children.  

This case, along with  a few others around the country, is unique. Sweeping class action lawsuits like this bring all foster children together into one class, instead of breaking the cases into small pieces that never address the fundamental systemic problems of dysfunctional foster care systems. The issues of broken child welfare systems, which provide far too few resources and are often far too intent on saving money instead of helping damaged children, must be addressed at the large-scale level. The recent class certification decision supports this system-wide strategy. 

A Better Childhood for Foster Kids 

If this case is successful, the state will be forced by the court to make systemic changes, improving the lives of foster children dramatically.  In other states where broad-based legal action has occurred, stories like Jonathan’s are the exception, not the norm. ABC is grateful for the Impact Fund’s support in our fight for a better childhood in West Virginia.