MORGANTOWN, W.Va. — State Attorney General J.B. McCuskey says his office will continue its fight against a lawsuit that takes aim at the state’s foster care system.
The foster care lawsuit was filed in 2019 on behalf of thousands of children.
The lawsuit alleged rampant issues with institutionalization for children, placement outside of West Virginia, too few available community-based mental health services and overextended caseworkers.
The case was dismissed last year on the basis that the federal court system does not have the jurisdiction to rule on policies. The Fourth Circuit Court of Appeals reversed that decision, sending the case back to U.S. District Judge Joseph Goodwin. McCuskey asked Goodwin to stay any further action while his office prepares an appeal to the U.S. Supreme Court. Goodwin denied that request late last week.
“Our attempt here to get this case to the U.S. Supreme Court is not appropriate at this time,” McCuskey said Monday on WAJR’s “Talk of the Town.” “So, we will continue to litigate in front of Judge Goodwin and we will continue to appeal the case to the U.S. Supreme Court with what we believe will be pretty significant support from legislatures across the country.”
McCuskey and others have argued the state has made progress in improving the foster care system. McCuskey said Monday he expects that progress to continue.
“I have the utmost faith in (House Speaker) Roger Hanshaw and (Senate President) Randy Smith that they will get a real handle on this by working with the governor and make sure our kids are safe,” McCuskey said.
McCuskey said the severity of the problems is aggravated by struggles that are unique to West Virginia. The widespread level of the problem has resulted in more than 5,000 children in the system, with hundreds being lodged outside the state.
“We have enormous problems in West Virginia with poverty and substance abuse, and because of those two things, we have an enormous problem with parents who don’t take their duty as a parent seriously enough, and their children are left to be cared for by the state,” McCuskey said.
McCuskey said children move to foster care in the most serious situations, most often caused by poverty and substance use disorder.
“The state is stepping in due to a real lapse in what I think is the most important duty that any adult has, which is if you have a child, you need to make sure that child is taken care of,” McCuskey said.
The damage done by the opioid crisis is extensive to the point that a significant portion of an entire generation is at the heart of this lawsuit. It is the purpose of the foster care system and obligation of the state to help those who can’t help themselves.
“We have to give them the opportunity to live the kind of life that every other child that has two parents who are caring for them and taking all the steps they need for kids to get a good education and to be loved and cared for,” McCuskey said.
The new court schedule calls for a new round of discovery with the trial set for next spring. McCuskey said the state legislature could take action in the meantime that could help resolve the matter.
The lawsuit was filed by A Better Childhood, a national child advocacy organization; Disability Rights West Virginia; and Shaffer and Shaffer, a West Virginia law firm.