MEMORANDUM OPINION AND ORDER
THOMAS
E. JOHNSTON, CHIEF JUDGE
Pending
before the Court is Defendants Jim Justice, Bill Crouch
Jeremiah Samples, Linda Watts, and the West Virginia
Department of Health and Human Resources' (collectively
“Defendants”) Motion to Dismiss, (ECF No. 17)
Defendants' Motion to Dismiss the Claims of Named
Plaintiffs Chris K., Calvin K., and Carolina K., (ECF No
55); Defendants' Motion to Dismiss the Claims of Named
Plaintiff Garrett M., (ECF No. 88); Defendants' Motion to
Clarify Plaintiffs' Proposed Class Definition and to
Dismiss Named Plaintiff Gretchen C., (ECF No. 107); and
Defendants' Motion to Dismiss the Claims of Named
Plaintiff Serena S., (ECF No. 167.) Also pending is
Plaintiffs Jonathan R., Anastasia M., Serena S., Theo S
Garrett M., Gretchen C., Dennis R., Chris K., Calvin K.,
Carolina K., Karter W., and Ace L.'s (collectively
“Plaintiffs”) Motion for Class Certification and
Appointment of Class Counsel, (ECF No. 130); Plaintiffs'
Motion for Extension of Time to Reply, (ECF No. 153);
Defendants' Motion to Stay Discovery, (ECF No. 156);
Defendants' Unopposed Motion to Exceed Page Limit, (ECF
No. 159); Defendants' Motion for Leave to File Under
Seal, (ECF No. 161); Defendants' Motion to Exclude
Plaintiffs' Expert Testimony, (ECF No. 163);
Plaintiffs' Unopposed Motion for Extension of Page Limit,
(ECF No. 166); Plaintiffs' Motion to Exclude
Defendants' Expert Testimony, (ECF No. 180); and
Defendants' Motion for Leave to File Sur-Reply, (ECF No.
182). For the reasons discussed more fully below, the Court
GRANTS Defendants' Motions to Dismiss,
(ECF Nos. 17, 55, 88, 107, 167).
Plaintiffs
filed this proposed class action on behalf of all children
who are currently in or will be placed in the custody of West
Virginia's foster care system. (ECF No. 1 at 6, ¶
10.) The proposed class consists of one General Class and
three subclasses. The proposed Kinship Subclass consists of
children who are or will be placed in kinship
placements.[1] (Id. at 10-11, ¶ 30(a)(i).)
The proposed ADA Subclass consists of children who have or
will have physical, intellectual, cognitive, or mental health
disabilities, and the proposed Aging Out Subclass consists of
children aged 14 years and older who are eligible for
transition planning but have not been provided the necessary
case management and services. (Id. at 11, ¶
(30(a)(ii-iii).)
The
twelve named Plaintiffs are children in the custody of West
Virginia's Department of Health and Human Resources
(“DHHR”). (Id. at 2, ¶ 1.)
Plaintiffs allege that West Virginia's foster care system
has operated in a state of crisis for years and that the DHHR
and the Bureau for Children and Families (“BCF”)
have failed to protect the children in their care.
(Id. ¶ 1.) Defendants, all sued in their
official capacities, are Governor Jim Justice, Cabinet
Secretary of the West Virginia DHHR Bill Crouch, Deputy
Secretary of the DHHR Jeremiah Samples, Commissioner of the
BCF Linda Watts, and the West Virginia DHHR. Plaintiffs
allege Defendants are aware of the following systematic
deficiencies within West Virginia's foster care system: a
lack of foster care placements; an overwhelmed system that
leads to inadequate, temporary, and overcrowded foster home
placements; an overreliance on institutional care for
children; a failure to ensure placement stability; a failure
to track foster children; a failure to employ and retain a
sufficient number of case workers; a failure to provide and
develop services; a failure to engage in permanency planning;
and a failure to properly plan for the children's future.
(Id. at 4-6, ¶ 9.) Plaintiffs allege Defendants
have failed to address these issues, which has caused further
harm to the children in their care. (Id. at 4,
¶ 9.) Plaintiffs seek both declaratory and injunctive
relief against Defendants for these alleged systematic
deficiencies. Plaintiffs seek injunctive relief which would
require Defendants to implement the following reforms:
a. With regard to all children in the General Class:
i. Require DHHR to contract with an appropriate outside
entity to complete a needs assessment of the state's
provision of foster care placement and services no later
than six months after judgement, to determine the full
range and number of appropriate foster care placements and
services for all children needing foster care placement,
including the development of a plan, with timetables,
within which such placements and services shall be secured,
and ensure that DHHR shall comply with those timetables;
ii. Require that DHHR ensure that all children who enter
foster care placement receive within 30 days of entering
care a complete and thorough evaluation of the child's
needs, performed by a qualified individual, including
whether the child has any physical and/or mental
disabilities sufficient to be categorized as a child with
disabilities under the ADA and that the child be
re-evaluated as the child's needs and the information
available to DHHR change;
iii. Require that DHHR ensure that all children who enter
foster care placement receive within 60 days of entering
care an adequate and individualized written case plan for
treatment, services, and supports to address the
child's identified needs; describe a plan for
reunification with the child's parents, for adoption,
or for another permanent, family-like setting; describing
any interim placements appropriate for the child while the
child moves towards a permanent home-like setting; and
describing the steps needed to keep the child safe during
the child's time in DHHR's custody.
iv. Require that DHHR ensure that all children whose case
plan identifies a need for services and/or treatment timely
receive those services and/or treatment;
v. Require that DHHR shall ensure that all children who are
placed in foster care are placed in a safe home or facility
and are adequately monitored in accordance with federal
standards;
vi. Require that DHHR shall hire, employ, and retain an
adequate number of qualified and appropriately trained
caseworkers, and ensure that caseloads do not exceed 15
children per-worker for children in placement, with
caseloads adjusted for caseworkers who carry mixed
caseloads including children not in foster care custody;
and vii. Require DHHR to develop an adequate statewide
plan, to be approved by the Monitor referred to below, for
recruiting and retaining foster and adoptive homes,
including recruitment goals and timetables for achieving
those goals, with which DHHR shall comply.
b. For all children in the Kinship Subclass:
i. Require DHHR to develop an adequate statewide kinship
placement plan, to be approved by the Monitor referred to
below, for assessing, overseeing, and monitoring kinship
homes, including training requirements and regular
caseworker contact, and timetables for achieving those
goals, with which DHHR shall comply;
ii. Require that DHHR shall ensure caseworkers conduct
background and safety assessments of kinship placements as
required by reasonable professional standards;
iii. Require that DHHR shall ensure that kinship placements
receive foster parent training as required by reasonable
professional standards;
iv. Require that DHHR shall ensure that all children in
kinship placements shall receive foster care services to
meet the child's needs, including, in as many instances
as is required by reasonable professional standards,
supportive services; and v. Require that DHHR shall ensure
all children who are placed in kinship placement receive
permanency planning as required by reasonable professional
standards.
c. For all children in the ADA Subclass:
i. Require that DHHR shall ensure that all children with
physical, mental, intellectual, or cognitive disabilities
shall receive foster care services in the most integrated
setting appropriate to the child's needs, including, in
as many instances as is required by reasonable professional
standards, family foster homes with supportive services;
ii. Require that DHHR ensure that an adequate array of
community based therapeutic services are available to
children with disabilities; and iii. Require that DHHR
ensure that it develop an adequate array of community-based
therapeutic foster homes and therapeutic placements to meet
the needs of children with disabilities.
d. For all children in the Aging Out Subclass:
i. Require that DHHR, when a child turns 14 years old while
in its custody and is not imminently likely to be reunified
with family, adopted, or otherwise placed in a permanent
family-like setting, shall engage in transition planning to
meet the health care, educational, employment, housing, and
other social needs of the children in transitioning to
adulthood;
ii. Require that DHHR shall ensure youth be placed in the
least restrictive, most-family like setting possible with
appropriate, necessary and individualized services; and
iii. Prohibit DHHR from refusing to place a young person in
a foster care placement because the child is 14 or older.
(Id. at 100-105, ¶ 405.) Plaintiffs also ask
this Court to appoint a neutral monitor to oversee
implementation of and compliance with these reforms.
(Id. ¶ 406.)
A.
Individual Allegations
Named
Plaintiffs Chris K., Calvin K., and Carolina K. are siblings
under the age of six. (ECF No. 56 at 2.) When the Complaint
was filed, the siblings were living with foster parents who
were in the process of adopting them. (Id.) On
December 10, 2019, during the pendency of this case, Chris
Calvin, and Carolina were adopted. (Id.) Plaintiffs
do not dispute that this fact. (ECF No. 61 at 3.) As a...
