State wants foster care on hold to ask U.S. Supreme Court

CHARLESTON – The state wants a federal judge to stay the lawsuit on West Virginia’s foster care system while it asks the U.S. Supreme Court to review it.

After the case was remanded back to federal court last month by the U.S. Fourth Circuit Court of Appeals, state Attorney General J.B. McCuskey’s office filed a motion to stay last month with U.S. District Judge Joseph Goodwin.

Last year, Goodwin dismissed the case, saying state leaders need to make needed changes to repair the system. Goodwin cited a lack of standing.

“This court cannot take over the foster care system of West Virginia,” Goodwin wrote in the opening of his 19-page opinion and order. “Constitutional limits prevent the court from crafting public policy and administering state agencies.

“West Virginia’s foster care system has cycled through inaction, bureaucratic indifference, shocking neglect and temporary fixes for years. The blame squarely lies with West Virginia state government. When elected officials fail, the ballot box is the remedy.”

The Fourth Circuit reversed Goodwin’s dismissal, saying the “plaintiffs’ requests fall well within the boundaries of lawful injunctive relief” and Goodwin’s concerns were “perhaps valid public policy concerns” but not a “legal bar for redressability.”

And now the AG’s office wants it put on hold while it petitions the U.S. Supreme Court. That petition is due September 2. McCuskey’s office says the court likely would decide whether to hear the case by November.

The lawsuit originally was filed in September 2019 by a class of children in state foster care custody claiming state officials violated their constitutional and statutory rights through the Department of Human Services policies and practices. The complaint cites issues with institutionalization for children, placement outside of West Virginia, not enough community-based mental health services and overworked caseworkers.

There are about 6,000 children currently in the state’s foster care system.

U.S. Fourth Circuit Court of Appeals case number 25-1232 (U.S. District Court for the Southern District of West Virginia case number 3:19-cv-00710)