Jonathan R. v. Justice

JONATHAN R., et al., Plaintiffs, v. JIM JUSTICE, et al., Defendants.

Civil Action No. 3:19-cv-00710

United States District Court, S.D. West Virginia, Huntington Division

July 28, 2021

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).

I. BACKGROUND

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...