4th Circuit revives class action on West Virginia foster care

RICHMOND, Va. (CN) — A divided panel of the Fourth Circuit refueled a class action that seeks enforcement of children’s constitutional rights in the state’s foster care program.

In a 2-1 decision Wednesday, the panel held that the federal courts have jurisdiction since the complaint was directed at the executive, rather than at the judicial branch’s role in handling a child’s journey though foster care.

“Plaintiffs allege that a federal class action is the most — if not the only — effective way to achieve the kind of systemic relief they seek,” Senior U.S. Circuit Judge Henry F. Floyd wrote for the majority in Richmond, Va. “And history builds out those allegations.

“For years,” the George W. Bush appointee continued, “West Virginia’s response to any foster-care orders entered as part of the individual state hearings seems to have been to shuffle its money and staff around until the orders run out, entrenching rather than excising structural failures. Forcing Plaintiffs to once more litigate their claims piecemeal would get federalism exactly backwards.”

U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, joined Floyd in the opinion. U.S. Circuit Judge Allison Jones Rushing, a Donald Trump appointee, dissented.

A New York-based child advocacy organization called A Better Childhood brought the underlying complaint in 2019, seeking injunctive and declaratory relief against Governor Jim Justice and Bill Crouch, cabinet secretary of the state Department of Health and Human Resources, to prevent future harm to the children in state custody due to deficiencies in the child welfare system. The complaint was filed on behalf of 12 named plaintiffs between the ages of 2 and 17 years old, representing 6,800 children in foster care.

The complaint alleged West Virginia assumed responsibility but failed to protect children in foster care by not providing necessary services nor placing them in safe homes and appropriate facilities. 

Last July, Chief U.S. District Judge Thomas Johnston for the Southern District of West Virginia ruled to dismiss. Johnston determined that the claims of six of the named plaintiffs were rendered moot by their exiting of the foster care system. Furthermore, relying on the U.S. Supreme Court’s 1971 opinion in Younger v. Harris, he found that state courts have exclusive and continuous jurisdiction over child welfare determinations, depriving federal courts of jurisdiction.

“The reason for restraining federal courts from exercising jurisdiction in these types of actions is the notion of ‘comity,’ which includes a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways,” Johnston wrote.

“It is clear that West Virginia’s state courts are heavily involved in abuse and neglect proceedings and are required to oversee and approve the majority of the determinations related to the child’s care and placement,” he added. “There is a possibility that this Court and the state court could issue conflicting orders concerning which placement decision or which services were best for a child. Such determinations are left to the state courts under West Virginia law, but this Court’s order would reassign these responsibilities, likely leading to confusing and conflicting results.”

In Wednesday's reversal, Floyd recounts the case of two the named plaintiffs — Jonathan and Anastasia — and their journey though the foster care system, including out-of-state facilities.

"In this case," the majority emphasized, "principles of federalism not only do not preclude federal intervention, they compel it.

“Whether we look to their form or their function, the quarterly state-court hearings are simply not ‘of the sort entitled to Younger treatment,’” Floyd continued. “They do not fit any historical precedent applying the doctrine. And abstaining here would forward none of the comity interests our federalist system holds dear.”

“But more than that.” he added, “we see no reason to dismiss the case en masse before the district court has even had the opportunity to sketch out potential contours of relief. If Plaintiffs succeed on the merits, the court can draw careful lines so as not to interfere with individual state-court decisions.”

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