Filed Date: Sept. 30, 2019
Case Ongoing
Clearinghouse coding complete
This is a case about the administration of child welfare. On September 30, 2019, twelve named plaintiffs, all children in the custody of West Virginia's Department of Health and Human Resources (DHHR), brought a class action complaint against the Governor of West Virginia Jim Justice, as well as the Cabinet Secretary for the West Virginia Department of Health and Human Services (DHHS), the Deputy Secretary for the West Virginia DHHS, and the Commissioner for Bureau of Children and Families (BCF) Linda Watts, and West Virginia DHHS. Filed in the U.S. District Court for the Southern District of West Virginia the plaintiffs sued under 42 U.S.C. § 670 et seq. (Adoption Assistance and Child Welfare Act of 1980 (CWA)), 42 U.S.C. § 12132 (Americans with Disabilities Act (ADA)), and 29 U.S.C. § 701 (Rehabilitation Act). The complaint alleged failure to provide reasonable care and protect from harm the foster children in violation of their Fourteenth Amendment due process protections, denying the right of familial association and protection from psychological harm in violation of their First Amendment right of association, Ninth Amendment reservation of rights to the people, and Fourteenth Amendment’s substantive due process protections, the failure to provide a written case plan for the benefit of the foster children and parents in violation of the CWA, and failure to provide adequate services to disabled children in violation of the ADA and Rehabilitation Act. The plaintiffs sought declaratory and injunctive relief against the systematic deficiencies they alleged. The case was assigned to Judge Robert C. Chambers, then reassigned to Chief Judge Thomas E. Johnston.
In the complaint, plaintiffs alleged they faced repeated maltreatment due to a lack of protection while in state custody, faced discrimination due to disability, and failure to be placed in the least restrictive environment that has resulted in emotional and physical harms. Children in DHHR custody were moved between foster homes repeatedly and in short timespans and provided with inadequate mental and emotional health support. Plaintiffs sought injunctive relief that DHHR complete a needs assessment and care plan for children placed in their custody to determine if the child has disabilities and how to meet their needs and place them in a foster home, ensure adequate DHHR staffing and training of support staff, place disabled children in the most integrated setting and provide therapeutic services, and continue to meet the needs of children approaching adulthood in DHHR custody.
On September 2, 2020, plaintiffs sought class certification of one class and three subclasses, including the Kinship Subclass, the ADA Subclass, and the Aging Out Subclass. The general class included all West Virginia foster children. The Kinship Subclass included children who "are or will be in kinship placements, or who were in kinship placements that unnecessarily disrupted...case management and other services, and permanency planning"; the ADA subclass included children who "have physical, intellectual, cognitive, or mental health disabilities"; and the Aging Out Subclass included children who "are or will be fourteen years or older, who are eligible to receive age-appropriate transition planning...".
Throughout the litigation, each of the defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. The defendants argued that the six plaintiffs' claims were moot and that they should be removed from the action. Defendants also argued that under Younger (a case which expanded the Middlesex factors to noncriminal proceedings involving important state interests), abstention was appropriate. The plaintiffs, in response, argued that their claims fell into the exception of mootness for a controversy that is capable of repetition yet evading review, arguing that the challenged action was too short in duration to be fully litigated before cessation but there was a reasonable likelihood that the same party would be subjected to the same action again.
On July 28, 2021, the court removed six of the named plaintiffs from the action and granted the motion to dismiss. 2021 WL 3195020. Regarding mootness, Chief Judge Johnston held that the claims of six of the named plaintiffs were moot, as each plaintiff was no longer in Defendants' legal or physical custody, and therefore they had no legally cognizable interest in the outcome of the litigation. Further, there was no evidence to meet the burden of establishing the mootness exception for claims evading review yet capable of repetition, and the nature of the case being a class action did not change the analysis as to the six named plaintiffs who were no longer in custody. Next, the court found that abstention under Younger applied, as the case involved "state-initiated abuse and neglect proceedings," as well as a request for the court to issue an injunction aimed at preventing events that could take place in future abuse and neglect proceedings; thus an analysis of the Middlesex factors was necessary to determine if abstention was appropriate. Chief Judge Johnston found that under all three Middlesex factors were satisfied, finding that (1) the relief sought by plaintiffs would "interfere extensively with ongoing state court proceedings for each of the named Plaintiffs"; (2) "the protection fo abused and neglected children is a vital and important state interest"; and (3) the plaintiffs had not proved that the circuit courts lacked jurisdiction or ability to adjudicate the claims during periodic review proceedings as a part of the plaintiff's ongoing abuse and neglect proceedings. Finally, Chief Judge Johnston found that no exceptions toYounger applied, and thus review of the case was inappropriate and the court was barred from considering it.
On August 4, 2021, plaintiffs appealed the motion to dismiss to the U.S. Court of Appeals for the Fourth Circuit. A panel of the Fourth Circuit, including Circuit Judges Harris, Rushing, and Floyd heard argument on March 9, 2022 and issued its opinion affirming in part and denying in part on July 20, 2022. The Fourth Circuit held that named plaintiffs' claims were rendered moot; exception to mootness that allowed certification of class to relate back to filing of complaint if named plaintiffs' claims were rendered moot applied; Younger abstention did not apply; and Rooker-Feldman abstention did not apply. Beginning with mootness, the Fourth Circuit agreed with plaintiffs' argument that where a named plaintiff's individual claim becomes moot before the district court has an opportunity to certify the class, the certification may "relate back" to the filing of the complaint if other class members will continue to be subject to the challenged conduct and claims raised were inherently transitory (relying on Gerstein v. Pugh, 420 U.S. 103 (1975)). In particular, the Fourth Circuit focused on the unpredictability of foster-care placements and the danger of devastating entire childhoods. 41 F.4th 316.
On the application of Younger abstention, the Fourth Circuit disagreed with the district court's holding that this case fell within federal abstention because state circuit courts have exclusive jurisdiction over the setting in which children are placed. The Fourth Circuit held that quarterly state court hearings were not entitled to Younger treatment (they aren't criminal trials, nor do they fit within the type of civil enforcement or judicial process proceedings to which Younger would apply) and would not further any federalism interests in comity. In addition, the Fourth Circuit thought it was premature to dismiss the case before the court has an opportunity to consider what relief could properly constitute. The Fourth Circuit rejected defendants' arguments for applying Rooker-Feldman abstention for similar reasons and because plaintiffs did not object to a state court decision but to a state Department, which does not fall within the doctrine. 41 F.4th 316.
Defendants filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking review of the Fourth Circuit opinion. The Supreme Court denied cert on October 11, 2022, notifying the Fourth Circuit in a letter.
The parties proceeded with discovery and defendants submitted status reports. On September 20, 2022, defendants filed a motion to dismiss for failure to state a claim and stay discovering pending the motion to dismiss. The court granted a two week stay on September 28, 2022, to allow parties to engage in discussions. On December 19, 2022, defendants filed a motion for a protective order, which the court granted on January 10, 2023. The court granted and denied in part defendants' motion to dismiss on January 13, 2023. The court analyzed each of plaintiffs' five claims under their proposed classes: the general class (all children who are or will be in West Virginia foster care); kinship subclass (children who are, will be, or have been placed in kinship placements); the ADA subclass (children who have or will have physical, intellectual, cognitive, or mental health disabilities) and the Aging Out subclass. Plaintiffs' substantive due process claims were dismissed as to all proposed classes, with the court emphasizing the difference between what West Virginia should do versus what is legally required. Plaintiffs' second claim, the right to familial association, also did not pass the court's muster. The court noted that plaintiffs failed to allege a violation of their right to familial association with their parents, that the Constitution's protection of sibling relationships does not apply in the foster care context, and that the grandparent-grandchild relationship claim was foreclosed by Troxel v. Granville, 530 U.S. 57 (2000). Plaintiffs' § 1983 claim under the Adoption Assistance and child Welfare Act was similarly denied. The court denied the motion to dismiss plaintiffs' claims under the ADA and Rehabilitation Act relying on Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
The parties entered into settlement negotiations and the court consequently stayed discovery on February 16, 2023.
Judge Johnston recused himself from the case on April 3, 2023. Judge Johnston's recusal came after emails and documents obtained through a public records request showed regular communication between Johnston, state lawmakers, and government staffers. More information on Judge Johnston's recusal may be found here.
Summary Authors
Misha Emanoil (3/20/2022)
Hannah Juge (11/21/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/7746580/parties/r-v-justice/
Baloche, David
Bonasso, Michael (West Virginia)
Albert-Rozenberg, Daniel
Anten, Todd
Banner, Kaitlin Rose (West Virginia)
Lowry, Marcia Robinson (West Virginia)
Mahoney, Allison Lynette (West Virginia)
McLaughlin, Valerie J. (West Virginia)
Meade, James A. (West Virginia)
Mostyn, J. Steven (West Virginia)
Ooten, Brian L. (West Virginia)
Sparks, Mark C. (West Virginia)
Underhill, Jeremiah (West Virginia)
Waller, Lori (Peters) (West Virginia)
See docket on RECAP: https://www.courtlistener.com/docket/7746580/r-v-justice/
Last updated Aug. 18, 2025, 2:28 a.m.
State / Territory: West Virginia
Case Type(s):
Key Dates
Filing Date: Sept. 30, 2019
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Private foster children in West Virginia DHHR custody
Plaintiff Type(s):
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Mooted before ruling
Defendants
Deputy Secretary for the West Virginia DHHS, State
Governor of West Virginia, State
Secretary for the West Virginia Department of Health and Human Services, State
Commissioner for Bureau of Children and Families, State
Defendant Type(s):
Case Details
Causes of Action:
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Adoption Assistance Program, 42 U.S.C. §§ 670 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Ex parte Young (federal or state officials)
Constitutional Clause(s):
Due Process: Substantive Due Process
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Issues
General/Misc.:
Foster care (benefits, training)
Benefits (Source):
Adoption Assistance and Child Welfare Act
Disability and Disability Rights:
Discrimination Basis: