R. v. Justice

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JONATHAN R., et al.,

Plaintiffs,

v. CIVIL ACTION NO. 3:19-cv-00710

JIM JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Plaintiffs’ Renewed Motion for Class Certification

and Appointment of Class Counsel. [ECF No. 318]. For the reasons explained below,

the motion is GRANTED in part and DENIED in part.

I. Background

A. The Facts and the Parties

Plaintiffs are twelve current and former foster care children who challenge

several key aspects of West Virginia’s child welfare system. [ECF No. 1, ¶¶ 1–2].

Plaintiffs paint a grim picture of a deeply flawed system that inflicts on vulnerable

children much of the same abuse and neglect that it was designed to redress.

According to Plaintiffs, West Virginia’s foster care system is “in a state of crisis.”

¶ 1. Plaintiffs allege that as a result of Defendants’ inept administration of foster

care, they “have been abused and neglected, put in inadequate and dangerous

placements, institutionalized and segregated from the outside world, left without

necessary services, and forced to unnecessarily languish in foster care for years.”

¶ 2. In support of their allegations, Plaintiffs describe a host of “long-standing

systemic deficiencies” that plague the West Virginia child welfare system, including

a shortage of foster care homes, an overreliance on residential care facilities, high

caseworker caseloads, inadequate case planning, and a failure to maintain “critical

infrastructure that would allow children with mental health service needs to remain

in their communities.” ¶ 367. Plaintiffs seek federal reform of these alleged

systemic failures by the state executive branch.1 ¶¶ 405–06.

Accordingly, on September 30, 2019, Plaintiffs filed a Class Action Complaint

in this court against five defendants: the West Virginia Department of Health and

Human Resources (“DHHR”), Jim Justice, Bill Crouch, Jeremiah Samples, and Linda

Watts. [ECF No. 1].

1 Indeed, Plaintiffs do not merely ask that the court enjoin Defendants from engaging in practices that

violate foster children’s rights. Their request goes further, urging the court to direct how a state

executive agency must administer its foster care system. , [ECF No. 1, ¶ 405(a)(vi) (asking the

court to require DHHR to “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”)]. While the United States Court of Appeals for the Fourth Circuit has explained

that principles of federalism compel federal intervention in this case, [ECF No. 265, at 3], this court

nevertheless finds Plaintiffs’ requests for relief troubling. Of course, if a state agency is violating

citizens’ federal rights, a district court has the power, and the duty, to enjoin the conduct. Moreover,

the court is cognizant that several federal courts have formulated and implemented broad relief in

systemic reform cases. , , 344 F. Supp. 373 (M.D. Ala. 1972) (ordering the

defendants to implement standards set by the court to improve the conditions of a state mental

hospital).This court, however, remains skeptical of any relief requiring it to assume control of a state

agency and direct how that agency manages its program and allocates its funds. The court will address

this issue should the plaintiffs prevail on their claims.

2

DHHR is a state agency that acts as “the legal guardian of children in the

state’s foster care system.” ¶¶ 1, 22. The agency is “responsible for maintaining

the overall Department” as well as the Bureau for Children and Families (“BCF”), “a

subdivision of DHHR” that administers West Virginia’s child welfare system,

including foster care and adoption. ¶¶ 22, 205.

Jim Justice is the Governor of West Virginia, and as such, “appoints the

Director of DHHR.” ¶ 21. He is “responsible for ensuring that West Virginia

executive departments comply with all applicable laws and has the power to issue

executive orders to shape the functions and coordination of DHHR.”

At the time Plaintiffs filed their Complaint, Bill Crouch was the Cabinet

Secretary of DHHR, ¶ 23, and Jeremiah Samples was the Deputy Secretary, ¶

24. Plaintiffs allege that both defendants were “responsible for DHHR’s policies,

practices, and operations, and for ensuring that DHHR complies with all applicable

federal and state laws.” ¶¶ 23–24.

Finally, Linda Watts was the Commissioner of BCF at the time the Complaint

was filed. ¶ 25. She “overs[aw] programs including safety, wellbeing and

permanency, and [was] responsible for BCF’s policies, practices, and operations, and

for ensuring that BCF complie[d] with all applicable federal and state laws.”

B. Procedural History

On November 26, 2019, Defendants filed their first Motion to Dismiss

Plaintiffs’ Complaint. [ECF No. 17]. Subsequently, between February 2020 and

3

November 2020, Defendants filed four additional Motions to Dismiss. [ECF Nos. 55,

88, 107, 167]. The court granted all five motions on July 28, 2021, based on mootness

and the 2 abstention doctrine, and directed the Clerk to remove this

matter from the docket, thereby closing the case. [ECF No. 258]. Prior to the court’s

dismissal Order, Plaintiffs had filed a Motion for Class Certification and Appointment

of Class Counsel, seeking class certification for a General Class and three subclasses:

an Americans with Disabilities Act (“ADA”) Subclass, a Kinship Subclass, and an

Aging Out Subclass. [ECF No. 130, at 1].3 This motion, however, was never ruled on

and was terminated when the case closed.

On August 4, 2021, Plaintiffs appealed the court’s judgment to the Fourth

Circuit. [ECF No. 260]. The Fourth Circuit rejected the rulings on mootness and

abstention and remanded the case to this court with instructions to “consider West

Virginia’s substantive arguments for dismissal and, if appropriate, Plaintiffs’ motion

for class certification.” [ECF No. 265, at 11, 15, 42]. Heeding those instructions, this

court analyzed Defendants’ remaining arguments for dismissal in an Order, dated

January 13, 2023. [ECF No. 300]. In that Order, the court dismissed all of the

substantive due process claims asserted by the proposed ADA and Aging Out

Subclasses and nearly all of the claims made by the proposed Kinship Subclass.

at 17–19. The court also dismissed Plaintiffs’ claims under the First, Ninth, and

2 401 U.S. 37 (1971).

3 Unless otherwise noted, the court uses the page numbers assigned by the federal judiciary’s Case

Management/Electronic Case File system.

4

Fourteenth Amendments to the United States Constitution, as well as their claims

under the Adoption Assistance and Child Welfare Act. at 27, 36. To date, most of

the substantive due process claims asserted by the proposed General Class and one

claim made by the Kinship Subclass remain pending, as do the ADA Subclass’ claims

under the Americans with Disabilities and Rehabilitation Acts. at 13–17, 43.

On May 2, 2023, the court directed Plaintiffs to file a renewed certification

motion if they still desired to move for class certification, as Plaintiffs’ initial motion

had been terminated. [ECF No. 315, at 2]. Plaintiffs filed their renewed motion on

May 16, 2023. [ECF No. 318]. Defendants responded to the motion on May 30, 2023,

[ECF No. 322], and Plaintiffs replied on June 6, 2023, [ECF No. 325]. The motion is

ripe for review.

In their motion, Plaintiffs ask the court to certify a General Class, an ADA

Subclass, and a Kinship Subclass. [ECF No. 318, at 1]. The proposed General Class

consists of “all West Virginia foster children who are or will be in the foster care

custody of [DHHR] or its successor agency.” The proposed ADA Subclass consists

of all members of the General Class “who have physical, intellectual, cognitive, or

mental health disabilities,” as defined by federal law. Finally, the proposed

Kinship Subclass consists of all members of the General Class “who are or will be in

kinship placements for whom DHHR is required to provide initial home safety

assessments and other services sufficient to ensure the child’s safety.”

5

II. Legal Framework

Federal Rule of Civil Procedure 23 governs class actions. A plaintiff seeking

class certification must show that the proposed class satisfies all four requirements

of Rule 23(a) and falls into one of the categories of Rule 23(b). Fed. R. Civ. P. 23.

Rule 23(c)(5) authorizes the division of a class “into subclasses that are each treated

as a class” under the Rule. “Subclasses must independently satisfy each of the

requirements set out in Rule 23(a) and (b).” , Nos. TDC-20-0780,

TDC-20-1304, 2020 WL 5593338, at *8 (D. Md. Sept. 18, 2020) (first citing

, 702 F.3d 364, 368 (7th Cir. 2012); and then

citing , 659 F.2d 1000, 1005 (9th Cir. 1981)).

Rule 23(a) requires the plaintiff to demonstrate that:

(1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or defenses

of the class; and (4) the representative parties will fairly

and adequately protect the interests of the class.

These requirements “are meant to assure both that class action treatment is

necessary and efficient and that it is fair to the absentees under the particular

circumstances.” , 43 F.3d 48, 55 (3d Cir. 1994).

Additionally, Rule 23(b) establishes three categories of permissible class

actions. In this case, Plaintiffs seek class certification under Rule 23(b)(2), [ECF No.

319, at 18], which authorizes a class action where “the party opposing the class has

acted or refused to act on grounds that apply generally to the class, so that final

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injunctive relief or corresponding declaratory relief is appropriate respecting the class

as a whole,” Fed. R. Civ. P. 23(b)(2).

A plaintiff seeking class certification “must affirmatively demonstrate his

compliance with the Rule.” , 564 U.S. 338, 350 (2011).

Although a district court has “wide discretion in deciding whether or not to certify a

proposed class,” , 348 F.3d 417, 458 (4th Cir. 2003)

(quoting , 6 F.3d 177, 185 (4th Cir. 1993)),

that “discretion must be exercised ‘within the framework of Rule 23,’” (quoting

, 255 F.3d 138, 146 (4th Cir. 2001)). To ensure the

prerequisites of Rule 23 are satisfied, the court must conduct a “rigorous analysis” of

the facts and arguments offered in support of class certification.

, 564 U.S. at 350–51. This “rigorous analysis” often “will entail some overlap with

the merits of the plaintiff’s underlying claim.” at 351. This does not mean,

however, that courts may “engage in free-ranging merits inquiries at the certification

stage.” , 568 U.S. 455, 466 (2013). Rather,

“[m]erits questions may be considered to the extent—but only to the extent—that

they are relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.”

III. Discussion

As previously explained, Plaintiffs seek to certify a General Class, an ADA

Subclass, and a Kinship Subclass. [ECF No. 318, at 1]; Section I.B.

7

Except for the numerosity requirement and the requirements for Rule 23(b), which

are each addressed in a single section, the court will separately analyze whether the

requirements for class certification have been met for each proposed class.

A. Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

members is impracticable.” This “requirement requires examination of the specific

facts of each case and imposes no absolute limitations.”

, 446 U.S. 318, 330 (1980);

, 375 F.2d 648, 653 (4th Cir. 1967) (“No specified number is

needed to maintain a class action under [Rule] 23.”). “Where ‘general knowledge and

common sense’ indicate the class is so large that joinder of all members is

impracticable, the numerosity requirement is satisfied.”

, 891 F. Supp. 2d 757, 770 (D. Md. 2012) (quoting

, 237 F.R.D. 551, 556 (D. Md. 2006)). Indeed, courts generally

presume that joinder is impracticable when a proposed class encompasses forty or

more members. , 7 F.4th 227, 234 (4th Cir.

2021) (citing 1 Newberg on Class Actions § 3:12 (5th ed. 2021)).

In this case, Defendants do not challenge Plaintiffs’ assertion that the General

Class and both subclasses meet the numerosity requirement, and for good reason.

The proposed General Class consists of approximately 6,000 foster care children.

[ECF No. 319, at 7]. The ADA and Kinship Subclasses likewise “each consists of

8

thousands of children.” The sizes of the class and subclasses raise a strong

presumption that joinder is impracticable. Moreover, the class members are

dispersed across the State of West Virginia and other parts of the country. at

11. Based on these facts, the court concludes that the proposed class and subclasses

satisfy the numerosity requirement under Rule 23(a).

B. Commonality

The commonality prerequisite requires that there be “questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). This provision “requires the plaintiff to

demonstrate that the class members ‘have suffered the same injury,’” not “merely

that they have all suffered a violation of the same provision of law.”

, 564 U.S. at 350. A plaintiff seeking class certification must show that the class

members’ claims “depend upon a common contention.” “That common contention

. . . must be of such a nature that it is capable of classwide resolution—which means

that determination of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” Questions are common to the class

if they are capable of “generat[ing] common apt to drive the resolution of the

litigation.” (quoting Richard A. Nagareda,

, 84 N.Y.U. L. Rev. 97, 132 (2009)).

Importantly, however, not all questions of law or fact must be common to every

member of the class, as even a single common question will satisfy the commonality

requirement. at 359. Therefore, factual differences among class members’ cases

9

will not preclude certification if the class members share the same legal theory.

, 155 F.3d 331, 344 (4th Cir. 1998) (“We . .

. do not suggest that the commonality and typicality elements of Rule 23 require that

members of the class have identical factual and legal claims in all respects.”).

When determining whether commonality exists, the court must examine the

precise nature of the class members’ underlying claims. , 754 F.3d

657, 676 (9th Cir. 2014). This assessment requires the court to “identify the elements

of the class members’s [sic] case-in-chief.” (quoting

, 749 F.3d 1107, 1114 (9th Cir. 2014)).

i. General Class

The General Class alleges that “Defendants’ system-wide policies and

practices” expose them to a substantial risk of harm in violation of their substantive

due process rights under the Fourteenth Amendment to the United States

Constitution. [ECF No. 319, at 9]. These policies and practices, according to Plaintiffs,

include: (1) an inadequate array of appropriate placements; (2) a lack of appropriate

case planning; and (3) high caseloads and chronic understaffing. at 9–14.

“Individuals in the State’s custody have a constitutional right to be free from

an undue risk of harm, or, the same thing stated another way, a right to reasonably

safe living conditions.” , 294 F.R.D. 7, 45 (S.D. Tex. 2013);

, 597 F.3d 163, 175 (4th Cir. 2010) (“[W]hen a state involuntarily

removes a child from her home, thereby taking the child into its custody and care, the

10

state has taken an affirmative act to restrain the child’s liberty, triggering the

protections of the Due Process Clause and imposing ‘some responsibility for [the

child’s] safety and general well-being.’” (quoting

, 489 U.S. 189, 200 (1989))); , 457 U.S. 307, 315–

16 (1982) (“If it is cruel and unusual punishment to hold convicted criminals in unsafe

conditions, it must be unconstitutional to confine the involuntarily—who may not be

punished at all—in unsafe conditions.”). To establish a substantive due process

violation, a plaintiff in state custody must show that the government was deliberately

indifferent to his or her care. , 682 F.3d

317, 321 (4th Cir. 2012); , 597 F.3d at 175 (explaining that the state has a duty to

not act “deliberately indifferent to the child’s right to personal safety and security”

after involuntarily removing the child from his or her home).

Federal courts throughout the country have determined that plaintiffs in foster

care seeking class certification can satisfy the commonality requirement with proof

of systemic policies or practices in the provision of child welfare services that expose

the plaintiffs to an unreasonable risk of harm. , , 43 F.3d at 61;

, 294 F.R.D. at 39–45; , No. 6:19-cv-00556, 2022 WL 3445767,

at *25–27 (D. Or. Aug. 17, 2022). This is because the policies or practices creating the

risk are “the ‘glue’ that holds the class together.” , 2022 WL 3445767, at *24

(quoting , 922 F.3d 957, 969 (9th Cir. 2019)). “[E]ither each of the

policies and practices is unlawful as to every [class member],” because it subjects

11

them to an unreasonable risk of serious harm, “or it is not,”—an inquiry requiring no

individualized determination. , 754 F.3d at 678.

To obtain certification in pattern or practice cases, the class representatives

must identify a common policy or practice that is allegedly the source of their injury

and then they must connect that policy or practice to their alleged harm. ,

294 F.R.D. at 26; , 2022 WL 3445767, at *25–27. Importantly, plaintiffs may

identify policies or practices that subject them to an unreasonable of harm.

, 43 F.3d at 56 (“[C]lass members can assert such a single common complaint

even if they have not all suffered actual injury; demonstrating that all class members

are to the same harm will suffice.”); , 294 F.R.D. at 34 (Children in foster

care “have a right to be free of the unreasonable risk of harm, and if they suffer that

risk now, they have suffered a legal injury.”). In other words, a plaintiff in state

custody need not wait until the risk of harm is realized before seeking relief from the

courts. , 294 F.R.D. at 34; , 338 F.R.D. 80, 85 (S.D. W.

Va. 2020) (explaining that the incarcerated plaintiffs, challenging West Virginia

Division of Corrections and Rehabilitation’s uniform healthcare policies and

procedures, did not need to show that every class member was actually injured by the

healthcare system, as the risk of harm was a sufficient injury); , 754 F.3d at

676–77 (explaining that inmates may challenge unsafe prison conditions before

tragedy occurs). Additionally, “[t]he policy or practice that a plaintiff identifies need

not be formal or officially-adopted.” , 294 F.R.D. at 26; , 2022 WL

12

3445767, at *25–27. “Absent official sanction, a policy can be identified on the basis

of custom or consistent practice. . . . Or, closely-related to custom, a uniform policy

can be based on the defendant’s deliberate indifference.” , 294 F.R.D. at 26 (citing

, 273 F.R.D. 314, 320–21 (D.D.C. 2011)).

In this case, Plaintiffs allege that the three previously identified policies or

practices expose them to a substantial risk of harm. [ECF No. 319, at 9–14].

Defendants assert that Plaintiffs have not demonstrated that any of these practices

or policies exist or, if they do exist, that they have a “sufficient nexus” to Plaintiffs’

substantive due process claims. [ECF No. 322, at 10]. The court concludes, however,

that for purposes of certifying the General Class, Plaintiffs have submitted sufficient

evidence to establish the existence of the alleged policies and practices, and they have

alleged a plausible connection between each policy or practice and their asserted

injuries.4 For clarity, each of these alleged policies and practices is addressed in detail

below.

4 Defendants also argue that “[p]ursuing class certification based on these three ‘practices’ ignores the

implications of this Court’s decision dismissing Plaintiffs’ case planning claim and placement stability

claims.” [ECF No. 322, at 10]. Defendants’ statement reflects a misunderstanding of the court’s prior

Order granting in part and denying in part Defendants’ Motion to Dismiss. In its Order, the court

stated that substantive due process “does not provide a right to stability while in foster care.” [ECF

No. 300, at 17]. In the same paragraph, however, the court also stated that due process “requires

Defendants to implement the services necessary to ensure that [foster children] [are] free from harm.”

Read together, this means that while foster children have no right to stability in itself, they do have

the right to be free from an unreasonable risk of serious physical or psychological harm, and they are

therefore entitled to services to ensure their safety. Accordingly, children in state custody could

succeed on a substantive due process claim by demonstrating that excessive placement moves subjects

them to an unreasonable risk of severe psychological harm. Likewise, foster children may not have a

constitutional right to case planning per se, but Plaintiffs could prevail on their due process claim if

the failure to case plan somehow places them at an unreasonable risk of serious harm. As such, the

court’s dismissal of the aforementioned claims does not preclude Plaintiffs from pursuing class

certification based on these allegedly risky practices.

13

Inadequate array of appropriate placements. Plaintiffs first allege that there

is an inadequate array of appropriate foster care placements—in number and type—

resulting in “a haphazard placement process.” [ECF No. 319, at 9–11]. According to

Plaintiffs, this placement shortage exists “due to Defendants’ failure to recruit homes

and create facilities that can address specialized needs.” at 9. Defendants, in

response, assert that Plaintiffs have not “introduce[d] any evidence supporting the

existence of this alleged ‘practice’” or presented “any evidence of a causal link”

between the practice and a classwide deprivation of their substantive due process

rights. [ECF No. 322, at 10–11, 13–14].

As of January 31, 2023, there were 6,142 children in West Virginia foster care.

, W. Va. Dep’t of Health & Hum. Res. (Jan. 31, 2023),

https://dhhr.wv.gov/bss/reports/Documents/2023%20February%20Legislative%20

Foster%20Care%20Placement%20Report.pdf. Plaintiffs have demonstrated that

DHHR maintains an inadequate array of placements to meet the needs of these foster

children. Plaintiffs’ evidence of this deficiency includes their expert report,

statements by DHHR employees, external reviews, and internal DHHR documents.

For example, in January 2019, Jessica Holstein, an assistant director of

communications for DHHR, stated in response to a media inquiry that “West Virginia

is currently experiencing a drastic shortage of foster homes that are able to meet the

needs of the children being placed in care.” [ECF No. 130-15, at 2]. Additionally,

Sandra Wilkerson, a social service coordinator testifying at an emergency hearing in

14

state court regarding the temporary housing of foster children, stated: “[W]e’ve had

children that have had to stay multiple nights in the office or in a hotel, depending

on the child’s situation: how difficult they are to place; if, if there are any open beds

for them. . . .We lack beds for these children. . . . [W]e don’t have sufficient bed space

for children.” [ECF No. 318-3, at 48:7–10, 18–20].5 The Children’s Bureau6 likewise

explained in its 2017 Child and Family Services Review (“CFSR”) of the West Virginia

foster care system that one of the “areas of greatest need for which services and

resources are lacking” is “the availability of foster homes.” [ECF No. 130-3, at 22–23].

Further, Plaintiffs’ experts studied the case records of nine of the Named

Plaintiffs7 and submitted a report “identify[ing] the practice patterns and themes of

concern across the reviewed cases.” [ECF No. 133-1, at 9]. They opined that rather

than considering the children’s individualized needs, DHHR simply assigned the

Named Plaintiffs to “the first available placement, . . . generally a shelter care

setting.” at 29. The experts assert that DHHR’s placement patterns raise

questions about “West Virginia’s continuum of placement options available to meet

5 The court uses the page numbers shown on the top-right corner of the reporter’s transcript to cite

this document.

6 The Children’s Bureau is “an agency within the Administration for Children and Families within the

U.S. Department of Health and Human Services.” , U.S. Dep’t of Health &

Hum. Servs. (June 28, 2023), https://www.acf.hhs.gov/cb/about#:~:text=The%20Children’s

%20Bureau%2C%20an%20agency,partnerships%20with%20states%2C%20tribes%2C%20and. The

agency “seeks to improve the safety, permanency, and well-being of children through leadership,

support for necessary services, and productive partnerships with states, tribes, and communities.”

7 Plaintiffs indicate that their experts could not prepare a report on Calvin K., Chris K., and Carolina

K. because their claims were dismissed as moot by the court’s July 2021 Order, [ECF No. 325, at 15

n.51], and prior to the dismissal, Defendants refused to produce the siblings’ case files, [ECF No. 131,

at 12 n.33]. Plaintiffs state that they intend to seek these case files during discovery. [ECF No. 325, at

15 n.51].

15

the complex needs of these children.” at 33.

Deficiencies in the array of placements is a recurring issue highlighted

throughout reviews of West Virginia’s child welfare system. The court is therefore

satisfied that Plaintiffs have demonstrated that DHHR has a pattern or practice of

maintaining an insufficient array of placements. Plaintiffs have also connected this

practice with an unreasonable risk of harm—specifically, an unreasonable risk of

psychological harm.

In 2017, 9% of children in DHHR’s custody for less than twelve months

experienced three or more placements. [ECF No. 130-11, at 10]. That number jumps

to 28% for children in DHHR’s custody for twelve to twenty-four months, and to 58%

for children in custody for longer than twenty-four months. Evidence suggests that

foster care placement stability is correlated with the number of foster care beds

available. [ECF No. 130-19, at 80 (“The decline in foster care placement stability is

related to the use of shelter care and the unavailability of foster care beds at the time

of placement.”); at 81 (“The stability in foster care placements is directly related

to the availability of homes.”)]. That is, the absence of foster homes increases the

number of placement moves that foster children will experience. New “placements

are often in different counties in different areas of the State.” [ECF No. 130-21, at 6].

For children in treatment, excessive moves results in inconsistent psychological care.

New medications are prescribed, new protocols must be followed, and new bonds

must be developed. In essence, “progress [for these children] starts all over.”

16

Research indicates that frequent placement changes negatively impact foster

children’s well-being. For example, placement instability has been linked to

aggression, behavioral problems, academic delays, and delinquency. [ECF No. 130-

23, at 111 (copy of Terry D. Moore, et al.,

, 10 J. Pub. Child Welfare 117 (2016))];

, 2022 WL 3445767, at *25 (discussing the “jarring and disruptive”

impact that excessive moves have on foster children’s emotional health). This data

satisfies Plaintiffs’ burden of connecting DHHR’s practice to a risk of harm. At the

merits stage, however, Plaintiffs bear the burden of demonstrating that the risks

associated with the placement array are .

Accordingly, whether DHHR’s placement array rises to the level of an

unreasonable risk of serious harm, and whether Defendants are deliberately

indifferent to that risk are common questions that can be answered for all class

members in one stroke. If the answer to either of these questions is “no,” then no

constitutional violation has occurred.

Lack of appropriate case planning. Plaintiffs next allege that DHHR fails to

“engage in critical permanency planning or effective case review for foster children.”

[ECF No. 319, at 12]. According to Plaintiffs, Defendants engage in deficient case

planning by “excluding integral participants from the placement process,” such as

from multidisciplinary team meetings (“MDTs”). [ECF No. 131, at 28]. Additionally,

caseworkers allegedly fail to “complete quality comprehensive assessments of the

17

needs of children and their parents” and to “contact families to review the progress of

case goals.” Plaintiffs contend that DHHR’s insufficient case planning practices

contribute to the lack of permanency in the foster care system.

Meanwhile, Defendants argue that they have “robust policies to ensure high-

quality case planning” and “have taken steps to improve casework practice.” [ECF

No. 322, at 11]. Defendants further contend that the “alleged case planning failures

in the Named Plaintiffs’ cases . . . are isolated departures from the DHHR’s policies”

and that “the experiences of a small subset of the putative class cannot support a

finding of a classwide practice.”

The record, however, demonstrates that DHHR, contrary to its own stated

policies, fails to include families in the case planning process and engage in

permanency planning for foster children. For example, in 2017, BCF sent surveys to

foster care providers concerning the case planning process. [ECF No. 130-25, at 107].

Among the 31% of recipients who responded, “28% of foster parents indicated that

they were always notified of MDTs, and 27% indicated that they were always notified

of court hearings; with 19% reporting that they participate with the development of

case planning.” Additionally, when the Children’s Bureau reviewed fifty foster

care cases in West Virginia in 2002, it found that “DHHR had not appropriately

involved parents or children in the case planning process” in 50% of the cases. [ECF

No. 130-8, at 9]. The agency also stated that “a majority of case plans are not

adequately documented.” at 13. Unfortunately, these reported deficiencies are not

18

isolated instances. Fifteen years later, the Children’s Bureau again found that “case

plans are generally not developed jointly with parents” and that parents are

“minimally engaged” in MDTs. [ECF No. 130-3, at 18]. Additionally, “[i]n a number

of cases reviewed, a case plan had not been developed.” at 7. Plaintiffs’ experts

have made similar observations concerning the deficiencies in DHHR’s case planning,

stating that “DHHR caseworkers do not appear to engage in sufficient case planning

so as to anticipate and strategize about beneficial interventions to avoid foster care

disruptions when a child has an outburst of negative behavior or a mental health

crisis.” [ECF No. 133-1, at 33]. Rather, “when such outbursts occur, DHHR reacts

with the immediate disruption of the placement.”

Children in foster care have a constitutional liberty interest in “certain

services, such as appropriate placements and case planning,” that “are essential to

preventing harm to the[m].” , 762 F. Supp. 959, 993 (D.D.C.

1991), , 990

F.2d 1319 (D.C. Cir. 1993). Indeed, “[t]his delimitation of the scope of [foster

children’s] liberty interest is consistent with the decision in ,” wherein the

United States Supreme Court declared that the involuntarily committed retain a

liberty interest in reasonable training to ensure their safety. In this case,

Plaintiffs contend that DHHR’s failure to engage in reasonable case planning for

foster children results in children shuffling from placement to placement “without

any real possibility of permanency.” [ECF No. 131, at 29]. The connection between

19

deficient case planning and instability in foster care is intuitive, as chaos is commonly

the fruit of a failure to plan. This relationship is illustrated, for example, in the case

of Dennis R.,8 a young male who survived Shaken Baby Syndrome but suffers from

the effects of the injuries to his brain. [ECF No. 133-1, at 369]. Plaintiffs’ experts

explain that in Dennis’ case “DHHR’s case planning . . . failed to anticipate and

manage his disruptive behaviors, which led to multiple unnecessary placement

changes.” at 400. As previously explained, researchers have documented the long-

term negative impacts of placement instability in foster care. [ECF No. 130-23,

at 111]. The court finds this evidence sufficient, at this juncture, to connect DHHR’s

inadequate case planning practices with Plaintiffs’ claim of an unreasonable risk of

harm. However, to prevail on the merits, Plaintiffs will need to prove that these

practices the class at a substantial risk of serious harm—i.e., prove a

causal connection resulting in an injury rising to an unconstitutional level.

For the reasons stated, the court finds that common questions exist regarding

whether the deficiencies in case planning subject the proposed General Class to an

unreasonable risk of harm and if so, whether Defendants are deliberately indifferent

to that known risk.

High caseloads and chronic understaffing. Finally, Plaintiffs allege that

Defendants fail to “support, train, and retain caseworkers” and overwhelm existing

caseworkers with high caseloads. [ECF No. 319, at 12–14]. “Defendants do not

8 Plaintiffs’ Complaint refers to Dennis as both Dennis R. and Dennis C. The court uses Dennis R.

because that is how he is identified in the case caption.

20

dispute that there is a shortage of caseworkers in West Virginia and that workloads

are too high in certain areas of the State.” [ECF No. 322, at 12]. They argue, however,

that “a caseworker shortage is not a ‘well-defined practice’ of Defendants, and

Plaintiffs have not introduced any evidence that Defendants have any policies or

practices that exacerbate these workforce challenges.” Indeed, Defendants list

several steps they have taken “to expand the number of caseworkers in West

Virginia.”

The court concludes that Plaintiffs have presented sufficient evidence that

having high caseloads is Defendants’ common practice and that questions exist with

respect to the caseload-to-caseworker ratio. As explained below, the answers to those

questions will resolve issues central to the validity of Plaintiffs’ substantive due

process claim. Defendants’ argument prematurely assesses the merits of Plaintiffs’

case—that is, the efforts DHHR has taken to address the ongoing caseworker

shortage raise questions regarding whether Plaintiffs can demonstrate that

Defendants acted with deliberate indifference to Plaintiffs’ liberty interest. The court

shares the same skepticism; however, merits questions, beyond what is required to

determine whether commonality exists, are inappropriate at the class certification

stage.

The Child Welfare League of America, a national organization that assists

child-serving agencies across the United States, recommends that foster care

caseworkers serve between twelve and fifteen children at any given time. Sean

21

Hughes & Suzanne Lay,

, Child Welfare League of Am. 5 (Jan. 2012),

https://www.cwla.org/wp-content/uploads/2014/05/DirectServiceWEB.pdf. Despite

the obvious correlation between caseworker caseloads and foster children’s safety,

this concern is not reflected in the relevant DHHR policies and practices. The agency

has not set a maximum number of cases per caseworker and counts cases “on a per

family basis,” rather than by individual child. [ECF No. 130-36, at 1]. In April 2020,

West Virginia caseworkers reportedly carried an average of eighteen cases each.

[ECF No. 130-38, at 1]. As of December 31, 2021, this average increased to twenty-

two cases per caseworker. [ECF No. 318-5, at 2]. In fact, only eight of West Virginia’s

twenty-nine districts have a caseload average within the recommended range. In

several districts, the average caseload is astonishingly high. For example, the average

caseload in the McDowell district is ninety-five cases per caseworker, and in the

Kanawha district, the average is thirty-two cases per caseworker. As of July 2023,

nearly one-fifth of child protective service positions are vacant.

, W. Va. Dep’t of Health & Hum. Res., https://dhhr.wv.gov/Pages/

childwelfaredatadashboard.aspx (last visited Aug. 15, 2023).

The court concludes that Plaintiffs have presented sufficient evidence to

demonstrate that high caseloads and chronic understaffing are Defendants’ policy or

practice. Plaintiffs have also connected this policy or practice to their alleged injury—

an unreasonable risk of serious harm.

22

Caseworkers are foster children’s “fire alarms. They are the first and best

mechanism to ensure the class members’ safety, i.e., to ensure that the child is not

suffering any harm or abuses.” , 294 F.R.D. at 44. “[A] higher caseload means

that a caseworker can devote less time and energy to each case, and naturally class

members’ safety is affected by the amount of time and energy their caseworkers can

devote to their respective cases.” at 42. Here, Plaintiffs have submitted evidence

that caseworkers struggle to supervise foster children, which is adequately alleged to

be the result of high caseloads. For example, one of Plaintiffs’ experts states that

DHHR policy requires caseworkers to visit children assigned to kinship placements

every month; however, results from a survey provided to foster caregivers showed

“that only 52% of those surveyed received monthly visits.” [ECF No. 130-43, at 20].

Additionally, DHHR’s 2019 Child and Family Services Review Program Improvement

Plan (“Program Improvement Plan”) recognized that “[i]nsufficient staff levels [have]

directly impact[ed] the ability of the agency to assess child safety, ensure appropriate

assessment and service provision, and engage families in the casework process.”

, W. Va. Dep’t of

Health & Hum. Res. 13 (Dec. 13, 2019), https://dhhr.wv.gov/bcf/Reports/

Documents/WVCFSR.ProgramImprovementPlan.pdf [hereinafter

]. The Program Improvement Plan further stated that high

caseloads have led to “decreased caseworker contact,” which “negatively impacts

safety related timeframes” and “well-being outcomes.” at 14–15.

23

This is not a new issue. Indeed, the record suggests that the struggle to

maintain routine contact with foster children has continued for over a decade.

, [ECF No. 130-42, at 117 (A 2008 assessment of DHHR states, “Staff retention in

all regions is an ongoing issue within the Department, and the resulting staff

shortages have negatively impacted worker visits with children.”); ECF No. 130-19,

at 48 (“During both federal fiscal years 2015 and 2016, districts continue to list staff

turnover as a barrier to achieving better outcomes for children and families.”)];

, , at 14 (2019 plan discussing “decreased

caseworker contact” due to staffing shortages and high caseloads).

Based on the record, Plaintiffs have demonstrated that common questions exist

as to whether Defendants’ caseload practice prevents DHHR from providing adequate

care to Plaintiffs, and if so, whether Plaintiffs are resultantly exposed to a substantial

risk of harm.

ii. ADA Subclass

Plaintiffs next assert claims under the ADA and Rehabilitation Act on behalf

of its proposed ADA Subclass. The ADA is divided into five titles, each prohibiting

disability-based discrimination in certain areas of public life. As relevant to this case,

“Title II concerns public services” furnished by governmental entities. John J.

Coleman, III & Marcel L. Debruge, , 45

Ala. L. Rev. 55, 56 (1993). Specifically, Title II provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded from participation in

24

or be denied the benefits of the services, programs, or activities of a public entity, or

be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA

imposes an integration mandate requiring public entities to “administer services,

programs, and activities in the most integrated setting appropriate to the needs of

qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The most integrated

setting is one “that enables individuals with disabilities to interact with nondisabled

persons to the fullest extent possible.” pt. 35, app. B.

Section 504 of the Rehabilitation Act is similar in substance to Title II of the

ADA. It provides that “[n]o otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. Section

504 of the Rehabilitation Act differs from Title II of the ADA “only with respect to . .

. causation.” , 669 F.3d 454, 461 (4th Cir.

2012). To prevail on a claim under the Rehabilitation Act, “the plaintiff must

establish he was excluded ‘solely by reason of’ his disability;” whereas “the ADA

requires only that the disability was ‘a motivating cause’ of the exclusion.” at 461–

62 (quoting , 192 F.3d 462, 468–69 (4th Cir. 1999)).

“[B]ecause the analysis is ‘substantially the same,’” courts generally combine claims

under the ADA and Rehabilitation Act.

, 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quoting

25

, 50 F.3d 1261, 1264 n.9 (4th Cir. 1995)); , 669 F.3d at 461

(“[D]espite the different language [the ADA and Rehabilitation Act] employ, they

require a plaintiff to demonstrate the same elements to establish liability.”).

To prove a violation of Title II of the ADA and Section 504 of the Rehabilitation

Act, a plaintiff must prove: “(1) they have a disability; (2) they are otherwise qualified

to receive the benefits of a public service, program, or activity; and (3) they were

denied the benefits of such service, program, or activity, or otherwise discriminated

against, on the basis of their disability.” , 813 F.3d

494, 503 (4th Cir. 2016). In this case, Plaintiffs allege that Defendants maintain two

practices that purportedly violate the ADA and Rehabilitation Act: (1) “unnecessarily

placing youth with disabilities into institutional settings and” (2) “failing to build and

maintain an adequate infrastructure of therapeutic service providers.” [ECF No. 325,

at 10]. According to Plaintiffs, these “practices harm or expose all members of the

ADA Subclass to a substantial risk of harm, in violation of the ADA.” [ECF No. 319,

at 14]. The court will address each alleged practice in turn.

Placement of Youth with Disabilities into Institutional Settings. Plaintiffs

contend that “Defendants have a practice of unnecessarily placing youth with

disabilities into institutional settings.” Defendants explain, in response, that “the

state circuit court ( DHHR) is ultimately responsible for making the final decision

about where a foster child is placed.” [ECF No. 322, at 18]. Relying on a case from the

Southern District of New York denying class certification to New York City foster

26

children, Defendants contend that “the role played in each child’s case by [the state

courts] is a critical factor that creates ‘dissimilarities within the proposed class’” and

undermines commonality. (quoting , No. 15-cv-5273, 2021

WL 4027013, at *9 (S.D.N.Y. Sept. 3, 2021)). Plaintiffs did not respond to Defendants’

argument.

In , the case cited by Defendants, a group of foster children “assert[ed]

a range of constitutional and statutory claims against both New York City and the

State of New York, based on alleged systemic failures in the New York City foster

care system.” 2021 WL 4027013, at *1. The plaintiffs subsequently sought to certify

a class of children who were or would be in New York City foster care. at *8. The

district court denied the motion, explaining that New York family courts are

“intimately involved in the details of each [foster] child’s case, exercising control over

the pacing of permanency outcomes and making major decisions about their foster

care circumstances.” at *3. According to the court, “the role played in each child’s

case by the New York State Family Court system [was] a critical factor that create[d]

‘dissimilarities within the proposed class’ that ‘impede[d] the generation of common

answers.’” at *9 (quoting , 564 U.S. at 350). The court

therefore concluded that the commonality requirement was not satisfied in that case.

Similarly, in West Virginia, state circuit courts have “exclusive jurisdiction

over [the] placement of [foster children], and the placement may not be disrupted or

delayed by any administrative process of the department.” W. Va. Code § 49-4-606(a);

27

W. Va. R.P. Child Abuse and Neglect Proc. 36(e) (“The court has exclusive

jurisdiction to determine the permanent placement of a child.”). Because Defendants

have no authority to make placement decisions, any answers to questions concerning

foster care placement are not apt to drive the resolution of this case. Commonality

therefore does not exist as to this alleged practice.

Inadequate Infrastructure of Therapeutic Service Providers. According to

Plaintiffs, “foster children in West Virginia do not have ready access to community-

based mental and behavioral health services and professionals” and therapeutic

treatment. [ECF No. 319, at 15]. For children with mental disabilities in particular,

“institutionalization [i]s the sole source of plausible . . . treatment.” [ECF No. 131, at

37]. In contrast to their allegations concerning institutional placement, Plaintiffs’

concern here is not about a specific placement; instead, they allege that Defendants’

failure to provide community-based treatment leaves courts with no choice but to

institutionalize foster children with various disabilities. In other words, the lack of

community-based services results in, or creates a risk of, institutionalization.

In response, Defendants assert that they do not have a practice of failing to

provide community-based treatment. [ECF No. 322, at 15]. Defendants state that

West Virginia law “requires [them] to ‘[p]rovide community-based services in the

least restrictive settings that are consistent with the needs and potentials of the child

and his or her family.’” (quoting W. Va. Code § 49-1-105(b)(7)). In accordance with

that directive, Defendants contend that they have “devoted enormous resources to

28

expanding community-based mental health services for children” over the last several

years. at 17.

In , the Supreme Court addressed the qualified right of

institutionalized individuals to community placement under the ADA, where medical

professionals have determined that such placement is appropriate and the placement

can be reasonably accommodated. 527 U.S. 581, 587 (1999). Over the past two

decades, several courts, including the Fourth Circuit, have expanded to

apply to those who are placed at of institutionalization by a state’s failure to

provide community-based treatment. , , 709 F.3d 307, 322

(4th Cir. 2013); , 821 F.3d 231, 262–63 (2d Cir. 2016);

, 400 F. Supp. 3d 546, 553–54 (S.D. Miss. 2019) (finding that the

State of Mississippi’s mental health system violated the ADA because the State over

relied on state psychiatric hospitals and provided very few community-based services,

thereby placing people with serious mental illness at risk of institutionalization). The

Department of Justice (“DOJ”), in agreement, has explained that “the ADA and the

decision extend to persons at serious risk of institutionalization or

segregation and are not limited to individuals currently in institutional or other

segregated settings. . . . [A] plaintiff could show sufficient risk of institutionalization

to make out an violation if a public entity’s failure to provide community

services . . . will likely cause a decline in health, safety, or welfare that would lead to

the individual’s eventual placement in an institution.”

29

Olmstead v. L.C., U.S. Dep’t of Just. (Feb. 25, 2020),

https://archive.ada.gov/olmstead/q&a_olmstead.htm. Accordingly, caselaw and DOJ

guidance make clear that a risk of institutionalization can support a valid claim

under the ADA and Rehabilitation Act.

In fact, several district courts have certified classes of disabled individuals

challenging a public entity’s failure to provide community services to them. ,

, 293 F.R.D. 254 (D.N.H. 2013); , 283 F.R.D.

587 (D. Or. 2012). For example, in , the plaintiffs claimed that “the State

of New Hampshire unnecessarily institutionalize[d] people with serious mental

illnesses” in violation of the ADA and Rehabilitation Act, and they sought to certify a

class of people with serious mental illness who were either institutionalized or at risk

of institutionalization. 293 F.R.D. at 258, 260. According to the plaintiffs, the State

maintained a “pattern and practice of under-funding community services and . . .

over-rel[ying] on institutional treatment,” which “created a systemic deficiency in the

array of available community services, which, in turn, . . . 1) contributed to the

unnecessary institutionalization of people with serious mental illnesses; and 2)

contributed to the placement of people with serious mental illnesses at serious risk of

unnecessary institutionalization.” at 260. The plaintiffs sought declaratory

judgment and “injunctive relief requiring the State to develop and provide an

adequate array of identified community-based treatment services.” After

30

examining the State’s own reports, reports by the DOJ, and the plaintiffs’ experts’

reports, the district court found “[s]ubstantial evidence suggest[ing] that the State’s

policies and practices . . . created a systemic deficiency in the availability of

community-based mental health services, and that th[e] deficiency [was] the source

of the harm alleged by all class members.” at 267. Accordingly, the court concluded

that common questions existed in the case, including “whether there [was] a systemic

deficiency in the availability of community-based services, . . . whether that deficiency

follow[ed] from the State’s policies and practices,” and “whether the systemic

conditions, if shown to exist, expose[d] all class members to a serious risk of

unnecessary institutionalization, including continued unnecessary

institutionalization.”

Similarly, in this case, the record suggests that Defendants provide insufficient

community-based services to foster children with disabilities. On June 1, 2015, the

DOJ wrote a letter to then-Governor Earl Ray Tomblin, detailing “the findings of [its]

investigation of West Virginia’s system of care for children in need of mental health

services.” Letter from DOJ to Governor Earl Ray Tomblin 1 (June 1, 2015),

https://archive.ada.gov/olmstead/documents/west_va_findings_ltr.pdf (footnote

omitted). The DOJ found that “DHHR ha[d] not developed a sufficient array of in-

home and community-based services” for foster children, which resulted in children

with mental disabilities being placed in “segregated residential treatment facilities”

at “high rates.” at 2. At the time, “25% of all children in DHHR custody” were

31

institutionalized, which exceeded the national average rate of institutionalization of

15%. at 4. The DOJ concluded that DHHR’s provision of “mental health services

to children [occurred] almost exclusively in segregated residential treatment

facilities,” even though “these children . . . qualified for community placement.” at

8. According to the DOJ, the lack of community services resulted in, and placed foster

children at risk of, unnecessary institutionalization. at 12–16. The DOJ therefore

concluded that West Virginia was not in compliance with the ADA. at 1.

Additional external and internal reviews of West Virginia’s foster care system

likewise indicate a lack of community-based services for children with disabilities.

For example, the 2017 CFSR by the Children’s Bureau noted that mental health

services for foster children are lacking. [ECF No. 130-3, at 23]. Additionally, in 2018,

DHHR reported the results from a survey it had distributed concerning community

services. [ECF No. 130-19]. The survey results indicated a significant service gap in

individual outpatient therapy, intensive home-based services, in-home crisis services,

peer support, and therapeutic foster care. at 279, 281–82, 284, 286. West Virginia

University has similarly described the “lack of appropriate community-based

services” for foster children, explaining that “[t]he shortage of community-based

services, . . . is a significant barrier to successfully supporting high-need children so

they can remain in family-based care.” Bureau of Business and Economic Research,

, W. Va. Univ. (Dec. 2012), https://researchrepository.

32

wvu.edu/cgi/viewcontent.cgi?article=1047&context=bureau_be. Based on these

reports, one of Plaintiffs’ experts opined that “DHHR fails to provide access to an

adequate array of community-based services, programs, and activities that are

readily accessible to and usable by children with disabilities.” [ECF No. 130-10, at 6].

The court finds sufficient evidence of systemic deficiencies in the availability

of community-based services for children with disabilities.9 Common questions

therefore exist regarding whether Defendants’ provision of services is in fact

deficient, and if so, whether the deficiency places foster children with disabilities at

risk of unnecessary institutionalization. Defendants’ statements concerning the

programs they have implemented to expand community-based services is a factor for

the court to consider at the merits stage when answering the questions common to

the ADA Subclass.

iii. Kinship Subclass

In its Order, dated January 13, 2023, the court dismissed two of the three

substantive due process claims asserted by the proposed Kinship Subclass. [ECF No.

300, at 17]. The remaining claim involves DHHR’s alleged failure to provide the

9 Defendants argue that the practice of failing to provide community treatment alleged by Plaintiffs

“relate[s] only to children with mental health disabilities and do[es] not pertain to children with

physical or intellectual disabilities.” [ECF No. 322, at 15]. The court disagrees. The failure to provide

community-based services, such as therapeutic treatment, is as detrimental to children with physical

and intellectual disabilities as it is to children with mental disabilities if it places those children at

risk of unnecessary institutionalization. Although Plaintiffs highlight some of the particular

challenges facing those with mental disabilities, their allegations plainly encompass a lack of “other

therapeutic service providers capable of meeting the needs of ADA Subclass members.” [ECF No. 319,

at 14].

33

subclass with services to ensure the children are free from harm. ; [ECF No. 1, ¶

374(a)(ii)].

Plaintiffs seek certification for the Kinship Subclass based on DHHR’s alleged

practices of failing to contact children in kinship placements and to investigate

allegations of maltreatment in kinship care. [ECF No. 319, at 16]. Defendants argue

that the Kinship Subclass’ claims are repetitive of the General Class’ claims, and

therefore “Plaintiffs fail to prove commonality . . . for the Kinship Subclass . . . for the

same reasons they have not met their burden for the General Class.” [ECF No. 322,

at 9 n.9]. In their reply, Plaintiffs explain that the Kinship Subclass’ claims are

similar to those of the General Class, but they are not repetitive of those claims. [ECF

No. 325, at 4 n.11]. Plaintiffs contend “that the risk of harm—which is in substantial

part linked to high caseloads and chronic understaffing—is increased for Kinship

Subclass members, and that Defendants’ failures to supervise children and

investigate allegations of maltreatment are, likewise, more significant.”

As previously explained, the court may divide a class into subclasses “[w]hen

appropriate.” Fed. R. Civ. P. 23(c)(5). The Advisory Committee Notes indicate that

subdivision is appropriate when “a class is found to include subclasses divergent in

interest.” Fed. R. Civ. P. 23(c) advisory committee’s note to 1966 amendment. In this

case, the court fails to see how the interests of the Kinship Class diverge from the

interests of the General Class. Indeed, Plaintiffs assert that the Kinship Subclass is

affected by the same deficiencies in the foster care system, such as high caseloads and

34

chronic understaffing, as is the General Class. Plaintiffs merely contend that these

inadequacies are riskier for members of the Kinship Subclass. [ECF No. 325, at 4

n.11]. The questions common to both classes, however, are the same: Do these specific

practices place foster children at an unreasonable risk of serious harm and if so, have

Defendants acted with deliberate indifference to this unconstitutional risk? The court

is therefore unpersuaded that a separate subclass is appropriate. For this reason,

Plaintiffs’ motion to certify the Kinship Subclass is DENIED.

C. Typicality

To establish typicality, a plaintiff must show that “the claims or defenses of

the representative parties are typical of the claims or defenses of the class.” Fed. R.

Civ. P. 23(a)(3). The representative parties must “‘possess the same interest and

suffer the same injury’ as the class members.” , 457

U.S. 147, 156 (1982). Their claims, however, need not “be perfectly identical or

perfectly aligned.” , 436 F.3d 461, 467 (4th Cir. 2006). “If the

claims arise from a similar course of conduct and share the same legal theory, factual

differences will not defeat typicality.” , 254 F.3d 551, 571 (5th

Cir. 2001) (quoting 5 James William Moore, et al., Moore’s Federal Practice § 23.24

(3d ed. 2000)).

The Supreme Court has explained that typicality “tend[s] to merge” with

commonality in that “[b]oth serve as guideposts for determining whether under the

particular circumstances maintenance of a class action is economical and whether the

35

named plaintiff’s claim and the class claims are so interrelated that the interests of

the class members will be fairly and adequately protected in their absence.”

, 564 U.S. at 349 n.5 (quoting , 457 U.S. at 157

n.13). In other words, for typicality to exist, “[t]he representative party’s interest in

prosecuting his own case must simultaneously tend to advance the interests of the

absent class members.” , 436 F.3d at 466. A district court’s discussion of

typicality must therefore “involve a comparison of the plaintiffs’ claims or defenses

with those of the absent class members.” at 467.

i. General Class

The Named Plaintiffs allege that they have satisfied the typicality requirement

because their “claims . . . rest on the same legal theory as the members of the putative

class” and “arise from the same course of conduct.” [ECF No. 319, at 17]. Defendants

assert that the Named Plaintiffs have not shown that proof of the elements of their

claims will also prove the claims of the absent class members. [ECF No. 322, at 19].

Additionally, Defendants argue that typicality in this case is “undermined by the fact

that the . . . Named Plaintiffs are extraordinarily atypical of the putative General

Class,” particularly with respect to their age and “severe behavioral issues.” at 20.

Defendants’ arguments are misguided. As explained above, the crux of the

typicality requirement is whether the Named Plaintiffs’ are representative of

the absent class members’ —not whether their factual circumstances are

identical. In this case, the Named Plaintiffs’ claims are based on the same legal theory

36

as the absent class members’ claims: the Fourteenth Amendment substantive due

process right to be free of an unreasonable risk to their safety. Additionally, the

Named Plaintiffs allege that all class members, including themselves, have been

similarly injured as a result of DHHR’s practices and policies—i.e., they have all been

exposed to unreasonable risk of serious harm. To redress their injury, Plaintiffs seek

declaratory and injunctive relief against Defendants on behalf of the entire class.

Under these circumstances, the court concludes that the Named Plaintiffs’ claims are

typical of the class. Proof of the Named Plaintiffs’ claims would necessarily prove

classwide claims. As such, the typicality requirement is satisfied for the putative

General Class.

ii. ADA Subclass

For similar reasons, the proposed ADA Subclass also meets the typicality

requirement. The Named Plaintiffs who would be members of this subclass assert

claims based on the same legal theory as the unnamed class members—i.e., the ADA

and Rehabilitation Act. Additionally, they allege that the same course of conduct—

Defendants’ failure to maintain community-based services—exposes subclass

members to a risk of unnecessary institutionalization. Certainly, both the Named

Plaintiffs and the absent subclass members share an interest in securing community

services sufficient to prevent their continued exposure to such risk. By pursing their

own interests, the Named Plaintiffs will necessarily advance the interests of all other

subclass members. The court therefore concludes that the Named Plaintiffs with

37

disabilities have claims typical of the unnamed subclass members, thereby satisfying

the requirements of Rule 23(a)(3).

D. Adequacy of Representation

To satisfy the adequate representation requirement for class certification, a

plaintiff must show that “the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of representation

overlaps with commonality and typicality. , 564 U.S. at 349

n.5. Determining adequacy of representation requires the court to resolve two

inquiries: “(1) whether the named plaintiffs and their counsel have any conflicts of

interest with other class members; and (2) whether the named plaintiffs and their

counsel will prosecute the action vigorously on behalf of the entire class.”

, No. 3:00-2782-22, 2004 WL 5745993, at *7 (D.S.C. Dec.

2, 2004); , 564 U.S. at 349 n.5 (explaining that the

adequacy of representation requirement “raises concerns about the competency of

class counsel and conflicts of interest” (quoting , 457 U.S. at

157 n.13)). “For a conflict of interest to prevent plaintiffs from meeting the

requirement of Rule 23(a), that conflict ‘must be fundamental’” and “go to the heart

of the litigation.” , 348 F.3d at 430–31 (quoting 6 Alba Conte & Herbert B.

Newberg, Newberg on Class Actions § 18:14 (4th ed. 2002)).

38

i. General Class

Defendants dispute that the Named Plaintiffs will adequately represent the

proposed General Class, as “conflicts-of-interest exist between the Named Plaintiffs

and the putative absent class members.” 10 [ECF No. 322, at 21]. Defendants offer the

following example of a conflict of interest: “Anastasia M. [suggests that she] has been

harmed by DHHR’s efforts to reunify her with her parent instead of pursuing

adoption, . . . but many putative class members benefit from DHHR’s efforts to give

families more time to work toward reunification.”

In its analysis of typicality, the court discussed the relationship between the

claims of the representatives and those of the unnamed class members.

Section III.C.i. Both the Named Plaintiffs and absent class members’ injuries arise

from the same allegedly unconstitutional conduct by the same state agency. The

Named Plaintiffs do not seek monetary damages but only declaratory and injunctive

relief on behalf of the class. Based on the circumstances, the court concludes that no

“fundamental” conflict of interest exists between the Named Plaintiffs and the absent

class members. Any potentially diverging interests identified by Defendants have no

10 Additionally, because nine of the Named Plaintiffs are no longer in DHHR’s custody, Defendants

argue that they are not members of the putative class or subclass and therefore cannot be adequate

class representatives. [ECF No. 322, at 22]. Defendants’ argument, however, ignores the Fourth

Circuit’s holding in its Order reversing this court’s ruling on mootness. [ECF No. 265, at 11–15].

As the Fourth Circuit explained, if this court “decides to certify the class, the certification will ‘relate

back to the filing of the complaint.’” at 15 (quoting , 569 U.S.

66, 76 (2013)). At the time Plaintiffs filed their Complaint, all twelve Named Plaintiffs were in DHHR’s

custody, and each child was a member of at least one of the proposed classes.

39

bearing on the claims asserted in this case, which address general policies and

practices alleged to subject all class members to the same unreasonable risk of harm.

Additionally, this case has been pending for nearly four years. Proposed class

counsel have devoted substantial time and resources to representing the class, and

they have extensive experience handling class action litigation. [ECF Nos. 318-1,

318-10]. The court is thus satisfied that the Named Plaintiffs and their counsel will

vigorously prosecute this action on behalf of the General Class and that Rule

23(a)(4)’s adequacy requirement has been met. At this point, Plaintiffs have

established all four of Rule 23(a)’s requirements for class certification for the proposed

General Class.11

11 Plaintiffs include children who enter foster care through juvenile justice proceedings in the proposed

General Class along with those who enter the system through abuse-and-neglect proceedings.

[ECF No. 319, at 7 n.27]. Defendants argue, however, that neither “commonality, typicality, [n]or any

other Rule 23 requirement is satisfied with respect to the claims of juvenile justice youth.” [ECF No.

322, at 24]. Defendants explain that “juvenile justice youth present community safety issues not

implicated with traditional foster children; are served by different case workers . . . ; and have more

extensive court involvement in their cases.” at 25. Defendants contend that “principles of comity

and federalism require the Court to abstain from overseeing or interfering with ongoing juvenile

justice proceedings.”

Approximately 10% of foster children are placed in DHHR’s custody “through juvenile

delinquency and status-offense hearings,” while the other 90% “come to the Department by way of

traditional abuse-and-neglect proceedings.” [ECF No. 265, at 4]. In its Order reversing this court’s

dismissal under , the Fourth Circuit explained that abstention was inappropriate for the

claims of foster children who enter DHHR’s custody through abuse-and-neglect proceedings. at 38–

39. For juvenile justice youth, the court expressed skepticism that abstention applied to their claims

but declined to resolve the issue because it was “not properly before [the court].” at 21. The Fourth

Circuit noted, however, that “West Virginia treats all foster children the same, whether they end up

in foster care ‘as a result of a juvenile proceeding or as a result of a child abuse and neglect proceeding.’”

(quoting W. Va. Code § 49-4-110).

For the same reasons abstention is inapplicable to traditional foster children’s claims, it is also

inapplicable to the claims of juvenile justice youth. The abstention doctrine counsels federal

courts to refrain from interfering with ongoing “state judicial proceedings absent extraordinary

circumstances.” , 457 U.S. 423, 431 (1982).

Like the traditional foster children, the juvenile justice youth do not challenge any judicial proceeding

but rather Defendants’ provision of services to all foster children, including themselves. W. Va.

Code § 49-4-110; [ECF No. 116, at 2 (admitting that juvenile justice youth in DHHR’s custody

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ii. ADA Subclass

According to Defendants, the Named Plaintiffs with disabilities cannot

adequately protect the interests of the ADA Subclass for the same reasons the Named

Plaintiffs as a whole cannot represent the General Class. Defendants state that a

conflict-of-interest exists between the Named Plaintiffs and unnamed subclass

members because the Named Plaintiffs “seek to decrease the number of children in

the ADA Subclass placed in residential treatment programs” although “many

children with serious behavioral issues benefit from such programs.” [ECF No. 322,

at 21].

To begin, Plaintiffs seek to prevent the risk of institutionalization,

not all institutionalization. Plaintiffs allege that Defendants fail to provide foster

children with disabilities with community-based treatment, such that state courts

are considered foster children)]. Therefore, an injunction directed at Defendants, should Plaintiffs

prevail, would not intrude where the abstention doctrine forbids—with pending state judicial

proceedings. Accordingly, the court concludes that abstention is inapplicable to the claims of children

who entered foster care through delinquency and status-offender proceedings, and those children are

properly included in the putative General Class.

On a separate but related note, the court finds it necessary to clarify the status of one of the

Named Plaintiffs, Gretchen C. Initially, in their Complaint, Plaintiffs stated that Gretchen entered

the foster care system as “a neglected youth,” who “ha[d] never been adjudicated as a delinquent.”

[ECF No. 1, ¶ 127]. Presumably after reviewing discovery, Plaintiffs now contend that DHHR obtained

custody of Gretchen through juvenile justice proceedings. [ECF No. 131, at 9; ECF No. 319, at 7 n.27;

ECF No. 325, at 19]. Specifically, the record indicates that Gretchen first came to DHHR’s attention

when she was eight months old due to allegations of abuse and neglect by her parents. [ECF No. 133-

1, at 275]. However, Gretchen was not placed into DHHR’s custody until she was eleven years old,

following a petition naming her as a delinquent child. at 298. The court ultimately adjudicated

Gretchen delinquent, placed her on probation for five years, “and continued DHHR’s temporary

custody of [her].” at 299. The record therefore indicates that Gretchen entered foster care through

juvenile delinquency proceedings. But in accordance with the preceding discussion, Gretchen is as

much a foster child, exposed to DHHR’s same general policies and practices, as the eleven other Named

Plaintiffs. W. Va. Code § 49-4-110; [ECF No. 265, at 21]. As such, the court concludes that Gretchen

can adequately represent the proposed General Class.

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have no choice but to institutionalize them, even if some children could remain in the

community with adequate services. [ECF No. 319, at 15; ECF No. 265, at 27]. To

the extent that certain foster children require institutionalization to meet their

needs, their interests do not conflict with the interests of the Named Plaintiffs. Just

because some children currently require residential treatment does not mean they

will not benefit from the Named Plaintiffs’ pursuit of community services. Indeed, the

availability of community treatment may ensure that these high need children will

not be subject to unnecessary continued institutionalization if their conditions

improve in the future.

Additionally, as the court previously explained, proposed class counsel have

the requisite experience and resources to litigate this case. Section III.D.i.

The court is satisfied that counsel will adequately represent the interests of the ADA

Subclass.

For the reasons stated, Plaintiffs have met the adequacy requirement and have

now satisfied all of Rule 23(a)’s requirements for class certification for this subclass.

E. Rule 23(b)

Once Rule 23(a)’s requirements are met, a plaintiff must show that the

proposed class fits within one of three types of classes described in Rule 23(b). In this

case, Plaintiffs seek class certification under Rule 23(b)(2), [ECF No. 319, at 18–20],

which states that class certification is appropriate if “the party opposing the class has

acted or refused to act on grounds that apply generally to the class, so that final

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injunctive relief or corresponding declaratory relief is appropriate respecting the class

as a whole,” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) frequently serves “as the vehicle

for civil rights actions and other institutional reform cases that receive class action

treatment.” , 43 F.3d at 58–59. “The key to the (b)(2) class is ‘the indivisible

nature of the injunctive or declaratory remedy warranted—the notion that the

conduct is such that it can be enjoined or declared unlawful only as to all of the class

members or as to none of them.’” , 564 U.S. at 360 (quoting

Nagareda, , at 131–32). Rule 23(b)(2) therefore “applies only when a single

injunction or declaratory judgment would provide relief to each member of the class.

It does not authorize class certification when each individual class member would be

entitled to a injunction or declaratory judgment against the defendant.”

In this case, Plaintiffs seek court intervention “to address the many long-

standing systemic deficiencies” that affect West Virginia’s entire foster care system.

[ECF No. 1, ¶ 367]. Consequently, at the conclusion of the merits proceedings, the

court could only declare unlawful and enjoin the challenged conduct “as to all of the

class members or as to none of them.” , 564 U.S. at 360 (quoting

Nagareda, , at 131–32). If the court determines that Defendants’ practices are

unconstitutional or violate federal law, “a single injunction or declaratory judgment

would provide relief to each member of the class.” The court therefore concludes

that the requirements of Rule 23(b)(2) are satisfied as to the proposed General Class

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and ADA Subclass. With the final requirement for class certification having been met,

the court GRANTS Plaintiffs’ motion to certify these two classes.

F. Appointment of Class Counsel

Rule 23(c)(1)(B) requires a court that certifies a class to appoint class counsel.

In appointing class counsel, the court must consider: (1) “the work counsel has done

in identifying or investigating potential claims in the action;” (2) “counsel’s experience

in handling class actions, other complex litigation, and the types of claims asserted

in the action;” (3) “counsel’s knowledge of the applicable law; and” (4) “the resources

that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).

In this case, proposed class counsel include attorneys from A Better Childhood,

Inc., Shaffer & Shaffer, PLLC, and Disability Rights of West Virginia. [ECF Nos. 318-

1, 318-10]. They describe themselves as a committed “team of attorneys dedicated to

this matter.” [ECF No. 318-10, ¶ 3]. Together, the attorneys have “engaged in an in-

depth investigation of the child welfare system in West Virginia,” reviewing relevant

facts and documents and “researching and developing legal claims.” [ECF No. 318-1,

¶ 8]. Additionally, proposed counsel have extensive experience handling complex

litigation and class actions similar to the instant case. ¶ 5; [ECF No. 318-10, ¶ 3].

As a result, they are knowledgeable about the applicable law in child welfare and

disability rights litigation and have sufficient resources to effectively litigate this

matter. [ECF No. 318-1, ¶ 6; ECF No. 318-10, ¶ 10].

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Proposed counsel have clearly demonstrated their expertise in civil rights class

litigation, and the court concludes that they will fairly and adequately represent the

interests of the General Class and ADA Subclass. , 294 F.R.D. at

66 (appointing class counsel based on counsel’s “extensive experience handling

complex litigation and class actions,” “familiarity with the applicable law . . . [in] th[e]

case,” and access to “substantial resources” necessary to represent the class).

Accordingly, the court GRANTS Plaintiffs’ Motion for Appointment of Class Counsel.

IV. Conclusion

Plaintiffs’ claims, challenging systemic deficiencies in West Virginia’s foster

care system, are tailor-made for class resolution. As the Fourth Circuit illustrated,

“[r]eforming foster care case-by-case would be like patching up holes in a sinking ship

by tearing off the floorboards.” [ECF No. 265, at 33]. Indeed, the court could not give

to Jonathan without depriving Gretchen and therefore declines to play a zero-sum

game.

For the reasons stated herein, Plaintiffs’ Renewed Motion for Class

Certification and Appointment of Class Counsel, [ECF No. 318], is GRANTED in part

and DENIED in part. This matter shall proceed as a class action with one General

Class and one ADA Subclass.

Membership in the certified class and subclass is defined as follows:

• The General Class: all West Virginia foster children who are or will be

in the foster care custody of DHHR or its successor agency; and

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• The ADA Subclass: all members of the General Class who have physical,

intellectual, cognitive, or mental health disabilities, as defined by

federal law.

The following Named Plaintiffs, by their next friends, are appointed as class

representatives for the General Class:

• Jonathan R., by his next friend, Sarah Dixon;

• Anastasia M., by her next friend, Cheryl Ord;

• Serena S., by her next friend, Sarah Dixon;

• Theo S., by his next friend, L. Scott Briscoe;

• Garrett M., by his next friend, L. Scott Briscoe;

• Gretchen C., by her next friend, Cathy Greiner;

• Dennis R., by his next friend, Debbie Stone;

• Chris K., Calvin K., and Caroline K., by their next friend, Katherine

Huffman;

• Karter W., by his next friend, L. Scott Briscoe; and

• Ace L., by his next friend, Isabelle Santillion.

Additionally, the following Named Plaintiffs, by their next friends, are

appointed as class representatives for the ADA Subclass:

• Jonathan R., by his next friend, Sarah Dixon;

• Anastasia M., by her next friend, Cheryl Ord;

• Serena S., by her next friend, Sarah Dixon;

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e Theo S., by his next friend, L. Scott Briscoe;

e Garrett M., by his next friend, L. Scott Briscoe;

e Gretchen C., by her next friend, Cathy Greiner;

e Dennis R., by his next friend, Debbie Stone;

e Karter W., by his next friend, L. Scott Briscoe; and

e Ace L., by his next friend, Isabelle Santillion.

Finally, the following attorneys are appointed as co-counsel to represent both

the General Class and ADA Subclass:

e attorneys from A Better Childhood, Inc.;

e attorneys from Shaffer & Shaffer, PLLC; and

e attorneys from Disability Rights of West Virginia.

This matter shall proceed in accordance with the Scheduling Order entered on

June 12, 2023. [ECF No. 329].

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party. The court further DIRECTS the Clerk to post a copy of

this published opinion on the court’s website, www.wvsd.uscourts.gov.

ENTER: August 17, 2023

Ie

ew STATES DISTRICT JUDGE

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