About 400,000 children across the U.S. are growing up inside the foster care system, overseen by government employees who are overworked, and agencies that are historically underfunded. When the opioid epidemic hit, foster care systems saw a massive increase in the number of kids in their care. West Virginia has been hit particularly hard. The state has the nation’s highest rate of children removed from their home and put into foster care.

Roughly 6,900 children in the state are in foster care, an increase of almost 60 percent over the past six years. And while state officials point to improvements in the past several years, others argue these reforms don’t go far enough, including 12 foster care children who are now suing the state.

“I’ve been in group homes, detention centers, emergency shelters,” said Geard Mitchell, one of the now-adult plaintiffs in a federal lawsuit that says West Virginia’s foster care system has failed to protect children. “I’ve been in just about every placement they could possibly put a kid in all in one short childhood.”

Mitchell and 11 other foster children are named in a lawsuit filed in 2019 by A Better Childhood (ABC), a child advocacy organization based in New York City.

Lawyers with ABC say the West Virginia Department of Health and Human Resources has made some improvements to its foster care system in recent years, but that these changes don’t go far enough.

“They have a lot of good policies, but they’re not implementing them,” said Marcia Lowry, a lawyer with ABC. The suit claims that foster care children in West Virginia are mistreated and shuffled between “inadequate and dangerous placements, forced to unnecessarily languish in foster care for years.”

According to the DHHR, 12 percent of children who are in the agency’s custody live in institutional settings, what the state calls “residential treatment programs.”

For teenagers, the rate is much higher– 44 percent.

Institutionalized For Eight Years

Beginning when he was 11 years old, Mitchell was shuffled between institutional living facilities, including an out-of-state group home in middle Tennessee.

“When I was 12, my worker sent me to a group home for a residential group home for boys that had committed a sex offense. And I didn’t commit a sex offense.”

A judge later found that although the DHHR investigated Mitchell for sexual misconduct, they never brought any charges or presented any evidence in court. And yet he wound up in a group home in Tennessee where most residents were over the age of 15 and had charges pending against them for sex offenses, including rape.

“I was mad that I was around that type of environment. And I didn’t need to be. It got to my head, it started making me like, depressed and it started to make me like, think, like, man, I’m never going to get out.”

Mitchell felt uncomfortable at the facility, and says he begged his caseworker to move him. But he remained there for a year and a half. Later, when Mitchell was 16, he was sent to a maximum security detention center in Boone County, West Virginia. He alleges the only reason he was placed in this prison-like environment was because there were no emergency shelters available.

“Most nights I would wake up and my back would be stiff, or my neck would hurt because I’m sleeping on pretty much bare sheet metal,” Mitchell recalled. He spent his 17th birthday behind bars. “I was depressed. Not because I wasn’t getting any gifts or nothing but because I had no one that I actually cared about or no one that I trusted to spend time with me for my birthday.”

Mitchell’s former lawyer, Scott Driscoe, says stories like these are too common in West Virginia. “I’ve have children in Pennsylvania, Virginia, Florida, all up and down the East Coast. And I think that we need to focus on getting them the services here at home, instead of sending them abroad.”

And that’s one of the main arguments of the ABC lawsuit. That the state of West Virginia sends too many children to live in out-of-state institutions.

The state argues that the lawsuit is unfounded, and they’re already making reforms that will fix these problems.

The DHHR has implemented several programs, including the Safe at Home West Virginia program, which aims to keep more children with their families, or in their communities, instead of sending them out of state or to larger facilities.

They’ve also launched a program called the Children’s Mobile Crisis Response, where parents, caregivers and foster parents can call for help if a child, teenager or young person in their care is experiencing emotional or behavioral emergency. Mental health professionals can visit the home and help support the child, with the goal of giving them care in their own home, without removing them.

The claims in the ABC lawsuit echo similar allegations made by the Department of Justice. In 2015, the DOJ found that in West Virginia children with mental health conditions were being institutionalized for too long. Four years later, West Virginia and the DOJ signed an agreement that they would work together to expand children’s mental health services throughout the state. The state DHHR vowed to reduce the number of foster care children who are placed in psychiatric hospitals, group homes and shelters.

As a result, in West Virginia, the number of foster children in institutional settings has decreased since 2015. From over 1,100 kids to 834 as of October this year.

However, it’s not clear yet how much the COVID-19 pandemic may be impacting this data. In an emailed response to West Virginia Public Broadcasting, Allison Adler, communications director for the DHHR, clarified that “Once the pandemic is over and all children are back in in-person school full-time, there may be a spike in the number of children in need of intensive mental health services.”

At a recent Zoom meeting hosted by the DHHR, lawyers from the DOJ acknowledged that there’s still a long way to go. “We all knew when we signed the agreement that this system reform is a long-term system reform,” said DOJ attorney Haley Van Erem.

“I’m really excited, that the state has done a lot of work in the midst of COVID in the last year to really get these services in place and put down the building blocks, and we’re really excited to see where that’s going from here.”

The DHHR has submitted a plan to the DOJ to address its concerns, which will go out for public review in January.

Legislative Reforms

This past year, state lawmakers passed bi-partisan legislation, HB 4092, aimed at improving the foster care system. The new law is still in its infancy, so it’s not clear yet if it will result in fewer children placed in residential care. “Part of the problem is that there are demographics of foster children that are hard to place,” said Jeff Pack, a member of the House of Delegates from Raleigh County, who was a lead sponsor of the bill.

Jeff Pack, a member of the House of Delegates from Raleigh County, was a lead sponsor of HB 4092, which focused on reforming the state’s foster care system. Photo: Perry Bennett/West Virginia Legislative Photography

Among other things, this law provides more money towards placing foster care teenagers, and children with behavioral problems.

“The reimbursement rate from the state per day is increased for demographics of kids that are harder to place,” Pack said. “That was supposed to be effective Dec. 1, but they hit a little snag with that. So it may be into next year before that’s functional.”

The DHHR confirmed that this aspect of the new legislation is delayed, “DHHR is working with stakeholders to implement the contract as soon as possible; however, due to input from stakeholders, the process is taking longer than expected,” an agency spokesperson told West Virginia Public Broadcasting in an email.

HB 4092 provides nearly $17 million in additional funding for foster care, including funding for increased financial support to families providing care to foster children.

An additional bill, HB 4094, which also passed this year, established a new position, the “Foster Care Ombudsman,” who is tasked with establishing a statewide procedure to receive, investigate and resolve complaints filed on behalf of foster children.

And while these legislative reforms do make changes to some aspects of how foster care is overseen in the state, neither law sets a limit on the number of cases that each CPS worker will oversee.

For the past several years, the state DHHR has struggled to staff all of its CPS positions. A 2019 report by the agency stated that 18 percent of CPS positions were vacant, and CPS staff have a turnover rate of 27 percent.

That’s one of the main changes to foster care that Mitchell and the other plaintiffs in the ABC case say they want.

“I just hope for it to better the system and change it, or supply more workers, and actually help kids out, instead of putting them in placements over and over again, just because they don’t know what to do with them,” Mitchell said. “I don’t think that’s fair to the children.”

Mitchell says he rarely saw his social workers, and when he did, they seemed ready to judge him.

“I was a child, a very young child at that, facing a courtroom. I definitely needed, like a bigger brother, like someone [who] had been through it. Someone that could teach me how to get through it.”

At times, Mitchell said, he lost hope that he would ever be free.

But something changed for him when he turned 17. On his 17th birthday, he had a surprise. “When we went into the dining room for dinner, the cook had put a piece of cake on my tray.” It was a small gesture, but it made a big difference.

After that, it was like, I started getting just a little bit more hope.”

He began thinking about the future. And he reached out to his uncle and aunt in Cleveland. They offered to take him in once he aged out of foster care. Mitchell lives there now, in their home.

He dreams of becoming a tattoo artist and opening his own shop.

“Because whenever I was locked up, and putting all these placements back to back, I had found one coping skill and it was drawing.”

One of his recurring themes is Mickey Mouse. He says: “For me, Mickey Mouse is a symbolization for me to where I never had a childhood. So it was a like, a constant reminder to, if I ever have a son to make sure he has a good childhood or if I ever have a daughter to make sure she has a good childhood.”

Mitchell agreed to a request during an interview to draw something that was important to him. His intricate design included the words “Stand Up for Children” centered on the page.

Mitchell is one of 12 plaintiffs in the case against the state of West Virginia, but lawyers are asking that this lawsuit be considered a class action lawsuit, on behalf of nearly 7,000 children. A ruling on that decision to consider this a class action suit is still pending. This case is expected to go to trial sometime in 2021.

Meanwhile, the State of West Virginia has filed a motion to dismiss the lawsuit, and they dispute the findings in the complaint. They also filed a request to have Mitchell removed from the lawsuit as a plaintiff, on the grounds that he was not in foster care at the time the suit was filed.

State officials with the DHHR declined a request to do a recorded interview for this story. They emailed a response, which is excerpted below:

Response to ABC lawsuit: DHHR will not comment on the specific allegations related to a specific child, other than the responses provided in DHHR’s public filings in the ABC lawsuit, which have been carefully vetted by the agency and redacted as necessary to protect their privacy. West Virginia law requires that circuit courts review and approve all placements of all children in DHHR custody as the “least restrictive” available for the needs of the child and in the child’s best interest. West Virginia law prohibits a circuit court from placing a child in a detention center, unless he or she has been charged as a juvenile delinquent or with a juvenile status offense.

Response to DOJ investigation: West Virginia has significantly decreased the percentage of children in foster care placed in residential treatment programs since 2014. DHHR disputed and continues to dispute DOJ’s findings. For example, DOJ’s findings about the number of children in “institutions” included children adjudicated as juvenile delinquents who were ordered by circuit courts into residential treatment programs in lieu of detention at a Bureau for Juvenile Services detention center. Nevertheless, DHHR agreed to enter the MOU with DOJ because DHHR acknowledges there is a need for more providers of community-based mental health services for children in West Virginia, and DHHR believes it is in the State’s best interest to work with its federal partners (including DOJ) to expand access to those services. DHHR has taken many steps to expand access to intensive, community-based mental health since 2015.m

This article was originally published by West Virginia Public Broadcasting. This story is part of an episode of Inside Appalachia that features several young people who were former foster care children.