West Virginia faces a legal reckoning

During her roughly four years in West Virginia’s foster care system, Nahomi Bennett says she bounced around among more than a dozen facilities — so many that she lost count. But there is one she can’t forget: the group home where she was living when, she says, an older boy raped her at age 14.

“I have dreams about it sometimes,” Bennett, now 20, said in an interview. “So I can’t really escape it in a way.” 

West Virginia has the country’s highest rate of children in foster care—a figure that’s four times higher than that of the U.S. as a whole. Ravaged by the opioid epidemic, the state has seen its foster care population balloon by 57% over the past decade, overwhelming an already strapped child welfare system.

West Virginia has implemented reforms in recent years, such as hiring more Child Protective Service workers and launching a campaign to recruit foster parents. But its efforts have fallen well short, according to a review of public records and interviews with more than two dozen former foster children, foster parents, ex-case workers and others connected to the system.

They paint a picture of a system that continues to expose vulnerable children to harm due to a rush to institutionalize those needing the most support, a pattern of high caseloads and chronic understaffing, a culture of concealment and retaliation, and a shortage of foster homes so dire that kids are living in hotel rooms and even cabins in a recreational area.

“We have a freight train headed our way,” said Mike Folio, who spent three years as a lawyer for the state’s Department of Health and Human Resources, the agency that until January oversaw its foster care system. He now works as a government watchdog with Disability Rights of West Virginia, a federally mandated protection and advocacy system. 

“These kids are being damaged during their formative years,” Folio added. “If we don’t intervene now, this is a lost generation.”

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West Virginia faces a legal reckoning. A sweeping class-action lawsuit accusing the state of failing to protect its foster children appears set to go to trial in the fall. The federal suit could force dramatic changes in how the system is run — an outcome plaintiffs’ attorney Marcia Robinson Lowry says can’t come soon enough. 

“They are being maltreated, sexually abused and physically abused while in the state’s custody,” said Lowry, the executive director of A Better Childhood, a nonprofit organization. “This is a system that cannot police itself.”

West Virginia has sought to dismiss the lawsuit, which calls for judicial oversight of its foster care system. But in August, a judge approved it for class action status, and a trial is scheduled for November.

“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,” U.S. District Judge Joseph R. Goodwin said in his ruling.

In a statement, the West Virginia Department of Human Services, which has overseen the foster care system since January, pushed back against the idea that the state is failing foster children. It said the rate at which children are victimized in foster care in West Virginia is better than the national average, as is its record on placement stability.

The department also said it “leads the nation” in placing foster children with relatives, with about half of all foster children in kinship placements as of April 30.

“It is important to remember that individual anecdotes must not be extrapolated to suggest existing or ongoing systemic issues within the foster care system, particularly where the most up-to-date data and demonstrable metrics reveal an entirely different trend,” the department said.

A beleaguered system

The state’s foster care system has been in crisis for years. 

More than 6,000 kids are in the system. Parental drug abuse was cited as the reason nearly half of the children were removed from their homes in 2022, according to the latest available statistics. But there is also another factor fueling the high number of kids in the system — West Virginia has been found to permanently terminate parental rights more often and more quickly than any other state. 

Marissa Sanders, a foster care reform advocate, said she thinks Child Protective Service workers are overburdened in part because they are investigating too many families that don’t need to be investigated.  “They are chasing poverty cases about kids with dirty clothes or someone who forgot lunch and then they don’t have time to deal with cases where a kid is being sexually abused,” she said.

Amid mounting scrutiny, lawmakers divided the Department of Health and Human Resources, which had been overseeing the foster care system, into three parts in January in an effort to improve transparency and results.

“There’s still tons of work to do,” Gov. Jim Justice acknowledged later that  month. “Tons and tons and tons of work to do.”

One of the state’s underlying issues is a lack of foster parents to take in all of the children who have entered the system over the past decade. 

But even when there were fewer foster children, West Virginia was criticized for rushing to send those with mental health problems to institutions rather than finding more appropriate settings. In 2015, the U.S. Justice Department concluded that the state “has needlessly segregated thousands of children far from family and other people important in their lives.”

The state has worked to reduce its reliance on group homes and institutions since it reached a settlement with the Justice Department in 2019. But West Virginia still continues to place children in such facilities at a rate 44% higher than the national average, according to the nonprofit West Virginia Center on Budget & Policy.

In a Department of Health and Human Resources meeting in July 2023, an agency official noted that “children are placed in inappropriate settings due to a lack of available beds or are placed out of state,” according to meeting notes Disability Rights of West Virginia obtained through a public records request and provided to NBC News.

An alleged sexual assault

Bennett entered the system when she was around 12 years old.  In 2018, she was transferred to the Board of Child Care, a residential treatment facility in Martinsburg for youth with emotional trauma and behavioral issues.

The only photo Bennett has from her childhood.Courtesy Nahomi Bennett

One day, she and a group of other kids ran away from the facility. She found herself alone in the woods with an older boy, and it was then that he raped her, she said. She went to a local hospital where a rape kit was taken, the medical center confirmed to NBC News. 

Bennett said she reported the incident to Board of Child Care staffers, but they made light of the alleged attack and she was put back in the same facility with the teen who she said had preyed on her. 

A Board of Child Care spokesman said he couldn’t comment on individual cases and that the state is the legal custodian for children who are placed at residential providers.

“We take the health and safety of the program participants entrusted to our care very seriously,” the spokesperson said. “Any allegations of misconduct by our employees are followed up on immediately.”

West Virginia stopped sending foster children to the Board of Child Care in 2022 following a state investigation. A staffer there was fired for child abuse and maltreatment in 2021, and another report of child abuse and neglect was substantiated by the state the next year, according to documents obtained through a Freedom of Information Act request.

In February 2019, Bennett was sent to a juvenile detention facility, the Vicki Douglas Juvenile Center, after she got into an altercation with a staffer.

The state substantiated six incidents of child abuse and/or neglect at the detention center in 2020 and 2021 but none from 2022 through February 2024.

The Division of Corrections and Rehabilitation said that it’s committed to safety and that the incidents were quickly investigated, resulting in the terminations of the offenders and in two individuals being charged criminally. 

A birthday in handcuffs

On the day she turned 15, Bennett met the first adult she says has never failed her — Layne Diehl. Diehl is a guardian ad litem, an attorney who is paid by the state to advocate for a child’s best interests. 

Diehl still remembers the first time she laid eyes on Bennett. The teenager was in an orange jumpsuit, her wrists handcuffed and ankles shackled, shuffling her way into a court hearing. 

“She looked so sad,” Diehl said. “She should have been celebrating her quinceañera with family and friends but instead she was in shackles and handcuffed.”

“Shackles are a horrible sight to see on anyone but especially a child,” she added. 

Bennett was transferred to an Ohio facility called Foundations for Living, where she remained for about six months. She said staffers would take children they didn’t like to the stairwells and hit them because there were no cameras there. Feeling unsafe, she said she acted out, damaging property and running away.

“She should have been celebrating her quinceañera with family and friends, but instead she was in shackles and handcuffed,” Diehl said.NBC News
Diehl and Bennett at the Shawshank tour in September 2019.Courtesy Layne Diehl

West Virginia suspended placements at the facility in 2021 due to allegations of lack of supervision and child-on-child physical and sexual assaults. The state lifted the suspension in May 2023 after it implemented provisions and then instituted it again in December because the supervision issues persisted, according to the Department of Human Services. 

Since 2020, government investigators or the facility have substantiated five incidents involving physical assault injuries by non-staff members at Foundations for Living, three incidents of abuse and neglect by staff members and seven incidents of inappropriate use of seclusion or restraint, according to documents provided by the facility to the state of Ohio and obtained through a FOIA request.

Karen Spires, the CEO of Foundations for Living, said it has helped thousands of young people with behavioral health issues and that the team is “committed to providing high-quality care in a compassionate, safe environment.” 

West Virginia has long been accused of being slow to remove children from facilities after allegations of abuse. In a recent deposition for the class-action lawsuit, Jeremiah Samples, the former deputy secretary of the agency that oversaw the foster care system, was asked whether he’s familiar with his former department not removing children from out-of-state facilities after there have been allegations of abuse or neglect. 

His response: “Yes, ma’am.”

In its statement, the Department of Human Resources said it has a history of acting in a safe and appropriate manner and has in several instances removed all of the children from an out-of-state facility due to abuse or neglect.

The problem with the system, experts say, begins with overburdened Child Protective Services workers. While the state has hired more workers and raised salaries, it’s not unusual to have caseloads of 100 cases, three former CPS employees told NBC News. 

Due to the high caseloads, about 32% of abuse and neglect referrals aren’t investigated in the required timeframe, according to state health officials.

“Everyone recognized that the problem was monumental,” said Folio, who worked at the Department of Health and Human Resources, first as an assistant general counsel from August 2019 to June 2020 and then as general counsel for a division of the agency until August 2022. 

But “the issue wasn’t addressing the problem, the issue was controlling the narrative. And that’s what I saw in spades there was, what I believe, truly was a culture of concealment.” 

Folio, whose organization is involved in the class-action lawsuit,  said workers in the system — including licensed clinicians, CPS workers, youth service workers and providers — have reported to the organization that they fear “deep-seated threats of retaliation” if they speak out. 

In his deposition, Samples, the former health department official, acknowledged the same thing.

The agency “had and has a culture of retaliation that goes back some time,” said Samples, who was fired in 2022 and now works as a senior policy adviser for the state Legislature. 

The Department of Human Services said several changes in leadership have taken place since the departures of Folio and Samples. It described the two men as “disgruntled former employees” whose “internal knowledge of the department and its work is now also significantly dated.” 

Diehl visits Bennett in her new apartment.NBC News
Bennett with her boyfriend Collin.NBC News

After around four years in the system, Bennett was adopted by a foster family in late 2021 and she moved out on her own when she turned 18 in March 2022. 

“I don’t think that you go into the foster care system expecting to get out better off than when you went in,” Diehl said, but she wonders what would have happened had Bennett been placed with a family early on instead of being “unnecessarily shuffled around.” “She needed a family that loved her and cared about her. She needed that more than she needed residential placement,” Diehl added. 

Of the roughly 75 children she has represented over the past eight years, Diehl said, Bennett is one of the very few to maintain steady employment and a place of her own. 

She works 15-hour shifts as a caregiver, helping regular clients, some of whom are severely disabled. Bennett said she just wants to treat them with the dignity and respect she never felt in the system.  

She said that she is still processing her lingering trauma and she sometimes feels suicidal. But she’s working through the pain. She dreams of going to college to become a surgical technician.

“My hope is for myself to never give up, to pursue my dreams and don’t let my anxiety hold me back,” she said.  

When asked whom she wants to listen to her story, Bennett replied, “Anyone who can do anything about it.” She paused and repeated a single word. “Anyone.” 

“My hope is for myself to never give up, to pursue my dreams and don’t let my anxiety hold me back,” Bennett said.NBC News

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