Supreme Court to hear arguments in key case involving foster care

But lawyers representing the judges say the orders from Preston Circuit Judge Steven L. Shaffer and Marion Circuit Judge David R. Janes are all about the kids — the 6,326 West Virginia children they say were in foster care as of May.

The issue came to a head when the state shifted from one payment software to another early last winter and lags in payment started almost immediately.

The case is set for Rule 20 arguments. That means it’s a case of first impression — a potentially new area of law to be settled — and of fundamental public importance.

Lawyers for Shuman McCuskey Slicer PLLC in Charleston, and the West Virginia Attorney General’s Office filed for a writ of prohibition on behalf of the Department of Health and Human Resources.

Lawyers for Nelson Mullins Riley & Scarborough LLP in Huntington and Raleigh, North Carolina, represent circuit judges Shaffer and Janes.

The DHHR’s lawyers’ brief cites procedural issues, such as whether the state agency was denied a “formal docketed mechanism to seek relief.” But the state agency’s lawyers acknowledge the key issue is whether the court orders are “clearly erroneous as a matter of law.”

“The evidence indisputably demonstrated that Petitioner was taking steps to address the temporary payment issues,” the DHHR’s lawyers wrote. “Due to the scope of services provided by Petitioner, it is impossible to guarantee payment of all invoices within the prescribed time frame required by the Circuit Court.”

“The law surrounding writs of mandamus is well settled that mandamus is unavailable to compel the performance of official duties which are being performed and that mandamus is similarly unavailable where compliance with the mandate of the writ is impossible,” the DHHR’s lawyers wrote.

The lawyers for the judges cited the number of foster care cases and asserted “without a trace of hyperbole, our state is battling an ongoing abuse and neglect crisis” with circuit judges “on the front lines of this battle.”

“The Petitioner, West Virginia Department of Health and Human Resources, now seeks, through these petitions for a writ of prohibition, to constrict the circuit courts’ inherent and statutorily granted authority to ensure effective administration of the child welfare system,” the judges’ lawyers wrote.

But the state’s lawyers say the orders by Janes and Shaffer actually could work to create havoc.

They wrote that “the Circuit Court’s Order regarding payment of socially necessary services creates the potential for conflicting directives from other circuit courts, who may order Petitioner to handle provider invoices differently. The Order itself further directly contradicts Petitioner’s own internal ‘checks and balances’ system in which invoices are reviewed and confirmed accurate prior to payment. As such, Petitioner seeks a Writ of Prohibition prohibiting the Circuit Court’s enforcement of its Administrative Order, removing the time constraint and allowing the Petitioner to continue performing its executive duties without continued interference and oversight by the Circuit Court.”

The judges lawyers insist that circuit judges “have an enormous and vital role within the structure of the child welfare system. The circuit courts are called upon to conduct hearings on an array of issues essential to the functioning of the system, including, but not limited to: judicial review of agency decisions; requests for injunctive relief; and hearings on child custody, outside placement, guardianship, adoption, temporary removal, emancipation, voluntary placement, and juvenile proceedings. ... “

“Indeed, the circuit courts’ oversight role in the system is not only broad but vital to the system’s proper functioning. This Supreme Court of Appeals has held that ‘[c]hild abuse and neglect cases must be recognized as being among the highest priority for the circuit courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability and security.’ ... In fact, this Court repeatedly has stated that ‘a child’s welfare acts as the polar star by which the discretion of the court will be guided,’” the judges’ lawyers wrote.

Key services provided by contracted companies include life skills classes, parenting classes, drug and alcohol screening, counseling for individuals, couples and families, psychological evaluations, psychiatric evaluations, competency evaluations, child care, housing assistance, play therapy, drug-and-alcohol assessments, transportation and tutoring.

Because of the amount of work available, at least some — and perhaps many — of the providers focus solely or mainly on the DHHR work.

“Given the strain of abuse and neglect caseloads on the circuit courts’ docket, an unforced bureaucratic failure — such as neglecting to pay providers for essential services within a reasonable time — is sand in the gears of the wheels of justice. Lapses in payment lead to service delays and those service delays cause interruptions in the resolution of abuse and neglect cases,” the judges’ lawyers wrote.

“Lapses in payment lead to service delays and those service delays cause interruptions in the resolution of abuse and neglect cases. Lapses in services also jeopardize reunification efforts. Parents who are granted supervised visitation with their children do not get to see their children if the providers who supervise those visits are not available. When parents are ordered to attend counseling for substance use disorders and cannot receive those services, it perpetuates generational substance abuse as well as generational trauma,” the judges’ lawyers wrote.

“Such bureaucratic lapses threaten the economic livelihood of the service providers, who often operate on thin margins and shoestring budgets, which in turn jeopardizes the ongoing availability of socially necessary services, especially in our rural counties. Moreover ... the failure of DHHR to make timely payments for these services jeopardizes continued federal funding for the child welfare program statewide.”

Software changes started in October 2022, with Atrezzo coming in as the provider for the state’s Socially Necessary Services Program, and the Families and Children Tracking System giving way to the West Virginia People’s Access to Help system in early January.

The new People’s Access to Help system compounded “an already existing problem with the state’s administrative services organization, KEPRO, who changed its software” in October 2022, according to the lawyers for the judges, citing an affidavit.

The DHHR’s lawyers say they agency worked tirelessly on the issue.

“... the DHHR has worked to apprise its service providers of the status of this temporary delay. Further, public announcements regarding payments are posted on the DHHR website and the DHHR’s social media platforms. these ongoing efforts underscore the DHHR’s work to resolve these problems appropriately within the executive branch of government ... The DHHR also has dedicated staff to resolve the payment issues. ... Summarily, the DHHR has engaged in exhaustive efforts to address a recent and temporary issue caused by new software. The Court’s Administrative Order is inappropriate because it has no expiration date and mandates the manner in which the DHHR manages and internally administers its payment protocols.

“As a result, the Circuit Court’s Administrative Order, which essentially provides unrequested mandamus relief, exceeds the scope of its authority as mandamus relief is not proper in cases such as this, where the entity has worked tirelessly to resolve the very problem the Order seeks to address. More importantly, the relief provided in the Court’s Order is impetuous as the DHHR has diligently worked to address these issues, internally, since it first became aware of any problems. Timely payment of services for the DHHR was a new and recent challenge caused by a change in software technology. The vested authority of the DHHR to manage and administer its efforts to solve internal problems (like its payment processes) has been recognized by the West Virginia Supreme Court of Appeals. Further, the Circuit Court’s Administrative Order presents a potentially impossible mandate, as Petitioner cannot guarantee that payments to its providers will be made within fifteen (15) business days of receipt of all invoices. While the DHHR can and does make every effort to pay all invoices in a reasonable time frame, the DHHR cannot require invoices be submitted on a certain timetable and cannot ensure all invoices do not require a review and confirmation of authorization, lest it be subject to contempt of court.”

The Shuman McCuskey Slicer PLLC lawyers representing the state are Lou Ann S. Cyrus, Natalie C. Schaefer and Shannon M. Rogers, all in Charleston. The lawyer from the West Virginia Attorney General’s Office is Deputy Attorney General Steven R. Compton.

The Huntington-based Nelson Mullins Riley & Scarborough LLP lawyers representing the judges are Marc E. Williams, Thomas M. Hancock and Shaina D. Massie. The firm’s Raleigh, North Carolina — admitted pro hac vice — is D. Martin Warf.

To read the briefs in full, visit: http://www.courtswv.gov/supreme-court/calendar/2023/dockets/10-10-23ad.html.

To watch the arguments, visit: http://www.courtswv.gov/supreme-court/webcast.html