HUNTSVILLE, Ala. (WHNT) — The Alabama Department of Human Resources has responded to a lawsuit filed by Madison-based non-profit Kids to Love by asking a judge to toss the case, or move it to Montgomery, court records show.

Details of the lawsuit have been sealed by an order by Madison County Circuit Judge Donna Pate. Kids to Love says it plans to ask Judge Pate to lift DHR’s June suspension of foster care referrals by Kids to Love.

Kids to Love provides services and homes for foster children in Alabama.

The lawsuit also names top DHR officials. Kids to Love has argued the suspension is not based on policy or the law — and children are suffering while the suspension remains in place.

Last week the Alabama Supreme Court sided with Kids to Love. The court rejected DHR’s arguments that as an agency of the executive branch of government, it was not subject to the jurisdiction of a Madison County Circuit Court. Judge Pate had issued a restraining order against DHR in September, barring it from removing foster children from Kids to Love homes.

DHR Friday filed a motion to dismiss the lawsuit, arguing as a state agency it was immune from being sued and DHR leaders are immune as state employees for actions tied to the performance of their jobs.

Lee Marshall, Kids to Love’s founder and CEO, last week said while DHR is opposing Kids to Love’s work, Kids to Love’s qualified foster families have empty beds. Marshall said Alabama has 6,000 children in foster care and 2,300 licensed foster homes. She addressed DHR’s court filings on Monday.

“The Alabama Supreme Court has spoken,” Marshall said. “This is absolutely another tactic to prolong justice for our kids.”

DHR’s filing argues that DHR Commissioner Nancy Buckner, who is named in the lawsuit, did nothing to justify being sued.

“As previously set forth, Buckner shall be immune from liability in her individual capacity unless she acted ‘willfully, maliciously, fraudulently, in bad faith, beyond …….authority, or under a mistaken interpretation of the law.’ Plaintiff has no allegation that Buckner acted in any manner much less willfully, malicious, fraudulent, in bad faith, beyond her authority or under a mistaken interpretation of law.”

Kids to Love has pointed out that a DHR inspection over the summer found no issues with its facilities or paperwork, but the suspension remains in place. Kids to Love leaders have also argued because the non-profit takes no state money, DHR leadership resents the lack of control over Kids to Love.  

Late last week DHR said in a court filing it will set an administrative hearing on the Kids to Love suspension. Pate also gave Kids to Love until Oct. 27 to reply to DHR’s change of venue motion.

In its court filings, DHR acknowledged Kids to Love’s foster child referral license remains in good standing.