NCYL Appeals Dismissal of Foster Care Reform Case in Las Vegas

NCYL has appealed to the 9th Circuit a recent District Court dismissal of its lawsuit against Nevada officials to reform the foster care system in Clark County (Las Vegas). The appeal argues that the Court erroneously denied foster children the legal protections to which they are entitled.

Acting on a motion by county and state defendants, US District Court Judge Robert Jones granted dismissal of the suit (Henry A. v. Willden) pertaining to the federal claims, and declined to exercise jurisdiction over the remaining state claims.

In their appeal, plaintiffs seek review of Judge Jones’s holding that neither the federal Adoption Assistance Act nor the Child Abuse and Prevention Treatment Act (CAPTA) create a private right of action for plaintiffs to assert constitutional and statutory violations. Additionally, plaintiffs ask for reversal of his finding that Defendants were entitled to qualified immunity because plaintiffs did not establish that the constitution protects certain rights asserted in the lawsuit, such as adequate health screenings and monitoring of psychotropic drug use.  Plaintiffs also seek a reversal of Judge Jones’s holding that plaintiffs did not show that the failure to engage in other activities, such as legally mandated visits with foster children, violates the constitutional duty to protect.

NCYL filed suit in April 2010, seeking unspecified damages for 13 children named in the lawsuit, as well as system improvements for several classes of children that comprise more than half of the 3,600 children in foster care. The classes are: (1) children who have not been appointed a guardian ad litem to represent them in their court proceedings; (2) children who have not been referred to Early Intervention Services; and (3) children who have not had case plans developed with information foster parents need to properly care for them.

The suit cited countless instances of blatant disregard of federal and state law, substandard judgment, neglect, and active indifference on the part of child welfare officials and caseworkers. In many instances, as described in the lawsuit, their conduct has served to perpetuate abuse by routinely denying foster children stability, health care, and even the most minimal level of safety. In fact, many children are taken from their homes only to be subjected to further abuse, including physical, sexual, or psychological abuse, while in the county’s custody, the suit said.

The stories of named plaintiffs illustrate this harm: defendants placed an infant and her older brother in a foster home where the baby was locked in a closet and her brother was beaten when he tried to help her.  Another plaintiff, now 18, has been in foster care for 15 years and shuttled through more than 40 placements.

Since 2003, more than 10 studies and reports have documented the defendants’ failure to protect the health, safety, and well being of child abuse victims and children in foster care. Defendants themselves commissioned many of these reports.

NCYL previously sued to reform the child welfare system in Las Vegas on behalf of different plaintiffs and a different class.  That suit (Clark K.), filed in 2006, was dismissed by plaintiffs last year after Judge Jones declined to certify the class, and all the plaintiffs had either aged out of the system or been adopted.

Many of the problems cited in NCYL’s initial 2006 lawsuit persist or have worsened. A 2009 review of Nevada’s child welfare system by the US Department of Health and Human Services found the state did not meet federal standards for child safety, staff and caregiver training, and children’s physical and mental health, among others.

The Center renewed its efforts on behalf of current and future foster children who will continue to suffer until state and county child welfare officials make essential changes to ensure children’s safety and well-being.

NCYL brought the lawsuit along with co-counsel from Morrison & Foerster LLP, including partner and NCYL board member Lori Schechter, and local counsel Wolfenzon, Schulman & Rolles.