Plaintiffs in Henry A. Move Towards Trial

On February 27, 2013, U.S. District Court Judge Robert C. Jones of Nevada issued a decision clearing the way for the foster children in Henry A. v. Willden to proceed to trial. With discovery set to end in late October this year, trial is likely to begin in early March 2014.

Judge Jones’ decision addresses the state and county defendants’ second round of motions to dismiss the plaintiff foster children’s constitutional and federal statutory claims. Jones had previously granted their first round of motions to dismiss, but the plaintiffs appealed and the United States Court of Appeals for the Ninth Circuit reversed his order.

NCYL, along with co-counsel Morrison and Foerster, and Alverson Taylor Mortenson & Sanders, filed the Henry A. lawsuit in April 2010 on behalf of twelve children and youth ranging in age from three to nineteen years old, some of whom have spent most of their lives in the custody of the Clark County (Las Vegas) Department of Family Services (DFS). All but two of the children have been adopted or returned to their parents since the lawsuit was originally filed. While in foster care, the plaintiffs were deprived of adequate medical care, abused or neglected by the caregivers in whose homes or institutions DFS placed them, placed with foster parents who were not given accurate information about their special needs, administered multiple psychotropic medications whose risks and side effects were not adequately monitored, and shuttled between as many as forty different foster care placements. In one particularly horrifying case, a baby girl and her older brother were placed in a foster home where the baby was locked in a closet, and her brother was beaten when he tried to help her. The plaintiffs are seeking damages for the harms suffered while in the county’s custody, and injunctive relief that would help to prevent other children in foster care from suffering similar harms.

Plaintiffs sued two groups of defendants: state officials as well as Clark County itself and county officials and employees. The state defendants include Michael Willden, Director of the Nevada Department of Health & Human Services, and past and current Administrators of the Nevada Division of Child and Family Services. The county defendants include Clark County, its past and current county managers, the county’s past and current directors of the Department of Family Services, and some of the caseworkers and supervisors responsible for the plaintiffs while they were in foster care.

In their original complaint, the plaintiffs alleged violations of their constitutional rights as children in foster care, as well as rights granted to them under several federal statutes, including the Adoption and Safe Families Act, a 1997 federal law addressing the health and safety needs of children in foster care. Judge Jones dismissed the lawsuit in October 2010 and plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. In a unanimous opinion written by Judge Betty Fletcher, the Ninth Circuit reversed Judge Jones’ order dismissing the lawsuit. The opinion, issued May 4, 2012 held that: (1) the plaintiffs had stated violations of their constitutional (Substantive Due Process) rights under the Fourteenth Amendment, (2) federal law establishes a foster child’s right to case plans containing all the specific elements listed in the federal statute, and (3) federal law establishes a right to a case review procedure under which information about a child's health and education record is reviewed, updated, and given to the child’s foster care provider. The Ninth Circuit upheld Judge Jones’ decision that the federal Child Abuse Prevention and Treatment Act did not bestow an enforceable right to appointment of a Guardian ad Litem (someone to represent the child’s best interests in court) for each child in foster care.

Following the Ninth Circuit’s decision breathing life back into the lawsuit, the case went back to Judge Jones in Nevada. The Ninth Circuit’s decision had noted some deficiencies in the plaintiffs’ complaint, but said Judge Jones should have allowed the plaintiffs to amend their complaint before dismissing the suit outright. Specifically, the Ninth Circuit’s commented that the complaint did not allege sufficient “personal knowledge of the specific constitutional violations that led to Plaintiffs’ injuries or that they [state officials] had any direct responsibility to train or supervise the caseworkers employed by Clark County,” Henry A., et al v. Willden et al., 678 F.3d 991, 1004 (9th Cir. 2012). The plaintiffs filed an amended complaint addressing this and other issues on July 20, 2012. The defendants then filed a second round of motions to dismiss the lawsuit in August 2012. State officials argued that they were not personally liable for any damages resulting from the alleged violations of foster children’s rights, despite the fact that plaintiffs had amended their complaint to address this issue. In their amended complaint plaintiffs drew a line from state defendants’ obligations as overseers of the foster system to the harms experienced by foster children. For example, state officials knew that Clark County was not making sure that foster children were provided with the mental health services they needed, they failed to monitor the health and safety of children put on psychotropic medications, they failed to have case plans for a almost half of all children in foster care, and they failed to conduct adequate investigations of child abuse reports.

On February 27, 2013, Judge Jones issued the order granting the defendants’ motions to dismiss in part, but keeping certain claims alive. The first four pages of the 29-page order go into significant detail about the harms experienced by the plaintiff foster children while in the defendants’ custody. However, in granting state defendants’ motion on the basis of a lack of supervisory liability, Judge Jones focused on a lack of “connection [between Willden and Comeaux] with any failing with respect to a particular plaintiff.” While acknowledging that many of plaintiffs’ new allegations of specific knowledge “are of most concern,” Jones concluded “these allegations of knowledge of general problems do not indicate acquiescence or indifference to failures in any particular case or even generally.”

The state defendants also argued that the federal right to a “case plan” was limited to an “initial” case plan – one completed within sixty days of the child entering foster care. They contended that no matter how long a child remained in care beyond sixty days, they had no further right to a case plan once an “initial” case plan was provided. Without referring to the Ninth Circuit opinion recognizing a right to a case plan, or any other court decisions upholding the right to a case plan, Judge Jones adopted defendants’ truncated view of the “case plan” right.

County defendants echoed the state's case plan argument, and also argued that the “next friends” of the named plaintiffs should be compelled to disclose their identities publicly. Because all of the plaintiffs were children at the time the lawsuit was filed, they were required by federal court rules to file the lawsuit though a “next friend”, an adult who could represent their interests in court. The named plaintiffs and the next friends all used pseudonyms to protect their identities, as is common in these types of cases. Judge Jones rejected the county’s argument that the next friends’ identities should be disclosed, based on the fact that such disclosure would “easily cause Plaintiffs themselves to be identified.”

Much of the rest of the order was devoted to a discussion of plaintiffs’ negligence claims and the defendants’ entitlement to “discretionary immunity” under state law. Discretionary immunity protects state officials from lawsuits based on actions they take in the course of their jobs that require an exercise of discretion, as opposed to tasks they are required to perform without any room for discretion (“ministerial” tasks). Judge Jones held that Nevada statutes mandating the investigation of suspected child abuse reports and requiring foster parents be provided with a child’s medical and behavioral history before placement establish nondiscretionary, “ministerial” tasks. Because the defendants are not protected from being sued based on a failure to perform these tasks, Judge Jones upheld the negligence claims of several plaintiffs. Judge Jones also identified two “ministerial tasks” under federal statutes which might support a claim for damages: (1) defendants’ failure to provide each child in foster care with a case plan, and (2) defendants’ failure to provide the child’s foster parents with health and education information about the child placed in their home. However, he concluded that because the Nevada legislature failed “to adopt the federal statute in some way”, there can be no negligence claim based on the federal statutes.

In a footnote, Judge Jones expressed his view that the true responsibility for the suffering experienced by the individual children falls at the feet of the parents and foster parents, not the agencies who placed the children in their homes, or failed to remove them when appropriate:

"The Court states no opinion on whether the State’s or County’s choices were 'poor' in these cases. All parties can agree that the circumstances presented in this case are terrible, and that the ultimate responsibility for the suffering in these cases was the bad parents and foster parents involved. The Court is aware that welfare agencies, like most public agencies, face difficult dilemmas with no 'good' options in many instances and must make the best decision they can with the resources available…"

While lamenting the difficult situation faced by public agencies, the footnote does not acknowledge the fact that constitutional and statutory obligations to protect the safety and well-being of foster children exist regardless of resources.

The case moves forward now with a limited number of the original claims remaining, mostly those claims for damages for the individual foster children based on harms they suffered while in foster care. Plaintiffs have also been given a chance to amend some of the claims that were dismissed. The case will move forward with discovery, and eventually to a jury trial, most likely in March 2014.