NCYL Wins Major Victory for Las Vegas Foster Children

Ninth Circuit Overturns Dismissal of Foster Care Reform Case; Upholds Constitutional Right of all Foster Children to Safety and Adequate Medical Care

NCYL has won a major victory on behalf of foster children in Clark County (Las Vegas), Nevada. The US Court of Appeals for the Ninth Circuit overturned a lower court’s dismissal of the foster care reform case brought by NCYL on behalf of Clark County's abused and neglected children. The Court ruled that these children have a constitutional right to safety and adequate medical care, and said that the county, and county and state officials, are liable if they fail to ensure those constitutional rights are protected.

In a 34-page decision issued May 4, the three-judge appellate panel unanimously ruled that the District Court erred in its decision to dismiss plaintiffs’ claims for damages suffered by 13 individual children, as well as for systemic reform of Clark County’s foster care system.

The appellate panel included Judges Judges Betty B. Fletcher, Richard Paez, and Proctor Hug.

The Court upheld plaintiffs’ claims that foster children have a “clearly established due process right to adequate safety and medical care” and that the District Court was “plainly wrong” when it concluded that defendants in the case – Clark County, and county and state child welfare officials – were entitled to qualified immunity against plaintiffs’ claims.

The Court ruled that child welfare officials are obligated to provide foster parents and other caregivers a case plan for each child, including up-to-date health and education records and a plan for ensuring the child’s placement and educational stability.

“The Courtroom doors have been reopened,” said NCYL Senior Attorney Bill Grimm, lead counsel in the case. “We will act swiftly to move this case forward and seek justice for these children. They have suffered long enough.”

The case, Henry A v. Willden, will now go back to the trial court in Las Vegas.

NCYL and co-counsel Morrison & Foerster LLP appeared before the Ninth Circuit last Feb. 13, nearly 16 months after the Nevada District Court dismissed their case. Henry A. was filed in April 2010, alleging that the county and state had violated plaintiffs’ constitutional rights and their rights under federal statutes enacted to ensure foster children's health and safety. 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, defendants’ 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 stories of named plaintiffs illustrate this harm: Plaintiff Henry A was forced to change treatment providers more than 10 times, but his treatment records were not transferred properly. As a consequence, he was given a dangerous combination of psychotropic medications that landed him in a hospital Intensive Care Unit with near-organ failure. In another instance, 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 was shuttled through more than 40 placements during her 15 years in foster care.

The District Court dismissed all of plaintiffs’ claims, and plaintiffs appealed to the Ninth Circuit. NCYL brought the case along with Morrison & Foerster and local co-counsel Wolfenzen Schulman & Ryan.