Ninth Circuit Hears Oral Argument in Appeal of Dismissal of Las Vegas Foster Care Reform Case
NCYL and co-counsel Morrison & Foerster LLP appeared before the Ninth Circuit Court of Appeals on February 13, nearly 16 months after the Nevada District Court dismissed their foster care reform case, Henry A. v. Willden. Oral argument was held before a three-judge panel of the US Court of Appeals that included Judge Betty Fletcher, Judge Proctor Hug (appearing remotely from Reno), and Judge Richard Paez. Brian Matsui, a partner at Morrison & Foerster’s DC office argued the case for plaintiffs.
Henry A. was filed in April 2010 on behalf of 13 foster children in Clark County, Nevada. The lawsuit alleged that both the County and the State had violated plaintiffs’ constitutional rights and their rights under several provisions of federal statutes Congress enacted to ensure the health and safety of children in foster care. Plaintiffs sought injunctive relief on behalf of three classes of foster children: 1) those denied a Guardian Ad Litem (an advocate in court), 2) those for whom the agency had failed to provide a case plan, and 3) children under 3 for whom no referral had been made for Early Intervention Services. The 13 named plaintiffs also sought damages for the harm suffered while in foster care. The District Court dismissed all of plaintiffs’ claims, and plaintiffs appealed to the US Court of Appeals for the Ninth Circuit. NCYL brought the case along with co-counsel Morrison & Foerster LLP and local co-counsel Wolfenzen Schulman & Ryan.
In its order dismissing plaintiffs’ case, the District Court had said that the plaintiff children were not entitled to enforce certain federal statutes. Specifically, the plaintiffs had brought the lawsuit for violations of their federal statutory right to a case plan, and right to a guardian ad litem (GAL) to represent them at dependency hearings. In essence, the Court held that while the statutes require the state to provide certain services to children in foster care, foster children cannot go to federal court to vindicate those rights.
Brian Matsui, arguing on behalf of the plaintiff foster children, opened his argument by focusing on this issue, explaining why each of the statutory provisions meet the criteria established by the US Supreme Court for enforcement in federal court. The judges, Judge Paez in particular, asked a number of questions about how the Clark County system operates. They gave no indication, however, that they disagreed with plaintiffs’ contention that these statutes create rights that individual foster children can enforce in federal court.
The District Court had also based its decision to dismiss the lawsuit on qualified immunity, a legal doctrine that can apply to individual defendants, such as the head of a foster care agency. However, the District Court had extended it to the county as well as individual defendants. Judge Paez observed, “I never understood that a county had the right to qualified immunity . . . That’s not right, correct?” The County quickly conceded that the District Court had erred in its ruling.
The parties also addressed claims that the County and State violated plaintiffs’ constitutional rights – their 14th Amendment right to “substantive due process.” Plaintiffs complaint included detailed facts about the harm suffered by plaintiff foster children, including defendants’ failure to provide medical and mental health services, and acts of removing them from their homes and placing them into dangerous and inappropriate foster care facilities. These claims were also dismissed by the District Court.
Challenging plaintiffs’ substantive due process argument as too broad, the County argued that the plaintiffs had alleged too many facts in support of their complaint; that the plaintiffs had gone “far beyond” what the legal standard required. Judge Paez rejected defendants’ argument and observed that under their logic “plaintiffs are caught in a trap”: if the plaintiffs had alleged fewer facts, then the defendants would have said they didn’t have enough facts for the case to move forward. In discussing the issues around the constitutional claims, both Judge Paez and Judge Fletcher appeared to imply that plaintiffs had strong enough statutory claims that they need not rely on the constitutional ones alone.
Plaintiff children in Las Vegas have waited more than a year since the lawsuit was dismissed to have their appeal heard. It will now be many more months until the US Court of Appeals for the Ninth Circuit issues a written opinion. Most of the original 13 named plaintiffs have aged out of the Las Vegas foster care system or been adopted. It is too late for them to benefit from the reforms of the system being sought. However, following the argument, plaintiffs are optimistic that the dismissal of their case will be reversed and plaintiffs will finally get their day in court; the chance to vindicate the rights of thousands of children in the Clark County child welfare system.
