Reflecting on Nevada’s Child Welfare System, Ten Years Later
Ten years ago, a group of foster children, foster parents, relatives, and advocates set out to reform the child welfare system in Clark County, Nevada. Two lawsuits later, the National Center for Youth Law’s legal work in the state concluded when the District Court approved a settlement agreement in the case of Henry A. v. Willden. The January 2015 settlement marked the end of a prolonged struggle.
The reform effort began as a class action, with 13 individual foster children suing on behalf of larger class of thousands of foster children who had suffered harm due to Las Vegas’s abysmal foster care system. The children who brought the case were motivated by a desire to change the system and save other children from experiencing the horrors that they experienced while in foster care. Unfortunately, the judge assigned to the case refused to allow the case to proceed as a class action, limiting the plaintiffs to filing claims for money damages. As a result, while the remaining Henry A. plaintiffs each received much-deserved damages awards to compensate them for the harms they suffered individually, the systemic failures that caused those harms persist. Sadly, a decade later, it is not clear that Clark County’s system is any better than the one that the plaintiffs initially challenged.[1]
Stakeholders Call Out for Help
In 2005, the National Center for Youth Law (NCYL) began receiving calls from concerned citizens in Clark County, Nevada. The previous year, Nevada had switched from a State-run foster care system to a system in which the two largest counties (Clark and Washoe) would run their own systems. Clark County is home to Las Vegas and more than 70% of Nevada’s population.[2] The transition there was not going well. Advocates had heard of NCYL’s work improving child welfare systems in other states such as Utah and Arkansas, and they implored NCYL to come do the same in their state.
NCYL began an investigation and quickly uncovered disturbing trends in Clark County. Children in foster care or known to the foster care system were dying at an alarming rate, and an independent panel later revealed that deaths caused by child abuse and neglect were [3]significantly underreported.[4] During the 2004 federal review of Nevada’s foster care system (the Child and Family Services Review, or “CFSR”), Federal authorities deemed Nevada not in substantial conformity with all seven of the review’s child welfare outcomes.[5] A follow-up State review determined that Clark County had failed to achieve a minimally acceptable level of performance in six of the seven outcome measures.[6] Meanwhile the County’s shelter, that housed many children when they first entered foster care, continued to operate without a license for years after the federal reviewers flagged this issue.[7]
By 2006, stakeholders at the federal and state level were taking notice. The United States Department of Health and Human Services sent a letter to the head of the Nevada and Clark County agencies responsible for child welfare, warning that “the manner in which the continuum of child welfare services is managed in Clark County should be a grave concern to the State.”[8] In turn, the head of the State health and human services agency warned the Clark County child welfare agency that “we continue to receive information indicating serious deficiencies with the [child welfare] system”.[9]
Clark K. Seeks Change for All Children in Foster Care
In August 2006, ten foster children represented by NCYL, brought suit in federal court. In the case entitled Clark K. v. Guinn., they sought to represent a class of all children who were in or were at risk of entering the Clark County foster care system. At the time, there were over 3,600 children in foster care in Clark County.[10] The plaintiffs sued the Governor of Nevada along with State and County officials responsible for the child welfare system. They sought declaratory and injunctive relief to redress harmful, unlawful practices such as: the County’s failure to provide every child in foster care with a guardian ad litem; overcrowding at Child Haven, the unlicensed facility that the county used as an emergency and long-term placement; unanswered or lengthy delays in calls to the Child Abuse Hotline; inadequate training of staff; and lack of responsiveness to complaints of children being abused or neglected in foster care.
From the beginning of the case, the plaintiff foster children faced an uphill battle. The case was assigned to Judge Robert C. Jones of the United States District Court for the District of Nevada. Judge Jones strongly questioned the plaintiff foster children’s claims for system-wide relief. On several occasions, Judge Jones informed the plaintiffs that he would not award relief that involved federal court oversight or an independent monitor of the County’s child welfare system.[11] He also questioned whether plaintiffs’ counsel was acting in the plaintiffs’ best interests by filing a lawsuit for system-wide injunctive relief rather than for money damages.[12]
Nonetheless, even after the defendants filed various motions to dismiss the case, the plaintiffs were able to proceed with their lawsuit relatively intact. The court granted the Governor’s motion to dismiss, which allowed him to exit the case, but refused to let the State agency heads and the Clark County defendants off the hook. In so doing, the court preserved the majority of the plaintiffs’ claims, including claims brought under 42 U.S.C. § 1983 to enforce specific provisions of federal child welfare laws as well as plaintiffs’ constitutional substantive due process claims.
The plaintiffs did not fare as well with their motion for class certification, however. When the plaintiffs initially sought to certify a class in November 2006, the court put off a decision.[13] Although the court found that plaintiffs had demonstrated that the class was sufficiently large (meeting the numerosity prong required for a federal class action), the court questioned whether plaintiffs could meet the requirements of commonality and typicality without gathering further information through the discovery process. This ruling reflected a broader trend in the federal courts of making it more difficult to proceed as a class action by effectively requiring that plaintiffs virtually prove their cases on the merits in order to obtain class certification.[14] After gathering more evidence, the plaintiffs renewed their motion for class certification in March 2008. The court denied the motion, dismissing the plaintiffs’ evidence as simply “anecdotal.”[15] The court also again expressed its belief that the attorneys for the children should be seeking money damages, not system reforms.[16]
The plaintiffs sought and received leave to appeal the class certification denial to the United States Court of Appeals for the Ninth Circuit, indicating that the appeal was likely to succeed. As the appeal was pending, however, the named plaintiffs each exited foster care, either through adoption or because they turned eighteen. With no named plaintiffs currently in care and without a certified class, the plaintiffs voluntarily dismissed their case in October 2009.
Henry A. Seeks System Change and Money Damages
Problems within Clark County’s child welfare system continued with federal reviewers, independent experts, and community members all voicing concern about what was happening to the County’s children. In 2006, a Clark County consultant made a series of troubling findings, including that County workers failed to gather enough information to reasonably assess child safety in more than half of all cases reviewed.[17] The federal CFSR conducted in 2009 showed little improvement from the prior review in 2004, with Nevada failing to achieve substantial compliance with six of the seven outcomes designed to ensure children’s “safety, permanency and well-being.”[18] The Speaker of the Nevada Assembly, who also directed the legal services organization that represented children in foster care, sent a letter to the State and County, describing the failings in the County’s system as “both systemic and of such magnitude as to actually put our clients at risk.”[19]
Armed with lessons learned from the prior lawsuit, NCYL agreed to represent a new group of foster children who also sought to reform the broken foster care system.[20] In April 2010, thirteen foster children filed a new lawsuit called Henry A. v. Willden. This time, the plaintiffs sought money damages as well as injunctive relief. They also changed their approach to proceeding as a class action. Rather than focusing on all children in or at risk of entering foster care, they sought class-wide relief on behalf of three narrower classes of children: (1) children for whom the defendants failed to develop a case plan; (2) children who did not receive a guardian ad litem; and (3) children who did not receive Early Intervention Services. As in Clark K., the plaintiffs sued State and County officials responsible for Clark County’s child welfare system as well as the County itself.
As with the prior lawsuit, the Henry A. plaintiffs and their next friends brought the case to try to improve the foster care system. They had personally experienced the effects of the county’s failures and wanted to ensure that no more children had to suffer what they experienced. The lead plaintiff, for instance, nearly died from drug poisoning after he was given multiple psychotropic medications without appropriate monitoring. Another client, seventeen years old at the time the suit was filed, had been in foster care from the age of eighteen months and had been abused in multiple placements.
After one judge recused himself, the case was assigned to the same judge who had heard the prior case - Judge Jones, now Chief Judge of the district court in Nevada. Six months after the case was filed, he granted the defendants’ motions to dismiss and threw out the case in its entirety. Retracting several of its prior rulings in Clark K., the court held that foster children had no right to enforce federal laws that were designed to protect them. The court also held that the defendants were entitled to qualified immunity and that the plaintiffs had not sufficiently alleged a violation of their constitutional rights.
The plaintiffs successfully appealed to the Ninth Circuit, which revived most of their claims and sent the case back to the Nevada court for further proceedings. The unanimous Ninth Circuit opinion, issued in February of 2013, found that plaintiffs had brought legitimate constitutional claims under the substantive due process clause, based on a right to be free from harm while in the state’s custody. The Ninth Circuit recognized that this right stems from the state’s custodial relationship to foster children, as well as its actions of putting foster children in dangerous situations after removing them from their homes (a “state-created danger” theory). With respect to qualified immunity, the appeals court ruled that the Nevada court was “plainly wrong.”. Of greatest importance for other foster care reform cases across the country, the Ninth Circuit held that foster children can enforce federal laws requiring case plans, including updated health and education records, for each child in foster care.
Although ultimately successful, the appeal process caused the plaintiffs to lose a year and a half in their fight to change the system. During the time that the appeal was pending, three of the plaintiffs turned eighteen and aged out of the system, two returned home to their parents, and six were adopted by friends and relatives.[21] When the Ninth Circuit remanded the case to the district court, only two of the original thirteen plaintiffs remained in foster care in Clark County.
The trial court’s erroneous decision to dismiss the case, even though it was later reversed by the Ninth Circuit, stymied the children’s ability to achieve systemic reform. Once the case was revived, the trial court ruled that the two remaining children in foster care were the only children with “standing” to pursue injunctive relief, effectively ending that avenue of relief.[22] If the children had not been forced to appeal to keep their case alive, they could have proceeded quickly to certify their classes, allowing them to seek system reform on behalf of broader groups of foster children, regardless of whether individual children left foster care.[23] Efforts to obtain information through the discovery process were also put on hold due to the appeal. For instance, the plaintiffs were not able to obtain their own unredacted child welfare case files until December 2012, over two and a half years after they filed suit.
The court’s position regarding the plaintiffs’ standing to pursue injunctive relief – the key mechanism for system reform – has troubling implications for children in foster care. Delay, or the need to appeal, is a serious possibility inherent in any litigation. But the consequences of delay for a foster care class action lawsuit are particularly dire, given that foster children experience frequent upheaval, and may move in and out of foster care several times, particularly in a system as unstable as Clark County’s. Plaintiff Linda E., for instance, had over fifty placements while she was in foster care, and the County unsuccessfully returned Henry A. to his mother at least four times over the course of seven years. Requiring that plaintiff foster children remain in care throughout the course of their lawsuit in order to obtain injunctive relief may very well mean that relief is never attainable.
The court in Henry A. disregarded a legal rule that should clearly apply in these circumstances, where the identity of individuals changes for reasons out of their control, but the harm they are trying to address in court is likely to reoccur, either to them individually, or others in their situation. This “capable of repetition, yet evading review” doctrine has been applied in cases involving pregnancy, school discipline proceedings, and election campaigns.[24] Given the temporary nature of foster care, and that the goal is to help a child leave foster care and achieve a permanent home, this rule should routinely apply in the foster care context as well.[25]
In the Henry A. case, however, the court made clear that the children’s exiting foster care could be fatal to their ability to obtain systemic relief. If all of the named plaintiffs exited foster care, as they did in Clark K., only claims for damages would remain. Indeed, after the court’s ruling, the remaining two Henry A. plaintiffs left foster care as well.
With injunctive relief now off the table, the plaintiffs vigorously pursued their damages cases. They engaged expert witnesses in a variety of fields, including child and adolescent psychiatry and child welfare systems management. Shortly after the plaintiffs served their expert reports, the parties convened at the courthouse in Las Vegas for a mediation conference before Magistrate Judge Peggy Leen. After lengthy negotiations, the parties agreed to a settlement that the district court approved on January 9, 2015. Each of the seven remaining plaintiffs received damages awards ranging from $100,000 to $350,000 for the many harms they experienced while in the Clark County foster care system. The money was placed either in trust or in annuities that will pay out over time.
This settlement and the spotlight brought to bear on the deficiencies of Clark County’s foster care system would not have been possible without the extensive and steadfast support of the private law firms that served as co-counsel in both the Clark K. and Henry A. litigation. Farella, Braun + Martel assisted in Clark K. while Morrison & Foerster along with local counsel Alverson, Taylor, Mortensen & Sanders served as co-counsel in Henry A.
Concerns Persist After a Decade
The victory in Henry A. was bittersweet, both for the clients and for their attorneys. NCYL represented 23 foster children over the course of the Henry A. and Clark K. lawsuits. In both cases, the clients were motivated by a desire to reform the County’s broken child welfare system and to prevent future harm. Sadly, a series of unfavorable court rulings and other hurdles prevented the clients from obtaining the systemic relief that they sought. As a result, Clark County’s child welfare system continues to endanger the lives of the children it is meant to protect.
The concerns regarding child fatalities that compelled NCYL to work in Nevada persist Between January 1, 2011 and June 30, 2015, Clark County had a total of 37 child fatalities and 22 near-fatalities in which the child or family had prior contact with Clark County Child Protective Services (CPS).[26] In nearly 40 percent of these cases, Clark County had three or more prior abuse or neglect reports on file. In one case, a three-month-old died in the home of a family with eighteen prior CPS reports on file. Another case involved the death of a five-year-old whose family had eight prior CPS reports, which included an open physical injury and abuse case at the time of her death.
Public disclosure records show that the number of CPS-involved children who have died or nearly died in Clark County has increased over the past three years. Most notably, there was a 166.67 percent increase in child fatalities from 2013 to 2014 alone, meaning that in 2014, a CPS-involved child died every 23 days on average. Currently, the number of fatalities and near-fatalities recorded in just the first six months of 2015 equals the total number recorded in 2011 and in 2012 (10 each year). If this trend continues, 2015 will see the highest number of child fatalities and near-fatalities recorded in Clark County for at least the past five years.
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Credit: Melissa Adamson[/caption]
Other signs also point to a system in distress. In August 2014, the union representing County child welfare workers filed a petition demanding changes in caseload sizes and safety protocols. The petition, signed by nearly 400 Department of Family Services (DFS) employees, cited caseloads that were two to three times the recommended size.[27] Several months later, emails from the Director of DFS criticizing the caseworkers came to light.[28] The caseworkers’ union fired back a strong response, stating that the union found it to be “impossible and improbable that there can be a solid, working relationship with our executive management when there has been evidence of a lack of overall integrity.”[29]
Federal oversight is completely lacking. The federal government has announced that it will not be conducting a follow-up review of Nevada’s child welfare system until Fiscal Year 2018.[30] This means that there will have been eight years between federal CFSRs for Nevada. It is unclear who, if anyone, will hold Clark County to even minimal standards for protecting children who have been abused and neglected.
Some stakeholders have attempted to address the County’s deficiencies, but whether real change will result from these efforts remains to be seen. In September 2014, a Blue Ribbon Commission was tasked with evaluating Clark County’s child welfare system and making recommendations for improvement.[31] The Commission released its final report in March 2015.[32] The report identified numerous problems that the Clark K. plaintiffs highlighted in their lawsuit nearly ten years ago. These include: the lack of routine appointment of guardians ad litem for children entering the system; placement instability; and difficulties recruiting, training, and retaining quality foster parents.[33] The report states that workgroups and committees will meet to plan for implementation of the report’s recommendations, but it does not set timelines for convening the workgroups.[34] As of the writing of this article, the Commission had posted no updates on its website since the report’s March release.
For Clark County’s long-struggling child welfare system to change, it will take a collective effort from within and from outside of Nevada. There are individuals within the system—dedicated and caring foster parents, caseworkers, advocates—who have been fighting for years to support children in care. But they cannot do this alone, and they need a structure that supports and rewards these efforts. The Henry A. and Clark K. plaintiffs tried to create reform. It is now time for stakeholders at the local, state, and federal levels to take real action to fix the system. Until child welfare becomes a serious priority, Clark County’s most vulnerable children will continue to suffer.
[1] Compare Clark County Blue Ribbon for Kids Comm’n, Moving Forward Together for Clark County’s Children: Blue Ribbon for Kids Commission Final Report 5-6, 16 (2015) (identifying problems with Clark County’s system in 2015) with Complaint at 11, 57-59, 62-63, Clark K. v. Guinn, No. 06-1068 (D. Nev. Aug. 30, 2006) (identifying same problems with Clark County’s system in 2006).
[2] U.S. Census Bureau, State & County Quick Facts: Clark County, Nevada, http://quickfacts.census.gov/qfd/states/32/32003.html.
[4] The panel reviewed 79 child deaths between January 2001 and December 2004 in which child abuse or neglect had not been substantiated. The review concluded that 37 of those deaths (or 47 percent) should have been substantiated as caused by abuse or neglect. Independent Child Death Review Panel for Clark County, Report of Findings and Recommendations: Child Deaths 2001- 2004 (2006).
[5] Children’s Bureau, U.S. Dep’t of Health & Human Services, Final Report: Nevada Child and Family Services Review 2 (2004).
[6] Complaint at 45, Clark K. v. Guinn, No. 06-1068 (D. Nev. Aug. 30, 2006).
[7] Children’s Bureau, supra note 5, at 83; Complaint at 10, 47, 54, Clark K. v. Guinn, No. 06-1068 (D. Nev. Aug. 30, 2006).
[8] Letter from Sharon M. Fujii, Reg’l Adm’r, Admin. for Children & Families, U.S. Dep’t of Health & Human Services, to Michael Willden, Dir., Nev. Dep’t of Health & Human Services (Aug. 11, 2006) (on file with author).
[9] Letter from Michael Willden, Dir., Nev. Dep’t of Health & Human Services, & Fernando Serrano, Adm’r, Nev. Div. of Child & Family Services, to Tom Morton, Dir., Clark County Dep’t of Family Services (Aug. 30, 2006) (on file with author).
[10] Complaint at 13, Clark K. v. Guinn, No. 06-1068 (D. Nev. Aug. 30, 2006).
[11] Transcript of Proceedings at 21-22, Clark K. v. Guinn, No. 06-1068 (D. Nev. Feb. 12, 2007) (on file with author); Status Conference at 6-7, Clark K. v. Guinn, No. 06-1068 (D. Nev. June 18, 2009) (on file with author). These statements carried particular weight in light of the requirement under Federal Rule of Civil Procedure 23(e) that the court must approve a settlement in class action cases. Thus, even if the parties had agreed that an independent monitor was appropriate, if a class had been certified in the case, the court could reject such an arrangement.
[12] Status Conference at 7, Clark K. v. Guinn, No. 06-1068 (D. Nev. June 18, 2009) (on file with author).
[13] Order at 43, Henry A. v. Willden, No. 10-00528, (D. Nev. May 14, 2007).
[14] See, e.g., Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013).
[15] Order at 39-40; Transcript of Oral Argument at 7-9, Clark K. v. Guinn, No. 06-1068 (D. Nev. June 9, 2008) (on file with author).
[16] Transcript of Oral Argument at 7.
[17] Edward E. Cotton, Administrative Review of Child Abuse and Neglect Investigations 10 (2006).
[18] Children’s Bureau, U.S. Dep’t of Health & Human Services, Final Report: Nevada Child and Family Services Review (2010).
[19]Letter from Barbara Buckley, Executive Dir., Legal Aid Center of Southern Nev., to Michael Willden, Dir., Nev. Dep’t of Health & Human Services, & Tom Morton, Dir., Clark County Dep’t of Family Services (Sept. 14, 2008) (on file with author).
[20] The plaintiffs were represented by the NCYL, Morrison & Foerster, and local counsel Wolfenzon Rolle. The Las Vegas-based firm Alverson, Taylor, Mortensen & Sanders later joined the case as counsel for the plaintiff children.
[21] The children who were adopted ultimately decided not to continue pursuing their claims in the case.
[22] Order at 13, Henry A. v. Willden, No. 10-00528, (D. Nev. Feb. 27, 2013).
[23] See Franks v. Bowman Transp. Co., 424 U.S. 747, 755-57 (1976) (finding that the mootness doctrine did not apply where, after the class was certified, the named plaintiff’s individual claims became moot but members of the plaintiff class continued to have live claims).
[24] See Roe v. Wade, 410 U.S. 113, 125 (1973); Honig v. Doe, 484 U.S. 305, 318-20 (1988); Fed. Election Comm’n v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2662 (2007).
[25] For one example in which the court has applied the mootness exception in the foster care context, see Winston v. Children & Youth Services of Del. County, 948 F.2d 1380, 1383-84 (3d Cir. 1991).
[26] This data is based on analysis of child fatality and near fatality reports, made publicly available pursuant to Nev. Rev. Stat. 432B.175, available at http://dcfs.nv.gov/Programs/CWS/CPS/ChildFatalities/FatalityDisclosures/. Data on file with National Center for Youth Law.
[27] Yesenia Amaro, Family Services Union Petitions to Improve Child Welfare, Las Vegas Review-Journal, Aug. 5, 2014, available at http://www.reviewjournal.com/news/las-vegas/family-services-union-petit….
[28] Ben Botkin & Yesenia Amaro, Emails Show Rift Between Family Services Management, Workers, Las Vegas Review-Journal, Nov. 2, 2014, available at http://www.reviewjournal.com/news/las-vegas/emails-show-rift-between-fa….
[29] Id.
[30] Children’s Bureau, U.S. Dep’t of Health & Human Services, Child & Family Services Review Technical Bulletin #7 (2014), available at http://www.acf.hhs.gov/sites/default/files/cb/cfsr_tb7.pdf.
[31] Ben Botkin, Inquiry Launched into Clark County Child Welfare Problems, Las Vegas Review-Journal, Sept. 29, 2014, available at http://www.reviewjournal.com/news/las-vegas/inquiry-launched-clark-coun….
[32] Clark County Blue Ribbon for Kids Comm’n, Moving Forward Together for Clark County’s Children: Blue Ribbon for Kids Commission Final Report (2015).
[33] Id. at 5-6, 16.
[34] See id. at 7.
