On April 13, 2010, a group of children in foster care in Clark County (Las Vegas), Nevada filed this lawsuit in the U.S. District Court for the District of Nevada. The plaintiffs sued the Nevada Department of Health and Human Services, the Nevada Division of Child and Family Services, Clark County, and lark County Department of Family Services under 42 U.S.C. § 1983 and state law. (Previously, NCYL had filed a similar suit on behalf of another group of children, Clark K. v. Willden, in August 2006, but voluntarily dismissed it after the judge decided against certification of the class and all the plaintiffs had either aged out of the system or been adopted. That case can be found at CW-NV-0002 in this Clearinghouse.)

Back in this case, the plaintiffs alleged that County and State officials failed to protect the health and safety of children in foster care. According to the complaint, foster children in the county were denied stability, health care, and, in many cases, even the most minimal level of safety. Many children were taken from their homes only to be subjected to physical, sexual, or psychological abuse while in the county's custody. For example, child welfare officials 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 40 placements in the 15 years she was in foster care. Another child was hospitalized twice in the ICU for near organ failure after being given an overdose of psychotropic drugs.

The plaintiffs sought money damages for thirteen children named in the lawsuit, and systematic improvements for several classes of children that represent more than half of the 3,600 children in foster care in the county. The suit also sought improvements for children who had not had guardians ad litem appointed to represent them in court, children who had not been provided early intervention services, and children who were sent to foster parents without case plans that contain the information needed to properly care for them.

In May 2010, the defendants moved to dismiss this case for failure to state a claim. After extensive hearings and related motions, on Oct. 26, 2010, U.S. District Judge Robert C. Jones dismissed the action, holding that the defendants were entitled to qualified immunity because the plaintiffs failed to assert a clearly established constitutional right. 2010 WL 4362809 (D. Nev. Oct. 26, 2010). The plaintiffs, however, then appealed. On May 4, 2012, the U.S. Court of Appeals for the Ninth Circuit reversed, ruling that foster children have a clearly established constitutional right to safety and adequate medical care. 678 F.3d 991 (9th Cir. 2012) (Fletcher, J.).

On remand, the district court ordered the plaintiffs to file an amended complaint and the defendants to respond. On July 20, 2012, the plaintiffs filed an amended complaint, and in August 2012, the defendants moved to dismiss. Because of the delay that caused by the appeal, however, the plaintiffs had aged out of foster care, moved home with their families, or had been adopted. As a result of the plaintiffs exiting foster care, the district court on remand ruled on February 27, 2013 that only relief in the form of money damages would be available to them, except for the two plaintiffs that remained in the foster care system. 2013 WL 759479 (D. Nev. Feb. 27, 2013). Later, on January 10, 2014, the court further ruled that the two remaining plaintiffs also lacked standing to seek injunctive relief unless the plaintiffs filed a more definite statement supporting their claims as to the nature of the children's case plan deficiencies under 45 C.F.R. § 1356.21(g). 2014 WL 117562 (D. Nev. Jan. 10, 2014).

In the spring of 2014, in the midst of trial preparation and shortly after the plaintiffs served their expert witness reports, the parties entered into settlement talks. The talks resulted in a settlement agreement of $2.075 million dollars in damages, approved on November 18, 2014 and entered on January 9, 2015. About $1.6 million directly benefited the seven former foster children, while $500,000 covered attorney fees and costs for the plaintiffs’ attorneys. On November 12, 2015, the plaintiffs filed a stipulation to close the case, and the district court granted the stipulation on November 16, 2015, closing the case.

Soojin Cha - 07/19/2016


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