AG enters lawmakers’ standoff with DA over child welfare

By David McGrath Schwartz (contact)

Tuesday, Sept. 1, 2009 | 2 a.m.

The state Health and Human Services Department will continue to withhold some funding for Clark County’s foster care system despite a legal opinion from the state attorney general saying all the money must be released.

The newly released opinion finds existing state law isn’t trumped by a portion of the appropriation act making $87 million for Clark County’s child welfare system contingent on the district attorney’s office changing how it handles child welfare cases.

The Health and Human Services Department said that regardless of the attorney general’s opinion, it will release most of the money, for such things as payments to foster care families and social workers, but not $1.5 million set aside for legal services. Legislators have said that was their intent when they passed the bill appropriating the money.

“There’s no legal opinion that specifically outlines the actions that (Department) Director Mike Willden has taken, but Mike’s conscience tells him that this is in the best interest of the state,” said Health and Human Services spokesman Ben Kieckefer. “It’s not completely inconsistent with existing law or legislative intent.”

At issue: Clark County District Attorney David Roger sends an attorney to argue against the Clark County Family Services Department in some child welfare hearings — when it’s being debated whether a home is safe for a child, or in cases in which the office disagrees with the agency’s findings or recommendations.

Roger responded to the state’s refusal to release the $1.5 million Monday by saying: “I guess we’re going to have to litigate this issue in court.”

Roger has maintained that under state law he can send more than one attorney to child welfare hearings, using what is known in child welfare circles as a “prosecutorial model.” Other Nevada counties, Clark County’s Family Services Department, the Health and Human Services Department and legislative Democrats favor a system in which the district attorney represents the agencies’ position, under the belief that caseworkers have the expertise to determine what’s best for the child. This is known as the “agency model.”

Both sides argue that their favored system best protects children.

Legislators tried to pass legislation this session clarifying which model Roger must follow, but the bill failed.

Assembly Democrats then inserted into one of the budget bills this provision: “The appropriation of all of the sums ... are dependent upon all funds, whether state or local, being used in a manner such that the child welfare agencies are the sole client of the district attorneys in each case.”

The bill’s language seems clear — all $87 million that the state pays for the child welfare system would be held up unless Roger changes his position. But legislators said the intent was for only the $1.5 million that pays for attorneys to be contingent on Roger’s policy.

Willden has followed that interpretation, with Kieckhefer saying the state would not let the county’s child welfare system collapse.

“It’s not a policy Mike put in place, but he’s trying to live with it while still maintaining the child welfare system,” Kieckhefer said. “His biggest burden is making sure kids are looked after. That’s what he cares about more than anything.”

If the dispute does go to court the attorney general’s office will still represent Willden and the department despite their not following the attorney general’s legal opinion, according to Edie Cartwright, spokeswoman for Attorney General Catherine Cortez Masto.