Court ruling may open door to monetary damages to Nevada foster children who sue state over their care

By Joe Schoenmann

Friday, May 4, 2012 | 4:41 p.m.

A ruling Friday by the 9th U.S. Circuit Court of Appeals could mean Clark County and state officials no longer will be immune from paying damages resulting from lawsuits involving children in foster care.

A three-judge panel overturned most of a 2010 decision by U.S. District Judge Robert Jones, who had previously dismissed the lawsuit filed by the National Center for Youth Law on behalf of a group of Clark County foster children. The suit was brought against Clark County Department of Family Services, Clark County commissioners, Gov. Kenny Guinn and the Nevada Division of Child and Family Services.

Jones had ruled “qualified immunity” protected the defendants from such lawsuits that sought either monetary or injunctive relief. Friday's ruling directs the case back to the federal trial court.

Bill Grimm, Youth Law’s senior attorney, said Friday’s decision means county and state officials “are likely not immune and must stand trial for damages” in cases involving injuries to foster care children.

The court’s decision, Grimm added, also outlined rules for family services such as creating “case plans” for children. It also upheld a federal statute requiring the state and county to provide a child’s medical and education background to foster parents “so they know the child’s needs and can make sure those needs are met.”

“Overall, what this says is that the courthouse door closed by Judge Jones is now reopened and foster children will be able to seek damages against those who are responsible for violating their constitutional rights,” Grimm said.

The Center for Youth Law originally filed suit in 2006 after the release of a 2005 report by an independent panel reviewing the deaths of 79 foster children from possible abuse or neglect from 2001 to 2004. The Center for Youth Law alleged Clark County’s child welfare system endangered children. The original suit was withdrawn then refiled in 2010 alleging public officials failed to give foster children sufficient health services, including medical, dental and mental care.

The lead plaintiff, “Henry A.,” is a foster child who was given a dangerous cocktail of medications that almost killed him.

The appellate court summarized Henry A.’s case like this: “Henry A. was forced to change treatment providers more than ten times but his medical records were not transferred properly. As a result, Henry was given a dangerous combination of psychotropic medications and was hospitalized in an intensive care unit for two weeks, on the brink of organ failure. Upon release, Henry was administered the same medications again and returned to the ICU.”

Since 2006, Nevada and Clark County have made some progress toward improving foster care.

In 2006, Clark County hired a new director of family services. Director Tom Morton went to work to stop the warehousing of foster children in Child Haven, a center that was designed to house 84 children and 20 infants but at some points housed more than 200 children.

Last year, state Sens. Barbara Cegavaske, R-Las Vegas, and Sheila Leslie, D-Reno, introduced and shepherded through the Assembly a new law requiring foster families to have information of any pharmaceuticals being taken by a foster child.

In April, the University of San Diego School of Law and First Star, a child advocacy group, gave Nevada an A-plus for transparency in reporting child abuse deaths or serious injury. The same report added, however, that “other aspects of the state’s child protection and foster care system may be in serious need of reform.”

Many county officials hadn’t yet read the decision by Friday afternoon. County Commissioner Tom Collins, though, had sharp words for Jones' original decision to dismiss the suit.

“He doesn’t seem to understand local government to make a decision that will stand up in court,” Collins said of the judge. “That’s why he keeps getting overturned.”

Commissioner Steve Sisolak said it’s “obviously a major development.”

“We’re now waiting to see what the district attorney's advice is as it relates to the decision,” he added.

The case is Henry A. v. Willden.