Case: Clark K. v. Guinn

On August 30, 2006, a group of ten children in the Nevada foster system, seeking class action certification for all children in or at risk of entering the Clark County, NV foster system, filed this class-action lawsuit in U.S. District Court for the District of Nevada. The plaintiffs filed under 42 U.S.C. 1983, the Adoption Assistance and Child Welfare Act of 1980 (AACWA), the Child the Child Abuse Prevention and Treatment Act (CAPTA), the Medicaid Act, and state law. The plaintiffs sued a number of parties, including the state of Nevada, the Nevada Department of Health and Human Services, the Nevada Bureau of Services for Child Care of the Division of Child and Family Services, the Clark County Department of Family Services, the Clark County Board of County Commissioners, and Clark County.

The plaintiffs, represented by the National Center for Youth Law and private counsel, asked the court to declare that the defendants had not met their obligations to children in the Clark County foster system, issue a permanent injunction against the foster system, provide for remedial relief to ensure that the defendants complied with their legal obligations toward foster children in the future, and award attorneys fees.

Under federal law, the plaintiffs alleged that Nevada had not placed children in quality placements that comply with national standards, had not provided safe settings that were most family-like, and had not provided adequate health and education records to foster parents or providers at the time of placement. The plaintiffs further alleged that Nevada violated CAPTA by not providing each abused or neglected child with a guardian ad litem in judicial proceedings, and violated the Medicaid Act by failing to provide mandatory Early and Periodic Screening, Diagnostic, and Treatment services so children would be diagnosed with health conditions and receive necessary treatment.

The plaintiffs further alleged that the Clark County foster system had violated substantive due process rights under the Fourteenth Amendment regarding protection from harm while in government custody, right to living environments that protect safety, and other causes. Major causes of action under state law included placing children for extended periods of time in a group facility that was overcrowded and unlicensed, leaving children in dangerous placements with inadequate supervision, and putting children back in homes where they had been harmed.

On September 29, 2006, the Department of Health and Human Services and the Division of Child and Family Services filed a motion to dismiss. On December 11, 2006, the governor of Arizona also filed a motion to dismiss. On January 3, 2007, the Clark County defendants also filed a motion to dismiss.

On May 14, 2007, the District Court (Judge Robert C. Jones) granted the governor's motion to dismiss and dismissed the State of Nevada and the Department of Family Services from the action. The court held that there was not enough of a connection between the office of the Governor and the harms to foster children, so the court dismissed the plaintiffs' claims against the Governor as the representative of the State of Nevada. The court denied the motion to dismiss by the Department of Health and Human Services and the Division of Child and Family Services. The court also granted in part and denied in part the motion to dismiss by the Clark County defendants. The order upheld the plaintiffs' federal claims based on The Federal Adoption Assistance Act with respect to timely case plans, health and educational records, and notice of hearings, CAPTA with respect to providing guardians ad litem, screening and treatment requirements of the Medicaid Act. The court also deferred ruling on class certification. 2007 WL 1435428.

On June 14, 2007, the plaintiffs filed the second amended complaint seeking class action certification on behalf of children in or at risk of entering the Clark County foster system against the above-named parties, excluding the governor, State of Nevada, and Department of Family Services. The plaintiffs alleged violations under the Adoption Assistance and Child Welfare Act, CAPTA, the Medicaid Act, and state law, and asked for declaratory and injunctive relief.

On September 4, 2007, Judge Jones granted defendant's motion to dismiss plaintiffs' claims under § 1983 that Nevada had failed to enforce state statutes providing for the plaintiff's welfare, noting that even if state law says a service is mandatory, that is not a constitutionally protected interest. Judge Jones also dismissed plaintiff's claim that by failing to follow to its state plan under CAPTA and the Adoption Assistance Act, the state programs using federal funding breached a contract with the federal government. The court noted that while plaintiffs may be third-party beneficiaries to the state plan agreement, they have failed to establish that agreements are contracts. 616 F. Supp. 2d 1038.

On March 12, 2008, Judge Robert Johnston, the magistrate judge, ordered the defendants to disclose plaintiffs' foster system case files to plaintiffs' attorneys for the purposes of the trial. The court required the parties to enter a protective order to maintain the privacy of the case file information, and determined that the county was not required to provide documents that were not in its possession as part of discovery.

On March 28, 2008, the plaintiffs renewed their motion for class certification. On July 10, 2008, Judge Jones issued an order dismissing the motion, which said that the plaintiffs had enough members to make a class (numerosity), but did not show enough commonality of interest, typicality of plaintiff type, or meet the adequacy of representation requirement by showing sufficient evidence of a pattern or practice of systemwide violations. The plaintiffs appealed this decision on class certification to the Ninth Circuit.

On October 24, 2008, Judge Jones denied the defendant's motion for reconsideration of the magistrate judge's order allowing discovery to include non-privileged information in the case files of children who have been abused, neglected, or died while in custody of Clark County. Judge Jones stated that this information was appropriate for the plaintiffs to have in the process of trying to certify the class.

On October 27, 2009, the parties jointly moved for dismissal with prejudice and withdrew all motions and appeals, including the pending appeal with the Ninth Circuit for class certification. The plaintiffs and defendants agreed each would pay its own attorney fees and costs. The foster children plaintiffs had all aged out of the system or were adopted. This has been a challenge for attempts to reform the foster system in Nevada through litigation, as cases are often challenged by lengthy delays in proceedings.