Nevada Foster Kids Can Pursue Neglect Claims

     (CN) – Foster children in Nevada can pursue claims that Clark County failed to keep them free from harm, neglected to provide proper medical care and generally mismanaged the foster program, the 9th Circuit ruled Friday.
     In a 2010 lawsuit, the National Center for Youth Law and 13 foster kids alleged a litany of alleged abuses and oversights in the Clark County child welfare system.
     The complaint detailed episodes of children being placed in homes known for abuse, kids left in pain for months after being denied surgery because of bureaucratic mistakes, and lost medical records resulting in dangerous drug mishaps, among other charges.
     U.S. District Judge Robert Clive Jones in Las Vegas dismissed the due-process claims under the 14th Amendment and also rejected several federal statutory claims.
     While agreeing with the lower court’s interpretation of two federal statutes, the 9th Circuit reversed as to the plaintiff’s constitutional claims.
     A three-judge panel in San Francisco unanimously ruled that the foster children had alleged violations of their constitutional rights sufficient at this stage to survive qualified immunity and dismissal.
     “A reasonable official would have understood that failing to authorize Jonathan’s medical treatment despite knowledge of his serious illness and repeated requests from his treating physician amounted to deliberate indifference to a serious medical need,” Judge Betty Fletcher wrote for the panel. “A reasonable official would also have understood that failing to respond to Linda’s reports of physical abuse in her foster home or the numerous reports of abuse in Mason’s out-of-state placement would constitute deliberate indifference to the children’s right to safety in their foster care placements.”
     The panel was less amenable to plaintiffs’ attempts to enforce the guardian ad litem provision of the Child Abuse Prevention and Treatment Act (CAPTA).
     In a matter of first impression for the 9th Circuit, the panel found that “the guardian ad litem provision of CAPTA does not contain … unambiguous rights-creating language.”
     But the courts can enforce the case plan and records provisions of the Adoption Assistance and Child Welfare Act (CWA), as they are “couched in mandatory terms and contain detailed, concrete requirements that are capable of judicial enforcement,” according to the decision.
     The panel refused to reassign the case to a different judge on remand, rejecting the children’s claims on appeal that “Judge Jones has prejudged the merits of the case and expressed hostility toward plaintiffs’ counsel.”
     There is “no indication that Judge Jones is unwilling to follow our instructions on remand,” the panel concluded.

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