February 13, 2012 The Ninth Circuit Court of Appeals heard oral arguments by NCYL in Henry A. v. Wilden, a foster care reform case against Clark County (Las Vegas), Nevada. The argument in Henry A. v. Willden was held before a three-judge panel at 9 am, Feb. 13 in San Francisco, CA. Brian Matsui, a partner at Morrison and Foerster, NCYL’s co-counsel in the case, argued the appeal for plaintiffs. Mr. Matsui is a member of the firm’s Appellate and Supreme Court practice group, and primarily represents clients in appellate litigation in both federal and state appellate courts. He has briefed and argued a number of cases in the Ninth Circuit, and has been involved in more than 35 cases before the US Supreme Court.
The Nevada District Court dismissed NCYL’s lawsuit in October 2010. NCYL argued in its appeal that the Court erroneously denied foster children the legal protections to which they are entitled. NCYL is seeking review of the District Court’s holding that neither the federal Adoption Assistance Act nor the Child Abuse and Prevention Treatment Act (CAPTA) create a private right of action for plaintiffs to assert constitutional and statutory violations. Additionally, plaintiffs ask for reversal of the Court’s finding that defendants were entitled to qualified immunity because plaintiffs did not establish that the constitution protects certain rights asserted in the lawsuit, such as adequate health screenings and monitoring of psychotropic drug use. Plaintiffs also seek a reversal of the Court’s holding that they did not show that the failure to engage in other activities, such as legally mandated visits with foster children, violates the constitutional duty to protect foster children from harm.
NCYL filed suit in April 2010, seeking unspecified damages for 13 children named in the lawsuit, as well as system improvements for several classes of children that comprise more than half of the 3,600 children in foster care. The classes are: (1) children who have not been appointed anyone to represent them in their court proceedings; (2) children who have not been referred to Early Intervention Services; and (3) children who have not had case plans developed with information foster parents need to properly care for them.
The suit cited countless instances of blatant disregard of federal and state law, substandard judgment, neglect, and active indifference on the part of child welfare officials and caseworkers. In many instances, as described in the lawsuit, their conduct has served to perpetuate abuse by routinely denying foster children stability, health care, and even the most minimal level of safety. In fact, many children are taken from their homes only to be subjected to further abuse, including physical, sexual, or psychological abuse, while in the county’s custody, the suit said.
The stories of named plaintiffs illustrate this harm: defendants 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 more than 40 placements during her 15 years in foster care.
NCYL brought the lawsuit with co-counsel from Morrison & Foerster LLP, and local counsel Wolfenzon, Schulman & Rolles.
