In a development cheered by all GALs, the Ninth Circuit has concluded that children in state custody for abuse/neglect have a constitutional right to safety and adequate medical care. Henry A., et al v. Willden, Ninth Cir. Case No. 10-17680 (May 4, 2012). The case concerned a foster care reform suit brought by the National Center for Youth Law (NCYL) against Clark County (Las Vegas), Nevada, which showcased the myriad of horrific injuries sustained with the child welfare system breaks down.
Specific allegations included: "the failure to provide caseworkers with even basic training; the failure to provide foster children and their foster parents with case plans and medical records; the failure to provide foster children with the necessary medical care; the failure to provide foster children with guardians ad litem; the failure to investigate reports of abuse and neglect in foster homes; the failure of Clark County to incorporate state and federal requirements into its child welfare policies; and the failure of the State to ensure that Clark County is operating its foster care system in compliance with federal law."
Some representative plaintiffs included Henry A, who was put in ICU after being given dangerous drug combinations when his medical records were not transferred through his endless changes in medical provider; Jonathan D., who had an impacted colon and could not get medical treatment approved until he endured months of pain and his condition became life threatening; Olivia G., whose foster parent did not have authorization to fill her psychiatric prescriptions, forcing painful withdrawal; and many other children for whom the County had information of physical and/or sexual abuse but did not investigate or protect.
The Court's 34-page decision upheld plaintiff's claims that foster children have a "clearly established due process right to adequate safety and medical care" and that the District Court was "plainly wrong" when it concluded that the County and state and county officials were entitled to qualified immunity.
The Ninth Circuit outlined basic, black letter substantive due process law: that generally the 14th Amendment "does not confer any affirmative right to governmental aid" or "duty ... to protect;" but that a "special relationship exception" arises where "a custodial relationship exists between the plaintiff and the State;" and the "state-created danger exception" exists when "the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a 'known and obvious danger[.]" Reviewing the facts of the case, the Court had no trouble concluding that both exceptions apply in the abuse/neglect foster context.
In regards to the special relationship exception and dismissal of Counts One and Eleven for qualified immunity, the Court noted qualified immunity only applies to claims for money damages against State and Federal officials. Accordingly, the Court concluded the district court's dismissal was "plainly wrong" as to the damages claims against Clark County, and the claims for injuncitve relief. As for the claims for money damages against individual defendants, the Court concluded the officials' conduct (or lack thereof) "violated clearly established law." Although the "very action[s] in question" had not "previously been held unlawful" as the lower court noted, it has been clearly established since 1996 that the State owes a duty to persons in custody, including children in foster care, and that the duty of care includes the right to basic human needs such as food, clothing, shelter, medical care and reasonable safety. Additionally, it was established at the time that foster children have a right to social worker supervision and protection from harm inflicted by a foster parent. Thus, the Court concluded "a reasonable official would have understood that at least some of the specific conduct allged by Plaintiffs violated those rights."
In regards to the state-created danger exception, the lower court had dismissed Count Two for failure to state a claim or, in the alternative, qualified immunity. Citing a dissent opinion, the lower court reasoned that the defendants merely "place[d] foster children into an already broken system" and that complaint did not allege Defendants "did more than simply expose the plaintiff to a danger than already existed." The Ninth Circuit rejected this reasoning as contrary to Ninth Circuit law, noting case law on this exception regularly deals with dangers that already exist and that is not the point. The point is that the State's affirmative actions "creat[ed] or expos[ed] an individual to a danger which he or she would not have otherwise faced." (Citations omitted, emphasis added by Ninth Cir.)
Finally, the Court held the Plaintiffs may seek to enforce through § 1983: the case plan and records provisions of the Child Welfare Act (CWA) (Counts Eight and Three, respectively). These met the Blessing test for whether a federal statue creates an individual right: that Congress intended the provision to benefit the plaintiff; that the right is not too "vague and amorphous;" and that right is couched in mandatory rather than precatory terms. Nor was the resultant presumption of enforceability rebutted by a conflict with another comprehensive enforcement scheme.
(The Court agreed with the lower court that the guardian ad litem provision of the Child Abuse Prevention and Treatment Act (CAPTA) (Count Nine), and the early intervention services provisions of CAPTA (Count Ten), did not meet the Blessing test, and the early intervention services provisions of Individuals with Disabilities Education Act (IDEA) (Count Ten) were precluded by the IDEA's comprehensive enforcement scheme.)
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