Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 1 of 73

1 BRUNO WOLFENZON, ESQ.

Nevada Bar No. 6177 2 GREGORY M. SCHULMAN, ESQ.

Nevada Bar No. 5766 3 WOLFENZON SCHULMAN

4

4530 South Eastern Avenue, Suite 9 Las Vegas, Nevada 89119

5 (702) 836-3138 (702) 836-3139 fax no.

6 Co-attorneys for Plaintiffs

CLARK K., JALEN A., SIA A., ROSHAUN A.,

7 CALEB A., KING A., TONI B., SUMMER B.,

FRANK B., and DONNA C. 8

9

WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar

10 Will comply with LR IA 10-2 within 21 days LEECIA WELCH, ESQ.

11 California Bar No. 208741

Will comply with LR IA 10-2 within 21 days

12 BRYN MARTYNA, ESQ.

California Bar No. 239852 13 Will comply with LR IA 10-2 within 21 days

14

NATIONAL CENTER FOR YOUTH LAW

15 405 14th Street, 15th Floor Oakland, California 94612

16 (510) 835-8098 (510) 835-8099 fax no.

17 Co-attorneys for Plaintiffs

CLARK K., JALEN A., SIA A., ROSHAUN A., 18 CALEB A., KING A., TONI B., SUMMER B.,

FRANK B., and DONNA C. 19

20

21

22

23

24

25

26

27

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1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

4 CLARK K.1, by his next friend Sherry

) CASE NO:

Anderson; JALEN, SIA, ROSHAUN,

) JUDGE:

5 CALEB, and KING A., by their next friend )

Tarrah Logan; TONI, SUMMER, and

)

6 FRANK B., by their next friend Marilyn ) COMPLAINT

Paikai; and DONNA C., by her next friend ) (CLASS ACTION ALLEGED)

7 Jacquelyn Romero,

)

)

8

Plaintiffs,

)

)

9

vs.

)

)

10

)

)

11 KENNY C. GUINN, Governor of Nevada; )

MICHAEL WILLDEN, Director of the )

12 Nevada DHHS; FERNANDO SERRANO, )

Administrator of the Nevada Division of )

13 Child and Family Services; PAULA A.

)

HAWKINS, Bureau Chief of the Bureau of )

14 Services for Child Care of the Division of )

Child and Family Services; VIRGINIA

)

15 VALENTINE, Clark County Manager;

)

CLARK COUNTY DEPARTMENT OF )

16 FAMILY SERVICES; TOM MORTON, )

Director of Clark County Department of )

17 Family Services; LOUIS PALMA, Manager )

of Shelter Care for the Clark County

)

18 Department of Family Services; BRUCE L. )

WOODBURY, TOM COLLINS, CHIP )

19 MAXFIELD, YVONNE ATKINSON

)

GATES, MYRNA WILLIAMS,

)

20 LYNNETTE BOGGS MCDONALD, and )

RORY REID, Clark County Commissioners; )

21 and CLARK COUNTY,

)

)

22

Defendants.

)

)

23

)

24 COMPLAINT (CLASS ACTION ALLEGED)
25

26

27 1 Plaintiffs are proceeding under fictitious names and satisfy the requirements of Rule 10(a) of the Federal Rules
of Civil Procedure. Pseudonym litigation should be permitted in this case because plaintiffs meet the following
28 requirements laid out in Rule 10(a): plaintiffs are children; they are challenging governmental activity; and
pressing the lawsuit using their real identities would compel plaintiffs to reveal highly intimate information.
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1

I.

2

JURISDICTION AND VENUE

3

1. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,

4 1343, and 1367. Plaintiffs’ action for declaratory and injunctive relief is authorized by 28

5 U.S.C. §§ 1343, 2201, 2202, and by Fed. R. Civ. P. 57 and 65.
6 2. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of
7
the events or omissions giving rise to the claims in this case arise in this district. 8

9

II.

10

THE PARTIES

11

3. Plaintiff Clark K. is a seventeen-year-old boy who has been in the legal

12 custody of Clark County Department of Family Services (“Clark County DFS”) since July

13 2003. He currently resides in Clark County, Nevada in the home of his grandparents who
14 have been licensed foster parents for Clark County. Clark appears in this action by his next
15 friends, Sherry Anderson who is his paternal grandmother.
16 4. Plaintiffs Jalen A., an eight-year-old boy; Sia A., a seven-year-old girl;
17 Roshaun A., a five-year-old boy; Caleb A., a four-year-old boy; and King A., a one-year-old
18 boy, are all siblings. They have been in the legal custody of Clark County DFS since
19
20 December 2004. They currently reside in a foster home in Clark County, Nevada. Jalen, Sia,
21 Roshaun, Caleb, and King appear in this action by their paternal aunt, Tarrah Logan, who is

22 acting as their next friend. The children lived with Tarrah at various points in their lives,

23 sometimes for as long as nine months, prior to their placement in foster care in December

24 2004. When they were taken into foster care, she visited them regularly. She is currently the
25 legal guardian of the children's oldest and youngest siblings. 26
5. Plaintiffs Toni B., a four-year-old girl; Summer B., a seven-year-old girl; and 27
Frank B., a five-year-old boy, are siblings. They have been in the legal custody of Clark 28
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1 County DFS since October 3, 2002. They currently reside in a foster home located in Clark

2 County, Nevada. Toni, Summer, and Frank appear in this action by their next friend, Marilyn
3 Paikai. Mrs. Paikai has been a shelter/foster parent for Clark County since October 2001.
4 She was the foster parent for Toni for more than two years, and has provided care for and is 5
familiar with Toni’s siblings, Summer and Frank. 6
6. Plaintiff Donna C. is a five-year-old girl who has been in the legal custody of 7
Clark County DFS since December 2004. She currently resides in a foster home in Clark 8 9 County, Nevada. Donna appears in this action by her next friend, Jacqueline Romero. Mrs.
10 Romero is a Clark County foster parent who previously cared for Donna.

11

7. Defendant Kenny C. Guinn is the Governor of Nevada, and is sued in his

12 official capacity. He is responsible for ensuring that all Nevada agencies comply with the

13 applicable federal and state laws, and oversees and directs the activities of Nevada
14 Department of Health and Human Services (“Nevada DHHS”) and Nevada Division of Child
15 and Family Services (“State DCFS”), pursuant to Nev. Rev. Stat. § 232.310. His business
16 address is Capitol Building, 101 N Carson Street, Carson City, NV 89701.
17 8. Defendant Michael Willden is the Director of Nevada DHHS, and is sued
18 in his official capacity. He is the executive head of Nevada DHHS, and establishes
19
20 departmental goals, objectives, and priorities; approves divisional budgets; and delegates to
21 the division heads such authorities and responsibilities as he deems necessary for the efficient

22 conduct of the business of Nevada DHHS, pursuant to Nev. Rev. Stat. § 232.070. He is also

23 responsible for appointing divisional directors, pursuant to Nev. Rev. Stat. § 232.320,

24 including the Administrator of State DCFS, which has responsibility for ensuring the
25 provision of child welfare services throughout the state. His business address is 505 East 26
King Street, Room 600 Carson City, NV 89701-3708. 27

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1

9. Defendant Fernando Serrano is the Administrator of State DCFS, and is sued in

2 his official capacity. He is responsible for the administration and oversight of all functions of

3 State DCFS. State DCFS administers all federal funds granted to the State for child welfare

4 services; it must adopt regulations establishing uniform standards for child welfare services

5 provided by the counties and is charged with monitoring the delivery of all child welfare
6 services by Clark and Washoe Counties. His business address is 711 East 5th Street, Carson
7
City, NV 89701. 8

9

10. Defendant Paula A. Hawkins is the Bureau Chief of the Bureau of Services for

10 Child Care (“the Bureau”) of State DCFS, and is sued in her official capacity. She is

11 responsible for overseeing the functions of the Bureau, which are statewide and include the

12 incorporated areas of Clark County. The Bureau is responsible for licensing, monitoring, and

13 providing technical assistance to facilities caring for five or more children not licensed by
14 local entities to reduce the risk of harm to children in care outside of their own homes,
15 pursuant to Nev. Rev. Stat. § 424. Her business address is 400 W. King St, Suite 230, Carson
16 City, Nevada 89703.
17 11. Defendants Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne
18 Atkinson Gates, Myrna Williams, Lynette Boggs McDonald, and Rory Reid are the seven
19
20 members of the Clark County Board of County Commissioners. The Board of County
21 Commissioners is responsible for running the County government, including hiring a County

22 Manager who is responsible for the day-to-day administrative operations of the County

23 government. Their business address is 500 Grand Central Parkway, Las Vegas, Nevada

24 89106.

25

12. Defendant Clark County is subject to the jurisdiction of this court. With the

26 passage of Assembly Bill 1 in 2001, for counties with a population over 100,000,
27 responsibility for the funding and provision of child welfare and child protective services in
28

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1 that county was transferred from State DCFS to the county agency. Clark County has a

2 population of over 100,000 and is responsible for providing funding in an amount set by the

3 County for the provision of child welfare services in the county.

4

13. Defendant Virginia Valentine is the Clark County Manager, and is sued in her

5 official capacity. She is responsible for managing the County’s $5 billion budget and
6 providing administrative oversight for all County departments, including the Department of
7
Family Services. Her business address is 500 S. Grand Central Parkway, Las Vegas, NV 8

9 89155.

10

14. Defendant Clark County DFS has its principal place of business in Clark

11 County, Nevada. Clark County DFS is responsible for administering and providing all child

12 welfare services for abused and neglected children in Clark County, including child protective

13 services and shelter care, pursuant to Nev. Rev. Stat. § 432B.030.

14

15. Defendant Tom Morton is the Director of Clark County DFS, and is sued in his

15 official capacity. He is the executive officer of Clark County DFS and is responsible for
16 administering child welfare services in Clark County and for ensuring the safety and well-
17 being of children in or at risk of entering the child welfare system pursuant to Nev. Rev. Stat.
18
§ 462B. His business address is 701 N. Pecos Rd, Bldng K, Las Vegas, Nevada 89101. 19

20

16. Defendant Louis Palma is the Manager of Shelter Care for the Clark County

21 DFS, and is sued in his official capacity. He is responsible for oversight of all shelter care

22 facilities and programs in Clark County, which includes the day-to-day operations of Child

23 Haven. His business address is 701 N. Pecos Rd, Las Vegas, Nevada 89101.

24

III.

25

INTRODUCTION

26 17. This civil rights class action lawsuit is brought by ten children on behalf of all
27 abused and neglected children who are in, or at risk of entering, the Clark County foster care
28

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1 system. Plaintiffs seek declaratory and injunctive relief to compel Nevada and Clark County

2 officials to meet their legal duties under federal and state law to protect and care for abused

3 and neglected children.

4

18. During 2004, there were 8,979 investigations of child abuse or neglect reports

5 in Clark County. During the same year, 4,548 children entered foster care. There are
6 currently over 3,600 children in the legal custody of Clark County placed in foster family
7
homes, group homes, unlicensed and/or unpaid relative homes, and other settings. 8

9

19. Until 2004, Nevada operated a bifurcated child welfare system in which the

10 state’s two counties with populations of over 100,000 – Clark and Washoe Counties – were

11 responsible for providing child protective services, while the State bore responsibility for

12 providing foster care services. As a result of AB 1, passed by the Nevada State Legislature in

13 2001, responsibility for both child protective services and foster care were vested with Clark
14 and Washoe Counties. The State retained responsibility for supervision and oversight of
15 Clark and Washoe Counties’ programs to ensure, among other things, compliance with
16 federal and state laws, regulations, and standards. The transfer of foster care staff and
17 services from the State to Clark County was completed in October 2004.
18 20. Clark County’s child welfare system is in crisis. Virtually every aspect of the
19
20 County’s child protective services and foster care system is failing the children and youth it is
21 charged with protecting. The County’s child welfare system denies children their rights under

22 the Federal and State Constitutions, laws, regulations, policies, and accepted professional

23 standards.

24

21. The County and State’s failures have resulted in harm to an untold number of

25 children. A recent state report indicates that within the last four years at least 79 children 26
have died from abuse or neglect. These victims of fatal injuries or neglect include children in 27

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1 foster care and children left at home following a substantiated report of abuse. Many of their

2 deaths were preventable.

3

22. Within the past two and a half years, one study after another has documented

4 Clark County’s failure to protect the health, safety, and well-being of child abuse victims and

5 children in foster care. These studies include:
6  A February 2004 federal Child and Family Services Review (“CFSR”) of
7

Nevada’s child welfare system that included an audit of Clark County’s system 8

9

(“2004 Federal Review”);

10

 An April 2004 Audit of Child Haven and the Clark County Shelter Home

11

Program conducted by the Audit Department of Clark County (“2004 County

12

Audit”);

13

 An April 2005 Report to the Clark County Commissioners on the Status of

14

Child Welfare Services (“2005 County CWS Report”);

15  A June 2005 report of a review of child abuse fatalities in Clark County
16 conducted by the Child Welfare Institute of which Defendant Morton was the
17 former director (“2005 CWI Review”);
18

 An October 2005 case review of Clark County child abuse and foster care 19

20

cases conducted by State DCFS (“2005 County Case Review”); and

21

 An April 2006 Report of the Findings and Recommendations: Child Deaths

22

2001-2004 describing the results of an independent child death review panel

23

investigation of deaths related to child abuse or neglect in Clark County (“2006

24

Child Fatality Report”).

25

23. During July 2006, representatives of the Administration for Children and

26 Families of the United States Department of Health and Human Services (“Federal DHHS”)
27 conducted a site visit to reassess Clark County’s child welfare program. Federal officials
28

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1 concluded that the situation for children and families served by Clark County’s child welfare

2 system “has worsened” since officials’ earlier on-site visit in February 2004. Some of the

3 specific deficiencies reported by federal officials include:

4  The State’s acquiescence in Clark County’s continued use of an unlicensed

5 congregate care facility – Child Haven;
6  Consistent overcrowding at Child Haven;
7
 Unnecessary removal of children from their homes due to Clark County’s 8

9

failure to provide an adequate array of services to prevent placement;

10

 Frequent changes in placement of children in foster care;

11

 Inadequate assessments of the safety of suspected victims of child abuse and

12

neglect;

13

 Inadequate training of staff and insufficient recruitment of foster parents;

14

 Unanswered or lengthy delays in answering calls to the Child Abuse Hotline;

15  The use of an invalid, ineffective risk assessment tool;
16  The failure to use data to provide effective management oversight and
17 supervision;
18
 And the failure to provide a guardian ad litem for every child in foster care. 19

20

24. In a letter to Nevada child welfare officials on August 11, 2006, Sharon M.

21 Fujii, the Regional Administrator for the Administration for Children and Families of Federal

22 DHHS, informed Nevada that “the manner in which the continuum of child welfare services is

23 managed in Clark County should be a grave concern to the State.” She notified state officials

24 that the current Program Improvement Plan between the State and federal officials “is no
25 longer adequate to address the serious deficiencies in the State’s child welfare program, most 26
specifically Clark County which accounts for the majority of the State’s child welfare 27
population.” 28
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1

25. For years, Clark County has evaded scrutiny of its child protective services and

2 foster care programs. It has hidden behind a veil of confidentiality meant to protect children

3 and families, but which the County has used to shield itself from oversight and criticism.

4

26. Among other things, it has failed and continues to fail to comply with federal

5 law requiring that it provide the public with findings and information concerning child abuse
6 victims who have died or suffered near fatalities. The little information available to the public
7
about the child welfare system is incomplete and out of date. The most recent data on child 8

9 abuse and foster care is from 2004.

10

27. Nevada and its counties receive millions of dollars in federal funds for the

11 provision of child welfare services and are therefore required to comply with federal

12 mandates, including those set forth in the Adoption and Safe Families Act of 1997, the Child

13 Abuse Prevention and Treatment Act, and the Early Periodic Screening, Diagnosis and
14 Treatment provisions of Medicaid law. In state fiscal year 2004, Nevada spent over $79
15 million on child welfare services, of which $44 million was federal funds.
16 28. This lawsuit also challenges the placement of children, and the conditions in
17 which they are forced to live, at Child Haven – an unlicensed child care institution operated
18 by Clark County. For years, Child Haven has not been a safe “haven” for the children and
19
20 youth placed there. Upon entering foster care in Clark County, children are placed at Child
21 Haven and remain there for as little as a few hours or as long as a year or more. For years,

22 unlike other facilities providing care to foster children in Nevada, Child Haven has been

23 allowed to operate without meeting the minimum licensing standards required by state law.

24 The Child Haven facility houses infants and young children alongside teenagers, some of
25 whom have significant behavioral problems and pose a risk of serious harm to the younger, 26
more vulnerable children in the facility. Child Haven is frequently extremely overcrowded 27
resulting in children sleeping on the floors and in gymnasiums, separated from their siblings 28
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1 and in conditions that have contributed to the spread of infectious disease at Child Haven.

2 Children’s needs, particularly their need for mental health care, are not being met.

3

29. High caseloads and inadequate training of Clark County child protective

4 services and foster care workers contribute to the crisis within the system. Many workers’
5 caseloads exceed those established by national standards. Workers are ill prepared and
6 supervised to perform a job in which failure to abide by law, regulations, and professional
7 standards, and failure to exercise professional judgment results in serious injury to or death of
8
9 a child.

10

30. Investigations of child abuse reports – both those involving children in foster

11 care and those left at home – routinely fail to comply with state law and professional

12 standards. As a direct result, children who could and should have been protected suffer

13 unnecessarily.

14

31. Clark County DFS has failed to recruit and retain a sufficient number of foster

15 homes, resulting in harm to children whose needs are mismatched with the foster parents’
16 experience and abilities. Placements are often made based solely upon whether or not there is
17 an available bed in the foster home. As a result, placements often break down, and children
18
are shuttled from one house, group home, and institution to another. Caseworkers fail to visit 19

20 children in these placements, and, as a result, are unaware of the quality of care the child is

21 receiving, the harm befalling the child, the risk to which the child is exposed, and the lack of

22 needed services.

23

32. Children in foster homes recruited, licensed, and supervised by Defendants are

24 subjected to abuse and neglect in those homes. When there are complaints about foster
25 homes, Clark County DFS often turns a deaf ear, allowing children to remain in dangerous 26
homes that either should not have been licensed in the first place or should have had their 27
license revoked. At the same time, Clark County DFS retaliates against foster parents who 28
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1 advocate for services for a child placed in their homes or who disagree with the department’s

2 plan for the child, driving out the very foster parents the system needs. Clark County DFS
3 also fails to provide foster parents with even the most basic background information about
4 children they place in their homes and the supportive services needed. 5
33. Children entering foster care have many special needs – for medical and 6
mental health care as well as educational and special educational services. Clark County DFS 7
fails to act as a responsible parent to children in its custody. As a result, foster children’s 8 9 needs are not met and services are delayed or not provided at all, causing substantial harm to
10 these children.

11

34. Children in foster care have no voice in the court proceedings where decisions

12 are made that affect their basic safety, their temporary and permanent placement, and their

13 general well-being. Even though state and federal law mandate appointment of a

14 representative to look out for the interests of the child in all cases, Clark County falls woefully
15 short of meeting this requirement.
16 35. If Defendants’ unconstitutional and unlawful actions and omissions are not
17 halted, many more children will be harmed. Another generation of children entrusted to the
18
County and State will suffer untold misery, some will die, and others will leave the foster care 19
20 system ill prepared to live healthy, independent, and productive lives.

21

IV.

22

CLASS ACTION ALLEGATIONS

23

36. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(a)

24 and 23(b)(2). Plaintiffs represent a countywide class of children who have been, are, or will
25 be victims of child abuse and neglect and have been, are, or will be in the legal custody of 26
Clark County DFS. 27

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1

37. The requirements of Fed. R. Civ. P. 23 are met in that the class is so numerous

2 that joinder of all members is impracticable. Furthermore, the class is fluid in that new
3 members are regularly created. There are over 3,600 children in foster care in Clark County.
4 Throughout the year, many more children enter care than is reflected in any single day census. 5
During 2004, for example, a total of 4,548 were removed from their homes and placed in 6
foster care. 7
38. All the members share common issues of law and fact. All of the plaintiffs and 8 9 class members are in need of adequate child welfare services, must rely on Clark County DFS
10 and State DCFS Defendants for those services, and are harmed by Defendants’ systemic

11 failure to fulfill their legal obligations to provide safe care, adequate treatment, and necessary

12 services. Questions of law and fact common to the class of plaintiffs predominate over any

13 individual issues of law and fact.

14

39. Specific common questions of fact include, but are not limited to,

15 a) Whether class members are placed at an overcrowded, unlicensed
16 congregate facility that fails to meet their needs;
17 b) Whether class members are left in dangerous situations due to
18
Defendants’ failure to conduct timely investigations of reports of abuse and 19

20

neglect;

21

c) Whether Defendants fail to recruit and support an adequate array of

22

foster placements to meet the needs of class members;

23

d) Whether class members are placed in homes and other facilities in

24

which they have been harmed or are at risk of harm;

25

e) Whether class members are deprived of needed medical, mental health,

26 and dental care services;
27

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1

f) Whether class members are provided with appropriate educational

2

services;

3

g) Whether class members are represented by a guardian ad litem in abuse

4

and neglect proceedings in the Clark County District Court;

5 40. Specific common questions of law include, but are not limited to,
6 a) Whether upon entry into foster care class members’ placement in Child
7
Haven, an unlicensed child care facility, violates Nevada and federal laws; 8

9

b) Whether the failure to conduct timely investigations of complaints of

10

child abuse or neglect involving class members violates their rights under

11

Nevada and federal law;

12

c) Whether the failure to properly screen, license, support and supervise

13

foster homes in which class members are placed is a denial of their rights

14

under Nevada and federal law;

15 d) Whether the failure to provide class members with timely necessary
16 medical and mental health screenings, assessments, and treatment denies
17 their rights under Nevada and federal law; and
18
e) Whether the failure to appoint a guardian ad litem for class members is 19

20

a denial of their rights under Nevada and federal law;

21

41. The claims of the named plaintiffs are typical of the claims of the class they

22 represent.

23

42. The named plaintiffs will fairly and adequately protect the interests of the class

24 they represent. Plaintiffs know of no conflict of interest among the class members.

25

43. Each named plaintiff appears by a next friend, and each next friend is

26 sufficiently familiar with the facts and circumstances surrounding the child’s situation to
27 fairly and adequately represent the child’s interests in this litigation.
28

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1

44. Plaintiffs are represented by experienced counsel who will adequately

2 represent the interests of the class. Plaintiffs are represented by the National Center for Youth
3 Law, a privately funded, non-profit organization with extensive national experience in
4 complex class action litigation involving child welfare systems. They are also represented by 5
Las Vegas attorneys Bruno Wolfenzon and Greg Schulman with Wolfenzon Schulman. 6
Plaintiffs’ counsel have the resources, expertise, and experience to prosecute this action. 7
45. Defendants have acted and refused to act and continue to do so on grounds 8 9 generally applicable to the class that plaintiffs represent, thereby rendering appropriate
10 injunctive and declaratory relief for the class as a whole.

11

V.

12

FEDERAL AND STATE STATUTORY BACKGROUND

13

A. Nevada statutory framework

14

1. Child abuse/neglect investigations

15 46. In Nevada counties with populations of 100,000 or more, the responsibility for
16
17 providing protective services for children rests with the county. Nev. Rev. Stat. Ann. §

18 432B.325. In Clark County, this responsibility rests with Clark County DFS.

19

47. Clark County DFS is responsible for receiving, screening, and investigating all

20 reports of suspected child abuse and neglect.

21

48. Clark County DFS must immediately initiate an investigation if the report

22 indicates that the child is five years of age or younger; if there is a high risk of serious harm to
23 the child; or if the child is living in a household in which another child has died, the child is
24 seriously injured, or has visible signs of physical abuse. Nev. Rev. Stat. Ann. § 432B.260(2).
25 In all other situations, the department must conduct an evaluation within three days of
26 receiving the report to determine whether an investigation is warranted. Nev. Rev. Stat. Ann.
27
28 § 432B.260(3). If the department determines that an investigation is warranted, it must

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1 initiate an investigation within three days of completing the evaluation. Nev. Rev. Stat. Ann.

2 § 432B.260(4).

3

49. All child protective services investigations must include certain actions. In all

4 cases there must be a prompt face-to-face meeting with the child Nev. Admin. Code Ann. §

5 432B.155. If there are other children in the household, the caseworker must also assess the
6 protective needs of each of those children even though they may not be the subject of the
7
report. Nev. Admin. Code Ann. § 432B.150(3)(c). 8

9

50. The child protective service investigation must be completed within 30 days of

10 receipt of the report, at which time Clark County DFS must determine if the report is

11 substantiated or unsubstantiated. Nev. Admin. Code Ann. § 432B.170 (a). Upon completion

12 of the investigation, the department may file a petition with the juvenile court, provide

13 services to the family to ensure the safety of the child or children, or close the case.

14

15

2. Protective custody and filing of petition

16

51. While conducting or upon completion of an investigation Clark County DFS

17 may decide to remove the child from the home and place the child in protective custody. Nev.

18 Rev. Stat. Ann. § 432B.390.

19

52. If the child is placed in protective custody, a juvenile court hearing must take

20 place within 72 hours to determine whether the child should remain in protective custody or

21 be returned home pending further action by the Court. Nev. Rev. Stat. Ann. § 432B.470(a).
22 53. Within ten days of the hearing on protective custody, Clark County DFS must
23 file a petition to initiate further child welfare proceedings or recommend against further court
24
action. Nev. Rev. Stat. Ann. § 432B.490(1)(a). 25

26

54. If the child is released from protective custody, Clark County DFS must

27 provide a range of services to help preserve the family and prevent further placement outside

28 the home, including, but not limited to: social work and counseling, psychological and -16-

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1 medical services, parental education and services for treatment of substance abuse. Nev.

2 Admin. Code Ann. § 432B.240.

3 3. Adjudicatory and dispositional hearings
4

5

55. An adjudicatory hearing must be held within 30 days of filing the petition.

6 Nev. Rev. Stat. Ann. § 432B.530(1)-(2). If the court finds that the allegations in the petition

7 are unsupported, the petition is dismissed and the child ordered released if he is in protective

8 custody. Nev. Rev. Stat. Ann. § 432B.530(5). If the court determines that the allegations in

9 the petition are true and that the child is in need of protection, Clark County DFS is required

10 to submit a report and recommendations for the disposition of the case. If the department
11 recommends that the child be removed from the custody of her parents, it must submit a plan
12 for ensuring that the child will receive safe, proper, and appropriate care in the placement, and
13 describe the services that will be provided to the child and her parents to facilitate the
14
15 reunification of the family. Nev. Rev. Stat. Ann. § 432B.540(2).

16

56. Upon receipt of the report and recommendation of Clark County DFS, the

17 court may order the child to remain in the custody of his parents with or without supervision

18 by Clark County DFS, place the child in the custody of a relative, or place him in the custody

19 of the department. Nev. Rev. Stat. Ann. § 432B.550.

20

21

4. Appointment of guardian ad litem

22

57. Upon the filing of a petition, the court must appoint a guardian ad litem for the

23 child. Nev. Rev. Stat. Ann. § 432B.500. The guardian ad litem must “represent and protect

24 the best interests of the child until excused by the court” and “inform the court of the desires

25 of the child, but exercise his independent judgment regarding the best interests of the child.” 26 Nev. Rev. Stat. Ann. § 432B.500(3)(a)&(g). Among other responsibilities, the guardian ad 27
litem is required to research the facts of the child’s case and ensure that the court receives an 28
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1 independent, objective account of the facts; meet with the child at the child’s placement as

2 often as necessary to determine whether the child is safe and to ascertain that the placement is
3 in the child’s best interests; participate in the development and negotiation of any plans or
4 orders regarding the child; monitor whether the plans are being implemented and appropriate 5
services are being provided; appear at all proceedings regarding the child; and present 6
recommendations to the court. Nev. Rev. Stat. Ann. § 432B.500(3). 7

8

5. Placement in and supervision of foster family homes

9

58. State DCFS is required to establish and ensure the counties’ compliance with

10 minimum standards for foster family homes, group homes, and other child care facilities in
11 which foster children are placed. Nev. Rev. Stat. Ann. §424.020. In carrying out this
12 obligation, State DCFS is required to promulgate regulations establishing uniform standards
13 for the licensing of foster family homes, group homes, and child care institutions. Nev. Rev.
14
15 Stat. Ann. § 432B.190(1).

16

59. Clark County DFS is responsible for licensing foster and group homes in

17 which it places foster children in its custody and ensuring that those homes meet state

18 standards. Nev. Rev. Stat. Ann. §424.030; Nev. Rev. Stat. Ann. §424.016(1). Licensing is

19 required in order to protect children from abuse or neglect and ensure that the foster parent
20 can properly care for children. Nev. Rev. Stat. Ann. §§424.016; 424.030; Nev. Admin. Code
21 Ann. § 424.100.
22 60. Upon being granted protective or legal custody of a child in foster care, Clark
23 County DFS selects the foster home or other setting in which the child is placed.
24 61. Any child care institution used for the placement of foster children must be
25
26 licensed by either the city, county, or state, depending on its location. Nev. Rev. Stat. Ann. §§
27 432A.131; 432A.220. Child care institutions located within Las Vegas must be licensed by

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1 the city. Nev. Rev. Stat. Ann. § 432A.131. It is a misdemeanor offense to operate a child

2 care institution without a license. Nev. Rev. Stat. Ann. § 432A.220.

3

62. No family foster home can be licensed to care for more than six children,

4 excluding any children residing in the home who are related to the foster parent or who are
5 not foster children. The number of children for whom a home may be licensed must factor in
6 the foster parents’ own children under the age of 16, as well as the characteristics of the
7 children in need of placement. No more than two children under the age of eighteen months
8
9 or four children under the age of five may be placed in the same home. Nev. Admin. Code

10 Ann. § 424.160.

11

63. Before placing a child in a foster home, Clark County DFS must provide the

12 foster parent with information necessary to ensure the health and safety of the child and other

13 persons in the foster home. That information must include the medical history and behavior
14 of the child. Nev. Rev. Stat. Ann. § 424.038
15 64. Clark County DFS must supervise and monitor the child’s care in a foster
16 home. At any time during the child’s placement that it appears that a child lacks proper care
17 and management, the child must be removed from the home. Nev. Rev. Stat. Ann. § 424.060.
18 65. Clark County caseworkers must have at least monthly face-to face contact with
19
20 children in foster care. At least bi-monthly, caseworkers must visit children in their foster
21 care placements. Nev. Admin. Code Ann. § 432B.405(a)&(b).

22

66. Clark County DFS must also provide support and services to the foster parent

23 including responding in a timely manner to requests for assistance and establishing a program

24 of respite care for foster parents to temporarily relieve them of the stresses and responsibilities
25 of caring for children. Nev. Rev. Stat. Ann. § 424.077; Nev. Admin. Code Ann. § 424.805. 26
67. Clark County DFS must complete an assessment for each child in DFS custody 27
at least semiannually. The assessment must include the current level of functioning of the 28
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1 family, the current risk to the child if he were returned to the custody of his parent, and the

2 services required to meet the child’s needs as set out in his case plan. Nev. Admin. Code
3 Ann. § 432B.420(1). These assessments must be based, in part, on direct interviews with
4 family members of the child, personal observations of interaction at home and in the 5
community between the child and family members, case histories, and medical records. Nev. 6
Admin. Code Ann. § 432B.420(2). 7

8

6. Interstate placements of children

9

68. If a child is placed with any person who resides outside of the state, the

10 placement must follow the procedures and criteria set forth in the Interstate Compact on
11 Placement of Children (“ICPC”). Nev. Rev. Stat. Ann. § 127.330.
12 69. In adopting and enacting the ICPC, the Nevada Legislature sought to ensure
13 that: (a) each child requiring placement receives the maximum opportunity to be placed in a
14
15 suitable environment and with persons or institutions having appropriate qualifications and

16 facilities to provide a necessary and desirable degree and type of care; (b) the appropriate

17 authorities in a state where a child is to be placed may have full opportunity to ascertain the

18 circumstances of the proposed placement, thereby promoting full compliance with applicable

19 requirements for the protection of the child; (c) the proper authorities of the state from which
20 the placement is made may obtain the most complete information on the basis of which to
21 evaluate a projected placement before it is made; and (d) appropriate jurisdictional
22 arrangements for the care of children are promoted. Nev. Rev. Stat. Ann. §127.330.
23 70. The ICPC requires, among other things, that a child must not be sent to the
24 receiving state until the appropriate public authorities in the receiving state notify the sending
25
26 agency, in writing, that the proposed placement does not appear to be contrary to the interests
27 of the child.

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1

B. Federal statutory framework

2

1. The Adoption Assistance and Child Welfare Act of 1980, as amended by

3

the Adoption and Safe Families Act of 1997: Titles IV-B and IV-E of the

Social Security Act. 42 U.S.C. §§ 622 et seq.; 671 et seq. 4

5

71. States that meet federally established child welfare standards in the day-to-day

6 operation of their child welfare programs are eligible for federal child welfare funding under
7 Titles IV-B and IV-E of the Social Security Act. 42 U.S.C. §§ 622 et seq.; 671 et seq. Nevada
8 has submitted a mandated State Plan describing how the State will assure compliance with
9 federal child welfare requirements under these titles and receives federal child welfare funds.
10 72. Federal child welfare mandates with which Nevada must comply include the
11 following: to place children only in settings that conform to national professional standards
12
13 and are subject to a uniformly applied set of standards; to provide quality services that protect
14 foster children’s safety and health; to provide each child with a written case plan containing

15 specified elements, and a case review system with specified elements; to place each child in a

16 safe setting that is the least restrictive and most family like setting; to provide updated health

17 and education records to foster parents or foster care providers at the time of placement; and
18 to provide notice and a right to be heard to foster parents and any preadoptive parent or
19 relative providing care in any proceeding concerning the child. 42 U.S.C. §§ 671(10);
20 671(16); 671(22); 675(1); 675(5); 675(5)(A); 675(5)(B); 675(5)(D); 675(5)(G);
21 622(b)(10)(B)(ii).
22

23

2. The Child Abuse Prevention and Treatment and Adoption Reform Act

24

(“CAPTA”), 42 U.S.C. § 5101 et seq.

25 73. The Child Abuse Prevention and Treatment and Adoption Reform Act
26 (“CAPTA”), as codified at 42 U.S.C. §5101 et seq., provides federal grants to states to assist
27 them in supporting their programs for abused and neglected children. To receive federal
28
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1 money under CAPTA, each state must submit a State Plan outlining the areas of child

2 protective services the state intends to address with the funding, and it must ensure that it is
3 complying with the statutory provision. 42 U.S.C. § 5106a(b)(1)(A); 42 U.S.C. §
4 5106a(b)(2)(A)(ix). CAPTA specifically requires that every abused or neglected child who is 5
the subject of a judicial proceeding must be represented by a properly trained guardian ad 6
litem. 42 U.S.C. §5106a(b)(2)(A)(xiii). 7
74. The guardian ad litem may be an attorney or a court-appointed special 8 9 advocate, or both. Since the original enactment of this federal mandate, Congress has
10 amended the provision several times to describe explicitly and amplify the duties of the

11 guardian ad litem. For example, the guardian ad litem must obtain a first-hand, clear

12 understanding of the situation and needs of the child and make recommendations to the court

13 concerning the best interests of the child. 42 U.S.C. §5106a(b)(2)(A)(xiii).

14

75. Nevada receives federal funding pursuant to CAPTA. State DCFS is

15 responsible for administering any federal funds, including CAPTA funds, for child welfare
16 services and ensuring county compliance with federal mandates. Nev. Rev. Stat. §
17 432B.180(1). It is required to plan, coordinate and monitor the delivery of child welfare
18
services provided throughout the state, as well as evaluate all child welfare services and 19

20 withhold money from any agency that is not complying with its regulations. Nev. Rev. Stat. §

21 432B.180(2); Nev. Rev. Stat. § 432B.180(6). State DCFS is also required to promulgate

22 regulations establishing uniform standards for child welfare services provided in the state.

23 Nev. Rev. Stat. § 432B.190(1).

24

3. The Medicaid Act, Early and Periodic Screening, Diagnostic and Treatment

25

(EPSDT) Services, 42 U.S.C. § 1396 et seq.

26

27

76. Medicaid is a cooperative federal and state funded program designed to

28 provide medical and remedial services to low income people under Title XIX of the Social -22-

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1 Security Act, 42 U.S.C § 1396 et seq. States that choose to participate in the Medicaid

2 program receive federal matching funds for their own programs. To receive those funds,
3 states must adhere to the minimum federal requirements according to the Social Security Act,
4 its implementing regulations, C.F.R. §§ 430 et seq., and the Supremacy Clause of the United 5
States Constitution. 6
77. Federal law requires states to cover certain mandatory services, including Early 7
and Periodic Screening, Diagnostic and Treatment (“EPSDT”) services, for Medicaid-eligible 8 9 children under the age of 21. 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C. §1396d(a)(4)(B).
10 Under EPSDT, states are required to provide screening services to identify defects,

11 conditions, and illness. States must then provide the necessary diagnostic and treatment

12 services to correct or ameliorate those conditions, whether or not such services are covered

13 under the state plan. 42 U.S.C. § 1396d(r); 42 C.F.R. § 441.56(b).

14

78. Nevada has chosen to participate in the Medicaid program. Under its Medicaid

15 program, Nevada must provide EPSDT services to eligible children under the age of 21.
16 Children under the age of 21 who are in foster care are eligible for Medicaid. Accordingly,
17 Nevada is mandated to provide EPSDT services to these children.
18
VI. 19

20

FACTUAL ALLEGATIONS FOR NAMED PLAINTIFFS

21 Clark K.

22

79. Clark is a seventeen-year-old youth who came into the legal custody of Clark

23 County DFS in July 2003. Prior to that time, the department had received ten reports of abuse

24 or neglect involving Clark and/or his siblings.

25

80. While in DFS custody, Clark has been placed in inappropriate and dangerous

26 placements, which have been harmful to his physical, mental, and emotional well-being. He
27 has been denied adequate food, clothing and shelter; subjected to frequent changes in
28

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1 placement; denied necessary medical and mental health care; denied an education and special

2 education services; separated from his siblings; denied other necessary services to meet his

3 needs; and denied access to any sort of representation by an attorney or guardian ad litem.

4

81. In September 1999, Clark’s mother moved from Las Vegas to Texas, and took

5 Clark with her. Clark and his mother lived with approximately ten other relatives in a two-
6 bedroom trailer. Most of their food came out of dumpsters behind grocery stores because
7
Clark’s mother spent her money on drugs. About a year later, Clark’s mother took him with 8

9 her to live in Virginia. In Virginia, he was often left with strangers while his mother was off

10 buying, dealing, and taking illegal drugs. Clark missed many days of school due to his

11 mother’s absence, neglect, and instability. As a result of these absences, Clark was held back

12 at least one grade.

13

82. In December 2001, Clark and his mother returned to Texas. Subsequently,

14 Clark contacted his grandparents in Las Vegas and pleaded with them to rescue him from the
15 unsafe and unhealthy living arrangement in Texas. His grandmother drove to Texas, and
16 brought Clark back to live with her and his grandfather in Las Vegas.
17 83. Following Clark’s arrival at their home, his grandparents contacted Clark
18
County DFS and shared information about the unsafe living environment Clark had endured 19
20 in Texas. At the advice of DFS, Clark’s grandparents first became his legal guardians and

21 later became licensed foster parents. During the entire time that Clark lived with his

22 grandparents, he attended school regularly, got good grades, and was in good health. Clark’s

23 younger brother also lived with him and his grandparents for much of the time.

24

84. On August 29, 2003, Clark was adjudicated a neglected child and placed in the

25 legal custody of Clark County DFS. DFS continued his placement in the home of his
26 grandparents. Clark did not receive notice of the adjudication hearing on August 29, nor was
27 he represented by an attorney or guardian ad litem. Although Clark’s grandparents had
28

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1 discussed Clark’s need for a Court Appointed Special Advocate (CASA) with his caseworker,

2 he was never provided one.

3

85. On September 17, 2003, a dispositional hearing was held on Clark’s Petition

4 for Neglect. Clark’s grandparents went to the courthouse to attend the hearing, but were
5 refused entry into the courtroom. Clark’s caseworker knew that Clark’s grandparents were at
6 the courthouse and that they wished to attend the hearing and provide input, but they were
7 denied an opportunity to express Clark’s wishes or explain their concerns for his safety should
8
9 he be returned to his mother in Texas. Clark’s caseworker did not notify Clark about the

10 hearing, tell him the purpose of the hearing, or ask him whether he wanted to go back to

11 Texas. Clark was given no opportunity to speak to the court or have anyone else represent his

12 interests. Had he been asked about his wishes, or allowed to speak at the hearing, he would

13 have told the court that he absolutely did not want to go back and live with his mother in
14 Texas and would have explained the reasons he was afraid to be placed with her.
15 86. Subsequently, Clark’s caseworker told his grandparents and Clark that the
16 court had decided that he should be placed back with his mother in Texas. Clark’s
17 grandparents were strongly opposed to this decision and expressed their concerns to Clark
18 County DFS. They sent letters to DFS caseworkers and administrators describing their
19
20 concerns regarding Clark’s safety and health should he be returned to Texas. Clark County
21 DFS never responded to their letters or addressed their concerns.

22

87. Throughout October 2003, Clark County DFS attempted to get Clark’s

23 grandparents to disenroll him from school and take him to the airport to go to Texas. They

24 refused.

25

88. On October 21, 2003, a Clark County DFS caseworker spoke to Clark for the

26 first time about his impending placement back with his mother in Texas. The caseworker told
27 Clark that he had spoken to Clark’s mother and that she reported that she had a job, was not
28

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1 using drugs, and could take care of him. Clark responded: “It’s horrible down there… I know

2 my mom… she can’t keep a steady job … she has been on drugs since I was little… I know

3 what it’s like down there. I don’t want to go.”

4

89. Despite Clark’s strong desire to remain with his grandparents, his articulated

5 concerns about going to live with his mother in Texas, and his history of neglect in Texas,
6 Clark County DFS nonetheless forced him to return to Texas. In late October 2003, Clark’s
7
caseworker picked Clark up at his house, drove him to the airport, walked him to security, and 8

9 put him on a flight to Houston, Texas.

10

90. Clark’s caseworker failed to complete an assessment of his safety before

11 returning him to his mother’s custody. The caseworker made no attempt to confirm what

12 Clark’s mother had told him during their brief phone conversations. He did not contact her

13 alleged employer, her alleged landlord, or the local Texas child protective services. Despite

14 her years of drug abuse, he did not require that she submit verification of successfully
15 completing treatment or that she submit to a drug screen. He also did not conduct any
16 criminal background check with Texas authorities. In addition, Clark County DFS failed to
17 comply with the requirements of the Interstate Compact on the Placement of Children, to
18
which both Texas and Nevada are signators. Nev. Rev. Stat. Ann. §§127.320-350; Tex. Fam. 19
20 Code § 162.101 et seq.

21

91. Had the caseworker conducted a reasonable investigation, he would have

22 learned that Clark’s mother was on probation for burglary, had been without a job for a very

23 long time, and had no suitable housing. She was sharing an overcrowded trailer with her

24 alcoholic parents, and was continuing to abuse drugs and alcohol.

25

92. After sending Clark to Texas, Clark County DFS essentially washed their

26 hands of him altogether. They made no efforts to determine whether he was safe with his
27 mother, nor did they follow up with anyone in Texas to ensure that his needs were being met.
28

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1

93. Once again, Clark led a miserable life in Texas. He initially lived with his

2 mother, maternal grandmother, and many others in a filthy trailer. At any given time, there

3 were at least eight people sharing the trailer with five or six dogs. Animal feces were littered

4 throughout. Clark slept on a filthy mattress on a bunk bed that he shared with his
5 grandmother, or he slept on the floor. Clark was surrounded by drug use and drug dealing.
6 His mother used and sold everything from marijuana to crack in Clark’s presence. His
7 relatives stole his possessions (including clothes, shoes, socks, hats, CDs, a CD player, a
8
9 guitar, a backpack, and a bike), and sold them for drug money.

10

94. Clark often went several days without food. Although his mother was

11 receiving food stamps for him, she traded them for drugs. She and her parents frequently dug

12 food out of dumpsters for themselves and Clark to eat. At other times he would only have a

13 few crackers and applesauce. Much of the time, his only meal of the day was the free lunch
14 he received at school.
15 95. For the year and a half he was left in Texas, Clark was moved around among
16 various family members, moving about twelve times. Most of the time they moved from one
17 trailer park to another. At one point they were all living out of a truck with a camper shell on
18 the back. During most of his time in Texas, Clark was virtually abandoned by his mother.
19
20 She would frequently disappear on drug binges; she never held down a job; and she never
21 provided for his basic needs.

22

96. Although Clark was getting A’s and B’s in school when he lived with his

23 grandparents in Las Vegas, upon placement with his mother in Texas, his grades plummeted.

24 In some of the places he was taken to live, he had no transportation to school. He also never
25 received the special education services to which he was entitled based on previous 26
assessments and an IEP adopted while attending Clark County School District. In addition, 27
during the entire time he was in Texas, his mother never provided him with medication to 28
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1 address his attention deficit hyperactivity disorder, which made it even more difficult for him

2 to concentrate in school

3

97. Finally, in the spring of 2005, Clark managed to get in touch with his

4 grandmother in Las Vegas. With help from his sister, Clark took a Greyhound bus back to his
5 grandparents in Las Vegas.
6 98. Shortly after returning to Las Vegas, Clark’s family contacted Clark County
7 DFS to tell them Clark had returned to live with his grandparents. Subsequently, DFS
8
9 attempted to locate Clark’s mother, but was not successful. Despite the traumatic events

10 Clark experienced in Texas, DFS made no efforts to provide him with counseling or other

11 services. Clark County DFS also failed to provide him with any educational services to make

12 up for the significant time he was not in school. In the absence of any services or assistance

13 from DFS, Clark and his grandparents researched various training programs and decided that
14 Clark should attend Job Corps.
15 99. Clark was accepted at the Job Corps in Reno, and began living there and
16 attending classes and vocational training. However, on or around March 15, 2006, Clark went
17 missing. Although Job Corps officials notified Clark County DFS of Clark’s disappearance,
18 little or no attempts were made to locate him. Even after the court directed DFS to do
19
20 everything in their power to find Clark, DFS took few, if any, steps to determine Clark’s
21 whereabouts. At one point, Clark called the DFS hotline and told them he was ready to go

22 home to his grandparents, but DFS failed to take timely action to help bring him back to a safe

23 placement.

24

100. Clark lived on the streets in Reno for about three months, until he eventually

25 learned about a program called “Home Free” sponsored by the National Runaway 26
Switchboard. He was provided with a free one-way Greyhound ticket back to his 27

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1 grandparents in Las Vegas. He returned to their care on May 19, 2006, and has been living

2 with them ever since.

3

101. Since returning to Las Vegas, Clark has received almost no independent living

4 services, or any other kind of services from Clark County DFS. His caseworker has been
5 unresponsive to multiple calls from Clark’s grandparents to follow up on securing needed
6 services. Clark is afraid to go back to school because he is now so far behind. He still has
7 significant unmet mental health needs, and lives with the fear that DFS could again take him
8
9 from his grandparents and send him to an unsafe placement against his will. He has difficulty

10 trusting adults or believing that anyone cares about him. He worries that people are like his

11 relatives in Texas – just waiting to do him in.

12 A. Children

13

102. Jalen, Sia, Roshaun, Caleb, and King A. are siblings - four boys and one girl,

14 ages eight, seven, five, four, and one, respectively. They have been in the custody of Clark
15 County DFS since December 2004. Their baby brother, Jerome, died in a DFS-licensed foster
16 home on April 3, 2005, at the age of 14 months.
17 103. While in DFS custody, these five children have been placed in multiple
18
inappropriate and dangerous placements that have been harmful to their physical, mental, and 19
20 emotional well-being. They have been placed in a restrictive, overcrowded, and dangerous

21 child care facility (Child Haven) for almost a year; subjected to further emotional and

22 physical abuse and neglect while in foster and shelter homes; placed in shelter and foster

23 homes that lacked the information and services to care adequately for their basic needs;

24 denied treatment and care to address their history of abuse and neglect; denied visitation and
25 contact with relatives; denied representation by either a guardian ad litem or an attorney 26
during their first year in foster care; and separated from each other for long periods of time. 27

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1

104. The A. children first came into foster care after the youngest sibling, King,

2 tested positive for drugs when he was born in December 2004. The children were initially
3 taken to Child Haven for a day, and then were split up and placed in three different DFS-
4 licensed foster and shelter homes. The three oldest children were placed in the foster home of 5
Joan Smith. About a month later, Caleb and Jerome were moved into the Smith home with 6
their siblings. King was placed in a different foster home, separated from his siblings. 7
While in the Smith home, the children were physically and emotionally abused as a result of 8 9 Clark County DFS’s failure to provide adequate training, supervision, and support to foster
10 parents; failure to investigate reports of abuse and neglect; and failure to remove children

11 from dangerous placements.

12

105. Within their first month of placement, Ms. Smith had difficulty caring for the

13 five children who at the time ranged in age from one year to six years of age. During this

14 time, Ms. Smith was also having problems with her troubled adopted daughter, who was

15 regularly running away from home. In February or March 2005, Ms. Smith began making
16 repeated requests to Clark County DFS, both verbally and in writing, to remove the children
17 from her home. Upon information and belief, DFS failed to respond to these requests and
18
failed to provide Ms. Smith with any supportive services to help her care for the A. children. 19

20

106. Clark County DFS also failed to investigate multiple reports of abuse and

21 neglect while the children were living at the Smith home. While visiting Jerome in the

22 hospital in February 2005, the children’s biological father observed bruises on Jerome.

23 During another visit with all of the children, they told their father that they were being

24 mistreated at the Smith home by both the foster mother and her adopted daughter, and that
25 Ms. Smith would hit infant Jerome. Although the children’s father made multiple reports to 26
DFS of the abuse occurring in the Smith home, DFS did not investigate the reports, and let all 27

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1 five children remain in the home until Jerome was tragically scalded to death on April 3,

2 2005.

3

107. Despite the reports of abuse in the home and Ms. Smith’s requests to have the

4 A. children removed, Clark County DFS placed another infant in Ms. Smith’s home in
5 February or March 2005. At this time, Ms. Smith had seven children in her home: the five A.
6 children, her adopted twelve-year-old daughter, and the new infant.
7 108. When she was originally licensed for foster care in August 2002, Ms. Smith
8
9 was granted a license for only three female children, ages 11-18 years. On April 16, 2004,

10 Ms. Smith was issued a Group Foster Home license for four male or female children, ages 0-

11 17 years. On its face, this license noted “there is only one bedroom allocated to foster

12 children in this home.” Effective September 20, 2004, her capacity was increased to five

13 beds, and effective January 4, 2005, her capacity was increased to six beds. On April 1, 2005,

14 just two days before Jerome’s death, her shelter care license for six beds was renewed.

15 109. Clark County DFS’s increases in the licensed capacity of Ms. Smith’s home
16 did not take into consideration her training, abilities, or demonstrated record of caring for
17 such a large number of foster children. Rather, it was based solely on the need for more
18
shelter care beds in the county. 19

20

110. On April 3, 2005, Ms. Smith left the A. children at home alone with her

21 teenage adoptive daughter. While Ms. Smith was at the hospital with her other foster infant,

22 fourteen-month-old Jerome was scalded to death in the bathtub at the Smith home. At least

23 two of Jerome’s siblings witnessed his death.

24

111. On November 8, 2005, the City of North Las Vegas filed criminal charges

25 against Ms. Smith related to Jerome’s death. Smith ultimately pled guilty and is currently
26 serving her sentence of a few months in a Clark County facility. Her foster care license was
27 revoked.
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1

112. The day after Jerome’s death, his five surviving siblings were placed at Child

2 Haven. A few days later, all of the siblings except for King, who remained at Child Haven,
3 were placed in another foster home. During their first week at this home, the children were
4 left home alone at night multiple times. They were subsequently removed from this 5
placement after less than two weeks and returned to Child Haven where they remained from 6
April 2005 through May 2006 – over a year and a month. 7
113. For the thirteen months the A. children were in Child Haven, they were subject 8 9 to restrictive, overcrowded, oppressive conditions, and denied necessary services, resulting in
10 deterioration of their mental and physical health and well-being. At the time when they most

11 needed a caring environment, they were forced to give up their personal clothes and

12 belongings; were required to wear communal clothing; were not allowed to attend school in

13 the community for at least ten months; were given only limited visiting time with parents and
14 relatives; and were subjected to a point-based discipline system inappropriate for children of
15 their young ages — conditions that have lead Child Haven to be described as a “junior
16 prison.”
17 114. After King was moved back to the infant building at Child Haven, he
18 developed serious respiratory problems. His condition was so severe that he was not allowed
19
20 to go outside, and had to have breathing treatments twice a day. His condition persisted for
21 over nine months before he was taken outside Child Haven to see a specialist.

22

115. At Child Haven the A. children were denied needed mental health services to

23 help them cope with witnessing the death of their infant brother, as well as the abuse and

24 neglect they have experienced in their short lives. Jalen is the only child who has received
25 any mental health services, and the little counseling he was provided at Child Haven was on 26
an “as needed” basis and was inadequate to meet his needs. When the children’s aunt Tarrah 27
asked Child Haven staff why the children were not receiving mental health services following 28
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1 the death of their infant brother, she was told by staff that Child Haven is “not a placement,”

2 and because of this DFS does not have to provide them with any services while they are there.

3

116. The children received inadequate educational services while at Child Haven.

4 Jalen and Sia, the two older children, never attended school in the community during the
5 entire year and a month they were placed at Child Haven; they were only allowed to attend
6 the on-site school with other children living at Child Haven. Caleb and Roshaun were finally
7 able to attend a school in the community for a half-day after they had been in Child Haven for
8
9 over ten months.

10

117. Tarrah visited the children at Child Haven about every other weekend from

11 April 2005 through March 2006. However, in the Spring of 2006, a County DFS caseworker

12 informed Tarrah that she could no longer visit with her nieces and nephews because it would

13 give them “false hope.” The caseworker did not allow Tarrah a goodbye visit with the
14 children nor did she allow Tarrah to explain to the children that she was not abandoning them,
15 but rather it was the department’s decision to terminate her visits. The children now have no
16 stable adult figure in their lives.
17 118. In May 2006, the children were moved from Child Haven to another foster
18 home. This is the fifth placement change for Jalen, Sia, and Roshaun since they entered Clark
19
20 County DFS custody in December 2004. It is Caleb’s fourth placement change, and King’s
21 third placement change since entering foster care in December 2004, and they are all at risk of

22 future placement changes, including being returned once again to Child Haven.

23 B. Children

24

119. Seven-year-old Summer, five-year-old Frank, and four-year-old Toni B. are

25 siblings. They have been in the legal custody of Clark County DFS since October 2002.
26 120. While in foster care, the B. children have been placed with a series of foster
27 parents who were given little background information about the children and were not trained
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1 or supported to meet the children’s special needs. As a direct and foreseeable result, the

2 children changed placements many times, with Frank and Summer experiencing between five

3 and seven placements within three months. The children were also physically and

4 emotionally abused in at least one foster home, and have been placed at Child Haven several
5 times. In addition, Clark County DFS failed to conduct a proper investigation of reports of
6 abuse of Summer and Frank, and failed to provide the children with needed health and
7 educational services. For the first year that the children were in DFS custody, they were not
8
9 represented by a guardian ad litem.

10

121. On October 3, 2002, Clark County DFS assumed legal custody of then eleven-

11 month-old Toni, three-and-a-half-year-old Summer, and two-year-old Frank when the

12 children were brought to Child Haven by a baby sitter who reported that the mother had

13 abandoned them. DFS petitioned the juvenile court to find the children abused and neglected
14 based upon the mother’s history of substance abuse, including having taken
15 methamphetamine during her pregnancy with Toni, and the father’s incarceration. The
16 children were placed in the DFS licensed shelter home of Marilyn Paikai, where they lived for
17 the next six months.
18 122. Upon their entry into foster care, all three children demonstrated multiple
19
20 special needs. Frank suffered anxiety attacks and night terrors, and often banged his head
21 from one side of the crib to the other in the middle of the night. His language skills were not

22 developmentally appropriate for a child his age. Summer was physically aggressive toward

23 her younger siblings, and her other behaviors suggested that she had been the victim of sexual

24 abuse. One of Summer’s foster parents took her to the doctor after she complained of
25 “burning” on her “bottom,” and the examination revealed that she had genital warts. 26
Although her therapist subsequently reported to Clark County DFS that she suspected 27
Summer had been sexually abused, DFS never investigated these concerns or reports. Toni 28
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1 was underweight and emotionally disturbed. Her behavior was self-abusive - pulling her hair

2 out, banging her head on the walls and floor, and biting her arms. One mental health therapist
3 described little Toni as “a bundle of raw nerves.” Others suspected she suffered from Down
4 Syndrome. She was hypertonic and was very difficult to console and relax. 5
123. On April 9, 2003, all three children were removed from Mrs. Paikai’s 6
shelter home, supposedly to be placed in a permanent placement. However, they stayed at 7
their next foster care placement with the Jackson family for less than seven weeks before 8 9 being moved again. At the time the children came to live with them, the Jacksons were newly
10 licensed and had recently completed the foster parent training program. They had never cared

11 for any other foster children, and had no experience or training in caring for children with the

12 extent of special needs of Toni, Summer, and Frank. The Jacksons also had two young

13 children of their own - ages three and six.

14

124. Almost from the first day the children were placed in the Jackson foster home,

15 the foster parents began calling the caseworker asking for help with their care of the children.
16 They did not know how to respond to the children’s behaviors. Summer, for example, threw
17 temper tantrums, forced herself to vomit, and attacked her younger brother.
18
125. Clark County DFS did not return the foster parents’ calls nor did they provide 19

20 any supportive services that might have enabled the Jacksons to continue caring for the

21 children and prevented another disruption in the children’s placement.

22

126. On May 26, 2003, the Jackson foster father called and asked Mrs. Paikai, the

23 former shelter care mother, to provide them with respite by taking the children for the day.

24 She agreed and the foster father dropped off the children at her home. When the time came
25 for the foster father to pick up the children later that day, he refused to do so. 26
127. Mrs. Paikai then called Child Haven and reported that she had the children 27
back in her home but had bed space only for one. Child Haven staff told Mrs. Paikai to keep 28
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1 the children and call back on Tuesday after the holiday weekend. The children remained in

2 Mrs. Paikai’s home until the following Friday when the caseworker picked up Summer and

3 Frank, and decided that Toni would remain with Mrs. Paikai.

4

128. Toni remained in Mrs. Paikai’s shelter home for more than two years – until

5 August 2005 - when she was returned to her mother on a trial basis. During the entire time
6 Toni was placed with Mrs. Paikai, her Clark County DFS caseworker made only one visit to
7
the foster home to check on the well-being of Toni. 8

9

129. For the next three months, between June and August 2003, Summer and Frank

10 were moved every two weeks from one foster home to another. Altogether they were moved

11 five or six times in less than three months. After being moved five or six times, they went

12 back to Child Haven for six weeks.

13

130. In each home selected by Clark County DFS, the foster parents were not

14 adequately trained nor did they have the experience and skills to provide the type of intensive
15 care that Summer and Frank required.
16 131. Frank was physically abused by the foster mother in one of the foster homes
17 through which County DFS shuttled Summer and Frank between June and August 2003. In
18
July 2003, during a visit with their biological mother, the children told her that the foster 19
20 mother was hitting them. Frank pulled down his pants and showed his mother a black and

21 blue bruise on his left hip the size of a baseball. The mother called the caseworker in and told

22 her about the bruise and what the children had said.

23

132. Following the mother’s report of abuse in the foster home, the caseworker

24 failed to take pictures of Frank’s injury. The caseworker did not refer the report of abuse to
25 an investigator, but instead took Summer and Frank out one at a time to talk to them. After 26
these conversations with the children and without conducting any investigation, the 27
caseworker took the children back to the same foster home the children had complained 28
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1 about. Upon returning the children to this foster home, the caseworker merely reminded the

2 foster parent not to hit kids.

3

133. Several days after the children reported abuse in the foster home, the foster

4 mother called and admitted to Mrs. Paikai that she had hit Summer; she insisted that Summer
5 needed to be on medication to deal with her out of control behaviors. She also admitted that
6 she punished Summer by making her lay in her bed for four or five hours during the day.
7 134. The very next morning after the phone call from the foster mother, Mrs. Paikai
8
9 called the children’s caseworker. She told her about the conversation she had with the foster

10 mother and expressed her concerns for the safety of the children. Following this call, the

11 caseworker removed Summer and Frank from the foster home - seven days after Frank

12 showed the bruise to his mother and she reported it to the caseworker.

13

135. Upon removing the children from the abusive foster home, the caseworker

14 asked Mrs. Paikai to keep them. However, Mrs. Paikai had no bed space available and was at
15 her licensed capacity. Nonetheless, with the plea of the caseworker that there was nowhere
16 else for the children to go, she agreed to keep them until the worker could find another home.
17 While they were back with Mrs. Paikai, Summer and Frank told her that the foster mother
18
threatened them with being sent back to Child Haven and told Summer that if she did not stop 19
20 crying, staff there would pull her eyes out.

21

136. Subsequently, Frank and Summer were placed with Mrs. Paikai’s sister who

22 was a licensed foster parent. In the new foster home, the children demonstrated much of the

23 same behaviors and special needs that they had shown in the previous homes. Their new

24 foster mother repeatedly called the caseworker for support with the care of the children but
25 her calls, too, were never returned. For the entire two weeks the children were in this foster 26
home no one from Clark County DFS came to check on the children or responded to the foster 27
mother’s pleas for help. 28
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1

137. With no support, assistance, or response to her pleas for help, the foster mother

2 took the children to a therapist’s office in search of some assistance. When the therapist

3 called the caseworker, she told her to take the children back to Child Haven. Following these

4 instructions, the therapist transported the children back to Child Haven, where they remained

5 for another five weeks.
6 138. In August 2003, Summer and Frank were placed in the therapeutic foster home
7
of Rosie and Robert Beck. They lived in this home for two years. 8

9

139. At the end of August 2005,Clark County DFS returned all three children to

10 their mother — while maintaining legal custody. DFS did not perform the requisite safety

11 assessment prior to placing the children with their mother. Indeed, at the time the decision

12 was made, the caseworker stated that she was “95% certain that placement back with the

13 mother will fail.”

14

140. During the “trial” time with their mother, the children’s educational, mental

15 health, and medical needs went unmet. For the entire time that Toni lived with her mother she
16 was not enrolled in, nor did she attend one day of, school. She had previously been enrolled
17 at the early Program for Delayed Children of Clark County, and was receiving special
18
education services, weekly speech therapy, and occupational therapy. While living with her 19

20 mother, she did not receive any of the special education or related services she had been

21 receiving. As a result, Toni’s speech, behavior, and educational progress deteriorated

22 significantly. Her speech became unintelligible. Her medical needs also went unmet.

23

141. In October 2005, while back with her mother, Clark County DFS received a

24 report that Summer had a suspicious burn on her thigh. Upon information and belief, this
25 report was not properly investigated. School authorities also reported concerns about 26
Summer, and that she was missing many days of school. On several occasions during this 27

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1 “trial visit” with their mother, the children were caught in the middle of domestic violence

2 between their mother and her boyfriend.

3

142. On January 6, 2006, the trial placement with the children’s mother was

4 abruptly ended, and Toni, Summer, and Frank were returned to foster care. Upon information
5 and belief, the removal of the children was prompted by the mother’s failing a drug test and
6 calls from Summer’s school reporting that the children were being left alone.
7 143. The return of the children to foster care was handled in a manner inconsistent
8
9 with the safety, needs, and well-being of the children and in violation of professional

10 standards and common sense. After a loud and disturbing argument and struggle with their

11 mother in front of the B. children, the caseworker put the children in her car. She then called

12 Summer and Frank’s former foster parent, Rosie Beck, and asked her to meet her at major

13 intersection in Las Vegas. The caseworker then drove into a parking lot and handed off the
14 children to Mrs. Beck. Summer refused to get out of the car until the caseworker told her that
15 she would be taken to Child Haven if she did not go with Mrs. Beck. The caseworker
16 provided the foster mother with no paperwork or authorization to care for the children.
17 144. Upon the children’s return to foster care in January 2006, the Clark County
18 DFS caseworker did not contact Mrs. Paikai to ask if she would resume care of Toni and her
19
20 siblings. DFS refused to place Toni in the foster home in which she had spent most of her
21 life, despite the repeated requests of Mrs. Paikai. Instead, the agency placed the children with

22 foster parents who are in their sixties and have three other special needs children. Despite the

23 advice of Toni’s physician that it was in Toni’s best interest to continue contact with Mrs.

24 Paikai and her husband, DFS has cut off all contact between Toni and the Paikais.
25 Donna C. 26
145. Five-year-old Donna C. has been in the legal custody of Clark County DFS 27
since December 2004. She is currently placed in a DFS licensed foster home. 28
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1

146. Since Clark County DFS assumed custody of Donna, she has been denied

2 necessary and appropriate medical, dental, and mental health care; removed from a foster

3 home in which she was receiving exemplary care; and subjected to mental and emotional

4 harm. In addition, she has at no time been represented by a guardian ad litem or attorney.

5 She has had no legal representation at court hearings, staffings, Child and Family Team
6 meetings, or in any other decision-making meetings held by DFS at which decisions were
7
made about her placement, treatment, and/or permanent plan. 8

9

147. Donna was removed from the custody of her mother and placed in foster care

10 due to her mother’s addiction to drugs, multiple child molestation allegations her mother had

11 made against multiple partners, lack of stable living accommodations, her mother’s criminal

12 history (which included serving four years in federal penitentiary for the sale and possession

13 of cocaine), and a Florida juvenile court’s removal of Donna’s older sister from her mother’s
14 care and custody.
15 148. In 2005, Donna was returned to her mother on a trial visit with Clark County
16 DFS retaining legal custody. Upon information and belief, before Donna was reunited with
17 her mother, DFS failed to complete a safety and risk assessment. After Donna’s placement
18 back with her mother, DFS failed to make regular visits to the home and monitor her care,
19
20 safety, and well-being. Upon information and belief, DFS also failed to provide services to
21 Donna and failed to continually assess whether her mother had achieved the goals and

22 objectives of the case plan. Shortly after Donna was placed back with the mother, her

23 assigned caseworker left or was reassigned and no other DFS caseworker was assigned to

24 Donna’s case for several months.

25

149. While Donna was living with her mother, her mother stole a car, left Nevada

26 with Donna, and began traveling throughout the United States and Canada. For three or more
27 months, Donna lived in the stolen car with her mother and was subjected to a series of
28

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1 traumatizing events. Her mother drove from one state to another, evading authorities and

2 engaging in illegal conduct including the purchase of illegal drugs. Donna was often forced

3 to accompany her mother into truck stop bathrooms in which she witnessed her mother buy,

4 sell, smoke, snort, and inject drugs. Donna also endured mental torment and torture. She was
5 terrorized by her mother’s paranoia and began herself to believe and participate in it. For
6 example, she was not permitted to drink water because her mother was convinced that all
7 water was poisoned by the “cult.” She frequently had Donna crawl under the car to look for a
8
9 global tracking device she believed the “cult” had put there.

10

150. During the months Donna was with her mother, she went without food and

11 water for long periods of time. She developed an eating disorder characterized by excessive

12 chewing of her food, failing to swallow it, and then gagging. She was confined to the car for

13 long periods of time and denied exercise and play.

14

151. While in the care of her mother, Donna was repeatedly exposed to domestic

15 violence in which she was often caught in the middle of physical fights between her mother
16 and her mother’s boyfriend. From a very early age, Donna’s mother told her that she had
17 been sexually molested by members of the “cult.”
18
152. As a result of her months of living with a severely emotionally disturbed and 19

20 drug-addicted mother, Donna suffered long-lasting harm the full impact of which is not yet

21 known.

22

153. In December 2005, Donna’s mother was arrested in New Mexico and charged

23 with auto theft. Law enforcement authorities in New Mexico discovered that Donna was in

24 the custody of Clark County DFS and made arrangements to have her returned to Las Vegas.

25

154. On December 12, 2005, Donna was returned to Las Vegas. She was taken by a

26 DFS caseworker from the airport directly to the foster home of Ernest and Jacquelyn Romero.
27 When she arrived at the Romero home, she had nothing but a small bag of severely worn
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1 clothing stained with cat urine and feces. She had no toys, and not even an extra pair of clean

2 underwear.

3

155. Since County DFS was not visiting Donna while she was placed with her

4 mother or otherwise monitoring her care, several months went by before DFS discovered that
5 Donna had been abducted. Indeed, DFS first learned that Donna was no longer in Las Vegas
6 when they were contacted by New Mexico authorities in December 2005.
7 156. Three days before her placement in the Romero’s home, a Clark County DFS
8
9 caseworker contacted them to ask if they would accept Donna. Although Donna had been in

10 foster care before her abduction by her mother, DFS provided almost no information about

11 Donna, other than her age, to the prospective foster parents. They were told that Donna had

12 no known behavioral problems or sexual abuse history.

13

157. Upon her return to foster care, Donna weighed approximately thirty pounds.

14 Her bones were sticking out; she appeared anorexic. Her muscles were atrophied as a result
15 of sitting in the car for days at a time.
16 158. Despite her physical condition and the trauma she experienced, Clark County
17 DFS failed to conduct a comprehensive health or mental health assessment of Donna when
18
she returned to foster care. Donna’s caseworker told the foster parents a few days after Donna 19
20 was placed with them that she needed counseling, but made no arrangements for an

21 assessment to gauge the severity of her physical and mental health problems. The Romeros

22 did not even receive a Medicaid card for Donna until several months after she was placed in

23 their home.

24

159. Donna did not receive prompt, appropriate treatment to help her cope with the

25 harm caused by months of living with her severely mentally ill mother. She was placed on a
26 waiting list for several months. Almost four months elapsed before she was seen by any
27 mental health professional.
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1

160. While in the Romero home, Donna flourished and began to recover from the

2 harms she had suffered while on the road with her mother. When she came to the Romero
3 home, Donna did not know her ABCs, or numbers. With the daily help of the foster mother,
4 Donna made great strides. 5
161. The Romero home is the type of foster home Clark County DFS should retain 6
and try to replicate, if possible. The Romeros possess the attributes foster families need to 7
help children brought into foster care. The Romeros are licensed as a flex family, meaning 8 9 they are dually licensed as an adoptive and foster home. The Romeros wanted to adopt
10 Donna, and conveyed this to DFS. However, they were also prepared to provide her with a

11 stable foster care home even if adoption was not the placement goal.

12

162. On or about April 25, 2006, a hearing was scheduled in the Clark County

13 District Court to review Donna’s case and to determine, among other things, if a petition to
14 terminate parental rights should be filed. Prior to this hearing, Donna’s foster parent sent a
15 letter to the juvenile court judge presiding over Donna’s case. In her letter, Mrs. Romero
16 described Donna’s condition when she arrived at the foster home, their concerns for her safety
17 and well-being, and the progress she had made since she came to live with them. She
18 expressed her concerns about Donna’s safety if returned to her mother, based on Donna’s
19
20 statements and information that her mother herself had shared about her drug abuse history.
21 Finally, she asked the court to consider revising Donna’s visitation plan to ensure that her

22 mother could not leave town with her again.

23

163. On May 4, 2006, Mrs. Romero was summoned to a meeting at Clark County

24 DFS where for two hours she was confronted and criticized by five members of the DFS staff
25 for having written a letter to the juvenile court judge in Donna’s case. Donna’s caseworker 26
was upset that she wrote the letter without asking DFS for permission. The caseworker 27

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1 retaliated against them by beginning to plan for Donna’s removal from their home despite the

2 fact that she was receiving exemplary care.

3

164. For Donna’s birthday, her foster parents were planning a party. It would have

4 been the first birthday party Donna had ever had. They told the caseworker about the party,

5 and asked that any placement changes of Donna be postponed until at least after her birthday
6 party. The worker refused. She removed Donna from the Romeros’ home ten days after the
7
meeting at DFS and just before her birthday. 8

9

165. Donna’s therapist advised the County DFS caseworker that removing Donna

10 from the Romero home would be harmful and detrimental to Donna’s well-being. During the

11 almost six months Donna was living with the Romeros, she developed an attachment not only

12 to the foster parents, but also to their seven- year-old daughter. As a direct and foreseeable

13 result of the abrupt, unplanned, and wholly unjustified removal of Donna from the Romero

14 home, she suffered significant mental distress and emotional harm.

15 VII.

16 CLARK COUNTY’S CHILD WELFARE SYSTEM IS DESPERATELY

17

IN NEED OF REFORM

18 166. Defendants have long known of the urgent need for systemic reform of
19 20 Nevada’s child welfare system. Numerous reports have demonstrated that the system fails to
21 protect and actually affirmatively harms many of Nevada’s abused and neglected children.

22 The failures of Clark County’s child protection and foster care system have been open and

23 notorious for years.

24

167. Between February 2004 and August 2006, local newspapers and television

25 stations in Las Vegas reported on the child abuse or neglect deaths of more than twenty-four
26 children in Clark County. A substantial number of these children were in foster care with
27 Clark County DFS; had an open child protective services case with DFS at the time of their
28

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1 death; or had a history of involvement with child protective services and a case that had been

2 closed by DFS despite strong indications that the child was at risk.

3

168. In 2004, the Administration of Children and Families of the United States

4 Department of Health and Human Services (“Federal DHHS”) conducted a performance
5 review of Nevada’s child welfare system. The review, referred to as a Child and Family
6 Service Review (“CFSR”), was designed to determine whether Nevada’s child welfare system
7 substantially complies with the requirements of the “State’s Plan for Title IV-E of the Social
8
9 Security Act Foster Care” and was meeting children’s needs for safety, well-being, and

10 permanency. All states are required to have a State Plan in order to access Title IV-E foster

11 care funds. During the CFSR review process, Federal DHHS identified numerous concerns

12 related to Clark County’s child welfare system, as discussed below.

13

169. In October 2005, State DCFS conducted a review of a sample of child welfare

14 cases from Clark County DFS. The 2005 County Case Review assessed DFS performance in
15 protecting child abuse victims and foster children from harm, achieving permanent
16 placements for them, and promoting their physical and emotional well-being. The children
17 whose cases were reviewed included children in foster care and children left in their home
18
after a report of suspected abuse/neglect. The case review instrument used was adapted from 19
20 the tool used by federal reviewers who conducted the CFSR of the State’s child welfare

21 program in 2004.

22

170. In six of the seven outcome measures used to assess Clark County DFS’s

23 protection and care of children, reviewers found that DFS failed to achieve a minimally

24 acceptable level of performance. More specifically, the 2005 County Case Review found that
25 DFS failed to conduct appropriate assessments prior to removing children from their homes or 26
returning them to their homes; failed to conduct legally required visits with foster children; 27

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1 failed to address the educational needs of children in foster care; and failed to ensure that

2 foster children received needed health care and mental health services.

3

171. Many of the findings of the 2005 County Case Review were corroborated by a

4 more recent review of child abuse cases in Clark County. In December 2005, after several
5 meetings with plaintiffs’ counsel, the Nevada DHHS began an analysis of Clark County’s
6 alarming child fatality data. Based on concerns relating to child welfare practices raised by
7 this preliminary analysis of fatality data, State DCFS contracted with the National Center for
8
9 Child Death Review to conduct an in-depth study of 79 suspected child abuse/neglect deaths

10 that occurred between 2001 and 2004. A panel of child welfare experts from outside Nevada

11 was hired to manage the review process.

12

172. The panel made numerous findings regarding systemic problems, including:

13 failure to respond to hotline calls promptly; failure to conduct appropriate safety assessments;

14 and failure to substantiate reports of abuse and neglect that should have been substantiated.
15 The panel also identified significant deficiencies relating to case practices, including; failure
16 to make monthly visits with foster children; failure to provide children and families with
17 needed services; and failure to prepare service or safety plans for children and families. In
18
addition, the panel noted that there was inadequate training for caseworkers and that the 19
20 system did not have adequate resources and staffing to meet children’s needs.

21

173. On August 11, 2006, Federal DHHS took the unusual step of informing the

22 State of Nevada that it intended to renegotiate the State’s Program Improvement Plan due to

23 worsening conditions for abused and neglected children in Clark County. Federal DHHS’s

24 rationale for taking this step included that there were “[s]erious deficiencies in the State’s
25 child welfare program, most specifically Clark County”; and that there was “[c]onsistent 26
overcrowding at Child Haven and recent tragedies involving children in foster care.” Federal 27
DHHS further stated that “the manner in which the continuum of child welfare services is 28
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1 managed in Clark County should be a grave concern to the State and should be addressed by

2 the State in its administration and supervision of the program.”

3 A. 4

Abused and neglected children in Clark County are placed in an unlicensed, overcrowded, and unsafe facility for extended periods of time

5 174. Defendants’ failure to recruit, train, support, and retain a sufficient number of
6 foster homes has resulted in over reliance on Child Have, a large, unlicensed congregate care
7 facility in Las Vegas. Nearly all children who have been removed from the homes of their
8
9 parents because of suspected abuse or neglect are first taken to Child Haven. Children
10 frequently are forced to stay at Child Haven for long periods of time because there are no

11 available beds at foster family shelter homes.

12

175. Upon admission to Child Haven, children are stripped of their clothes and all

13 personal belongings. Throughout their stay at Child Haven, children are not permitted to
14 wear their own clothes - not even their own underwear - but are periodically issued clothes
15 and shoes from a communal pile of clothing. Oftentimes the clothes and shoes do not fit, and
16 may not even match the child’s gender.
17 176. Children placed at Child Haven are forced to live in overcrowded buildings
18 where they sometimes sleep on the floor, are not provided with the health, educational or
19
20 therapeutic services they need, and often act out their justifiable rage at being treated
21 neglectfully. Their basic emotional needs are not met and they are not given even basic

22 information about the plans the agency has for them.

23

177. Child Haven is an unsafe place for children. A growing number of children

24 with significant behavioral and emotional/mental health problems are placed at Child Haven.
25 Youth with a history of admissions to psychiatric hospitals, on psychotropic medication, and 26
with behaviors requiring the use of physical restraints by staff, present a frequent danger to 27
other children and staff. Older teens, some with a history of delinquent behavior, reside on 28
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1 the same campus, in close proximity to and sharing some common areas with toddlers and

2 elementary school age children.

3

178. For years, Defendants have failed to address the problem of runaways from

4 Child Haven. Some youth are allowed to “walk away” from the facility when behaviors
5 escalate to a point that staff determine that it is in the best interests of other children at Child
6 Haven that they be allowed to run away. While on runaway, these youth have engaged in
7 dangerous, sometimes life-threatening behaviors. During August 2006, a youth who had run
8
9 away seven times from Child Haven was murdered on the streets of Las Vegas. County DFS

10 has done little to address the chronic problem of runaways from Child Haven thus placing

11 children and youth at substantial risk of harm.

12

179. In 2004, federal reviewers found that “there is no monitoring or oversight

13 process for Child Haven.” This finding and the continued operation of Child Haven without a
14 license, they concluded, was a violation of federal mandates that the state develop and
15 implement standards to ensure that children in foster care are provided with quality services
16 that protect the safety and health of children.
17 180. Following another site visit by federal officials to Child Haven in the summer
18 of 2006, federal officials notified Defendants that “the situation (at Child Haven and within
19
20 other parts of Clark County’s child welfare system) had worsened since the on-site visit” in
21 February 2004. Federal officials concluded that “immediate and ongoing attention” was

22 needed to ensure the safety, permanency, and well-being of children placed at Child Haven.

23

181. During the last couple of years, a number of factors have compounded the

24 inevitable risk and harm to children admitted to Child Haven. The problems resulting from
25 chronic, increasingly severe overcrowding are exacerbated by the admission of children and 26
youth with ever more serious and challenging behaviors, the agency practice of compelling 27
staff from other sections of the agency to work overtime at the buildings, the use of untrained 28
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1 volunteers, and the failure to provide children with the necessary assessments and therapeutic

2 interventions to meet their needs.

3

182. Federal law forbids the use of federal funds for institutions caring for more

4 than twenty-five children. As a result, Clark County does not receive any federal funds to
5 defray the $9 million per year that it costs to support the 6,000 children that pass through or
6 reside at Child Haven in a year. Despite this fact, federal officials notified Nevada that
7 “[w]hile Child Haven placements are not eligible for Title IV-E reimbursement, the children
8
9 placed in this unlicensed congregate facility are the responsibility of the State of Nevada not

10 just Clark County.”

11

183. Current social science research provides substantial evidence that the care

12 children and youth receive in group care and shelters like Child Haven is far more expensive

13 and less beneficial than care provided in foster family homes. As Richard Barth, the current
14 Dean of the School of Social Work at the University of Maryland wrote recently, “[c]ounties
15 across the United States have been closing child welfare shelters - at times, as a result of court
16 orders – but mostly because it is humane and cost effective…The money [spent to operate
17 large shelters like Child Haven] could be more effectively spent in recruiting and providing
18 training and support for foster caregivers.”
19

20 B. Child Haven has been chronically overcrowded for years
21 184. Child Haven was designed to be a temporary shelter while children await
22 placement with their relatives or in a more family-like setting. Child Haven’s campus
23 consists of eight buildings and an on-grounds school. One building is used for visits between
24 parents and children and/or administrative purposes; it is not used to house children. Each of
25
26 the seven buildings used to house children has a capacity for 12 children except for the
27 infants’ building, which has a capacity for 20 infants. Accordingly, Child Haven currently

28 has a total capacity for 92 infants, children, and youth. -49-

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1

185. Despite its large size, Child Haven is chronically overcrowded, with many of

2 the buildings housing more than twelve children. Overcrowding has been tolerated for years.
3 For all but a few months since January 2003, the number of children housed at Child Haven
4 has exceeded capacity. The average daily population has been as high as 160 children or 5
higher, and has frequently been 146 or higher. 6
186. The overcrowding at Child Haven has worsened since October 2005, most 7
recently reaching more than 220 infants, children, and youth. Overcrowding in the Agassi 8 9 building – reserved for a maximum of twenty newborns and infants – is endemic. During the
10 first week of April 2006, there were 56 infants in several buildings at Child Haven.

11

187. In recent months the situation has become so dire that the staff lunch room was

12 converted into an annex for infants. Cribs are stacked one against the other in a room not

13 intended or designed for the care of infants.

14

188. Overcrowding at Child Haven is not limited to the infant and toddler buildings.

15 On December 9, during a “special evening inspection” of Child Haven by the Clark County
16 Health Department, the inspector noted overcrowding in the Bigelow building. The Bigelow
17 building is for boys between the ages of five and ten. Instead of the usual 18 children, on that
18
evening there were 26 children being housed in the building. Several children had no 19

20 bedroom, and were forced to sleep on the floors of the common areas of the building. These

21 children slept on mats placed on the floor.

22

189. Most recently, the federal government weighed in on the chronic overcrowding

23 at Child Haven. As of June 30, 2006, there were 205 children living at Child Haven, over half

24 of whom were between the ages of 0-4. Federal DHHS stressed the need to develop

25 immediate strategies to address this and other problems at Child Haven. 26

27 C. 28

Conditions at Child Haven endanger children and do not promote their wellbeing

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1

190. Overcrowding at Child Haven has contributed to and exacerbated the

2 frequency and severity of outbreaks of infectious and communicable diseases among the
3 children placed there. On August 1, 2005, the Clark County Health Department reported an
4 outbreak of hand-foot-mouth disease. A September 30, 2005 Health Department survey 5
reported a concern of possible Methicillin-resistant Staphylococcus aureus (MRSA) among 6
children in Child Haven. On that occasion, a two-year-old boy was found to have an MRSA 7
infection of the eye and a 10-month-old girl suffered an infection on her buttocks. The boy 8 9 was taken to Sunrise Hospital for a culture to determine if the suspected infection was MRSA,
10 but was returned to the Child Haven building before the culture results were obtained thus

11 exposing other children to the risk of infection.

12

191. In addition to these health concerns, there are also no standards in place to

13 ensure that children’s health, mental health, and educational needs are met. No individual
14 assessments of children’s needs are conducted while they are placed at Child Haven, and as a
15 result, their treatment needs go unidentified and neglected and informed decision-making to
16 select the child’s next placement does not occur.
17 192. Clark County DFS considers Child Haven to be a temporary placement even
18 though many children stay for weeks, months, and years at a time. Because of the purported
19
20 short-term nature of the placement, DFS does not arrange for or provide services for many of
21 the children in need of special treatment and services.

22

193. Children who are discharged from Child Haven are not prepared for what is

23 ahead. A child is given little or no explanation of where they are being placed and who will

24 be their next caregiver. They are given no opportunity to meet the caregiver before being
25 abruptly transferred to the next placement. They have no voice in the selection of the 26
placement. 27

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1 D. 2 3

Placement of infants and toddlers at Child Haven is harmful, contrary to the overwhelming opinion of mental heath, child development and child welfare experts, and contrary to federal and state mandates

4

194. Infants entering foster care have very high rates of risk factors for

5 psychopathology, medical illnesses, and developmental delays, and consequently have
6 extensive service needs. Sixty to eighty percent of young children entering care have at least
7 one medical illness and twenty-five percent have three or more chronic conditions. As many 8
as three-quarters of young children in placement need further developmental evaluation or 9
have a developmental delay. 10
195. Infants and toddlers, in particular, are most susceptible to long-term 11 12 detrimental effects as a result of placement, even for relatively short periods of time, in
13 institutions. The first three years of a child’s life are the most critical period for brain

14 development, as this is the time when the brain is in an unparalleled time of developmental

15 change.

16

196. Infants and toddlers need the presence of a primary caregiver to form an

17 attachment to in order to develop normal emotional bonds and socialization skills. Having
18 already suffered the trauma of abuse and neglect by a primary caregiver, they have an even
19 greater need for a stable, nurturing, individual caregiver.
20 197. Children in Child Haven end up interacting with a multiple shift-work staff.
21
At Child Haven, infants and young children receive care from an ever-changing and large 22
23 number of different caretakers, which is contrary to their well-being and harmful to their

24 development. There is no one person who provides consistent care for each infant. It is

25 estimated that in a week, an infant may have as many as twenty different caregivers. Staff,

26 though well-meaning, are simply unable to respond to each child’s individual cues and unable

27 to attend to each child’s individual needs. Shelter care institutions like Child Haven tend to 28
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1 be more concerned with the children’s physical care and establishment of routine, rather than

2 the development of appropriate social interaction, language development, and autonomy.

3

198. The placement of infants and toddlers in Child Haven is at odds with the

4 mandate of federal law that children in foster care must be placed in the least restrictive, most
5 family like setting consistent with the best interest and special needs of the child.
6 199. Placement of infants and toddlers in Child Haven runs counter to the
7 overwhelming opinion of experts in the field of child welfare, infant mental health, and child
8
9 development. It is also against the overwhelming weight of current social science and infant

10 mental health research. That research confirms that children living in institutions like Child

11 Haven tend to suffer from motor and language delays and display a lack of attachment and

12 sense of trust, a restricted range of emotion expressions, and an absence of social play. In

13 comparison to children placed in foster family homes, these children show poorer
14 development and social emotional functioning.
15 200. Clark County DFS’s practice of placing infants at Child Haven also is
16 inconsistent with its own determination, as stated in a 2004 Clark County Audit Department
17 report, that “based on research … infants and small toddlers under 3 years of age … have
18 been shown to do better in a home with consistency in their caregivers versus those placed in
19
20 an institution.”

21 E.
22

Children remain housed at Child Haven for months and sometimes years

23

201. Child Haven is intended to be a short-term placement for children taken into

24 custody. Clark County DFS policy specifies that children are not to be placed in the shelter
25 for longer than two weeks. Despite this policy, many children, including infants and toddlers, 26 remain in Child Haven for long periods of time. 27

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1

202. In 2004, community stakeholders interviewed as part of the federal CFSR

2 expressed concerns about the number of infants and very young children who are placed in

3 Child Haven and who remain in the shelter for long periods of time.

4

203. As of June 2006, the average length of stay was 45 days, with many children

5 remaining at Child Haven for three to six months, and sometimes a year or longer. According
6 to Federal DHHS, one child had been living in Child Haven for over two years.
7

8 F. Child Haven operates without the required license

9

204. Although Nevada law requires all child care facilities operating in the state to

10 obtain a license from the appropriate government agency before accepting children, Child

11 Haven has operated for years without a license. Child Haven, which is subject to licensure by
12 the City of Las Vegas Child Care Licensing Board, has also never complied with the licensing
13
standards established by state law. 14

15

205. More than two years ago, as part of a federal CFSR, reviewers noted that Child

16 Haven operated without the necessary license. County and State Defendants were directed as

17 part of their Program Improvement Plan to ensure that Child Haven met all applicable

18 licensing requirements. A deadline of January 31, 2006 was established for compliance with

19 this provision of the PIP. Child Haven was not licensed as of January 31, 2006, and continues 20 to operate in violation of the applicable licensing statutes, regulations, and standards 21 22 G. Staffing and training at Child Haven are woefully inadequate

23

206. Buildings at Child Haven are staffed by a combination of full-time employees,

24 part-time staff, temporary employees, and volunteers. Child Development Specialists staff
25 each of the buildings working in three shifts around the clock.
26 207. Direct care staff receives a mere two days of training in what the agency calls
27 the Child Haven Active Teaching Treatment Approach (CHATTA). During what amounts to
28

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1 no more than twelve hours of actual training, staff receive half-hour segments on such

2 subjects as principles of behavior, relationship building, youth rights, and working with the
3 school. Furthermore, the CHATTA model has little or no empirical basis and its use with all
4 age groups of children is inappropriate. 5
208. The number and qualifications of staff at Child Haven are inadequate to ensure 6
the care, protection, and well-being of children at the facility. Overcrowding at Child Haven 7
has led to requests and/or demands from the DFS director that other DFS staff not employed 8 9 at Child Haven volunteer for duty at Child Haven. County DFS caseworkers who are
10 encouraged or coerced into volunteering to staff Child Haven are not trained in the care or

11 supervision of the infants, children, and youth at the facility, thus placing those children at

12 risk.

13 H. 14

Defendants’ failure to conduct proper child abuse and neglect investigations and make reasonable efforts to keep children safely at home is harmful to children

15 209. Multiple studies of casework practices in Clark County have indicated that
16 DFS is failing to conduct adequate investigations of allegations of child abuse and neglect.
17 210. In the October 2005 County Case Review conducted by State DCFS, the
18 reviewers found that children were removed from home without conducting a safety
19
20 assessment to determine whether they could remain safely at home with provision of
21 supervision and services to the family. The review also found that Clark County DFS failed

22 to conduct ongoing safety and risk assessments to monitor children left in their homes.

23

211. These findings were reinforced in the study conducted by the National Center

24 for Child Death Review. The panel concluded that Clark County DFS has failed to
25 investigate numerous child deaths despite evidence of substance abuse, prior substantiations, 26
significant neglect, and lack of supervision; failed to perform timely safety assessments 27
relating to other children living in the home following a child death; and failed to substantiate 28
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1 numerous reports of abuse and neglect that should have been substantiated. The panel also

2 found that DFS failed to respond to hotline calls promptly, leaving some callers on hold for

3 over 55 minutes and resulting in 27% dropped calls.

4

212. Based on the federal Program Improvement Plan review and a recent on-site

5 visit to Clark County, Federal DHHS again echoed findings in previous reports of severe
6 problems with CPS investigations in Clark County. Federal DHHS concluded that Clark
7
County does not have a 24 hour, seven day a week Child Protective Services Response team, 8

9 which results in many children being unnecessarily removed by law enforcement and taken

10 directly to Child Haven. Children who are removed from their homes by law enforcement are

11 not provided with a safety or family risk assessment. Moreover, Federal DHHS noted that

12 employees staffing the child abuse hotline have been deployed by the shelters to handle

13 shelter intake, resulting in even longer waits and hotline calls going unanswered.

14

213. Child abuse investigations often are not completed within a reasonable time

15 thus placing children who are the subject of such reports and their siblings at tremendous risk.
16 In recent months, there have been more than 340 investigations that are still pending and
17 unresolved more than 45 days after the initial report of suspected abuse or neglect was
18
received by Clark County DFS. 19

20

214. In addition to inadequate investigations, Clark County DFS has also failed to

21 make reasonable efforts to ensure that families receive services that would allow children to

22 remain safely in their homes. Federal DHHS has found that “there is an inadequate array of

23 services to prevent placement by providing in-home family support services that are

24 integrated and facilitate the ability of children to remain in their own homes or return home in
25 a timely manner.” 26
215. Nevada’s Court Improvement Program workgroups have also identified the 27
overall lack of services as a significant problem, and identified three areas in which services 28
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1 are particularly needed: substance abuse, mental health, and developmental delays. Courts in

2 Nevada have begun levying fines on State and county agencies for failing to provide children

3 and families with needed court-ordered services.

4 I. 5

Defendants fail to place children in safe, appropriate, stable foster home placements and supervise and support those placements

6 216. Defendants’ over-reliance on Child Haven is fueled, in part, by their failure to
7 recruit an array of suitable foster homes to meet the needs of Nevada’s abused and neglected
8
9 children.

10

217. Clark County DFS also fails to follow up on foster and adoptive parent

11 inquiries from its own recruitment campaigns. A recent recruitment campaign received 1,340

12 inquiries, but only resulted in 24 new foster homes. Many inquiries from prospective foster

13 parents were not pursued in a timely manner.

14

218. Clark County DFS has failed to devote the staff and other resources necessary

15 to recruit, train, and retain an adequate number of foster parents to meet the needs of children
16 in foster care. Clark County has only one full-time foster parent recruiter and one foster
17 parent trainer. Washoe County, with one-fourth the number of children in foster care, has
18
three full-time recruiters and three full-time trainers. Clark County DFS continues to employ 19

20 the same recruitment strategies from year to year with the same poor results.

21

219. Due to the shortage of foster homes, children are often placed wherever an

22 open bed exists, rather than in homes that meet their needs. Little effort is made to assess

23 children’s needs before placing them in a foster home or to match them with a foster parent

24 who has the appropriate skills or training. To make matters worse, caseworkers often fail to
25 provide foster parents with information that is crucial to ensuring foster children’s safety, 26
health, and well-being. 27

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1

220. Some children have been placed with foster families that are taking care of

2 more children than allowed by their license permits. Clark County DFS frequently grants
3 waivers in order to place more children in the foster home than the foster parents’ license
4 permits. 5
221. Once children are placed in foster homes, they are often all but forgotten. 6
Foster parents are not provided adequate support or training, and are frequently left to fend for 7
themselves under challenging circumstances. This lack of support results in failed foster 8 9 placements and increased instability for foster children. Worsening the effects of the
10 traumatic experiences they encountered prior to entering foster care, foster children are re-

11 traumatized by frequent placement disruptions.

12

222. Caseworkers fail to make the requisite visits with children to ensure that their

13 needs are being met. Clark County DFS’s own study found that in almost two-thirds of cases,
14 case workers failed to visit their clients as required by law. Federal reviewers found that in
15 more than 40% of Clark County cases, the frequency of visits between caseworker and
16 children was insufficient to ensure adequate monitoring of the child’s safety and well-being.
17 223. The federal performance review of Nevada’s child welfare system found that
18 only 31 percent of foster children in the Clark County had stable placements. Many of the
19
20 children experiencing multiple placements in Clark County were under five years of age.
21 Frequent changes in placement led to a lack of continuity in services, changes in schools, and

22 an overall negative impact on children’s well-being.

23

224. Federal reviewers found that chronic widespread disruptions in foster

24 children’s placements are due to a lack of supports for foster families, failure to provide foster
25 parents with sufficient information about a child prior to placement to ensure that the family is 26
able to meet the child’s needs, insufficient mental health resources for children, and a lack of 27

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1 an array of placements to permit the matching of a child’s needs with the skills, knowledge,

2 and abilities of the foster caregiver.

3 J. 4

Defendants fail to provide abused and neglected children with timely medical care, mental health care, and educational services necessary to meet their needs

5 225. Federal and State law require Defendants to provide foster children with
6 medical, dental, and mental health services to meet their needs. Given the neglectful and
7 chaotic environments foster youth often grow up in, it is crucial that they receive prompt
8
9 assessments and medically necessary services.

10

226. Moreover, studies have shown that a high percentage of foster children have

11 significant mental health problems. Mental health experts agree that children with serious

12 mental health problems require an array of individualized services tailored to address their

13 needs. Such services should include professionally acceptable assessments, behavioral
14 support and case management services, family support, crisis support, wraparound services,
15 therapeutic foster care and other mental health services, in a home-like setting.
16 227. Federal law requires states to cover certain mandatory services, including Early
17 and Periodic Screening, Diagnosis, and Treatment (“EPSDT”) services, for Medicaid-eligible
18 children under the age of 21. 42 U.S.C. § 1396a(a)(10)(A), 42 U.S.C. § 1396d(a)(4)(B).
19
20 Under EPSDT, states are required to provide screening services to identify defects,
21 conditions, and illness. States must provide the necessary services to correct or ameliorate

22 those conditions or illness.

23

228. Despite these requirements, foster children are often deprived of needed health

24 and mental health care. The 2005 County Case Review found that Clark County DFS fails
25 even to assess the mental health and health needs of 50% of the children in care. For those 26
children who do receive some sort of assessment, DFS fails to ensure that physical and mental 27
health services are being provided. 28
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1

229. The 2006 Child Fatality Report also found that DFS fails to provide children

2 and families with services needed to resolve identified issues. DFS fails to complete service

3 plans for children or to document or follow-up on referrals for services.

4

230. Moreover, DFS does not ensure that children with mental health needs receive

5 an individualized treatment that addresses their needs. There is a severe lack of mental health
6 services such as behavioral support, psychiatric and other clinical services, case management
7
services, therapeutic foster care services provided in a home-like setting, and wraparound 8

9 services.

10

231. Nevada law also requires foster placements to ensure that foster children attend

11 school full-time; are provided with appropriate educational assessments and services; receive

12 an appropriate education, including special education services or training programs, as

13 needed; and are afforded an opportunity to complete schooling or training in accordance with

14 their aptitude.
15 232. Despite these requirements, the Federal DHHS has found that foster children’s
16 educational needs were being woefully neglected. DFS fails to obtain copies of school
17 records for children in foster care; fails to obtain copies of the Individualized Education Plan
18
(IEP) for children receiving special education services and to provide such information to 19
20 foster parents; and fails to advocate for children’s educational needs in the school system.

21 K. 22

Caseworkers’ high caseloads, inadequate training, and poor supervision threaten the safety and well-being of Nevada’s abused and neglected children

23

233. A well-trained, experienced, and adequately staffed workforce is a vital

24 component of any child welfare system. When caseworkers are overwhelmed, untrained, and
25 poorly supervised, the child welfare system inevitably breaks down, resulting in reasonably 26
foreseeable harm to foster children. Unfortunately, Clark County’s system is lacking in each 27
of these important workforce areas. 28
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1

234. High caseloads are prevalent among Clark County DFS caseworkers and are

2 among the highest in the state. In February 2005, the average caseload for DFS caseworkers

3 was 1:35.

4

235. DFS staff caseloads are significantly higher than the caseload ratio required for

5 accreditation by the Council on Accreditation, which is no greater than 1:18. They also far
6 exceed the caseload ratios established by Child Welfare League of America Standards, which
7
are between 1:12 and 1:15. 8

9

236. As a direct result of the high caseloads of workers within Clark County DFS,

10 investigations of reports of abuse are not initiated promptly nor completed within 30 days,

11 investigations fail to comply with minimum standards required of such investigations,

12 monthly visits to foster homes are not conducted, and children are harmed or at grave risk of

13 harm.

14

237. Caseworkers receive only minimal training prior to working with children and

15 families. As a result, they are ill-prepared to perform the duties and responsibilities assigned
16 to them and fail to exercise professional judgment when making life and death decisions for
17 children.
18
238. During the 2004 federal CFSR, federal reviewers found that many caseworkers 19

20 do not complete required ongoing in-service training. Although Washoe County and the rural

21 areas of the state require that workers must be licensed, Clark County does not. Even staff

22 assigned to investigate abuse reports are not licensed.

23

239. The Child Fatality Study found that DFS fails to make monthly contact with

24 children and family who have open cases and follow-up appropriately; fails to resolve
25 problems or concerns prior to closing cases; fails to complete service or safety plans for 26
children and families; and fails to provide case workers with appropriate training. 27

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1

240. The 2006 Child Fatality Report found that County DFS caseworkers

2 consistently fail to document critical information. Case files lacked documentation of

3 investigative contacts, family background checks, progress toward case goals, the basis for

4 safety decisions, the nature and purpose of service referrals, and contact with service

5 providers to ascertain progress. The study found that such poor documentation practices
6 serve as a major barrier to future quality assurance efforts, and could represent a critical
7
weakness in the overall safety net. 8

9 L.

Defendants fail to ensure that abused and neglected children have a voice in court proceedings

10

11

241. Approximately half of all children and youth who are the subject of abuse and

12 neglect proceedings in Clark County are unrepresented by a guardian ad litem in those
13 proceedings.
14 242. Children who are the subject of abuse and neglect proceedings in Clark County
15 are, if provided with any representation at all, represented either by the Children’s Advocacy
16
17 Project (CAP) of Clark County Legal Services or Las Vegas Court Appointed Special
18 Advocates (CASA). On occasion a child may have both an attorney and CASA.

19

243. CAP employs six attorneys, each of whom represents 40 to 50 children.

20 Consequently, on average, no more than 300 out of the 3,000 children in foster care in Clark

21 County are represented by an attorney. Upon information and belief, CAP attorneys do not

22 act as guardians ad litem for the children or youth they are appointed to represent.

23

244. There are about 200 CASAs in Clark County. In 2005, they represented 480

24 children, and they reported that they had to turn away 89 children who were referred by the
25 court.
26

27

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1

245. Neither CAP nor CASA represent children at the earliest stages of the

2 proceedings, including proceedings to determine if children should be taken into or remain in

3 initial protective custody.

4

246. The lack of representation for child abuse and neglect victims in Clark County

5 District Court proceedings has been known to Defendants and tolerated for years.
6 247. In January 2006, Chief Justice Rose of the Nevada Supreme Court
7
acknowledged that “[w]e need more attorneys and CASA volunteers to assist children.” 8

9

248. Clark County Family Court Judge Gerald Hardcastle has admitted that over

10 half of all children and youth who are the subject of abuse and neglect proceedings in Clark

11 County District Court are unrepresented in the proceedings.

12

249. During the entire time that children and youth have gone unrepresented in

13 child abuse and neglect proceedings in Clark County District Court, State DCFS has received

14 and continues to receive funds under the federal Child Abuse Prevention and Treatment Act.

15 250. The failure to provide children and youth with representation in the juvenile
16 court leads to ill-informed decisions and inhibits the court’s obligation to oversee the child’s
17 placement, care, and treatment while in foster care.
18
VIII. 19

20

FIRST CAUSE OF ACTION– SUBSTANTIVE DUE PROCESS UNDER THE UNITED STATES CONSTITUTION

21

(ASSERTED PURSUANT TO 42 U.S.C. § 1983)

22 251. Each and every allegation is incorporated herein as if fully set forth.
23 252. The foregoing actions and inactions of Defendants in their official capacities
24
25 constitute a failure to meet the affirmative duty to protect from harm all plaintiffs, which is a
26 substantial factor leading to, and proximate cause of, the violation of the constitutionally

27 protected liberty and privacy interests of all plaintiffs, as asserted pursuant to 42 U.S.C. §

28 1983. -63-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 64 of 73

1

253. The foregoing actions and inaction of Defendants constitute a policy, pattern,

2 practice, and/or custom that is inconsistent with the exercise of reasonable professional
3 judgment in violation of the constitutionally protected rights and liberty and privacy interests
4 of all plaintiffs. As a result, all plaintiffs have been and are being deprived of the substantive 5
due process rights conferred upon them by the Fourteenth Amendment to the United States 6
Constitution. 7
254. These substantive due process rights include, but are not limited to: the right to 8 9 protection from unnecessary harm while in government custody; the right to a living
10 environment that protects foster children’s physical, mental, and emotional safety and well-

11 being; the right to services necessary to prevent foster children from deteriorating or being

12 harmed physically, developmentally, psychologically, or otherwise while in government

13 custody, including but not limited to the right to safe and secure foster care placements,
14 appropriate monitoring and supervision, appropriate planning and services directed toward
15 ensuing that the child can leave foster care and grow up in a permanent family, adequate
16 mental, dental, psychiatric, psychological, and educational services; the right to treatment and
17 care consistent with the purpose of the assumption of custody by Defendants; the right not to
18 be retained in custody longer than is necessary to accomplish the purposes to be served by
19
20 taking the child into custody; the right to be placed in the least restrictive placement based on
21 the foster child’s needs; and the right to receive care, treatment, and services determined and

22 provided through the exercise of accepted, reasonable professional judgment.

23

IX.

24

SECOND CAUSE OF ACTION–

25

SUBSTANTIVE DUE PROCESS UNDER THE UNITED STATES CONSTITUTION: STATE CREATED DANGER CLAIM (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

26

27

255. Each and every allegation is incorporated herein as if fully set forth.

28 -64-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 65 of 73

1

256. The foregoing actions and inactions of Defendants amount to a pattern,

2 practice, and custom of failure to exercise reasonable professional judgment in violation of

3 the constitutional rights of all plaintiffs, as asserted pursuant to 42 U.S.C. § 1983.

4 Defendants are engaging in a pattern and practice of violating plaintiffs’ rights under the Due

5 Process Clause of the United States Constitution, by removing plaintiffs from their caretakers
6 and placing them in placements that Defendants know or should know pose an imminent risk
7
of harm to these children, in disregard for the exercise of reasonable professional judgment. 8

9

X.

10

THIRD CAUSE OF ACTION–

PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO

11 THE UNITED STATES CONSTITUTION (ASSERTED PURSUANT TO 42 U.S.C. §

1983)

12

13

257. Each and every allegation is incorporated herein as if fully set forth.

14

258. The foregoing actions and inactions of Defendants in their official capacities,

15 constitutes a failure to exercise an affirmative duty to protect the welfare of all plaintiffs,
16 which is a substantial factor leading to, and proximate cause of, the violation of the
17 constitutionally protected liberty and privacy interests of all plaintiffs, as asserted pursuant to
18
42 U.S.C. § 1983. 19

20

259 The foregoing actions and inactions of Defendants constitute a policy, pattern,

21 practice and/or custom that is inconsistent with the exercise of reasonable professional

22 judgment and violates the constitutionally protected rights and liberty and privacy interests of

23 all plaintiffs. As a result, all plaintiffs are being deprived of federally created and state-

24 created liberty or property rights without due process of law. The federal law entitlements to
25 which children have a constitutionally protected interest arise from the Child Abuse 26
Prevention and Treatment Act as codified at 42 U.S.C. §55101 et seq., and the Adoption 27

28 -65-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 66 of 73

1 Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families

2 Act of 1997, as codified at 42 U.S.C. §670 et seq.

3

XI.

4

FOURTH CAUSE OF ACTION–

5 FEDERAL ADOPTION ASSISTANCE ACT (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

6

7

260. Each and every allegation is incorporated herein as if fully set forth.

8

261. The foregoing actions and omissions of Defendants in their official capacities,

9 amount to a policy, pattern, and/or practice of depriving all plaintiffs of rights conferred on
10 them by the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the
11 Adoption and Safe Families Act of 1997 (collectively the “Adoption Assistance Act”) and the
12 regulations promulgated under the Act, 45 C.F.R. Parts 1355-1357, as asserted pursuant to 42
13
14 U.S.C. § 1983. These rights granted to individual foster children include, but are not limited
15 to:

16

a) The right to placement in foster homes or other settings that conform to national

17

professional standards and are subject to a uniformly applied set of standards. 42

18

U.S.C. § 671(a)(10).

19

b) The right to quality services that protect foster children’s safety and health. 42

20

U.S.C. § 671(a)(22).

21 c) The right of each child to have a written case plan, containing specified elements,
22 the right to have services provided in accordance with that plan, and the right to
23

have the status of her case reviewed no less than every six months in order to 24

25

determine, among other things, the safety of the child and the extent of compliance

26

with the case plan. 42 U.S.C. §§ 671(a)(16); 675(1); 675(5)(B).

27

28 -66-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 67 of 73

1

d) The right to placement in a safe setting that is the least restrictive and most family

2

like setting, consistent with the best interest and special needs of the child. 42

3

U.S.C. §§ 622(b)(10)(B)(ii); 675(5)(A).

4

e) The right to have health and educational records reviewed, updated, and a copy

5 supplied to foster parents or foster care providers with whom the child is placed at
6 the time of placement. 42 U.S.C. §§ 622(b)(10)(B)(ii), 675(5)(D).
7
f) The right to have the foster parents and any pre-adoptive parent or relative 8

9

providing care to the child present at any proceeding held with respect to the child

10

as a matter of right. 42 U.S.C. §§ 622(b)(10)(B)(ii), 675(5)(G).

11

g) All other rights created by 42 U.S.C. §§ 622(b)(10)(B)(ii) and 675(5).

12

XII.

13

FIFTH CAUSE OF ACTION–

14

VIOLATION OF RIGHT TO GUARDIAN AD LITEM PURSUANT TO CHILD ABUSE PREVENTION AND TREATMENT ACT (ASSERTED PURSUANT TO 42

15

U.S.C. § 1983)

16 262. Each and every allegation is incorporated herein as if fully set forth.
17 263. As a result of the foregoing actions and inactions of Defendants, plaintiffs have
18 been deprived of their right to a guardian ad litem in all proceedings before the juvenile court
19
20 in violation of 42 U.S.C. § 5106a(b)(2)(A)(xiii), as asserted pursuant to 42 U.S.C. § 1983,
21 causing serious injury and harm.

22

XIII.

23

SIXTH CAUSE OF ACTION–

EARLY PERIODIC SCREENING, DIAGNOSIS AND TREATMENT PROGRAM

24

(“EPSDT”) OF THE MEDICAID ACT (42 U.S.C. 1396 ET SEQ.) (ASSERTED

25

PURSUANT TO 42 U.S.C. § 1983)

26 264. Each and every allegation is incorporated herein as if fully set forth.
27

28 -67-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 68 of 73

1

265. Defendants, in their official capacities, have developed and maintained

2 policies, practices, and customs that deprive all plaintiffs of statutory rights by failing to
3 provide Medicaid eligible children with the services conferred upon them by the Early and
4 Periodic Screening, Diagnosis and Treatment (“EPSDT”) program of the federal Medicaid 5
Act. Defendants have failed to provide Medicaid-eligible children with the full range of 6
services covered by Medicaid when such services are deemed necessary by a qualified 7
medical professional to treat or ameliorate a child’s condition, in violation of 42 U.S.C. § 8 9 1396a(a)(10)(A); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. 1396d(r); 42 C.F.R. § 441.56(b), as
10 asserted pursuant to 42 U.S.C. § 1983.

11

XIV.

12

SEVENTH CAUSE OF ACTION–

PROCEDURAL DUE PROCESS CLAIM UNDER THE NEVADA CONSTITUTION 13

14

266. Each and every allegation is incorporated herein as if fully set forth.

15

267. The foregoing actions and inactions of Defendants amount to a pattern,

16 practice, and custom of failure to exercise reasonable professional judgment in violation of
17 the constitutional procedural due process rights of plaintiffs, and are the cause of the violation
18 of such rights. Plaintiffs have been and are being harmed and deprived of their state-created
19 liberty or property rights without due process of law.
20 268. Defendants’ actions and inactions have resulted and are continuing to result in
21 deprivations of the following state law entitlements to which plaintiffs have a constitutionally
22
23 protected interest:
24 a. The entitlements arising from Nev. Rev. Stat. Ann. §§ 432B.500 and 432B.505, requiring

25 that plaintiffs be appointed a guardian ad litem who must appear at all proceedings before the

26 court and perform specific duties, including representing and protecting the best interests of

27 the child; 28
-68-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 69 of 73
1 b. The entitlements arising from Nev. Rev. Stat. Ann. § 432B.260, requiring Clark County
2 DFS to initiate child welfare investigations promptly upon receipt of a report of possible 3 abuse or neglect of a child; 4 c. The entitlements arising from Nev. Admin. Code Ann. §§ 424.160 and 424.805, requiring 5
Clark County DFS to ensure that the number of children placed in a particular foster home 6
does not exceed established levels; to respond in a timely manner to foster parents’ requests 7
for assistance in meeting their foster child’s needs; to assist foster parents in developing their 8 9 capabilities to meet their foster child’s needs; and to provide a program of respite care to 10 foster parents;
11 d. The entitlements arising from Nev. Admin. Code Ann. § 432B.405 and Nev. Admin. Code
12 Ann. § 424.565, requiring Clark County DFS to ensure that foster children receive necessary
13 care and services for their mental and emotional health, and receive visits no less than once a 14 month from a caseworker; 15
e. The entitlements arising from Nev. Admin. Code. Ann. §§ 432B.185 and 432B.405, 16
requiring Clark County DFS to assess plaintiffs’ safety before returning them to the custody 17
of their parents, using input from persons directly involved with the case; 18
f. The entitlements arising from Nev. Rev. Stat. Ann. § 432A.131 and Las Vegas Mun. Code 19 20 § 6.24.050, requiring that child care facilities must be licensed prior to placement of plaintiffs 21 in such facilities;
22 g. The entitlements arising from Nev. Admin. Code Ann. § 432B.340, requiring residential
23 institutions to provide the resources needed to prevent foreseeable harm to children;
24 h. The entitlements arising from Nev. Admin. Code Ann. § 424.530 to be free from physical 25 and emotional abuse while in a foster home; and 26
27
28 -69-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 70 of 73

1 i. The entitlements arising from Nev. Rev. Stat. Ann. § 127.330, requiring that placements of

2 plaintiffs with a person who resides outside of the State must follow certain procedures and

3 criteria.

4

XV.

5 EIGHTH CAUSE OF ACTION–
6 SUBSTANTIVE DUE PROCESS CLAIM UNDER THE NEVADA CONSTITUTION

7

269. Each and every allegation is incorporated herein as if fully set forth.

8

270. The foregoing actions and inactions of Defendants constitute a failure to

9 exercise an affirmative duty to protect the welfare of all plaintiffs, which is a substantial
10 factor leading to, and proximate cause of the violation of the constitutionally protected liberty
11 and privacy interests of plaintiffs. The foregoing actions and inactions of Defendants
12 constitute a policy, pattern, practice and/or custom that is inconsistent with the exercise of
13
14 reasonable professional judgment and violates the constitutionally protected rights and liberty
15 and privacy interests of all plaintiffs. As a result, plaintiffs have been and are being deprived

16 of the substantive due process rights conferred upon them by Art. 1, §8(5) of the Nevada

17 Constitution.

18

271. These substantive due process rights include, but are not limited to: the right to

19 protection of their person from unnecessary harm while in government custody; the right to a
20 living environment that protects foster children’s physical, mental, and emotional safety, and
21 well-being; the right to services necessary to prevent foster children form deteriorating or
22 being harmed physically, psychologically, otherwise while in government custody; the right
23 not to be deprived of liberty by retention in government custody or locked detention facilities
24
25 beyond necessity; the right to treatment and care consistent with the purpose of the

26 assumption of custody by Defendants; the right not to be retained in custody longer than

27 necessary to accomplish the purposes to be served by taking the child into custody; and the

28 -70-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 71 of 73

1 right to receive care, treatment, and services determined and provided through the exercise of

2 accepted, reasonable professional judgment.

3

XVI.

4

NINTH CAUSE OF ACTION–

5

NEGLIGENCE

6

272. Each and every allegation is incorporated herein as if fully set forth.

7

273. The foregoing actions and inactions of Defendants amounts to a pattern,

8 practice, and custom of failure to exercise reasonable professional judgment in violation of

9 Nevada child welfare statutes, as follows:

10 a.

Nev. Rev. Stat. Ann. §§ 432B.500 and 432B.505, requiring that plaintiffs be appointed

11 a guardian ad litem who must appear at all proceedings before the court and perform specific
12
duties, including representing and protecting the best interests of the child; 13

14 b. Nev. Rev. Stat. Ann. § 432B.260, requiring Clark County DFS to initiate child welfare

15 investigations promptly upon receipt of a report of possible abuse or neglect of a child;

16 c. Nev. Admin. Code Ann. §§ 424.160 and 424.805, requiring Clark County DFS to

17 ensure that the number of children placed in a particular foster home does not exceed

18 established levels; to respond in a timely manner to foster parents’ requests for assistance in
19 meeting their foster child’s needs; to assist foster parents in developing their capabilities to
20 meet their foster child’s needs; and to provide a program of respite care to foster parents; 21
d. Nev. Admin. Code Ann. § 432B.405 and Nev. Admin. Code Ann. § 424.565, requiring 22
Clark County DFS to ensure that foster children receive necessary care and services for their 23
mental and emotional health, and receive visits no less than once a month from a caseworker; 24 25 e. Nev. Admin. Code. Ann. §§ 432B.185 and 432B.405, requiring Clark County DFS to
26 assess plaintiffs’ safety before returning them to the custody of their parents, using input from

27 persons directly involved with the case; and

28 -71-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 72 of 73

1 f. Nev. Rev. Stat. Ann. § 432A.131 and Las Vegas Mun. Code § 6.24.050, requiring that

2 child care facilities must be licensed prior to placement of plaintiffs in such facilities;

3 g. Nev. Admin. Code Ann. § 432B.340, requiring residential institutions to provide the

4 resources needed to prevent foreseeable harm to children; and

5 h.

Nev. Rev. Stat. Ann. § 127.330, requiring defendants to follow established procedures

6 and criteria when placing plaintiffs with a person who resides outside of the state.
7

274. As evidenced by their failure to comply with these laws, Defendants have 8

9 breached their legal duties to plaintiffs. Plaintiffs belong to the class of persons that the

10 provisions were intended to protect, and the injuries plaintiffs suffered are of the type the

11 provisions were intended to prevent. Defendants’ negligence has caused damage to plaintiffs.

12

XVII.

13

PRAYER FOR RELIEF

14 WHEREFORE, Plaintiffs respectfully request that this Court:

15 a) Assert jurisdiction over this action;

16 b)

Order that plaintiffs may maintain this action as a class action pursuant to Rule 23(a)

17

and 23(b)(2) of the Federal Rules of Civil Procedure; 18

c) Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of 19

20 Civil Procedure Defendants’ violations of plaintiffs’ rights.

21 d) Preliminarily and permanently enjoin Defendants from subjecting plaintiffs to

22 practices that violate their rights.

23 e) Order appropriate remedial relief to ensure Defendants’ future compliance with their

24 legal obligations to plaintiffs and retain jurisdiction of this matter to ensure full, adequate, and 25 effective implementation of the relief ordered by this Court; 26

27

28 -72-

Case 2:06-cv-01068-RCJ-RJJ Document 1 Filed 08/30/06 Page 73 of 73

1 f) Award to the plaintiffs the reasonable costs and expenses incurred in the prosecution

2 of this action, including but not limited to reasonable fees and costs pursuant to 42 U.S.C. §§

3 1988 and 1920 and Fed. R. Civ. P. 23(h); and

4 g) Grant such other and further equitable relief as the court deems just, necessary, and

5 proper to protect the plaintiffs from further harm by Defendants.
6 DATED this 30th day of August, 2006.
7

WOLFENZON SCHULMAN 8

NATIONAL CENTER FOR YOUTH LAW

9 /s/ Bruno Wolfenzon, Esq.

10 ____________________________

11 BRUNO WOLFENZON, ESQ.

Nevada Bar No. 6177

12 GREGORY M. SCHULMAN, ESQ.

Nevada Bar No. 5766 13 4530 South Eastern Avenue, Suite 9

14

Las Vegas, Nevada 89119 (702) 836-3138

15 (702) 836-3139 fax no. Co-attorneys for Plaintiffs

16 CLARK K., JALEN A., SIA A., ROSHAUN A., CALEB A., KING A., TONI B., SUMMER B.,

17 FRANK B., and DONNA C.

18

19

/s/ William Grimm, Esq.
_______________________________ WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar. LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 14th Street, 15th Floor Oakland, California 94612 (510) 835-8098 (510) 835-8099 fax no. Co-attorneys for Plaintiffs CLARK K., JALEN A., SIA A., ROSHAUN A., CALEB A., KING A., TONI B., SUMMER B., FRANK B., and DONNA C.

20

21

22

23

24

25

26

27

28 -73-

 
 Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 1 of 11

1 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
2 GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766
3 WOLFENZON SCHULMAN 4530 South Eastern Avenue, Suite 9
4 Las Vegas, NV 89119 (702) 836-3138
5 (702) 836-3139 fax no.

6 WILLIAM GRIMM, ESQ. (admitted pro hac vice) LEECIA WELCH, ESQ. (admitted pro hac vice)
7 BRYN MARTYNA, ESQ. (admitted pro hac vice) NATIONAL CENTER FOR
8 YOUTH LAW
405- 14th Street, 15th Floor 9 Oakland, CA 94612
(510) 835-8098
10 (51 0) 835-8099 fax no.

11 KATINA ANCAR, ESQ.

California Bar No. 207950

12 Will comply with LR IA 10-2 within 21 days

FARELLA BRAUN & MARTEL LLP

13 235 Montgomery Street, 17th Floor

San Francisco, CA 94104

14 Telephone: (415) 954-4400

Facsimile: (415) 954-4480

15

for Plaintiffs

16

et al.

'7
f

UN

STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19

20

CLARK

K.

1 ,

by

his

next

friend

Sherry

Anderson; JALEN, SIA, ROSHAUN,

21

CALEB, and KING A., by their next friend Tarrah Logan; TONI, SUMMER, and

22

FRANK B., by their next friend Marilyn Paikai; and DONNA C., by her next friend

I 23 Jacquelyn Romero,

CASE NO.: 2:06-cv-01068-RCJ-RJJ JUDGE: Hon. Robert C. Jones
FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED)

24 II

Plaintiffs,

II

26

1 Plaintiffs arc

I '~)t"

il

Civil Procedure. Pseudonym litigation should be requirements laid out in Rule I plaintiffs are children:

in this case because are challenging

I28 the lawsuit

their real identities would compel plaintiffs to reveal

intimate information.

I

FIRST AMENDED COMPLAH\T (CLASS ACTION ALLEGED)

2143]\1094304-.l

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 2 of 11

1
vs.
2
KENNY C. GUINN, Governor of Nevada; 3 MICHAEL WILLDEN, Director of the
Nevada DHHS; FERNANDO SERRANO, 4 Administrator of the Nevada Division of
Child and Family Services; JOHN DOE, 5 Bureau Chief of the Bureau of Services for
Child Care of the Division of Child and 6 Family Services; VIRGINIA
VALENTINE, Clark County Manager; 7 CLARK COUNTY DEPARTMENT OF
FAMILY SERVICES; TOM MORTON, 8 Director of Clark County Department of
Family Services; LOUIS PALMA, 9 Manager of Shelter Care for the Clark
County Department of Family Services; 10 BRUCE L. WOODBURY, TOM
COLLINS, CHIP MAXFIELD, YVONNE 11 ATKINSON GATES, MYRNA
WILLIAMS, LYNNETTE BOGGS 12 MCDONALD, and RORY REID, Clark
County Commissioners; and CLARK 13 COUNTY,

14

Defendants.

15

16

7 FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED)2

18

I.

19

JURISDICTION AND VENUE 20 I

1
L

This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343,

21 and 1367. Plaintiffs' action for declaratory and injunctive relief is authorized by 28 U.S.C.

22
§§ 1343, 2201, 2202, and by Fed. R. Civ. P. 57 and 65.

23

24

25
261
27
28

2 Plaintiffs submit their First Amended Complaint in accordance with Fed. R. of Civ P. I

which

that a

"party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served."

Defendants have not filed answers in this matter, only motions to dismiss. Federal case law holds that a motion to

dismiss is not a responsive pleading within the meaning of Rule 15. See Crum v. Circus Circus Entet!Jrise, 231 F.3d

I 129. 1!30 3 (9th Cir.

216

F.3d 788 Cir.

not

to obtain leave

Amended Complaint See Crum v. Circus Circus Enterprise, 23! F.3d at 1!30 n, 3.

- 2-

2!433\!09·+304.!

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 3 of 11

2. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the

2 events or omissions giving rise to the claims in this case arise in this district.

3

II.

4

THE PARTIES

5

3. Plaintiff Clark K. is a seventeen-year-old boy who has been in the legal custody of

6 Clark County Deprutment of Family Services ("Clark County DFS") since July 2003. He

7 currently resides in Clark County, Nevada in the home of his grandparents who have been

8 licensed foster parents for Clark County. Clark appears in this action by his next friend, Sherry

9 Anderson who is his paternal grandmother.

10

4. Plaintiffs Jalen A., an eight-year-old boy; Sia A., a seven-year-old girl; Roshaun

11 A., a five-year-old boy; Caleb A., a four-year-old boy; and King A., a one-year-old boy, are all

12 siblings. They have been in the legal custody of Clark County DFS since December 2004. They

13 currently reside in a foster home in Clark County, Nevada. Jalen, Sia, Roshaun, Caleb, and King

14 appear in this action by their paternal aunt, Tarrah Logan, who is acting as their next friend. The

15 children lived with Tarrah at various points in their lives, sometimes for as long as nine months,

16

to placement foster care in

they were taken

care,

7

lS

s

18 youngest siblings.

19

5. Plaintiffs Toni B., a four-year-old girl; Summer B., a seven-year-old girl; and

20 Frank B., a five-year-old boy, are siblings. They have been in the legal custody of Clark County

21 DFS since October 3, 2002. They currently reside in a foster home located in Clark County,

22 Nevada. Toni, Summer, and Frank appear in this action by their next friend, Marilyn Paikai.

23 Mrs. Paikai has been a shelter/foster parent for Clark County since October 2001. She was the

24 foster parent for Toni for more than two years, and has provided care for and is familiar with

25

and

26

Plaintiff Donna C. is a five-year-old girl who has been in the legal custody of

27

DFS since

2004. currently

a foster

Clark County,

28

-3-

2!433\1094304.1

FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 4 of 11

1 Nevada. Donna appears in this action by her next friend, Jacqueline Romero. Mrs. Romero is a 2 Clark County foster parent who previously cared for Donna.

3

7.

Defendant Kenny C. Guinn is the Governor of Nevada and Chief Executive

4 Officer for the State, and is sued in his official capacity. He is responsible for ensuring that all

5 Nevada agencies comply with the applicable federal and state laws, and oversees and directs the

6 activities of Nevada Department of Health and Human Services ("Nevada DHHS") and Nevada

7 Division of Child and Family Services ("State DCFS"), pursuant to Nev. Rev. Stat. Ann.

8 § 232.310. His business address is Capitol Building, 101 N. Carson Street, Carson City, NV

9 89701.

10

8. Defendant Michael Willden is the Director of Nevada DHHS, and is sued in his

11 official capacity. Nevada DHHS is the "sole agency responsible for administering the provisions

12 of law relating to its respective divisions", which includes State DCFS. Nev. Rev. Stat. Ann.

13 § 232.300. The Director of Nevada DHHS is responsible for carrying out the administration of

14 State DCFS, as well as the other divisions of the Department. Nev. Rev. Stat. Ann. § 232.320.

15 He is also responsible for appointing divisional directors, including the Administrator of State

16 DCFS,

has responsibility

provision of child welfare services throughout

7

state.

18 600 Carson City, NV 89701-3708.

19

9.

Defendant Fernando Serrano is the Administrator of State DCFS, and is sued in his

20 official capacity. He is responsible for the administration and oversight of all functions of State

21 DCFS. State DCFS administers all federal funds granted to the State for child welfare services; it

22 must adopt regulations establishing uniform standards for child welfare services provided by the

23 counties and is charged with monitoring the delivery of all child welfare services by Clark and

'-)'+' Washoe Counties. His business address is 711 East 5th Street, Carson City, NV 8970 l.

25 I

Defendant

Doe is Bureau Chief of the Bureau of Services for Child Care

26
27 28

II
~
~

("the Bureau'') of State DCFS, and is sued in his official capacity.3 The

has the

3 Plaintiffs were notified State Defendants" counsel that the former Bureau Chief. Paula before Plaintiffs" Complaint was fiied. Upon information and belief, the position currently remains unfilkd.

- 4-

214-33\\094304.1

II

FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED;

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 5 of 11

1 responsibility to "ensure that every person operating a [child care] facility is licensed." Nev.

2 Admin. Code § 43 2A.l70( l ). Various statutes and regulations address the role of the Bureau in

3 making sure that child care facilities and services are "safe and responsive" as set forth in Nev.

4 Rev. Stat. Ann.§ 432A.010. See Nev. Rev. Stat. Ann.§§ 432A.040, 432A.070, 432A.l31,

5 432A.210; Nev. Admin. Code§§ 432A.l70, 432A.180. The Bureau Chief is the administrator in

6 charge of ensuring the proper and efficient performance of the functions of the Bureau. Nev.

7 Rev. Stat. Ann. §432A.070. The business address for the Bureau Chief is 400 W. King St., Suite

8 230, Carson City, Nevada 89703.

9

11. Defendants Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson

10 Gates, Myrna Williams, Lynette Boggs McDonald, and Rory Reid are the seven members of the

ll Clark County Board of County Commissioners. The Board of County Commissioners is

12 responsible for running the County government, including hiring a County Manager who is

13 responsible for the day-to-day administrative operations of the County government. Their

14 business address is 500 Grand Central Parkway, Las Vegas, Nevada 89106.

15

12. Defendant Clark County is subject to the jurisdiction of this court. With the

18 transferred from State DCFS to the county agency. Clark County has a population of over

19 100,000, and is responsible for providing funding in an amount set by the County for the

20 provision of child welfare services.

21

13. Defendant Virginia Valentine is the Clark County Manager, and is sued in her

22 official capacity. She is responsible for managing the County's $5 billion budget and providing

23 administrative oversight for all County departments, including the Department of Family

24 Services. Her business address is 500 S. Grand Central Parkway, Las Vegas, NV 89155.

25

Clark

place business in Clark County,

26 Nevada. Clark County DFS is responsible for administering and providing all child

neglected children Clark County,

protective services

28 and shelter care, pursuant to Nev. Rev. Stat.

§ 432B.030.

-5-

FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED)

2 i ..\33\ l 094304.1

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 6 of 11

1

15. Defendant Tom Morton is the Director of Clark County DFS, and is sued in his

2 official capacity. He is the executive officer of Clark County DFS, and is responsible for

3 administering child welfare services in Clark County and for ensuring the safety and well-being

4 of children in or at risk of entering the child welfare system, pursuant to Nev. Rev. Stat. Ann.

5 § 4328. His business address is 701 N. Pecos Rd., Bldg. K, Las Vegas, Nevada 89101.

6

16. Defendant Louis Palma is the Manager of Shelter Care for Clark County DFS, and

7 is sued in his official capacity. He is responsible for oversight of all shelter care facilities and

8 programs in Clark County, which includes the day-to-day operations of Child Haven. His

9 business address is 701 N. Pecos Rd., Las Vegas, Nevada 89101.

lO

III.

11

INTRODUCTION

12

17. This civil rights class action lawsuit is brought by ten children on behalf of all

13 abused and neglected children who are in, or at risk of entering, the Clark County foster care

14 system. Plaintiffs seek declaratory and injunctive relief to compel Nevada and Clark County

15 officials to meet their legal duties under federal and state law to protect and care for abused and

6

7

18.

were

or

m

18 Clark County. During the same year, 4,548 children entered foster care. There are currently over

l9 3,600 children in the legal custody of Clark County placed in foster family homes, group homes,

20 unlicensed and/or unpaid relative homes, and other settings.

21

19. Until2004, Nevada operated a bifurcated child welfare system in which the state's

22 two counties with populations of over 100,000- Clark and Washoe Counties were responsible

23 for providing child protective services, while the State bore responsibility for providing foster

24 care services. As a result of AB 1, passed by the Nevada State Legislature in 200 I, responsibility

for both child protective services and foster care were vested Clark and Washoe Counties.

The State retained responsibility for supervision and oversight Clark and Washoe Counties'

programs to ensure, among other things, compliance

state laws, ''-'i",'-"<'uv

28

-6 -

21433\1094304, I

FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED;

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 7 of 11

standards. The transfer of foster care staff and services from the State to Clark County was

2 completed in October 2004.

3

20. Clark County's child welfare system is in crisis. Virtually every aspect of the

4 County's child protective services and foster care system is failing the children and youth it is

5 charged with protecting. The County's child welfare system denies children their rights under the

6 Federal and State Constitutions, laws, regulations, policies, and accepted professional standards.

7

21. The County and State's failures have resulted in harm to an untold number of

8 children. A recent state report indicates that within the last four years at least 79 children have

9 died from abuse or neglect. These victims of fatal injuries or neglect include children in foster

10 care and children left at home following a substantiated report of abuse. Many of their deaths

11 were preventable.

12

22. Within the past two and a half years, one study after another has documented Clark

13 County's failure to protect the health, safety, and well-being of child abuse victims and children

14 in foster care. Defendants have had full knowledge of these studies, and have nonetheless failed

15 to take adequate steps to address the long-standing problems identified in them. These studies

16 include:

18

part of the preparation for the February 2004 federal Child and Family Services

19

Review ("CFSR");

20

0

A February 2004 federal CFSR of Nevada's child welfare system that included an

21

audit of Clark County's system ("2004 Federal Review");

22

0

An April 2004 Audit of Child Haven and the Clark County Shelter Home Program

23

conducted by the Audit Department of Clark County;

24

0

An April 2005 Report to the Clark County Commissioners on the Status of Child

o

June 2005 report of a review of child abuse fatalities Clark County conducted

by

Welfare Institute

Morton was

director;

28

0

An October 2005 case review of Clark County child abuse and foster care cases

- 7-

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FIRST AMENDED CO:\iPLAINT (CLASS ACTIO'\ ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 8 of 11

1

conducted by State DCFS ("2005 County Case Review"); and

2

0

An April 2006 Report of the Findings and Recommendations: Child Deaths 2001-

3

2004 describing the results of an independent child death review panel

4

investigation of deaths related to child abuse or neglect in Clark County ("2006

5

Child Fatality Report").

6

23. During July 2006, representatives of the Administration for Children and Families

7 of the United States Department of Health and Human Services ("Federal DHHS") conducted a

8 site visit to reassess Clark County's child welfare program. Federal officials concluded that the

9 situation for children and families served by Clark County's child welfare system "has worsened"

10 since officials' earlier on-site visit in Febmary 2004. Some of the specific deficiencies reported

11 by federal officials include:

12

0

The State's acquiescence in Clark County's continued use of an unlicensed

13

congregate care facility- Child Haven;

14

0

Consistent overcrowding at Child Haven;

15

0

Unnecessary removal of children from their homes due to Clark County's failure

16

to provide an adequate array of services to prevent placement;

7

0

care;

18

0

Inadequate assessments of the safety of suspected victims of child abuse and

19

neglect;

20

0

Inadequate training of staff and insufficient recruitment of foster parents;

21

0

Unanswered or lengthy delays in answering calls to the Child Abuse Hotline;

22

0

The use of an invalid, ineffective risk assessment tool;

23

0

The failure to use data to provide effective oversight and supervision; and

o The failure to provide a guardian ad litem for every child in foster care.

25

24. In a

to Nevada child welfare officials on August 11, 2006, Sharon M.

26

Regional Administrator for the Administration

and

_,)'"'

manner m

continuum of child welfare services is

28 in Clark County should be a grave concern to the State.'' August 11, 2006 Letter from Sharon M.

-8 -

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FIRST AMENDED COMPLAINT (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 9 of 11

Fujii to Defendant Willden. She notified state officials that the current Program Improvement

2 Plan between the State and federal officials "is no longer adequate to address the serious

3 deficiencies in the State's child welfare program, most specifically Clark County which accounts

4 for the majority of the State's child welfare population." /d.

5

25. Defendants Willden and Serrano subsequently wrote a letter to Defendant Morton

6 warning him that:

7

we continue to receive information indicating serious deficiencies

8

with the [child welfare] system ... ; the existing level of effort to correct system deficiencies is not adequate; [and] that despite lists

9

of corrective action plans ... still we have major failures.

10 August 30, 2006 Letter from Defendants Willden and Serrano to Defendant Morton.

11

26. For years, Clark County has evaded scrutiny of its child protective services and

12 foster care programs. It has hidden behind a veil of confidentiality meant to protect children and

13 families, but which the County has used to shield itself from oversight and criticism.

14

27. Among other things, it has failed and continues to fail to comply with federal law

15 requiring that it provide the public with findings and information concerning child abuse victims

16 who have or

information available to

IS
18 foster care is from 2004.

out

most recent on

19

28. Nevada and its counties receive millions of dollars in federal funds for the

20 provision of child welfare services and are therefore required to comply with federal mandates,

21 including those set forth in the Adoption and Safe Families Act of 1997, the Child Abuse

22 Prevention and Treatment Act, and the Early Periodic Screening, Diagnosis and Treatment

23 provisions of Medicaid law. In state fiscal year 2004, Nevada spent over $79 million on child

24 welfare services, of which $44 miliion was federal funds.

25

29.

T~i'l.lS

also challenges the placement children, and the conditions in which

26 they are forced to

at Child Haven- an unlicensed child care institution operated by Clark

27 County.

has not been a

and

placed

28

Upon entering foster care Clark County, children are placed at Child

- 9-

FIRST AME;'\JDED COMPLA!l\T (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 10 of 11

1 there for as little as a few hours or as long as a year or more. For years, unlike other facilities 2 providing care to foster children in Nevada, Child Haven has been allowed to operate without 3 meeting the minimum licensing standards required by state law. The Child Haven facility houses 4 infants and young children alongside teenagers, some of whom have significant behavioral 5 problems and pose a risk of serious harm to the younger, more vulnerable children in the facility. 6 Child Haven is frequently extremely overcrowded resulting in children sleeping on the floors and 7 in gymnasiums, separated from their siblings and in conditions that have contributed to the spread 8 of infectious disease at Child Haven. Children's needs, particularly their need for mental health 9 care, are not being met.

10

30. High caseloads and inadequate training of Clark County child protective services

11 and foster care workers contribute to the crisis within the system. Many workers' caseloads

12 exceed those established by national standards. Workers are ill prepared and supervised to
I 13 perform a job in which failure to abide by law, regulations, and professional standards, and failure

14 to exercise professional judgment result in serious injury to or death of a child.

15

31. Investigations of child abuse reports both those involving children in foster care

16 and those at
,,...,
l I

fail to comply with state law and

As a

18

32. Clark County DFS has failed to recruit and retain a sufficient number of foster

19 homes, resulting in harm to children whose needs are mismatched with the foster parents'

20 experience and abilities. Placements are often made based solely upon whether or not there is an

21 available bed in the foster home. As a result, placements often break down, and children are

22 shuttled from one house, group home, and institution to another. Caseworkers fail to visit

23 children in these placements, and, as a result, are unaware of the quality of care the child is

24 receiving, the harm befalling the child, the risk to which the child is exposed, and the lack of

26

Children in foster homes recruited, licensed, and supervised by Defendants are

27

those homes.

are complaints about

28 Clark County DFS often turns a deaf ear, allowing children to remain in dangerous homes that

- IlA V -

2i433\i094~104.!

FIRST AMENDED COMPLAINT (CLASS A.CT!ON ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 57 Filed 10/19/06 Page 11 of 11

1 either should not have been licensed in the first place or should have had their license revoked.

2 At the same time, Clark County DFS retaliates against foster parents who advocate for services

3 for a child placed in their homes or who disagree with the department's plan for the child, driving

4 out the very foster parents the system needs. Clark County DFS also fails to provide foster

5 parents with even the most basic background information about children they place in their homes

6 and the supportive services needed.

7

34. Children entering foster care have many special needs - for medical and mental

8 health care as well as educational and special educational services. Clark County DFS fails to act

9 as a responsible parent to children in its custody. As a result, foster children's needs are not met

10 and services are delayed or not provided at all, causing substantial harm to these children.

11

35. Children in foster care have no voice in the court proceedings where decisions are

12 made that affect their basic safety, their temporary and permanent placement, and their general

13 well-being. Even though state and federal law mandate appointment of a representative to look

14 out for the interests of the child in all cases, Clark County falls woefully short of meeting this

15 requirement.

16

36. If Defendants' unconstitutional and unlawful

are not

7

more

to

18 State will suffer untold misery, some will die, and others will leave the foster care system ill

19 prepared to live healthy, independent, and productive lives.

20

IV.

21

CLASS ACTION ALLEGATIONS

22

37. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(a) and

23 23(b)(2). Plaintiffs represent a countywide class of children who have been, are, or will be

24 victims of child abuse and neglect and have been, are, or will be in the legal custody of Clark

25 County

26

38. The requirements of Fed. R. Civ. P. 23 are met in that the class is so numerous

27 joinder of

IS

class is tluid in that new

are

28 regularly created.

are over 3,600 children in foster care in Clark County. Throughout the

- ll -

2!433\!094304.1

FiRST AMENDED COMPLAINT (CLASS ACTIO\! ALLEGED)

 
 Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 1 of 23

1 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
2 GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766
3 WOLFENZON SCHULMAN 4530 South Eastern Avenue, Suite 9
4 Las Vegas, NV 89119 Telephone: (702) 836-3138
5 Facsimile: (702) 836-3139 Co-attorneys for Plaintiffs
6 WILLIAM GRIMM, ESQ. (pro hac vice)
7 Admitted to the Maryland Bar LEECIA WELCH, ESQ. (pro hac vice)
8 California Bar No. 208741 BRYN MARTYNA, ESQ. (pro hac vice)
9 California Bar No. 239852 NATIONAL CENTER FOR YOUTH LAW
10 405 – 14th Street, 15th Floor Oakland, CA 94612
11 Telephone: (510) 835-8098 Facsimile: (510) 835-8099
12 Co-attorneys for Plaintiffs

13 KATINA ANCAR, ESQ. (pro hac vice) California Bar No. 207950
14 FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor
15 San Francisco, CA 94104 Telephone: (415) 954-4400
16 Facsimile: (415) 954-4480 Co-attorneys for Plaintiffs
17

18

UNITED STATES DISTRICT COURT

19

DISTRICT OF NEVADA

20

21 CLARK K, et al.,

Case No.: 2:06-CV-01068 RCJ

22

Plaintiffs,

23

vs.

24 KENNY C. GUINN, et al.,

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

25

Defendants.

26

27

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

21433\1078486.7

Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 2 of 23

1

MOTION FOR CLASS CERTIFICATION

2

TO EACH PARTY AND ITS ATTORNEYS OF RECORD:

3

NOTICE IS HEREBY GIVEN that as soon as the matter may be heard by the above-titled

4 Court, located at 333 S. Las Vegas Blvd., Las Vegas, NV 89101, in the courtroom of Judge

5 Robert C. Jones, plaintiffs will move the Court to issue an order as follows:

6

Certifying that this action is maintainable as a class action under Federal Rule of Civil

7 Procedure 23(a) and 23(b)(2);

8

1. Certifying the class of persons described in plaintiffs’ complaint as the plaintiff

9 class;

10

2. Designating the individual named plaintiffs as representatives of the plaintiff class

11 and their counsel of record as attorneys for the plaintiff class; and

12

3. Declining to require plaintiffs to provide notice to absent class members prior to

13 judgment.

14

This motion will be made upon the grounds that, pursuant to Fed. R. Civ. P. 23(a): (1) the

15 proposed class is so numerous that joinder of all members individually is impracticable; (2) there

16 are questions of fact or law common to the class; (3) the claims and defenses of the class

17 representatives are typical of the class; and (4) the class representatives will fairly and adequately

18 protect the interests of the class. Hanlon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

19 1992). Plaintiffs’ also bring this motion on the grounds that the class is maintainable under Fed.

20 R. Civ. P. 23(b)(2).

21

Plaintiffs’ motion is based on this Notice of Motion and Motion For Class Certification;

22 the Memorandum of Points and Authorities in support thereof; the Declarations of William

23 Grimm, Gregory M. Schulman, Katina Ancar, Clark K., Tarrah Logan, Marilyn Paikai, and

24 Jacquelyn Romero; the pleadings and papers on file herewith; and upon such other matters as may

25 be presented to the Court at the time of the hearing.

26

27

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

- 2 -

21433\1078486.7

Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 3 of 23

1 WOLFENZON SCHULMAN

2

3

/s/

BRUNO WOLFENZON, ESQ.

4 Nevada Bar No. 6177

GREGORY M. SCHULMAN, ESQ.

5 Nevada Bar No. 5766

4530 South Eastern Avenue, Suite 9

6 Las Vegas, NV 89119

Telephone: (702) 836-3138

7 Facsimile: (702) 836-3139

Co-attorneys for Plaintiffs

8

9 FARELLA BRAUN + MARTEL LLP
10

11 /s/
12 KATINA ANCAR, ESQ. California Bar No. 207950
13 FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor
14 San Francisco, CA 94104 Telephone: (415) 954-4400
15 Facsimile: (415) 954-4480 Co-attorneys for Plaintiffs
16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

NATIONAL CENTER FOR YOUTH LAW
/s/ WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

- 3 -

21433\1078486.7

Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 4 of 23

1

MEMORANDUM OF POINTS OF AUTHORITIES

2

I

3

INTRODUCTION

4

Named plaintiff children Clark K.; Jalen, Sia, Roshaun, Caleb, and King A.; Summer,

5 Frank, and Toni B.; and Donna C. move the Court to certify a class of Clark County foster

6 children pursuant to Federal Rule of Civil Procedure 23. Although defendants collectively bear

7 the responsibility of assessing, protecting, and providing for the needs of foster children, they

8 have overwhelmingly shirked these duties. For years, Clark County’s abused and neglected

9 children have been placed in an unlicensed shelter facility from which they are replaced into

10 foster homes that are inadequately screened, supported, and supervised. While in foster care, they

11 are deprived of necessary medical and mental health care, their special needs go unattended, and

12 their prospects for the future worsen rather than improve. Others are left in abusive homes to be

13 revictimized, unnecessarily removed from homes in which reasonable efforts could safely sustain

14 and protect the child, and returned to homes where their health and safety is endangered and re-

15 abuse frequently occurs.

16

Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), plaintiffs seek to represent

17 a county-wide class consisting of all children

18

who have been, are, or will be victims of child abuse and neglect,

and who have been, are, or will be in the legal custody of Clark

19

County Department of Family Services (“DFS”).

20 First Amended Complaint (“FAC”) ¶ 37.

21

Prosecution of this litigation as a class action is the most appropriate – and the only

22 realistic – means for redressing the injuries suffered by the thousands of children who are

23 members of the class. Reliance upon any one class member’s claims will not effectively remedy

24 the class-wide issues raised in this suit. Resolving these common issues in a single action is the

25 most appropriate and efficient vehicle for obtaining effective relief for plaintiff children.

26

By contrast, if this action does not proceed as a class action, these foster children will be

27 unable to address the system-wide deficits that have caused their injuries. It is not feasible for

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

21433\1078486.7

Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 5 of 23

1 any individual foster child to carry the burden of developing, preparing and presenting the proof

2 required to establish and remedy these system-wide failures.

3

Plaintiffs absolutely satisfy each of Rule 23’s requirements for class certification. First,

4 plaintiffs meet the Rule’s “numerosity” criterion. The class of foster children in Clark County is

5 much too large to accomplish joinder. Second, plaintiffs’ claims challenging defendants’

6 harmful, system-wide practices by definition share the requisite common questions of law and

7 fact to fulfill the Rule’s “commonality” factor. Similarly, plaintiffs easily comply with the

8 “typicality” standard. The named representatives’ claims are characteristic of those of the

9 proposed class. Finally, based on the class members’ compelling joint interests in pursuing their

10 shared claims and the engagement of qualified legal counsel, the adequacy of plaintiffs’

11 representation is without question.

12

Plaintiffs therefore respectfully request that the Court follow the mandate of Federal Rule

13 of Civil Procedure 23 and enter an order (1) certifying the proposed class in this case under

14 Rule 23(b)(2) and (2) declining to require plaintiffs to provide notice to absent class members of

15 this action prior to final judgment.

16

II

17

STATEMENT OF FACTS

18

On August 11, 2006, the United States Department of Health and Human Services

19 acknowledged that Clark County’s foster care system suffers from “serious deficiencies” that

20 child welfare officials are currently unable or unwilling to address. See August 11, 2006 Letter

21 from Sharon M. Fuji to Michael J. Wilden (hereinafter “Fuji Letter”) at 1, Exh. B to Declaration

22 of Katina Ancar (“Ancar Decl.”). These deficits are causing grave harm to the approximately

23 5,000 children who enter foster care each year due to abuse and neglect, and thus depend on

24 defendants to provide appropriate care and services. The children who have suffered the worst

25 fates are the seventy-nine – including the infant sibling of class representatives Jalen, Sia,

26 Roshaun, Caleb and King A. – who died from abuse during the last four years. See Report of

27 Findings and Recommendations Child Deaths 2001-2004 (“Blue Ribbon Panel Report”) at 8,

28 Exh. C to Ancar Decl.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

- 2 -

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Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 6 of 23

1

Named plaintiffs’ circumstances are illustrative of the class members’ condition. Plaintiff

2 Clark K., a seventeen year-old youth, came into Clark County DFS’s legal custody in July 2003. 1

3 Before then, the department had received ten reports of abuse or neglect involving Clark and/or

4 his siblings. Declaration of Clark K. (“Clark K. Decl.”) ¶ 3. Neither the multiple reports nor

5 Clark’s eventual status as a DFS dependent prompted DFS to protect him from circumstances no

6 child should have to confront. In 1999, when Clark’s mother moved from Las Vegas, she took

7 Clark with her where Clark endured horrible living conditions. He lived with approximately ten

8 other relatives in a filthy two-bedroom trailer and ate from trash dumpsters. When his mother

9 then moved in again this to Virgina he was often left with strangers while his mother bought,

10 dealt and took drugs. Clark K. Decl. ¶ 5. After Clark was able to contact his grandparents, he

11 came to live with them in Las Vegas. At the advice of Clark County DFS, Clark’s grandparents

12 first became his legal guardians and later his licensed foster parents. Living with his

13 grandparents, Clark attended school regularly, got good grades, and was in good health. Id. ¶ 7.

14

However, Clark’s lack of representation by an attorney or guardian ad litem, and DFS’s

15 denial of the opportunity for Clark or his grandparents to attend dependency court hearing to

16 express Clark’s wishes not to go back to his mother, resulted in his return to her. Id. ¶ 8-10, 14.

17 Prior to sending Clark back to Texas, his caseworker failed to assess whether it was safe for him

18 to return to his mother’s custody. Had the caseworker conducted a reasonable investigation, he

19 would have learned that Clark’s mother was on probation for burglary, had been without a job for

20 a very long time, had no suitable housing, and was continuing to abuse drugs and alcohol. Id.

21 ¶ 15. In her custody, Clark often went days without food. He also moved around among various

22 family members, while his mother disappeared on frequent drug binges failing to provide for his

23 basic needs. Often he had no transportation to school, and his grades plummeted. Id. ¶ 20.

24

In 2005, with help from his grandmother and sister, Clark took a Greyhound bus back to

25 his grandparents in Las Vegas. Despite the traumatic events Clark experienced in Texas, his DFS

26
1 Plaintiffs are proceeding under fictitious names and satisfy the requirements of Rule 10(a) of the Federal Rules of
27 Civil Procedure. Pseudonym litigation should be permitted in this case because plaintiffs meet the following
requirements laid out in Rule 10(a): plaintiffs are children; they are challenging governmental activity; and pressing
28 the lawsuit using their real identities would compel plaintiffs to reveal highly intimate information.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND MPA IN SUPPORT THEREOF CASE NO.: 2:06-CV-01068 RCJ

- 3 -

21433\1078486.7

Case 2:06-cv-01068-RCJ-RJJ Document 74 Filed 11/21/06 Page 7 of 23

1 caseworker has been unresponsive, making few efforts to provide him with counseling,

2 educational services, or independent living services. Clark K. Decl. ¶ 25.

3

Plaintiffs Jalen, Sia, Roshaun, Caleb, and King A. are siblings – four boys and one girl.

4 Declaration of Tarrah Logan (“Logan Decl.”) ¶ 2. In custody since December 2004, they have

5 fared no better than plaintiff Clark. While in DFS custody, these five children have been placed

6 in multiple inappropriate and dangerous placements that have been harmful to their physical,

7 mental, and emotional well-being. They have been placed in a restrictive, overcrowded, and

8 dangerous child care facility (Child Haven) for almost a year; subjected to further emotional,

9 physical, and sexual abuse and neglect while in foster and shelter homes; placed in shelter and

10 foster homes that lacked the information and services to care adequately for their basic needs;

11 denied treatment and care to address their history of abuse and neglect; denied visitation and

12 contact with relatives; denied representation by either a guardian ad litem or an attorney during

13 their first year in foster care; and separated from each other for long periods of time. Their baby

14 brother, Jerome, died in a DFS-licensed foster home on April 3, 2005, at the age of 14 months.

15 See Generally Logan Decl. ¶ 13.

16

Sibling seven-year-old Summer, five-year-old Frank, and four-year-old Toni B., who have

17 been in Clark County DFS’s custody since October 2002, have also had frightful experiences.

18 Declaration of Marilyn Paikai (“Paikai Decl.”) ¶ 2, 6. While in foster care, the children have been

19 placed with a series of foster parents who were given little background information about the

20 children or who were not trained or supported to meet the children’s special needs. Paikai Decl.

21 ¶¶ 6-7. As a direct and foreseeable result, the children changed placements many times, with

22 Frank and Summer experiencing between five and seven placements within three months. Id.

23 ¶¶ 7-10. The children were also physically and emotionally abused in at least one foster home,

24 and have been placed at Child Haven several times. In addition, Clark County DFS did not

25 conduct proper investigations of reports of abuse of Summer and Frank. Id. ¶¶ 11-12.

26

Instead of addressing the abuse and ensuring that the children had stable placements, the

27 children were returned to their mother. After additional reports of abuse, the children reentered

28 foster care. Id. ¶ 16. Since returning to foster care, DFS has refused to place them in the home of

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1 the one foster family that has the experience to care for them properly. Even though Toni’s

2 physician has advised that it is in Toni’s best interest to have contact with this family, DFS has

3 refused to allow communication. Id. ¶ 17. Despite their disturbing experiences of abuse, both at

4 home and in foster care, DFS failed to provide the children with critical health and mental health

5 services. Id. ¶¶ 13-14. For the first year that they were in DFS custody, they were not

6 represented by a guardian ad litem. Id. ¶ 4.

7

Five-year-old plaintiff Donna C. came into Clark County DFS’s legal custody in

8 December 2004. Declaration of Jacquelyn Romero (“Romero Decl.”) ¶ 3. Since DFS assumed

9 responsibility for Donna’s care, at no time has a guardian ad litem or attorney represented her at

10 court hearings, staffings, Child and Family Team meetings, or in any other decision-making

11 meetings held by DFS at which decisions were made about her placement, treatment, and/or

12 permanent plan. Romero Decl. ¶ 4. After Donna was returned to her mother on a trial visit, her

13 mother stole a car and, for months, drove Donna all over the United States and Canada. Donna

14 was subjected to a series of traumatizing experiences. Romero Decl. ¶ 7. DFS was not visiting

15 Donna’s home as required. As a result, DFS did not learn of Donna’s abduction until her mother

16 was arrested in New Mexico and law enforcement contacted the agency. Romero Decl. ¶ 10.

17

Upon her return to DFS custody, Donna was denied necessary and appropriate medical

18 and mental health care. Id. ¶ 13. When Donna’s foster parent asked the juvenile court to

19 reconsider revising Donna’s visitation plan to ensure her mother could not leave town with her

20 again. Donna was removed from this foster home in which she was receiving exemplary care.

21 Id. ¶¶ 15-16.

22

Horrific as these facts are, named plaintiffs’ stories are by no means exceptional. Rather,

23 the descriptions of these children’s lives are sadly indicative of DFS’s daily disregard for the

24 health and safety of all of Clark County’s foster children. These tragic accounts are merely the

25 latest signals of the need for defendants to institute an overarching reform of their child welfare

26 policies and practices to prevent further harm to the children in their care and to comply with

27 applicable state and federal laws.

28

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1

Plaintiff foster children allege claims based on both state and federal statutory rights

2 pursuant to 42 U.S.C. § 1983 (“Section 1983”). Also under Section 1983, plaintiffs assert their

3 rights to substantive due process under both the United States and Nevada Constitutions and to

4 procedural due process under the Fourteenth Amendment to the United States Constitution. A

5 highly-structured framework of federal and Nevada state statutes obligate defendants to

6 affirmatively protect all plaintiffs from maltreatment and to ensure their physical, mental, and

7 emotional well-being. Each of these laws confers upon every foster child a specific, personal

8 right to receipt of the statutes’ contemplated benefits.

9

Primary within this design is the Federal Adoption Assistance and Child Welfare Act of

10 1980, as amended by the Adoption and Safe Families Act of 1997 (the “Adoption Assistance

11 Act”), 42 U.S.C. §§ 620, 671 et seq. The Adoption Assistance Act grants to foster children a

12 number of rights, including but not limited to entitlements to foster placements that meet national

13 professional standards; quality services that provide for their physical safety and overall health

14 needs; an up-to-date, written plan setting forth each child’s needs; and the provision of the

15 services required to meet those needs. See generally 42 U.S.C. §§ 671, 675. Defendants have

16 taken on the obligation of providing these critical services to foster children under the Act. In

17 return for accepting this responsibility, defendants receive federal funding for the day-to-day

18 operations of their foster care programs. 42 U.S.C. §§ 622, 671 et seq. To receive these federal

19 grants, as required, the State of Nevada has submitted a “State Plan,” outlining how it will use

20 these funds to comply with federal child welfare laws.

21

Defendants also receive federal contributions to sustain their foster care programs under

22 the Child Abuse Prevention and Treatment Act (“CAPTA”), 42 U.S.C. § 5101 et seq. As with the

23 Adoption Assistance Act, receipt of federal CAPTA funds is dependent upon the State Plan. By

24 submitting the State Plan, the State of Nevada pledged to comply with CAPTA’s mandates. This

25 includes providing every abused or neglected child with a trained guardian ad litem who has a

26 first-hand understanding of the child’s needs and makes appropriate recommendations to the

27 juvenile court. 42 U.S.C. § 5101a(b)(2)(A)(xiii).

28

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1

To ensure that plaintiffs’ physical and mental health needs are not overlooked, federal law

2 provides for state and federal cooperative funding of health programs under the Medicaid Act.

3 42 U.S.C. § 1396 et seq. Pursuant to the State Plan, defendants must provide certain health care

4 services, such as Early Periodic Screening, Diagnostic and Treatment (“EPSDT”) services, to

5 foster children under the age of 21. Once defendants have provided the mandated diagnostic

6 services, any medical or mental health treatment deemed necessary to remedy the illness is also

7 required.

8

Plaintiff foster children are the direct beneficiaries of the services contemplated by each of

9 these statutes. Federal courts around the country have determined that state and county violations

10 of these statutes entitle plaintiffs to pursue their own private action to compel defendants to 11 provide the care and services due them.2 Therefore, foster children need not be satisfied with any

12 penalty that the defendants may face from the federal government for failure to comply with

13 statutory provisions. Rather, defendants’ flouting of their obligations specifically authorizes

14 plaintiffs to bring individual actions to achieve legal redress. Plaintiff children bring this suit to

15 guard both their rights under these statutes, and to receive the protection and treatment that the

16 United States and Nevada Constitutions guarantee them. To ensure that both named plaintiffs and

17 all Clark County foster children get the care they deserve, plaintiffs request that the Court grant

18 their motion for class certification.

19 20 21
A. 22 23

III
LEGAL ARGUMENT
Class Certification Requirements Must Be Construed Liberally To Foster The Efficient Administration of Justice. Plaintiffs seek to prosecute their suit as a class action under Federal Rule of Civil

24 Procedure 23. Federal Rule of Civil Procedure 23(a) seeks to promote judicial efficiency by

25
26 2 See, e.g., Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir. 2006) (Medicaid Act creates private right of action);
Katie A., 433 F.Supp.2d at 1070-1071; Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941, 948 (M.D. Tenn.
27 2000) (provisions of Adoption Assistance Act enforceable by private suit); Marisol A., 929 F.Supp. at 682-683
(provisions of Adoption Assistance Act and CAPTA enforceable by private suit); Jeanine B. by Blondis v. Thompson,
28 877 F. Supp. 1268, 1284 (E.D. Wis. 1995) (private right of action implied in Adoption Assistance Act).

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1 allowing the parties to litigate their claim and the court to award full relief in one action. Class

2 certification thus serves the goal of eliminating the need for multiple and duplicative litigation.

3 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Rule 23(a) requires that a party moving to

4 certify a class show that: (1) the proposed class is so numerous that joinder of all members

5 individually is impracticable (“numerosity”); (2) there are questions of fact or law common to the

6 class (“commonality”); (3) the claims or defenses of the class representatives are typical of the

7 class (“typicality”); and (4) the class representatives will fairly and adequately protect the

8 interests of the class (“adequacy of representation”). Hanlon v. Dataproducts Corp., 976 F.2d

9 497, 508 (9th Cir. 1992). In addition to these requirements, the party requesting class

10 certification must show that the suit falls within one or more of the three kinds of actions

11 permitted under Rule 23(b). In this case, plaintiffs seek certification under Rule 23(b)(2).

12

In evaluating a motion for class certification, the district court has broad power and

13 discretion, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 630 (1997), but “is bound to take the

14 substantive allegations of the complaint as true.” Thomas v. Baca, 231 F.R.D. 397, 399 (C.D.

15 Cal. 2005). Rule 23 requirements are construed liberally, rather than restrictively. Equal

16 Employment Opportunity Commission v. General Tel. Co. of Northwest, Inc., 599 F.2d 322,

17 328 (9th Cir. 1979). Furthermore, in determining the propriety of class certification, the question

18 is not whether [plaintiffs] have stated a cause of action or will prevail on the merits, but rather

19 whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177

20 (1974); see also Jordan v. Los Angeles County, 669 F.2d 1311, 1321 (9th Cir. 1982), vacated on

21 other grounds, 459 U.S. 810 (1982).

22

“It is well settled that class actions are an appropriate procedure in government benefits

23 cases where statutes and policies are likely to have an impact upon a broad class of recipients.” 5

24 H. Newberg, Class Actions, § 23.7 at 510 (4th ed. 2002); see also Califano v. Yamasaki, 442 U.S.

25 682, 684 (1997) (class certification was appropriate where plaintiff class requested

26 reconsideration or waiver of recoupment under Section 204 of the Social Security Act). Federal

27 district courts around the country have recognized that class action certification is an appropriate

28 vehicle for foster children to pursue reform of state and county child welfare systems. See, e.g.,

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1 Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (affirming certification of class of New

2 York foster children alleging injuries based on systemic conduct); Baby Neal v. Casey, 43 F.3d

3 48, 56 (3d Cir. 1994) (ruling that district court abused discretion in refusing to certify class of

4 Philadelphia’s foster children requesting injunctive relief); Katie A. v. Bonta, 433 F.Supp.2d

5 1065, 1067 (C.D. Cal. 2006) (finding certification appropriate where class alleged state’s foster

6 children with behavioral, emotional or psychiatric impairments were denied adequate mental

7 health services ); David C. v. Leavitt, 13 F.Supp.2d 1206, 1207 (D. Utah 1998) (court noted its

8 earlier certification of a statewide class of foster children). Clark County’s foster children assert

9 claims similar to those that these courts have acknowledged as suitable for class action

10 certification. Accordingly, plaintiffs’ motion should be granted.

11 B.
12

Plaintiffs’ Ascertainable Class Is So Numerous That Joinder of All Parties Is Impracticable.

13

The proposed class plainly meets the Federal Rule of Civil Procedure’s numerosity

14 requirement for class certification. Plaintiffs’ class, though identifiable, is too numerous to

15 permit joinder under other available procedures. In such a situation, class certification is proper.

16

Rule 23(a)(1) provides that a class action is appropriate when “the class is so numerous

17 that joinder of all parties is impracticable.” Where a class is large enough to effectively preclude

18 joinder of all parties into a single action, courts have found joinder impracticable. Harris v. Palm

19 Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964) (where the “classes involved are

20 self-evidently large,” the numerosity requirement is met); Stolz v. United Broth. of Carpenters

21 and Joiners of America, 620 F. Supp. 396, 404 (D. Nev. 1985). Although Rule 23(a) contains no

22 numerical minimum, using case law interpreting Rule 23 as a guide, a class of plaintiffs’ size

23 certainly satisfies the numerosity condition.

24

Plaintiffs need not establish the precise size of the class to obtain certification. See, e.g.,

25 Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1039 (5th Cir. 1981) (stating that

26 “federal trial courts are quite willing to accept common sense assumptions in order to support a

27 finding of numerosity”); Marisol A., 929 F. Supp at 689, aff’d 126 F.3d 372 (2d Cir. 1997).

28 However, according to the most recent records, the State of Nevada estimated that 5,262 foster

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1 children were in foster care in July 2004. See UNITY Placement Summary for State, Clark and

2 Washoe at 1, Exh. D to Ancar Decl. Clark County alone retained responsibility for nearly 4,000

3 of these children. See id. However, the placement summary estimate is merely a one-time

4 snapshot of the number of children of care. The calculation does not include those children taken

5 into foster care after July 2004, and does not take into account those children released from DFS

6 custody before July 2004. Nor does the summary include similar estimates for prior and

7 subsequent years. As a result, the proposed class is not a static entity, but rather constitutes a

8 fluid group that may fluctuate over the course of months or even days. Thus, without additional

9 statistics, the state’s placement data represent the lowest possible estimate of the proposed class.

10 Nonetheless, even this minimum approximation confirms that the proposed class numbers

11 exceeds 4,000 children. Accordingly, even under defendants’ own estimate, there is no doubt that

12 the class’ size makes joinder of the plaintiffs in this action impracticable. Stolz, 620 F. Supp. at

13 404 (holding that class numbering “close to 700 . . . clearly makes joinder . . . impracticable”). A

14 proposed class of 4,000 or more members is simply too large to accomplish joinder of all parties.

15

Plaintiffs’ status as abused and neglected minors placed in the care and custody of the

16 very defendants against whom they seek relief, further elucidates why joinder is impracticable. A

17 group of plaintiffs suffering from either the realistic fear of retaliation or lacking the financial

18 means to pursue individualized remedies may severely hinder attempts at joinder. Robidoux v.

19 Celani, 987 F.2d 931, 935 (2nd Cir. 1993) (where plaintiffs’ status as public benefits recipients

20 indicated that they were too financially disadvantaged to pursue individual claims, joinder

21 impracticable); see also Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir.

22 1999) (factors weighing in favor of certification include plaintiffs’ reluctance to file individual

23 suit against employer on whom plaintiffs’ continued to depend for livelihood); Caroline C. v.

24 Johnson, 174 F.R.D. 452, 463 (D. Neb. 1996) (class requiring psychological treatment in

25 institutional setting places members “in a poor position to seek legal redress individually”). All

26 of these deterrent factors apply to plaintiff children.

27

Here, the proposed class is composed of children in foster care who have been, are, or will

28 be victims of child abuse and neglect, and who have been, are, or will be in the legal custody of

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1 Clark County DFS. Children in foster care clearly lack the economic means to pursue individual

2 claims for denial of services such as adequate medical and health care, educational services and

3 legal representation. Further, these children’s challenge to the policies and actions of the

4 agencies that control their placement and basic needs understandably leaves plaintiffs (and their

5 foster caregivers) hesitant to attempt individual action against defendants. Mullen, 186 F.3d at

6 625 (factors weighing in favor of certification include plaintiffs’ reluctance to file individual suit

7 against employer on whom plaintiffs continued to depend for livelihood); see also Romero Decl.

8 ¶¶ 15-17 (plaintiff removed from foster parent after foster parent advised court that unconditional

9 return to mother would be detrimental). Foster children have neither the independent financial

10 resources nor the legal knowledge necessary to prosecute claims against the government entities

11 on which they depend for their care. As a result, plaintiffs labor under financial and practical

12 deficits that make joinder of their individual claims nearly impossible.

13

Finally, plaintiffs proposed class is readily discernable under the Rule 23 standard. A

14 class is sufficiently definite when it is administratively feasible to determine whether a given

15 individual is a member. Stolz, 620 F. Supp. at 403-404. Just as plaintiffs need not provide the

16 precise size of the class, identification of each individual member is also not necessary. Instead,

17 one must simply be able to ascertain membership when measured against an objective standard.

18 Id. The prospective class consists of children who have been, are, or will be victims of child

19 abuse and neglect, and who have been, are, or will be in the legal custody of Clark County DFS.

20 Defendants themselves have the means to identify, and are required to monitor, the children who

21 constitute this class. Consequently, the proposed plaintiff class surpasses the numerosity

22 threshold.

23 C. 24

Questions of Law and Fact Are Common to the Class. Certification is proper under Rule 23(a)(2) when the class members’ claims share a

25 common question of law or fact. Because defendants’ systematic failure to fulfill their statutory

26 and regulatory obligations deprives each class member of the right to receive proper care,

27 adequate medical treatment, and other necessary services, plaintiffs satisfy the Rule’s

28 commonality requirement.

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1

Similar to its interpretation of Rule 23 as a whole, the Ninth Circuit has permissively

2 construed the commonality prerequisite of Rule 23(a)(2). Hanlon v. Chrysler Corp., 150 F.3d

3 1011, 1019 (9th Cir. 1998); see also Jordan, 669 F.2d at 1321 (courts’ permissive application of

4 Rule 23(a)(2) means that plaintiffs usually meet commonality requirement). Rule 23(a)(2) does

5 not demand that all members of the proposed class share identical legal claims. Nor must each

6 class member share exactly the same factual circumstances. Rather, the commonality prerequisite

7 is satisfied if plaintiffs share at least one question of law or fact. Hanlon, 150 F.3d at 1019 (“All

8 questions of fact and law need not be common.”); Armstrong v. Davis, 275 F.3d 849, 868 (9th

9 Cir. 2001) (quoting Baby Neal, 43 F.3d at 56 (commonality met if class representatives share “at

10 least one question of fact or law with the grievances of the prospective class”)).

11

The named plaintiffs share a number of common questions of law and fact with members

12 of the proposed class. These common questions include

13

• Whether plaintiff children are placed in overcrowded, unlicensed congregate care

14

facilities that fail to meet their needs;

15

• Whether plaintiff children are left in dangerous situations due to defendants’

16

failure to conduct timely investigations of reports of abuse and neglect;

17

• Whether class members are deprived of needed medical, mental health, and dental

18

care services;

19

• Whether upon entry into foster care class members’ placement in Child Haven, an

20

unlicensed child care facility, violates Nevada and federal laws;

21

• Whether the failure to conduct timely investigations of complaints of child abuse

22

or neglect involving class members violates their rights under Nevada and federal

23

law; and

24

• Whether the failure to provide class members with timely necessary medical and

25

mental health screenings, assessments, and treatment denies their rights under

26

Nevada and federal law.

27

Defendant DFS Director Tom Morton himself has confirmed that the sheer breadth of

28 defendants’ failings produce shared factual and legal issues for plaintiffs. In his Safe Futures

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1 plan, submitted to the Clark County Board of Commissioners after plaintiffs filed this suit,

2 defendant Morton lists over 100 goals and strategies necessary merely to bring DFS performance

3 up to baseline. See generally Safe Futures: Strategies to Improve the Safety, Permanence and

4 Well-being of Clark County Children and Families at Risk of Child Maltreatment (Phase I), Exh.

5 E to Ancar Decl. Defendant Morton admits that plaintiff foster children are placed in often

6 overcrowded conditions and with families who are not provided the necessary support to prevent

7 shuffling them from one placement to another. Id. at 4. The completion of initial investigations

8 and safety plans for children reported to Child Protective Services (“CPS”), full assessment of

9 children’s developmental and educational needs, and EPSDT medical screenings are all critical to

10 the wellbeing of abused and neglected children. Safe Futures catalogs these measures as

11 “objectives” that defendants have yet to meet. Id. at 4, 7, 14, 16. Defendant Morton also

12 corroborates plaintiffs’ allegations that children and families are not seen by caseworkers each

13 month nor do they received needed services. Id. at 4.

14

These and other acknowledged deficiencies are not confined to a small number of foster

15 children. Safe Futures concedes that “crisis in performance” extends to the entire agency, and

16 thus potentially to every child for whom DFS bears responsibility. Safe Futures at 4, Exh. E to

17 Ancar Decl; see also Enclosure to Fuji Letter at 1, Exh. B to Ancar Decl. (widespread lack of

18 services to Clark County’s foster children is a “significant system issue”). This common course

19 of conduct in and of itself creates common questions among plaintiffs.

20

The Ninth Circuit has repeatedly held that civil rights suits challenging a system-wide

21 practice or policy affecting all members of a prospective class fulfill Rule 23’s commonality

22 requirement. Armstrong, 275 F.3d at 868 (citing LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th

23 Cir. 1985)). Each child plaintiff need not actually experience precisely the same injury as a result

24 of the legally objectionable practice. Walters, 145 F.3d at 1047. Rather, because the proposed

25 class alleges that systematic failure to fulfill statutory and regulatory obligations places all

26 members at risk of similar injury, plaintiffs share common questions of law and fact. Variations

27 among individual plaintiffs’ factual circumstances cannot defeat a finding of commonality.

28 Armstrong, 275 F.3d at 868 (citing Baby Neal, 43 F.3d at 56).

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1

Suits seeking to remedy statutory and regulatory violations are particularly favored for

2 class action certification and meet the commonality requirement. Walters, 145 F.3d at 1047

3 (certification proper because class sought injunctive relief rather than money damages). Where

4 injunctive and declaratory relief is requested against a defendant “engaging in a common course

5 of conduct,” common questions naturally arise. Baby Neal, 43 F.3d at 57; see also Walters, 145

6 F.3d at 1047. Accordingly, the proposed class easily achieves commonality.

7 D. 8

The Named Plaintiffs’ Claims and Defenses Are Typical of Those of the Class. Plaintiffs’ proposed representatives and members of the prospective class have suffered

9 similar harms. These injuries stem directly from defendants’ refusal to conform its child welfare

10 practices to state and federal law. As victims of defendants’ improper policies and practices –

11 and potential recipients of the proposed class relief – the named plaintiffs have every incentive to

12 forcefully assert the class claims.

13

Rule 23(a)(3) requires that the named plaintiffs’ claims are typical of those of the class.

14 The goal of the typicality prong of Rule 23 is to ensure that the named representatives’ and class

15 members’ interests are sufficiently aligned such that the named plaintiffs will provide effective

16 representation for the class. Baby Neal, 43 F.3d at 57-58. The determination of typicality rests

17 on whether a comparable course of conduct resulting in similar injury gives rise to the class

18 members’ legal claims. Hanlon, 976 F.2d at 508.

19

The named plaintiffs and the proposed class allege that each has been similarly harmed by

20 the identical course of conduct: defendants’ practice of violating their legal obligations to institute

21 proper investigations, assessments, and supervision to ensure plaintiffs safe day-to-day care; to

22 offer adequate medical, dental, and mental health treatment; and to provide other required

23 services, including proper educational placements and dependency court representation.

24 Defendants’ legal duties to each plaintiff originates from the same equally-applicable statutory

25 scheme. As a consequence of their receipt of monetary appropriations under the federal Adoption

26 Assistance, Medicaid, and CAPTA laws, defendants are obliged to meet certain federal standards

27 for the provision of necessary services to foster children. See generally 42 U.S.C. §§ 620, 670 et

28 seq., 42 U.S.C. § 1396 et seq, 42 U.S.C. § 5101 et seq. The State of Nevada further articulated its

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1 obligations by enactment of statutory and regulatory standards governing its child welfare system.

2 See generally Nev. Rev. Stat. Ann. § 422 et seq.; Nev. Admin. Code § 422-424, 432A-B et seq.

3 Through the passage of Assembly Bill 1 (“AB 1”) in 2001, Clark County also accepted direct

4 responsibility from the state for services to foster children. Nonetheless, AB 1 did not relieve the

5 state of its responsibility and oversight for child welfare programs. 2001 Nev. Stat. 1. (commonly

6 known as AB 1).

7

Defendants’ conduct in refusing to fulfill their duties has deprived the class and its

8 representatives of the services to which they are entitled under federal and state child protection

9 laws. Baby Neal, 43 F.3d at 58 (even prominent factual differences among foster children could

10 not defeat typicality where class challenged effects of defendants’ policies and practices). The

11 claims of the named plaintiffs and proposed class rest on the identical legal theories that each has

12 been denied, legally-mandated services and constitutionally-protected civil rights as a result of

13 defendants’ refusal to properly implement this statutory scheme. Armstrong, 275 F.3d at 869

14 (typicality requirement satisfied where defendant’s refusal to provide legally-required

15 accommodations to persons with diverse physical disabilities); Baby Neal, 43 F.3d at 58

16 (similarity of foster children’s legal theories adequately addresses typicality). Neither the class

17 claims nor their factual underpinning need be identical (or even “substantially identical”) to

18 satisfy the typicality requirement. Hanlon, 150 F.3d at 1020; see also Marisol A., 929 F. Supp. at

19 691. The representatives’ and class claims need merely be “reasonably coextensive” to make

20 certification appropriate. Armstrong, 275 F.3d at 869.

21

The fact that each and every child has not been subjected to the overcrowded conditions at

22 Child Haven or placed in an unlicensed foster home will not prevent named plaintiffs from

23 pursuing the class claims certification. Nor must a foster child be compelled to wait until she is

24 specifically denied the right to speak in court for lack of a guardian ad litem, or hope that she will

25 not personally become the subject of a child death review before seeking systematic relief. Kenny

26 A. v. Perdue, 218 F.R.D. 277, 301 (N.D. Ga. 2003) (each plaintiff not required to “personally

27 experience every difficulty outlined in the complaint”). Rather where, as here, plaintiffs present a

28

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1 central allegation of systematic failure to provide legally-mandated services and protection,

2 typicality is satisfied.

3

The named plaintiffs’ injuries are characteristic of those endured by the child plaintiffs.

4 Even though plaintiffs’ injuries are necessarily based on factually different circumstances, named

5 plaintiffs’ claims and interests align so fully with those of the class that their pursuit of their own

6 claims for injunctive relief by definition further the claims of all class members. Consequently,

7 plaintiffs’ claims easily fulfill the requirement of typicality.

8 E.
9

Named Plaintiffs and Their Attorneys Will Fairly and Adequately Protect Class Interests.

10

Plaintiffs have established that they meet the numerosity, commonality, and typicality

11 requirements of Rule 23. The Rule’s final prong requires that plaintiffs show the ability and

12 willingness to protect fairly and adequately the interests of the class. Plaintiffs’ collective

13 interests and their representation by experienced class counsel ensure that named plaintiffs will

14 zealously guard and pursue the interests of the class at every stage of the case.

15

The Ninth Circuit has held that adequate class representation as required by Rule 23(a)(4)

16 is conditioned upon four factors: the quality of class counsel, the absence of antagonism within

17 the class, a shared interest between the absent class members and their representatives, and the

18 “unlikelihood that the suit is collusive.” Walters, 145 F.3d at 1046.

19

The named plaintiffs have previously established their compelling joint interests in

20 forcefully pursuing their shared claims, which include numerous common questions of both law

21 and fact. See infra § B. With the common goal of ending the widespread violation of their legal

22 rights and instituting systematic reform of Clark County’s child welfare system, no animosity

23 exists among class members. Stolz, 620 F. Supp. at 405 (plaintiffs’ aim of remedying statutory

24 violations of class member rights inherently removed threat antagonism); Marisol A., 929 F.

25 Supp. at 629 (request for injunctive relief to force compliance with the law eliminates potential

26 for conflict). Conversely, there is no indication of collusion between plaintiff children and the

27 defendants in this action. To the contrary, defendants’ recently filed motions to dismiss suggest

28 that defendants intend to litigate this action as any individual suit.

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1

Rule 23’s standard is conditioned upon plaintiffs’ attorneys’ quality, experience, and

2 general capability to conduct the litigation. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d

3 Cir. 1968); Jordan v. Los Angeles County, 669 F.2d 1311, 1323 (9th Cir. 1982). Plaintiffs’ lead

4 counsel is the National Center for Youth Law, a privately-funded, non-profit organization with

5 extensive state and federal court experience in litigating complex class actions involving child

6 welfare systems. See generally Declaration of William Grimm (“Grimm Decl.”) ¶¶ 2-8. The Las

7 Vegas offices of Wolfenzon Schulman and the San Francisco law firm of Farella Braun & Martel

8 also represent plaintiffs. Together these firms bring sophistication in resolving and litigating a

9 broad range of high-stakes actions. Declaration of Gregory M. Schulman (“Schulman

10 Decl.”)¶¶ 4-6; Ancar Decl. ¶¶ 3, 5. Counsel have knowledge of state and federal child welfare

11 laws and have represented plaintiffs in certified class action litigation. Ancar Decl. ¶ 4.

12 Collectively, plaintiffs’ attorneys bring more than 50 years of legal practice, covering the full

13 range of civil litigation from initiation of the action to trial representation. Grimm Decl. ¶ 2-3, 7-

14 8; Schulman Decl. ¶ 2, 4; Ancar Decl. ¶ 2, 5. Plaintiffs’ legal representatives have the resources,

15 expertise, and experience to meet the test for highly-competent class counsel.

16 F. 17 18

The Proposed Class Satisfies the Prerequisites of Rule 23(b)(2) Because Defendants Have Acted on Grounds Generally Applicable to the Class Making Injunctive Relief Appropriate.
Having established that the plaintiff class is entitled to certification under Rule 23(a),

19 plaintiffs also assert that the class may be properly maintained under the second category of

20 Rule 23(b). Rule 23(b)(2) certification is proper if

21

the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

22

injunctive relief or corresponding declaratory relief with respect to

the class as a whole. 23

24 Walters, 145 F.3d at 1047.

25

Subdivision (b)(2) is closely linked to the commonality prerequisite. Actions seeking

26 injunctive relief to remedy practices violative of civil and constitutional rights fall easily within

27 the commonality guidelines. See infra § C. Consequently, these same suits “are precisely the

28 sort . . . that Rule 23(b)(2) was designed to facilitate.” Walters, 145 F.3d at 1046-47 (plaintiff

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1 class challenged constitutionality of the INS’s official forms and procedures); see Fed. R. Civ.

2 Proc. 23 Advisory Committee Notes 1966 Amendment (civil rights actions requiring final

3 injunctive relief “illustrative” of actions suitable for this category); Armstrong, 275 F.3d at 868

4 (suits challenging practice or policy affecting all class members meets commonality requirement).

5

Plaintiff children’s action sets forth the model class for certification under

6 subdivision (b)(2). Defendants’ have subjected plaintiffs to a unitary course of conduct that

7 systematically violates state and federal law and deprives each class member of their rights to

8 receive essential protections and services. Suits raising challenges to defendants who have acted

9 in a manner generally applicable to all plaintiffs exemplify “the classic type of action envisioned

10 by the drafters” of the Rule 23(b)(2) category. Elliot v. Weinberger, 564 F.2d 1219, 1229 (9th

11 Cir. 1977), aff’d in part and reversed in part on other grounds sub nom Califano v. Yamaki, 442

12 U.S. 682 (1979) (Subdivision (b)(2) proper for certification of nationwide class of recipient of

13 old-age and disability social security benefits alleging lack of hearing violated due process).

14 Plaintiffs’ request for declaratory and final injunctive relief to correct defendants’ conduct are

15 also particularly appropriate for Rule 23(b)(2) certification. Stolz, 620 F. Supp. at 407

16 (Rule 23(b)(2) certification proper even where monetary relief is an ancillary element of

17 requested damages).

18

Finally, a primary goal of class certification is the efficient administration of justice.

19 Elliot, 564 F.2d at 1230. Thus, class certification serves not only the goal of relieving the court

20 of the burden of adjudicating duplicative litigation, see Walters, 145 F.3d at 1047, but also to

21 provide a vehicle for plaintiffs with similar grievances to “have their day in court.” Eisen v. 22 Carlisle, 391 F.2d 555, 563 (2d Cir. 1968). Absent class action certification and broad-based

23 institutional reform, thousands of child plaintiffs would be left to pursue multiple and identical

24 actions. Even were some plaintiffs able to maintain and succeed in individual suits, singular

25 judgments would not carry the guarantee that defendants would consistently fulfill their legal

26 obligations to other children in their care, providing no benefit to the class. Cf. generally

27 Complaint, Cabrera v. Balane, No. 06-CV-1285 (JCU) (D. Nev. October 12, 2006) (parents

28 brought individual civil rights suit seeking damages for disappearance of two year-old daughter

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1 while in DFS custody in summer 2006), Exh. F to Ancar Decl. Neither efficiency nor justice

2 would be served by permitting defendants to continue to evade their legal obligations by

3 compelling plaintiff children to pursue individual suits.

4 G.
5

Notice Prior to Judgment Is Not Required in a Class Action Certified Pursuant to Rule 23(b)(2).

6

Unlike class actions certified under other subdivisions of Rule 23, due process does not

7 require named plaintiffs representing subdivision (b)(2) class to issue pre-judgment notice to

8 absent class members. Elliot, 564 F.2d at 1228 (citing Eisen, 417 U.S. at 177). Class notification

9 under this category is discretionary. A court should impose such an obligation only when

10 necessary to ensure that the class is fairly and adequately represented or to permit absent

11 members to assert additional claims. Stolz, 620 F. Supp. at 408.

12

Plaintiffs’ circumstances do not indicate that notice is necessary to protect their due

13 process rights. As demonstrated above, the proposed class is adequately represented by skilled,

14 knowledgeable counsel with significant class action and child welfare experience. Where counsel

15 is competent and the named representatives claims’ are typical of the class, notice to the class

16 serves no further goal. Elliot, 564 F.2d at 1228. To the contrary, compelling provision of notice

17 may in fact be detrimental to the class’ legal interests, as the financial cost associated with notice

18 to a subdivision (b)(2) class can thwart plaintiffs’ ability to maintain an action seeking broad-

19 based reform. See Fed. R. Civ. Proc. 23 Advisory Committee Notes 1966 Amendment (noting

20 the “crippl[ing]” cost of notice where money damages not requested).

21

To ensure that plaintiff children’s ability to vigorously pursue their claims is not severely

22 undermined, should the Court grant the plaintiffs’ motion for class certification, plaintiffs should

23 not be required to provide notice to absent class members.

24

IV

25

CONCLUSION

26

Through their dismal failure to provide mandated services to the foster children in their

27 care, defendants have abandoned their legal obligations to plaintiffs. Without proper care,

28 medical treatment and supervision, Clark County’s foster children have faced unsafe living

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1 conditions, continued physical abuse, and, in far too many documented cases, death. To ensure

2 that plaintiff children do not continue to suffer in defendants’ custody, the interests of justice

3 require that the Court permit that plaintiffs each place their claims before this Court at one time.

4 For the reasons stated above, plaintiffs request that the Court grant their motion for class

5 certification.

6

7 WOLFENZON SCHULMAN 8

NATIONAL CENTER FOR YOUTH LAW

9

/s/

BRUNO WOLFENZON, ESQ. 10 Nevada Bar No. 6177

GREGORY M. SCHULMAN, ESQ. 11 Nevada Bar No. 5766

4530 South Eastern Avenue, Suite 9 12 Las Vegas, NV 89119

Telephone: (702) 836-3138 13 Facsimile: (702) 836-3139

Co-attorneys for Plaintiffs 14

15 FARELLA BRAUN + MARTEL LLP
16

/s/ WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

17
/s/ 18 KATINA ANCAR, ESQ.
California Bar No. 207950 19 FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor 20 San Francisco, CA 94104
Telephone: (415) 954-4400 21 Facsimile: (415) 954-4480
Co-attorneys for Plaintiffs 22

23

24

25

26

27

28

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1

2

3

4 UNITED STATES DISTRICT COURT
5 DISTRICT OF NEVADA
6

7 CLARK K., et al.,

8

Plaintiffs,

9

v.

10 KENNY C. GUINN, et al.,

11

Defendants.

12

)

)

2:06-CV-1068-RCJ-RJJ

)

)

)

ORDER

)

)

)

)

)

13 This matter comes before the Court on Defendants Michael Wilden, Fernando
14 Serrano, and Paula A. Hawkins’ (collectively “State Defendants”) Motion to Dismiss, or in
15 the Alternative, Motion for More Definite Statement (#48), Defendant Kenny Guinn’s
16 Motion to Dismiss (#49), Motion for Clarification and Enlargement of Time (#65), and
17 Motion to Dismiss Plaintiffs’ First Amended Complaint (#95), Plaintiffs’ Motion to Certify
18 Class (#74), and Defendants Clark County Division of Family Services, Virginia Valentine,
19 Tom Morton, Louis Palma, Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne
20 Atkinson Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, and Clark County’s
21 (collectively “County Defendants”) Motion to Dismiss, or in the Alternative, Motion for a
22 More Definite Statement. (#104.) After considering the Motions, the pleadings on file, and
23 oral argument on behalf of all parties, the Court issues the following Order.
24

25

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1

BACKGROUND

2

In August 2006, Plaintiffs1 filed suit on behalf of themselves and “all abused and

3 neglected children who are in, or at risk of entering, the Clark County foster care system.”

4 (#57-1 at 6.) Plaintiffs bring this civil action pursuant to 42 U.S.C. § 1983 against Kenny C.

5 Guinn,2 as Nevada Governor, Michael Wilden (Director of Nevada Health and Human

6 Services), Fernando Serrano (Administrator of the Nevada Division of Child and Family

7 Services), John Doe (Bureau Chief of the Bureau of Services for Child Care of the Division

8 of Child and Family Services), Virginia Valentine (Clark County Manager), Clark County

9 Department of Family Services, Tom Morton (Director of Clark County Department of

10 Family Services), Louis Palma (Manager of Shelter Care for the Clark County Department of

11 Family Services), County Commissioners Bruce L. Woodbury, Tom Collins, Chip Maxfield,

12 Yvonne Atkinson Gates, Myrna Williams, Lynette Boggs McDonald, and Rory Reid, and

13 finally Clark County itself. Plaintiffs seek declaratory and injunctive relief relating to the

14 operation of Nevada’s and Clark County’s foster care system.

15

In their Complaint, Plaintiffs generally allege that Defendants violated the United

16 States Constitution, federal statutes, federal common law, and the Nevada Constitution by

17 failing to protect both the individual Plaintiffs and the purported class. Plaintiffs attribute

18 this alleged systemic failure to poor management and gross over-burdening of the foster care

19 system in Clark County. Moreover, Plaintiffs generally allege that Defendants have failed to

20 1Plaintiffs proceed under fictitious names pursuant to Federal Rule of Civil Procedure 10(a). The named Plaintiffs
include Clark K. (by his next friend Sherry Anderson), Jalen, Sia, Roshaun, Caleb, and King A. (collectively the “A
21 Plaintiffs”) (by their next friend Tarrah Logan), Toni Summer and Frank B. (collectively the “B Plaintiffs”) (by their
next friend Marilyn Paikai), and Donna C. (by her next friend Jacquelyn Romero).
22 2Governor Guinn is no longer Nevada Governor. This fact does not dismiss the Governor’s office from this action.
When a public officer who is sued in the officer’s official capacity dies, resigns, or otherwise ceases to hold office,
23
the action does not abate and the successor is automatically substituted as Defendant. Hafer v. Melo, 502 U.S. 21, 25 (1991). Accordingly, in this Order the Court substitutes current Nevada Governor Gibbons’s name for Governor
24 Guinn.

25

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1 provide effective leadership or the resources and support necessary to ensure that the foster

2 care system provides adequate protection and services to Nevada’s most vulnerable children.

3 Finally, Plaintiffs assert that while Defendants have been aware of the alleged wrongs, as

4 documented in a federal report submitted to then Governor Guinn, they have failed to take

5 any remedial action. More specifically, Plaintiffs allege horrible circumstances in the Clark

6 County foster care system. For example, in their Complaint, Plaintiffs highlight instances in

7 which Plaintiffs were sexually, physically, and psychologically abused, and in at least one

8 instance killed (one of Plaintiffs’ siblings) while in foster care custody. Moreover, the

9 Complaint states that Plaintiffs have not received medical treatment while in foster custody.

10

Plaintiffs allege ten causes of action: (1) substantive due process violations under the

11 United States Constitution; (2) substantive due process—state created danger; (3) procedural

12 due process violations under the Fourteenth Amendment; (4) violations of the Federal

13 Adoption Assistance and Child Welfare Act; (5) violations of the Child Abuse Prevention

14 and Treatment Act; (6) violations of the health screening and follow up provisions in the

15 Medicaid Act; (7) procedural due process violations under the Nevada Constitution; (8)

16 substantive due process violations under the Nevada Constitution; (9) negligence; and (10)

17 breach of state plans under the Social Security Act. Plaintiffs seek injunctive and declaratory

18 relief to halt the alleged violations and to ensure Defendants protect and provide the

19 necessary care to foster children in Clark County.

20

DISCUSSION

21

Defendant Gibbons, County Defendants, and State Defendants have filed separate

22 Motions to Dismiss based on Federal Rule of Civil Procedure 12(b)(6). Defendants further

23 ask the Court to dismiss Plaintiffs’ claims for lack of justiciability. The Court discusses each

24 Motion below.

25

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1 I. Justiciability

2

Initially, the Court must resolve threshold questions regarding whether Plaintiffs’

3 claims present a justiciable case or controversy. Specifically, the Court must decide whether

4 any of Plaintiffs’ claims are moot and whether Plaintiffs lack standing to challenge the

5 allegedly illegal practices at issue before the Court. Both Governor Gibbons and the County

6 Defendants challenge Plaintiffs’ standing in this case.

7

B. Mootness

8

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

9 legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496

10 (1969). “Put another way, [a] case is moot when it no longer presents a live controversy with

11 respect to which the court can give meaningful relief.” Fla. Ass’n of Rehab. Facilities, Inc. v.

12 Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (citations

13 and internal quotation marks omitted).

14

Plaintiffs seek relief for all children that have ever entered into the Clark County

15 foster care system, even if they do not currently reside in foster care. County Defendants

16 argue the Court must dismiss all claims for Plaintiffs no longer in foster care because they are

17 no longer in the Defendants’ legal or physical custody, and they therefore cannot be further

18 harmed by Defendants’ alleged illegal practices. Some courts have held that no live case or

19 controversy exists between Defendants and children not in foster care. See, e.g., 31 Foster

20 Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). However, Defendants have not

21 demonstrated that any of the named Plaintiffs are not currently in, or will not imminently

22 return to, foster custody. Defendants also argue that the Court must dismiss as moot all

23 claims for any proposed class members not currently in foster care. As discussed below, the

24

25

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1 Court defers ruling on class certification. Accordingly, the Court defers ruling on

2 Defendants’ Motion to Dismiss based on mootness.

3

B. Standing

4

Under Article III, federal courts cannot entertain a litigant’s claims unless that party

5 demonstrates concrete injury, satisfying the burden to demonstrate both constitutional and

6 prudential standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Both

7 Governor Gibbons and County Defendants argue Plaintiffs lack standing to bring their

8 claims.

9

1. Article III Standing

10

Plaintiffs must demonstrate three elements to constitute the “irreducible constitutional

11 minimum” of Article III standing. Id. at 561. First, Plaintiffs must have suffered an “injury-

12 in-fact” to a legally protected interest. Id. at 560. The injury must be both “concrete and

13 particularized” and “actual or imminent,” as opposed to “conjectural or hypothetical.” Id. at

14 560 (citation omitted). Second, there must be a causal connection between the injury and the

15 conduct complained of—the injury must be “fairly . . . trace[able] to the challenged action of

16 the defendant . . . .” Id. Third, it must be likely that the injury will be “redressed by a

17 favorable decision.” Id. at 561 (internal quotation marks and citation omitted).

18

Plaintiffs bear the burden to establish standing. Bennett v. Spear, 520 U.S. 154, 162

19 (1997). The requisite evidence necessary to satisfy this burden depends on the stage of

20 litigation at which the standing challenge is made. Id. The Supreme Court has held that

21 where a Rule 12(b) motion to dismiss is based on lack of standing, the reviewing court must

22 defer to the plaintiff’s factual allegations and “must presume that general allegations embrace

23 those specific facts that are necessary to support the claim.” Id.; Lujan, 504 U.S. at 561.

24 Thus, the Court may only dismiss Plaintiffs’ claims for lack of standing if Plaintiffs have

25

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1 failed to make “general factual allegations of injury resulting from the defendant’s conduct.”

2 Lujan, 504 U.S. at 561.

3

In order to satisfy the “injury-in-fact” requirement, a plaintiff need not wait for an

4 injury to occur. An allegation of future injury satisfies this prong so long as the alleged injury

5 is “imminent” or “real and immediate” and not merely “conjectural” or “hypothetical.” Id. at

6 560; Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). When a plaintiff cannot show that an

7 injury is likely to occur immediately, the plaintiff does not have standing to seek prospective

8 relief even if he has suffered a past injury. For example, in Lyons, the plaintiff sought to

9 enjoin the use of “chokeholds” by police officers. 461 U.S. at 98. The Court stated that the

10 plaintiff’s standing to seek that relief hinged on “whether he was likely to suffer future injury

11 from the use of the chokeholds by police officers.” Id. at 105. The Court held that the

12 plaintiff lacked standing because the probability of future injury was too speculative,

13 explaining:

14

In order to establish an actual controversy in this case, [the plaintiff] would

have had not only to allege that he would have another encounter with the

15

police but also to make the incredible assertion either (1) that all police

officers in Los Angeles always choke any citizen with whom they happen to

16

have an encounter . . . or (2) that the City ordered or authorized police officers

to act in such manner.

17

Id. at 105-06. As Lyons illustrates, future injury that depends on either the random or

18

unauthorized acts of a third party is too speculative to satisfy standing requirements.

19

However, when the threatened acts that may cause injury are authorized or part of a policy, it

20

is significantly more likely that the injury will occur again. See id. at 106 (stating that the

21

plaintiff may have had standing if he had alleged “that the City ordered or authorized police

22

officers to [perform illegal chokeholds]”).

23

24

25

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1

This case is different than Lyons. Plaintiffs in this case who are in foster care have

2 standing to pursue their claims. They are in the Defendants’ custody and will be so until they

3 are returned to their parents, are adopted, or reach the age of majority. They cannot avoid

4 exposure to Defendants’ challenged conduct. The alleged systemic deficiencies in the Clark

5 County and Nevada foster care system are similar to an injurious policy and different from

6 the random act at issue in Lyons. The alleged pattern and practice in this case presents a

7 substantial likelihood that the alleged injury will occur.

8

Moreover, Plaintiffs’ allegations support the conclusion that future injury will proceed

9 with a high degree of immediacy. The Supreme Court addressed this aspect of the injury-in-

10 fact requirement in Lujan, holding that because the plaintiffs failed to demonstrate their

11 injury would “proceed with a high degree of immediacy, so as to reduce the possibility of

12 deciding a case in which no injury would have occurred at all,” they lacked standing to

13 pursue their claim. 504 U.S. at 559, 564 n.2. Thus, under Lujan, one cannot merely allege

14 that an injury will be suffered at “some time” in the future. However, a plaintiff need not

15 demonstrate that the injury will occur within days or even weeks to have standing. See, e.g.,

16 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211-12 (1995) (stating that a plaintiff who

17 was likely to suffer injury within a one year period had standing to sue).

18

In the present case, the Plaintiffs assert detailed allegations of tangible injuries.

19 Plaintiffs also allege these harms will continue into the present and are very likely to persist

20 into the future unless Defendants are forced to remedy the significant problems in Clark

21 County’s child welfare system. Plaintiffs assert substantive harms based on alleged

22 violations of federal and state constitutional rights, federal and state common law, and state

23 and federal statutory rights. Throughout their Complaint, Plaintiffs generally describe the

24 injuries they claim to have suffered due to Defendants’ allegedly illegal conduct. At the

25

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1 pleading stage in litigation and for standing purposes, the Court assumes the allegations in

2 the Complaint are true and may only dismiss Plaintiffs’ claims for lack of standing if

3 Plaintiffs have failed to make “general factual allegations of injury resulting from the

4 defendant’s conduct.” Lujan, 504 U.S. at 561.

5

In addition to injury-in-fact, Plaintiffs must also allege that their injuries are “fairly

6 traceable to the challenged action of the defendant, and not the result of the independent

7 action of some third party not before the court,” and that it is likely the injury will be

8 redressed if the court rules in their favor. Bennett v. Spear, 520 U.S. 154, 167 (1997).

9 According to the Complaint, Defendants’ failures caused Plaintiffs’ injuries and their

10 continued failures are likely to cause further injuries. Therefore, for purposes of standing at

11 the pleading stage, the alleged injuries suffered by Plaintiffs are fairly traceable to

12 Defendants’ conduct. Lujan, 504 U.S. at 560. In addition, Plaintiffs seek a declaratory

13 judgment and prospective injunctive relief that will prevent Defendants from violating their

14 constitutional and federal statutory rights. The relief Plaintiffs seek would clearly remedy

15 their claimed injuries. Moreover, as discussed further below, federal courts have generally

16 afforded foster children standing in situations like this case. Accordingly, Plaintiffs have

17 sufficiently alleged constitutional standing as required by the Supreme Court at the pleading

18 stage of litigation.

19

2. Prudential Standing

20

Prudential requirements for standing include (1) whether Plaintiff’s alleged injury

21 falls within the “zone of interests” protected by the statute or constitutional provision at issue,

22 (2) whether the Complaint amounts to generalized grievances that are more appropriately

23 resolved by the legislative and executive branches, and (3) whether Plaintiffs assert their own

24

25

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1 legal rights and interests, rather than those of third parties. Desert Citizens Against Pollution

2 v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000).

3

Both County Defendants and the Governor argue that Plaintiffs lack prudential

4 standing because (1) the Court should decline to intervene in the realm of domestic relations,

5 which “belongs to the laws of the States and not to the laws of the United States,” Elk Grove

6 Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004), and (2) those who act as Plaintiffs’

7 “next friend” in this lawsuit are improper parties.

8

First, citing Newdow, Defendants claim this case is nothing more than a domestic

9 relations issue, and thus the Court should find that Plaintiffs lack prudential standing.

10 However, this case is distinguishable from Newdow and the other cases to which Defendants

11 cite. In Newdow the court held that a father lacked prudential standing to bring an action

12 challenging the constitutionality of a school district policy requiring his daughter to recite the

13 Pledge of Allegiance. Id. at 14-15. The Court reasoned that domestic relations barred federal

14 court adjudication of the federal questions in that case because “Newdow’s standing

15 derive[d] entirely from his relationship with his daughter,” and his “parental status [was]

16 defined by California’s domestic relations law.” Id. at 15. According to Newdow, “it is

17 improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is

18 founded on family law rights that are in dispute when prosecution of the lawsuit may have an

19 adverse effect on the person who is the source of the plaintiff’s claimed standing.” Id. at 17.

20

In Newdow, the father filed a suit on his own behalf, but his standing depended on

21 “family law rights that [were] in dispute”—specifically, the interpretation of a state court

22 custody order. Determining his standing led the Court into a complex custody dispute

23 between Mr. Newdow and his ex-wife, leading the Court to “stay its hand.” Here, in stark

24 contrast to Newdow, Plaintiffs have filed suit on their own behalf.

25

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1

Defendants also argue that Plaintiffs lack standing because the alleged violations are

2 more appropriately addressed by the legislative process. However, as discussed below, many

3 courts have held that some of the provisions under which Plaintiffs filed suit create a private

4 cause of action; hence, Plaintiffs have standing as to those claims.

5

Finally, Defendants argue Plaintiffs lack standing because those who are acting as

6 their “next friends” in this case are improper parties. A next friend must satisfy three criteria:

7 (1) the next friend must provide an adequate explanation as to why the real parties in interest

8 cannot bring the suit themselves; (2) the next friend must be dedicated to minors’ best

9 interests; and (3) the next friend must have some significant relationship with the minors.

10 Whitmore v. Ark., 495 U.S. 149, 163-64 (1989). Plaintiffs satisfy all three prongs in this case.

11

First, Plaintiffs note they are minors in foster custody challenging governmental

12 action. Plaintiffs argue that using their true identities would compel Plaintiffs to reveal

13 highly intimate information. Some Plaintiffs have been subjected to horrid experiences,

14 including abuse. Certainly the Court should honor their request to keep their identities

15 unknown.

16

Second, the next friends are all either family members or former foster parents.

17 Plaintiff Clark K.’s next friend is his paternal grandmother, who has expressed a desire to act

18 within Clark K.’s best interests. The A Plaintiffs’ next friend is their paternal aunt. The A

19 Children have lived with their aunt and have expressed that she acts in their interests. The B

20 Plaintiffs’ next friend is a former foster parent. These individuals have expressed an intent to

21 act in the children’s best interest and have demonstrated they have a significant relationship

22 with the minors. Accordingly, they meet the three criteria set out by the Supreme Court. See

23 id. Therefore, Plaintiffs have prudential standing to file this action.

24

25

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1

3. Children Not Currently in Foster Custody

2

Plaintiffs also argue that children in the proposed class who are not currently in

3 custody, but that have been or could be subject to the foster care system, also have standing.

4 Defendants argue, however, that any Plaintiffs who are not in the foster care custody lack

5 standing to pursue the constitutional claims in this action. See 31 Foster Children v. Bush,

6 329 F.3d 1255, 1267 (11th Cir. 2003). As discussed below, the Court defers ruling on

7 Plaintiffs’ Motion for Class Certification until the parties have an opportunity to conduct

8 additional discovery regarding the proposed class. Thus, the Court does not rule at this time

9 whether any proposed class members not currently in custody lack prudential standing.

10 II. County Defendants’ Motion to Dismiss

11

In addition to challenging standing, County Defendants ask the Court to dismiss

12 Plaintiffs’ Complaint because Plaintiffs have failed to state a claim. Specifically, County

13 Defendants argue that Plaintiffs have failed to state valid claims against the Department of

14 Family Services (“DFS”) because DFS lacks capacity to be sued. County Defendants further

15 contend that the Court should dismiss all claims against Clark County Commissioners and

16 that Plaintiffs have not asserted valid federal claims. County Defendants also argue they are

17 immune from liability and that the Court should abstain from hearing this case.

18

A. Rule 12(b)(6) Standard

19

Under Rule 12(b)(6), a court may dismiss a claim if the plaintiffs “fail to state a claim

20 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal for failure to state a

21 claim under Rule 12(b)(6) is proper only if the plaintiff can prove no set of facts in support of

22 the claim that would entitle her to relief. Williamson v. Gen. Dynamics Corp., 208 F.3d

23 1144, 1149 (9th Cir. 2000). The review is limited to the complaint, and all allegations of

24 material fact are taken as true and viewed in the light most favorable to the plaintiff. In re

25

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1 Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996). Although courts assume the

2 factual allegations to be true, courts should not “assume the truth of legal conclusions merely

3 because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643

4 F.2d 618, 624 (9th Cir. 1981). On a motion to dismiss, a court “presumes that general

5 allegations embrace those specific facts that are necessary to support the claim.” Lujan v.

6 Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990).

7

B. DFS Lacks Capacity to be Sued

8

Plaintiffs’ Complaint lists both Clark County and the DFS as parties to this action.

9 County Defendants argue that DFS cannot be sued under Nevada law. Under Nevada law, a

10 plaintiff may sue a political subdivision but not a department of a political subdivision. Nev.

11 Rev. Stat. § 41.031(1)-(2). DFS is a political subdivision department, and thus Plaintiffs may

12 not maintain a suit against it. In their Opposition, Plaintiffs consent to dismissing DFS from

13 this case. The Court grants Defendants’ request to dismiss DFS from this action.

14

C. Request to Dismiss Individually-Named County Commissioners

15

Plaintiffs have named both Clark County and the County Commissioners in their suit.

16 County Defendants ask the Court to dismiss the individually-named Commissioners because

17 they are not proper parties. Defendants cite to Nev. Rev. Stat. § 12.105 to support their

18 argument. However, § 12.105 merely states that Plaintiffs may sue the political subdivision

19 without naming the individual commissioner. The Ninth Circuit has stated that a decision to

20 name both the individual and the political division may be duplicative, but it is not fatal.

21 Clements v. Airport Auth., 69 F.3d 321, 336 n.20 (9th Cir. 1995). Courts have allowed

22 plaintiffs to name both the individual defendants in their official capacities and the agency

23 when the plaintiffs allege the officials acted beyond their statutory powers or, even though

24 within the scope of authority, the powers themselves or the manner in which they are

25

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1 exercised are constitutionally void. See, e.g., People of Cal. ex rel. Ervin, 170 F. Supp. 2d

2 1040, 1045-46 (E.D. Cal. 2001) (citing Malone v. Bowdoin, 369 U.S. 643, 647 (1962)). In

3 this case, Plaintiffs allege that the individually-named Defendants have taken actions that

4 violate the Constitution. Thus, while the Court may in its discretion dismiss the individual

5 Defendants from this case, it refrains from so doing at this stage of the litigation. If at the

6 summary judgment stage or after conducting discovery the individual Defendants can

7 demonstrate they took no part in the alleged violations, then the Court may consider

8 dismissing them from this suit.

9

D. Plaintiffs’ 1983 Federal Statutory Claims

10

Defendants also argue Plaintiffs cannot maintain a § 1983 action for the alleged

11 federal violations in this case. Plaintiffs bring their statutory claims pursuant to 42 U.S.C

12 § 1983, which imposes liability on anyone who, under color of state law, deprives a person

13 “of any rights, privileges, or immunities secured by the Constitution and laws.” Blessing v.

14 Freestone, 520 U.S. 329, 340 (1997). Section 1983 safeguards certain rights conferred by

15 federal statutes. Id. (citation omitted). However, to seek redress under § 1983, Plaintiffs

16 “must assert the violation of a federal right, not merely a violation of federal law.” Id.

17 (citation omitted). Courts examine three factors to determine whether a particular statutory

18 provision gives rise to a federal right:

19

First, Congress must have intended that the provision in question benefit the

20

plaintiff. Second, the plaintiff must demonstrate that the right assertedly

protected by the statute is not so ‘vague and amorphous’ that its enforcement

21

would strain judicial competence. Third, the statute must unambiguously

impose a binding obligation on the States. In other words, the provision

22

giving rise to the asserted right must be couched in mandatory rather than

precatory terms.

23

24

25

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1 Id. (citations omitted). With this framework in mind, the Court considers Plaintiffs’ federal

2 statutory claims in turn. No court within the Ninth Circuit has considered whether a private

3 individual may bring a cause of action under these statutes. The Supreme Court has held that

4 one specific provision under the Adoption Assistance Act did not afford a private right of

5 action. Congress subsequently amended the statute to provide a private right of action under

6 that particular provision, but chose not to amend the remaining statutory provisions. 3

7

1. Federal Adoption Assistance Act

8

Plaintiffs allege that under the federal Adoption Assistance and Child Welfare Act

9 (“AACA”) of 1980, as amended by the Adoption and Safe Families Act of 1997, Nevada

10 must (1) submit a child-welfare plan approved by the United States Department of Health and

11

3Suter v. Artist M., 503 U.S. 347 (1992). The Suter Court noted that the pertinent inquiry under the Blessing
12 framework was whether Congress, in enacting the Adoption Act, unambiguously conferred “upon the child

beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child

13 from being removed from his home, and once removed to reunify the child with his family.” Suter, 503 U.S. at 357.
The Suter Court found that § 671(a)(15) did not unambiguously confer an enforceable right on individual children

14 within the child welfare system because only “a rather generalized duty” was imposed upon the state, “to be enforced
not by private individuals, but by the Secretary” in the manner set forth in the AACA. Id. at 363. To the extent that

Suter may have intimated that § 671(a)(15), or any other section of the AACA for that matter, did not confer a

15 private right enforceable under

§ 1983 simply because of its inclusion in a section requiring a State plan or

specifying the required contents of such a plan, Congress amended the Social Security Act in 1994, specifically
16 mentioning Suter. This amendment noted the following:

17

. . . in an action brought to enforce a provision of this chapter, such provision is not to be deemed

unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying

18

the required contents of a State plan. This section is not intended to limit or expand grounds for

determining the availability of private actions to enforce State plan requirements other than by

overturning any such grounds applied in Suter v. Artist M., 503 U.S. 347 (1992), but not applied in
19
prior Supreme Court decisions respecting such enforceability; provided however, that this section is

not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not

20

enforceable in a private right of action.

21 42 U.S.C. § 1320a-2. However, this amendment did not overrule Suter. The amendment only forecloses the refusal
to find a federal right enforceable under § 1983 because the statutory provision may be included in a section
22 requiring a State plan or specifying the required contents of such a plan. See Harris v. James, 127 F.3d 993, 1002
(11th Cir. 1997) (noting that 42 U.S.C. § 1320a-2 “does not purport to reject any and all grounds relied upon in
Suter; it purports only to overrule certain grounds–i.e., that a provision is unenforceable simply because of its
23
inclusion in a section requiring a state plan or specifying the contents of such a plan”). Therefore, with this guideline
in mind, the Court examines Plaintiffs’ asserted rights to determine, as noted in Suter, if the provision at issue
24 unambiguously confers a private right enforceable pursuant to § 1983.

25

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1 Human Services, (2) certify that the plan provides the child welfare services required by the

2 AACA, and (3) comply with the terms of the Nevada plan. Plaintiffs argue Defendants have

3 violated specific statutory provisions they claim create rights sufficient to maintain a § 1983

4 action.

5

a. 42 U.S.C. § 671(a)(10): Right to Placement in Foster Homes

. . . that Conform to National Standards

6

Plaintiffs allege that the AACA requires Defendants to ensure that foster family

7

homes and child care institutions are licensed, relicensed, and operated in conformity with

8

appropriate “national standards” to accept federal funds. In this regard, Plaintiffs allege that

9

Defendants’ actions and inactions have deprived Plaintiffs of their right to placement in

10

foster homes or facilities that conform to “nationally recommended professional standards.”

11

In their Motion to Dismiss, Defendants argue § 671(a)(10) is too vague under the Blessing

12

analysis mentioned above.

13

42 U.S.C. § 671(a)(10) provides in relevant part:

14

. . . in order for a State to be eligible for payments under [42 U.S.C. § 670], it

15

shall have a plan approved by the Secretary which -- provides for the

establishment or designation of a State authority . . . which shall be

16

responsible for establishing and maintaining standards for foster family homes

and child care institutions which are reasonably in accord with recommended

17

standards of national organizations concerned with standards for such

institutions or homes, including standards related to admission policies, safety,

18

sanitation, and protection of civil rights, and provides that the standards so

established shall be applied by the State to any foster family home or child

19

care institution receiving funds under this part or part B of this subchapter.

20 42 U.S.C. § 671(a)(10). Plaintiffs’ alleged right to “placement in foster homes or
21 facilities that conform to nationally recommended professional standards” based upon 42
22 U.S.C. § 671(a)(10) is too vague and amorphous under Blessing to be enforced pursuant
23 § 1983. First, the very provision Plaintiffs cite in support of their claim “to placement in
24

25

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1 foster homes or facilities that conform to nationally recommended professional standards”

2 has been rejected as the basis for a private right enforceable under § 1983 by numerous

3 courts. See, e.g., Yvonne L. v. N.M. Dep’t of Human Serv., 959 F.2d 883, 889, 890 (10th Cir.

4 1992) (stating “the language of § 671(a)(10) by itself does not support . . . a cause of action

5 [for a right to care in a foster home with standards reasonably in accord with those of national

6 organizations]. It only references ‘standards of national organizations concerned with

7 standards or such institutions or [foster] homes.’ That is the type of vague and amorphous

8 language . . . that cannot be judicially enforced”) (citations omitted); Charlie H. v. Whitman,

9 83 F. Supp. 2d 476, 490-92 (D. N.J. 2000) (same). Courts have also held that “§ 671(a)(10)

10 fails to unambiguously confer upon plaintiffs a private right of enforcement under this

11 provision” because “the language of this section does not confer upon plaintiffs a ‘right’ to

12 foster homes or institutions which are in accord with recommended standards of national

13 organizations but clearly states that the state plan must provide for the designation of a state

14 authority or authorities which shall establish and maintain such standards.” Baby Neal v.

15 Casey, 821 F. Supp. 320, 326-327 (E.D. Pa. 1993). Moreover, courts have held that the

16 ‘reasonably in accord’ language is too vague and ambiguous to maintain a private right of

17 action. See Doe v. Johnson, No. 92 C 7661, 1993 WL 50845, at *3 (N.D. Ill. Feb. 24, 1993)

18 (dismissing plaintiff's action “to the extent that it seeks private relief for an alleged violation

19 of § 671(a) of the Adoption Assistance and Child Welfare Act” because “the Act places its

20 enforcement mechanism in hands other than those of private plaintiffs under § 1983”); see

21 also Del A. v. Roemer, 777 F. Supp. 1297, 1310 (E.D. La. 1991) (holding that the “provision

22 requiring placement in foster homes and institutions that are ‘reasonably in accord with’

23 national standards is vague and unenforceable”). Moreover, as discussed above in footnote

24 three, that Congress recently chose to amend 42 U.S.C. § 674 to include a private right of

25

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1 action under § 1983 for a state or other entity’s failure to comply with 42 U.S.C.

2 § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C.

3 § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend

4 § 671(a)(10) to confer rights enforceable pursuant to § 1983. Pursuant to the above analysis,

5 the Court dismisses Plaintiffs’ § 1983 claim under 42 U.S.C. § 671(a)(10) for “placement in

6 foster homes or facilities that conform to nationally recommended professional standards.”

7

b. 42 U.S.C. § 671(a)(22): The Right to Quality Services that

Protect Children’s Health & Safety

8

Plaintiffs assert that § 671(a)(22) establishes “a right to quality services that protect

9

foster children’s safety and health.” (#57-7 at 8.) Section 671(a)(22) provides in relevant

10

part that “the State shall develop and implement standards to ensure that children in foster

11

care placements in public or private agencies are provided quality services that protect the

12

safety and health of the children.” § 671(a)(22). This language clearly intends to benefit

13

foster children; thus, it satisfies Blessing’s first prong. However, the language is too “vague

14

and amorphous” to support a private cause of action. See, e.g., Whitley v. N.M. Children,

15

Youth & Families Dep’t, 184 F. Supp. 2d 1146, 1165 (D. N.M. 2001); Charlie H., 83 F.

16

Supp. 2d at 490 n.3. The language in this section is similar to the language in § 671(a)(10),

17

which more than one federal circuit and various district courts have held too ambiguous.

18

Moreover, as discussed above in footnote three, that Congress recently chose to amend 42

19

U.S.C. § 674 to include a private right of action under § 1983 for a state or other entity’s

20

failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements

21

enumerated in 42 U.S.C. § 671(a) is strong evidence that Congress did not intend

22

§ 671(a)(22) to confer rights enforceable pursuant to § 1983. The Court dismisses Plaintiffs’

23

§ 1983 claim under 42 U.S.C. § 671(a)(22).

24

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1

c. 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(B): Right to

Timely Written Case Plans

2

Section 671(a)(16) requires states “to provide for the development of a case plan (as

3

defined in section 475(1) [42 USCS § 675(1)]) for each child receiving foster care

4

maintenance payments under the State plan and provide for a case review system which

5

meets the requirements described in section 475(5)(B) [42 USCS § 675(5)(B)] with respect to

6

each such child . . . .” 42 U.S.C. § 675(1) defines the requirements for a “case plan” and

7

§ 675(5) defines the requirements for a “case review system.” 42 U.S.C. §§ 675(1) and (5).

8

Unlike the above analyzed sections, the case-plan provisions provide specific detailed

9

instructions. The federal courts that have analyzed these sections are split on whether they

10

provide a private right of action.

11

In analyzing whether §§ 675(5)(C) and 671(a)(16) provide a private right of action,

12

the Court must look to Blessing. First, it is clear that Plaintiffs are the intentional

13

beneficiaries under these provisions. Second, the terms of these two provisions are not so

14

“vague and amorphous” that their enforcement would strain judicial competence. Unlike the

15

“reasonable efforts,” “national standards,” and “safe” language analyzed above, the

16

requirements needed to form a case plan are fairly specific in that a judge can determine

17

whether a state plan contains such a system. Indeed, many courts have held that most

18

provisions under the AACA fail to provide a private right of action, yet these same courts

19

have also held that § 671(a)(16) affords foster children a private cause of action. See, e.g.,

20

B.H. v. Johnson, 715 F. Supp. 1387, 1405 (N.D. Ill. 1989). Finally, § 671 of the Act

21

unambiguously imposes a binding obligation on the states if they accept federal funds. Thus,

22

it is clear that Congress intended to impose a requirement on states that would specifically

23

benefit foster care children such as Plaintiffs. See Occean v. Kearney, 123 F. Supp. 2d 618,

24

25

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1 625 (D. Fla. 2000) (analyzing § 671(a)(16) and concluding that it provides a private cause of

2 action). The Court therefore denies Defendants’ request to dismiss Plaintiffs’ federal claims

3 under these sections.

4

d. 42 U.S.C. §§ 622(b)(10)(B)(ii), and 675(5)(A): Right to

Placement in the Least Restrictive, Most Family-Like

5

Setting

6

Plaintiffs allege Defendants must ensure that each child in need of a foster care

7 placement is placed in the least restrictive, most family-like setting available, consistent with

8 the child’s best interests and individual needs. In this regard, Plaintiffs allege that

9 Defendants’ actions and inactions deprived them of the right to “placement in the least

10 restrictive, most family-like setting.” Because 42 U.S.C. § 675(5) is a definitional section,

11 standing alone, it does not confer a right upon Plaintiffs enforceable pursuant to § 1983. See

12 B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D. Ill. 1989) (noting that “it would be strange

13 for Congress to create enforceable rights solely in the definitional section of a statute”). Most

14 courts deciding this issue have held that this section does not create a private right of action.

15 See, e.g., id. (holding that while the AACA “creates an enforceable right to an individualized

16 ‘case plan’ and ‘case review system, . . . beyond the narrow requirements of a case plan and

17 case review system, the AA[C]A does not impose on the state the sweeping duties alleged by

18 plaintiffs” and specifically holding that “we do not believe Congress intended to create an

19 enforceable individual right of placement in the least restrictive (most family-like) setting”).

20 Moreover, several courts have rejected similar claims under § 1983 to enforce the right to

21 placement in the least restrictive, most family-like setting because such a right is too vague

22 and amorphous to be judicially enforceable. See Pennhurst State Sch. and Hosp. v.

23 Halderman, 451 U.S. 1, 24-25 (1981) (holding that “it is difficult to know what is meant by

24 providing ‘appropriate treatment’ in the ‘least restrictive’ setting”); Aristotle P. v. Johnson,

25

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1 721 F. Supp. 1002, 1012 (N.D. Ill. 1989) (holding that the “right to be placed ‘in the least

2 restrictive, most family like setting’ . . . [is] amorphous and not subject to precise definition”)

3 (citing Pennhurst, 451 U.S. at 24-25). The Court dismisses Plaintiffs’ § 1983 claim under 42

4 U.S.C. § 622(b)(10)(B)(ii) and/or 42 U.S.C. § 675(5) to placement in the least restrictive,

5 most family-like setting.

6

e. 42 U.S.C. §§ 675(5)(D) and 622(b)(10)(B)(ii): Right to

Health and Educational Records Reviewed

7

In connection with the case-review system described above, Plaintiffs ask this Court

8

to recognize a right to updated health and educational records for Plaintiff foster children.

9

Specifically, the statutes state in pertinent part:

10

. . . a child’s health and education record (as described in paragraph (1)(A)) is

11

reviewed and updated, and a copy of the record is supplied to the foster parent

or foster care provider with whom the child is placed, at the time of each

12

placement of the child in foster care, and is supplied to the child at no cost at

the time the child leaves foster care if the child is leaving foster care by reason

13

of having attained the age of majority under State law . . . .

14

As analyzed above, the AACA provides a private right of action with regards to

15 Plaintiffs’ timely written case plans. Plaintiffs now ask the Court to recognize a cause of

16 action for this specific provision under the case plan. First, it is clear that Plaintiffs are an

17 intentional beneficiary under these provisions, which require a case review system including

18 various procedural safeguards for each child in custody. Second, the terms of these health-

19 and-educational-records provisions are not so “vague and amorphous” that their enforcement

20 would strain judicial competence. Unlike the “reasonable efforts,” “national standards,” and

21 “safe” language above, the statute specifically states what records should be forwarded along

22 with the foster child. Thus, the Court denies County Defendants’ Motion to Dismiss as it

23 relates to this claim.

24

25

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1

f. 42 U.S.C. § 675(5)(G): Foster Parent’s Right to

Notice of Hearing

2

The statute states that a case-review system must include a procedure for ensuring that

3

“the foster parents (if any) of a child and any preadoptive parent or relative providing care for

4

the child are provided with notice of, and a right to be heard in, any proceeding to be held

5

with respect to the child . . . .” § 675(5)(G). This language satisfies the Blessing test. First,

6

the foster child is clearly the intended beneficiary under this section. Second, the right

7

protected by the statute is neither vague nor amorphous. The statute’s plain language

8

unambiguously states that any foster parent or preadoptive parent providing care for the child

9

must receive notice of a hearing and have the right to be heard. The states must comply with

10

this provision to receive federal funding. The Court therefore denies County Defendants’

11

Motion to Dismiss based on this cause of action.

12

g. “All Other Rights”

13

Plaintiffs also ask the Court to recognize all other rights under 42 U.S.C.

14

§§ 622(b)(10)(B)(ii) and 675(5). However, as noted above, determining whether Plaintiffs’

15

have a private cause of action requires the Court to analyze Plaintiffs’ specific allegations and

16

each specific statute to consider if Congress has provided Plaintiff a private right of action.

17

Plaintiffs have not stated how “all other rights” applies to the asserted wrongs. Therefore, the

18

Court dismisses this claim with leave to amend.

19

2. Child Abuse Prevention and Treatment Act

20

Plaintiffs allege Defendants violated their right to a guardian ad litem in all

21

proceedings before a juvenile court in violation of the Child Abuse Prevention and Treatment

22

Act (“CAPTA”). 42 U.S.C. § 5106a(b)(2)(A)(xiii). The relevant statutory provision states in

23

part:

24

25

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1

. . . that in every case involving an abused or neglected child which results in a

judicial proceeding, a guardian ad litem, who has received training appropriate

2

to the role, and who may be an attorney or a court appointed special advocate

who has received training appropriate to that role (or both), shall be appointed

3

to represent the child in such proceedings . . . .

4 42 U.S.C. § 5106a(b)(2)(A)(xiii).

5

As to Blessing’s first prong, the language clearly indicates that Plaintiffs (foster

6 children) are the intended beneficiaries of the CAPTA provisions at issue. Moreover, the

7 statutory language requires that “in every case” the state must provide a guardian ad litem.

8 The statute sets forth clear conditions the state must satisfy to qualify for a federal grant and

9 does so through the use of mandatory and not precatory language. Further, the CAPTA

10 provision at issue is not so vague and amorphous as to be beyond the enforcement power of

11 the Court. This Court certainly is competent to determine whether Defendants have made

12 any efforts to comply with this provision. While Defendants may very well prevail on this

13 claim at trial or at summary judgment, Plaintiffs have stated a valid claim for the purposes of

14 surviving Defendants’ Motion to Dismiss.

15

3. Medicaid Act

16

Plaintiffs also claim Defendants have “failed to provide Medicaid-eligible children

17 with the full range of services covered by Medicaid when such services are deemed necessary

18 . . . .” (#57-8 at 1.) Plaintiffs allege this failure violates 42 U.S.C. §§ 1396a(a)(10),

19 1396d(a)(4)(B), and 1396d(r).

20

a. 42 U.S.C. § 1396(a)(10)

21

The Ninth Circuit has never analyzed whether this statute provides a private right of

22 action. Plaintiffs argue this section requires Plaintiffs to provide medical services. However,

23 there appears to be some disagreement among the courts of appeal as to whether, pursuant to

24 the Medicaid Act, a state must merely provide financial assistance to eligible individuals to

25

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1 enable them to obtain covered services, or provide the services directly. See Sabree v.

2 Richman, 367 F.3d 180, 181 n.1 (3d Cir. 2004); Bruggeman v. Blagojevich, 324 F.3d 906,

3 910 (7th Cir. 2003) (“[T]he statutory reference to ‘assistance’ appears to have reference to

4 financial assistance rather than to actual medical services, though the distinction was missed

5 in Bryson v. Shumway, 308 F.3d 79, 81, 88-89 (1st Cir. 2002), and Doe v. Chiles, 136 F.3d

6 709, 714, 717 (11th Cir. 1998).”). The Medicaid Act explicitly defines the term “medical

7 assistance” as used in § 1396a(a)(10): “payment of part or all of the cost of the [enumerated]

8 services” to eligible individuals “who are under the age of 21.” 42 U.S.C. § 1396d(a); Schott

9 v. Olszewski, 401 F.3d 682, 686 (6th Cir. 2005) (“The Act defines ‘medical assistance’ as

10 ‘payment of part or all of the cost of the [covered] care and services . . . for individuals.’”).

11 Plaintiffs nevertheless contend that the language of §1396a(a)(10) expands the definition of

12 “medical assistance” beyond simply payment for services to include actual provision of

13 services. In their Complaint, Plaintiffs argue that Defendants have “failed to provide . . . the

14 full range of services covered by Medicaid . . . .” (#57-8 at 1.) Plaintiffs continually allege

15 that Defendants have failed to provide services, not financial assistance, as required under the

16 statute. After examining the text and the structure of the statute, the Sixth Circuit held that

17 1396a(a)(10) did not require the State to provide medical services directly. Westside Mothers

18 v. Olszewski, 454 F.3d 532, 541 (6th Cir. 2006). According to the Sixth Circuit’s recent

19 decision (the most recent on this statute), “[t]he most reasonable interpretation of

20 § 1396a(a)(10) is that medical assistance, i.e., financial assistance, must be provided for at

21 least the care and services listed in paragraphs (1) through (5), (17) and (21) of § 1396d(a).”

22 Id. citing (Clark v. Richman, 339 F. Supp. 2d 631, 641 (M.D. Pa. 2004)).

23

Because Defendants have filed a Motion to Dismiss for failure to state a claim, the

24 Court must concern itself with the allegations in Plaintiffs’ Complaint, which do not allege

25

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1 that Defendants have failed to provide financial assistance as required by § 1396a(10).

2 Rather, Plaintiffs contend Defendants have failed to provide the actual services. The Court

3 therefore dismisses with leave to amend the claim for violations of § 1396a(a)(10).

4

b. 42 U.S.C. § 1396a(4)(B)4

5

As noted above, the Ninth Circuit has not interpreted the statutes at issue in this case.

6 However, it has analyzed another provision of § 1396a. Sanchez v. Johnson, 416 F.3d 1051

7 (9th Cir. 2005). In Sanchez, the Ninth Circuit stated:

8

Although 42 U.S.C. § 1396a(a) sets out a comprehensive list of requirements

that a state plan must meet, it does not describe every requirement in the same

9

language. Some requirements, such as those addressed in Sabree, focus on

individual recipients, while others are concerned with the procedural

10

administration of the Medicaid Act by the States and only refer to recipients, if

at all, in the aggregate. Section 30(A) is one of the latter provisions; it is

11

directly concerned with the State as administrator and only indirectly with

recipients and providers as beneficiaries of the administered services.

12

Gonzaga made it clear that simply being the intended beneficiary of a statute

is not enough to demonstrate the intentional creation of an enforceable right.

13

Id. at 1062. The Court then went on to hold that the statute failed the Blessing test. The

14

language at issue in § 1396a(4)(B) is similar to that which the Ninth Circuit analyzed in

15

Sanchez. Just as with the language at issue in Sanchez, Section 1396a(4)(B) focuses not on

16

the individual recipient of Medicaid; rather, it focuses on “the procedural administration of

17

the Medicaid Act . . . .” Id. Accordingly, the Court dismisses Plaintiffs’ claims under 42

18

U.S.C. § 1396a(4)(B). Further, the Court dismisses Plaintiffs’ remaining Medicaid claims

19

because they necessarily flow from these dismissed claims.

20

21 442 U.S.C. § 1396a(4)(B) states that a state plan must provide “for the training and effective use
22 of paid subprofessional staff, with particular emphasis on the full-time or part-time employment of recipients and other persons of low income, as community service aides, in the administration
23 of the plan and for the use of nonpaid or partially paid volunteers in a social service volunteer program in providing services to applicants and recipients and in assisting any advisory
24 committees established by the State agency . . . .”

25

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1

E. Plaintiffs’ Federal Constitutional Claims

2

Plaintiffs also allege three constitutional causes of action. First, Plaintiffs allege

3 Defendants have deprived them of their substantive due process rights under the Fourteenth

4 Amendment. Second, Plaintiffs argue Defendants have violated their rights by systematically

5 creating dangers that deprive them of their substantive due process rights (state-created

6 danger). Finally, Plaintiffs contend that Defendants have violated their procedural due

7 process rights.

8

1. Substantive Due Process

9

Plaintiffs argue that Defendants have deprived them of the following rights:

10

. . . the right to protection for unnecessary harm while in government custody;

the right to a living environment that protects foster children’s physical,

11

mental, and emotional safety and well-being; the right to services necessary to

prevent foster children from deteriorating or being harmed physically,

12

developmentally, psychologically, or otherwise while in government custody,

including but not limited to the right to safe and secure foster care placements,

13

appropriate monitoring and supervision, appropriate planning and services

directed to toward ensu[r]ing that the child can leave foster care and grow up

14

in a permanent family, adequate mental, dental, psychiatric, psychological,

and educational services; the right to treatment and care consistent with the

15

purpose of the assumption of custody by Defendants; the right not to be

retained in custody longer than is necessary to accomplish the purposes to be

16

served by taking the child into custody; the right to be placed in the least

restrictive placement based on the foster child’s needs; and the right to receive

17

care, treatment, and services determined and provided through the exercise of

accepted, reasonable professional judgment.

18

(#57 at 60.)

19

Initially, with respect to foster children in custody, the Court must draw a distinction

20

between those children involuntarily within state custody and those voluntarily within state

21

custody, if such a distinction exists among Plaintiffs. DeShaney v. Winnebago County Dep’t

22

of Social Serv., 489 U.S. 189, 201 (1989) (holding that “in the substantive due process

23

analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his

24

25

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1 own behalf—through incarceration, institutionalization, or other similar restraint of personal

2 liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process

3 Clause, not its failure to act to protect his liberty interest against harms by other means”). See

4 also Milburn v. Anne Arundel County Dep’t of Social Serv., 871 F.2d 474, 476 (4th Cir.

5 1989) (noting that “the State of Maryland by the affirmative exercise of its power had not

6 restrained the plaintiff’s liberty; he was voluntarily placed in the foster home by his natural

7 parents”). Plaintiffs do not clearly state in their Complaint whether Plaintiffs are children in

8 state custody voluntarily. However, the Court grants Defendants’ Motion to Dismiss with

9 respect to the First Count of Plaintiffs’ Complaint to the extent Plaintiffs’ allege a substantive

10 due process claim on behalf of children voluntarily in state custody. See id.

11

With respect to Plaintiffs involuntarily in foster custody, courts have held that

12 children “who have been involuntarily placed in the custody of [the state] may state a claim

13 for violation of their substantive due process rights based upon their right to freedom from

14 harm under the fourteenth amendment of the United States Constitution.” See, e.g., Baby

15 Neal v. Casey, 821 F. Supp. 320, 335 (E.D. Pa. 1993). In addition, Courts have also held that

16 foster children have a right to the required “professional judgment” while in custody. See,

17 e.g., Wendy H. v. Philadelphia, 849 F. Supp. 367, 372 (E.D. Pa. 1994). Defendants’ alleged

18 conduct of ignoring warnings and reports of abuse prior to and during the placement process

19 could constitute a failure to adhere to the “professional judgment” standard. Jordan v.

20 Philadelphia, 66 F. Supp. 2d 638, 646 (E.D. Pa. 1999). However, this right to freedom from

21 harm is not without boundaries. Specifically, under the Fourteenth Amendment, Nevada is

22 required to provide to individuals within state custody their “basic human needs,” such as

23 “food, clothing, shelter, medical care, and reasonable safety.” DeShaney, 489 U.S. at 200

24 (citations omitted). Plaintiffs do not, however, have a substantive due process right to “not

25

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1 be retained in custody longer than is necessary . . . ,” nor do Plaintiffs have a substantive due

2 process right “to be placed in the least restrictive placement based on the foster child’s

3 needs.” See Baby Neal, 821 F. Supp. at 335 (dismissing plaintiffs’ claims for “permanent

4 placements or placement in preadoptive homes pending their adoption”); see also Charlie H.

5 Whitman, 83 F. Supp. 2d 476, 507 (D. N.J. 2000) (holding that foster children do not have a

6 due process right to be free from unlimited custody or to be placed in the least restrictive

7 housing possible). Therefore, the Court grants Defendants’ Motion to Dismiss with respect

8 to count one to the extent Plaintiffs assert a substantive due process claim on behalf of

9 children involuntarily in state custody to “not be retained in custody longer than is necessary.

10 . . ,” or to “to be placed in the least restrictive placement based on the foster child’s needs.”

11

2. Substantive Due Process: State-Created Danger

12

Plaintiffs have not sufficiently stated a claim for state-created danger in their

13 Complaint. “The state-created danger doctrine requires more than a mere failure to act; it

14 requires the state official to take an affirmative action.” Kennedy v. Ridgefield City, 440 F.3d

15 1091, 1094 (9th Cir. 2006). “Second, the plaintiff must prove that the official’s act did more

16 than simply expose the plaintiff to a danger that already existed.” Id. (citations omitted).

17 Finally, the plaintiff must prove that the official acted with deliberate indifference to known

18 or obvious dangers. See L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996) (“The plaintiff

19 must show that the state official participated in creating a dangerous condition, and acted

20 with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it.”).

21 The Supreme Court has stated that negligence, whether gross or simple, is insufficient to

22 prove a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (“The

23 Due Process Clause is simply not implicated by a negligent act of an official causing

24 unintended loss of or injury to life, liberty, or property.”).

25

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1

While Plaintiffs have alleged that Defendants affirmatively acted with deliberate

2 indifference by placing Plaintiffs in situations Defendants knew or should have known posed

3 an imminent risk, Plaintiffs have failed to allege the second element necessary to sufficiently

4 plead an action for state-created danger. Specifically, Plaintiffs argue that Defendants placed

5 foster children into situations that they knew were already dangerous. However, Plaintiff

6 must allege and “prove that the official’s act did more than simply expose the plaintiff to a

7 danger that already existed.” Kennedy, 440 F.3d at 1094. Plaintiffs have not alleged that

8 Defendants did anything more than place foster children into an already broken system.

9 Plaintiffs’ Complaint does not state that Defendants created or increased the danger to

10 children, just that they failed to correct it. Thus, the Court grants Defendants’ Motion to

11 Dismiss as it relates to Plaintiffs’ second cause of action, with leave to amend.

12

3. Procedural Due Process

13

Although some courts have held that foster children cannot state a claim for

14 procedural due process violations because the state juvenile court and administrative

15 procedures provide sufficient due process, Defendants failed to brief this issue. Plaintiffs

16 allege Defendants failed to provide those procedures. In other words, Plaintiffs contend that

17 Defendants systematically ignore the statutorily-created procedures. Thus, at the pleading

18 stage, Plaintiffs have sufficiently stated a claim for which the Court may grant relief.

19

F. Federal Common-Law Claim (Count Ten)

20

Plaintiffs’ allege they are third-party beneficiaries to the “State Plan” contract

21 between Nevada and the federal government. Pursuant to the AACA and federal common

22 law, Plaintiffs assert a cause of action for violation of their rights under that contract. While

23 Defendants ask the Court to dismiss this claim, they provide no argument as to why the Court

24 must do so.

25

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1

The Supreme Court has held that legislation enacted pursuant to the spending power

2 of Congress is much in the nature of a contract: “in return for federal funds, the States agree

3 to comply with federally imposed conditions.” Pennhurst State Sch. & Hosp. v. Halderman,

4 451 U.S. 1, 17 (1981). It is also recognized that, under certain circumstances, parties can be

5 third-party beneficiaries to contracts between the federal government and local or state

6 agencies. See, e.g., Concerned Tenants Ass’n of Father Panik Village v. Pierce, 685 F. Supp.

7 316, 324 (D. Conn. 1988) (stating that tenants have enforceable rights as intended

8 beneficiaries to obtain compliance with obligations under contract between HUD and local

9 agency).

10

Although it is true that the United States is a party, through its Department of Health

11 and Human Services, to the alleged contract at issue, the United States is not a party to this

12 action. The Complaint raises no question regarding the liability of the United States or the

13 responsibilities of the United States under the alleged contract. In determining whether

14 Plaintiffs are intended third-party beneficiaries of the alleged contract in this case, the Court

15 must first decide whether federal or state common law applies. See Miree v. DeKalb County,

16 433 U.S. 25, 28 (1977) (holding that state law applied to petitioners’ breach-of-contract claim

17 as third-party beneficiaries); see also Dewakuku v. Cuomo, 107 F. Supp. 2d 1117, 1131 (D.

18 Ariz. 2000) (stating that federal common law applies to third-party beneficiary claims when a

19 federal agency is a party to the action and the outcome may directly affect financial

20 obligations of the United States).

21

The “contract” between the parties is not before the Court. Therefore, the full scope of

22 the United States’ interests is not clear for purposes of making the threshold determination of

23 whether federal or state common law applies. In any event, the Court cannot determine the

24 rights of the parties to a contract that is not in the record. Further, Defendants have failed to

25

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1 argue why the Court should dismiss this claim. Therefore, the Court denies Defendants’

2 Motion to Dismiss as it relates to Plaintiffs’ tenth cause of action, without prejudice to the

3 filing of a motion for summary judgment addressing these issues.

4

G. Immunity From Federal Claims

5

Defendants argue they are immune from Plaintiffs’ federal claims. While Nevada has

6 not waived its Eleventh Amendment immunity, under the Ex Parte Young doctrine, the

7 Eleventh Amendment permits official capacity suits against state officials for injunctive

8 relief. Duke Energy Trading and Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1051 (9th Cir. 2001)

9 (citing Ex Parte Young, 209 U.S. 123, 159-60 (1908)). In their Motion to Dismiss, County

10 Defendants incorrectly argue they are immune from suit based on qualified and absolute

11 immunity doctrines that are applicable in individual capacity lawsuits. However, Plaintiffs

12 file this suit against County Defendants in their official capacities. Plaintiffs’ Complaint

13 contains numerous allegations that County Defendants are directly connected to the

14 enforcement of the acts in question. Accordingly, the Court finds that County Defendants are

15 not immune from Plaintiffs’ suit seeking prospective injunctive relief.

16

H. Immunity From State Claims

17

County Defendants ask the Court to dismiss all state claims against them due to

18 immunity. Under Nev. Rev. Stat. § 41.032(2), County Defendants are only immune from

19 liability for their discretionary acts and omissions, not ministerial acts. Section 41.032

20 provides, in pertinent part:

21

. . . No action may be brought under NRS 41.031 [(the State’s limited waiver

of immunity)] or against an immune contractor or an officer or employee of

22

the state or any of its agencies or political subdivisions which is:

. . . .

23

2. Based upon the exercise or performance or the failure to exercise or

24

perform a discretionary function or duty on the part of the state or any of its

25

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1

agencies or political subdivisions or of any officer, employee or immune

contractor of any of these, whether or not the discretion involved is abused.

2

Nev. Rev. Stat. § 41.032. The Nevada Supreme Court has defined discretionary acts as

3

“those which require the exercise of personal deliberation, decision and judgment.”

4

Travelers Hotel v. Reno, 741 P.2d 1353, 1354 (Nev. 1987).

5

In Foster v. Washoe County, the Nevada Supreme Court held that an investigation

6

into alleged child abuse “involves ‘personal deliberation, decision and judgment’ and cannot

7

be construed as ministerial.” 964 P.2d 788, 794 (Nev. 1998). County Defendants argue that

8

in accordance with Foster, “plaintiffs’ claims against the Individual Clark County Defendants

9

should be dismissed as the alleged violations of plaintiffs’ rights . . . are based upon

10

discretionary acts protected under NRS 41.032.” (#104 at 14.) Plaintiffs argue that County

11

Defendants have violated numerous statutory provisions. To determine whether they involve

12

discretionary or ministerial duties, the Court briefly examines the alleged statutory violations

13

in Plaintiffs’ state law claims.

14

1. Seventh Cause of Action

15

Plaintiffs’ seventh cause of action alleges procedural due process violations under the

16

Nevada Constitution for failure to enforce several statutes. County Defendants argue they are

17

immune from liability under these statutes based on Foster. However, in Foster the Court

18

held that the manner in which the defendants conducted their investigation was discretionary;

19

the court did not hold that the decision to initiate an investigation in the first place was

20

discretionary. As analyzed below, all but one statute in question imposes ministerial duties

21

upon County Defendants. However, just as in Foster, the manner in which County

22

Defendants perform the ministerial duties is discretionary. Therefore, the Court dismisses all

23

claims based on how County Defendants carried out their ministerial duties, but the Court

24

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1 does not dismiss Plaintiffs’ seventh cause of action as it relates to County Defendants’ failure

2 to initiate the ministerial duties in the first place. Plaintiffs allege Defendants violated, and

3 continue to violate, the following statutes:

4

(1) Nev. Rev. Stat. §§ 432B.500 and 432B.505: (appointment of Guardian ad

5

litem.).

6

(2) Nev. Rev. Stat. § 432B.260: (discretionary as it relates to children five years

7

or younger.) Therefore, the Court dismisses Plaintiffs’ seventh cause of action

8

with regards to this statute for children over five years.

9

(3) Nev. Admin. Code §§ 424.160 & 424.805: (imposing ministerial duties upon

10

County Defendants in relation to number of children allowed in foster homes)

11

(4) Nev. Admin. Code §§ 432B.405 & 424.565: (stating that the agencies in

12

question shall ensure that . . . . ).

13

(5) Nev. Admin. Code §§ 432B.185: (stating that the “agency which provides

14

child welfare services shall assess the safety of a child who is the subject of a

15

report made pursuant to NRS 432B.220 or an investigation initiated pursuant

16

to NRS 432B.260 at each phase of intervention in which child welfare

17

services are provided. Those phases include, without limitation: . . . .).

18

(6) Nev. Rev. Stat. §§ 432A.040; 432A.070; 432A.210; and Nev. Admin. Code

19

§§ 432A.170; 432A.180: (imposing mandatory duty to ensure that child care

20

facilities are licensed prior to placement of children).

21

(7) Nev. Admin. Code § 432B.340: (requiring residential institutions be

22

responsible to provide the necessary resources to prevent harm to children).

23

(8) Nev. Admin. Code § 424,530: (listing examples of unacceptable disciplinary

24

techniques).

25

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1

(9) Nev. Rev. Stat. § 127.330: (imposing mandatory notice requirements upon

2

Nevada agencies before they can send a child in foster custody to another

3

state).

4

These statutory provisions relate to mandatory, ministerial duties.5 However, the

5 Court dismisses all claims based on how County Defendants carried out their ministerial

6 duties because the Nevada Supreme Court has held that such behavior requires discretionary

7 acts, but the Court does not dismiss Plaintiffs’ seventh cause of action as it relates to County

8 Defendants’ failure to initiate the ministerial duties in the first place.

9

2. Remaining State law Claims

10

Plaintiffs’ remaining state law claims—counts eight and nine—follow the same

11 analysis as count seven. Plaintiffs may maintain claims against Plaintiffs inasmuch as they

12 claim County Defendants failed to even initiate the relevant statutory requirements, but

13 Plaintiffs cannot maintain an action based on the manner in which Defendants carried out

14 their duties because those decisions involve “‘personal deliberation, decision and judgment’

15 and cannot be construed as ministerial.” Foster v. Washoe County 964 P.2d 788, 794 (Nev.

16 1998). Accordingly, Defendants are immune from liability for those discretionary decisions.

17

I. Younger Abstention

18

County Defendants also argue that even if Plaintiffs have standing, the Court should

19 refrain from exercising federal jurisdiction as required in Younger v. Harris, 401 U.S. 37

20 (1971). “Absent ‘extraordinary circumstances,’ abstention in favor of state judicial

21 proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state

22 interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims.”
23 5Except Nev. Rev. Stat. § 432B.260 as it relates to children over five years. The Court dismisses this cause of action with regards to this statutory section inasmuch as Plaintiffs allege a violation
24 for children over five years.

25

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1 Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 712 (9th Cir. 1995) (citation

2 omitted). The abstention doctrine is “an extraordinary and narrow exception to the duty of a

3 District Court to adjudicate a controversy properly before it.” Colo. River Water

4 Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (citation omitted).

5

In this case, there is no dispute that Plaintiffs and the members of the class they seek

6 to represent are involved in ongoing deprivation proceedings in the juvenile court. Nor is

7 there any dispute that these proceedings implicate important state interests in the care,

8 disposition, and welfare of deprived children. Therefore, to determine whether to abstain, the

9 Court considers whether these proceedings will interfere with the ongoing state proceedings

10 and whether the state proceedings afford Plaintiffs an adequate opportunity to raise their

11 federal claims. At this time, the Court defers ruling on abstention.

12

Plaintiffs have periodic reviews before the state juvenile courts. Plaintiffs claim that

13 the declaratory and injunctive relief they seek is not directed at the state review hearings, or at

14 Nevada’s juvenile courts, juvenile court judges, or juvenile court personnel. According to

15 Plaintiffs, they seek relief directed solely at executive branch and County Defendants to

16 remedy their alleged failures as Plaintiffs’ custodians. If Plaintiffs’ claims are proven, an

17 order by this Court remedying such failures might not interfere with ongoing juvenile court

18 proceedings. However, at this time, the Court cannot conclude the ongoing juvenile court

19 proceedings do not afford Plaintiffs an adequate opportunity to raise their federal claims.

20 Plaintiffs seek prospective injunctive relief on behalf of themselves and others to remedy

21 ongoing violations of their rights.

22

Defendants claim the juvenile courts lack jurisdiction to afford the requested relief.

23 Nevada’s juvenile court system “is the creation of statute, and it only possesses the

24 jurisdiction expressly provided for it in the statute.” Kell v. State, 618 P.2d 350, 351 (Nev.

25

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1 1980). Juvenile court jurisdiction is limited to “any matter within the purview of this title.”

2 Nev. Rev. Stat. § 62B.310(1). Accordingly, juvenile court jurisdiction is limited to making

3 determinations regarding individual children who are in “need of protection” as set forth in

4 Nev. Rev. Stat. § 432B.410. Although juvenile court judges are authorized to make a variety

5 of decisions to protect abused and neglected children, they are not authorized to make

6 determinations regarding system-wide violations of the civil rights of plaintiff children or

7 issue orders concerning the systemic reform of Clark County’s child welfare system. As

8 mentioned above, Plaintiffs’ cases are currently pending in the juvenile system. The Court

9 cannot make a determination at this time if the juvenile court system has failed to afford

10 Plaintiffs the relief they request. Plaintiffs have recently initiated their claims in state courts.

11 The state courts may very well remedy Plaintiffs’ circumstances. Thus, the Court defers

12 ruling on abstention as it relates to the argument that the juvenile courts cannot remedy the

13 alleged violations at issue in Plaintiffs’ case. The Court will reevaluate abstention on these

14 grounds after the juvenile courts have sufficient time to address Plaintiffs’ cases. Further,

15 because the Court defers ruling on Plaintiffs’ Motion for Class Certification, it does not

16 address whether the juvenile court system lacks jurisdiction to address the alleged system-

17 wide deficiencies with the foster care system. When the Court later addresses the Motion for

18 Class Certification, it will again readdress the abstention argument.

19

Defendants also argue the Court should follow 31 Foster Children v. Bush, 329 F.3d

20 1255 (11th Cir. 2003) and abstain from hearing this case. This case, however, is

21 distinguishable from 31 Foster Children. The relief requested in 31 Foster Children went far

22 beyond what is sought here. Plaintiffs in 31 Foster Children sought “to have the district

23 court appoint a panel and give it authority to implement a system wide plan to revamp and

24 reform dependency proceedings in Florida, as well as the appointment of a permanent

25

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1 children’s advocate to oversee that plan.” Id. at 1279. Plaintiffs request no such relief in

2 this case. Also, in 31 Foster Children, the court of appeals noted that “the federal and state

3 courts could well differ, issuing conflicting orders about what is best for a particular plaintiff,

4 such as whether a particular placement is safe or appropriate or whether sufficient efforts are

5 being made to find an adoptive family.” Id. at 1278. In this case, however, Plaintiffs do not

6 ask the Court to make individualized determinations with respect to particular foster children.

7 Instead, they seek declaratory and injunctive relief on a system-wide basis. Certainly, if

8 Plaintiffs modify their requested relief and ask this Court to overtake the foster care system or

9 to act as a de facto supervisor, this Court should abstain. However, at this time, based on the

10 above analysis, the Court does not abstain from exercising federal jurisdiction in regards to

11 Defendants’ reliance on 31 Foster Children.

12 III. Governor Gibbons’s Motion to Dismiss

13

Governor Gibbons moves the Court to dismiss Plaintiffs’ Complaint because (1)

14 Plaintiffs lack standing, (2) Eleventh Amendment immunity as to the federal claims, and (3)

15 Plaintiffs have failed to state valid claims or otherwise establish a sufficient causal

16 connection between the Governor and the alleged wrongs.

17

A. Standing

18

Pursuant to the standing analysis above, the Court finds that Plaintiffs have standing

19 to bring their action. Thus, the Court denies the Governor’s Motion with regards to standing.

20

B. Immunity and Plaintiffs’ Federal Claims

21

The Governor argues he is immune from Plaintiffs’ federal claims. While Nevada has

22 not waived its Eleventh Amendment immunity, under the Ex Parte Young doctrine, the

23 Eleventh Amendment permits official capacity suits against state officials for injunctive

24 relief. Duke Energy Trading and Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1051 (9th Cir. 2001)

25

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1 (citing Ex Parte Young, 209 U.S. 123, 159-60 (1908)). However, under the Ex Parte Young

2 exception, “the state official sued ‘must have some connection with the enforcement of the

3 act’ to avoid making that official a mere representative of the state.” Culinary Workers

4 Union, Local 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999) (quoting Ex Parte Young,

5 209 U.S. at 157) (emphasis added). This connection “must be fairly direct; a generalized

6 duty to enforce state law or general supervisory power over those persons responsible for

7 enforcing the challenged provision will not subject an official to suit.” L.A. County Bar

8 Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (citations omitted).

9

Defendant Governor does not dispute that the Ex Parte Young doctrine allows a

10 plaintiff to sue a state official in his official capacity for prospective injunctive relief; rather,

11 Defendant Governor argues that Ex Parte Young does not apply in this case because he does

12 not have the requisite “connection with the enforcement of the act.” Id. Plaintiffs argue that

13 Governor Gibbons has the requisite enforcement connection based on several federal statutes.

14 First, Plaintiffs argue that 42 U.S.C. § 5106a(b)(2)(A) creates the necessary connection

15 between the Governor and federal statutes in question. 42 U.S.C. § 5106a(b)(2)(A) states in

16 relevant part that to receive federal funds under the federal child abuse statutory provisions,

17 Nevada must submit a plan to the federal government wherein the Governor provides “an

18 assurance in the form of a certification by the chief executive officer of the State that the

19 State has in effect and is enforcing a State law, or has in effect and is operating a Statewide

20 program, relating to child abuse and neglect that includes--. . . .” § 5106a(b)(2)(A) (emphasis

21 added). The statute then lists numerous requirements that a state foster care program must

22 have to receive federal funding. However, this statute does not state that the Governor is

23 connected to the implementation, enforcement, funding, or running of any foster care

24 program. This statute simply requires the Governor to acknowledge that the state has such a

25

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1 program if the state wants federal funding. The statute does not create any enforcement

2 rights in the Governor. To impose an injunction on the Governor to fix Nevada’s foster care

3 system based on this statute would have no real practical effect.

4

Second, Plaintiffs point to Nev. Rev. Stat. § 422.260. However, just as with

5 § 5106a(b)(2)(A), § 422.260 does not impose upon or otherwise create any enforcement

6 authority in the Governor of the relevant statutes at issue in this case. Section 422.260

7 simply states that Nevada will accept federal funds from the federal government, with the

8 governor’s approval. Finally, Plaintiffs state that Nev. Rev. Stat. § 232.210 creates the

9 requisite connection between the Governor and the enforcement provisions at issue in this

10 case. However, § 232.210 simply outlines the requirement for the Director of the Department

11 of Health and Human Services and states that the director “serves at the pleasure of the

12 governor.”

13

The statues upon which Plaintiffs sue the Governor in his official capacity for

14 injunctive relief do not satisfy the requirement that “the state official sued ‘must have some

15 connection with the enforcement of the act’ to avoid making that official a mere

16 representative of the state.” Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614,

17 619 (9th Cir. 1999) (quoting Ex Parte Young, 209 U.S. at 157). Indeed, the Nevada

18 legislature has explicitly placed the enforcement obligations at issue in this case upon other

19 individuals. See, e.g., Nev. Rev. Stat. § 232.353 (stating that the Director of Health and

20 Human Services has the obligation to adopt and enforce “each state plan required by the

21 Federal Government, either directly or as a condition to the receipt of federal money, for the

22 administration of any program for which the Department or any of the appropriate divisions

23 of the Department is responsible”); see also Nev. Rev. Stat. § 432B.180 (stating that the

24

25

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1 Division of Child and Family Services shall plan and monitor child welfare services

2 throughout the state); Nev. Rev. Stat. § 432A.040.

3

Plaintiffs do note that the Nevada Constitution obligates the Governor to enforce and

4 uphold Nevada law. However, a constitutional requirement to see that the laws of the state

5 are faithfully executed is insufficient to create Ex Parte Young liability. L.A. Branch NAACP

6 v. L.A. Unified Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983). Further, Plaintiffs not only seek

7 an injunction preventing the Governor from enforcing or continuing unconstitutional

8 practices, they hope to require the Governor to take affirmative steps to eliminate the effects

9 of the allegedly illegal conduct in this case. However, the Governor’s powers in this area are

10 limited to making general policy and budgetary recommendations, as well as administrative

11 appointments. Thus, “the purpose of joining the Governor as a defendant in this suit is not to

12 remedy the effects of unconstitutional [practices] . . . , but to use the Governor as a surrogate

13 for the state, and thereby evade the state’s Eleventh Amendment immunity.” Id. Plaintiffs

14 also appear to assert that the Governor is connected to the alleged violations because he is a

15 supervisor. However, as noted above, general supervisory power over those persons

16 responsible for enforcing the challenged provision will not subject an official to suit.” L.A.

17 County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (citations omitted). Further,

18 Plaintiffs have not presented any evidence that the Governor actively participated in the

19 alleged wrongful actions.

20

As analyzed above, the Governor’s general duties in this case do not establish the

21 requisite connection between him and the unconstitutional acts that Plaintiffs allege. Thus,

22 the Court dismisses Plaintiffs’ federal claims against Governor Gibbons.

23

24

25

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1

C. Plaintiffs’ State Claims (Counts Seven and Eight)

2

Plaintiffs allege Nevada constitutional substantive and procedural due process

3 violations in counts seven and eight. To support their claims, Plaintiffs cite to numerous

4 statutory provisions. However, the statutes to which they cite do not apply to the Governor.

5 For example, Plaintiffs argue the Governor failed to appoint a guardian ad litem. However,

6 the Nevada judiciary has the sole authority to appoint a guardian ad litem. The remaining

7 statutes listed in subsections (b) through (e) of paragraph 286 in Plaintiffs’ Complaint refer

8 solely to the DFS. Of the statutes listed in subsections (f) through (i) of paragraph 286, only

9 one statute, NRS 432A.070, refers to the Governor. However, this statute merely references

10 the Governor in stating that the DFS Chief must submit a budgetary report to the Governor.

11 This statute cannot help Plaintiffs state a claim against Defendant Governor Gibbons for a

12 violation of procedural due process under the Nevada Constitution. Defendant Governor has

13 never had legal or physical custody over Plaintiffs. Further, the Governor does not have

14 control over the agencies that have Plaintiffs in custody, nor does he control over any facility

15 where the alleged class members have been housed, and the Governor lacks the authority or

16 ability under Nevada statutes to affect where or how long Plaintiffs have been housed or what

17 treatment and services they receive. Accordingly, the Court dismisses counts seven and eight

18 as they relate to Governor Gibbons.

19

D. Count Nine

20

Governor Gibbons asks the Court to dismiss count nine as it applies to him. Plaintiffs

21 have not named the Governor in this count. Thus, to the extent they allege liability toward

22 the Governor, the Court dismisses count nine as to Governor Gibbons.

23

24

25

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1

Pursuant to the above analysis, the Court dismisses Governor Gibbons from this

2 action. The Governor is immune to Plaintiffs’ federal claims, and Plaintiffs have failed to

3 state a valid state claim against Governor Gibbons.

4 IV. State Defendants’ Motion to Dismiss

5

State Defendants ask the Court to dismiss Plaintiffs’ claims because Plaintiffs have

6 failed to state valid claims, immunity, and because Plaintiffs have not alleged a sufficient

7 connection between State Defendants and the alleged wrongs to support a § 1983 action.

8

A. Section 1983 Claims

9

State Defendants argue the Court must dismiss them from this action because

10 Plaintiffs have not alleged sufficient connections between State Defendants and the alleged

11 wrongs to support a § 1983 action. “To sustain an action under section 1983, a plaintiff must

12 show (1) that the conduct complained of was committed by a person acting under color of

13 state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory

14 right.” Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989).

15

There is no question Plaintiffs have alleged Defendants were acting under the color of

16 Nevada law when they engaged in the alleged unconstitutional conduct. Defendants argue,

17 instead, that their conduct did not cause Plaintiffs any deprivation of their constitutional or

18 statutory rights.

19

“A person ‘subjects’ another to the deprivation of a constitutional right, within the

20 meaning of [§ ] 1983, if [that person] does an affirmative act, participates in another’s

21 affirmative acts, or omits to perform an act which [that person] is legally required to do that

22 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743

23 (9th Cir. 1978). In limited circumstances, a person can also be subject to § 1983 liability for

24 the acts of others. “Although there is no pure respondeat superior liability under § 1983, a

25

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1 supervisor is liable for the constitutional violations of subordinates ‘if the supervisor

2 participated in or directed the violations, or knew of the violations and failed to act to prevent

3 them.’” Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006) (quoting Taylor v. List, 880

4 F.2d 1040, 1045 (9th Cir. 1989)).

5

Plaintiffs proceed on a theory that Defendants created policies and procedures that

6 violated Plaintiffs’ constitutional rights and that Defendants were willfully blind to

7 constitutional violations committed by their subordinates. While Defendants argue they have

8 no custodial control over the foster children in Clark County, Plaintiffs have alleged

9 sufficient facts at the pleading stage to support their claim. For example, Plaintiffs allege that

10 Defendant Wilden oversees and supervises the Division of Child and Family Services. See

11 Nev. Rev. Stat. § 232.200. Plaintiffs also argue that State Defendant Serrano has a statutory

12 duty to “[p]lan, coordinate and monitor the delivery of child welfare services provided

13 throughout the state . . . .” § 432B.180(2). Plaintiffs also allege that State Defendant

14 Hawkins (now Doe) reviews and approves all child care facilities, licenses such facilities, and

15 actively participates in monitoring licensed facilities. Unlike with Governor Gibbons,

16 Plaintiffs have cited specific statutory provisions that create direct supervisory control over

17 subordinates actively involved in the foster care system. On a Motion to Dismiss, the Court

18 “presumes that general allegations embrace those specific facts that are necessary to support

19 the claim.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). Of course State

20 Defendants may file a motion for summary judgment after discovery has been initiated if they

21 believe Plaintiffs have failed to demonstrate material issues of fact to support their claims.

22

B. Failure to State a Claim and Immunity

23

The Court analyzes these arguments in agreement with the analysis above under

24 County Defendants’ Motion to Dismiss.

25

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1

In sum, in regards to State Defendants’ motion to Dismiss, the Court dismisses all

2 claims as analyzed in County Defendants’ Motion to Dismiss. However, the Court does not

3 dismiss all remaining § 1983 claims because Plaintiffs have sufficiently alleged their claims.

4 V. Plaintiffs’ Motion for Class Certification

5

As noted above, Plaintiffs seek to represent a county-wide class consisting of all

6 children “who have been, are, or will be victims in the legal custody of Clark County

7 Department of Family Services.” (#74 at 4.) Plaintiffs claim the only realistic means for

8 redressing the injuries suffered by the thousands of children who are members of the class is

9 to prosecute this matter as a class action. According to Plaintiffs, reliance upon any one class

10 member’s claims will not effectively remedy the class-wide issues raised in this suit.

11

Plaintiffs seek to prosecute their suit as a class action pursuant to Federal Rule of

12 Civil Procedure 23. Plaintiffs bear the burden of demonstrating they meet Rule 23’s

13 requirements. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001)

14 (citation omitted). District courts have broad discretion in deciding whether or not to certify

15 a class. Id. (citing Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977). As

16 discussed below, the Court refrains at this time from ruling on Plaintiffs’ Motion until the

17 parties have had the opportunity to conduct discovery relating to the proposed class.

18

A. Rule 23 Factors

19

To obtain class certification, Plaintiffs must first satisfy the numerosity, commonality,

20 typicality, and adequacy of representation requirements of Rule 23(a). Walters v. Reno, 145

21 F.3d 1032, 1045 (9th Cir. 1998). “These requirements effectively ‘limit the class claims to

22 those fairly encompassed by the named plaintiff's claims’” by ensuring that the named

23 plaintiffs have suffered the same injury and possess the same interest as the other class

24 members. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982). Plaintiffs must then

25

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1 demonstrate that their claims fall under one of the categories listed in Rule 23(b). Because

2 Plaintiffs seek class certification under Rule 23(b)(2), they must demonstrate Defendants

3 have “acted or refused to act on grounds generally applicable to the class, thereby making

4 appropriate final injunctive relief or corresponding declaratory relief with respect to the class

5 as a whole.” Fed. R. Civ. P. 23(b)(2). “Before certifying a class, the trial court must conduct

6 a ‘rigorous analysis’ to determine whether the party seeking certification has met the

7 prerequisites of Rule 23. Zinser, 253 F.3d at 1186 (quoting Valentino v. Carter-Wallace,

8 Inc., 97 F.3d 1227, 1233 (9th Cir. 1996)).

9

1. Numerosity

10

A proposed class meets the numerosity requirement if “the class is so numerous that

11 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Plaintiffs satisfy the

12 numerosity requirement. Rule 23 does not require that class actions involve any specific

13 number of putative class members. Jordan v. County of L.A., 669 F.2d 1311, 1319 (9th Cir.

14 1982). Although Courts should consider many factors, the proposed class’ absolute size is

15 the most important factor. Id. Plaintiffs allege that the proposed class numbers at least

16 4,000. While some courts have held that the plaintiffs must present the actual number, most

17 courts have held that a reasonable estimate is sufficient. See, e.g., Zeidman v. J. Ray

18 McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). Defendants argue that

19 Plaintiffs have not cited to a reliable number. However, Plaintiffs use the very numbers that

20 Defendants have determined are in the Clark County foster system. Further, courts may rely

21 on common-sense assumptions to support findings of numerosity. Sherman v. Griepentrog,

22 775 F. Supp. 1383, 1389 (D. Nev. 1991). Further, if joinder of all class members and their

23 claims in one proceeding would be expensive, time-consuming, and logistically unfeasible,

24 then the class size is sufficiently numerous that joinder is impracticable. The putative class is

25

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1 made up of thousands of children, many of which certainly cannot afford legal representation.

2 Accordingly, Plaintiffs have sufficiently alleged the class is so numerous that joinder of all

3 members is impracticable.

4

B. Commonality and Typicality

5

The second requirement of Rule 23(a) is that “there are questions of law or fact

6 common to the class.” Fed. R. Civ. P. 23(a)(2). To satisfy the third requirement, Plaintiffs

7 must establish that the claims or defenses of the representative parties are typical of the

8 claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). The Ninth Circuit has noted that the

9 commonality and typicality inquiry under Rule 23(a), and the availability of Rule 23(b)(2)

10 class certification, frequently overlap when plaintiffs seek class certification based on the

11 existence of a common policy or practice allegedly applicable to the class as a whole.

12 Walters v. Reno, 145 F.3d 1032, 1045-47 (9th Cir. 1998).

13

To determine commonality, Plaintiffs must demonstrate that at least one alleged

14 statutory constitutional violation applies to all Plaintiffs and putative class members.

15 Plaintiffs have opted to file their Motion for Certification before any discovery has been

16 conducted and before the Court decides any dispositive motions. Courts have held that

17 generally it is better to conduct some pre-certification discovery and make rulings on early

18 dispositive motions before reaching class certification. See, e.g., Hickey v. Seattle, No. C00-

19 1672 MJP 2006 U.S. Dist. LEXIS 36400, at *10 (June 5, 2006 W.D. Wash. 2006) (citing

20 Federal Judicial Ctr., Manual for Complex Litigation 253 (4th ed. 2004)). In a case such as

21 this one, the Court must conduct a “rigorous analysis” and examine all claims as against all

22 parties to ensure that not only is there at least one common alleged statutory violation among

23 all class members, but that all the claims are typical of one another for the entire class.

24 However, as analyzed above, the Court dismisses many of Plaintiffs’ claims. Therefore,

25

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1 questions could potentially arise whether the class as a whole could demonstrate

2 commonality and typicality after the Court dismisses Plaintiffs’ claims. In addition, because

3 “motions for class certification are fact-specific, and therefore, the outcome of these motions

4 will vary based on the specific facts of the case,” a careful analysis of class certification

5 issues may not be possible where the factual record is undeveloped. Stevens v. Harper, 213

6 F.R.D. 358, 378 (E.D. Cal. Sep. 10 2003) (citing McReynolds v. Sodexho Marriott Services,

7 Inc., 208 F.R.D. 428, 442 (D.D.C. 2002)).

8

In this case, Plaintiffs controlled the timing of their certification motion by bringing

9 the motion before the parties could develop the factual record through discovery, and before

10 their claims had been refined by dispositive motions. Plaintiffs may not obtain class

11 certification based solely on allegations of system-wide violations, especially when they rely

12 on such allegations not only to establish commonality and typicality under Rule 23(a), but

13 also to demonstrate the propriety of class certification under Rule 23(b)(2). Generalized

14 policy and practice allegations do not substitute for the kind of specific legal and factual

15 showings required by Rule 23. See J.B. v Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999)

16 (refusing to “read an allegation of systematic failures as a moniker for meeting the class

17 action requirements”); Gen. Tel. Co. v. Falcon, 457 U.S. 147, 158 (1982) (stating that a

18 general allegation that the defendant has a practice of harmful conduct is insufficient under

19 Rule 23).

20

In addition to their “systematic” theory of commonality, Plaintiffs allege that all

21 putative class members suffer, or will suffer, specific violations of the Medicaid Act, the

22 Adoption Assistance Act, and the Child Abuse Act. However, as discussed above, Plaintiffs

23 may not bring a private cause of action under all the statutory provisions cited. Thus, the

24 Court chooses to first decide the pending dispositive motions and then conduct the necessary

25

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1 “rigorous analysis” to determine if the remaining allegations provide commonality and

2 typicality. After deciding the pending dispositive motions, it is very possible that

3 commonality and typicality may no longer exist (assuming it does at this moment). Therefore,

4 the Court defers ruling on class certification until the record is further developed and the

5 parties have an opportunity to conduct discovery specific to the proposed class. Valentino v.

6 Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir. 1996); Stevens v. Harper, 213 F.R.D. 358,

7 378 (E.D. Cal. Sep. 10 2003) (citing McReynolds v. Sodexho Marriott Services, Inc., 208

8 F.R.D. 428, 442 (D.D.C. 2002)). Accordingly, the Court defers ruling on Plaintiffs’ Motion

9 at this time.

10

CONCLUSION

11

Pursuant to the above analysis, the Court rules on the pending motions as follows:

12 As to all Defendants’ Motions to Dismiss, the Court DENIES without prejudice all Motions

13 as they relate to mootness and DENIES with prejudice all Motions as they relate to standing.

14

First, as to County Defendants’ Motion to Dismiss, the Court GRANTS Defendants’

15 request to dismiss Defendant DFS from this action and DENIES Defendants’ request to

16 dismiss the individually-named County Commissioners as analyzed above. The Court further

17 GRANTS Defendants’ Motion and dismisses the following claims in accordance with the

18 above analysis: (1) Plaintiffs’ claims under the Federal Adoption Assistance Act under 42

19 U.S.C. § 671(a)(10), 42 U.S.C. § 671(a)(22), 42 U.S.C. §§ 622(b)(10)(B)(ii) and 675(5)(A),

20 and Plaintiffs’ “All-Other-Rights claim”; (2) all Plaintiffs’ claims under the Medicaid Act;

21 (3) Plaintiffs’ substantive due process claims under the U.S. Constitution for any Plaintiffs

22 voluntarily in state custody; (4) Plaintiffs substantive due process claims under the U.S.

23 Constitution as to all Plaintiffs based on a right not to be retained in custody longer than is

24 necessary or to be placed in the least restrictive placement based on the foster child’s needs;

25

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1 (5) Plaintiffs’ claim for state-created danger; and (6) counts seven through nine inasmuch as

2 they allege liability for the manner in which Defendants carried out the alleged duties

3 underlying the state claims. The Court HEREBY DENIES County Defendants Motion to

4 Dismiss with regards to Plaintiffs claims under the Federal Adoption Assistance Act under 42

5 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(B)–the Right to Timely Written Case plans, and 42

6 U.S.C. §§ 675(5)(D) and 622(b)(10)(B)(ii)–the Right to Health and Educational Records

7 Reviewed, and 42 U.S.C. § 675(5)(G)–the Right of Foster Parents or Preadoptive Parents to

8 Notice of Hearings. The Court further DENIES Defendants’ Motion as it relates to (1)

9 Plaintiffs’ claim under the Child Abuse Prevention and Treatment Act pursuant to 42 U.S.C.

10 § 5106a(b)(2)(A)(xiii), (2) Plaintiffs’ substantive and procedural due process claims as

11 analyzed above, (3) Plaintiffs’ tenth cause of action, without prejudice to the filing of a

12 motion for summary judgment, and (4) counts seven through nine inasmuch as they relate to

13 allegations that Defendants failed to even initiate (not the manner in which the Defendants

14 performed) the statutory duties as discussed in the Order above. Further, the Court defers

15 ruling on Defendants’ abstention argument pursuant to Younger.

16

As to Governor Gibbons’s Motion to Dismiss, the Court GRANTS Governor

17 Gibbons’s Motion to Dismiss and dismisses the Governor from this action for the reasons

18 stated above in this Order.

19

As to the State Defendants, the Court GRANTS IN PART and DENIES IN PART

20 State Defendants’ Motion to Dismiss as discussed above.

21

DATED: May 9, 2007.

22

23

ROBERT C. JONES

UNITED STATES DISTRICT JUDGE

24

25

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 Case 2:06-cv-01068-RCJ-RJJ Document 142 Filed 06/14/07 Page 1 of 73

1 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
2 GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766
3 WOLFENZON SCHULMAN 4530 South Eastern Avenue, Suite 9
4 Las Vegas, NV 89119 Telephone: (702) 836-3138
5 Facsimile: (702) 836-3139

6 WILLIAM GRIMM, ESQ. (admitted pro hac vice) LEECIA WELCH, ESQ. (admitted pro hac vice)
7 BRYN MARTYNA, ESQ. (admitted pro hac vice) NATIONAL CENTER FOR YOUTH LAW
8 405 – 14th Street, 15th Floor Oakland, CA 94612
9 Telephone: (510) 835-8098 Facsimile: (510) 835-8099
10 KATINA ANCAR, ESQ. (admitted pro hac vice)
11 SONYA SANCHEZ, ESQ. (admitted pro hac vice) FARELLA BRAUN & MARTEL LLP
12 235 Montgomery Street, 17th Floor San Francisco, CA 94104
13 Telephone: (415) 954-4400 Facsimile: (415) 954-4480
14 Co-attorneys for Plaintiffs
15 CLARK K., et al.

16 UNITED STATES DISTRICT COURT

17 DISTRICT OF NEVADA

18

19

CLARK K.1, by his next friend Sherry Anderson; JALEN, SIA, ROSHAUN,

20

CALEB, and KING A., by their next friend Tarrah Logan; TONI, SUMMER, and

21

FRANK B., by their next friend Marilyn Paikai; and DONNA C., by her next friend

22 Jacquelyn Romero,

CASE NO.: 2:06-cv-01068-RCJ-RJJ JUDGE: Hon. Robert C. Jones
SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

23

Plaintiffs,

24

vs.

25 MICHAEL WILLDEN, Director of the

26
1 Plaintiffs are proceeding under fictitious names and satisfy the requirements of Rule 10(a) of the Federal Rules of
27 Civil Procedure. Pseudonym litigation should be permitted in this case because plaintiffs meet the following
requirements laid out in Rule 10(a): plaintiffs are children; they are challenging governmental activity; and pressing
28 the lawsuit using their real identities would compel plaintiffs to reveal highly intimate information.

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1 Nevada Department of Health and Human Services; FERNANDO SERRANO,
2 Administrator of the Nevada Division of Child and Family Services; JOHN DOE,
3 Bureau Chief of the Bureau of Services for Child Care of the Division of Child and
4 Family Services; VIRGINIA VALENTINE, Clark County Manager;
5 CLARK COUNTY; TOM MORTON, Director of Clark County Department of
6 Family Services; LOUIS PALMA, Manager of Shelter Care for the Clark
7 County Department of Family Services; BRUCE L. WOODBURY, TOM
8 COLLINS, CHIP MAXFIELD, YVONNE ATKINSON GATES, MYRNA
9 WILLIAMS, LYNNETTE BOGGS MCDONALD, and RORY REID, Clark
10 County Commissioners

11

Defendants.

12

13

14

SECOND COMPLAINT (CLASS ACTION ALLEGED)2

15

I.

16

JURISDICTION AND VENUE

17 1. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343,

18 and 1367. Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C.

19 §§ 1343, 2201, 2202, and by Fed. R. Civ. P. 57 and 65.

20 2. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the

21 events or omissions giving rise to the claims in this case arise in this district.

22

II.

23

THE PARTIES

24 3. Plaintiff Clark K. is a seventeen-year-old boy who has been in the legal custody of

25 Clark County Department of Family Services (“Clark County DFS”) since July 2003. He

26

27
2 Plaintiffs submit their Second Amended Complaint in accordance with this Court’s May 14, 2007 Order, which
28 granted plaintiffs leave to amend the second and sixth causes of action. May 14, 2007 Order at 24 & 28.

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1 currently resides in Clark County, Nevada in the home of his grandparents who have been

2 licensed foster parents for Clark County. Clark appears in this action by his next friend, Sherry

3 Anderson who is his paternal grandmother.

4

4. Plaintiffs Jalen A., a nine-year-old boy; Sia A., an eight-year-old girl; Roshaun A.,

5 a six-year-old boy; Caleb A., a five-year-old boy; and King A., a two-year-old boy, are all

6 siblings. They have been in the legal custody of Clark County DFS since December 2004. They

7 currently reside in a foster home in Clark County, Nevada. Jalen, Sia, Roshaun, Caleb, and King

8 appear in this action by their paternal aunt, Tarrah Logan, who is acting as their next friend. The

9 children lived with Tarrah at various points in their lives, sometimes for as long as nine months,

10 prior to their placement in foster care in December 2004. When they were taken into foster care,

11 she visited them regularly. She is currently the legal guardian of the children’s oldest and

12 youngest siblings.

13

5. Plaintiffs Toni B., a five-year-old girl; Summer B., an eight-year-old girl; and

14 Frank B., a six-year-old boy, are siblings. They have been in the legal custody of Clark County

15 DFS since October 3, 2002. They currently reside in a foster home located in Clark County,

16 Nevada. Toni, Summer, and Frank appear in this action by their next friend, Marilyn Paikai.

17 Mrs. Paikai has been a shelter/foster parent for Clark County since October 2001. She was the

18 foster parent for Toni for more than two years, and has provided care for and is familiar with

19 Toni’s siblings, Summer and Frank.

20

6. Plaintiff Donna C. is a six-year-old girl who has been in the legal custody of Clark

21 County DFS since December 2004. She currently resides in a foster home in Clark County,

22 Nevada. Donna appears in this action by her next friend, Jacqueline Romero. Mrs. Romero

23 previously cared for Donna as a Clark County foster parent.

24

7. Defendant Michael Willden is the Director of Nevada Department of Health and

25 Human Services (“Nevada DHHS”), and is sued in his official capacity. Nevada DHHS is the

26 “sole agency responsible for administering the provisions of law relating to its respective

27 divisions”, which includes Nevada Division of Children and Family Services (“State DCFS”).

28 Nev. Rev. Stat. Ann. § 232.300. Nevada DHHS is also the single state agency responsible for

- 3 -

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1 administering Nevada’s Medicaid program. Nev. Rev. Stat. Ann. § 422.270. The Director of

2 Nevada DHHS is responsible for carrying out the administration of State DCFS, as well as the

3 other divisions of the Department. Nev. Rev. Stat. Ann. § 232.320. He is also responsible for

4 appointing divisional directors, including the Administrator of State DCFS, which has

5 responsibility for ensuring the provision of child welfare services throughout the state. Nev. Rev.

6 Stat. Ann. § 232.320. His business address is 505 East King Street, Room 600 Carson City, NV

7 89701-3708.

8

8. Defendant Fernando Serrano is the Administrator of State DCFS, and is sued in his

9 official capacity. He is responsible for the administration and oversight of all functions of State

10 DCFS. State DCFS administers all federal funds granted to the State for child welfare services; it

11 must adopt regulations establishing uniform standards for child welfare services provided by the

12 counties and is charged with monitoring the delivery of all child welfare services by Clark and

13 Washoe Counties. His business address is 711 East 5th Street, Carson City, NV 89701.

14

9. Defendant John Doe is the Bureau Chief of the Bureau of Services for Child Care

15 (“the Bureau”) of State DCFS, and is sued in his official capacity.3 The Bureau has the

16 responsibility to “ensure that every person operating a [child care] facility is licensed.” Nev.

17 Admin. Code § 432A.170(1). Various statutes and regulations address the role of the Bureau in

18 making sure that child care facilities and services are “safe and responsive” as set forth in Nev.

19 Rev. Stat. Ann. § 432A.010. See Nev. Rev. Stat. Ann. §§ 432A.040, 432A.070, 432A.131,

20 432A.210; Nev. Admin. Code §§ 432A.170, 432A.180. The Bureau Chief is the administrator in

21 charge of ensuring the proper and efficient performance of the functions of the Bureau. Nev.

22 Rev. Stat. Ann. §432A.070. The business address for the Bureau Chief is 400 W. King St., Suite

23 230, Carson City, Nevada 89703.

24

10. Defendants Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson

25 Gates, Myrna Williams, Lynette Boggs McDonald, and Rory Reid are the seven members of the

26 Clark County Board of County Commissioners. The Board of County Commissioners is

27
3 Plaintiffs were notified by State Defendants’ counsel that the former Bureau Chief, Paula Hawkins, resigned shortly
28 before Plaintiffs’ Complaint was filed. Upon information and belief, the position currently remains unfilled.

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1 responsible for running the County government, including hiring a County Manager who is

2 responsible for the day-to-day administrative operations of the County government. Their

3 business address is 500 Grand Central Parkway, Las Vegas, Nevada 89106.

4

11. Defendant Clark County is subject to the jurisdiction of this court. With the

5 passage of Assembly Bill 1 in 2001, for counties with a population over 100,000, responsibility

6 for the funding and provision of child welfare and child protective services in that county was

7 transferred from State DCFS to the county agency. Clark County has a population of over

8 100,000, and is responsible for providing funding in an amount set by the County for the

9 provision of child welfare services. Clark County has created a political department, Clark

10 County DFS, to provide and administer child welfare services in the County.

11

12. Defendant Virginia Valentine is the Clark County Manager, and is sued in her

12 official capacity. She is responsible for managing the County’s $5 billion budget and providing

13 administrative oversight for all County departments, including Clark County DFS. Her business

14 address is 500 S. Grand Central Parkway, Las Vegas, NV 89155.

15

13. Defendant Tom Morton is the Director of Clark County DFS, and is sued in his

16 official capacity. He is the executive officer of Clark County DFS, and is responsible for

17 administering child welfare services in Clark County and for ensuring the safety and well-being

18 of children in or at risk of entering the child welfare system, pursuant to Nev. Rev. Stat. Ann.

19 § 432B. His business address is 701 N. Pecos Rd., Bldg. K, Las Vegas, Nevada 89101.

20

14. Defendant Louis Palma is the Manager of Shelter Care for Clark County DFS, and

21 is sued in his official capacity. He is responsible for oversight of all shelter care facilities and

22 programs in Clark County, which includes the day-to-day operations of Child Haven. His

23 business address is 701 N. Pecos Rd., Las Vegas, Nevada 89101.

24

III.

25

INTRODUCTION

26

15. This civil rights class action lawsuit is brought by ten children on behalf of all

27 abused and neglected children who are in, or at risk of entering, the Clark County foster care

28 system. Plaintiffs seek declaratory and injunctive relief to compel Nevada and Clark County

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1 officials to meet their legal duties under federal and state law to protect and care for abused and

2 neglected children.

3

16. During 2004, there were 8,979 investigations of child abuse or neglect reports in

4 Clark County. During the same year, 4,548 children entered foster care. There are currently over

5 3,600 children in the legal custody of Clark County placed in foster family homes, group homes,

6 unlicensed and/or unpaid relative homes, and other settings.

7

17. Until 2004, Nevada operated a bifurcated child welfare system in which the state’s

8 two counties with populations of over 100,000 – Clark and Washoe Counties – were responsible

9 for providing child protective services, while the State bore responsibility for providing foster

10 care services. As a result of AB 1, passed by the Nevada State Legislature in 2001, responsibility

11 for both child protective services and foster care were vested with Clark and Washoe Counties.

12 The State retained responsibility for supervision and oversight of Clark and Washoe Counties’

13 programs to ensure, among other things, compliance with federal and state laws, regulations, and

14 standards. The transfer of foster care staff and services from the State to Clark County was

15 completed in October 2004.

16

18. Clark County’s child welfare system is in crisis. Virtually every aspect of the

17 County’s child protective services and foster care system is failing the children and youth it is

18 charged with protecting. The County’s child welfare system denies children their rights under the

19 Federal and State Constitutions, laws, regulations, policies, and accepted professional standards.

20

19. The County and State’s failures have resulted in harm to an untold number of

21 children. A recent state report indicates that within the last four years at least 79 children have

22 died from abuse or neglect. These victims of fatal injuries or neglect include children in foster

23 care and children left at home following a substantiated report of abuse. Many of their deaths

24 were preventable.

25

20. Within the past two and a half years, one study after another has documented Clark

26 County’s failure to protect the health, safety, and well-being of child abuse victims and children

27 in foster care. Defendants have had full knowledge of these studies, and have nonetheless failed

28

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1 to take adequate steps to address the long-standing problems identified in them. These studies

2 include:

3

•

A December 2003 Statewide Assessment of child welfare services conducted as

4

part of the preparation for the February 2004 federal Child and Family Services

5

Review (“CFSR”);

6

•

A February 2004 federal CFSR of Nevada’s child welfare system that included an

7

audit of Clark County’s system (“2004 Federal Review”);

8

•

An April 2004 Audit of Child Haven and the Clark County Shelter Home Program

9

conducted by the Audit Department of Clark County;

10

•

An April 2005 Report to the Clark County Commissioners on the Status of Child

11

Welfare Services;

12

•

A June 2005 report of a review of child abuse fatalities in Clark County conducted

13

by the Child Welfare Institute of which Defendant Morton was the former director;

14

•

An October 2005 case review of Clark County child abuse and foster care cases

15

conducted by State DCFS (“2005 County Case Review”); and

16

•

An April 2006 Report of the Findings and Recommendations: Child Deaths 2001-

17

2004 describing the results of an independent child death review panel

18

investigation of deaths related to child abuse or neglect in Clark County (“2006

19

Child Fatality Report”).

20

21. During July 2006, representatives of the Administration for Children and Families

21 of the United States Department of Health and Human Services (“Federal DHHS”) conducted a

22 site visit to reassess Clark County’s child welfare program. Federal officials concluded that the

23 situation for children and families served by Clark County’s child welfare system “has worsened”

24 since officials’ earlier on-site visit in February 2004. Some of the specific deficiencies reported

25 by federal officials include:

26

•

The State’s acquiescence in Clark County’s continued use of an unlicensed

27

congregate care facility – Child Haven;

28

•

Consistent overcrowding at Child Haven;

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1

•

Unnecessary removal of children from their homes due to Clark County’s failure

2

to provide an adequate array of services to prevent placement;

3

•

Frequent changes in placement of children in foster care;

4

•

Inadequate assessments of the safety of suspected victims of child abuse and

5

neglect;

6

•

Inadequate training of staff and insufficient recruitment of foster parents;

7

•

Unanswered or lengthy delays in answering calls to the Child Abuse Hotline;

8

•

The use of an invalid, ineffective risk assessment tool;

9

•

The failure to use data to provide effective oversight and supervision; and

10

•

The failure to provide a guardian ad litem for every child in foster care.

11

22. In a letter to Nevada child welfare officials on August 11, 2006, Sharon M. Fujii,

12 the Regional Administrator for the Administration for Children and Families of Federal DHHS,

13 informed Nevada that “the manner in which the continuum of child welfare services is managed

14 in Clark County should be a grave concern to the State.” August 11, 2006 Letter from Sharon M.

15 Fujii to Defendant Willden. She notified state officials that the current Program Improvement

16 Plan between the State and federal officials “is no longer adequate to address the serious

17 deficiencies in the State’s child welfare program, most specifically Clark County which accounts

18 for the majority of the State’s child welfare population.” Id.

19

23. Defendants Willden and Serrano subsequently wrote a letter to Defendant Morton

20 warning him that:

21

we continue to receive information indicating serious deficiencies

with the [child welfare] system …; the existing level of effort to

22

correct system deficiencies is not adequate; [and] that despite lists

of corrective action plans … still we have major failures. 23

24 August 30, 2006 Letter from Defendants Willden and Serrano to Defendant Morton.

25

24. For years, Clark County has evaded scrutiny of its child protective services and

26 foster care programs. It has hidden behind a veil of confidentiality meant to protect children and

27 families, but which the County has used to shield itself from oversight and criticism.

28

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1

25. Among other things, it has failed and continues to fail to comply with federal law

2 requiring that it provide the public with findings and information concerning child abuse victims

3 who have died or suffered near fatalities. The little information available to the public about the

4 child welfare system is incomplete and out of date. The most recent data on child abuse and

5 foster care is from 2004.

6

26. Nevada and its counties receive millions of dollars in federal funds to meet the

7 needs of children in the child welfare system and are therefore required to comply with federal

8 mandates, including those set forth in the Adoption and Safe Families Act of 1997, the Child

9 Abuse Prevention and Treatment Act, and the Early Periodic Screening, Diagnosis and Treatment

10 provisions of Medicaid law. In state fiscal year 2004, Nevada spent over $79 million on child

11 welfare services, of which $44 million was federal funds.

12

27. This lawsuit also challenges the placement of children, and the conditions in which

13 they are forced to live, at Child Haven – an unlicensed child care institution operated by Clark

14 County. For years, Child Haven has not been a safe “haven” for the children and youth placed

15 there. Upon entering foster care in Clark County, children are placed at Child Haven and remain

16 there for as little as a few hours or as long as a year or more. For years, unlike other facilities

17 providing care to foster children in Nevada, Child Haven has been allowed to operate without

18 meeting the minimum licensing standards required by state law. The Child Haven facility houses

19 infants and young children alongside teenagers, some of whom have significant behavioral

20 problems and pose a risk of serious harm to the younger, more vulnerable children in the facility.

21 Child Haven is frequently extremely overcrowded resulting in children sleeping on the floors and

22 in gymnasiums, separated from their siblings and in conditions that have contributed to the spread

23 of infectious disease at Child Haven. Children’s needs, particularly their need for mental health

24 care, are not being met.

25

28. High caseloads and inadequate training of Clark County child protective services

26 and foster care workers contribute to the crisis within the system. Many workers’ caseloads

27 exceed those established by national standards. Workers are ill prepared and supervised to

28

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1 perform a job in which failure to abide by law, regulations, and professional standards, and failure

2 to exercise professional judgment result in serious injury to or death of a child.

3

29. Investigations of child abuse reports – both those involving children in foster care

4 and those left at home – routinely fail to comply with state law and professional standards. As a

5 direct result, children who could and should have been protected suffer unnecessarily.

6

30. Clark County DFS has failed to recruit and retain a sufficient number of foster

7 homes, resulting in harm to children whose needs are mismatched with the foster parents’

8 experience and abilities. Placements are often made based solely upon whether or not there is an

9 available bed in the foster home. As a result, placements often break down, and children are

10 shuttled from one house, group home, and institution to another. Caseworkers fail to visit

11 children in these placements, and, as a result, are unaware of the quality of care the child is

12 receiving, the harm befalling the child, the risk to which the child is exposed, and the lack of

13 needed services.

14

31. Children in foster homes recruited, licensed, and supervised by Defendants are

15 subjected to abuse and neglect in those homes. When there are complaints about foster homes,

16 Clark County DFS often turns a deaf ear, allowing children to remain in dangerous homes that

17 either should not have been licensed in the first place or should have had their license revoked.

18 At the same time, Clark County DFS retaliates against foster parents who advocate for services

19 for a child placed in their homes or who disagree with the department’s plan for the child, driving

20 out the very foster parents the system needs. Clark County DFS also fails to provide foster

21 parents with even the most basic background information about children they place in their homes

22 and the supportive services needed.

23

32. Children entering foster care have many special needs – for medical and mental

24 health care as well as educational and special educational services. Clark County DFS fails to act

25 as a responsible parent to children in its custody. As a result, foster children’s needs are not met

26 and services are delayed or not provided at all, causing substantial harm to these children.

27

33. Children in foster care have no voice in the court proceedings where decisions are

28 made that affect their basic safety, their temporary and permanent placement, and their general

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1 well-being. Even though state and federal law mandate appointment of a representative to look

2 out for the interests of the child in all cases, Clark County falls woefully short of meeting this

3 requirement.

4

34. If Defendants’ unconstitutional and unlawful actions and omissions are not halted,

5 many more children will be harmed. Another generation of children entrusted to the County and

6 State will suffer untold misery, some will die, and others will leave the foster care system ill

7 prepared to live healthy, independent, and productive lives.

8

IV.

9

CLASS ACTION ALLEGATIONS

10

35. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(a) and

11 23(b)(2). Plaintiffs represent a countywide class of children who have been, are, or will be

12 victims of child abuse and neglect and have been, are, or will be in the legal custody of Clark

13 County DFS.

14

36. The requirements of Fed. R. Civ. P. 23 are met in that the class is so numerous that

15 joinder of all members is impracticable. Furthermore, the class is fluid in that new members are

16 regularly created. There are over 3,600 children in foster care in Clark County. Throughout the

17 year, many more children enter care than is reflected in any single day census. During 2004, for

18 example, a total of 4,548 were removed from their homes and placed in foster care.

19

37. All the members share common issues of law and fact. All of the plaintiffs and

20 class members are in need of adequate child welfare services, must rely on Clark County and

21 State DCFS Defendants for those services, and are harmed by Defendants’ systemic failure to

22 fulfill their legal obligations to provide safe care, adequate treatment, and necessary services.

23 Questions of law and fact common to the class of plaintiffs predominate over any individual

24 issues of law and fact.

25

38. Specific common questions of fact include, but are not limited to,

26

(a) Whether class members are placed at an overcrowded, unlicensed

27

congregate facility that fails to meet their needs;

28

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1

2

3

4

5

6

7

8

9

10

11

12

13

39.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

40.

28 represent.

(b) Whether class members are left in dangerous situations due to Defendants’ failure to conduct timely investigations of reports of abuse and neglect;
(c) Whether Defendants fail to recruit and support an adequate array of foster placements to meet the needs of class members;
(d) Whether class members are placed in homes and other facilities in which they have been harmed or are at risk of harm;
(e) Whether class members are deprived of needed medical, mental health, and dental care services;
(f) Whether class members are provided with appropriate educational services; and
(g) Whether class members are represented by a guardian ad litem in abuse and neglect proceedings in the Clark County District Court.
Specific common questions of law include, but are not limited to, (a) Whether upon entry into foster care class members’ placement in Child
Haven, an unlicensed child care facility, violates Nevada and federal laws; (b) Whether the failure to conduct timely investigations of complaints of child
abuse or neglect involving class members violates their rights under Nevada and federal law; (c) Whether the failure to properly screen, license, support, and supervise foster homes in which class members are placed is a denial of their rights under Nevada and federal law; (d) Whether the failure to provide class members with timely necessary medical and mental health screenings, assessments, and treatment denies their rights under Nevada and federal law; and (e) Whether the failure to appoint a guardian ad litem for class members is a denial of their rights under Nevada and federal law. The claims of the named plaintiffs are typical of the claims of the class they

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1

41. The named plaintiffs will fairly and adequately protect the interests of the class

2 they represent. Plaintiffs know of no conflict of interest among the class members.

3

42. Each named plaintiff appears by a next friend, and each next friend is sufficiently

4 familiar with the facts and circumstances surrounding the child’s situation to represent the child’s

5 interests in this litigation fairly and adequately.

6

43. Plaintiffs are represented by experienced counsel who will adequately represent

7 the interests of the class. Plaintiffs are represented by the National Center for Youth Law, a

8 privately funded, non-profit organization with extensive national experience in complex class

9 action litigation involving child welfare systems. They are also represented by Las Vegas

10 attorneys Bruno Wolfenzon and Greg Schulman with Wolfenzon Schulman and Katina Ancar and

11 Sonya Sanchez with Farella Braun & Martell LLP. Plaintiffs’ counsel have the resources,

12 expertise, and experience to prosecute this action.

13

44. Defendants have acted and refused to act and continue to do so on grounds

14 generally applicable to the class that plaintiffs represent, thereby rendering appropriate injunctive

15 and declaratory relief for the class as a whole.

16 17 18 A. 19 20

V. FEDERAL AND STATE STATUTORY BACKGROUND Nevada statutory framework 1. Child abuse/neglect investigations 45. In Nevada counties with populations of 100,000 or more, the responsibility for

21 providing protective services for children rests with the county. Nev. Rev. Stat. Ann.

22 § 432B.325. In Clark County, this responsibility rests with Clark County DFS.

23

46. Clark County DFS is responsible for receiving, screening, and investigating all

24 reports of suspected child abuse and neglect.

25

47. Clark County DFS must immediately initiate an investigation if the report

26 indicates that the child is five years of age or younger; if there is a high risk of serious harm to the

27 child; or if the child is living in a household in which another child has died, the child is seriously

28 injured, or has visible signs of physical abuse. Nev. Rev. Stat. Ann. § 432B.260(2). In all other

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1 situations, the department must conduct an evaluation within three days of receiving the report to

2 determine whether an investigation is warranted. Nev. Rev. Stat. Ann. § 432B.260(3). If the

3 department determines that an investigation is warranted, it must initiate an investigation within

4 three days of completing the evaluation. Nev. Rev. Stat. Ann. § 432B.260(4).

5

48. All child protective services investigations must include certain actions. In all

6 cases there must be a prompt face-to-face meeting with the child. Nev. Admin. Code § 432B.155.

7 If there are other children in the household, the caseworker must also assess the protective needs

8 of each of those children even though they may not be the subject of the report. Nev. Admin.

9 Code § 432B.150(3)(c).

10

49. The child protective service investigation must be completed within 30 days of

11 receipt of the report, at which time Clark County DFS must determine if the report is

12 substantiated or unsubstantiated. Nev. Admin. Code § 432B.170 (a). Upon completion of the

13 investigation, the department may file a petition with the juvenile court, provide services to the

14 family to ensure the safety of the child or children, or close the case.

15

2. Protective custody and filing of petition

16

50. While conducting or upon completion of an investigation, Clark County DFS may

17 decide to remove the child from the home and place the child in protective custody. Nev. Rev.

18 Stat. Ann. § 432B.390.

19

51. If the child is placed in protective custody, a juvenile court hearing must take place

20 within 72 hours to determine whether the child should remain in protective custody or be returned

21 home pending further action by the Court. Nev. Rev. Stat. Ann. § 432B.470(a).

22

52. Within ten days of the hearing on protective custody, Clark County DFS must file

23 a petition to initiate further child welfare proceedings or recommend against further court action.

24 Nev. Rev. Stat. Ann. § 432B.490(1)(a).

25

53. If the child is released from protective custody, Clark County DFS must provide a

26 range of services to help preserve the family and prevent further placement outside the home,

27 including, but not limited to: social work and counseling, psychological and medical services,

28

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1 parental education, and services for treatment of substance abuse. Nev. Admin. Code

2 § 432B.240.

3

3. Adjudicatory and dispositional hearings

4

54. An adjudicatory hearing must be held within 30 days of filing the petition. Nev.

5 Rev. Stat. Ann. § 432B.530(1)-(2). If the court finds that the allegations in the petition are

6 unsupported, the petition is dismissed and the child ordered released if he is in protective custody.

7 Nev. Rev. Stat. Ann. § 432B.530(5). If the court determines that the allegations in the petition are

8 true and that the child is in need of protection, Clark County DFS is required to submit a report

9 and recommendations for the disposition of the case. If the department recommends that the

10 child be removed from the custody of her parents, it must submit a plan for ensuring that the child

11 will receive safe, proper, and appropriate care in the placement, and describe the services that will

12 be provided to the child and her parents to facilitate the reunification of the family. Nev. Rev.

13 Stat. Ann. § 432B.540(2).

14

55. Upon receipt of the report and recommendation of Clark County DFS, the court

15 may order the child to remain in the custody of his parents with or without supervision by Clark

16 County DFS, place the child in the custody of a relative, or place him in the custody of the

17 department. Nev. Rev. Stat. Ann. § 432B.550.

18

4. Appointment of guardian ad litem

19

56. Upon the filing of a petition, the court must appoint a guardian ad litem for the

20 child. Nev. Rev. Stat. Ann. § 432B.500. The guardian ad litem must “represent and protect the

21 best interests of the child until excused by the court” and “inform the court of the desires of the

22 child, but exercise his independent judgment regarding the best interests of the child.” Nev. Rev.

23 Stat. Ann. § 432B.500(3)(a)&(g). Among other responsibilities, the guardian ad litem is required

24 to research the facts of the child’s case and ensure that the court receives an independent,

25 objective account of the facts; meet with the child at the child’s placement as often as necessary

26 to determine whether the child is safe and to ascertain that the placement is in the child’s best

27 interests; participate in the development and negotiation of any plans or orders regarding the

28 child; monitor whether the plans are being implemented and appropriate services are being

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1 provided; appear at all proceedings regarding the child; and present recommendations to the

2 court. Nev. Rev. Stat. Ann. § 432B.500(3).

3

5. Placement in and supervision of foster family homes

4

57. State DCFS is required to establish and ensure the counties’ compliance with

5 minimum standards for foster family homes, group homes, and other child care facilities in which

6 foster children are placed. Nev. Rev. Stat. Ann. § 424.020. In carrying out this obligation, State

7 DCFS is required to promulgate regulations establishing uniform standards for the licensing of

8 foster family homes, group homes, and child care institutions. Nev. Rev. Stat. Ann.

9 § 432B.190(1).

10

58. Clark County DFS is responsible for licensing foster and group homes in which it

11 places foster children in its custody and ensuring that those homes meet state standards. Nev.

12 Rev. Stat. Ann. § 424.030; Nev. Rev. Stat. Ann. § 424.016(1). Licensing is required in order to

13 protect children from abuse or neglect and ensure that the foster parent can properly care for

14 children. Nev. Rev. Stat. Ann. §§ 424.016, 424.030; Nev. Admin. Code § 424.100.

15

59. Upon being granted protective or legal custody of a child in foster care, Clark

16 County DFS selects the foster home or other setting in which the child is placed.

17

60. No family foster home can be licensed to care for more than six children,

18 excluding any children residing in the home who are related to the foster parent or who are not

19 foster children. The number of children for whom a home may be licensed must factor in the

20 foster parents’ own children under the age of 16, as well as the characteristics of the children in

21 need of placement. No more than two children under the age of eighteen months or four children

22 under the age of five may be placed in the same home. Nev. Admin. Code § 424.160.

23

61. Before placing a child in a foster home, Clark County DFS must provide the foster

24 parent with information necessary to ensure the health and safety of the child and other persons in

25 the foster home. That information must include the medical history and behavior of the child.

26 Nev. Rev. Stat. Ann. § 424.038.

27

28

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1

62. Clark County DFS must supervise and monitor the child’s care in a foster home.

2 At any time during the child’s placement that it appears that a child lacks proper care and

3 management, the child must be removed from the home. Nev. Rev. Stat. Ann. § 424.060.

4

63. Clark County caseworkers must have at least monthly face-to face contact with

5 children in foster care. At least bi-monthly, caseworkers must visit children in their foster care

6 placements. Nev. Admin. Code § 432B.405(a)&(b).

7

64. Clark County DFS must also provide support and services to the foster parent

8 including responding in a timely manner to requests for assistance and establishing a program of

9 respite care for foster parents to temporarily relieve them of the stresses and responsibilities of

10 caring for children. Nev. Rev. Stat. Ann. § 424.077; Nev. Admin. Code § 424.805.

11

65. Clark County DFS must complete an assessment for each child in DFS custody at

12 least semiannually. The assessment must include the current level of functioning of the family,

13 the current risk to the child if he were returned to the custody of his parent, and the services

14 required to meet the child’s needs as set out in his case plan. Nev. Admin. Code § 432B.420(1).

15 These assessments must be based, in part, on direct interviews with family members of the child,

16 personal observations of interaction at home and in the community between the child and family

17 members, case histories, and medical records. Nev. Admin. Code § 432B.420(2).

18

6. Placement in and supervision of child care institutions

19 66. Any child care institution used for the placement of foster children must be
20 licensed by either the city, county, or state, depending on its location. Nev. Rev. Stat. Ann.
21 §§ 432A.131, 432A.220. Child care institutions located within Las Vegas must be licensed by the
22 city. Nev. Rev. Stat. Ann. § 432A.131. It is a misdemeanor offense to operate a child care
23 institution without a license. Nev. Rev. Stat. Ann. § 432A.220.
24 67. Although Las Vegas has the authority to grant licenses to child care institutions,
25 such as Child Haven, that are located within its city limits, the Bureau has the responsibility to
26 “ensure that every person operating a [child care] facility is licensed.” Nev. Admin. Code §
27 432A.170(1). Various statutes and regulations address the role of the Bureau in making sure that
28

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1 child care facilities and services are “safe and responsive” as set forth in Nev. Rev. Stat. Ann. §

2 432A.010. See Nev. Rev. Stat. Ann. §§ 432A.040, 432A.070, 432A.131, 432A.210; Nev. Admin.

3 Code §§ 432A.170, 432A.180. The Bureau Chief is the administrator in charge of ensuring the

4 proper and efficient performance of the functions of the Bureau. Nev. Rev. Stat. Ann. §

5 432A.070. She has a duty to ensure that no unlicensed facility is allowed to accept children for

6 placement. Nev. Admin. Code § 432A.170(1).

7

68. Among her duties, the Bureau Chief is responsible for reviewing a roster of all

8 facilities in the jurisdictions of local agencies that are currently licensed to ascertain if an

9 unlicensed facility is operating. Nev. Admin. Code § 432A.180. Upon information and belief,

10 the Bureau Chief has known for years that Child Haven operates without a license consequently

11 exposing children to harm and risk of harm.

12

7. Interstate placements of children

13

69. If a child is placed with any person who resides outside of the state, the placement

14 must follow the procedures and criteria set forth in the Interstate Compact on Placement of

15 Children (“ICPC”). Nev. Rev. Stat. Ann. § 127.330.

16

70. In adopting and enacting the ICPC, the Nevada Legislature sought to ensure that:

17 (a) each child requiring placement receives the maximum opportunity to be placed in a suitable

18 environment and with persons or institutions having appropriate qualifications and facilities to

19 provide a necessary and desirable degree and type of care; (b) the appropriate authorities in a state

20 where a child is to be placed may have full opportunity to ascertain the circumstances of the

21 proposed placement, thereby promoting full compliance with applicable requirements for the

22 protection of the child; (c) the proper authorities of the state from which the placement is made

23 may obtain the most complete information on the basis of which to evaluate a projected

24 placement before it is made; and (d) appropriate jurisdictional arrangements for the care of

25 children are promoted. Nev. Rev. Stat. Ann. § 127.330.

26

71. The ICPC requires, among other things, that a child must not be sent to the

27 receiving state until the appropriate public authorities in the receiving state notify the sending

28

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1 agency, in writing, that the proposed placement does not appear to be contrary to the interests of

2 the child.

3

8. Responsibilities of State Agencies

4

72. Nevada DHHS is the “sole agency responsible for administering the provisions of

5 law relating to its respective divisions”, which includes State DCFS. Nev. Rev. Stat. Ann.

6 § 232.300. The Director of Nevada DHHS is responsible for carrying out the administration of

7 State DCFS, preparing a master plan for the provision of human services in the state, and

8 appointing the Administrator of State DCFS. Nev. Rev. Stat. Ann. § 232.320.

9

73. Nevada DHHS is also the “single state agency” responsible for administering

10 Nevada’s Medicaid program. Nev. Rev. Stat. Ann. § 422.270. DHHS is responsible for adopting

11 all Medicaid state plans required by the federal government and to comply with those state plans.

12 Nev. Rev. Stat. Ann. § 422.271.

13

74. State DCFS has broad responsibilities to children in the plaintiff class. Among its

14 responsibilities, the Division must administer any money granted to the State by the Federal

15 Government; plan, coordinate, and monitor the delivery of child welfare services provided

16 throughout the State; and request sufficient money for the provision of child welfare services

17 throughout the State. Nev. Rev. Stat. Ann. § 432B.180. State DCFS is also required to

18 promulgate regulations “establishing reasonable and uniform standards for child welfare services”

19 provided throughout the state. Nev. Rev. Stat. Ann. § 432 B.190. The statute identifies 11

20 specific program areas in which State Defendants are required to adopt regulations. Most

21 importantly, State DCFS is required to “[e]valuate all child welfare services provided throughout

22 the State and withhold money from any agency providing child welfare services which is not

23 complying with the regulations adopted ….” Nev. Rev. Stat. Ann. § 432B.180 (8).

24

75. For the last three years, State DCFS periodically has evaluated child welfare

25 services in Clark County. Those evaluations have uncovered policies and practices that violate

26 the state and federal constitutional and statutory rights of plaintiffs.

27

76. State Defendants have the duty and responsibility to take action, including the

28 withholding of funds, to correct the violations of plaintiff class members’ state and federal

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1 constitutional and statutory rights. They have failed to fulfill those duties thereby allowing those

2 violations to continue unabated for years, increasing the number of plaintiff class members

3 harmed and exacerbating the harm suffered by plaintiff class members.

4

77. The duties of Nevada DHHS and State DCFS exceed merely documenting and

5 reviewing other’s documentation of Clark County’s failures to provide safe and proper care. In

6 their own words,

7

The Division is responsible for Children’s Mental Health (in the

two largest populated counties), Youth Corrections and Child

8

Welfare Services. The implementation and administration of Title

IV-E, Title IV-B, Subpart I (Child Welfare Services) and Subpart 2

9

(Promoting Safe and Stable Families), Child Abuse and Treatment

Act (CAPTA), and the Chafee Foster Care Independence Program

10

(CFCIP) are also the responsibility of the Division.

11 Annual Progress & Services Report (APSR) 2005-2009, at 1 (June 30, 2006) (emphasis added).

12 B. 13 14 15

Federal statutory framework
1. The Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997: Titles IV-B and IV-E of the Social Security Act. 42 U.S.C. §§ 622 et seq.; 671 et seq.
78. States that meet federally established child welfare standards in the day-to-day

16 operation of their child welfare programs are eligible for federal child welfare funding under

17 Titles IV-B and IV-E of the Social Security Act. 42 U.S.C. §§ 622 et seq.; 671 et seq. Nevada

18 has submitted a mandated State Plan describing how the State will assure compliance with federal

19 child welfare requirements under these titles, and receives federal child welfare funds. This State

20 Plan is a contract into which the State of Nevada enters for the express benefit of plaintiffs, who

21 are third party beneficiaries of the contract. Nevada may contract with public or private agencies

22 to provide direct services, but this does not discharge the State from its responsibility to ensure

23 that those agencies follow the mandates of the federal statute. 42 U.S.C. § 672 (a)(2)(B); Child

24 Welfare Policy Manual § 8.1G.

25

79. Defendants Willden and Serrano are responsible for administering any federal

26 funds for child welfare services, including Title IV-B and IV-E funds, and ensuring county

27 compliance with federal mandates. See Nev. Rev. Stat. Ann. § 432B.180(1); Nev. Rev. Stat. Ann.

28 § 232.070.

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1

80. Federal DHHS has stressed in correspondence with Defendant Willden that “the

2 manner in which the continuum of child welfare services is managed in Clark County should be a

3 grave concern to the State and should be addressed by the State in its administration and

4 supervision of the program.” August 11, 2006 letter from Sharon M. Fujii to Defendant Willden.

5

81. Defendants Willden and Serrano are also responsible for the drafting and

6 negotiation of the Program Improvement Plan (“PIP”) with federal authorities to address

7 deficiencies uncovered in the administration of their Title IV-B & E program. 45 C.F.R. §1355.

8 The PIP identifies the persons responsible for addressing deficiencies in Clark County’s child

9 welfare program. Those “responsible persons” identified in the PIP are virtually all officials or

10 employees of Nevada DHHS or State DCFS.

11

82. Defendants Clark County and Morton are directly responsible for fulfilling the

12 obligations undertaken by the State of Nevada when it entered into this contract. Moreover,

13 pursuant to AB 1, responsibility for the day-to-day implementation of both child protective

14 services and foster care was vested with Defendants Clark County, Valentine, and County

15 Commissioners Woodbury, Collins, Maxfield, Gates, Williams, McDonald, and Reid

16 (collectively “Defendant Commissioners”).

17

83. Federal child welfare mandates with which Nevada must comply include the

18 following: to place children only in settings that conform to national professional standards and

19 are subject to a uniformly applied set of standards; to provide quality services that protect foster

20 children’s safety and health; to provide each child with a written case plan containing specified

21 elements, and a case review system with specified elements; to place each child in a safe setting

22 that is the least restrictive and most family like setting; to provide updated health and education

23 records to foster parents or foster care providers at the time of placement; and to provide notice

24 and a right to be heard to foster parents and any preadoptive parent or relative providing care in

25 any proceeding concerning the child. 42 U.S.C. §§ 671(10); 671(16); 671(22); 675(1); 675(5);

26 675(5)(A); 675(5)(B); 675(5)(D); 675(5)(G); 622(b)(10)(B)(ii).

27

28

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1

2. The Child Abuse Prevention and Treatment and Adoption Reform Act

(“CAPTA”), 42 U.S.C. § 5101 et seq.

2

84. The Child Abuse Prevention and Treatment and Adoption Reform Act 3

(“CAPTA”), as codified at 42 U.S.C. § 5101 et seq., provides federal grants to states to assist 4

them in supporting their programs for abused and neglected children. To receive federal money 5

under CAPTA, each state must submit a State Plan outlining the areas of child protective services 6

the state intends to address with the funding, and it must ensure that it is complying with the 7

statutory provision. 42 U.S.C. § 5106a(b)(1)(A); 42 U.S.C. § 5106a(b)(2)(A)(ix). 8

85. Nevada has submitted a State Plan to the federal government, and receives federal 9

funding pursuant to CAPTA. This State Plan is a contract into which the State of Nevada enters 10

for the express benefit of plaintiffs, who are third party beneficiaries of the contract. 11

86. Defendants Willden and Serrano are responsible for administering any federal 12

funds for child welfare services, including CAPTA funds, and ensuring county compliance with 13

federal mandates. See Nev. Rev. Stat. § 432B.180(1); Nev. Rev. Stat. Ann. § 232.070. 14

Defendants Willden and Serrano are in charge of planning, coordinating, and monitoring the 15

delivery of child welfare services provided throughout the state, as well as evaluating all child 16

welfare services and withholding money from any agency that is not complying with pertinent 17

regulations. Nev. Rev. Stat. § 432B.180(2); Nev. Rev. Stat. § 432B.180(6). They are also 18

responsible for promulgating regulations to establish uniform standards for child welfare services 19

provided in the state. Nev. Rev. Stat. § 432B.190(1). Defendants Clark County and Morton are 20

directly responsible for fulfilling the obligations undertaken by the State of Nevada when it 21

entered into this contract. Moreover, pursuant to AB 1, Defendants Valentine and County 22

Commissioners are responsible for the implementation of the requirements in the State Plan. 23

87. CAPTA specifically requires that every abused or neglected child who is the 24

subject of a judicial proceeding must be represented by a properly trained guardian ad litem. 42 25

U.S.C. § 5106a(b)(2)(A)(xiii). The guardian ad litem may be an attorney or a court-appointed 26

special advocate, or both. Since the original enactment of this federal mandate, Congress has 27

amended the provision several times to describe explicitly and amplify the duties of the guardian 28

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1 ad litem. For example, the guardian ad litem must obtain a first-hand, clear understanding of the

2 situation and needs of the child and make recommendations to the court concerning the best

3 interests of the child. 42 U.S.C. § 5106a(b)(2)(A)(xiii).

4

3. The Medicaid Act, Early and Periodic Screening, Diagnostic and Treatment

(EPSDT) Services, 42 U.S.C. § 1396-1396v 5

6

88. Medicaid is a cooperative federal-state program that directs federal funding to

7 states to assist them in providing medical assistance to low income people under Title XIX of the

8 Social Security Act, 42 U.S.C §§ 1396-1396v. States choose whether to participate in Medicaid.

9 To receive Medicaid funds, states must adhere to the minimum federal requirements according to

10 the Social Security Act and its implementing regulations, 42 C.F.R. §§ 430 et seq. DHHS is the

11 single state agency responsible under federal law for the administration of the Medicaid program

12 in Nevada.

13

89. To participate in Medicaid, states must submit and have approved by the Secretary

14 of Health and Human Services a state plan for medical assistance. The Medicaid Act requires

15 that each state plan “provide for making medical assistance available, including at least the care

16 and services listed in paragraphs (1) through (5), (17), (21) of section 1396d(a) of this title, to all

17 individuals [listed under certain statutory provisions].” 42 U.S.C. § 1396a(a)(10)(A). Early and

18 Periodic Screening, Diagnostic and Treatment (“EPSDT”) services, for Medicaid-eligible

19 children under the age of 21, are among the mandatory categories of medical assistance. Id. at §§

20 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r). Under 42 U.S.C. § 1396d(r)(5) states

21 must cover necessary health care, diagnostic services, treatment and other measures described in

22 subsection 1396d(a) when needed to correct or ameliorate physical or mental health problems.

23

90. Under 42 U.S.C. § 1396a(a)(43)(B), states must provide or arrange for screening

24 services in all cases where they are requested and, under § 1396a(a)(43)(C), must arrange for,

25 directly or through referral to appropriate individuals, needed corrective treatment.

26

91. Nevada has submitted a State Plan under Title XIX of the Social Security Act, and

27 receives federal funding. Nevada’s State Plan is a contract into which the State of Nevada enters

28 for the express benefit of plaintiffs, who are third party beneficiaries of the contract. Nevada’s

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1 state agencies must comply with Title XIX of the Social Security Act and the requirements of the

2 State Plan. Defendant Willden is responsible for administering these federal funds, and ensuring

3 county compliance with federal mandates. See Nev. Rev. Stat. Ann. § 232.070. Defendant

4 Serrano is responsible for administering this program with respect to children in the child welfare

5 system. Nev. Rev. Stat. § 432B.180(1). Defendants Clark County and Morton are directly

6 responsible at the county level for fulfilling the obligations of federal Medicaid law. Moreover,

7 pursuant to AB 1, Defendants Valentine and County Commissioners are responsible for the

8 implementation of the requirements in the State Plan.

9

92. Under its Medicaid program, Nevada must provide EPSDT care to eligible

10 children under the age of 21. Virtually all children under the age of 21 who are in foster care are

11 eligible for Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Accordingly, Nevada is mandated to

12 provide EPSDT care to these children.

13 14 15 A. 16

VI. FACTUAL ALLEGATIONS FOR NAMED PLAINTIFFS Clark K. 93. Clark is a seventeen-year-old youth who came into the legal custody of Clark

17 County DFS in July 2003. Prior to that time, the department had received ten reports of abuse or

18 neglect involving Clark and/or his siblings.

19

94. While in DFS custody, Clark has been placed in inappropriate and dangerous

20 placements, which have been harmful to his physical, mental, and emotional well-being. He has

21 been denied adequate food, clothing and shelter; subjected to frequent changes in placement;

22 denied necessary medical and mental health care; denied an education and special education

23 services; separated from his siblings; denied other necessary services to meet his needs; and

24 denied access to any sort of representation by an attorney or guardian ad litem.

25

95. In September 1999, Clark’s mother moved from Las Vegas to Texas, and took

26 Clark with her. Clark and his mother lived with approximately ten other relatives in a two-

27 bedroom trailer. Most of their food came out of dumpsters behind grocery stores because Clark’s

28 mother spent her money on drugs. About a year later, Clark’s mother took him with her to live in

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1 Virginia. In Virginia, he was often left with strangers while his mother was off buying, dealing,

2 and taking illegal drugs. Clark missed many days of school due to his mother’s absence, neglect,

3 and instability. As a result of these absences, Clark was held back at least one grade.

4

96. In December 2001, Clark and his mother returned to Texas. Subsequently, Clark

5 contacted his grandparents in Las Vegas and pleaded with them to rescue him from the unsafe

6 and unhealthy living arrangement in Texas. His grandmother drove to Texas, and brought Clark

7 back to live with her and his grandfather in Las Vegas.

8

97. Following Clark’s arrival at their home, his grandparents contacted Clark County

9 DFS and shared information about the unsafe living environment Clark had endured in Texas. At

10 the advice of DFS, Clark’s grandparents first were appointed legal guardianship of Clark and his

11 younger brother on August 14, 2002, and later became licensed foster parents. During the entire

12 time that Clark lived with his grandparents, he attended school regularly, got good grades, and

13 was in good health. Clark’s younger brother also lived with him and his grandparents for much

14 of the time.

15

98. In July of 2003, Clark’s grandparents transitioned from being his legal guardians

16 to being his licensed foster parents, and Clark was taken into foster care. On or about July 25,

17 2003, Clark County DFS placed Clark and his younger brother in the custody of their paternal

18 grandparents. Clark did not receive notice of any hearing on this matter, nor was he represented

19 by an attorney or guardian ad litem. Although Clark’s grandparents had discussed Clark’s need

20 for a Court Appointed Special Advocate (CASA) with his caseworker, he was never provided

21 one. On or about August 26, 2003, a petition for abuse/neglect was filed on Clark and his

22 younger brother and they were found to be in need of protection and within the jurisdiction of the

23 Court pursuant to Nev. Rev. Stat. Ann. § 432B. From this point on, if not earlier, Clark was in

24 the legal custody of Clark County DFS.

25

99. On September 17, 2003, a dispositional hearing was held on Clark’s Petition for

26 Neglect. Clark’s grandparents went to the courthouse to attend the hearing, but were refused

27 entry into the courtroom. Clark’s caseworker knew that Clark’s grandparents were at the

28 courthouse and that they wished to attend the hearing and provide input, but they were denied an

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1 opportunity to express Clark’s wishes or explain their concerns for his safety should he be

2 returned to his mother in Texas. Clark’s caseworker did not notify Clark about the hearing, tell

3 him the purpose of the hearing, or ask him whether he wanted to go back to Texas. Clark was

4 given no opportunity to speak to the court or have anyone else represent his interests. Had he

5 been asked about his wishes, or allowed to speak at the hearing, he would have told the court that

6 he absolutely did not want to go back and live with his mother in Texas and would have

7 explained the reasons he was afraid to be placed with her. Nonetheless, at this hearing, the Court

8 ordered that Clark be “reunified” with his mother in Texas.

9

100. Subsequently, Clark’s caseworker told his grandparents and Clark that the court

10 had decided that he should be placed back with his mother in Texas. Clark’s grandparents were

11 strongly opposed to this decision and expressed their concerns to Clark County DFS. They sent

12 letters to DFS caseworkers and administrators describing their concerns regarding Clark’s safety

13 and health should he be returned to Texas. Clark County DFS never responded to their letters or

14 addressed their concerns.

15

101. Throughout October 2003, Clark County DFS attempted to get Clark’s

16 grandparents to disenroll him from school and take him to the airport to go to Texas. They

17 refused.

18

102. On October 21, 2003, a Clark County DFS caseworker spoke to Clark for the first

19 time about his impending placement back with his mother in Texas. The caseworker told Clark

20 that he had spoken to Clark’s mother and that she reported that she had a job, was not using

21 drugs, and could take care of him. Clark responded: “It’s horrible down there . . . I know my

22 mom . . . she can’t keep a steady job . . . she has been on drugs since I was little . . . I know what

23 it’s like down there. I don’t want to go.”

24

103. Despite Clark’s strong desire to remain with his grandparents, his articulated

25 concerns about going to live with his mother in Texas, and his history of neglect in Texas, Clark

26 County DFS nonetheless forced him to return to Texas. In late October 2003, Clark’s caseworker

27 picked Clark up at his house, drove him to the airport, walked him to security, and put him on a

28 flight to Houston, Texas. By doing so, Defendants greatly increased the danger to Clark by

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1 taking the affirmative step of removing him from a safe environment and placing him in a

2 dangerous living situation against his wishes.

3

104. Clark’s caseworker failed to complete an assessment of his safety before returning

4 him to his mother’s custody. The caseworker made no attempt to confirm what Clark’s mother

5 had told him during their brief phone conversations. He did not contact her alleged employer, her

6 alleged landlord, or the local Texas child protective services. Despite her years of drug abuse, he

7 did not require that she submit verification of successfully completing treatment or that she

8 submit to a drug screen. He also did not conduct any criminal background check with Texas

9 authorities. In addition, Clark County DFS failed to comply with the requirements of the

10 Interstate Compact on the Placement of Children, to which both Texas and Nevada are signators.

11 Nev. Rev. Stat. Ann. §§ 127.320-350; Tex. Fam. Code § 162.101 et seq.

12

105. Had the caseworker conducted a reasonable investigation, he would have learned

13 that Clark’s mother was on probation for burglary, had been without a job for a very long time,

14 and had no suitable housing. She was sharing an overcrowded trailer with her alcoholic parents,

15 and was continuing to abuse drugs and alcohol.

16

106. After sending Clark to Texas, Clark County DFS essentially washed their hands of

17 him altogether. They made no efforts to determine whether he was safe with his mother, nor did

18 they follow up with anyone in Texas to ensure that his needs were being met.

19

107. Once again, Clark led a miserable life in Texas. He initially lived with his mother,

20 maternal grandmother, and many others in a filthy trailer. At any given time, there were at least

21 eight people sharing the trailer with five or six dogs. Animal feces were littered throughout.

22 Clark slept on a filthy mattress on a bunk bed that he shared with his grandmother, or he slept on

23 the floor. Clark was surrounded by drug use and drug dealing. His mother used and sold

24 everything from marijuana to crack in Clark’s presence. His relatives stole his possessions

25 (including clothes, shoes, socks, hats, CDs, a CD player, a guitar, a backpack, and a bike), and

26 sold them for drug money.

27

108. Clark often went several days without food. Although his mother was receiving

28 food stamps for him, she traded them for drugs. She and her parents frequently dug food out of

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1 dumpsters for themselves and Clark to eat. At other times he would only have a few crackers and

2 applesauce. Much of the time, his only meal of the day was the free lunch he received at school.

3

109. For the year and a half he was left in Texas, Clark was moved around among

4 various family members, moving about twelve times. Most of the time they moved from one

5 trailer park to another. At one point they were all living out of a truck with a camper shell on the

6 back. During most of his time in Texas, Clark was virtually abandoned by his mother. She

7 would frequently disappear on drug binges; she never held down a job; and she never provided

8 for his basic needs.

9

110. Although Clark was getting A’s and B’s in school when he lived with his

10 grandparents in Las Vegas, upon placement with his mother in Texas, his grades plummeted. In

11 some of the places he was taken to live, he had no transportation to school. He also never

12 received the special education services to which he was entitled based on previous assessments

13 and an IEP adopted while attending Clark County School District. In addition, during the entire

14 time he was in Texas, his mother never provided him with medication to address his attention

15 deficit hyperactivity disorder, which made it even more difficult for him to concentrate in school.

16

111. Finally, in the spring of 2005, Clark managed to get in touch with his grandmother

17 in Las Vegas. With help from his sister, Clark took a Greyhound bus back to his grandparents in

18 Las Vegas in April 2005.

19

112. Shortly after returning to Las Vegas, Clark’s family contacted Clark County DFS

20 to tell them Clark had returned to live with his grandparents. Subsequently, DFS attempted to

21 locate Clark’s mother, but was not successful.

22

113. Despite the traumatic events Clark experienced in Texas, he was denied medical

23 assistance upon his return to Las Vegas. Medicaid-covered services were requested by his

24 grandparents, but not provided, arranged, or paid for by Defendants.

25

114. In particular, Clark was in need of a comprehensive mental health assessment and

26 therapeutic services, including counseling, medication management and monitoring, and

27 physician and outpatient services, that were necessary to correct or ameliorate his mental health

28 condition, and rehabilitative services required to achieve the maximum reduction of physical or

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1 mental disability and restoration to the best possible functioning. These services are mandated

2 under 42 U.S.C. § 1396a(a)(10)(A) as defined in 42 U.S.C. §§ 1396d(a)(4)(B), (a)(5)(A),

3 (a)(2)(A), and (a)(13), as well as under 42 U.S.C. § 1396a(a)(43)(B) & (C). Despite repeated

4 requests by his grandparents, Clark County DFS failed to provide or arrange for such services. In

5 fact, not only did Clark’s grandparents request services, they made appointments that were then

6 cancelled by DFS and never rescheduled. For example, Clark’s grandparents made an

7 appointment with Dr. Bonnie Winkelman, a psychologist, for June 2005, but the caseworker told

8 his grandparents that the appointment was cancelled and that DFS handles all medical

9 appointments – including any counseling or psychological services – for the children, and the

10 grandparents were not allowed to make appointments or take Clark to appointments. Clark’s

11 grandfather also made an appointment with Debi Bhattacharyya, a Child and Family Intervention

12 Specialist with DFS, to have Clark evaluated. Ms. Bhattacharyya cancelled the appointment, and

13 DFS did not follow up to make a replacement appointment. Later, the DFS caseworker said DFS

14 would take him to Mojave Mental Health for an evaluation, but they never did.

15

115. Clark County DFS also failed to provide him with any educational services to

16 make up for the significant time he was not in school. In the absence of any services or assistance

17 from DFS, Clark and his grandparents researched various training programs and decided that

18 Clark should attend Job Corps.

19

116. Clark was accepted at the Job Corps in Reno, and began living there and attending

20 classes and vocational training. However, on or around March 15, 2006, Clark went missing.

21 Although Job Corps officials notified Clark County DFS of Clark’s disappearance, little or no

22 attempts were made to locate him. Even after the court directed DFS to do everything in their

23 power to find Clark, DFS took few, if any, steps to determine Clark’s whereabouts. At one point,

24 Clark called the DFS hotline and told them he was ready to go home to his grandparents, but DFS

25 failed to take timely action to help bring him back to a safe placement.

26

117. Clark lived on the streets in Reno for about three months, until he eventually

27 learned about a program called “Home Free” sponsored by the National Runaway Switchboard.

28

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1 He was provided with a free one-way Greyhound ticket back to his grandparents in Las Vegas.

2 He returned to their care on May 19, 2006.

3

118. Since returning to Las Vegas, Clark has received almost no independent living

4 services, or any other kind of services from Clark County DFS. His caseworker has been

5 unresponsive to multiple calls from Clark’s grandparents to follow up on securing needed

6 services. Clark is afraid to go back to school because he is now so far behind. He still has

7 significant unmet mental health needs, and lives with the fear that DFS could again take him from

8 his grandparents and send him to an unsafe placement against his will. He has difficulty trusting

9 adults or believing that anyone cares about him. He worries that people are like his relatives in

10 Texas – just waiting to do him in.

11 B. 12

The A. Children 119. Jalen, Sia, Roshaun, Caleb, and King A. are siblings – four boys and one girl, ages

13 nine, eight, six, five, and two, respectively. They have been in the custody of Clark County DFS

14 since December 2004. Their baby brother, Jerome, died in a DFS-licensed foster home on April

15 3, 2005, at the age of 14 months.

16

120. While in DFS custody, these five children have been placed in multiple

17 inappropriate and dangerous placements that have been harmful to their physical, mental, and

18 emotional well-being. They have been placed in a restrictive, overcrowded, and dangerous child

19 care facility (Child Haven) for almost a year; subjected to further emotional and physical abuse

20 and neglect while in foster and shelter homes; placed in shelter and foster homes that lacked the

21 information and services to care adequately for their basic needs; denied medical assistance to

22 address their history of abuse and neglect; denied visitation and contact with relatives; denied

23 representation by either a guardian ad litem or an attorney during their first year in foster care;

24 and separated from each other for long periods of time.

25

121. The A. children first came into foster care after the youngest sibling, King, tested

26 positive for drugs when he was born in December 2004. The children were initially taken to

27 Child Haven for a day, and then were split up and placed in three different DFS-licensed foster

28 and shelter homes. The three oldest children were placed in the foster home of Joan Smith.

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1 About a month later, Caleb and Jerome were moved into the Smith home with their siblings.

2 King was placed in a different foster home, separated from his siblings.

3

122. While in the Smith home, the children were physically and emotionally abused as

4 a result of Clark County DFS’s failure to provide adequate training, supervision, and support to

5 foster parents; failure to investigate reports of abuse and neglect; and failure to remove children

6 from dangerous placements.

7

123. Within their first month of placement, Ms. Smith had difficulty caring for the five

8 children who at the time ranged in age from one year to six years of age. During this time, Ms.

9 Smith was also having problems with her troubled adopted daughter, who was regularly running

10 away from home. In February or March 2005, Ms. Smith began making repeated requests to

11 Clark County DFS, both verbally and in writing, to remove the children from her home. Upon

12 information and belief, DFS failed to respond to these requests and failed to provide Ms. Smith

13 with any supportive services to help her care for the A. children.

14

124. Clark County DFS also failed to investigate multiple reports of abuse and neglect

15 while the children were living at the Smith home. While visiting Jerome in the hospital in

16 February 2005, the children’s biological father observed bruises on Jerome. During another visit

17 with all of the children, they told their father that they were being mistreated at the Smith home

18 by both the foster mother and her adopted daughter, and that Ms. Smith would hit infant Jerome.

19 Although the children’s father made multiple reports to DFS of the abuse occurring in the Smith

20 home, DFS did not investigate the reports, and let all five children remain in the home until

21 Jerome was tragically scalded to death on April 3, 2005.

22

125. Despite the reports of abuse in the home and Ms. Smith’s requests to have the A.

23 children removed, Clark County DFS placed another infant in Ms. Smith’s home in February or

24 March 2005. At this time, Ms. Smith had seven children in her home: the five A. children, her

25 adopted twelve-year-old daughter, and the new infant.

26

126. When she was originally licensed for foster care in August 2002, Ms. Smith was

27 granted a license for only three female children, ages 11-18 years. On April 16, 2004, Ms. Smith

28 was issued a Group Foster Home license for four male or female children, ages 0-17 years. On its

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1 face, this license noted “there is only one bedroom allocated to foster children in this home.”

2 Effective September 20, 2004, her capacity was increased to five beds, and effective January 4,

3 2005, her capacity was increased to six beds. On April 1, 2005, just two days before Jerome’s

4 death, her shelter care license for six beds was renewed.

5

127. Clark County DFS’s increases in the licensed capacity of Ms. Smith’s home did

6 not take into consideration her training, abilities, or demonstrated record of caring for such a large

7 number of foster children. Rather, it was based solely on the need for more shelter care beds in

8 the county.

9

128. On April 3, 2005, Ms. Smith left the A. children at home alone with her teenage

10 adoptive daughter. While Ms. Smith was at the hospital with her other foster infant, fourteen-

11 month-old Jerome was scalded to death in the bathtub at the Smith home. At least two of

12 Jerome’s siblings witnessed his death.

13

129. On November 8, 2005, the City of North Las Vegas filed criminal charges against

14 Ms. Smith related to Jerome’s death. Smith ultimately pled guilty and is currently serving her

15 sentence of a few months in a Clark County facility. Her foster care license was revoked.

16

130. The day after Jerome’s death, his five surviving siblings were placed at Child

17 Haven. A few days later, all of the siblings except for King, who remained at Child Haven, were

18 placed in another foster home. During their first week at this home, the children were left home

19 alone at night multiple times. They were subsequently removed from this placement after less

20 than two weeks and returned to Child Haven where they remained from April 2005 through May

21 2006 – over a year and a month.

22

131. For the thirteen months the A. children were in Child Haven, they were subject to

23 restrictive, overcrowded, oppressive conditions, and denied necessary services, resulting in

24 deterioration of their mental and physical health and well-being. At the time when they most

25 needed a caring environment, they were forced to give up their personal clothes and belongings;

26 were required to wear communal clothing; were not allowed to attend school in the community

27 for at least ten months; were given only limited visiting time with parents and relatives; and were

28

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1 subjected to a point-based discipline system inappropriate for children of their young ages —

2 conditions that have lead Child Haven to be described as a “junior prison.”

3

132. After King was moved back to the infant building at Child Haven, he developed

4 serious respiratory problems. His condition was so severe that he was not allowed to go outside,

5 and had to have breathing treatments twice a day. He was in need of services that are mandated

6 under 42 U.S.C. §1396a(a)(10)(A) as defined in 42 U.S.C. §§1396d(a)(5)(A) (physician services),

7 1396d(a)(6) (medical care), and 42 U.S.C. § 1396d(a)(4)(B) (EPSDT). His condition persisted

8 for over nine months before he was taken outside Child Haven to see a specialist.

9

133. At Child Haven the A. children were denied needed medical assistance to help

10 them cope with witnessing the death of their infant brother, as well as the abuse and neglect they

11 have experienced in their short lives. Jalen is the only child who has received any mental health

12 services, and the little counseling he was provided at Child Haven was on an “as needed” basis

13 and was inadequate to meet his needs. When the children’s aunt Tarrah asked Child Haven staff

14 why the children were not receiving mental health services following the death of their infant

15 brother, she was told by staff that Child Haven is “not a placement,” and because of this DFS

16 does not have to provide them with any services while they are there.

17

134. Accordingly, the A. children went over a year without a comprehensive health or

18 mental health assessment and therapeutic services, including counseling, medication management

19 and monitoring, and physician and outpatient services, that were necessary to correct or

20 ameliorate their health and mental health conditions, and rehabilitative services required to

21 achieve the maximum reduction of physical or mental disability and restoration to the best

22 possible functioning. These services are mandated under 42 U.S.C. § 1396a (a)(10)(A) as defined

23 in 42 U.S.C. §§ 1396d(a)(4)(B), (a)(5)(A), (a)(2)(A), and (a)(13), as well as under 42 U.S.C. §

24 1396a(a)(43)(B) & (C). Despite the trauma and grief they had experienced, Clark County DFS

25 failed to provide or arrange for such services.

26

135. The A. children also received inadequate educational services while at Child

27 Haven. Jalen and Sia, the two older children, never attended school in the community during the

28 entire year and a month they were placed at Child Haven; they were only allowed to attend the

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1 on-site school with other children living at Child Haven. Caleb and Roshaun were finally able to

2 attend a school in the community for a half-day after they had been in Child Haven for over ten

3 months.

4

136. Tarrah visited the children at Child Haven about every other weekend from April

5 2005 through March 2006. However, in the Spring of 2006, a County DFS caseworker informed

6 Tarrah that she could no longer visit with her nieces and nephews because it would give them

7 “false hope.” The caseworker did not allow Tarrah a goodbye visit with the children nor did she

8 allow Tarrah to explain to the children that she was not abandoning them, but rather it was the

9 department’s decision to terminate her visits. The children now have no stable adult figure in

10 their lives.

11

137. In May 2006, the children were moved from Child Haven to another foster home.

12 This is the fifth placement change for Jalen, Sia, and Roshaun since they entered Clark County

13 DFS custody in December 2004. It is Caleb’s fourth placement change, and King’s third

14 placement change since entering foster care in December 2004, and they are all at risk of future

15 placement changes, including being returned once again to Child Haven.

16 C. 17

The B. Children 138. Eight-year-old Summer, six-year-old Frank, and five-year-old Toni B. are siblings.

18 They have been in the legal custody of Clark County DFS since October 2002.

19

139. While in foster care, the B. children have been placed with a series of foster

20 parents who were given little background information about the children and were not trained or

21 supported to meet the children’s special needs. As a direct and foreseeable result, the children

22 changed placements many times, with Frank and Summer experiencing between five and seven

23 placements within three months. The children were also physically and emotionally abused in at

24 least one foster home, and have been placed at Child Haven several times. In addition, Clark

25 County DFS failed to conduct a proper investigation of reports of abuse of Summer and Frank,

26 and failed to provide the children with needed health and educational services. For the first year

27 that the children were in DFS custody, they were not represented by a guardian ad litem.

28

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1

140. On October 3, 2002, Clark County DFS assumed legal custody of then eleven-

2 month-old Toni, three-and-a-half-year-old Summer, and two-year-old Frank when the children

3 were brought to Child Haven by a baby sitter who reported that the mother had abandoned them.

4 DFS petitioned the juvenile court to find the children abused and neglected based upon the

5 mother’s history of substance abuse, including having taken methamphetamine during her

6 pregnancy with Toni, and the father’s incarceration. The children were placed in the DFS

7 licensed shelter home of Marilyn Paikai, where they lived for the next six months.

8

141. Upon their entry into foster care, all three children demonstrated multiple special

9 needs. Frank suffered anxiety attacks and night terrors, and often banged his head from one side

10 of the crib to the other in the middle of the night. His language skills were not developmentally

11 appropriate for a child his age. Summer was physically aggressive toward her younger siblings,

12 and her other behaviors suggested that she had been the victim of sexual abuse. One of

13 Summer’s foster parents took her to the doctor after she complained of “burning” on her

14 “bottom,” and the examination revealed that she had genital warts. Although her therapist

15 subsequently reported to Clark County DFS that she suspected Summer had been sexually

16 abused, DFS never investigated these concerns or reports. Toni was underweight and emotionally

17 disturbed. Her behavior was self-abusive – pulling her hair out, banging her head on the walls

18 and floor, and biting her arms. One mental health therapist described little Toni as “a bundle of

19 raw nerves.” Others suspected she suffered from Down Syndrome. She was hypertonic and was

20 very difficult to console and relax.

21

142. On April 9, 2003, all three children were removed from Mrs. Paikai’s shelter

22 home, supposedly to be placed in a permanent placement. However, they stayed at their next

23 foster care placement with the Jackson family for less than seven weeks before being moved

24 again. At the time the children came to live with them, the Jacksons were newly licensed and had

25 recently completed the foster parent training program. They had never cared for any other foster

26 children, and had no experience or training in caring for children with the extent of special needs

27 of Toni, Summer, and Frank. The Jacksons also had two young children of their own – ages three

28 and six.

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1

143. Almost from the first day the children were placed in the Jackson foster home, the

2 foster parents began calling the caseworker asking for help with their care of the children. They

3 did not know how to respond to the children’s behaviors. Summer, for example, threw temper

4 tantrums, forced herself to vomit, and attacked her younger brother.

5

144. Clark County DFS did not return the foster parents’ calls nor did they provide any

6 supportive services that might have enabled the Jacksons to continue caring for the children and

7 prevented another disruption in the children’s placement.

8

145. On May 26, 2003, the Jackson foster father called and asked Mrs. Paikai, the

9 former shelter care mother, to provide them with respite by taking the children for the day. She

10 agreed and the foster father dropped off the children at her home. When the time came for the

11 foster father to pick up the children later that day, he refused to do so.

12

146. Mrs. Paikai then called Child Haven and reported that she had the children back in

13 her home but had bed space only for one. Child Haven staff told Mrs. Paikai to keep the children

14 and call back on Tuesday after the holiday weekend. The children remained in Mrs. Paikai’s

15 home until the following Friday when the caseworker picked up Summer and Frank, and decided

16 that Toni would remain with Mrs. Paikai.

17

147. Toni remained in Mrs. Paikai’s shelter home for more than two years – until

18 August 2005 – when she was returned to her mother on a trial basis. During the entire time Toni

19 was placed with Mrs. Paikai, her Clark County DFS caseworker made only one visit to the foster

20 home to check on the well-being of Toni.

21

148. For the next three months, between June and August 2003, Summer and Frank

22 were moved every two weeks from one foster home to another. Altogether they were moved five

23 or six times in less than three months. After being moved five or six times, they went back to

24 Child Haven for six weeks.

25

149. In each home selected by Clark County DFS, the foster parents were not

26 adequately trained nor did they have the experience and skills to provide the type of intensive

27 care that Summer and Frank required.

28

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1

150. Frank was physically abused by the foster mother in one of the foster homes

2 through which County DFS shuttled Summer and Frank between June and August 2003. In July

3 2003, during a visit with their biological mother, the children told her that the foster mother was

4 hitting them. Frank pulled down his pants and showed his mother a black and blue bruise on his

5 left hip the size of a baseball. The mother called the caseworker in and told her about the bruise

6 and what the children had said.

7

151. Following the mother’s report of abuse in the foster home, the caseworker failed to

8 take pictures of Frank’s injury. The caseworker did not refer the report of abuse to an

9 investigator, but instead took Summer and Frank out one at a time to talk to them. After these

10 conversations with the children and without conducting any investigation, the caseworker took

11 the children back to the same foster home the children had complained about. Upon returning the

12 children to this foster home, the caseworker merely reminded the foster parent not to hit kids.

13

152. Several days after the children reported abuse in the foster home, the foster mother

14 called and admitted to Mrs. Paikai that she had hit Summer; she insisted that Summer needed to

15 be on medication to deal with her out of control behaviors. She also admitted that she punished

16 Summer by making her lay in her bed for four or five hours during the day.

17

153. The very next morning after the phone call from the foster mother, Mrs. Paikai

18 called the children’s caseworker. She told her about the conversation she had with the foster

19 mother and expressed her concerns for the safety of the children. Following this call, the

20 caseworker removed Summer and Frank from the foster home – seven days after Frank showed

21 the bruise to his mother and she reported it to the caseworker.

22

154. Upon removing the children from the abusive foster home, the caseworker asked

23 Mrs. Paikai to keep them. However, Mrs. Paikai had no bed space available and was at her

24 licensed capacity. Nonetheless, with the plea of the caseworker that there was nowhere else for

25 the children to go, she agreed to keep them until the worker could find another home. While they

26 were back with Mrs. Paikai, Summer and Frank told her that the foster mother threatened them

27 with being sent back to Child Haven and told Summer that if she did not stop crying, staff there

28 would pull her eyes out.

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1

155. Subsequently, Frank and Summer were placed with Mrs. Paikai’s sister who was a

2 licensed foster parent. In the new foster home, the children demonstrated much of the same

3 behaviors and special needs that they had shown in the previous homes. Their new foster mother

4 repeatedly called the caseworker for support with the care of the children but her calls, too, were

5 never returned. For the entire two weeks the children were in this foster home no one from Clark

6 County DFS came to check on the children or responded to the foster mother’s pleas for help.

7

156. With no support, assistance, or response to her pleas for help, the foster mother

8 took the children to a therapist’s office in search of some assistance. When the therapist called

9 the caseworker, she told her to take the children back to Child Haven. Following these

10 instructions, the therapist transported the children back to Child Haven, where they remained for

11 another five weeks.

12

157. In August 2003, Summer and Frank were placed in the therapeutic foster home of

13 Rosie and Robert Beck. They lived in this home for two years.

14

158. At the end of August 2005, Clark County DFS returned all three children to their

15 mother — while maintaining legal custody. DFS did not perform the requisite safety assessment

16 prior to placing the children with their mother. Indeed, at the time the decision was made, the

17 caseworker stated that she was “95% certain that placement back with the mother will fail.” By

18 doing so, Defendants greatly increased the danger to the B. children by taking the affirmative step

19 of removing them from a safe placement and placing them in a dangerous living situation.

20

159. During the “trial” time with their mother, the children’s educational, mental health,

21 and medical needs went unmet. For the entire time that Toni lived with her mother she was not

22 enrolled in, nor did she attend one day of, school. She had previously been enrolled at the early

23 Program for Delayed Children of Clark County, and was receiving special education services,

24 weekly speech therapy, and occupational therapy. While living with her mother, she did not

25 receive any of the special education or related services she had been receiving. As a result,

26 Toni’s speech, behavior, and educational progress deteriorated significantly. Her speech became

27 unintelligible. Her medical needs also went unmet.

28

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1

160. In October 2005, while back with her mother, Clark County DFS received a report

2 that Summer had a suspicious burn on her thigh. Upon information and belief, this report was not

3 properly investigated. School authorities also reported concerns about Summer, and that she was

4 missing many days of school. On several occasions during this “trial visit” with their mother, the

5 children were caught in the middle of domestic violence between their mother and her boyfriend.

6

161. On January 6, 2006, the trial placement with the children’s mother was abruptly

7 ended, and Toni, Summer, and Frank were returned to foster care. Upon information and belief,

8 the removal of the children was prompted by the mother’s failing a drug test and calls from

9 Summer’s school reporting that the children were being left alone.

10

162. The return of the children to foster care was handled in a manner inconsistent with

11 the safety, needs, and well-being of the children and in violation of professional standards and

12 common sense. After a loud and disturbing argument and struggle with their mother in front of

13 the B. children, the caseworker put the children in her car. She then called Summer and Frank’s

14 former foster parent, Rosie Beck, and asked her to meet her at a major intersection in Las Vegas.

15 The caseworker then drove into a parking lot and handed off the children to Mrs. Beck. Summer

16 refused to get out of the car until the caseworker told her that she would be taken to Child Haven

17 if she did not go with Mrs. Beck. The caseworker provided the foster mother with no paperwork

18 or authorization to care for the children.

19

163. Upon the children’s return to foster care in January 2006, the Clark County DFS

20 caseworker did not contact Mrs. Paikai to ask if she would resume care of Toni and her siblings.

21 DFS refused to place Toni in the foster home in which she had spent most of her life, despite the

22 repeated requests of Mrs. Paikai. Instead, the agency placed the children with foster parents who

23 are in their sixties and have three other special needs children. Despite the advice of Toni’s

24 physician that it was in Toni’s best interest to continue contact with Mrs. Paikai and her husband,

25 DFS has cut off all contact between Toni and the Paikais.

26 D. 27

Donna C. 164. Six-year-old Donna C. has been in the legal custody of Clark County DFS since

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1

165. Since Clark County DFS assumed custody of Donna, she has been denied

2 necessary and appropriate medical, dental, and mental health care; removed from a foster home in

3 which she was receiving exemplary care; and subjected to mental and emotional harm. In

4 addition, she has at no time been represented by a guardian ad litem or attorney. She has had no

5 legal representation at court hearings, staffings, Child and Family Team meetings, or in any other

6 decision-making meetings held by DFS at which decisions were made about her placement,

7 treatment, and/or permanent plan.

8

166. Donna was removed from the custody of her mother and placed in foster care due

9 to her mother’s addiction to drugs, multiple child molestation allegations her mother had made

10 against multiple partners, lack of stable living accommodations, her mother’s criminal history

11 (which included serving four years in federal penitentiary for the sale and possession of cocaine),

12 and a Florida juvenile court’s removal of Donna’s older sister from her mother’s care and

13 custody.

14

167. In 2005, Donna was returned to her mother on a trial visit with Clark County DFS

15 retaining legal custody. Upon information and belief, before Donna was reunited with her

16 mother, DFS failed to complete a safety and risk assessment. After Donna’s placement back with

17 her mother, DFS failed to make regular visits to the home and monitor her care, safety, and well-

18 being. Upon information and belief, DFS also failed to provide services to Donna and failed to

19 continually assess whether her mother had achieved the goals and objectives of the case plan.

20 Shortly after Donna was placed back with the mother, her assigned caseworker left or was

21 reassigned and no other DFS caseworker was assigned to Donna’s case for several months. By

22 making this placement change without any safety assessment or monitoring, Defendants greatly

23 increased the danger to Donna by taking the affirmative step of removing her from a safe

24 placement and placing her in a dangerous living situation.

25

168. While Donna was living with her mother, her mother stole a car, left Nevada with

26 Donna, and began traveling throughout the United States and Canada. For three or more months,

27 Donna lived in the stolen car with her mother and was subjected to a series of traumatizing

28 events. Her mother drove from one state to another, evading authorities and engaging in illegal

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1 conduct including the purchase of illegal drugs. Donna was often forced to accompany her

2 mother into truck stop bathrooms in which she witnessed her mother buy, sell, smoke, snort, and

3 inject drugs. Donna also endured mental torment and torture. She was terrorized by her mother’s

4 paranoia and began herself to believe and participate in it. For example, she was not permitted to

5 drink water because her mother was convinced that all water was poisoned by the “cult.” She

6 frequently had Donna crawl under the car to look for a global tracking device she believed the

7 “cult” had put there.

8

169. During the months Donna was with her mother, she went without food and water

9 for long periods of time. She developed an eating disorder characterized by excessive chewing of

10 her food, failing to swallow it, and then gagging. She was confined to the car for long periods of

11 time and denied exercise and play.

12

170. While in the care of her mother, Donna was repeatedly exposed to domestic

13 violence in which she was often caught in the middle of physical fights between her mother and

14 her mother’s boyfriend. From a very early age, Donna’s mother told her that she had been

15 sexually molested by members of the “cult.”

16

171. As a result of her months of living with a severely emotionally disturbed and drug-

17 addicted mother, Donna suffered long-lasting harm, the full impact of which is not yet known.

18

172. In December 2005, Donna’s mother was arrested in New Mexico and charged with

19 auto theft. Law enforcement authorities in New Mexico discovered that Donna was in the

20 custody of Clark County DFS and made arrangements to have her returned to Las Vegas.

21

173. On December 12, 2005, Donna was returned to Las Vegas. She was taken by a

22 DFS caseworker from the airport directly to the foster home of Ernest and Jacquelyn Romero.

23 When she arrived at the Romero home, she had nothing but a small bag of severely worn clothing

24 stained with cat urine and feces. She had no toys, and not even an extra pair of clean underwear.

25

174. Since County DFS was not visiting Donna while she was placed with her mother

26 or otherwise monitoring her care, several months went by before DFS discovered that Donna had

27 been abducted. Indeed, DFS first learned that Donna was no longer in Las Vegas when they were

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1

175. Three days before her placement in the Romeros’ home, a Clark County DFS

2 caseworker contacted them to ask if they would accept Donna. Although Donna had been in

3 foster care before her abduction by her mother, DFS provided almost no information about

4 Donna, other than her age, to the prospective foster parents. They were told that Donna had no

5 known behavioral problems or sexual abuse history.

6

176. Upon her return to foster care, Donna weighed approximately thirty pounds. Her

7 bones were sticking out; she appeared anorexic. Her muscles were atrophied as a result of sitting

8 in the car for days at a time.

9

177. Despite her physical condition and the trauma she experienced, Donna was denied

10 medical assistance for services needed to cope with her ordeal. Medicaid-covered services were

11 requested by her foster parents, but not provided, arranged, or paid for by Defendants.

12

178. In particular, Clark County DFS failed to provide or arrange for the provision of a

13 comprehensive health and mental health assessment of Donna when she returned to foster care.

14 Donna’s caseworker told the foster parents a few days after Donna was placed with them that she

15 needed a comprehensive assessment, but Clark County DFS did not arrange directly or through

16 referral to appropriate individuals for such an assessment. Comprehensive health and mental

17 health assessments are among those services mandated under 42 U.S.C. § 1396a(a)(10)(A) as

18 defined in 42 U.S.C. §§ 1396d(a)(4)(B) and under 42 U.S.C. § 1396a(a)(43)(B). However, even

19 after repeated requests, the Romeros did not receive a Medicaid card for Donna until several

20 months after she was placed in their home.

21

179. Clark County DFS also failed to provide or arrange for health and therapeutic

22 services, including counseling, medication management and monitoring, and physician and

23 outpatient services, that were necessary to correct or ameliorate Donna’s health and mental health

24 conditions, and rehabilitative services required to achieve the maximum reduction of physical or

25 mental disability and restoration to the best possible functioning. These services are mandated

26 under 42 U.S.C. § 1396a(a)(10)(A) as defined in 42 U.S.C. §§ 1396d(a)(4)(B), (a)(5)(A),

27 (a)(2)(A), and (a)(13), as well as under 42 U.S.C. § 1396a(a)(43)(C). Donna needed such

28 services to help her cope with the harm caused by months of living with her severely mentally ill

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1 mother. Despite her foster parents’ repeated requests for help, she was placed on a waiting list for

2 several months. Almost four months elapsed before she was seen by any mental health

3 professional.

4

180. While in the Romero home, Donna flourished and began to recover from the

5 harms she had suffered while on the road with her mother. When she came to the Romero home,

6 Donna did not know her ABCs, or numbers. With the daily help of the foster mother, Donna

7 made great strides.

8

181. The Romero home is the type of foster home Clark County DFS should retain and

9 try to replicate, if possible. The Romeros possess the attributes foster families need to help

10 children brought into foster care. The Romeros are licensed as a flex family, meaning they are

11 dually licensed as an adoptive and foster home. The Romeros wanted to adopt Donna, and

12 conveyed this to DFS. However, they were also prepared to provide her with a stable foster care

13 home even if adoption was not the placement goal.

14

182. On or about April 25, 2006, a hearing was scheduled in the Clark County District

15 Court to review Donna’s case and to determine, among other things, if a petition to terminate

16 parental rights should be filed. Prior to this hearing, Donna’s foster parent sent a letter to the

17 juvenile court judge presiding over Donna’s case. In her letter, Mrs. Romero described Donna’s

18 condition when she arrived at the foster home, their concerns for her safety and well-being, and

19 the progress she had made since she came to live with them. She expressed her concerns about

20 Donna’s safety if returned to her mother, based on Donna’s statements and information that her

21 mother herself had shared about her drug abuse history. Finally, she asked the court to consider

22 revising Donna’s visitation plan to ensure that her mother could not leave town with her again.

23

183. On May 4, 2006, Mrs. Romero was summoned to a meeting at Clark County DFS

24 where for two hours she was confronted and criticized by five members of the DFS staff for

25 having written a letter to the juvenile court judge in Donna’s case. Donna’s caseworker was upset

26 that Mrs. Romero wrote the letter without asking DFS for permission. The caseworker retaliated

27 against the Romeros by beginning to plan for Donna’s removal from their home despite the fact

28 that she was receiving exemplary care.

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1

184. For Donna’s birthday, her foster parents were planning a party. It would have

2 been the first birthday party Donna had ever had. They told the caseworker about the party, and

3 asked that any placement changes of Donna be postponed until at least after her birthday party.

4 The worker refused. She removed Donna from the Romeros’ home ten days after the meeting at

5 DFS and just before her birthday.

6

185. Donna’s therapist advised the County DFS caseworker that removing Donna from

7 the Romero home would be harmful and detrimental to Donna’s well-being. During the almost

8 six months Donna was living with the Romeros, she developed an attachment not only to the

9 foster parents, but also to their seven- year-old daughter. As a direct and foreseeable result of the

10 abrupt, unplanned, and wholly unjustified removal of Donna from the Romero home, she suffered

11 significant mental distress and emotional harm.

12

VII.

13

CLARK COUNTY’S CHILD WELFARE

SYSTEM IS DESPERATELY IN NEED OF REFORM 14

15

186. Defendants have long known of the urgent need for systemic reform of Nevada’s

16 child welfare system. Numerous reports have demonstrated that the system fails to protect and

17 actually affirmatively harms many of Nevada’s abused and neglected children. The failures of

18 Clark County’s child protection and foster care system have been open and notorious for years.

19

187. In December 2003, DHHS/DCFS officials submitted a Statewide Assessment of

20 Child Welfare as part of the federally mandated Child and Family Services Review. That

21 assessment begins with state officials’ affirmation that State DCFS “is responsible for … foster

22 care, adoptions and other child welfare services.” CFSR Statewide Assessment at 4. The

23 Assessment notes deficiencies in Clark County’s child welfare program, including absence of

24 case plans and infrequent caseworker visits to foster homes.

25

188. Between February 2004 and August 2006, local newspapers and television stations

26 in Las Vegas reported on the child abuse or neglect deaths of more than twenty-four children in

27 Clark County. A substantial number of these children were in foster care with Clark County

28 DFS, had an open child protective services case with DFS at the time of their death, or had a

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1 history of involvement with child protective services and a case that had been closed by DFS

2 despite strong indications that the child was at risk.

3

189. In 2004, Federal DHHS conducted a performance review of Nevada’s child

4 welfare system. The 2004 Federal Review, referred to as a Child and Family Service Review

5 (“CFSR”), was designed to determine whether Nevada’s child welfare system substantially

6 complies with the requirements of the “State’s Plan for Title IV-E of the Social Security Act

7 Foster Care” and meets children’s needs for safety, well-being, and permanency. During the

8 CFSR review process, Federal DHHS identified numerous concerns related to Clark County’s

9 child welfare system, as discussed below.

10

190. In October 2005, State DCFS conducted a review of a sample of child welfare

11 cases from Clark County DFS. The 2005 County Case Review assessed DFS performance in

12 protecting child abuse victims and foster children from harm, achieving permanent placements for

13 them, and promoting their physical and emotional well-being. The children whose cases were

14 reviewed included children in foster care and children left in their home after a report of

15 suspected abuse/neglect. The case review instrument used by State DCFS was adapted from the

16 tool used by Federal DHHS for the CFSR in 2004.

17

191. In six of the seven outcome measures used to assess Clark County DFS’s

18 protection and care of children, reviewers found that DFS failed to achieve a minimally

19 acceptable level of performance. More specifically, the 2005 County Case Review found that

20 DFS failed to conduct appropriate assessments prior to removing children from their homes or

21 returning them to their homes, failed to conduct legally required visits with foster children, failed

22 to address the educational needs of children in foster care, and failed to ensure that foster children

23 received needed health care and mental health services.

24

192. Many of the findings of the 2005 County Case Review were corroborated by a

25 more recent review of child abuse cases in Clark County. In December 2005, after several

26 meetings with plaintiffs’ counsel, Nevada DHHS began an analysis of Clark County’s alarming

27 child fatality data. Based on concerns relating to child welfare practices raised by this

28 preliminary analysis of fatality data, State DCFS contracted with the National Center for Child

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1 Death Review to conduct an in-depth study of 79 suspected child abuse/neglect deaths that

2 occurred between 2001 and 2004. A panel of child welfare experts from outside Nevada was

3 hired to manage the review process.

4

193. In its 2006 Child Fatality Report, the panel made numerous findings regarding

5 systemic problems, including: failure to respond to hotline calls promptly, failure to conduct

6 appropriate safety assessments, and failure to substantiate reports of abuse and neglect that should

7 have been substantiated. The panel also identified significant deficiencies relating to case

8 practices, including: failure to make monthly visits with foster children, failure to provide

9 children and families with needed services, and failure to prepare service or safety plans for

10 children and families. In addition, the panel noted that there was inadequate training for

11 caseworkers and that the system did not have adequate resources and staffing to meet children’s

12 needs.

13

194. On August 11, 2006, Federal DHHS took the unusual step of informing the State

14 of Nevada that it intended to renegotiate the State’s Program Improvement Plan due to worsening

15 conditions for abused and neglected children in Clark County. Federal DHHS’s rationale for

16 taking this step included that there were “[s]erious deficiencies in the State’s child welfare

17 program, most specifically Clark County” and that there was “[c]onsistent overcrowding at Child

18 Haven and recent tragedies involving children in foster care.” August 11, 2006 Letter from

19 Sharon M. Fujii to Defendant Willden. Federal DHHS further stated that “the manner in which

20 the continuum of child welfare services is managed in Clark County should be a grave concern to

21 the State and should be addressed by the State in its administration and supervision of the

22 program.” Id. The letter demanded revisions in the State’s Program Improvement Plan “that

23 specifically address the ongoing concerns regarding Clark County.” Id.

24

195. Subsequently, Defendants Willden and Serrano wrote a letter to Defendant Morton

25 acknowledging that “many hours have been directed towards several efforts in hopes of

26 improvement [in Clark County’s child welfare system.].” August 30, 2006 letter from

27 Defendants Willden and Serrano to Defendant Morton. The letter further stated that:

28

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1

we continue to receive information indicating serious deficiencies

with the [child welfare] system …; the existing level of effort to

2

correct system deficiencies is not adequate; [and] that despite lists

of corrective action plans … still we have major failures.

3

4 Id. Defendants’ letter underscores State Defendants’ knowledge of and concern about the serious

5 failures in Clark County’s child welfare system.

6

196. On August 31, 2006, Defendant Willden responded to Federal DHHS, describing a

7 number of steps that State Defendants were taking to improve Clark County’s compliance with

8 federal child welfare mandates. August 31, 2006 Letter from State Defendant Willden to Sharon

9 Fujii. He refers to plans developed for compliance with Title IV-E and the CAPTA. Id. Implicit

10 in this correspondence is Defendant Willden’s concession that Nevada DHHS and State DCFS

11 are responsible for ensuring Clark County’s compliance with federal laws.

12 A. 13

Abused and neglected children in Clark County are placed in an unlicensed, overcrowded, and unsafe facility for extended periods of time

14

197. Defendants’ failure to recruit, train, support, and retain a sufficient number of

15 foster homes has resulted in over reliance on Child Haven, a large, unlicensed congregate care

16 facility in Las Vegas. Nearly all children who have been removed from the homes of their

17 parents because of suspected abuse or neglect are first taken to Child Haven. Children frequently

18 are forced to stay at Child Haven for long periods of time because there are no available beds at

19 foster family shelter homes.

20

198. Upon admission to Child Haven, children are stripped of their clothes and all

21 personal belongings. Throughout their stay at Child Haven, children are not permitted to wear

22 their own clothes – not even their own underwear – but are periodically issued clothes and shoes

23 from a communal pile of clothing. Oftentimes the clothes and shoes do not fit, and may not even

24 match the child’s gender.

25

199. Children placed at Child Haven are forced to live in overcrowded buildings where

26 they sometimes sleep on the floor, are not provided with the health, educational or therapeutic

27 services they need, and often act out their justifiable rage at being treated neglectfully. Their

28

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1 basic emotional needs are not met and they are not given even basic information about the plans

2 the agency has for them.

3

200. Child Haven is an unsafe place for children. A growing number of children with

4 significant behavioral and emotional/mental health problems are placed at Child Haven without

5 adequate therapeutic services to meet their needs. In addition, older teens, some with a history of

6 delinquent behavior, reside on the same campus, in close proximity to and sharing some common

7 areas with toddlers and elementary school age children.

8

201. For years, Defendants have failed to address the problem of runaways from Child

9 Haven. Some youth are allowed to “walk away” from the facility when behaviors escalate to a

10 point that staff determine that it is in the best interests of other children at Child Haven that they

11 be allowed to run away. While on runaway, these youth have engaged in dangerous, sometimes

12 life-threatening behaviors. During August 2006, a youth who had run away seven times from

13 Child Haven was murdered on the streets of Las Vegas. Clark County DFS has done little to

14 address the chronic problem of runaways from Child Haven thus placing children and youth at

15 substantial risk of harm.

16

202. In 2004, federal reviewers found that “there is no monitoring or oversight process

17 for Child Haven.” This finding and the continued operation of Child Haven without a license,

18 they concluded, was a violation of federal mandates that the State of Nevada develop and

19 implement standards to ensure that children in foster care are provided with quality services that

20 protect the safety and health of children.

21

203. Following another site visit by federal officials to Child Haven in the summer of

22 2006, federal officials notified Defendants that “the situation (at Child Haven and within other

23 parts of Clark County’s child welfare system) had worsened since the on-site visit” in February

24 2004. Federal officials concluded that “immediate and ongoing attention” was needed to ensure

25 the safety, permanency, and well-being of children placed at Child Haven.

26

204. During the last couple of years, a number of factors have compounded the

27 inevitable risk and harm to children admitted to Child Haven. The problems resulting from

28 chronic, increasingly severe overcrowding are exacerbated by the admission of children and

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1 youth with ever more serious and challenging behaviors, the agency practice of compelling staff

2 from other sections of the agency to work overtime at the buildings, the use of untrained

3 volunteers, and the failure to provide children with the necessary assessments and therapeutic

4 interventions to meet their needs.

5

205. Federal law forbids the use of federal funds for institutions caring for more than

6 twenty-five children. As a result, Clark County does not receive any federal funds to defray the

7 $9 million per year that it costs to support the 6,000 children that pass through or reside at Child

8 Haven in a year. Despite this fact, federal officials notified Nevada that “[w]hile Child Haven

9 placements are not eligible for Title IV-E reimbursement, the children placed in this unlicensed

10 congregate facility are the responsibility of the State of Nevada not just Clark County.”

11

206. Current social science research provides substantial evidence that the care children

12 and youth receive in group care and shelters like Child Haven is far more expensive and less

13 beneficial than care provided in foster family homes. As Richard Barth, the current Dean of the

14 School of Social Work at the University of Maryland wrote recently, “[c]ounties across the

15 United States have been closing child welfare shelters – at times, as a result of court orders – but

16 mostly because it is humane and cost effective…The money [spent to operate large shelters like

17 Child Haven] could be more effectively spent in recruiting and providing training and support for

18 foster caregivers.”

19

1. Child Haven has been chronically overcrowded for years

20

207. Child Haven was designed to be a temporary shelter while children await

21 placement with their relatives or in a more family-like setting. Child Haven’s campus consists of

22 eight buildings and an on-grounds school. One building is used for visits between parents and

23 children and/or administrative purposes; it is not used to house children. Each of the seven

24 buildings used to house children has a capacity for 12 children except for the infants’ building,

25 which has a capacity for 20 infants. Accordingly, Child Haven currently has a total capacity for

26 92 infants, children, and youth.

27

208. Despite its large size, Child Haven is chronically overcrowded, with many of the

28 buildings housing more than twelve children. Overcrowding has been tolerated for years. For all

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1 but a few months since January 2003, the number of children housed at Child Haven has

2 exceeded capacity. The average daily population has been as high as 160 children or higher, and

3 has frequently been 146 or higher.

4

209. The overcrowding at Child Haven has worsened since October 2005, most recently

5 reaching more than 220 infants, children, and youth. Overcrowding in the Agassi building –

6 reserved for a maximum of twenty newborns and infants – is endemic. During the first week of

7 April 2006, there were 56 infants in several buildings at Child Haven.

8

210. In recent months the situation has become so dire that the staff lunch room was

9 converted into an annex for infants. Cribs were stacked one against the other in a room not

10 intended or designed for the care of infants.

11

211. Overcrowding at Child Haven is not limited to the infant and toddler buildings.

12 On December 9, during a “special evening inspection” of Child Haven by the Clark County

13 Health Department, the inspector noted overcrowding in the Bigelow building. The Bigelow

14 building is for boys between the ages of five and ten. Instead of the usual 18 children, on that

15 evening there were 26 children being housed in the building. Several children had no bedroom,

16 and were forced to sleep on the floors of the common areas of the building. These children slept

17 on mats placed on the floor.

18

212. Most recently, the federal government weighed in on the chronic overcrowding at

19 Child Haven. As of June 30, 2006, there were 205 children living at Child Haven, over half of

20 whom were between the ages of 0-4. Federal DHHS stressed the need to develop immediate

21 strategies to address this and other problems at Child Haven.

22

2. Conditions at Child Haven endanger children and do not promote their well-being

23

213. Overcrowding at Child Haven has contributed to and exacerbated the frequency

24 and severity of outbreaks of infectious and communicable diseases among the children placed

25 there. On August 1, 2005, the Clark County Health Department reported an outbreak of hand-

26 foot-mouth disease. A September 30, 2005 Health Department survey reported a concern of

27 possible Methicillin-resistant Staphylococcus aureus (MRSA) among children in Child Haven.

28 On that occasion, a two-year-old boy was found to have an MRSA infection of the eye and a 10-

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1 month-old girl suffered an infection on her buttocks. The boy was taken to Sunrise Hospital for a

2 culture to determine if the suspected infection was MRSA, but was returned to the Child Haven

3 building before the culture results were obtained thus exposing other children to the risk of

4 infection.

5

214. In addition to these health concerns, there are also no standards in place to ensure

6 that children’s health, mental health, and educational needs are met. No individual assessments

7 of children’s needs are conducted while they are placed at Child Haven, and as a result, their

8 treatment needs go unidentified and neglected and informed decision-making to select the child’s

9 next placement does not occur.

10

215. Clark County DFS considers Child Haven to be a temporary placement even

11 though many children stay for weeks, months, and years at a time. Because of the purported

12 short-term nature of the placement, DFS does not arrange for or provide services for many of the

13 children in need of special treatment and services.

14

216. Children who are discharged from Child Haven are not prepared for what is ahead.

15 A child is given little or no explanation of where they are being placed and who will be their next

16 caregiver. They are given no opportunity to meet the caregiver before being abruptly transferred

17 to the next placement. They have no voice in the selection of the placement.

18

3. Placement of infants and toddlers at Child Haven is harmful, contrary to the

overwhelming opinion of mental heath, child development and child welfare

19

experts, and contrary to federal and state mandates

20

217. Infants entering foster care have very high rates of risk factors for

21 psychopathology, medical illnesses, and developmental delays, and consequently have extensive

22 service needs. Sixty to eighty percent of young children entering care have at least one medical

23 illness and twenty-five percent have three or more chronic conditions. As many as three-quarters

24 of young children in placement need further developmental evaluation or have a developmental

25 delay.

26

218. Infants and toddlers, in particular, are most susceptible to long-term detrimental

27 effects as a result of placement, even for relatively short periods of time, in institutions. The first

28

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1 three years of a child’s life are the most critical period for brain development, as this is the time

2 when the brain is in an unparalleled time of developmental change.

3

219. Infants and toddlers need the presence of a primary caregiver to form an

4 attachment to in order to develop normal emotional bonds and socialization skills. Having

5 already suffered the trauma of abuse and neglect by a primary caregiver, they have an even

6 greater need for a stable, nurturing, individual caregiver.

7

220. Children in Child Haven end up interacting with a multiple shift-work staff. At

8 Child Haven, infants and young children receive care from an ever-changing and large number of

9 different caretakers, which is contrary to their well-being and harmful to their development.

10 There is no one person who provides consistent care for each infant. It is estimated that in a

11 week, an infant may have as many as twenty different caregivers. Staff, though well-meaning,

12 are simply unable to respond to each child’s individual cues and unable to attend to each child’s

13 individual needs. Shelter care institutions like Child Haven tend to be more concerned with the

14 children’s physical care and establishment of routine, rather than the development of appropriate

15 social interaction, language development, and autonomy.

16

221. The placement of infants and toddlers in Child Haven is at odds with the mandate

17 of federal law that children in foster care must be placed in the least restrictive, most family like

18 setting consistent with the best interest and special needs of the child.

19

222. Placement of infants and toddlers in Child Haven runs counter to the

20 overwhelming opinion of experts in the field of child welfare, infant mental health, and child

21 development. It is also against the overwhelming weight of current social science and infant

22 mental health research. That research confirms that children living in institutions like Child

23 Haven tend to suffer from motor and language delays and display a lack of attachment and sense

24 of trust, a restricted range of emotion expressions, and an absence of social play. In comparison

25 to children placed in foster family homes, these children show poorer development and social

26 emotional functioning.

27

223. Clark County DFS’s practice of placing infants at Child Haven also is inconsistent

28 with its own determination, as stated in a 2004 Clark County Audit Department report, that

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1 “based on research … infants and small toddlers under 3 years of age … have been shown to do

2 better in a home with consistency in their caregivers versus those placed in an institution.”

3

4. Children remain housed at Child Haven for months and sometimes years

4

224. Child Haven is intended to be a short-term placement for children taken into

5 custody. Clark County DFS policy specifies that children are not to be placed in the shelter for

6 longer than two weeks. Despite this policy, many children, including infants and toddlers, remain

7 in Child Haven for long periods of time.

8

225. In 2004, community stakeholders interviewed as part of the federal CFSR

9 expressed concerns about the number of infants and very young children who are placed in Child

10 Haven and who remain in the shelter for long periods of time.

11

226. As of June 2006, the average length of stay was 45 days, with many children

12 remaining at Child Haven for three to six months, and sometimes a year or longer. According to

13 Federal DHHS, one child had been living in Child Haven for over two years.

14

5. Child Haven operates without the required license

15 227. Although Nevada law requires all child care facilities operating in the state to
16 obtain a license from the appropriate government agency before accepting children, Child Haven
17 has operated for years without a license. Child Haven as also never complied with the licensing
18 standards and regulations for child care facilities established by Las Vegas and the State of
19 Nevada.
20 228. More than two years ago, as part of a federal CFSR, reviewers noted that Child
21 Haven operated without the necessary license. State and County Defendants were directed as part
22 of the State’s Program Improvement Plan to ensure that Child Haven met all applicable licensing
23 requirements. A deadline of January 31, 2006, was established for compliance with this provision
24 of the PIP. Child Haven was not licensed as of January 31, 2006, and continues to operate in
25 violation of the applicable licensing statutes, regulations, and standards.
26

27

28

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1

6. Staffing and training at Child Haven are woefully inadequate

2

229. Buildings at Child Haven are staffed by a combination of full-time employees,

3 part-time staff, temporary employees, and volunteers. “Child Development Specialists” staff

4 each of the buildings working in three shifts around the clock.

5

230. Direct care staff receives a mere two days of training in what the agency calls the

6 Child Haven Active Teaching Treatment Approach (CHATTA). During what amounts to no

7 more than twelve hours of actual training, staff receive half-hour segments on such subjects as

8 principles of behavior, relationship building, youth rights, and working with the school. 9 Furthermore, the CHATTA model has little or no empirical basis and its use with all age groups 10 of children is inappropriate.

11

231. The number and qualifications of staff at Child Haven are inadequate to ensure the

12 care, protection, and well-being of children at the facility. Overcrowding at Child Haven has led

13 to requests and/or demands from the DFS director that other DFS staff not employed at Child

14 Haven volunteer for duty at Child Haven. Clark County DFS caseworkers who are encouraged or

15 coerced into volunteering to staff Child Haven are not trained in the care or supervision of the 16 infants, children, and youth at the facility, thus placing those children at risk.

17 B. 18

Defendants’ failure to conduct proper child abuse and neglect investigations and make reasonable efforts to keep children safely at home is harmful to children

19

232. Multiple studies of casework practices in Clark County have indicated that DFS is

20 failing to conduct adequate investigations of allegations of child abuse and neglect.

21

233. In the October 2005 County Case Review conducted by State DCFS, the reviewers

22 found that children were removed from home without conducting a safety assessment to 23 determine whether they could remain safely at home with the provision of supervision and 24 services to the family. The review also found that Clark County DFS failed to conduct ongoing

25 safety and risk assessments to monitor children left in their homes.

26

234. These findings were reinforced in the 2006 Child Fatality Report prepared by the

27 National Center for Child Death Review. The panel concluded that Clark County DFS has failed

28 to investigate numerous child deaths despite evidence of substance abuse, prior substantiations,

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1 significant neglect, and lack of supervision; failed to perform timely safety assessments relating

2 to other children living in the home following a child death; and failed to substantiate numerous

3 reports of abuse and neglect that should have been substantiated. The panel also found that DFS

4 failed to respond to hotline calls promptly, leaving some callers on hold for over 55 minutes and

5 resulting in 27% dropped calls.

6

235. Based on the federal Program Improvement Plan review and a recent on-site visit

7 to Clark County, Federal DHHS again echoed findings in previous reports of severe problems

8 with CPS investigations in Clark County. Federal DHHS concluded that Clark County does not

9 have a 24 hour, seven day a week Child Protective Services Response team, which results in

10 many children being unnecessarily removed by law enforcement and taken directly to Child

11 Haven. Children who are removed from their homes by law enforcement are not provided with a

12 safety or family risk assessment. Moreover, Federal DHHS noted that employees staffing the

13 child abuse hotline have been deployed by the shelters to handle shelter intake, resulting in even

14 longer waits and hotline calls going unanswered.

15

236. Child abuse investigations often are not completed within a reasonable time thus

16 placing children who are the subject of such reports and their siblings at tremendous risk. In

17 recent months, there have been more than 340 investigations that are still pending and unresolved

18 more than 45 days after the initial report of suspected abuse or neglect was received by Clark

19 County DFS.

20

237. In addition to inadequate investigations, Clark County DFS has also failed to make

21 reasonable efforts to ensure that families receive services that would allow children to remain

22 safely in their homes. Federal DHHS has found that “there is an inadequate array of services to

23 prevent placement by providing in-home family support services that are integrated and facilitate

24 the ability of children to remain in their own homes or return home in a timely manner.” August

25 11, 2006 Letter from Sharon M. Fujii to Defendant Willden.

26

238. Nevada’s Court Improvement Program workgroups have also identified the overall

27 lack of services as a significant problem, and identified three areas in which services are

28 particularly needed: substance abuse, mental health, and developmental delays. Courts in Nevada

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1 have begun levying fines on State and county agencies for failing to provide children and families

2 with needed court-ordered services.

3 C.
4

Defendants fail to place children in safe, appropriate, stable foster home placements and supervise and support those placements

5

239. Defendants’ over-reliance on Child Haven is fueled, in part, by their failure to

6 recruit an array of suitable foster homes to meet the needs of Nevada’s abused and neglected

7 children.

8

240. Clark County DFS also fails to follow up on foster and adoptive parent inquiries

9 from its own recruitment campaigns. A recent recruitment campaign received 1,340 inquiries,

10 but only resulted in 24 new foster homes. Many inquiries from prospective foster parents were

11 not pursued in a timely manner.

12

241. Clark County DFS has failed to devote the staff and other resources necessary to

13 recruit, train, and retain an adequate number of foster parents to meet the needs of children in

14 foster care. Clark County has only one full-time foster parent recruiter and one foster parent

15 trainer. Washoe County, with one-fourth the number of children in foster care, has three full-time

16 recruiters and three full-time trainers. Clark County DFS continues to employ the same

17 recruitment strategies from year to year with the same poor results.

18

242. Due to the shortage of foster homes, children are often placed wherever an open

19 bed exists, rather than in homes that meet their needs. Little effort is made to assess children’s

20 needs before placing them in a foster home or to match them with a foster parent who has the

21 appropriate skills or training. To make matters worse, caseworkers often fail to provide foster

22 parents with information that is crucial to ensuring foster children’s safety, health, and well-

23 being.

24

243. Some children have been placed with foster families that are taking care of more

25 children than allowed by their license permits. Clark County DFS frequently grants waivers in

26 order to place more children in the foster home than the foster parents’ license permits.

27

244. Once children are placed in foster homes, they are often all but forgotten. Foster

28 parents are not provided adequate support or training, and are frequently left to fend for

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1 themselves under challenging circumstances. This lack of support results in failed foster

2 placements and increased instability for foster children. Worsening the effects of the traumatic

3 experiences they encountered prior to entering foster care, foster children are re-traumatized by

4 frequent placement disruptions.

5

245. Caseworkers fail to make the requisite visits with children to ensure that their

6 needs are being met. Clark County DFS’s own study found that in almost two-thirds of cases,

7 case workers failed to visit their clients as required by law. Federal reviewers found that in more

8 than 40% of Clark County cases, the frequency of visits between caseworker and children was

9 insufficient to ensure adequate monitoring of the child’s safety and well-being.

10

246. The federal performance review of Nevada’s child welfare system found that only

11 31 percent of foster children in the Clark County had stable placements. Many of the children

12 experiencing multiple placements in Clark County were under five years of age. Frequent

13 changes in placement led to a lack of continuity in services, changes in schools, and an overall

14 negative impact on children’s well-being.

15

247. Federal reviewers found that chronic widespread disruptions in foster children’s

16 placements are due to a lack of supports for foster families, failure to provide foster parents with

17 sufficient information about a child prior to placement to ensure that the family is able to meet the

18 child’s needs, insufficient mental health resources for children, and a lack of an array of

19 placements to permit the matching of a child’s needs with the skills, knowledge, and abilities of

20 the foster caregiver.

21 D. 22

Defendants fail to provide abused and neglected children with timely medical care, mental health care, and educational services necessary to meet their needs

23

248. Federal and State law require Defendants to provide foster children with medical

24 assistance to meet their medical, dental, and mental health needs and to arrange and provide for

25 screening and treatment services through EPSDT. Given the neglectful and chaotic environments

26 foster youth often grow up in, it is crucial that they receive prompt assessments and medically

27 necessary services.

28

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1

249. Moreover, studies have shown that a high percentage of foster children have

2 significant mental health problems. Mental health experts agree that children with serious mental

3 health problems require an array of individualized services tailored to address their needs. Such

4 services should include professionally acceptable assessments, behavioral support and case

5 management services, family support, crisis support, wraparound services, therapeutic foster care,

6 and other mental health services, in a home-like setting.

7 250. The 2005 County Case Review found that Clark County DFS fails to assess the
8 mental health and health needs of 50% of the children in care. For those children who do receive
9 some sort of assessment, DFS fails to ensure that physical and mental health services are being
10 provided.
11 251. The 2006 Child Fatality Report also found that DFS fails to provide children and
12 families with services needed to resolve identified issues. DFS fails to complete service plans for
13 children or to document or follow-up on referrals for services.
14 252. In addition, DFS does not ensure that children with mental health needs receive
15 individualized treatment that addresses their needs. There is a severe lack of mental health
16 services such as behavioral support, psychiatric and other clinical services, case management
17 services, therapeutic foster care services provided in a home-like setting, and wraparound
18 services.
19 253. Nevada law also requires foster placements to ensure that foster children attend
20 school full-time; are provided with appropriate educational assessments and services; receive an
21 appropriate education, including special education services or training programs, as needed; and
22 are afforded an opportunity to complete schooling or training in accordance with their aptitude.
23 254. Despite these requirements, Federal DHHS has found that foster children’s
24 educational needs were being woefully neglected. DFS fails to obtain copies of school records
25 for children in foster care; fails to obtain copies of the Individualized Education Plan (IEP) for
26 children receiving special education services and to provide such information to foster parents;
27 and fails to advocate for children’s educational needs in the school system.
28

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1 E. 2

Caseworkers’ high caseloads, inadequate training, and poor supervision threaten the safety and well-being of Nevada’s abused and neglected children

3

255. A well-trained, experienced, and adequately staffed workforce is a vital

4 component of any child welfare system. When caseworkers are overwhelmed, untrained, and

5 poorly supervised, the child welfare system inevitably breaks down, resulting in reasonably

6 foreseeable harm to foster children. Unfortunately, Clark County’s system is lacking in each of

7 these important workforce areas.

8

256. High caseloads are prevalent among Clark County DFS caseworkers and are

9 among the highest in the state. In February 2005, the average caseload for DFS caseworkers was

10 1:35.

11

257. DFS staff caseloads are significantly higher than the caseload ratio required for

12 accreditation by the Council on Accreditation, which is no greater than 1:18. They also far

13 exceed the caseload ratios established by Child Welfare League of America Standards, which are

14 between 1:12 and 1:15.

15

258. As a direct result of the high caseloads of workers within Clark County DFS,

16 investigations of reports of abuse are not initiated promptly nor completed within 30 days,

17 investigations fail to comply with minimum standards required of such investigations, monthly

18 visits to foster homes are not conducted, and children are harmed or at grave risk of harm.

19

259. Caseworkers receive only minimal training prior to working with children and

20 families. As a result, they are ill-prepared to perform the duties and responsibilities assigned to

21 them and fail to exercise professional judgment when making life and death decisions for

22 children.

23

260. During the 2004 federal CFSR, federal reviewers found that many caseworkers do

24 not complete required ongoing in-service training. Although Washoe County and the rural areas

25 of the state require that workers must be licensed, Clark County does not. Even staff assigned to

26 investigate abuse reports are not licensed.

27

261. The Child Fatality Study found that DFS fails to make monthly contact with

28 children and family who have open cases and follow-up appropriately; fails to resolve problems

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1 or concerns prior to closing cases; fails to complete service or safety plans for children and

2 families; and fails to provide case workers with appropriate training.

3

262. The 2006 Child Fatality Report found that County DFS caseworkers consistently

4 fail to document critical information. Case files lacked documentation of investigative contacts,

5 family background checks, progress toward case goals, the basis for safety decisions, the nature

6 and purpose of service referrals, and contact with service providers to ascertain progress. The

7 study found that such poor documentation practices serve as a major barrier to future quality

8 assurance efforts, and could represent a critical weakness in the overall safety net.

9 F. 10

Defendants fail to ensure that abused and neglected children have a voice in court proceedings

11

263. Approximately half of all children and youth who are the subject of abuse and

12 neglect proceedings in Clark County are not represented by a guardian ad litem in those

13 proceedings.

14

264. Children who are the subject of abuse and neglect proceedings in Clark County

15 are, if provided with any representation at all, represented either by the Children’s Advocacy

16 Project (CAP) of Clark County Legal Services or Las Vegas Court Appointed Special Advocates

17 (CASA). On occasion a child may have both an attorney and CASA.

18

265. CAP employs six attorneys, each of whom represents 40 to 50 children.

19 Consequently, on average, no more than 300 out of the 3,000 children in foster care in Clark

20 County are represented by an attorney. Upon information and belief, CAP attorneys do not act as

21 guardians ad litem for the children or youth they are appointed to represent.

22

266. There are about 200 CASAs in Clark County. In 2005, they represented 480

23 children, and they reported that they had to turn away 89 children who were referred by the court.

24

267. Neither CAP nor CASA represent children at the earliest stages of the proceedings,

25 including proceedings to determine if children should be taken into or remain in initial protective

26 custody.

27

268. The lack of representation for child abuse and neglect victims in Clark County

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1

269. In January 2006, Chief Justice Rose of the Nevada Supreme Court acknowledged

2 that “[w]e need more attorneys and CASA volunteers to assist children.”

3

270. Clark County Family Court Judge Gerald Hardcastle has admitted that over half of

4 all children and youth who are the subject of abuse and neglect proceedings in Clark County

5 District Court are unrepresented in the proceedings.

6

271. During the entire time that children and youth have gone unrepresented in child

7 abuse and neglect proceedings in Clark County District Court, State DCFS has received and

8 continues to receive funds under the federal Child Abuse Prevention and Treatment Act.

9

272. The failure to provide children and youth with representation in the juvenile court

10 leads to ill-informed decisions and inhibits the court’s obligation to oversee the child’s placement,

11 care, and treatment while in foster care.

12

VIII.

13

FIRST CAUSE OF ACTION–

SUBSTANTIVE DUE PROCESS UNDER THE UNITED

14

STATES CONSTITUTION (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

15

273. Each and every allegation is incorporated herein as if fully set forth.

16

274. The foregoing actions and inactions of Defendants Willden, Serrano, Doe, Morton,

17 Valentine, County Commissioners, and Clark County constitute a failure to meet the affirmative

18 duty to protect all plaintiffs from harm, which is a substantial factor leading to, and proximate

19 cause of, the violation of the constitutionally protected liberty and privacy interests of all 20 plaintiffs, as asserted pursuant to 42 U.S.C. § 1983.4

21

275. The foregoing actions and inaction of these Defendants constitute a policy, pattern,

22 practice, and/or custom that is inconsistent with the exercise of reasonable professional judgment

23 in violation of the constitutionally protected rights and liberty and privacy interests of all

24 plaintiffs. As a result, all plaintiffs have been and are being deprived of the substantive due

25 process rights conferred upon them by the Fourteenth Amendment to the United States

26 Constitution.

27 28 4 As noted above, all individually named Defendants are being sued in their official capacities.
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1

276. These substantive due process rights include, but are not limited to: the right to

2 protection from unnecessary harm while in government custody; the right to a living environment

3 that protects foster children’s physical, mental, and emotional safety and well-being; the right to

4 services necessary to prevent foster children from deteriorating or being harmed physically,

5 developmentally, psychologically, or otherwise while in government custody, including but not

6 limited to the right to safe and secure foster care placements, appropriate monitoring and

7 supervision, appropriate planning and services directed toward ensuing that the child can leave

8 foster care and grow up in a permanent family, adequate mental, dental, psychiatric,

9 psychological, and educational services; the right to treatment and care consistent with the

10 purpose of the assumption of custody by Defendants; the right not to be retained in custody

11 longer than is necessary to accomplish the purposes to be served by taking the child into custody;

12 the right to be placed in the least restrictive placement based on the foster child’s needs; and the

13 right to receive care, treatment, and services determined and provided through the exercise of

14 accepted, reasonable professional judgment.

15

IX.

16

SECOND CAUSE OF ACTION–

SUBSTANTIVE DUE PROCESS UNDER THE UNITED STATES CONSTITUTION: 17 STATE CREATED DANGER CLAIM (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

18

277. Each and every allegation is incorporated herein as if fully set forth.

19

278. The foregoing actions and inactions of Defendants Willden, Serrano, Morton,

20 Valentine, Palma, County Commissioners, and Clark County amount to a pattern, practice, and

21 custom of failure to exercise reasonable professional judgment in violation of the constitutional

22 rights of all plaintiffs, as asserted pursuant to 42 U.S.C. § 1983. Defendants are engaging in a

23 pattern and practice of violating plaintiffs’ rights under the Due Process Clause of the United

24 States Constitution, by affirmatively moving them from safe placements and putting them in

25 placements that Defendants know or should know pose an imminent risk of harm to these

26 children, in disregard of the exercise of reasonable professional judgment. By doing so,

27 Defendants greatly increase the danger to plaintiffs.

28

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1

X.

2

THIRD CAUSE OF ACTION–

PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO

3 THE UNITED STATES CONSTITUTION (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

4

279. Each and every allegation is incorporated herein as if fully set forth.

5

280. The foregoing actions and inactions of Defendants Willden, Serrano, Doe, Morton,

6 Valentine, County Commissioners, and Clark County constitute a failure to exercise an

7 affirmative duty to protect the welfare of all plaintiffs, which is a substantial factor leading to, and

8 proximate cause of, the violation of the constitutionally protected liberty and privacy interests of

9 all plaintiffs, as asserted pursuant to 42 U.S.C. § 1983.

10

281. The foregoing actions and inactions of these Defendants constitute a policy,

11 pattern, practice and/or custom that is inconsistent with the exercise of reasonable professional

12 judgment and violates the constitutionally protected rights and liberty and privacy interests of all

13 plaintiffs. As a result, all plaintiffs are being deprived of federally created and state-created

14 liberty or property rights without due process of law. The state law entitlements to which

15 children have a constitutionally protected interest include the following:

16

(a) The entitlements arising from Nev. Rev. Stat. Ann. §§ 432B.500 and

17

432B.505, requiring that plaintiffs be appointed a guardian ad litem who

18

must appear at all proceedings before the court and perform specific duties,

19

including representing and protecting the best interests of the child;

20

(b) The entitlements arising from Nev. Rev. Stat. Ann. § 432B.260, requiring

21

Clark County DFS to initiate child welfare investigations promptly upon

22

receipt of a report of possible abuse or neglect of a child;

23

(c) The entitlements arising from Nev. Admin. Code Ann. §§ 424.160 and

24

424.805, requiring Clark County DFS to ensure that the number of children

25

placed in a particular foster home does not exceed established levels; to

26

respond in a timely manner to foster parents’ requests for assistance in

27

meeting their foster child’s needs; to assist foster parents in developing

28

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1

their capabilities to meet their foster child’s needs; and to provide a

2

program of respite care to foster parents;

3

(d) The entitlements arising from Nev. Admin. Code Ann. § 432B.405 and

4

Nev. Admin. Code Ann. § 424.565, requiring Clark County DFS to ensure

5

that foster children receive necessary care and services for their mental and

6

emotional health, and receive visits no less than once a month from a

7

caseworker;

8

(e) The entitlements arising from Nev. Admin. Code. Ann. §§ 432B.185 and

9

432B.405, requiring Clark County DFS to assess plaintiffs’ safety before

10

returning them to the custody of their parents, using input from persons

11

directly involved with the case;

12

(f) The entitlements arising from Nev. Rev. Stat. Ann. § 432A.131 and Las

13

Vegas Mun. Code § 6.24.050, requiring that child care facilities must be

14

licensed prior to placement of plaintiffs in such facilities;

15

(g) The entitlements arising from Nev. Admin. Code Ann. § 432B.340,

16

requiring residential institutions to provide the resources needed to prevent

17

foreseeable harm to children;

18

(h) The entitlements arising from Nev. Admin. Code Ann. § 424.530 to be free

19

from physical and emotional abuse while in a foster home; and

20

(i) The entitlements arising from Nev. Rev. Stat. Ann. § 127.330, requiring

21

that placements of plaintiffs with a person who resides outside of the State

22

must follow certain procedures and criteria.

23

XI.

24

FOURTH CAUSE OF ACTION–

FEDERAL ADOPTION ASSISTANCE ACT

25

(ASSERTED PURSUANT TO 42 U.S.C. § 1983)

26

282. Each and every allegation is incorporated herein as if fully set forth.

27

283. The foregoing actions and omissions of Defendants Willden, Serrano, Morton,

28 Valentine, County Commissioners, and Clark County amount to a policy, pattern, and/or practice

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1 of depriving all plaintiffs of rights conferred on them by the federal Adoption Assistance and

2 Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997

3 (collectively the “Adoption Assistance Act”) and the regulations promulgated under the Act, 45

4 C.F.R. Parts 1355-1357, as asserted pursuant to 42 U.S.C. § 1983. These rights granted to

5 individual foster children include, but are not limited to:

6

(a) The right to placement in foster homes or other settings that conform to

7

national professional standards and are subject to a uniformly applied set of

8

standards. 42 U.S.C. § 671(a)(10).

9

(b) The right to quality services that protect foster children’s safety and health.

10

42 U.S.C. § 671(a)(22).

11

(c) The right of each child to have a written case plan, containing specified

12

elements, the right to have services provided in accordance with that plan,

13

and the right to have the status of her case reviewed no less than every six

14

months in order to determine, among other things, the safety of the child

15

and the extent of compliance with the case plan. 42 U.S.C. §§ 671(a)(16),

16

675(1), 675(5)(B).

17

(d) The right to placement in a safe setting that is the least restrictive and most

18

family like setting, consistent with the best interest and special needs of the

19

child. 42 U.S.C. §§ 622(b)(10)(B)(ii), 675(5)(A).

20

(e) The right to have health and educational records reviewed, updated, and a

21

copy supplied to foster parents or foster care providers with whom the

22

child is placed at the time of placement. 42 U.S.C. §§ 622(b)(10)(B)(ii),

23

675(5)(D).

24

(f) The right to have the foster parents and any pre-adoptive parent or relative

25

providing care to the child present at any proceeding held with respect to

26

the child as a matter of right. 42 U.S.C. §§ 622(b)(10)(B)(ii), 675(5)(G).

27

(g) All other rights created by 42 U.S.C. §§ 622(b)(10)(B)(ii) and 675(5).

28

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1

XII.

2

FIFTH CAUSE OF ACTION–

VIOLATION OF RIGHT TO GUARDIAN AD LITEM PURSUANT TO CHILD ABUSE

3 PREVENTION AND TREATMENT ACT (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

4

284. Each and every allegation is incorporated herein as if fully set forth.

5

285. As a result of the foregoing actions and inactions of Defendants Willden, Serrano,

6 Morton, Valentine, County Commissioners, and Clark County, plaintiffs have been deprived of

7 their right to a guardian ad litem in all proceedings before the juvenile court in violation of 42

8 U.S.C. § 5106a(b)(2)(A)(xiii), as asserted pursuant to 42 U.S.C. § 1983, causing serious injury

9 and harm.

10

XIII.

11

SIXTH CAUSE OF ACTION–

EARLY PERIODIC SCREENING, DIAGNOSIS AND

12

TREATMENT PROGRAM (“EPSDT”) OF THE MEDICAID ACT

(42 U.S.C. 1396 ET SEQ.) (ASSERTED PURSUANT TO 42 U.S.C. § 1983)

13 286. Each and every allegation is incorporated herein as if fully set forth.

14 287. By their actions described herein, Defendants Willden, Serrano, Morton,

15 Valentine, County Commissioners, and Clark County have failed and continue to fail to provide

16 medical assistance as required under 42 U.S.C.§ 1396a(a)(10)(A). Defendants Willden, Serrano,

17 Morton, Valentine, County Commissioners, and Clark County have also failed to provide or

18 arrange for necessary EPSDT services for plaintiffs, which are required to treat or ameliorate their

19 mental or physical conditions, in violation of 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43),

20 1396d(a)(4)(B), and 1396d(r).

21 288. By their violation of Title XIX of the Social Security Act, Defendants, acting

22 under color of state law, have denied plaintiffs their rights, privileges, and immunities secured by

23 the laws of the United States.

24

XIV.

25

SEVENTH CAUSE OF ACTION–

26

PROCEDURAL DUE PROCESS CLAIM UNDER THE NEVADA CONSTITUTION

27

289. Each and every allegation is incorporated herein as if fully set forth.

28

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1

290. The foregoing actions and inactions of Defendants amount to a pattern, practice,

2 and custom of failure to exercise reasonable professional judgment in violation of the

3 constitutional procedural due process rights of plaintiffs, and are the cause of the violation of such

4 rights. Plaintiffs have been and are being harmed and deprived of their state-created liberty or

5 property rights without due process of law.

6

291. Defendants’ actions and inactions have resulted and are continuing to result in

7 deprivations of the following state law entitlements to which plaintiffs have a constitutionally

8 protected interest:

9

(a) The entitlements arising from Nev. Rev. Stat. Ann. §§ 432B.500 and

10

432B.505, requiring that plaintiffs be appointed a guardian ad litem who

11

must appear at all proceedings before the court and perform specific duties,

12

including representing and protecting the best interests of the child;

13

(b) The entitlements arising from Nev. Rev. Stat. Ann. § 432B.260, requiring

14

Clark County DFS to initiate child welfare investigations promptly upon

15

receipt of a report of possible abuse or neglect of a child;

16

(c) The entitlements arising from Nev. Admin. Code Ann. §§ 424.160 and

17

424.805, requiring Clark County DFS to ensure that the number of children

18

placed in a particular foster home does not exceed established levels; to

19

respond in a timely manner to foster parents’ requests for assistance in

20

meeting their foster child’s needs; to assist foster parents in developing

21

their capabilities to meet their foster child’s needs; and to provide a

22

program of respite care to foster parents;

23

(d) The entitlements arising from Nev. Admin. Code Ann. § 432B.405 and

24

Nev. Admin. Code Ann. § 424.565, requiring Clark County DFS to ensure

25

that foster children receive necessary care and services for their mental and

26

emotional health, and receive visits no less than once a month from a

27

caseworker;

28

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1

(e) The entitlements arising from Nev. Admin. Code. Ann. §§ 432B.185 and

2

432B.405, requiring Clark County DFS to assess plaintiffs’ safety before

3

returning them to the custody of their parents, using input from persons

4

directly involved with the case;

5

(f) The entitlements arising from Nev. Rev. Stat. Ann. §§ 432A.040;

6

432A.070; 432A.131; 432A.210, Nev. Admin. Code §§ 432A.170;

7

432A.180 and Las Vegas Mun. Code § 6.24.050, requiring that state,

8

county, and local agencies ensure that child care facilities are licensed prior

9

to placement of children in such facilities;

10

(g) The entitlements arising from Nev. Admin. Code Ann. § 432B.340,

11

requiring residential institutions to provide the resources needed to prevent

12

foreseeable harm to children;

13

(h) The entitlements arising from Nev. Admin. Code Ann. § 424.530 to be free

14

from physical and emotional abuse while in a foster home; and

15

(i) The entitlements arising from Nev. Rev. Stat. Ann. § 127.330, requiring

16

that placements of plaintiffs with a person who resides outside of the State

17

must follow certain procedures and criteria.

18

XV.

19

EIGHTH CAUSE OF ACTION–

SUBSTANTIVE DUE PROCESS CLAIM UNDER THE NEVADA CONSTITUTION 20

21

292. Each and every allegation is incorporated herein as if fully set forth.

22

293. The foregoing actions and inactions of Defendants constitute a failure to exercise

23 an affirmative duty to protect the welfare of all plaintiffs, which is a substantial factor leading to,

24 and proximate cause of the violation of the constitutionally protected liberty and privacy interests

25 of plaintiffs. The foregoing actions and inactions of these Defendants constitute a policy, pattern,

26 practice and/or custom that is inconsistent with the exercise of reasonable professional judgment

27 and violates the constitutionally protected rights and liberty and privacy interests of all plaintiffs.

28

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1 As a result, plaintiffs have been and are being deprived of the substantive due process rights

2 conferred upon them by Art. 1, § 8(5) of the Nevada Constitution.

3

294. These substantive due process rights include, but are not limited to: the right to

4 protection of their person from unnecessary harm while in government custody; the right to a

5 living environment that protects foster children’s physical, mental, emotional safety, and well-

6 being; the right to services necessary to prevent foster children from deteriorating or being

7 harmed physically, psychologically, otherwise while in government custody; the right not to be

8 deprived of liberty by retention in government custody or locked detention facilities beyond

9 necessity; the right to treatment and care consistent with the purpose of the assumption of custody

10 by Defendants; the right not to be retained in custody longer than necessary to accomplish the

11 purposes to be served by taking the child into custody; and the right to receive care, treatment,

12 and services determined and provided through the exercise of accepted, reasonable professional

13 judgment.

14

XVI.

15

NINTH CAUSE OF ACTION–

NEGLIGENCE 16

295. Each and every allegation is incorporated herein as if fully set forth.

17

296. The foregoing actions and inactions of Defendants Clark County and Morton

18

amount to a pattern, practice, and custom of failure to exercise reasonable professional judgment

19

in violation of Nevada child welfare statutes, as follows:

20

(a) Nev. Rev. Stat. Ann. § 432B.260, requiring Clark County DFS to initiate

21

child welfare investigations promptly upon receipt of a report of possible

22

abuse or neglect of a child;

23

(b) Nev. Admin. Code Ann. §§ 424.160 and 424.805, requiring Clark County

24

DFS to ensure that the number of children placed in a particular foster

25

home does not exceed established levels; to respond in a timely manner to

26

foster parents’ requests for assistance in meeting their foster child’s needs;

27

28

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1

to assist foster parents in developing their capabilities to meet their foster

2

child’s needs; and to provide a program of respite care to foster parents;

3

(c) Nev. Admin. Code Ann. § 432B.405 and Nev. Admin. Code Ann.

4

§ 424.565, requiring Clark County DFS to ensure that foster children

5

receive necessary care and services for their mental and emotional health,

6

and receive visits no less than once a month from a caseworker;

7

(d) Nev. Admin. Code. Ann. §§ 432B.185 and 432B.405, requiring Clark

8

County DFS to assess plaintiffs’ safety before returning them to the

9

custody of their parents, using input from persons directly involved with

10

the case;

11

(e) Nev. Admin. Code Ann. § 432B.340, requiring residential institutions to

12

provide the resources needed to prevent foreseeable harm to children; and

13

(f) Nev. Rev. Stat. Ann. § 127.330, requiring defendants to follow established

14

procedures and criteria when placing plaintiffs with a person who resides

15

outside of the state.

16

297. As evidenced by their failure to comply with these laws, these Defendants have

17 breached their legal duties to plaintiffs. Plaintiffs belong to the class of persons that the

18 provisions were intended to protect, and the injuries plaintiffs suffered are of the type the

19 provisions were intended to prevent. Defendants’ negligence has caused harm to plaintiffs.

20

XVII.

21

TENTH CAUSE OF ACTION–

BREACH OF STATE PLANS 22

298. Each and every allegation is incorporated herein as if fully set forth.

23

299. Under Titles IV-B, IV-E, and XIX of the Social Security Act, states receive certain

24

federal reimbursements so long as they enter into plans approved by Federal DHHS and comply

25

with their terms. The State of Nevada receives federal funding under Titles IV-B, IV-E, and XIX

26

of the Social Security Act and has submitted such plans, which are legal contracts between the

27

federal government and the state. In these State Plan contracts, the state agrees to provide child

28

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SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 142 Filed 06/14/07 Page 71 of 73

1 welfare, foster care, adoption, and health services to plaintiffs in accordance with specific statutes

2 and policies and all applicable federal regulations and other official issuances of Federal DHHS.

3

300. As a result of the foregoing actions and inactions of Defendants Willden, Serrano,

4 Morton, Valentine, County Commissioners, and Clark County, these defendants have breached

5 and continue to breach their obligations under the State Plan contracts. Plaintiffs, as intended

6 third party beneficiaries to the Nevada State Plan contracts, are being denied their rights to the

7 services and benefits that the State of Nevada is obligated to provide to them under such

8 contracts, and are harmed thereby.

9

XVIII.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiffs respectfully request that this Court:

12

a) Assert jurisdiction over this action;

13

b) Order that plaintiffs may maintain this action as a class action pursuant to Rule

14 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure;

15

c) Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of

16 Civil Procedure Defendants’ violations of plaintiffs’ rights.

17

d) Preliminarily and permanently enjoin Defendants from subjecting plaintiffs to

18 practices that violate their rights.

19

e) Order appropriate remedial relief to ensure Defendants’ future compliance with

20 their legal obligations to plaintiffs and retain jurisdiction of this matter to ensure full, adequate,

21 and effective implementation of the relief ordered by this Court;

22

f) Award to the plaintiffs the reasonable costs and expenses incurred in the

23 prosecution of this action, including but not limited to reasonable fees and costs pursuant to 42

24 U.S.C. §§ 1988 and 1920 and Fed. R. Civ. P. 23(h); and

25

26

27

28

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SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 142 Filed 06/14/07 Page 72 of 73

1

g) Grant such further equitable relief as the court deems just, necessary, and proper to

2 protect the plaintiffs from further harm by Defendants.

3

DATED this 14th day of June, 2007.

4 WOLFENZON SCHULMAN 5

NATIONAL CENTER FOR YOUTH LAW

6 BRUNO WOLFENZON, ESQ.
7 Nevada Bar No. 6177 GREGORY M. SCHULMAN, ESQ.
8 Nevada Bar No. 5766 4530 South Eastern Avenue, Suite 9
9 Las Vegas, NV 89119 (702) 836-3138
10 (702) 836-3139 fax no. Co-attorneys for Plaintiffs
11 CLARK K., JALEN A., SIA A., ROSHAUN A., CALEB A., KING A., TONI B.,
12 SUMMER B., FRANK B., and DONNA C.
13
14 FARELLA BRAUN & MARTEL LLP
15

WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 – 14th Street, 15th Floor Oakland, CA 94612 (510) 835-8098 (510) 835-8099 fax no. Co-attorneys for Plaintiffs CLARK K., JALEN A., SIA A., ROSHAUN A., CALEB A., KING A., TONI B., SUMMER B., FRANK B., and DONNA C.

16

/s/ Katina Ancar

KATINA ANCAR, ESQ. 17 SONYA SANCHEZ, ESQ.

California Bar No. 207950 18 Co-attorneys for Plaintiffs

CLARK K., JALEN A., SIA A., ROSHAUN 19 A., CALEB A., KING A., TONI B.,

SUMMER B., FRANK B., and DONNA C. 20

21

22

23

24

25

26

27

28

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SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

Case 2:06-cv-01068-RCJ-RJJ Document 142 Filed 06/14/07 Page 73 of 73

1

CERTIFICATE OF SERVICE

2

I, Greg George, hereby certify that I am an employee of Farella Braun + Martell LLP and

3 that on June 14, 2007, I served the following:

4

SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

5 On the parties by filing a true copy thereof with the Clerk of the Court using the CM/ECF system

6 to be served upon all parties using the CM/ECF system addressed to:

7

Bruno Wolfenzon, Esq.

Gregory M. Schulman, Esq.

8

WOLFENSZON SCHULMAN

4530 S. Easton Avenue, #9

9

Las Vegas, NV 89119

Attorneys for Plaintiff 10

William Grimm, Esq.

11

Leecia Welch, Esq.

Bryn Martyna, Esq.

12

NATIONAL CENTER FOR YOUTH LAW

405 14th Street, 15th Floor

13

Oakland, CA 94612

Co-Attorneys for Plaintiffs 14

GEORGE J. CHANOS

15

Attorney General

LINDA ANDERSON

16

Senior Deputy Attorney General

555 E. Washington Ave., Suite 3900

17

Las Vegas, NV 89101

Attorneys for State Defendants Willden, Serrano, Hawkins 18

Gloria J. Sturman, Esq.

19

Margaret Foley, Esq.

WILSON ELSER

20

415 S. Sixth Street, Suite 300

Las Vegas, NV 89101

21

Attorney for CLARK COUNTY Defendants

22

CATHERINE CORTEZ MASTO

Nevada Attorney General

23

MARTINA GEINZER

Deputy Attorney General

24

555 E. Washington Avenue, Suite 3900

Las Vegas, NV 89101

25

Attorneys for Defendant Governor KENNY GUINN

26

/s/ Greg George

27

Greg George

Employee of Farella Braun + Martell LLP 28

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SECOND AMENDED COMPLAINT (CLASS ACTION ALLEGED)

 
 Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 1 of 10

1

2

3

4 UNITED STATES DISTRICT COURT
5 DISTRICT OF NEVADA
6

7 CLARK K., et al.,

8

Plaintiffs,

9

vs.

10 MICHAEL WILLDEN, et al.,

11

Defendants.

12

)

)

2:06-CV-1068-RCJ-RJJ

)

)

)

ORDER

)

)

)

)

)

13 This matter comes before the Court on Defendants Michael Willden, Fernando Serrano,
14 and John Doe’s (collectively “State Defendants”) Motion to Partially Dismiss Amended
15 Complaint. (#136.) Defendants Clark County, Virginia Valentine, Tom Morton, Louis Palma,
16 Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson Gates, Myrna Williams,
17 Lynette Boggs McDonald, and Rory Reid (collectively “County Defendants”) have also filed a
18 limited Motion for Joinder (#140) as to Plaintiffs’ due process claim based on the Interstate
19 Compact on the Placement of Children, and Plaintiffs’ claim for breach of contract. The Court
20 has considered the Motions, the pleadings on file, and oral argument on behalf of all parties and
21 hereby issues the following Order.
22

23

24

25

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 2 of 10

1

BACKGROUND

2

In August 2006, Plaintiffs1 filed suit on behalf of themselves and “all abused and

3 neglected children who are in, or at risk of entering, the Clark County foster care system.” (#57-

4 1 at 6.) Plaintiffs originally filed this civil action under 42 U.S.C. § 1983 against Kenny C.

5 Guinn, as Nevada Governor, Michael Willden (Director of Nevada Health and Human Services),

6 Fernando Serrano (Administrator of the Nevada Division of Child and Family Services), John

7 Doe (Bureau Chief of the Bureau of Services for Child Care of the Division of Child and Family

8 Services), Virginia Valentine (Clark County Manager), Clark County Department of Family

9 Services, Tom Morton (Director of Clark County Department of Family Services), Louis Palma

10 (Manager of Shelter Care for the Clark County Department of Family Services), County

11 Commissioners Bruce L. Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson Gates,

12 Myrna Williams, Lynette Boggs McDonald, and Rory Reid, and finally Clark County itself. In

13 their Complaint, Plaintiffs seek declaratory and injunctive relief relating to the operation of

14 Nevada’s and Clark County’s foster care system.

15

On May 14, 2007, this Court issued a lengthy order in which it dismissed the Governor

16 completely from this action. The Court further dismissed some of Plaintiff’s claims for failure

17 to state a claim. The remaining Defendants have now filed their Motion to Partially Dismiss

18 Plaintiffs’ Amended Complaint for failure to state a claim.

19

20

21

22
1 Plaintiffs proceed under fictitious names pursuant to Federal Rule of Civil Procedure 10(a). The named Plaintiffs
include Clark K. (by his next friend Sherry Anderson), Jalen, Sia, Roshaun, Caleb, and King A. (collectively the “A
23
Plaintiffs”) (by their next friend Tarrah Logan), Toni Summer and Frank B. (collectively the “B Plaintiffs”) (by their
next friend Marilyn Paikai), and Donna C. (by her next friend Jacquelyn Romero).
24

25

Page 2 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 3 of 10

1

DISCUSSION

2 I. Defendants’ Motion to Dismiss

3

Defendants ask the Court to dismiss Plaintiffs’ third (§1983 action based on

4 procedural due process), seventh (procedural due process violation based on the Nevada

5 Constitution), and tenth (breach of contract) causes of action. Defendants argue that

6 Plaintiffs have failed to state valid claims under these causes of action. Specifically,

7 Defendants argue that Plaintiffs substantive due process claims fail because Plaintiffs cannot

8 demonstrate a valid state created liberty interest, and even if they could, the law already

9 provides sufficient due process to address Plaintiffs’ complaints. Plaintiffs ask the Court to

10 deny Defendants’ Motion because it is not properly before the Court, and because Plaintiffs

11 have stated claims upon which the Court may grant relief.

12

A. Standard of Review

13

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissal is appropriate if

14 the plaintiff “fail[s] to state a claim upon which relief can be granted.” Dismissal for failure to

15 state a claim under Rule 12(b)(6) is proper only if it is beyond doubt the plaintiff can prove no

16 set of facts in support of the claim that would entitle the plaintiff to relief. Williamson v. Gen.

17 Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). The review is limited to the complaint,

18 and all allegations of material fact are taken as true and viewed in the light most favorable to the

19 plaintiff. In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996). Although courts

20 assume the factual allegations to be true, courts should not “assume the truth of legal conclusions

21 merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643

22 F.2d 618, 624 (9th Cir. 1981).

23

On a motion to dismiss, the court “presumes that general allegations embrace those

24 specific facts that are necessary to support the claim.” Lujan v. Nat’l Wildlife Fed'n, 497 U.S.

25

Page 3 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 4 of 10

1 871, 889 (1990). However, conclusory allegations and unwarranted inferences are insufficient

2 to defeat a motion to dismiss under Rule 12(b)(6). In re Stac Elecs., 89 F.3d at 1403. If either

3 party submits materials outside of the pleadings in support or in opposition to the motion to

4 dismiss, and the district court relies on these materials, the motion may be treated as one for

5 summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

6

B. Plaintiffs’ Estoppel Argument

7

Plaintiffs first contend that Defendants’ latest Motion to Dismiss fails to address any new

8 issues of fact or law, and thus the Court should deny the Motion pursuant to Federal Rule of

9 Civil Procedure 12(g). Rule 12(g) states:

10

If a party makes a motion under this rule but omits therefrom any defense or

objection then available to the party which this rule permits to be raised by

11

motion, the party shall not thereafter make a motion based on the defense or

objection so omitted, except a motion as provided in subdivision (h)(2) hereof on

12

any of the grounds there stated.

13 Rule 12(h)(2), in turn, states:

14

A defense of failure to state a claim upon which relief can be granted, a defense

of failure to join a party indispensable under Rule 19, and an objection of failure

15

to state a legal defense to a claim may be made in any pleading permitted or

ordered under Rule 7(a) [governing answers and counterclaims], or by motion for

16

judgment on the pleadings, or at the trial on the merits.

17

Therefore, a party who makes a motion under Rule 12 is precluded from raising a similar

18 objection omitted in the first motion unless the motion is based upon a ground set forth in

19 Federal Rule of Civil Procedure 12(h)(2). Rule 12(h)(2) includes a motion to dismiss for failure

20 to state a claim. See Fed.R.Civ.P. 12(h)(2). Accordingly, Defendants’ Motion to Dismiss is

21 properly before the court. Moreover, there is no appearance of bad faith on part of Defendants.

22 Accordingly, the Court rejects Plaintiffs’ estoppel argument.

23

24

25

Page 4 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 5 of 10

1

C. Counts Three and Seven—Plaintiffs’ § 1983 Procedural Due Process Claim

2

Plaintiffs allege that their federal and state constitutional due process rights were violated

3 when Defendants failed to enforce various Nevada statutes providing for Plaintiffs’ welfare. For

4 the reasons stated below, the Court rejects Plaintiffs’ claims and grants Defendants’ Motion to

5 Dismiss.

6

To prevail on a § 1983 claim based on a procedural due process violation, a plaintiff must

7 establish the following: (1) a constitutionally protected liberty or property interest; (2) a

8 deprivation of that interest by the government; and (3) the lack of process. Portman v. County

9 of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Only if Plaintiffs demonstrate the existence

10 of all three elements may the Court entertain their claim.

11

1. Constitutionally Protected Interest

12

The Court begins its analysis by examining whether Plaintiffs have any protected

13 interests. Only if the Court finds a constitutionally protected interest must it ask whether the

14 alleged deprivation was accompanied by appropriate due process. Ky. Dep’t of Corrs. v.

15 Thompson, 490 U.S. 454, 460 (1989). The Supreme Court has specifically declined to address

16 whether state child welfare statutes give children an entitlement to protective services “which

17 would enjoy due process protection against state deprivation . . . .” DeShaney v. Winnebago

18 County Dep’t of Social Servs., 489 U.S. 189, 195 n.2 (1989). Further, as both Defendants and

19 Plaintiffs recognize, the Ninth Circuit has not addressed this issue.

20

Although the Ninth Circuit has not specifically addressed the issue, it has held that a state

21 law must satisfy two requirements in order to create a liberty interest protected by the

22 Constitution. “First, the law must set forth substantive predicates to govern official decision

23 making and, second, it must contain explicitly mandatory language, i.e., a specific directive to

24 the decision maker that mandates a particular outcome if the substantive predicates have been

25

Page 5 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 6 of 10

1 met.” Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002) (internal citations and

2 quotations omitted). The Supreme Court also has stated that a “‘state creates a protected liberty

3 interest by placing substantive limitations on official discretion.’” Campbell v. Burt, 141 F.3d

4 927, 930 (9th Cir. 1998) (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). A state

5 substantively limits official discretion “by establishing ‘substantive predicates’ to govern official

6 decision making . . . and, further by mandating the outcome to be reached upon a finding that the

7 relevant criteria have been met.” Ky. Dep’t of Corrs., 490 U.S. at 462. Further, the Court cannot

8 elevate a state-mandated procedure to a constitutionally protected interest solely because the state

9 procedure is couched in mandatory terms, since obligatory governmental actions can serve

10 various legitimate ends other than conferring a constitutionally protected interest upon an

11 individual. See Olim, 461 U.S. at 250-51; see also Town of Castle Rock v. Gonzales, 545 U.S.

12 748, 764-65 (2005).

13

The statutes and regulations at issue in this case do not confer constitutionally protected

14 interests on the Plaintiffs. While the provisions at issue, which deal with appointment of a

15 guardian ad litem, child abuse investigation, placement of and services to foster children, foster

16 care licensing, child care facility licensing, and the Interstate Compact on the Placement of

17 Children, set forth the requirements that state and local officials must undertake, they do not,

18 standing alone, create independent substantive entitlements whose deprivation would trigger the

19 Due Process Clause. See Sealed v. Sealed, 332 F.3d 51, 57 (2nd Cir. 2003); see also Doe v.

20 D.C., 93 F.3d 861, 867-68 (D.C. Cir. 1996) (finding that the codification of procedures for child

21 abuse and neglect reports did not indicate that the agencies responsible for carrying out the

22 statutorily created procedural rights assumed constitutional obligations to protect children from

23 abuse); Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 392 (4th Cir. 1990); Charlie H. v. Whitman,

24 83 F. Supp. 2d 476, 509-13 (D. N.J. 2000) (rejecting similar due process claims). While some

25

Page 6 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 7 of 10

1 of the statutory provisions at issue use mandatory language such as “shall”, these provisions do

2 not set forth substantive predicates to govern official decision making or mandate the outcome

3 to be reached upon a finding that the relevant criteria have been met—requirements that must

4 be met to establish a protected interest. See Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir.

5 2002); Ky. Dep’t of Corrs., 490 U.S. at 461-63. Moreover, Plaintiffs have admitted that many

6 of the statutes at issue do not even apply to the State Defendants. For example, Nev. Admin.

7 Code § 432B.405, which requires an assessment of foster children’s safety before returning them

8 to their parents’ custody, applies to the Clark County Department of Child and family Services,

9 not the State Defendants.

10

Simply put, while some of the statutes to which Plaintiffs look contain mandatory words

11 such as must or shall, these provisions do not give rise to constitutionally protected interests.

12 These provisions neither limit Defendants’ discretion nor provide the outcome to be reached

13 upon a finding of a violation. Moreover, even if the Court were to find a constitutionally

14 protected interest, Plaintiffs fail to allege that the process already provided by the state court

15 system is insufficient. Likewise, Plaintiffs fail to provide or allege what additional process

16 should be afforded Plaintiffs. For the reasons stated above and at oral argument, the Court grants

17 State Defendants’ Motion to Dismiss as it relates to Plaintiffs’ procedural due process claims in

18 counts three and seven.

19

D. Breach of Contract

20

Plaintiffs also assert a breach of contract claim for breach of the state Plans. Under the

21 Adoption and Assistance and Child Welfare Act (the “Act”), a state may obtain federal funding

22 provided it complies with certain federal guidelines as set out in the Act. If a state chooses to

23 seek federal funding, it must obtain federal approval of its plan. Plaintiffs assert that as a result

24 of Defendants’ actions and inactions, Plaintiffs, as third-party beneficiaries to the Adoption

25

Page 7 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 8 of 10

1 Assistance Act and other federal regulations under which they bring their federal claims, are

2 being denied their rights under the federal common law to the services and benefits that Nevada

3 is contractually obligated to provide. Defendants contend first that these plans are not contracts

4 and, even if they were, Plaintiffs are not intended third-party beneficiaries. Plaintiffs also claim

5 that the Court may not entertain this request to dismiss because the Court previously refused to

6 dismiss the claim and indicated it could be heard at summary judgment.

7

1. Prior Order

8

First, Plaintiffs argue that Defendants’ Motion is improper because the Court has already

9 considered Defendants’ arguments, and because Defendants failed to move for dismissal in their

10 prior Motion to Dismiss. As discussed above, Defendants are not barred from filing another

11 Motion to Dismiss for failure to state a claim. In addition, the Court never ruled on this issue.

12 In its prior Order, the Court simply said it could not make any decision on Plaintiffs’ claim for

13 breach of contract because Plaintiffs failed to include or discuss the actual contract the Court was

14 to consider. Plaintiffs subsequently amended their Complaint and provided the detail and the

15 alleged contract to this Court. Thus, the Court now considers Defendants’ argument.

16

2. Valid Contract?

17

Plaintiffs have failed to provide any support for the proposition that Nevada’s state plan

18 formulated under the Adoption Assistance Act or CAPTA, and approved by the Secretary of

19 Health and Human Services pursuant to the federal statutes, constitutes a contract. This question

20 is an issue of first impression in the Ninth Circuit. Only one other federal court has considered

21 whether state plans promulgated to comply with the federal statutes at issue in this case

22 constitute a valid contract. See Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D. N.J. 2000). In

23 Charlie H., the court held that state plans such as those at issue in this case did not constitute a

24 binding contract. The Court noted that the plaintiffs could not demonstrate the state of New

25

Page 8 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 9 of 10

1 Jersey could be sued by any entity for New Jersey’s alleged failure to comply with its

2 “contractual” obligations. Here, Plaintiffs also fail to provide similar evidence or allegation. For

3 example, the other party to this alleged contract is the United States. The federal statutes

4 governing this relationship do not indicate that the United States may sue Nevada for failing to

5 abide by the federal statutes. If Nevada fails to comply, it simply loses federal funding. Thus,

6 Nevada’s obligations under the state plans are voluntary. Moreover, many of the breaches for

7 which Plaintiffs seek relief are based on alleged contractual obligations stemming from statutory

8 provisions for which this Court has already held that Plaintiffs have no private cause of action.

9 Thus, Plaintiffs are attempting to circumvent this Court’s prior Order by seeking relief, for

10 breach of contract, under statutory provisions for which no private cause of action is provided.

11

Plaintiffs cite several cases to support their view that they are third-party beneficiaries

12 under the state plans. Indeed, while Plaintiffs provide ample support to show they may be third-

13 party beneficiaries, they fail to provide any case establishing a contract in the first place. As both

14 parties note in their pleadings, the cases submitted by Plaintiffs do not deal with the statutes at

15 issue. The only federal case addressing these federal statutes, although not binding on this Court,

16 refused to find a contract. This Court has already ruled that Plaintiffs may seek a private cause

17 of action on many of these alleged statutory violations, as delineated in its prior order. The Court

18 has also dismissed many of Plaintiffs’ claims for lack of a private cause of action. Plaintiffs may

19 not seek double recovery or circumvent this Court’s prior rulings by an action for breach of

20 contract. The Court therefore grants Defendants’ request to dismiss Plaintiffs’ tenth cause of

21 action for breach of contract.

22

CONCLUSION

23

For the reasons stated above and at oral argument, the Court grants State Defendants’

24 Motion to Partially Dismiss Amended Complaint. The Court further grants County

25

Page 9 of 10

Case 2:06-cv-01068-RCJ-RJJ Document 161 Filed 09/04/07 Page 10 of 10

1 Defendants’ Motion for Joinder. Accordingly, IT IS HEREBY ORDERED that State

2 Defendants’ Motion to Partially Dismiss Amended Complaint (#136) is granted. IT IS

3 FURTHER ORDERED that County Defendants’ Motion for Joinder (#140) is granted.

4

DATED: September 4, 2007

5

6

ROBERT C. JONES

UNITED STATES DISTRICT JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 10 of 10

 
 Case 2:06-cv-01068-RCJ-RJJ Document 186 Filed 03/12/08 Page 1 of 6

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

* * *

8

CLARK K., by his next friend Sherry

)

9 Anderson; JALEN, SIA, ROSHAUN,

)

CALEB, and KING A., by their next friend )

10 Tarrah Logan; TONI, SUMMER, and

)

FRANK B., by their next friend Marilyn )

11 Paikai; and DONNA C., by her next friend )

Jacquelyn Romero,

)

12

)

Plaintiffs,

)

13

)

vs.

)

14

)

)

15 MICHAEL WILLDEN, Director of the )

Nevada DHHS; FERNANDO SERRANO, )

16 Administrator of the Nevada Division of )

Child and Family Services; JOHN DOE, )

17 Bureau Chief of the Bureau of Services for )

Child Care of the Division of Child and )

18 Family Services; VIRGINIA VALENTINE, )

Clark County Manager; CLARK COUNTY )

19 DEPARTMENT OF FAMILY SERVICES; )

TOM MORTON, Director of Clark County )

20 Department of Family Services; LOUIS )

PALMA, Manager of Shelter Care for the )

21 Clark County Department of Family

)

Services; BRUCE L. WOODBURY, TOM )

22 COLLINS, CHIP MAXFIELD, YVONEE )

ATKINSON GATES, MYRNA WILLIAMS)

23 LYNNETTE BOGGS MCDONALD and )

RORY REID, Clark County Commissioners;)

24 and CLARK COUNTY,

)

)

25

Defendants.

)

2:06-cv-01068-RCJ-RJJ ORDER

26

This matter was referred to the undersigned Magistrate Judge on Plaintiffs’ Motion for

27 Entry of Protective Order (#119) and Defendants’ Renewed Motion for Protection from

28 Disclosure of Confidential Information (#120). The Court, has considered the Motions (#119)

Case 2:06-cv-01068-RCJ-RJJ Document 186 Filed 03/12/08 Page 2 of 6

1 and (#120), Declaration of Leecia Welch in Support of Plaintiffs’ Motion for Entry of Protective

2 Order (#116), Plaintiffs’ Response (#126), Defendants’ Opposition (#125), Defendants’ Reply

3 (#131), and Plaintiffs’ Reply (#129).

4

5

BACKGROUND

6

This case arises from a civil action filed on August 30, 2006, by the plaintiffs, on behalf

7 of themselves and “all abused and neglected children who are in, or at risk of entering, the Clark

8 County foster care system,” alleging a violation of 42 U.S.C. § 1983. Plaintiffs’ seek declaratory

9 and injunctive relief relating to the operation of Nevada and Clark County’s foster care system.

10

The defendants have filed a Renewed Motion for Protection from Disclosure of

11 Confidential Information (#120).1 The parties have met and conferred regarding the applicability

12 of the Nevada Revised Statute, but were unable to resolve the issue without Court intervention.

13 Plaintiffs filed a Motion for Protective Order (#119) on March 5, 2007. The dispute in both

14 motions involves the agreement on an appropriate protective order to safeguard the privacy rights

15 of foster care children and their families. Essentially the defendants want the Court to grant

16 protection from disclosure of the information while the plaintiffs request that this Court mandate

17 that the parties enter into the protective order and require disclosure. The defendants seek to

18 include the following language in the protective order, which the plaintiffs’ contend is overbroad

19 and defeats the purpose of the proposed protective order,

20

Clark County views the statutory language in NRS 432B.280 and 432B.290 broadly

and believes that agreeing to stamp documents ‘confidential’ and then disclose them

21

to opposing counsel does not meet the stated confidentiality requirements of the

statutes. The County also believes that Judge Herndon’s order regarding disclosures

22

under NRS 432B.280 reflects a correct interpretation of that statute for purposes of

this litigation. Therefore, the County intends to proceed very carefully with regard

23

to disclosure of documents and reserves the right to object to disclosures of

confidential documents at any time.

24

The defendants’ contend that under 42 U.S.C. § 671(a)(8), individual state statutes may

25

adopt more restrictive regulations regarding the disclosure of confidential information about

26

27

1The previous motion was denied as prematurely filed without any attempt to meet and confer

between and among counsel to resolve the discovery issue in compliance with Federal Rule of Civil 28 Procedure 26(c).

- 2 -

Case 2:06-cv-01068-RCJ-RJJ Document 186 Filed 03/12/08 Page 3 of 6

1 foster care programs than that suggested under the federal statute. The defendants’ request that

2 the Court take judicial notice of NRS 432B.280, NRS 432B.290, and NRS 432B.407(4).

3 Specifically, the defendants’ contend that NRS 432B.290(1)(e) requires them to request in

4 camera review of confidential documents before they may be disclosed to the plaintiffs in the

5 discovery process. NRS 432B.290 states that “Except as otherwise provided in subsections 2, 5

6 and 6 and NRS 432B.513, data or information concerning reports and investigations thereof

7 made pursuant to this chapter may be made available only to: . . . (e) A court, for in camera

8 inspection only, unless the court determines that public disclosure of the information is necessary

9 for the determination of an issue before it; . . . (g) The attorney and the guardian ad litem of the

10 child.” Further, NRS 432B.290(2) states that

11

Except as otherwise provided in subsection 3, data or information concerning reports

or investigations thereof made pursuant to this chapter may be made available to any

12

member of the general public if the child who is the subject of a report dies or is

critically injured as a result of alleged abuse or neglect, except that the data or

13

information which may be disclosed is limited to:

(a) The fact that a report of abuse or neglect has been made and, if appropriate, a

14

factual description of the contents of the report;

(b) Whether an investigation has been initiated pursuant to NRS 432B.260, and the

15

result of a completed investigation; and

(c) Such other information as is authorized for disclosure by a court pursuant to

16

subsection 4.

17 Subsection 4 states that “Upon petition, a court of competent jurisdiction may authorize the

18 disclosure of additional information to the public pursuant to subsection 2 if good cause is shown

19 by the petitioner for the disclosure of the additional information.”

20

The County Defendants take the position that they are not obligated to disclose the

21 records for an in camera review by this Court, but that they are willing to disclose the records if

22 it will advance the public interest in improving the County foster care system. The defendants

23 also assert that since the A children’s natural mother has signed a Confidentiality Agreement,

24 containing language identical to that which they are requesting be inserted into the current

25 protective order, in the wrongful death lawsuit, this acknowledges that disclosure of information

26 about her children is subject to the limitations of NRS 432A.290.

27

The County Defendants also argue that the proposed protective order has additional

28 language which is problematic.

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1

DISCUSSION

2 A. APPLICABILITY OF NEVADA REVISED STATUTE

3

In this case, the Court must decide two issues related to the applicability of the Nevada

4 Revised Statute. First, whether the Nevada Revised Statute prohibits the disclosure of the

5 plaintiffs’ case files in this case for the purpose of litigation, assuming that an appropriate

6 protective order has been entered. Second, if the Nevada Revised Statute does in fact prohibit

7 disclosure, whether that prohibition is binding on this Court mandating a federal privilege. The

8 defendants rely on 26 U.S.C. § 6103 for the proposition that federal statutes may create a

9 privilege in federal court beyond federal common law. However, the issue in this case is not

10 whether a federal statute may create a privilege in federal court, but whether a state statute may

11 create a privilege in federal court, and if so, to what extent.

12

NRS 432B.290 specifically states that reports and investigations may be made available

13 to the attorney and guardian ad litem of the child. Therefore, contrary to the defendants’

14 assertion, this Court may order disclosure of the reports and investigations involving the plaintiff

15 children to the children’s attorneys without requiring the defendants to violate state law. Further,

16 NRS 432B.290(2) specifically addresses when information “may be made available to any

17 member of the general public if the child who is the subject of a report dies or is critically injured

18 as a result of alleged abuse or neglect.” Here, the plaintiffs are not requesting the information in

19 an attempt to disclose it to the general public. To the contrary, the plaintiffs are willing to enter

20 into a protective order for the purpose of preserving the confidentiality of the information in

21 order to protect the privacy rights of the children involved. Therefore, NRS 432B.290(2) does

22 not apply to the circumstances of this case.

23

NRS 432B.280 specifies the penalties for willfully releasing data or information

24 concerning reports and investigations of abuse or neglect. However, this section makes

25 exceptions for information and data released as authorized or required pursuant to NRS

26 432B.290. Therefore, as previously stated, since NRS 432B.290 specifically authorizes the

27 release of the information to the children’s attorneys, the defendants will not be subjected to

28 criminal penalties for releasing the information in this case. NRS 432B.407 is likewise

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1 inapplicable to this case. This statute only applies to multidisciplinary teams reviewing the death

2 of a child.

3

The defendants also contend that 42 U.S.C. § 671(a)(8) permits them to limit disclosure

4 of confidential information. The Court disagrees. 42 U.S.C. § 671(a)(8) allows the states to

5 adopt stricter standards regarding disclosure than specified within the federal statute. However,

6 the state of Nevada has not adopted a standard prohibiting disclosure in the present

7 circumstances. Therefore, County Defendants are not entitled to limit disclosure. Since the state

8 statute does not prohibit disclosure in the circumstances of this case, it is unnecessary for the

9 Court to determine whether the statute creates a federal privilege which is binding on the Court

10 and the parties. Lastly, Defendants proposition that the federal statute requires in camera review

11 by the court, or the alternative of disclosure to the public, is incorrect. The statute provides

12 exceptions to the non-disclosure requirements.

13 B. PROPOSED PROTECTIVE ORDER

14

The Clark County Defendants have additional concerns regarding the proposed protective

15 order. Specifically, the defendants contend that all references to class members should be

16 removed since there is no certified class at this time. The Court agrees. Since there is not a

17 certified class at this time that language is premature and shall be removed. However, this does

18 not preclude Plaintiffs from conducting discovery relating to the proposed class. On May 14,

19 2007, Judge Robert C. Jones ruled that Plaintiffs may “conduct discovery relating to the

20 proposed class.” Order (#134) at 43-47. Accordingly, if Judge Jones grants class certification,

21 then the protective order will also apply to the class.

22

The defendants also state that they cannot stipulate that Plaintiffs’ DFS case records are

23 discoverable in this action due to the expansive list of documents defined as “DFS case records.”

24 Specifically, County Defendants state that they cannot stipulate that records belonging to third

25 parties are DFS case records, nor that these documents are discoverable. The Court agrees with

26 Plaintiffs that using the language “which are in the custody of County Defendants” amply

27 resolves this problem. The defendants are not required to provide documents which are not in

28 their custody.

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1

CONCLUSION

2

The Court refuses to adopt a broad policy requiring in camera review of all documents in

3 this type of case. This task would be unduly burdensome on the Court and is unnecessary. The

4 Nevada Revised Statute permits disclosure to the attorneys of the children who are named in the

5 investigations and reports. Therefore, the parties shall enter into a protective order consistent

6 with this Order. The proposed protective order shall be entered into by the parties; however, all

7 references to class members shall be deleted since a class has not been certified.

8

ORDER

9

Based on the foregoing, and good cause appearing therefore,

10

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Entry of Protective Order (#119)

11 is GRANTED, consistent with this Order.

12

IT IS FURTHER ORDERED that Defendants’ Renewed Motion for Protection from

13 Disclosure of Confidential Information (#120) is DENIED.

14

DATED this 12th day of March, 2008

15

16

17

18

ROBERT J. JOHNSTON

19

United States Magistrate Judge

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1 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
2 bruno@wolfenzon.com GREGORY M. SCHULMAN, ESQ.
3 Nevada Bar No. 5766 gschulman@wolfenzon.com
4 WOLFENZON SCHULMAN & RYAN 4530 South Eastern Avenue, Suite 9
5 Las Vegas, NV 89119 Telephone: (702) 836-3138
6 Facsimile: (702) 836-3139 Co-attorneys for Plaintiffs
7 KATINA ANCAR, ESQ. (pro hac vice)
8 California Bar No. 207950 kancar@fbm.com
9 SONYA SANCHEZ, ESQ. (pro hac vice) California Bar No. 247541
10 ssanchez@fbm.com FARELLA BRAUN + MARTEL LLP
11 235 Montgomery Street, 17th Floor San Francisco, CA 94104
12 Telephone: (415) 954-4400 Facsimile: (415) 954-4480
13 Co-attorneys for Plaintiffs

WILLIAM GRIMM, ESQ. (pro hac vice) Admitted to the Maryland Bar billgrimm@youthlaw.org LEECIA WELCH, ESQ. (pro hac vice) California Bar No. 208741 lwelch@youthlaw.org BRYN MARTYNA, ESQ. (pro hac vice) California Bar No. 239852 bmartyna@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF NEVADA

16 CLARK K., et al.,

17

Plaintiffs,

18

vs.

19 MICHAEL WILLDEN, et al.,

20

Defendants.

CASE NO. 2:06-CV-01068 RCJ-RJJ JUDGE: Hon. Robert C. Jones
PLAINTIFFS' NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS OF AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR CLASS CERTIFICATION

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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor
San Francisco, CA 94104 (415) 954-4400

PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION AND MPA CASE NO. 2:06-CV-01068 RCJ-RJJ

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1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION................................... 1

4 MEMORANDUM OF POINTS OF AUTHORITIES.................................................................... 1 I. INTRODUCTION .............................................................................................................. 1
5 II. PROCEDURAL HISTORY & LEGAL BACKGROUND ................................................ 2

6 III. STATEMENT OF FACTS ................................................................................................. 3

7

A. All Children in Foster Care in Clark County Are Being Harmed or Exposed to a Substantial Risk of Harm. ................................................................................ 4

8

1. Foster Children in Clark County Are Dying From Abuse and

Neglect. ....................................................................................................... 4

9

2. DFS Puts Children at Risk of Abuse and Neglect While in Foster

10

Care ............................................................................................................. 6

3. Defendants Fail to Provide Much-Needed Medical Care and Mental

11

Health Services to Foster Children in Clark County................................... 9

12

4. Defendants Fail to Provide Foster Children With Stable Placements....... 12

B. Common DFS Practices Put All Class Members at Risk of Harm. ...................... 14

13

1. Many DFS Caseworkers Lack the Qualifications, Training, and

14

Supervision Necessary to Ensure Foster Children’s Safety and Well-Being. ............................................................................................... 14

15

a. Lack of Qualifications................................................................... 15

16

b. Lack of Training............................................................................ 15

c. Poor Supervision ........................................................................... 16

17

2. DFS Caseworkers Have Dangerously High Caseloads............................. 18

18

3. DFS Fails to Conduct Adequate Investigations of Child

Abuse/Neglect Complaints........................................................................ 19

19

4. DFS Fails to Regularly Visit Children In its Custody to Ensure

20

Their Health and Safety. ........................................................................... 21

5. DFS Fails to Provide Foster Parents with Adequate Information

21

About Children Placed in Their Homes and Fails to Provide Them

Adequate Support..................................................................................... 22

22

6. Defendants Lack an Adequate Management Information and

23

Quality Assurance System. ....................................................................... 23

7. Defendants Fail to Provide Foster Children with an Advocate in

24

Their Court Proceedings. .......................................................................... 26

25

IV.

PLAINTIFFS’ CLASS IS ENTITLED TO CERTIFICATION UNDER THE RULE 23(A) LEGAL STANDARD................................................................................. 27

26

A. THE COURT HAS RULED THAT PLAINTIFFS’ CLASS IS SO

NUMEROUS THAT JOINDER IS IMPRACTICAL. ......................................... 29

27

B. THE CLASS SHARES COMMON ISSUES OF LAW AND FACT .................. 29

28

1. In the Ninth Circuit, the Burden of Establishing Commonality Is

Minimal. .................................................................................................... 29

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1

TABLE OF CONTENTS

(continued)

2

Page

3

2. Plaintiffs Surpass the Minimal Commonality Requirement. .................... 30

4

3. Cases Challenging System-wide Policies and Practices Have Regularly Been Found to Meet the Commonality Requirement............... 31

5

4. Individual Factual Differences Among Litigants Do Not Preclude a

Finding of Commonality In Suits Challenging System-wide

6

Practices .................................................................................................... 32

7

a. Commonality Exists Where Class Members Are at Risk of Suffering Harm Due to Systemic Legal Violations. ..................... 33

8

b. Commonality Exists Where Class Members Have

Experienced Different Types of Harm as a Result of

9

Defendants’ Common Course of Conduct. ................................... 34

10

C. THE NAMED PLAINTIFFS’ CLAIMS SATISFY TYPICALITY..................... 35

D. PLAINTIFFS’ COUNSEL AND CLASS REPRESENTATIVES SERVE

11

AS FAIR AND ADEQUATE REPRESENTATIVES OF THE CLASS. ............ 37

12 V.

PLAINTIFFS’ CLASS IS A MODEL ACTION FOR RULE 23(B)(2) CERTIFICATION. ........................................................................................................... 39

13 VI. CONCLUSION ................................................................................................................. 40

14

15

16

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26

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1

TABLE OF AUTHORITIES

2

Page

3 Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) .......................................................................................................... 28

4

Armstrong v. Davis,

5

275 F.3d 849 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002) .............................. passim

6 Baby Neal v. Casey,

43 F.3d 48 (3d Cir. 1994)........................................................................................... passim

7

Blackie v. Barrack,

8

524 F.2d 891 (9th Cir. 1975)............................................................................................. 28

9 Califano v. Yamasaki,

442 U.S. 682 (1976) .................................................................................................... 33, 34

10

Doe v. Los Angeles Unified Sch. District,

11

48 F. Supp. 2d 1233 (C.D. Cal. 1999) .............................................................................. 35

12 Dukes v. Wal-Mart, Inc.,

509 F.3d 1168 (9th Cir. 2007)..................................................................................... 29, 37

13

Eisen v. Carlisle & Jacquelin,

14

417 U.S. 156 (1974) .......................................................................................................... 28

15 Ferrari v. Gisch,

225 F.R.D. 599 (C.D. Cal. 2004) ...................................................................................... 32

16

Gen. Tel. Co. of the Sw. v. Falcon,

17

457 U.S. 147 (1982) .............................................................................................. 33, 35, 36

18 Griffin v. Carlin,

755 F.2d 1516 (11th Cir. 1985)......................................................................................... 28

19

Gulf Oil Co. v. Bernard

20

452 U.S. 89 (1981) ............................................................................................................ 28

21 Hanlon v. Chrysler,

150 F.3d 1011 (9th Cir. 1998).................................................................................... passim

22

Hanon v. Dataproducts Corp.,

23

976 F.2d 497 (9th Cir. 1992)............................................................................. 1, 28, 35, 36

24 Hawkins v. Comparet-Cassani,

251 F.3d 1230 (9th Cir. 2001)........................................................................................... 28

25

Jordan v. Los Angeles County,

26

669 F.2d 1311 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982)....... 28, 29

27 Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003)....................................................................................... 31
28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 LaDuke v. Nelson,

762 F.2d 1318 (9th Cir. 1985)........................................................................................... 31

4

Lerwill v. Inflight Motion Pictures, Inc.,

5

582 F.2d 507 (9th Cir. 1978)............................................................................................. 37

6 Marisol A. v. Giuliani,

126 F.3d 372 (2d Cir. 1997)........................................................................................ 31, 35

7

Schaefer v. Overland Express Family of Funds,

8

169 F.R.D. 124 (S.D. Cal. 1996)....................................................................................... 36

9 Stolz v. United Brotherhood of Carpenters and Joiners of America,

620 F. Supp. 396 (D.C. Nev. 1985) ............................................................................ 38, 39

10

Thomas v. Baca,

11

231 F.R.D. 397 (C.D. Cal. 2005) ...................................................................................... 28

12 Walters v. Reno,

145 F.3d 1032 (9th Cir. 1998).................................................................................... passim

13

Ziufang Situ v. Leavitt,

14

240 F.R.D. 551 (N.D. Cal. 2007) ...................................................................................... 32

15

DOCKETED CASES

16 Cabrera v. Balane,

No. CV-1285 ................................................................................................................... 5, 6

17

Charles and Prum v. Ochs,

18

No. CV-1212 ....................................................................................................................... 6

19 Garcia v. Clark County,

No. CV-1507 ....................................................................................................................... 6

20

Ruttenbur v. Jackson,

21

No. CV-1382 ....................................................................................................................... 6

22 Lewis v. State of Nevada, No. CV-1109 ...................................................................................................................... 6
23 FEDERAL STATUTES
24

25 42 U.S.C. § 1983 ............................................................................................................................. 2

26 Fed. R. Civ. P. 23(a)............................................................................................................... passim

27 Fed. R. Civ. Proc. 23 Advisory Committee Notes 1966 Amendment .......................................... 39

28

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1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

TO EACH PARTY AND ITS ATTORNEYS OF RECORD: NOTICE IS HEREBY

3 GIVEN that as soon as the matter may be heard by the above-titled Court, located at 333 S. Las

4 Vegas Blvd., Las Vegas, NV 89101, in the courtroom of Judge Robert C. Jones, plaintiffs will

5 move the Court to issue an order as follows: Certifying that this action is maintainable as a class

6 action under Federal Rules of Civil Procedure 23(a) and 23(b)(2); certifying the class of persons

7 described in plaintiffs’ complaint as the plaintiff class; designating the individual named plaintiffs

8 as representatives of the plaintiff class and their counsel of record as attorneys for the plaintiff

9 class; and declining to require plaintiffs to provide notice to absent class members prior to

10 judgment.

11

This motion will be made upon the grounds that, pursuant to Fed. R. Civ. P. 23(a): (1) the

12 proposed class is so numerous that joinder of all members individually is impracticable; (2) there

13 are questions of fact or law common to the class; (3) the claims and defenses of the class

14 representatives are typical of the class; and (4) the class representatives will fairly and adequately

15 protect the interests of the class. Hanlon v. Chrysler, 150 F.3d 1011, 1019 (9th Cir. 1998).

16 Plaintiffs’ also bring this motion on the grounds that the class is maintainable under Fed. R. Civ.

17 P. 23(b)(2), as Defendants have acted or refused to act on grounds that apply generally to the

18 class, making final injunctive or declaratory relief appropriate with respect to the class as a whole.

19 Plaintiffs motion is based on this Notice of Motion and Renewed Motion for Class Certification;

20 the Memorandum of Points and Authorities in support thereof; the declarations submitted in

21 support of the motion; the pleadings and papers on file herewith; and upon such other matters as

22 / / /

23 / / /

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26 / / /

27 / / /

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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor
San Francisco, CA 94104 (415) 954-4400

/ / /
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1 may be presented to the Court at the time of the hearing.

2

3 Dated: March 28, 2008

4 WOLFENZON SCHULMAN
5 /s/ Bruno Wolfenzon
6 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
7 GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766
8 4530 South Eastern Avenue, Suite 9 Las Vegas, NV 89119
9 Telephone: (702) 836-3138 Facsimile: (702) 836-3139
10 Co-attorneys for Plaintiffs
11
12 FARELLA BRAUN + MARTEL LLP
13 /s/ Katina Ancar
14 KATINA ANCAR, ESQ. California Bar No. 207950
15 FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor
16 San Francisco, CA 94104 Telephone: (415) 954-4400
17 Facsimile: (415) 954-4480 Co-attorneys for Plaintiffs
18

NATIONAL CENTER FOR YOUTH LAW
/s/ William Grimm WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

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San Francisco, CA 94104 (415) 954-4400

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1

MEMORANDUM OF POINTS OF AUTHORITIES

2

I. INTRODUCTION

3

Plaintiffs are abused and neglected children taken from their parents and placed in

4 Defendants’ custody. Unfortunately, the foster care system that is supposed to nurture and

5 protect them often causes them further harm; in the worst cases, even death. It is a system that

6 Tom Morton, the Director of the Clark County Department of Family Services (“DFS”), describes

7 as a “crippled child welfare system,” and that has been “designated by Federal officials as the

8 ‘worst child welfare system’ in the nation.” Director Morton himself has admitted “it is probably 9 somewhat of a miracle that more tragedies have not occurred.” 1

10

In order to remedy this dangerous situation, plaintiff foster children bring this class action

11 suit on behalf of “children who have been, are, or will be victims of child abuse and neglect and

12 have been, are, or will be in the legal custody of Clark County DFS.” Second Amended

13 Complaint (“SAC”) at 11 (Docket No. 142-1). They seek to enforce their rights under federal and

14 state law to have their most basic of needs met – safety, health, and stability.

15

A party seeking certification must show that: (1) the proposed class is so numerous that

16 joining all members individually is impractical (“numerosity”); (2) the class shares at least one

17 common question of fact or law (“commonality”); (3) the class representatives’ claims are typical

18 of the class (“typicality”); and (4) the named plaintiffs will fairly protect the interests of the class

19 (“adequacy of representation”). Fed. R. Civ. P. 23(a); Hanlon v. Chrysler, 150 F.3d 1011, 1019

20 (9th Cir. 1998); Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Plaintiffs must

21 also satisfy one of the Rule 23(b) requirements. In this case, plaintiffs seek to proceed under Rule

22 23(b)(2), requiring a showing that the opposing party “has acted or refused on act on grounds

23 generally applicable to the class,” making injunctive relief for the class as a whole appropriate.

24

The Court has already ruled that plaintiffs have satisfied the numerosity requirement of

25 Rule 23(a)(1). May 14, 2007 Order at 44 (Docket No. 134). The Court deferred ruling on the

26
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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor
San Francisco, CA 94104 (415) 954-4400

1 Director Morton made these statements in his “Report to U.S. Representative Shelley Berkley On The State of Clark County Department of Family Services” (submitted May 2007) (“Morton Report to Rep. Berkley”) at 8 & 17, Ex. D. All Exhibits referenced herein are attached to the Declaration of William Grimm in Support of Plaintiffs’ Renewed Motion for Class Certification (“Grimm Decl.”) unless otherwise stated.

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1 remaining requirements until further discovery “specific to the proposed class” was conducted.

2 Id. at 44-47.

3

Multiple sources of information summarized herein provide overwhelming evidence that

4 the harms suffered by the named plaintiffs are common and typical of those experienced by the

5 class of foster children as a whole. Importantly, the vast majority of the evidence comes from

6 Defendants themselves: their own words or the words of their agents, reports and evaluations they

7 have commissioned, and data they maintain. The evidence leaves no question that the

8 experiences of the named plaintiffs are merely the tip of the iceberg. In Clark County, all foster

9 children are at risk of harm in a dysfunctional system that operates with dysfunctional practices.

10

This renewed motion demonstrates that the class satisfies the requirements of

11 commonality, typicality, and adequacy of representation. Plaintiffs also show that certification

12 under 23(b)(2) is appropriate and necessary. To ensure that all Clark County foster children

13 receive the care and protection to which they are entitled, plaintiffs respectfully request that the

14 Court grant their Renewed Motion for Class Certification.

15

II. PROCEDURAL HISTORY & LEGAL BACKGROUND

16

On August 30, 2006, plaintiffs filed their initial complaint in this action. (Docket No. 1).

17 Shortly thereafter, on October 19, 2006, plaintiffs filed a First Amended Complaint. (Docket No.

18 57). Plaintiffs have asserted the majority of their legal claims pursuant to 42 U.S.C. § 1983,

19 seeking to enforce their statutory and constitutional rights. All claims are brought on behalf of

20 the class as a whole.

21

Plaintiffs first moved to certify their class on November 21, 2006. (Docket No. 74). On

22 May 14, 2007, this Court ruled that plaintiffs satisfied Rule 23(a)(1)’s “numerosity” requirement.

23 (Docket No. 134). However, the Court deferred consideration of the remaining certification

24 requirements until the parties had “an opportunity to conduct discovery specific to the proposed

25 class.” (Id. at 45-47). In accordance with this directive, plaintiffs have conducted discovery,

26 including propounding requests for production and interrogatories, conducting depositions, and 27 issuing third-party subpoenas. 2 Grimm Decl. at ¶ 10.

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2 County Defendants’ insufficient response to plaintiffs’ document discovery requests – including requests relevant to

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1

In its May 14, 2007 Order, the Court also ruled on Defendants’ motions to dismiss,

2 upholding the majority of plaintiffs’ claims.3 (Docket No. 134). Following this ruling, plaintiffs

3 filed a Second Amended Complaint to address the Court’s concerns. (Docket No. 142-1).

4 Currently, plaintiffs’ action includes claims based on substantive due process, the Federal

5 Adoption Assistance Act, the Child Abuse Prevention and Treatment Act, and the Medicaid Act.

6

III. STATEMENT OF FACTS

7

The tragic histories of the named plaintiffs illustrate the numerous harms suffered by

8 foster children in Clark County: the death of baby Jerome A. in a foster home, the physical abuse

9 and neglect suffered by his surviving siblings while in foster care, the denial of adequate health

10 care for Donna C. and Clark K., and the many placement changes experienced by Summer and

11 Frank B., are but a few examples. With this motion, plaintiffs present overwhelming evidence

12 that these injuries are sadly not the exception, but the norm. Furthermore, the facts presented

13 below show that these harms do not result from isolated or unusual causes; they are the inevitable

14 result of system-wide deficiencies affecting all class members.

15

Numerous sources corroborate the systemic failures in Clark County. Significantly, some

16 of the most powerful evidence comes from the State and County Defendants themselves,

17 including: the agencies’ own records, admissions of current and former senior administrators, and

18 reports and evaluations which Defendants themselves conducted or commissioned. The

19 following three sources alone provide a wealth of information from Defendants and professionals

20 they have hired to examine the Clark County child welfare system:

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• Independent Child Welfare Consultant Edward Cotton’s Report of Data Analysis, Findings and Recommendations presents troubling findings based on an extensive review of all cases (1,352) involving families with at least one child under the age of five who was currently a ward of Clark County. (“Cotton Report”, Ex. E).

this Motion – forced plaintiffs to move to compel further production. (Docket No. 156). Plaintiffs’ Motion to Compel was recently granted, as was Plaintiffs’ Motion for Protective Order. (Docket Nos. 186 & 187). Those Orders were filed on March 12, 2008, and the information Defendants are compelled to produce has not yet been provided. Grimm Decl. at ¶11. In an effort to further delay production of crucial documents, County Defendants have recently filed a motion for reconsideration of these orders, which is pending before this Court. (Docket No. 192). However, even without this information, Plaintiffs’ Renewed Motion is supported by more than sufficient evidence. Grimm Decl. at ¶11.
3 Subsequently, the Court ruled upon a second motion to dismiss from State Defendants. September 4, 2007 Order at 9-10 (Docket No. 161).

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• Director Morton’s Report to U.S. Representative Shelley Berkley on the State of

Clark County Department of Family Services describes a myriad of problems with

2

Clark County’s child welfare system. (“Morton Report to Rep. Berkley”, Ex. D).4

3

• Independent Consultant Missouri Alliance for Children and Families’ Report to

Clark County Nevada DFS, Out of Home Care Resources and Practices,

4

(submitted August 2007) evaluates Clark County DFS’s out-of-home care program

and provides recommendations based on intensive site visits. (“Missouri Alliance

5

Report”, Ex. F).

6

These and countless other sources underscore the inescapable fact that the Clark County

7 foster care system is miserably failing the children placed in its care. Without significant

8 changes, every child in the custody of Clark County DFS goes from one day to the next, at risk of

9 becoming the next tragedy.

10

A. All Children in Foster Care in Clark County Are Being Harmed or Exposed to a Substantial Risk of Harm.

11

12

Child welfare systems exist for the express purpose of protecting children from harm.

13 However, in Clark County, foster children suffer a wide spectrum of injuries while in Defendants’

14 custody – from physical abuse and neglect, to denial of medical care and mental health services,

15 to lack of a permanent place to call home. In the most tragic cases, children have died while in 16 Defendants’ care. The evidence presented below proves that it is not just the named plaintiffs

17 who have been injured while in the custody of DFS; all class members are exposed to and at risk

18 of suffering harm.

19

1. Foster Children in Clark County Are Dying From Abuse and Neglect.

20

The deaths of children in foster care are the most tragic results of a broken system. In

21 Clark County, there are simply far too many preventable child deaths occurring on Defendants’

22 watch.

23

Jerome A., the baby brother of named plaintiffs Jalen, Sia, Roshaun, Caleb, and King

24 (“the A. children”) died while in foster care at the age of 14 months. Declaration of Tarrah Logan

25 (“Logan Decl.”) at ¶ 13 (Docket No. 82). Jerome was scalded to death in a DFS-licensed foster

26 home when the foster mother left him and his siblings alone at night without adult supervision.

27

28 4 Much of Defendant Morton’s report to Congresswoman Berkley relies upon the findings of the Cotton Report.

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1 Id. at ¶¶ 10, 12-13. Several of his siblings witnessed his death. Id. at ¶ 13. For months before

2 Jerome’s death, DFS ignored numerous reports of abuse and neglect in the foster home, as well as

3 the foster mother’s pleas to have the children removed. (Logan Decl. at ¶¶ 9-12 (Docket No. 82);

4 Deposition of Tarrah Logan (“Logan Dep.”) at 121:22 –122:5, 123:2 – 125:25). Disturbingly, the

5 many problems that existed in that home exist in countless other homes in Clark County. See

6 generally infra Part III.B.

7

According to information provided by County Defendants themselves, a shocking number

8 of children have died while in the care and custody of DFS in the last seven years. (Clark County

9 DFS: Child Fatality and Open DFS Cases, 2000 to Present, Ex. G). The data demonstrates that

10 the deaths of children with open DFS cases have been steadily increasing over the past four years:

11 3 deaths in 2003, 7 deaths in 2004, 12 deaths in 2005, 15 deaths in 2006, and 12 deaths in just the 12 first half of 2007. (Id.). 5

13

The circumstances of the following individual cases reveal how systemic deficiencies

14 contribute to the disappearance and deaths of foster children:

15

• Two-year-old Everlyse Cabrera disappeared from a foster home on June 10, 2006.

A subsequent investigation found that DFS ignored indicators that the foster home

16

was unsafe, failed to visit children placed in the home, and failed to investigate

reports of suspected child abuse in the home, among other dangerous practices.

17

(Case Review: Manual and Vhee Carrascal Foster Home (June 29, 2006), Ex. H;

See also Complaint, Cabrera v. Balane, No. CV-1285 (JCU) (D. Nev. October 12,

18

2006)).

19

• One-year-old Joshua Sharp died at Child Haven, County Defendants’ shelter for

children entering foster care, in August 2006. Joshua entered Child Haven in June

20

2006 in relatively good health but died there two months later of a severe ear

infection that was known to DFS staff but went untreated. An investigation

21

conducted by State Defendants uncovered numerous violations of policies and

practices that clearly contributed to his death, including failing to obtain medical 22

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5 The County document provided through discovery does not include any information about the causes of death of these children who died with open DFS cases. Grimm Decl. at ¶ 16. Defendants are required to make certain information about child fatalities available pursuant to the public disclosure requirements of the federal Child Abuse Prevention and Treatment Act of 1974. Significantly, many of the deaths listed in the County’s document are not included in Child Welfare Agency Public Disclosure forms for Clark County available on the State’s website. (See http://dcfs.state.nv.us/DCFS_ChildFatalities_Disclosures_Clark.htm (last visited 3/11/08); see also Grimm Decl. at ¶17). For example, just between January 1 and May 3, 2007, 12 children died in the care and custody of County Defendants, according to their own document. However, only seven of these deaths are reported on the State’s website. Even if DFS has an explanation for their failure to report these five “missing” deaths to the State, the fact remains that more children are dying while in Clark County DFS custody than is publicly known, and very little is known about the circumstances of their deaths. Grimm Decl. at ¶17.

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records, failing to check his ears or monitor his fever, and failing to provide him

with proper medication. (Deposition of Renee Swain (“Swain Dep.”) at 86:11-

2

101:25, 102:6-103:14, Ex. UU; DCFS Child Fatality Report (undated), Ex. I).6

3

• Seven-month-old Baby Boy Charles died in a foster home in October 2006 from

blunt force trauma to the head resulting in a fatal skull fracture and other injuries.

4

His foster mother was arrested and charged with murder by child abuse. Baby Boy

Charles did not receive the required visits from his caseworker prior to his death,

5

and the foster home was overloaded with children. (See Declaration of

Warrant/Summons of Holly LeBergen (No. 060802-2003) at 2 & 4, Ex. J; First

6

Amended Complaint, Charles and Prum v. Ochs, No. CV-1212 (RLH) (D. Nev.

February 1, 2008)).7

7

• Two-year-old Zander Martino died just eight months ago, after DFS returned him

8

to his father despite repeated previous instances of severe physical abuse,

including a fractured skull and multiple other broken bones. A coroner’s autopsy

9

concluded that Zander’s death was a homicide caused by blunt force trauma to the

abdomen. Zander’s sister told a DFS investigator “Dad hit Zander with a hammer

10

last night.” This occurred just 12 days after DFS decided to return Zander to his

father. It is unclear what sort of safety assessment, if any, was completed prior to

11

this placement. (See Declaration of Warrant/Summons of Lisa Myk (No.070710-

0859) at 2, Ex. K; See also Child Welfare Agency Public Disclosure Form, dated

12

8/8/07, Ex. L).

13

Defendants’ poor practices, including failing to visit children and failing to conduct abuse

14 investigations, contributed to the deaths of these children. Until the systemic problems leading to

15 these and other deaths are addressed, all children in foster care are at risk.

16

2. DFS Puts Children at Risk of Abuse and Neglect While in Foster Care.

17

Although foster care should be a safe haven, many children are instead further abused and

18 neglected while in Clark County’s custody. This mistreatment compounds the already grave and 19 long term effects of child abuse and neglect.8

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6 Ms. Swain, DFS Division Manager at the time, confirmed that Child Haven’s file for Joshua contained little information other than an entry that his temperature had been taken a couple of weeks before his death. (Swain Dep. at 88:3-89:4; 94:1-6, Ex. UU). She was fired by Defendant Morton two days after Joshua’s death, after receiving an e-mail from Defendant Morton asking “[h]ow am I going to explain this [Joshua’s death] to the National Center for Youth Law.” (Id. at 85:10-86:14). Ms. Swain also testified about the death of another infant who had been placed by County Defendants in an emergency shelter foster parent home. (Id. at 103:15-105:3).

7 In addition to this and the Cabrera suit cited above, several other suits are pending on behalf of the estates of children who died in foster care with County Defendants. See, e.g., Complaint, Lewis v. State of Nevada, No. CV1109 (KJD) (D. Nev. August 21, 2007) (four month old infant died from suffocation in a foster home that had four foster children under the age of 19 months in violation of State law; foster parents failed to supervise the care of the foster children); Complaint, Garcia v. Clark County, No. CV-1507 (RCJ) (D. Nev. November 12, 2007); Complaint, Ruttenbur v. Jackson, No. CV-1382 (RCJ) (D. Nev. October 16, 2007) (alleging physical and sexual abuse and emotional neglect of three brothers at the hands of Clark County foster parents and their teenage son).

8 See Rosemary Chalk, et al., “The Multiple Dimensions of Child Abuse and Neglect: New Insights into an Old Problem,” Child Trend Research Brief, May 2002, Ex. M (“Hundreds of research studies and agency reports have consistently reported negative outcomes from abuse and neglect for many children. Taken together, this evidence

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1

The experiences of named plaintiffs are representative of the harms suffered by other

2 foster children in Clark County. For example, the A. children suffered abuse and neglect in

3 multiple foster homes, including being left home alone again at night shortly after the death of

4 their baby brother. (See Logan Decl. at ¶¶ 10, 14 (Docket No. 82); Logan Dep. at 50:11 – 52:19,

5 113:19 – 114:16, 110:16 – 111:21, Ex. TT; Swain Dep. at 110-111, Ex. UU (“… the same

6 scenario happened twice, except the second time, obviously, there wasn’t a death.”)). In fact,

7 none of the named plaintiffs was spared the experience of abuse or neglect while in Defendants’

8 custody. (See Declaration of Marilyn Paikai (“Paikai Decl. I”) at ¶11 (Docket No. 79) (foster

9 mother physically abused Frank B., leaving a black and blue bruise on his left hip the size of a

10 baseball); Declaration of Clark K. (“Clark K. Decl.”) at ¶¶ 14, 17-19 (Docket No. 78) (severe

11 neglect); Declaration of Jacquelyn Romero (“Romero Decl.”) at ¶¶ 6-9 (Docket No. 80) (severe

12 neglect and emotional abuse)).

13

Defendants’ own documents reveal that abuse and neglect while in Defendants’ custody is

14 a widespread problem. For example, Clark County’s foster home licensing documents reflect an 15 alarming number of license revocations, suspensions, and denials,9 which in turn reveal that foster

16 children are suffering wide-ranging abuse and neglect in the very foster homes in which they are

17 placed for their safety. These documents provide evidence that children are sexually assaulted in

18 foster homes (CC-DRSFHL 0166), brutally restrained by foster parents (CC-DRSFHL 0243),

19 severely physically abused by foster parents (CC-DRSFHL 0046, 0075, 0156, 0171, 0148),

20 medically neglected by foster parents (CC-DRSFHL 0119, 0037-38), and left alone in dangerous

21 situations or with foster parents under the influence of illegal drugs (CC-DRSFHL 0020-21, 22 0029-30, 0041-42, 0095-96).10 These examples are but a small sample of the numerous instances

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suggests that abuse and neglect are associated with both short- and long-term negative consequences for children’s physical and mental health, cognitive skills and educational attainment, and social and behavioral development.”)
9 The documents provided by Defendants do not appear to include all homes in which abuse/neglect occurred. For example, there was no revocation or suspension notice for Melanie Ochs, who was arrested in October 2006 and charged with the murder of a child in her foster home. See supra Part III.A.1., for further description of the case.
10 All documents labeled CC-DRSFHL – Clark County DFS Notices of Revocation, Notices of Suspension, and Denials of License Renewal – were produced by County Defendants, and are attached to the Grimm Decl. as Ex. N.

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1 of abuse and neglect described in the licensing documents.11

2

Institutional Abuse Reports12 obtained from Clark County provide further evidence that

3 foster children in Clark County are suffering abuse and neglect at disturbing rates. These reports

4 also document the ugly fact that the incidence of abuse and neglect while in foster care has been 5 steadily increasing since 2004.13 (Clark County Institutional Abuse Reports, Ex. P). Foster

6 children have been subjected to all types of abuse and neglect – sexual abuse, physical

7 abuse/beating, emotional abuse, neglect, lack of supervision, medical neglect, and failure to

8 provide basic necessities.

9

Moreover, these reports do not capture the magnitude of abuse and neglect suffered by

10 foster children in Clark County. First, studies and surveys provide considerable evidence that the

11 actual incidence of maltreatment of foster children exceeds the number that is officially reported 12 and investigated.14 Second, these reports only record instances in which a formal report of abuse

13 or neglect in a licensed placement is called in and accepted for investigation. (DFS Reporting

14 Module User Manual at 64, Ex. O). They exclude allegations against DFS staff, any complaint 15 that is not viewed as reaching a “criminal level,”15 and perhaps most concerning, any reports of

16 abuse and neglect of the thousand-plus children in unlicensed homes (e.g. with family or “fictive 17 kin”).16

18

As described above, Defendants’ own documents establish that that the abuse and neglect

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11 County Defendants have produced over 400 pages of licensing revocation, suspension, and denial notices. Grimm Decl at ¶ 23.
12 Institutional Abuse Reports generated by Clark County provide a list of licensed foster care providers who have been the subject of an allegation of abuse and neglect of a child in foster care. (DFS Reporting Module User Manual at 64, Ex. O).
13 For calendar year 2004, Institutional Abuse Reports were 73 pages, increasing to 90 pages for 2005, 104 pages for 2006, and 28 pages for just the first quarter of 2007.
14 See Casey Family Programs Foster Care Alumni Study Improving Family Foster Care: Findings from the Northwest Foster Care Alumni Study (“Casey Alumni Study”) (Rev. 2004), at 30-31, Ex. Q.
15 The Institutional Abuse Team Meeting Minutes note that: “Currently, all complaints on Child Haven are being screened through LVMPD [Las Vegas Metro Police Dep’t]. If it does not reach criminal level, it is not investigated; even if 432B [child protective services statute] has been violated.” (2/26/2007 Inst. Abuse Meeting Minutes at 2, Ex. R).
16 From data provided by Defendants, it appears that well over 1,000 children are placed in unlicensed relative placements. (Clark County DFS Relative Placement Data at FC Relatives 002 – 004, Ex. S).

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1 suffered by the named plaintiffs is also experienced by countless other class members. Foster

2 children in Clark County remain at risk even in the foster homes designed to protect them.

3

3. Defendants Fail to Provide Much-Needed Medical Care and Mental

Health Services to Foster Children in Clark County. 4

5

Defendants fail to provide Clark County foster children with medically necessary health

6 and mental health services, compounding the harm caused by their maltreatment. Given that high 7 percentages of children entering foster care have significant medical and mental health needs17,

8 timely access to services is critical. (See 6/6/06 Presentation to Clark County Board of County

9 Commissioners on Family Services at 7, Ex. U). At the most basic level, children need initial

10 health screenings in the first days of placement to identify the need for immediate medical or

11 mental health care. On an ongoing basis, foster children, like all children, need regular medical

12 and dental examinations, developmental and mental health screenings, and any necessary

13 therapeutic and treatment services. All too often in Clark County, health screenings are not

14 performed and medically necessary services are not delivered.

15

a. Denial of Mental Health Services

16

Defendants regularly fail to provide foster children with needed mental health assessments

17 and services. Moreover, the quality of the mental health services that are provided is often poor.

18

The named plaintiffs’ experiences illustrate the lack of adequate mental health care

19 provided to the class as a whole. Despite their need for wide-ranging mental health services, the

20 named plaintiffs have been subjected to harmful delays in the provision of needed assessments

21 and services, if not an outright denial of such care. For example, although Donna C. had been

22 severely emotionally abused, neglected, and traumatized, she was not assessed or provided with

23 any form of therapy for nearly four months. (Romero Decl. at ¶¶ 6-9, 12-13 (Docket No. 80);

24 Romero Dep. at 38: 20 – 41:10, Ex. VV). Similarly, despite the damaging experiences suffered

25 by Clark K. when DFS sent him to Texas (Clark K. Decl. at ¶¶ 17-19 (Docket No. 78)), DFS

26

27 17 National studies indicate that between 50 and 80 percent of children in foster care suffer from moderate to severe
mental health problems. (S. dosReis et al., Mental health services for youths in foster care and disabled youth,
28 American Journal of Public Health, 91(7): 1094-1099 (2001), Ex. T).

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1 made no efforts to provide him with any mental health services upon his return to Las Vegas,

2 despite his caseworker’s agreement that he needed counseling. (Id. at ¶¶ 22, 24-25; see also

3 Anderson Dep. at 72:11 – 74:13, 113:9-13, Ex. WW (noting that DFS thwarted Clark’s

4 grandparents’ efforts to obtain mental health services for him)). DFS also deprived crucial mental

5 health services to other named plaintiffs who had experienced the trauma of witnessing their

6 sibling’s death. (Logan Decl. ¶ 18, 19 (Docket No. 82); Logan Dep. at 115:1 – 116:19, 131:13 – 7 133:6, Ex. TT).18

8

The named plaintiffs’ experiences are not unusual in Clark County. Countless children in

9 foster care are denied needed mental health services. (See, e.g., March 26-29, 2001 DCFS Clark

10 County Case Review at 227105, Ex. V (State review of Clark County finding that nearly 50% of

11 foster children were not receiving adequate services to meet their physical and mental health

12 needs); UNLV School of Social Work Report, A Survey of Foster Parents’ Satisfaction Toward

13 Nevada’s System of Child Welfare (“Nevada Foster Parent Survey”) at 12, Ex. W (25% of foster

14 parents reported that children with behavioral problems did not receive needed services); see also

15 Declaration of Terrie Crawford (“Crawford Decl.”) at ¶¶ 20-23; March 28, 2008 Declaration of

16 Marilyn Paikai (“Paikai Decl. II”) at ¶¶ 16-17)). Foster youth who are provided with mental

17 health services often experience significant delays. (See, e.g., Clark County Administrative Case

18 Review at CC QA/QIR-0054, Ex. X (County consultant finds that a sexually abused child with

19 serious mental health needs waited many months for counseling)). In addition, the quality and

20 effectiveness of services are often inadequate. (See, e.g., Nevada Foster Parent Survey at 12, Ex.

21 W (finding that one third of foster parents were dissatisfied with the quality of mental health

22 services received by children in their homes)). DFS Director Morton himself admits that

23 “[r]egardless of what [needs are] identified, the same limited array of services is offered rather

24 than individualizing services around the unique needs of the child and family.” (Morton Report

25 to Rep. Berkley at 10, Ex. D).

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18 When Mrs. Logan told Child Haven counselors that the A. children were having nightmares about their baby brother’s death and needed counseling, she was told “because they were not teary, they [Child Haven counselors] would not bring up the situation.” (Logan Dep. at 132:16-133:6, Ex. TT). Mrs. Logan was told that the children “were not entitled to other services because they were still in the placement of the haven.” (Id.).

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Based on evidence gathered from Clark County through discovery, Defendants fail to

2 provide necessary services to those youth with even the most serious mental health needs. 3 Incident Reports and Walkaway Checklists19 from the teen girls’ cottage at Child Haven prove

4 that this leads to very dangerous situations for foster youth:

5

• A 14-year-old female diagnosed with bipolar disorder and ADHD was allowed to leave

Child Haven by herself (termed a “walk away”) just after midnight in her pajamas. She

6

had not been given her medication or mental health services for at least three weeks.

(Child Haven Incident Reports and Walkway Checklists at CHIR036, Ex. Y). 7

• A 15-year-old diagnosed with bipolar disorder and oppositional defiant disorder (ODD)

8

was allowed to walk away from Child Haven. She had not been receiving mental health

services or her prescribed medication. (Id. at CHIR045, Ex. Y). 9

• A 12-year-old who cut herself all over her arms with a pencil sharpener was placed in the

10

“day room” for observation. She was not provided with any mental health services to

address her self-mutilation. (Id. at CHIR081, Ex. Y). 11

12 (See also Id. at CHIR023; CHIR032; CHIR039; CHIR051-053; CHIR054; CHIR049; CHIR067;

13 CHIR072; CHIR083; CHIR089 (describing similar situations to those detailed above), Ex. Y).

14

Additional reports confirm that Defendants lack an array of services to meet the needs of

15 foster children with severe mental health issues. (See, e.g., Missouri Alliance Report at 8-9, Ex.

16 F) (County consultant found that children with high level mental health needs placed in so-called

17 treatment homes are at risk due to lack of training, support, standards, and accountability, and

18 high numbers of children in homes). Indeed, Director Morton, himself, has stated that there are

19 not adequate mental health placements and that “[o]ften, when a child is stabilized in an in-patient

20 facility and ready for release, there is no lower level of care provider willing or able to accept the

21 child.” (Morton Report to Rep. Berkley at 12, Ex. D).

22

b. Denial of Medical and Dental Care

23

The named plaintiffs have also experienced problems with access to medical and dental

24 care. For example, King A. had serious respiratory problems while at Child Haven, but was not

25 taken to see a specialist for nine or ten months, during which time he was not allowed to go

26 19 Incident Reports give a report of incidents occurring in the teen girls’ cottage (Nork), as well as actions taken as a
result. Walkaway Checklists are filled out when youth leave Child Haven without permission and unsupervised. See
27 Crawford Decl. at ¶ 19 (noting that Child Haven staff regularly allowed her grandsons to “walkaway”).

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1 outside at all. (Logan Dep. at 116:13-16, Ex. TT; See also, Romero Dep. at 78:2-8, Ex. VV; 2 Anderson Dep. at 101:9-21, Ex. WW).20 Defendants’ own documents demonstrate that access to

3 adequate medical and dental care is a common problem for many Clark County foster youth.

4 (See, e.g., March 26-29, 2007 DCFS Clark County Case Review at STATE 227105, Ex. V) (State

5 review of Clark County finding that nearly 50% of foster children were not receiving adequate

6 services to meet their physical and mental health needs).

7

Multiple sources suggest that DFS routinely fails to ensure that foster youth have access to

8 Medicaid, which is a major barrier to obtaining medical care. Foster parents have reported that

9 “[t]imely access to a Medicaid card or Medicaid reference number is needed so that medical

10 appointments and services can be scheduled and obtained in a timely manner” and that

11 “[c]hildren are placed without a medical card or Medicaid reference number causing delays in

12 scheduling medical appointments.” (Statewide Multidisciplinary Team Quarterly Report, Jan13 March 2007 at STATE 234023-234024, Ex. Z21; See also State Child Welfare Multidisciplinary

14 Team Monthly Report, December 2006 at 19, Ex. BB (foster parents report lack of timely access

15 to treatment, lengthy delays if prior authorization is needed from Medicaid)).

16

Denial of necessary medical and mental health services is itself a form of further neglect.

17 As shown above, all foster children in Clark County are at risk of suffering this additional harm

18 while in the custody of Defendants.

19

4. Defendants Fail to Provide Foster Children With Stable Placements.

20

Being removed from family and placed in foster care is a traumatic disruption in a child’s

21 life. Placement disruptions while in foster care cause additional harm to foster children, including 22 affecting their educational progress and mental health outcomes.22 In addition, research has

23
20 Recent declarations regarding children in DFS custody confirm these continuing problems. (See Paikai II Decl. at
24 ¶¶ 13-15, 18 & 20; Declaration of Nancy Danelson (“Danelson Decl.”) at ¶¶ 17-19).

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21 Although the State Multidisciplinary Team only reviews a small sample of cases, the fact that they reinforce the findings of other, independently conducted reviews – as well as the fact that each sample of cases reviews tends to reveal similar problems – lends them added significance. (See 7/6/07 Decision Making Group Minutes at STATE 226018, Ex. AA (stating “while the sample is not statistically significant, that most issues are apparent and keep showing up review after review”)).

22 See Casey Alumni Study at 40-43, Ex. Q (optimizing placement stability had 22% reduction in undesirable mental

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1 shown that frequent placement disruptions while in foster care increase the risk of delinquency 2 for boys in particular.23

3

Despite the known harms resulting from placement disruptions, Defendants operate a

4 system in which placements often break down, and children are shuttled from one house, group

5 home, and institution to another. Not surprisingly, all of the named plaintiffs have experienced

6 multiple placement disruptions while in the custody of DFS. For example, Summer and Frank B.

7 were moved eight or nine times in less than five months. (Paikai Decl. I. at ¶¶ 7-15 (Docket No.

8 79)). These placement disruptions were due to many factors, including being abused or neglected

9 in foster homes; being placed with foster parents who were ill-prepared and ill-supported to care

10 for their many needs; and a combination of these and many other systemic deficiencies. (See Id.;

11 Paikai Dep. at 39:14 – 52:22, Ex. XX; see also Logan Dep. at 113:9 – 114:16, Ex. TT; Logan

12 Decl. at ¶¶ 13-14 (Docket No. 82)).

13

Named plaintiffs’ experience of being shuttled from placement to placement while in the

14 custody of Clark County DFS is common. The last federal performance review of Nevada’s child

15 welfare system found that only 31 percent of foster children in Clark County had stable

16 placements. (Final Report, Nevada CFSR, June 1, 2004 at 31-33, Ex. DD). Frequent placement

17 disruptions led to a lack of continuity in services, changes in schools, and an overall negative

18 impact on children’s well-being. (Id. at 32; see also Danelson Decl. at ¶¶ 12 & 15; Crawford

19 Decl. at ¶¶ 14 & 26). Subsequent reports indicate that Clark County seriously undercounts the

20 number of placements of children in its care. A review of case files found that in over two-thirds

21 of the cases reported to the federal government, children had experienced significantly more

22 placement disruptions than were reported. (AFCARS Assessment Review Findings: Foster Care

23 Data Elements for Nevada, July 2006, at 13-15, Ex. EE (finding that a significant number of

24 records had one move reported when the actual number of placements was between two and

25
26
27
28
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health outcomes, and almost 18% reduction in undesirable education outcomes).
23 See Abstract of Jospeh P. Ryan & Mark F. Testa, Child maltreatment and juvenile delinquency: Investigating the role of placement and placement instability, Children and Youth Services Review (Vol. 27) 227-249 (March 2005), Ex. CC (male victims of maltreatment with one placement in a foster home had a similar rate of delinquency to those who remained in their family homes, but the rate of delinquency almost doubled for children with four or more placements while in foster care).

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1 five)). Importantly, recent data provided by County Defendants themselves establishes that over

2 40% of children who entered foster care between October 1, 2005 and September 30, 2006 3 experienced three or more placements during their time in foster care.24 (Clark County DFS

4 Three or More Placements Data at FCPL009-027, Ex. FF).

5

The evidence cited above proves that Defendants operate a system in which foster

6 children face the constant threat of placement disruption. These disruptions are a symptom of the

7 many systemic deficiencies and poor practices in Clark County, discussed in more detail below.

8

B. Common DFS Practices Put All Class Members at Risk of Harm.

9

The harms described above are not the result of a few rogue caseworkers or freak

10 accidents, but rather the natural consequence of Defendants’ failure to operate a system that

11 protects and nurtures the abused and neglected children in its care. Among the systemic

12 deficiencies that have led to the current level of dysfunction are an ill-qualified, untrained, and

13 unsupervised workforce burdened with overwhelming caseloads; a failure to effectively

14 investigate reports of abuse and neglect; a failure to provide foster parents with critical

15 information about the children placed in their home; a lack of adequate support for foster parents;

16 a lack of reliable data and quality assurance systems; and the failure to provide children with

17 advocates to make their voices heard. These systemic deficiencies affect all class members, not

18 just named plaintiffs. As long as they are allowed to persist, all children will be at risk of

19 suffering serious harm.

20

1. Many DFS Caseworkers Lack the Qualifications, Training, and

Supervision Necessary to Ensure Foster Children’s Safety and Well-

21

Being.

22

In Clark County, high stakes decisions about the lives of foster children are entrusted to

23 caseworkers who are often unprepared to perform their challenging job responsibilities. They are

24 frequently hired with no child welfare experience; they are not adequately trained to make the

25

26 24 These numbers are even more disturbing considering that this data includes placement moves of children who were
in the system for as few as 30 days. Grimm Decl. at ¶ 41. Plaintiffs have made their best efforts to analyze the data
27 provided to them by County Defendants. Id. County Defendants have refused to provide the type of placement data
that plaintiffs requested many months ago, and have not given a satisfactory explanation of the limited data provided
28 thus far. Id.

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1 many difficult and complex decisions they must make every day; and they are not provided

2 adequate supervision to support them in making those decisions. Any one of these areas of

3 concern – the low entry requirements, the nonexistent or at best “stop-gap” training, the lack of

4 supervision – is dangerous on its own. Combined, these deficiencies create a situation in which

5 children will inevitably be subject to further harm.

6

a. Lack of Qualifications

7

Clark County regularly hires caseworkers who lack any social work education or

8 experience. Clark County requires only that caseworkers have a bachelor’s degree in any social

9 science – not social work in particular. (See Ruiz-Lee Dep. at 176:13-15, Ex. YY). Additionally,

10 although the other regions of Nevada (Washoe County and the rural areas) require that child

11 welfare caseworkers must be licensed as social workers, Clark County does not. As Director

12 Morton himself stated, “[t]hese entry requirements generally mean that new employees come

13 without the critical skills needed to ensure the safety, permanency and well-being of children and

14 to plan and facilitate family change.” (Morton Report to Rep. Berkley at 10, Ex. D).

15

b. Lack of Training

16

Despite the fact that new employees come to DFS lacking “critical skills,” Defendants fail

17 to provide adequate training to new caseworkers. Defendant Morton has acknowledged that since

18 workers come in with little (or no) experience, it is crucial that “comprehensive pre-service

19 training be provided to new staff before assuming case responsibilities.” (Morton Report to Rep.

20 Berkley at 10, Ex. D). He has admitted, however, that “[t]his has never happened in Clark

21 County.” (Id. See also Missouri Alliance Report at 4, Ex. F (“[t]raining is vital to the integrity of

22 clinical and case management practice performed by the agency” … “comprehensive training is

23 not offered to new staff.”)). The only training currently provided to new caseworkers in Clark

24 County is considered “stop-gap” even by the DFS Assistant Director in charge of training, and

25 falls far short of preparing caseworkers to perform their crucial role in ensuring children’s safety

26 and well-being. (Ruiz-Lee Dep. at 157:17-20, Ex. YY).

27

Further complicating this issue is the fact that Clark County DFS is uncertain who even

28
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has responsibility – the state or the county – for new caseworker training. (Ruiz-Lee Dep. at

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1 153:1-14, Ex. YY). According to Defendant Morton, the “state has been unsuccessful in

2 developing and delivering training that adequately prepares caseworkers for the job;” but since

3 Clark County has never had its own training capacity, it has remained reliant on the state for

4 provision of core training to new staff. (Morton Report to Rep. Berkley at 9, Ex. D).

5

As a result, according to a former DFS Assistant Director25 “[w]e have an untrained

6 workforce and we have untrained supervisors, and people are struggling with knowing how to do

7 their job.” (Rubin Dep. Vol II at 222:1-3, Ex. ZZ). This same Assistant Director pointed to

8 training as the greatest systemic issue in DFS, and the most prevalent issue brought to her by her

9 managers, who supervised the large majority of caseworkers in the agency. (Id. at 269:18 –

10 270:18 (stating that caseworkers are not clear about many day to day details, including what to do

11 before you place a child)). She described the training needs as global: “investigative training,

12 case management training, ongoing safety training, supervisory training, pretty much anything

13 you can think of.” (Id. at 222:11-15, Ex. ZZ; See also State Multidisciplinary Team Report Jan-

14 March 2007 at STATE 234015-016, Ex. Z (describing basic types of training that are needed)).

15

The lack of caseworker training puts all children in the class at risk of harm. Defendant

16 Morton himself has explicitly described the wide-ranging harms to children resulting from the

17 lack of training: “The consequences of this [lack of comprehensive pre-service training] can be

18 seen in reviewing almost every case. … Safety and risk factors are often missed or

19 misinterpreted. Many caretaker and child needs are never identified…” (Morton Report to Rep.

20 Berkley at 10, Ex. D. (emphasis added); see also Rubin Dep. Vol. II at 270:24-25, Ex. ZZ (“if

21 someone isn’t well trained, then a child could be put at risk”)).

22

c. Poor Supervision

23

The problems associated with a poorly qualified and trained staff are exacerbated by the

24 absence of administrators and supervisors who have the professional training and background to 25 provide adequate supervision.26 All the way up the chain of command, there is a serious lack of

26
27
28
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25 Ann Rubin was one of three Assistant Directors when she was deposed on November 13 and December 6, 2007, but she left the position in mid-December 2007.

26 Notably, John Goad, an independent contractor County Defendants hired to evaluate aspects of their system, recently wrote an extensive evaluation of the Michigan Department of Human Services. He expressed serious

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1 child welfare experience. In Clark County, most supervisors are not licensed as social workers

2 and only about 25% of line supervisors have a master’s degree in social work. (79 Child Death

3 Review Cases: Staff Qualifications, Exhibit HH). Only one (out of six) of the Assistant Managers

4 has a master’s degrees in social work (Id.). Even the people at the highest levels of the State and

5 County agencies do not necessarily have any background in child welfare. (See Ruiz-Lee Dep. at

6 28:3 – 29:4, Ex. YY (noting that before becoming an Assistant Director at DFS, Ms. Ruiz-Lee

7 had never worked in a child welfare agency); Rubin Dep. at 29:9-10, Ex. ZZ (state administrators

8 do not have a lot of child-welfare expertise)).

9

As Defendant Morton himself has acknowledged, multiple reviews of Clark County have

10 noted that supervisors often lack knowledge and skills in monitoring casework, assisting workers

11 in making decisions, holding workers accountable, and improving performance. (Morton Report

12 to Rep. Berkley at 11, Ex. D; see also Rubin Dep. Vol II at 221:13-20, Ex. ZZ (“[s]ystematically,

13 there’s never been good supervisory training” statewide or locally, despite the fact that “everyone

14 identifies that the supervisor line is the most critical line in child welfare.”); Agency Improvement

15 Plan for Clark County DFS (“AIP”), Ex. II; Statewide Multidisciplinary Team Report Jan-March

16 2007 at 234016, Ex. Z)).

17

This lack of such essential supervisory skills has negative consequences for children. As

18 noted in the Agency Improvement Plan for Clark County DFS,27 “[i]nadequate supervisory

19 oversight and QA [quality assurance] at case closure” impacts the safety goal of keeping children

20 “first and foremost protected from abuse and neglect.” (AIP at 130000099, Ex. II).

21

Caseworkers are the immediate protectors of foster children’s safety and well-being. Yet,

22 as shown above, Clark County caseworkers are not prepared or supported to fulfill that role,

23 placing all foster children at risk of harm.

24

25
26
27
28
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concerns about top administrators in a child welfare agency holding positions “critical to the protection of …foster children” lacking any education or experience to prepare them to fulfill their challenging responsibilities.” (John Goad, Michigan Department of Health Services: An Evaluation of the Capacity to Assure the Safety of Foster Children, February 11, 2008, at 7, Ex. GG).
27 Agency Improvement Plans are part of the federal review process of state child welfare agencies.

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1

2. DFS Caseworkers Have Dangerously High Caseloads.

2

Compounding the impact of the lack of experience and training, many Clark County case

3 workers are also burdened with unmanageable caseloads. Defendant Morton recognizes that

4 generally accepted professional standards for child welfare practice recommend caseloads of 12

5 to 15 children per case manager. (Letter from Tom Morton and Virginia Valentine to Governor

6 Gibbons (“Morton Letter to Gov. Gibbons”) at 2, Ex. JJ). He has admitted, however, that

7 “currently foster care caseloads are at a dangerously high level of 39 children per case manager”

8 and that such caseload ratios place children “at an unacceptable level of risk.” (Id. at 2; see also

9 Rubin Dep. Vol II at 220:4-8, Ex. ZZ (stating that “[m]any workers have over 40 kids” and

10 several in-home workers “have over 50.”); Missouri Report at 4, Ex. F (finding in their

11 caseworker interviews that “caseloads of 40-60 were common.”)). Defendant Morton has also

12 admitted that “[u]niformly, all examinations of Nevada’s child welfare system have cited high

13 caseloads as a preeminent threat to the safety, permanency, and well-being of abused and 14 neglected children in Nevada.” (Morton Letter to Gov. Gibbons at 1, Ex. JJ;28 See also Morton

15 Report to Rep. Berkeley at 8, Ex. D (stating that “in virtually every aspect of DFS operation, the

16 agency remains understaffed relative to the levels necessary to meet the safety, permanency and

17 well-being needs of maltreated children.”); Missouri Alliance Report at 4, Ex. F (“overwhelming

18 size of caseloads carried by permanency case managers constrains even the best case manager

19 from carrying out best practices in child welfare.”)).

20

High caseloads impact caseworkers’ ability to meet children’s basic needs for safety, well-

21 being, and permanency in many ways, including:

22

• High caseloads prevent caseworkers from having contact with children and families, the

most important factor in keeping children safe. Defendant Morton has acknowledged that

23

high caseloads have a direct impact on “frequency of child and family contact.” (Morton

Report to Rep. Berkley at 8, Ex. D; see also Rubin Dep. Vol II at 220:1-15, Ex. ZZ (high

24

caseloads are “a huge systemic issue that relates back to why children aren’t seen on a

regular basis.”); AIP at 130000102, Ex. II (noting that the “[i]nability to manage or

25

26 28 Although 27 new case manager positions have been approved, as of January 2008, none of these positions had
been filled. (Ruiz-Lee Dep. at 236:10-14, Ex. YY). According to DFS leadership, the caseload situation may well
27 have worsened since Morton sent his letter to Governor Gibbons due to an increase in foster children. (Id. at 234:3-
11). Additionally, even if the positions are filled, caseloads will still remain above professional standards. (Id. at
28 235:1-21).

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1

coordinate visitations due to high caseloads” prevent workers from increasing the

frequency of visits)).

2

• High caseloads lead to inadequate assessments, or a failure to conduct assessments at all.

3

(See Morton Report to Rep. Berkeley at 9, Ex. D (stating that caseworkers lack sufficient

time to conduct a comprehensive assessment); see also AIP at 130000100, Ex. II

4

(identifying high caseloads (or lack of training) as leading to “inadequate assessment of

children’s needs”)).

5

• High case loads harm children’s chances of achieving permanency. (See Rubin Dep. Vol

6

II at 220:19- 221:1, Ex. ZZ (citing “timely movement to permanency for children” as

being most severely impacted by high caseloads); AIP at 130000100 & 01, Ex. II

7

(identifying high caseloads as a factor preventing achievement of permanency goals

appropriate to the child’s needs)).

8

9

The above evidence proves that Clark County is staffed by ill-qualified, inadequately

10 trained, and poorly supervised caseworkers who are burdened with caseloads three or more times 11 larger than recommended levels. Under these circumstances, named plaintiffs29 and all foster

12 children are placed at risk of harm.

13

3. DFS Fails to Conduct Adequate Investigations of Child Abuse/Neglect

Complaints.

14

15

Clark County routinely fails to investigate reports of abuse or neglect placing countless

16 children in serious risk. (See, e.g., Paikai II Decl. at ¶ 5; Crawford Decl. at ¶ 9). The experiences

17 of the named plaintiffs provide vivid examples of such failures, and the terrible harms that result.

18 Clark County DFS failed to investigate the multiple reports of abuse and neglect that were made

19 while the A. children were living in one of their foster homes (Logan Decl. at ¶ 10 (Docket No.

20 82); , Logan Dep. at 52:11 – 53:18, 123:18 – 125:6, Ex. TT); failed to investigate reports and

21 evidence of sexual abuse of Summer B. and physical abuse of Frank B. in a foster home (Paikai

22 Decl. I at ¶¶ 6, 11-12 (Docket No. 79)); and failed to investigate multiple reports of abuse or

23 neglect of Clark K. and his little brother before he entered care (Clark K. Decl. at ¶¶ 2-3 (Docket

24 No. 78)). After deciding to place Clark K. and Donna C. back with their respective biological

25 mothers, DFS did not even bother to check in on their status, resulting in serious harm to both

26 children. (Id. at ¶ 16; Romero Decl. at ¶ 10).

27
28
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29 Information obtained through discovery shows that the A. children’s caseworker has 43 cases on her caseload. (AFCARS 0074, Ex. KK).

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1

Clark County’s failure to conduct adequate investigations is documented in multiple

2 sources, including recent child fatality public disclosure forms, reports of the Statewide

3 Multidisciplinary Team, and reports of independent child welfare consultants hired by Clark

4 County. Child Welfare Consultant Edward Cotton’s review of abuse and neglect investigations in 5 Clark County30 revealed that investigations were not initiated in a timely manner, insufficient

6 information was gathered to make a good judgment in more than half of the cases reviewed, and

7 investigators’ decisions to rule a child abuse complaint substantiated or unsubstantiated were

8 incorrect in two-thirds of the cases. (Independent Consultant Edward Cotton’s Administrative

9 Review of Child Abuse and Neglect Investigations at 4, 18, 23-25, Ex. LL. See also Statewide

10 Multidisciplinary Team Report, Jan-March 2007 at STATE 234004, Ex. Z (finding that only 50%

11 of children in the sample were seen immediately when the allegations suggested present danger)).

12 Notably, Defendant Morton has affirmed these findings, admitting that inadequate abuse and

13 neglect investigations are the norm in Clark County. (Morton Report to Rep. Berkley at 6-7, Ex.

14 D; See also Id. at 9-10 (noting that investigations are generally brief and that staff lack training on 15 how to conduct investigations)).31 Most recently, Assistant DFS Director Ruiz-Lee confirmed

16 that there is no reliable data to refute the findings of the Cotton reviews or to suggest that the

17 quality of investigations has improved at all. (Ruiz-Lee Dep. at 141:7-143:2, Ex. YY).

18

Recent child fatalities reported on the State’s website provide further evidence that the

19 failure to conduct adequate child protective services investigations has dire consequences for

20 children. See supra Part III.A.1. In 22 (44%) of the 50 child deaths in 2007 reported at the

21 website the family had a history of child protective services referrals. In a third of those cases

22 there were four or more reports of abuse or neglect before the incident leading to the child’s 23 death.32

24

25 30 Prior to conducting his review of over 1300 child welfare cases in Clark County (Cotton Report, Ex. E), Mr.
Cotton was hired to review child abuse and neglect investigations conducted by DFS.
26 31 Though both County and state Defendants expended much effort trying to undermine or discredit some of the
findings of the Cotton Report, Defendant Morton relied extensively upon Mr. Cotton’s findings in his June 2007
27 report to U.S. Representative Berkley.
28 32 See http://dcfs.state.nv.us/DCFS_ChildFatalities_Disclosures_Clark.htm (last visited 3/11/08).

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1

The ability to make determinations about children’s safety is one of the core

2 responsibilities, if not the primary role, of a child welfare agency. Defendants’ failure to

3 adequately perform this most basic and critical task – as evidenced by the many sources of

4 information described above – places all children in the class at risk of harm.

5

4. DFS Fails to Regularly Visit Children In its Custody to Ensure Their

Health and Safety. 6

7

The failure to conduct regular caseworker visits is a chronic problem in Clark County that

8 has placed named plaintiffs and class members at risk. See e.g., Crawford Decl. at ¶ 13. For

9 example, named plaintiffs Donna C. and Clark K. each suffered significant harm when DFS

10 placed them back with biological parents without conducting appropriate safety assessments and

11 then failed to visit them. (Romero Decl. at ¶¶ 7 & 10 (Docket No. 80); Clark K. Decl. at ¶¶ 14-

12 15, 17-20, 25 (Docket No. 78)).

13

Numerous sources have documented DFS’s chronic failure to regularly visit foster

14 children, and Defendant Morton has admitted that “conducting regular visits with children and

15 parents is an ongoing challenge.” (Morton Report to Rep. Berkley at 7, Ex. D (noting that Cotton

16 case review found that less than 50% of kids had been seen in last 30 days, 33% had been visited

17 in last 30-60 days, and more than 20% had not been seen in more than 60 days). See also

18 Statewide Multidisciplinary Team Report, Jan-March 2007 at STATE 234024, Ex. Z (finding that

19 foster parents repeatedly reported concern that children are not contacted or visited regularly by 20 workers; in three particular instances, workers failed to visit for 12 to 18 months)).33 Defendant

21 Morton has also voiced serious concerns about his agency’s failure to visit children regularly.

22 When he was first advised of the Cotton review finding that many children were not receiving

23 regular visits, he said, “I consider this situation very dangerous . . .” (Email from Tom Morton

24 (5/28/06), CCCR-1176-77, Ex. MM). Given that caseworkers are still burdened with

25 overwhelming caseloads, it seems inevitable that this dangerous situation still exists.

26
27
28
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33 Defendants also appear to have no accurate information about how often caseworkers are actually visiting children other than the case reviews; data from the State and County varies wildly. (Ruiz-Lee Dep. at 144:22–46:6, Ex. YY (“there is a discrepancy between the UNITY data and the hand-counted data”); Rubin Dep. at 74:1–5:8, Ex. ZZ). Nor do they track any information about the length or quality of visits. (Ruiz-Lee Dep. at 147:22–148:20, Ex. YY).

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1

5. DFS Fails to Provide Foster Parents with Adequate Information About

Children Placed in Their Homes and Fails to Provide Them Adequate

2

Support.

3

Defendants regularly fail to provide foster parents with critical information about their

4 foster children or with adequate support to meet their needs. (See, e.g., Statewide

5 Multidisciplinary Team Report, Jan-March 2007 at STATE 234018, Ex. Z (finding that “[f]oster

6 parents should have better supervision/screening of foster homes, support services for foster

7 homes, placement transition planning, strengthen FC recruitment/matching” and “should be

8 adequately prepared when children with emotional problems are placed in their care.”) See also

9 Paikai II Decl. at ¶¶ 10, 12 & 14; Danelson Decl. at ¶¶ 13-14). The experiences of the named

10 plaintiffs illustrate the harms that can and do result from this systemic problem. For example,

11 Jalen A. and his siblings were placed in shelter and foster homes that lacked the information and

12 services to care adequately for their basic needs, leading to tragic results. (Logan Decl. at ¶ 13

13 (Docket No. 82); Logan Dep. at 121:4-16, 123:2-17, Ex. TT). Donna C. and the B. children were

14 similarly placed in multiple foster homes that were not given critical background and health

15 information, leading to the failure of many of those placements. (See Romero Decl. at ¶11

16 (Docket No. 80); Paikai Decl. I at ¶¶ 2, 6-10, 13-14 (Docket No. 79); Paikai Dep. at 123:15 –

17 124:6, Ex. XX). In addition, DFS’s failure to inform Clark K.’s grandparents about the hearings

18 in which the decision was made to send Clark to Texas or seek their involvement had dire

19 consequences for him. (Anderson Dep. at 31:18–32:5, Ex. WW).

20

Documents obtained through discovery confirm that the lack of information described

21 above is common and pervasive within the agency, exposing all children in the class to risk of

22 harm. (Statewide Multidisciplinary Team Report Jan-March 2007 at STATE 234023-234024, Ex.

23 Z (finding that by month, only 57%, 54%, and 33% of foster parents reported receiving

24 “sufficient background information regarding children placed in the home.”); Nevada Foster

25 Parent Survey at 11, Ex. W (finding that over 40% of foster parents reported that caseworkers do

26 not inform them of foster children’s behavioral needs prior to placement, and over 33% did not

27 receive sufficient information about the child’s medical history or educational needs); Missouri

28
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Alliance Report at 7-9, Ex. F (finding that sharing of information about the needs of the child

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1 entering foster care or changing placements is a widespread problem)). Access to caseworkers as

2 well as access to supportive services, such as respite care, are sorely lacking system wide.

3 (Statewide Multidisciplinary Team Report, Jan-March 2007 at STATE 234024, Ex. Z (finding

4 that staff do not return phone calls, and the agency “seems to respond only to requests for a

5 child’s removal from the home”); DFS Recruitment and Retention Plan at STATE 230000015-16,

6 Ex. NN (finding that Clark County lacks sufficient respite resources)). This lack of information

7 and support directly affects not just the day-to-day safety of children, but also the stability of their

8 placements. (Statewide Multidisciplinary Team Report, Jan-March 2007 at STATE 234023, Ex. Z

9 (finding a correlation between lack of information and requesting removal of foster child and

10 stating “[p]lacement disruptions may have been avoided had information regarding child’s

11 behavioral health history been provided prior to or at the time of placement.”); See Id. at STATE

12 234015, Ex. Z (noting failed foster placement due to lack of medical knowledge)).

13

DFS entrusts the daily care of many of the children in its custody to foster parents of its

14 choosing. To ensure the safety and well-being of the vulnerable children in its care, it is DFS’

15 obligation to adequately train, inform, and support foster parents. As demonstrated by the

16 evidence above, DFS falls far short of living up to this responsibility.

17

6. Defendants Lack an Adequate Management Information and Quality

Assurance System. 18

19

As a matter of good practice, child welfare agencies must maintain accurate up-to-date

20 information about children in their care in order to ensure health and safety. On a broader level, it

21 is also critical that agencies use data as part of an overall quality assurance system to monitor the

22 general functioning of the system and make needed improvements. (DCFS Case Review of the 53

23 Cases in Clark County Identified by Ed Cotton’s Report, dated April 27, 2007, at 2, Ex. OO

24 (noting that “an internal case review process is an essential part of a well-functioning child

25 welfare system.”). Defendants fail to do either.

26

Multiple sources confirm that State and County Defendants fail to gather and use reliable

27 data to monitor the safety and health of the children in its system. (See Blue Ribbon Panel Report

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1 on Child Deaths at 5, Ex. PP (finding glaring deficiencies in the state’s UNITY34 database, noting

2 that documentation is severely lacking, and concluding that UNITY produces little, if any, usable

3 information); Morton Report to Rep. Berkley at 7, Ex. D (finding that “[d]ocumentation of case

4 practice . . . is inconsistent or absent from UNITY and hard copy files” and “often found to be

5 incomplete, irrelevant or difficult to discern . . .”); AIP at 130000099, Ex. II (finding “lack of or

6 inconsistent documentation in case record and UNITY” as a “causative factor” interfering with 7 achievement of the majority of safety, permanency, and well-being objectives)).35 Clark County

8 caseworkers consistently fail to document critical information in case files such as investigative

9 contacts, family background checks, progress toward case goals, the basis for safety decisions,

10 and contact with service providers for children. (Id.) Moreover, Clark County does not

11 systematically monitor at least one significant group of children for whom DFS has responsibility 12 – the thousand-plus36 children in unpaid placements. (9/25/07 DMG Minutes at STATE 226038),

13 Ex. QQ (DFS Director Morton expressing “concern that UNITY does not count children in non-

14 paid placements”). These poor documentation practices represent a critical weakness in case

15 practice that is not being adequately addressed by Defendants. (Rubin Dep. Vol II at 210:13-14,

16 Ex. ZZ (“[a]t this point we don’t have a process to monitor case notes being entered in a timely

17 basis.”); See also Missouri Alliance Report at 5, Ex. F (noting that “[it] is impossible to imagine

18 trying to administer a child welfare program of this magnitude without basic accurate

19 management information” and that the lack of such information would “lead the DFS

20 administrators to some incorrect decisions.”)).

21

Defendants have also failed to develop an adequate quality assurance system to monitor

22

23 34 The Unified Nevada Information Technology for Youth (UNITY) system is Nevada¹s response to the federal
requirement for a Statewide Automated Child Welfare Information System (SACWIS). The UNITY system was
24 designed to support all aspects of child welfare case management and service delivery.
35 In fact, the data quality within UNITY is so poor that the federal Administration for Children and Families has
25 requested that Clark County clean up the data. The County estimates that correcting the data errors would cost $10
million. (Morton Report to Rep. Berkley at 10-11, Ex. D. See also AFCARS Assessment Review Findings for
26 Nevada, Ex. EE (detailing a wide range of concerns with the accuracy of Nevada’s data based on comparisons of
actual case records with what was reported in AFCARS, a federal child welfare database)).
27
36 See Clark County DFS Relative Placement Data at FC Relatives 002 – 004, Ex. S (1,210 children with removal
28 date between Oct 1, 2006 and Sep 30, 2007 placed in unlicensed relative placements).

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1 the care they are responsible for providing to abused and neglected children. (Blue Ribbon Panel

2 Report at 4, Ex. PP (finding that “[t]he State needs to have in place a system of oversight and

3 accountability.”). Defendants’ UNITY database is mired with problems that impede “effective 4 case and agency management” (Morton Report to Rep. Berkley at 10, Ex. D).37 and the current

5 case review process is lacking. Although County Defendants entered into a one-time contract

6 with Consultant Ed Cotton for a review of child welfare cases involving children under the age of

7 six years in 2005-2006, the case review protocol utilized in the Cotton Report has not been

8 incorporated into the County Defendants’ practices. (See Ruiz-Lee Dep. at 52:21-23, 55:1-14,

9 Ex. YY (testimony about number of cases reviewed and admission that they are woefully

10 inadequate to determine if policies are being implemented). See also Rubin Depo, Vol II at 11 243:17-19, Ex. ZZ (agency does not currently do random case reviews)).38

12

The harms from the dysfunctional data system and lack of quality assurance process are

13 many. As Defendant Morton explained:

14

Managers have had to make decisions based on anecdotal information or based on their

personal assumptions about the performance of the organization. Without systematic

15

quality assurance activities, the true size of problems was never known, leading to some

instances in which problems were incorrectly assumed to be isolated when, in fact, they

16

were prevalent.

17 (Morton Report to Rep. Berkley at 11, Ex. D). Such management practices and deficiencies

18 contribute to an unsafe environment in which all children in foster care are exposed to

19 unnecessary risk.

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37 In response to this dysfunction, County Defendants have developed several free-standing databases, which they refer to as the Reporting Module and COGNOS. But these databases are also incomplete. (Ruiz-Lee Dep. at 114:713, 223:13 – 224:14, Ex. YY). Additionally, many staff, units, and supervisors have developed their own so-called databases, which are often no more than hand counts on a piece of paper, where significant amounts of information are stored. The information in these “underground databases” is isolated from other data sources, frequently inaccurate, and sometimes only in hard copy files. (Morton Rpt to Rep. Berkley at 10, Ex. D; Ruiz-Lee Dep. at 121:17-19, 146:4 – 147:5, Ex. YY). As a result, data about any given child may be strewn throughout a variety of possible locations; data in the individual databases may not be in UNITY; and critical information about a child may be kept only in hard copy form. (Rubin Dep. Vol. II at 208:14 – 212:23, Ex. ZZ).
38 State Defendants use case reviews as part of a Quality Assurance/Quality Improvement process, but those reviews occur infrequently – every nine months – and include less than 30 cases. (Morton Report to Rep. Berkley at 4). Although these reviews have revealed a variety of on-going problems in Clark County, they provide only a snapshot of practice, and are not used in conjunction with review of more comprehensive data.

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1

7. Defendants Fail to Provide Foster Children with an Advocate in Their

Court Proceedings.

2

3

In abuse and neglect cases, critical decisions affecting a child’s life are made at the initial

4 court hearing determining whether the child should be removed from his or her family.

5 Subsequent hearings may address equally fundamental issues such as where the child will live or

6 who may have contact with the child. With such important matters at stake, foster children need

7 an advocate in dependency court to ensure their voice is heard. Given the many systemic

8 problems documented above, including unmanageable caseloads, it is all the more important for

9 the child to have an advocate because case workers may not be aware of crucial issues.

10

Unfortunately, only about 35% of children in Clark County are provided with a guardian

11 ad litem or attorney. 39 Moreover, of those few children who are represented, the vast majority do

12 not have any representation until well after many critical decisions are made about their lives.

13 (Hiltz Decl. at ¶ 20 (estimating that that 90% of the referrals received by CAP are to represent

14 children who have been in the foster care system for a year of more and that two-thirds have no

15 representation at termination of parental rights hearings); Thacker Dep. at 134:11-17, Ex. AAA

16 (estimating that at least 90% of children do not have CASAs appointed until their review

17 hearings)). In fact, professionals at CAP and CASA have provided estimates suggesting that only

18 about 3.5% of Clark County children are represented by either an attorney or guardian ad litem 19 during their first year in care when crucial decisions are being made about their fates. (Id.).40

20

The failure to provide children with representation in dependency proceedings not only

21 denies them a role in important decisions about their lives, but also leads to ill-informed decisions

22 and eliminates an important safeguard against harm. The experiences of the named plaintiffs

23 demonstrate the harm that can occur when children are denied representation. For example,

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39 See Deposition of Patricia Thacker (“Thacker Dep.” at 48:11-13, Ex. AAA (about 400 children in Clark County have a Court Appointed Special Advocate (CASA)); Declaration of Steven Hiltz (“Hiltz Decl.”) at ¶ 8 (the Children’s Attorney Project (CAP) provides legal representation to approximately 1,000 children). The estimate of 35% assumes there is not an overlap in these populations, and is based on an approximation that there are 4,000 children in foster care in Clark County. See infra Part IV.A.
40 If 90% of the 1,400 children who are represented do not get a CAP attorney or CASA until after their first year or review hearing, this means that only 10%, or 140, are represented at earlier stages of the dependency process. These 140 children represent about 3.5% of the approximately 4,000 children in the Clark County foster care system.

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1 during their first year in care, neither the A. children nor the B. children were provided a guardian

2 ad litem or an attorney. During this time, the children experienced a variety of harms —

3 including multiple placement changes, emotional abuse, physical abuse, and, tragically, the death

4 of a sibling. (Paikai Decl. I at ¶¶ 3, 4, 7, 10, 11 (Docket No. 79); Logan Decl. ¶¶ 4, 10, 12-14).

5 Clark K., who has never been provided with representation of any kind, suffered horribly when

6 neither he nor his grandparents were permitted to attend a court hearing that resulted in his re-

7 location to Texas. (Clark K. Decl. at ¶¶ 7-10, 17-18 (Docket No. 78); Danelson Decl. at ¶ 16;

8 Paikai II Decl. at ¶ 25).

9

Many of the harms experienced by named plaintiffs may well have been avoided or at

10 least mitigated had Defendants provided them with the advocates to which they are entitled.

11 Given the chronic shortage of advocates in Clark County, this is a common experience for many

12 class members.

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IV. PLAINTIFFS’ CLASS IS ENTITLED TO CERTIFICATION UNDER THE RULE 23(A) LEGAL STANDARD.
Plaintiffs seek to certify a class of all children who have been, are, or will be victims of child abuse and neglect and have been, are, or will be in the legal custody of Clark County DFS. Because of the widespread and systemic nature of the violations at issue in this case, it is appropriate – and critical – for the Court to certify this case as a class action.
Plaintiffs have described in some detail the harms suffered and pervasive risks to which children in the putative class are subjected while in Defendants’ custody. See Section III.A. While the nature and extent of the harms suffered by class members varies, those individual differences are of little consequence to class certification. The plaintiff class seeks only injunctive relief, not individual damages, so an individual inquiry into the relief to be afforded each class member is not required.
Plaintiffs have also provided overwhelming evidence, most of it from Defendants themselves, that those injuries and risks are not the result of a few incompetent or maverick caseworkers nor are they isolated to a few of Defendants’ offices. See Section III.B. They result from system-wide practices and deficiencies including unmanageable caseloads, poor training and

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1 supervision, and inadequate data and accountability practices. Taken together, the litany of harms

2 and the widespread practices contributing to such harms, clearly satisfy the two factors –

3 commonality and typicality – for which the Court sought additional information before ruling on

4 Plaintiffs’ Motion for Class Certification.

5

As plaintiffs discussed in their initial class certification papers, Rule 23 promotes judicial

6 efficiency by permitting many parties to litigate similar claims in one action, thereby eliminating

7 multiple and duplicative litigation. Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998), cert.

8 denied 526 U.S. 1003 (1999). A party seeking certification must show that: (1) the proposed

9 class is so numerous that joining all members individually is impractical (“numerosity”); (2) the

10 class shares at least one common question of fact or law (“commonality”); (3) the class

11 representatives’ claims are typical of the class (“typicality”); and (4) the named plaintiffs will

12 fairly protect the interests of the class (“adequacy of representation”). Hanon v. Dataproducts

13 Corp., 976 F.2d 497, 508 (9th Cir. 1992).

14

The sole question in determining the propriety of class certification is whether the

15 requirements of Rule 23 are met; this analysis does not include an inquiry into whether plaintiffs

16 have stated a cause of action or will prevail on the merits. Jordan v. Los Angeles County, 669

17 F.2d 1311, 1321 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982); Eisen v.

18 Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). To this end, when analyzing plaintiffs’ Rule 23

19 showing, the District Court “is bound to take the substantive allegations of the complaint as true.”

20 Blackie v. Barrack, 524 F.2d 891, 901 fn.17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976)

21 cited by Hernandez v. Alexander, 152. F.R.D. 192 (D.Nev 1993); Thomas v. Baca, 231 F.R.D.

22 397, 399 (C.D. Cal. 2005). In addition, while this Court has discretion to determine the propriety

23 of class certification, the exercise of that discretion must be within the framework of Rule 23.

24 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 630 (1997); Gulf Oil Co. v. Bernard, 452 U.S. 89, 25 100 (1981).41 Plaintiffs meet all of the Rule 23 requirements, as set forth in detail below.

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41 For example, applying an overly-restrictive legal standard in evaluating the requirements of Rule 23 constitutes an abuse of discretion, subject to reversal. Baby Neal v. Casey, 43 F.3d 48, 60 (3d Cir. 1994); see also Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001) (abuse of discretion when court’s certification assessment and ruling are “premised on legal error.”); Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985) (failure to follow Rule 23 parameters is an abuse of discretion).

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1

A. THE COURT HAS RULED THAT PLAINTIFFS’ CLASS IS SO

NUMEROUS THAT JOINDER IS IMPRACTICAL.

2

3

This Court has already held that plaintiffs’ proposed class meets the numerosity

4 requirement for certification. May 14, 2007 Order at 44-45 (Docket No. 134) (“Plaintiffs satisfy

5 the numerosity requirement.”). The Court’s conclusion was based on “the very numbers that

6 Defendants have determined are in the Clark County foster system.” Id. at 44. Given that those 7 numbers have not changed significantly,42 this Court should affirm its earlier ruling that the class

8 is so numerous that joinder is impractical.

9

B. THE CLASS SHARES COMMON ISSUES OF LAW AND FACT.

10

The second prerequisite to certification as a class action is that “there are questions of law

11 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The requirement of “commonality”

12 ensures that the class shares sufficiently comparable grievances that can be redressed through a

13 collective remedy. Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (commonality aims to

14 verify that “maintenance of a class action is economical”), cert. denied, 537 U.S. 812 (2002); see

15 also Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998) (commonality ensures “practical and

16 efficient case management”), cert. denied, 526 U.S. 1003 (1999).

17

1. In the Ninth Circuit, the Burden of Establishing Commonality Is

Minimal.

18

19

The Ninth Circuit construes the commonality requirement “permissively” and has

20 described the requirement as “minimal.” Hanlon, 150 F.3d 1011, 1019-1020 (burden of

21 establishing commonality is minimal); see also Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177

22 (9th Cir. 2007); Jordan, 669 F.2d at 1321 (permissive application means class usually establishes

23 commonality). The commonality test is “qualitative rather than quantitative – one significant

24 issue common to the class may be sufficient to warrant certification.” Dukes v. Wal-Mart, 509

25 F.3d 1168, 1177 (9th Cir. 2007)(citations omitted). The Ninth Circuit has recognized that the

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42 According to data provided from the Clark County DFS database, nearly 4,000 children were in foster care in Clark County from 10/01/06 – 9/30/07. (Clark County Placement Data, Ex. RR, DFSLCFC030 – DFSLCFC045). And according to data provided by the State, there were 4,173 children in foster care in Clark County as of October 31, 2007. (AFCARS Placement Summary for State, Clark, and Washoe, for 10-31-2007 at STATE 223007, Ex. SS).

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1 commonality requirement “is said to be met if plaintiffs’ grievances share a common question of

2 law or fact.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)(emphasis added)(quoting

3 Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (commonality met if class representatives

4 share “at least one question of fact or law with the grievances of the prospective class”)); see also

5 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (“The existence of shared legal issues with

6 divergent factual predicates is sufficient, as is a common core of salient facts coupled with

7 disparate legal remedies.”). The fact that the class seeks only injunctive relief further supports a

8 finding that commonality is satisfied. Because suits seeking solely class-wide injunctive relief do

9 not require individualized inquiries to determine damage awards, they “by their very nature often

10 present common questions satisfying Rule 23(a)(2).” 7A Wright et al., Section 1763 at 201.

11

2. Plaintiffs Surpass the Minimal Commonality Requirement.

12

In this case plaintiffs easily surpass the minimal requirements of Rule 23(a)(2). Though

13 Ninth Circuit case law dictates that they need only share one common question of law or fact to

14 satisfy the commonality requirement, the named plaintiffs share many questions of law and fact

15 with the prospective class. In fact, common questions of fact and law form the core of the named

16 plaintiffs’ claims, which are co-extensive with the claims of the class as a whole.

17

Plaintiff children challenge long-standing, systemic deficiencies in Defendants’ foster care

18 system that cause harm and risk of harm not only to the named plaintiffs, but inevitably to all

19 children in the system. As such, the ability of plaintiff foster children – as well as the ability of

20 the class as a whole – to prevail in challenging Defendants’ conduct rests on the resolution of the

21 same legal and factual issues. These common questions include:

22

• Whether Defendants’ operation of a dysfunctional system regularly places all children in

foster care at risk of harm; specifically, risk of death, abuse and neglect, denial of needed

23

medical and mental health services, and placement instability;

24

• Whether the following deficiencies exist in the Clark County child welfare system,

placing children at risk of the above described harms: 25

o A caseworker training program so lacking that caseworkers are ill-equipped to

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provide critical support to children and families;

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o Assignment of overwhelming caseloads to poorly qualified, trained, and supervised caseworkers;

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1

o Routine failure to adequately investigate allegations of abuse and neglect;

2

o Failure to ensure that foster children receive timely visits from caseworkers;

3

o Failure to provide critical information to foster parents about children in their

care, as well as the support they need to provide adequate care;

4

o Lack of representation for foster children in dependency court hearings,

5

denying them a voice in the decisions Defendants make about their lives;

6

• Whether Defendants’ operation of a foster care program with the deficiencies

described above, among many others – violates the mandates of the Substantive Due

7

Process Clauses of the United States and Nevada Constitutions, the Federal Adoption

Assistance Act, the Child Abuse Prevention and Treatment Act, and the Medicaid Act.

8

9

These common questions were pled in the original complaint and described in the original

10 motion for class certification. The present motion provides overwhelming evidence of the 11 common questions of law and fact that permeate this case. See generally supra Part III.

12

3. Cases Challenging System-wide Policies and Practices Have Regularly

Been Found to Meet the Commonality Requirement.

13

14

In civil-rights cases such as this one, the Ninth Circuit has held that “commonality is

15 satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the 16 putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (citing LaDuke

17 v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985)); Walters v. Reno, 145 F.3d 1032, 1045, 1047 (9th

18 Cir. 1998) (common question of law where plaintiffs challenge constitutionality of INS 19 procedures), cert. denied, 526 U.S. 1003 (1999).

20

Across the nation, federal courts have granted class certification in actions specifically

21 related to foster care asserting identical or analogous allegations of common questions of law or

22 fact. See e.g., Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (affirming district court’s

23 finding of commonality where common question of law was whether each child has a legal 24 entitlement to services and common question of fact was whether defendants systematically have

25 failed to provide those legally mandated services); Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.

26 1994) (finding “DHS’s systemic deficiencies in providing legally mandated child care services”

27 to be a common legal basis to support class certification); Kenny A. v. Perdue, 218 F.R.D. 277,

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300 (N.D. Ga. 2003) (citing Baby Neal, 43 F.3d at 53, 60) (commonality met where plaintiffs’

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1 challenge “systemic deficiencies” in “implementation of support programs and services for all

2 foster children”).

3

The Ninth Circuit – along with its constituent district courts – has cited with approval the

4 Rule 23 analysis laid out by the Third Circuit in Baby Neal. Armstrong v. Davis, 275 F.3d 849,

5 868 (9th Cir. 2001); Ziufang Situ v. Leavitt, 240 F.R.D. 551, 561 (N.D. Cal. 2007); Ferrari v.

6 Gisch, 225 F.R.D. 599, 606-07 (C.D. Cal. 2004). Like the foster children before this court,

7 plaintiffs in Baby Neal asserted numerous violations of their legal entitlement to comprehensive

8 foster care services. The Third Circuit found that the class easily met the commonality

9 requirement of Rule 23, holding that “putative class members in this case share the common legal

10 claim that DHS’s systemic deficiencies result in widespread violations of their statutory and

11 constitutional rights.” Baby Neal v. Casey, 43 F.3d 48, 61 (3d Cir. 1994). The Third Circuit

12 further observed that Rule 23(b)(2) classes “have been certified in a legion of civil rights cases

13 where commonality findings were based primarily on the fact that defendant’s conduct is central

14 to the claims of all class members…” Id. at 57 (citation omitted).

15

Here, just as in Baby Neal, the putative class members share the common legal claim that

16 the systemic deficiencies in the foster care system operated by Clark County and overseen by the

17 State of Nevada result in widespread violations of their statutory and constitutional rights. See

18 generally SAC (Docket No. 142-1).

19

4. Individual Factual Differences Among Litigants Do Not Preclude a

Finding of Commonality In Suits Challenging System-wide Practices. 20

21

The Ninth Circuit has explicitly held that in suits challenging system-wide practices

22 affecting all class members, “individual factual differences among the individual litigants or

23 groups of litigants will not preclude a finding of commonality.” Armstrong v. Davis, 275 F.3d

24 849, 868 (citing Baby Neal, 43 F.3d at 56); see also Walters, 145 F.3d at 1047-1048

25 (commonality satisfied where plaintiffs make a common allegation about the unconstitutionality

26 of the defendant’s actions, despite factual distinctions in the class members’ underlying claims);

27 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (“the existence of shared legal

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issues with divergent factual predicates is sufficient…”).

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1

Indeed, as the court in Baby Neal observed, Defendants’ “violations exist independently

2 of individual children’s circumstances; Defendants’ misconduct is established by reference to the

3 objective statutory and constitutional criteria.” Baby Neal, 43 F.3d at 62 (emphasis added). Here,

4 plaintiff foster children have alleged that DFS and DCFS have failed to provide them with

5 adequate and legally required services, violating their constitutional and statutory rights. Those

6 violations exist independently of the particular circumstances of the named plaintiffs and all other

7 individual class members.

8

a. Commonality Exists Where Class Members Are at Risk of

Suffering Harm Due to Systemic Legal Violations. 9

10

In determining commonality, district courts need only examine plaintiffs’ claims to

11 determine whether all class members are at risk of suffering a legal violation should plaintiffs

12 ultimately prove systemic violations – not whether they have already suffered injury. Walters v.

13 Reno, 145 F.3d 1032, 1045, 1047 (9th Cir. 1998) (certification appropriate even where some class

14 members have not been injured or aggrieved by defendants’ conduct), cert. denied, 526 U.S. 1003

15 (1999). Plaintiffs can demonstrate commonality by showing that system-wide deficiencies

16 “either violate class members’ rights currently or subject them to the risk of such a violation.”

17 Baby Neal, 43 F.3d 60-61; See also Id. at 56; Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,

18 155 (1982) (certification permits adjudication of issues “potentially affecting every [class

19 member])” (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1976)). In the present case, while

20 the nature and extent of their exposure to risk varies from day to day, from placement to

21 placement, the risk of harm is ever-present for all class members. All plaintiffs are subject to the

22 same common course of conduct by Defendants, putting them all at risk of harm.

23

Further, due to the uniquely transitory nature of foster care, it is “unreasonable to require

24 that all plaintiffs suffer from the same injury simultaneously.” Baby Neal, 43 F.3d 48, 60.43

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43 Additionally, because common question relates to the Defendants’ course of conduct, it is not a barrier to class certification that some class members were not subject to the illegal practices alleged by the class as a whole. Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998) (commonality satisfied where some but not all class members received proper treatment), cert. denied 526 U.S. 1003 (1999). In fact, the Ninth Circuit has recognized that would be “a twisted result” to allow to an agency to avoid system-wide class action litigation “that challenges the constitutionality of its general practices” by pointing to a few exceptions to the general pattern of violation of constitutional and statutory mandates. Walters, 145 F.3d at 1046.

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1 Constant change is a way of life for all class members; many foster children in Clark County

2 experience high numbers of placements while in foster care. See supra Part III.A.4. This fact,

3 combined with the evidence of the unfortunate prevalence of abuse and neglect in foster homes in

4 Clark County (see supra Part III.A.2), means that while an individual child may currently be in a

5 home where she is not being abused or neglected, she is always at risk of being moved to an

6 unsafe placement. Similarly, while a particular foster child may not currently require

7 psychological services, she may well require and be denied such services in the future. As long

8 as DFS fails to follow up on reports of abuse and neglect, as long as caseloads remain

9 “dangerously high,” as long as children are not visited regularly, as long as DFS fails to provide

10 foster parents with critical information about the children in their care – and the list goes on –

11 every child remains at serious risk of harm.

12

b. Commonality Exists Where Class Members Have Experienced

Different Types of Harm as a Result of Defendants’ Common

13

Course of Conduct.

14

It is not a barrier to class certification that individual class members have experienced

15 different types of harm as a result of Defendants’ unconstitutional and unlawful patterns and

16 practices. See Baby Neal, 43 F.3d at 57 (citing Califano v. Yamasaki, 442 U.S. 682, 701 (1976))

17 (neither a child’s specific circumstances nor her individualized injuries can defeat commonality).

18 Nor will plaintiff children’s individual need for varied, specific services affect their ability to

19 satisfy the commonality requirement. The Ninth Circuit has clearly held that a class comprised of

20 members with varying needs and factual circumstances is able to satisfy commonality. Armstrong

21 v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). In Armstrong v. Davis, a class of prisoners and

22 parolees with a range of physical and mental disabilities, requiring a range of services, sought

23 certification. Citing with approval Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994), the

24 Armstrong court concluded that those factual disparities would not preclude a finding of

25 commonality. Id. Rather, the common issue was defendants’ failure to consistently

26 accommodate plaintiffs’ various disabilities. Id. The variation in plaintiffs’ needs and injuries

27 was not the focus in determining commonality; what mattered was that they were all affected by

28
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defendants’ system-wide practices and policies.

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1

Here, plaintiff foster children have experienced a variety of harms (see supra Part III.A.)

2 and have a range of needs according to their individual circumstances, but all suffer as a result of

3 Defendants’ unconstitutional and unlawful practices (see supra Part III.B.). A foster child who is

4 beaten in a foster home is trapped in the same failing child welfare system as is a teenager in

5 foster care who is denied necessary prescription medication for her psychiatric disorder –

6 injunctive relief to address Defendants’ constitutional and statutory violations as alleged in the

7 complaint will address both of their needs.

8

The evidence presented in this motion proves that all plaintiffs are being harmed or put at

9 risk of harm by Defendants’ unconstitutional and unlawful practices, clearly satisfying the

10 requirement of commonality.

11

C. THE NAMED PLAINTIFFS’ CLAIMS SATISFY TYPICALITY.

12

Rule 23(a)(3) requires the named plaintiffs to demonstrate that their claims are typical of

13 the class members’ claims. Fed. R. Civ. P. 23(a)(3). The purpose of this requirement is to

14 “assure that the interest of the named representative[s] aligns with the interests of the class.”

15 Hanon v. Dataproducts, 976 F.2d at 508 (citation omitted). To demonstrate “typicality,” the

16 named plaintiffs’ claims must arise from a course of conduct “not unique to the named plaintiffs”

17 that has resulted in similar injury to other class members. Id. As with the commonality

18 requirement, the typicality requirement is interpreted permissively by the Ninth Circuit. Hanlon

19 v. Chrysler, 150 F.3d 1011, 1020 (9th Cir. 1997). The evidence submitted with this Motion

20 clearly demonstrates that the course of conduct leading to the named plaintiffs’ injuries was not

21 unique to them, nor was it the result of an isolated group of caseworkers ignoring sound policies.

22 Rather, plaintiffs’ harms result from pervasive system-wide practices.

23

Although stated separately, Rule 23’s typicality and commonality requirements tend to

24 merge. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982). Both factors serve as

25 guideposts for ensuring that a class action is economical and that the interests of the class

26 members will be fairly and adequately protected. Armstrong v. Davis, 275 F.3d at 868, citing

27 Marisol A. v. Giuliani, 126 F. 3d 372, 376 (2d Cir. 1997). A finding of commonality thus

28
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frequently confirms typicality. Doe v. Los Angeles Unified Sch. Dist., 48 F. Supp. 2d 1233, 1245

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1 (C.D. Cal. 1999). Particularly where, as here, “the challenged conduct is a policy or practice that

2 affects all class members, the underlying issue presented with respect to typicality is similar to

3 that presented with respect to commonality, although the emphasis may be different.” Armstrong,

4 275 F.3d at 868-69. Here, the harms and risks of harm asserted by the named plaintiffs arise from

5 a common course of conduct by Defendants, and are clearly – and sadly – typical of those

6 experienced by the class as a whole.

7

Typicality is satisfied when the claims of the class representatives and the proposed class

8 rest on similar legal theories; if the claims are “reasonably co-extensive.” See Armstrong, 275

9 F.3d at 868; Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1997)(“representative

10 claims are ‘typical’ if they are reasonably co-extensive with those of absent class members”);

11 Schaefer v. Overland Express Family of Funds, 169 F.R.D. 124, 128 (S.D. Cal. 1996)(named

12 plaintiffs’ claims should be “based on the same legal theories that would be generally relied upon

13 by the class”). Courts have found typicality to be satisfied in cases where plaintiffs have suffered

14 the deprivation of services or have failed to receive the full benefit of services to which they are

15 entitled by statute, and suffered the violation of their constitutional rights. Armstrong, 275 F.3d

16 at 869; Baby Neal, 43 F.3d at 58.

17

As with the commonality inquiry, variations in the specific factual circumstances of the

18 named plaintiffs will not defeat a finding of typicality. Hanon v. Dataproducts Corp., 976 F. 2d

19 497, 509 (9th Cir. 1992)(test for typicality is whether other class members have been injured by

20 the same course of conduct); Baby Neal, 43 F.3d 48, 58 (3d Cir. 1994)(“factual differences will

21 not render a claim atypical if the claim arises from the same event or practice or course of

22 conduct that gives rise to the claims of the class members, and if it is based on the same legal

23 theory”(citation omitted)). Hence, typicality does not require that the named plaintiffs’ injuries

24 are identical to those of other class members, only that they are similar and result from the same

25 course of conduct. Armstrong, 275 F.3d at 869, citing Hanon v. Dataproducts, 976 F.2d 497, 508

26 (9th Cir. 1992); Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 157-159 (named plaintiffs

27 suffering one specific injury from a common practice can represent class members that have

28
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suffered different injuries, as long as they can show that the injuries result from the common

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1 practice).

2

Plaintiff foster children’s claims arise from a course of conduct not at all unique to them,

3 but to which they are subject only by virtue of their membership in the larger class of children in

4 foster care in Clark County. They allege that they have been harmed or put at risk of harm due to

5 the operation of a child welfare system that violates the federal and state constitutions and state

6 and federal laws. Defendants have failed to provide a full range of services to which plaintiff

7 foster children are entitled, including but not limited to, timely visits from child welfare workers,

8 sufficient training for case workers responsible for plaintiff children’s safety, proper child abuse

9 and neglect investigations, mental and physical health services, and an advocate to represent their

10 needs at court hearings, among many other services. See infra Part III.B.

11

The named plaintiffs’ claims go far beyond the permissive requirement that they be

12 “reasonably co-extensive” with those of absent class members. Here, the named plaintiffs’ claims

13 are one and the same as those of the absent class members, based on Defendants’ common course

14 of conduct, making their interests fully aligned. Plaintiffs clearly fulfill the requirement of

15 typicality.

16

D. PLAINTIFFS’ COUNSEL AND CLASS REPRESENTATIVES SERVE AS

FAIR AND ADEQUATE REPRESENTATIVES OF THE CLASS. 17

18

Rule 23(a)’s final prong requires that named plaintiffs display the ability and willingness

19 to fairly and adequately protect the interests of the class. Rule 23(a)(4). Here, plaintiffs’

20 collective interest in reforming Defendants’ foster care system and representation by experienced

21 class counsel ensure that named plaintiffs will zealously guard and pursue the interests of the

22 class at every stage of the case.

23

Rule 23(a)(4) seeks to ensure that the proposed class representatives can fairly and

24 adequately protect the interests of the class. This factor requires: (1) that the named plaintiffs do

25 not have any conflicts of interest with the proposed class and (2) that plaintiffs are represented by

26 qualified and competent counsel. Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), citing

27 Hanlon v. Chrysler, 150 F.3d at 1020; see also Lerwill v. Inflight Motion Pictures, Inc. 582 F.2d

28
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507, 512 (9th Cir. 1978).
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1

The named plaintiffs have already established their compelling joint interests in forcefully

2 pursuing their co-extensive remedial and legal theories. See supra Part IV.C.44 With the single

3 objective of ending the widespread violation of their legal rights through injunctive and

4 declaratory relief, class members harbor no internal animosity. See Stolz v. United Brotherhood

5 of Carpenters and Joiners of America, 620 F.Supp. 396, 405 (D.C. Nev. 1985)(plaintiffs’ aim of

6 remedying statutory violations of class member rights inherently removed threat of antagonism); 7 See also Baby Neal v. Casey, 43 F.3d 48, 63 (3rd Cir. 1994)(in suit seeking only declaratory and

8 injunctive relief, “[t]here is no danger here that named plaintiffs have unique interests that might

9 motivate them to litigate against or settle with the defendants in a way that prejudices the

10 absentees”). Additionally, the non-existence of any individual claims for damages removes any

11 possibility of internal conflict between class members over the amount of individual damages.

12 Here, all plaintiffs raise the same claims, seeking only injunctive and declaratory relief that will

13 benefit them equally – named plaintiffs will adequately represent the interests of the absent class

14 members.

15

Plaintiffs’ counsel has the qualifications, experience, and general capability to conduct the

16 litigation and vigorously pursue plaintiffs’ claims. Lead counsel is the National Center for Youth

17 Law, a privately-funded, non-profit organization with award-winning attorneys who have

18 extensive state and federal court experience litigating complex class action child welfare reform

19 suits. See generally Grimm Decl. at ¶¶ 2-8. The Las Vegas offices of Wolfenzon Schulman &

20 Ryan and the San Francisco law firm of Farella Braun & Martel also represent plaintiffs.

21 Together these firms bring sophistication in resolving and litigating a broad range of high-stakes

22 actions. Declaration of Gregory M. Schulman (“Schulman Decl.”) at ¶¶ 4-6; Declaration of

23 Katina Ancar (“Ancar Decl.”) at ¶¶ 3, 5.

24

Counsel have knowledge of state and federal child welfare laws and have represented

25
26
27
28
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44 Coextensiveness of the interests of the named plaintiffs with those of the rest of the class is properly understood as both an aspect of the typicality inquiry of 23(a)(3), and also functioning “as a further demonstration of a lack of adversity or antagonism between the named and unnamed members of the class for purposes of testing the adequacy of the representation” under 23(a)(4). 7A Wright & Miller Federal Practice & Procedure § 1769. Here, the fact that named plaintiffs’ claims are coextensive with the claims of the proposed class supports a finding that named plaintiffs will adequately represent the interests of the class as a whole.

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1 plaintiffs in certified class action litigation. Ancar Decl. at ¶ 4. Collectively, plaintiffs’ attorneys

2 bring more than 50 years of legal practice, covering the full range of civil litigation from initiation

3 of the action to trial representation. Grimm Decl. at ¶¶ 2-3, 7-8; Schulman Decl. at ¶¶ 2, 4; Ancar

4 Decl. at ¶¶ 2, 5-6. Plaintiffs’ legal representatives have the resources, expertise, and experience

5 to meet the test for highly-competent class counsel. Further, plaintiffs’ counsel has demonstrated

6 that they will vigorously pursue this action.

7

V. PLAINTIFFS’ CLASS IS A MODEL ACTION FOR RULE 23(B)(2)

CERTIFICATION. 8

9

Plaintiffs also assert that the class may be properly maintained under the second category

10 of Rule 23(b). Rule 23(b)(2) certification is proper if

11

the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

12

injunctive relief or corresponding declaratory relief with respect to

the class as a whole. 13

14 Walters, 145 F.3d at 1047. Closely linked to the Rule 23(a)(2) commonality prerequisite, actions

15 seeking injunctive relief to remedy violations of civil and constitutional rights easily satisfy

16 23(b)(2). These suits “are precisely the sort . . . that Rule 23(b)(2) was designed to facilitate.”

17 Walters, 145 F.3d at 1046-47 (plaintiff class challenged constitutionality of the INS’s official

18 forms and procedures); Fed. R. Civ. Proc. 23 Advisory Committee Notes 1966 Amendment (civil

19 rights actions requiring final injunctive relief “illustrative” of actions suitable for this category).

20

Rule 23(b)(2) focuses solely on the actions of the defendants. See Stolz, 620 F.Supp. at

21 407 (initial inquiry is “whether the defendants have allegedly acted on grounds generally

22 applicable to the entire class. If this is the case, then injunctive relief is appropriate and necessary

23 to remedy the wrong…”). In order to meet the requirements of 23(b)(2), class members must

24 simply “complain of a pattern or practice that is generally applicable to the class as a whole.”

25 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Because the focus is not on the individual

26 class members, “[e]ven if some class members have not been injured by the challenged practice, a

27 class may nevertheless be appropriate.” Id.

28
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Plaintiffs’ proposed class is perfectly suited for certification under subdivision (b)(2).

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1 Plaintiffs allege that Defendants’ unitary course of conduct deprives each class member of the

2 right to receive essential protections and services, violating both constitutional and statutory law.

3

VI. CONCLUSION

4

Many foster children have already suffered serious harm while in Clark County's custody.

5 Given the dismal failures of Defendants' system, all children entering care face the risk of similar

6 harms – unsafe living conditions, physical abuse, neglect, and, worst of all, death. The interests

7 of justice require the Court to permit this case to proceed as a class action to redress the harms

8 suffered day after day by thousands of class members. Plaintiffs respectfully request that the

9 Court grant their renewed motion for class certification.

10

11 Dated: March 28, 2008 12 WOLFENZON SCHULMAN

NATIONAL CENTER FOR YOUTH LAW

13 /s/ Bruno Wolfenzon
14 BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177
15 GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766
16 4530 South Eastern Avenue, Suite 9 Las Vegas, NV 89119
17 Telephone: (702) 836-3138 Facsimile: (702) 836-3139
18 Co-attorneys for Plaintiffs
19
20 FARELLA BRAUN + MARTEL LLP

/s/ William Grimm WILLIAM GRIMM, ESQ. Admitted to the Maryland Bar LEECIA WELCH, ESQ. California Bar No. 208741 BRYN MARTYNA, ESQ. California Bar No. 239852 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

21
/s/ Katina Ancar 22 KATINA ANCAR, ESQ.
California Bar No. 207950 23 FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor 24 San Francisco, CA 94104
Telephone: (415) 954-4400 25 Facsimile: (415) 954-4480
Co-attorneys for Plaintiffs 26

27

28
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1 Gloria J. Sturman, Esq. Nevada Bar No. 2314
2 Margaret G. Foley, Esq. Nevada Bar No. 7703
3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 415 South Sixth Street, Suite 300
4 Las Vegas, NV 89101 (702) 382-1414; FAX (702) 382-1413
5 Attorneys for defendants BRUCE L. WOODBURY, TOM COLLINS, CHIP MAXFIELD,
6 YVONNE ATKINSON GATES, MYRNA WILLIAMS, LYNETTE BOGGS MCDONALD, RORY REID,
7 CLARK COUNTY, VIRGINIA VALENTINE, CLARK COUNTY DFS, TOM MORTON and LOUIS PALMA
8 UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA 10

11

CLARK K., by his next friend Sherry Anderson; JALEN, SIA, ROSHAUN, CALEB, and KING A.

) Case No.: 2:06-cv-01068-RCJ-RJJ ) JUDGE: Hon. Robert C. Jones

12

by their next friend Tarrah Logan; TONI, SUMMER,)

and FRANK B., by their next friend Marilyn

)

13

Paikai; and DONNA C., by her next friend Jacquelyn Romero,

) )

14

)

Plaintiffs,

)

15 vs.

) )

16

) )

17 18 19 20 21 22 23

MICHAEL WILLDEN, Director of the Nevada DHHS; FERNANDO SERRANO, Administrator of the Nevada Division of Child and Family Services; JOHN DOE, Bureau Chief of the Bureau of Services for Child Care of the Division of
Child and Family Services; VIRGINIA VALENTINE, Clark County Manager;
TOM MORTON, Director of Clark County Department of Family Services; LOUIS PALMA, Manager of Shelter Care for the Clark County Department of Family Services; BRUCE L. WOODBURY, TOM COLLINS,
CHIP MAXFIELD, YVONNE ATKINSON GATES, MYRNA WILLIAMS, LYNNETTE BOGGS MCDONALD and RORY REID, Clark

) ) ) ) ) ) ) ) ) ) ) ) ) )

24 County Commissioners; and CLARK COUNTY,

) )

25

)

Defendants.

)

26

)
_____________________________)

27

28

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1

CLARK COUNTY DEFENDANTS' PROPOSED ORDER DENYING

PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION

2

3

Plaintiffs' Renewed Motion for Class Certification (CoUli Docket (CD)# 195) came before

4 this court for hearing on June 9, 2007. After considering the motion, the pleadings and papers on
5 file in this matter, and oral argument by the parties, the Court issues the following Order.
6 Plaintiffs' Renewed Motion for Class Certification
7 Plaintiffs' Renewed Motion and accompanying briefs sought to certify a class of "all child
8
9 abuse or neglect victims who are or will be involuntarily placed outside the homes of their parents or
10 guardians by County Department of Family Services pursuant to an order of the court under Nev.

11 Rev. Stat. § 432B." 1

12

Under Fed. R. Civ. P. 23(a), "[a] district coUti may certify a class only if: '(1) the class is so

13 numerous that joinder of all members is impracticable; (2) there are questions of law and fact
14 common to the class; (3) the claims or defenses of the representative parties are typical of the claims
15
or defenses of the class; and (4) the representative parties will fairly and adequately protect the 16
17 interests ofthe class.'" Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (91h Cir. 2007). "The district

18 court must also find that at least one of the following three conditions are satisfied: (1) the

19 prosecution of separate actions would create a risk of: (a) inconsistent or vatying adjudications or
20 (b) individual adjudications dispositive of the interests of other members not a party to those 21
adjudications; (2) the party opposing the class has acted or refused to act on grounds generally 22
applicable to the class; or (3) the questions of law or fact common to the members of the class 23 24 predominate over any questions affecting only individual members, and a class action is superior to
25 other available methods for the fair and efficient adjudication of the controversy. See Fed. R. Civ. P.

26 23(b)." Id.

27

28 1 See Plaintiffs' Combined Reply to Clark County Defendants' and State Defendants' Oppositions to Plaintiffs' Renewed
Motion for Class Certification (CD# 224) at 5 (refining and narrowing the originally-proposed class definition).
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1

Plaintiffs asserted in their briefs and at oral argument that nearly any evaluation of facts at

2 this pre-certification stage of the litigation is impermissible as an assessment of the merits of the
3
case. The Court disagrees and notes that it must apply a "rigorous analysis" to see that the class
4 certification criteria have been met. Zinser v. Accujix Research Inst., Inc., 253 F. 3d 1180, 1186 (91h
5 Cir. 2001) (quoting Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (91h Cir. 1996). This
6
7 analysis fairly encompasses an evaluation of the factual record and allows for factual findings. See

8 Dukes, 509 F.3d at 1175-76, 1178 n.2 (deferring to district court's broad discretion to make factual

9 findings as to the applicability of Rule 23 criteria and to the district court's decision whether to

10 certify class).2

11 As discussed below, the Court finds, based on the record before it, that Plaintiffs have met
12 the numerosity requirement of Fed. R. Civ. P. 23(a) but have not met the rest of the 23(a)
13
14 prerequisites or the maintainability requirement of Rule 23(b)(2).

15

Numerosity

16

This Court has previously ruled that the numerosity requirement of Rule 23(a) has been

17 established. CD# 134 at 44-45. The Court further finds that the narrowed class definition advanced
18 by Plaintiffs in their Combined Reply (CD #224 at 5) also meets the numerosity requirement. 19
Commonality 20
The commonality requirement for class certification is met if plaintiffs' grievances share a 21
22 common question of law or of fact. See Armstrong v. Davis, 275 F. 3d 849, 868 (91h Cir. 2001).
23 Additionally, the commonality test for class actions is qualitative rather than quantitative; one

24 significant issue common to the proposed class may be sufficient to warrant certification. Dukes,

25 509 F .3d at I 184. Moreover, in a civil rights suit, the commonality requirement for class

26

27

2 See also Advisory Committee Note to 2003 Proposed Amendments to Rule 23, 201 F.R.D. 560 at 592-93 (discussing how pre-certification discovery can illuminate, for example, nature of the issues, whether the evidence on the merits is

28

common to members of the proposed class, whether the issues are susceptible to class-wide proof, and what trial management problems the case will present- "this discovery does not concern the weight of the merits or the strength of

the evidence.")

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I certification is satisfied where the lawsuit challenges a system-wide practice or policy that affects all

2 putative class members, despite individual factual differences among individual litigants or groups
3 of litigants. See Armstrong, 275 F. 3d at 868. 4
In Armstrong, the Ninth Circuit held that differences in particular class members' disabilities 5
did not justifY requiring separate actions, since all disabled prisoners and parolees suffered similar 6 7 harm from board's system-wide failure to accommodate their disabilities, i.e., the harm they suffered
8 was all of a piece - they were denied parole and parole revocation proceedings without the

9 appropriate administrative process being followed. See Armstrong, 275 F. 3d at 868.

10

In this case, by contrast, Plaintiffs' evidence presented to the Court has not shown that this

II suit challenges a systemwide practice or a policy affecting all putative class members, rather than
12 alleged individual wrongs against the named plaintiffs. Plaintiffs contend that they have shown
13
"overwhelming evidence" of systemwide violations as set forth in Dukes v. Wal-Mart. The Court 14

15 disagrees.

16

In Dukes, the district court analyzed factual data showing evidence of company-wide policies

17 and practices and statistical data presented by an expert statistician. 509 F.3d at 1178-1182.
18 Additionally, the district court considered circumstantial and anecdotal evidence to bolster the
19 statistical evidence of pattern and practice of discrimination and to bring the statistical numerical
20 evidence to life. 509 F.3d at 1182. Here, on the other hand, plaintiffs have submitted only
21 22 circumstantial and anecdotal suppotting evidence without the underlying statistical expert evidence
23 based on well-established statistical evidence. In making its discretionmy and qualitative assessment

24 of whether the commonality requirement had been fulfilled for certification purposes, this Court

25 finds that the requirement has not been satisfied based on merely the circumstantial and anecdotal 26
evidence before the Comt at this time. 27

28

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I

Typicality

2

The typicality requirement for class certification requires that claims of class representatives

3 be typical of those of the class, and is satisfied when each class member's claim arises from the same
4 course of events, and each class member make similar legal arguments to prove defendants' liability.
5
See Armstrong, 275 F. 3d at 868. The typicality requirement for class certification does not require 6

7 that named plaintiffs' injuries be identical with those of other class members, only that unnamed

8 class members have injuries similar to those of named plaintiffs and that injuries result from the

9 same, injurious course of conduct. See Armstrong, 275 F. 3d at 869.

10

For example, in Armstrong, the Ninth Circuit stated that the undisputed facts from trial

II showed that the State of California regularly discriminated against disabled prisoners and parolees
12 during its parole and parole revocation hearing processes. 275 F.3d at 854. The district court found
13
that the California Board of Prison Terms (the state parole authority) failed to make proper 14

15 accommodations for numerous disabled prisoners and parolees, with the result that a number of such

16 individuals forfeited their rights to parole and parole revocation hearings and appeals, while others

17 were unable to represent themselves adequately at such proceedings, all in contravention of federal

18 law. 275 F.3d at 854. Therefore, it was undisputed on appeal that the unnamed class members had

19 injuries similar to those of named plaintiffs and that the injuries (forfeiture of rights to parole and
20
parole-determinative proceedings) resulted from the same, injurious course of conduct. 21

22

In this purported class action, by contrast, the alleged harms among the named plaintiffs

23 alone are diverse and manifold, ranging from deprivation of educational assistance services, to

24 deprivation of psychological services, to deprivation of psychotropic mediations, to improper

25 reunification with a natural parent, to the emotional distress caused by the death of a sibling, and
26 more. Each of these injuries is alleged to be caused by different courses of conduct by government
27 actors, including failure to supervise, failure to provide educational services and psychological
28 services, etc. Each of these alleged actions or inactions by government actors are, in tum, alleged to Page 5 of 10
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1 be caused by larger systemic factors such as large caseloads per caseworker, insufficient training of

2 caseworkers, shortage of guardians ad litem and CASAs to represent children in dependency
3 proceedings, and other problems. The sheer number and complexity of issues that currently are 4
asserted in this case among the named plaintiffs alone fail to meet Rule 23(a)'s mandate that 5
unnamed class members have injuries similar to those of named plaintiffs and that injuries result 6
7 from same, injurious course of conduct. See Armstrong, 275 F. 3d at 867 (Plaintiffs showed that
8 each of them was discriminated against in violation of the ADA at parole or parole revocation

9 hearings - each of them "suffered from the same injurious conduct; each incmTed the same injmy;

10 and each is seeking the same relief.")
11 Plaintiffs point to case law from other jurisdictions but there is no Ninth Circuit case law
12 with class certification based on "common" issues at the extreme level of generality urged here.3
13 This Court is in agreement with J.B. v. Valdez, in which the Tenth Circuit said that it would not
14
15 "read an allegations of systemic failures as a moniker for meeting the class action requirements. 186
16 F.3d 1280, 1289 (101h Cir. 1999).

17

The typicality question is tied into the commonality question discussed above, as the two

18 inquiries of commonality and typicality tend to merge. See Dukes, 509 F.3d at 1184. Class
19 representatives must show typical claims that are reasonably coextensive with those of the absent
20 class members. Dukes, 509 F.3d at 1184. Because plaintiffs have not demonstrated any pattern or
21
22 practice of violation of the putative class members' legal rights, there is no way for the Comi to

23

24

25

3 The Ninth Circuit's recent cases cited by the parties involving cetiified classes were certified for issues much more nanowly-drawn than the ones here. See, e.g., Walters v. Reno, 145

26

F.3d 1032 (class cetiified for aliens alleging a due process violation for inadequate notice of deportation following charges of document fraud); Hanlon v. Chrysler, 150 F.3d 1011 (cetiified

27

class of minivan owners alleging defectively designed rear lift gate latch); Dukes v. Wal-Mart, 509 F.3d 1168 (certified class alleging sex discrimination against women employees resulting in

28

systematically lower wages and fewer and delayed promotions); LaDuke v. Nelson, 762 F.2d 1318 (certified class of migrant workers seeking relief from random checks by INS of migrant worker

housing buildings).

Page 6 of 10

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1 assess whether the named plaintiffs' claims are reasonably coextensive with those of the absent

2 putative class members at this time. Therefore, the typicality requirement has not been satisfied.

3

Adequacy of Representation

4 The adequacy of representation factor for class certification requires that (I) the proposed
5
representative plaintiffs do not have conflicts of interest with the proposed class; and (2) plaintiffs 6

7 are represented by qualified and competent counsel. Dukes, 509 F.3d at 1185.

8

The Court cannot ascertain at this point that the proposed representative plaintiffs do not

9 have conflicts of interest with the proposed class. As discussed above in the context of

10 commonality, plaintiffs have not offered sufficient evidence of patterns or practices of systemwide
11 violations. As discussed in Armstrong, "[fJor class certification to occur, the court must find that the
12 named plaintiffs adequately represent the interests and experiences of the overall class. In making
13 such findings, the trial court must be afforded a wide degree of discretion to determine when a
14
15 particular number of inmate witnesses is sufficient to justify system-wide relief for the identified
16 violation." 275 F.3d at 871. Here, there is insufficient evidence of justification for systemwide

17 relief as opposed to individual relief for the named plaintiffs.

18

The Court also cannot ascertain at this time whether plaintiffs are adequately represented by

19 current counsel, and the Court has a duty to protect the interests of class members. "Attorneys and
20 parties seeking to represent the class assume fiduciary responsibilities and the court bears a residual
21
22 responsibility to protect the interests of class members." 15 Herbert B. Newberg & Alba Conte,

23 Newberg on Class Actions § 15.3 at 13 (4111 ed. 2002) (quoting Manual for Complex Litigation (3d.

24 ed.) § 30. Given the lack of classwide evidence at this point, it remains a possibility that plaintiffs'

25 counsel are not providing zealous representation of their individual clients, including their claims for
26 money damages, in order to pursue the larger class allegations on behalf of their organization and
27 generate attorneys' fees. The named plaintiffs, not to mention the absent putative class members,
28 run the risk of having their potentially substantial money damages claims barred by statutes of Page 7 of 10
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1 limitations and res judicata concerns. Thus, the adequacy of representation requirement has not been

2 fulfilled at this time.

3

Maintainability of Class Action Under Rule 23(b)(2)

4 In determining the applicability of Rule 23(b)(2), a court must examine the specific facts and
5

circumstances of each case, focusing predominantly on plaintiffs' intent in bringing suit. At a 6

7 minimum, the court must satisfy itself that (1) even in the absence of possible monetary recovety,

8 reasonable plaintiffs would bring suit to obtain the injunctive or declaratory relief sought; and (2)

9 that the injunctive or declaratory relief sought would be both reasonably necessaty and appropriate

10 were the plaintiffs to succeed on the merits. Dukes, 509 F.3d at 1186.
11 As discussed above in the context of adequacy of representation, the Court is unable to
12 satisfy itself at this time that the potential money damages claims of the named plaintiffs are
13 protected adequately in this suit seeking only injunctive and declaratory relief for a putative class.
14
15 Therefore, the Court cannot say that reasonable plaintiffs would bring suit to obtain the injunctive or

16 declaratory relief.

17

Additionally, the Court cannot tell at this time that the injunctive or declaratory relief sought

18 would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.
19 Inextricably tied into the consideration of whether class certification is appropriate is the question of
20
the scope of injunctive relief. Plaintiffs contend that the scope or any details of the relief they seek is 21
22 immaterial at this early stage of the litigation, but this assetiion ignores the Ninth Circuit's

23 discussion in Armstrong regarding the U.S. Supreme Comi's hesitance in ordering systemwide relief

24 against governmental actors rather than awarding individual damages for proven harms. As the

25 Armstrong Court observed,

26

[t]he scope of injunctive relief is dictated by the extent of the violation established ..

27

. [t]he key question . . . is whether the inadequacy complained of is in fact 'widespread enough to justify system wide relief .. [under the]longstanding maxim

28

that injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation. System-wide relief is required if the

I 03251.11

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1

injury is the result of violations of a statute or the constitution that are attributable to

policies or practices pervading the whole system ... or if the unlawful policies or

2

practices affect such a broad range of plaintiffs that an overhaul of the system is the

only feasible manner in which to address the class's injury. However, if injunctive

3

relief is premised upon only a few isolated violations affecting a nanow range of

plaintiffs, its scope must be limited accordingly....

4 We also note that the decision to grant system-wide prospective injunctive relief does

5

not occur in a vacuum; it is intimately connected to determinations made earlier in the

lawsuit ... and the court's determination that relief may be sought by a class of

6

plaintiffs is relevant to the scope of the relief to be awarded. In fact, class

certification serves to alter that court's inquiry: when a class is properly certified, the

7

injury asserted by the named plaintiffs ... is asserted on behalf of all members of the

class .. [and] the "plaintiff" has been broadened to include the class as a whole, and

8

no longer simply those named in the complaint.

9 275 F.3d at 870-71. (citations and quotations omitted).
10

11

When plaintiffs seek injunctive relief against a state agency on behalf of a class, but relief on

12 behalf of a large class is inappropriate, the court will limit relief to named plaintiffs. See Armstrong

13 275 F.3d at 870 n.27; see also City ofLos Angeles v. Lyons, 461 U.S. 95, 113 (1983) (if a plaintiff
14 "has suffered an injmy barred under the Federal Constitution, he has a remedy for damages under §
15 1983").
16 On the other hand, in detetmining scope of injunctive relief that interferes with affairs of
17
18 state agency, a federal court must ensure, out of federalism concerns, that any injunction heels
19 closely to the identified violation, and is not overly intrusive and unworkable, and would not require

20 for its enforcement the continuous supervision by a federal court over conduct of state officers. See

21 Armstrong, 275 F.3d at 872. Because the issue of injunctive relief is tied in with certification of any

22 class, this Court does not believe certification is appropriate until plaintiffs are able to show

23 systemwide violations mandating systemwide relief rather than the individual claims of the named
24
plaintiffs for damages. 25

26

Conclusion

27

For the reasons stated above, the Court hereby DENIES WITHOUT PREruDICE Plaintiffs'

28 Renewed Motion for Class Certification. While the numerosity requirement of Rule 23(a) has been

103251.11

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1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

)

8 CLARK K., et al.,

)

2:06-CV-01068-RCJ-RJJ

)

9

Plaintiffs,

)

ORDER

)

10

vs.

)

)

11 KENNY C. GUINN, et al.,

)

)

12

Defendants.

)

)

13

INTRODUCTION.

14

Before the Court is Defendants’ Motion for Reconsideration (#192). The Court has

15

reviewed Defendants’ Motion and the pleadings on file from all parties. IT IS HEREBY

16

ORDERED that Defendants’ Motion is denied.

17

BACKGROUND.

18 In August 2006, Plaintiffs1 filed suit on behalf of themselves and “all abused and

19

neglected children who are in, or at risk of entering, the Clark County foster care system.” (#57-

20

1 at 6). Plaintiffs bring this civil action under 42 U.S.C. § 1983 against Kenny C. Guinn, as

21

22

23
1 Plaintiffs proceed under fictitious names pursuant to Federal Rule of Civil Procedure 10(a). The named Plaintiffs
include Clark K. (by his next friend Sherry Anderson), Jalen, Sia, Roshaun, Caleb, and King A. (collectively the “A
24
Plaintiffs”) (by their next friend Tarrah Logan), Toni Summer and Frank B. (collectively the “B Plaintiffs”) (by their
next friend Marilyn Paikai), and Donna C. (by her next friend Jacquelyn Romero).
25

Case 2:06-cv-01068-RCJ-RJJ Document 271 Filed 10/24/08 Page 2 of 6

1 Nevada Governor (the Court dismissed Mr. Guinn from the case),2 Michael Wilden (Director

2 of Nevada Health and Human Services), Fernand Serrano (Administrator of the Nevada Division

3 of Child and Family Services), John Doe (Bureau Chief of the Bureau of Services for Child Care

4 of the Division of Child and Family Services), Virginia Valentine (Clark County Manager),

5 Clark County Department of Family Services, Tom Morton (Director of Clark County

6 Department of Family Services), Louis Palma (Manager of Shelter Care for the Clark County

7 Department of Family Services), County Commissioners Bruce L. Woodbury, Tom Collins, Chip

8 Maxfield, Yvonne Atkinson Gates, Myrna Williams, Lynette Boggs McDonald, and Rory Reid,

9 and finally Clark County itself. Plaintiffs seek declaratory and injunctive relief relating to the

10 operation of Nevada’s and Clark County’s foster care system.

11

On May 14, 2007, this Court issued a lengthy order in which it dismissed the Governor

12 completely from this action. The Court further dismissed some of Plaintiff’s claims for failure

13 to state a claim.

14

Plaintiffs now seek to certify a county-wide class consisting of all children “who have

15 been, are, or will be victims in the legal custody of Clark County Department of Family

16 Services.” (#74 at 4). Plaintiffs claim that the only realistic means for redressing the injuries

17 suffered by the thousands of children who are members of the class” is to prosecute this matter

18 as a class action. Id. According to Plaintiffs, “reliance upon any one class member’s claims will

19 not effectively remedy the class-wide issues raised in this suit.” Id. Plaintiffs further state that

20 “if this action does not proceed as a class action, these foster children will be unable to address

21 the system-wide deficits that have caused their injuries.” Id.

22

Defendants also seek review and reconsideration of Judge Johnston’s orders compelling

23
24 2 As of today’s date, Governor Guinn is no longer Governor. This fact does not dismiss the Governor’s office from
this action. When a public officer who is sued in the officer’s official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as Defendant. Hafer v. Melo,
25 502 U.S. 21, 25 (1991).

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Case 2:06-cv-01068-RCJ-RJJ Document 271 Filed 10/24/08 Page 3 of 6

1 discovery of case files and the parties’ entry into protective order. Judge Johnston ordered the

2 parties to enter into a confidentiality agreement and Defendants to disclose case files in the

3 possession of the County for the children named in the lawsuit. The case files would be

4 delivered only to the attorney representing the child.

5

On February 12, 2007, the Court stated that more discovery was needed before the Court

6 ruled on class certification. Since then disputes have arisen as to the scope of discovery required,

7 the parties took these issues before Judge Johnston.

8

On March 12, 2008, Judge Johnston ruled that the Court would allow discovery of the

9 non-privileged documents containing “(1) case records for all foster children who have been the

10 subject of an abuse or neglect [claim] while in the custody of Clark County; and (2) case records

11 for children who have died or suffered abuse while in the custody of Clark County.” (#187).

12 Judge Johnston also held that the official information privilege did not apply to the documents

13 described above. Id.

14

DISCUSSION.

15

The district court may not set aside a magistrate's determination of a non-dispositive

16 pretrial matter unless it finds the order “to be clearly erroneous or contrary to law.” FED. R. CIV.

17 P. 72(a) (2006); see also Premiere Digital Access, Inc. v. Cent. Tel. Co., 360 F. Supp. 2d 1168,

18 1172 (D. Nev. 2005) (citing 28 U.S.C. § 636(b)(1)(A) and FED. R. CIV. P. 72(a)). In the District

19 Court of Nevada, courts have said “the district judge must affirm the magistrate judge unless it

20 is left with the ‘definite and firm conviction that a mistake has been committed.’” Premiere

21 Digital Access, Inc., F. Supp. 2d at 1172 (quoting Burdick v. Comm’r, 979 F.2d 1369, 130 (9th

22 Cir. 1992)). Furthermore, “[t]he reviewing court may not simply substitute its judgment for that 23 of the deciding court.” Id.3

24

3 Under Local Rule IB 3-1, a district judge may reconsider any pretrial matter referred by a magistrate judge

25

“where it has been shown that the Magistrate’s judge ruling is clearly erroneous or contrary to law.”

Page 3 of 6

Case 2:06-cv-01068-RCJ-RJJ Document 271 Filed 10/24/08 Page 4 of 6

1 I. Judge Johnston’s Order Is Not Clearly Erroneous.

2

Defendants contend that Judge Johnston’s orders are erroneous in that they exceed the

3 scope of discovery required to fulfill this Court’s directive that further discovery be conducted

4 to determine whether Plaintiffs “presented representative claims that represent the violations that

5 you’re [plaintiffs] talking about class wide.” (Transcript of Feb. 12, 2007 Hearing, at 60–61).

6

A. Judge Johnston’s Orders Are in Harmony with the Court’s Statements

Relating to Class Certification.

7

Defendants focus on the Court’s use of the words “a little bit of discovery” to argue that

8

Judge Johnston exceeded the scope of the intended discovery. Under the Federal Rules of Civil

9

Procedure, “the scope of discovery is broad and should be allowed unless the information had

10

no conceivable bearing on the case.” Jackson v. Montgomery Ward & Co. Inc., 173 F.R.D. 524,

11

528 (D. Nev. 1997). The Court did not give any specific direction regarding the scope of the

12

discovery, only that discovery was needed to insure that claims were representative across the

13

class. Judge Johnston directed County Defendants to produce the case records of other foster

14

children whom may have suffered abuse or neglect similar to that suffered by the named

15

Plaintiff. The Orders granting the Plaintiffs’ Motions to Compel are in harmony with the

16

Court’s mandate that further discovery be conducted regarding the class and the claims of the

17

class.

18

B. Pre-Certification Discovery is Proper for Class Issues.

19

In the Ninth Circuit plaintiffs are entitled to discovery on class issues before the class has

20

been fully certified. Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007). In Dukes, six

21

women filed a class action suit alleging employment discrimination. Id. at 1174. In preparation

22

for their motion for class certification, the plaintiffs conducted “extensive” and wide-ranging pre-

23

certification discovery. Id. at 1175. The discovery included detailed expert testimony and

24

statistical data. To establish class certification, plaintiffs presented information on potential

25

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Case 2:06-cv-01068-RCJ-RJJ Document 271 Filed 10/24/08 Page 5 of 6

1 class members and statements from individual class representatives. Id. at 1182 & n.11. The

2 Ninth Circuit held that the information presented on potential class members was significant in

3 supporting commonality and must be considered. Id. at 1177 n.2, 1182.

4

When a court concludes, as this Court has, that it requires factual support before it can

5 effectively address class certification, class-related discovery is essential. Gray v. First Winthrop

6 Corp., 133 F.R.D. 39, 40–41. As to any overlap between class-related discovery and the merits

7 of the case, the Ninth Circuit visited that issue in Dukes. Dukes, 509 F.3d at 1178 n.2 (stating

8 that even if the evidence relates to the underlying merits of the case, the district court must allow

9 discovery addressing the class certification requirements).

10 II. The Orders Are Not Contrary to Law.

11

Defendants claim that Judge Johnston erred in holding that the Plaintiffs’ attorneys in this

12 case are “attorneys” within the meaning of Nevada Revised Statute § 432B.290(1)(g). The

13 statute states:

14

Except as otherwise provided in subsections 2 and 3 and NRS 432B.165,

432B.175 and 432B.513, data or information concerning reports and

15

investigations thereof made pursuant to this chapter may be made

available only to . . . [t]he attorney and the guardian ad litem of the child.

16 N.R.S. § 432B.290(1)(g) (2007). In this case Judge Johnston ordered certain files to be turned

17 over to Plaintiffs’ Counsel. For the purposes of this case, Plaintiffs’ Counsel is proposing that

18 they serve as counsel for the class of persons in the Complaint. Courts follow the plain language

19 of the statute when the language is clear. McKay v. Board of Supervisors of Carson City, 730

20 P.2d 438, 441 (Nev. 1996). Based on the language of the statute, counsel may be considered to

21 be the child’s attorney. Other interpretations would bar the discovery needed for the class to be

22 certified.

23 Furthermore, Judge Johnston correctly interpreted Nevada Revised Statute § 432B.290(2)

24 (which governs information made available to the general public). Judge Johnston held that the

25

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Case 2:06-cv-01068-RCJ-RJJ Document 271 Filed 10/24/08 Page 6 of 6

1 “plaintiffs are not requesting the information in an attempt to disclose it to the public” and he

2 concluded that Nevada Revised Statute § 432B.290(2) does not apply. Defendants rely on an

3 order by Judge Herndon interpreting the same statute. But Judge Johnston held that the statute,

4 which provides a lengthy list of exceptions allowing for the disclosure of confidential files, does

5 not merit the broad reading preferred by Defendants. Furthermore, Judge Herndon’s

6 interpretation is moot due to the 2007 amendment of Nevada Revised Statute § 432B.290(2).

7

CONCLUSION.

8

IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration (#192) is

9 denied. Judge Johnston’s Orders are consistent with the Court’s orders and the law.

10

DATED: October 24, 2008

11

12 ROBERT C. JONES

13

UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24 25 (mr/nk)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Farella Braun & Martel LLP Russ Building
235 Montgomery Street San Francisco, CA 94104
(415) 954-4400

BRUNO WOLFENZON, ESQ. Nevada Bar No. 6177 bruno@wolfenzon.com GREGORY M. SCHULMAN, ESQ. Nevada Bar No. 5766 gschulman@wolfenzon.com WOLFENZON SCHULMAN & RYAN 6725 Via Austi Parkway, Suite 260 Las Vegas, NV 89119 Telephone: (702) 836-3138 Facsimile: (702) 836-3139 Co-attorneys for Plaintiffs
SONYA SANCHEZ, ESQ. (pro hac vice) California Bar No. 247541 ssanchez@fbm.com FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 Co-attorneys for Plaintiffs

WILLIAM GRIMM, ESQ. (pro hac vice) Admitted to the Maryland Bar billgrimm@youthlaw.org LEECIA WELCH, ESQ. (pro hac vice) California Bar No. 208741 lwelch@youthlaw.org BRYN MARTYNA, ESQ. (pro hac vice) California Bar No. 239852 bmartyna@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 – 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Co-attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

CLARK K., et al., Plaintiffs,
vs.

CASE NO. 2:06-CV-01068 RCJ JUDGE: Hon. Robert C. Jones
JOINT STIPULATION FOR DISMISSAL

MICHAEL WILLDEN, et al.,

Defendants.

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs Clark K, et al.; County Defendants, Clark County, Virginia Valentine, Tom Morton, Louis Palma, Rory Reid, Bruce Woodbury, Chip Maxfield, Yvonne Atkinson-Gates, Myrna Williams, Lynette BoggsMcDonald, and Tom Collins; and State Defendants Michael Willden, Diane Comeaux, and Doe/Melissa Faul, through their respective counsel of record, hereby jointly stipulate to dismissal with prejudice of the above-entitled action. The parties further stipulate that each party shall bear its own attorney’s fees and costs relating to this action; that all undecided motions and/or appeals pending with this Court and the Ninth Circuit are withdrawn or otherwise rendered moot; and that the parties will abide by the terms’ of the parties’ Protective Order, approved by the Court on

JOINT STIPULATION FOR DISMISSAL CASE NO. 2:06-CV-01068 RCJ-RJJ

21433\2069416.1

CasCea2s:e062-:c0v6--0c1v0-06180-R68C-JR-CRJ-JRJJDoDcoucmuemnet n3t13721 FFiilleedd 1100//1237//200909PagPea2geof23of 3

1 September 8, 2008, in handling documents obtained through discovery in this action.

2 SO STIPULATED:

3

4 DATED: October 13, 2009 5

NATIONAL CENTER FOR YOUTH LAW

6

By: /s/ William Grimm_______________

William Grimm

7

Bryn Martyna

Leecia Welch 8

9

10 DATED: October 13, 2009 11

WOLFENZON SCHULMAN

12

By:___/s/ Gregory M. Schulman__________

Bruno Wolfenzon

13

Gregory M. Schulman

14

15 DATED: October 13, 2009
16

FARELLA BRAUN & MARTEL LLP

17

By: /s/ Sonya Sanchez

18

Sonya Sanchez

19

Attorneys for Plaintiffs

CLARK, K., et al. 20

21

22

23

24

25

26

27

28

JOINT STIPULATION FOR DISMISSAL CASE NO. 2:06-CV-01068 RCJ-RJJ

- 2 -

21433\2069416.1

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1 DATED: October 13, 2009

2

3

4

5

6

7 DATED: October 13, 2009
8

9

10

11

12

13

14

IT IS SO ORDERED

15

DATED: October 26, 2009

16

17

18

_________________________________ UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

CATHERINE CORTEZ MASTO Nevada Attorney General
By:____/s/ Linda Anderson___________ Linda C. Anderson Senior Deputy Attorney General
Attorneys for STATE Defendants MICHAEL WILLDEN; DIANE COMEAUX; and DOE/MELISSA FAUL
BUCKLEY KING, LPA
By:____/s/ Gloria J. Sturman___________ Gloria J. Sturman
Attorneys for CLARK COUNTY Defendants

JOINT STIPULATION FOR DISMISSAL CASE NO. 2:06-CV-01068 RCJ-RJJ

21433\2069416.1

 
 Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 1 of 41
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:06−cv−01068−RCJ−RJJ

CLOSED

Clark K., et al v. Kenny C. Guinn et al Assigned to: Chief Judge Robert C. Jones Referred to: Magistrate Judge Robert J. Johnston Case in other court: 9th Circuit, 08−17227 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 08/30/2006 Date Terminated: 10/27/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Clark K.

represented by Bruno Wolfenzon Wolfenzon Schulman &Ryan 6725 Via Austi Parkway Suite 260 Las Vegas, NV 89119 702−836−3138 Fax: 702−836−3139 Email: bruno@wolfenzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna . 405 14th St Oakland, CA 94612 (510) 835−8098 x3036 Email: bmartyna@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman Thorndal, Armstrong, Delk, Balkenbush &Eisinger 1100 E. Bridger Las Vegas, NV 89101 (702) 366−0622 Fax: (702) 366−0327 Email: gms@thorndal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar Farella Braun + Martel, LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954−4400 Fax: (415) 954−4480 Email: kancar@fbm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612 510−835−8098 Fax: 510−835−8098 Email: lwelch@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 2 of 41

Sonya U Sanchez Farella Braun + Martel LLP 235 Montgomery Street 17th Floor San Francisco, CA 94104 415−954−4951 Fax: 415−954−4480 Email: ssanchez@fbm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm 405 14th Street Oakland, CA 94612 510−835−8098 Email: bgrimm@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman Buckley King LPA 10655 Park Run Drive Suite 190 Las Vegas, NV 89144 702−727−2930 Fax: 702−240−5900 Email: Sturman@buckleyking.com ATTORNEY TO BE NOTICED

Plaintiff Sherry Anderson

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 3 of 41

Plaintiff Jalen Unknown
Plaintiff Sia Unknown

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katina Ancar (See above for address) LEAD ATTORNEY

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 4 of 41

ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Roshaun Unknown

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Caleb Unknown

represented by Bruno Wolfenzon (See above for address)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 5 of 41

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff King A.

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 6 of 41

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tarrah Logan

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Toni Unknown

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 7 of 41

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Summer Unknown

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 8 of 41

Plaintiff Frank B.
Plaintiff Marilyn Paikai

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katina Ancar (See above for address) LEAD ATTORNEY

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 9 of 41

ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Donna C.

represented by Bruno Wolfenzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jacquelyn Romero

represented by Bruno Wolfenzon (See above for address)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 10 of 41
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryn Martyna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katina Ancar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sonya U Sanchez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Governor Kenny Guinn TERMINATED: 05/14/2007
Defendant Director, NV DHHS Michael Willden

represented by Martina Geinzer Las Vegas Metropolitan Police Dept. Litigation 400 E Stewart 7th Floor Las Vegas, NV 89101 (702)828−3330 Fax: (702) 828−1558 Email: m10172g@lvmpd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
represented by Linda C. Anderson Nevada Attorney General's Office 555 E. Washington Ave Suite 3900 Las Vegas, NV 89101− Email: landerson@ag.nv.gov

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 11 of 41

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Administrator NDCFS Fernando Serrano

represented by Linda C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bureau Chief NDCFS Paula A. Hawkins

represented by Linda C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Defendant Clark Co. Mgr. Virginia Valentine

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley Lewis Brisbois Bisgaard &Smith, LLP 6385 S. Rainbow Blvd., Ste. 600 Las Vegas, NV 89118 702−693−4366 Fax: 702−893−3789 Email: margaret.foley@lewisbrisbois.com TERMINATED: 09/22/2009

Sarah Gaskill Peacock Sande Law Group 6077 S. Ft. Apache Rd. Ste. 130 Las Vegas, NV 89148 702−997−0066 Fax: 702−997−0038 Email: sgp@sandelawgroup.com TERMINATED: 09/22/2009

Defendant
Clark County Department of Family Services

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Linda C. Anderson (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 12 of 41

Defendant Director CCDFS Tom Morton
Defendant Mgr. Shelter Care Louis Palma
Defendant County Commissioner Bruce Woodbury
Defendant County Commissioner Tom Collins
Defendant County Commissioner Chip Maxfield

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009
represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) TERMINATED: 09/22/2009
Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009
represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) TERMINATED: 09/22/2009
Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009
represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) TERMINATED: 09/22/2009
Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009
represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) TERMINATED: 09/22/2009
Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009
represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 13 of 41

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Defendant
County Commissioner Yvonne Atkinson−Gates

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Defendant County Commissioner Myrna Williams

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Defendant
County Commissioner Lynette Boggs McDonald

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Defendant County Commissioner Rory Reid

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Defendant Clark County, Nevada

represented by

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 14 of 41

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) TERMINATED: 09/22/2009

Sarah Gaskill Peacock (See above for address) TERMINATED: 09/22/2009

Interested Party Reeves

represented by Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Jeffery C. Long Prout LeVangie 612 South Tenth Street Las Vegas, Ne 89101 (702) 410−7480 Fax: (702) 410−7481 Email: jeffery.long@proutlaw.com ATTORNEY TO BE NOTICED

Interested Party
Deann Weisner TERMINATED: 09/23/2009

represented by Deann Weisner 1812 Shifting Winds Street Las Vegas, NV 89117 702−787−0002 Fax: 702−254−3402 PRO SE

Date Filed 08/30/2006
08/30/2006 09/01/2006 09/01/2006 09/01/2006
09/05/2006 09/05/2006 09/05/2006 09/05/2006

# Docket Text
1 COMPLAINT against all defendants (Filing fee $ 350, receipt 327303), filed by Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Certificate of Interested Parties due by 9/9/2006. (Attachments: # 1 Civil Cover Sheet # 2 Summons)(MAJ) (Entered: 08/30/2006)
Case assigned to Judge Robert C. Jones and Robert J. Johnston. (GEW) (Entered: 08/30/2006)
2 PROPOSED SUMMONS to be issued Atkinson−Gates, filed by Plaintiff King A.. (Wolfenzon, Bruno) (Entered: 09/01/2006)
3 PROPOSED SUMMONS to be issued Boggs−McDonald, filed by Plaintiff King A.. (Wolfenzon, Bruno) (Entered: 09/01/2006)
4 PROPOSED SUMMONS to be issued Summons for remaining Defendants, filed by Plaintiff King A.. (Attachments: # 1 Summons Multiple summons# 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12)(Wolfenzon, Bruno) (Entered: 09/01/2006)
5 SUMMONS Issued as to Yvonne Atkinson−Gates. (MJZ) (Entered: 09/05/2006)
6 SUMMONS Issued as to Lynette Boggs McDonald. (MJZ) (Entered: 09/05/2006)
7 SUMMONS Issued as to Clark County. (MJZ) (Entered: 09/05/2006)
8 SUMMONS Issued as to Tom Collins. (MJZ) (Entered: 09/05/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 15 of 41

09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/08/2006 09/08/2006 09/08/2006
09/11/2006 09/11/2006 09/15/2006
09/15/2006
09/15/2006
09/15/2006
09/15/2006
09/15/2006
09/15/2006
09/15/2006
09/15/2006

9 SUMMONS Issued as to Kenny Guinn. (MJZ) (Entered: 09/05/2006)
10 SUMMONS Issued as to Paula A. Hawkins. (MJZ) (Entered: 09/05/2006)
11 SUMMONS Issued as to Chip Maxfield. (MJZ) (Entered: 09/05/2006)
12 SUMMONS Issued as to Tom Morton. (MJZ) (Entered: 09/05/2006)
13 SUMMONS Issued as to Louis Palma. (MJZ) (Entered: 09/05/2006)
14 SUMMONS Issued as to Rory Reid. (MJZ) (Entered: 09/05/2006)
15 SUMMONS Issued as to Fernando Serrano. (MJZ) (Entered: 09/05/2006)
16 SUMMONS Issued as to Virginia Valentine. (MJZ) (Entered: 09/05/2006)
17 SUMMONS Issued as to Michael Willden. (MJZ) (Entered: 09/05/2006)
18 SUMMONS Issued as to Myrna Williams. (MJZ) (Entered: 09/05/2006)
19 CERTIFICATE of Interested Parties Plaintiffs Certificate of Interested Parties by Plaintiff Clark K.. (Wolfenzon, Bruno) (Entered: 09/08/2006)
20 PROPOSED SUMMONS to be issued Proposed Summons for Bruce Woodbury, filed by Plaintiff Clark K.. (Wolfenzon, Bruno) (Entered: 09/08/2006)
21 PROPOSED SUMMONS to be issued Proposed Summons for Clark Co. Dept of Family Services, filed by Plaintiff Clark K.. (Wolfenzon, Bruno) (Entered: 09/08/2006)
22 SUMMONS Issued as to Bruce Woodbury. (MJZ) (Entered: 09/11/2006)
23 SUMMONS Issued as to Clark County Dept. of Family Services. (MJZ) (Entered: 09/11/2006)
24 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Chip Maxfield. Chip Maxfield accepted service on 9/11/2006, answer due 11/10/2006. Afft of Service Maxfield (Wolfenzon, Bruno) (Entered: 09/15/2006)
25 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Clark County. Clark County accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Clark Co. (Wolfenzon, Bruno) (Entered: 09/15/2006)
26 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Tom Morton. Tom Morton accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Morton (Wolfenzon, Bruno) (Entered: 09/15/2006)
27 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Louis Palma. Louis Palma accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Palma (Wolfenzon, Bruno) (Entered: 09/15/2006)
28 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Myrna Williams. Myrna Williams accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Williams (Wolfenzon, Bruno) (Entered: 09/15/2006)
29 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Yvonne Atkinson−Gates. Yvonne Atkinson−Gates accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Gates (Wolfenzon, Bruno) (Entered: 09/15/2006)
30 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Rory Reid. Rory Reid accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Reid (Wolfenzon, Bruno) (Entered: 09/15/2006)
31 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Lynette Boggs McDonald. Lynette Boggs McDonald accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc McDonald (Wolfenzon, Bruno) (Entered: 09/15/2006)
32 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Tom Collins. Tom Collins accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Collins (Wolfenzon, Bruno) (Entered: 09/15/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 16 of 41

09/15/2006 09/19/2006 09/19/2006 09/19/2006
09/19/2006 09/19/2006
09/20/2006
09/20/2006
09/20/2006
09/26/2006 09/26/2006 09/26/2006 09/26/2006 09/26/2006 09/26/2006 09/29/2006 10/06/2006

33 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Virginia Valentine. Virginia Valentine accepted service on 9/11/2006, answer due 11/10/2006. Afft of Srvc Valentine (Wolfenzon, Bruno) (Entered: 09/15/2006)
34 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Tom Morton. Tom Morton accepted service on 9/12/2006, answer due 11/11/2006. Acceptance of Service−Morton (Wolfenzon, Bruno) (Entered: 09/19/2006)
35 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Louis Palma. Louis Palma accepted service on 9/12/2006, answer due 11/11/2006. Acceptance of Service−Palma (Wolfenzon, Bruno) (Entered: 09/19/2006)
36 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Virginia Valentine. Virginia Valentine accepted service on 9/12/2006, answer due 11/11/2006. Acceptance of Service−Valentine (Wolfenzon, Bruno) (Entered: 09/19/2006)
37 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Bruce Woodbury. Bruce Woodbury accepted service on 9/12/2006, answer due 11/11/2006. Afft of Service−Woodbury (Wolfenzon, Bruno) (Entered: 09/19/2006)
38 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Clark County Dept. of Family Services. Clark County Dept. of Family Services accepted service on 9/12/2006, answer due 11/11/2006. Afft of Service−Clark Co Dept Fam Srvcs (Wolfenzon, Bruno) (Entered: 09/19/2006)
39 First VERIFIED PETITION for Permission to Practice Pro Hac Vice submitted by attorney Bryn Martyna, (Filing fee $ 175 receipt number 352237) by Plaintiff Clark K.. (Attachments: # 1 Supplement Designation of Resident Attorney)(Wolfenzon, Bruno) (Entered: 09/20/2006)
40 Second VERIFIED PETITION for Permission to Practice Pro Hac Vice submitted by attorney Leecia Welch, (Filing fee $ 175 receipt number 352244) by Plaintiff Clark K.. (Attachments: # 1 Supplement Designation of Resident Attorney)(Wolfenzon, Bruno) (Entered: 09/20/2006)
41 Third VERIFIED PETITION for Permission to Practice Pro Hac Vice submitted by attorney William Grimm, (Filing fee $ 175 receipt number 352247) by Plaintiff Clark K.. (Attachments: # 1 Supplement Designation of Resident Attorney)(Wolfenzon, Bruno) (Entered: 09/20/2006)
42 ORDER granting 39 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Bryn Martyna for Toni Unknown and Summer Unknown. Signed by Judge Robert C. Jones on 9/22/06. (AXM) (Entered: 09/26/2006)
43 DESIGNATION of Local Counsel 39 is APPROVED for Wolfenzon, Bruno). Signed by Lance S Wilson on 9/26/06. (AXM) (Entered: 09/26/2006)
44 ORDER granting 40 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Leecia Welch for Toni Unknown and Summer Unknown. Signed by Judge Robert C. Jones on 9/22/06. (AXM) (Entered: 09/26/2006)
45 DESIGNATION of Local Counsel 40 is APPROVED for (Wolfenzon, Bruno). Signed by Lance S Wilson on 9/26/06. (AXM) (Entered: 09/26/2006)
46 ORDER granting 41 Verified Petition for Permission to Practice Pro Hac Vice for Attorney William Grimm for Toni Unknown and Summer Unknown. Signed by Judge Robert C. Jones on 9/22/06. (AXM) (Entered: 09/26/2006)
47 DESIGNATION of Local Counsel 41 is APPROVED for Wolfenzon, Bruno. Signed by Lance S Wilson on 9/26/06. (AXM) (Entered: 09/26/2006)
48 MOTION to Dismiss or in the alternative, motion for more definite statement by Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins. Responses due by 10/17/2006. (Anderson, Linda) (Entered: 09/29/2006)
49 MOTION to Dismiss by Defendant Kenny Guinn. Responses due by 10/24/2006. (Geinzer, Martina) (Entered: 10/06/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 17 of 41

10/06/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/17/2006 10/19/2006
10/24/2006 10/25/2006 10/30/2006 10/31/2006 10/31/2006 11/02/2006
11/02/2006 11/07/2006

50 CERTIFICATE OF SERVICE by Defendant Kenny Guinn re 49 MOTION to Dismiss. (Geinzer, Martina) (Entered: 10/06/2006)
51 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Kenny Guinn. Kenny Guinn accepted service on 9/12/2006, answer due 11/11/2006. Affidavit of Service−Guinn (Wolfenzon, Bruno) (Entered: 10/16/2006)
52 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Paula A. Hawkins. Paula A. Hawkins accepted service on 9/12/2006, answer due 11/11/2006. Affidavit of Service−Hawkins (Wolfenzon, Bruno) (Entered: 10/16/2006)
53 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Fernando Serrano. Fernando Serrano accepted service on 9/12/2006, answer due 11/11/2006. Affidavit of Service−Serrano (Wolfenzon, Bruno) (Entered: 10/16/2006)
54 ACCEPTANCE OF SERVICE Executed by Plaintiff Clark K., Defendant Michael Willden. Michael Willden accepted service on 9/12/2006, answer due 11/11/2006. Affidavit of Service−Willden (Wolfenzon, Bruno) (Entered: 10/16/2006)
55 First VERIFIED PETITION for Permission to Practice Pro Hac Vice submitted by attorney Katina Ancar, (Filing fee $ 175 receipt number 373775) by Plaintiff Clark K.. (Attachments: # 1 Supplement Designation of Resident Attorney)(Wolfenzon, Bruno) (Entered: 10/16/2006)
56 RESPONSE to 48 MOTION to Dismiss or in the alternative, motion for more definite statement; filed by Plaintiff Clark K.. Opposition to Motion to Dismiss etc Replies due by 10/31/2006. (Wolfenzon, Bruno) (Entered: 10/17/2006)
57 AMENDED COMPLAINT First Amended Complaint against all defendants, filed by Clark K.. (Attachments: # 1 Supplement 1st Amended Cmplt 2 of 8# 2 Supplement 1st Amended Cmplt 3 of 8# 3 Supplement 1st Amended Complt Part 4 of 8# 4 Supplement 1st Amended Complt Part 5 of 8# 5 Supplement 1st Amended Complt Part 6 of 8# 6 Supplement 1st Amended Complaint Part 7 of 8# 7 Supplement 1st Amended Complt Part 8 of 8)(Wolfenzon, Bruno) (Entered: 10/19/2006)
58 RESPONSE to 49 MOTION to Dismiss; filed by Plaintiff Clark K.. Replies due by 11/7/2006. (Wolfenzon, Bruno) (Entered: 10/24/2006)
59 RESPONSE to 55 First VERIFIED PETITION for Permission to Practice Pro Hac Vice submitted by attorney Katina Ancar, (Filing fee $ 175 receipt number 373775); filed by Defendant Kenny Guinn. Replies due by 11/8/2006. (Geinzer, Martina) (Entered: 10/25/2006)
62 ORDER granting 55 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Katina Ancar for Plaintiffs. Signed by Judge Robert C. Jones on 10/30/06. (MMM) (Entered: 11/01/2006)
60 ERROR: Wrong event selected. (MJZ) (Entered: 10/31/2006)
61 REPLY to Response to 48 MOTION to Dismiss or in the alternative, motion for more definite statement; filed by Defendant Michael Willden. Fernando Serrano, Paula Hawkins (Anderson, Linda) (Entered: 10/31/2006)
63 ACCEPTANCE OF SERVICE Executed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendants Kenny Guinn. Kenny Guinn accepted service on 10/25/2006, answer due 12/24/2006. (Wolfenzon, Bruno) Party Accepting Service Modified on 11/2/2006 (MJZ). (Entered: 11/02/2006)
64 DESIGNATION of Local Counsel Admitted to the Bar of this Court and Consent Thereto by Katina Ancar on behalf of Plaintiff Clark K.. (Ancar, Katina) (Entered: 11/02/2006)
65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer by Defendant Kenny Guinn. Responses due by 11/25/2006.

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 18 of 41

11/08/2006 11/08/2006 11/08/2006
11/08/2006 11/13/2006 11/17/2006 11/21/2006

(Geinzer, Martina) (Entered: 11/07/2006)
66 ACCEPTANCE OF SERVICE Executed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendant Kenny Guinn. Kenny Guinn accepted service on 10/25/2006, answer due 1/1/2007. (Wolfenzon, Bruno) (Entered: 11/08/2006)
67 ACCEPTANCE OF SERVICE Executed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendants Michael Willden, Fernando Serrano. Michael Willden accepted service on 10/25/2006, answer due 12/24/2006; Fernando Serrano accepted service on 10/25/2006, answer due 12/24/2006. (Wolfenzon, Bruno) (Entered: 11/08/2006)
68 ACCEPTANCE OF SERVICE Executed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Lynette Boggs McDonald, Rory Reid, Clark County. Virginia Valentine accepted service on 11/1/2006, answer due 12/31/2006; Clark County Dept. of Family Services accepted service on 11/1/2006, answer due 12/31/2006; Tom Morton accepted service on 11/1/2006, answer due 12/31/2006; Louis Palma accepted service on 11/1/2006, answer due 12/31/2006; Tom Collins accepted service on 11/1/2006, answer due 12/31/2006; Chip Maxfield accepted service on 11/1/2006, answer due 12/31/2006; Yvonne Atkinson−Gates accepted service on 11/1/2006, answer due 12/31/2006; Lynette Boggs McDonald accepted service on 11/1/2006, answer due 12/31/2006; Rory Reid accepted service on 11/1/2006, answer due 12/31/2006; Clark County accepted service on 11/1/2006, answer due 12/31/2006. (Wolfenzon, Bruno) (Entered: 11/08/2006)
69 ACCEPTANCE OF SERVICE Executed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendant Paula A. Hawkins. Paula A. Hawkins accepted service on 10/25/2006, answer due 12/24/2006. (Wolfenzon, Bruno) (Entered: 11/08/2006)
70 MOTION for Protective Order Motion for Protection from Disclosure of Confidential Information and Joinder in Defendant Governor Kenny Guinn's Motion for Clarification and Motion for Enlargement of Time by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 11/13/2006)
71 MINUTE ORDER IN CHAMBERS of the Honorable Robert J. Johnston, U.S. Magistrate Judge on 11/17/2006. By Judicial Assistant: MXS. The parties are advised that the Court has shortened the response time to: 70 MOTION for Protective Order Motion for Protection from Disclosure of Confidential Information and Joinder in Defendant Governor Kenny Guinn's Motion for Clarification and Motion for Enlargement of Time. A response shall be filed to said motion on or before 12 noon 11/21/2006.(no image attached) (MXS ) (Entered: 11/17/2006)
72 RESPONSE to 70 MOTION for Protective Order Motion for Protection from Disclosure of Confidential Information and Joinder in Defendant Governor Kenny Guinn's Motion for Clarification and Motion for Enlargement of Time; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Plaintiffs' Opposition to County Defendants' Motion for Protection From Disclosure of Confidential Information (Ancar, Katina) (Entered: 11/21/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 19 of 41

11/21/2006
11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/22/2006
11/23/2006

73 DECLARATION of Leecia Welch re 72 Response to Motion for Protective Order,, ; Declaration of Leecia Welch in Support of Plaintiffs' Opposition to County Defendants' Motion for Protection by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Ancar, Katina) (Entered: 11/21/2006)
74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion by Plaintiff Clark K.. Responses due by 12/9/2006. (Ancar, Katina) (Entered: 11/21/2006)
75 DECLARATION of Katina Ancar In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Ancar, Katina) (Entered: 11/21/2006)
76 DECLARATION of William Grimm In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Ancar, Katina) (Entered: 11/21/2006)
77 DECLARATION of Gregory M. Schulman In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 11/21/2006)
78 DECLARATION of Clark K. In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Clark K.. (Attachments: # 1 Clark K. Signature)(Ancar, Katina) (Entered: 11/21/2006)
79 DECLARATION of Marilyn Paikai In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Marilyn Paikai. (Attachments: # 1 M. Paikai Signature)(Ancar, Katina) (Entered: 11/21/2006)
80 DECLARATION of Jacquelyn Romero In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Jacquelyn Romero. (Attachments: # 1 J. Romero Signature)(Ancar, Katina) (Entered: 11/21/2006)
81 Submission of PROPOSED ORDER on 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 11/21/2006)
82 DECLARATION of Tarrah Logan In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Tarrah Logan. (Ancar, Katina) (Entered: 11/21/2006)
83 RESPONSE to 65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. [First Request] (Ancar, Katina) (Entered: 11/22/2006)
84 MINUTE ORDER IN CHAMBERS of the Honorable Robert J. Johnston, U.S. Magistrate Judge on 11/23/2006. By Judicial Assistant: MXS. RE: 70 MOTION for Protective Order Motion for Protection from Disclosure of Confidential Information and Joinder in Defendant Governor Kenny Guinn's Motion for Clarification and Motion for Enlargement of Time Motion Hearing by telephone conference call set for 11/29/2006 01:30 PM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston. The Court will initiate the call.(no image attached) (MXS ) (Entered: 11/23/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 20 of 41

11/28/2006 11/28/2006 11/30/2006
12/05/2006 12/08/2006 12/08/2006 12/11/2006

85 NOTICE of Hearing on 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion, 65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer, 49 MOTION to Dismiss, 48 MOTION to Dismiss or in the alternative, motion for more definite statement: Oral argument on the referenced motions is set for 1/8/2007 @ 09:00 AM in LV, NV, Courtroom 7D, before Judge Robert C. Jones. (no image attached)(BJP, ) (Entered: 11/28/2006)
86 REPLY to Response to 65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer; filed by Defendant Kenny Guinn. (Geinzer, Martina) (Entered: 11/28/2006)
87 MINUTES OF PROCEEDINGS − Motion Hearing held on 11/29/2006 before Judge Robert J. Johnston. Crtrm Administrator: K. Goetsch; Pla Counsel: Bruno Wolfenzon; William Grimm; and Leecia Welch; Def Counsel: Linda Anderson; Margaret Foley; Gloria Sturman; and Martina Geinzer; Court Reporter/FTR #: 1:43−2:12; Time of Hearing: 1:30pm. All parties are present telephonically. RE: 65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer filed by Kenny Guinn,, 49 MOTION to Dismiss filed by Kenny Guinn, 70 MOTION for Protective Order Motion for Protection from Disclosure of Confidential Information and Joinder in Defendant Governor Kenny Guinn's Motion for Clarification and Motion for Enlargement of Time filed by Bruce Woodbury, Chip Maxfield, Myrna Williams, Virginia Valentine, Yvonne Atkinson−Gates, Clark County, Rory Reid, Tom Collins, Lynette Boggs McDonald, Clark County Dept. of Family Services, Tom Morton, Louis Palma. The Court makes inquiry and hears representations of counsel. IT IS ORDERED the Motion for Protection from Disclosure of Confidential Information [#70] is DENIED as prematurely filed without any attempt to meet and confer between and among counsel to resolve the discovery issue. IT IS FURTHER ORDERED that the Motion to Dismiss by Kenny Guinn [#49] is deemed WITHDRAWN. The deadline for filing of a new motion to dismiss by this defendant with respect to the First Amended Complaint is 12/11/2006. The standard briefing schedule shall apply. IT IS FURTHER ORDERED the Motion for Clarification and Motion for Enlargement of Time [#65] is GRANTED in part to the following extent: The Motion for Clarification is GRANTED to the extent the Court considered the motion at today's hearing and ruled on the outstanding procedural issues. Further, the Motion for Enlargement of Time is MOOT pursuant to the record as set forth at today's proceedings.(no image attached) (KXG, ) Modified on to correct hearing date 11/30/2006 (GEW). (Entered: 11/30/2006)
88 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, U.S. District Judge on 12/5/2006. By Deputy Clerk: B. J. Price. Due to the Magistrate Judge's ruling, the time set for oral argument on Defendant Governor Kenny Guinn's Motion to Dismiss (#49) and the Motion for Clarification and Motion for Enlargement of Time (#65) set for 1/8/07 @ 9:00 a.m. is vacated as to these motions. (no image attached) (BJP, ) (Entered: 12/05/2006)
89 Amended DECLARATION of Tarrah Logan In Support Of Plaintiffs' Motion For Class Certification re 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiff Tarrah Logan. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 12/08/2006)
90 RESPONSE to 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Clark County Defendants' Opposition to Plaintiffs' Motion for Class Certification Replies due by 12/22/2006. (Sturman, Gloria) (Entered: 12/08/2006)
92 RESPONSE to 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins. Replies due by 12/25/2006. (Anderson, Linda) (Entered: 12/11/2006)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 21 of 41

12/11/2006 12/11/2006 12/11/2006 12/15/2006
12/20/2006 12/22/2006 12/22/2006 12/22/2006 12/29/2006 12/29/2006
01/03/2007
01/03/2007

93 RESPONSE to 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Defendant Kenny Guinn. Replies due by 12/25/2006. (Geinzer, Martina) (Entered: 12/11/2006)
94 JOINDER to 90 Response to Motion to Certify Class, ; Joinder to Clark County's Motion for Class Certification filed by Defendant Kenny Guinn. (Geinzer, Martina) (Entered: 12/11/2006)
95 MOTION to Dismiss Plaintiffs' First Amended Complaint by Defendant Kenny Guinn. Responses due by 12/29/2006. (Geinzer, Martina) (Entered: 12/11/2006)
96 RESPONSE to 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Certificate of Service of Affidavit of Margaret Foley Regarding Alleged Next Friends (Filed Under Seal) Replies due by 12/29/2006. (Foley, Margaret) (Entered: 12/15/2006)
97 NOTICE of Hearing on 95 MOTION to Dismiss Plaintiffs' First Amended Complaint:Oral argument on the referenced motion is set for 1/8/2007 @ 09:00 AM in LV, NV, Courtroom 7D, before Judge Robert C. Jones. (no image attached)(BJP, ) (Entered: 12/20/2006)
98 REPLY to Response to 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Ancar, Katina) (Entered: 12/22/2006)
99 DECLARATION of Katina Ancar re 98 Reply to Response to Motion, ; by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Ancar, Katina) (Entered: 12/22/2006)
100 DECLARATION of Donna Coleman re 98 Reply to Response to Motion, ; by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Ancar, Katina) (Entered: 12/22/2006)
101 MEMORANDUM filed by Plaintiff Clark K. re 95 MOTION to Dismiss Plaintiffs' First Amended Complaint. Opposition To Defendant Governor Kenny Guinn's Motion To Dismiss Plaintiffs' First Amended Complaint (Ancar, Katina) (Entered: 12/29/2006)
102 DECLARATION of William Grimm In Support Of Opposition To Defendant Guinn's Motion To Dismiss Plaintiffs' First Amended Complaint re 95 MOTION to Dismiss Plaintiffs' First Amended Complaint; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A Part 1# 2 Exhibit A Part 2# 3 Exhibit A Part 3# 4 Exhibit A Part 4# 5 Exhibit B Part 1# 6 Exhibit B Part 2)(Ancar, Katina) (Entered: 12/29/2006)
103 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, U.S. District Judge on 1/3/2007. RE: 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion, 95 MOTION to Dismiss Plaintiffs' First Amended Complaint, 48 MOTION to Dismiss or in the alternative, motion for more definite statement. ORAL ARGUMENT ON THE ABOVE−REFERENCED MOTIONS IS RESCHEDULED FOR MONDAY, FEBRUARY 12, 2007, AT 10:00 AM IN COURTROOM # 7D. (no image attached) (EKO) (Entered: 01/03/2007)
104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Responses due by

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 22 of 41

01/08/2007 01/09/2007 01/19/2007 01/22/2007 01/22/2007 01/22/2007 02/05/2007 02/12/2007

1/22/2007. (Sturman, Gloria) (Entered: 01/03/2007)
105 JOINDER to 104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement; filed by Defendant Kenny Guinn. (Geinzer, Martina) (Entered: 01/08/2007)
106 REPLY to Response to 95 MOTION to Dismiss Plaintiffs' First Amended Complaint; filed by Defendant Kenny Guinn. Defendant Kenny Guinn's Reply to Plaintiffs' Opposition to Motion to Dismiss (Geinzer, Martina) (Entered: 01/09/2007)
107 NOTICE of Hearing on 104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement: Oral argument on the referenced motion is set for 2/12/2007 @ 10:00 AM in LV, NV, Courtroom 7D, before Judge Robert C. Jones. (no image attached)(BJP, ) (Entered: 01/19/2007)
108 RESPONSE to 104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Replies due by 2/5/2007. (Ancar, Katina) (Entered: 01/22/2007)
109 DECLARATION of Leecia Welch re 108 Response to Motion to Dismiss, ; [In Support thereof] by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Ancar, Katina) (Entered: 01/22/2007)
110 CERTIFICATE OF SERVICE by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A. re 108 Response to Motion to Dismiss,, 109 Declaration,. (Ancar, Katina) (Entered: 01/22/2007)
111 REPLY to Response to 104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 02/05/2007)
112 MINUTES OF PROCEEDINGS − Motion Hearing held on 2/12/2007 before Judge Robert C. Jones. Crtrm Administrator: B. J. Price; Pla Counsel: Bruno Wolfenzon, Leecia Welch, Bryn Martyna &William Grimm; Def Counsel: Linda Anderson, Martina Geinzer, Margaret Foley &Gloria Sturman; Court Reporter/FTR #: Lilia Abarca de Carter; Time of Hearing: 10:26 a.m.. RE: 48 MOTION to Dismiss or in the alternative, motion for more definite statement filed by Michael Willden,, Fernando Serrano,, Paula A. Hawkins,, 65 MOTION Clarification and Motion for Enlargment of Time and Affidavit of Martina Geinzer filed by Kenny Guinn,, 104 MOTION to Dismiss Clark County Defendants' Motion to Dismiss, Or, In the Alternative, Motion for a More Definite Statement filed by Bruce Woodbury,, Chip Maxfield,, Myrna Williams,, Virginia Valentine,, Yvonne Atkinson−Gates,, Clark County,, Rory Reid,, Tom Collins,, Lynette Boggs McDonald,, Clark County Dept. of Family Services,, Tom Morton,, Louis Palma,, 49 MOTION to Dismiss filed by Kenny Guinn,, 95 MOTION to Dismiss Plaintiffs' First Amended Complaint filed by Kenny Guinn,, 74 MOTION to Certify Class and Memorandum of Points and Authorities In Support Of Motion filed by Clark K.,: The Court hears the arguments of Counsel. IT IS HEREBY ORDERED this matter is taken under submission and the Court will issue a written order. The Court will defer ruling on "class certification" and "abstention." The motion will be granted as to the Governor. The motion will be denied as to the State agency heads, the Commissioners and Clark County agency heads. Some of the claims will be granted in part. (no image attached) (BJP, ) (Entered: 02/13/2007)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 23 of 41

02/13/2007 02/13/2007 03/01/2007 03/01/2007 03/01/2007 03/02/2007 03/02/2007
03/05/2007 03/06/2007
03/07/2007
03/07/2007
03/13/2007

113 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiff Clark K. DISCOVERY PLAN AND SCHEDULING ORDER SUBMITTED IN COMPLIANCE WITH LR 26−1(f) AND FRCP 26 (f) SPECIAL SCHEDULING REVIEW REQUESTED. (Ancar, Katina) (Entered: 02/13/2007)
114 CERTIFICATE OF SERVICE by Plaintiff Clark K. re 113 Proposed Discovery Plan/Scheduling Order. (Ancar, Katina) (Entered: 02/13/2007)
115 ERROR: Wrong event selected. (MJZ) (Entered: 03/01/2007)
116 DECLARATION of Leecia Welch In Support Of Plaintiffs' Motion For Entry Of Protective Order re 115 MOTION Plaintiffs' Motion For Entry Of Protective Order; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A−G# 2 Exhibit H−M)(Ancar, Katina) (Entered: 03/01/2007)
117 CERTIFICATE OF SERVICE by Plaintiff Clark K. re 115 MOTION Plaintiffs' Motion For Entry Of Protective Order, 116 Declaration,. (Ancar, Katina) (Entered: 03/01/2007)
NOTICE of Docket Correction to 115 MOTION Plaintiffs' Motion For Entry Of Protective Order: ERROR: Wrong event selected; CORRECTION: Attorney Katina Ancar advised to refile PDF using "Motion for Protective Order" under the "Motions" category. (no image attached)(MJZ) (Entered: 03/02/2007)
118 MINUTE ORDER IN CHAMBERS of the Honorable Robert J. Johnston, U.S. Magistrate Judge on 3/2/2007. By Judicial Assistant: MXS. Discovery Hearing set for 3/7/2007, at 10:30 AM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston RE: 113 Proposed Discovery Plan/Scheduling Order. Counsel are required to be present in court for this hearing. (no image attached) (MXS ) (Entered: 03/02/2007)
119 MOTION for Protective Order by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/05/2007)
120 MOTION for Protective Order Re Disclosure Of Confidential Information by Defendants Virginia Valentine, Clark County Dept. of Family Services, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Tom Morton,Clark County. (Foley, Margaret) Modified on text to reflect correct flling parties, add Tom Morton to text 3/6/2007 (RFJ, ). (Entered: 03/06/2007)
121 SCHEDULING ORDER. Discovery due by 11/15/2007. Amend pleadings and/or add parties 7/13/2007. Expert witness disclosures 8/15/2007; Rebuttal expert witness disclosures 10/12/2007. LR 26−3 Interim Status report 8/15/2007. Joint interim discovery status reports due on 4/25/2007; 6/13/2007; 8/1/2007; and, 9/19/2007. Dispositive motions due by 12/14/2007. Proposed Joint Pretrial Order due by 1/15/2008. Interrogatories subject to the lmitations set forth in Fed. R. Civ. P. 33(a). Plaintiffs and Defendants are allowed a maximum of 30 depositions. Each deposition is limited to one day not to exceed a maximum of 7 hours pursuant to Fed. R. Civ. P. 30(d)(2). Requests for admission pursuant to Fed. R. Civ. P. 36−−each party is allowed to propound a maximum of 40 requests for admission on any other party. Signed by Judge Robert J. Johnston on 3/7/2007. (MXS ) (Entered: 03/07/2007)
122 MINUTES OF PROCEEDINGS − Discovery Hearing held on 3/7/2007 before Judge Robert J. Johnston. Crtrm Administrator: J. Ries; Pla Counsel: John Rolle and William Grimm; Def Counsel: Margaret G. Foley, Gloria J. Sturman and Linda C. Anderson; Court Reporter/FTR #: 10:34 − 11:07; Time of Hearing: 10:30 a.m. The Court canvasses the parties with regard to the proposed discovery plan and scheduling order 113 . After discussions, for reasons set forth on the record, the Court will issue a discovery plan and scheduling order. (no image attached) (JAR, ) (Entered: 03/08/2007)
123 VERIFIED PETITION for Permission to Practice Pro Hac Vice and DESIGNATION of Local Counsel submitted by attorney Sonya U. Sanchez, (Filing fee $ 175 receipt number 508407) by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/13/2007)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 24 of 41

03/13/2007 03/19/2007
03/19/2007
03/19/2007
03/21/2007 03/30/2007 03/30/2007 04/02/2007
04/09/2007 04/25/2007
05/14/2007 05/15/2007 05/15/2007 05/18/2007

124 CERTIFICATE OF SERVICE by Plaintiff Clark K. re 123 VERIFIED PETITION for Permission to Practice Pro Hac Vice and DESIGNATION of Local Counsel submitted by attorney Sonya U. Sanchez, (Filing fee $ 175 receipt number 508407) by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/13/2007)
125 RESPONSE to 119 MOTION for Protective Order; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 03/19/2007)
126 RESPONSE to 120 MOTION for Protective Order Re Disclosure Of Confidential Information; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Ancar, Katina) (Entered: 03/19/2007)
127 DECLARATION of Leecia Welch re 126 Response to Motion for Protective Order, ; by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 03/19/2007)
128 ORDER granting 123 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Sonya U. Sanchez for Toni Unknown and Summer Unknown and approving Designation of Local Counsel. Signed by Judge Robert C. Jones on 3/19/07. (AXM) (Entered: 03/21/2007)
129 REPLY to Response to 119 MOTION for Protective Order, 120 MOTION for Protective Order Re Disclosure Of Confidential Information; filed by Plaintiff Clark K.. : Plaintiffs' Reply In Support Of Motion For Entry Of Protective Order (Ancar, Katina) (Entered: 03/30/2007)
130 CERTIFICATE OF SERVICE by Plaintiff Clark K. re 129 Reply to Response to Motion,. (Ancar, Katina) (Entered: 03/30/2007)
131 REPLY to Response to 120 MOTION for Protective Order Re Disclosure Of Confidential Information; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 04/02/2007)
132 TRANSCRIPT of Proceedings: 112 Motion Hearing held on 2/12/07 before Judge Robert C. Jones. Court Recorder: Lilia Abarca de Carter. (no image attached) (EDS) (Entered: 04/09/2007)
133 STATUS REPORT Joint Interim Discovery Status Report by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 04/25/2007)
134 ORDER denying 48 Motion to Dismiss. Granting 95 Motion to Dismiss. granting in part and denying in part 104 Motion to Dismiss. Governor Gibbons dismissed from this action. (See 48 pages of order for specifics) Signed by Judge Robert C. Jones. (AXM) (Entered: 05/14/2007)
135 MOTION Defendant Kenny Guinn's Motion to Clarify re 134 Order on Motion to Dismiss,,,,, by Defendant Kenny Guinn. Responses due by 6/2/2007. (Geinzer, Martina) (Entered: 05/15/2007)
144 MOTION to Amend Caption by Defendant Kenny Guinn. (MJZ) (Entered: 06/19/2007)
136 MOTION to Dismiss Motion to Partially Dismiss Amended Complaint by Defendants Serrano, Willden, and Doe. Responses due by 6/5/2007. (Attachments: # 1 Exhibit 3# 2 Exhibit 2# 3)(Anderson, Linda) Modified on 5/18/2007 to correct main image (AXM). (Entered: 05/18/2007)

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06/05/2007 06/05/2007 06/08/2007 06/11/2007 06/11/2007 06/12/2007 06/13/2007 06/14/2007 06/14/2007 06/19/2007 06/19/2007 06/19/2007
06/28/2007

137 ERROR: Wrong event selected. (MJZ) (Entered: 06/05/2007)
138 RESPONSE to 136 MOTION to Dismiss Motion to Partially Dismiss Amended Complaint; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Replies due by 6/19/2007. (Ancar, Katina) (Entered: 06/05/2007)
139 ERROR: Wrong event selected. (MJZ) (Entered: 06/08/2007)
NOTICE of Docket Correction to 137 Response to Motion to Dismiss: ERROR: Wrong event selected; CORRECTION: Attorney Margaret Foley advised to refile PDF using "Joinder" event under the "Other Documents" category and link to 136 Motion to Dismiss. (no image attached)(MJZ) (Entered: 06/11/2007)
NOTICE of Docket Correction to 139 MOTION to Withdraw: ERROR: Wrong event selected; CORRECTION: Attorney Martina Geinzer advised to refile PDF using "Withdrawal of Motion" event under the "Other Documents" and link to 135 Motion to Clarify. (no image attached)(MJZ) (Entered: 06/11/2007)
140 JOINDER to 136 Motion to Dismiss; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) Docket entry relationship added on 6/21/07. (MJZ) (Entered: 06/12/2007)
141 STATUS REPORT [Joint Interim Discovery] by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Ancar, Katina) (Entered: 06/13/2007)
142 AMENDED COMPLAINT [Second] (Class Action Alleged) against all defendants, filed by Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. No changes to parties. Proof of service due by 10/12/2007.(Ancar, Katina) (Entered: 06/14/2007)
143 CERTIFICATE OF SERVICE for Joint Interim Discovery Status Report by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan re 141 Status Report,. (Ancar, Katina) (Entered: 06/14/2007)
NOTICE of Docket Correction to 135 MOTION Defendant Kenny Guinn's Motion to Clarify re 134 Order on Motion to Dismiss: ERROR: Document should have been filed as two separate entries by Attorney Martina Geinzer; CORRECTION: Redocketed as 144 MOTION to Amend Caption by Court. (no image attached)(MJZ) (Entered: 06/19/2007)
145 REPLY to Response to 136 MOTION to Dismiss Motion to Partially Dismiss Amended Complaint; filed by Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins. (Attachments: # 1 Exhibit Exhibits to Reply to Response)(Anderson, Linda) (Entered: 06/19/2007)
146 NOTICE of Hearing on 136 MOTION to Dismiss Motion to Partially Dismiss Amended Complaint, 135 MOTION Defendant Kenny Guinn's Motion to Clarify re 134 Order on Motion to Dismiss,,,,,, 144 MOTION to Amend/Correct:Oral argument on the referenced motions is set for 7/9/2007 @ 09:00 AM in LV, NV, Courtroom 7C, before Judge Robert C. Jones. (no image attached)(BJP, ) (Entered: 06/19/2007)
147 ANSWER to 142 Amended Complaint Clark County Defendants' Answer To Plaintiffs' Second Amended Complaint by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County.(Foley, Margaret) (Entered: 06/28/2007)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 26 of 41

07/03/2007 07/03/2007 07/06/2007 07/09/2007
07/13/2007 07/26/2007 08/01/2007 08/01/2007 08/28/2007 08/28/2007 08/28/2007

148 WITHDRAWAL of Motion re 135 MOTION Defendant Kenny Guinn's Motion to Clarify re 134 Order on Motion to Dismiss,,,,,; by Defendant Kenny Guinn Defendant Kenny Guinn's Withdrawal of Motion to Clarify and Withdrawal of Motion to Amend Caption. (Geinzer, Martina) (Entered: 07/03/2007)
149 WITHDRAWAL of Motion re 144 MOTION to Amend/Correct; by Defendant Kenny Guinn Defendant Kenny Guinn's Withdrawal of Motion to Clarify and Withdrawal of Motion to Amend Caption. (Geinzer, Martina) (Entered: 07/03/2007)
150 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, U.S. District Judge, on 7/6/2007. RE: 144 MOTION to Amend/Correct, 135 MOTION Defendant Kenny Guinn's Motion to Clarify re 134 Order on Motion to Dismiss. Per counsel's withdrawal of these motions, oral argument scheduled for Monday, July 9, 2007, is vacated as to these motions ONLY.(no image attached) (Copies have been distributed pursuant to the NEF − EKO) (Entered: 07/06/2007)
151 MINUTES OF PROCEEDINGS − Motion Hearing held on 7/9/2007 before Judge Robert C. Jones. Crtrm Administrator: B. J. Price; Pla Counsel: Gregory Schulman, Leecia Welch, Bryn Martyna &William Grimm; Def Counsel: Linda Anderson, Margaret Foley &Gloria Sturman; Court Reporter/FTR #: Araceli Catu; Time of Hearing: 9:51 a.m.. RE: 136 MOTION to Dismiss Motion to Partially Dismiss Amended Complaint filed by Michael Willden,, Fernando Serrano,: The Court gives a preliminary analysis. The Court hears the arguments of Counsel. IT IS HEREBY ORDERED this matter is taken under submission and the Court will issue a written order. (no image attached) (Copies have been distributed pursuant to the NEF − BJP, ) (Entered: 07/09/2007)
152 Amended ANSWER to 57 Amended Complaint CLARK COUNTY DEFENDANTS' FIRST AMENDED ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County.(Foley, Margaret) (Entered: 07/13/2007)
153 STIPULATION Joint Stipulation To Continue All Discovery Deadlines By Thirty Days And [Proposed] Order Thereon by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 07/26/2007)
154 TRANSCRIPT of Proceedings: 122 Discovery Hearing held on 3/7/07 before Judge Robert J. Johnston. Court Reporter: FTR. Transcript prepared by Cline Transcription Services. (no image attached) (EDS) (Entered: 08/03/2007)
155 TRANSCRIPT of Proceedings: 151 Motion Hearing held on 7/9/07 before Judge Robert C. Jones. Court Recorder: Araceli Catu. Transcript prepared by Cline Transcription Services. (no image attached) (EDS) (Entered: 08/03/2007)
156 MOTION to Compel Production of Documents by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Responses due by 9/15/2007. (Attachments: # 1 Proposed Order)(Ancar, Katina) (Entered: 08/28/2007)
157 MEMORANDUM filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan re 156 MOTION to Compel Production of Documents. (Ancar, Katina) (Entered: 08/28/2007)
158 DECLARATION of William L. Grimm re 156 MOTION to Compel Production of Documents ; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Ancar, Katina) (Entered:

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 27 of 41

08/28/2007
08/28/2007 09/04/2007 09/06/2007
09/14/2007 09/17/2007
09/21/2007 10/01/2007 10/01/2007 10/01/2007 10/30/2007

08/28/2007)
159 DECLARATION of William L. Grimm re 156 MOTION to Compel Production of Documents ; filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. [CERTIFICATION of William L. Grimm of Efforts to Resolve Discovery Dispute Without Formal Court Intervention in Support of Plaintiffs' Motion to Compel Production of Documents] (Ancar, Katina) (Entered: 08/28/2007)
160 CERTIFICATE OF SERVICE for Motion to Compel Production of Documents and Supporting Papers by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan re 156 MOTION to Compel Production of Documents. (Ancar, Katina) (Entered: 08/28/2007)
161 ORDER Granting 136 Partial Motion to Dismiss. Motion 140 Joinder is Granted. Signed by Judge Robert C. Jones on 9/4/07. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 09/06/2007)
162 (2ND Notice) PURSUANT TO SPECIAL ORDER 109: that William Grimm is in violation of Special Order 109. Participation in the electronic filing system became mandatory for all attorneys effective January 1, 2006. You are required to register for the Courts Case Management and Electronic Case Filing (CM/ECF) program and the electronic service of pleadings. Continued failure to abide by Special Order 109 will be brought to the courts attention for appropriate action. Please visit the Courts website to register for CM/ECF. (no image attached) (RFJ) (Entered: 09/06/2007)
163 STIPULATION SECOND JOINT STIPULATION TO CONTINUE ALL DISCOVERY DEADLINES BY SIXTY DAYS AND [PROPOSED] ORDER THEREON by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Foley, Margaret) (Entered: 09/14/2007)
164 RESPONSE to 156 MOTION to Compel Production of Documents ; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. County Defendants Response to Plaintiffs' Motion to Compel Production of Documents Replies due by 10/1/2007. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Sturman, Gloria) (Entered: 09/17/2007)
165 ANSWER to 142 Amended Complaint State Defendants Answer to Plaintiffs Second Amended Complaint by Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins.(Anderson, Linda) (Entered: 09/21/2007)
166 REPLY to Response to 156 MOTION to Compel Production of Documents ; filed by Plaintiff Clark K.. Plaintiffs' Reply Memorandum In Support Of Motion To Compel Production Of Documents (Ancar, Katina) (Entered: 10/01/2007)
167 DECLARATION of William Grimm re 156 MOTION to Compel Production of Documents ; filed by Plaintiff Clark K.. Reply Declaration Of William Grimm In Support Of Plaintiffs' Motion To Compel Production Of Documents (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C − Part 1# 4 Exhibit C − Part 2# 5 Exhibit C − Part 3# 6 Exhibit D through H)(Ancar, Katina) (Entered: 10/01/2007)
168 CERTIFICATE OF SERVICE for Plaintiffs' Reply Memorandum In Support Of Motion To Compel Production Of Documents; Reply Declaration Of William Grimm In Support Of Plaintiffs' Motion To Compel Production Of Documents by Plaintiff Clark K. re 167 Declaration, 166 Reply to Response to Motion. (Ancar, Katina) (Entered: 10/01/2007)
170 STATUS REPORT Third Joint Interim Discovery Status Report by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 10/30/2007)

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11/01/2007 11/02/2007
11/12/2007 11/12/2007 11/12/2007 11/15/2007 11/19/2007 11/20/2007 11/20/2007 11/21/2007
11/26/2007

171 MOTION to Withdraw 169 Ex Parte MOTION for Protective Order Ex Parte Objection to Deposition of Queenie Reeves and Motion for Protective Order on Order Shortening Time by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Sturman, Gloria) (Entered: 11/01/2007)
172 RESPONSE to 169 Ex Parte MOTION for Protective Order; filed by Plaintiff Clark K. (Attachments: # 1 Declaration Declaration Of Katina Ancar In Support Of Plaintiffs Response To County Defendants Ex Parte Objection To Deposition Of Rosie Beck And Motion For Protective Order On Order Shortening Time# 2 Proposed Order [Proposed] Order Granting Plaintiffs Motion For Entry Of Protective Order And Denying County Defendnts Ex Parte Objection To Deposition And Motion For Protective Order On Order Shortening Time# 3 Certificate of Service)(Ancar, Katina) Docket entry relationship added on 11/8/07. (MJZ) (Entered: 11/02/2007)
173 STIPULATION : Third Joint Stipulation to Continue All Discovery Deadlines by Thirty Days and [Proposed] Order Thereon by Plaintiff Clark K.. (Sanchez, Sonya) (Entered: 11/12/2007)
174 MOTION for Hearing (Discovery Conference); filed by Plaintiff Clark K. (Sanchez, Sonya) Event type modified on 11/15/07. (MJZ) (Entered: 11/12/2007)
175 CERTIFICATE OF SERVICE for Third Joint Stipulation to Continue All Discovery Deadlines by Thirty Days and [Proposed] Order; Joint Request for Discovery Conference by Plaintiff Clark K. re 174 Proposed Discovery Plan/Scheduling Order, 173 Stipulation. (Sanchez, Sonya) (Entered: 11/12/2007)
NOTICE of Docket Correction to 174 MOTION for Hearing : ERROR: Wrong event selected by Attorney Sonya Sanchez; CORRECTION: Event type changed to "Motion for Hearing" by Court. (no image attached)(MJZ) (Entered: 11/15/2007)
178 Ex Parte MOTION For Protective Order On Order Shortening Time by Plaintiff Clark K.. (Attachments: # 1 Declaration Declaration Of Katina Ancar In Support Of Plaintiffs Ex Parte Motion To Seal The County's Ex Parte Objection To Deposition Of Rosie Beck And Motion For Protective Order On Order Shortening Time# 2 Certificate of Service)(Ancar, Katina) Docket text modified on 12/4/07. (RFJ). (Entered: 11/19/2007)
179 RESPONSE to 177 Ex Parte MOTION for Protective Order on Order Shortening Time; filed by Plaintiff Clark K. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Ancar, Katina) Docket entry relationship added on 11/21/07. (MJZ) (Entered: 11/20/2007)
180 DECLARATION of Katina Ancar re 179 Response to Motion for Protective Order, ; Declaration Of Katina Ancar In Support Of Plaintiffs Response To Ex Parte Objection To Deposition Of Rosie Beck And Motion For Protective Order On Order Shortening Time by Plaintiff Clark K.. (Attachments: # 1 Exhibit A and B)(Ancar, Katina) (Entered: 11/20/2007)
181 MINUTE ORDER IN CHAMBERS of the Honorable Robert J. Johnston, U.S. Magistrate Judge, on 11/21/2007. By Deputy Clerk: MXS. Motion Hearing set for 11/26/2007 10:00 AM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston on RE: 177 EX PARTE Objection to Deposition of Queenie Reeves and Motion for Protective Order. Other pending motions may be heard should time allow.(no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 11/21/2007)
182 MINUTE ORDER IN CHAMBERS of the Honorable Robert J. Johnston, U.S. Magistrate Judge, on 11/26/2007. By Judicial Assistant: MXS. Hearing scheduled for 11/26/2007, is VACATED and rescheduled to 12/10/2007, at 02:00 PM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston RE: 177 EX PARTE Objection to Deposition of Queenie Reeves and Motion for Protective Order. Other pending motions may be heard should time allow.(no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 11/26/2007)

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 29 of 41

11/28/2007
12/10/2007
12/11/2007 03/12/2008 03/12/2008 03/12/2008 03/12/2008 03/12/2008 03/26/2008

183 RESPONSE to 178 Ex Parte MOTION to Seal The County's Ex Parte Objection To Deposition Of Rosie Beck And Motion For Protective Order On Order Shortening Time ; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. County Defendant's Response to Plaintiff's Ex Parte Motion to Seal County Defendant's Objection to Depo of Rosie Beck &Motion for Protective Order on Order Shortening Time (Attachments: # 1 Affidavit of MGF)(Sturman, Gloria) (Entered: 11/28/2007)
185 MINUTES OF PROCEEDINGS − Hearing re exparte objection to deposition of Queenie Reeves and motion for protective order on order shortening time 177 held on 12/10/2007 before Judge Robert J. Johnston. Crtrm Administrator: J. Ries; Pla Counsel: Leecia Welch, Katina Ancar and Gregory M. Schulman; Def Counsel: Linda C. Anderson, Margaret G. Foley, Gloria J. Sturman and Jeffery C. Long for interested party; Court Reporter/FTR #: 2:14 − 4:15; Time of Hearing: 2:00 p.m.; Courtroom: 3D; The Court hears arguments of counsel. ORDERED that stipulations to continue discovery deadlines 163 and 173 are both denied. Upon the ruling of other matters pending before this Court, the Court will adjust the discovery schedule consistent with what counsel has raised with the Court today. The joint request for discovery conference 174 having been satisfied by this hearing is GRANTED. The other matters pending before this Court are taken under submission and the Court will issue written orders at a later date. (no image attached) (Copies have been distributed pursuant to the NEF − JAR) (Entered: 12/13/2007)
184 RESPONSE re Plaintiffs' Answer to Court's Inquiry Regarding Requests for Production and Proof of Service thereof filed by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Ancar, Katina) (Entered: 12/11/2007)
186 ORDER granting 119 Plaintiffs' Motion for Entry of Protective Order consistent with this Order; and, denying 120 Defendants' Renewed Motion for Protective Order from Disclosure of Confidential Information. Signed by Magistrate Judge Robert J. Johnston on 3/12/2008. (Copies have been distributed pursuant to the NEF − MXS) (Entered: 03/12/2008)
187 ORDER granting 156 Plaintiffs' Motion to Compel Production of Documents, consistent with this Order and the Court's Order (#186). Signed by Magistrate Judge Robert J. Johnston on 3/12/2008. (Copies have been distributed pursuant to the NEF − MXS) (Entered: 03/12/2008)
188 ORDER denying 177 Ex Parte Objection to Deposition of Queenie Reeves and Motion for Protective Order. The deposition of Queenie Reeves may proceed. The document production related to said deposition shall be governed by the Court's Orders (#186 &#187). Signed by Magistrate Judge Robert J. Johnston on 3/12/2008. (Copies have been distributed pursuant to the NEF − MXS) (MAJ). (Entered: 03/12/2008)
189 ORDER granting 178 Motion to Seal 176 Order on Motion for Protective Order, Order on Motion to Withdraw, 169 Ex Parte MOTION for Protective Order Ex Parte Objection to Deposition of Queenie Reeves and Motion for Protective Order on Order Shortening Time. Signed by Magistrate Judge Robert J. Johnston on 3/12/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 03/12/2008)
NOTICE of Docket Correction to 188 Order on Ex Parte Motion; ERROR: Wrong case number on order; CORRECTION: Case number changed on order and image replaced. (no image attached)(MAJ) (Entered: 03/12/2008)
191 DECLARATION of Katina Ancar re 190 EX PARTE MOTION To File Memorandum Of Points And Authorities In Excess Of Thirty Pages ; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 03/26/2008)

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03/26/2008 03/28/2008 03/28/2008 03/28/2008 03/28/2008
03/28/2008 03/28/2008 03/28/2008 03/28/2008

192 MOTION for Magistrate Judge to Reconsider Magistrate Judge Order Compelling Discovery of Case Files and Parties' Entry Into Protective Order by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Responses due by 4/13/2008. (Attachments: # 1 Exhibit A−Affidavit, # 2 Exhibit B−Depo Transcript)(Sturman, Gloria) (Entered: 03/26/2008)
193 Ex Parte MOTION to Seal Exhibits G, H, I, J, K, L, Y, TT, UU, VV, WW, and XX to the Declaration of William Grimm in Support of Plaintiffs Renewed Motion for Class Certification by Plaintiff Clark K.. Motion ripe 3/28/2008. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Ancar, Katina) (Entered: 03/28/2008)
194 DECLARATION of Katina Ancar re 193 Ex Parte MOTION to Seal Exhibits G, H, I, J, K, L, Y, TT, UU, VV, WW, and XX to the Declaration of William Grimm in Support of Plaintiffs Renewed Motion for Class Certification ; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/28/2008)
195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) by Plaintiff Clark K.. Responses due by 4/15/2008. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Ancar, Katina) (Entered: 03/28/2008)
196 DECLARATION of William Grimm re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit M, # 8 Exhibit N, # 9 Exhibit O, # 10 Exhibit P, # 11 Exhibit Q, # 12 Exhibit R, # 13 Exhibit S, # 14 Exhibit T, # 15 Exhibit U, # 16 Exhibit V, # 17 Exhibit W, # 18 Exhibit X, # 19 Exhibit Z, # 20 Exhibit AA, # 21 Exhibit BB, # 22 Exhibit CC, # 23 Exhibit DD, # 24 Exhibit EE, # 25 Exhibit FF, # 26 Exhibit GG, # 27 Exhibit HH, # 28 Exhibit II, # 29 Exhibit JJ, # 30 Exhibit KK, # 31 Exhibit LL, # 32 Exhibit MM, # 33 Exhibit NN, # 34 Exhibit OO, # 35 Exhibit PP, # 36 Exhibit QQ, # 37 Exhibit RR, # 38 Exhibit SS, # 39 Exhibit YY, # 40 Exhibit ZZ, # 41 Exhibit AAA)(Ancar, Katina) (Entered: 03/28/2008)
198 DECLARATION of Katina Ancar re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ancar, Katina) (Entered: 03/28/2008)
199 DECLARATION of Gregory M. Schulman re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 03/28/2008)
201 DECLARATION of Steve Hiltz re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/28/2008)
202 DECLARATION of Marilyn Paikai re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/28/2008)

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03/28/2008
03/28/2008 03/31/2008 03/31/2008
04/02/2008 04/14/2008 04/14/2008 04/15/2008 04/15/2008
04/18/2008 04/24/2008
04/24/2008

203 DECLARATION of Terrie Crawford re 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/28/2008)
204 CERTIFICATE OF SERVICE for Under Seal Exhibits G, H, I, J, K, L, Y, TT, UU, VV, WW, and XX to the Declaration of William Grimm in Support of Plaintiffs Renewed Motion for Class Certification by Plaintiff Clark K.. (Ancar, Katina) (Entered: 03/28/2008)
205 Submission of PROPOSED ORDER on 193 Ex Parte MOTION to Seal Exhibits G, H, I, J, K, L, Y, TT, UU, VV, WW, and XX to the Declaration of William Grimm in Support of Plaintiffs Renewed Motion for Class Certification ; filed by Plaintiff Clark K. [CORRECTED]. (Ancar, Katina) (Entered: 03/31/2008)
206 Submission of PROPOSED ORDER on 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K. [CORRECTED]. (Ancar, Katina) (Entered: 03/31/2008)
208 ORDER Granting Plaintiffs' Ex Parte 193 Motion to Seal Certain Documents Under Seal. Signed by Judge Robert C. Jones on 4/1/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 04/02/2008)
209 RESPONSE to 192 MOTION for Magistrate Judge to Reconsider Magistrate Judge Order Compelling Discovery of Case Files and Parties' Entry Into Protective Order, filed by Plaintiff Clark K.. Replies due by 4/28/2008. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 04/14/2008)
210 DECLARATION of LEECIA WELCH re 209 Response to Motion, ; In Support Of Plaintiffs Response To Motion For District Court Review And Reconsideration Of Magistrate Judges Orders Compelling Discovery Of Case Files And Parties Entry Into Protective Order by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ancar, Katina) (Entered: 04/14/2008)
211 NOTICE of Hearing on 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification): Oral argument on the referenced motion is hereby set for 5/5/2008 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones. (no image attached)(KXG) (Entered: 04/15/2008)
212 STIPULATION and Proposed Order Extending Briefing Schedule for Plaintiffs' Renewed Motion For Class Certification (First Request) by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Sturman, Gloria) (Entered: 04/15/2008)
213 ORDER ON STIPULATION granting 212 Stipulation, to extend deadlines; 195 MOTION to Certify Class ; Responses due by 5/6/2008. Replies due by 5/30/2008. Signed by Judge Robert C. Jones on 4/18/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 04/18/2008)
214 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 4/24/2008. By Deputy Clerk: K. Goetsch. In accordance with the stipulation of the parties to extend briefing in this matter, IT IS ORDERED the oral argument RE: 195 MOTION to Certify Class is hereby RESCHEDULED to 6/9/2008 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.) (no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 04/24/2008)
215 NOTICE of Hearing on 192 MOTION for District Judge to Reconsider Magistrate Judge Order Compelling Discovery of Case Files and Parties' Entry Into Protective Order: Oral argument on the referenced motion is scheduled for 6/9/2008 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones. (no image

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attached)(KXG) (Entered: 04/24/2008)
216 REPLY to Response to 192 MOTION for Magistrate Judge to Reconsider Magistrate Judge Order Compelling Discovery of Case Files and Parties' Entry Into Protective Order ; filed by Defendant Clark County Dept. of Family Services. County Defendants' Reply in Support of Motion for District Court Review and Reconsideration of Magistrate Judge's Orders Compelling Discovery of Case Files and Parties' Entry into Protective Order (Sturman, Gloria) (Entered: 04/28/2008)
218 DECLARATION of Sarah Gaskill in Support of 217 Ex Parte Application to File Memorandum of Points and Authorities in Excess of Thirty Pages by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Gaskill, Sarah) Docket entry relationship added on 5/5/08. (MJZ) (Entered: 04/30/2008)
219 RESPONSE to 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification), filed by Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins. Opposition to Renewed Motion for Class Certification Replies due by 5/19/2008. (Anderson, Linda) (Entered: 05/05/2008)
220 RESPONSE to 195 Motion for Class Certification; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Clark County Defendants' Opposition to Plaintiffs' Renewed Motion for Class Certification Replies due by 5/20/2008. (Attachments: # 1 Exhibit A through C, # 2 Exhibit D through G)(Sturman, Gloria) Docket entry relationship added on 5/12/08. (MJZ) (Entered: 05/06/2008)
222 Ex Parte MOTION to Seal Exhibit A and Exhibit B to the Declaration of Leecia Welch in Support of Plaintiffs Combined Reply to Oppositions to Plaintiffs' Renewed Motion for Class Certification by Plaintiff Clark K.. Motion ripe 5/30/2008. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Ancar, Katina) (Entered: 05/30/2008)
223 DECLARATION of Katina Ancar re 222 Ex Parte MOTION to Seal Exhibit A and Exhibit B to the Declaration of Leecia Welch in Support of Plaintiffs Combined Reply to Oppositions to Plaintiffs' Renewed Motion for Class Certification ; filed by Plaintiff Clark K.. (Ancar, Katina) (Entered: 05/30/2008)
224 REPLY to Response to 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Plaintiff Clark K.. (Combined Reply To Clark County Defendants And State Defendants Oppositions To Plaintiffs' Renewed Motion For Class Certification) (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 05/30/2008)
225 DECLARATION of Leecia Welch re 224 Reply to Response to Motion,, ; In Support Of Combined Reply To Clark County Defendants And State Defendants Oppositions To Plaintiffs Renewed Motion For Class Certification by Plaintiff Clark K.. (Attachments: # 1 Exhibit A through D)(Ancar, Katina) (Entered: 05/30/2008)
227 DECLARATION of Edward Cotton re 224 Reply to Response to Motion,, ; In Support Of Plaintiffs Reply To Defendants Opposition To Renewed Motion For Class Certification by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ancar, Katina) (Entered: 05/30/2008)
228 DECLARATION of Stuart Fredlund re 224 Reply to Response to Motion,, ; In Support Of Plaintiffs Reply To Defendants Opposition To Renewed Motion For Class Certification by Plaintiff Clark K.. (Ancar, Katina) (Entered: 05/30/2008)

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05/30/2008 05/30/2008 06/06/2008 06/09/2008 06/09/2008

229 DECLARATION of Rosie Garcia re 224 Reply to Response to Motion,, ; In Support Of Plaintiffs Reply To Defendants Opposition To Renewed Motion For Class Certification by Plaintiff Clark K.. (Ancar, Katina) (Entered: 05/30/2008)
230 DECLARATION of Fran Jensen re 224 Reply to Response to Motion,, ; In Support Of Plaintiffs Reply To Defendants Opposition To Renewed Motion For Class Certification by Plaintiff Clark K.. (Ancar, Katina) (Entered: 05/30/2008)
231 EXHIBIT(s) C (Amended) to 225 Declaration, ; filed by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 06/06/2008)
232 ORDER Granting 222 Motion to Seal. Signed by Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 06/09/2008)
234 MINUTES OF PROCEEDINGS − Motion Hearing held on 6/9/2008 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: William Grimm; Leecia Welch; Bryn Martyna; Gregory Schulman; Def Counsel: Linda Anderson (State); Gloria Sturman and Margaret Foley (County); Court Reporter/FTR #: D. Saavedra; Time of Hearing: 9:09am; Courtroom: 7D;

The Court gives preliminary analysis then hears arguments of counsel.

ORDERED the decision of the U. S. Magistrate Judge which is the subject of 192 MOTION to Reconsider Magistrate Judge Order Compelling Discovery of Case Files and Parties' Entry Into Protective Order is AFFIRMED.

06/12/2008 06/17/2008 06/23/2008
06/27/2008 07/08/2008 07/08/2008
07/08/2008

Further ORDERED the 195 MOTION to Certify Class is DENIED for the reasons set forth on the record. Prevailing counsel shall prepare and circulate a proposed order for the Court's use in preparing its written decision. Submission of Proposed Order due by 6/23/2008. Written ruling of the Court to follow.(no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 06/16/2008)
233 STIPULATION and Protective Order by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 06/12/2008)
235 ORDER granting 233 Stipulated Protective Order. See Order for details. Signed by Magistrate Judge Robert J. Johnston on 6/17/2008. (Copies have been distributed pursuant to the NEF − MXS) (Entered: 06/17/2008)
236 Submission of PROPOSED ORDER on 195 MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) MOTION to Certify Class (Plaintiffs Notice Of Motion, Motion And Memorandum And Points Of Authorities In Support Of Renewed Motion For Class Certification) ; filed by Defendant Clark County. Clark County Defendants' Proposed Order Denying Plaintiffs' Renewed Motion for Class Certification (Sturman, Gloria) (Entered: 06/23/2008)
237 OBJECTION to 236 Proposed Order Submission,, ; Denying Plaintiffs Renewed Motion For Class Certification filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Ancar, Katina) (Entered: 06/27/2008)
238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) by Plaintiff Clark K.. Responses due by 7/26/2008. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Ancar, Katina) (Entered: 07/08/2008)
239 DECLARATION of Leecia Welch re 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) ; filed by Plaintiff Clark K.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Ancar, Katina) (Entered: 07/08/2008)
240 DECLARATION of William L. Grimm re 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) ; filed by Plaintiff Clark K.. (Certification Of William L. Grimm Of Efforts To Resolve Discovery Dispute

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Without Formal Court Intervention In Support Of Plaintiffs Motion To Enforce Discovery Order And To Impose Sanctions) (Ancar, Katina) (Entered: 07/08/2008)
241 NOTICE by Plaintiff Clark K. re 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions). (Plaintiffs' Notice Of Motion And Motion To Enforce Discovery Order And To Impose Sanctions) (Ancar, Katina) (Entered: 07/08/2008)
243 ORDER DENYING without prejudice Plaintiffs' 195 Motion to Certify Class. Signed by Judge Robert C. Jones on 7/9/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 07/14/2008)
242 RESPONSE to 237 Objection to Document ; filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. (Sturman, Gloria) (Entered: 07/11/2008)
244 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert J. Johnston on 7/16/2008. By Judicial Assistant: MXS. Motion Hearing set for 8/7/2008, at 09:00 AM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston RE: 238 Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions. (no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 07/16/2008)
245 RESPONSE to 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions), filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Replies due by 8/11/2008. (Foley, Margaret) (Entered: 07/28/2008)
246 REPLY to Response to 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) ; filed by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 08/06/2008)
247 DECLARATION of Katina Ancar re 246 Reply to Response to Motion, ; (In Support Of Reply To Plaintiffs Motion To Enforce Discovery Order And To Impose Sanctions) by Plaintiff Clark K.. (Attachments: # 1 Exhibit A)(Ancar, Katina) (Entered: 08/06/2008)
248 MINUTES OF PROCEEDINGS − Motion Hearing held on 8/7/2008 before Magistrate Judge Robert J. Johnston. Crtrm Administrator: Alana Kamaka; Pla Counsel: Katina Ancar, William Grimm, Leecia Welch and Mark Shockley; Def Counsel: Margaret Foley (for County Defendants); and Lisa Anderson (for State Defendants); Court Reporter/FTR #: 9:06:43−10:26:40; Time of Hearing: 9:00 a.m.; Courtroom: 3D; granting 238 Motion for Sanctions re Discovery. Court makes preliminary statements and proceeds to confer with and hear representations of counsel. ORDER Plaintiffs Motion to Enforce Discovery (#238) is GRANTED. FURTHER ORDER documents as to the non−plaintiffs are to be produced on or before October 3, 2008. Documents may be produced in hard copy, in print, or electronic media whichever works best. FURTHER ORDER the investigative reports and case worker notes of the 1100 abuse claim files of non−plaintiffs shall be produced by October 3, 2008. All of the collateral reports and other documentation in the file are not required immediately. The parties to work this out. FURTHER ORDER the following schedule shall apply: Discovery Deadline is 4/10/09; Expert Reports due 1/23/09; Rebuttal Expert will be identified and reports provided by 3/6/09; and Dispositive Motions to be filed by 5/15/09. A formalized written scheduling order to follow. FURTHER ORDER the Request for Sanctions is GRANTED. Ms. Ankar shall submit an Affidavit of the Resonable Costs in bringing this motion to the Court by 8/22/08. Ms. Foley has until 9/5/08 to respond.

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09/05/2008 09/08/2008 09/09/2008

After receipt of all documents, the Court's Judicial Assistant will set a hearing. The parties can notify the Court if an agreement is reached regarding compensation and the hearing will be vacated. The Court inquires and hears representations as to the possibility of settlement. The parties to confer and submit a modified protective order using the language cited by Ms. Foley during this hearing. (Copies have been distributed pursuant to the NEF − AKK) (Entered: 08/07/2008)
249 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert J. Johnston, on 8/13/2008. By Judicial Assistant: MXS. Hearing set for 9/10/2008, at 01:30 PM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston on the request for attorneys' fees and costs incurred in bringing the Motion to Enforce Discovery (#238). (no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 08/13/2008)
250 SCHEDULING ORDER. Discovery due by 4/10/2009. Motions due by 5/15/2009. Joint Pretrial Order due 30 days from the date the court enters an order on dispositive motions. See Order for other discovery related matters. Signed by Magistrate Judge Robert J. Johnston on 8/19/2008. (Copies have been distributed pursuant to the NEF − MXS) (Entered: 08/19/2008)
251 DECLARATION of Katina Ancar re 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) ; In Support Of Plaintiffs Reasonable Costs In Pursuing Motion To Enforce Discovery Order And To Impose Sanctions by Plaintiff Clark K.. (Attachments: # 1 Exhibit A through D, # 2 Certificate of Service)(Ancar, Katina) (Entered: 08/22/2008)
252 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert J. Johnston, on 8/25/2008. By Judicial Assistant: MXS. Hearing scheduled for 9/10/2008, at 1:30 p.m. is RESCHEDULED to 9/10/2008, at 02:00 PM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston on the request for attorneys' fees and costs incurred in bringing Plaintiffs' Motion To Enforce Discovery 238 . (no image attached). (Copies have been distributed pursuant to the NEF − MXS) (Entered: 08/25/2008)
253 STIPULATION and [Proposed] Protective Order by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 09/04/2008)
254 TRANSCRIPT of Proceedings, 248 Motion Hearing held on Thursday, August 7, 2008, before Magistrate Judge Robert J. Johnston. Court Reporter/Transcriber: Cline Transcription Services, Inc., 702−644−1123. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 9/26/2008. Redacted Transcript Deadline set for 10/6/2008. Release of Transcript Restriction set for 12/4/2008. (EDS) (Entered: 09/05/2008)
255 RESPONSE to filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Clark County Defendants' response to Plaintiffs' Declaration in Support of 238 Rquest for Attorney's Fees and Costs Replies due by 9/19/2008. (Sturman, Gloria) Docket entry relationship added on 9/8/08. (MJZ) (Entered: 09/05/2008)
256 ORDER ON STIPULATION Granting 253 Stipulation for PROTECTIVE ORDER. Signed by Magistrate Judge Robert J. Johnston on 9/5/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 09/08/2008)
257 REPLY BRIEF In Support Of Plaintiffs Declaration In Support Of Reasonable Costs In Pursuing 238 Motion To Enforce Discovery Order And To Impose Sanctions re 251 Declaration,, by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) Docket entry relationship added on 9/10/08. (MJZ) (Entered: 09/09/2008)

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258 DECLARATION of Katina Ancar re 257 Reply Brief, ; Itemizing Plaintiffs Reasonable Costs In Pursuing Motion To Enforce Discovery Order And To Impose Sanctions by Plaintiff Clark K.. (Ancar, Katina) (Entered: 09/09/2008)
259 MINUTES OF PROCEEDINGS − Hearing RE: Should Sanctions be Awarded under Rule 37 held on 9/10/2008 before Judge Robert J. Johnston. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Katina Ancar and William Grimm; Def Counsel: Gloria Sturman, Margaret Foley and Linda Anderson; Court Reporter/FTR #: 2:18:00 − 2:30:48; Time of Hearing: 2:00 p.m.; Courtroom: 3D; The Court addresses the parties regarding the purpose of this hearing and reviews the elements of the FRCP Rule 37. Discussion is held between the Court and counsel. For reasons set forth on the record, IT IS ORDERED the plaintiffs' shall submit a renewed Affidavit along with the reasonable costs by 9/26/2008; Response due by 10/10/2008. After receipt of all documents, the Court's Judicial Assistant will set a hearing. The parties can notify the Court if an agreement is reached regarding compensation and the hearing will be vacated. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 09/12/2008)
260 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert J. Johnston, on 9/16/2008. By Judicial Assistant: MXS. Hearing set for 10/21/2008, at 01:30 PM in LV Courtroom 3D before Magistrate Judge Robert J. Johnston on the request for fees and costs incurred in brining the Motion to Enforce Discovery (#238) and the on request for sanctions pursuant to Fed. R. Civ. P. 37. (no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 09/16/2008)
261 MEMORANDUM filed by Plaintiff Clark K. re 238 MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions) MOTION for Sanctions re Discovery (Plaintiffs' Motion To Enforce Discovery Order And To Impose Sanctions). (In Support Of Reasonable Attorney's Fees And Costs In Pursuing Motion To Enforce) (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 09/26/2008)
262 DECLARATION of Katina Ancar re 261 Memorandum, ; In Support Of Reasonable Attorney's Fees And Costs In Pursuing Motion To Enforce by Plaintiff Clark K.. (Attachments: # 1 Exhibit A through G)(Ancar, Katina) (Entered: 09/26/2008)
263 DECLARATION of William L. Grimm re 261 Memorandum, ; In Support Of Reasonable Attorney's Fees And Costs In Pursuing Motion To Enforce by Plaintiff Clark K.. (Attachments: # 1 Exhibit A through J)(Ancar, Katina) (Entered: 09/26/2008)
264 DECLARATION of Gregory M. Schulman re 261 Memorandum, ; Support Of Reasonable Attorney's Fees And Costs In Pursuing Motion To Enforce by Plaintiff Clark K.. (Attachments: # 1 Exhibit A and B)(Ancar, Katina) (Entered: 09/26/2008)
265 RESPONSE to 261 MEMORANDUM re Attorneys Fees filed by Defendants Virginia Valentine, Clark County Dept. of Family Services, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County. Clark County Defendants' Response to Plaintiffs' Declaration in support of second request for attorney's fees and costs Replies due by 10/24/2008. (Sturman, Gloria) Modified to add docket relationship on 10/14/2008 (MAJ). (Entered: 10/10/2008)
266 NOTICE OF APPEAL as to 243 Order on Motion to Certify Class by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. Filing fee $ 455, #110115. (AXM) (Entered: 10/17/2008)
267 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 266 Notice of Appeal,. (Attachments: # 1 Forms)(AXM) (Entered: 10/17/2008)

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268 ORDER for Time Schedule as to 266 Notice of Appeal, filed by Tarrah Logan, Clark K., Marilyn Paikai, Caleb Unknown, Roshaun Unknown, Summer Unknown, Donna C., Sia Unknown, Frank B., Jacquelyn Romero, Toni Unknown, Jalen Unknown, King A., Sherry Anderson Certificate of Record due by 11/10/2008. (AXM) (Entered: 10/17/2008)
274 TRANSMITTAL RETURN of Notice of Appeal from USCA re 266 Notice of Appeal,. USCA Case Number 08−17227. (AXM) (Entered: 11/03/2008)
269 MINUTES OF PROCEEDINGS − Hearing re whether reasonable costs should be awarded for bringing motion to enforce discovery 238 held on 10/21/2008 before Magistrate Judge Robert J. Johnston. Crtrm Administrator: J. Ries; Pla Counsel: Gregory M. Schulman, Katina Ancar and William Grimm; Def Counsel: Linda C. Anderson, Margaret G. Foley and Gloria J. Sturman; Court Reporter/FTR #: 1:37− 2:20; Time of Hearing: 1:30 p.m.; Courtroom: 3D; The Court hears arguments of counsel. The Court takes this matter under submission and will issue a written opinion. (no image attached) (Copies have been distributed pursuant to the NEF − JAR) (Entered: 10/21/2008)
270 TRANSCRIPT DESIGNATION by Plaintiffs re 266 Notice of Appeal, 132 Transcript, 234 Motion Hearing. (AXM) (Entered: 10/22/2008)
271 ORDER Denying 192 Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Signed by Judge Robert C. Jones on 10/24/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 10/24/2008)
272 Fourth STATUS REPORT Fourth Joint Interim Discovery Status Report by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendants Michael Willden, Fernando Serrano, Paula A. Hawkins, Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 10/24/2008)
273 TRANSCRIPT DESIGNATION by Defendants Clark County re 266 Notice of Appeal, 155 Transcript, 151 Motion Hearing. (AXM) (Entered: 10/30/2008)
275 CERTIFICATE OF RECORD on Appeal Transmitted to USCA re 266 Notice of Appeal,. (AXM) (Entered: 11/10/2008)
276 TRANSCRIPT of Proceedings, 234 Motion Hearing held on 6/9/2008, before Judge Robert C. Jones. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/3/2008. Redacted Transcript Deadline set for 12/13/2008. Release of Transcript Restriction set for 2/10/2009. (ABB) (Entered: 11/12/2008)
277 Joint STATUS REPORT (Fifth Joint Interim Discovery Status Report) by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 12/19/2008)
278 STIPULATION (Fourth Joint Stipulation To Extend Discovery Deadlines And [Proposed] Order Thereon) by Plaintiff Clark K.. (Attachments: # 1 Certificate of Service)(Ancar, Katina) (Entered: 01/08/2009)
279 Joint MOTION to Stay and Memorandum of Points and Authorities in Support Thereof by Plaintiff Clark K.. Motion ripe 2/20/2009. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Sanchez, Sonya) (Entered: 02/20/2009)
280 ORDER granting 279 Motion to Stay. Case stayed to 6/29/2009. Status conf scheduled for 6/30/2009, at 1:30 p.m. in LV courtroom 3D, 3d floor, Lloyd D. George United States Courthouse, 333 Las Vegas Blvd. So., Las Vegas, Nevada. Signed by Magistrate Judge Robert J. Johnston on 2/23/2009. (Copies have been

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distributed pursuant to the NEF − MXS) (Entered: 02/23/2009)
281 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 5/29/2009. By Deputy Clerk: K. Goetsch. IT IS HEREBY ORDERED the parties to this case and/or counsel shall appear before this Court for a Status Conference on Monday, 6/15/2009, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 05/29/2009)
282 STIPULATION Request for Continuance of Status Conference (First Request) by Defendants Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Lynette Boggs McDonald, Rory Reid, Clark County. (Sturman, Gloria) (Entered: 06/04/2009)
283 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 6/8/2009. By Deputy Clerk: K. Goetsch. IT IS HEREBY ORDERED the 282 Stipulation is approved to the extent that the Status Conference previously scheduled for 6/15/09, is RESCHEDULED to 6/18/2009, at 10:00 AM in LV Courtroom 7D before Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 06/08/2009)
284 Joint STATUS REPORT conference statement by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan, Defendants Kenny Guinn, Michael Willden, Fernando Serrano, Paula A. Hawkins, Virginia Valentine, Clark County Dept. of Family Services, Tom Morton, Louis Palma, Bruce Woodbury, Tom Collins, Chip Maxfield, Yvonne Atkinson−Gates, Myrna Williams, Lynette Boggs McDonald, Rory Reid, Clark County, Interested Party Reeves. (Sturman, Gloria) (Entered: 06/16/2009)
285 MINUTES OF PROCEEDINGS − Status Conference held on 6/18/2009 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: William Grimm; Leecia Welch; Greg Schulman; Def Counsel: Gloria Sturman, Margaret Foley (County); Shannon Richards (State); Court Reporter/FTR #: A. Bareng; Time of Hearing: 10:00am; Courtroom: 7D;
The Court addresses counsel, advising of its concerns with the progress of this case. Representations of counsel in response to the Court's concerns are heard.
IT IS ORDERED the stay shall continue in effect pending further status conference, at which time the parties shall be prepared to address the setting of a trial date in this matter. Further Status Conference is scheduled for 9/28/2009, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.
(no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 06/23/2009)
286 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert J. Johnston, on 6/25/2009. By Judicial Assistant: MXS. The parties are advised that the status conference scheduled for 6/30/2009, at 1:30 PM before Judge Robert Johnston is VACATED. (no image attached) (Copies have been distributed pursuant to the NEF − MXS) (Entered: 06/25/2009)
287 STRICKEN per Order 290 MOTION to Consolidate Cases by Plaintiff Clark K. Responses due by 7/19/2009. (ASB) (Entered: 07/02/2009)
288 TRANSCRIPT of Proceedings, 285 Status Conference held on 6/18/2009, before Judge Robert C. Jones. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/28/2009. Redacted Transcript Deadline set for 8/7/2009. Release of Transcript Restriction set for 10/5/2009. (ABB) (Entered: 07/07/2009)

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07/13/2009 07/16/2009
07/27/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/16/2009
09/22/2009
09/22/2009
09/22/2009

289 STRICKEN per Order 290 MOTION on Order Shortening Time to Condense Cases by Interested Party Deann Weisner. Responses due by 7/31/2009. (SD) (Entered: 07/14/2009)
290 ORDER STRIKING FILED DOCUMENTS. Docket No. 287 MOTION to Consolidate Cases, and 289 MOTION Order Shortening Time to Condense Cases, are Stricken from the record as they were filed by a non−party to the case. Signed by Judge Robert C. Jones on 7/16/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 07/17/2009)
291 NOTICE of Change of Address by Gregory M Schulman. (Schulman, Gregory) (Entered: 07/27/2009)
292 MOTION to Substitute Attorney by Defendant Virginia Valentine. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
293 MOTION to Substitute Attorney by Defendant Clark County Dept. of Family Services. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
294 MOTION to Substitute Attorney by Defendant Tom Morton. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
295 MOTION to Substitute Attorney by Defendant Louis Palma. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
296 MOTION to Substitute Attorney by Defendant Bruce Woodbury. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
297 MOTION to Substitute Attorney by Defendant Tom Collins. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
298 MOTION to Substitute Attorney by Defendant Chip Maxfield. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
299 MOTION to Substitute Attorney by Defendant Yvonne Atkinson−Gates. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
300 MOTION to Substitute Attorney by Defendant Myrna Williams. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
301 MOTION to Substitute Attorney by Defendant Lynette Boggs McDonald. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
302 MOTION to Substitute Attorney by Defendant Rory Reid. (Sturman, Gloria) Event type corrected on 9/16/09. (MJZ) (Entered: 09/15/2009)
NOTICE of Docket Correction to 292 293 294 295 296 297 298 299 300 301 302 NOTICE of Change of Attorney : ERROR: Wrong event selected by attorney Gloria Sturman; CORRECTION: Entries corrected by Court to 292 293 294 295 296 297 298 299 300 301 302 MOTION to Substitute Attorney. (no image attached)(MJZ) (Entered: 09/16/2009)
303 ORDER Granting 292 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Virginia Valentine, Clark Co. Mgr. in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
304 ORDER granting 293 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Clark County Dept. of Family Services in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
305 ORDER Granting 294 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Tom Morton in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)

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09/22/2009 09/22/2009 09/22/2009 09/22/2009 09/22/2009 09/22/2009 09/22/2009 09/22/2009 09/23/2009 09/24/2009
09/28/2009

306 ORDER Granting 295 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Louis Palma in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
307 ORDER Granting 296 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Bruce Woodbury in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
308 ORDER Granting 297 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Tom Collins in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
309 ORDER Granting 298 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Chip Maxfield in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
310 ORDER Granting 299 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant vonne Atkinson−Gate in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
311 ORDER Granting 300 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Myrna Williams in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
312 ORDER Granting 301 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Lynette Boggs McDonald in place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
313 ORDER Granting 302 Motion to Substitute Attorney Gloria J Sturman on behalf of Defendant Rory Reidin place of Wilson Elser Moskowitz Edelman &Dicker LLP. Signed by Magistrate Judge Robert J. Johnston on 9/22/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/23/2009)
314 STRICKEN per 315 Order. (MJZ) MOTION for Oral Argument by Interested Party Deann Weisner. Motion ripe 9/23/2009. (SD) (Entered: 09/23/2009)
315 ORDER Striking 314 Motion for Hearing, as it was filedby a non−party to the case. IT IS FURTHER ORDERED that the Clerks Office reject any further documents filed by Deann Weisner in this case without permission of the Court. Signed by Judge Robert C. Jones on 9/24/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 09/24/2009)
316 MINUTES OF PROCEEDINGS − Status Conference held on 9/28/2009 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: William Grimm; Leccia Welch; Def Counsel: Gloria Sturman (County Defendant's); Linda Anderson (State Defendants); Court Reporter/FTR #: A. Bareng; Time of Hearing: 9:15am; Courtroom: 7D;

The Court makes inquiry of counsel and hears representations with respect to the status.

Mr. Grimm speaks to the status from the plaintiffs' perspective, and advises of his intention to seek leave to amend the complaint to add new plaintiffs. Ms. Sturman addresses the Court with respect to the status from the perspective of the defendants.

Upon inquiry by the Court, discussion is held with regard to the differing opinions of counsel as to whether discovery is closed. The Court invites the filing of a motion in that regard, to the extent either side deems it appropriate.

Case: 2:06-cv-1068 As of: 10/03/2015 04:50 PM PDT 41 of 41

10/13/2009 10/16/2009
10/16/2009 10/26/2009 10/27/2009

IT IS ORDERED plaintiffs' motion to amend the complaint and/or to reopen discovery shall be filed within 10 days, not later than 10/13/2009; Response(s) shall be filed not later than 5:00 PM on 10/19/2009; Replies shall be filed not later than 5:00 PM on 10/21/2009.
IT IS FURTHER ORDERED oral argument regarding the motion to amend and/or reopen discovery is scheduled for 10/26/2009, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.
IT IS FURTHER ORDERED the Bench Trial is scheduled for the stacked calendar of 5/4/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones. Calendar Call is scheduled for 4/26/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones. Trial is estimated at a minimum of two weeks.
Bench Trial set for. (no image attached) (Copies have been distributed pursuant to the NEF − KXG) (Entered: 10/02/2009)
317 STIPULATION of Dismissal by Plaintiffs Toni Unknown, Summer Unknown, Frank B., Marilyn Paikai, Donna C., Jacquelyn Romero, Clark K., Sherry Anderson, Jalen Unknown, Sia Unknown, Roshaun Unknown, Caleb Unknown, King A., Tarrah Logan. (Sanchez, Sonya) (Entered: 10/13/2009)
318 TRANSCRIPT of Proceedings, 316 Status Conference held on 9/28/2009, before Judge Robert C. Jones. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 11/6/2009. Redacted Transcript Deadline set for 11/16/2009. Release of Transcript Restriction set for 1/14/2010. (ABB) (Entered: 10/16/2009)
319 ORDER of USCA as to 266 Notice of Appeal. Appeal is dismissed pursuant to notice of voluntary dismissal filed by the parties. This order shall act as the mandate of the court. (ECS) (Entered: 10/21/2009)
322 ORDER on Mandate Dismissing 266 Notice of Appeal, as to 319 USCA Order Dismissing the Appeal,pursuant to notice of voluntary dismissal filed by the parties. Signed by Judge Robert C. Jones on 10/26/2009. (SD) (Entered: 10/27/2009)
321 ORDER Granting 317 Joint Stipulation DISMISSING CASE, with Prejudice. Each party shall bear its own attorneys fees and costs relating to this action. All undecided motions and/or appeals pending with this Court and the Ninth Circuit are withdrawn or otherwise rendered moot. Signed by Judge Robert C. Jones on 10/26/2009. (Copies have been distributed pursuant to the NEF − SD) (Entered: 10/27/2009)