Monday, November 1, 2010

Foster care lawsuit in Nevada: How the National Center for Youth Law planted the seeds of its own defeat

            I’ve written often here about the failure of my fellow liberals on child welfare issues.  But if you want to see a good old fashioned failure of right-wing extremism, just check out the decision by Federal District Judge Robert C. Jones throwing out a lawsuit against the child welfare system in Clark County (metropolitan Las Vegas) Nevada.  (Check it out when the decision in Henry A. v. Willden becomes generally available online, that is; right now I’ve only been able to find it through a federal courts database that requires registration; but this story in the Las Vegas Review Journal sums it up well.)

            In the course of throwing out a lawsuit brought by the National Center for Youth Law (which should not be confused with the more progressive Youth Law Center), Judge Jones essentially ruled that, under the U.S. Constitution, the rights of children thrown into foster care are perhaps one step above the rights of prisoners of war under the Geneva Convention.  NCYL plans to appeal, and we’d better hope that appeal is successful.

            It’s not that this was a very good lawsuit to begin with.  As I’ve discussed previously on this blog, NCYL has the same approach to litigation as the group that so arrogantly calls itself Children’s Rights: Whatever you do, don’t raise the issue of children not needing to be taken away in the first place.  So NCYL’s suits tend to produce the same mediocre results as CR’s, which is why I’ve taken to referring to the California-based NCYL as “CR West.”

            For example, NCYL is waging the same war against grandparents as CR.  Indeed, the one good thing about Judge Jones’ decision is that it threw out NCYL’s bizarre claim that foster children have a constitutional right not to be placed with their grandparents or other relatives if those relatives can’t comply with every hypertechnical licensing requirement.

This, of course, illustrates the problem with claiming to “represent” children through adult “next friends” who may barely know them or who, in this case, may simply be current or former foster parents who may put a shared ideology ahead of what the children really want. It’s hard to imagine that thousands of children really are begging their caseworkers by saying something like “Please, please don’t place me with grandma unless her house has precisely the square footage required in section 4 subsection A(2) of regulation 456!”

            But the rest of the lawsuit might have made things a little better. And by setting such an appallingly low standard concerning what foster children are entitled to, the decision, if upheld on appeal, could make things much worse.

            The great irony in this – and the biggest lesson for NCYL, CR and all the others who willfully ignore the problem of wrongful removal of children is that ignoring that problem helped plant the seeds of NCYL’s defeat.

            That is evident from this section of the decision, on page 12:

Plaintiffs have failed to allege that Defendants “did anything more than place foster children into an already broken system.” … Moreover, the Complaint does not state that Defendants created or increased the danger to children. Based on these pleading failures, this claim for relief is dismissed.

In addition, Defendants are entitled to qualified immunity on this claim. In this regard, Plaintiffs have not provided any factual assertions that the Defendants increased the danger to Plaintiffs.
[Emphasis added.]

In contrast,

           ● Had NCYL taken note of Nevada’s extremely high rate of child removal – more than 50 percent above the national average.

           ● Had NCYL pointed out that many of those removals are unnecessary (something well documented in a casereading by Prof. Leroy Pelton of the University of Nevada-Las Vegas School of Social Work)

          ● And had NCYL included cases of wrongful removal among their “named plaintiffs”

then they could, indeed, have made the claim that Clark County and the State of Nevada had actually made things worse for the children, and the judge would have had a lot more difficulty dismissing the case on that ground.

           Of course, given the judge’s clear hostility to the whole lawsuit, even had NCYL acknowledged the existence of the elephant in the room, judge Jones might well have ruled against them anyway.  But there’s still a lesson for those times when cases are brought before more reasonable judges: NCYL’s embrace of a take-the-child-and-run approach to child welfare got in the way of making the strongest possible case for the children it sued to protect.