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August 20, 2019

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Legislators’ peeve holds up money for child welfare

Dislike of DA’s use of resources prompted conditions on funding

David Roger

David Roger

A standoff between legislators and the Clark County district attorney is threatening state funding for the county’s child welfare system.

Since July 1 the state has withheld its money for social workers and other staff, according to county and state officials. Though the state Health and Human Services Department said it intends to release most of the $87 million allocated to pay for the county’s foster system over the next two years, some officials aren’t certain the state can legally release the money because of a provision inserted in an appropriation bill passed in the legislative session.

The language inserted in the bill made the funding of Clark County Child Welfare dependent on District Attorney David Roger’s changing his position on how child welfare disputes are settled.

Tension has been building for years between the district attorney and legislative Democrats — including Assembly Speaker Barbara Buckley, who is head of Legal Aid of Southern Nevada — over the handling of disputes in which it’s determined whether a child should be removed from foster care and placed with a family member.

In cases in which the district attorney’s office disagrees with a county Department of Family Services recommendation that a house is safe, Roger will sometimes send more than one attorney — one to represent the department and one to represent what Roger says are the child’s interests.

Roger said this practice, which has gone on for years, provides a vital check on the system.

“The Department of Family Services, as hard as they work, sometimes lets cases slip through the cracks,” Roger said. “We’re going to go to court to protect that child.”

However, some legislators, as well as the state Health and Human Services Department, say district attorneys should represent only the county Department of Family Services.

To put their belief into law, the legislative appropriations bill stated: “The appropriation of all of the sums ... are dependent upon all funds, whether state or local, being used in a manner such that the child welfare agencies are the sole client of the district attorneys in each case.”

Despite the provision, the Health and Human Services Department has released $3.5 million for foster parents and adoption subsidies, according to spokesman Ben Kieckhefer. It has withheld money so far for caseworkers, though Kieckhefer said the state would release all the rest of the money, except $1.5 million to pay for district attorneys.

“It is Director Mike Willden’s intention at this point to send Clark County money for caseworkers and withhold only money for the costs of the attorneys under the prosecutorial model,” Kieckhefer said, referring to the hearings in which two district attorneys are present.

Assemblywoman Debbie Smith, D-Sparks, agreed that only a piece of the foster care money should be withheld from the county. But she acknowledged that the provision in the law could be interpreted as cutting off all state funding for the foster care system.

“Who would want that?” she wondered. “Who would want money taken away from foster parents and social services.”

Kieckhefer said Willden thinks the legislative intent was to withhold money from the Clark County district attorney if it’s used to send additional attorneys to court.

“If the state does not send most of the funding to Clark County there’s a significant risk the child welfare system will collapse,” he said. “Foster care parents will not take in kids; it will take longer to go in and protect children when they are in danger. That’s something Mike Willden is not willing to let happen.”

Roger said the bill does not differentiate between district attorney money and other county funding. He said the provision is unconstitutional because it’s a substantive change in the law, which the attorney general’s office has determined cannot be carried out through an appropriations act. It also violates an interlocal agreement between the state and county on how to fund the child welfare system, Roger said.

Roger said his office has not been notified in writing yet about what the state plans to do. But, he said, if a portion of the money is withheld “ultimately, I think there will be a lawsuit to review this matter. I’m hopeful it doesn’t get to that point.”

Smith said the appropriation act is not a substantial change to the law but merely clarifies what state law means when it says a district attorney can represent “the public interest.”

An opinion from the Legislative Counsel Bureau said the child welfare agencies are best able to “carry out the best interests of the public” because they have education, experience and expertise. Therefore, the district attorneys should represent only welfare agencies, it said.

Smith pointed out that district attorneys in other counties represent only the county agency.

In Washoe County, she said, “if there’s a disagreement, people work together more to figure out the issues. If there is a problem, people can work out what’s best for the kids and then go to the courtroom.”

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