9th Circuit Rules CAPTA GAL Requirement Not Privately Enforceable

As the district court observed, Nevada does have a law directing state courts to appoint a guardian ad litem for every eligible child. See Nev. Rev. Stat. § 432B.500(1) (“After a petition is filed that a child is in need of protection . . . the court shall appoint a guardian ad litem for the child.”). But courts do not always order these appointments, because Clark County does not have enough guardian ad litem volunteers. See Nev. Rev. Stat. § 432B.500(2) (“No compensation may be allowed a person serving as a guardian ad litem pursuant to this section.”). Plaintiffs thus seek an injunction compelling the State and County defendants to “make it possible for state courts to appoint a guardian ad litem in every case.” The district court held that the guardian ad litem provision of CAPTA was not privately enforceable and that, in the alternative, abstention was warranted under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).

As best we can tell, no court has specifically addressed whether the guardian ad litem provision of CAPTA is enforceable through § 1983, and no federal appellate court has considered whether any provision of the current version of CAPTA is privately enforceable. As a matter of first impression, we conclude that the guardian ad litem provision does not create an individual right enforceable through § 1983.

Henry A., et al., v. Michael Willden, et al., No. 10-17680 (May 4, 2012).

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