43 F.3d 48 (3rd Cir. 1994), 94-1381, Baby Neal for and by Kanter v. Casey

Docket Nº:94-1381.
Citation:43 F.3d 48
Party Name:BABY NEAL, for and by his next friend, Nancy KANTER; Kareem and Kent H, for and by their next friend, John Peirce; William and Joseph H, for and by their next friend, Father, Roberto Maldonado; Marcella B, for and by her next friend, Frank Cervone; Sherry G, for and by her next friend, Joan Atlas; John, Jean, Jacob, and Jeffrey W, for and by their
Case Date:December 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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43 F.3d 48 (3rd Cir. 1994)

BABY NEAL, for and by his next friend, Nancy KANTER; Kareem

and Kent H, for and by their next friend, John Peirce;

William and Joseph H, for and by their next friend, Father,

Roberto Maldonado; Marcella B, for and by her next friend,

Frank Cervone; Sherry G, for and by her next friend,

Joan Atlas; John, Jean, Jacob, and Jeffrey W, for and by

their next friend, William Sweeney; Alicia P, for and by

her next friend, Sara Nerken; Manuel I, for and by his next

friend, Frank Cervone; Tamara and Carl I, for and by their

next friend, Frank Cervone; Jane L, for and by her next

friend, Anna Schmidt; Jamie B; Ivy V; Amelia V; Tara M;

Evan M; Ellie C; John B; Chuck L; Larry P; Sheris C;

Kyle S; Todd McL; Jay I; Max C; Plaintiffs-Intervenors,

v.

Robert P. CASEY, in his official capacity as Governor of

Commonwealth of Pennsylvania; Karen F. Snider,

[*] in her official capacity as Secretary of

the Department of Public Welfare for the Commonwealth of

Pennsylvania; W. Wilson Goode, in his official capacity as

Mayor of the City of Philadelphia; Joan M. Reeves, in her

official capacity as Commissioner of the Department of Human

Services of the City of Philadelphia; Maxine Tucker, in her

official capacity as Interim Deputy Commissioner of the

Children and Youth Division of the Philadelphia Department

of Human Services; Edward J. Blake, in his official

capacity as President Judge of the Philadelphia Court of

Common Pleas; Baby Neal, by and through his next friend,

Nancy Kanter; Marcella B, by and through her next friend,

Frank Cervone; Sherry G, by and through her next friend,

Joan Atlas; John, Jean, Jacob, and Jeffrey W, by and

through their next friend, William Sweeney; Alicia P, by

and through her next friend, Sara Nerken; Tamara, Carl, and

Manuel I, by and through their next friend, Frank Cervone;

Jane L, by and through her next friend, Anna Schmidt; Jamie

B, by and through his next friend, Claire Rosenstein; Ivy,

Amelia, and Jay V, by and through their next friend, Susan

Bergin; Tara M, by and through her next friend, Nancy

Kanter; Evan M and Ellie C, by and through their next

friend, Najma Davis; John B, by and through his next

friend, Anita Wirzberger; Chuck L, by and through his next

friend, Sara Nerken; Max C, by and through his next friend,

Nancy Kanter; Larry P, by and through his next friend,

Nancy Kanter; Sheris C, by and through his next friend,

William W. Norvell, III; Kyle S, by and through his next

friend, Sara Nerken; and Todd McL, by and through his next

friend, Nancy Kanter, Appellants.

No. 94-1381.

United States Court of Appeals, Third Circuit

December 15, 1994

Argued Sept. 22, 1994.

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Robin L. Dalhberg (argued), Marcia Robinson Lowry, A.C.L.U., Children's Rights Project, New York City, Lawrence J. Fox, Mary E. Kohart, E. Graham Robb, Paul H. Saint-Antoine, Drinker Biddle & Reath, Stefan Presser, A.C.L.U. of Pennsylvania, Philadelphia, PA, for appellants.

Dana B. Klinges (argued), Jerome J. Shestack, Michele K. Cabot, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, John A. Kane, Chief Counsel, Doris M. Leisch, Asst. Counsel, Dept. of Public Welfare, Harrisburg, PA, for appellees Robert P. Casey and Karen Snider.

Michael F. Eichert, Office of the City Solicitor, Philadelphia, PA, for appellees W. Wilson Goode, Joan M. Reeves, and Maxine Tucker.

A. Taylor Williams, Philadelphia, PA, for appellee Edward J. Blake.

Martha Matthews, San Francisco, CA, for amicus curiae National Center for Youth Law.

Robert G. Schwartz, Jacqueline L. Duby, Philadelphia, PA, for amici curae Juvenile Law Center Philadelphia Citizens for Children and Youth.

Before: BECKER, COWEN, and GARTH, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal from orders of the district court for the Eastern District of Pennsylvania requires that we decide whether the court abused its discretion in denying class certification pursuant to FED.R.CIV.P. 23(b)(2) to a putative class of children in the legal care and custody of Philadelphia's Department of Human Services ("DHS"), who sought declaratory and injunctive relief against the officials responsible for operation of the child welfare system. Plaintiffs allege that systemic deficiencies prevent DHS from providing a variety of child welfare services legally mandated by the United States Constitution and by federal and state law. The district court held that the plaintiffs could not meet the commonality and typicality requirements of Rule 23, essentially because each of the plaintiffs' claims arose out of individual (and tragic) circumstances and hence they could not claim a single common injury and be appropriately entitled to class relief pursuant to Rule 23(b)(2). We reverse.

I. FACTS AND PROCEDURAL HISTORY

This suit was brought on behalf of sixteen children who had been placed in DHS's care by orders of the Family Court Division of the Philadelphia County Court of Common Pleas ("the Court"). Defendants are the Governor of Pennsylvania, the Secretary of Pennsylvania's Department of Public Welfare ("DPW"), the Mayor of Philadelphia, the Commissioner and Deputy Commissioner of DHS, and the President Judge of the Court. The city defendants are responsible for the operation and administration of DHS. The Commonwealth defendants are responsible for ensuring that DHS provides legally mandated child welfare services to eligible children and families. The Judicial defendant is responsible for the allocation of judicial resources for the Family Court.

It is a matter of common knowledge (and it is not disputed here) that in recent years the system run by DHS and overseen by DPW has repeatedly failed to fulfill its mandates, and unfortunately has often jeopardized the welfare of the children in its care. Plagued by severe and widespread deficiencies in staff and revenues, the system has often demonstrated a lack of ability to provide abused and neglected children with the necessary welfare services.

The DHS acknowledged many of these deficiencies in its Three Year Plan 1991-1992. The Commonwealth defendants have also acknowledged these deficiencies: three times since April 1992, DPW denied a full operating license to the DHS. At those times, DPW announced that DHS had failed (1) to satisfy legal mandates for child protective services investigations; (2) to adhere to the caseload maximum of 30 cases per caseworker; (3) to assign to a substantial number of foster children a caseworker to monitor foster care placement and to ensure that the

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children received necessary and appropriate services; (4) to ensure that foster parents received the training necessary to permit them to care for foster children; and (5) to provide any child whose records were reviewed with an adequate case plan.

The original complaint, filed on April 4, 1990, sought both declaratory and injunctive relief, and alleged that systemic deficiencies prevent DHS from providing the following legally mandated child welfare services: protective service investigations as required by the United States Constitution, the Child Abuse Prevention and Treatment Act, 1 and state law 2; monitoring and supervision as required by the Constitution and state law 3; safe and secure foster care placements as required by the Constitution, the Adoption Assistance Act, 4 and state law 5; written case plans as required by the Constitution, the Adoption Assistance Act, 6 and state law 7; necessary medical, psychiatric, psychological, and educational services as required by the Constitution, and state law 8; the planning and steps required to return children to their families or to find them alternative permanent placements as required by the Constitution, the Adoption Assistance Act, 9 and state law 10; and periodic judicial reviews as required by the Constitution, the Adoption Assistance Act, 11 and state law 12.

In factual terms, plaintiffs allege that the system has the following deficiencies: an insufficient number of trained caseworkers; an insufficient number of medical, psychiatric, psychological, and educational service providers; an insufficient number of trained foster parents; an insufficient number of placements for children who need environments that are more structured than foster homes; an insufficient number of potential adoptive parents; and a host of policies and procedures that are inefficient and deficient as measured against the standards of national organizations incorporated under federal law. The complaint portrays the impact of these deficiencies through accounts of the lives and conditions of the named plaintiffs. The stories are quite pathetic.

Doctrinally, these allegations comprise four separate claims for declaratory and injunctive relief. The first cause of action involves the alleged violations of rights conferred by the Adoption Assistance and Child Welfare Act of 1980, including the right to reasonable efforts to keep the children in their home or to enable them to return home; the right to timely written case plans; the right to placement in foster homes that meet nationally recommended standards; the right to appropriate services; the right to placement in the least restrictive, most family-like setting; the right to proper care while in custody; the right to a plan and to services that will assure permanent placement; the right to dispositional hearings within eighteen months of entering custody and periodically thereafter; and the right...

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