Griffith v. Johnston

• Decision Date: 04 May 1990
• Docket Number: No. 88-7008,88-7008
• Citation: 899 F.2d 1427
• Parties: Susan and Reggie GRIFFITH, et al., Plaintiffs-Appellants, v. Marlin JOHNSTON, Individually and as Commissioner of the Texas Department of Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1427

899 F.2d 1427

16 Fed.R.Serv.3d 844

Susan and Reggie GRIFFITH, et al., Plaintiffs-Appellants, v. Marlin JOHNSTON, Individually and as Commissioner of the Texas Department of Human Services, Defendant-Appellee.

No. 88-7008.

United States Court of Appeals Fifth Circuit.

May 4, 1990.

Rehearing and Rehearing En Banc Denied May 30, 1990.

Neil H. Cogan, Storey Hall, Dallas, Tex., for plaintiffs-appellants.

Edwin N. Horne, Asst. Atty. Gen. and Jim Mattox, Atty. Gen., Austin, Tex., for defendant-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before GEE, JONES and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Eighteen adopted children and their twelve adoptive parents filed this civil rights action against the Texas Department of Human Services ("TDHS"), alleging that Texas' administration of its adoption program for "Hard-to-Place" children violated their constitutional rights to Due Process and Equal Protection. These complainants also raised several claims under the Adoption Assistance Act, 42 U.S.C. Sec. 673. Concluding that the litigants failed to state a claim upon which relief could be granted, the district court dismissed the constitutional allegations without prejudice, retained the statutory claims for further proceedings, and entered final judgment pursuant to Fed.Rule Civ.Pro. 54(b). The Griffiths appealed. Finding that appellants did not allege a constitutionally sufficient liberty or property interest abridged by the TDHS, we affirm.

I. NOTICE OF APPEAL

Before discussing the merits of this appeal, we must determine whether we have jurisdiction over these allegations. Although none of the parties have questioned our jurisdiction, it is the duty of this court to determine, sua sponte whether it has jurisdiction over any case before it. Bender v. Williamsport Area School District, 475 U.S. 534, 541-42, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986); Spiess v. C. Itoh & Co. (America), Inc., 725 F.2d 970, 971 (5th Cir.), cert. denied 469 U.S. 829, 105 S.Ct. 115, 83 L.Ed.2d 58 (1984); Matter of Kutner, 656 F.2d 1107, 1110 (5th Cir.1981) cert. denied 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982).

Both the appellants and the appellees treat this action as an appeal on behalf of all plaintiffs from the district court dismissal. However, the appellants styled their notice of appeal "Susan and Reggie Griffith, et al.", omitting the names of the other plaintiffs from the filing. The Supreme Court has held that the use of the phrase "et al." fails to provide the required notice of appeal to the opposing parties or to the court, since this designation does not identify all appealing parties. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Pope v. Mississippi Real Estate Commission, 872 F.2d 127, 129 (5th Cir.1989). Fed.Rule App.Pro. 3(c).

When interpreting the Torres decision, the Fifth Circuit has recognized four situations where the "et al." designation will suffice for purposes of this notice requirement. If only two parties filed suit in the district court, the "et al." designation clearly refers to the unnamed party. Pope, 872 F.2d at 129. Similarly, where the notice of appeal lists only the named plaintiff in a class action, the "et al." designation adequately identifies the remaining members of the class. Rendon v. AT & T Technologies, 883 F.2d 388, 398 n. 8 (5th Cir.1989). If parents sue on their own behalf and on behalf of their children, the "et al." designation preserves the children's appeal, since the opposing party could anticipate that the parents would appeal in both their individual and representative capacities. King v. Otasco, Inc., 861 F.2d 438, 443 (5th Cir.1988). Finally, where the notice of appeal defectively employs the "et al." designation, but where, within the 30 day deadline, plaintiffs file a "Memorandum in Support of Appellants' Motion for Injunction Pending Appeal" listing all plaintiffs to the original action, plaintiffs will have cured the original defect preserving all parties' rights to appeal. Brotherhood of Railway Carmen v. Atchison, Topeka & Santa Fe Railway Co., 894 F.2d 1463, 1465 (5th Cir.1990).

These exceptions do not assist the plaintiffs. Since more than one plaintiff besides the Griffith family filed suit in the district court, "et al." does not clearly designate only one remaining appellant. The district court never certified this case as a class action, and never appointed the Griffiths as the class representatives. See Torres, 108 S.Ct. at 2409; Rendon, 883 F.2d at 398 n. 8; King, 861 F.2d at 443. Plaintiffs never cured their defective notice of appeal within the 30 day deadline by filing a document listing all appealing plaintiffs. Under King, the "et al." designation does preserve the rights of the five Griffith children to appeal because their parents sued in both an individual and a representative capacity. However, as to all plaintiffs besides Susan and Reggie Griffith and their children, plaintiffs filed a defective notice of appeal.

Compliance with this notice requirement is a jurisdictional prerequisite. Torres, 108 S.Ct. at 2409; Barnett v. Petro-Tex Chemical Corp., 893 F.2d 800, 805 (5th Cir.1990); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988). An appellate court lacks jurisdiction over an intended appeal by parties other than those named in the notice. Barnett, 893 F.2d at 805. Consequently, we have no jurisdiction to address the merits of any claim besides those raised by the Griffiths on their own behalf and on behalf of their five children.

II. TEXAS' ADOPTION PROGRAM

In order to adequately scrutinize the Griffiths' allegations, it is important to understand Texas' statutory framework regulating the supervision and placement of children.

Appellee Marlin Johnston is the Commissioner of the Texas Department of Human Services (TDHS), a state-created agency designed to implement Texas' human welfare programs. Tex.Hum.Res.Code Ann. Secs. 21.004, 22.001 (Vernon 1980 & Supp.1990). Commissioner Johnston exercises all rights, powers, and duties conferred by law on the department, unless the legislature delegates the duty to the Texas Board of Human Resources. Tex.Hum.Res.Code Ann. Sec. 21.004(a) (Vernon Supp.1990). The Board appoints the commissioner, and Among the many duties carried out by TDHS, the department "promote[s] the enforcement of all laws for the protection of dependent, neglected, and delinquent children and children who have no presumed father." Tex.Hum.Res.Code Ann. Sec. 41.001 (Vernon Supp.1990). This mandate authorizes TDHS to bring a suit in state court to terminate the natural parent-child relationship, and to have the state appointed as managing conservator for the child. 2 Tex.Fam.Code Ann. Secs. 11.01 et seq., 15.02, 15.05(b), 14.01(a), (c) (Vernon 1986 & Supp.1990).

adopts policies and rules to govern the department's activities. Tex.Hum.Res.Code Ann. Secs. 21.003(a), 21.004(b) (Vernon Supp.1990).

Where a court has appointed Texas as managing conservator, the state must provide the child with "clothing, food, shelter and education," as well as "care, control, protection, moral and religious training, and reasonable discipline." 2 Tex.Fam.Code Ann. Sec. 14.02(b) (Vernon 1986 & Supp.1990). The statute also empowers the state to consent to "medical, psychiatric, and surgical treatment" on behalf of the child. 2 Tex.Fam.Code Ann. Sec. 14.02(b)(5) (Vernon 1986 & Supp.1990). The state may employ and fund foster care as a temporary means to effectuate these statutory obligations. Tex.Hum.Res.Code Ann. Sec. 41.021 (Vernon 1980 & Supp.1990); 2 Tex.Fam.Code Ann. Secs. 18.01 et seq. (Vernon 1986 & Supp.1990).

Texas may also consent to the adoption of these children, after determining that the adoptive home fulfills the child's particular needs. 2 Tex.Fam.Code Ann. Sec. 14.02(b)(8) (Vernon 1986 & Supp.1990); 4-81 Texas Department of Human Resources, Minimal Standards For Child Placing Agencies Sec. 5300. Besides its traditional adoption programs, Texas administers a system "designed to promote the adoption of hard-to-place children." Tex.Hum.Res.Code Ann. Sec. 47.002 (Vernon 1980). This program provides hard-to-place children who reside in foster homes at state or county expense with stable and secure permanent homes, while potentially reducing the costs paid by the state for foster care. Tex.Hum.Res.Code Ann. Sec. 47.002 (Vernon 1980).

Hard-to-place children include those who are three years old or older, those who are difficult to place because of "age, race, color, ethnic background, language, or physical, mental, or emotional handicap," or those who are members of a sibling group that should be placed in the same home. Tex.Hum.Res.Code Ann. Sec. 47.001 (Vernon Supp.1990). To encourage adoption of these children, Texas informs prospective adoptive parents about their availability, assists the adoptive parents with the adoption process, and provides financial support to parents including medical fees, and maintenance fees up to the cost of foster care. Adoptive parents might also qualify for adoption assistance under the Federal Adoption Assistance Act. 42 U.S.C. Sec. 673(c).

Before placing a child for adoption under any program, TDHS must compile a report concerning the "health, social, educational and genetic history of the child to be adopted," as well as "any history of physical, sexual or emotional abuse." 2 Tex.Fam.Code Ann. Secs. 16.032(a)-(e) (Vernon Supp.1990). The prospective adoptive parents and the court reviewing the adoption must receive a copy of this report "edited to protect the identity of the birth parents and their families." The state must also inform the parents of their right to examine all records and other information related to the history of the child. 2 Tex.Fam.Code Ann. Secs. 16.032(a)-(e), (n), 16.09, 34.08 (Vernon Supp.1990). Any parents who adopted children before the effective...