M.D. ex rel. Stukenberg v. Perry

• Citation: 675 F.3d 832,82 Fed.R.Serv.3d 219
• Decision Date: 23 March 2012
• Docket Number: No. 11–40789.,11–40789.
• Parties: M.D., by next friend Sarah R. STUKENBERG; D.I., by next friend Nancy G. Pofahl; Z.H., by next friend Carla B. Morrison; S.A., by next friend Javier Solis; A.M., by next friend Jennifer Talley; J.S., by next friend Anna J. Ricker; K.E., by next friend John W. Cliff, Jr.; D.P., by next friend Karen J. Langsley; T.C., by next friend Paul Swacina, Plaintiffs–Appellees, v. Rick PERRY, in his official capacity as Governor of the State of Texas; Thomas Suehs, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; Howard Baldwin, in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

675 F.3d 832

82 Fed.R.Serv.3d 219

M.D., by next friend Sarah R. STUKENBERG; D.I., by next friend Nancy G. Pofahl; Z.H., by next friend Carla B. Morrison; S.A., by next friend Javier Solis; A.M., by next friend Jennifer Talley; J.S., by next friend Anna J. Ricker; K.E., by next friend John W. Cliff, Jr.; D.P., by next friend Karen J. Langsley; T.C., by next friend Paul Swacina, Plaintiffs–Appellees,

v.Rick PERRY, in his official capacity as Governor of the State of Texas; Thomas Suehs, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; Howard Baldwin, in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants–Appellants.

No. 11–40789.

United States Court of Appeals, Fifth Circuit.

March 23, 2012.

Richard Paul Yetter, Dori Kornfeld Goldman, Yetter Coleman, L.L.P., Houston, TX, Richard Thaddeus Behrens, Amelia Jean Cardenas, David Allen Dodds, Barry Frank McNeil, Haynes & Boone, L.L.P., Dallas, TX, Hector Antonio Canales, Canales & Simonson, P.C., Corpus Christi, TX, Edward Caldwell Dawson, April L. Farris, Yetter Coleman, L.L.P., Austin, TX, Stephen Andrew Dixon, Marcia Robinson Lowry (argued), Jessica Polansky, Children's Rights, Inc., New York City, for Plaintiffs–Appellees.

Sean Daniel Jordan, Deputy Sol. Gen. (argued), Joseph David Hughes, James Patrick Sullivan, Asst. Sol. Generals, James Byron Eccles, Deputy Asst. Atty. Gen., James Carlton Todd, Asst. Atty. Gen., Shelley Nieto Dahlberg, Office of the Atty. Gen., Gen. Lit. Div., Austin, TX, for Defendants–Appellants.

Robert L. Quinan, Office of the Atty. Gen. for the state of Mass., Boston, MA, for the States of Alaska, Arizona, Colorado, Hawaii, Idaho, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, Nevada, Rhode Island, Utah and Washington, Amici Curiae.Kurt Howard Kuhn, Kurt Kuhn, P.L.L.C., Austin, TX, for National Assoc. of Counsel for Children, Lucy S. McGough, Cheryl Prestenbach Buchart, Jacqueline A. Nash, Ramona Fernandez, Barbara Stalder, Lonny Hoffman, Ellen Marrus, and David Calder, Amici Curiae.Appeal from the United States District Court for the Southern District of Texas.

Before GARZA, CLEMENT and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiffs–Appellees, nine children (“Named Plaintiffs”) in the custody of Texas's Permanent Managing Conservatorship (“PMC”), acting through their next friends, filed suit under 42 U.S.C. § 1983 against three Texas officials, in their official capacities, seeking to represent a class of all children who are now and all those who will be in the State's PMC, i.e., long-term foster care. The Named Plaintiffs sought declaratory and injunctive relief to redress alleged class-wide injuries caused by systemic deficiencies in Texas's administration of the PMC. The district court granted class certification. We VACATE the district court's class certification order for failure to comply with Federal Rule of Civil Procedure 23 and REMAND for further proceedings consistent with this opinion.

I

A

The Named Plaintiffs filed suit against (1) Governor Rick Perry, in his official capacity, (2) Thomas Suehs, in his official capacity as Executive Commissioner of the Texas Health and Human Services Commission, and (3) Thomas Baldwin, in his official capacity as Commissioner of the Texas Department of Family and Protective Services (“DFPS”) (collectively, “Texas”). The complaint asserts claims for relief under 42 U.S.C. § 1983, alleging that Texas has violated the constitutional rights of each of the approximately 12,000 children in its PMC due to various “systemic failures” in the “unitary system” that administers the State's PMC.

The gravamen of the Named Plaintiffs' complaint is that various system-wide problems in Texas's administration of its PMC—such as a failure “to maintain a caseworker staff of sufficient size and capacity to perform the tasks critical to [the] safety, permanency, and well-being” of the purported class members—subject all of the children in the PMC to a variety of harms. Based on these allegations, the Named Plaintiffs claim that the “actions and inactions of [Texas]” violated the purported class members' (1) substantive due process rights to be free from harm while in state custody under the Fourteenth Amendment, (2) liberty interests, privacy interests, and associational rights not to be deprived of a child-sibling or child-parent family relationship where safe and appropriate, under the First, Ninth, and Fourteenth Amendments, and (3) procedural due process rights under the Fourteenth Amendment by depriving them of alleged state law entitlements, relating to monitoring by DFPS of contracted substitute care, Tex. Fam.Code § 264.106(b); Tex. Hum. Res.Code § 45.002(c), and the right to have placement decisions be made using “clinical protocols to match a child to the most appropriate placement resource.” Tex. Fam.Code § 264.107(e). The Named Plaintiffs request broad, classwide declaratory and injunctive relief against Texas to redress the harms caused by the State's alleged systemic failures to properly manage the PMC.

Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), the Named Plaintiffs moved the district court to certify a class of “all children who are now and all those who will be in the [PMC] of Texas's [DFPS].” Texas opposed class certification, contending that the proposed class did not meet the requirements of Rule 23. The district court granted the Named Plaintiffs' motion for class certification. This court subsequently granted Texas's petition for permission to appeal. See Fed.R.Civ.P. 23(f).

“We review the district court's decision to certify a class for an abuse of discretion.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir.2003) (citing McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 (5th Cir.2003)). “Implicit in this deferential standard is a recognition of the essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation.” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 523 (5th Cir.2007) (quoting In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir.2004)). However, the district court must exercise its “broad discretion” over whether to certify a class “within the framework of Rule 23.” McManus, 320 F.3d at 548 (citation omitted). “We review de novo whether the district court applied the correct legal standards.” Maldonado, 493 F.3d at 523 (citation omitted).

B

Texas administers its foster care system through the combined efforts of state agency officials and state courts. After investigating a report that a child has been abused or neglected, DFPS can seek to remove a child from his parents and/or establish Temporary Managing Conservatorship (“TMC”) over the child, usually by court order in a suit affecting the parent-child relationship (“SAPCR”). Tex. Fam.Code § 262.201. If the court orders that DFPS retain TMC over a child, Texas Family Code § 263.401(a) generally requires that the SAPCR must be dismissed within one year of the court's order placing the child in the State's TMC, “[u]nless the court has rendered a final order or granted an extension.” While a child remains in the State's TMC, DFPS is required to file a service plan and a permanency plan with the court (1) describing the steps needed to provide a permanent safe placement for the child and (2) reporting progress toward that end. Id. §§ 263.101–.102; id. §§ 263.3025–.303. Before the statutory deadline for dismissing a SAPCR, the court must hold a final hearing where it may terminate parental rights, place the child in DFPS's PMC, grant a relative PMC without terminating parental rights, or return the child to the parents. Id. §§ 161.001, 263.404.

After a child enters DFPS's PMC, the agency and state courts continue to jointly administer and monitor the state's conservatorship over the child. DFPS is charged with providing the child with substitute care, including residential care and supportive and therapeutic services. 40 Tex. Admin. Code §§ 700.1301–.1302. State law also directs DFPS to engage in permanency planning for children in its PMC in order to meet the child's safety, permanency, and well-being needs . Id. § 700.1201; Tex. Gov't Code §§ 531.151–.152. While the child remains in DFPS's PMC, state courts must hold periodic placement review hearings to consider, inter alia, whether the child's current placement is necessary, safe, and appropriate, whether DFPS has been diligent in attempting to place the child for adoption if eligible, whether efforts have been made to place the child in the least restrictive environment if the child has been placed in institutional care, and, whether DFPS has made reasonable efforts to finalize the effective permanency plan for the child. Tex. Fam.Code §§ 263.502–.503.¹

The Named Plaintiffs have all been placed in Texas's PMC and seek certification of a class of all children who are or will be in the State's PMC.

II

A

“To obtain class certification, parties must satisfy Rule 23(a)'s four threshold requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado, 493 F.3d at 523 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Named Plaintiffs, as the parties seeking certification, bear the burden of proof to establish that the proposed class satisfies the requirements of Rule 23. McManus, 320 F.3d at 548 (citation omitted); see Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).

The...