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Baby Neal for and by Kanter v. Casey

filed: December 15, 1994; As Corrected December 19, 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*FN*



On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. No. 90-cv-02343).

Before: Becker, Cowen, and Garth, Circuit Judges.

Author: Becker

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 declatory 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 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,*fn1 and state law*fn2 ; monitoring and supervision as required by the Constitution and state law*fn3 ; safe and secure foster care placements as required by the Constitution, the Adoption Assistance Act,*fn4 and state law*fn5 ; written case plans as required by the Constitution, the Adoption Assistance Act,*fn6 and state law*fn7 ; necessary medical, psychiatric, psychological, and educational services as required by the Constitution, and state law*fn8 ; 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,*fn9 and state law*fn10 ; and periodic judicial reviews as required by the Constitution, the Adoption Assistance Act,*fn11 and state law*fn12 .

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 to receive services in a child welfare system with an adequate information system.

The second cause of action lies in alleged violations of the First, Ninth and Fourteenth Amendments to the United States Constitution. Specifically, plaintiffs claim that these amendments confer the right not to be deprived of a family relationship; the right not to be harmed while in state custody; the right to placement in the least restrictive, most appropriate placement; the right to medical and psychiatric treatment; the right to care consistent with competent professional judgment; and the right not to be deprived of liberty or property interests without due process of law.

The third cause of action alleges violations of rights conferred on the plaintiffs by the Child Abuse Prevention and Treatment Act, including the right to a prompt and appropriate investigation of reports of abuse or neglect; the right to protection from those who endanger their health and welfare; and the right to procedures, personnel, programs, and facilities that are necessary to deal effectively with child abuse and neglect. As with the first cause of action, defendants argue that this Act does not create any private rights of action.

The fourth cause of action provides an alternative basis in state law for some of the claims alleged under the three federal causes of action. These claims include the right to protection from abuse; the right to preventive rehabilitative services; the right to appropriate and timely case records and plans; the right to have every effort made to enable the children to remain in their homes or be returned to their homes; the right to appropriate services to assure proper permanent placement; and the right to adoption services.

Simultaneously with the filing of the complaint, the plaintiffs sought certification of a class consisting of "all children in Philadelphia who have been abused or neglected and are or should be known to the Philadelphia Department of Human Services." The Commonwealth defendants moved to dismiss the complaint on the grounds that the plaintiffs had no valid claim for relief under any of the relevant federal laws. The district court denied the defendants' motion, but it stayed the class certification motion during its consideration of this motion to dismiss. In response to defendants' asserted inability to complete the discovery necessary to oppose the certification, the district court stayed resolution of the class certification motion three additional times. During this period, the plaintiffs attempted to commence system-wide discovery. They now allege that the defendants never produced "much of the requested discovery."

The district court denied the class certification motion in an order dated January 6, 1992, based on the finding that the putative class had failed to satisfy the commonality and typicality requirements of Rule 23(a) and had also failed to satisfy Rule 23(b).*fn13 The court based these determinations on its view that each of the plaintiffs had his or her own individual circumstances and needs, and that the class thus could not complain about a single, common injury. The plaintiffs moved for reconsideration or, in the alternative, for certification of subclasses. While this motion was pending, fourteen children intervened as plaintiffs, seeking relief for themselves and proffering a demonstration that children in DHS's custody and care continued to be harmed by DHS's failure to provide legally mandated child welfare services. The court subsequently denied the motion for reconsideration and for certification of subclasses.

The defendants then moved for summary judgment, repeating the argument made in the motion to dismiss that the plaintiffs had no private rights of action under the federal laws alleged, and arguing that the plaintiffs' claims had become moot. On August 24, 1992, the plaintiffs again moved for certification of subclasses. The district court stayed consideration of that motion pending the resolution of the summary judgment motion. In an order dated April 12, 1993, the court partially granted the defendants' motion for summary judgment, rejecting the plaintiffs' claims as to the existence of the private rights of action under the Child Abuse Prevention and Treatment Act and the Adoption Assistance and Child Welfare Act. The court denied the defendants' motion insofar as it asserted the mootness of all but twenty-three of the twenty-six plaintiffs' claims.

On May 10, 1993, the plaintiffs renewed their motion for subclass certification. On October 13, 1993, in an order denying certification the court held that the subclasses were not properly defined. The plaintiffs then moved for reconsideration, proposing new subclass definitions intended to address the court's concerns. The court denied this motion without comment, forbade plaintiffs from making any other class certification motions, and scheduled the case for trial.

By this time, nearly four years after the commencement of the litigation, almost all of the individual service needs of the plaintiff children had been met or otherwise resolved. The parties then settled the plaintiffs' remaining claims based on individual service needs and entered into a stipulation of entry of judgment, preserving the plaintiffs' right to appeal the denial of class certification and the grant of partial summary judgment as to the existence of private rights of action under the federal statutes. This appeal followed.*fn14

II. THE LEGAL REQUISITES FOR CLASS CERTIFICATION

A. Introduction

To obtain class action certification, plaintiffs must establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). Rule 23(a) provides that

one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) ...


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