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Texas Foster Care Class Action Stumped by the 5th Circuit

On Friday, class action status was denied to a suit concerning 12, 000 children brought over the quality of the foster care program in the state. The New Orleans based 5th Circuit ruled that the children did not have enough in common to allow grouping their complaints in a class action against the state.

According to the 5th Circuit court the children in foster care homes should continue their legal actions individually and not by joining together their causes of actions. In passing their decision on the issue the 5th Circuit cited the landmark sex-discrimination ruling of Wal-Mart v. Dukes arguing that the nature of relationship of a company like Wal-Mart to their employees could be superimposed on the nature of relationships between foster care homes and children in their custody.

Judge Emilio Garza wrote, “The proposed class’s proffered common issues stretch the notions of commonality by attempting to aggregate several amorphous claims of systemic or widespread conduct into one super claim.”

The suit, originally filed in 2011, on behalf of nine individuals by the national child advocacy group Children’s Rights, sought to represent an entire class of children languishing in long-term foster care in Texas. The suit claimed the state of Texas was harming the children by separating siblings and continually moving them from one home to another without allowing them to gain the semblance of stability.

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In the district court, Judge Janis Jack found that the case merited the status of class action as the alleged shortcomings of the system served as glue that held the claims of the children together. The suit’s specific claim of a severe shortage of experienced caseworkers, lack of foster homes, and systemic inadequacy of safety monitoring of the children was found to hold merit by the lower court.

The 5th Circuit in its wisdom found that while such systemic failures may have had merit before the ruling of Wal-Mart v. Dukes, 2011, the bar for admitting class-action was now higher and the children could go to …. pursuing separate suits in smaller groups, or individually, before appropriate forums.

The 5th Circuit mentioned in its ruling that “commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” The panel concluded that the suit was weak in that it sought 12 different injunctions pertaining to children in different circumstances, thereby proving that there was no uniformity in the injuries delivered to the children by the State.

However, while sending back the case to the district court the 5th Circuit noted that the issues can be broken and brought up by dividing the plaintiffs into smaller sub-classes and multiple suits.

Marcia Lowry, the executive director of Children’s Rights told the media that though they were not happy with the ruling, “however, the circuit has laid out a clear blueprint for how we should proceed, and we plan to proceed that way.”

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