Foster Kids Certified|to Sue Texas as Class

     CORPUS CHRISTI, Texas (CN) – A federal judge certified a class of children who say the Texas foster care system violates their right to safety while in state custody.
     In a 2011 class action, the representatives for nine minors in the Texas long-term foster care system, known as the Permanent Managing Conservatorship, sought injunctive relief for the harm allegedly suffered by children in the state’s custody.
     Children often move around, end up in substandard placements far from siblings and other family members, experience further abuse and neglect, and “languish” in the system, according to the complaint.
     Current defendants include Gov. Rick Perry; the executive commissioner of the Health and Human Services Commission, Kyle Janek; and the commissioner of Texas’ Department of Family and Protective Services, John Specia Jr.
     Though U.S. District Judge Janis Graham Jack certified a class in the year of the suit, the 5th Circuit soon vacated that order in light of the Supreme Court’s holding in Wal-Mart v. Dukes.
     On remand Tuesday, Jack certified a general class and three subclasses alleging violation of substantive due process rights under the 14th Amendment to adequate care and a safe, secure, and suitable placement while in state custody.
     State officials had resisted the assertion that foster children could sue without suffering actual harm.
     The 107-page order draws on examples from the prison system in which prisoners were able to challenge fire safety hazards in the absence of a fire occurring.
     “Defendants argue that the harm plaintiffs base their claim on is too attenuated to give rise to a cause of action,” Jack wrote. “Defendants’ argument misconstrues the contours of the Fourteenth Amendment right possessed by an individual in the state’s custody. The right itself is to be free from the unreasonable risk of harm. That risk need not be realized in order for a claim to be actionable – a plaintiff must rather show that the policy in question creates a risk that rises to the level of an unreasonable risk of harm. Whether or not plaintiffs here can succeed in showing this is a question for the merits.”
     The order describes existing evidence of heavy caseloads, understaffing and high turnover of employees in the Department of Family and Protective Services.
     “To prevail on the merits with this claim, plaintiffs will have to prove a causal connection between the state’s caseworker workload and an unconstitutional risk of harm,” the order states. “At class certification, though, they do not need to prove that they are entitled to relief based on their claims; they need only make out a claim on behalf of the class. They have done so here. The court finds the relationship between caseworkers’ workloads and class members’ safety persuasive. Caseworkers are, in effect, these children’s fire alarms.”
     Judge Jack refused, however, to certify a fourth subclass on the safety count, since the plaintiffs lack an eligible child to serve as a class representative.
     She also declined to certify a subclass alleging a violation of the First, Ninth and 14th Amendment rights to family integrity.
     The ruling acknowledges that over time foster children require different services or come and go in the system. She granted the motion for leave to file a fourth-amended complaint that will name two new plaintiffs as potential class representatives.

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