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M.D. EX REL. STUKENBERG v. PERRY

No. 11-40789.

675 F.3d 832 (2012)

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.

United States Court of Appeals, Fifth Circuit.

March 23, 2012.

Attorney(s) appearing for the Case

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.

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...

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