A Barrier to Child Welfare Reform: the Supreme Court's Flexible Approach to Federal Rule of Civil Procedure 60(b)(5) and Granting Relief to States in Institutional Reform Litigation

• Publication year: 2013

Washington Law ReviewVolume 36, No. 3, SPRING 2013

NOTES

A Barrier to Child Welfare Reform: The Supreme Court's Flexible Approach to Federal Rule of Civil Procedure 60(b)(5) and Granting Relief to States in Institutional Reform Litigation

Rachel Dunnington(fn*)

I. INTRODUCTION

In 1998, thirteen foster care children in Washington State sued the state, the Department of Social and Health Services (DSHS), and the Secretary of DSHS.(fn1) The lead plaintiff, twelve-year old Jessica Braam, had been placed in thirty-four different foster homes by the time the lawsuit was filed.(fn2) Other plaintiffs included children who had been moved to numerous homes, placed in inappropriate and unsafe care, denied necessary mental health treatment, and separated from their siblings.(fn3) The class grew to include foster children who had experienced or who were at risk of experiencing three or more placements.(fn4)

These plaintiffs claimed that the State's practices violated the children's substantive due process rights to be free from unreasonable risk of harm. The Washington Supreme Court agreed with the plaintiffs,(fn5) and after mediation subsequent to that decision, the parties entered into a consent decree that is still in force today.(fn6) A consent decree is a court decree that all parties agree to.(fn7) The terms in a consent decree are binding on the parties and are fully enforceable by the court.(fn8) Through a consent decree, the parties in Braam created an oversight panel that was to be responsible for monitoring progress throughout the life of the decree.(fn9)

The Braam panel continuously monitored the decree, and on October 31, 2011, it was modified and extended by twenty-six months.(fn10) The modified decree recognizes that although the State of Washington, DSHS, and the Children's Administration have made significant progress, additional foster care system reform is needed and continued court oversight is the correct method to reform the foster care system.(fn11) The Braam settlement is an example of court oversight resulting from a consent decree entered into between plaintiffs-a large class of foster chil-dren-and a child welfare agency. Litigation and the agreement have spanned over a decade but have significantly and positively impacted the child welfare system in Washington State.(fn12)

As of June 2011, twenty-one child welfare consent decrees were in place, operating in sixteen different states.(fn13) An additional seven states were engaged in litigation likely to give rise to consent decrees.(fn14) Most decrees that have been active over the last two decades have addressed states' failures to properly train and license foster parents; place children in adequate and safe foster and group homes; properly report, investigate, and address abuse and neglect incidents; provide needed medical, dental, and mental health services to foster children; ensure adequate parent-child or sibling visitation; ensure social workers have manageable caseloads, training, and supervision; and provide children and families with adequate case planning and review.(fn15)

Between 1995 and 2005, eleven states successfully complied with the terms of consent decrees governing their respective child welfare agencies, and thus those decrees were dismissed.(fn16) Many of those states enacted legislation or policies as a result of the decrees, and some continue to have advisory groups monitor the child welfare agencies' activi-ties.(fn17) In other states, decrees have been modified because of partial compliance by the state or state agency.(fn18) Further still, some states made significant changes to their child welfare systems even though no settlement or consent decree was entered.(fn19) Increased awareness and accountability are collateral goals of institutional reform actions; in this regard, institutional reform litigation brought some deficiencies to the surface even when no consent decree was entered into. As shown by the large number of existing decrees that govern states and the outcomes they eventually obtain, class action lawsuits can effectuate large-scale systemic change for child welfare systems. Plaintiffs in these cases use the court system as an avenue for social change, asking the courts to bind states, state agencies, and local officials to commitments for positive change affecting the lives of children.

Yet, in a period of recession, state budget crises, and a conservative court system, consent decrees in child welfare systems are under attack. Most notably, the United States Supreme Court has diminished the effectiveness of consent decrees by placing concerns for states' rights above the statutory and constitutional violations that result in harm to children. In a recent decision, Horne v. Flores,(fn20) the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation's most vulnerable citizens.

This Note will discuss Horne's impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as it applies to final judgments, and specifically consent decrees. Additionally, Part II discusses the Supreme Court's application of Rule 60(b)(5) in Horne. Part III will critique the Court's decision for providing a more flexible standard that weighs federalism concerns above the merits of the case. Part IV discusses the importance of consent decrees in child welfare and proposes suggestions for their ongoing use to be effective. Finally, Part V provides a brief conclusion.

II. FEDERAL RULE OF CIVIL PROCEDURE 60(B)(5) AND HORNE V. FLORES

Due to the sanctity of final judgments, Rule 60 is unique because it allows for the modification or vacation of a final judgment. The rule is designed to remove the uncertainties and limitations of ancient remedies while preserving all of the various kinds of relief that those remedies afforded. This Note first discusses the plain language of the rule. This analysis is followed by an account of Rufo v. Inmates of Suffolk County Jail,(fn21) the leading case before Horne to dictate what standard is to be used when courts decide a Rule 60(b)(5) motion. Lastly, this Part discusses the majority's holding in Horne. As the current Supreme Court is growing increasingly hostile to the use of institutional reform litigation and continued court oversight, the Horne case has provided an additional avenue for defendants to get out from under a judgment.

A. Federal Rule of Civil Procedure 60(b)(5)

Rule 60(b)(5) attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done.(fn22) In general, Rule 60 regulates the procedures by which a party may obtain relief from a final judgment.(fn23) Specifically, Section (b)(5) provides that a court may relieve a party from a final judgment, order, or proceeding if the judgment has been satisfied; if it is based on an earlier judgment that has been reversed or vacated; or if applying it prospectively is no longer equitable.(fn24)

Additionally, the rule provides that a party may ask a court to vacate or modify a judgment or order if a “significant change either in factual conditions or in law” renders continued enforcement “detrimental to the public interest.”(fn25) The party seeking relief bears the burden of establishing that changed circumstances warrant relief.(fn26) Once the party carries that burden, a court abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.(fn27)

B. Rufo v. Inmates of Suffolk County Jail

Before Horne, the leading case involving the appropriate standard for reopening, modifying, or setting aside a judgment on the ground that “applying it prospectively is no longer equitable” was Rufo v. Inmates of Suffolk County Jail.(fn28) While Rufo established a flexible standard, the Court held that “it does not follow that a modification will be warranted in all circumstances . . . . [A party may obtain relief when it is no longer equitable,] not when it is no longer convenient to live with the terms of a consent decree.”(fn29) Furthermore, the Rufo court established that “[m]odification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous” or when “a decree proves to be unworkable because of unforeseen obstacles . . . or when enforcement of the decree without modification would be detrimental to the public interest.”(fn30)

Once a moving party has met its burden of establishing a change in fact or law warranting modification of a consent decree, the analysis shifts, and the “district court should determine whether the proposed modification is suitably tailored to the changed circumstance.”(fn31) Regarding this step of the analysis, the Rufo Court warns that a modification must not create nor perpetuate a constitutional violation.(fn32) Additionally, a consent decree is a final judgment that may be reopened only to the extent that equity requires; therefore, a proposed modification should not rewrite a consent decree...