On July 8, 2015, a group of ten children in the foster care system and the Public Advocate of New York filed this class action lawsuit in the U.S. District Court for the Southern District of New York. Represented by nonprofit advocacy organization A Better Childhood; private law firm Cravath, Swane & Moore; and the office of the New York Public Advocate, the plaintiffs brought this action against New York City, the New York City Administration for Childrens Services (ACS), New York State, and the New York State Office of Children and Family Services (OCFS), under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2002.
The plaintiffs alleged violations of the First, Ninth and Fourteenth Amendments to the U.S. Constitution, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq., common law contractual claims, and state social services laws on timely and adequate provision of adoption and foster case management services. Specifically, the complaint alleged that the defendants caused irreparable harm to the plaintiffs by their failure to protect the children in ACS custody from maltreatment, to provide the children with permanent homes and families within a reasonable time, and to provide foster placements and services that ensure the well-being of the children. The complaint also alleged that the defendants failed to remedy the systemic deficiencies plaguing NYC’s child welfare system by the city defendants’ failure to exercise adequate and meaningful oversight over contract agencies; the defendants’ failure to ensure an adequately staffed and appropriately trained child welfare workforce, to address deficiency in the processes to make improvements foster placements in NYC, to ensure meaningful case plans and service plans for foster children are developed and implemented, and to ensure timely adjudication of family court proceedings.
The plaintiffs also moved for class certification along with the complaint. The case proceeded with discovery under U.S. Magistrate Judge Henry B. Pitman.
On October 20, 2015, the state defendants filed a proposed settlement agreement with the court, requiring a more rigorous monitoring of the city foster care system. The proposed settlement required OFCS to hire a monitor and a research expert to review and assess the operations of NYC Foster Care system including the placement process, the cause of maltreatment of children, the availability and appropriateness of services, and the recruitment of an appropriate and sufficient array of placements for children in the foster care system.
The monitor would submit quarterly reports to the OCFS who, with ACS, would determine actions necessary to address any findings. The research expert would conduct annual reviews of case record samples of children in the custody of ACS to determine compliance with state and federal laws. If the expert found substantial non-compliance, the expert would write a written individual case report which will be shared with ACS and OCFS who would then be required to work with the voluntary agency in breach of the law to conduct a corrective action. For any corrective action plans, ACS would report to OCFS on a quarterly basis on the status and follow-up measures.
The settlement was not approved for several months due to procedural complications, including the required fairness hearing. Both the city defendants and various organizations that represent foster children in the family court objected to the settlement, although neither were parties to the action. The city attempted unsuccessfully to have the court stay all proceedings in the case, including the approval of the settlement agreement with the state.
On April 22, 2016, U.S. District Judge Laura Taylor Swain entered an order to preliminarily approve the consent decree subject to the rights of individual class members to challenge the settlement agreement and to show why a final judgment dismissing this case against State Defendants should not be entered following a fairness hearing. In the same opinion, the court conditionally certified the class for purposes of providing notice, but the formal class certification is pending.
On July 12, 2016, the court granted Parent Advocates and Children's Advocates motion to intervene.
On August 12, 2016, the magistrate judge denied the plaintiffs' motion for final approval of the settlement and vacated the conditional certification of the class. First, the judge held that the settlement lacked procedural fairness, because the settlement was drafted a week after the complaint was filed in the absence of any meaningful discovery into the merits of the claims. Second, the court held that the settlement would not save much expense of the litigation, because even if the settlement with the State defendants was approved, the plaintiffs had to continue the litigation with the City defendants. Third, the court heavily weighed on the intervenors' concerns that the consent decree had inadequate provisions. The intervenors expressed their concerns about the consent decree that the roles and objectives of the Research Expert and Monitor were vague, remedies did not address the alleged civil rights violations, and the seven-year covenant not to sue is unprecedented in its duration. Lastly, the judge held that the corrective actions defined in the Consent Decree were not specific enough and therefore the plaintiffs would be able to gain more robust remedies if they were to prevail at trial.
On September 12, 2016, the district court granted the city defendants' motion to dismiss plaintiffs' AACWA claims premised on 42 U.S.C. §§ 671(a)(10) and 671(a)(22), statutes regulating the state plan for foster care and adoption assistance. In the same opinion and order, the judge dismissed claims asserted against ACS and Commissioner Carrion, without prejudice to the litigation of those claims as against the Defendant City.
On September 27, 2016, the district court denied class certification without prejudice to renewal. The judge held that here, the request for class certification failed to meet commonality, typicality, and adequate representation. Namely, the court held that the consistency of plaintiffs’ broad assertions in the amended complaint were questionable in that problems (such as mental health issues, undue length of time in foster care, and lack of successful resolution of obstacles to family reunification) are attributable to faulty management and oversight of the foster care system. Therefore, the court held that certification of a broad unitary class of children who are or will be in foster care was not appropriate.
The case is still ongoing. Soojin Cha - 10/17/2016