University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Elisa W. v. City of New York CW-NY-0009
Docket / Court 1:15-cv-05273 ( S.D.N.Y. )
State/Territory New York
Case Type(s) Child Welfare
Case Summary
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 ... read more >
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 Children 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 2202. The case was assigned to Judge Laura Taylor Swain.

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 (AACWA), 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, Judge Swain denied class certification without prejudice to renewal. She held that here, the request for class certification failed to meet commonality, typicality, and adequate representation. Namely, Judge Swain 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, she held that certification of a broad unitary class of children who are or will be in foster care was not appropriate.

On November 16, 2016, the defendants filed a motion for partial summary judgment, arguing that the case was moot as to six of the nineteen plaintiffs who had since left foster care since those six plaintiffs no longer had a basis to assert claims for equitable relief. On January 25, 2017, the plaintiffs voluntarily dismissed the State of New York and the New York State OCFS from the case.

As of May 7, 2019, the case is still ongoing; the parties are currently engaged in discovery.

Soojin Cha - 10/17/2016
Lisa Limb - 05/07/2019

compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Benefit Source
Adoption Assistance and Child Welfare Act
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Foster care (benefits, training)
Plaintiff Type
Private Plaintiff
Causes of Action Adoption Assistance Program, 42 U.S.C. § 670 et seq.
Defendant(s) New York City Administration for Children's Services
State of New York
The City of New York
Plaintiff Description Plaintiffs are ten children abused and neglected in the New York City's foster care system.
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief Unknown
Source of Relief None yet
Filed 07/08/2015
Case Ongoing Yes
Additional Resources
click to show/hide detail
  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

1:15-cv-5273 (S.D.N.Y.)
CW-NY-0009-9000.pdf | Detail
Date: 03/05/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Fact Sheet: Elisa W. v. City of New York
CW-NY-0009-0002.pdf | Detail
Class Action Complaint for Injunctive and Declaratory Relief [ECF# 1]
CW-NY-0009-0001.pdf | Detail
Date: 07/08/2015
Source: PACER [Public Access to Court Electronic Records]
[Proposed] Consent Decree [ECF# 50]
CW-NY-0009-0003.pdf | Detail
Date: 10/20/2015
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint [ECF# 91]
CW-NY-0009-0004.pdf | Detail
Date: 12/29/2015
Source: PACER [Public Access to Court Electronic Records]
CW-NY-0009-0005.pdf | Detail
Date: 04/22/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum Order [ECF# 216] (2016 WL 3960558) (S.D.N.Y.)
CW-NY-0009-0008.pdf | WESTLAW | Detail
Date: 07/12/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion & Order [ECF# 259] (2016 WL 4367969) (S.D.N.Y.)
CW-NY-0009-0006.pdf | WESTLAW | Detail
Date: 08/12/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 278] (2016 WL 4750178) (S.D.N.Y.)
CW-NY-0009-0007.pdf | WESTLAW | Detail
Date: 09/12/2016
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Pitman, Henry B. (S.D.N.Y.) [Magistrate] show/hide docs
Swain, Laura Taylor (S.D.N.Y.) show/hide docs
CW-NY-0009-0005 | CW-NY-0009-0006 | CW-NY-0009-0007 | CW-NY-0009-0008 | CW-NY-0009-9000
Plaintiff's Lawyers James, Letitia (New York) show/hide docs
CW-NY-0009-0003 | CW-NY-0009-0004
Lamorte, Rachel Jennifer (New York) show/hide docs
Levy, Jennifer (New York) show/hide docs
CW-NY-0009-0001 | CW-NY-0009-0004 | CW-NY-0009-9000
Lowry, Marcia Robinson (New York) show/hide docs
CW-NY-0009-0001 | CW-NY-0009-0003 | CW-NY-0009-0004 | CW-NY-0009-9000
North, Julie A. (New York) show/hide docs
CW-NY-0009-0001 | CW-NY-0009-0003 | CW-NY-0009-0004 | CW-NY-0009-9000
Peles, Nicole M. (New York) show/hide docs
CW-NY-0009-0001 | CW-NY-0009-0004 | CW-NY-0009-9000
Thomas-Jensen, Molly Anne (New York) show/hide docs
Defendant's Lawyers Blanchette, Antoinette W (New York) show/hide docs
David, Alphonso B. (New York) show/hide docs
Lively, Lauren Almquist (New York) show/hide docs
Pines, Jonathan (New York) show/hide docs
Simon, Jennifer C. (New York) show/hide docs

- click to show/hide ALL -

new search
page permalink

- top of page -