NEW YORK CITY FOSTER CHILDREN SEEK CLASS CERTIFICATION STATUS

Click to read the proposed court motion and memo in support here.

The child advocacy group, A Better Childhood, and the law firm Cravath, Swaine & Moore, today filed a memorandum of law quoting testimony from New York City and State officials and citing detailed reports from national child welfare experts that assert the City’s foster care system is not working as promised.

This brief, filed in support of class certification in the lawsuit Elisa W. v. The City of New York et al, was filed after Plaintiffs took numerous depositions and reviewed over one million pages of documents produced by the City and State. Filed in U.S. District Court, Southern District of New York, the brief offers the most comprehensive examination to-date of how Mayor de Blasio’s Administration for Children’s Services (ACS), under Commissioner David Hansell, is failing to provide for and protect the 8,300 children in New York City’s foster care system.

This filing demonstrates—often in the actual words of city and state employees—just how wide the gap is between New York City’s policies and its practices for the treatment and protection of foster children. Furthermore, the filing demonstrates how Governor Cuomo’s Office of Children and Family Services (OCFS) fails to oversee ACS and keep the City’s children safe from harm while in care.New York City currently has one of the highest maltreatment rates in the country for children in its child welfare system.

A core revelation of the brief is that the Improved Outcomes for Children (IOC) model, wherein ACS delegates day-to-day care of children to 27 Contract Agencies, is not working, and the city knows it. ACS conducts only cursory case reviews, has no minimum requirements for agency performance, no minimum requirements for training of agency caseworkers, and fails to impose consequences when agencies have consistently poor performance outcomes.

Nationally recognized social work experts from both The University of Michigan and The University of Maryland reviewed the case files of the nineteen child plaintiffs in the case. Some illustrative examples of what those children’s case files revealed are below.

These experts found that, even though the children were placed in different agencies with different permanency goals and life circumstances, there were six key case failures common to all of the children’s cases. The brief asserts that those six failures are likewise common to all 8,300 children in ACS’s custody. Those failures are:

ACS and the Contract Agencies fail to document that they employ any type of matching process in placing children in ACS custody with Contract Agencies and in foster homes.For some children in ACS custody, this results in them being placed in homes that cannot meet their needs or homes that are dangerous or abusive. Some children are placed in homes where they do not even speak the same language as their foster parent.
ACS fails to ensure that the Contract Agencies engage in concurrent planning. Despite both law and policy requiring concurrent planning (i.e. having a backup permanency plan for a child) from the first day a child enters care, ACS fails to ensure that the agencies it contracts with comply with this requirement. Some agency representatives testified that they mistakenly believe that a child needed a concurrent plan only after that child had been in care for a lengthy period of time. The failure to ensure that this requirement is followed, or even known of, delays permanency for all children across the foster care system.
ACS fails to ensure that the Contract Agencies take steps to ensure permanency for children. More than half of children in the New York City foster care system have been in care for longer than 2 years. Agencies do not follow federal law with regard to making final permanency decisions in children’s cases. In fact, New York State’s child welfare system ranks among the worst in the nation (48th) on permanency outcomes; New York City children account for the vast majority of “long stayers” (children in care over two years).
ACS fails to ensure that the Contract Agencies adequately monitor services for birth parents and caretakers.By not adequately monitoring these services, ACS and the Contract Agencies extend children’s time in care because their parents either receive inappropriate services or fail to receive the necessary services in order for reunification to occur in their entirety.
ACS fails to ensure that the Contract Agencies give special scrutiny to foster children in care for longer than two years. ACS’s own policy requires “special scrutiny” for these children, but many contract agency representatives were unfamiliar with the term and/or stated that their agency does not pay special attention to any child’s case regardless of how long the child remains in care.
ACS fail to ensure that the Contract Agencies complete documentation adequately and timely.Case files are replete with untimely, inadequate, and cut-and-paste documentation. Without proper documentation, the Contract Agencies are unable to track parents’ progress, evaluate appropriate next steps for both parents and children or implement meaningful permanency plans. The lack of adequate documentation is unsurprising given that some new caseworkers are assigned cases before they receive any training at all. Neither ACS nor OCFS sets any mandatory training curriculum for its foster care workforce, and in the case that workers are trained, most agencies provide only two weeks of training.

These six failures—present in each of the 19 children’s case files—contributed to the children’s extended stay in foster care and increased their risk of harm while in care. They also result in New York City having one of the highest maltreatment rates in the country; a vast majority of contract agencies had maltreatment rates above the federal standard.

“ACS has abdicated its responsibility to the children in its custody,” said Marcia Robinson Lowry, Executive Director of A Better Childhood. “It fails to ensure that the agencies with which it contracts meet even the most basic requirements of the law, and thousands of New York City children are thus experiencing protracted and harmful stays in a system that is fundamentally broken.”

The city and state will submit their opposition brief (followed by Plaintiffs’ reply brief), and Judge Laura Taylor Swain will determine whether to grant the plaintiff children class action status.

Examples of three of the named plaintiff children’s stories are below, and expert reports with full descriptions of the cases are available upon request.

The T-C Children are four siblings who entered foster care when they were all under six. Despite being Spanish-speaking children, they were placed with English-speaking foster parents, who had a history of domestic violence. The children were removed from that home and the siblings were separated. Two of the siblings were removed from yet another home due to their foster parent’s medical neglect. Even though their birth mother completed her service plan approximately six months after the children had entered care, none of the children were trial discharged to her until after they had been in care for 2 ½ years, and one of her children was not trial discharged for over four years.

Ayanna entered care as a newborn and has spent her entire life in foster care—over 6 ½ years. Though her mother cannot even have unsupervised visits with her, due to her involvement in the violent death of Ayanna’s older sister, Ayanna has still not achieved permanency. Her case record has numerous examples of untimely and incomplete documentation.

Tyrone spent the first ten years of his childhood in foster care. He entered care as a newborn because his mother was incarcerated. He was placed with in a foster home in which he was exposed to serious domestic violence and drug abuse. He was eventually removed from that home after five years, but was placed in a home with a foster parent who was not willing to adopt him. He was then moved to a third home. He was not freed for adoption until he had been in care for over five years, and spent over ten years in care before being adopted.

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A Better Childhood, (ABC) is a national child welfare advocacy organization that represents abused and neglected children in dysfunctional child welfare systems. ABC also represents children in child welfare lawsuits in Indiana, Oregon, Minneapolis, MN, Mississippi, New Jersey, Oklahoma, Texas, New York City, and the District of Columbia. is a national child welfare advocacy organization that represents foster children in dysfunctional child welfare systems. .

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FOSTER CHILDREN BRING FEDERAL CLASS ACTION AGAINST NEW YORK CITY AND STATE FOR HARM IN FOSTER CARE

Suit asserts that NYC foster children remain in foster care custody longer than almost anywhere else in the country and that rate of maltreatment is one of the highest in the country.

Elisa W. v. The City of New York, Case No. 1:15-cv-05273, U.S. District Court, Southern District of New York

girl Ten New York City children who have spent most of their childhood in the foster-care system Wednesday brought a federal class action against the city and state for failing to provide them with permanent homes and for exposing them to harm while in foster care at a higher rate than almost any other place else in the country.

The lawsuit, known as Elisa W. v. The City of New York, names as defendants the city itself; the city agency responsible for child welfare services, The Administration for Children’s Services (”ACS”), and its commissioner, Gladys Carrion; the State of New York; the state agency responsible for child welfare, the Office of Family and Children’s Services (“OCFC”), and its Acting Commissioner, Sheila J. Poole.

The New York City Public Advocate, using her authority under the City Charter, is also a plaintiff in the lawsuit against the New York City defendants.

The lawsuit alleges that New York City is one of the most dangerous foster-care systems in the country and that the state has one of the highest rates of maltreatment of children in foster care of any foster-care system in the country. It also asserts that children remain in state custody in New York City far longer than children elsewhere in New York State and twice as long as children in the rest of the country. According to federal data:

Children in foster care in New York City spend twice as much time in state custody as children in the rest of New York State and over double the amount of time in state custody as children in the rest of the nation.
It takes longer to return New York City children in foster care to their parents than in the rest of New York State and the rest of the nation. Federal data for 2013 shows that New York City performs worse on this measure than all but five other states and territories.
It takes longer for a foster child to be adopted in New York City than anywhere else in the country. New York City has performed worse on this measure than every state since at least 2007.

The suit tells the stories of 10 children, ranging from three to 16, who have spent most of their lives in foster care. Several of these children have been physically harmed while in foster care, all have been emotionally harmed, and none have yet been placed in a permanent home. New York City delegates its day-to-day responsibilities for the care of children in foster care to agencies with which it contracts, but it retains legal responsibility for these children. The lawsuit asserts that the city fails to exercise meaningful oversight of these contract agencies.

One 16-year-old girl, who has grown up in foster care and in more different placements than she can remember, has been both physically and psychologically abused while in foster care. She is now on powerful psychotropic medications that leave her barely able to string a sentence together, although she recalls being a very good student when she was young and still has hopes of going to college.
Another plaintiff, a three-year-old boy removed from his mother, a schoolteacher, after she reported the boy’s father for abusing her, has been in foster care for almost two years, even though his mother expelled her abuser from the house immediately after he was reported for the abuse. At the end of his regular visits with his mother, the little boy cries uncontrollably. The child’s therapist has told his mother that he has to “get used to it” because this is “his life now.”
A two-and-a-half-year-old girl in foster care since birth continues mandatory visits with her mother, although her mother was found to have severely abused two other children, one of whom was killed by the mother’s boyfriend. A proceeding to free the child for adoption has been repeatedly delayed in the Family Court.

The lawsuit alleges a wide range of well-documented and long-recognized deficiencies in the City’s child welfare system. Among them are:

ACS’s failure to exercise meaningful oversight over contract agencies,
ACS’s failure to ensure an adequately staffed and appropriately trained child-welfare workforce,
ACS’s failure to develop a placement process that matches children with appropriate placements,
ACS’s failure to ensure that meaningful case plans and service plans for children are developed and implemented, and
Defendants’ failure to ensure timely adjudication of Family Court proceedings, which further impedes timely decision-making for children and their placement in permanent homes.

The lawsuit also asserts that the State Office of Children and Family Services has failed to exercise sufficient oversight over New York City’s child-welfare system and to take necessary steps to ensure that the city complies with the requirements of federal law.

The result of all these failures is that children continue to be devastated and permanently damaged by their experiences in the New York City foster-care system, deprived of parents to whom they could be returned, delayed in their access to adoption when they can’t be returned to parents, and deprived for their entire childhood of a chance for a permanent family. According to the lawsuit, every year approximately 1,000 New York City children leave the New York City foster-care system with no permanent family and without a connection to an adult they can trust or count on. Many of them wind up homeless.

The lawsuit asks the court to certify the case as a class action on behalf of all New York City foster children and to find that the defendants have violated these children’s constitutional, federal, and state law rights. It also asks that ACS be barred from placing children with contract agencies which do not meet professional caseload, training, planning, and permanency standards and to provide funding for post permanency services. To oversee the city and the state defendants’ compliance with the remedies developed as the result of the lawsuit, the plaintiffs ask the Court to appoint a Special Master.

“Hundreds of millions of public dollars are spent every year on a system that further devastates children who have already suffered the loss of being removed from their homes,” said Marcia Robinson Lowry, an attorney for plaintiffs in the lawsuit. “This problem isn’t new; it’s been documented repeatedly. Yet little gets better for New York City children, and there is an extraordinary lack of urgency about the need to protect them and give them a chance for a decent childhood. That’s why we have asked the Court to act. It’s clearly their last resort and, history tells us, their only chance.”

The child plaintiffs in the lawsuit are represented by Marcia Robinson Lowry, the executive director of A Better Childhood, a nonprofit advocacy organization committed to reforming child welfare systems across the country, and Cravath, Swain and Moore, with a team headed by Julie North, a member of the firm.

A Better Childhood is a national nonprofit advocacy organization that uses the courts to reform dysfunctional child welfare systems around the country. Marcia Robinson Lowry, A Better Childhood’s executive director, is lead counsel in the Elisa W. v. The City of New York lawsuit.

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ACS Lawsuit Packet—July 2015

Complaint, filed July 8, 2015.

For more information, please contact:

A Better Childhood
info@abetterchildhood.org
844-422-2425