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:

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.
  6. 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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