NYC Public Advocate Settles With Governor Over Foster Care Lawsuit


NYC Consent Decree

On October 20, 2015, an interesting development occurred in the Elisa W. v. NYC lawsuit.

New York City Public Advocate Letitia James settled the case insofar as it involved the State of New York as a Defendant.

“Governor Andrew M. Cuomo, New York City Public Advocate Letitia James, and child plaintiffs today announced a series of measures being taken by the state to better protect foster children. The measures are the result of a recently settled class action alleging harm to children in New York City’s foster care system.,” a press release from the Public Advocate’s Office explains.

This is truly an extraordinary occurrence in light of so many other class actions lawsuits dragging on for anywhere from a few years to as long as a quarter of a century, with multiple violations of Consent Decrees being the rule, rather than the exception.1

This suit was barely on the proverbial runway taxiing for its takeoff before the Public Advocate signed the Consent Decree between the Plaintiffs and the State. It was only on July 8, 2015, that New York City’s Public Advocate filed the class action Civil Complaint on behalf of all children who either are, or will be, in the New York City foster care system.

The suit contends that: “Through a pattern and practice of long-standing and well-documented action and inaction, Defendants—who are responsible for protecting New York City’s foster children—fail to keep these children safe. And, instead of ensuring that New York City’s foster children grow up in safe, permanent families, Defendants’ policies and customs cause far too many children to grow up in the custody of the state, without a home or family to call their own.”

The Civil Complaint further asserts that, “The illegal conduct of which Plaintiffs complain has plagued New York City’s foster care system for far too long—a fact well known to Defendants, all of whom have been in a position to change it.”

BROKEN PROMISES

While it may come as an advantageous move to sign a settlement with the State of New York, signing such an agreement with the City is another matter completely, given its recent history of flagrantly making – and then breaking – promises to bring about reforms.

Significantly, one of the policies challenged in the suit is the continuing pattern of illegal conduct on the part of the Administration for Children’s Services, which had agreed to do something about the excessive number of children removed from their homes on an “emergency” basis. While a court order is generally needed prior to removing a child from her home, case workers are given broad discretion when it comes to the determination of what constitutes an emergency.

More than half of the children removed from their homes in New York City are removed on an emergency basis, with no court order having been issued.

Since 2010, Brooklyn Defender Services has been urging the Adminstration for Children’s Services “to cease their illegal practice of removing children without court order in situations where there is time to seek a court order.” While the policy was ostensibly changed in February of 2011, as of this year “the practice of removing children without court order persists,” Jessica Marcus os Brooklyn Defender Services explained earlier this year in testimony before a committee of the New York City Council.2

In 2011, The New York City Legal Aid Society, Lawyer’s for Children, and the law firm of Davis Polk and Wardwell filed a lawsuit against the Agency on behalf of those youth who “have been or will be unlawfully discharged from the foster care system into homelessness” or other housing conditions deemed unsuitable under long-standing law.

That case was settled, with assurances made by the Administration that action would be taken. Four years later, little had changed, as the current legal action by the Public Advocate makes clear.

THE AGREEMENT

As a result of this settlement, the New York State Office of Children and Family Services “will retain a monitor to work with the Public Advocate’s Office and the plaintiffs to review and evaluate the city’s foster care system. OCFS will also require ACS to retain a research expert, who will conduct annual case record reviews,” the release explains.

The release further explains that the steps outlined in the agreement include:

  • Commitment to reform: Under the agreement, New York State and the Plaintiffs all agree that children in the New York City foster care system should be protected from maltreatment, provided with permanent homes and families within a reasonable time, and provided with foster placements and services that promote their well-being. The agreement aims to effectuate these goals.
  • Appointment of a Monitor: A Monitor, to be paid for by the State, will be retained for at least three years, and potentially beyond, to support compliance with relevant federal and State laws, regulations and policies. The monitor will produce bi-annual reports evaluating (a) the foster care placement process in New York City, (b) any potential causes of maltreatment of children in foster care in New York City and ways to lower the rate of such maltreatment, (c) the availability and appropriateness of services in the foster care system, and (d) the recruitment of an appropriate and sufficient array of placements, including potential permanent families, for such children.
  • Appointment of a NYC Research Expert: A Research Expert will be retained by ACS with the State and the Plaintiffs’ approval, for at least two years, and potentially beyond, to perform confidential case record reviews of children in the custody of ACS to determine compliance with relevant federal and State laws, regulations and policies relating to safety, permanency and well-being of foster children.
  • Implementation of Corrective Action Plans: If the Monitor or the Research Expert finds there is any substantial non-compliance with applicable laws, regulations or policies, either OCFS directly or ACS under OCFS’ oversight, will determine whether any corrective action is necessary and, if so, require the implementation of corrective action plans. Plaintiffs will have an opportunity to comment on any proposed corrective action plans that are developed as a result of the Monitor’s quarterly reports or the Research Expert’s biannual aggregate reports.

The Consent Decree does not release the New York City Administration for Children’s Services as a defendant in the suit.3


1. For a discussion of this phenomenon, see “New Ruling Issued in Quarter-Century-Old Foster Care Reform Case,” Lifting the Veil Blog, January 30, 2011.

2. Testimony of Jessica Marcus, New York City Council, Committees on General Welfare, Women’s Issues, and Juvenile Justice. Preliminary Budget Hearing, March 17, 2015.

3. The details of the lawsuit are explored in greater depth in the article “NYC Public Advocate Files Foster Care Reform Suit: But will this one work?” Lifting the Veil Blog. September 09, 2015.