Public Advocate’s Lawsuit Dealt a Well Deserved Setback

Public Advocate Letitia James attends signing

In 2014, Mayor Bill de Blasio signed bills to improve foster care, expanding Public Advocate Letitia James oversight over New York City’s Administration for Children’s Services. Today, she stands rebuked by a federal judge for giving the appearance of “collusive activity” in connection with her efforts to promote a particular reform agenda.


Introduction

Consent Agreement

Last year, New York City Public Advocate Letitia James announced that she had filed a lawsuit against the New York City child welfare system, naming a State agency as among the defendants. Within a few short weeks it was announced that a “settlement” had been reached between the Plaintiffs and the State defendants. The resulting Consent Decree would have let the State Office of Children and Family Services – which monitors New York City’s Agency, among others, off the hook for seven years with a promise that no litigation could be filed against it arising from any deficiencies in its oversight of the New York City Administration for Children’s Services.

There was a catch, however. The Agreement called for the appointment of a “Monitor” and a “Research Expert.” The Monitor was to prepare quarterly progress reports, and the Monitor and the Research Expert were to meet every three years to compare notes. The Office of Children and Family Services was essentially relegated to the role of implementing the recommendations of the Monitor and the Expert. Incredibly, Governor Andrew M. Cuomo signed off on the deal.

All of this was accomplished without the input of those organizations that work day-to-day in the system striving to provide the best legal representation that they can for both parents and children embroiled in the foster care system. These organizations have litigated, lobbied, testified, and used the court of public opinion in order to produce meaningful reforms in New York City’s troubled child welfare system. Years of hard work appeared to be unraveling right before their eyes as the Public Advocate, apparently acting in concert with Marcia Robinson Lowry – formerly of Children’s Rights Inc., – moved forward with great haste to implement a plan that on first glance appeared murky and duplicitous.

The Advocacy organizations joined forces, casting themselves as Parent’s Advocates and Children’s Advocates, and managed to derail the train even as it appeared to be gathering momentum. Meanwhile, through the extremely limited amount of motion practice, the true agenda emerged. If not for the cooperative efforts of these advocacy groups, tremendous damage may have come to New York City’s foster children.

The case is Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). And, it took sifting through a good many of the hundreds of documents that have accumulated up to this point to unravel the mystery.

Was there indeed a hidden agenda? Was there indeed “collusive activity” between the Public Advocate, Marcia Robinson Lowry, and some unnamed State officials as United States District Judge Laura Taylor Swain suggested in her written ruling of August 12, 2016?

The Parent’s Advocates

Parent Advocates Motion

According to one of their Motions filed in the case, “The Parent Advocates are public interest organizations that provide quality legal and social work advocacy to indigent parents in child neglect and abuse proceedings, serving more than 5,000 New York City families annually. The Parent Advocates also devote substantial time and resources to reform efforts directed at improving the foster care system for New York City families.”1

The Parents Advocates raised some crucial points in their Objection To The Proposed Class Action Settlement With OCFS, noting that: “While parents and their representatives are not members of the proposed class, parents have a fundamental and constitutionally recognized right in the preservation of their families, and this right is intertwined with the rights of children in foster care.” The Advocates continue on to explain that:

Far from having abused or abandoned their children, the majority of parents in foster care proceedings love their children and are charged with neglect because of their poverty, homelessness, intellectual and physical disabilities, mental health issues, and substance abuse issues. The families who come before the Family Court — a disproportionate percentage of whom are persons of color — are facing issues rooted in poverty and unequal access to the private resources and services upon which most families depend during a crisis.2

They note also that preservation (or re-unification) of families is the paramount goal whenever possible. Not only does federal law require it, but New York law expressly provides that “[t]he state’s first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home.” This is not only a matter of compliance with the law, rather; it is a matter of sound public policy, with decades worth of solid research to back it, as the Advocates explain it:

decades of social science research have proven that separation of families is not a policy that promotes the long-term stability and well-being of children whose families find themselves impacted by child welfare and the family court. In the overwhelming majority of cases in which children are removed from their parents, the children can be safely returned if the family receives social services such as housing assistance, mental health treatment, substance abuse counseling and other supportive services.

They note that in the Proposed Settlement, “the Public Advocate and 19 children have appointed themselves representatives of all present and future New York City foster children, and seek to resolve serious allegations of wrongdoing by OCFS, the state agency with responsibility for the City’s foster children.” They note that the Named Paintiffs,

allege that OCFS routinely violates foster children’s constitutional and statutory rights by, among other things, failing to ensure that the services necessary for reunification are timely provided so that children can return to their parents. The complaint also alleges that OCFS fails to ensure that caseworkers are adequately trained and supervised, have manageable caseloads, and regularly meet with foster children and their parents, and more generally fails adequately to protect children from maltreatment while they are in foster care. If true — and no discovery has been conducted to ascertain whether they are true — these allegations are very serious and any class-wide settlement of those claims must be subject to significant scrutiny.

Agreement Vague, Impossible to Decipher

Two new positions are to be created by the Agreement; that of a Monitor and that of a Research Expert. Just how these two people are going o turn around a behemoth of a bureaucratic agency with a documented and decades-long history of failing to comply with court-imposed mandates – let alone one willing to comply with the laws governing its day-to-day operations – eludes me.3 The Advocates continue on to explain:

As a threshold issue, the Proposed Settlement does not clearly set out the goals and objectives of the Monitor and the Research Expert — the two new positions that it creates. The metrics and criteria that will govern the roles of the Monitor and Research Expert are only vaguely described, and it is impossible to decipher what policy agenda the Monitor and Research Expert will advance, or what practices and procedures they will seek to change. The vagueness of the mandate of the Monitor and Research Expert makes it impossible to assess what corrective actions, if any, the settlement will actually promote — leaving the Parent Advocates gravely concerned that parents potentially will lose important rights that they currently have, or that New York’s prevailing emphasis on reunification will be replaced by speed to adoption. The fundamental lack of clarity about the goals and mandate of the Monitor and Expert require that the Proposed Settlement be rejected.

The Proposed Settlement would effectively preclude foster cchildren and other class members from bringing a suit against the State of New York for its own lapses in monitoring New York City’s. As the Advocates explain in: “The Proposed Settlement raises other significant concerns. The Consent Decree’s broad release and covenant not to sue prevent settlement class members from bringing any lawsuit against OCFS seeking systemic reform for seven years. The duration of this covenant not to sue is unprecedented among prior foster care-related settlements.”

In conclusion, it is noted that:

Finally, it is striking that the Proposed Settlement has been met with strong objections by advocates that, unlike the Plaintiffs’ counsel, are involved, day-to-day, in the foster care system. The three organizations who represent nearly all NYC foster care children, the Legal Aid Society, Lawyers for Children Inc., and the Children’s Law Center of New York, object to this settlement. The four Parent Advocates, who represent the vast majority of parents with children in foster care, also object. And ACS, which will be required to actually implement much of OCFS’s unilateral settlement, objects as well. Not only should these organizations’ experience and knowledge entitle their opinions to significant weight, but their objections should stand as placeholders for the stakeholders that they represent—children in foster care and their families. Bluntly put, 19 children (whose parents and Family Court lawyers have not endorsed this lawsuit) and the Public Advocate (who is not charged with overseeing the foster care system) should not be permitted to substitute their judgment concerning what is best for the entire foster care system over those who are in the best position to inform efforts at reform.

The Children’s Advocates

Advocates Motion

The Children’s Advocates includes The Legal Aid Society, Lawyers For Children, Inc., and The Children’s Law Center of New York. As they explain the roles they play, “The Children’s Advocates represent the vast majority of children in the New York City foster care system. For decades, the Children’s Advocates have represented children in individual Family Court proceedings, brought class action litigations, and conducted extensive advocacy with the City and State in order to improve foster care in New York City. The Children’s Advocates are intimately familiar with the needs of foster children in New York City.”4

The Children’s Advocates noted in their Objection that:

Because of a paradigmatic shift away from foster care – driven, in part, by the New York Court of Appeals’ 2004 decision in Nicholson v. Scoppetta – the number of children in foster care in New York City has hit an historic low, falling from over 21,000 children in March 2003 to fewer than 10,000 children as of February 2016. Nicholson clarified that children should not be removed from their homes absent a determination that they are at imminent risk of harm that cannot be mitigated by reasonable efforts on the part of child protective services. The Court specifically recognized that Family Courts must balance the risk posed to the child against the harm removal might cause, and determine what is in a child’s best interest. Family Courts now very carefully consider the trauma of removing a child from his or her family, and attempt to implement services or court-ordered supervision that prevents the need for placement in foster care.

While it may be argued that it wasn’t an overnight success, it cannot be denied that a reduction of the foster care population by over one half over such a relatively short period time is a remarkable achievement. Remember, we are dealing with bureaucratic time, which in effect means that what we wanted yesterday is likely to arrive in a decade or two. This is so because beyond printing brochures, updating policy manuals, and sending memos to key agency heads, changes have to filter down to the ranks of the street level bureaucrats, where the critical decisions are made. This requires a change in the culture of an agency, and that is a time consuming process.5

In a manner similar to that of the Parent Advocates, the Children’s Advocates argued that the proposed Settlement Agreement was “vague,” “murky,” and “duplicitous.”

We are hard-pressed to find any other case in which a court has approved a class action settlement that imposed such ill-defined obligations upon the defendants.

The Children’s Advocates note that: “We are hard-pressed to find any other case in which a court has approved a class action settlement that imposed such ill-defined obligations upon the defendants. Where, as here, those obligations are imposed in exchange for sweeping, long-lasting releases from liability before any discovery has been conducted, the settlement is not fair, adequate and reasonable.”

Lack of Transparency

The Children’s Advocates continue on to note that: “It is also troublesome that the Proposed Settlement does not provide any public transparency with regard to the performance of the Monitor or the Research Expert. There is no public reporting requirement and the mechanism for input by other stakeholders is grossly deficient.” They continue on to note:

Public reporting requirements are extremely common and can be found in consent decrees from jurisdictions across the country, including in systemic litigations involving child welfare. In this case, it is particularly important that the reports be made public because releasing the reports only to Plaintiffs’ counsel leaves the assessment of whether the reports fairly and accurately reflect any changes that occur within ACS to Plaintiffs’ counsel. Plaintiffs’ counsel – unlike the Children’s Advocates and other interested advocates – has no regular contact with the foster care system and no means to determine whether the reports include an accurate assessment of the ways in which the system is – or is not – working.

They finally conclude: “Because the onerous burden of the Release and Covenant does not provide a reasonable quid pro quo for the illusory benefit of the remaining terms of the Proposed Settlement, this
Court should decline to approve the Proposed Settlement.”

Dispelling Myths

Advocates Motion

It wasn’t until Professor Christine Gottlieb presented her position in support of the Parent’s Advocates in Exhibit B that the fog began to clear. If indeed there is an agenda that is at odds with the positions of these advocacy groups, what could it possibly be? Why expend so much energy to the complete exclusion of those in a position to help? Why move to push forward a Settlement Agreement before discovery has even taken place? If indeed a reasonable quid pro quo begets but an illusory benefit, why proceed with such haste and vigor?

Professor Gottlieb begins her soliloquy by dispelling one common and persistent myth about child welfare services:

A commonly held misconception perpetuated over the past several decades is that most children who are placed in foster care are removed from their families because of allegations of abuse. However, during this same time period, numerous studies have concluded, contrary to this widely held misconception, that the primary reason children are removed from their parents and placed in foster care is not abuse, but rather poverty.6

Gottlieb adds that at least one study found that during the 1980s and early 1990s, inadequacy of income increased the odds for foster care placement more than 120 times. In other words, Gottlieb notes, children living in poverty are many times more likely to be placed in foster care than children from middle class backgrounds.

“Based on my own observations, I believe that poverty is presently one of the most significant factors that determine a child’s likelihood of being placed in foster care,” Gottlieb notes, adding that:

Furthermore, in the overwhelming majority of cases in which children are removed from their parents, the children can be safely returned if the family receives social services such as housing assistance, mental health treatment, substance abuse counseling, and other supportive services.7

While it is true that children spend a greater length of time in New York City’s foster care system, there have been some truly remarkable reductions in the overall number of child in care over time. This, according to Gottlieb, is attributable – at least in part – to advocacy organizations pushing for the provision of services. It is all well and fine to mandate that parents participate in services, but it is impossible to reunite them with their children when the mandated services are unavailable. While it is true that many families experience inordinate delays in obtaining services, or find them difficult to access in a large city using mass transit, overall this still represents some improvement over the last several decades of time. As Gottlieb explains:

In 1992, there were approximately 49,000 children in foster care in New York City. Today, there are fewer than 10,000 — a nearly 80% decline. This reduction represents one of the greatest decreases a foster care population has ever seen without a corresponding increase in the rate of child-abuse-related fatalities. The significant reduction in the number of children in New York City foster care is the result of a number of factors, including a commitment to provide families with preventive services to avoid the need for foster care altogether. By aspiring to offer preventive services when possible, rather than summarily and unnecessarily separating children from their families. New York City has set its policy objective as avoiding the trauma of separation whenever possible.

It is a little-known fact the New York State passed a law recognizing that too many children were being unnecessarily removed from their homes. This took place before P.L. 96-272 – the “reasonable efforts requirement” – was written into federal law. Preventive services were mandated by law, although many agencies ignored the law, just as many agencies today ignore the reasonable efforts requirements, and the mandates of the Indian Child Welfare Act. Nonetheless, New York State legislators can hardly be blamed for failing to take decisive action. Gottlieb explains:

In 1979, New York passed the groundbreaking Child Welfare Reform Act of 1979, which required that preventive services be used to keep children from entering foster care whenever possible and to speed family reunification when foster care was necessary. This was New York’s deliberate legislative response to widely discussed recognition at the time that too many children were entering foster care and then were staying in foster care too long (this was often referred to as “foster care limbo” or “foster care drift”). New York put significant resources into funding these mandates.

The Hidden Agenda

Gottlieb further explained in her submission to the Court that:

Many experts have noted that historically child welfare policy in the United States moves back and forth on a pendulum from more to less supportive of families. The passage of the Adoption and Safe Families Act of 1997 (“ASFA”) represented a swing of the pendulum away from emphasizing family preservation at the federal level, establishing for the first time mandates that agencies consider terminating parental rights when a child has been in foster care for 15 out of 22 months. Following passage of ASFA, many jurisdictions increased their rate of parental terminations. However, New York has remained committed to family reunification as the primary goal for children in foster care.

Gottlieb explains that New York City “has made a considered policy choice to prefer to keep children in foster care longer where that allows them to safely return home.” She adds that this specific policy choice is explicitly incorporated in New York law, which states:

it is generally desirable for the child to remain with or be returned to the birth parent because the child’s need for a normal family life will usually best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered . . . [T]he state’s first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home.

She notes that “this policy choice is clearly reflected in the fact that New York City has rejected the trend seen in other jurisdictions of establishing causes of action to tenninate parental rights based solely on length of stay in foster care.” In addition to that, New York’s highest Court has ruled:

Several model statutes would authorize termination of parental rights based on a child’s absence from the biological home for a substantial period, with the period depending on the child’s age. Such provisions were based on the notion, in circulation prior to and during the formulation of our current parental termination statute, that once a child under the age of three has been in the continuous care of the same adult for a year, it is unreasonable to presume that the child’s ties with biological parents are more significant than ties with long-term caretakers. Our Legislature did not recognize prolonged separation as an additional ground for termination of parental rights.8

She expresses great concern that the Plaintiffs have cited length of stay as a primary reason for the lawsuit they had initiated. Clearly, she notes, the Plaintiffs emphasis on the Adoption and Safe Families Act – which requires termination of parental rights once a child has been in foster care for 15 of the last 22 months – may be detrimental to the well-being of many children currenlty awaiting reunification.9

The metrics highlighted in the Complaint suggest a preference for adoption even where family reunification could be safely achieved. For example, ¶¶ 313 – 340 of the Complaint discuss ACS’s obligation under state and federal law to consider termination of parental rights when a child has been in foster care for 15 of the last 22 months. In condemnation of ACS’s efforts, the Complaint notes that “[f]or FY 2010.. . ACS reported that 94.9% of children who had been in ACS custody for the past 18 months did not have a TPR petition filed. ACS’s failure to file TPR petitions in accordance with the time periods set by federal and state law is not a new problem.” ¶¶ 313-314.

There is one thing that seems largely isolated to New York City. That would be the methodology used to describe children who are in foster care. Many children are counted as being in foster care even though they are currently living at home with their parents. (I suspect this to be a revenue maximization gimmick rather than the result of thoughtful policy implementation, but, regardless of the rationale behind it, it is a fact that must nevertheless be considered.) In any event, Gottlieb continues on to explain:

Notably, some children who are technically counted as part of the foster care population in New York City are already home with and being cared for by their parents on a “trial discharge” status, which allows ACS to continue to supervise the families while the parents complete services. In other jurisdictions, these children would not be counted as part of the foster care population. It is difficult to imagine any expert would suggest ACS should be moving to terminate these parents’ rights.

Gottlieb provides some other examples of cases in which the ASFA clock has timed out, but with progress being made toward reunification. With all of the vague and murky propositions being made by the Plaintiffs, and with their lack of transparency, the one thing that comes through loud and clear is the push to bring ASFA to New York City.

It is for this reason that “motions practice” takes place. Parties to litigation are compelled by the process to lay their proverbial cards on the table prior to a case going to trial. This, and the pre-trial process of discovery – which the Plaintiffs seek to circumvent – are essential elements of large legal actions, and this is particularly true of class action suits where a small number of individuals represent a class that is too numerous for joinder. (As a practical matter, there isn’t a courtroom in the land that would accomodate 10,000 plaintiffs).10

Gottlieb is well-acquainted with the buzzwords in the child protection industry, and is not fooled by them. As she explains in her analysis of the proposed Consent Decree:

It is broadly understood in the field of child welfare that “permanency” is a watchword for those who believe child welfare policy should be aimed more aggressively at adoption. This view can be contrasted with New York City’s policy, which focuses on keeping children with their families and working hard to reunify children who have been removed from their families. Emphasizing permanency as one of the few specific metrics in the Consent Decree would appear to promote a policy preference New York has purposely rejected.

On July 12, the judge granted the Parent Advocates and Children’s Advocates to permission submit their motions, and to consider them as a permanent part of the record.11

The Sanctions Warning

Sanctions warning

The Defendants were hardly as industrious as were the advocates. On August 8, the Defendants found themselves warned by United States Magistrate Judge Henry Pitman that they had been ordered to produce documents for discovery, and that they had failed to do so. This disdain for the law on the part of the Administration for Children’s Services is quite typical, but this Magistrate Judge would not tolerate it. Pitman put the Defendants on notice in no uncertain terms, writing:

The City defendants never sought reconsideration of my June 9 Order nor did they ever object to it. The City defendants’ current position that my June 9 Order somehow left them with the option of unilaterally proposing a drastically expanded schedule for document production is, at best, wishful thinking.

His Order continued on with a stern note of warning: “Because this the second time I have had to order the City defendants to produce documents in response to plaintiffs’ May 6, 2016 document request, further disobedience by the City defendants will result in the imposition of sanctions.”12

memorandum-and-order

On August 12, 2016, United States District Judge Laura Taylor Swain sternly denied the Plaintiffs requested approval of the Consent Agreement, and vacated the provisional certification of the Plaintiff class.

Significantly, Judge Swain noted that Marcia Robinson Lowry had made several representations in her declarations such that negotiations had been hammered out with “robust negotiations” having taken place over a period of several months of time, “and that, over the course of several weeks beginning in July 2015, counsel for the Named Plaintiff Children, the Public Advocate and the State Defendants engaged in a series of meetings, calls and debates concerning a potential settlement.”13

Judge Swain didn’t buy it. The record before her told another story, and she pulled no punches in her analysis of what Lowry had endeavored to accomplish:

Nevertheless, the record before the Court makes it clear that the contours of the settlement were agreed to in principle a mere week after the Complaint was filed, and that the parties have not engaged in “meaningful discovery” beyond a purported investigation into the state of New York City’s child welfare system and an examination of city, state and federal public reports detailing the failings of the child welfare system in New York City. In particular, and as Plaintiffs’ counsel acknowledged at the fairness hearing, there has been no investigation focused on the State Defendants’ alleged non-compliance with legal provisions governing its role in the child welfare system. Plaintiffs do not demonstrate how their purported pre-litigation investigation connected meaningfully to the Named Plaintiff Children or to the specific allegations regarding State agency violations that are contained within the Amended Complaint. In the absence of any “meaningful discovery” into the merits of the claims asserted against the settling defendants by the Named Plaintiff Children, the settlement is not entitled to a presumption of procedural fairness.

Judge Swain concluded: “Although none of the parties opposing settlement have proffered affirmative evidence indicating collusive activity, the near-total abandonment of the settling parties’ obligation to assess the merits of the Named Plaintiff Children’s claims leads the Court to conclude that the Consent Decree is not entitled to a presumption of procedural fairness, and that the proponents have failed to establish that it was developed under conditions that were procedurally fair to the putative class.”

Conclusion

I have followed closely the actions of New York City’s Public Advocates since the days of Mark Green, whom I personally consider to have been among the finest to have served the City in that role. I, too, suspected what Judge Swain described as “collusive activity” on the part of the current Public Advocate and Marcia Robinson Lowry. Public Advocate Letitia James should be both embarrassed and ashamed for her role in this matter. So, too, should Marcia Robinson Lowry.


1. The Parents Advocates are collectively composed of Brooklyn Defender Services, The Bronx Defenders, Center for Family Representation Inc., and Neighborhood Defender Service of Harlem. Brooklyn Defender Services, The Bronx Defenders, Center For Family Representation Inc., And Neighborhood Defender Service Of Harlem. Objection To The Proposed Class Action Settlement With OCFS. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 183. Exhibit A. Filed June 21, 2016.

2. Id. Of particular relevance to these issues is the Testimony of Jessica Marcus of Brooklyn Defender Services, before the New York City Council, Committees on General Welfare, Women’s Issues, and Juvenile Justice. Preliminary Budget Hearing, March 17, 2015. Therein, Marcus points out that a large number of child removals are based solely on allegations of cognitive delays, or on grounds no more substantial than marijuana use. Marcus also expressed concern that promises from the agency notwithstanding, “the practice of removing children without court order persists.” Removing children without a court order is a longstanding problem with this Agency. See Report of Mark Green, Public Advocate for the City of New York, and C-PLAN: Child Planning and Advocacy Now, Justice Denied: The Crisis in Legal Representation of Birth Parents in Child Protective Proceedings (2000) (Despite the 2nd Circuit’s holding in Tenenbaum, “in practice ACS often removes children prior to filing a petition or getting court approval for removal, even where the case is one of alleged neglect rather than abuse.”)

3. This is, after all, the same Agency that after the ruling in Tenebaum v. Williams, 193 F.3d 581 (2d Cir. 1999) received a letter from from Leonard Koerner of the City’s legal affairs department to Commissioner Scoppetta on November 4, 1999, saying “all ACS staff should go about their normal jobs as they always have…” and that the legal department will back the Agency if there are any legal repercussions. And so the Agency did, completely disregarding the Court order. See also Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y 2002) for a discussion of these events. It is also the Agency that gave us the Incarnation Center Aids experiments on foster children. See Antony Barnett, “UK firm tried HIV drug on orphans,” The Guardian, April 4, 2004. Then there were the abridgments of the first amendment barring employees from speaking out that were found to be unconstitutional. Harman v. City of New York, 140 F.3d 111, (2d Cir.1998).

4. Objections of The Legal Aid Society, Lawyers For Children, Inc., and The Children’s Law Center of New York to the Proposed Settlement. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 187. Filed June 21, 2016. These organizations have a history of reform litigation that is exemplary. As they explain it: “In addition to their work in the Family Courts, the Children’s Advocates have a long history of litigating against and negotiating with ACS and OCFS to improve the foster care system. The Children’s Advocates’ extensive experience in bringing and settling class action lawsuits on behalf of children in foster care includes the excellent results achieved in Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y. 1986) (addressing inequities in the process by which ACS assigned children to foster care agencies); Marisol A. v. Giuliani, 185 F.R.D. 152, 170 (S.D.N.Y. 1999), aff’d, Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000) (addressing virtually every aspect of New York City’s foster care system); Nicholson v. Scoppetta, 344 F.3d 154 (2d. Cir. 2003) (addressing ACS’s treatment of domestic violence victims and their children); A.M. v. Mattingly, Stipulation and Order of Settlement, No. 10 Civ. 02181 (E.D.N.Y. March 14, 2011) (remedying ACS’s practice of permitting foster children to languish in restrictive, acute care psychiatric hospitals although medically ready for discharge); D.B. v. Richter, Index No. 402759/11 (N.Y. Sup. Ct.) (ending ACS’s practice of discharging foster youth to homelessness) and other cases. In sum, the Children’s Advocates have an unparalleled depth of knowledge about and experience with New York City’s foster care system and the children who come into contact with that system.” By no means is this list a complete one, with some other important cases havng been brought by Carolyn A. Kubitschek, including Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir. 1981), cert. den. 404 U.S. 864 (1983) (establishing the constitutional right of a foster child to be protected from child abuse in a foster home); Matter of Guardianship and Custody of Alexander L. 60 N.Y.2d 329, 469 N.Y.S.2d 626 (1983) (if the government seeks to free children for adoption on the grounds that their parents are mentally ill, the parents have a right to bring their attorneys with them to court-ordered psychiatric evaluations); Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994) (operation of child abuse registry ruled unconstitutional); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (social workers could not have doctors conduct medical examinations on children without consent of the parents or a court order); and Camreta v. Greene, 131 S.Ct. 2020, in which she gave oral arguments before the US Supreme Court in 2011. These are among some other important cases. Lansner Kubitschek Schaffer was selected by the New York State Bar Association for its 2011 President’s Pro Bono Service Award, however to the best of my knowledge, Ms. Kubitschek was not consulted by the Public Advocate either.

5. See generally Lipsky, Michael. “Street level bureaucrats.” New York: Russell Sage Foundation (1980).

6. Expert Declaration Of Professor Christine Gottlieb In Support Of Brooklyn Defender Services, The Bronx Defenders, Center For Family Representation Inc., And Neighborhood Defender Service Of Harlem’s Motion To Intervene And Objection To The Proposed Settlement. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 183. Exhibit B. Filed June 21, 2016.

7. See for example General Accounting Office. Parental substance abuse: Implications for children, the child welfare system, and foster care outcomes. T-HEHS-98-40. 1997. p. 4. (“Sixty-eight percent of young children in foster care in California and New York in 1991 were removed from their parents as a result of neglect or caretaker absence or incapacity. No other reasons for removal accounted for a large portion of entries of young children into foster care. Physical, sexual, and emotional abuse combined accounted for only about 7% of removals of these young children”); John M. Hagdorn. Forsaking Our Children: Bureaucracy and Reform in the Child Welfare System, Chicago, Lakeview Press, 1995 (“After foster care cases were categorized by social workers and reviewed by a panel of experts, we found that most children did not need to be in foster care at all. The social workers and our expert panel agreed that a third of all children in foster care could immediately reunited with their families, if family preservation services were available”).

8. Matter of Michael B., 80 N.Y.2d 299, 310 n. 2 (1992). Judge Kaye wrote for the Court, in New York “[pjarental rights may be terminated only upon clear and convincing proof of abandonment, inability to care for the child due to mental illness or retardation, permanent neglect, or severe or repeated child abuse.”

9. The Adoption and Safe Families Act was the brainchild of Richard Gelles, a professor who wrote a fictionalized account of one child’s death in his efforts to promote the law. Most unfortunately, the law has led to thousands of “legal orphans” having been created simply because the clock timed out on their cases. Some time after the law’s passage, Gelles hopped on board Children’s Rights, Inc., with Marcia Robinson Lowry at the at the helm of that organization. Today, it is Marcia Robinson Lowry who is spearheading this particular campaign to bring this law to New York City. If there is one law that I would like to see repealed, it would most certainly be ASFA. For additional background on ASFA, see generally “Foster Care, Child Welfare Reform in Review,” Lifting the Veil Blog, January 1, 2012. See also Erwin A. Blackstone, Andrew J. Buck, Simon Hakim, Privatizing Adoption and Foster Care: Applying Auction and Market Solutions, Children and Youth Services Review, 26 (2004) 1033–1049. Randi J. O’Donnell, A Second Chance For Children And Families: A Model Statute To Reinstate Parental Rights After Termination, Family Court Review, Vol. 48 No. 2, April 362–379. Cameryn Schmidt and Brenda Dabney, Restoring Parental Rights: Giving Legal Orphans a Chance at a Family, Child Law Practice, Vol. 25 No. 11. Olivia Golden, et al., Intentions and Results: A Look Back at the Adoption and Safe Families Act, Urban Institute, Dec. 2009. Sheri L. Hazeltine, Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to Alaska’s Child in Need of Aid Statutes and Their Inherent Conflict With the Mandates of the Federal Indian Child Welfare Act, 19 Alaska Law Review. 57 (2002).

2. For A Discussion Of The Role Of Motions And Discovery see Objections of The Legal Aid Society, Lawyers for Children, Inc., and The Children’S Law Center of New York to the Proposed Settlement. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 187. Filed June 21, 2016.

11. Memorandum Order. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 216. Filed July 12, 2016.

12. Order of US Magistrate Judge Henry Pittman. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Filed August 8, 2016.

13. Memorandum Opinion & Order. Elisa W Barricelli, by her next friend, Elizabeth et al. v. The City Of New York, et al. United States District Court, Southern District of New York. No. 15-cv-5273(LTS)(HBP). Document 259. Filed August 12, 2016.