A federal judge has denied the latest attempt by a pioneering legal advocate for foster children to proceed with a class-action lawsuit against New York City.
In a Friday decision, Judge Kimba Wood of the Southern District Court of New York did not rule on the merits of the long-running case alleging that children taken from their parents had been poorly cared for and had spent too long in foster care.
But she sided with the city and state in denying “class certification” to the group of 19 youth, concluding that the litigators representing the foster children had not demonstrated common “questions of law or fact” in their struggles, or that their challenges were typical among the more than 7,000 kids in city foster care.
She also noted plaintiffs hadn’t demonstrated which policy or institutions were most clearly responsible for what they faced in foster care.
“Countless decisions by numerous stakeholders — children, parents, advocates, and judges, to name a few — make each child’s case unique,” the judge wrote. She added that an expert report on the foster care system’s deficiencies presented by the plaintiffs offered only “weak evidence” that the children had all “suffered the same injury.”
The plaintiffs and defendants have until Monday to file a joint letter addressing the next steps in the litigation, with the plaintiffs’ hopes for a class action effectively dead pending appeal.
In a phone interview, the founder and executive director of the firm representing the 19 youth, Marcia Lowry, vowed to appeal the certification decision. Referring to her decades of experience filing similar class actions across the country, she called the ruling “wrong” and “unusual.”
“We do think it is an incorrect decision,” Lowry said, calling it “contrary to the law.”
She described the ruling — which included a statement by Judge Wood that “it goes without saying that any allegations regarding potential harm to children in foster care are of grave concern” — as not handing down a judgement on the quality of New York City foster care.
Rather, she said, the judge ruled on the narrower question of whether the 19 foster youth met federal requirements for pursuing class-action suits.
“It is critically important for children to have the right to challenge the conditions that they experience in foster care,” Lowry said. “This decision seems to limit that right.”
The plaintiffs were represented by both Lowry’s A Better Childhood, with New York City-based law firm Cravath, Swaine & Moore as co-counsel.
Lowry has won major settlements in class-action suits on behalf of foster youth over her 50-year career, in states across the country. The cases have consumed states and local child welfare agencies with costly legal battles and decades of corrective action plans and court oversight.
She is respected by some child welfare leaders and reformers, who praise her success in forcing local governments to spend more, adhere to legal timelines and provide higher standards of care. But critics say some of the litigation comes at the expense of other urgently needed reforms — such as keeping kids out of the foster care system in the first place by preventing the breakup of their families.
Since it was first filed in 2015, Lowry’s New York City battle faced vigorous opposition from a diverse swath of child welfare advocates and government agencies — in part due to those concerns and prompting unlikely alliances.
The city and state were joined in opposition to certifying the youth as a class in a March amicus brief filed by pro bono law firms representing parents — advocates typically fighting the city on public policy and in individual foster care cases.
One law professor who provided expertise to the pro bono parent firms said the Friday opinion signals growing recognition of the unintended consequences of federal class-action lawsuits as a tool for reforming beleaguered foster care systems.
“Very often, whether intentionally or not, these cases create pressure to increase the amount of system intervention in families, and push towards more termination of parental rights and adoptions,” said Chris Gottlieb, co-director of the New York University School of Law’s Family Defense Clinic. “Clearly the way this lawsuit was designed, it would have created pressure to move cases towards that outcome, even if that wasn’t the best thing for the children involved.”
Gottlieb acknowledged a fundamental premise of Lowry’s case, that it’s better to shorten the amount of time children spend in foster care. “But the question is,” she added, “what are you doing to get kids out of foster care sooner?”
Gottlieb also noted that the ruling signaled the growing clout and effectiveness of New York City’s burgeoning “family defense” movement, comprised of parents who have faced accusations of child abuse or neglect — who are overwhelmingly Black and Latino people in low-income communities — and attorneys who represent them in family court.
In a statement, a top lawyer for the City of New York hailed Wood’s decision, claiming a different premise — that it underscored the city’s success in improving circumstances for children removed from their parents.
“The court decisively rejected plaintiffs’ claim that there are systemic problems in the city’s foster care programs common to entire classes of children in foster care,” Jonathan Pines, deputy chief of the city Law Department’s general litigation division, stated in an email. “Instead, the court recognized that the challenges facing these children and their families are both complex and case-specific, often involving factors outside the city’s control.”
Pines said that on Friday, the “plaintiffs’ six-year effort to force a one-size-fits-all judicial remedy upon these complex and challenging cases was definitively rejected by the court.”
Indeed, Wood’s decision credited the city Administration for Children’s Services for improving foster care “greatly” in recent years,” including an 80% reduction in the number of children in foster care between 1992 and 2016, and greater funding for prevention services designed to keep children out of foster care.
In making its case, Lowry’s New York firm, A Better Childhood (ABC), submitted a nearly 300-page filing in July of 2019 that included allegations of profiteering by nonprofit foster care agencies in New York City, protocol violations and unusually frequent abuse of children in foster care. The suit also alleged the children remained in foster care too long, violating the spirit of federal law.
In investigating the system’s conditions, the firm’s attorneys collected voluminous records through the discovery process, including more than one million pages of documents and 36 witness depositions, and supported a team of nine social work experts who spent “thousands of hours” reviewing over 66,000 documents for their own report to the court.
The government defendants in court at earlier stages of the proceedings called the documents requested in discovery a “wide-ranging fishing expedition.”
Yet A Better Childhood is undeterred, continuing its class-action litigation efforts in eight other states. The firm is on the verge of concluding similar litigation against Washington, D.C.’s child welfare system, a case that held the nation’s capital under court orders for nearly 30 years. In July, a judge issued final approval for a settlement between Washington, D.C. and Lowry’s firm, allowing a court-appointed watchdog in place since the early 1990s to wind down its work.
Parent attorney Gottlieb called the rejection of Lowry’s class-action suit in New York City remarkable, after her decades of success with similar cases nationwide.
“She’s convinced many courts to allow her lawsuits to have a lot of influence over child protective service practices,” Gottlieb said.
Note: The story has been updated to identify Cravath, Swaine & Moore as co-counsel for the plaintiffs.
