A federal appeals court has granted New York City foster youth the go-ahead to proceed with their lawsuit against the city and state child welfare agencies, overturning a lower court ruling denying them class-action status.
The Tuesday decision by the 2nd U.S. Circuit Court of Appeals revived the long-running case, in which 19 young people are alleging that the city’s foster care system lacked appropriate foster placements, provided poor care and case planning and inadequate training standards for its caseworkers.
The case further asserted that the state fails “to effectively exercise adequate and meaningful oversight over New York City’s Administration for Children’s Services” and its contracted agencies.
“This is a major decision analyzing and supporting the requirements for the certification of a class,” said Marcia Robinson Lowry, founder and executive director of A Better Childhood. The nonprofit law firm, together with the private practice firm Cravath, Swaine & Moore, represented the children. “It is a significant victory for children in the New York City foster care system.” Lowry said.
The ruling is also noteworthy, she said, because it highlighted how her clients have been subjected to practices by the Administration for Children’s Services (ACS) that “departed from its written policies.”
The 27-page appeal decision was authored by Judge Joseph F. Bianco.
Two years ago, Southern District Court Judge Kimba Wood rejected class certification for the 19 New York City foster youth, questioning whether the group faced issues that were similar enough to meet the qualifying legal standard.
Now, in what child advocates are hailing as an important reversal, the appeals court agreed with the plaintiffs that the lower court had “erred in its analysis” of class certification and ordered it to reopen the matter.
State officials said they could not comment on the active litigation. A spokesperson for the city’s attorneys noted that the Tuesday decision did not address the most significant issues at stake in the case.
“This ruling offered no opinion about either the merits of the claims alleged in the case or the plaintiffs’ motion for class certification, it simply returned the matter to the district court to analyze plaintiffs’ class certification motion under a more particularized legal standard,” said Nick Paolucci of the Law Department. “The city remains confident that there remains no basis for granting class certification in this litigation.”
The defendants have opposed the class certification in court, and argued the plaintiffs failed to submit sufficient evidence to support their claims. In a 2021 statement, the Law Department described “remarkable progress the City’s Administration for Children’s Services has made in recent years,” and accused the plaintiffs at that time of a “six-year effort to force a one-size-fits-all judicial remedy upon these complex and challenging cases.”
The foster youth allege the city and state violated their rights under the First, Ninth and Fourteenth amendments of the U.S. Constitution, and state and federal child welfare laws. They accuse the city child welfare agency and the state’s Office of Children and Family Services of poor practices in matching children with appropriate foster care placements, and unjustified delays in filing termination of parental rights petitions against parents, among other claims.
To date, the courts have not ruled regarding those and other underlying allegations, and the lower court will need to again decide on class-action certification before the case can proceed. The appellate court’s ruling doesn’t guarantee certification, but the plaintiffs’ attorneys’ statement noted it was a “strongly worded” rejection of the lower court’s previous approach.
Local and national youth advocates celebrated the ruling.
“This decision reaffirms that children in foster care can file class actions to challenge systemic practices that are causing them harm, where those deviate from the agency’s written policies,” said Poonam Juneja, a senior managing director for the National Center for Youth Law, a California-based nonprofit. “That was important.”
‘An historic role’
The case — referred to as Elisa W. v. The City of New York, et al — was first filed in 2015, coinciding with the release of a critical report on the New York City’s child welfare agency authored by the city’s then-public advocate Letitia James.
Elisa’s horrific experience is described on A Better Childhood’s website. She was reportedly 17 at the time of the original legal complaint, and had lost count of how many foster homes she’d grown up in. She survived beatings, sexual and psychological abuse and was forced to take powerful psychotropic medications. Another plaintiff, Thierry — who was 3 when the lawsuit was filed — had been separated from his mother for most of his life after she “reported and expelled” her abuser husband.
At the time the suit was first filed eight years ago, seven nonprofit legal aid groups representing New York City foster children or their parents issued a statement calling the lawsuit “misguided” and “myopic” for how it measured success in the foster care system. They called a proposed settlement in the case — which was later tossed out in court and would have required years of independent monitoring and prevented new lawsuits from foster children — a distraction from other meaningful reforms underway.
But at least one of those groups says the latest decision is beneficial.
Lisa Freeman, a director for the Legal Aid Society’s juvenile rights division, pointed to the broader importance of class action suits like these that can result in far-reaching systemic change.
“Class action litigation has played an historic role in the protection of civil rights,” Freeman said. “The Second Circuit’s decision in Elisa W. secures that role for children in the government’s care and ensures children have an opportunity to vindicate their rights.”
Two leading legal aid groups that represent parents accused of maltreatment declined to comment on the latest development in the case. In the past, some of these advocates opposed the suit because it accuses the city of failing to comply with the federal deadlines for terminating the rights of parents deemed unfit.
“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,” Chris Gottlieb, a child welfare scholar and law clinic director at the New York University School of Law, told The Imprint in 2021.
With the recent approval in the appeals court, attorneys for Elisa W. and the others have vowed to continue.
“In addition to the impact this will have on the legal standard for class certification in public interest class actions,” reads a joint statement A Better Childhood released Wednesday along with Antony Ryan of co-counsel firm Cravath, Swaine & Moore, “Today’s decision allows us to continue efforts in this case to improve conditions for approximately 7,000 children in the foster care system in New York City.”
