JA-77
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
MARISOL A., by her next friend, Rev. Dr. James Alexander Forbes, Jr.; LAWRENCE B., by his next friend, Professor Mitchell I. Ginsberg; THOMAS C , by his next friend, Dr. Margaret T. McHugh; SHAUNA D., by her next friend, Professor Kathryn Conroy; OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins; DARREN F. and DAVID F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; BILL G. and VICTORIA G., by their next friend, Sister Dolores Gartanutti; BRANDON H., by his next friend* Thomas J^ Moloney; and STEVEN I., by his next friend, Kevin Ryan, on their own behalf and on behalf of and all others similarly situated,
Plaintiffs,
--against--
RUDOLPH W. GIULIANI, Mayor of the City Of New York; MARVA LIVINGSTON HAMMONS, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York; KATHRYN CROFT, Executive Deputy Commissioner of the City Child Welfare Administration of the City of New York; GEORGE E. PATAKI, Governor of the State of New York; and BRIAN J. WING, Acting Commissioner of the Department of Social Services of the State of New York,
Defendants.

Marisol A. v. Giuliani
CW-NY-001-001
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION 95-Civ.-

IJA-78

TABLE OF CONTENTS

INTRODUCTION

1

JURISDICTION AND VENUE

6

CLASS ACTION ALLEGATIONS

7

PARTIES

10

Named Plaintiffs

10

Defendants

13

STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM

15

LEGAL FRAMEWORK

18

The United States Constitution

19

The Adoption Assistance and Child

Welfare Act of 1980

20

The Child Abuse Prevention and Treatment Act

22

The Medicaid Early and Periodic Screening,

Diagnosis and Treatment Program

23

The Multiethnic Placement Act of 1994

24

The Americans With Disabilities Act and the

Rehabilitation Act of 1973

24

The New York State Constitution

24

The New York State Social Services Law,

Family Court Act and Regulations

25

FACTUAL ALLEGATIONS REGARDING NAMED PLAINTIFFS

27

Marisol A

27

Lawrence B

:

34

Thomas C

38

Shauna D

42

Ozzie E

45

Darren F. and David F

47

i

JA-79

Bill G. and Victoria G

5!

Brandon H

56

Steven 1

59

FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES

62

Protective Services

62

Preventive Services

67

Permanency Planning for Children

69

Assessments and Case Plans

71

Out-Of-Home Placements

73

Services to Foster Children

76

Health Care and Related Services

76

Educational Services

79

Reunification Services

80

Adoption Services

81

Independent Living Services

83

Caseworker Screening, Training,

Retention and Support

84

Monitoring and Supervision of Private Agencies

87

Administrative and Judicial Reviews

90

Information System

91

Ineffective Maximization of Resources

93

Lack of Planning, and Prevailing Priorities

94

HISTORY OF INSTITUTIONAL FAILURE

AND DEFENDANTS' KNOWLEDGE OF THIS FAILURE

96

CAUSES OF ACTION

102

PRAYER FOR RELIEF

107

11

"IT

JA-80
INTRODUCTION 1. This is a civil rights action on behalf of all children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of abuse or neglect and whose status is known or should be known to CWA. Defendants in this action have systematically denied these children their rights under the United States Constitution, federal statutes, the New York State Constitution, state laws and regulations, and the State plans provided to the federal government as a condition of receiving federal funds to support the state's child welfare system. 2. The child protection system supervised and operated by defendants presents the opportunity to help vulnerable children and give them a chance for a decent childhood. Instead, and at great public expense, defendants are producing new generations of young people so damaged by their childhood that they will be unable to function as independent, productive adults. 3. There are now approximately 43,000 children in foster care in New York City. Countless thousands more are the subjects of abuse and neglect allegations. Defendants' failure to protect these children and provide them and their families with appropriate, legally required services has jeopardized their health, education, safety, essential sense of stability and permanency, and developmental well-being. In some instances, as the recent death of Elisa Izquierdo has once again tragically

JA-81
demonstrated, defendants' failures also jeopardize these children's very lives.
4. New York City has perhaps the most dysfunctional child welfare system in the country, despite the fact that New York State spends more per capita than any other state on child welfare and most of this expense is incurred in New York City. Children in need of foster care placement often get turned away at the door, while those children who wind up in placement spend a substantial part of their childhood growing up in government custody.
5. Despite the increasing needs of children, the foster care placement rate in New York City is declining. The average length of stay in foster care for New York City children, however, has increased seventy-five percent since 1988. It is now 4.2 years, as compared to a national average of 1.4 years.
6. As a direct result of defendants' pattern of actions and inactions, New York City's child welfare system is rife with systemic deficiencies that prevent it from meeting constitutional and statutory requirements. Among other failings:
a. defendants fail to appropriately accept reports of child abuse and neglect for investigation;
b. defendants fail to investigate those reports of child abuse and neglect that are accepted in the time and manner required by law;
c. defendants fail to provide mandated preplacement preventive services to enable children at risk of being

JA-82
placed in foster care to remain at home safely with their families whenever possible;
d. defendants fail to provide children in need of foster care placement with the least restrictive, most family-like placements designed to meet their individual needs;
e. defendants fail to provide foster children, their birth families and their foster families with the services necessary to ensure that the children do not deteriorate physically, psychologically, educationally or otherwise while in CWA's custody;
f. defendants fail to provide foster children suffering from disabilities, including but not limited to those with HIV and AIDS, with placements and services appropriate to their individual needs and necessary to allow these children fully to participate in the City's child welfare system;
g. defendants fail to provide foster children with appropriate case management, case plans and the services required by the case plans to ensure that they do not spend their entire childhoods in foster care, but rather are returned home or discharged to alternative permanent placements as quickly as possible;
h. defendants fail to provide children for whom adoption is appropriate with services necessary to ensure
•• i

IJA-83
that they are adopted quickly and do not languish needlessly in foster care;
i. defendants fail to provide teenage children who will leave the foster care system to live on their own with services adequate to prepare them to live independently;
j. defendants fail to provide foster children with the administrative, judicial and dispositional reviews to which they are legally entitled, and with the services ordered at these reviews;
k. defendants fail to provide caseworkers with sufficient training, support and supervision to enable them to serve children and families in accordance with the law and reasonable professional standards; and
1. defendants fail to maintain an adequate information system to monitor, track and plan for children, and to manage the child welfare system in a manner that is both cost effective and complies with the law. 7. There has been extraordinary turnover in both the leadership of the agency and the corps of front-line caseworkers. Many CWA administrators are political appointees who lack the skills, experience and support necessary to engage in appropriate problem-solving or long-term, strategic planning on CWA's behalf. They cannot and do not provide necessary, professional guidance and support to their subordinates. High level city officials have not provided the leadership, support or pressure necessary to ensure that the child welfare system complies with the law and
TT

JA-84
provides adequate protection and services to New York City's most vulnerable children.
8. CWA contracts for the provision of the vast majority of child welfare services with a series of private agencies. While CWA maintains legal responsibility for all children in the child welfare system, it delegates much of the day-to-day provision of services to these agencies. These private agencies are not properly monitored or supervised. Some provide excellent services; others do not. CWA has no consistent, rigorous system for ensuring that agencies are held accountable for providing quality services in accordance with the law. In many instances CWA's own administrative requirements make it impossible for even the most diligent agencies to perform necessary tasks in a manner consistent with reasonable professional standards.
9. In recent years, all of these deficiencies have been repeatedly documented in reports by the New York State Comptroller's Office, the New York City Comptroller's Office, the New York City Office of the Public Advocate, the Child Fatality Review Panel, academicians and various other groups. Defendants have thus long been well aware of their systemic, ongoing failure to adequately serve the children who depend on defendants for their health, their safety, and sometimes for their very lives. Although defendants have from time to time engaged in superficial reform efforts, few if any meaningful changes have resulted. In fact, the lack of even basic reliable data regarding children in the system renders it essentially impossible for defendants to

JA-85
monitor these children and effect essential improvements. The deprivations experienced by New York City's most vulnerable children thus have worsened significantly over time, leading to the desperate conditions prevailing today.
10. And despite the inadequacy of New York City's child welfare system today, current signs portend much worse. CWA's every recent "reform" effort has been aimed -- baldly and exclusively -- not at providing improved services or even at eliminating expensive waste and inefficiency caused by mismanagement, but only at reducing expenditures for vulnerable children and families.
JURISDICTION AND VENUE 11. This is an action pursuant to 42 United States Code § 1983, alleging violations of the United States Constitution, federal statutes, the New York State Constitution, and state statutes and regulations. This court has jurisdiction over the federal claims pursuant to 28 United States Code §§ 1331 and 1343(a)(3), and over the state claims pursuant to the doctrine of pendent, or supplemental, jurisdiction pursuant to 28 United States Code § 1367(a). 12. Venue in this district is proper pursuant to 28 United States Code § 1391(b) because the claims arise in the district. Although the Child Welfare Administration -- the agency most directly responsible for the pattern of failures alleged herein - - i s responsible for children from all five boroughs of New York City, including those boroughs in the Eastern District

JA-86 I
of New York, all of CWA's administrative and managerial functions are operated out of its headquarters, which is located in the Southern District of New York.
CLASS ACTION ALLEGATIONS 13. This action is properly maintained as a class action pursuant to Rule 23 (a) & (b)(2) of the Federal Rules of Civil Procedure. 14. The class is defined as:
All children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA. 15. The plaintiff class is sufficiently numerous. There are approximately 43,000 children in the custody of CWA. Tens of thousands of additional children are victims of alleged child abuse or neglect and are known or should be known to CWA. In fiscal year 1995, more than 75,000 New York City children were the subjects of abuse or neglect allegations. Upon information and belief, in total the class numbers well over 100,000 children. 16. The questions of law and fact raised by the claims of the named plaintiffs are common to and typical of those raised by the claims of the putative class members. Each named plaintiff and each putative class member is in need of child welfare services, must rely on defendants for the provision of those services, and is subject to CWA's systemic deficiencies. 17. Common questions of fact include:

1 JA-87
a. whether defendants fail to accept reports of child abuse and neglect for investigation as required by law;
b. whether defendants fail to investigate reports of child abuse and neglect in the manner and within the time periods required by law;
c. whether defendants fail to offer legally mandated services to children at risk of foster care placement to avert that risk;
d. whether defendants fail to provide children in their custody with safe, secure foster care placements that comply with national standards, as required by law;
e. whether defendants fail to provide foster children with legally required services necessary to prevent them from deteriorating physically and psychologically while in state custody, including but not limited to appropriate medical and educational services;
f. whether defendants fail to provide foster children with disabilities with placements and services appropriate to their particular needs, as required by law; and
g. whether defendants fail to create and implement appropriate, legally mandated plans for children to assure their proper care and their prompt placement in permanent homes. 18. Common questions of law include:

JA-88 1
a. whether defendants' actions and inactions violate plaintiffs' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
b. whether defendants' actions and inactions violate plaintiffs' rights under the Adoption Assistance and Child Welfare Act of 1980, 42 United States Code §§ 620-628, 670679a; the Child Abuse Prevention and Treatment Act, 42 United States Code §§ 5101-5106a; the Early and Periodic Screening, Diagnosis and Treatment program of the Medicaid Act, 42 United States Code §§ 1396a, 1396d(a) & (r); the Multiethnic Placement Act of 1994, 42 United States Code § 622(b)(9); the Americans with Disabilities Act, 42 United States Code §§ 12101 et. seq. ; and the Rehabilitation Act of 1973, 29 United States Code § 794, 794a; and
c. whether defendants' actions and inactions violate plaintiffs' rights under Article XVII of the New York State Constitution; the New York State Social Services Law, Articles 2, 3, 6 & 7; the New York State Family Court Act, Articles 6 & 10; and applicable State regulations codified at 18 N.Y.C.R.R., §§ 400-484. 19. The legal violations alleged by the named plaintiffs are typical of those raised by the claims of each and every member of the putative class. The harms suffered by the named plaintiffs are typical of the harms suffered by all children similarly situated.

JA-89
20. The named plaintiffs will fairly and adequately protect the interests of the class. They are represented by attorneys employed by Children's Rights, Inc., a privately-funded, nonprofit organization (formerly the Children's Rights Project of the American Civil Liberties Union) with extensive experience in complex class action litigation involving child welfare systems, and by attorneys employed by Lawyers for Children, Inc., a nonprofit organization with extensive experience representing thousands of individual New York City foster children each year. Plaintiffs' counsel have the resources, expertise and experience to prosecute this action. Each named plaintiff child appears by a next friend, and each next friend is sufficiently familiar with the facts and circumstances of the child's situation to represent the child's interests in this litigation.
21. Defendants have acted or refused to act on grounds generally applicable to the class, making declaratory and injunctive relief with respect to the class as a whole appropriate and necessary. Counsel for the plaintiffs know of no conflicts among members of the class.
PARTIES Named Plaintiffs 22. Plaintiff MARISOL A.1 is a five-year-old girl who entered foster care a few months after her birth, and has

1

To protect their confidentiality, the plaintiff

children in this action appear by pseudonym.

10

JA-90
remained in foster care for much of her life. She is in CWA's custody, and resides in a foster home.
23. Marisol appears in this action by her next friend, Rev. Dr. James Alexander Forbes, Jr. Reverend Forbes is the Senior Minister of The Riverside Church in Manhattan.
24. Plaintiff LAWRENCE B. is a seventeen-year-old boy who entered foster care in January, 1995. He is in CWA's custody and has been placed in a group home, but is now an in-patient at Beth Israel Medical Center where he is being treated for AIDS-related illnesses.
25. Lawrence appears in this action by his next friend, Mitchell I. Ginsberg, Professor and Dean Emeritus of the Columbia University School of Social Work.
26. Plaintiff THOMAS C. is a fifteen-year-old boy who has been in foster care since the age of seven. He is in CWA's custody, and has been placed in a group home.
27. Thomas appears in this action by his next friend, Dr. Margaret T. McHugh. Dr. McHugh is a Clinical Associate Professor of Pediatrics at the New York University School of Medicine, and the Director of Adolescent Ambulatory Services and the Child Protection Team at Bellevue Hospital Center.
28. Plaintiff SHAUNA D. is a two-year-old girl, about whom CWA has received an abuse and neglect complaint that the agency has failed to investigate.
29. Shauna appears in this action by her next friend, Professor Kathryn Conroy. Professor Conroy is Assistant Dean and
11
"in

IJA-91
Director of Field Work at the Columbia University School of Social Work.
30. Plaintiff OZZIE E. is a fourteen-year-old boy who entered foster care in April, 1995. He is in CWA's custody, and now resides in a group home.
31. Ozzie appears in this action by his next friends, Jill Chaifetz and Kim Hawkins. Ms. Chaifetz is the Legal Director, and Ms. Hawkins is a Staff Attorney, at The Door -- A Center of Alternatives, a multi-service center for youth in Soho.
32. Plaintiff DARREN F. is a seven-year-old boy who has been in foster care for virtually his entire life. He is in the custody of CWA, and is now in a residential treatment center.
33. Plaintiff DAVID F., Darren F.'s twin brother, has also spent most of his life in foster care. He is in the custody of CWA, and is in the same residential treatment center as his twin brother.
34. Darren and David appear in this action by their next friends, Juan A. Figueroa and Reverend Marvin J. Owens. Mr. Figueroa is President and General Counsel of the Puerto Rican Legal Defense and Education Fund, and Reverend Owens is the Minister of the Williamsburg Christian Church in Brooklyn.
35. Plaintiff BILL G. is a fourteen-year-old boy who has spent virtually his entire iife in foster care. He is now in the custody of CWA, and lives in a foster home.
36. Plaintiff VICTORIA G., who is Bill G.'s sister, is a ten-year-old girl who also has spent virtually her entire life in
12

IJA-92
foster care. She is in the custody of CWA, and lives in the same foster home as her brother Bill.
37. Bill and Victoria appear in this action by their next friend Sister Dolores Gartanutti. Sister Gartanutti the founder and Director of Noah's Ark, an emergency shelter for adolescent youth in Ozone Park, Queens, and Vice-President of the Empire State Coalition of Youth and Family Services.
38. Plaintiff BRANDON H. is a seven-year-old boy who has lived his entire life in foster care. He is in the custody of CWA, and lives in a foster home.
39. Brandon appears in this action by his next friend, Thomas J. Moloney. Mr. Moloney is a partner in the law firm of Cleary, Gottlieb, Steen & Hamilton, and the Chairman of the Committee on Legal Assistance of the Association of the Bar of the City of New York.
40. Plaintiff STEVEN I. is a sixteen-year-old boy who has lived his entire life in foster care. He is in the custody of CWA and is assigned to a group home, but is now living primarily on the streets.
41. Steven appears in this action by his next friend, Kevin Ryan. Mr. Ryan is the Deputy Director of the Legal Services Office at Covenant House, a shelter for homeless and runaway youth.
Defendants 42. Defendant RUDOLPH W. GIULIANI is the Mayor of the City of New York, and is sued in his official capacity. He is
13

JA-93 I
responsible for ensuring that all New York City agencies comply with all applicable federal and state law, pursuant to the Charter of the City of New York, Ch. 1, §§ 3 & 8.
43. Defendant MARVA LIVINGSTON HAMMONS is the Administrator of the Human Resources Administration and the Commissioner of Social Services of the City of New York, and is sued in her official capacities. She is responsible for the welfare of all children in need of public assistance, care, support or protection who reside in New York City; for overseeing the administration of CWA; and for ensuring compliance by the New York City Human Resources Administration ("HRA"), by CWA, and by the private agencies with which CWA contracts with all applicable federal and state law, pursuant to the Charter of the City of New York, Ch. 24, §§ 603-604, and New York City Executive Order No. 82 (1985).
44. Defendant KATHRYN CROFT is the Executive Deputy Commissioner of the New York City Child Welfare Administration, and is sued in her official capacity. She is responsible for CWA's policies, practices and operation, and for ensuring that CWA and the private agencies with which it contracts comply with all applicable federal and state law.
45. Defendant GEORGE E. PATAKI is the Governor of the State of New York, and is sued in his official capacity. He is responsible for ensuring that government agencies in the state, including the Department of Social Services, comply with all applicable federal and state law, pursuant to Article IV, § 3 of
14

I JA-94
the New York State Constitution and New York State Executive Law § 6.
46. Defendant BRIAN J. WING is the Acting Commissioner of the New York State Department of Social Services, and is sued in his official capacity. He is responsible for the policies, practices and operation of the New York State Department of Social Services ("DSS"), and for ensuring DSS's compliance with all relevant federal and state law, pursuant to New York State Social Services Law §§ 11, 12 & 17.
STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM
47. New York City's child welfare system has an unusually complex structure involving the City, the State and numerous private agencies.
48. Children in foster care in New York City are in the legal custody of the New York City Commissioner of Social Services, who delegates her authority over them to CWA.2 CWA, in turn, assigns the majority of these children's day-to-day care to a group of approximately seventy private, "voluntary" agencies. However, by law, CWA always maintains legal custody and legal responsibility for all foster children, and the private

2

It is common practice in New York City to refer to

foster children as being "in the custody of CWA." As CWA itself

follows this practice, this complaint will as well.

15

1JA-95 1

agencies act as CWA's agents in executing CWA's responsibilities to the children and their families.3
49. Most children enter the foster care system after a family court finds, pursuant to Article 10 of the Family Court Act, that the child is in danger of abuse or neglect if left with his/her family. Additionally, some children are voluntarily placed in foster care by their parents. This voluntary placement must be approved by the family court, and once in care these children's status and treatment does not differ significantly from that of children placed as a result of an Article 10 proceeding.
50. Once in foster care, most children are placed, by CWA, with a voluntary agency. That agency, in turn, places the children in either a foster home (which is the least restrictive, most family-like setting), a group home or a residential treatment center ("RTC"). The latter are the most restrictive settings, properly reserved only for older children with severe behavioral problems.
51. For those foster children whom CWA places with private agencies, the agency assumes "case planning" responsibility for

3

Both New York State, through its Department of Social

Services ("DSS"), and HRA have legal responsibility for

overseeing CWA to ensure that CWA complies with all applicable

federal and state laws. Moreover, DSS has a further

responsibility to ensure that CWA complies with all elements of

the state plans which DSS signs as a condition of receiving child

welfare funds from the United States Department of Health and

Human Services. The State also provides funding to the City

which is spent on child welfare services.

16

JA-96
the child. As part of this responsibility, the agency must complete case plans -- known as uniform case records, or "UCRs" -- for each child, describing the child's status, the child's physical and mental health needs, and whether the child's permanency goal is family reunification, adoption or independent living. The agency case plan must also list the services necessary to meet the needs identified in the UCRs, as well as services necessary to help the child achieve his/her permanency goal. Finally, the agency must provide, or ensure the provision of, all the services deemed necessary in the case plan.
52. CWA maintains "case management" responsibility for these children. Such responsibility includes: reviewing the UCRs to make sure they are properly and professionally completed; ensuring that each child has an appropriate permanency goal, and is making progress toward that goal; overseeing and supervising the private agencies to ensure that all necessary services are actually being provided; and ensuring that agency activities conform with applicable laws and regulations.
53. In addition to children whom CWA places with private agencies, CWA also provides foster care directly for approximately 12,000 children, through its Division of Foster Care Services ("DFCS"). In such cases, CWA has both case planning and case management responsibility.
54. Finally, throughout every child's stay in foster care, the child's status must be periodically reviewed to ensure that the child is not lost in the system or allowed to drift without
17
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1JA-97
progress towards a permanency goal. CWA is obligated to schedule administrative and judicial reviews for this purpose, and to provide information sufficient to support reasoned decision-making at the hearings.
55. Beyond caring for foster children, both the City and State have certain legal obligations to protect all New York City children from abuse and neglect. To this end, DSS is legally required to maintain a telephone "hotline" for receiving allegations of child abuse or neglect. CWA, in turn, is legally mandated to commence an investigation of such reports within twenty-four hours, to complete an initial investigation within seven days, and to complete a full investigation within sixty days.
56. When reports of suspected abuse or neglect are found to be "indicated" -- i.e., when some credible evidence of the alleged abuse or neglect exists -- CWA must either provide necessary services to the family to enable the child to safely remain at home, or, when that is not appropriate, must remove the child from the home and place the child in foster care.
LEGAL FRAMEWORK 57. Plaintiffs allege that defendants are violating their rights under the First, Ninth and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980 ("Adoption Assistance Act"), 42 United States Code §§ 620-27, 670-79a; the Child Abuse Prevention and Treatment Act ("CAPTA"), 42 United States Code §§ 5101-06a; the Early and
18

I JA-98
Periodic Screening, Diagnosis and Treatment ("EPSDT") program of the Medicaid Act, 42 United States Code §§ 1396a, I396d(a) & (r); the Multiethnic Placement Act of 1994, 42 United States Code § 622(b)(9); the Americans with Disabilities Act ("ADA"), 42 United States Code §§ 12101 et sea.; the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 United States Code § 794, 794a; Article XVII of the New York State Constitution; New York State Social Services Law, Articles 2, 3, 6 & 7; the New York State Family Court Act, Articles 6 & 10; the state regulations governing the child welfare system, 18 N.Y.C.R.R., §§ 400-484; and the state plans provided to the federal Department of Health and Human Services as a condition of receiving federal funds for the operation of New York State's child welfare program, of which New York City's child welfare program is a part.
58. Taken together, these statutes and constitutional standards establish a broad range of specific duties that must be followed by defendants in administering New York City's child welfare system.
The United States Constitution 59. The Fourteenth Amendment of the United States Constitution guarantees to each child in state custody the right to be free from harm. That right encompasses the right to treatment in accordance with reasonable professional standards, and the right to the services necessary to prevent children from deteriorating physically, psychologically or otherwise while in state care, including but not limited to safe, secure foster care
19

JA-99
placements, appropriate monitoring and supervision, case planning and management, permanency planning and medical, psychiatric, psychological and educational services.
60. The First and Ninth Amendments guarantee the rights to privacy and family integrity, and grant children the right not to be removed from their families absent a showing of compelling necessity.
The Adoption Assistance and Child Welfare Act of 1980 61. The federal Adoption Assistance Act requires defendants to implement and operate in New York City:
a. a preplacement preventive services program designed to help children remain with their families, when appropriate;
b. a service program designed to help children, when appropriate, return to the families from which they have been removed, and when this is not possible to be placed for adoption or legal guardianship; and
c. an information system from which the status, demographic characteristics, location and goal of every foster child can readily be determined. 62. The Adoption Assistance Act and relevant regulations further require that defendants take the steps necessary to ensure that:
a. foster family homes and child care institutions are licensed, relicensed and operated in conformity with appropriate national standards;
20

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b. each child in need of a foster care placement is placed in the least restrictive, most family-like setting available, consistent with her best interests and individual needs;
c. each foster child is provided with a written case plan, containing specified elements, that is reviewed and updated at specified intervals, and that services are provided in accordance with that plan;
d. each foster child receives proper care while in state custody and that she, her parents and her foster parents receive the services necessary to address her needs and to assure her return home or her referral to an alternative permanent placement;
e. the status of each foster child is reviewed once " every six months either administratively or judicially to
determine the continuing necessity for and appropriateness of placement, the extent of compliance with the child's case plan and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care; and
f. each foster child receives a dispositional hearing by a family court no later than 18 months after her original placement and periodically thereafter to determine and evaluate the status of and plan for the child. 63. Under the Adoption Assistance Act, states receive certain federal reimbursements so long as they have a plan
21

JA-101 I
approved by the federal Department of Health and Human Services and comply with its terms. The State of New York receives federal funding under the Act and has submitted such a plan, certifying to the federal government that it provides the child welfare services required by the Act. Children eligible for those child welfare services are the intended beneficiaries of the State plan.
64. The Plan incorporates provisions of the New York State Social Services Law, the New York State Family Court Act, and each statute's implementing regulations. These incorporated provisions have the force of law and are binding on DSS, HRA and CWA.
The Child Abuse Prevention and Treatment Act 65. The federal Child Abuse Prevention and Treatment Act requires that defendants take the steps necessary to ensure, among other things, that:
a. a system is in place to receive allegations of suspected child abuse or neglect;
b. reports of suspected child abuse or neglect are investigated promptly, and immediate steps are taken to protect abused or neglected children and children in danger of abuse or neglect; and
c. DSS, HRA and CWA have in effect the procedures, training, personnel programs, services and facilities to adequately address cases of child abuse and neglect.
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66. New York State receives federal fundirg under this statute, and both the State and New York City are bound by its

terms.

The Medicaid Early and Periodic Screening. Diagnosis and Treatment Program

67. The Early and Periodic Screening, Diagnosis and Treatment ("EPSDT") portion of the federal Medicaid Act is designed to ensure that all Medicaid-eligible children up to the age of twenty-one receive comprehensive physical, developmental and mental health care. All foster children in New York City are eligible for Medicaid, and are therefore entitled to receive the comprehensive health care required by the EPSDT program.
68. And because foster children are in the legal custody of CWA, it is CWA's obligation to ensure that these children actually receive the full panoply of health services under EPSDT, including but not limited to:

a. periodic comprehensive health screenings, at ageappropriate intervals deemed proper by a board of medical professionals, including general physical examinations, eye examinations, dental examinations, hearing examinations, lead blood tests, vaccinations or boosters, and mental health examinations, all performed by competent medical professionals; and
b. any and all follow-up physical or mental health service or treatment deemed necessary to treat or address any condition diagnosed at any periodic screening, performed in a timely manner by competent medical professionals,

23

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JA-103
regardless of whether any such treatment or service is otherwise covered by the New York State Medicaid plan.
The Multiethnic Placement Act of 1994 69. The Multiethnic Placement Act of 1994 requires that public agencies engage in aggressive efforts to recruit potential foster and adoptive parents who reflect the racial and ethnic diversity of the children for whom such foster and adoptive placements are needed.
The Americans with Disabilities Act and The Rehabilitation Act of 1973
70. The Americans with Disabilities Act ("ADA") and section 504 of the Rehabilitation Act of 1973 prohibit discrimination against individuals with handicaps or disabilities in federally funded programs. These laws require that programs such as child welfare and foster care programs be administered to enable children with handicaps or disabilities to participate' fully in, and receive all the benefits of, the programs. The protections of the ADA extend not only to children with physical disabilities, but also to children with mental health problems, or cognitive medical disabilities, including children with AIDS.
The New York State Constitution 71. Article XVII of the New York State Constitution guarantees the right to appropriate aid to all persons in New York State deemed to be "needy," and the right of all persons so designated to not have this aid arbitrarily or capriciously denied. Abused or neglected children and foster children are
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needy, and are thus entitled to a variety of services delineated in New York State statutes and regulations.
The New York State Social Services Law, Family Court Act and State Regulations 72. State law pertaining to the provision of child welfare services is set forth in the New York State Social Services Law, the New York State Family Court Act, and applicable regulations. These laws require, among other things, that defendants take the steps necessary to: a. operate a system for receiving allegations of child abuse or neglect; initiate investigations into reports of child abuse and neglect within twenty-four hours; conduct a full investigation, including a home visit with a face-toface interview with the child, and obtain information from collateral sources such as schools, hospitals, police and social service agencies; complete a preliminary written report within seven days to determine whether the child is in immediate danger of serious harm; make a final determination within sixty days as to whether the allegation is indicated or unfounded; b. take a child into protective custody if the child is determined to be in imminent danger, and initiate a judicial proceeding by the next business day; c. provide each child determined to be eligible for pre-placement services, or services while in foster care, with a comprehensive needs assessment and service plan (commonly known as a uniform case record or "UCR"),
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including an initial risk assessment and service plan with all required elements within thirty days from the case initiation date, a comprehensive assessment and service plan with all required elements within ninety days from the case initiation date, and a reassessment and service plan review with all required elements within six months from the case initiation date and every six months thereafter;
d. identify and provide each child and family with services in accordance with the child's comprehensive assessment and service plan, including but not limited to case planning and case management services, casework contacts, day care services, homemaker services, family planning services, home management services, clinical services, parent aide services, parent training services, transportation services, emergency cash services, emergency shelter services, housing services, and intensive family preservation services;
e. ensure that the type or level of foster care placement in which a child resides is appropriate to the individualized needs of the child and family;
f. adequately investigate potential foster homes in the manner required by law before granting licenses or certificates to foster parents and placing children in their homes, and appropriately evaluate and review the foster homes and families before renewing their licenses or certificates;
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g. supervise, visit and inspect foster homes on a regular basis after licensing them;
h. ensure that all foster children achieve permanency either by being returned to their families at the earliest date on which it is safe to do so, or, when reunification is not appropriate, by terminating parental rights and arranging for adoption as soon as possible;
i. provide children placed in foster care pursuant to FCA Article 10, with periodic judicial reviews at least every twelve months; provide children voluntarily placed in foster care with reviews at least every 18 months; provide children who have been freed for adoption and placed in a pre-adoptive home unit for whom no adoption petition has been filed with reviews at least every twelve months; provide children who have been freed for adoption but not placed in prospective adoptive homes with reviews every six months; provide all foster children with the dispositional hearing required by federal law within 18 months after entering placement; and
j. promulgate the policies and secure the personnel necessary to fulfill all federal and state mandates in accordance with reasonable professional standards.
FACTUAL ALLEGATIONS REGARDING NAMED PLAINTIFFS Marisol A.
73. Plaintiff Marisol A., who is five years old, spent several months of her life locked in a closet, so badly starved
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that she ate her own feces, black plastic bags and a cardboard shoebox. Her mother let her out of the closet to administer beatings which knocked out her front teeth and fractured a tibia, and to burn her with cigars and scalding water. All of this abuse occurred despite multiple reports to CWA of Marisol's dire condition. CWA failed to respond to these reports of suspected abuse as required by applicable law and reasonable professional standards.
74. Marisol was born on August 15, 1990, only two days after her mother, Ms. A., was arrested on charges of drug dealing. Due to her incarceration, Ms. A. made arrangements for a neighbor, Ms. C , to take informal custody of Marisol until her release.
75. Although this was intended to be a temporary arrangement while Ms. A. remained in jail, upon her release Ms. A. decided that she did not wish to resume custody of Marisol, and voluntarily signed her into foster care. As a result, Ms. C. applied for, and received, certification as a foster parent. Marisol remained in Ms. C's home from August 23, 1990, until February, 1994.
76. During her three and one-half years in Ms. C.'s care, CWA's permanency goal for Marisol was reunification with her mother. CWA maintained this goal without any reasonable basis to believe that such a goal was appropriate for Marisol or in her best interest, and took no steps to implement the goal. CWA never sought or obtained Ms. A's cooperation or participation in
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planning for Marisol. In fact, Ms. A. and her boyfriend were still dealing drugs in their home. And although Ms. A. and Ms. C lived in the same neighborhood, Ms. A visited Marisol only eight times during the entire three and one-half years of her first placement, and only at the insistence of Ms. C. Ms. A. missed several of Marisol's birthday parties, despite Ms. C's repeated invitations. CWA knew or should have known all of this.
77. At this point, there were adequate legal grounds for CWA to file a petition seeking termination of Ms. A.'s parental rights, but CWA did not do this, and failed to take any reasonable steps to reassess the appropriateness of Marisol's permanency goal of reunification.
78. At some point during Marisol's placement, Ms. A. decided to seek the child's return, though she told her sister and others that she did not love Marisol.
79. In January, 1994, CWA allowed Ms. A. to have weekend visits with Marisol. After every visit, Marisol returned to Ms. C ' s home filthy and unfed. She reported that there was no bed for her to sleep on in Ms. A.'s apartment, and that there was a lot of violence in the house. Police officers were sent to Ms. A.'s home on several occasions to settle domestic disputes. Despite being informed about this by Ms. C , Marisol's CWA caseworker failed to investigate Ms. A.'s home or to reevaluate the appropriateness of unsupervised visits. Instead, the caseworker merely told Ms. C. that this was not her concern.
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80. In February, 1994, CWA returned Marisol to Ms. A.'s custody without conducting a reasonable investigation to determine whether she would be safe or whether Ms. A. could provide adequate care and supervision for her. CWA had reason to believe that Ms. A. and her live-in boyfriend were still dealing drugs in the home, and that Ms. A. had severe psychiatric problems. Ms. A.'s sr.ster reported that Ms. A. had a long history of "bizarre behavior," including eating cigarette butts and running naked through the streets. CWA nonetheless discharged Marisol to Ms. A.'s home, and failed to provide any counseling or other services to the family. Instead, although CWA knew or should have known of Ms. A.'s drug dealing and troubled history, CWA took no steps to supervise or monitor Ms. A.'s home to ensure that Marisol was safe and being adequately cared for.
81. Eight days after the discharge, Ms. A. brought Marisol to St. Luke's Hospital with vaginal bleeding and infection. St. Luke's then mistakenly called Ms. C , her former foster mother, to question her about these injuries. Fearing for Marisol's safety, Ms. C. wrote a letter to -a CWA supervisor on April 1, 1994, reporting that Marisol was at risk of being abused or neglected. CWA did not investigate these allegations, and did not follow up on the report that Marisol had been hospitalized for vaginal bleeding. Instead, CWA wrote to Ms. C. stating that they had met with Marisol at the field office, had spoken with
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her mother, and had concluded that both mother and daughter were "adjusting well" to the situation.
82. In October, 1994, Ms. A.'s own sister reported to CWA that Ms. A. was abusing Marisol. Again, CWA failed to conduct an adequate investigation of the allegation. When a child protective services worker finally visited the A. home, Ms. A. stated that Marisol was not available because she was visiting relatives in the Dominican Republic. Rather than confirm the truth of the story, the protective service worker left without seeing Marisol, and concluded that the allegation was unfounded.
83. But Marisol was not in the Dominican Republic. She was locked in a closet.
84. Marisol spent several months confined by her mother in a closet, until she was discovered in May, 1995. Her discovery came not by CWA, but through the chance arrival of a housing inspector. This inspector saw an older boy run up and hit her on the head with full force. The inspector became suspicious when he noticed that Marisol did not react to this abuse with a shout or a cry, but merely blinked. Recognizing the signs of abuse from his previous career as a police officer, the housing inspector immediately notified the police.
85. When police officers arrived at Ms. A.'s apartment, they found a four-year-old girl lying naked beneath a urinesoaked sheet, shell-shocked from living in a closet, and starved so severely that her stomach was distended. When subsequently given a laxative to cleanse her system, Marisol excreted pieces
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of black plastic bags, and it was later revealed that she had been forced to eat her own feces, garbage bags and cardboard boxes in order to survive.
86. Doctors at Harlem Hospital reported that Marisol was so severely abused that "no part of her body [was] unmarked." She had a splintered tibia; bruises covered most of her body; her front teeth were knocked out; she had been sexually molested; her feet "looked cooked" because of the boiling water that had been poured onto her; much of her body was covered with burns from cigars; and she had been pulled by her head so hard that large clumps of hair were missing. It was later reported that the housing inspector and police officers had rescued Marisol in the nick of time, as "her body couldn't take any more."
87. Ms. A. and her boyfriend were indicted on charges of first degree assault and endangering the welfare of a child.
88. In May, 1995, upon Marisol's release from Harlem Hospital, Ms. C. took custody of her and was recertified as her foster parent. Marisol was so disfigured by her abuse that Ms. C. -- who had raised the little girl for more than three years -could barely recognize her.
89. Ms. C. has informed CWA that she is anxious to adopt Marisol. However, CWA has not informed Ms. C. of Marisol's permanency planning goal, and has taken no steps to initiate the home study to determine whether Ms. C. can be approved as a preadoptive parent. Because CWA has not begun the process of terminating Ms. A.'s parental rights and freeing Marisol for
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adoption, Marisol remains in jeopardy of being returned to her mother or removed from the foster family that has provided the only safety and stability she has ever known. Upon information and belief, CWA has neither developed nor begun the implementation of a permanency plan that complies with reasonable professional standards for this already damaged child.
90. In addition to her severe physical injuries, Marisol has also suffered significant psychological trauma, and currently needs intensive counseling and other support services. Although Ms. C. began requesting that CWA provide her with a Medicaid card for Marisol in May, 1995, she only recently received one. Moreover, CWA has failed to ensure that Marisol receives counseling necessary to address the sexual trauma she endured while in her mother's home. As a result, Marisol exhibits behavior and language inappropriate for a child her age.
91. Defendants have violated Marisol's constitutional and statutory rights by failing to protect her from harm; by failing to investigate reports of suspected abuse or neglect as required by law and reasonable professional standards; by failing to provide services and supervision necessary to support and/or monitor her discharge from foster care; and by failing to develop and implement an appropriate permanency plan.
92. As a result of the defendants' actions and inactions, Marisol has been and continues to be irreparably harmed. Marisol and her foster family do not know whether her goal is adoption or
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reunification with her mother, and as a result she lives in a constant state of terrifying uncertainty. Lawrence B.
93. Plaintiff Lawrence B. is in the final stages of AIDSrelated illness. Despite this fact, CWA has consistently failed to provide him with an appropriate placement, to ensure that he receives necessary services, or to do anything to help this young man cope with his life-threatening illness.
94. In fact, CWA is either so oblivious or so indifferent to Lawrence's needs that, in documents which CWA recently filed with the court, CWA described Lawrence as doing well and recommended that he receive training in preparation for a transition to independent living.
95. Lawrence first entered the foster care system pursuant to a voluntary agreement signed by his aunt on January 26, 1995, when he was seventeen years old. His mother had died of AIDS in or around 1985, and his father had died years before of unknown causes. Lawrence's aunt, his primary caretaker, could no longer care for him.
96. CWA failed to offer services so Lawrence could remain with his aunt and, after assuming custody of Lawrence, failed to properly evaluate his medical needs in a timely fashion. Despite clear indication that he was ill, CWA did not secure a complete medical assessment for nearly two months. In fact, Lawrence was severely ill with AIDS. The absence of a proper assessment made
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it impossible for CWA to obtain a suitable placement which could provide for Lawrence's individualized needs.
97. Lawrence was initially placed in a diagnostic facility. Although such facilities are intended to be temporary placements for ninety-day diagnoses, CWA left Lawrence at this diagnostic center for seven months, although CWA knew or should have known that this placement was inappropriate for him. While at this facility, Lawrence was permitted to miss school classes and stay out with his peers -- where his medical condition could not be monitored or treated. As a result of the absence of adequate supervision, Lawrence's condition may have deteriorated more quickly than it would have if he had been in an appropriate placement.
98. Sometime in August, 1995, CWA attempted knowingly to place Lawrence in an inappropriate group home which did not have a medical staff to provide the type of supervision which he needed. At no time during its discussions with the potential placement agency did CWA mention that Lawrence had AIDS. When the agency specifically asked for Lawrence's medical records, CWA stated that it did not have these records, and withheld crucial information. The potential placement subsequently fell through.
99. On or about September 1, 1995, CWA transferred Lawrence to a private agency group home for teens whose goal is independent living. In transferring Lawrence's case to this agency, CWA sent the agency inaccurate medical records indicating that Lawrence was completely healthy.
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100. In a letter dated September 19, 1995, to Craig Longley, Assistant Deputy Commissioner of CWA, the Associate Executive Director of the private agency stated that in transferring Lawrence's case a CWA case manager handed a package of medicine to an agency employee and "indicated that the medicine was for the youngster's ear infection and that he was also taking calcium pills." No other substantive medical information was provided regarding Lawrence. "We are extremely concerned," the letter continued, "that our agency was not provided with adequate medical information about the health status of this youngster which could have seriously compromised his health . . . ."
101. CWA knew or should have known that this agency did not have the capability to supervise children with symptomatic AIDS. Even when the agency notified CWA that it could not provide for Lawrence's increasing medical needs, and that he needed hospice care, CWA failed to transfer Lawrence to an appropriate placement. Instead, CWA merely told the agency that the group home staff should take Lawrence to the hospital when necessary.
102. Despite his severe medical condition, CWA continues to ignore Lawrence's medical needs.
103. Lawrence has been hospitalized intermittently for AIDSrelated illnesses since being placed at the group home. Rather than transferring him to a hospice that could provide him with the services he desperately needs, CWA continues to insist that Lawrence be returned upon each discharge from the hospital to the group home which cannot meet his needs.
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104. CWA has neglected to ensure that Lawrence is provided with necessary psychological services. Because the group home is not accustomed to handling children in Lawrence's condition, it has failed to provide Lawrence with counseling to prepare him for the next phase of his illness. As a result, Lawrence is still in partial denial, and, sadly, has been unable to pursue the issues of closure that are associated with terminal illness.
105. CWA has also failed to develop a case plan for Lawrence that has any relevance to his condition or his individual needs. In a recent petition for review of his foster care status, CWA recommended that foster care be continued in the current placement, because "[c]hild is doing well in agency's group home" and is receiving "vocational planning for discharge to independent living." The petition contains absolutely no mention of his severely deteriorating health. In fact, Lawrence's medical status is now so grave that he will never be capable of living on his own - - a fact CWA cruelly ignores.
106. Lawrence will soon reach his eighteenth birthday, and CWA still maintains a goal of "independent living" for him which could result in his being left to die on the streets or, at best, to spend his remaining days in a group home which has admitted that it cannot provide him with the level of medical care and counselling he requires.
107. Defendants have violated Lawrence's constitutional and statutory rights by failing to protect him from harm; by failing to provide him with proper care, even though CWA knew that he was
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not receiving adequate care; by failing to provide an appropriate placement and sufficient services; by failing to conduct an adequate assessment to determine whether placement in the group home was appropriate; by failing to develop and implement an appropriate case plans that contain the required elements, in accordance with the law and reasonable professicnal standards; and by failing to implement the case plan.
108. As a result of defendants' actions and inactions, Lawrence has been and continues to be irreparably harmed and deprived of an opportunity to spend his remaining days in an appropriate environment which can stabilize his medical condition and provide for his emotional needs. Thomas C.
109. Plaintiff Thomas C. is fifteen years old and has been in foster care since the age of seven. Defendants have failed -and are continuing to fail -- to take necessary steps to provide Thomas with a permanent home and a way out of foster care. Moreover, they have failed even to ensure Thomas's physical safety while in foster care, and, in the past eight years, Thomas has been repeatedly physically and sexually abused.
110. Thomas was born on March 21, 1980. His mother was a drug abuser who was unable to care for him, and during his first two years of life Thomas lived with numerous caretakers. At the age of two, Thomas went to live with his grandmother, but three years later his mother forcibly took him back. For the next year-and-a-half, Thomas lived with his mother in squalid
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conditions, where he was physically and psychologically abused. Thomas's grandmother ultimately regained custody of Thomas, but, unable to care for him, on July 22, 1987, she placed him in foster care.
111. CWA failed to provide an appropriate placement or develop an adequate plan for Thomas. Instead, over the next two years Thomas was moved through four placements, including a diagnostic center and Bel'levue Hospital, where - - a t the age of seven - - h e was treated for suicidal ideation.
112. On July 25, 1989, CWA placed Thomas at a residential treatment center ("RTC"). CWA still failed to develop an adequate plan for Thomas or to take any steps to secure a permanent placement for him. Although it was clear that Thomas's mother would never be able to provide a home for him, CWA did not ensure that necessary steps were taken to free Thomas for adoption, or to seek an adoptive home for him in a timely manner. Indeed, Thomas's parents' rights were not terminated until July 31, 1993, a full six years after he entered foster care. And even then, CWA failed to take any steps to seek or secure a permanent home for Thomas.
113. During his time at the RTC, Thomas became friendly with a minister, Reverend D., who was employed there. In 1993, Reverend D. moved to South Carolina and offered to take Thomas with him. In the absence of any alternative placement for Thomas, CWA approved Thomas's placement with Reverend D., and Thomas was sent to South Carolina. Upon information and belief,
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CWA did not ensure that the mandates of the Interstate Compact on the Placement of Children were followed.
114. After Thomas was transferred to the home of Reverend D., CWA failed to ensure that Thomas's placement was properly monitored, although Thomas remained in CWA's legal custody and such monitoring is legally required. CWA also failed to ensure that South Carolina officials were supervising the placement, as required by the Interstate Compact. Reverend D. was failing to return telephone calls from caseworkers at Thomas's New York RTC, was not cooperating with the RTC, and would not confirm that he had obtained necessary counseling for Thomas -- all of which was or should have been known to CWA. CWA took no steps to determine whether the placement was appropriate, or whether Thomas was even safe.
115. In fact, Thomas was being sexually abused by Reverend D. CWA only learned of this fact when Thomas ran away to the police, who confirmed his allegation and returned him to the RTC in New York on June 9, 1994.
116. As a result of all he has experienced, and the lack of stability and permanence in his life, Thomas has experienced -and continues to experience -- severe, multiple problems since his return to the RTC. The R T C s records indicate that he has been physically threatened and attacked by other boys, and that on two occasions he has attempted suicide by jumping off the roof of a building. But CWA has taken no steps to determine whether the RTC is an appropriate placement for Thomas. And although
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Thomas is legally freed for adoption, CWA has taken no steps to seek or secure an appropriate adoptive home for him.
117. Earlier this year, Thomas ran away from the RTC. He lived in various locations -- including sleeping on the roofs of buildings -- and ultimately ended up living with a drug dealer and the dealer's girlfriend. The drug dealer physically abused Thomas, who subsequently returned to the RTC, walking all the way from Greenwich Village to the RTC in Westchester County.
118. Although Thomas now has severe psychological problems, he is reluctant to participate in counseling at the RTC because he fears that his problems would not be held in confidence and believes that the staff and residents already know about his sexual abuse in South Carolina. Although the RTC has been ordered by the family court to provide counseling from an outside agency for Thomas, it has failed to do so, and CWA has taken no steps to ensure that such counseling is provided to this desperately unhappy and possibly suicidal young man.
119. The defendants have violated Thomas's constitutional and statutory rights by failing to protect him from harm; by failing to provide appropriate planning and services that would provide him with the opportunity to be placed in a permanent home, as required by law and reasonable professional standards; by failing to obtain and supervise an appropriate placement; by failing to provide services necessary to prevent him from deteriorating while in foster care; and by failing to protect him from physical and psychological harm while in foster care.
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120. As a result of defendants' actions and inactions, Thomas has been and is being irreparably harmed. Thomas is growing up without a permanent family, has been physically and sexually abused while in defendant CWA's custody, is being subjected to the uncertainty of foster care status, and is being deprived of an opportunity for healthy development and a normal childhood. Shauna D.
121. Plaintiff Shauna D. is two years old and lives with her drug-addicted mother, Ms. D. Despite receiving reports indicating that Shauna is in danger of serious abuse or neglect, CWA has failed to investigate these reports in the manner prescribed by law. CWA's failure is especially troublesome here because Ms. D. has already lost custody of her six other children after findings that she abused or neglected them, and because Ms. D. admittedly continues to require drug treatment.
122. On September 12, 1995, Ms. M., a friend of Ms. D. who had been caring for Shauna, filed for formal custody of Shauna. At a hearing on October 13, 1995, Shauna's law guardian informed the court that Shauna was living with Ms. M., but that Ms. M. was not financially able to care for her. The law guardian further informed the court that Ms. D. was not helping to feed or clothe Shauna, and was an active drug user. Finally, the law guardian informed the court that Shauna had not received necessary immunization shots.
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123. The court directed Shauna's law guardian to call in a report of suspected abuse or neglect to CWA regarding Shauna. On October 13, 1995, Shauna's law guardian called in the report to CWA, but no action was taken.
124. On November 5, 1995, Ms. D. forcibly took Shauna from Ms. M.'s home. Ms. M. later saw Ms. D. on the street taking drugs. As of this date, CWA had still taken no action upon the report of suspected abuse or neglect. In fact, several weeks after being assigned to investigate this case, the child protective services worker had failed even to contact either Shauna or Ms. M., and was unaware that six of Ms. D.'s other children had been removed from her after findings of abuse or neglect.
125. On November 9, 1995, twenty-six days after the first report of suspected abuse or neglect -- and after four follow-up calls to CWA by Shauna's law guardian -- a CWA caseworker finally contacted Ms. D. to begin investigating the allegations. CWA's "investigation," however, consisted solely of a telephone call to Ms. D. in which Ms. D. stated that she was trying to get into a drug treatment program. The caseworker failed to contact or interview Shauna or Ms. M., and ignored Ms. D.'s failure to obtain necessary immunization shots for Shauna.
126. On November 14, 1995, the CWA caseworker took Ms. D. to register at an residential drug treatment program which would allow Shauna to live with her during treatment. Although the caseworker had knowledge that Ms. D would not be able to enter
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the program for at least a week, the caseworker made no provisions for Shauna's care or safety during this week-long interval. As winter arrived, the caseworker also continued to fail to arrange for Shauna to receive her immunization shots.
127. On November 21, 1995, Shauna's law guardian again called the CWA caseworker. The caseworker stated that he did not know whether Ms. D. had; in fact, entered the drug treatment program. Nevertheless, despite the failure to conduct a proper investigation as required by law, the caseworker stated that the report of suspected abuse or neglect would be determined unfounded based solely upon Ms. D.'s representation that she would enter a drug treatment program.
128. To date, CWA has failed to investigate the report of suspected abuse or neglect in the manner required by law, and has failed to file a written report detailing the elements of the investigation or the reasons for its conclusion. Upon information and belief, CWA is continuing to inadequately monitor Shauna or Ms. D.'s status, and has never arranged for Shauna to receive her immunization shots.
129. The defendants have violated Shauna's constitutional and statutory rights by failing to investigate reports of suspected abuse or neglect as required by law and reasonable professional standards, by failing to protect her from harm; and by failing to offer Shauna timely medical attention according to reasonable professional standards.
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130. As a result of the defendants' actions and inactions, Shauna has been and is being irreparably harmed. Ozzie E.
131. Plaintiff Ozzie E. is a fourteen-year-old child who should not be in foster care. Ozzie wants to return to live with his mother, Ms. E., who wants to take him home. All that stands between reuniting mother and son is CWA's refusal to provide services to allow Ms. E. to care for Ozzie, who suffers from seizure disorder, brain lesions and behavioral problems.
132. After his parents separated, Ozzie initially went to live with his father. But Ozzie's father, Mr. Q., frequently traveled for work and left Ozzie with his female companion. During one of these trips in early 1995, Ozzie had a seizure and was placed in the hospital by Mr. Q.'s companion. When Mr. Q. returned and refused to take Ozzie home from the hospital, CWA placed Ozzie in a group home. Ozzie's father voluntarily placed him in foster care on April 26, 1995.
133. When CWA officials contacted Ozzie's mother, Ms. E., to ascertain whether she would care for Ozzie, she indicated that she had a job and, given Ozzie's physical and emotional difficulties, could not properly care for him. CWA officials never suggested to Ozzie's mother that family preservation services -- such as homemaker services, special schooling or day treatment -- could be made available to help her care for Ozzie.
134. For the next six months, CWA kept Ozzie in care, listing his permanency goal as return to mother but failing to
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offer any of the services necessary to achieve that goal. CWA has conceded, moreover, that Ozzie's present placement in a group home is inappropriate because the group home does not provide services necessary to address his neurological problems.
135. After Ms. E. learned -- from Ozzie's law guardian, not CWA -- about the possibility of supportive community-based services to help her care for Ozzie, she stated that with such help she would very much like to have Ozzie return home and live with her.
136. To date, despite the fact that CWA admits that Ozzie's present placement is not appropriate, and despite the fact that Ozzie's goal is return home, CWA refuses to provide the services that would make Ozzie's return possible. As a result, CWA is needlessly continuing to keep mother and son apart.
137. The defendants have violated Ozzie's constitutional and statutory rights by failing to protect him from harm; and by failing to provide appropriate planning and services that would permit him to be returned to his mother, as required by law and reasonable professional standards.
138. As a result of defendants' actions and inactions, Ozzie has suffered and continues to suffer irreparable harm. Ozzie is growing up without a permanent family, is being subjected to the uncertainty of foster care status, and is being deprived of an opportunity for healthy development and a normal childhood.
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Darren F. and David F. 139. Plaintiffs Darren F. and David F. are seven-year-old
twins who have been in foster care virtually their entire lives. Because of CWA's failure to provide psychological and other counseling, their condition is rapidly deteriorating and they are on the verge of losing what may be their only chance for adoption and permanency.
140. Darren and David were born in 1988, and at age one were placed by their mother in the custody of CWA, which placed them in a foster home. At that time, CWA's goal for the children was return to their mother, on the conditions that she find a job or obtain public assistance, and get an apartment. However, the case plan (embodied in the uniform case report, or "UCR") -which CWA approved -- failed to indicate what steps the foster care agency or CWA had taken, or would take, to help the mother achieve these goals.
141. In May, 1990, Darren and David, who remained in foster care, were placed with their grandmother. Although their grandmother was too old to care for them adequately, and would often leave them for many hours in front of the television with the volume turned up loud, CWA and the voluntary agency failed to properly investigate or address this problem. The three UCRs filed for the twins during this period -- which CWA also approved, on 6/7/90, 3/25/91 and 6/24/91 -- made no mention of the issue. Indeed, the last of these UCR's stated that the twins "both appear to be very comfortable in the home."
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142. Darren and David were removed from their grandmother's home after CWA and the agency learned from the police, who were called to the home to restore peace, that the grandmother allowed the natural mother, a known drug addict, to move into the foster home with the children.
143. In November, 1991, at the age of three, Darren and David were placed with a new foster parent, Ms. R., who had been a teacher's aid in a special education class and was better able to address the children's special needs. By the time Darren and David arrived at Ms. R.'s home they were already showing signs of psychological trauma: they had not been toilet trained, often drank out of the toilet bowl, and smeared feces on the walls.
144. CWA was aware of these problems, but failed to provide any services to prevent Darren and David's continuing psychological deterioration. Without CWA's assistance, Ms. R. enrolled the twins in therapeutic day care, which began to stabilize their behavior. At the same time, the twins' foster care agency began the process of terminating their natural mother's parental rights in April, 1992. The boys' case plan listed a goal of adoption by Ms. R.
145. In September, 1994, Darren and David entered public school, and soon thereafter their behavior again deteriorated. They began using racial slurs, swearing and running around uncontrollably when outside Ms. R.'s home. Ms. R. repeatedly asked the foster care agency for assistance, but the agency refused to make any treatment referrals; CWA took no action to
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help them either, although CWA knew or should have known about the children's need for services.
146. In May, 1995, a psychiatric evaluation of the twins was conducted after Ms. R. indicated that she could no longer cope with their behavior. Darren and David at first refused to talk with the psychiatrist. When one of them did speak he began with the following:
They smash the cake, they beat my face, it was dumb, it was stupid, I told you I don't want to hear it, I will kill myself, I will choke myself.... The evaluation recommended that both boys immediately be enrolled in a day treatment program while continuing to live with Ms. R., and specifically named three such programs. The evaluation also stated that the agency should not consider the radical step of taking such young children out of a home setting and placing them in a residential treatment center until a day treatment program was tried first. 147. Neither the private agency nor CWA made any attempt to make the referrals recommended by the twins' doctors. Instead, the agency - - i n flagrant disregard of the evaluations -recommended that Darren and David be immediately placed in a residential treatment center. In November, 1995, the twins were sent to a residential treatment center. 148. Today, Darren and David continue to live at the residential treatment center - - a n institution designed for older children with severe emotional or behavioral problems, which until recently would not even accept children under the age of
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twelve. This setting is entirely inappropriate for children the twins' age, contradicts the advice of the doctors who examined them, and is causing them harm. Moreover, because CWA continues to fail to consider the option of day treatment, the twins can no longer live with Ms. R., the person they have come to think of as their mother. Indeed, the separation may cause Ms. R. to relinquish her hopes of adopting them, thus depriving the twins of their best chance for a permanent and stable home.
149. The defendants have violated Darren and David's constitutional and statutory rights by failing to provide services necessary to prevent them from mentally and psychologically deteriorating while in foster care; by failing to develop and implement appropriate case plans that contain the required elements, in accordance with the law and reasonable professional standards; by failing to make appropriate casework contacts with them and monitor their progress as required by law and reasonable professional standards; and by failing to provide appropriate planning and services that would permit them to be placed in a permanent home.
150. As a result of the defendants' actions and inactions, Darren and David have been and are being irreparably harmed. Darren and David are growing up without a permanent family, and are being deprived of an opportunity for healthy development and normal childhoods.
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Bill G. and Victoria G. 151. Plaintiffs Bill G. and Victoria G. are brother and
sister, ages fourteen and ten, and have spent virtually their entire lives in foster care. Because of CWA's continual failure to appropriately plan for these children, Bill and Victoria have never had any real chance of leaving the child welfare system and enjoying a secure and permanent home. And because of their increasing ages, if CWA does not act soon it will become, as a practical matter, impossible to provide these children with a permanent home and a relatively normal childhood.
152. In September, 1985, shortly after Victoria's birth, she and Bill were placed in foster care pursuant to a finding of neglect against their natural parents. At that time, their parents were living together. Bill is mentally retarded and suffers from a mild form of cerebral palsy. He is labeled as a special needs child and requires supportive services.
153. Bill and Victoria were placed together under the supervision of a private agency, in the foster home of Ms. H. From September, 1985, to August, 1987, the children's permanency goal was return to parent. In order to achieve that goal, the agency developed -- and CWA approved - - a case plan which called for parenting classes, psychiatric counseling for Mrs. G., completion of an A.A. program by Mr. G., the location of adequate housing, and regular parent/child visitation.
154. Neither CWA nor the agency took any steps to implement the children's case plan by securing Mr. and Mrs. G.'s
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cooperation with the service plan and monitoring their progress. As a result, there were infrequent parent/child visits, including an absence of any visits between March 11, 1986, and June 24, 1986 -- a fact CWA did not know because there were no caseworker contacts with either the children or parents during this threemonth period.
155. On August 26, 1987, the legal authority for the children's placement lapsed due to defendants' negligence. For nearly two years thereafter, defendants evidenced no awareness that Bill and Victoria remained in Ms. H.'s home without a legal placement. On July 9, 1989, CWA finally obtained a voluntary placement agreement from Mr. and Mrs. G.
156. During this period, Bill and Victoria's permanency goal remained reunification with their parents. The service plan for the family repeated the goals of completion of A.A. and parenting programs, regular visitation, and completion of psychiatric counseling for Mrs. G. Despite the parents' longstanding refusal to comply with identical service plans, CWA failed to work with them to render it more likely that compliance with the plan -and achievement of the children's permanency goal -- would occur, or to justify a change in the children's goal.
157. In August, 1989, Bill and Victoria reported that they had been beaten by their parents during an unsupervised weekend visit. CWA refused to investigate this report. Although an investigation was conducted as the result of a court order, CWA permitted bi-weekly parent/child visitation to continue. The
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allegations of abuse against Mr. and Mrs. G. were eventually deemed "indicated", or founded.
158. Despite Mr. and Mrs. G.'s well-documented failure to comply with the elements of the service plan, defendants continued to fail to develop an appropriate plan for Bill and Victoria, or to reconsider the children's goal of reunification. Instead, CWA allowed the children to drift in foster care with no realistic goal, as it was clear that Mr. and Mrs. G. showed little interest in having their children returned home. In fact, Bill and Victoria were not visited at all between August 8, 1990, and November 9, 1990. During the few subsequent visits, Mr. G. often remained in his bedroom and did not interact with the children. And Mr. and Mrs. G. still failed to enter counseling or A.A. in accordance with their service plan.
159. On January 17, 1991, nearly five and one-half years after their initial placement, the Family Court itself acknowledged that the children's permanency goal was inappropriate and ordered defendants to file a petition seeking termination of Mr. and Mrs. G.'s parental rights within 90 days. While the goal was officially changed to TPR/adoption, defendants ignored the court's order and failed to file the termination petition until June 19, 1991 -- more than five months after the court's order.
160. At an August, 1992 hearing, CWA was forced to withdraw the TPR petition because it had failed to make sufficient
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diligent efforts to work with the Mr. and Mrs. G., and thus lacked the legal basis to terminate their parental rights.
161. In May, 1992, Mr. G. left New York for South Carolina, and maintained only sporadic contact with the children until his return in December, 1993 -- nineteen months later. While this absence of contact, alone, may have justified the termination of his rights, CWA failed to pursue this course. Instead, at a December, 1993 hearing, CWA claimed that they still had failed to make diligent efforts to work with the family. To date, CWA still has not attempted to obtain a TPR.
162. When Mr. G. returned to the New York City area in December, 1993, he demanded that his children be discharged to his care. After allowing Bill and Victoria to drift through the foster care system for nearly eight years, CWA once again changed the children's goal from adoption to return home.
163. As in the past, however, CWA failed to ensure that a reasonable plan be developed and implemented to achieve this goal. Instead, the family's service plans in December 1993, June 1994, and December 1994 continued to call for Mr. G. to complete a general counseling program, an alcohol treatment program and a parenting program, to obtain adequate housing, and to visit with the children regularly. But CWA failed -- and continues to fail -- to ensure that Mr. G. complies with the same service plan which he has repeatedly failed to complete for the past decade, or to pursue a more appropriate goal for these children. Mr. G. still only visits the children on a sporadic basis, and there is
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no indication that he has completed, or even begun, any of the programs required by the plan.
164. Bill and Victoria have lived with their foster mother, Ms. H., for the past ten years, and Ms. H. has expressed a desire to adopt them. Bill is now fourteen years old and has lived with Ms. H. since he was three. Victoria, who is now ten years old, has been in foster care nearly her entire life. Ms. H. is essentially the only mother both children have ever known. As a result of CWA's failure to properly manage their case, Bill and Victoria may lose their chance to be adopted by Ms. H., and may be returned to an abusive father who has effectively abandoned them for ten years.
165. These children remain uncertain as to whether they will remain with their foster mother or return to their natural father. Defendants have failed to provide Bill and Victoria with psychological counseling to address this lack of stability and certainty, to prepare them to return to their father, or even to identify the need for supportive services to render the transition less traumatic.
166. Ms. H. has been trained to address Bill's special needs and, according to CWA's records, she has provided a "stable and secure" home for Bill and Victoria. By contrast, Mr. G. is diagnosed as suffering from "chronic schizophrenia" and "alcohol abuse." Removing these children from their current environment would cause them irreparable harm.
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167. After a weekend visit with their father in May, 1995, Bill and Victoria reported that he had neglected to feed them. Moreover, the children have emphatically stated that they do not want to live with their father, and that they want to live with Ms. H., whom they refer to as "Mommy." While the agency has cancelled further weekend visits with Mr. G., the children's permanency goal remains return to home.
168. Defendants have violated Bill and Victoria's constitutional and statutory rights by failing to protect them from harm; by failing to develop written case plans that contain the required elements in accordance with the law and professional standards, and are likely to lead to permanency; by failing to review case plans within the required time periods; by failing to implement the case plans to ensure their permanent placement, as required by law and reasonable professional standards; by failing to conduct an adequate assessment to determine whether placement with their father is appropriate; and by failing to provide these children with services necessary to meet their needs.
169. As a result of defendants' actions and inactions, Bill and Victoria have been and continue to be irreparably harmed, and are being deprived of a permanent home and the opportunity for healthy development. Brandon H.
170. Plaintiff Brandon H. is seven years old and has lived his entire life in foster care. Despite the fact that his parents' parental rights have been terminated, and despite the
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fact that he has a potential adoptive parent willing to adopt him, CWA has failed to take the necessary steps to allow him to be adopted and to bring the psychologically damaging limbo of foster care to a close.
171. Brandon was born on May 25, 1988. His mother was twelve years old, and was herself in foster care. Brandon was immediately removed from his mother and placed in foster care.
172. Because CWA failed to extend Brandon's initial placement under a finding of parental neglect, the legal basis for his placement lapsed, and on November 27, 1991, CWA filed a second neglect petition. This petition -- ultimately upheld by the court -- alleged, inter alia, that:
[Brandon's] mother has stated that she likes to make babies cry because she likes the way they sound and the way their bodies shake. [Brandon's] mother also stated that she likes to overfeed babies to see them vomit. 173. On February 13, 1992, a court ordered CWA to file a petition seeking termination of Brandon's mother's parental rights. Despite this order, and despite Brandon's mother's obvious inability to care for Brandon, CWA failed to file the TPR petition until October 5, 1992 -- almost eight months later. 174. In early 1992, Brandon was placed in a pre-adoptive home with Ms. W., who, according to a UCR filed on May 25, 1992, Brandon called "Mommy." 175. On March 29, 1994, Brandon's mother's parental rights were terminated by court order. Despite the fact that Brandon was now freed for adoption, and despite the fact that a potential
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adoptive parent -- Ms. W. -- had long been identified, CWA failed to take any of the steps necessary to allow Ms. W. to actually adopt Brandon. Almost two years after Brandon was freed for adoption, CWA has failed to file a petition for adoption, and, inexplicably, has failed even to transfer Brandon's case to the CWA adoption division which could begin these procedures. As a result, Brandon continues to live in the impermanent and psychologically damaging limbo of foster care, while CWA does nothing to address his paramount need for permanency. Moreover, by failing to schedule a hearing to review Brandon's status, as required by law, CWA continues to allow Brandon to be lost in a system without any oversight or monitoring.
176. The defendants have violated Brandon's constitutional and statutory rights by failing to protect him from harm; by failing to implement his permanency plan and allow him to leave foster care and enjoy a permanent and secure home; by failing to provide him with services to facilitate his adoption as required by law and reasonable professional standards; by failing to prevent the psychological deterioration caused by such impermanence; and by failing to schedule mandated hearings, thus depriving Brandon of his right to mandated oversight of his status.
177. As a result of the defendants' actions and inactions, Brandon has been and is being irreparably harmed. Brandon is growing up without a permanent family, is being unnecessarily subjected to the uncertainty of foster care status, and is being
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deprived of an opportunity for healthy development and a normal childhood. Steven I.
178. Plaintiff Steven I. is sixteen years old, and has been in foster care his entire life. CWA has never provided appropriate and legally mandated case and permanency planning, and has failed to provide services to help Steven address the severe psychiatric and emotional problems which he has developed while in foster care. Although the doctors who have treated Steven claim that he needs long-term residential treatment, CWA has ignored -- and continues to ignore -- his need for such care Instead, CWA inappropriately assigned Steven to a group home, from which he ran away in 1994. Steven has never returned to this inappropriate placement, choosing instead to live on the streets.
179. Steven was born on July 12, 1979, with drugs in his bloodstream, and was removed from his mother's care soon thereafter, as the result of a neglect finding. Steven was placed in foster care first with his grandmother, and, after her death, with an aunt. Steven's case was supervised directly by CWA, not by a voluntary agency.
180. By age twelve, Steven was demonstrating severe emotional problems and engaging in violent behavior at school, including attempting to rape a nine-year-old girl, soliciting oral sex from two other girls, stabbing people with pencils and
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setting fires. Despite this behavior, CWA failed to provide proper services to Steven to deal with these problems.
181. Because of his violent behavior, Steven's aunt took Steven for a diagnostic psychiatric evaluation. The doctors who evaluated Steven recommended that to prevent his further psychological deterioration he should be placed in a long-term residential treatment facility with the experience and expertise to address his severe psychiatric needs. CWA failed to refer Steven for such a placement, or to provide Steven and his aunt with services sufficient to address his problems.
182. When CWA refused to take the steps necessary to prevent Steven's psychological condition from further deteriorating, Steven's aunt, on her own initiative, took him to a clinic for psychiatric help. For several months after visiting the clinic, Steven's behavior improved. But in December, 1992, and again in December, 1993, he attempted to molest other children. As a result, the doctors at the clinic recommended long-term residential treatment to address Steven's needs and prevent further deterioration of his condition.
183. Again, CWA failed to act. In September, 1994, at the age of fifteen, Steven was committed to New York Hospital, where he was labeled a "sexual predator." Despite this, upon his release in October, 1994, CWA placed Steven in a group home which lacked the facilities to address his increasingly severe emotional problems. Predictably, Steven ran away from this group home, and now lives primarily on the streets.
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184. Two weeks ago, Steven's aunt -- with whom he is intermittently in contact -- took him to the clinic which had previously treated him and tried to get him admitted for psychiatric treatment. CWA initially delayed the authorization for payment for such treatment, and, several hours later, after numerous phone calls, when CWA agreed to pay for such treatment, Steven and his aunt had already left the hospital without obtaining help. Since that time, CWA has made no attempts to find Steven -- who remains in CWA's legal custody -- or to provide him the care he desperately needs.
185. The defendants have violated Steven's constitutional and statutory rights by failing to protect him from harm; by failing to provide services necessary to prevent him from psychologically deteriorating while in foster care; by failing to develop and implement case plans that contain the required elements, in accordance with the law and reasonable professional standards; by failing to make appropriate casework contacts with Steven and monitor his progress as required by law and reasonable professional standards; and by failing to provide planning and services that would permit him to be placed in a permanent home.
186. As a result of the defendants' actions and inactions, Steven has been and continues to be irreparably harmed. Steven is growing up without a permanent family, is being subjected to the uncertainty of foster care status, is living on the streets, is receiving no care for his severe psychological problems, and
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is being deprived of an opportunity for healthy development and a normal childhood.
FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES 187. The experiences and current situations of the named plaintiffs are neither unusual nor aberrational. Rather, they are merely several examples of the defendants' systemic failure to fulfill their legal responsibilities to the entire class of children whom they are legally obligated to serve: 188. The failures delineated herein all result from defendants' long-standing pattern and practice of illegality, and their deliberate indifference to the needs of the children in the plaintiff class. Any attempts defendants may have made to remedy these failings have been ineffective. 189. Defendants have long been aware of the need to redress these problems, and have had the authority to ameliorate them. But they have refused to exercise their authority, and refused to ensure that adequate funds are available and used appropriately to ensure compliance with the law.
Protective Services 190. Protective services are those services aimed at protecting vulnerable children from physical or psychological abuse and neglect. 191. Defendants fail to protect children in circumstances when they have received reports notifying them that a particular child is in danger of abuse or neglect. Many investigations are neither timely nor adequate, with the result that numerous
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children are harmed -- often severely, and even fatally -because CWA has failed to meet its obligation to protect them.
192. The law requires that defendants have in place a system for accepting reports of suspected child abuse or neglect. In New York, this system is the State Central Register, operated by the state Department of Social Services and commonly known as the "hotline."
193. The State Central Register is understaffed, making it extremely difficult to actually report suspected child abuse or neglect. Calls either go unanswered or, once answered, are placed on hold interminably.
194. Currently, State Central Register staff will not accept a call for investigation unless the caller can offer what amounts to proof of child abuse or neglect on the telephone. Many wellfounded reports of child abuse or neglect -- even those made by credible, professional sources such as doctors or teachers -- are deemed insufficient to warrant investigation.
195. The state hotline fails to maintain any records on the number of allegations of abuse and neglect it refuses to accept for investigation.
196. Those reports that are accepted frequently linger without proper CWA investigation well beyond the mandatory investigative time period.
197. The law specifies that investigations must be initiated within twenty-four hours, that a preliminary investigation report be written within seven days, and that the investigation be
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completed within sixty days. Defendants fail to meet these requirements.
198. CWA's records indicate that in 1993 only 39.5 percent of its protective service investigations were completed within the legal timeframe. Of the 44,758 protective service investigations pending in November, 1993, 39,057 were delinquent, and 14,072 had been pending for more than six years.
199. To address the enormous backlog of protective service investigations, between December, 1993, and February, 1994, CWA "administratively expunged" 13,000 cases with long-outstanding investigations--that is, the agency simply removed the cases from its computer files, while doing nothing to ensure that the investigations had been completed, or even begun.
200. Many of the investigations that are conducted are perfunctory and inadequate to protect children. Investigations often fail to include visits to the child's home, face-to-face or telephone interviews with the child, or the collection of information from informed sources such as police officers, teachers, and medical professionals, though all these steps are required by law.
201. According to a recent memorandum by a CWA attorney, some child protective services caseworkers -- who are responsible for investigating allegations of abuse or neglect, and are also known as "protective/diagnostic" or "P/D" workers -- condone violence against children, including corporal punishment, in violation of CWA's policies.
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202. On account of these multiple failings, numerous children are allowed to remain in homes in which they are in danger. Many children are physically injured, often severely. Some have been killed before CWA took the initiative to commence or complete the investigations.
203. Despite the absence of credible evidence that the actual incidence of child abuse and neglect is declining, the percentage of allegations deemed "indicated" by CWA has declined significantly in recent years. In 1989, 54.3 percent of the allegations were indicated; in 1990, 49.6 percent; in 1991, 44.8 percent; and in 1992, 32.1 percent.
204. During the five-year period from 1990 to 1994, 197 New York City children who had been subjects of calls to the State Central Register died. According to a report by CWA's Child Fatality Review Panel, forty-seven percent of these deaths -ninety-three children -- died by homicide, and in most of these cases the perpetrator was the child's parent or caretaker.
205. In 1990, CWA had 1,080 P/D workers. Due to a series of layoffs, buyouts and early retirement incentives, earlier this year only 712 remained.
206. P/D workers are not provided the most basic necessary equipment, including beepers to facilitate contact with them when they are out in the field. An absurd back-and-forth between notes left on unanswered doors and telephone messages left at empty offices results in unacceptable delay, during which no actual investigation occurs, placing children in grave danger.
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207. Child Welfare League of America standards state that protective service caseworkers should carry no more than twelve investigative cases at a time, but many of CWA's protective service caseworkers have caseloads far in excess of this number. This City-wide problem is particularly acute in Kings and Bronx Counties, where caseloads can reach thirty or more. Such caseloads prevent even the finest, most dedicated caseworkers from doing their jobs effectively and protecting children.
208. Upon information and belief, the number and percentage of reports of suspected child abuse or neglect that are accepted for investigation vary substantially over relatively short periods of time. Upon further information and belief, these changes reflect management decisions regarding the number of new cases the system "can handle." The changes do not result from changes in the number or severity of calls made to the hotline.
209. When investigating allegations of child abuse or neglect, caseworkers often misuse voluntary placements. Rather than take the time and do the paperwork to file abuse and neglect charges, or provide the services necessary to avoid foster care placements, caseworkers urge parents to sign documents "voluntarily" placing their children in foster care. While this is easier for the caseworker, it undermines the children's and parents' rights to the provision of appropriate services, and to certain procedural protections before a family is broken apart.
210. This practice also places children in jeopardy, because many children placed "voluntarily" into foster care are placed
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from homes in which they are in danger of abuse or neglect. And it is much easier for parents to obtain the release of children placed voluntarily, and to return them to the same dangerous situations from which they were "voluntarily" removed.
211. Defendants are particularly reluctant to investigate allegations that teenagers have been abused and neglected, for reasons having nothing to do with the likelihood that such allegations are true. Because CWA lacks sufficient placements for adolescents, CWA is loathe to admit them to a system where they will remain in long-term foster care, unlikely to be adopted. Instead, defendants refer vulnerable teenagers to emergency homeless shelters or private facilities such as Covenant House, despite the fact that teenagers may remain in these facilities for only thirty days.
Preventive Services 212. Preventive services are services provided to children at risk of placement in foster care. These legally required services are designed to help families remain together whenever possible by helping families address whatever problems have placed the child(ren) at risk of foster care placement. 213. CWA provides almost no services to avert the need for foster care placement in appropriate circumstances. 214. CWA routinely fails to respond to serious problems within families that could lead to a child's placement in foster care, even when these problems are known to the agency.
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215. When service plans are written, they are not adjusted over time in response to families' changing needs.
216. CWA has very few programs to preserve families and avert the need for foster care placement under appropriate circumstances. Those programs that exist are woefully inadequate to meet the needs, and legal rights, of the plaintiff children.
217. CWA has failed to develop and ensure access to a sufficient number and type of service providers, though legally required to do so. This failure has resulted in long waiting lists for such services as day care, family therapy and housing assistance. The current waiting list for mental health services, for example, is between eight and nine months, and will be exacerbated once several child psychiatric treatment centers are closed, as is scheduled. Treatment programs for drug abuse and family violence are similarly limited.
218. In recent months, homemaker services to families at risk of having children removed into foster care have been dramatically reduced.
219. After making referrals to private service providers, CWA caseworkers do not follow up to ensure that the family follows through or that the agency actually has the capacity and ability to provide the family with the services that it needs.
220. The types and degree of services available to keep families together -- and the decision whether to provide such services to particular families and children -- are driven not by the families' needs or the likelihood that the services will
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succeed in keeping a family together, but by fiscal concerns and prevailing ideologies.
221. As a result of these failures, many children are now in foster care who would be home with their families had appropriate preventive services been provided, as required by law.
Permanency Planning for Children 222. Foster care is intended as a temporary system, in which the government agency quickly assesses the problems and service needs of a child and family, decides whether a child can and should be returned to the family, provides services to try to implement the goal of returning the child, determines whether the goal is unrealistic or cannot or should not be accomplished within a reasonable period of time and, if the child cannot or should not be returned, makes every effort to find another permanent family for the child, usually through adoption. 223. Although the law requires caseworkers to establish a goal to achieve permanency for a child within a reasonable period of time, and to develop a step-by-step strategic plan for achieving this goal, in New York this almost never occurs. 224. Instead, planning for New York City children takes place by default, in violation of reasonable professional standards. Children languish in foster care for years, with no realistic planning taking place. That is why New York City children remain in foster care three times longer than the national average: 4.2 years as compared to 1.4.
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225. As a result of CWA's totally unprofessional decisionmaking, CWA has a recidivism rate of twenty per cent, with many children returned home without adequate investigation, supervision or supportive service, only to have the same problems recur, requiring a return to foster care. Such "planning" as takes place often consists merely of a caseworker appearing at periodic court reviews -- when these occur at all -- and stating that the child's goal is "extension of foster care placement." This problem is so acute that one New York City judge has posted a sign on the wall of her courtroom that reads: "Extension of placement is not a goal."
226. Instead of making a careful, individualized judgment about the appropriate long-term goal for a child, virtually all children are initially assigned a goal of return home -- whether the child has been seriously abused over a long period of time, whether the parent has abused other siblings or evidenced any interest in having the child returned, and whether the child has previously been in foster care because of the parent's inability or unwillingness to care for the child in the past.
227. Despite having a goal of returning a child to the parent, however, CWA often does little to ensure that this goal is accomplished, either by providing necessary services to the parent or ensuring that its contract agencies provide these services. Thus those parents who could resume custody of their children were services provided to help them are often unable to do so.
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228. At the same time, children whose parents cannot or will not benefit from services, and whose sole hope for permanency is adoption, often cannot be adopted because CWA fails to change their goal to adoption for extraordinarily long periods of time. CWA does not even begin the process of attempting to free a child for adoption until after the child's goal has been changed, regardless of whether legal grounds exist to do so.
Assessments and Case Plans 229. Although assessments and case plans are the key to ensuring that children receive appropriate services and necessary treatment, and that permanency goals for children are implemented, many children do not get service assessments and case plans in a timely and professional manner as required by law. Caseworkers frequently prepare assessments and plans several weeks or sometimes months after they are due. In some cases, they do not prepare any assessment or plan. Although CWA must approve every assessment and case plan prepared by a voluntary agency, it routinely approves plans months after they have taken effect. 230. Service assessments frequently fail to accurately identify the reasons why a child is at risk of foster care placement or is in foster care. While a parent's drug abuse or mental illness account for a large percentage of foster care placements, caseworkers are not trained to recognize these problems, and assessments frequently do not reflect them.
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231. Assessments often fail to describe adequately the role of each member of a child's family, and how that family member contributed to the problems that placed the child in foster care or at risk of foster care placement. For example, assessments and case plans often fail to account for issues of domestic violence in a family, even if an abusive father or boyfriend is the primary perpetrator of abuse.
232. Case plans do not contain necessary and appropriate service referrals. Most plans contain the same two service referrals -- "parenting skills" and "therapy" -- without regard to the individualized needs of the families for whom the plans are prepared. It is not unusual for case plans to refer mentally ill parents to "general counselling," or to refer parents who simply lack housing to a parenting class.
233. There are inadequate attempts to develop service plans that provide for a comprehensive package of services to families and children with serious psychiatric and medical needs. Often, for example, sexually abused children do not receive referrals for necessary psychiatric and medical services.
234. Because many referrals are inappropriate, severely abused children often bounce from service provider to service provider, undermining the continuity essential to the effective delivery of services.
235. CWA fails to ensure that those services identified as necessary are available and actually provided.
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236. Service plans do not track a family's ongoing efforts or failures in resolving the problems that led to the need for service intervention, documenting the parents' progress or lack thereof in meeting established goals. Instead, many case plans merely repeat the contents of the previous service plan, in rubber-stamp fashion.
237. Service plans are not reviewed in the manner required by law. Although parents are to be included in the review, they often are not invited, do not receive copies of the plans, and do not sign the plans indicating that such plans have been explained to them and that they are in agreement with the plans' contents. Because of their exclusion, parents frequently do not know what is required of them under the plan and what tasks they must accomplish to facilitate their child's discharge from foster care. The result is that children stay in foster care for unnecessarily long periods of time.
238. When the caseworker assigned to a case goes on vacation, no temporary caseworker is assigned, so all assessment and case planning activity ceases, and nobody monitors the child(ren).
Out-of-Home Placements 239. When children are. removed from the family setting, they are placed on a "hit-or-miss" basis in whatever bed is available, often with foster parents who have not been appropriately screened or trained.
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240. Because defendants have not developed a sufficient range of different types of placements to meet the needs of children, many children are placed inappropriately.
241. Because of an insufficient number of adolescent placements, teenage foster children are either not taken into placement when necessary, or are pushed out of the foster care system and forced to live either on the streets or in one temporary shelter facility after another.
242. Because of a lack of appropriate mother-child placements, many girls who give birth while in foster care are separated from their babies. Mothers and their babies are placed in a series of inappropriate placements, undermining their healthy development.
243. Because of a lack of adequate placements for children with special psychiatric or medical needs, many children with serious problems deteriorate further while in defendants' custody. Although foster care placements are supposed to be as stable and family-like as possible, CWA's lack of adequate placements and managerial ineptitude undermine these goals. Children frequently bounce from one placement to another, with no stability at all. One young man, for example, was recently moved to his seventy-seventh different foster care placement since 1991.
244. Many foster homes are not reasonably in accord with required standards for such homes. Initial home studies and investigations are superficial, and foster care license renewal
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requirements are disregarded. Some foster parents are barely functional. Some individuals who are given foster parent licenses have no real interest in children, but are simply interested in the additional income. Others, whose homes have been decertified as foster homes because of allegations of abuse or neglect, simply wait several months, apply for certification with another private agency, and get recertified because the absence of data prevents adequate background checking. Upon information and belief, between five and ten percent of foster parents have criminal records.
245. Reports of children being abused and neglected while in foster homes are not investigated in the manner or within the time periods required by law. Abuse or neglect by foster parents often is not even reported, because CWA and the voluntary agencies tolerate behavior from foster parents which would be unacceptable if exhibited by birth parents. Caseworkers routinely delay action, despite their knowledge of a foster child's abuse, jeopardizing the child's safety.
246. Defendants have failed to ensure that foster parents receive the training necessary to enable them to provide proper care to the children placed with them. As a result, many children who have entered defendants' custody with problems created by abuse or neglect in their own homes are further deteriorating under CWA's care.
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Services to Foster Children 247. Foster children do not receive the services necessary to keep them free from harm while in foster care, and to enable them to return home, to be freed for adoption, or to live independently once they leave defendants' custody. 248. While in foster care, children suffer a myriad of substantial deprivations, including but not limited to inadequate physical health care, inadequate mental health care and inadequate educational services. Health Care and Related Services 249. Although CWA is required to ensure that children in its custody receive adequate health care, many foster children's physical and mental health care needs go unaddressed. These failures include the entire spectrum of health care services required by law, from well-child exams to care for end-stage AIDS patients. 250. Foster children have particularly high health care needs -- which is unsurprising among a group of children who have been abused and neglected. 251. A study conducted by the New York State Department of Social Services Office of Quality Assurance and Audit, released in May, 1995, paints a picture of devastating failure:
a. Fewer than one percent of foster children's medical records have all the required components.
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b. Only eighteen percent of foster children receive complete comprehensive medical examinations, as mandated by law.
c. Only half of foster children's records indicate that they have received immunizations as required by law.
d. Less than thirty-four percent of foster children receive age-appropriate lead blood tests.
e. Children in direct foster care (i.e., serviced directly by CWA, not by one of the voluntary agencies) fare the worst, have the worst health problems, and suffer from the poorest documentation of their medical records. 252. A study conducted by the United States General Accounting Office, also released in May, 1995, reveals a similar pattern of failure:
a. "Important health-related needs, including routine medical examination and various specialized services, remain[] unmet for nearly one-third of the young foster children in the locations reviewed[, including New York]."
b. More than one-third of foster children receive no immunizations.
c. Children placed in foster care with their relatives are less likely than children in other foster care settings to receive necessary and required health care. 253. Children enmeshed in the child welfare system have much more severe and pervasive mental health needs than children generally. Yet CWA and private agency caseworkers often lack the
77

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skills necessary to recognize the symptoms of mental illness and to take appropriate action.
254. And for those children whose mental health care needs are identified, there is a critical lack of appropriate services. CWA has failed to develop and provide a sufficient range and quantity of mental health care services -- from relatively informal counseling to in-patient psychiatric care - - t o address the needs of the children it is required to serve.
255. Adolescents who need specialized clinical or psychotherapeutic intervention typically do not receive it.
256. Defendants also fail to provide foster children with disabilities -- including but not limited to those with HIV and AIDS -- with the services necessary to allow them to participate fully in the City's child welfare system as required by law, nor do they ensure that the private agencies with which they contract provide such services.
257. There is an insufficient number of appropriate placements for foster children with HIV, AIDS and other acute disabilities.
258. Foster children with disabilities requiring medical care often do not receive it.
259. Foster children who rely upon a mechanical apparatus such as a wheelchair or leg braces do not receive necessary parts and supplies, and as a result are sometimes home-bound and forced to miss school.
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Educational Services 260. CWA, directly and through the private agencies with
which it contracts, is required to take such steps as are necessary to ensure that all children in foster care receive education appropriate to their needs and in accordance with the requirements of the state education laws; to maintain an active and direct liaison with all foster children's schools; and to ensure that all foster children receive appropriate educational and vocational guidance. CWA is systemically failing to meet any of these obligations.
261. Because of CWA's failure, foster children face a variety of problems, including but not limited to the following:
a. Foster children's biological parents are not included in educational decision-making.
b. Foster children are disproportionately and inappropriately placed in special education, adding to the stigma inherent in being in foster care, and increasing the likelihood that these children will either drop out of school or become so demoralized that they fall behind grade level.
c. Some foster children are placed in residential facilities with in-house education programs, which are often insufficient, and are inadequately monitored by CWA.
d. When foster children must change schools -- which occurs with alarming frequency, as children move from placement to placement -- their educational records do not
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follow them, so educational continuity becomes impossible. And when children leave foster care and return to their neighborhood school or high school of choice, their educational records from their time in foster care often do not follow them, so they receive no credit for schoolwork completed while in foster care. 262. Foster children with learning disabilities do not receive the testing necessary to document their disability, and thus are precluded from receiving legally mandated accommodations for it. 263. CWA has failed to foster an appropriate working relationship with the New York City Board of Education, though such a relationship could facilitate appropriate school placements, transportation of educational records, and continuity of educational services. Reunification Services 264. Foster children are not provided with services necessary to facilitate the prompt reunification of their families, as required by law. 265. Once a child is placed in foster care, caseworkers frequently cease to work with the child's family members to address the problems that led to the placement and prepare for the child's return home. 266. Because parents are not included sufficiently in planning for their children's permanent discharge from foster
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care, they frequently do not even know or understand what they must do to secure their children's discharge.
267. As a result of these failures, children often spend years longer than necessary in government custody. Adoption Services
268. Because case planning and case management are so inept, CWA does not set appropriate permanency goals for children. Even long after it is clear that a child will never be able to return home, CWA does not set a goal of adoption. While waiting for their goals to be changed, thousands of children get too old to be strong candidates for adoption, and end up spending many unnecessary years in foster care.
269. At every stage of the adoption process, CWA and the private agencies drag their feet interminably. Thousands of foster children who cannot return home remain unadopted because CWA has failed to take the prerequisite actions by establishing a goal of adoption, terminating parental rights, placing the children in properly screened pre-adoptive homes, and moving the legal adoption process forward.
270. The failure to involve parents in planning for their children often impedes the adoption process. Many times adoptions cannot move forward because CWA has not engaged in legally required "diligent efforts" to reunify the child's biological family.
271. Once CWA sets a goal of adoption, it takes an average of 3.2 years for CWA to complete the adoption, undermining the
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child's paramount need for stability and permanency. For children in CWA's direct care -- not placed with a private agency -- the average is 3.8 years.
272. Currently, more than 18,000 New York City foster children have a permanency goal of adoption, many of whom are legally free for adoption. But CWA completes only approximately 2,400 adoptions each year.
273. CWA has failed to develop an aggressive adoptive home recruitment program so foster children for whom adoption is necessary have a chance to be placed in a permanent family. And defendants fail diligently to recruit potential adoptive parents who reflect the racial and ethnic diversity of New York City's foster children.
274. Children in need of adoption have already spent long years in foster care. Some of them have lived with foster parents with whom they have formed significant bonds. But these foster placements have often been made initially on an emergency basis, without regard to whether the foster parent would be an appropriate adoptive parent. As a result of CWA's lack of planning and professionally responsible decision-making early in the child's placement, coupled with the long delays in CWA's initiating the adoption process, for many children the choice often becomes a less than adequate adoptive parent or the disruption of an existing emotional bond.
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Independent Living Services 275. Foster children who cannot return home or be adopted are legally entitled to services designed to prepare them to live independently upon leaving the foster care system. These services are not provided in any meaningful way. Young people regularly "graduate" from the foster care system at age eighteen or older4 lacking the education, training and skills necessary to live independent, productive lives. 276. The independent living program consists primarily of lessons on balancing a checkbook, despite the fact that most participants have neither a job nor a bank account. 277. The independent living program provides no meaningful vocational training, so young people leaving foster care lack the skills necessary to allow them to assume employment and become self-supporting, nor does CWA ensure that these young people receive vocational training elsewhere. This problem is compounded by CWA's failure to ensure that foster children receive an appropriate education, with the result that an extraordinarily high percentage of young people being discharged from foster care have not even graduated from high school. 278. Some foster children who will be making the transition to independent living are not United States citizens, but are entitled under federal law to receive permanent residency cards

4

Young people who enter foster care before turning

eighteen are permitted to remain in the system through age

twenty-one. CWA has the right to discharge them, but must

provide them with ninety days' notice and services in accordance

with a reasonable discharge plan.

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(commonly called "green cards"). Although permanent resident status would enhance these young people's ability to obtain higher education, housing and employment, CWA does nothing to help them obtain such status.
279. Foster children with disabilities receive no assistance with making the particularly difficult transition to independent living. They are provided no help learning how to live on their own with their disabilities, and are not even informed of programs and benefits available to them. Instead, they are often pressured to sign themselves out of the foster care system as soon as they turn eighteen and are legally able to do so.
Caseworker Screening, Training, Retention and Support 280. Applicants for CWA caseworker positions are not properly screened by educational background or ability to successfully carry out a difficult and important job, nor is a caseworker required to have anything more than a bachelor's degree in any subject. 281. Before entering the field, caseworkers receive only twenty days of training, most of which focuses not on child development but on filling out forms and other paperwork tasks. As a result, caseworkers are wholly unprepared to make critical assessments, to provide and access necessary services, or to work with children and families. 282. According to CWA's own lawyers, some caseworkers speak little or no English, and therefor cannot testify regarding the
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facts of their cases or communicate with their clients or other service providers.
283. Although new caseworkers are required to attend training classes, they are not required to demonstrate any level of competency before assuming responsibility for a caseload. In November, 1994, for example, one third of the child protective services caseworkers graduating from CWA's pre-service training program at the James Satterwhite Academy scored.below sixty percent on the multiple-choice final exam. These caseworkers were nonetheless employed and entrusted with life and death decisions.
284. When caseworkers fail the examination at the conclusion of their training, they are rarely terminated.
285. When "too many" caseworkers fail the examinations at the conclusion of their training, CWA does act - - b y removing the most difficult questions from the next examination and lowering the passing score. Standards are continually ratcheted down.
286. Once employed, caseworkers are not provided with the supervision and support necessary to investigate reports of abuse or neglect adequately; to monitor foster care placements properly; to ensure that children, their birth families and their foster families receive the services that they need; or to engage in necessary and legally required case planning and management.
287. Because of frequent turnover and the fact that promotions are based on seniority instead of merit, CWA lacks managers and supervisors with appropriate skills and experience
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to direct and be accountable for a workforce required to make critical life and death decisions. Although CWA supervisors are required to have Master of Social Work degrees, most do not.
288. Because their supervisors do not have the necessary skills, experience or education, caseworkers do not receive needed supervision, guidance or support. Although immediate supervisors are required to meet with their caseworkers either individually or in a group for at least one hour per week, these meetings do not occur.
289. CWA supervisors sometimes attempt to transfer cases to other units or managers quickly when they sense trouble, so that if a case blows up the disaster occurs on someone else's watch. When something does go wrong, the parties typically engage in mutual recrimination, instead of working together so the problem does not occur again.
290. With high caseloads and a lack of adequate supervision, support and training, a large number of CWA caseworkers leave after one or two years. Transferring from CWA to another agency -- public or private - - i s commonly viewed as a step up. Upon information and belief, the annual turnover rate among protective service caseworkers exceeds sixty percent. As a result, the front-line staff is frequently young, inexperienced and poorly trained.
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Monitoring and Supervision of Private Agencies 291. CWA's "supervision" of the private, voluntary agencies and its "management" of the cases referred to these agencies are hollow shells. 292. Although CWA has legal responsibility for all children in foster care, it delegates the day-to-day responsibility for the vast majority of foster children to a series of private agencies. CWA nevertheless has final authority with regard to all decisions that must be made for these children, and the obligation to ensure that all children's cases are handled in accordance with the law and reasonable professional standards. CWA frequently fails to carry out this responsibility, either by passively ignoring agencies' failure to provide necessary services, or by affirmatively impeding the agencies' ability to do their job. 293. While the private agency caseworker has responsibility for developing and overseeing the day-to-day implementation of a child's case plan, the CWA caseworker retains case management responsibility for overseeing and ensuring the implementation of. the case plans and approving the child's long-term goals. 294. Pursuant to this system, however, neither CWA nor the private agency actually assumes ultimate responsibility for these children. As a result, the children frequently are allowed to languish without appropriate goals or service plans because neither the private agency nor CWA meets its responsibilities
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independently -- and they fail to work together in the integrated way envisioned, and required, by the law.
295. For the approximately seventy percent of New York City foster children who are placed with private agencies pursuant to contracts with CWA, there is no clarity among the persons involved regarding precisely what responsibilities remain with CWA's supervisory caseworkers and what responsibilities are borne by the private agency's caseworkers. As a result, problems are not addressed, but rather are tossed from worker to worker, and agency to agency.
296. Defendants do little to ensure that workers employed by the private agencies are adequately trained and supervised or that they have caseloads that enable them to fulfill their obligations in a manner consistent with reasonable professional standards. Upon information and belief, many private agency caseworkers carry caseloads that are above professionally acceptable standards.
297. Private agency caseworkers and agencies are not held accountable for their actions. Some private agencies provide excellent services; others decidedly do not. Many agencies are routinely permitted to fall below professionally acceptable service levels without penalty, and continue to have children referred to them. Even when private agencies' failures or inadequacies are noted by CWA, the agencies are allowed to continue to care for children without any attempt to ensure that the problems are remedied. CWA recently determined that two
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agencies provided such sub-standard care that children should be transferred to other agencies. Nevertheless on information and belief, it has still allowed hundreds of children to remain under those two agencies' supervision.
298. Beginning in 1980, a "Program Assessment Service Report" ("PAS" Report) was prepared for each private agency, purportedly to enable CWA to evaluate the agencies' performance. Although these evaluations were never done adequately, in 1989 the evaluation process was made even less rigorous when the PAS Reports were replaced with "Contractor Overall Performance Evaluation" ("COPE") Reports. COPE reports, which remain in use today, are far less comprehensive and detailed than were the PAS Reports and are used in conjunction with self assessments prepared by the agencies to self "monitor" their performance.
299. Not only does CWA fail to ensure that the private agencies fulfill their responsibilities and legal obligations to children, CWA often actively impedes their ability to do so. Recently, for example, CWA transferred approximately 850 cases to different private agencies. Many agencies received memoranda informing them that, effective immediately, they were responsible for certain children's cases. But the memoranda listed only the children's names. The children's physical whereabouts were not provided, nor were their case records, their medical histories or the identities, telephone numbers or addresses of their biological or foster parents.
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Administrative and Judicial Reviews 300. Defendants are required to provide children in the child welfare system with administrative or judicial reviews of their status at least every six months, with a dispositional hearing after eighteen months, and with regular judicial reviews thereafter. The reason for these reviews and hearings is to ensure that foster children's cases are periodically overseen by a disinterested person, that children remain in foster care for as short a period as possible, and that the children's progress toward achieving permanency is monitored so they do not languish interminably in foster care. 301. New York City foster children routinely do not receive these reviews and hearings in the time periods and manner required by law. 302. CWA fails to ensure that voluntary placement agreements are reviewed by family courts within the required time period. It routinely fails to file the motions necessary to extend foster care placements. As a result of these failures, many children are placed in foster care or allowed to remain in foster care without legal authority, subjecting them to unnecessary instability and uncertainty. And children are sometimes discharged from foster care solely because legal custody has lapsed. 303. When hearings take place, CWA frequently fails to provide information sufficient to allow informed decision-making. As a result, meaningful periodic review of the appropriateness of
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a child's placement, case plan and goal is, as a practical matter, frequently impossible.
304. When review of a child's placement does occur, CWA frequently exhibits a complete lack of accountability for the child's progress, or lack thereof. The CWA attorney is often unfamiliar with the case and the child, and is reduced to reading the file during the hearing to learn something of what is going on. A common scenario has the caseworker from the private agency handling the child's case defer to the caseworker from CWA, who in turn defers to the attorney, who is still looking in the file to learn the child's name.
305. Orders that particular services be provided or particular steps taken -- for example, that a petition to terminate parental rights and free a child for adoption be filed by a date certain -- are routinely ignored and violated. By the time the case returns for a subsequent hearing, many of the persons who attended the previous hearing have been replaced by new people unfamiliar with what was previously ordered. Accountability for noncompliance is effectively impossible.
Information System 306. CWA's information system is antiquated and inadequate. Computer systems are nonfunctional and do not contain accurate, up-to-date information. Computer-generated reports are routinely manipulated to produce statistics that CWA or DSS deems acceptable, rather than statistics that reflect either agency's performance. Because necessary recording and paperwork tasks
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that should be computerized are not, caseworkers spend fifty to sixty percent of their time completing required paperwork.
307. Record-keeping is so poor that private agencies and CWA hold widely divergent views about how many children are in the agencies' care at a given time. Many foster children cannot be physically located because CWA has no accurate address for their placement.
3 08. A May, 1994, report by the Office of the New York State Comptroller stated that while the private agencies in New York City reported 29,468 children in their care, CWA's computerized information system reported 25,653 - - a difference of 3,815 missing children. And a 1994 report by the Office of the New York City Comptroller found that CWA had listed nearly one of every five foster children by the wrong address.
309. Upon information and belief, in 1994 CWA simply lost the files of 16,000 children who may have been abused or neglected.
310. When a case is transferred from one CWA unit to another, the transfer process is not computerized. Instead, the physical transfer of the file frequently takes up to six months, during which the case remains in bureaucratic limbo, with no assessment, planning or monitoring.
311. Case records are incomplete and disorganized. Many are simply lost. Critical information is left for months on index cards, awaiting entry into computer systems. And once entered, the information is not accessible to those who need it.
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312. A November, 1993, review of a series of CWA case files indicated that it took, on average, two hours just to organize each file sufficiently to evaluate its contents.
313. Front-line caseworkers who must make critical decisions do not have access to current information necessary to make wise professional choices in the interests of children and families. Upon information and belief, one of the factors precipitating Elisa Izquierdo's recent death was that CWA's information about her and her family was located into three separate computer files.
Ineffective Maximization of Resources 314. Upon information and belief, defendants do not take the steps necessary to ensure that the New York City child welfare system receives the maximum amount of possible federal financial support. Some funds are lost because defendants do not keep adequate records, a condition of receiving federal funds, even though such revenue could provide additional, sorely needed services to the plaintiff children. 315. Many of the expenditures in the New York City child welfare system are unnecessarily high, without providing benefits for children and families. Duplication, waste, inefficiency and mismanagement have produced a system that is both bloated and lacking in necessary services. Defendants have never made serious efforts to reallocate funds in a way that would eliminate expensive waste while ensuring better services.
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Lack of Planning, and Prevailing Priorities 316. Defendants do not engage in the type of long-term strategic planning necessary to resolve the problems confronting the child welfare system. CWA commissioners rotate in and out, averaging fifteen to eighteen months per term. When new commissioners arrive, all planning typically is placed on hold for months. Planning is episodic and in reaction to real or perceived crises, not long-term and based on the needs of children and families. 317. There is no central control, guidance or leadership. The system is not professionally or consumer-driven. There is inadequate collaboration with other human service systems or state agencies. 318. Despite the demonstrated inadequacy of its present system and recommendations that child welfare and foster care services be reorganized or decentralized in whole or part, CWA has failed to seriously consider any organizational changes that might help improve its ability to serve children and families. 319. Although its provision of protection and services to children and families is woefully inadequate, unprofessional and illegal, CWA's current "reform" efforts are driven not by the goal of improved services but in large part by a single clear objective: spending less money on children and families. 320. On June 30, 1995, CWA stopped providing children leaving foster care to live on their own, or the parents to whom they are discharged, with $500 "discharge grants" to help pay a
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security deposit on an apartment or purchase furniture or clothes to facilitate the transition out of government custody.
321. On October 10, 1995, defendant Croft wrote a memorandum to defendant Giuliani in which she stated that CWA's training academy lacks the resources "to measure competency." If reductions in resources proceed according to current plans, the memorandum continued, "it will not be possible to design or implement comprehensive competency systems without the infusion of sufficient, skilled staff."
322. In 1996, CWA plans to implement a new "managed care" foster care system which will reward those private agencies that move children out of foster care more quickly, without giving adequate consideration to the quality or appropriateness of the services the agencies provide.
323. CWA's focus on the financial bottom line is further evidenced by a recent memorandum from CWA's Bronx Borough Director to the social work supervisors in her charge. Entitled "Caseloads Control," the memorandum read: "Please encourage your workers to follow this simple mathematical equation (for every opening you should have two closings/transfers). If we do so the caseload levels will remain under control."
324. After this memorandum was reported in the press, defendant Giuliani defended it as "good management."
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HISTORY OF INSTITUTIONAL FAILURE AND DEFENDANTS7 KNOWLEDGE OF THIS FAILURE 325. CWA's widespread failure to meet its legal obligations to children and families is long-standing and well known.5 For at least the past decade, these failings have been thoroughly documented and repeatedly brought to defendants' attention. 326. As early as 1984, a study prepared by the New York State Department of Social Services ("DSS") Metropolitan Regional Office -- entitled "Review of New York City Child Protective Services Program" -- concluded that child protective investigations were not completed in a timely manner in 40.5% of the cases, and that children were not even seen by the investigative worker in 27.5% of the cases. 327. In the same year, the Bronx District Actorney -- in a report entitled "The New York City Experience with Child Abuse" -- concluded that caseworkers and supervisors were inadequately trained in important areas of field work including evaluation of medical evidence, interviewing techniques, acquisition of data, preservation of evidence, and recognition and monitoring of families who manifest high risk indicators of maltreatment. 328. In 1985, the State Senate's Standing Committee on Child Care -- in a report entitled "Child Protective Services: A System Under Stress" -- determined that caseworkers often closed cases prematurely and without delivering necessary services. Nearly

s

Prior to 1987, CWA was known as Special Services for

Children. For the sake of clarity, CWA is referred to

throughout.

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half of the families sampled received no services during the pendency of child abuse or neglect investigations.
329. In 1986, a report prepared by the Neighborhood Family Services Coalition -- entitled "The Continuing Crisis" -determined that the annual staff turnover rate among protective service workers was fifty-five percent citywide, ranging from twenty-five percent in Queens to eighty-nine percent in Manhattan.
330. In 1987, HRA itself found -- in a report entitled "New York City Child Protective Services, Work Analysis Project" -that half of the Protective/Diagnostic case records which were reviewed were missing required documents. HRA further concluded that in a significant number of cases service plans and assessments were either non-existent, or exceedingly vague with no indication of how to measure progress, and the permanency goals often seemed unrealistic.
331. In 1988, HRA found further problems with the City's child welfare system. In a report entitled "Overview of Foster Care Services," HRA concluded that legally mandated caseworker visits with children in foster border homes and their foster families were completed in only forty-nine percent of the cases, that only fifty-four percent of CWA workers attended in-service training sessions, and that only half of all case managers were formally trained.
332. In 1989, a large number of reports regarding the City's child welfare system were published. The New York City
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Comptroller's office -- in a report entitled "Now We Are Four" -determined that CWA altered dates and backdated forms in twentytwo percent of its cases in order to document compliance with case planning mandates. Despite such fraudulent record-keeping, the records indicated that mandated ninety-day reviews were completed an average of thirty-nine days late, six-month UCR reviews were completed from 14 to 104 days late, and in thirteen percent of the cases studied CWA case planning had lapsed for at least a year.
333. Also in 1989, DSS concluded that CWA could not even locate fifty percent of the records requested, and that service plans often were not reviewed by supervisors or case managers.
334. The State Comptroller found -- in a report entitled "Management of Preventive Services Cases Assigned to Voluntary Agencies" -- that CWA did not properly supervise the voluntary agencies, and failed to ensure that the services provided by the agencies were sufficient to meet client needs and achieve established goals.
335. Finally, a report by the Manhattan Borough President's Advisory Council on Child Welfare -- entitled "Failed Promises: Child Welfare in NYC" -- found that caseworkers were not meeting with their clients and that, even when families were identified as needing services, such services frequently were not provided.
336. In 1990, a report prepared by CWA's Office of Field Services -- entitled "Quality Assurance and Case Enhancement Audit" -- concluded that home visits were not even attempted
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within forty-eight hours in eighty-eight percent of child protective investigations.
337. That same year, a report by the Office of the State Deputy Comptroller for the City of New York -- entitled "Delivery of Preventive Services to Children and Their Families" -- found that services deemed necessary for children and their families were often not provided, and that families and children were not receiving the minimum number of required face-to-face contacts with their caseworkers.
338. A 1990 report by the Task Force on Permanency Planning For Foster Children -- entitled "Kinship Foster Care: The Double Edged Dilemma" -- concluded that in kinship foster care cases, the goal of discharge to parent was frequently unrealistic. In some cases, the goal of reunification was continued year after year, even when the parents were doing nothing to remediate the cause of the child's removal, or when their whereabouts were genuinely unknown.
339. In 1992, HRA's Child Fatality Review Panel Report revealed that planning for the medical or health needs of families was far below accepted standards of health practice. Caseworkers often limited their review of the family's medical care needs to noting whether the children had all their inoculations.
340. Also in 1992, an assessment of CWA prepared by New York State Senator Franz S. Leichter -- entitled "New York State Abandons Victims of Institutional Child Abuse" -- concluded that
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rates at which child protective investigations were confirmed
were so low as to raise serious questions as to the effectiveness
of the investigative program.
341. In 1993, Carol W. Williams, then of the Center for the
Study of Social Policy in Washington, D.C., now Associate
Commissioner of the Children's Bureau of the federal Department
of Health and Human Services, concluded -- in a report entitled
"The Placement and Evaluation Process for Children In New York
City's Foster Care System" -- concluded that:
a. The transfer of information between CWA and private agencies is "cumbersome and frequently never completed;"
b. "Case records are often incomplete and disorganized, making critical information about a child's background and needs difficult, if not impossible, to access;"
c. Evaluations of children's needs are not carried • out in a timely manner or in accordance with good social
work practice;
d. "Available placement resources that meet the specialized needs of children are severely inadequate in the City, particularly for troubled adolescents, children with severe behavioral and emotional problems, and young teens with babies;"
e. "Many children unnecessarily experience multiple placements;"
f. "Serious staffing, training and supervision problems throughout the system negatively impact on all areas of practice;" and
g. CWA's computer system does not support good social work practice.
342. Also in 1993, a report prepared by the Courts Committee
of the Mayor's Commission for the Foster Care of Children --
entitled "Child Welfare at a Crossroads" -- concluded that
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caseloads of CWA case managers and their supervisors had grown unacceptably high and were at unmanageable levels. Indeed, these caseload levels virtually precluded any face-to-face contact between the case manager, private agency staff and the families served.
343. In 1994, a study conducted by the State Comptroller's office -- entitled "Children in Foster Care in Voluntary Agencies Not Receiving All Required Services" -- determined that CWA was failing to properly monitor the care provided tc children by private agencies. Seventy-nine percent of the cases reviewed had at least one private agency service plan that had not been approved by a CWA case manager.
344. Finally, also last year, a report prepared by the New York City Comptroller -- entitled "Now We Are Nine" -- determined that the timeframes set forth in state regulations and CWA policies which seek to assure that no child experiences prolonged stays in foster care, were consistently unmet and unenforced. The report concluded that CWA's disregard for milestones had deprived children of the permanency planning mandated by the law.
345. Despite this year-after-year, comprehensive documentation of defendants' illegal conduct, defendants have failed to remedy these multiple problems or to bring the New York City child welfare system into compliance with the law.
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CAUSES OF ACTION First Cause of Action, Against All Defendants 346. As a result of the foregoing actions and inactions of the defendants, plaintiff children are being deprived of the rights conferred upon them by the First, Ninth and Fourteenth Amendments to the Unites States Constitution. These rights include but are not limited to their right to protection from harm; their right not to be deprived of a family relationship absent compelling reasons; their right not to be harmed -physically, emotionally, developmentally or otherwise -- while in state custody; their right not to remain in state custody unnecessarily; their right to be housed in the least restrictive, most appropriate and family-like placement; their right to treatment; their right to equal protection of the law and not to be discriminated against by virtue of their handicap or disability; their right to receive care, treatment and services consistent with competent professional judgment; and their right not to be deprived of state or federally created liberty or property rights without due process of law. Second Cause of Action, Against All Defendants 347. As a result of the foregoing actions and inactions of the defendants, the plaintiff children are being deprived of the rights conferred upon them by the federal Adoption Assistance and Child Welfare Act of 1980 and the State plan approved and adopted as a condition of New York receiving federal funding under the Act. These rights include but are not limited to plaintiff
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children's right to have defendants implement a preplacement preventive services program designed to help children remain with their families or be returned to their families; their right to timely written case plans that contain mandated elements and to the implementation and review of these plans; their right to placement in foster homes or facilities that conform to nationally recommended professional standards; their right to placement in the least restrictive, most family-like setting; their right to proper care while in custody; their right to planning and services to secure their permanent placement at the earliest possible time; their right to regular judicial and administrative reviews of their foster care placements; their right to dispositional hearings within eighteen months of entering custody and periodically thereafter; and their right to receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests.
Third Cause of Action, Against All Defendants 348. As a result of the foregoing actions and inactions of the defendants, the plaintiff children are being deprived of the rights conferred on them by the federal Child Abuse Prevention and Treatment Act. These rights include but are not limited to the plaintiff children's right to prompt and professional investigations of allegations of abuse or neglect; their right to protection form those who endanger their health and welfare; and their right to such administrative procedures, trained and
103
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IJA-183 |
qualified personnel, programs and facilities as are necessary to address the problems of child abuse and neglect in New York City.
Fourth Cause of Action, Against All Defendants 349. As a result of the foregoing actions and inactions of the defendants, the plaintiff children are being denied the rights conferred upon them by the Early and Periodic Screening, Diagnosis and Treatment program of the federal Medicaid Act. These rights include but are not limited to the plaintiff children's right to receive periodic general physical health examinations administered by competent medical professionals at age-appropriate intervals determined by a panel of independent health care experts; their right to receive periodic hearing and eye examinations, mental health examinations, dental examinations and lead blood tests, administered by competent medical professionals at age-appropriate intervals; their right to receive all necessary childhood vaccinations and boosters at appropriate times; and their right to receive any and all treatments deemed necessary by a qualified medical professional conducting any of the above-mentioned periodic health examinations.
Fifth Cause of Action, Against All Defendants 350. As a result of the foregoing actions and inactions of the defendants, the plaintiff children are being deprived of the rights conferred upon them by the federal Multiethnic Placement Act of 1994. These rights include but are not limited to the right to have potential foster and adoptive parents aggressively
104

IJA-184 I
recruited from among racial and ethnic minority communities to facilitate prompt and appropriate foster and adoptive placements.
Sixth Cause of Action, Against All Defendants 351. As a result of the foregoing actions and inactions of the defendants, the plaintiff children who are handicapped or disabled by their physical or emotional conditions are being deprived of the rights conferred upon them by the federal Americans with Disabilities Act and the federal Rehabilitation Act of 1973. These rights include but are not limited to the plaintiff children's right to participate fully and receive the benefits of the state child welfare and foster care programs; and their right to receive any and all services necessary for them to participate fully in the state foster care program despite their handicaps or disabilities.
Seventh Cause of Action, Against Defendants Giuliani, Hammons and Croft 352. As a result of the foregoing actions and actions of the defendants, the plaintiff children are being denied the rights conferred upon them by Article XVII of the New York State Constitution. These rights include but are not limited to the plaintiff children's right to not arbitrarily or capriciously be denied those benefits to which they are entitled by virtue of their status as needy persons.
Eighth Cause of Action, Against Defendants Giuliani, Hammons and Croft 353. As a result of the foregoing actions and inactions of the defendants, the plaintiff children are being deprived of the
105

JA-185
rights conferred upon them by state statutory laws and regulations. These rights include but are not limited to the plaintiff children's right to have allegations of child abuse or neglect investigated within specified time periods and in a specified manner; the right of each child who is determined to be eligible for pre-placement services or who is in foster care to be provided with a service assessment and a service plan within specified time periods and in a specified manner; the right of each plaintiff child and her family to receive services in accordance with the child's service assessment and plan, including case contact, case planning and case management services; the right of children in foster care to reside in a placement appropriate to her particular needs and to receive necessary supportive and rehabilitative services; the right to have all potential foster homes, foster parents and other placements investigated and monitored in a specified manner before any plaintiff children are placed in them; the right to have those homes and placements supervised, visited and inspected periodically in a specified manner; the right of all foster children to either be returned to their families or freed for adoption and adopted so as not to languish interminably in foster care; the right to have their cases judicially and administratively reviewed at specified intervals and in specified manners; and the right to be served by a child welfare system with policies and personnel adequate to enable it to fulfill all
106

IJA-186
state and federal mandates in accordance with reasonable professional standards.
PRAYER FOR RELIEF 354. The plaintiffs respectfully request that the court grant the following relief:
a. Assume jurisdiction over this action; b. Certify this action as a class action pursuant to Rule 23(a) & (b)(2) of the Federal Rules of Civil Procedure; c. Enter declaratory and injunctive relief necessary and appropriate to remedy the defendants' violations of the plaintiffs' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 United States Code §§ 620-27, 670-79a; the Child Abuse Prevention and Treatment Act, 42 United States Code §§ 5101-06a; the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program of the Medicaid Act, 42 United States Code §§ 1396a, 1396d(a) Sc (r); the Multiethnic Placement Act of 1994, 42 United States Code § 622(b)(9); the Americans with Disabilities Act, 42 United States Code §§ 12101 et. seq. ; the Rehabilitation Act of 1973, 29 United States Code § 794, 794a; Article XVII of the New York State Constitution; the New York State Social Services Law, Articles 2, 3, 6 & 7; the New York State Family Court Act, Articles 6 & 10; and applicable state regulations, 18 N.Y.C.R.R. §§ 400-484;
107

IJA-187
d. Award to the plaintiffs the reasonable costs and expenses incurred in the prosecution of this action, including but not limited to reasonable fees and costs pursuant to 42 United States Code § 1988;
e. Appoint a receiver with full authority to oversee and direct the implementation of all the injunctive relief granted by the court, to restructure the New York City child welfare system, and to take all steps necessary to ensure that the child welfare system operates in full compliance with all applicable law;
f. Retain jurisdiction of this matter to ensure full, adequate and effective implementation of the relief ordered by the court; and
g. Enter such additional relief as the court may deem necessary and appropriate.
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JA-188
Respectfully submitted,
MARCIA ROBINSON LOWRY (MLCRAIG LEVINE* MARK G. PETERS (MP-9735) REBECCA KIM KIMURA (RK-2546) MARTHA STONE* Children's Rights, Inc. 132 West 43rd Street New York, New York 10036 (212)944-9800 ext. 684

KAREN FREEDMAN (KF-2632) GAYLE LERNER (GL-4179) Lawyers for Children, Inc. 110 Lafayette Street New York, New York 10013 (212)966-6420
COUNSEL FOR PLAINTIFFS

Dated:

New York, New York December 13, 1995

* Not a member of the bar of the Southern District of New York

109

 
 Marisol A. v. Giuliani

JA-728

CW-NY-001-002

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MARISOL A., by her next friends, Rev. Dr. James

Alexander Forbes, Jr., and Raymunda Cruz;

\

LAWRENCE B., by his next friend, Dr, Vincent Bonagura; .

THOMAS C . by his next friend, Dr. Margaret T. McHugh;

SHAUNA D., by her next friend, Nedda De Castro; ,

OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins;

DARREN F. and DAVID F., by their next friends, ]

Juan A. Figueroa and Rev. Marvin J. Owens;

'

BILL G. and VICTORIA G., by their next friend, ;

Sister Dolores Gartanutti; BRANDON H., by his next friend,

.Thomas J.Moloney; and STEVEN I., by his next friend,

Kevin Ryan, on their own behalf and on behalf

of all others similarly situated, •
:

i Plaintiffs, •

and '

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DANIELLE J., by her next friend, Angela Lloyd; and

RICHARD and WALTER S., by their next friends, W.N. and N.N.,

on behalf of themselves and all others similarly situated,

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Intervening Plaintiffs,

SETTLEMENT AGREEMENT
95 CV 10533 (RJW)

- against -
RUDOLPH W. GIULIANI, Mayor of the City of New York; JASON TURNER, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York; NICHOLAS SCOPPETTA, Commissioner of the New York City Administration for Children's Services; GEORGE E. PATAKI, Governor of the State of New York; and JOHN JOHNSON, Commissioner of the New York State Office of Children and Family Services,
Defendants.

• i
WHEREAS, Plaintiffs brought this lawsuit by complaint styled Marisol A., et al. v. Rudolph W. Giuliani: et »1. (the "Marisol Litigation"), filed December 13, 1995, seeking certification of a class and declaratory and injunctive relief against Rudolph W. 'Giuliani, Mayor

' 1
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1 JA-729

of the City of New York, Marva Livingston Hammons, Administrator of the Human Resources

Administration and Commissioner of the Department of Social Services of the City of New York,

and Kathryn Croft, Executive Deputy Commissioner of the City Child Welfare Administration

in their, official capacities (hereinafter collectively referred to as "the City"), and against certain

defendant officials of the State of New York in their official capacities (hereinafter collectively
i
referred to as 'the State"); and

WHEREAS, Jason Turner subsequently replaced Marva Livingston Hammons as
i
Administrator of the Human Resources Administration and Commissioner of the Department of

Social Services of the City of New York and was substituted for her in his official capacity as
:

a defendant herein by operation of law; and

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WHEREAS, at the time this suit was filed, Mayor Rudolph W. 'Giuliani had

already begun a review of the New York City Child Welfare Administration ("CWA"), and, being

committed to reform of child welfare in New York City, thereafter determined to create a new

agency to handle child welfare in New York City, and '

.

WHEREAS, on January 15, 1996, Mayor Giuliani created the Administration for

Children's Services ("ACS"), appointing Nicholas Scoppetta as its first Commissioner and

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Commissioner Scoppetta, in his official capacity, was subsequently substituted for Kathryn Croft

!

WHEREAS, on December 19,1996, Mayor Giuliani and Commissioner Scoppetta

as a defendant herein; and . '

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issued the document "Protecting the Children of New York: A Plan of Action for the

Administration for Children's Services" (the "Reform Plan") to respond to significant problems

in CWA's operation; and :

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JA-730 I1

WHEREAS, the Advisory Panel, referred to in paragraph 4, below, found that the

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Reform Plan, while "not a finished roadmap," "offers a thoughtful, coherent, broad and

appropriately ambitious vision and framework to guide the design and implementation of the

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numerous . . . changes that will be required to dramatically improve the City's; child welfare

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system [ a n d ] . . . could well serve as a durable foundation for focusing what will: by necessity,

be several years of refinement and . . . implementation"; and

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WHEREAS, the Court in this action, by order entered July 5, 1996, certified a

class of "all children who. are or will be in the custody of the New York City Administration for

Children's Services ("ACS"), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS"
i (hereinafter "Plaintiffs," which term includes both named representative Plaintiffs and the
members of the Plaintiff class) and certification of that class was upheld on appeal;by the United

States Court of Appeals for the Second Circuit; and

! ;

WHEREAS, the City denies all wrongdoing alleged in this action and denies any

liability whatsoever to Plaintiffs, and whereas the City asserts that it has meritorious defenses

which it has asserted in this action, and asserts that it has entered into this Agreement solely for

the purpose of settling and compromising the claims of the Plaintiffs, in order to avoid the

expense and diversion of its personnel caused by protracted litigation, and to terminate the claims

asserted against the City in the Marisol Litigation as provided herein; and

:

WHEREAS, a class of children subject to foster care placement by the City's child

welfare agency had previously brought a lawsuit in this Court against the City captioned Wilder.

et al. v. Bernstein, et al.r 78 Civ. 957 ('Wilder"), which lawsuit was settled and the settlement

JA-731 I

was ultimately approved by the Court and became effective in 1988; and

I

WHEREAS, the parties (references to "party" or "parties" herein shall mean the

Plaintiffs and/or the City, who are the only parties to this Agreement) shall jointly apply to

dismiss Wilder with prejudice in accordance with the terms of this Agreement, and the obligations

created by Wilder shall be dealt with pursuant to the terms of this Agreement; and

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WHEREAS, the City asserts mat, beginning in November 1995 and continuing

after the filing of the Marisol Litigation, the City has taken actions including the following:

creating and restructuring ACS, promulgating the Reform Plan, and implementing key reforms.

to the child welfare system, including hiring over 1,250 new caseworkers who meet heightened

eligibility standards; expanding the training program for new caseworkers and introducing the

first-ever agency-wide supervisory training program; reducing the average child protective

caseworker's caseload from 27 in June 1996 to 12.8 in August 1998; establishing Instant

Response Teams composed of caseworkers, lawyers from the District Attorney's office, police

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officers, and staff from Child Advocacy Centers to respond in cases of severe child,abuse or

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fatalities; completing 4,009 adoptions in Fiscal Year 1997, a 73% increase for New York City

over the base year of Fiscal Year 1994 and 3,848 adoptions in Fiscal Year 1998, a 66% increase

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over 1994; and issuing a Request for Proposals for a neighborhood-based foster care system in

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the Bronx that is intended to be expanded to the other four boroughs; and

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WHEREAS, the continued reform of the child welfare system and the best interests

of the class will be substantially advanced by the settlement of the Marisol Litigation oased on

-. the novel and innovative resolution reflected in this Agreement, rather than by a trial on the

jrierits, '

j^jj;:?- •

IJA-732 1

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NOW THEREFORE, in consideration of the covenants and undertakings set forth

herein and intending to be legally bound thereby, it is stipulated and agreed by the Plaintiffs and

the City, represented by their undersigned.counscl, that all of Plaintiffs' claims for relief which

were or could have been asserted in this action shall be resolved, on the following terms as set

forth in this Settlement Agreement (the "Agreement"): •

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A.

Jurisdiction and Authority of the Court

1. After notice of and an opportunity to comment on the Agreement has been

provided to the Plaintiff class, the Court shall determine whether to approve this Agreement as

being a fair, reasonable, and adequate settlement of the Marisol Litigation. Except as otherwise

noted, the terms of this Agreement shall not take effect until the Court issues its order approving

this Agreement and enters a judgment dismissing this action as against the Qty pursuant to

paragraph 2.

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i 2. At the time of the Court's approval of this Agreement,' the Court will
i
forthwith enter a judgment dismissing the City from the Marisol Litigation, with prejudice, except

that the Court shall retain jurisdiction solely for the purposes of (a) enforcing the terms of this

Agreement during its term; (b) adjudicating any proceeding pursuant to the provisions of

Sections E or F of this Agreement brought prior to December 15, 2000, or which'is pending on

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December 15,2000, and providing relief if warranted; (c) adjudicating the Marisol Litigation and

• i providing relief if warranted, in the'event that this Agreement becomes null and Void pursuant

to Section K of this Agreement. The parties agree not to contest the jurisdiction of the Court

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under the circumstances described in (2)a through 2(c) above.

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IJA-733 1

3. This binding and enforceable Agreement is not, nor shall it be construed

as, a Consent Decree.

B,:

Advisory Panel: Composition

4. An Advisory Panel of experts in the child welfare field ("the Advisory

Panel") has been selected and approved by the parties to undertake the various tasks specified in
• *
this Agreement The Advisory Panel consists of the following members: Judith Goodhand, John

Mattingly, Douglas Nelson and Paul Vincent Other individuals may be added to '.the Advisory

Panel at the recommendation of the Advisory Panel and upon the approval of both the City and
i
the Plaintiffs, which approval shall not be unreasonably withheld. Any Advisory Panel

recommendation pursuant to this paragraph must be upon written notice to the parties, and will

be accepted unless disapproved by either party within ten (10) business days after receipt of such

notice. The Advisory Panel may employ such staff as it deems appropriate or necessary to fulfill

its purposes.

;

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5. The parties have consented to the terms of this Agreement upon the

understanding that Advisory Panel members have undertaken personally to carry out the functions

« !

described below during the term of this Agreement .

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6.

' I If during the term of this Agreement any Advisory Panel member named

in paragraph 4, above, becomes unable to continue to act in his/her capacity as an Advisory Panel

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member, the remaining members of the Advisory Panel shall recommend a substitute member to

• .

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HieCity and the Plaintiffs for their approval, which approval shall not be unreasonably withheld.

Any Advisory Panel recommendation pursuant to mis paragraph must be upon written notice to

IJA-734 |
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the parties and will be accepted unless disapproved by either party within ten (10) business days

after receipt of such notice. .

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C.

Advisory Panel Tasks: Initial Reports :

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7. The Advisory Panel shall study the five areas of ACS's operation described

I below and shall produce a report (Initial Report") in each area. In each Initial Report the

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Advisory Panel will present recommendations as to the additional or different steps, if any, that

ACS should consider taking as part of ACS's efforts toward reform in that area. !

8. The parties agree that the ACS Reform Plan, referred to above, will be the

starting point for the Advisory Panel's review of the operational areas it will study; that is, the
i
Advisory Panel will not attempt to suggest approaches that would differ from the Reform Plan's

overall goals and principles, but will assess ACS's operations in any given area in line with those

starting points. 9.

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ACS agrees, during the terra of this Agreement and starting with the

•

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signing of this Agreement, to cooperate fully with the Advisory Panel's review processes, to

consider fully each recommendation made by the Advisory Panel and to provide the Advisory

Panel full access to information, documents and personnel as it may request !

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i 10. The Advisory Panel's recommendati;ons are not binding on ACS or the City

but arc purely advisory, intended to assist ACS in achieving the reform goals it has set in each

area under review.
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11. The areas to be reviewed by the Advisory Panel are:

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a. The areas and issues discussed in the "Advisory Report on

Permanency Issues in the New York City Child Welfare System", submitted to the

IJA-735 |:

Plaintiffs and the City on September 4, 1998 (the "Permanency" subject matter area).

b. Placement and evaluation issues arising out of an agreed-upon set
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of existing legal obligations in Wilder set forth in paragraph 3O.b, below ("Wilder

Obligations").

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c. : Monitoring and improving the performance of private agencies that

contract with the City to provide services, delegation of case management, enhancing on-

site reviews, utilizing incentives for good performance, and.creating standards and

outcome-based objectives which better track contract agency perfonnance ("Contract

agencies").

d. The capacity to track front line practice at ACS as it relates to

subject matter areas II,a, ll.b, and 11 .c above, so that ACS may better monitor,

. evaluate, and where necessary, improve the quality of such practice ("Front line

practice").

e. The system for evaluating and improving the quality, qualifications,

and performance at the supervisory level of ACS as it relates to subject matter areas 1La,

. ll.b, ll.c and ll.d above ("Supervisory practice").

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12. Notwithstanding the foregoing identification of the subject matter areas to

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be within the purview of the Advisory Panel, when in the course of performing its duties the

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Advisory Panel observes or learns about other activities or programs of ACS that'directly affect

subject matter areas 1'l.a, ll.b, or ll.c above, it shall be within the province of the Advisory li
Panel, at its sole discretion, to incorporate within its review of such subject matter areas, such

activities or programs as may impact the subject matter areas under review. •

IJA-736

13. If in the course of performing its duties, the Advisory Panel observes or

leams about activities or programs that do not directly affect subject matter areas 11.a, ll.b, or

ll.c above, but which in its judgment and expertise should be reviewed by ACS, the Advisory

"Panel may, at its discretion, give advice to ACS concerning such activities or programs; such
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advice will be informal, whether oral or written, and will not be included in any Advisory Panel

report or review.

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14. . In accord with the Advisory Panel's procedure in creating its first Initial

i Report on Permanency, the Advisory Panel will provide a draft of each subsequent Initial Report

to the parties, will receive and discuss with each party any comments that party wishes to make

concerning the draft, and thereafter will issue the final version of that Initial Report.
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15. The Initial Reports shall be provided to the parties and the Court, and may

thereafter be released to the public. .

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16. Upon the parties' signing of this Agreement, the Advisory Panel shall

commence its review of the areas described in paragraph ll.b-ll.e, beginning with the area

described in paragraph ll.b.

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17. At the same time as it reviews the issues described above in paragraph 11 .b,

the Advisory Panel shall review the steps ACS has taken to fulfill the purpose of the Interim

Stipulation and Order Concerning Overnights at Pre-Placement which was "so ordered" by this

Court on July 17,1997 (the "July 1997 order") and provide advice to ACS pursuant to paragraph

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12 above. The parties agree that the obligations contained in the July 1997 order will expire and

terminate upon the Court's approval of this Agreement; the parties further agree that these

obligations should be suspended during the remaining period prior to their expiration and

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1JA-737 1

termination. The parties agree that, upon the signing "of this Agreement, they will seek forthwith,

by an order to show cause with a proposed temporary restraining order, the Court's approval for

such suspension. 18.

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Plaintiffs' counsel shall be provided with the following reports within a

reasonable time, not to exceed twenty (20) business days after they arc produced: Office of

Management Development and Research "data book" reports, which include adoption timeliness

reports and data reflecting pre-placement overnights; ACS "Updates;" 153-d sanction reports; final

.COPES reports or any reports that ACS substitutes for final COPES reports to measure

agency/ACS performance and/or outcomes; and PTS reports on child evaluations.

D.

Advisory Panel Tasks: Periodic Reports

=

19. After the Advisory Panel has completed its five Initial Reports, as specified
I in paragraphs 7, 11, and 14 above, it shall continue to review ACS's operations in-the five areas

studied, and shall produce periodic reports ("Periodic Reports") on these areas,'which, when

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completed, shall be promptly provided to the parties and to the Court.

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20. The focus of the Periodic Reports will be to determine whether or not, in

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the Advisory Panel's opinion, considering all of the applicable circumstances, ACS is acting in

I good faith in making efforts toward reform in the operational areas being reviewed.

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.21, The Advisory Panel will not determine ACS's "good faith"',solely on the

basis of whether ACS is implementing any or all of the Advisory Panel's recommendations, or

whether such implementation is being done on any specific schedules proposed by the Advisory

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Panel, or whether any reform efforts are actually effective in bringing about reforrn, or whether

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the City has given the Advisory Panel access to information, but the Advisory Panel may consider

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these, as well as other, factors.

22. In determining whether ACS is making good faith efforts toward reform

in a particular area, the Advisory Panel must also consider the extent to which a variety of

significant legal and operating constraints may have blocked or delayed implementation of

reform. Such constraints may include limitations derived from the United States and New York

State Constitutions, federal or state law or regulation, civil service laws or regulations, collective

bargaining agreements, or diminution of funding.

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23. Prior to issuing a Periodic Report, the Advisory Panel shall provide to the

parties a draft Periodic Report containing an explanation of the basis for any finding as to

whether or not ACS is operating in good faith in the area reviewed by the Advisory Panel, and
the Advisory Panel shall convene a meeting with the appropriate ACS officials to give ACS an |
opportunity to discuss the Advisory Panel's tentative findings and conclusions. The Advisory
i.
Panel shall issue the final version of its Periodic Report no later than forty-five. (45) days after

issuing the draft version.

24. The Advisory Panel in its Periodic Reports will state its conclusions,

separately for each area reviewed, as to whether or not ACS is operating in good faith in that

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area. If the Advisory Panel's draft Periodic Report contains a conclusion that ACS is not acting

in good faith in a particular area, the subsequent final version of that Periodic Report, if it retains

that conclusion after discussion with ACS as provided in paragraph 23, above, must also contain

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an explanation of the basis for that finding and a statement of what specific steps, ACS should

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take to demonstrate good faith in that area of its operations. .

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IJA-739 |

25. The parties acknowledge that a purpose of this Agreement is to avoid
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further litigation and disputes between the parties and to further improvements in child welfare

in New York City. In furtherance of this purpose, after the Advisory Panel releases an Initial

Report in a subject matter area, it is agreed that the Advisory Panel has discretion to determine

the extent to which it will consider arguments by the parties concerning its proposed findings of
i
good faith. Nothing in this Agreement creates any rights for Plaintiffs to utilize the Advisory

Panel as, in effect, arbitrators or administrative lawjudges with respect to any disputes Plaintiffs

may have with ACS. Nothing contained in this paragraph shall limit the City's rights as provided

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in paragraph 23, above.

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E.

Consequences of a "Not in Good Faith" Findine in a Periodic Report

26. Only if the Advisory Panel finds in a given area that, considering all the

applicable circumstances, ACS is not acting in good faith in making efforts toward reform in that

area, may Plaintiffs move to bring the matter and the Advisory Panel's finding before the Court,

pursuant to thejurisdiction retained in paragraph 2, above, and seek an adjudication that the City

has violated the legal rights of the class in the area reviewed, and that Plaintiffs5 are entitled to

relief. In such proceeding, the Advisory Panel's finding shall be prima facie evidence that ACS

is not acting in good faith. The parties stipulate to the admissibility in evidence of the Advisory

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Panel's Initial and Periodic Reports and the testimony of the Advisory Panel members. The City

reserves its right to contest the contents of such Reports and the testimony of the Advisory Panel

members.

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27. To prove that the City has violated the legal rights of the Plaintiffs in the

area reviewed, the Plaintiffs must prove liability under" the applicable laws identified in those

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JA-740 1

claims contained in the Complaint and Intervening Complaint in the Marisol Litigation which

were not dismissed by the Court prior to the signing of this Agreement and which are related to

the subject-matter areas for which the Advisory Panel has determined, pursuant to paragraphs 20-

22, above, that ACS is not acting in good faith. The City may assert any and all applicable

defenses on the issues of liability and of relict The parties acknowledge that'all prior legal

rulings in this case are the "law of the case".

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28. Plaintiffs shall have not more than thirty (30) days after the Advisory
I Panel's issuance of a final Periodic Report containing a not-in-good-faith finding to commence

a proceeding under Sections E or F, unless otherwise agreed by the parties in w!iriting.

29. The parties agree not to contest the finality of an adjudication pursuant to

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Sections E or F for the purpose of an appeal.

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F.

Special Provisions Applicable in the "Wilder" Subject Area S

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30. a.

l Whereas, the City and the Plaintiffs recognize tha:t the following

principles were established in Wilder ("Wilder Principles"), which is being dismissed with

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prejudice and finally terminated in accordance with the terms of this Agreement;

i. All children, whether placed with relatives of non-relatives,

shall be placed on a first-come first-served basis in the best available agency program that

is appropriate for the child's needs, regardless of the child's race or religion. All children

placed in foster boarding homes shall be placed with foster boarding home families

appropriate for their needs; and

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ii. ACS and the contract agencies shall follow practices and

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policies that ensure that children in placement have the right to be free from the

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imposition of religious practices and have the right to practice their own "religion while

in placement: and

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iii. The City will continue its efforts to improve'the quality of

care available to all children in placement; therefore,

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b. Pursuant to paragraph ll.b, above, the Advisory Panel shall

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examine, in light of the principles set forth in paragraph 3O.a, immediately above,-'the following

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Wilder Obligations, and shall make an Initial Report which will include recommendations on

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whether to retain, modify, substitute for or eliminate any of the following obligations:

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. i. implement a classification system, to be developed by an

outside consultant, that measures and classifies all placement agency "programs by :
i
"meaningful differences in quality" within the various program categories;

i
ii. maintain accurate vacancy lists and establish waiting lists for

i

certain programs, when appropriate;

,

• ;

iii. determine children's service needs, level of care, and

program type by an evaluation performed by qualified personnel in accordance with good

social work practice, so that an appropriate placement can be chosen for them; such

!

evaluation shall be done prior to placement or not later than thirty (30) days after referral

to ACS for placement or in the case of placement prior to evaluations, not longer than

" !

thirty (30) days after actually being placed;.

i i

i

i

iv. determine appropriateness of placements in certain cases by

conducting a de novo review of the child's placement and of the child's needs within ten

(10) days after the child's evaluation is completed;

.

14

|jA-742 [

V. employ two hundred (200) Child Evaluation Specialists (a

title requiring the employees to hold at least an MSW degree) to conduct the evaluations

and review the appropriateness of each child's placement; vi. ensure that foster care agencies accept all children referred

to them, except where the agency lodges a "therapeutic objection" subject to ACS's

overruling, which the agency may challenge before an impartial arbiter, and

. '

vii. ensure that foster' care agencies conduct the required

screening of kinship foster homes and training of kinship foster parents and provide

required services to children in kinship foster care. . .

31. In accordance with Section D, the Advisory Panel will thereafter review

ACS's activities in response to the Initial Report which sets forth the Advisory Panel's

recommendations on the Wilder Obligations. If the Advisory Panel finds in a Periodic Report,

considering all of the applicable circumstances, that ACS is not acting in good faith in its

response to the Advisory Panel's report identified in paragraph 3O.b, above, which finding shall

be a required prerequisite to a proceeding under this paragraph 31, including subparagraphs a and

i

b, Plaintiffs 6hall have the right to move for judicial enforcement of the Wilder Obligations,

I

.

!

pursuant to the jurisdiction retained in paragraph 2, above, in the following manner:

!

. •

•

!

i

a. With respect to any recommendation to retain a Wilder Obligation,

Plaintiffs may bring the matter and the Advisory Panel's findings before the Court as prima facie

evidence that the City is not acting in good faith. The Advisory Panel's findings shall also be

prima facie evidence of a violation of such Wilder Obligation and the City agrees that in

responding thereto, it shall not argue that there is no basis for any such Wilder' Obligation.

IS

IJA-743 1

\

b. To the extent that the Advisory Panel makes a recommendation to
•
substantively modify a Wilder Obligation or to substitute some new or different mechanism

therefor. Plaintiffs may bring the matter and the Advisory Panel's findings before the Court.

Plaintiffs shall be required to prove that such modification or mechanism is consistent with the

Wilder Principles and that the Wilder Obligation that the Advisory Panel has ^proposed be
: i modified or replaced has been violated. The parties stipulate that the Advisory Panel's report and

testimony of its members shall be admissible in evidence with respect to those issues.

32. In response to such a motion by Plaintiffs in cither circumstance described

in paragraph 31, above, the City retains the right to raise any and all defenses, including the

defense that it has acted in good faith and/or that some or all of the recommendations of the • ;
Advisory Panel are not appropriate and should not be the subject of any court order, with the

exception of the defense foreclosed in paragraph 31.a, above, which is being waived solely in the

circumstances cf paragraph 31.a, above.

;

33. Upon the parries' signing of this Agreement, the parties agree to suspend

immediately the following Wilder-related activities: meetings and discussions between and

among the City, Plaintiffs* counseland various other parties; all discovery obligations of any

kind; all obligations to provide information and data to Plaintiffs* counsel; and applications to

' •

j

i

the Court except as provided in this paragraph. The parties agree that the following additional

i

activities should be suspended, and agree to jointly seek forthwith by an order to show cause with

j

1

a proposed temporary restraining order the Court's approval for such suspension: court

conferences and all activities of the Wilder settlement panel, including any audits or case reviews. ' !
Notwithstanding the foregoing, the City acknowledges the existence of the Wilder Obligations

16

IJA-744 |

;

<

identified in paragraph 3O.b, above, and agrees to continue in good faith its efforts to comply

with the Wilder Obligations pending the completion of the Advisory Panel's review in this area.

The parties further agree that they will apply forthwith to the Court for a final judgment

dismissing Wilder, together with all obligations created by or under the Stipulation settling that

action and the orders issued by the Court in that litigation, on the ground that'all remaining

applicable rights of the parties to that litigation will be adequately protected through this

Agreement, such dismissal to take effect upon the final approval of this Agreement by the Court,

pursuant to paragraph 2, above.

:

34. The parties agree to take such steps as are necessary to adjourn the pending
i
appeal in Wilder. Thereafter, upon the dismissal of Wilder, such appeal 6hall be withdrawn.

G.

Payment of Attorneys' Fees and Costs and Advisory Panel's Expenses

i

35. a.

The City agrees that Plaintiffs, based on the A! greement, are I

statutorily eligible for an award of attorneys' fees and costs incurred prior to the signing of the

Agreement, which materially alters the legal relationship between the parties'as sought by

i

Plaintiffs in the Marisol Litigation in a way that directly benefits the Plaintiffs. The City

|

I

reserves all rights to contest the amount, including the reasonableness, of such fees and costs.

.

j

b. Additionally, Plaintiffs reserve the right to argue in any fee

application that they are entitled to -fees and costs by reason of any outcome of the Marisol

Litigation that is not based on the Agreement. The City reserves the right to oppose, on any and

all grounds, any application, or part thereof, made pursuant to this sub-paragraph 35.b.

!

•

36. Plaintiffs' counsel shall be eligible for attorneys' fees and costs for any

i

activities in which they may engage after signing this Agreemenr which are permitted by this

17

IJA-745 |

! ;

Agreement and may seek such fees only for an amount up to but not exceeding a combined total

of twenty-five thousand dollars (S25.000.00) for all such activities. However, if Plaintiffs are a

prevailing party in a Section E or F proceeding, Plaintiffs' counsel may seek additional attorneys*

fees and costs in connection with that proceeding which were incurred after the issuance of the

not-in-good-faith finding that led to that proceeding. 42 U.S.C. 1988 shall provide the governing

standard ibr the award of any such fees and costs in a Section E or F proceeding.
4
37. The expenses of the Advisory Panel will be paid by the Annie E. Casey

Foundation; the City and the Plaintiffs express their gratitude for the generosity of the Annie E.

Casey Foundation.

•

!

.

H.

Exclusive Remedy

•

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s

!

38. Upon the signing of this Agreement, there shall be no further legal

proceedings in the Marisol Litigation except pursuant to paragraphs 1 and 17 and Sections E and

F of this Agreement.

i

!

:

i

1

L

Duration of this Agreement

j

|

•'

I

39. This Agreement shall expire and terminate on December 15,2000. On that

j
date, the Court's jurisdiction over this Agreement will cease, and the Court will enter a further

judgment terminating any remaining jurisdiction over this Agreement and the parties, with

prejudice, for all purposes, except as provided in sub-paragraphs 2.b and 2.c above, if the

j

:

circumstances described in those sub-paragraphs arise.

•.

:

i

J.

Covenants Not to Sue

;

j

40. Plaintiffs agree that they will not sue, or bring or assign any cause of action

in any court, for specific performance or enforcement of this Agreement, during or after

18

JA-746 1:

•

•

!

expiration of its term, except as otherwise provided in Sections E and F of this Agreement.

41. Plaintiffs agree that they will not sue, or bring or assign' any cause of

action, for systemic declaratory, injunctive, or other form of equitable relief against the City (as

"City" is defined in the first "Whereas" clause, above), or any "releasee" (as defined in paragraph
i
47, below), in this or any other Court, based on events occurring prior to the signing of this

Agreement and based on, arising out of, or relating to any claims that were or could have been

asserted in the Complaint or Intervening Complaint in the Marisol Litigation, except as otherwise

provided in Sections E and F of this Agreement.

:

j

: "

42. a. In the interests of permitting the parties and the Advisory Panel to

•

•

j

focus upon and achieve the objectives of this Agreement, Plaintiffs agree that they shall not

commence any new action for systemic declaratory, injunctive or other form of equitable relief

based on facts, events, actions or omissions by the City (as "City" is defined in the first

"Whereas" clause, above) or any "releasee" (as defined in paragraph 47, below) which relate in

any way to any claim raised in the Marisol Litigation, as described in Plaintiffs' Statement of i
Claims to be Tried, set forth in the Pre-Trial Order dated July 16, 1998, and which occur after

the signing of this Agreement and prior to December 15, 2000.

:

b. Plaintiffs further agree to defer and not to commence before

December 16, 2000, any new action for systemic declaratory, injunctive ort other form of
equitable relief based on facts, events, actions or omissions by the City, (as "City" is defined in «
the first "Whereas" clause, above) or any "releasee" (as defined in paragraph 47, below) which

relate to claims raised in the Marisol Complaint or Intervening Complaint which were not

contained or described La Plainrifls* Statement of Claims ID be Tried, set forth in the Pre-Trial

19

IT ••'!

JA-747 . i
i

Order dated July 16, 1998, and which occur after the signing of this Agreement and prior to

December 15,2000. :

'

C. = This paragraph shall not prevent an action, at any time, by an

individual plaintiff for damages or equitable relief tailored solely to the specific circumstances
:
t
of that individual plaintiff. Further, nothing in this paragraph shall prevent Plaintiffs in any

action for systemic declaratory, injunctive or other form of equitable relief.brought after

December 15, 2000, and based on claims arising after December 15, -2000, from offering into
: :
evidence facts, events, actions or omissions which may have occurred prior to December.15,

2000.

.

:

I

K.

Nullification of the Agreement

: .

43, If, for any reason, the Court does not approve this Agreement as a fair,

reasonable, and adequate settlement of the Marisol Litigation as between the Plaintiffs and the

City, or if an order approving this Agreement is not upheld on appeal, if any, this Agreement

shall be null and void. In addition, if the Plaintiffs do not enter into a settlement agreement with

the State, or if for any reason, the Court does not approve any settlement agreement between the

Plaintiffs and the State, or if an order approving the agreement between the Plaintiffs and the

State is not upheld on appeal, if any, at the option of the City, this Agreement shall be null and

i

•

.1

void.

•

« I
I " 'I

44. If the parties' application to suspend Wilder and its associated orders and

mechanisms is not made within ten (10) business days of signing this Agreement, or if the

i

" i

parties' application to dismiss Wilder and its associated orders and mechanismi is not made

within thirty (30) days of signing this Agreement, or if cither of these applications is denied in 20

JA-748

whole or in part, this Agreement, at the option of the City, shall be null and'void.

45. ' If any member of the Advisory Panel named in paragraph 4, above, ceases

to be a member of the Advisory Panel, the Advisory Panel shall continue to function so long as

its membership includes at least three members named in paragraph 4, above. If any two

members of the Advisory Panel named in paragraph 4, above, cease to be members of the

Advisory Paael, then either party, at its option, may render this Agreement null and void.
• i
. 46. In the event that this Agreement is nullified pursuant to paragraphs 43-45
i •
above, the following provisions shall apply;

a. the Man sol Litigation shall be restored, in all respects, to its status

prior to the signing of this Agreement, including with respect to attorneys' fees and costs

as described in subparagraph (d) below.

:

j !

b. Wilder shall not be reinstituted, but the Wilder Obligations and

Principles contained in paragraph 30 of this Agreement shall be judicially, enforceable in

the Marisol Litigation in a manner and for a period of time to be determined by the

Court. In making such determination, the Court shall consider all of the surrounding

circumstances, including any relevant recommendations that were made by the Advisory

!

!

Panel and any actions ACS has taken in response to such recommendations.

c.

Notwithstanding subparagraph 46.b, above, immediately upon

,

ninulWlifiilcdaetrio, nd,attehde JCuolyur1t ,s1h9a9ll8ecnotnerceirnnitnhge Mtheartiesroml iLniattiigoantioonf tihtse oWrdiledre, rpdreevciroeueswlyhiecnhtewreads

j

the original source of the Obligations and Principles contained in paragraph 30 of this

I

' i

!

i

1

Agreement. The intent of the parties in this paragraph is to permit the City, in the event

a

JA-749

of nullification of this Agreement, to restore its appeal of the Court's ruling that the
i i
Wilder Stipulation had not expired by its terms, and the City's appellate rights shall be

the same as they were at the time that appeal was taken, such appeal having been

t

j

withdrawn pursuant to paragraph 34 of this Agreement upon approval of this Agreement.

!

1

If it is finally determined that the Wilder Stipulation expired by its terms, then the Wilder

Obligations and Principles contained in paragraph 30 shall not be judicially enforceable

in the Marisol Litigation.

d. In the event the Agreement is nullified as provided in paragraphs

43-45, above, any Court award or approval of fees and costs made prior to nullification

-

i

in the Marisol Litigation, other than as provided in the last sentence of this sub-paragraph,

shall be redetermined by the Court. Plaintiffs' counsel shall retain all fees arid costs paid

to them by the City prior to nullification until such time as the Court issues an order,

made upon motion by Plaintiffs' counsel within 30 days after such nullification became
j
effective, determining whether and to what extent Plaintiffs' counsel may be required to
repay such fees and costs to the City. On such a motion, Plaintiffs' counsel shall not be

presumptively entitled to any portion of the attorneys" fees or costs awarded and paid

prior to nullification of this Agreement, but may argue that they are entitled to all of the

fees or costs paid, and the City may oppose the motion on any and all grounds. In the

event that Plaintiffs' counsel do not make such a motion within 30 days," Plaintiffs*

counsel shall pay the entire amount of the fees and costs received into an interest-bearing

escrow account until a Court order has been obtained determining the appropriate

allocation to be made of such escrowed funds. This subparagraph shall not apply to (a) 22

JA-750 i

• :

i

any Court award or portion of an award (or approval or portion of an approval) arising

out of a Section E -or F proceeding or (b) any defined amount of fees and costs expressly

designated by the Court as justified on grounds other than the Agreement pursuant to

i

paragraph 35.b, above.

•

. j

•

. i

L.

Release

' :"

! 47. Upon the Court's approval of this Agreement, Plaintiffs, individually and

on behalf of each member of the class, and on behalf of the. respective heirs, executors,

administrators, personal representatives, successors and assigns of each of themselves and each

!

i

' ••

i

of the members of the class, hereby jointly and severally release and forever discharge, on the

merits and with prejudice, the City, as defined in the first "Whereas" clause, above, including

without limitation its present or former officers, employees, agents, attorneys, and consultants,

I and their respective heirs, executors, administrators, personal representatives!, transferees,
I ! successors and assigns (collectively, "the relcasees"), and each of them, of and from any and all

manner of equitable claims, actions, costs, expenses and attorneys' and expert fees (except as

provided in Section G above), whether known or unknown, foreseen or unforeseen, matured or

unmaturcd, accrued or not accrued, direct or indirect, from the beginning of time through the date

i

i

of Court approval of this Agreement, that the named Plaintiffs and the members of the class, and

:

i

each of them, ever had, now has or have, or can, shall or may hereafter have against the releasees

i

or any of them; either alone or in any combination with others, for, by reason of, involving,

:

.

i

concerning, arising from or in any way relating to any equitable claim which is or could have

been stated against the releasees in the Complaint and Intervening Complaint filed in this action,

23

IJA-751

other than a claim by an individual plaintiff for equitable relief tailored solely to the specific

circumstances of that individual plaintiff.

48. Effective upon the expiration of the term of this Agreement on December

15,2000, Plaintiffs, individually and on behalf of each member of the class, and on behalf of the

respective heirs, executors, administrators, personal representatives, successors and assigns of each

of themselves and each of the members of the class, hereby jointly and severally release and
i

forever discharge, on the merits and with prejudice, the City, as defined in the first "Whereas"

clause, above, including without limitation its present or former officers, employees, agents,

attorneys, and consultants, and their respective heirs, executors, administrators, personal representatives, transferees, successors and assigns (collectively, "the releasees1'), and each of

them, of and from any and all manner of equitable claims, actions, costs, expenses and attorneys'

and expert fees (except as provided in Section G above), whether known or unknown, foreseen

i

:

•

or unforeseen, matured or unmatured, accrued or not accrued, direct or indirect,'that the named

j

i

Plaintiffs and the members of the class, and each of them, ever had, has or have on December

15, 2000, or can, shall or may thereafter have against the releasees or any of th?m, either alone

or in any combination with others, for, by reason of, involving, concerning, arising from or in

I

i

any way relating to any equitable claim which is or could have been stated against the releasees

in the Marisol Litigation, as described in Plaintiffs' Statement of Claims to be Tried, set forth in

the Pre-Trial Order dated July 16, 1998 and which claim is based on facts, events, actions or

!

i

omissions by the City or any releasee which took place from the date of Court approval of this

Agreement to December 15,2000, other than a claim by5an individual plaintiff for equitable relief

tailored solely to the specific circumstances of2t4hat individual plaintiff.

!

JA-752

M.

No Admission of Liability

j

49 The City has expressly denied and continues to deny each and all of the

claims and contentions alleged against it by the Plaintiffs in this action. This Agreement,

anything contained herein, and any negotiations or proceedings hereunder shall not be construed

as or deemed to be an admission, presumption, evidence of, or concession by the City of the truth

M

of any fact alleged or the validity of any claim which has or could have been asserted in this

s

1

action, or of the deficiency of any defense which has or could have been asserted in this action

•

•

i

or of any wrongdoing or liability whatsoever.

!

I

50. Neither this Settlement Agreement nor the fact of its existence nor any

terms hereof, nor any related document(s) created hereunder (including the Advisory Panel's

Initial and/or Periodic Reports), shall be used as an admission against the City in any civil,

j

criminal or administrative action or proceeding; nor shall these matters be offered or received in

evidence against the City other than in any proceedings provided for in Sections E or F, or if the

•

.

!

i

Marisol Litigation is restored to its prior status pursuant to Section K above.

|

N.

Other Provisions

51. Nothing contained herein shall be deemed to constitute a custom, policy

or practice of the City of New York.

52. This Agreement contains all the terms and conditions agreed upon by the

parties hereto, and no oral agreement entered into at any time nor any written agreement entered

into prior to the execution of this Agreement regarding the subject matter of this proceeding shall

j

be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained

herein. "

:

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25

IJA-753 I

53. Both parties to this Agreement have participated in its drafting and,

consequently, any ambiguity shall not be construed for or against either party. !

54. Each of the undersigned attorneys represents that he or she has been duly

authorized to enter into this agreement.

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55. This Agreement may only be amended, modified, or supplemented by an

agreement in writing signed by both the City and the Plaintiffs.

J

56. The parties recognize and acknowledge that this Agreement must be

approved by the Court pursuant to paragraph 1 above. The parties agree to cooperate in good

faith in the creation of all papers submitted to the Court [to secure such approval.;

<

i

57. This Agreement shall inure to the benefit of and be binding upon the legal

representatives and any successor of Plaintiffs and the City.

58. Notice, when due to Plaintiffs or the City, shall be given by delivering it,

in person or by United States certified first-class mail, to the parties' counsel in the litigation as

follows:

To the Plaintiffs: Marcia Robinson Lowry, Esq.

Children's Rights Inc.

;

404 Park Avenue South

i

To the City:

NGeawil RYuobrikn,,NEeswq. York 10016

:• "

Assistant Corporation Counsel

New York City Law Department 100 Church Street, Room 3-158 New York, New York 10007

26

JA-754

Dated: New York, New York December J_, 1998

MARCIA ROBINSON LOWRY, ESQ Children's Rights Inc. Attorney for Plaintiffs 404 Park Avenue South New York, N.Y. 10016
Marcia Robinson Lowry (ML 55
KAREN J. FREEDMAN, ESQ. Lawyers for Children, Inc. Attorneys for Plaintiffs 110 Lafayette Street, 8th floor New York, N.Y. 10013

MICHAEL D. HESS

:.

Corporation Counsel of the City of New York

Attorney for City Defendants

100 Church Street

New York, N. Y. 10007

\

y: Michael D. Hess (MH 3309)

eedman (KF 2632)
THOMAS F. CURNIN, ESQ.. Cahill, Gordon & Reindel

Thomas F. Cumin (TC 7972)
DAVID M. BRODSKY, ESQ. Schulte Roth & Zabel LLP Attorney for Plaintiffs 900 Third Avenue New York, N.Y. 10022
David M. Brodsky (DB 662

27

 
 Marisol A. v. Giuliani

IJA-755

j.

DW-NY-001-003

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MARISOL A., by her next friends, Rev. Dr. James Alexander Forbes, Jr., and Raymunda Cruz; LAWRENCE B., by his next friend. Dr. Vincent Bonagura; THOMAS C , by his next friend, Dr. Margaret T. McHugh; SHAUNA D.# by her next friend, Nedda De Castro; OZZIE £., by his next friends, Jill Chaifetz and Kim:Hawkins; DARREN F., by their next friends,.Juan A. Figueroa and Rev. Marvin J. Owens; BILL G. and VICTORIA G., by their next friend, Sister Dolores Gartanutti; BRANDON H., by his next friend, Thomas J. Moloney; and STEVEN I., by his next friend, Kevin Ryan, on their own behalf and on be- • half of all others similarly situated,
Plaintiffs,
and DANIELLE J., by her next friend, Angela Lloyd; and WALTER AND REMY S., by their next friends, W.N. and N.N., on behalf of themselves and all others similarly situated,
Intervening Plaintiffs,
* against -

SETTLEMENT AGREEMENT
95 CV'10533 (RJW)

RUDOLPH W. GIULIANI, Mayor of the City of .

New York;

JASON TURNER, Administrator of the Human Re-

sources Administration and Commissioner of

the Department of Social Services of the

City of New York; •

NICHOLAS SCOPPETTA, Commissioner of the New

York City Administration for Children's

Services;

:

GEORGE E. PATAKI, Governor of the State of

New York;

]

' i

and JOHN JOHNSON, Commissioner of the Office

of Children and Family Services of the State

of New York;

Defendants.

I JA-756 1
AGREEMENT
The Settlement Agreement is entered into by and bei
tween MARISOL A., by her next friends Rev. Dr. James1 Alexander , Forbes, Jr., and Raymunda Cruz; LAWRENCE B., by his next friend • Dr. Vincent Bonagura; THOMAS C , by his next friend,! Dr. Marga-
ret T. McHugh; SHAUNA D., by her next friend,. Nedda DeCastro;
i
OZZIE £., by his next friends, Jill Chaifetz and Kim Hawkins; DARREN F. and DAVID F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; BILL G. and VICTORIA G., by their next friend. Sister Dolores Gartanutti; BRANDON H., by his next friend, Thomas H. Maloney; STEVEN I., by his next friend, Kevin Ryan; DANIELLE J., by her next friend, Angela Lloyd; and RICHARD S. and WALTER S., by their next friends, W."N. and N.N.; on their own behalf and on behalf of all others similarly situated (the "Plaintiffs") and GEORGE E. PATAKI, Governor of the State of New York; and JOHN JOHNSON, Commissioner of. the New York State Office of Children and Family Services (formerly the
• i
Department of Social Services of the State of New York) (hereinafter collectively the "State Defendants"). ::
This Settlement Agreement does not and shall not pertain to or affect in any manner the liability of the remaining defendants in the litigation: Rudolph W. Giuliani, Mayor of the City of New York; Jason A. Turner. Administrator' of the Hu-
• i
•I

JA-757
-3-

man Resources Administration and Commissioner of the Department of Social Services of the City of New York; and Nicholas Scoppetta, Commissioner of the Administration for Children's Services of the City of New York (the "City Defendants").

WHEREAS, Plaintiffe commenced and are maintaining a

class action lawsuit entitled Marjsol A. . p»t ai- v. Rudolph w.

Giuliani r et al,, No. 95 Civ. 10533 (RJW), in the United States

• I

'

District Court for the Southern District of New York, seeking

t

declaratory and injunctive relief for the alleged deprivation

by the State Defendants and each of them of the constitutional

rights of liberty and property of the Plaintiffs guaranteed to

them by the Fourteenth Amendment to the United States Constitu-

!

:

tion and Plaintiffs1 alleged rights under federal law (che

;

j

"Litigation").

!

WHEREAS, the District Court, in an Order dated June

•

I

18, 1996, has determined that the Litigation can proceed as a

i
class action pursuant to Rule 23 (b)(2) of the Federal Rules of

i

Civil Procedure and this decision was affirmed by the Second

Circuit Court of Appeals in an Order dated September '26, 1997.

s

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WHEREAS, each of the State Defendants denies any

**

I

wrongdoing or any liability to Plaintiffs- in the Litigation;

|jA-758
-4-

WHEREAS/ Plaintiffs and State Defendants, and each of

them, desire to avoid incurring any further time, costs and ex-

"pense and the uncertainty of litigation and seek to resolve all

i

. matters embraced in the Litigation as between the Plaintiffs

i

and the State Defendants in an amicable fashion;

j

i

WHEREAS, the New York State Office of Children and

I

Family Services (as successor to the Department of Social Serv-

ices)/ pursuant to Sections 20 and 34 of the New York Social

Services Law, has the authority and responsibility to;monitor

and supervise the operations'of local social services districts

and officials within New York State, including but not limited

to the New York City Administration for Children's Services

("ACS")/ and to establish rales, regulations and policies to

accomplish the foregoing, consistent with the above referenced

statutory provisions of the New York Social Services law.

NOW, THEREFORE/ in consideration of the covenants and

undertakings set forth herein and intending to be legally bound

thereby. Plaintiffs and State Defendants, and each of them,

agree to the terms and conditions set forth herein. ;
1
I. ESTABLISHMENT BY THE OFFICE OF CHILDREN AND FAMILY SERVICES OF THE NEW YORK CTTV W^TOWXT. OFFTP.E ;

1. The New York State Office of Children and Family Services ("OCFS") shall, as soon as is reasonably possible, es-

1JA-759

-5-

tablish and maintain a Regional Office in New York City to be known as the New York City Regional Office ("NYCRO11), the pri-

nvary function of which shall be the statutorily mandated func-

tion of monitoring and supervising New York City's child wel-

fare system. This office shall monitor and supervise child I

welfare services in the five boroughs of New York City only,

and OCFS shall notify the Plaintiffs in writing when:the NYCRO

is restructured as set forth above. .

i • ..

2. The Director of the NYCRO shall report on all
j
child welfare/ budgetary, personnel and financial matters per-
i
taining to child welfare accivities to the Commissioner of

OCFS, and may report on all matters not encompassed within the

!

above as determined by the Commissioner of OCFS.

!

3. The Director of the NYCRO shall possess appro-

priate management competence, knowledge and skills in' child and

family practice and regulations in New York State, as; deter-

mined by OCFS, so as to be able to effectively advise the OCFS

i

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. Commissioner of the needs, progress and resources required if

the NYCRO is to adequately monitor and supervise the operations

and practices of ACS.

j

4. The Director of the NYCRO shall have the initial responsibility for the development and organization of the NYCRO 's annual budget. The Director shall have the authority to

1 I

JA-760

-6-

adjust, in conjunction with and under the direction of the Commissioner of OCFS or his/her designee, the NYCRO budget during the calendar/fiscal year within the appropriated budget so as to meet the evolving and changing needs of the NCYRO

5. The Director of the NYCRO shall have the author-
i
ity, subject to applicable State law and in consultation with and under the direction of the Commissioner of OCFS or his/her designee, to allocate and use the fiscal and human resources of the NYCRO as he/she determines to be necessary to sufficiently monitor and supervise the operations and practices of ACS.

6. The number of full-time staff authorized for the
NYCRO will be forty-bne (41), which OCFS believes is the appro-
priate staffing currently needed to operate the NYCRO in a pro-
fessional manner. OCFS will make reasonable efforts to fill
and maintain these positions. The NYCRO, in conjunction with
and under the direction of the OCFS Commissioner or'his/her
designee, will reevaluate its staffing levels on a regular ba-
sis and, if necessary, OCFS will propose and support, as part
i
of the budget process, to adjust the staffing of the NYCRO as
i j
needed. Plaintiffs will be notified within fifteen:(15) busi• j
ness days if the number of forty-one (41) full-time authorized

employee positions at -the NYCRO is reduced below forty-one

(.41), and the reason(s) therefor.

j

IJA-761 |

-7-

7. The Director of che NYCRO, in conjunction with
i
and under the direction of the Commissioner of OCFS or his/her

designee, shall have the authority and responsibility to ap-
t
prove, modify, oversee, review and monitor the development and

implementation of any plan for corrective action that ACS <

adopts or is directed to adopt in order to correct non-

compliance and case work practice problems in any of the vari-

ous aspects of ACS's operations thac are found to exist by the

NYCRO, e.g., in case record review(s) conducted as provided for

herein (hereinafter "Corrective Action11) .

;

II. THE ISSUANCE OF ANNUAL CUMULATIVE

FATAT.TTV REPORTS PREPARED BY THE OCFS.

8. The 1998 annual cumulative fatality report due i
June 1999 and the 1997 annual cumulative fatality report will
both be completed and released no later than June, 1999, and
the OCFS shall complete and release subsequent annual cumula-
j
tive fatality reports in a timely manner as required-by law, i
and shall, with the participation of the Director of jthe NCYRO,
review annually at the next regularly scheduled quarterly meet-
ing with ACS following the release of the annual cumulative fa-
.tality report: a) the findings in the annual cumulative fatal-
•
ity report that relate to fatalities of children in ACS's cusi
tody or care; and b} the need for Corrective Action, jif any, as referred to in Paragraph 9:, below. : Plaintiffs shall'be fur-

^•.,-;iJ!..^;ilLPA-762 !
-«-

nished with, copies of annual cumulative fatality reports within fifteen (15) business days after they are available for public distribution.

III. THE ISSUANCE OF INDIVIDUAL FATALITY

;

pBPORTS PREPARED BY THE NYCRO"

9. The NYCRO shall complete and release all indi-

vidual fatality reports regarding ACS's operations in New York

City during the year 1997 by January 1, 1999; for fatalities

that occur or have occurred during the year 1998, the individ-
i
ual fatality report for such .fatality shall be completed and

released either (i) by March 1, 1999/ or (ii) within six months

from the date of the fatality as required by law, whichever

date occurs later; and future fatality reports shall be com-

pleted in a timely manner as required by law. OCFS and/or
t
NYCRO shall direct ACS to adopt Corrective Action when it deems
i
necessary (particularly where repetitive activity or conduct
. i
contributing to the fatality is occurring) and OCFS, including
the NYCRO, shall monitor such Corrective Action(s) for| compli-

ance and review them with ACS* at a minimum, on a quarterly ba-

sis. The OCFS or the NYCRO shall provide to Plaintiffs copies

of all individual fatality reports within fifteen (15)'business

'

i

days of forwarding these reports to ACS. These individual fa-

tality reports shall, comply with the provisions of Section 20
I
of the Social Services Law, including but not limited to, rec-

JA-763 -
-9-
ommendations for local or state administrative or policy changes.
IV. ACCEPTANCE OF REPORTS OF EDUCATIONAL NKffT/F.CT BY THE STATE CENTRAL REOTSTBR
10. The State Central Register ("SCR") sh'all review and evaluate its policy of accepting calls regarding educational neglect and it shall continue to: a) accept reports, from mandated reporters and others regarding educational neglect (as defined in Article 10 of the Family Court Act) when the reporter makes allegations which if true would constitute a report of child abuse or maltreatment, even when actual harm to the child is not. claimed; and b) clarify to SCR personnel the policy on accepting reports of educational neglect as set forth in this paragraph.
i
11. OCFS shall, within a reasonable time after the effective date of this Agreement, issue a policy statement re-
i
minding school-based mandated reporters of OCFS's policy on the acceptance by the SCR of reports of educational neglect, and will take appropriate steps to enlist the support and cooperacion of the New York City Board of Education and the 'New York State Education Department regarding the dissemination and implementation of this policy. A copy of this OCFS policy state-

mmr •-••'

JA-764
-10-

ment shall be provided to Plaintiffs within fifteen (15) busi

ness days of its dissemination.

j

i

V. ACCEPTANCE OF REPORTS OF DOMESTIC

j

BY TWE STATB rENTRAT, REflTSTER

•

<

12. The SCR shall continue to: a) accept reports «
from mandated reporters and others regarding domestic violence !
when the reporter makes allegations which if true woul'd consti-
j • .,
tute a report of child abuse or maltreatment, even when actual

physical harm to the child is not claimed; and b) clarify to

SCR personnel the policy on accepting reports of domestic vio-

lence as set forth in this paragraph.

«

13. OCFS shall, within a reasonable time after the

effective date of this Agreement, include in the policy state-
i
ment referred to in Paragraph 11, above, a statement reminding

mandated reporters of OCFS1 policy on the acceptance by the SCR

of reports of domestic violence.

'

:

•

VI. THE SCR1S REVIEW OF CALLS TO THE SCR AND

: •

A REVIEW OF SttCH OAT.T.S THAT ARE REJECTED ' : .

i

i

14. The SCR shall make reasonable efforts to deter-

mine that calls are not screened out inappropriately, including the use of its current procedure for periodic spot checks on
i the screening out of such calls. SCR shall make reasonable ef-

•II

IJA-765

-11-

forts to determine how to upgrade' its technical capacity to re-

ceive calls consistent with its policies.

j

. 15. The SCR shall review its policies concerning the acceptance and rejection o£ calls and/ whenever it determines that the policies need to be clarified or updated, shall make the changes it determines"necessary. Plaintiffs shall, within fifteen (15) business days of the policy change(s), be informed of any material changes in SCR policies in this regard.

VII. IMPROVING.THE SCR'S RATE OF ANSWERING OF PHTT.n ABUSE MTO NEGLECT

16. OCFS shall continue tc make reasonable efforts to make improyements, within a reasonable time after the effective date of this Agreement, toward the goal of answering all calls to the SCR of abuse and neglect within one (1) minute or less from the time the call is received. OCFS shall:provide Plaintiffs reports regarding such efforts toward achievement of this goal no later than five (5) business days prior]to the meetings set forth in Paragraph 30,:below.

VIII. THE OCFS SHALL ADVERTISE.THE PURPOSES AND GOALS OF THE SCR

17. OCFS shall develop a plan, within a reasonable time after the effective date of this Agreement, on how to advertise the purposes of the SCR hotiine (created to receive

JA-766

;

• 1

-12-

calls of suspected child abuse or neglect), including but not

limited to publicizing the use of the existing toll-free num-

ber, and shall implement that plan as soon as practicable. A

copy of that plan shall be furnished to Plaintiffs within fif-

1

teen (15) business days of its development.

!

IX. PERIODIC CASE RECORD REVIEWS. TO BE CONDUCTED BY OCFS

18. OCFS shall undertake case record review(s) of

ACS records in the following substantive areas to determine
t
ACS's compliance with applicable laws and reasonable case work

practice, and these case, record reviews shall use both qualita

tive and quantitative measures:

i

(a) child protective services

:

cases;

(b) open indicated cases;

(c) cases receiving protective supervision in the home;

(d) cases receiving' mandated preventive services;

(e) •cases of children in placement with a goal of return home;

(f) cases of children in placement with a goal of adoption;-.

(g) cases of children in placement with a goal of independent living;
(h) cases of children in placement for more than four years; and

jjA-767 1
-13-

(i) frequency of visitations to the home and child during investigations and in custody.

19. OCFS shall complete case record reviews covering

the areas identified in Paragraph 18, above, at least once

prior to the expiration of .this Agreement, and thereafter as

determined by OCFS to be appropriate and/or as circumstances

warrant. Copies of the case review report(s) shall be provided

to Plaintiffs within ten (10) business days after each re-

port(a) is prepared and reviewed with ACS, but in no event less

than ninety (90) days prior to the expiration of this Agree-

ment.

)

20. OCFS shall conduct face-to-face interviews with a sub-set cf the relevant ACS personnel and/or others involved in the case record review(s) identified in Paragraph 18, above.

21. If, after completing its case record review(s), OCFS determines that ACS is in substantial non-compliance with applicable laws, regulations and/or reasonable case work practice, OCFS shall direct ACS to take Corrective Action designed to improve ACS's performance in the specific areas of noncompliance. The NYCRO will use reasonable efforts to provide technical assistance and exercise its monitoring authority as it deems necessary and appropriate. OCFS shall meet with Plaintiffs as provided for in Paragraph 30, below, to report

JA-768

i

————_

(

-14-

S

i

:

j

such efforts towards achievement of. this objective and the last

such meeting shall occur at least sixty (60) business days

prior to the expiration of this Agreement.

i

i

X. THE IMPLEMSNTATION OF

!

BY QCFS

|

22. OCFS shall use reasonable efforts and means

! available to it to develop and implement in New York; State, at

the earliest practicable date> an accurate and reliable statej

wide computer system (now referred to as "CONNECTIONS") to pro-

vide information concerning: a) child welfare case activity

necessary to manage and supervise the child welfare system and

determine compliance with fiscal and legal standards; and

b) child welfare case management reports sufficient to create

aggregate data on issues including but not limited to: timeli-

ness of investigations; re-occurrence of indicated reports;

timeliness of case plans; time in care; number of placements;

number of re-entries into care; and adoption statistics.

Plaintiffs will be provided with the monthly reports'on the . j
status of CONNECTIONS issued by the Commissioner of OCFS or the
s
OCFS Coordinator of CONNECTIONS, which are addressed to County Commissioners/Executive Directors. Should the monthly reports
i
be discontinued, Plaintiffs nevertheless shall receive similar

reports on a quarterly basis.

IJA-769
-15-

23. OCFS shall continue to use reasonable'efforts'to

correct any deficiencies or problems that currently exist or

arise from time to time in the operation of the CONNECTIONS

computer system/SACWIS (State Automated Child Welfare Informa-

•

tion System) or any aspect thereof.

;

24. OCFS shall develop and implement a training program so that current ACS workers are trained on the use of CONNECTIONS and,, thereafter, shall work with ACS and the Satterwhite Training Academy to incorporate CONNECTIONS into their ongoing SACWIS training. Documentation of any new OCFS CONNECTIONS training program shall be provided to Plaintiffs within fifteen (15) business days of its preparation, and/or other new materials on such training shall be made available to Plaintiffs upon request within this same time period.'

XI. NOTIFICATION OF CHANGES REGARDING MAXIMUM STATE AID RATES FOR FOSTER TARE PROGRAMS OR BT?n OAPAPTTV

25. If during the term of this Agreement the OCFS
changes the maximum state aid rates for foster care programs in
New York City, or approves an increase or decrease in the bed
i
capacity of any such foster care programs, Plaintiffs will be notified of these changes within fifteen (15) business days of
their being approved.

• I
I

**•••••

JA-770
-16-

XII. OCFS SHALL REVIEW AND EVALUATE TRAINING FOR CHILD
ppnTF,CTTVE SERVTCEg r^SEWORKERS AND SITPEKVTSORS
26. OCFS shall monitor the training of Child Protective Services caseworkers and supervisors at the Satterwhite Training Academy and shall establish, within one hundred and twenty (120) days from the effective date of this Agreement, procedures for the review and evaluation of ACS's training curriculum for Child Protective Services caseworkers and supervisors at the Satterwhite Training Academy, including risk assessment training and the content of Child Protective Services caseworker examinations and, if such review and evaluation warrants , recommend changes in such training curriculum•and examinations. Copies of the procedures for review and evaluation and any recommended changes shall be provided to Plaintiffs within fifteen (15) business days of their transmittal to ACS.
XIII. OCFS EXAMINATION OF RISK ASSESSMENT
27. ;OCFS shall discuss with Plaintiffs at the.meetings provided for in Paragraph 30, below, of this Agreement the current status of Risk Assessment in New Jfork City including any plans of OCFS to review its effectiveness as a means of determining the likelihood of abuse or neglect to a child.

17-

XIV AUDITS BY NYCRO OF LICENSED FOSTER TAHB

28. The NYCRO shall continue to conduct as fre:
quently as practicable audits of licensed congregate foster «
care facilities.to review compliance with applicable regula-

tions and policies.

.

i

XV. INFORMATION TO BE FURNISHED TO AND MEBTINOS WTTH PTATNTTFFS

29. OCFS shall provide Plaintiffs copies of the documents or information identified in Paragraphs 1, 6, 8, 9,
i
11, 13, 15, 16, 17, 19, 21, 22, 24, 25, 26 and 27, above, as
specified therein, during the duration of this Agreement as
provided for in Paragraph 37, below.
30. The Commissioner of OCFS and his/her designee(s) and the Director of the NYCRO shall meet with Plaintiffs' counsel during the duration of this Agreement to review compliance with the existing provisions of .this Agreement. These meetings
• ! shall occur on or about the following dates:
April 1, 1399;September 1, 1999; March 1, 2000; and October 1, 2000

31. During the duration of this Agreement as provided for in Paragraph 37, below, OCFS shall provide Plain-

JA-772 1

-18-

tiffs, upon reasonable request, with non-privileged.documents or information that arereasonably related to OCFS' efforts to comply with the terms and conditions of this Agreement and which are identified in thecourse of the meetings specified in Paragraph 30, above.

XVI. PAYMENT OF PLAINTIFFS' ATTORNEYS' FXPFNSES

32. State Defendants and Plaintiffs shall attempt to

agree on theamount of attorneys' fees and coats to be paid to
i
Plaintiffs. If the parties areunable to agree on the amount

of attorneys' fees and costs to be paid to Plaintiffs, thatis-

sue shall be submitted to theCourt for determination or to me-

diation as theparties agree. Payment of Plaintiffs' attor-

neys' fees and costs is subject to theprovisions for indemni-

•:

j

fication in Section 17.3(b) of the.New York Public Officers

i
Law, and the Court's approval of this Agreement. ?j
33. TheState Defendants agree that, solely for the
i
I purposes of this Litigation, they will not contest that Plain-
tiffs are the prevailing parties for the purpose of!determining

reasonable attorneys' fees and expenses pursuant to 42 D.S.C. §

1988 and are entitled to apply to theCourt for such determina-

tion. If theamount of Plaintiffs1 attorneys' fees to be paid

to Plaintiffs by the State Defendants is submitted to theCourt

JA-773 \
-19-

or an arbitrator for determination, Plaintiffs1 counsel agree j

that they shall not seek to recover from the State Defendants

more than 35% of the total fees awarded against both .the State

and City Defendants.

I

XVII. CONSULTATION BETWEEN THE PLAINTIFFS AND THE OCFS TO KESOTJVE DISPUTES

34. Prior to taking any action against OCFS arising

out of an alleged breach of this Agreement, Plaintiffs shall

provide reasonable notice to counsel for OCFS (as provided for

herein) of the area(s) of alleged non-compliance. Thirty (30)

days after receipt of said notice, OCFS shall provide to Plaintiffs information sufficient to establish OCFS1 reasonable

good-faith efforts toward compliance with the term(s)'of the

Agreement for which non-compliance is alleged. Within fifteen (15) business days after OCFS1 response, the parties shall meet

and make a good-faith effort to resolve any differences or dis-

putes arising from or out of this Agreement.

'

i

35. State Defendants will not contest Plaintiffs1 i
l entitlement to attorneys1 fees and costs incurred by :Plaintiffs
as a result of their monitoring of State Defendants' compliance
i

with the terms and conditions of this Agreement and such moni-

toring fees and costs sought by Plaintiffs shall not.exceed

$75,000.

|

1JA-774
-20-

X V I I I . flTSMTSSAT, OF THE ACTTON .

j

'36. Upon the Approval of this Agreement by the

Court, an Order of Dismissal dismissing with prejudice all

claims raised or which could have been raised in the Complaint

and Pre-Trial Order against State Defendants (specifically re-

serving Plaintiffs' rights against other defendants and each of

them) shall be entered, except that the Court shall retain ju-
i
risdiction for the sole purpose of enforcing any specific terms

and conditions of this Agreement against the Commissioner of

OCFS for which Plaintiffs allege non-compliance and the parties I

have been unable'to resolve as provided for in Paragraph 34,

above. The terms and conditions of this Agreement shall not

take effect until the Court enters its Order of Dismissal dis-

missing State Defendants.

,

37. In the event that Plaintiffs seek judicial en-

forcement of the.term(s) of this Agreement, Plaintiffs will in i
the first instance seek an.order directing compliance with this
Agreement and thereafter may, if necessary, seek further judi-

cial remedies to enforce the terms and conditions of this

Agreement in dispute.

•

:

JA-775 1
-21-

XIX. DURATION OF THE &HRFFMF.NT

38. All terms and provisions in this Agreement shall
• I
take effect upon the entry of an Order of Dismissal as referred
1
to in Paragraph 36, above. This Agreement shall expire and

terminate twenty-one (21) months after the entry of an Order of

Dismissal except for Sections IX, X. XIII, XV and XVII, all of

which shall expire and terminate twenty-four (24) months after

the entry of an Order of Dismissal.

I

XX. TTSF. OF THTS AOREEMBNT

39. Neither this Settlement Agreement norlany of its

terms may be offered or used in any way whatsoever in any fu-

ture action or proceeding in any court or other tribunal except

i

for the purpose of seeking enforcement of its terms or any sub-

j

!

sequent orders entered pursuant thereto.

[

XXI. COVENANT NOT TO SITE

40. Plaintiffs agree not:to sue State Defendants, during the duration of this Agreement, in a class action for injunctive or declaratory relief, on any cause of action based upon any statutory or constitutional claim set forth-in the Pre-Trial Order in the Litigation dated July 16# 1998 or for any individual claim(s) alleging system-wide violations arising

JA-776

-22-

out of such claims(s) based upon hew facts or circumstances that occur during the duration of this Agreement.

i
41. All class-wide or systemic claims arising from

new facts and/or circumstances that occur during the duration

t

i

i

of this Agreement and which relate in any way to any claim

raised in the Pre-Trial Order are resolved by this Agreement, i

except that this Agreement shall not preclude any individual

class member from filing an action on their own behalf against

State Defendants or either of them during the duration of this «
Agreement for the purpose of seeking damages and/or equitable relief to protect the rights, well-being and interests of such
i present or future class members;.provided, however, that: 1)
such equitable relief must be limited to that which is neces-

sary or appropriate to redress the individual class member's

injury, and 2) this Agreement shall noc constitute, be con-

strued as or be read as a consent by the State Defendants, or

either of them, to be sued in federal court, or as a waiver of

any defense of sovereign immunity the.State Defendants, or ei-

ther of them, may seek to raise, including an Eleventh Amend-

ment immunity from suit in federal court.

!

XXII. OTHER PKOVTftTONfj

!

42. Nothing contained in this Agreement shall be deemed to be an admission by State Defendants that they have in

• IJA-777
-23-

any manner violated Plaintiffs' rights as contained in the Coni
stitution. Statutes, Ordinances/ and Regulations of the United
i
States, the State of New York, or the Cicy of New York.

• i

43. Notice, when due to Plaintiffs or State Defen-

dants, shall be given by delivering it, in person or by United

States certified first-class mail, to their counsel in the

i
Litigation as follows:

To

Plaintiffs;

Marcia Robinson Lowry/ Esq. Children's Rights Inc. 404 Park Avenue South New York, New York 10016

Tel No. (212) 683-2210 Fax No. (212) 683-4015

To the State

Judith T. Kramer/ Esq.

;

Assistant Attorney General

State of New York

j

Office of Attorney General

'

Litigation Bureau

:.

120 Broadway

New York, New York 10271

4

Tel No. (212) 416-8603

• \

Pax No. (212) 416-6075

44. This Agreement constitutes the full and'complete

understanding and agreement of Plaintiffs and State Defendants

and, upon execution/ supersedes and renders null and void any

I

IJA-778
-24-

and all prior undertakings or agreements, written or oral, be-

tween Plaintiffs and State Defendants.

.

45. All of the terms of this Agreement are contraci
tual and not merely recitals, and none may be modified or i
changed except by a writing signed by Plaintiffs and State De-
fendants or their respective legal counsel. • '.
j
46. If any of the provisions, terms or clauses- of
this Agreement are declared illegal, unenforceable, jor ineffec-
tive in a legal forun;, those provisions, terms and clauses
shall be deemed aeverable, such that all other provisions,
terms and clauses of thi3 Agreement shall remain valid and
binding on the Plaintiffs and State Defendants. 47. This Agreement shall inure co the benefit of and
j
be binding upon the legal representatives and any successor of
Plaintiffs and State Defendants and each of them. . • IN WITNESS WHEREOF, the Plaintiffs and'the State De' i
fendants hereto, intending to be legally bound hereby, have
executed this Settlement Agreement en the 1st day of; December,
1998.

ATTORNEYS FOR THE STATE DEFENDANTS

ATTORNEYS FOR PLAINTIFFS

Judith T. Kralner, Esq. (JK-4548)

\ •III! M ^ i r ^ ^ M I I ^ T •

^M

7^1 I

M

ChilHren's Rights:Inc.

^

Marcia Robinson Lowry, Esq.

(ML-5S01) : :

IJA-779 1,
-25-

Aseistant Attorney General
Steven M. Oonnolly (SC-3009)
Assistant Attorney

Lawyers For Children

rv Karen Freecf

Esq.

Cahill Gordon & Reindel By: Thomas F. C u m i n , Esq. (TC-7972) 1:
/ jr S7t w -y (ir\^j fi ^f
Schviite^Roth £ Zabel 'By: David Brodsky (DB-6623) :

:
.1 :

 
 157 F.Supp.2d 303 (2001)
MARISOL A., by her next friend, Rev. Dr. James Alexander FORBES, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 Civ. 10533 RJW.
United States District Court, S.D. New York.
August 29, 2001.
3045 *304 *305 Children's Rights, Inc., New York City by Marcia Robinson Lowry, Lawyers for Children, New York City by Karen J. Freedman, Susan Lambiase, Shirim Nothenberg, Robert Shull, for Plaintiffs.
Eliot Spitzer, Attorney General of the State of New York, New York City by Judith T. Kramer, for Defendants.
OPINION AND ORDER
WARD, District Judge.
Plaintiffs move for an order directing compliance with certain provisions of the Marisol State Settlement Agreement. The Court held an evidentiary hearing on August 9, 10, 13, and 22, 2001. For the following reasons, the motion is granted in part and denied in part.
BACKGROUND
Plaintiffs filed a complaint in this Court on December 13, 1995, alleging systemic deficiencies in the administration of the New York City child welfare system. The complaint sought declaratory and injunctive relief against various officials of New York City and New York State who were responsible for the operation or oversight of New York's child welfare system.
On the eve of trial, which was to commence on July 27, 1998, the parties informed the Court that they were engaged in settlement negotiations. The trial was adjourned and on December 2, 1998, after four months of negotiations, two settlement agreements were filed with the Court, one agreement between Plaintiffs and the City Defendants and the other between Plaintiffs and the State Defendants. The Court approved the settlement agreements on March 31, 1999. See Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999), aff'd, 218 F.3d 132 (2d Cir. 2000).
One of the goals of the State Settlement Agreement was to strengthen the New York State office that has responsibility for overseeing the New York City child welfare system. To that end, the New York State Office of Children and Family Services ("OCFS") was required to establish and maintain an office in New York City, known as the New York City Regional Office ("NYCRO"). NYCRO's primary function is to monitor and supervise New York City's child welfare system, which is administered by the New York City Administration for Children's Services ("ACS").
The Agreement established a method for Plaintiffs to monitor OCFS's compliance. See State Settlement Agreement ¶ 29 (OCFS shall provide copies of certain documents to Plaintiffs); id. ¶ 30 (OCFS shall meet with Plaintiffs' counsel periodically to review OCFS's compliance with the Agreement). Prior to taking any action against OCFS arising out of an alleged breach of the Agreement, Plaintiffs were required to provide notice to counsel for OCFS of the areas of alleged non-compliance. OCFS then had to provide Plaintiffs with information sufficient to establish OCFS's reasonable good-faith efforts towards compliance. The parties were then required to make a good-faith effort to resolve any disputes. See id. ¶ 34.

Upon approval of the Agreement by this Court, all of Plaintiffs' claims against the State Defendants were 306 dismissed with *306 prejudice, except that the Court retained jurisdiction "for the sole purpose of enforcing any
specific terms and conditions of this Agreement against the Commissioner of OCFS for which Plaintiffs allege noncompliance and the parties have been unable to resolve" under the procedures set forth in ¶ 34. Id. ¶ 36. The Agreement further provides: "In the event that Plaintiffs seek judicial enforcement of the term(s) of this Agreement, Plaintiffs will in the first instance seek an order directing compliance with this Agreement and thereafter may, if necessary, seek further judicial remedies to enforce the terms and conditions of this Agreement in dispute." Id. ¶ 37.
The Agreement contains a termination provision under which several sections expired on December 31, 2000, while others expired on March 31, 2001. See State Settlement Agreement ¶ 38 (the Court will refer to the time during which the Settlement Agreement was in effect as the "Settlement Period").[1] As of this date, every section of the Agreement has expired. Plaintiffs filed their motion on January 8, 2001, and now seek an order directing OCFS to comply with three provisions of the Agreement.[2]
First, ¶ 14 of the Agreement required the State Central Register ("SCR"), a New York State hotline which receives reports of abuse and neglect, to make reasonable efforts to determine that calls are not screened out inappropriately. Second, under ¶¶ 18-21 OCFS had to issue case record reviews in specified areas to insure that ACS engaged in effective casework practice and complied with applicable laws and regulations. Third, under ¶ 22 OCFS was to use reasonable efforts and means available to it to develop and implement a statewide computer system known as CONNECTIONS.
DISCUSSION

"Settlement agreements are contracts and must therefore be construed according to general principles of contract law." Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). "[A] party cannot create an ambiguity in an otherwise plain agreement merely by `urg[ing] different interpretations in the litigation.'" Id. (citations omitted). If the agreement is clear, "courts must take care not to alter or go beyond the express terms of the agreement, or to impose obligations on the parties that are not mandated by the unambiguous terms of the agreement itself." Id.
Neither party in the present case contends that the State Settlement Agreement is ambiguous. Thus, the Court will interpret the parties' obligations as set forth within the four corners of the Agreement. Plaintiffs have the burden of demonstrating non-compliance by a preponderance of the evidence. With these guiding principles in mind, the Court turns to the provisions of the Agreement at issue.
I. The Provisions in Dispute

A. The State Central Register 0907 ¶ 14

The purpose of ¶ 14 is to ensure that the SCR does not inappropriately screen out reports of abuse and neglect that should be investigated. It states:

307

*307 The SCR shall make reasonable efforts to determine that calls are not screened out

inappropriately, including the use of its current procedure for periodic spot checks on the

screening out of such calls. SCR shall make reasonable efforts to determine how to upgrade its

technical capacity to receive calls consistent with its policies.

State Settlement Agreement ¶ 14.

Plaintiffs acknowledge that they do not have evidence tending to show that OCFS or the SCR have not complied with ¶ 14. They argue instead that, because the procedures employed by the SCR in assessing the performance of hotline specialists lead to incomplete information, Plaintiffs cannot determine whether OCFS has complied with

the Agreement. Defendants counter that the SCR has made, and continues to make, substantial improvements in its monitoring of hotline calls.
Under procedures employed by the SCR, hotline specialists are monitored by SCR supervisors who attempt to reach an independent conclusion as to whether an appropriate screening decision has been made and whether the hotline specialist obtained all available information before making a decision with respect to a call. See Affidavit of Teresa Palumbo in Opposition to Plaintiffs' Motion for an Order Directing Compliance ("Palumbo Aff.") ¶¶ 45. In May 2000, the SCR revised the form used to assess worker performance in order to increase its utility. It added a datagathering component which assists supervisors in analyzing screening-out practices. See id. ¶¶ 6-9. In addition, the SCR has continuously worked to modify the assessment form as needed to improve performance. See id. ¶ 12.[3]
Furthermore, OCFS actively maintains a full staff at the SCR. A "blanket waiver" of the New York State prohibition on hiring new staff enables the SCR to regularly replace staff. Supervisory staffing has been increased to provide guidance twenty-fours hours per day, seven days per week. See id. ¶¶ 13-14. These supervisory staff members are, in turn, monitored by the SCR managers who are also involved in the assessment process. See id. ¶¶ 18-19.
The SCR employs a supervisory consultation policy which requires a hotline specialist to consult a supervisor when he or she has determined not to act on a report of abuse or neglect. This offers a second level of review prior to declining to act on a call. Additionally, each member of the SCR staff is required to give his or her name to all callers, thereby increasing accountability and the ability to review improperly screened-out calls. See id. ¶¶ 15-16. Based on the affidavit of Teresa Palumbo, which essentially went unchallenged, and the lack of any evidence demonstrating a failure to use reasonable efforts to determine whether calls were inappropriately screened out, the Court finds that Plaintiffs have not met their burden of proving non-compliance with ¶ 14 of the State Settlement Agreement.
B. The Case Record Reviews 0907 ¶¶ 18-21
In order to insure that ACS engaged in effective casework practice and complied with applicable laws and regulations, the State Settlement Agreement directed OCFS to conduct and issue periodic case record reviews. 308 OCFS was required to conduct case record reviews in nine specified areas "to determine ACS's compliance *308 with applicable laws and reasonable case work practice." State Settlement Agreement ¶ 18. These case record reviews were required to be completed at least once prior to the expiration of the Agreement with copies furnished to Plaintiffs no less than ninety days prior to the expiration of the Agreement. See id. ¶ 19. Furthermore, ¶ 21 states:
If, after completing its case record review(s), OCFS determines that ACS is in substantial noncompliance with applicable laws, regulations and/or reasonable case work practice, OCFS shall direct ACS to take Corrective Action designed to improve ACS's performance in the specific areas of noncompliance. The NYCRO will use reasonable efforts to provide technical assistance and exercise its monitoring authority as it deems necessary and appropriate. OCFS shall meet with Plaintiffs as provided for in Paragraph 30, below, to report such efforts towards achievement of this objective and the last such meeting shall occur at least sixty (60) business days prior to the expiration of this Agreement.
Id. ¶ 21. Under ¶ 30, the Commissioner of OCFS and Director of NYCRO were required to meet with Plaintiffs' counsel to review Defendants' compliance with certain provisions of the Agreement on or about April 1 and September 1, 1999, and March 1 and October 7, 2000. See id. ¶ 30.
Plaintiffs contend that the last section of ¶ 21 permitted them to meet with OCFS and NYCRO after the last case record review was issued in December 2000 to monitor the corrective action being taken and determine whether NYCRO fulfilled its obligation to insure that ACS adopt appropriate corrective action. Since the corrective action plans, known as Performance Improvement Plans ("PIPs"), were not complete until March and April 2001 and the Agreement expired on March 31, 2001, Plaintiffs argue that they were deprived of their rights under the Agreement.

However, as the Court reads the plain language of the Agreement, it generally required OCFS to do four things. First, OCFS had to undertake case record reviews in certain areas and furnish them to Plaintiffs no less than ninety days prior to expiration of the Agreement. See id. ¶¶ 18, 19. Second, if OCFS determined that ACS was in substantial non-compliance, it was required to direct ACS to take corrective action. Third, NYCRO was directed to use reasonable efforts to provide technical assistance to ACS and monitor ACS's performance as NYCRO deemed necessary and appropriate. Fourth, OCFS was required to meet with Plaintiffs pursuant to the terms of ¶ 30 to report efforts towards achieving ACS's compliance, with the last meeting to occur at least sixty days prior to expiration of the Agreement. See id. ¶ 21.
Defendants met these obligations. OCFS issued the last case record review reports to Plaintiffs on December 28, 2000, ninety-three days before the Agreement was set to expire. After completing the case record reviews, OCFS directed ACS to take corrective action designed to improve ACS's performance in specific areas. See Hearing Transcript ("Tr.") at 268. ACS was required to submit PIPs within sixty days addressing those areas in which OCFS believed there was substantial noncompliance with applicable laws, regulations and/or reasonable case work practice. See id. at 268-69. During the sixty day period that ACS was drafting the PIPs, NYCRO met with ACS to provide assistance. See id. at 269. OCFS and NYCRO rejected ACS's initial proposed PIPs. See id. at 309 270. They required ACS to revise and resubmit their PIPs. ACS's proposed *309 PIPs were ultimately resubmitted and accepted by OCFS and NYCRO in March and April 2001. See id. at 271, 273, 277. The last meeting between Plaintiffs and OCFS pursuant to ¶ 30 was held in October 2000.
Plaintiffs allegedly anticipated that OCFS would furnish the case record reviews much earlier than December 2000, and therefore, thought the October 2000 meeting would be timely for the purpose of monitoring OCFS's and NYCRO's efforts. Since the last case record review was not furnished until December 2000 and the PIPs were not approved until March and April 2001, the October 2000 meeting was essentially meaningless for these purposes. However, the parties' obligations are governed by an unambiguous contract with which Defendants have complied. The Court will not read into the clear language an obligation that Plaintiffs contemplated but did not memorialize in writing. Accordingly, the Court finds that OCFS has complied with ¶ 21 of the Agreement.
C. CONNECTIONS 0907 ¶ 22
The federal Administration for Children and Families ("ACF") requires all states to create a Statewide Automated Child Welfare Information System ("SACWIS"). The State Settlement Agreement requires OCFS to make reasonable efforts to implement and maintain New York's SACWIS system, known as CONNECTIONS. Under ¶ 22 of the Agreement:
OCFS shall use reasonable efforts and means available to it to develop and implement in New York State, at the earliest practicable date, an accurate and reliable state-wide computer system (now referred to as "CONNECTIONS") to provide information concerning: a) child welfare case activity necessary to manage and supervise the child welfare system and determine compliance with fiscal and legal standards; and b) child welfare case management reports sufficient to create aggregate data on issues including but not limited to: timeliness of investigations; re-occurrence of indicated reports; timeliness of case plans; time in care; number of placements; number of reentries into care; and adoption statistics.
State Settlement Agreement ¶ 22.
In 1995, New York began to develop CONNECTIONS. See Plaintiffs' Exhibit ("Pl.Ex.") K-1. By March 1999, prior to the commencement of the Settlement Period, the CONNECTIONS system was in disarray. A large sum of money had been spent on the system and yet it remained dysfunctional in many key areas. In October 1997, OCFS Commissioner John Johnson received a letter from the child welfare commissioners of the six largest New York counties (the "Big Six" counties), in which the commissioners complained that CONNECTIONS failed to meet their needs.[4] They requested that Commissioner Johnson suspend the development of CONNECTIONS for one year in order to meet with the counties and revisit OCFS's plan for development. See Def. Ex. 24. In response, Commissioner Johnson temporarily ceased the development of CONNECTIONS. See Tr. at 125.

In 1998, the Office of the State Comptroller (the "OSC") issued a report on the development of CONNECTIONS, which was highly critical of OCFS's efforts to that point. See Pl.Ex. K-1. Then in March 1999, at the beginning of 310 the Settlement Period, the New York State Governor's *310 office issued a report prepared by a panel appointed by the Governor, entitled "Panel Review of CONNECTIONS Project." See Pl.Ex. M. The report consisted of ten general recommendations in areas in which CONNECTIONS needed improvement. One recommendation was for OCFS to hire a project integrator that would coordinate the CONNECTIONS project until it became operational. See id. at 2. Maximus, Inc. was hired as the project integrator in September 1999.
In March 2001, Maximus issued the "CONNECTIONS Reassessment Report," which was generally critical of OCFS's efforts. Maximus did suggest, however, that the system could be saved through future modifications and upgrades. See Pl.Ex. W. The Maximus report proposed three alternatives for OCFS to follow to improve CONNECTIONS. First, OCFS could essentially work with what it had in effect at the time. Second, OCFS could make improvements to the then-existing system. Third, OCFS could replace the old CONNECTIONS system by beginning work on a new system. See id. at VII-1. OCFS opted for the second alternative.
Also in March 2001, the New York State Assembly issued the results of its investigation into CONNECTIONS. The report, entitled "Too Much, Too Little, Too Late," was generally critical of OCFS's efforts in implementing CONNECTIONS. See Pl. Ex. L.
Dr. F. James Seaman, an independent computer consultant in the area of Information Technology management with twenty-five years of experience, testified for Plaintiffs and gave his opinion that OCFS had not made reasonable efforts to develop CONNECTIONS at the earliest practicable date as required by the Agreement. Although he did not think that OCFS necessarily made any missteps in its approach to developing CONNECTIONS during the Settlement Period, he believed OCFS did not act with the sense of urgency mandated by the circumstances. He opined that OCFS should have acted with greater haste in trying to improve a system that was essentially in crisis at the beginning of the Settlement Period. See Tr. at 65-66. Furthermore, Dr. Seaman did not believe that OCFS's plan to follow the second alternative proposed by Maximus was a satisfactory approach to fixing CONNECTIONS. See id. at 67.
Dr. Seaman also pointed out that the data contained in CONNECTIONS may be inaccurate. See id. at 69. In his view, it is critically important for the system's data to be accurate because a functional system that produces inaccurate data is useless. See id. at 70.
Larry Brown and Zachary Zambri, the two project directors for CONNECTIONS, testified for OCFS and painted quite a different picture of OCFS's efforts during the Settlement Period. According to Mr. Brown and Mr. Zambri, throughout the Settlement Period OCFS was unable to take several steps in implementing CONNECTIONS due to administrative restraints. For example, at the beginning of the Settlement Period, OCFS had insufficient core staff to implement several measures. It sought to create sixty-four new positions (or "items") but needed support from the legislature, the comptroller, and the governor's office, among others. See id. at 126-27. The request for these items was made in 1999 but was not approved in the State's budget until April 2000. See id. at 127. In addition, OCFS' effort to engage Maximus as the project integrator was a lengthy process requiring approval by both the OSC and the federal government. See id. at 149. While OCFS was waiting for that approval, Maximus 311 began its work, but did so at risk that its contract *311 with OCFS would not be approved. See id. at 150.[5]
Despite these obstacles, OCFS has made efforts to improve CONNECTIONS, with mixed results. The CONNECTIONS system is comprised of a number of "Releases." For example, Release Two, which relates to child protective services, has been operational since 1997. Release Three is the "Foster and Adoptive Home Development" component and is also currently operational. See id. at 131-32. OCFS planned to have Release Four, which was the foster care system component, operational by 1997. As of August 2001, it was not in operation. OCFS now estimates that it will not be functional until June 2004.
Release Five would have related to management reports about the foster care data compiled in Release Four. However, since Release Four was not operational in 1997, Release Five would not have worked either. See id. at 199. In place of what was originally Release Five, OCFS is using a "Data Warehouse," which was created in early 2000. See id. at 119-20, 199. The Data Warehouse project attempts to use data from CONNECTIONS, in

conjunction with data from the Child Care Review Service ("CCRS"), an existing computer information system, to address the needs of OCFS's users. See Affidavit of Larry Brown in Opposition to Plaintiffs' Motion for an Order Directing Compliance ("Brown Aff.") ¶ 8. However, while most of the data in the Data Warehouse is currently available, it is not scheduled to be fully operational until the end of 2001. See Tr. at 207-08.
Also, OCFS is currently implementing CITRIX, a program that allows OCFS to update the 15,000 computers across the State which use CONNECTIONS applications. Prior to CITRIX, each of those 15,000 computers had to be updated by hand. With CITRIX, OCFS can quickly fix applications without having to rely on manual corrections which could only be done approximately twice per year. See id. at 133-34.
Furthermore, OCFS has created the Child Protective Record Summary ("CPRS"), a program that gives caseworkers easier access to files on their computers by improving the visual organization of information on their screens. See id. at 144-45. The CPRS is scheduled to be operational in October 2001. See id. at 217.
In addition to these structural changes, OCFS has apparently gained the support of some of its former critics. For example, the OSC, which had been critical of OCFS in its 1998 report, see Pl.Ex. K-1, issued a second report in October 1999 indicating that it believed OCFS had made "significant progress in implementing the recommendations" contained in the first report. See Pl.Ex. K-5.
The federal government has also signaled its approval of the steps OCFS is taking with regard to CONNECTIONS. In order to enter into any contract relating to CONNECTIONS, OCFS is required to have prior federal government approval since the project must comply with federal SACWIS requirements. See Tr. at 344. At the beginning of the Settlement Period, OCFS's relationship with the federal government was so poor that federal funds had been suspended and OCFS could not get approval for many of its contracts. However, since the 312 commencement of the *312 Settlement Period, federal funding has been restored. See id. at 159.
Furthermore, on April 16, 2001, the commissioners of the Big Six counties wrote to Commissioner Johnson. Whereas their first letter to Commissioner Johnson in October 1997 requested that OCFS suspend the development of CONNECTIONS for one year because it worked so poorly, in April 2001 the commissioners believed that OCFS had taken their initial concerns "seriously and began a very productive dialogue" with them. Def. Ex. 25. In addition, the commissioners indicated that they supported OCFS's recommendations. See id.
It is undisputed that OCFS does not currently have a complete, functional, statewide computer system, or even a date by which one can be expected. Of course, the Agreement did not require OCFS to complete the system during the Settlement Period, only that it use "reasonable efforts and means available to it" to develop and implement the system at the "earliest practicable date." State Settlement Agreement ¶ 22.
At the hearing, the Court was presented with conflicting evidence with regard to the reasonableness of OCFS's efforts. On the one hand, two reports published in March 2001 were highly critical of OCFS's efforts. Furthermore, Dr. Seaman gave his opinion that OCFS has not made reasonable efforts to develop CONNECTIONS at the earliest practicable date. On the other hand, it is clear from the evidence presented by OCFS that OCFS has made commendable efforts to improve CONNECTIONS. Nevertheless, many of the measures taken by OCFS during the Settlement Period were preliminary steps necessary to achieve the ultimate goal of functionality. OCFS will not know the results of its efforts for some time. Accordingly, although it is a close question, the Court finds it appropriate to enter an order directing OCFS to comply with ¶ 22.
II. Remedy
Having found that OCFS has failed to comply with ¶ 22 of the Agreement, the Court must fashion a remedy that will insure compliance. Plaintiffs ask the Court to continue its jurisdiction over ¶ 22 of the Agreement and assign an independent monitor to supervise OCFS's efforts. While the Court will agree to continue its jurisdiction over ¶ 22, an independent monitor is not warranted. Despite the fact that CONNECTIONS is not yet fully functional, the Court is convinced that the program is now in capable hands and that OCFS is working hard toward achieving compliance with ¶ 22 of the Agreement. Furthermore, there is enough independent oversight of OCFS through

Maximus and the executive and legislative branches of the New York State government to insure that OCFS will continue to work diligently towards full implementation of CONNECTIONS.
Nevertheless, the Court and Plaintiffs should be kept informed of OCFS's progress. Accordingly, the Court continues its jurisdiction over ¶ 22 and directs that OCFS comply with ¶ 22 and furnish semiannual reports to the Court with copies to Plaintiffs' attorneys. The first report shall be furnished on January 2, 2002 and the last report shall be furnished when the system is fully functional.
A. Authority in the State Settlement Agreement
Defendants object to the Court's continuing jurisdiction. They argue that the Agreement contains an express and unconditional expiration date and no mechanism by which to extend that date. Under the Agreement, ¶ 22 313 expired on March 31, 2001. See State Settlement Agreement *313 ¶ 38. However, the Agreement states that the Court shall "retain jurisdiction for the sole purpose of enforcing any specific terms and conditions" of the Agreement for which Plaintiffs allege non-compliance. Id. ¶ 36. "Where the parties to a settlement agreement provide for the Court to retain jurisdiction over the settlement agreement, the Court has jurisdiction to enforce the terms of the settlement agreement." Scharf v. Levittown Public Schs., 970 F.Supp. 122, 129 (E.D.N.Y.1997).
By filing their motion prior to the expiration date of March 31, 2001, and otherwise following the procedures set forth in the Agreement for attempting to resolve disputes, Plaintiffs preserved their right to challenge Defendants' compliance with the Agreement notwithstanding the fact that ¶ 22 has since expired. Since the Court has determined that OCFS has not complied, the Court can, pursuant to ¶ 36, retain jurisdiction over ¶ 22 solely to enforce that paragraph. This includes the authority to enter all orders necessary to enforce the Agreement. If the Court were precluded from retaining jurisdiction or limited in its ability to enforce its order beyond the expiration date, the order and the Agreement's enforcement provisions would lack any significance.
B. Eleventh Amendment Immunity
Defendants also argue that under the Eleventh Amendment, the Court lacks jurisdiction to award any relief against OCFS that goes beyond the specific terms of the State Settlement Agreement. They contend that the Court's jurisdiction is limited to entering an order directing OCFS to comply with ¶ 22 of the Agreement. Plaintiffs counter that by entering into the Settlement Agreement and consenting to the Court's continuing jurisdiction, Defendants waived their Eleventh Amendment immunity defense.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although the text of the Amendment bars suits in federal court against a state "by Citizens of another State," it is well-established that "sovereign immunity extends beyond the literal text of the Eleventh Amendment to bar a citizen from suing his own state under federal question jurisdiction." McGinty v. New York, 251 F.3d 84, 91 (2d Cir.2001) (citing Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). However, there are two exceptions to the general rule. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment, and second, a state may waive its sovereign immunity by consenting to suit. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
Plaintiffs contend that this court has jurisdiction under the second exception, the State's waiver of immunity. The Supreme Court has said, "our `test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.'" Id. at 675, 119 S.Ct. 2219 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Generally, a court will find a waiver either if the state voluntarily invokes the jurisdiction of the federal courts or if the state makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. See id. at 675-76, 119 S.Ct. 2219. A state will be deemed to have waived 314 its immunity "only where stated `by the most express *314 language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 94

S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)).
A state may waive its Eleventh Amendment immunity by entering into a settlement agreement in which it unequivocally agrees to subject itself to federal court jurisdiction. For example, in Watson v. Texas, 261 F.3d 436 (5th Cir.2001), the court relied on two clauses in a settlement agreement in holding that Texas waived its immunity for a limited class of disputes. The first clause stated: "[The parties] acknowledge that this Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and that this court shall retain jurisdiction for the purpose of implementing and enforcing this Settlement Agreement." Id. at *2-3. The second clause stated that the parties "agree to present any disputes under this Settlement Agreement, including without limitation any claims for breach or enforcement of this Settlement Agreement, exclusively to this Court." Id. at *3.
While the court recognized that vesting of jurisdiction alone is not sufficient to waive Eleventh Amendment immunity, see id. (citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)), by consenting to jurisdiction "for the purposes of implementing and enforcing" the Agreement, Texas waived its immunity defense. The court reasoned that "[o]rdinary usage suggests that `enforcing' the Agreement might entail one party suing the other, which would be impossible unless Texas's consent to jurisdiction embodied a waiver of its Eleventh Amendment immunity." Id.; see also Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1057 (9th Cir.1997) (state waived its Eleventh Amendment immunity by entering into Tribal-State Compacts in which state expressly agreed that judicial review of any action by either party would be had "solely in the appropriate United States District Court"), cert. denied, 524 U.S. 926, 118 S.Ct. 2319, 141 L.Ed.2d 694 (1998).
Although a state can waive the immunity defense in a settlement agreement, such a waiver will not be found absent unequivocal, express language of waiver. For example, in Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186 (10th Cir.1998), the court held that "the fact that the defendants here entered into a settlement agreement with Ellis does not act as a waiver of the defendants' constitutionally protected immunity because the settlement agreement does not itself indicate, nor does the record otherwise reflect, an unequivocal intent to waive the immunity by the agreement." Id. at 1195; see also Johns v. Stewart, 57 F.3d 1544, 1554 (10th Cir.1995) (state's partial settlement does not constitute waiver of immunity absent unequivocal expression of waiver); Saahir v. Estelle, 47 F.3d 758, 762 (5th Cir.1995) (state's participation in settlement agreement insufficient to waive its sovereign immunity); Sharafeldin v. Maryland, Dep't of Pub. Safety and Corr. Serv., 94 F.Supp.2d 680, 686-87 (D.Md. 2000) (state did not waive its immunity defense where settlement agreement provided for enforcement in the "courts" but did not specify enforcement in federal courts).
In this case, several provisions of the Agreement support the Court's determination that Defendants waived their immunity defense. First, ¶ 36 of the Agreement provides that "the Court shall retain jurisdiction for the sole 315 purpose of enforcing any specific terms and conditions of this Agreement against the Commissioner *315 of OCFS for which Plaintiffs allege non-compliance and the parties have been unable to resolve." State Settlement Agreement ¶ 36. Second, ¶ 37 provides that, in the event Plaintiffs seek judicial enforcement of the terms of the Agreement, they will "in the first instance seek an order directing compliance with this Agreement and thereafter may, if necessary, seek further judicial remedies to enforce the terms and conditions of this Agreement in dispute." Id. ¶ 37. Third, ¶ 41 states:
All class-wide or systemic claims arising from new facts and/or circumstances that occur during the duration of this Agreement and which relate in any way to any claim raised in the Pre-Trial Order are resolved by this Agreement, except that this Agreement shall not preclude any individual class member from filing an action on their own behalf against State Defendants or either of them during the duration of this Agreement for the purpose of seeking damages and/or equitable relief to protect rights, well-being and interests of such present or future class members; provided, however, that: 1) such equitable relief must be limited to that which is necessary or appropriate to redress the individual class member's injury, and 2) this Agreement shall not constitute, be construed as or be read as a consent by the State Defendants, or either of them, to be sued in

federal court, or as a waiver of any defense of sovereign immunity the State Defendants, or either of them, may seek to raise, including an Eleventh Amendment immunity from suit in federal court.
Id. ¶ 41 (emphasis added).
Reading these three provisions together, the Court finds that Defendants unequivocally waived their Eleventh Amendment immunity defense for the purpose of this enforcement proceeding. Under ¶ 36, Defendants clearly consented to this Court's jurisdiction to enforce the Agreement. As the Fifth Circuit said in Watson, 2001 WL 883533 at *3, while consenting to jurisdiction alone is insufficient to waive the immunity defense, consenting to jurisdiction for the purpose of enforcing the Agreement necessarily constitutes a waiver of immunity because it contemplates that the Court may entertain some type of action against Defendants. If Defendants consented to this Court's jurisdiction for the purpose of enforcing the Agreement but were then able to assert the immunity defense, the Court's retention of jurisdiction would be meaningless.
Furthermore, ¶ 37, which clarifies this Court's powers under the Agreement and is clearly related to ¶ 36, permits Plaintiffs to seek "further judicial remedies" to enforce the Agreement. The Agreement does not limit what judicial remedies are available. Like Defendants' consent to the Court's jurisdiction to enforce the Agreement, Defendants' consent to permit Plaintiffs to seek further judicial remedies evinces their unequivocal waiver of Eleventh Amendment immunity.
Finally, Defendants' apparent reservation of their immunity defense in ¶ 41 of the Agreement is unavailing here. It is clear from the plain language of that paragraph, and the placement of the language in the section of the Agreement dealing with the rights of class members to bring individual actions, that the language reserves Defendants' right to raise the immunity defense in such individual actions, and not in a proceeding to enforce the Agreement in this Court. Accordingly, the Court finds that Defendants have waived their Eleventh Amendment immunity defense.
CONCLUSION
316 For the foregoing reasons, Plaintiffs' motion for an order directing compliance *316 with ¶¶ 14 and 21 of the State Settlement Agreement is denied. Plaintiffs' motion for an order directing compliance with ¶ 22 of the State Settlement Agreement is granted to the extent that the Court will continue its jurisdiction over ¶ 22 until the Court determines that Defendants have complied with that paragraph. OCFS is directed to furnish semi-annual reports to the Court with copies to Plaintiffs' attorneys. The first report shall be furnished on January 2, 2002. These reports shall summarize OCFS's progress in developing CONNECTIONS and provide sufficient information to enable the Court to ascertain whether OCFS is using reasonable efforts and means available to it to develop and implement CONNECTIONS at the earliest practicable date.
It is so ordered.
[1] Because December 31, 2000 fell on a Saturday, the sections of the Agreement which were scheduled to expire on that day actually expired on January 2, 2001. See Rule 6(a), Fed.R.Civ.P.
[2] Since the filing of this motion on January 8, 2001, plaintiffs have withdrawn their claims with respect to two other provisions of the Agreement.
[3] Counsel for OCFS represented during closing arguments that the SCR has recently revised its assessment form once again to correct problems caused by previous versions of the form.
[4] The so-called Big Six counties are New York, Erie County, Monroe County, Onondaga County, Suffolk County, and Westchester County. See Defendants' Exhibit ("Def.Ex.") 24.
[5] Mr. Brown and Mr. Zambri testified that the New York State government's scrutiny of CONNECTIONS-related contracts and finance requests has been more rigorous than anything they have seen in decades of State government service. See Tr. at 149, 347.

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 929 F.Supp. 660 (1996)
MARISOL A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, et al., Defendants. Application of COURTROOM TELEVISION NETWORK, Proposed Intervenor.
No. 95 Civ. 10533 (RJW).
United States District Court, S.D. New York.
March 1, 1996.
Children's Rights, Inc., New York City (Marcia Robinson Lowry, Craig Levine, Mark G. Peters, Rebecca Kim Kimura, Martha Stone, of counsel), Lawyers for Children, Inc. New York City (Gayle Lerner, Karen Freedman, of counsel), for Plaintiffs.
Corporation Counsel of the City of New York, New York City, Paul A. Crotty, Corporation Counsel (Lorna Goodman, Phyllis Seidman, of counsel), for City Defendants.
Attorney General of the State of New York, New York City, Dennis C. Vacco, Attorney General (Ronald Younkins, Michael Popkin, of counsel), for State Defendants.
Cahill Gordon & Reindel, New York City (Floyd Abrams, Jonathan Sherman, of counsel), for Proposed Intervenor.
MEMORANDUM AND ORDER
ROBERT J. WARD, District Judge.
Proposed Intervenor, Courtroom Television Network ("Court TV"), moves by order to show cause pursuant to Rule 24, Fed. R.Civ.P., to intervene in this case for the limited purposes of (a) persuading this Court to allow Court TV to televise the March 4, 1996 oral argument on plaintiffs' motion for class certification and defendants' 661 partial motions to dismiss ("March 4 Argument") and *661 (b) obtaining the Court's written permission, pursuant General Rule 7 of the Local Rules of this Court ("Rule 7"), to televise that hearing. Inasmuch as the Court heard counsel for the Proposed Intervenor on February 28, 1996, the portion of the motion seeking to intervene is moot. For the reasons hereinafter stated, the portion of the motion seeking to televise the March 4 Argument is granted.
DISCUSSION
On June 30, 1988, the Board of Judges of this Court adopted amended Rule 7, which is entitled "Photographs, Radio, Recordings, Television" and remains in effect. The Rule provides in pertinent part:
No one other than court officials engaged in the conduct of court business shall bring any camera ... into any courthouse or its environs without written permission of a judge of that court.
Environs as used in this rule shall include the entire United States Courthouse property, including all entrances to and exits from the buildings.
The Judicial Conference of the United States ("the Conference") subsequently considered the propriety of televising adversarial civil proceedings in federal court. On September 20, 1994, the Conference rejected an unambiguous recommendation in favor of televised proceedings by its Committee on Court Administration and Case Management and adopted a policy opposing the use of cameras to televise civil proceedings in the federal courts.

The threshold question, therefore, is whether this Court has discretion to allow Court TV to televise the March 4 Argument pursuant to Rule 7 or whether the Court is bound by the policy of the Conference. After careful consideration, it is the opinion of this Court that the policy of the Conference does not overrule or supplant the Local Rules adopted by the Board of Judges of this District Court. See 28 U.S.C. §§ 331, 2071(c) (1988). Rather, Rule 7 empowers the Court to grant written permission to televise a civil proceeding and the Court should consider the Conference policy only as a persuasive factor in the exercise of that power.[1]
The discretionary power of this Court thus having been established, the Court must next consider whether this is an appropriate case in which to exercise that power and allow televised coverage. Plaintiffs' counsel support the application to televise the oral arguments. The City defendants oppose the application and urge the Court not to exercise its discretion because of the prejudice it argues will result from the public's alleged inability to comprehend the technical aspects of defendants' motion to dismiss. The State defendants take no position on the application.
After considering the arguments of counsel, this Court has determined that the public interest would be served in this case by granting the application. Recognizing that the policy of the Judicial Conference must be given considerable weight when deciding an application to televise federal court proceedings, this Court nevertheless finds that the profound social, political, and legal issues raised by the instant case make it appropriate for broadcast.
One factor persuading the Court is Court TV's representation that it intends to televise "gavel to gavel" the entire March 4 Argument. The Court is further persuaded to allow such coverage by the fact that there will be no jury and no witnesses present at that hearing. It is also the Court's view that the City defendants will not be prejudiced in connection with their motion to dismiss because of the public's inability to comprehend the technical aspects of that motion. This Court is unwilling to deny access to information based on the perceived inability of the public to grasp such information. Not only has Court TV represented that it will employ commentators to explain the nature of the proceeding, but counsel for the City defendants is free to state on the record that the allegations of the complaint are only to be taken as true in connection with the motion to dismiss and are not admitted by the 662 defendants. Under the circumstances, this Court *662 can perceive no prejudice to the parties in the granting of this application.
CONCLUSION
For the foregoing reasons, Court TV is hereby granted leave, pursuant to Rule 7, to televise the oral arguments to be held before this Court on March 4, 1996.
It is so ordered.
[1] It should be noted that, at oral argument held on February 28, 1996, all of the parties agreed that this Court has the discretion to authorize the broadcast of the March 4 Argument.
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 111 F.Supp.2d 381 (2000)
MARISOL A., by her next friend, Rev. Dr. James Alexander FORBES, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW).
United States District Court, S.D. New York.
August 30, 2000.
38234 *382 *383 *384 Children's Rights, Inc., New York City (Marcia Robinson Lowry, Susan Lambiase, Kim E. Murdock, Jeffrey K. Powell, of Counsel), Lawyers for Children, New York City (Karen J. Freedman, of Counsel), Schulte Roth & Zabel LLP, New York City (Daniel J. Kramer, Jess A. Velona, of Counsel), for Plaintiffs.
Michael D. Hess, Corporation Counsel of the City of New York, New York City (Gail Rubin, Grace Goodman, John Woods, of Counsel) for Defendants.
OPINION
WARD, District Judge.
Plaintiffs, who were represented by Children's Rights, Inc. ("CRI"), Schulte, Roth and Zabel, LLP ("Schulte"), and Lawyers for Children, Inc. ("LCI"), move for attorneys' fees and expenses pursuant to 42 U.S.C. § 1988. They initially sought $9,359,569.39 in fees and out-of-pocket expenses, but later reduced their request to $7,997,313.67. For the reasons hereinafter stated, the Court awards plaintiffs $5,835,116.78 in attorneys' fees and expenses.
BACKGROUND
The Court assumes familiarity with the underlying facts of this case, which are more fully reported in Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996) (denying motion to dismiss and certifying class) ("Marisol I"), aff'd, 126 385 F.3d 372 (2d *385 Cir.1997), and Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999) (approving settlement agreements) ("Marisol II"), aff'd sub nom., Joel A. v. Giuliani, 218 F.3d 132 (2d Cir.2000). Nevertheless, the Court will provide a brief overview of the facts which are relevant to the instant motion.
Plaintiffs filed a complaint in this Court on December 13, 1995, alleging systemic deficiencies in the administration of the New York City child welfare system. The complaint sought declaratory and injunctive relief against various officials of the City of New York (the "City defendants" or "defendants") and various officials of the State of New York who were responsible for the operation or oversight of New York's child welfare system.[1]
At the same time they filed their complaint, plaintiffs moved for class certification seeking to represent a class consisting of all children who were in or would be in the custody of the City's child welfare system, who were or would be at the risk of abuse or neglect, and whose status was known to the responsible City agency. Defendants moved to dismiss the complaint and opposed the motion for class certification. The Court denied defendants' motion to dismiss and granted plaintiffs' motion for class certification in an opinion dated June 18, 1996. See generally Marisol I, 929 F.Supp. 662.
On the eve of trial, which was to commence on July 27, 1998, the parties informed the Court that they were engaged in settlement negotiations. The trial was adjourned and on December 2, 1998, after four months of negotiations, two Settlement Agreements were filed with the Court. One Settlement Agreement was between plaintiffs and the City defendants and the other was between plaintiffs and the State. The Court approved the Settlement Agreements on March 31, 1999. See generally Marisol II, 185 F.R.D. 152.

The Settlement Agreement between plaintiffs and the City defendants established an Advisory Panel of experts in the child welfare field. Id. at 157. The Administration for Children's Services ("ACS") agreed to cooperate with the Advisory Panel and to provide the Panel with full access to information, documents, and personnel. Id. at 158. The Advisory Panel is required to produce reports to determine whether ACS is acting in good faith in making efforts toward reform in certain areas. Id. If the Advisory Panel determines that ACS is not acting in good faith, plaintiffs may seek judicial relief. Id. The City Settlement Agreement, which expires on December 15, 2000, contains certain limitations on the filing of lawsuits through covenants not to sue and release provisions. Id. at 158-59.
Plaintiffs filed the instant motion while an appeal of the Court's approval of the Settlement Agreements was pending. The Court delayed ruling on the motion until the appeal was decided. The Court's decision was affirmed on July 10, 2000.
DISCUSSION
In federal civil rights actions, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The parties agree that plaintiffs are prevailing parties for purposes of § 1988. Therefore, the only issue remaining is determining an award of reasonable attorney's fees.
I. Calculating Fees With the "Lodestar" Method
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 386 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The result of this *386 calculation, the so-called "lodestar" figure, is presumed to be the reasonable fee. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir.1998) (citations omitted). Plaintiffs have the burden of submitting evidence supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. If the documentation is inadequate, for example, if it reflects excessive or redundant time, the court may reduce the award accordingly. Id. at 433-34, 103 S.Ct. 1933.
The Court will first determine plaintiffs' attorneys' reasonable hourly rates. It will then decide how many hours were reasonably expended on the litigation and consider whether any reduction in the lodestar amount is warranted.
A. Calculating the Reasonable Hourly Rate
In determining the reasonable hourly rate to be applied, the Court should look to market rates "`prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The relevant community to which the court should look is the district in which the case was brought. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987). The rates used by the Court should be "`current rather than historic hourly rates.'" Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).
Furthermore, non-profit civil rights attorneys should receive a "`fully compensatory fee,'" Jenkins, 491 U.S. at 286, 109 S.Ct. 2463 (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933), "comparable to what `is traditional with attorneys compensated by a fee-paying client.'" Id. (quoting S.Rep. No. 94-1011, p. 6 (1976), U.S.Code Cong. & Admin. News 1976, pp. 5908, 5913); see also Blum, 465 U.S. at 895, 104 S.Ct. 1541 ("The statute and legislative history establish that `reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.").
Plaintiffs are also entitled to seek fees for paralegal services. See Jenkins, 491 U.S. at 286-87, 109 S.Ct. 2463; United States Football League v. National Football League, 887 F.2d 408, 415-16 (2d Cir. 1989), cert. denied,

493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). Like the work performed by attorneys, the work performed by paralegals is billed by using the prevailing hourly rate for paralegal services in the community. United States Football League, 887 F.2d at 416.
After researching recent fee awards in civil rights cases, the Court finds that a reasonable rate scale is as follows: $350 for attorneys with more than fifteen years of experience, $300 for attorneys with ten to fifteen years of experience, $230-250 for attorneys with seven to nine years of experience, $180-200 for attorneys with four to six years of experience, and $130-150 for attorneys with one to three years of experience. See, e.g., Robinson v. Instructional Sys., Inc., 105 F.Supp.2d 283, 286-87 (S.D.N.Y.2000) ($250 for attorney with fifteen years of experience and $175 for attorney with four to five years of experience in Title VII case); Pascuiti v. New York Yankees, 108 F.Supp.2d 258, 266 (S.D.N.Y.2000) ($250 for attorneys at small firm with twenty-nine and twentyeight years of experience); National Helicopter Corp. of America v. City of New York, 96 Civ. 3574, 1999 WL 562031, at *6 (S.D.N.Y. July 30, 1999) ($300 for partners and $140 for associates is reasonable for attorneys at large law firm); Ward v. New York City Transit Auth., 97 Civ. 8550, 1999 WL 446025, at *10 (S.D.N.Y. June 28, 387 1999) ($300 for experienced civil rights litigator, $175, $150, and $125 for associates with varying *387 levels of experience); Skold v. American Int'l Group, Inc., 96 Civ. 7137, 1999 WL 405539, at *7 (S.D.N.Y. June 18, 1999) ($400 for experienced civil rights litigator who provided overall direction and strategy, $275 for attorney who served as lead counsel, $225 for attorney who served as co-lead counsel, and $175 for associate), aff'd, 205 F.3d 1324 (2d Cir.2000); Perry v. S.Z. Restaurant Corp., 95 Civ. 5424, 1999 WL 370648, at *1 (S.D.N.Y. June 8, 1999) ($275-300 for senior partner, $250 for senior associate, $195-225 for junior associate); Rodriguez v. McLoughlin, 84 F.Supp.2d 417, 421-23 (S.D.N.Y.1999) ($425 for senior partner at large firm who was an experienced civil rights lawyer, $240 for attorney at large firm with four years of experience, and $175 for attorney at large firm with two years of experience); TM Park Ave. Assocs. v. Pataki, 44 F.Supp.2d 158, 166-68 (N.D.N.Y.1999) (applying Southern District rates and awarding $275 to senior partners at large firms, $200 for senior associates, and $175 for junior associates), vacated on other grounds, 214 F.3d 344 (2d Cir.2000); Broome v. Biondi, 17 F.Supp.2d 230, 237 (S.D.N.Y.1997) ($295-320 for senior partners at large firm, $290 for junior partners, and $175-265 for associates based on varying levels of experience); Williams v. New York City Hous. Auth., 975 F.Supp. 317, 323 (S.D.N.Y.1997) ($250 for junior partners, $200 for senior associates, $150 for mid-level associates, and $135 for junior associates); Wilder v. Bernstein, 975 F.Supp. 276, 282 (S.D.N.Y.1997) (awarding attorneys at CRI $300 for M. Lowry, $220 for S. Lambiase, and $130 for R. Kimura); Kim v. Dial Serv. Int'l, Inc., 96 Civ. 3327, 1997 WL 458783, at *16-17 (S.D.N.Y. Aug.11, 1997) ($250 for attorney with eighteen years of experience and $175 for attorney with five years of experience), aff'd, 159 F.3d 1347 (2d Cir.1998), cert. denied, 525 U.S. 1140, 119 S.Ct. 1030, 143 L.Ed.2d 39 (1999); Collins v. Stolzenberg, 970 F.Supp. 303, 304 (S.D.N.Y.1997) ($250 for experienced civil rights litigator); Bridges v. Eastman Kodak Co., 91 Civ. 7985, 1996 WL 47304, at *11 (S.D.N.Y. Feb.6, 1996) ($250 for attorneys with thirty and twenty years of experience in civil rights litigation and $200 for attorney with seven years of experience), aff'd, 102 F.3d 56 (2d Cir. 1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Helbrans v. Coombe, 890 F.Supp. 227, 233-34 (S.D.N.Y.1995) ($350 for experienced civil rights litigator, $300 for senior partners, $250 for junior partners, $225 for senior associates, $175 for mid-level associates, and $125 for junior associates).
1. CRI
With respect to Marcia Robinson Lowry, the director of CRI and lead attorney in this case, plaintiffs request an hourly rate of $450. Notwithstanding the rate scale described above, Ms. Lowry is awarded $375 per hour as lead attorney and because she has great expertise in child welfare litigation. Ms. Lowry has been working on child welfare matters since the early 1970s. She is the founder and executive director of CRI and brings with her a level of experience in, and understanding of, the issues that undoubtedly conferred a considerable benefit on the plaintiffs. The remaining CRI attorneys' fees will be calculated as follows:

Attorney R. Firestein

Average Level of Experience[2]
15+

Hourly Rate $350

J. Kirklin

15+

350

M. Stone

15+

350

R. Dahlberg

11

300

S. Lambiase

10.5

300

E. Rodriguez

7

230

D. Dorsky

7

230

M. Peters

6

200

K. Schiller

6

200

C. Levine

5.5

200

E. Thompson

5

190

D. Eviatar

4.5

190

M. Delone

3

150

R. Park

3

150

A. Gilbert

3

150

R. Levine

3

150

R. Kimura

2

140

A. Park

1

130

S. Nossel

1

130

388 *388 In addition, CRI seeks fees for the work performed by its paralegals at an hourly rate of $75. Defendants oppose this rate and argue that the prevailing rate in this district is $60-75. In Wilder, this Court approved an hourly rate of $60-75 for paralegals at CRI. 975 F.Supp. at 282. Soon after Wilder, this Court approved an hourly rate of $75 for paralegals in another civil rights action. See Williams, 975 F.Supp. at 323. The cases cited by defendants indicate that the prevailing market rate for paralegal services is still within the range of $60-75. Since an hourly rate of $75, is within the range proposed by defendants and appears reasonable, the Court has determined to apply that rate to this case.[3]

2. Schulte

Plaintiffs propose rates for Schulte in accordance with the hourly rates actually charged to the firms' fee-paying clients in the normal course of the firm's business. The hourly rates requested for Schulte range from $140 for first year associates to $515 for the senior partner, David Brodsky. According to the affidavit of Mr. Brodsky, these rates are consistent with those charged by other large New York City law firms.
Based on the cases cited above, however, the Court finds that a more reasonable rate scale is the one the Court used for CRI attorneys. Because Mr. Brodsky, a seasoned litigator with over thirty years of experience, served as co-lead counsel with Ms. Lowry and made a significant contribution to the settlement of the case, he is also awarded $375 per hour.
Although, courts have recognized that attorneys at large "Wall Street" law firms may receive higher compensation due to the higher overhead and additional costs associated with practice at such firms, see, e.g., Rodriguez, 84 F.Supp.2d at 421-22 (and cases cited therein), the Court finds that the rate scale used above adequately takes into account these additional costs and is consistent with hourly rates awarded to other large firms in this district. See, e.g., National Helicopter, 1999 WL 562031, at *6 (finding that rates of $300-450 for partners and $140-295 for associates at Dewey Ballantine are reasonable at the lower end of those scales); Rodriguez, 84 F.Supp.2d at 422 (awarding attorneys at Chadbourne & Parke $425 for senior partner who was an experienced civil rights lawyer, $240 for attorney with four years of experience, and $175 for attorney with two years of experience); TM Park Ave. Assocs., 44 F.Supp.2d at 166-68 (applying New York City rates and awarding senior partner at Stroock Stroock & Lavan $275 hourly rate instead of requested $460 to $505 rate, and awarding partners at Debevoise & Plimpton and Rosenman & Colin $275 hourly rate, while awarding $200 to senior associates and $175 to junior associates).[4]
389 *389 Therefore, in addition to Mr. Brodsky's hourly rate of $375, the Schulte attorneys' fees will be calculated according to the following hourly rates:

Attorney
J. Velona K. Schiller A. Freedman S. Davidson A. Passanante E. Schijf M. Craner S. Aronowitz J. McBride

Average Level of Experience 9 8 7 3 2 1 1 1 1

Hourly Rate
$250 240 230 150 140 130 130 130 130

Like CRI, Schulte also seeks fees for work performed by its paralegals. However, unlike CRI, Schulte seeks hourly rates far in excess of $75 per hour. According to Schulte, its paralegals' hourly rates range from $65-150, depending on level of experience. Plaintiffs have cited several cases in which courts have awarded more experienced paralegals at large law firms an hourly rate higher than $75, but none awarded paralegals as much as the $150 requested by plaintiffs for Schulte paralegals. See, e.g., Rodriguez, 84 F.Supp.2d at 427 (awarding paralegals between $75 and $130 per hour depending on level of experience). The Court will apply the following rates to Schulte's paralegals, which are reasonable and within the range of rates awarded in other cases:

Paralegal
K. Brombach M. Alston D. McCracken P. Hamlen Others

Average Level of Experience 15 14 8 6
-

Hourly Rate $110 110 90 75 75[5]

3. LCI

Karen Freedman is the co-founder and executive director of LCI. She has an average of seventeen years of experience over the course of the litigation, and therefore, will be compensated at an hourly rate of $350.

B. Number of Hours Reasonably Expended

In determining whether the hours expended by the parties was reasonable, the Court must
"examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case.... In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties."
Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir.1985)). The court may exclude hours that it determines were "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S.Ct. 1933.
Some reduction in plaintiffs' fee award is warranted. The Court will address each area of contention below and explain its reasoning with regard to any reduction. However, rather than reducing a certain number of unreasonably billed hours, the Court will make an across-the-board percentage cut in plaintiffs' fee award as is necessary and appropriate. See, e.g., In re Agent Orange, 818 F.2d at 237 (stating that "in cases in which substantial numbers of voluminous fee petitions are filed, the district court has the authority to make across-the-

board percentage cuts in hours `as a practical means of trimming fat from a fee application.'" (quoting New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)); see also United States Football League, 887 F.2d at 415 (approving a percentage reduction of total fee award to account for vagueness in documentation of certain time entries).
390 *390 1. Time Spent on the Case Against the State
Defendants argue that they should not be required to pay fees for hours spent by plaintiffs litigating their claims against the State. Plaintiffs agree to withdraw 113 hours that CRI spent on negotiating and finalizing the State Settlement Agreement but continue to request compensation from the City defendants for other hours spent litigating against the State.
The allocation of fee liability between defendants is not mandated but rather is within the discretion of the district court. See Koster v. Perales, 903 F.2d 131, 139 (2d Cir.1990). In determining how to allocate fee liability, district courts have considered such factors as the relative culpability of the parties and the proportion of time spent litigating against each defendant. Id. (citations omitted). When allocating fees, the Court should "`make every effort to achieve the most fair and sensible solution that is possible.'" Id. (citations omitted).
In the present case, a significant amount of plaintiffs' work was performed in furtherance of their case against both the City defendants and the State. Even where plaintiffs' time records seem to describe work done solely in relation to the State defendants, that work actually aided plaintiffs in their case against the City defendants. It is fair and reasonable for plaintiffs to recover fees from the City defendants for all the work that assisted plaintiffs in their case against the City even if the records describe work against the State only.
Some work was performed solely in relation to plaintiffs' case against the State. It would be unfair to require the City defendants to pay these fees. However, it would be difficult, if not impossible, to specifically identify the time spent by plaintiffs on issues unique to the State. Therefore, the Court will take this matter into consideration when it reduces plaintiffs' overall fee request.
2. Time Spent on "Clerical" or "Secretarial" Tasks
Defendants argue that plaintiffs unreasonably billed attorneys' and paralegals' rates for tasks such as copying, faxing, typing, and creating and maintaining a database. They also contend that plaintiffs erroneously billed for time spent serving and filing papers. In response, plaintiffs have withdrawn 180.20 of CRI's hours and 40.90 of Schulte's hours which were spent on clerical activities. However, they oppose any reduction in the amount of time spent on what they characterize as "non-clerical work expended on the management and organization of the massive volume of documents and the maintenance of a deposition database." Plaintiffs' Reply Memorandum of Law in Support of Their Motion for Attorney's Fees and Expenses, at 47 ("Pl.Br."). Plaintiffs also oppose any reduction in hours expended serving and filing papers.
This Court has previously recognized that clerical and secretarial services are part of overhead and are not generally charged to clients. Williams, 975 F.Supp. at 324 (citations omitted). Plaintiffs have appropriately reduced their request in recognition of that fact. The Court agrees with plaintiffs, however, that the work performed in furtherance of organizing the countless number of documents in this case and maintaining a litigation-related database is fully compensable. As plaintiffs state, this work required a comprehensive understanding of, and familiarity with, the substance of the case. Furthermore, plaintiffs have shown that such work is customarily billed to fee-paying clients. See Reply Affirmation of Jess A. Velona in Support of Application for Attorneys' Fees and Expenses, at ¶ 35 ("Velona Aff."). Therefore, the Court will not make any further reduction to reflect time spent on these tasks.
391 However, time spent serving and filing papers, along with other similar administrative *391 tasks is not usually considered recoverable. See Broome, 17 F.Supp.2d at 236 (citations omitted). While several of plaintiffs' time entries indicate tasks that are both administrative and substantive, such as "revising and finalizing deliberative privilege reply brief, and production and filing of same," several of the entries are purely administrative, such as

"assist CL to Cahill Gordon to bind appellate brief and to file brief at 2nd circuit." The Court will take this into account when it adjusts plaintiffs' fee award.
3. Time Spent on "General Organizational Matters"
Defendants next argue that plaintiffs have unreasonably billed for general organizational matters. For example, they point out that plaintiffs' attorneys spent 100 hours recruiting staff and pro bono counsel, and that they unreasonably billed for time spent on intake calls, staff meetings, informational interviews, meetings with other organizations, raising funds, acknowledging gifts, and learning Southern District rules.
Plaintiffs respond by withdrawing 94.10 hours spent recruiting pro bono legal assistance and 75.40 hours expended on other general organizational matters. They maintain, however, that they are entitled to fees for hours spent at staff meetings regarding defendants' practices, and interviewing individuals who had first hand experience with the child welfare system because information derived from these activities was essential to the prosecution of their claims. The Court agrees that these tasks are not general organizational matters and are compensable.
In addition, defendants contend that CRI spent 156 hours, and Schulte spent 211 hours, reviewing mail, for which they should not be compensated. This Court has recognized that "[a]ttorneys must review their mail to remain apprised of events in a case. It would be irresponsible of them to delegate that task." Wilder, 975 F.Supp. at 285. After reviewing plaintiffs' records, the Court finds that, not only was it reasonable for plaintiffs' attorneys to review their mail, but in many instances, the entries describe substantive work, such as "reviewing case activities, court hearing transcript, correspondence and pleadings from during week's vacation." Therefore, the Court will not reduce plaintiffs' requested hours for the time their attorneys spent reviewing mail.
4. Time Reflected in Non-Contemporaneous Records
Defendants argue that one of CRI's attorneys, Suzanne Nossel, did not keep contemporaneous time records and is therefore, not entitled to compensation for all of the 1,532 hours she expended. Defendants point out that Ms. Nossel's time records contain entries such as "calculated time for past few weeks," and also contain several errors, which demonstrates that she did not keep her records contemporaneously. Plaintiffs explain that on occasion, especially when she was away from the office, Ms. Nossel kept contemporaneous handwritten records of tasks she performed and later entered them into the computer billing program.
In Carey, the court stated, "contemporaneous time records are a prerequisite for attorney's fees in this Circuit." 711 F.2d at 1147. The court then explained that in order to be deemed contemporaneous, the records "should specify, for each attorney, the date, the hours expended, and the nature of the work done." Id. at 1148.
This Court has examined the time records submitted for Ms. Nossel's work and finds that they satisfy all of the requirements set forth in Carey. Each entry submitted for Ms. Nossel indicates the date she performed her work, the hours spent on the work, and a detailed description of the work performed. Where Ms. Nossel's time records state, "calculated time for past few weeks," she was not inputting time spent on substantive work, rather she was 392 inputting time spent entering her contemporaneous handwritten records into the billing program. Furthermore, *392 the fact that her time entries contain several errors, for example, inputting time spent at a court conference on a date which corresponds to a Sunday when the court was not in session, is an insufficient basis for concluding that she did not keep contemporaneous time records for 1,532 hours of work.[6]
5. Time Spent Unreasonably and Not Advancing the Case
Defendants contend that plaintiffs should not be compensated for time spent on case preparation that ultimately appeared to be unnecessary and arguing motions in which they were unsuccessful. Plaintiffs agree to withdraw numerous hours, but maintain that some of the work challenged by defendants is fully compensable. The Court will address each matter on which the parties continue to disagree.

a. Dean Mary Davidson
Plaintiffs expended 157 hours working with Dean Mary Davidson of Rutgers University School of Social Work, whom plaintiffs intended to use as an expert at trial. However, plaintiffs ultimately decided to withdraw Dean Davidson as one of their experts. Plaintiffs nevertheless contend that her assistance in reviewing plaintiffs' case files was indispensable and therefore, reasonable and compensable. Defendants argue that the time spent with Dean Davidson should be eliminated because the work she performed was presumably duplicated by plaintiffs' other expert, Katherine Briar-Lawson.
The Court finds that the time spent with Dean Davidson is fully compensable. It is a reality of complex litigation such as this that both parties will engage in a great deal of case preparation which will not necessarily lead to information that will be used at trial. Such work may include reviewing documents, interviewing witnesses, and, like the present case, working with experts. So long as a reasonable attorney would engage in the work under similar circumstances, the Court will not prevent plaintiffs from recovering their fees. See, e.g., David C. v. Leavitt, 900 F.Supp. 1547, 1560 (D.Utah 1995) (finding that time spent with an expert who did not testify at trial was compensable "so long as the time was reasonably expended in litigation of the plaintiff's case") (citing Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1254 (10th Cir.1992), cert. denied, 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993)).
The Court is satisfied that the work performed with respect to Dean Davidson was reasonable. Dean Davidson assisted plaintiffs in determining whether the named plaintiffs' foster care cases were being handled by the relevant City agencies pursuant to mandatory and accepted practices and procedures governing the foster care system. In doing so, she aided plaintiffs in the litigation even though she was withdrawn as a trial expert. Furthermore, there is no evidence suggesting that the work of plaintiffs' other expert, Ms. Briar-Lawson, was duplicative of Dean Davidson's efforts.[7]
b. Time Spent on Unsuccessful Motion to Dismiss Defendants' Interlocutory Appeal of Class Certification
393 Plaintiffs moved to dismiss defendants' interlocutory appeal of this Court's decision *393 granting class certification on the grounds that the appeal was untimely. After plaintiffs' motion was denied, see Marisol A. v. Giuliani, 104 F.3d 524 (2d Cir. 1996) ("Marisol III"), they filed a petition for certiorari, which was also denied. See 520 U.S. 1211, 117 S.Ct. 1694, 137 L.Ed.2d 821 (1997). Defendants argue that the 182 hours spent by plaintiffs on these motions should be eliminated from their fee application. Plaintiffs contend that their motion was at all times reasonable, and therefore, they are entitled to compensation for the time expended.
As this Court recognized in Terry, if a plaintiff is ultimately successful in litigation,
"she should not necessarily be denied fees for hours expended on interim stages of the case in which a ruling was made in favor of the party against whom she ultimately prevailed.... [T]he proper inquiry is not whether [plaintiff's] efforts on appeal itself were successful, but rather whether, in light of the circumstances of the litigation as a whole, those efforts were reasonable."
94 F.Supp.2d at 468 (quoting Gierlinger, 160 F.3d at 880). In Terry, plaintiffs unsuccessfully opposed a petition for certiorari to the Supreme Court and subsequently made a losing argument when the matter was remanded to the Second Circuit. Id. at 470. However, plaintiffs were ultimately successful in the litigation as a whole. In awarding fees to plaintiffs for their failed efforts, this Court recognized that their efforts were reasonable because, inter alia, the law on which their arguments was based was not well-settled at the time. Id.
In the present case, plaintiffs' efforts in moving to dismiss defendants' interlocutory appeal and their petition for certiorari were clearly reasonable. In denying plaintiffs' motion, the Second Circuit recognized that neither it nor the Supreme Court had squarely addressed the issue raised by plaintiffs. See Marisol III, 104 F.3d at 527. Furthermore, the Court agrees with plaintiffs that preventing them and other prevailing parties from recovering

fees for unsuccessful efforts during the course of an otherwise successful litigation may discourage attorneys from zealously representing their clients and raising novel but reasonable arguments on their behalf. Therefore, the Court finds that plaintiffs are entitled to recover attorneys' fees for the work performed in connection with these motions.[8]
c. Time Spent Moving For Contempt
In January 1998, plaintiffs moved for contempt of an interim stipulation and order concerning overnights at one of the City's pre-placement centers, where children were taken to await placement in foster care. The interim stipulation mandated that no child be kept at the Laight Street Pre-Placement Center for more than one night in any thirty day period. While this litigation was ongoing, plaintiffs alleged that this provision was being violated.
394 The contempt motion was fully briefed, discovery was taken, and a five-day hearing *394 was held. The Court found that defendants were not in contempt, concluding that the City had acted with reasonable diligence in its efforts to comply with the Interim Stipulation. See Hearing Transcript, at 875, attached to Declaration of Gail Rubin in opposition to Plaintiffs' Motion for Attorneys' Fees as Exhibit 23 ("Rubin Dec."). Defendants now argue that, given their efforts to comply, plaintiffs' time-consuming contempt litigation was unnecessary and unreasonable. The Court disagrees.
Plaintiffs were correct in believing that defendants were violating the terms of the interim stipulation concerning the preplacement center. Defendants conceded that their actions were in violation of the express terms of the interim stipulation. Id. at 874. However, in order to find that defendants were in contempt, plaintiffs had to prove not only that defendants were in violation of the stipulation, but also that defendants were not reasonably diligent in their efforts to comply. See id. (citing United States v. O'Rourke, 943 F.2d 180, 189 (2d Cir.1991)). The Court declined to hold defendants in contempt because it found that they were reasonably diligent in their efforts to comply with the interim stipulation. Id. at 875. This finding by the Court may have saved defendants from being held in contempt, but it hardly renders plaintiffs' efforts unreasonable considering that the factual basis for bringing the motion was completely accurate.
d. Time Spent on the "St. Vincent's Hospital and Medical Center Administration for Children's Services" Survey
In January 1998, a report submitted by two of plaintiffs' experts alleged that some children's lives were in jeopardy because defendants failed to take appropriate actions on their behalf. The Court ordered plaintiffs to produce additional information in support of these allegations. Specifically, the Court directed plaintiffs to search for letters written to the ACS Commissioner concerning this matter and to compile a list of children whose lives were in jeopardy. In response, plaintiffs produced a statistical survey known as the St. Vincent's Hospital and Medical Center Administration for Children's Services Survey, which the Court characterized as an expert report. The Court granted defendants' motion in limine precluding this report because the report was filed late, twentyone days after plaintiffs' expert reports were due. See Rubin Dec., Exhibit 25, at 8-9.
Defendants argue that the sixty-nine hours spent by plaintiffs on this issue should be eliminated. Plaintiffs respond by agreeing to withdraw half of these hours but inexplicably insist on being compensated for the other half. The Court finds that plaintiffs' efforts with regard to this issue were unreasonable, as they were not responsive to the Court's request and did not comply with the time-table set by the Court for compliance with its order. Therefore, the Court will eliminate the remaining hours spent by plaintiffs on this issue.[9]
6. Time Spent by Attorneys on "Paralegal Tasks"
Defendants contend that 196 of CRI's attorneys' hours and 77 of Schulte's attorneys' hours were spent on tasks that should have been delegated to paralegals. Therefore, defendants argue, fees for these hours should be calculated at paralegals' rates.
395

*395 Many of the tasks identified by defendants involve substantive legal work such as "Research re: substitution of next friend," and "find case and Shepardize case for CL." While a paralegal may have been able to perform these tasks, the tasks constitute work that attorneys typically engage in and there is no reason why the attorneys here should not be compensated at their hourly rate for choosing to do the work themselves.
Although some of the entries identified by defendants describe insignificant tasks such as "Retrieve documents that came up in conversation with Linda Stanch that I said I would fax," each of these tasks did not take up much of the attorneys' time. As the Court stated in Wilder, it would be unreasonable to expect attorneys to delegate every ministerial duty they perform because "[t]he time spent delegating the task could well exceed the time spent by the attorney" performing the task herself. 975 F.Supp. at 285. Therefore, the Court will not eliminate these hours from plaintiffs' fee application.
7. Overstaffing, Excessive Hours, Redundant or Duplicative Work
Defendants argue that there is pervasive evidence that plaintiffs' hours are excessive and redundant, and that they over-billed for court conferences, staff meetings, time spent getting acquainted with the case, and time spent on case preparation. Plaintiffs respond by making several small reductions in their fee request, yet maintain that most of the hours alleged by defendants to be excessive were necessary and compensable. The Court will address each remaining area of dispute in turn.
a. Court Conferences
Defendants argue that they should not be required to compensate plaintiffs' attorneys for the practice of sending multiple attorneys and staff to court conferences in which they played no meaningful role. Plaintiffs argue that they divided responsibility for the issues in this case among several attorneys and staff, thereby making the presence of more than two individuals at court conferences necessary. They nevertheless agree to withdraw twenty-one hours billed by Schulte attorneys at conferences in which CRI was lead counsel.
The Court finds that a small reduction is necessary to account for plaintiffs' multiple staffing at court conferences. Although plaintiffs may have deemed it necessary to have several staff members attend conferences, there is some evidence of excessive billing. For example, on June 1, 1998, plaintiffs billed over twenty hours for a court conference that lasted less than three hours. This disparity is attributable to the fact that the conference was attended by five CRI staff members and two Schulte staff members. Having seven attorneys present at one court conference and billing time for each of those present is unreasonable. Therefore, the Court will take this into account when it reduces plaintiffs' fee request.
b. Strategy Meetings
Defendants argue that plaintiffs over-staffed internal strategy meetings. Plaintiffs counter that there was no other way to discuss discovery issues, trial strategy, and other matters with a staff as large as the one employed by plaintiffs in this case. The Court agrees with plaintiffs and will not reduce any hours for staffing internal strategy meetings. Although plaintiffs staffed one meeting with sixteen employees and two other meetings with eight employees, the vast majority of the meetings identified by defendants were reasonably staffed considering the number of attorneys involved in the case.
c. Time Spent Getting Acquainted With the Case
Defendants point out that of the fifty-six people at CRI who worked on this case, only five of them remained with 396 the case throughout its duration. Defendants argue that they should not have to compensate *396 plaintiffs for
the hours dedicated to training new staff members. Plaintiffs agree to withdraw fifty-four hours expended by Schulte attorneys who joined the litigation team shortly before the parties entered into settlement negotiations, but contend that no other reduction is warranted.

The Court finds that the excessive amount of turnover at CRI throughout this litigation warrants some reduction in plaintiffs' recovery because it resulted in an inordinate number of hours spent by new staff members learning about the case. Accordingly, the Court will reduce plaintiffs' fee award to account for this excessive time expenditure.
d. Excessive Hours Spent on Other Tasks
Defendants argue that plaintiffs spent an unreasonable amount of time on the following tasks: motion for class certification (660 total hours including time spent on initial brief, reply brief, and appeal); researching hearsay exceptions (128 hours); applicability of legal standards to named plaintiffs (260 hours); analyzing materials on children in foster care (500 hours); analyzing materials on adoption (500 hours); training (500 hours); protective services work (900 hours); researching issues related to fatalities (1,000 hours); fiscal aspects of the case (800 hours); proposed findings of fact (5,700 hours); reviewing depositions (743 hours); fact-finding from deposition transcripts (351 hours); preparing for depositions (387 hours). Plaintiffs contend that, with the exception of 420 hours spent by paralegals in relation to deposition work which plaintiffs agree to withdraw, each hour identified by defendants was reasonably spent on essential work.
Although this complex litigation surely required thousands of hours of work, after carefully reviewing the contested hours, the Court finds that at least some reduction is warranted. The Court cites as just one example the time spent on plaintiffs' proposed findings of fact. Although the proposed findings of fact were extremely thorough and obviously required a great deal of work, plaintiffs expended an unreasonable amount of time for this activity. Plaintiffs billed 5,700 hours for this work from May 1996 to September 1998. While the Court cannot say precisely how much time this activity should have taken, based on the Court's experience in numerous cases involving issues equally complex to those presented in this case, 5,700 hours over two years and four months is an unreasonable amount of time to spend drafting proposed findings of fact.
In addition, the vagueness of some of the time records prevents the Court from determining why plaintiffs were 397 required to expend so many hours on these tasks.[10] Although counsel is "not required *397 to record in great
detail how each minute of his time was expended ... at least counsel should identify the general subject matter of his time expenditures." Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. 1933. If the time records lack such specificity that the court is unable to determine a proper fee allocation, then plaintiffs' fee recovery may be reduced. See, e.g., Ragin v. Harry Macklowe Real Estate Co., 870 F.Supp. 510, 520 (S.D.N.Y.1994) (reducing fees where time entries contained such vague entries as "research for brief," "research and draft brief," and "draft and edit brief"). Of the thousands of hours challenged by defendants, at least some of the time entries are so vague that the Court is unable to determine whether the time was reasonably expended.
Finally, the fact that plaintiffs had so many attorneys working on this case throughout the four years of litigation creates a risk of duplicative billing. The Court will therefore take these matters into account when it reduces plaintiffs' fee award.
II. Level of Success Achieved in the Litigation
Defendants request that plaintiffs' total lodestar recovery be reduced to reflect what defendants characterize as plaintiffs' limited success. In support of this request, defendants make two arguments: first, that the relief obtained by plaintiffs compared to the relief originally sought warrants a downward adjustment, and second, that plaintiffs could have obtained the same relief much earlier in the litigation.
A. Whether Plaintiffs Were Successful
Defendants first argue that plaintiffs did not achieve a level of success sufficient to justify a full fee award. Courts have recognized that if a plaintiff is successful in civil rights litigation, i.e., if a plaintiff is a prevailing party, "`the degree of the plaintiffs overall success goes to the reasonableness' of a fee award." Farrar v. Hobby, 506 U.S.

103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Texas State Teachers Ass'n v. Garland Ind. Sch. Dist., 489 U.S. 782, 793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). "If ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.... [T]he most critical factor is the degree of success obtained." Hensley, 461 U.S. at 436, 103 S.Ct. 1933.
Defendants contend that plaintiffs only achieved partial success and therefore, should not recover their full fee request. Defendants point out that
plaintiffs initially sought ... to take over the entire operation of the child welfare agency 0907 ousting the agency head in favor of a court-appointed receiver to oversee and direct the implementation of all the detailed injunctive relief plaintiffs were hoping to obtain from the court, with the power to restructure the New York City child welfare system.
City Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Attorneys' Fees, at 36 ("Def.Br."). According to defendants, the relief provided for in the City Settlement Agreement is in stark contrast to that which plaintiffs sought by bringing the litigation. The Agreement leaves the control of the child welfare system in the hands of its present managers, without any court-imposed instructions or mandates. While ACS is required to 398 permit inspection of certain of its operations by an independent team of experts which *398 may make recommendations about the performance of ACS, ACS may, in its discretion and acting in good faith, choose to adopt or reject the recommendations. Plaintiffs are entitled to return to Court only if the expert panel finds that ACS is not acting in good faith.
By arguing that this distinction between the relief sought and the relief granted justifies a fee reduction, defendants are interpreting the term "success" far too narrowly. While it may be true that plaintiffs did not achieve the precise result that they originally sought, it is clear that they obtained a significant and valuable level of success for children affected by New York City's child welfare system. The litigation has led to institutional reform and improvement of most aspects of ACS's operations. See Marisol II, 185 F.R.D. at 164 (recognizing that "the City and State Settlement Agreements touch on almost all, if not all, of the City and State functions involving the New York City child welfare system"). This Court has previously found that the Settlement Agreements are "more favorable than any remedy that could have been imposed by the Court at the end of trial." Id. at 165. Even defendants concede that the settlement "is a far better solution than had been originally sought by plaintiffs, since neither receivership nor the type of detailed consent decree originally sought has proven successful in other jurisdictions." Def. Br. at 38.
Given that the litigation has led to the implementation of systemic improvements to the New York City child welfare system, the Court is not prepared to characterize plaintiffs' success as limited merely because they achieved their goal via a different route than they originally hoped for. See, e.g., Williams, 975 F.Supp. at 320-21 (finding that plaintiffs achieved more than limited success even though the consent judgments were not identical to what was originally sought by plaintiffs).[11]
B. Whether Plaintiffs Could Have Obtained the Same Relief Earlier in the Litigation
Defendants also argue that plaintiffs' fees should be reduced because they could have settled this matter earlier for the same relief, thus avoiding the need for protracted litigation.
The Second Circuit has recognized that "[a] district court should not rely on informal negotiations and hindsight to determine whether further litigation was warranted and, accordingly, whether attorney's fees should be awarded." Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir.1992). Nevertheless, courts have reduced fee awards where plaintiffs unreasonably rejected settlement offers and eventually obtained relief which they could have gotten by settling earlier. See, e.g., Raishevich v. Foster, 70 F.Supp.2d 411, 415 (S.D.N.Y.1999) (rejecting award of attorneys' fees where plaintiffs refused a realistic offer to settle early in the case); NAACP v. Town of East Haven, 44 F.Supp.2d

422, 428-29 (D.Conn.1999) (reducing fee award where judgment was of limited success compared to the relief that was offered before initiation of the lawsuit).
The Court finds that plaintiffs never unreasonably rejected a settlement proposal similar to the one eventually reached by the parties. The first time anything resembling settlement negotiations took place was in April 1997. At that time, ACS Commissioner Nicholas Scoppetta proposed to Ms. Lowry, in the most general terms, ways that 399 the litigation might be *399 settled.[12] Commissioner Scoppetta initially suggested that a neutral expert would perform a series of agreed upon tasks, including reviewing a Reform Plan drafted by ACS in 1996 and recommending ways the Plan might be strengthened, reviewing ACS's progress towards achieving the objectives in the Plan, and reporting to the Court on whether ACS was acting in good faith in its reform efforts. See Affidavit of Nicholas Scoppetta at ¶ 7 ("Scoppetta Aff."). Ms. Lowry responded that the Reform Plan was not sufficiently detailed to be considered as part of a settlement. Commissioner Scoppetta then told her that defendants would not agree to the type of rigid and prescriptive consent degree originally sought by plaintiffs. Id. at ¶ 8.
When the two met again in May 1997, further discussions ensued but neither party made a concrete settlement offer to the other. They simply agreed that Ms. Lowry would draft an outline of what she believed a settlement should look like. Id. at ¶ 9. Subsequently, Ms. Lowry sent a draft of her proposal containing terms to which Commissioner Scoppetta immediately objected on the grounds that, in addition to being too rigid and prescriptive, the draft did not contain any of the concepts or ideas contained in his proposal of April 1997. Id. at ¶ 10.
Nevertheless, the parties agreed to meet again. At the next meeting, Ms. Lowry explained what an agreement between the parties would have to look like in order for plaintiffs to seriously consider settling the case. Defendants rejected her proposal. Id. at ¶ 15.
The next business day, plaintiffs served the City defendants with the motion for an injunction and temporary restraining order in relation to the Laight Street Pre-Placement Center. This action abruptly ended the settlement negotiations between the parties.
Based on these events, the Court finds that plaintiffs never unreasonably rejected a settlement offer from defendants, nor could they have settled this case at an earlier time. Although there was some discussion of terms that resembled what would eventually be embodied in the final settlement agreement between the parties, the discussion was informal at best and did not present any concrete opportunity for ending the litigation. The parties were still considerably far apart at this early stage of the negotiations as evidenced by the fact that neither was willing to consider any portion of the proposals made by the other. Therefore, the Court will not reduce plaintiffs' fee award on this ground.[13]
400 *400 III. Calculating Attorneys' Fees
Pursuant to the foregoing discussion of the attorneys' reasonable hourly rates and reasonably expended hours, the Court finds that plaintiffs are entitled to $5,599,775.76 in attorneys' fees. In reaching this amount, the Court first calculated plaintiffs' initial lodestar as follows:

STAFF
M. Lowry R. Firestein J. Kirklin M. Stone R. Dahlberg S. Lambiase E. Rodriguez

CRI 0907 Non-travel related fees.[14]

HOURLY RATE

×

HOURS EXPENDED

=

$375.00

×

350.00

350.00

350.00

300.00

300.00

230.00

2,615.40

=

1,252.51

61.20

43.80

39.40

192.15

100.90

TOTAL
$980,775.00 438,378.50 21,420.00 15,330.00 11,820.00 57,645.00 23,207.00

D. Dorsky M. Peters K. Schiller C. Levine D. Eviatar E. Thompson R. Park M. Delone A. Gilbert R. Levine R. Kimura A. Park S. Nossel Paralegals
TOTAL
STAFF
M. Lowry R. Firestein S. Lambiase E. Rodriguez D. Dorsky M. Peters K. Schiller C. Levine D. Eviatar R. Park M. Delone A. Gilbert R. Kimura A. Park S. Nossel Paralegals
TOTAL
STAFF
D. Brodsky J. Velona K. Schiller A. Freedman S. Davidson A. Passanante E. Schijf

230.00 200.00 200.00 200.00 190.00 190.00 150.00 150.00 150.00 150.00 140.00 130.00 130.00
75.00

126.90 3,057.88
197.80 5,352.90 2,344.30
178.10 49.70
112.50 51.80 58.40
1,096.40 721.70
1,401.14 12,881.28 _________ 31,936.16

29,187.00 611,576.00
39,560.00 1,070,580.00
445,417.00 33,839.00 7,455.00 16,875.00 7,770.00 8,760.00
153,496.00 93,821.00
182,148.20 966,096.00 _____________ $5,215,155.70

CRI 0907 Travel related fees.

HOURLY RATE

×

HOURS EXPENDED

=

TOTAL

$187.50

×

175.00

150.00

115.00

115.00

100.00

100.00

100.00

95.00

75.00

75.00

75.00

70.00

65.00

65.00

37.50

139.59

=

27.25

20.97

4.00

20.50

294.15

3.42

78.86

49.12

2.33

0.50

12.00

35.98

2.08

38.18

130.62

______

859.55

$26,173.13 4,768.75 3,145.50 460.00 2,357.50
29,415.00 342.00
7,886.00 4,666.40
174.75 37.50
900.00 2,518.60
135.20 2,481.70 4,898.25 __________ $90,360.28

Schulte 0907 Non-travel related fees.[15]

HOURLY RATE

×

HOURS EXPENDED

=

TOTAL

$375.00

×

250.00

240.00

230.00

150.00

140.00

130.00

432.70

=

1,278.10

375.80

637.00

118.50

434.50

659.10

$162,262.50 319,525.00 90,192.00 146,510.00 17,775.00 60,830.00 85,683.00

401 *401 M. Craner

130.00

72.20

9,386.00

S. Aronowitz J. McBride M. Alston K. Brombach D. McCracken P. Hamlen Other Paralegals
TOTAL

130.00 130.00 110.00 110.00
90.00 75.00 75.00

44.60 152.80 1,381.95 119.60 108.80 172.10 891.00 ________ 6,878.75

5,798.00 19,864.00 152,014.50 13,156.00
9,792.00 12,907.50 66,825.00 _____________ $1,172,520.50

LCI 0907 Non-travel related fees.

STAFF K. Freedman
TOTAL

HOURLY RATE × HOURS EXPENDED =

350.00 ×

314.10 =

______

314.10

TOTAL $109,935.00
___________ $109,935.00

Based on these calculations, the Court determined that the initial lodestar amount was $6,587,971.48 ($5,215,155.70 + $90,360.28 + $1,172,520.50 + $109,935.00). The Court then made an across-the-board reduction of fifteen percent, which was determined by considering the time plaintiffs spent exclusively on the case against the State defendants, supra section I.B.1, the time spent on non-compensable administrative matters, such as serving and filing papers, supra section I.B.2, over-staffing at court conferences, supra section I.B.7.a, time spent by plaintiffs' attorneys getting acquainted with the case, supra section I.B.7.c, and the excessive time spent on certain other matters, supra section I.B.7.d. See, e.g., Hensley, 461 U.S. at 438 n. 13, 103 S.Ct. 1933 (approving thirty percent reduction to account for attorney's inexperience and failure to keep contemporaneous time records); TM Park Ave. Assocs., 44 F.Supp.2d at 169 (reducing hours by ten percent to account for insufficiently detailed records and ten percent to account for excessive hours); Wilder, 975 F.Supp. at 286 (reducing fee calculations by ten percent to account for vague time entries); Walker v. Coughlin, 909 F.Supp. 872, 881 (W.D.N.Y.1995) (reducing total number of hours requested by fifteen percent to reflect inadequate documentation and lower rate of compensation); Ragin, 870 F.Supp. at 520-21 (reducing fee request by thirty percent to account for vagueness, duplicative claims, and failure to provide contemporaneous time records); Meriwether v. Coughlin, 727 F.Supp. 823, 827 (S.D.N.Y.1989) (reducing fee request by fifteen percent to account for vague entries). Accordingly, plaintiffs' revised lodestar award is $5,599,775.76 ($6,587,971.48 less fifteen percent).

IV. Out-of-Pocket Expenses

In addition to attorneys' fees, plaintiffs seek reimbursement for out-of-pocket expenses in the amount of $200,609.70 for CRI and $51,948.52 for Schulte. Defendants have challenged this request on numerous grounds.
It is well-settled that "`attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" LeBlanc-Sternberg, 143 F.3d at 763 (quoting United States Football League, 887 F.2d at 416). Courts have identified the following non-exhaustive list of expenses as those ordinarily charged to clients, and therefore, recoverable: photocopying, travel, telephone costs, and postage. See id. (citing cases).
Defendants challenge plaintiffs' expenses associated with court transcripts. Defendants argue inter alia that the expenses associated with transcripts of court conferences should be discounted under Local Civil Rule 54.1(c) (1), which states, "[t]he cost of a transcript of court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the court." According to defendants, plaintiffs cannot recover these 402 costs because they never obtained advance *402 authorization or a court order. Plaintiffs argue that this provision does not apply to them because it does not apply to expense requests made under § 1988.

Contrary to plaintiffs' argument, § 1988 does not overrule or alter the requirements of the local rule. Local Rule 54.1(c)(1) provides local procedures for implementing Federal Rule of Civil Procedure 54(d)(1), which gives the court discretion to tax the costs listed in 28 U.S.C. § 1920. See, e.g., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) ("Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)."). The provision of § 1920 most relevant here states, "[a] judge or clerk of any court of the United States may tax as costs the following: ... (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in this case." 28 U.S.C. § 1920(2).
Because § 1920 governs the cost of court transcripts, the Court must follow the procedures governing such costs found in Local Rule 54.1(c)(1) unless another statute or rule permits it to do otherwise. Plaintiffs suggest that § 1988 does just that. The Court disagrees. Nothing in § 1988 explicitly permits the Court to tax costs associated with court transcripts, nor have plaintiffs cited any case that stands for the proposition that § 1988 overrules § 1920 and the rules of procedure with which it operates. See, e.g., Crawford, 482 U.S. at 445, 107 S.Ct. 2494 (stating that where costs associated with witness fees was a matter governed by § 1920, "[w]e will not lightly infer that Congress has repealed [§ 1920], either through Rule 54(d) or any other provision not referring explicitly to witness fees").
Accordingly, under Local Rule 54.1(c)(1), the costs associated with transcripts of court proceedings are not taxable to defendants, as plaintiffs did not comply with the mandates of the local rule by seeking advance authorization or an order of the court. The Court will therefore reduce CRI's expense request by $10,786.63.[16]
Defendants also contend that plaintiffs should not recover expenses associated with computerized legal research. It is well-established that "computer research is merely a substitute for an attorney's time that is compensable under an application for attorneys' fees and is not a separately taxable cost." United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir.1996); see also Omnipoint Communications, Inc. v. Planning & Zoning Comm'n of the Town of Wallingford, 91 F.Supp.2d 497, 500 (D.Conn.2000) (denying computerized legal research expenses under local rule); Fernandez v. North Shore Orthopedic Surgery & Sports Med., P.C., Civ. A. CV 96-4489, 2000 WL 130637, at *7 (E.D.N.Y. Feb.4, 2000) (relying on Merritt Meridian and denying computerized research expenses in fee request made under Title VII); Beckford v. Irvin, 60 F.Supp.2d 85, 90 (W.D.N.Y.1999) (denying computerized legal research expenses under § 1988). Therefore, the Court will deduct $6,408.74 from CRI's expense request and $21.83 from Schulte's expense request.
The Court has considered defendants' remaining challenges to plaintiffs' expense request and finds that they lack merit. Accordingly, defendants are assessed $183,414.33 for CRI's expenses ($200,609.70-$17,195.37) and $51,926.69 for Schulte's expenses ($51,948.52-$21.83), for a total of $235,341.02.
CONCLUSION
403 For the foregoing reasons, plaintiffs' motion for an award of attorneys' fees and *403 expenses is granted. Defendants are directed to reimburse plaintiffs in the amount of $5,835,116.78 for attorneys' fees and expenses.
It is so ordered.
[1] Although the original complaint named both New York City and New York State officials as defendants, the current motion for attorneys' fees is against the City defendants only, plaintiffs having already settled the issue of attorneys' fees with the State.
[2] Plaintiffs recognize that each attorney should receive fees based on the average of his or her level of experience over the course of the litigation, as opposed to their current level of experience. See, e.g., New York State Nat'l Org. for Women v. Terry, 94 F.Supp.2d 465, 473 (S.D.N.Y.2000).

[3] Plaintiffs did not request hourly rates higher than $75 for CRI's paralegals or provide any information regarding the level of experience for CRI's paralegals. Therefore, the Court will apply an hourly rate of $75 for all of CRI's paralegals. However, and as discussed in more detail below, plaintiffs requested higher rates for Schulte's paralegals and provided the Court with resumes describing their experience. Thus, unlike CRI's paralegals, the Court is able to determine that Schulte's paralegals are entitled to a higher hourly rate which is commensurate with their level of experience.
[4] Plaintiffs have also provided the Court with "A firm-by-firm sampling of billing rates nationwide," published in the National Law Journal during the week of December 27, 1999 to January 3, 2000. Of the eleven New York City firms that responded to the survey, Schulte charged the second highest hourly rate for its partners. Other than Skadden, Arps, Slate, Meagher & Flom, none of the other New York firms on the list charged over $500 as a hourly rate for its partners and only one other firm charged as much as $500.
[5] Because Schulte did not provide resumes for a number of its paralegals, it is unclear how much experience they have. Therefore, the Court will calculate their lodestar amount using the $75 rate that it will use for CRI's paralegals.
[6] However, the Court finds that plaintiffs should not receive attorneys' fees for the work performed by Ms. Nossel while she was a judicial clerk in January 1997. Therefore, the Court will exclude 19.35 hours from Ms. Nossel's fee calculation.
[7] The case on which defendants rely is inapposite. In Bonner v. Guccione, 94 Civ. 7735, 1997 WL 441910 (S.D.N.Y. Aug.6, 1997), vacated in part on other grounds, 178 F.3d 581 (2d Cir.1999), defendants argued that plaintiff should not recover fees associated with two experts because "they did not testify at trial and their work was unnecessary." Id. at *11 (emphasis added). The court agreed, noting that plaintiff's first expert saw plaintiff for only a few hours and failed to conduct a thorough review, and plaintiff's second expert's report was seriously flawed. Id. Unlike the court in Bonner, this Court has determined that plaintiffs' expert was necessary and helpful to plaintiffs even though she was withdrawn as a trial expert.
[8] The Court also finds that plaintiffs' efforts to depose Mayor Giuliani and engage in other discovery efforts challenged by defendants were reasonable. Although plaintiffs seek to recover fees for discovery matters in which they failed to achieve their objective, their efforts were reasonable and they are entitled to recover their fees. For example, even though the Court granted defendants' motion for a protective order quashing the deposition of Mayor Giuliani, plaintiffs were pursuing what they reasonably believed to be a valid avenue of discovery. Plaintiffs believed that Mayor Giuliani was the only source of information on matters important to their case, and although the Court disagreed, it cannot say that plaintiffs unnecessarily and unreasonably pursued this avenue of discovery.
Furthermore, the Court finds that plaintiffs reasonably spent ninety-nine hours preparing a motion for summary judgment, even though the motion was never filed. The work performed by plaintiffs in connection with the motion was done at the request of the Court, as was the decision not to file the motion.
[9] Because this matter constitutes such a minuscule portion of plaintiffs' overall fee request, the Court will deduct the remaining hours associated with this work instead of considering the matter when the Court makes an across-the-board reduction in plaintiffs' lodestar award. Accordingly, the Court will deduct the following hours spent by these attorneys on this matter (the other half was already deducted by plaintiffs): R. Firestein 0907 .09 hours; M. Peters 0907 18.52 hours; C. Levine 0907 .40 hours; M. Delone 6.10 hours; S. Lambiase 0907 .15 hours; S. Nossel 0907 .81 hours; paralegals 0907 8.82 hours.
[10] In addition to attacking plaintiffs' hours as excessive, defendants contend that 5,912 hours attributable to CRI attorneys and 615 hours attributable to Schulte attorneys are too vague to be compensable. Defendants also contend that 564 of CRI's hours and 1,368 of Schulte's hours should be excluded because the entries associated with these hours commingle several activities making it difficult to evaluate the reasonableness of any of the listed activities. Although defendants characterize these commingled time entries as impermissible "block billing," their argument is really that plaintiffs' entries are vague, i.e., that block billing makes it more difficult to decipher

the time entries and determine if the work expended was reasonable. If defendants argued that plaintiffs' hours should be reduced solely because plaintiffs used block billing, their argument would fail. See, e.g., Rodriguez, 84 F.Supp.2d at 425 (stating that "[a]lthough ... block billing makes it more difficult for the Court to determine with precision exactly how much time was spent on each task, the practice of block billing is not prohibited in this Circuit").
In response to defendants' vagueness arguments, plaintiffs agree to withdraw 971 hours attributable to CRI attorneys, but contend that the remaining time entries are sufficiently specific and detailed. It would be impractical for the Court to review each of the remaining thousands of hours worth of disputed time entries to determine whether they are impermissibly vague. Rather the Court has considered defendants' vagueness argument in connection with their contention that plaintiffs spent unreasonable amounts of time on certain tasks. If the entries proved too vague to enable the Court to determine whether the time was reasonably spent, the Court took this matter into account when it reduced plaintiffs' fee request. However, the Court did not make any reduction solely because an individual time entry appeared vague if the Court was able to determine that, in general, the time spent on a specific task was reasonable.
[11] Defendants argue that under the approach taken by the Court, any plaintiff can claim complete victory by redefining what their goals were after the case has ended even if the result does not resemble what was originally sought in the complaint. This Court disagrees. The Court would certainly not find that plaintiffs were successful in their litigation efforts if defendants did not reform the child welfare system in any material way. But reform has been implemented by defendants and therefore, plaintiffs have achieved their overall goals even if they did so through alternate means.
[12] The parties filed two affidavits describing settlement efforts in this case. Ms. Lowry filed an affidavit on behalf of plaintiffs and Commissioner Scoppetta filed an affidavit on behalf of defendants. The two affidavits paint substantially different pictures of what happened throughout the settlement negotiations. However, even assuming that Commissioner Scoppetta's version of the events is accurate, the Court would still find that no reduction in plaintiffs' fee application is warranted for reasons that will be further discussed below.
[13] The cases relied upon by defendants are distinguishable from the present case. For example, in Raishevich, defendant offered to pay $25,000 to settle but plaintiffs wanted $35,000. The court proposed a $30,000 compromise which plaintiffs rejected. They eventually recovered less than the amount proffered in settlement. On these facts and others, the court concluded that plaintiffs were not entitled to any fees. 70 F.Supp.2d at 415. The present case is distinguishable because there was no firm offer made by either party which could be accepted, rejected, or countered. The negotiations never approached a level of finality like those in Raishevich, and therefore, it cannot be said that plaintiffs acted unreasonably.
In NAACP, the court substantially reduced plaintiffs' fees where plaintiffs rejected a settlement of the dispute before a lawsuit was even initiated for all of the relief eventually obtained. The court found that plaintiffs initiated the suit in order to qualify plaintiffs' attorneys for fees, which they could not have accomplished in a pre-suit settlement. 44 F.Supp.2d at 429. Clearly, there was no such improper motive in the present case.
[14] In their initial brief plaintiffs failed to identify attorneys' travel time. They revised their fee request in their responsive brief and identified certain hours as travel time. These hours will be addressed separately below and will be billed at fifty percent of plaintiffs' regular hourly rate. See, e.g., In re Agent Orange, 818 F.2d at 238; Williams, 975 F.Supp. at 324.
[15] Schulte did not submit time sheets differentiating between travel time and non-travel time. However, it did voluntarily deduct $12,368.50 from its initial request, which it asserts represents the time its attorneys spent traveling. The Court is satisfied with this reduction.
[16] The Court reached this number by deducting all charges next to the description, "Southern District Reporters," reasoning that these charges were attributable to transcripts of in-court conferences.
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 929 F.Supp. 662 (1996)
MARISOL A., By her Next Friend, Rev. Dr. James Alexander FORBES, Jr.; Lawrence B., by his next friend, Prof. Mitchell I. Ginsberg; Thomas C., by his next friend, Dr. Margaret T. McHugh; Shauna D., by her next friend, Prof. Kathryn Conroy; Ozzie E., by his next friends, Jill Chaifetz and Kim Hawkins; Darren F. and David F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; Bill G. and Victoria G., by their next friend, Sister Dolores Gartanutti; Brandon H., by his next friend, Thomas J. Moloney; and Steven I., by his next friend, Kevin Ryan, on their own
behalf and on behalf of all others similarly situated, Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York; Marva Livingston Hammons, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New
York; Nicholas Scoppetta, Commissioner of the New York City Administration for Children's Services; George E. Pataki, Governor of the State of New York; and Brian J. Wing, Acting Commissioner of the Department of Social Services of the State of New York, Defendants.
No. 95 Civ. 10533 (RJW).
United States District Court, S.D. New York.
June 18, 1996.
663*663 664*664 665*665 666*666 667*667 668*668 669*669 Children's Rights, Inc., New York City (Marcia Robinson Lowry, Craig Levine, Mark G. Peters, Rebecca Kim Kimura, Martha Stone, of Counsel), Lawyers For Children, Inc., New York City (Gayle Lerner, Karen Freedman, of Counsel), for Plaintiffs.
Corporation Counsel of the City of New York, New York City, Paul A. Crotty, Corporation Counsel (Grace Goodman, Phyllis Seidman, of Counsel), for City Defendants.
Attorney General of the State of New York, New York City, Dennis C. Vacco, Attorney General (Ronald Younkins, Michael S. Popkin, Steven M. Connolly, of Counsel), for State Defendants.
OPINION
ROBERT J. WARD, District Judge.
Defendants Rudolph W. Giuliani, Marva Livingston Hammonds, and Nicholas Scoppetta ("City defendants") have moved pursuant to Rule 12(b)(6), Fed.R.Civ.P., for an order dismissing large portions of plaintiffs' complaint filed on December 3, 1995 for failure to

state a claim upon which relief can be granted. Defendants George E. Pataki and Brian J. Wing ("State defendants") likewise have moved pursuant to Rule 12(b)(6), Fed. R.Civ.P., for a partial order of dismissal. Plaintiffs have moved, pursuant to Rule 23, Fed.R.Civ.P., for an order certifying this action as a class action. Finally, City defendants have moved for an order bifurcating this action.
For the reasons hereinafter stated, defendants' motions to dismiss are denied to the extent that (1) custodial plaintiffs may pursue their substantive due process claims based upon alleged violations of their right to be free from harm and all plaintiffs may pursue their procedural due process claims based upon alleged violations of various provisions of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law; (2) plaintiffs may pursue their federal statutory claims based upon the Adoption Assistance and Child Welfare Act, including the provision herein referred to as the Multiethnic Placement Act, the Child Abuse Prevention and Treatment Act, the Americans with Disabilities Act, and the Rehabilitation Act; and (3) plaintiffs may pursue their state law claims. Further, plaintiffs' motion for class certification is granted. Finally, City defendants' motion to bifurcate this action is denied.
BACKGROUND
Plaintiffs are eleven children all of whom have suffered, and some of whom continue to be at risk of, severe abuse and neglect. These children allege that defendants, who are officials with responsibility for the Child Welfare Administration of the City of New York ("CWA") now renamed the New York City Administration for Children's Services ("ACS"),[1] mishandled plaintiffs' cases and, through defendants' actions or inactions, deprived plaintiffs of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, under Article XVII of the New York State Constitution, as well as under numerous federal and state statutes.
The factual allegations of the complaint portray a child welfare program in crisis and collectively suggest systemic deficiencies of gross proportions. The eleven children who seek to represent the proposed class have endured a wide range of abuses 670*670 and all reflect the dire situation facing children in the system. In their complaint, the named plaintiffs allege the following facts:
Marisol A. is a five-year old who was born two days after her mother, Ms. A., was arrested on charges of dealing drugs. CWA placed Marisol with Ms. C. during and subsequent to Ms. A.'s incarceration but, in 1994, CWA restored Marisol to her mother's custody despite her criminal history and reports that she was abusing Marisol during visitations. CWA failed to assess properly the appropriateness of this placement and took no steps to supervise or monitor Ms. A.'s home. Upon regaining custody, Ms. A. confined Marisol to a closet for several months, deprived her of sustenance resulting in her eating her own feces and plastic garbage bags to survive, and both physically and sexually abused her to the point of injury. During this period, Ms. A.'s sister and Ms. C. filed multiple reports of abuse with CWA to no avail. A housing inspector familiar with the signs of abuse discovered Marisol during a chance visit and reported the situation to the police. Despite Ms. C.'s eagerness to adopt Marisol, CWA has not begun the process of terminating Ms. A.'s parental rights and has not provided Marisol with counseling or support services.

Lawrence B. died on February 18, 1996 of AIDS-related illness at the age of nineteen.[2] Lawrence's mother died of AIDS in or around 1985 leaving him an orphan and he entered the foster care system in 1995, at age seventeen, pursuant to a voluntary agreement signed by his aunt who could no longer care for him. After taking custody, CWA failed to assess Lawrence's medical condition for almost two months and then shuttled him from one inappropriate placement to another. Lawrence first spent seven months in a diagnostic facility and then was transferred to a group home that lacked the medical staff needed to monitor his condition. In fact, CWA neglected even to inform the agency of Lawrence's HIVpositive status. Finally, CWA placed Lawrence in a group home aimed to assist teenagers in making the transition to independent living. CWA again failed to alert that agency to Lawrence's medical condition. Even when the agency notified CWA that Lawrence needed hospice care, CWA suggested that the staff simply take him to the hospital when necessary. Despite his deteriorating health, CWA recommended 671*671 continued placement in the group home and maintained a goal of independent living in his case plan until his death.
Thomas C. is a fifteen-year old who has been in foster care since he was seven. In those eight years, Thomas endured numerous placements including a hospital, a diagnostic center, and a residential treatment center ("RTC"). In 1993, without adequate investigation, CWA approved Thomas' placement with Rev. D., a minister Thomas met at the RTC, who took him to South Carolina. There Rev. D. sexually abused Thomas who subsequently ran away. In 1994, Thomas was returned to the RTC where he now resides. He has since attempted suicide twice and has run away from the RTC only to return after facing hardship and abuse on the streets. CWA has failed to determine the appropriateness of the RTC placement, to pursue the possibility of adoption, or to provide Thomas with counseling.
Shauna D. is a two-year old who lives with Ms. D., her drug-addicted mother. CWA has failed to investigate reports of suspected abuse despite the fact that Ms. D. has already lost custody of her six other children. In September 1995, Ms. M., a friend who had been caring for Shauna, filed for formal custody. In November 1995, however, Ms. D. forcibly took Shauna from Ms. M.'s home. Despite repeated calls from Shauna's law guardian, her CWA caseworker has failed to investigate adequately reports of abuse or to ensure that Ms. D. is in a drug rehabilitation program.
Ozzie E. is a fourteen-year old who suffers from seizure disorder, brain lesions, and behavioral problems. In 1995, Ozzie's father placed him in foster care after finding himself unable to care for Ozzie. Although Ozzie and his mother, Ms. E., both want to be reunited, he remains in a group home because CWA has failed to provide any family preservation services to enable Ms. E. to care for him. Although CWA acknowledges that the group home is not equipped to address Ozzie's neurological problems, the agency has taken no steps to return Ozzie to his mother.
Darren F. and David F. are seven-year old twins who have been in foster care since they were one. In 1990, CWA placed the twins with their grandmother who was too old to care for them and from whom they were removed after she allowed their drug-addicted mother to live with them. In 1991, CWA placed the twins, who already were evidencing signs of psychological trauma, with Ms. R. who made efforts to address the children's special needs. Despite Ms. R.'s requests, CWA failed to provide the twins with treatment as their behavior deteriorated. Finally, a psychiatrist recommended that, because of their young age, they remain with Ms. R. but enroll in a day treatment center. CWA, however, placed the twins in

an inappropriate residential center where they remain today and has risked their chance to be adopted by Ms. R.
Bill G. is a fourteen-year old who is mentally retarded and suffers from a mild form of cerebral palsy. His sister, Victoria G., is ten. In 1985, CWA placed them together in the home of Ms. H. pursuant to a finding of parental neglect. The children's permanency goal was to return to their parents, Mr. and Mrs. G., and the case plan outlined steps for their parents to follow in that regard. CWA, however, failed to monitor the parents' progress and the children remained with Ms. H. even after her legal authority had lapsed. In 1989, Mr. and Mrs. G. agreed to voluntary placement but, during their infrequent visits, beat the children. Despite all of these factors, CWA still failed to obtain a termination of parental rights and has considered returning them to their father after they have spent more than ten years in Ms. H.'s care.
Brandon H. is a seven-year old who was placed in foster care at birth because his mother was twelve at the time and in foster care herself. In early 1992, CWA placed Brandon with Ms. W. but did not file a petition seeking termination of parental rights until later that year. The court terminated those rights in 1994 but, despite Ms. W.'s willingness to adopt him, CWA still has not even taken steps to transfer Brandon's case to the agency's 672*672 adoption division. CWA thus allows Brandon to remain in foster care without addressing his need for permanency.
Steven I. is a sixteen-year old who has developed severe psychiatric and emotional problems after spending his entire life in foster care. Steven exhibits violent behavior and, by age twelve, Steven had attempted to rape a nine-year old girl, had stabbed other children with pencils, and had lit several fires. After CWA ignored a recommendation that Steven receive longterm residential treatment, his behavior deteriorated to the point that, at age fifteen, he was committed to New York Hospital as a "sexual predator." Upon his release, CWA placed him in an inappropriate group home from which he ran away in 1994. He now lives on the streets and CWA has failed to locate him or to provide him with any treatment.
See Complaint for Declaratory and Injunctive Relief at 27-62 [hereinafter "Complaint"].
In support of their claims, plaintiffs specifically allege that defendants fail to:
(1) appropriately accept reports of abuse and neglect for investigation;
(2) investigate those reports in the time and manner required by law;
(3) provide mandated preplacement preventive services to enable children to remain at home whenever possible;
(4) provide the least restrictive, most family-like placement to meet children's individual needs;
(5) provide services to ensure that children do not deteriorate physically, psychologically, educationally, or otherwise while in CWA custody;
(6) provide children with disabilities, including HIV/AIDS, with appropriate placements;

(7) provide appropriate case management or plans that enable children to return home or be discharged to permanent placements as quickly as possible;
(8) provide services to assist children who are appropriate for adoption in getting out of foster care;
(9) provide teenagers adequate services to prepare them to live independently once they leave the system;
(10) provide the administrative, judicial, or dispositional reviews to which children are entitled;
(11) provide caseworkers with training, support, or supervision; and
(12) maintain adequate systems to monitor, track, and plan for children.
See Complaint at 2-4.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 which provides in pertinent part:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....
42 U.S.C. § 1983. They allege that defendants have violated and continue to violate their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-28, 670-79a ("Adoption Assistance Act"), including the provision herein referred to as the Multiethnic Placement Act of 1994, 42 U.S.C. § 622(b)(9); the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-06a ("CAPTA"); provisions of the Medicaid Act, 42 U.S.C. §§ 1396a, 1396d(a) and (r); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a ("Rehabilitation Act"); Article XVII of the New York State Constitution; Articles 2, 3, 6, and 7 of the New York State Social Services Law; Articles 6 and 10 of the New York State Family Court Act; state regulations codified at 18 N.Y.C.R.R. §§ 400-484; and other state plans. Plaintiffs seek injunctive or declaratory relief as needed to remedy defendants' alleged violations and, further, request the appointment of
a receiver with full authority to oversee and direct the implementation of all the 673*673 injunctive relief granted by the court, to restructure the New York City child welfare system, and to take all steps necessary to ensure that the child welfare system operates in full compliance with all applicable law.
Complaint at 108. Finally, plaintiffs ask this Court to retain jurisdiction over the matter to monitor the implementation of such relief.
Before this Court are motions by both City and State defendants pursuant to Rule 12(b)(6), Fed.R.Civ.P., for an order dismissing the bulk of plaintiffs' federal constitutional and

statutory claims as well as plaintiffs' state law claims. Also before the Court is plaintiffs' motion pursuant to Rule 23, Fed. R.Civ.P., for an order certifying this action as a class action on behalf of:
[a]ll children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA[.]
Notice of Motion for Class Certification at 1. Finally, City defendants have moved for an order bifurcating this action.
DISCUSSION
I. Motions to Dismiss
Defendants seek dismissal of large portions of plaintiffs' complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. In the alternative, defendants ask this Court either to decline to exercise supplemental jurisdiction over plaintiffs' state law claims or to find those claims non-justiciable. Finally, defendants ask this Court to refuse to decide plaintiffs' claims, City defendants relying on the Burford abstention doctrine and State defendants relying on the Younger abstention doctrine.
In deciding a motion to dismiss, this Court must accept as true the factual allegations set forth in the complaint and must draw all reasonable inferences in plaintiffs' favor. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The Court, therefore, "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon, 467 U.S. at 73, 104 S.Ct. at 2232; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Further, "[a] court must construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Aristotle P. v. Johnson, 721 F.Supp. 1002, 1004 (N.D.Ill.1989) (citation omitted). In civil rights actions, courts must apply this standard with even greater force. See Bernheim, 79 F.3d at 321; Aristotle, 721 F.Supp. at 1004.
A. Plaintiffs' Federal Constitutional Claims
42 U.S.C. § 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. § 1983 is, therefore, a vehicle through which a private plaintiff may pursue a claim for an alleged constitutional violation by a person acting under color of state law. See Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 105, 110 S.Ct. 444, 447, 107 L.Ed.2d 420 (1989); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). Plaintiffs thus properly rely on § 1983 to pursue their claims of federal constitutional deprivations.

Defendants ask this Court to dismiss plaintiffs' first cause of action which alleges violations of their rights derived from the First, Ninth, and Fourteenth Amendments to the United States Constitution. Although plaintiffs' first cause of action contains more specific language, their federal constitutional claims can be divided loosely into two significant categories: (1) violation of plaintiffs' substantive due process right to protection from harm while in state custody; and (2) violation of plaintiffs' right not to be deprived of entitlements created by New York State 674*674 law without due process.[3]
1. Substantive Due Process Claims
Defendants move to dismiss the first significant component of plaintiffs' first cause of action in which they assert that defendants have, through their actions or inactions, violated plaintiffs' substantive due process right to be free from harm. Defendants argue that, unlike the custodial plaintiffs whose claims defendants do not challenge, those children who are not in ACS custody have no federal substantive due process right to be protected from harm in light of the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Defendants assert, therefore, that non-custodial plaintiffs fail to state a substantive due process claim upon which relief can be granted. This Court agrees. Indeed, plaintiffs concede that "[t]he noncustodial plaintiffs' constitutional claim is limited to their right not to be denied the protections and benefits of the detailed state law regarding child protection without due process." Pls.' Mem. in Opp'n at 30. The following analysis of plaintiffs' substantive due process claims, therefore, applies only to custodial plaintiffs.
Under certain circumstances, the federal Constitution imposes upon the government an affirmative duty to provide services and care to individuals in state custody. See DeShaney, 489 U.S. at 198, 109 S.Ct. at 1004. The Supreme Court first recognized this obligation by granting incarcerated prisoners the right to adequate medical care pursuant to the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Shortly thereafter, the Court extended this analysis and required the state to ensure the safety of involuntarily committed mental patients pursuant to the substantive component of the Fourteenth Amendment's Due Process Clause. See Youngberg v. Romeo, 457 U.S. 307, 314-25, 102 S.Ct. 2452, 2457-63, 73 L.Ed.2d 28 (1982). The Court, interpreting this line of cases, has noted that "[t]aken together, they stand ... for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005. Under the Youngberg line of cases, therefore, the government must provide to those individuals in its custody reasonably safe conditions of confinement and general freedom from undue bodily restraint. See Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2457-58.
The Second Circuit has extended the reasoning of Youngberg to children who are the responsibility of the state. See Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir.1984); see also Doe v. New York City Dep't of Social Servs., 649 F.2d 134, 141 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Indeed, in the child welfare context, that court has recognized that, "[w]hen individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance

of which may violate the constitution." Doe, 649 F.2d at 141. This Court agrees with the decision of other courts to extend to 675*675 children in foster care a substantive due process right to protection from harm. See, e.g., Norfleet ex rel. Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289, 291-93 (8th Cir.1993); Yvonne L. ex rel. Lewis v. New Mexico Dep't of Human Servs., 959 F.2d 883, 892-93 (10th Cir.1992); K.H. Through Murphy v. Morgan, 914 F.2d 846, 849-50 (7th Cir.1990); Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990); Aristotle P. v. Johnson, 721 F.Supp. 1002, 1008-10 (N.D.Ill.1989).
The parties agree that custodial plaintiffs have a constitutional right to be free from harm.[4] The issue facing this Court with respect to custodial plaintiffs, therefore, is not whether they are entitled to protection from harm but, rather, how broad that protection must be. The Supreme Court has held that the right to be free from harm encompasses the right to essentials of care including adequate food, shelter, clothing, and medical attention. See Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. Additionally, the state must provide reasonably safe conditions of confinement. See id. at 315-16, 102 S.Ct. at 2457-58. Custodial plaintiffs, however, ask this Court to take an expansive view and recognize a substantive due process right to be free not only from physical harm but also from psychological, emotional, and developmental harm. Defendants, on the other hand, urge this Court to take a narrower approach to custodial plaintiffs' substantive due process claims.
The Court is inclined, at this juncture, to take a broad view of the concept of harm in the context of plaintiffs' substantive due process claims. Clearly, the state is required to protect children in its custody from physical injury. This Court further finds that custodial plaintiffs have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being. As the United States District Court for the Northern District of Illinois reasoned, "[a] child's physical and emotional well-being are equally important. Children are by their nature in a developmental phase of their lives and their exposure to traumatic experiences can have an indelible effect upon their emotional and psychological development and cause more lasting damage than many strictly physical injuries." B.H. v. Johnson, 715 F.Supp. 1387, 1395 (N.D.Ill. 1989); see also Aristotle P., 721 F.Supp. at 1009-10 (finding that "[t]he fact that the plaintiffs' injuries are psychological rather than physical is of no moment" and that such injuries support substantive due process claim); Doe v. New York City Dep't of Social Servs., 670 F.Supp. 1145, 1175-76 (S.D.N.Y. 1987) (finding that defendants violated plaintiffs' substantive due process rights by subjecting them to physical, emotional, and psychological harm).
a. Right to Appropriate Conditions and Duration of Foster Care
As a key element of their substantive due process claims, plaintiffs allege that defendants have violated "their right to be housed in the least restrictive, most appropriate and familylike placement." Complaint at 102. In support of their motions to dismiss, however, defendants argue that custodial plaintiffs do not have a Fourteenth Amendment due process right to the least restrictive, optimal level of care or placement and, therefore, that

children who are kept in foster care longer than necessary or who are denied services to enable them to reunite with their families fail to state a claim.
Courts generally agree that the Fourteenth Amendment does not require the state to provide children in foster care with an optimal level of care or treatment. See Baby Neal v. Casey, 821 F.Supp. 320, 337 (E.D.Pa.1993); Del A. v. Roemer, 777 F.Supp. 1297, 1319-20 (E.D.La.1991); B.H. v. Johnson, 715 F.Supp. 1387, 1397-98 (N.D.Ill.1989). Thus, to the extent that custodial plaintiffs allege a substantive due process right to a least restrictive, optimal placement, their claims must be dismissed.
676*676 Individuals in state custody, however, do have a constitutional right to conditions of confinement which bear a reasonable relationship to the purpose of their custody. See Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). Courts have extended this right to the child welfare context. Doe v. New York City Dep't of Social Servs., 670 F.Supp. 1145, 1174 (S.D.N.Y.1987). The goal of the child welfare system is "to further the best interest of children by helping to create nurturing family environments without infringing on parental rights." Id. Plaintiffs thus are entitled to conditions and duration of foster care which are reasonably related to this goal. Additionally, as noted above, defendants have an affirmative obligation to provide custodial plaintiffs with adequate food, shelter, clothing, medical care, and reasonable safety. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989).
This Court is satisfied that the right to be free from harm encompasses the right alleged by plaintiffs to appropriate conditions and duration of foster care. Indeed, the crux of plaintiffs' latter claim is that defendants' failure to provide safe and appropriate placements has caused them to suffer impermissible harm. Custodial plaintiffs have alleged sufficient facts to support the claim that they have been deprived of even adequate or appropriate conditions of foster care including certain basic necessities which defendants are obligated to provide. Thus, to the extent that custodial plaintiffs can establish that the conditions and duration of foster care are so inadequate as to violate plaintiffs' Fourteenth Amendment due process right to be free from harm, they are entitled to do so and defendants' motions to dismiss are denied.
b. Right to Family Integrity
Another key element of plaintiffs' substantive due process claims is the allegation that defendants have violated "their right not to be deprived of a family relationship absent compelling reasons." Complaint at 102. While defendants acknowledge the constitutional foundation for the right to family integrity, they argue that this right is not implicated on the facts set forth in the complaint. Specifically, defendants assert that (1) plaintiffs fail to allege that defendants were wrongfully removing children from their biological parents and (2) any alleged failure of defendants to provide services to reunite biological family members does not rise to the level of a constitutional violation.
The right to family integrity is derived both from the First Amendment's broad right of association and the Fourteenth Amendment's general substantive due process protections. See Roberts v. United States Jaycees, 468 U.S. 609, 617-20, 104 S.Ct. 3244, 3249-50, 82

L.Ed.2d 462 (1984); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). The Ninth Amendment also has been cited as a source of a right to privacy. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (citing Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)). Although the Supreme Court has held the parent-child relationship to be constitutionally protected, courts nevertheless have been loathe to impose a constitutional obligation on the state to ensure a particular type of family life or to create such an obligation "through the penumbral constitutional ... right to familial privacy." B.H., 715 F.Supp. 1387, 1397 (N.D.Ill.1989); see also Child v. Beame, 412 F.Supp. 593, 603 (S.D.N.Y.1976) (holding that plaintiffs could not extrapolate from right to non-interference in private life a right to governmental intervention in form of permanent adoptive placement). In fact, the only courts to apply the concept of family integrity to the child welfare context have done so when children in foster care were denied visitation with siblings and parents. See Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D.Ill.1989); R.C. ex rel. Alabama Disabilities Advocacy Project v. Hornsby, No. 88-D-1170-N, slip op. at 10-12 (M.D.Ala. Apr. 19, 1989).
Plaintiffs in the instant case do not allege facts suggesting that they have been 677*677 denied such visitation rights but, rather, challenge defendants' general failure to provide services that function to preserve the family unit. Courts have held, however, that plaintiffs "do not have a constitutional right to rely on an agency to strengthen and reunite their families even if that agency has a statutory duty to do so." Dixey v. Jewish Child Care Assoc., 522 F.Supp. 913, 916 (S.D.N.Y.1981) (citing Child v. Beame, 412 F.Supp. 593 (S.D.N.Y.1976)). Thus, plaintiffs cannot argue that defendants have violated their right to family integrity and, to the extent that custodial plaintiffs allege a substantive due process right to associate with their biological family members, their claims must be dismissed.
Nevertheless, plaintiffs do have a constitutional right to protection from harm as noted above. Plaintiffs' family integrity claims are closely related to those pertaining to the duration of foster care and, by extension, fall within the concept of harm for substantive due process purposes. Indeed, plaintiffs suggest that defendants unnecessarily place children in foster care and allow children properly in foster care to languish without taking steps to reunite them with their biological family where appropriate. Once again, this Court is persuaded that plaintiffs have stated facts sufficient to support a claim that they have been impermissibly harmed in violation of the Fourteenth Amendment by defendants' failure to provide reasonable services and placements that protect custodial plaintiffs' right of association with their biological family members. Custodial plaintiffs, therefore, are entitled to show that defendants' actions or inactions regarding plaintiffs' familial relationships have caused them harm as defined by the Court. Defendants' motions to dismiss this portion of plaintiffs' first cause of action, therefore, are denied.
2. Procedural Due Process Claims
Defendants further move to dismiss the second significant component of plaintiffs' first cause of action in which they assert that defendants have deprived plaintiffs of government services to which they have a statutory entitlement without due process of law. Defendants, without citing to any particular state law provision, contest plaintiffs' procedural due process

claims on the grounds that (1) the statutes and regulations upon which plaintiffs rely do not vest in them any constitutionally protected liberty or property interests and (2) even if plaintiffs do have entitlements of which they were deprived, they have failed to allege that they were denied such entitlements without due process of law. Defendants further argue that, not only was process not denied, but plaintiffs fail to assert what process was even due.
Despite bearing the burden of establishing that plaintiffs have failed to state a claim upon which relief can be granted, however, defendants merely set forth established procedural due process doctrine and neglect to analyze why the statutes upon which plaintiffs rely do not create entitlements worthy of constitutional protection. In fact, defendants fail even to refer to any particular statute in their memoranda of law in support of their motions to dismiss. Plaintiffs, however, direct this Court to various provisions of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law ("Title 6"). See Pls.' Mem. in Opp'n at 31 n. 14. This Court will, therefore, consider whether the provisions of Title 6 create entitlements deserving of constitutional protection. To the extent that defendants move to dismiss plaintiffs' procedural due process claims grounded in any other state law or regulation, the Court is unwilling to entertain defendants' motions without further briefing and such motions are hereby denied.
A court analyzing a procedural due process claim first must determine whether plaintiffs have a protected interest and, only then, must decide whether the deprivation of that interest met with the requirements of due process. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). The Supreme Court has held that "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 678*678 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In Roth, the Supreme Court explained that "[p]roperty interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S.Ct. at 2709. The Court went on to note that
[t]he Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Id. at 576-77, 92 S.Ct. at 2708-09. This Court, therefore, first must determine whether plaintiffs have a legitimate claim of entitlement to the benefits afforded them by Title 6.
The Supreme Court has specifically declined to address whether state child welfare statutes give children an entitlement to protective services "which would enjoy due process protection against state deprivation. ..." DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195 n. 2, 109 S.Ct. 998, 1002 n. 2, 103 L.Ed.2d 249 (1989); see also van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 866 n. 1 (2d Cir.1990).

Lower courts faced with this question are divided. See Meador v. Cabinet for Human Resources, 902 F.2d 474, 476-77 (6th Cir.) (holding Kentucky child protection statutes give plaintiffs entitlement to protective services of which they may not be deprived without due process of law), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 798-800 (11th Cir.1987) (holding children in foster care can state claim based upon deprivation of liberty interest when officials fail to follow guidelines mandated by Georgia foster care and placement scheme), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989); Powell v. Dep't of Human Resources of the State of Ga., 918 F.Supp. 1575, 1580-82 (S.D.Ga. 1996) (holding comprehensive and mandatory nature of Georgia Child Abuse Protocol vests abused children with constitutionally protected entitlement to procedures and protections mandated therein); Eric L. ex rel. Schierberl v. Bird, 848 F.Supp. 303, 308 (D.N.H.1994) (refusing to dismiss plaintiffs' claims that New Hampshire child protection statute creates entitlement to certain services); Baby Neal v. Casey, 821 F.Supp. 320, 338-39 (E.D.Pa.1993) (denying summary judgment on plaintiffs' procedural due process claims); Chrissy F. ex rel. Medley v. Mississippi Dep't of Pub. Welfare, 780 F.Supp. 1104, 1127-29 (S.D.Miss.1991) (holding provisions of Youth Court law at issue created property interests enforceable under the due process clause), aff'd in part, rev'd in part, 995 F.2d 595 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1336, 127 L.Ed.2d 684 (1994). But see Tony L. ex rel. Simpson v. Childers, 71 F.3d 1182, 1186-87 (6th Cir.1995) (holding Kentucky child protection statutes do not give rise to state-created due process liberty interest), cert. denied, ___ U.S. ___, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996); Doe ex rel. Nelson v. Milwaukee County, 903 F.2d 499, 502-05 (7th Cir.1990) (holding Wisconsin child abuse reporting statute does not vest plaintiffs with constitutionally-protected property interest); Coker ex rel. Coker v. Henry, 813 F.Supp. 567, 569-70 (W.D.Mich. 1993) (holding Michigan child protection law not sufficiently explicit and mandatory to create claim of entitlement to protective services), aff'd, 25 F.3d 1047 (6th Cir.1994); B.H. v. Johnson, 715 F.Supp. 1387, 1399-1400 (N.D.Ill.1989) (holding plaintiffs have no constitutionally protected liberty or property interest in Illinois Abuse and Neglected Child Reporting Act); Child v. Beame, 412 F.Supp. 593, 604-05 (S.D.N.Y.1976) (holding plaintiffs have no constitutionally protected property interest in permanent adoptive placement); see also Colson ex rel. Colson v. Sillman, 35 F.3d 106, 109 (2d Cir.1994) (holding applicants for benefits under county's physically handicapped children's program 679*679 lack claim of entitlement and thus have no due process property interest).
The Second Circuit has addressed whether a state law creates a claim of entitlement under Roth in the context of benefits afforded to applicants under a county's physically handicapped children's program. See Colson, 35 F.3d at 108. In Colson, plaintiffs relied upon a specific provision of New York's Public Health Law that vests substantial, if not total, discretion in the State and the State's Department of Health both to appropriate funds for medical services and to provide such services.[5] The court held that "[w]hether the benefit invests the applicant with a `claim of entitlement' or merely a `unilateral expectation' is determined by the amount of discretion the disbursing agency retains." Id.; see also Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 581 (2d Cir. 1989) (noting that "the existence of provisions that retain for the state significant discretionary authority over the bestowal or continuation of a government benefit suggests that the recipients of such benefits have no entitlement to them"). The Colson court reversed the district court's grant of summary judgment in plaintiffs' favor on the ground that, because the provision at issue vests virtually total discretion in the State and the State's Department of Health, "applicants [did] not

possess a `claim of entitlement' running against the State." Colson, 35 F.3d at 110. To determine whether Title 6 creates a legitimate claim of entitlement, therefore, this Court must determine whether the provisions of Title 6 vest significant discretion in the agency or, rather, are mandatory.
Title 6 sets forth a specific scheme for child protection the purpose of which is
to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved.
SSL § 411. These child welfare laws, like others that have been found to create entitlements, "mandate that officials follow guidelines and take affirmative actions to ensure the well being and promote the welfare of children in foster care." Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 799 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989). Indeed, the significant provisions of Title 6 are mandatory in nature and, for example, (1) provide that certain individuals "are required to report or cause a report to be made ... when they have reasonable cause to suspect that a child ... is an abused or maltreated child," SSL § 413; (2) demand that "[r]eports of suspected child abuse or maltreatment ... shall be made immediately" pursuant to a detailed reporting procedure, SSL § 415; (3) set forth the obligations of persons required to report cases of suspected child abuse and maltreatment, SSL § 416; (4) set forth circumstances under which an individual "shall take all appropriate measures to protect a child's life and health including, when appropriate, taking or keeping a child in protective custody," SSL § 417; (5) set forth the mandatory penalties for the failure of an obligated person to report a case of suspected child abuse and maltreatment, SSL § 420; (6) establish that "[t]he department shall ... conduct a continuing publicity and education program ... provide technical assistance to local social services departments ... issue guidelines to assist local social services departments in evaluating and establishing investigative priorities ... [and] promulgate [specific] regulations," SSL § 421; (7) require that "[t]here shall be established ... a statewide central register of child abuse and maltreatment reports" and set forth its required capabilities, SSL § 422; (8) mandate that "[e]very local department of social services shall establish a `child protective service' within such department" and set forth its required functions, SSL § 423; (9) delineate the specific and mandatory duties 680*680 of each child protective service concerning reports of abuse or maltreatment, SSL § 424; and (10) set forth the duties of the commissioner with respect to custodial children, SSL §§ 424-b and -c.
Each relevant provision of Title 6 contains the mandatory language necessary to elevate the benefit to an entitlement. Title 6 is distinguishable from the law relied upon by the plaintiffs in Colson which, according to that court, contains "virtually nothing that is mandatory" and places the decision to act in the near total discretion of the commissioner. Colson, 35 F.3d at 109. That Title 6 requires the agency or obligated individuals to act upon reasonable cause to suspect that a child is being abused or maltreated and to take appropriate measures rather than specific steps in every potential situation does not alter the mandatory nature of the scheme. Indeed, to the extent that certain provisions confer some discretion upon the agency or obligated individuals, such discretion is a necessary by-product of a

statutory scheme such as this one. The Court finds, therefore, that New York's Child Protective Services laws are more than mere procedural guidelines and, in fact, give plaintiffs an entitlement to protective services of which they may not be deprived without due process of law.
An entitlement to child protective services thus having been established, the Court is unwilling at this juncture to dismiss plaintiffs' procedural due process claims. As Justice Blackmun has noted, "[i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest ... is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (citing Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)). Whether, as defendants argue, state law affords plaintiffs a mandatory review procedure which would satisfy due process and whether plaintiffs have been deprived of that process are matters better left for trial. Despite having reservations regarding the merits of plaintiffs' procedural due process claims, the Court nevertheless holds that defendants have not met their burden of showing that plaintiffs have failed to state a claim upon which relief can be granted and defendants' motions to dismiss this portion of plaintiffs' first cause of action are hereby denied.
B. Plaintiffs' Federal Statutory Claims
42 U.S.C. § 1983 provides a remedy for violations of both federal constitutional and statutory rights. See Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 105, 110 S.Ct. 444, 447, 107 L.Ed.2d 420 (1989); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). While courts have broadly construed § 1983 as a vehicle for pursuing constitutional claims, the Supreme Court has more narrowly applied § 1983 to alleged statutory violations. Plaintiffs may rely on § 1983 to seek redress for an alleged violation of a federal statute except "where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); see also Suter v. Artist M., 503 U.S. 347, 355, 112 S.Ct. 1360, 1366, 118 L.Ed.2d 1 (1992); Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S.Ct. 2510, 2516, 110 L.Ed.2d 455 (1990). In their complaint, plaintiffs have alleged violations of the Adoption Assistance Act, including the provision herein referred to as the Multiethnic Placement Act, CAPTA, the ADA, and the Rehabilitation Act. Defendants ask this Court to dismiss virtually all of those federal statutory claims.
1. Claims Pursuant to the Social Security Act
Defendants ask the Court to dismiss plaintiffs' second, third, and fifth causes of action brought pursuant to various provisions of the Social Security Act ("SSA") including the Adoption Assistance Act, the Multiethnic Placement Act, and CAPTA on the ground that these provisions do not provide for a private right of action to enforce their requirements. Defendants do not argue that plaintiffs fail to state violations of these provisions 681*681 but, rather, move to dismiss on the basis that plaintiffs are not entitled to pursue these claims in federal court.

When deciding whether a private right of action exists to enforce a federal funding statute, courts are bound by any expression of clear intent on the part of Congress to create such a right. See Mrs. W. v. Tirozzi, 832 F.2d 748, 754-55 (2d Cir. 1987). Where no unambiguous statement of intent exists, courts must determine if the statute creates enforceable rights, privileges, or immunities. See Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S.Ct. 2510, 2516, 110 L.Ed.2d 455 (1990); Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531, 1538, 67 L.Ed.2d 694 (1981). In Wilder, the Supreme Court set forth three factors for courts to consider: (1) whether "`the provision in question was intend[ed] to benefit the putative plaintiff"; (2) whether the provision "reflects merely a `congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit"; and (3) whether "the interest the plaintiff asserts is `too vague and amorphous' such that it is `beyond the competence of the judiciary to enforce.'" Wilder, 496 U.S. at 509, 110 S.Ct. at 2517 (citations omitted).
Once these three factors have been met, the burden shifts to the state actor to show Congressional intent to the contrary. See Wright, 479 U.S. at 423-24, 107 S.Ct. at 770. Generally, "§ 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement." Id. at 423, 107 S.Ct. at 770. This requires defendants to show that Congress provided "a comprehensive enforcement mechanism for the protection of the federal right" with which plaintiffs' § 1983 action would be inconsistent. Harris v. James, 883 F.Supp. 1511, 1518 (M.D.Ala. 1995). A showing of the availability of administrative protection is insufficient to meet this burden. See id. The Supreme Court has warned that courts should "`not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy' for the deprivation of a federally secured right." Wright, 479 U.S. at 423-24, 107 S.Ct. at 770 (citation omitted).
a. The Adoption Assistance Act Claims
The Adoption Assistance Act is contained in subchapter IV of the SSA and establishes a cooperative federal-state program under which the federal government provides funding for child welfare programs to participating states. Plaintiffs allege violations of 42 U.S.C. §§ 622(b) and 627(a) and (b) of subchapter IV-B entitled "Child Welfare Services"[6] and of 42 U.S.C. § 671(a) of subchapter IV-E entitled "Federal Payments for Foster Care and Adoption Assistance."[7]
Whether a private right exists to enforce provisions of the Adoption Assistance Act has been the subject of recent debate in both the judicial and legislative branches of government. In 1992, the Supreme Court considered whether a private individual could bring a § 1983 claim to enforce § 671(a)(15) of the Adoption Assistance Act. See Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). The Court asked whether "Congress, in enacting the Adoption Act, unambiguously confer[red] upon the child beneficiaries of the Act a right to enforce the requirement that the State make `reasonable efforts' to prevent a child from being removed from his home, and once removed to reunify the child with his family." Id. at 357, 112 S.Ct. at 1367. Departing from earlier precedent, the Court held that § 671(a)(15) was too vague and amorphous to provide a cause of action under § 1983 and that Congress did not intend "to create the private remedy sought by plaintiffs." Id. at 364,

112 S.Ct. at 1370. In the following years, several other courts applied Suter to find that no private right of action exists to enforce this 682*682 statute. See, e.g., Eric L. ex rel. Schierberl v. Bird, 848 F.Supp. 303, 311-12 (D.N.H. 1994); Baby Neal v. Casey, 821 F.Supp. 320, 324-28 (E.D.Pa.1993). Defendants rely on this line of cases in support of their motions to dismiss.
In 1994, however, Congress expressed its disapproval of the Supreme Court's decision in Suter and amended the SSA. See 42 U.S.C. § 1320a-2 (Oct. 20, 1994) [hereinafter "Amendment"]. The Amendment states:
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., [503 U.S. 347] 112 S.Ct. 1360 [118 L.Ed.2d 1] (1992) [sic], but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
Id. Plaintiffs argue that this Amendment is a clear expression of Congress' intent to create a private right of action to enforce provisions of the Adoption Assistance Act other than § 671(a)(15). In the alternative, plaintiffs argue that the Amendment shows Congress' intent to reject the Supreme Court's reasoning in Suter and to require courts to return to the preSuter approach when deciding whether to recognize a private right of action to enforce provisions other than § 671(a)(15). Defendants, however, stand by their reading of the import of Suter. They argue that not only did Congress preclude any private right to enforce § 671(a)(15) but also that it left open to judicial construction whether plaintiffs can rely on § 1983 to enforce the other provisions of the Adoption Assistance Act. Defendants urge this Court to apply the reasoning in Suter to plaintiffs' claims.
This Court does not read the Amendment as a clear expression of Congress' intent to create a private right of enforcement. Rather, this Court is persuaded that Congress has expressed its intent to require courts to apply pre-Suter case law to determine the private enforceability of SSA provisions other than § 671(a)(15).[8] Courts that recently have considered this issue have adopted this approach. See Harris v. James, 883 F.Supp. 1511, 1520 (M.D.Ala.1995); Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1285 (E.D.Wis.1995). Accordingly, only the narrow holding in Suter remains and this Court "must `rewind the clock' and look to cases prior to Suter to determine the enforceability" of the provisions at issue in the instant case. Jeanine B., 877 F.Supp. at 1283. As noted by the court in Jeanine B.,
the amendment overrules the general theory in Suter that the only private right of action available under a statute requiring a state plan is an action against the state for not having that plan. Instead, the previous tests of Wilder and Pennhurst apply to the question of whether or not the particulars of a state plan can be enforced by its intended beneficiaries.

Id. The Court must now apply the factors set forth in Wilder to decide whether plaintiffs are entitled to pursue their claims under § 1983.
Plaintiffs allege violations of § 622(b)(9) and of §§ 627(a) and (b) of subchapter IV-B of the SSA. The Multiethnic Placement Act, § 622(b)(9), sets forth as part of the requirements for federal funding that a state plan for child welfare services "provide for the diligent recruitment" of potential foster and adoptive parents who are racially and ethnically diverse. Of the other provisions relied upon by plaintiffs, § 627(a) describes the foster care protections that the state must offer in order to gain additional payments and § 627(b) outlines the further requirements the state must meet to avoid a reduction of its allotment. With respect to the first Wilder 683*683 factor, both §§ 622 and 627 are intended to benefit the members of the proposed class of plaintiffs. Further, the language of these provisions is mandatory and sets forth the requirements that the state must meet to be eligible for funding, to gain additional funding, and to avoid a reduction in funding. The second Wilder factor thus is met. Finally, determining state compliance with these provisions is well within the abilities of the Court. None of these provisions is so vague or amorphous as to be beyond the competence of the Court to enforce.
Plaintiffs also allege violations of § 671(a) of subchapter IV-E of the SSA. That provision sets forth the requisite elements and features a state plan for foster care and adoption assistance must contain in order for the state to be eligible for federal funding. With respect to the first Wilder factor, it is clear that the members of the proposed class of plaintiffs are the intended beneficiaries of the Adoption Assistance Act. Second, the language of § 671(a) is mandatory and "impose[s] a binding obligation by explicitly tying the creation of certain features of a state plan to federal funding." Jeanine B., 877 F.Supp. at 1283. Finally, none of the subsections of § 671(a) relied upon by plaintiffs is so vague or amorphous as to make judicial enforcement impossible. Both §§ 671(a)(10) and (a)(16) are clear and are not beyond the power of the Court to enforce.
Prior to Suter, several courts recognized the right of private individuals to sue for violations of provisions of the Social Security Act. See, e.g., Winston ex rel. Winston v. Children and Youth Servs. of Delaware County, 948 F.2d 1380, 1388 (3d Cir.1991), cert. denied, 504 U.S. 956, 112 S.Ct. 2303, 119 L.Ed.2d 225 (1992); Timmy S. v. Stumbo, 916 F.2d 312, 315 (6th Cir.1990); L.J. ex rel. Darr v. Massinga, 838 F.2d 118, 123 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989); Lynch v. Dukakis, 719 F.2d 504, 510-12 (1st Cir.1983). Additionally, this Court finds no evidence that Congress has indicated its intent to preclude private plaintiffs from seeking to enforce provisions of the Adoption Assistance Act other than § 671(a)(15). For the foregoing reasons, defendants' motions to dismiss plaintiffs' claims pursuant to provisions of the Adoption Assistance Act are hereby denied.
b. CAPTA Claims
Plaintiffs further allege violations of two provisions of CAPTA which govern federal grants to states for child abuse and neglect prevention and treatment programs. The first, 42 U.S.C. § 5106a(b)(2), requires a state, as a condition of federal funding, to initiate a prompt investigation into all reports of abuse or neglect and to take immediate steps to protect children whom the state believes have suffered or are at risk of suffering abuse or neglect.

The second, 42 U.S.C. § 5106a(b)(3), requires a state to have in effect administrative procedures, personnel, training procedures, facilities, and related programs and services "to ensure that the State will deal effectively with child abuse and neglect cases" in order to be eligible for federal funds.
Defendants again ask this Court to dismiss these claims on the ground that plaintiffs have no private right of action to enforce these statutes. Courts have differed in their interpretation of whether CAPTA creates rights enforceable by private individuals pursuant to § 1983. See Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995) (allowing plaintiffs to pursue CAPTA claims). But see Tony L. ex rel. Simpson v. Childers, 71 F.3d 1182 (6th Cir. 1995) (holding no private right of enforcement of CAPTA), cert. denied, ___ U.S. ___, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996); Eric L. ex rel. Schierberl v. Bird, 848 F.Supp. 303 (D.N.H.1994) (dismissing plaintiffs' CAPTA claims); Baby Neal v. Casey, 821 F.Supp. 320 (E.D.Pa.1993) (holding no private right of enforcement of CAPTA). Plaintiffs do not argue, as they did with respect to the Adoption Assistance Act, that there exists a well-established private right to enforce CAPTA. At the same time, defendants do not argue that Congress has expressed its intent to preclude private enforcement of the statute. Rather, the parties expect this Court to undertake a traditional Wilder analysis to determine 684*684 whether plaintiffs are entitled to pursue these claims.
As to the first prong of Wilder, there is no dispute that the members of the proposed class of plaintiffs are the intended beneficiaries of the CAPTA provisions at issue. Moving to the second inquiry, the language of §§ 5106a(b)(2) and (b)(3) requires that "such State shall ... provide that ... an investigation shall be initiated promptly ... and ... immediate steps shall be taken to protect the health and welfare of the ... child...." The statute sets forth clear conditions which the state must meet to qualify for a federal grant and does so through the use of mandatory and not precatory language. The sole area of contention is whether these CAPTA provisions meet the third Wilder prong or whether they are so vague and amorphous as to be beyond the enforcement power of the Court. Two of the courts to consider most recently the private enforceability of CAPTA grappled primarily with this issue. See Tony L., 71 F.3d at 1189-90; Jeanine B., 877 F.Supp. at 1286.
Defendants argue that the language in § 5106a(b)(2) requiring the state to conduct prompt investigations and to take immediate steps to protect children at risk is too ambiguous and that the Court, therefore, is not qualified to assess compliance. To the contrary, this Court certainly is competent to determine whether the state has made any efforts to comply with this provision. Further, the Court can look to professional standards to determine whether an investigation was properly and promptly initiated and whether the protective steps taken were appropriate. This provision, therefore, is not so vague as to be beyond the enforcement power of the Court. With respect to § 5106a(b)(3), defendants do not cite any language from this provision as being too ambiguous to be enforced judicially. Accordingly, § 5106a(b)(3) likewise survives the third prong of Wilder. Finally, defendants have not argued that Congress has precluded expressly private plaintiffs from pursuing § 1983 claims alleging violations of CAPTA.
In light of the 1994 Amendment disapproving of the Supreme Court's reasoning in Suter and the more recent decision of the United States District Court for the Eastern District of Wisconsin in Jeanine B., this Court is persuaded that plaintiffs are entitled to claim alleged

violations of CAPTA pursuant to § 1983. In so doing, the Court has considered and now rejects the notion that the discretionary nature of the regulation renders CAPTA too vague for the court to enforce. Defendants' motions to dismiss plaintiffs' claims pursuant to provisions of CAPTA are, therefore, denied.
2. Claims Pursuant to the Disability Statutes
Defendants ask the Court to dismiss plaintiffs' sixth cause of action brought pursuant to the ADA and the Rehabilitation Act for failure to allege facts sufficient to state violations of these statutes. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Rehabilitation Act provides in pertinent part:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C. § 794(a). Although both statutes establish similar rights, the ADA affords plaintiffs broader protection in that it prohibits discrimination by state agencies regardless of whether they receive federal funding.
It is defendants' position that plaintiffs fail to state a claim under these statutes because they do not allege facts sufficient to show that they were denied both the opportunity to participate in foster care services and the benefits available to non-disabled persons on account of their disabilities. Plaintiffs argue that defendants have violated these Acts by failing to make reasonable accommodations for handicapped children, including appropriate placements and proper medical attention to allow them to function while in foster care, such that they are deprived of meaningful access to the child welfare system.
685*685 It is well established that the ADA and the Rehabilitation Act require public entities or those entities receiving federal funds to provide reasonable accommodations for the handicapped. See Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). Although no court has addressed directly the type of accommodation sought here, the Second Circuit has held that the Rehabilitation Act, which is narrower in scope than the ADA, requires defendants to take "`modest affirmative steps' to accommodate the handicapped" in the context of public transportation. Dopico v. Goldschmidt, 687 F.2d 644, 652 (2d Cir.1982); see also Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir.1977); Rothschild v. Grottenthaler, 716 F.Supp. 796, 800 (S.D.N.Y.1989). Other federal courts have interpreted the ADA and the Rehabilitation Act to require reasonable accommodations. See, e.g., Tyler v. City of Manhattan, 849 F.Supp. 1429, 1439 (D.Kan. 1994) (refusing to grant defendant's motion for summary judgment on plaintiff's ADA claim based on his exclusion from City Commission meeting due to lack of wheelchair accessibility); Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 846 F.Supp. 986, 992 (S.D.Fla.1994) (granting plaintiffs' motion for preliminary injunction requiring defendant to take steps to afford benefits of City's recreational program to persons with disabilities); Noland v. Wheatley, 835 F.Supp. 476, 483 (N.D.Ind.1993) (denying defendants' motion to dismiss

plaintiff's ADA claim based on prison's failure to provide basic accommodation to semiquadri-plegic prisoner).
Taken together, these cases stand for the proposition that a disabled individual is entitled to meaningful access to the benefits and services provided by a public agency or an agency receiving federal funds. Access alone, despite defendants' arguments to the contrary, is insufficient. See Alexander, 469 U.S. at 301, 105 S.Ct. at 720. Rather, a court may require an agency, under certain circumstances, to take affirmative steps to ensure that the access is meaningful. See id.; Dopico, 687 F.2d at 652. At issue here is whether plaintiffs allege sufficient facts which, if proven, support a claim that defendants failed to take these "modest affirmative steps" such that plaintiffs were deprived of meaningful access to the child welfare system.
With respect to named plaintiff Lawrence B., who recently died of AIDS-related illness, the agency's failure to provide meaningful access to child welfare services is evident. As an initial matter, it is undisputed that Lawrence was disabled as defined by the ADA and the Rehabilitation Act. CWA failed to assess promptly Lawrence's medical status, transferred him from one inappropriate placement to another including a group home that lacked the medical staff needed to monitor his condition, neglected to inform the placement agency of his HIV-positive status, placed him in a group home aimed to assist teenagers in making the transition to independent living, and maintained a goal of independent living in his case plan until his death. The facts alleged by another named plaintiff, Ozzie E., who remains in a group home unequipped to address his neurological problems, further support plaintiffs' claims under the ADA and the Rehabilitation Act.
Plaintiffs' allegations, if proven, raise serious questions as to whether ACS has fulfilled even its most fundamental obligation to provide meaningful access as required by the ADA and the Rehabilitation Act. This Court, taking the allegations of the complaint as true for purposes of the instant motion, holds that plaintiffs have alleged sufficient facts to support their claims. Accordingly, defendants' motions to dismiss plaintiffs' claims brought under the ADA and the Rehabilitation Act are hereby denied.
C. Plaintiffs' State Law Claims
Defendants move to dismiss plaintiffs' seventh and eighth causes of action alleging violations of the New York State Constitution and various state laws and regulations. To that end, defendants ask the Court to refuse to exercise supplemental jurisdiction or to dismiss plaintiffs' state law claims for lack of justiciability. In the alternative, defendants ask the Court to abstain from deciding plaintiffs' claims, the City relying on the Burford abstention doctrine and the State relying on the Younger abstention doctrine.
686*686 1. Supplemental Jurisdiction
Federal courts have the power pursuant to 28 U.S.C. § 1367 to exercise supplemental jurisdiction over state law claims that arise from events that form the basis of alleged violations of federal law. That statute provides, in pertinent part:

(a) Except as provided in subsections (b) and (c) ... in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367. Subsection (c) of § 1367 sets forth the conditions under which a district court may decline to exercise supplemental jurisdiction over a state law claim. Defendants urge this Court to decline to exercise such jurisdiction pursuant to § 1367(c)(2) which grants a court the discretion to decline jurisdiction if "the claim substantially predominates over the claim or claims over which the district court has original jurisdiction."
As a threshold matter, it is undisputed that plaintiffs' state law claims are so related to their federal claims as to form part of the same case or controversy as required by § 1367(a). Indeed, defendants do not contest that this Court has the discretion to consider plaintiffs' allegations but, rather, ask this Court to decline to do so. Because the bulk, if not all, of plaintiffs' federal claims have survived defendants' motions to dismiss, plaintiffs' state law claims cannot be said to predominate for purposes of § 1367(c)(2). Even if this were not so, however, § 1367(c) merely sets forth circumstances under which a district court may, but is not required to, decline to exercise jurisdiction. For the foregoing reasons, supplemental jurisdiction is proper and this Court hereby exercises that jurisdiction over plaintiffs' state law claims.
2. Justiciability
Jurisdiction having been established, this Court must now determine the justiciability of plaintiffs' state law claims. Defendants argue that plaintiffs' state law claims are nonjusticiable in that they require the Court to usurp the role of the State Department of Social Services ("DSS") which, by statute, is responsible for enforcing state laws and regulations. A court determining the justiciability of a claim must consider the doctrine of separation of powers and must recognize that the court may be ill-suited to certain administrative tasks. See Jones v. Beame, 45 N.Y.2d 402, 408-09, 408 N.Y.S.2d 449, 380 N.E.2d 277 (N.Y.Ct.App.1978). Defendants suggest that this Court should decline to consider plaintiffs' state law claims because to do so would "embroil the court[] in the administration of programs the primary responsibility for which lies in the executive branch of government." Id. at 406, 408 N.Y.S.2d 449, 380 N.E.2d 277.
This Court is persuaded by plaintiffs' argument that the judicial branch is competent to determine whether ACS has complied with the duties imposed upon it by the state legislature. In an analogous context, the New York Court of Appeals addressed the justiciability of state law claims brought by a group of present and former psychiatric patients seeking to enforce their statutory rights and noted that "there is nothing inherent in plaintiffs' attempts to seek a declaration and enforcement of their rights that renders the controversy nonjusticiable. They do not wish to controvert the wisdom of any program. Instead, they ask only that the program be effected in the manner that it was legislated." Klostermann v. Cuomo, 61 N.Y.2d 525, 537, 475 N.Y.S.2d 247, 463 N.E.2d 588 (N.Y.Ct.App. 1984). As that court noted, "it is within the court's competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the

Legislature and, if it has not, to direct that the agency proceed forthwith to do so." Id. at 531, 475 N.Y.S.2d 247, 463 N.E.2d 588.
As in Klostermann, plaintiffs ask this Court to adjudicate their legal claims and to ensure the enforcement of their statutory rights. These actions fall well within the power of the judicial branch in that they do 687*687 not require this Court to preempt the discretionary authority vested in the executive branch and, thus, do not raise the separation of powers concerns suggested by defendants. Additionally, New York courts have deemed justiciable similar claims of systemic state law violations. See, e.g., Jiggetts v. Grinker, 75 N.Y.2d 411, 41516, 554 N.Y.S.2d 92, 553 N.E.2d 570 (N.Y.Ct.App.1990) (holding that plaintiffs' claim presents justiciable controversy involving alleged failure of state commissioner of social services to comply with provision of social services law); McCain v. Koch, 70 N.Y.2d 109, 119-20, 517 N.Y.S.2d 918, 511 N.E.2d 62 (N.Y.Ct.App.1987) (holding that court had power to issue temporary injunction requiring state agency which provides emergency housing to homeless families with children to meet minimum standards); Martin A. v. Gross, 153 A.D.2d 812, 815-17, 546 N.Y.S.2d 75 (1st Dep't 1989) (affirming order directing defendants to comply with Child Welfare Reform Act). Following the court's reasoning in Klostermann, this Court holds that plaintiffs' state law claims are justiciable.
3. Abstention
Finally, in further support of their motions to dismiss, defendants ask this Court to refrain from considering plaintiffs' claims. City defendants rely on the Burford abstention doctrine and urge the Court not to consider plaintiffs' claims brought pursuant to the New York State Constitution, statutes, and regulations. The State defendants, however, argue for a broader abstention based on the Younger doctrine. In either case, abstention is a doctrine to be applied only in rare and exceptional cases and, as a general rule, federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976).
a. Burford Abstention
Under the Supreme Court's ruling in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), a federal court should abstain from deciding a state law claim where to do so would interfere with "`the rightful independence of state governments in carrying out their domestic policy.'" Id. at 318, 63 S.Ct. at 1099. The Supreme Court has held that abstention under Burford is proper where there have been presented difficult questions of state law bearing on problems of substantial public import whose importance transcends the result in the case at bar. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1975) (citing Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959)). Burford abstention thus is appropriate where the "exercise of federal review ... would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Id. The Second Circuit has held that abstention is appropriate only when two factors, unclear state law and broad impact on state policy, are present. See Smith v. Metropolitan Property & Liab. Ins. Co., 629 F.2d 757, 760 (2d Cir. 1980); see also Canaday

v. Koch, 608 F.Supp. 1460, 1468 (S.D.N.Y.) (holding unclear state law, while alone insufficient reason for abstention, is compelling factor in favor of abstention when issues pertain to matters of predominantly local concern), aff'd, 768 F.2d 501 (2d Cir.1985).
City defendants contend that Burford abstention is appropriate in the instant case for three reasons: (1) a federal ruling could conflict with the state's administrative scheme; (2) the laws upon which plaintiffs rely are unclear; and (3) the area of child welfare services is one of substantial state concern. This Court is not persuaded by any of defendants' arguments. As an initial matter, plaintiffs neither ask the Court to make individualized findings of fact on plaintiffs' allegations nor to interfere with or alter the underlying policies of ACS. Rather, plaintiffs ask this Court to fashion relief to ensure agency compliance with an existing administrative and statutory scheme. Further, it is not at all apparent that the laws upon which plaintiffs rely are unclear. Rather, this Court is competent to determine whether ACS has complied with the state constitutional 688*688 provisions, statutes, and regulations governing the child welfare system.
The most compelling of defendants' arguments, that the area of child welfare is of substantial state concern, likewise is without merit. The Burford abstention doctrine is intended "to preserve federal-state comity by not interfering with state attempts to develop, effect and/or enforce state policy." Canaday, 608 F.Supp. at 1468-69. Although any ruling of this Court would undoubtedly have an effect on state affairs, plaintiffs do not ask this Court to rule on policy matters but, as noted above, to determine defendants' compliance with established state law. There is, therefore, nothing to suggest that the decision of this Court to adjudicate plaintiffs' state law claims would be "inimical to harmonious federalism." Smith, 629 F.2d at 759.
b. Younger Abstention
State defendants ask this Court to abstain from adjudicating plaintiffs' claims pursuant to the doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Originally a bar to federal interference in state criminal proceedings, the Supreme Court has expanded Younger's application to civil proceedings and has interpreted Younger to counsel federal courts "to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 237, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1984); see also Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). Accordingly, Younger abstention "is warranted when there is an ongoing state proceeding involving an important state interest that provides the federal plaintiff with an adequate opportunity for judicial review of its federal ... claims." Temple of Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 182 (2d Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991). This doctrine is premised on the notions of comity and separation of powers to which Justice Black has given the name "Our Federalism." Younger, 401 U.S. at 44-45, 91 S.Ct. at 750-751.
Courts deciding whether to abstain pursuant to Younger must consider whether (1) there is an ongoing state judicial proceeding; (2) those proceedings implicate important state interests; and (3) there exists an adequate opportunity in state proceedings to raise federal

claims. See Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1983). The existence of an ongoing state court proceeding is crucial to this inquiry. The Supreme Court has explicitly stated that "we have never applied the notions of comity so crucial to Younger's `Our Federalism' when no state proceeding was pending...." Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 2216, 119 L.Ed.2d 468 (1992). Further, the court held that "[a]bsent any pending proceeding in state tribunals ... application by the lower courts of Younger abstention was clearly erroneous." Id. Indeed, plaintiffs in child welfare cases where courts have abstained under Younger have all been enmeshed in state court proceedings and have attempted to use the federal courts to attack collaterally state court rulings. See, e.g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Thomas v. Beth Israel Hospital, Inc., 710 F.Supp. 935, 943 (S.D.N.Y.1989); Donkor v. City of New York Human Resources Admin. Special Servs. for Children, 673 F.Supp. 1221, 1224-25 (S.D.N.Y.1987). Notably, several courts have explicitly rejected Younger abstention in cases involving child welfare systems. See, e.g., LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1323 (D.C.Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994), appeal after remand, 69 F.3d 556 (D.C.Cir.1995), judgment vacated and rehearing en banc granted, 74 F.3d 303 (D.C.Cir.1996); Baby Neal v. Casey, 821 F.Supp. 320, 332 (E.D.Pa.1993); Wilder v. Bernstein, 645 F.Supp. 1292, 1339 n. 37 (S.D.N.Y.1986), aff'd, 848 F.2d 1338 (2d Cir.1988).
State defendants do not refer this Court to any pending state proceeding in 689*689 which plaintiffs will have the opportunity to present the federal claims raised in the instant complaint. Rather, defendants summarily argue for abstention on the grounds that
since New York's statutory scheme under the Family Court Act embodies the mandates of [the Adoption Assistance Act] and CAPTA, etc., the issues of compliance by the State with those statutes are cognizable in New York's Family Court. By definition, every child who is subject to New York's child protective system is also subject to a Family Court action in which the claims raised here can be litigated.
State Defendants' Reply Memorandum of Law in Support of Motion to Dismiss the Complaint at 8. Because none of the plaintiffs in the instant case are improperly challenging a state court proceeding through the federal courts, the Younger abstention doctrine is inapplicable to the instant case.
II. Motion for Class Certification
Plaintiffs have moved pursuant to Rule 23, Fed.R.Civ.P., for an order certifying this action as a class action. Plaintiffs define the class as:
[a]ll children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA.
Plaintiffs' Notice of Motion for Class Certification at 1. To be eligible for class certification, plaintiffs first must show that the proposed class satisfies all four requirements of Rule 23(a). See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993); In re Drexel Burnham

Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir.1992), cert. dismissed, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993). Once this has been done, plaintiffs must show that the putative class falls into one of the categories of maintainable actions under Rule 23(b). See Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994); Jane B. ex rel. Martin v. New York City Dep't of Social Servs., 117 F.R.D. 64, 71 (S.D.N.Y. 1987). Plaintiffs in the instant case seek certification pursuant to Rule 23(b)(2).
A. Rule 23(a)
Rule 23(a) provides for class certification only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). Plaintiffs argue that they easily meet all four prerequisites of the rule. Defendants, however, challenge the issues raised by the proposed class as lacking commonality and the claims of the representative parties as lacking typicality. Additionally, defendants argue that the class as defined is overbroad and unmanageable.
(1) Numerosity
The proposed class is undeniably large and defendants do not challenge certification on the grounds that the class fails to meet the numerosity requirement of Rule 23(a)(1). To the contrary, City defendants urge this Court to deny the motion for certification because "[n]o case yet reported has even attempted to deal with a class of this size in a system of this size and complexity." City Defendants' Memorandum of Law Opposing Class Certification at 6 [hereinafter "City Defs.' Mem. in Opp'n"]. Despite the potential problems raised by a class of this size, the relevant inquiry for certification purposes, however, is whether the class is "so numerous that joinder of all members is impracticable." Fed. R.Civ.P. 23(a)(1).
Plaintiffs need not establish the exact number of potential class members as the courts are empowered to "make `common sense assumptions' to support a finding of numerosity." German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 552 (S.D.N.Y.1995) (citation omitted). As proposed, the class includes the approximately 43,000 children in ACS custody as well as thousands who are not in custody but are at risk of abuse and neglect and whose status is 690*690 or should be known to ACS. Indeed, if certified, this class would number well over 100,000 children. A class of this size easily satisfies Rule 23(a)(1). See Robidoux v. Celani, 987 F.2d 931, 935-36 (2d Cir.1993); Trautz v. Weisman, 846 F.Supp. 1160, 1166 (S.D.N.Y.1994); Kendrick v. Sullivan, 784 F.Supp. 94, 104-06 (S.D.N.Y.1992).
Defendants' argument that the class is so broad as to be unmanageable is without merit. Plaintiffs cite several cases in the child welfare context where courts have certified classes similar to the one proposed in the instant case. See, e.g., Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir.1994); Angela R. ex rel. Hesselbein v. Clinton, 999 F.2d 320, 322 (8th Cir.1993); Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1288

(E.D.Wis.1995); David C. ex rel. Brown v. Leavitt, 1993 WL 764518, at *1 (D.Utah May 7, 1993); LaShawn A. v. Dixon, 762 F.Supp. 959, 994 n. 28 (D.D.C.1991), aff'd on other grounds, 990 F.2d 1319 (D.C.Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994), appeal after remand, 69 F.3d 556 (D.C.Cir.1995), judgment vacated and rehearing en banc granted, 74 F.3d 303 (D.C.Cir.1996); Aristotle P. v. Johnson, 1989 WL 121210, at *2 n. 1 (N.D.Ill. Oct. 3, 1989). Indeed, as plaintiffs note, the size of the proposed class is largely irrelevant except as it pertains to the numerosity requirement of Rule 23(a)(1) which defendants concede clearly is satisfied in this case.
(2) Commonality
The parties' first significant point of contention is whether the proposed class meets the commonality requirement of Rule 23(a)(2). That requirement is satisfied if "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). Defendants argue that the only common thread linking plaintiffs' claims is that they all challenge the practices of one City agency, ACS. Other than that, defendants suggest that plaintiffs are a disparate group which has filed too many claims alleging too many legal violations based on too many factual circumstances to be combined into one lawsuit.
Rule 23(a)(2) "will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994); see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988). Indeed, a single common question may be sufficient to satisfy this rule. See Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y.1992). Plaintiffs identify their common question of law as whether each child has a legal entitlement to the services of which that child is being deprived. Further, plaintiffs identify their common question of fact as whether defendants systematically have failed to provide these legally mandated services. The Court is satisfied that these questions are common to the entire class despite any differences in the individual situations of each named plaintiff.
Once a common question is identified, "differences among the questions raised by individual members [of the class] will not defeat commonality." German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 553 (S.D.N.Y.1995). Factual differences in the individual claims, therefore, are not fatal. See Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176 (1979); Maywalt v. Parker & Parsley Petroleum Co., 147 F.R.D. 51, 55 (S.D.N.Y.1993); Bishop v. New York City Dep't of Hous. Preservation & Dev., 141 F.R.D. 229, 238 (S.D.N.Y.1992). As one court has noted, "(b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant's conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct." Baby Neal, 43 F.3d at 57. The unique circumstances of each child do not compromise the common question of whether, as plaintiffs allege, defendants have injured all class members by failing to meet their federal and state law obligations. Indeed, as plaintiffs argue, the actions or inactions of defendants are not isolated or discrete instances but, rather, form a pattern of behavior that 691*691 commonly affects all of the proposed class members.

Further, Rule 23(a)(2) does not require that plaintiffs all suffer the same actual injury. Rather, plaintiffs can establish commonality by "demonstrating that all class members are subject to the same harm...." Id. at 56 (emphasis added). Here, plaintiffs allege systemic violations of federal and state law resulting in the deprivation of services to which they claim they are entitled. Each member of the proposed class, regardless of that child's current circumstance, is at risk of suffering the harm of which the named plaintiffs complain.
Finally, that the relief sought is injunctive in nature further supports a finding of commonality in satisfaction of Rule 23(a)(2). Indeed, "injunctive actions `by their very nature often present common questions satisfying Rule 23(a)(2).'" Id. at 57 (quoting 7A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1763, at 201 (1986)). Plaintiffs do not ask this Court to make individualized damage awards based on the distinct claims of each plaintiff but rather ask for declaratory and injunctive relief applicable to the class as a whole. For the foregoing reasons, the Court finds that plaintiffs have satisfied Rule 23(a)(2) for purposes of class certification.
(3) Typicality
Closely related to the commonality requirement of Rule 23(a)(2) is the typicality requirement of Rule 23(a)(3). This prerequisite to class certification poses the second significant point of contention between the parties and demands a showing that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Rule 23(a)(3) functions to ensure that "the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994). City defendants argue, however, that "[a] plaintiff claiming injury from one type of alleged violation can not [sic] thereby be typical of a class that may be injured by some other type of violation." City Defs.' Mem. in Opp'n at 14.
A proposed class satisfies Rule 23(a)(3) if "each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir.1993). The rule is satisfied, therefore, if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members. See Baby Neal, 43 F.3d at 58. Indeed, "[t]here is no requirement that the factual basis for the claims of all members of a purported class be identical." Wilder v. Bernstein, 499 F.Supp. 980, 992 (S.D.N.Y. 1980); see also Robidoux, 987 F.2d at 936-37.
In the instant case, the central claim of the named plaintiffs is that defendants have engaged in and continue to engage in a course of conduct which deprives plaintiffs of services to which they are entitled and thus violates their constitutional and statutory rights. This claim certainly is typical of that of the proposed class members who likewise are challenging defendants' practices. Where, as here, an action challenges a pattern of activity, the named plaintiffs can represent class members who suffer different injury "so long as all the injuries are shown to result from the practice." Baby Neal, 43 F.3d at 58.
Additionally, the nature of the relief sought favors a finding that the claims of the named plaintiffs are typical of the class. This Court is empowered to certify a class despite the

unique circumstances of each plaintiff as long as the relief sought is based on the same legal theory. See Jane B. ex rel. Martin v. New York City Dep't of Social Servs., 117 F.R.D. 64, 70 (S.D.N.Y.1987). Indeed, that plaintiffs ask this Court for declaratory and injunctive relief for the class as a whole provides ample basis for a finding that the claims of the named plaintiffs are typical of those of the proposed class in satisfaction of Rule 23(a)(3).
692*692 (4) Representativeness
The Second Circuit has held that plaintiffs must satisfy a two-pronged test to meet Rule 23(a)(4)'s requirement that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). First, the Court must determine whether class counsel is qualified, experienced, and generally able to conduct the litigation. See In re Drexel Burnham Lambert Group, 960 F.2d 285, 291 (2d Cir. 1992), cert. dismissed, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993). Next, the Court must establish that the proposed class members do not have interests antagonistic to one another. See id. Because defendants do not challenge the adequacy of counsel, the Court will address only the second element.
Defendants take a narrow view of the potential for conflict and suggest that, because the actual relief sought by individual class members may contradict that sought by other class members, the named plaintiffs cannot fairly represent the class. For example, defendants suggest that relief sought by children who look to remain with their families may run directly counter to relief sought by children who need to be removed from their homes. Additionally, defendants argue that different categories of plaintiffs may be in competition for the finances needed to provide them with relief. Both of these arguments are without merit.
The Court is inclined to take a much broader view of the relief sought in the instant case. Plaintiffs, whether they need to be reunited with their biological families or removed from them, all seek declaratory and injunctive relief which would require defendants to comply with federal and state law. Plaintiffs do not ask this Court to adjudicate individual claims or to establish policies with respect to any particular situation. Rather, plaintiffs allege systemic failures which, if remedied, would result in defendants providing plaintiffs with services appropriate to their individual situations and regardless of outcome. The Court fails to see how institutional reform such as this raises potential conflicts among class members such that certification should be denied.
B. Rule 23(b)(2)
The prerequisites of Rule 23(a) having been satisfied, plaintiffs now must show that the proposed class falls into one of the three categories of maintainable actions under Rule 23(b). To that end, plaintiffs rely on Rule 23(b)(2) which provides for certification if:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole....
Fed.R.Civ.P. 23(b)(2).

Rule 23(b)(2) is designed to assist and is most commonly relied upon by litigants seeking institutional reform in the form of injunctive relief. See Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58-59 (3d Cir.1994); 1 H. Newberg, Newberg on Class Actions § 4.11, at 291 (2d ed. 1985). Several courts, including this one, have certified classes under Rule 23(b)(2) where, as here, the relief sought is injunctive and would benefit all class members. See, e.g., Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994); Jane B. ex rel. Martin v. New York City Dep't of Social Servs., 117 F.R.D. 64, 71 (S.D.N.Y. 1987); Wilder v. Bernstein, 499 F.Supp. 980, 994 (S.D.N.Y.1980). In fact, one court has gone so far as to suggest that Rule 23(b)(2) "is almost automatically satisfied in actions primarily seeking injunctive relief." Baby Neal, 43 F.3d at 58 (discussing Weiss v. York Hospital, 745 F.2d 786, 811 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985)).
The instant case poses exactly the situation contemplated by Rule 23(b)(2). An order requiring defendants to comply with federal and state law in order to remedy the systemic failures that are the source of plaintiffs' claims constitutes relief that would serve the entire putative class. Certification of the proposed class, therefore, is both necessary and appropriate given the nature of the allegations and of the relief sought. Because plaintiffs have met all four prerequisites of Rule 23(a) and have set forth an action maintainable 693*693 pursuant to Rule 23(b)(2), their motion to certify the class is hereby granted and the class is defined as:
[a]ll children who are or will be in the custody of the New York City Administration for Children's Services ("ACS"), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS.
III. Motion for Bifurcation
City defendants move for an order of this Court bifurcating this action into two phases for purposes of discovery and trial. Defendants ask the Court to conduct a Phase One trial "to determine whether or not any individual plaintiff can actually prove any violation of his or her legal rights by an employee of the institutional defendants." Affirmation of Grace Goodman in Support of Defendants' Motion to Bifurcate this Action and Stay Classwide Discovery Until Phase II at 2 [hereinafter "Goodman Affirmation"]. Defendants further ask the Court to conduct a Phase Two trial once certain violations are proven "to determine ... whether they are a result of a widespread policy or practice of defendants, such that the institutional defendants could be liable under federal law and such that system-wide injunctive relief could be appropriate." Goodman Affirmation at 2.
This Court is authorized to bifurcate a trial pursuant to Rule 42(b), Fed. R.Civ.P., which provides, in pertinent part:
[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim ... or of any separate issue or of any number of claims....
Fed.R.Civ.P. 42(b). Bifurcation, however, is a procedural device to be employed only in exceptional circumstances. See Sunenblick v. Harrell, 145 F.R.D. 314, 317 (S.D.N.Y. 1993). Indeed, bifurcation is only appropriate either where (1) separate trials would promote judicial

economy and convenience or (2) a single trial would prejudice the interests of a party. See Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); Buscemi v. Pepsico, Inc., 736 F.Supp. 1267, 1271-72 (S.D.N.Y.1990). Defendants suggest that bifurcation would promote judicial economy and convenience.
In the instant opinion, this action has been certified as a class action pursuant to Rule 23, Fed.R.Civ.P., and will proceed on that basis. To bifurcate this matter in the manner proposed by defendants would undermine the class action status afforded plaintiffs by this Court. Additionally, this Court is not convinced that judicial economy would be served by a trial in two phases where, undoubtedly, there would be significant overlap in the evidence presented and, consequently, delay in reaching the merits of the classwide claims. Finally, where in a class action context the only remedy sought is broad declaratory and injunctive relief applicable to the class as a whole, defendants' claims of potential prejudice are unfounded. City defendants' motion to bifurcate this action is, therefore, denied.
CONCLUSION
For the foregoing reasons, defendants' motions to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., are denied to the extent that (1) custodial plaintiffs may pursue their substantive due process claims based on alleged violations of their right to be free from harm and all plaintiffs may pursue their procedural due process claims based on alleged violations of various provisions of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law; (2) plaintiffs may pursue their federal statutory claims based on the Adoption Assistance and Child Welfare Act, including the provision herein referred to as the Multiethnic Placement Act, the Child Abuse Prevention and Treatment Act, the Americans with Disabilities Act, and the Rehabilitation Act; and (3) plaintiffs may pursue their state law claims. Further, plaintiffs' motion for class certification pursuant to Rule 23, Fed.R.Civ.P., is granted. Finally, City defendants' motion to bifurcate this action is denied.
Settle order on notice.
[1] On February 12, 1996, Mayor Giuliani removed CWA from the Human Resources Administration ("HRA") bureaucracy and, in its place, established ACS as an independent agency. Pursuant to an order signed by this Court on March 11, 1996, Nicholas Scoppetta, the newly-appointed ACS Commissioner, was substituted as a defendant for Kathryn Croft, formerly the Executive Deputy Commissioner of CWA. Further, all references either to CWA or ACS were deemed to refer to CWA up to and including February 11, 1996 and to ACS on February 12, 1996 and thereafter. This Court will refer, therefore, to ACS unless describing events which took place prior to that date.
[2] The parties disagree as to whether the claims represented by Lawrence B. survive his death for purposes of class certification. Counsel for City defendants summarily asserts that "all claims for injunctive relief asserted by `Lawrence B' are mooted, including his claim to act as a representative plaintiff for a class of persons asserting claims under the Rehabilitation Act and/or the Americans With Disabilities Act." Affirmation to Suggest on the Record the Death of a Plaintiff at 2. Counsel further argues that "it seems fruitless to speculate as to the survival of the claim in the absence of a substituted plaintiff." Letter to the Court from Grace Goodman dated April 5, 1996. The Court is not persuaded by these unsupported and conclusory allegations.
Generally, a court cannot certify a class action unless there exists a named plaintiff with a live controversy both at the time the complaint is filed and at the time the class is certified. Swan v. Stoneman, 635 F.2d 97, 102 n. 6 (2d

Cir.1980). The Supreme Court has recognized, however, that the doctrine of class certification is flexible and has noted that
[t]here may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to "relate back" to the filing of the complaint may depend upon the circumstances of the particular case....
Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 559 n. 11, 42 L.Ed.2d 532 (1975). The Second Circuit has affirmed this principle noting that there may be exceptions to the general rule requiring a live controversy at the time that the class is certified. See Swan, 635 F.2d at 102 n. 6; see also Comer v. Cisneros, 37 F.3d 775, 797 (2d Cir.1994); White v. Mathews, 559 F.2d 852, 857 (2d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Indeed, this Court has certified a class and applied the "relation back" doctrine where a named plaintiff's claim was mooted after the filing of a motion for class certification but prior to the resolution of that motion. See Kendrick v. Sullivan, 784 F.Supp. 94, 104 n. 5 (S.D.N.Y.1992).
Here, Lawrence B. died after the filing of the complaint and instant motions but several weeks prior to oral argument on those motions. It was, therefore, impossible for this Court to have adjudicated the class certification motion while Lawrence was alive. Nevertheless, the Court is persuaded that Lawrence's claims survive his death and that substitution of a new class representative is unnecessary.
[3] Plaintiffs purport to divide their federal constitutional claims into four categories: "(1) the right to protection from harm while in foster care; (2) the right to conditions and duration of foster care consistent with the purpose of their custody; (3) the right not to be deprived of entitlements created by New York State law without due process; and (4) the right to associate with their biological family members." Plaintiffs' Memorandum of Law in Opposition to Defendants' Partial Motions to Dismiss at 12 [hereinafter "Pls.' Mem. in Opp'n"]. Plaintiffs' brief, however, fails to conform to this outline. Indeed, the contours of plaintiffs' substantive due process claims are vague at best.
After careful consideration, however, this Court concludes that plaintiffs are in fact arguing that they were harmed impermissibly by, among other things, defendants' alleged failure to provide appropriate foster care placements and their failure to preserve plaintiffs' right to family integrity. This Court is of the opinion that the asserted right to be free from harm encompasses the asserted rights to appropriate conditions and duration of placements and to associate with biological family members, and will address those alleged constitutional violations within the broader context of plaintiffs' right to freedom from harm.
[4] Indeed, City defendants concede that "remaining portions of the First Cause of Action, which allege violations of the Fourteenth Amendment's substantive due process right to freedom from harm while in government custody, are adequately pled as to at least some plaintiffs and are not the subject of this motion." City Defendants' Memorandum of Law at 5 n. 2.
[5] The provision reads: "The department shall on its own initiative provide, within the limits of the appropriations made therefor, such medical service for children with physical disabilities as in the judgment of the commissioner is needed." Public Health Law § 2582(1).
[6] Specifically, plaintiffs allege violations of 42 U.S.C. §§ 622(b)(9), 627(a)(2)(A), 627(a)(2)(C), and 627(b)(3).
[7] Specifically, plaintiffs allege violations of 42 U.S.C. §§ 671(a)(10) and 671(a)(16).
[8] It is undisputed that the Amendment reaffirms the Supreme Court's decision in Suter that no private right exists to enforce § 671(a)(15) and plaintiffs do not allege violations of that provision.

 
 Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

185 F.R.D. 152 United States District Court, S.D. New York.
MARISOL A., by her next friends, Rev. Dr. James Alexander FORBES, Jr., and Raymunda Cruz; Lawrence B., by his next friend, Dr. Vincent Bonagura; Thomas C., by his next friend, Dr. Margaret T. McHugh; Shauna D., by her next friend, Nedda De Castro; Ozzie E., by his next
friends, Jill Chaifetz and Kim Hawkins; Darren F. and David F., by their next friends, Juan A.
Figueroa and Rev. Marvin J. Owens; Bill G. and Victoria G., by their next friend, Sister Dolores
Gartanutti; Brandon H., by his next friend, Thomas J. Moloney; and Steven I., by his next friend, Kevin Ryan, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
and Danielle J., by her next friend, Angela Lloyd; and Richard and Walter S., by their next friends, W.N. and N.N., on behalf of themselves and all others
similarly situated, Intervening Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York; Jason Turner, Administrator of the Human Resources Administration and Commission of the Department of Social Services of the City of New York; Nicholas Scoppetta, Commissioner of the
New York City Administration for Children’s Services; George E. Pataki, Governor of the State of New York; and John Johnson, Commissioner of the New York State Office of Children and Family
Services, Defendants. and
Shirley Wilder; Thomas Edwards; Sharon Rodwell; Barry Parker, by his mother and next friend,
Madeline Butler; Robin Herbert, by her mother and next friend Nancy Herbert; Shedrick Roberts,
by his mother and next friend Annie Roberts; Christopher Torian, by his mother and next friend Lillian Torian, on their own behalf and on behalf of all others similarly situated; Dr. Kenneth Clark;
Rev. Howard Moody; Dr. Richard Cloward; and Mildrid Davis, Plaintiffs, and
Blanche Bernstein, individually and as Administrator of the New York City Human Resources Administration; The New York City Department of Social Services; Beverly Sanders, individually and as Administrator of Special Services for Children; Carol Parry; Elizabeth Beine; Linda Marino, individually and as Director of the Office of Allocations and Accountability of Special Services for Children; Harrison Golden as Comptroller of the City of New York; Lester Kaufman, individually and as Executive Director

of Ohel Children Home, Defendants. Abbott House, Berkshire Farm Center & Services
for Children, Brooklyn Home for Children, Brookwood Child Care, Episcopal Mission Society,
Green Chimneys Children’s Service, Heartsease Home, Inc., Inwood House, Lakeside School, Louise Wise Services, Lutheran Community Services, Puerto Rican Family Association, St.
Christopher–Jennie Clarkson Child Care Services, Sheltering Arms Children’s Service, Society for Seaman’s Children, Spence–Chapin Services to Children, Talbot Perkins Children Services, The
Children’s Aid Society, and The Children’s Village, Intervenors.
Nos. 95 Civ. 10533 RJW, 78 Civ. 957 RJW. | March 31, 1999.
Attorneys and Law Firms
*154 Children’s Rights, Inc., New York City, Marcia Robinson Lowry, Susan Lambiase, of counsel, Lawyers For Children, New York City, Karen Freedman, of counsel, Cahill Gordon & Reindel, New York City, Thomas F. Curnin, of counsel, Schulte Roth & Zabel, New York City, David M. Brodsky, of counsel, for plaintiffs.
Michael D. Hess, Corporation Counsel of the City of New York, New York City, Gail Rubin, John Woods, Grace Goodman, of counsel, for city defendants.
Eliot Spitzer, Attorney General of the State of New York, New York City, Judith T. Kramer, Steven M. Connolly, William H. Bristow, III, of counsel, for state defendants.
Opinion
OPINION
WARD, District Judge.
On December 1, 1998, defendants Rudolph Giuliani, Mayor of the City of New York, Jason Turner, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York, and Nicholas Scoppetta, Commissioner of the New York City Administration *155 for Children’s Services (“City defendants”) and the plaintiff class in Marisol A. v. Giuliani (“Marisol plaintiffs” or “plaintiffs”) entered into a settlement agreement (“Marisol City Settlement Agreement” or “City Settlement Agreement”). That same date, defendants George E. Pataki, Governor of the State of
1

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
New York and John Johnson, Commissioner of the New York State Office of Children and Family Services (“State defendants”) and the Marisol plaintiffs entered into a settlement agreement (“Marisol State Settlement Agreement” or “State Settlement Agreement” and the agreements are collectively referred to as “Settlement Agreements”). The parties move to have these Settlement Agreements approved by this Court and for the entry of an order dismissing the claims in Marisol. Further, City defendants and plaintiffs in the Wilder v. Bernstein class action (“Wilder plaintiffs”) move for the dismissal of the Wilder class action. Pursuant to Federal Rule of Civil Procedure 23(e), the Court approves the Settlement Agreements, dismisses the claims raised in Marisol and dismisses Wilder.
BACKGROUND
I. HISTORY OF WILDER AND MARISOL LITIGATION Since the 1970s, this Court has presided over litigation concerning the New York City foster care system. In June 1973, Wilder v. Sugarman, 73 Civ. 2644(HRT), was filed in the Southern District of New York. Six named children brought a class action against various child care agencies, and City and State agencies and officials responsible for the care of New York City foster children. Plaintiffs asserted that the statutory scheme for the provision of child-care services, and the manner in which those services were provided, violated the first, eighth and fourteenth amendments, and resulted in racial and religious discrimination in the access to these services.
In March 1978, a new action, Parker v. Bernstein, 78 Civ. 957(RJW), was filed which raised similar challenges to the religiously based New York City child care system. This Court, in a June 2, 1978 Order, dismissed Wilder v. Sugarman without prejudice. Subsequently, Parker v. Bernstein was amended and renamed Wilder v. Bernstein. See Wilder v. Bernstein, 499 F.Supp. 980, 986–87, n. 4 (S.D.N.Y.1980). A class was certified in 1980 and defined as: “all those New York City children who are black, and who are Protestant, of other non-Catholic or non-Jewish faiths, or are of no religion, and are in need of child-care services outside their home.” Wilder v. Bernstein, 499 F.Supp. at 994.
Before trial was to begin in August 1983, the Wilder plaintiffs and City defendants entered into settlement negotiations. In April 1984, an initial draft of a Stipulation of Settlement was presented to this Court for approval. At that time, the Court heard objections from nineteen contract child care agencies, and in June 1984 permitted them to intervene (“Wilder Intervenors” or

“Intervenors”). The Intervenors objected to the initial draft Stipulation of Settlement’s focus on discrimination rather than on the best interests of all children in foster care. The Intervenors’ concerns were addressed on the record during further settlement negotiations and the Stipulation of Settlement was amended.

On October 8, 1986, the Stipulation of Settlement as amended was approved by this Court (“Stipulation of Settlement”).1 Wilder v. Bernstein, 645 F.Supp. 1292 (S.D.N.Y.1986). A final judgment was entered on April 29, 1987 approving the Stipulation of Settlement. Subsequently, a number of foster care agencies which had been dismissed as defendants appealed the judgment. In June 1988, the Second Circuit affirmed this Court’s approval of the Stipulation of Settlement. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir.1988).

1

The Stipulation of Settlement dismissed the State

defendants from the action.

Under the terms of the Stipulation of Settlement, the City was required to place children in foster care in a nondiscriminatory manner, as to race and religion. The foster children were to be placed on a “first-come, first-served basis” in the best available program. Further, the children were to be evaluated *156 “in accordance with good social work practice, to determine (1) the specific service needs of the child and (2) the level of care, and the specific type of program required by the child.” The Stipulation of Settlement provided that these evaluations be conducted prior to placement and in the case of pre-evaluation placements, no longer than 30 days after placement. To determine the best available program, the Stipulation of Settlement required that the City hire a consultant to categorize and rate the quality of foster care programs.
The Stipulation of Settlement also included provisions regarding vacancies, waiting lists, and therapeutic objections to regulate the placement of children. To monitor compliance with the terms of the Stipulation of Settlement, the Stipulation provided for a three-member settlement panel (“Wilder Settlement Panel”) and support staff.2

2

The Court has issued additional decisions concerning

Wilder v. Bernstein. In 1994, the Court interpreted the

Stipulation of Settlement to apply to kinship foster

children. Wilder v. Bernstein, 153 F.R.D. 524

(S.D.N.Y.1994), appeal dismissed 49 F.3d 69 (2d

Cir.1995). In 1998, the Court issued a Memorandum

Decision holding that the Stipulation of Settlement had

not terminated. Memorandum Decision of Hon. Robert

J. Ward dated July 1, 1998. An appeal of that decision

is pending.

2

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
On December 3, 1995, while post-judgment enforcement continued in Wilder, eleven named plaintiffs brought the Marisol action against City and State officials responsible for administering and monitoring New York City’s Child Welfare Administration (“CWA”), now the Administration for Children’s Services (“ACS”), claiming that the defendants’ actions or inactions deprived plaintiffs of their rights under a diverse array of federal and state laws, including the First, Ninth, and Fourteenth Amendments to the United States Constitution; Article XVII of the New York State Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620–628, 670–679a; the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101–5106a; the Early and Periodic Screening, Diagnosis and Treatment program of the Medicaid Act, 42 U.S.C. §§ 1396a, 1396d(a) & (r); the Multiethnic Placement Act of 1994, 42 U.S.C. § 622(b)(9); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a; the New York State Social Services Law Articles 2, 3, 6 & 7; the New York State Family Court Act, Articles 6 & 10; and various state regulations, 18 N.Y.C.R.R. §§ 400–484.
The Complaint in Marisol alleges a wide range of abuses suffered by the eleven children who sought to represent the plaintiff class. The factual allegations of the Complaint also identify systemic problems of the child welfare system in the City of New York. In an Opinion dated June 18, 1996, this Court granted class certification under Rule 23(b)(2), defining the plaintiff class as:
[a]ll children who are or will be in the custody of the New York City Administration for Children’s Services (“ACS”), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS.
929 F.Supp. 662, 693–94.
The Court granted City and State defendants’ application, pursuant to 28 U.S.C. § 1292(b), for an interlocutory appeal from the Court’s Opinion certifying the Marisol plaintiff class dated March 1, 1996. See Memorandum and Order of Hon. Robert J. Ward dated July 26, 1996 (granting City defendants’ application for interlocutory appeal); Stipulation and Order of Hon. Robert J. Ward dated August 7, 1996 (ruling that State defendants are deemed to have joined City defendants’ application for interlocutory appeal); Memorandum and Order of Hon. Robert J. Ward dated August 12, 1996 (granting City and

State defendants’ application for interlocutory appeal as petitioners allowed original appeal period of ten days to lapse) Marisol A. v. Giuliani, 104 F.3d 524 (2d Cir.1996) (holding that District Court had the power to recertify order to enable appellant to file timely petition for leave to appeal), cert. denied 520 U.S. 1211, 117 S.Ct. 1694, 137 L.Ed.2d 821 (1997). On September 26, 1997, the Court of Appeals for the Second Circuit affirmed this Court’s certification of *157 the plaintiff class. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir.1997).
In addition, the Second Circuit stated that “[w]ell in advance of trial, the district court must engage in a rigorous analysis of the plaintiffs’ legal claims and factual circumstances in order to ensure that appropriate subclasses are identified, that each subclass is tied to one or more suitable representatives, and that each subclass satisfies Rule 23(b)(2).” Id. at 378–79. Following the direction of the Second Circuit, this Court certified the following subclasses:
Subclass One
Children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment.
Subclass Two
Children in families in which there is an open indicated report of abuse or neglect.
Subclass Three
Children in the custody of the Administration for Children’s Services.
Marisol A. v. Giuliani, 1998 WL 199927, *10 (S.D.N.Y.1998) (Memorandum Decision and Order of Hon. Robert J. Ward dated April 23, 1998). The Court identified the deficiencies, legal claims, and named plaintiffs associated with each subclass. Id. Then, in May 1998, this Court granted intervention to three additional named plaintiffs and identified the subclasses they represented and the legal claims which they asserted. Marisol A. v. Giuliani, 1998 WL 265123 (Memorandum Decision of Hon. Robert J. Ward dated May 22, 1998). The Court also added and substituted next friends for certain of the named plaintiffs. Id.
II. MARISOL SETTLEMENT AGREEMENTS After more than two years of intensive discovery and on the eve of the July 27, 1998 trial date set by this Court in its Fourth Amended Scheduling Order dated June 1, 1998, the parties informed the Court that they were engaged in settlement negotiations. The trial date was postponed and the parties conducted negotiations for over four months.
3

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
On December 2, 1998 two settlement agreements were filed with the Court: the City Settlement Agreement signed by plaintiffs and City defendants and the State Settlement Agreement signed by plaintiffs and State defendants.
A. Summary of Marisol City Settlement Agreement The City Settlement Agreement establishes an Advisory Panel of four experts in the child welfare field who have been selected and approved by plaintiffs and City defendants (“Marisol Advisory Panel” or “Advisory Panel”). The Advisory Panel is composed of the following nationally respected child welfare experts:
1. Douglas W. Nelson, President of the Annie E. Casey Foundation, a private philanthropic organization dedicated to helping build better futures for disadvantaged children within the United States. He has served as the Assistant Secretary of the Department of Health and Human Services in Wisconsin and as head of its Division of Community Services.
2. John B. Mattingly, Senior Program Associate at the Annie E. Casey Foundation and its team leader for child welfare policy. He served for six years as head of the public child welfare agency of Toledo, Ohio.
3. Judith Goodhand, a consultant at the University of North Carolina Graduate School of Social Work. From 1992–98, she served as Executive Director of the Cayuhoga County Department of Children and Family Services in Cleveland, Ohio.
4. Paul Vincent, director of the Child Welfare Policy and Practice Group, a non-profit organization in Montgomery, Alabama that seeks to improve child welfare practices and currently assisting child welfare systems in ten states. From 1988–95, he was Director of Alabama’s Division of Family and Children’s Services, where he was responsible for implementing child welfare reforms as a result of a class action lawsuit. The improved performance of Alabama’s child welfare system *158 earned him the 1994 Award for Excellence in Child Welfare Administration from the National Association of Public Child Welfare Administrators.
ACS has agreed to cooperate fully with the Marisol Advisory Panel and to provide the Advisory Panel with full access to information, documents, and personnel as it requests. The Advisory Panel will study the following areas of ACS’s operations:
1. Maintaining or achieving permanency for children

as discussed in the “Advisory Report on Permanency Issues in the New York City Child Welfare System” which was submitted to plaintiffs and the City on September 4, 1998;
2. Placement and evaluation issues arising out of the legal obligations in Wilder (“Wilder Obligations”);
3. Monitoring and improving the performance of the private agencies that contract with the City to provide child welfare services;
4. The capacity to track front-line practice at ACS as it relates to subject matters 1, 2, and 3, above, so that ACS may better monitor, evaluate, and where necessary, improve the quality of such practice;
5. The system for evaluating and improving the quality, qualifications, and performance at the supervisory level of ACS as it relates to subject matters 1, 2, 3, and 4, above;
The Marisol Advisory Panel, at its discretion, may incorporate into its review of subject matters 1, 2, and 3, above, recommendations regarding other issues that directly affect these areas and may provide informal advice in all other areas. Additionally, the Advisory Panel must review the steps taken by ACS to fulfill the purpose of the Interim Stipulation and Order Concerning Overnights at Pre–Placement which was “so ordered” by this Court on July 17, 1997 and provide advice to ACS in this area.
The Advisory Panel is required to produce an Initial Report in each of the enumerated areas. Following these reports, the Advisory Panel must produce Periodic Reports to determine whether or not ACS is acting in good faith in making efforts toward reform in these areas.

Upon a finding by the Marisol Advisory Panel that ACS is not acting in good faith, plaintiffs may seek judicial relief. Plaintiffs would then be entitled to seek an adjudication that the City has violated the legal rights of the plaintiff class in the area reviewed, under applicable laws identified in the pleadings. In such a proceeding, the findings of the Marisol Advisory Panel are to be considered prima facie evidence that ACS is not acting in good faith. The parties have stipulated to the admissibility of the Advisory Panel’s Initial and Periodic Reports and the testimony of the Advisory Panel members.

The City Settlement Agreement also calls for the dismissal of Wilder and all of its obligations at the time of final approval of the Marisol City Settlement Agreement.3

3

In addition to seeking the dismissal of Wilder upon the

approval of Marisol, the City Settlement Agreement

calls for the suspension of Wilder activities prior to the

4

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
approval of the Settlement Agreement. Upon the signing of the City Settlement Agreement by the parties, plaintiffs and the City agreed to the immediate suspension of most of the Wilder-related activities. The parties also agreed to seek and did seek, by an order to show cause with a proposed temporary restraining order, the Court’s approval for the suspension of court conferences and all activities of the Wilder settlement panel, including any audits or case reviews.
The City Settlement Agreement which expires and terminates on December 15, 2000, contains limitations on the filing of lawsuits through covenants not to sue and release provisions. There are three provisions, falling under the heading of “Covenants Not to Sue,” in the City Settlement Agreement. First, plaintiffs agree not to sue or assign any cause of action in any court for specific performance or enforcement of the City Settlement Agreement during or after the expiration of its terms except as provided for in the Agreement. Second, plaintiffs agree not to sue or bring or assign any cause of action for systemic declaratory, injunctive, or other form of equitable relief against the City based on events occurring prior to the signing of the City Settlement Agreement and *159 based on, arising out of, or relating to claims that were or could have been asserted in the pleadings, except as provided for in the Agreement. Third, plaintiffs agree not to commence any new actions for systemic declaratory, injunctive, or other form of equitable relief based on facts or events which relate to Marisol as described in Plaintiffs’ Statement of Claims to be Tried, set forth in the Pre–Trial Order dated July 16, 1998, and which occur after the signing of the agreement and prior to December 15, 2000. Plaintiffs also agree to defer, until December 16, 2000, any new action for systemic declaratory, injunctive, or other form of equitable relief based on claims raised in the pleadings but which were not raised in Plaintiffs’ Statement of Claims to be Tried and which occur after the signing of this Agreement and prior to December 15, 2000.
Through the release provisions of the City Settlement Agreement, plaintiffs, individually and on behalf of all class members and their successors, release the City, from the beginning of time through the Court’s approval of the Agreement, from equitable claims and actions arising from or in any way relating to any equitable claim which is or could have been stated in the pleadings, other than a claim by an individual plaintiff for equitable relief tailored to the specific circumstances of the individual. Additionally, upon the expiration of the Agreement on December 15, 2000, plaintiffs release the City from any equitable claims or actions which took place from the date of the Court’s approval of the Agreement to December 15, 2000, arising out of or relating to any equitable claim which is or could have been stated against the City in Plaintiffs’ Statement of Claims to be Tried, set forth in the

Pre–Trial Order dated July 16, 1998, other than claims by an individual for equitable relief tailored solely to the specific circumstances of the individual.
These covenants not to sue and releases, however, do not prevent an action at any time by an individual seeking damages or equitable relief tailored to the specific circumstances of the individual’s claims. Further, after December 15, 2000, plaintiffs can bring an action seeking systemic declaratory, injunctive, or other forms of equitable relief based on claims arising after December 15, 2000 and can offer into evidence facts, events, actions, or omissions which may have occurred prior to December 15, 2000.
B. Summary of Marisol State Settlement Agreement Under the State Settlement Agreement, the New York State Office of Children and Family Services (“OCFS”) must establish a Regional Office in New York City to monitor and supervise child welfare services only within New York City (“New York City Regional Office” or “NYCRO”). The Agreement also describes the functions of the Director of the New York City Regional Office and the NYCRC’s staffing requirements.
The State Settlement Agreement requires that OCFS prepare the annual fatality reports for 1997 and 1998 by June 1999 and prepare all subsequent fatality reports in a timely manner. Further, these reports must be discussed with ACS as well as any need for corrective action. NYCRO must also complete individual fatality reports according to a schedule designed by the parties and direct ACS to adopt corrective action when it deems necessary.
The State Central Register (“SCR”), which is the child abuse/neglect hotline, must, among other things: (1) review and evaluate its policies regarding educational neglect; (2) clarify to SCR personnel its domestic violence policies; (3) continue to spot check telephone calls to assure that calls are not screened out inappropriately; (4) continue to make reasonable efforts toward the goal of answering all calls within one minute; and (5) develop and implement an advertising campaign about the hotline.
OCFS, prior to the termination of the State Settlement Agreement, is required to undertake one or more case record reviews of ACS records in the following areas to determine if ACS is complying with applicable laws and reasonable case work practice:
1. child protective services cases;
2. open indicated cases;
3. cases receiving protective supervision in the
5

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
home;
*160 4. cases receiving mandated preventive services;
5. cases of children in placement with a goal to return home;
6. cases of children in placement with a goal of adoption;
7. cases of children in placement with a goal of independent living;
8. cases of children in placement for more than four years; and
9. frequency of visitations to the home and child during investigations and while in custody.
If, after completing its case record review(s), OCFS determines that ACS is in substantial non-compliance with applicable laws, regulations and/or reasonable case work practice, OCFS must direct ACS to take corrective action designed to improve ACS’s performance in the specific areas of non-compliance. Further, the NYCRO must use reasonable efforts to provide technical assistance and exercise its monitoring authority in an appropriate manner.
OCFS must also use reasonable efforts to develop implement a state-wide computer system to collect child welfare information. Upon review of ACS’s training curriculum for Child Protective Services caseworkers and supervisors, OCFS must make recommendations regarding the curriculum, if warranted. NYCRO must continue to audit licensed congregate foster case facilities. The agreement also designates meeting dates for plaintiffs, OCFS, and NYCRO. Further, if plaintiffs determine that the State defendants are in violation of the State Settlement Agreement, prior to taking any action, plaintiffs must provide reasonable notice to counsel for OCFS of the areas of non-compliance, OCFS will respond, and then the parties will meet and make a good faith effort to resolve any differences without seeking judicial relief. If the parties cannot reach agreement, before requesting further judicial remedies to enforce the terms and conditions of the Settlement Agreement in dispute, plaintiffs will seek an order directing compliance with the State Settlement Agreement.
The duration of the State Settlement Agreement varies, with some provisions expiring twenty-one months and some expiring twenty-four months after the entry of an Order of Dismissal by this Court. The State Settlement Agreement also contains a covenant not to sue. Throughout the duration of this Agreement, plaintiffs cannot bring a class action suit against the State for injunctive or declaratory relief based on any cause of

action set forth in the Pre–Trial Order dated July 16, 1998 and cannot bring individual suits alleging system-wide violations arising out of claims based upon new facts or circumstances that occur during the duration of the Settlement Agreement. Further, class-wide or systemic claims arising from new facts or circumstances that occur during the State Settlement Agreement and which relate in any way to any claim raised in the Pre–Trial Order are resolved by the State Settlement Agreement. However, the Agreement does not preclude an individual class member from filing an action on his or her own behalf against State defendants seeking damages and equitable relief to protect the individual’s rights.
C. Court Orders and Proceedings Surrounding the Settlement Agreements During December 1998 and January 1999 the Court signed several orders concerning the Wilder and Marisol cases. On December 4, 1998, this Court issued an Order providing for the dissemination of notice regarding the settlement of Marisol and dismissal of Wilder to the Marisol and Wilder class members. Notice was posted in both English and Spanish in locations most likely to be seen by children. All of the notices were mailed within ten business days of the signing of the Order, thereby reaching facilities more than a month in advance of the fairness hearing. Notice was posted in many locations, including facilities that house foster children, agencies that contract with ACS to provide foster care and/or preventive child welfare services, hospitals, family courts where legal representatives of the children frequent, and a host of facilities where children in the Marisol class are routinely present. The notice summarized the Marisol and Wilder cases and the Settlement Agreements, described how to receive additional *161 information about the cases, and explained how to submit comments and/or objections to the Court and request the opportunity to speak at the hearing regarding the Settlement Agreements. Additionally, in the Order, the Court preliminarily approved the Settlement Agreements, in accordance with the Settlement Agreements and pursuant to Federal Rule of Civil Procedure 23(e).
The Court suspended its July 17, 1997 Order Concerning Overnights at Pre–Placement pending the approval of the Settlement Agreements. Order Suspending the Interim Stipulation and Order Concerning Overnights at Pre–Placement by the Hon. Robert J. Ward dated December 17, 1998. On December 21, 1998 the Court signed an Order Suspending Certain Wilder Activities which stayed most of the Wilder Settlement Panel’s duties pending approval of the Marisol Agreement and the dismissal of Wilder.
In addition to its own review of the Settlement Agreements prior to issuing its Order dated December 4,
6

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

1998, the Court scheduled a fairness hearing for January 22, 1999 to hear the concerns of all persons interested in the Settlement Agreements. The notice to the plaintiff classes of Marisol and Wilder, which was distributed in early December 1998, stated that comments and objections were to be received by the Court no later than 12:00 p.m. on January 15, 1999. The Court received eight comments. Then, on January 22, 1999 the Court held the hearing to determine if the Marisol Settlement Agreements were fair, reasonable, and adequate and whether a motion which was filed on December 30, 1998 to formally dismiss the Wilder case should be granted.
At the hearing on January 22, 1999, first, the parties and some persons identified by the parties as proponents of the Agreements spoke in favor of the Settlement Agreements. The Court then gave all those who had submitted comments or objections regarding the Settlement Agreements the opportunity to speak.4 Five of the eight persons or organizations that commented on the Settlement Agreements were present or represented on January 22, 1999 and heard by the Court. Douglas Nelson, one of the experts chosen to be a member of the Marisol Advisory Panel, then spoke on behalf of the panel in favor of the Marisol City Settlement Agreement. The Court permitted the parties to respond to the comments and allowed an objector who requested to be heard again, that opportunity.

4

Additionally, the Court allowed persons who did not

comply with the objection deadline to speak. Therefore,

the Court heard from all persons with comments and/or

objections who wished to be heard.

During the hearing the Court responded orally to some of the comments of those who spoke. Specifically, the Court granted The Legal Aid Society amicus status in Marisol and requested that the parties in Marisol continue to keep the Archdiocesan child care agencies affiliated with the Roman Catholic Archdiocese of New York abreast of the reports filed by the Marisol Advisory Panel as these agencies had long been recognized as interested parties in Wilder.5 The Court also granted plaintiffs in Joel A. v. Giuliani, 99 Civ. 326, a newly filed action, the right to intervene in the Marisol litigation to interpose objections.6

5

On January 22, 1999, the Court also signed a

Memorandum Decision permitting the intervention in

Marisol of nineteen child care agencies with regard to

the Wilder Obligations. The Court, however, later

vacated this Memorandum Decision as the parties and

these intervenors entered into a Stipulation that

essentially addressed the motion to intervene that was

filed and the remainder of the motion was withdrawn.

See Stipulation and Order dated February 5, 1999.

6

The circumstances surrounding the Joel A. plaintiffs are

discussed more fully, infra Discussion Section IV.A.

At the close of the hearing, after considering all of the written and oral submissions and evaluating the Settlement Agreements, the Court stated that it approved the Settlement Agreements as fair, reasonable, and adequate. The Court also stated that a written opinion would follow.7

7

The parties were directed to settle final judgments on

two days notice.

DISCUSSION
[1] Federal Rule of Civil Procedure 23(e) requires that “[a] class action shall not be *162 dismissed or compromised without the approval of the court....”8 To protect the interests of the class, the Court must closely examine the proposed settlement to determine if it is “fair, adequate and reasonable....” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323 (2d Cir.1990) (quoting Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir.1982)).

8

Federal Rule of Civil Procedure 23(e) also states that

“notice of the proposed dismissal or compromise shall

be given to all members of the class in such manner as

the court directs.” The Court finds that the notice,

discussed supra Background Section II.C., was

adequate and widely disseminated and that the notice

was posted in ample time for interested persons to

comment and attend the fairness hearing.

[2] [3] The Court determines if a settlement is fair, reasonable, and adequate by considering: “(1) the substantive terms of the settlement compared to the likely result of a trial, and (2) the negotiating process, examined in light of the experience of counsel, the vigor with which the case was [litigated], and the coercion or collusion that may have marred the negotiations themselves.” Malchman v. Davis, 706 F.2d 426, 433 (2d Cir.1983) (internal citations omitted). In conducting this analysis, there are nine factors, the Grinnell factors, commonly considered:
(1) the complexity, expense and likely duration of the litigation,
(2) the reaction of the class to the settlement,
(3) the stage of the proceedings and the amount of 7

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
discovery completed,
(4) the risks of establishing liability,
(5) the risks of establishing damages,
(6) the risks of maintaining the class action through the trial,
(7) the ability of the defendants to withstand a greater judgment,
(8) the range of reasonableness of the settlement fund in light of the best possible recovery,
(9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation[.]
County of Suffolk v. Long Island Lighting Co., 907 F.2d at 1323–24 (quoting Robertson v. National Basketball Ass’n, 556 F.2d 682, 684 n. 1 (2d Cir.1977) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974))). The Court will not examine the last three criteria as they are applicable only in actions for damages, and will examine the fifth criteria in light of establishing remedies instead of damages.
I. THE GRINNELL FACTORS ARE MET BY THE CITY AND STATE SETTLEMENT AGREEMENTS [4] The Court finds that the Marisol City and State Settlement Agreements provide substantial relief to the plaintiff class. After reviewing the Agreements, which are summarized above, supra Background Section II., and considering the Grinnell factors established by the Second Circuit for the examination of class action settlements, the Court has determined that these Settlement Agreements are fair, reasonable, and adequate.
A. The Complexity, Expense and Likely Duration of the Litigation As is clear from the procedural history of this case and the many filings by the parties, this is a complex case presenting many difficult and unsettled legal questions. The Complaint asserted numerous federal and state constitutional and statutory violations. These alleged violations do not raise concerns in just one or two areas of ACS’s operations but raise concerns across the spectrum of child welfare issues, from training of the staff to housing of the children to the adequacy of services provided by ACS and its contract agencies. This Court, with over twenty years of involvement with child welfare issues, would not hesitate to say that Marisol and Wilder present some of the most complex issues in the child welfare arena.

All parties involved have already incurred substantial expenses. There has been extensive motion practice in this case, including a motion to dismiss, a motion for class certification, a motion to vacate, a motion to intervene, discovery motions, privilege motions, *163 motions concerning experts, and in limine motions on evidentiary issues. The Court also conducted a contempt hearing regarding the Pre–Placement Center operated by ACS.
The trial would be extremely costly. A trial of at least five months duration was anticipated. Plaintiffs expected 133 witnesses and an additional twelve experts to testify either in person or by deposition. See Revised Identification of Witnesses to be Called on Plaintiffs’ Case–in–Chief Against the City and State Defendants, dated July 22, 1998. City defendants listed hundreds of persons and thirteen experts as potential witnesses. See City Defendants’ Revised Witness List. State defendants planned to call 49 witnesses. See Joint Pre–Trial Order dated July 16, 1998.
Further, the additional expenses associated with litigation would not have ended with the trial. All parties submitted proposed findings of fact to the Court, with plaintiffs submitting over 2,700 pages of proposed findings of fact against the City and State. With so much paperwork and such a long trial, extensive post-trial briefing would also have been necessary. If plaintiffs were ultimately successful, additional time and money would need to be expended for the Court to fashion a remedy. In the event this case had gone to trial, it would have been the longest non-jury case this Court had tried in its 26 years of experience. The expense, complexity, and duration that would have been involved in this case if it were to go to trial weighs in favor of the approval of these Settlement Agreements.
B. The Reaction of the Class to the Settlement The second factor looked at when examining a class action settlement agreement is the reaction of the class. As described above, supra Background Section II.C., adequate notice of the proposed settlement of Marisol and dismissal of Wilder was provided to the class members. The notice was widely disseminated with clear instructions as to how to submit comments to the Court and with an adequate period of time for such comments to be submitted.
Eight comments regarding the Settlement Agreements were received with only three of them raising direct objections to the Agreements. The Court views the small number of comments from a plaintiff class of over 100,000 children as evidence of the Settlement Agreements’ fairness, reasonableness, and adequacy. See Ross v. A.H. Robins Co., Inc., 700 F.Supp. 682, 684
8

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
(S.D.N.Y.1988) (citations omitted) (“the absence of objectants may itself be taken as evidencing the fairness of the settlement”). The Court discusses each of the comments and objections submitted infra Discussion Section IV.

plaintiffs had a strong chance of success at trial with respect to liability, the relief granted by the Settlement Agreements is sufficiently favorable to weigh in favor of approval of the Settlement Agreements. The Court discusses the relief more fully infra Discussion Section I.E.

C. The Stage of the Proceedings and the Amount of Discovery Completed The third factor to consider is the stage of the proceedings and the amount of discovery completed. The Court is satisfied that the parties entered into settlement discussions with ample information as to what a trial would entail. As noted above, the parties were on the eve of trial when they informed the Court that they were involved in serious settlement negotiations. Extensive discovery had been conducted, including over 200 deposition days, over 100,000 pages of documents provided by the City and State, and the exchange of extensive expert reports. Pretrial briefing had been completed and the joint pretrial order, witness lists, and exhibit lists had been filed. All parties had submitted proposed findings of fact to the Court. The action clearly had proceeded sufficiently for counsel to obtain a thorough understanding of the complexity of the issues and the strengths and weaknesses of their claims and defenses. Accordingly, the third of the Grinnell factors weighs in favor of approving the Settlement Agreements.
D. The Risks of Establishing Liability The fourth factor the Court must consider when reviewing these class Settlement Agreements is the risks of establishing liability. By the time the parties entered into serious negotiations, they had had ample time to analyze the facts and the law to determine the risks they faced. This Court has been involved with the Marisol case since its inception in December 1995 and is *164 therefore fully aware of the complexity of the legal issues. With over 2,700 pages of Proposed Findings of Fact submitted by plaintiffs and numerous violations of both federal and state constitutional and statutory laws alleged, this Court cannot even begin to accurately assess the possible outcome of this case. The Court is confident that plaintiffs would present a compelling case, but the Court is likewise confident that the State and City defendants would present factual and legal arguments in this non-jury case sufficient to cause serious deliberation by the Court.
This Court, however, does “not [need to] decide the merits of the case or resolve unsettled legal questions.” Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). Instead, this Court needs to weigh the likelihood of success by the plaintiff class against the relief offered by the Settlement Agreements. Id. The Court finds that even assuming that

E. The Risks of Establishing Damages [Remedies] While the Marisol case sought declaratory and equitable relief, rather than damages, the Court still considers the risks of establishing the sought-after “remedy” in examining whether the Settlement Agreements are fair, reasonable, and adequate. See Wilder v. Bernstein, 645 F.Supp. 1292, 1340 (S.D.N.Y.1986). Even if plaintiffs were to establish liability, it is not clear, nor has any person objecting to the Settlement Agreements suggested, that an alternative remedy would be more appropriate.
The City of New York has been working to reform the child welfare system. For example, since January 1996 the average caseload for child protective workers has decreased significantly, adoptions have increased, and ACS has hired over 1,250 new caseworkers. Therefore, while plaintiffs may have been able to establish liability, the Court may not have been in a position to provide for more relief than simply encouraging continued effort and improvement by ACS.
In addition to declaratory and injunctive relief, plaintiffs sought the remedy of appointing a receiver. The Court, however, does not find it likely that plaintiffs would have been granted such relief. It is more likely that the Court would have determined that no receiver would do a better job than that done by the current Commissioner of ACS, Nicholas Scoppetta. In this regard, the Court finds the Settlement Agreements more favorable to the plaintiff class than any relief that the Court would have unilaterally ordered. Under the City and State Agreements, an Advisory Panel with access to all of the records of ACS has been created, and a State office been established with the sole purpose of monitoring the child welfare system in New York City.
This Court finds that the City and State Settlement Agreements touch on almost all, if not all, of the City and State functions involving the New York City child welfare system. As the Agreements are summarized above, supra Background section II., the Court will not go into an extensive discussion of them here. However, it is important to note that the City Settlement Agreement provides the Advisory Panel with unfettered access to ACS personnel and records. The Advisory Panel is required to report on a broad range of ACS’s operations, including any subjects that are related to the enumerated areas specified in the City Settlement Agreement, and is encouraged to comment on any additional subject areas it
9

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
finds relevant. Among other things, the State Agreement provides for a larger staff at the New York City Regional Office and the change from a multi-county office to a strictly New York City Office.
Further, the City Settlement Agreement provides for a streamlined procedure for the plaintiff class to return to this Court if the Advisory Panel finds the City is not acting in good faith in any of the areas designated by the City Settlement Agreement for review by the Advisory Panel or in related areas. Plaintiffs can make out a prima facie case of *165 the City’s violation of the Settlement Agreement merely by introducing the Advisory Panel’s finding(s) of bad faith. If liability is established, the plaintiffs can then seek more extensive relief. Additionally, plaintiffs can return to Court to seek State compliance with the terms of the State Settlement Agreement if the State fails to comply.
With the beneficial terms of the Agreements and safeguards in place should the City or State fail to comply, the Court believes that these voluntary Settlement Agreements are more favorable than any remedy that could have been imposed by the Court at the end of a trial. Therefore, this factor weighs heavily in favor of the Court finding the Settlement Agreements to be fair, reasonable, and adequate.

F. The Risks of Maintaining the Class Action Through the Trial This Court approved the class certification, Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996), and the Second Circuit affirmed the certification, Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir.1997). Subsequently, this Court certified subclasses. Marisol A. v. Giuliani, 1998 WL 265123 (S.D.N.Y. May 27, 1998). Therefore, it is unlikely that the class would have been decertified during or after trial.

G. All of These Factors Show that the Agreement is Fair, Reasonable, and Adequate9

9

The Court will not examine the last three Grinnell

factors as they relate to monetary damages and no such

damages were sought in this case.

ARMS–LENGTH [5] An additional factor to be considered by courts in evaluating class action settlements is the vigor and independence of counsel in negotiating the terms of the agreements. See Malchman v. Davis, 706 F.2d at 433. Some of the attorneys in Marisol have appeared before this Court for more than twenty years in conjunction with child welfare cases.10 Through discovery, motion practice, and conferences, in the Marisol case, this Court has consistently been in contact with counsel and observed counsels’ interactions. The Court is confident in stating that these agreements were reached after extensive, arms-length negotiations between experienced counsel for the respective signatories.

10

Children’s Rights, Inc., counsel for plaintiffs,

represents plaintiffs in the Wilder case. After many

interactions with attorneys from Children’s Rights, Inc.,

the Court finds this organization to be dedicated to and

highly experienced in children’s issues.

As noted, counsel engaged in more than two years of vigorous litigation. During this time, extensive discovery an motion practice was conducted. After being well-positioned, base on the extensive discovery conducted, the parties maintained two separate negotiations, one between plaintiffs and the City and on between plaintiffs and the State, over a period of more than four months.
Because of the high level of experience that counsel for all parties have in child welfare issues and litigation seeking institutional reform, the Court views the Settlement Agreements favorably. For example, plaintiffs’ counsel in Marisol also litigated the Wilder case. Thus, before reaching agreement in Marisol, these attorneys negotiated a Stipulation of Settlement in Wilder and had observed the successes and failures of the agreement in that case. They had first-hand knowledge of what approaches do and do not improve the New York City child welfare system.
Therefore, the Court views these arms-length negotiations among experienced counsel as weighing in favor of the approval of the Marisol Settlement Agreements.

Examining all of the Grinnell factors, this Court finds that the Settlement Agreements in this complex litigation are fair, reasonable, and adequate.
II. THE SETTLEMENT AGREEMENTS WERE NEGOTIATED BY EXPERIENCED COUNSEL AT

III. DISMISSAL OF WILDER IS FAIR, REASONABLE, AND ADEQUATE [6] The Court finds that the dismissal of Wilder, is fair, reasonable, and adequate. *166 The City Settlement Agreement addresses and advances the needs of the Wilder plaintiff class, rendering the continuation of Wilder unnecessary. Accordingly, the Court grants the motion to dismiss Wilder.
10

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
Recognizing the significance of the principles of the Wilder case, the parties in Marisol have incorporated the primary concerns and goals of Wilder in the City Settlement Agreement. The parties included an entire section in the City Settlement Agreement to address the Wilder concerns. See City Settlement Agreement, Section F. “Special Provisions Applicable in the ‘Wilder ’ Subject Area.” Plaintiffs and the City both acknowledged that the following principles were established in Wilder:
i. All children, whether placed with relatives or non-relatives, shall be placed on a first-come first-served basis in the best available agency program that is appropriate for the child’s needs, regardless of the child’s race or religion. All children place in foster boarding homes shall be placed with foster boarding home families appropriate for their needs; and
ii. ACS and the contract agencies shall follow practices and policies that ensure that children in placement have the right to be free from the imposition of religious practices and have the right to practice their own religion while in placement; and
iii. The City will continue its efforts to improve the quality of care available to all children in placement ...
Id. Section F. ¶ 30.a.
Further, one of the five specifically enumerated areas to be studied by the Marisol Advisory Panel incorporates the principles of Wilder. The Advisory Panel must review the “[p]lacement and evaluation issues arising out of an agreed-upon set of existing legal obligations in Wilder set forth in paragraph 30.b, below (‘Wilder Obligations’).” Id. Section C. ¶ 11.b. In the Initial Report concerning the Wilder Obligations, the Advisory Panel is to determine,
whether to retain, modify, substitute for or eliminate any of the following obligations:
i. implement a classification system, to be developed by an outside consultant, that measures and classifies all placement agency programs by ‘meaningful differences in quality’ within the various program categories;
ii. maintain accurate vacancy lists and establish waiting lists for certain programs, when appropriate;
iii. determine children’s service needs, level of care, and program type by an evaluation performed by qualified personnel in accordance with good social work practice, so that an appropriate placement can be chosen for them; such evaluation shall be done prior to placement or not later than thirty (30) days after referral to ACS for placement or in the case of placement prior to evaluations, not longer than thirty (30) days after actually being placed;

iv. determine appropriateness of placements in certain cases by conducting a de novo review of the child’s placement and of the child’s needs within ten (10) days after the child’s evaluation is completed;
v. employ two hundred (200) Child Evaluation Specialists (a title requiring the employees to hold at least an MSW degree) to conduct the evaluations and review the appropriateness of each child’s placement;
vi. ensure that foster care agencies accept all children referred to them, except where the agency lodges a ‘therapeutic objection’ subject to ACS’s overruling, which the agency may challenge before an impartial arbiter; and
vii. ensure that foster care agencies conduct the required screening of kinship foster homes and training of kinship foster parents and provide required services to children in kinship foster care.
Id. Section F. ¶ 30.b.
Then, in subsequent Periodic Reports, the Advisory Panel will comment on ACS’s activities in response to the Initial Report. Because these rights were already established in Wilder, a separate enforcement mechanism has been created in Marisol, so that the Wilder obligations will be directly enforceable if the Advisory Panel finds an absence of good faith compliance by the City defendants.
*167 The incorporation of the Wilder Obligations into Marisol allows for the review of the Wilder concerns without having the existence of two parallel panels. As the Marisol Settlement Agreements provide for an expansive review of the operations of ACS, the continued existence of the Wilder Settlement Panel would cause ACS to be scrutinized by two panels, at the same time, with overlapping jurisdiction. Such a system would be impracticable and unmanageable, with the possibility of conflicting recommendations regarding similar subject matter.
This Court finds the comprehensive approach contained in the City Settlement Agreement, an approach agreed upon by both parties in the Wilder action, to better fulfill the goals of Wilder. The Wilder Obligations, which affect only one aspect of the child welfare system, have proven extremely difficult to implement within a system with so many other functioning areas. Thus, the parties, after discussing and litigating the Wilder issues for over two decades, have agreed to approach the Wilder concerns in conjunction with a wide range of reforms to benefit the children of New York City’s child welfare system.
Additionally, the Court acknowledges that at no time was the Wilder Stipulation of Settlement intended to last indefinitely. To the contrary, the Wilder Stipulation of
11

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

Settlement was time-limited, and after a life of over ten years, the parties, as well as the Court, recognized that the end was in sight for this document which was written during a very different time in the history of New York City’s child welfare system. On December 30, 1997, the Court issued a Memorandum Decision denying the City’s motion to declare the Stipulation of Settlement terminated. However, the Court was in the process of setting a termination date for the Wilder Stipulation of Settlement when the parties informed the Court that the incorporation of Wilder into the Marisol City Settlement Agreement was being contemplated.
As stated above, this Court has been involved in the Wilder litigation since its inception over twenty years ago. Upon consideration of the issues involved in Wilder, this Court finds that the dismissal of Wilder is fair, reasonable, and adequate in view of the Marisol City Settlement Agreement’s incorporation of the Wilder principles.11

11

There were two comments raised regarding the

dismissal of Wilder. First, nineteen contract child care

agencies who were intervenors in Wilder moved for

intervention in Marisol. These contract agencies later

withdrew their motion as they reached a stipulation

with the Marisol parties with regard to their concerns.

See Stipulation and Order dated February 5, 1999.

Besides requesting intervention, these agencies, which

had long been parties in Wilder, did not object to the

approval of Marisol and the dismissal of Wilder.

Second, OHEL, a private contract agency that was a

defendant in Wilder, objected to the dismissal of Wilder

because a specific paragraph in the Wilder Stipulation

of Settlement was not incorporated in the Marisol City

Settlement Agreement. The Court further reviews this

objection infra Discussion Section IV.C.

IV. THE OBJECTIONS AND COMMENTS TO THE SETTLEMENT AGREEMENTS DO NOT WARRANT DISAPPROVAL OF THE SETTLEMENT AGREEMENTS OR A REFUSAL TO DISMISS WILDER As noted above, the Court received eight written comments and/or objections regarding the Settlement Agreements. All of those who submitted comments and/or objections were also given the opportunity to speak at the fairness hearing held on January 22, 1999.12 None of objections warrant the disapproval of the Settlement Agreements or of the denial of the motion to dismiss Wilder.

12

Additionally, the Court allowed Dr. DeLois Blakely,

who did not submit a comment by the appointed date of

January 15, 1999 and arrived at the courtroom as the

fairness hearing was coming to an end, to be heard.

A. The Joel A. Plaintiffs An action on behalf of lesbian, gay, bisexual, and transgendered youth in the New York City foster care system was filed against City and State officials on January 15, 1999. Joel A. v. Giuliani, 99 Civ. 0326(RJW). Also on January 15, 1999, the Joel A. plaintiffs filed a “Memorandum in Support of Motion to Intervene *168 and Objections to Proposed Class Action Settlement.”13

13

The Joel A. plaintiffs did not, however, file or serve a

notice of motion as required by Federal Rule of Civil

Procedure 24(c) or Local Civil Rule 6.1.(a). Despite the

fact that the motion was procedurally barred, the Court

permitted the Joel A. plaintiffs to be heard.

In the course of the fairness hearing, the Joel A. plaintiffs withdrew their motion except for the limited purpose of interposing objections to the Marisol Settlement Agreements. The Court then endorsed the Memorandum filed by the Joel A. plaintiffs as follows:14

14

The Court endorsed the Memorandum as no motion

was filed.

The portion of the within motion seeking to intervene for the purpose of interposing objections to the proposed class action settlement is granted.
The balance of the motion has been withdrawn in open court.
It is so ordered.
Therefore, the Court will only address the objections raised by the Joel A. plaintiffs.
1. The Term “Permanency” in the City Settlement Agreement is Not Vague or Incomplete [7] The Joel A. plaintiffs object to the City Settlement Agreement, arguing that a key term of the Agreement is vague and incomplete and has been withheld from the plaintiff class. In the City Settlement Agreement, five specific areas of ACS’s operations are listed as areas to be reviewed by the Advisory Panel. After reviewing these areas, the Advisory Panel is to produce Initial Reports, available to the public after counsel for the parties review and comment on them, as well as Periodic Reports regarding ACS’s performance in these areas. One such area to be reviewed by the Advisory Panel is described in
12

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

the City Settlement Agreement as “[t]he areas and issues discussed in the ‘Advisory Report on Permanency Issues in the New York City Child Welfare System,’ submitted to the Plaintiffs and the City on September 4, 1998 (the ‘Permanency’ subject matter area).” The Joel A. plaintiffs object to the 26-page City Settlement Agreement as being vague and incomplete because the “Advisory Report on Permanency Issues in the New York City Child Welfare System” is not yet available to the public,15 and as such they find the term “permanency” to be too vague to permit approval of the City Settlement Agreement.

15

At the time of the fairness hearing, the “Advisory

Report on Permanency Issues in the New York City

Child Welfare System” was still in draft form and

therefore not available to the public.

The Court finds no merit to this objection. First, the parties had the Advisory Panel issue this report during settlement negotiations so that the parties could evaluate the Panel’s approach to one of the problems it would be called upon to address. Second, it is clear to the Court that permanency issues encompass the permanent placement of children within the care of ACS. Finally, one of the benefits of the Advisory Panel is that highly experienced persons in the child welfare arena are given a basic mandate to review areas of ACS’s operation and are also given some discretion in the scope of the review. The Joel A. plaintiffs seem to be arguing against this very basic tenet of the City Settlement Agreement which the Court finds to be an attribute favorable to the plaintiff class.

2. The Settlement Agreements Do Not Provide Marisol Subclass III with Illusory Relief in Exchange for Unfair and Oppressive Terms [8] The Joel A. plaintiffs argue that the Settlement Agreements provide Marisol Subclass III, of which they are members, with illusory relief in exchange for unfair and oppressive terms, impairing the class members’ rights to due process of law. The Court finds nothing about the terms of the Settlement Agreements to be illusory nor does it find the terms of the Settlement Agreements to be unfair or oppressive to the plaintiff class.
The Court turns first to the argument that “[n]ot one provision in the City or State *169 Settlement Agreements provides tangible relief to the members of Marisol Subclass III....” Joel A. Plaintiffs’ Memorandum in Support of Motion to Intervene and Objections to Proposed Class Action Settlement at 21. After reviewing the Settlement Agreements and drawing from its years of experience in the child welfare arena, the Court finds this statement to evidence a lack of understanding of the settlement.

Subclass III is comprised of “[c]hildren in the custody of the Administration for Children’s Services.” In almost all respects, the City and State Settlement Agreements are designed to benefit these children. As expanded upon above, the City Settlement Agreement provides for a panel of nationally respected and renowned child welfare experts to comprehensively evaluate the operations of ACS. Without restating all of the areas that the Advisory Panel is to review, the City Settlement Agreement clearly includes the placement and evaluation of children within the care of ACS, the monitoring and improving of the performance of private agencies that contract with the City to provide child welfare services for children in the care of ACS, and the evaluation of front-line practices that affect all of these areas involving children within the care of ACS. In order to evaluate these areas and provide Initial and Periodic Reports, the Advisory Panel has been given full access to information, documents, and personnel of ACS. The Court finds none of this relief to be illusory.
The Joel A. plaintiffs point to the fact that the Advisory Panel has no definitive dates by which it must submit these reports as evidence that the City Settlement Agreement provides no relief for Marisol Subclass III plaintiffs. The Advisory Panel has a time frame during which to complete its tasks and within that time period it must provide these reports. Given the expertise of the Advisory Panel, the Court is not concerned that specific dates for the Reports are not included in the Settlement Agreement. If anything, this provides the Advisory Panel with more flexibility in fashioning comprehensive reports.
The Joel A. plaintiffs do not indicate how the State Settlement Agreement is illusory. Accordingly, the Court finds the claim unsupported. As stated above, the State Settlement Agreement provides for specific actions to be taken by the State, including establishing NYCRO and monitoring functions which benefit children in the care and custody of ACS.
In addition, the Joel A. plaintiffs argue that the Settlement Agreements contain “unfair and oppressive terms,” referring to the covenants not to sue and releases in the Settlement Agreements. See supra Background Section II. (summarizing the Settlement Agreements). The Court has given considerable thought to these provisions and does not find them to be unfair or oppressive. All class members can bring individual suits at any time based on any claim seeking damages or injunctive relief, as long as the injunctive relief sought is not system-wide and is tailored to the individual’s concerns. Therefore, any individual claims raised by the Joel A. plaintiffs or other class members can be immediately addressed in a lawsuit. Moreover, in exchange for the covenants not to sue and releases, the City is making available to the panel all of its records and personnel, an unprecedented occurrence.
13

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)
While this open door policy is in effect, the Court finds that it is reasonable for the City to require some protection against class action suits.
Further, the Court finds the only case law cited to support the claim that the covenants not to sue and releases are oppressive to be easily distinguishable from this case. In J.A. Shults v. Champion Int’l Corp., 821 F.Supp. 520 (E.D.Tenn.1993), the court rejected a settlement agreement between a plaintiff class of riparian landowners and lessees and a paper mill. The plaintiff class brought the action alleging that the mill discharged toxic waste into the river. The settlement agreement provided that the paper mill be released from liability for,
all future claims, demands, rights of action and causes of action of every kind and character, whether arising in law or equity, both against the Settling Defendant and all other persons and entities, which each Class member, his, her or its heirs, executors, administrators, successors, and assigns, ever had, now have or hereafter *170 may acquire, by reason of, arising out of, or in any way relating to [the discharge from the paper mill].
Id. at 521 (emphasis added). Therefore, the only case that has been cited bars the class members, their children, and their grandchildren, from bringing all future, unknown causes of action relating in any way to the mill’s discharge. See id. at 523–24. In the case before this Court, the plaintiff class is not precluded from bringing individual suits for damages or equitable relief and is not precluded from bringing class action equitable claims indefinitely, just for the two years that the Settlement Agreements are in effect. The Court finds that a moratorium on class action equitable suits for two years, while plaintiffs and defendants work together to develop a better child welfare system, is fair, reasonable, and adequate.
3. The Marisol Class Representatives Adequately Represent the Plaintiff Class, Including the Joel A. Plaintiffs [9] The Joel A. plaintiffs also argue that as none of the Marisol named plaintiffs are gay, lesbian, bisexual, or transgendered, and none have alleged an absence of safe placements due to intense bias-related victimization and discrimination, that none of the named plaintiffs adequately represent their concerns.
The plaintiff class that the Joel A. plaintiffs purport to represent is comprised of gay, lesbian, bisexual, and transgendered children, and children not so self-labeled but experiencing feelings of same-sex attraction or gender atypicality, or who are questioning or confused about their sexual orientation or gender and are in the custody of

the Marisol defendants. The Court finds that these persons are represented in the Marisol litigation by the named plaintiffs representing Subclass III.
The Joel A. plaintiffs are attempting to argue at this late date that the adequacy prong of class certification was not met. This issue has already been decided by this Court, Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996), and affirmed by the Second Circuit, 126 F.3d 372 (2d Cir.1997). The named plaintiffs do adequately represent the Joel A. plaintiffs. While the Court recognizes that the Joel A. plaintiffs have concerns regarding placement because of their sexual orientation, the Court also recognizes that there are numerous children who have specific concerns regarding personal characteristics, attributes, conditions, or life positions. For instance, teenage girls who have children are in a difficult situation when both they and their children need placement. It is not easy to find foster care facilities equipped for both teenagers and their young children. Additionally, as noted in the Wilder litigation, some children face difficulties in placement due to race and religion. This Court finds, however, that the named plaintiffs in Marisol adequately represent all of these children and have standing to do so. Therefore, the Court does not find the lack of a named plaintiff who is identical to the proposed named plaintiffs in Joel A. to be a reason to disapprove of the Settlement Agreements.
B. The Legal Aid Society The Legal Aid Society, through its Juvenile Rights Division, represents a large number of children in cases before New York City Family Courts involving child abuse and neglect, termination of parental rights, status offenses, delinquency and other proceedings affecting children’s rights and welfare. The Juvenile Rights Division attorneys and social workers handle 45,000 child-related cases annually. In a written submission to the Court dated January 15, 1999, Monica Drinane wrote on behalf of The Legal Aid Society: “[w]e wish to make clear, on behalf of our clients, that we applaud and support the goals of this most novel and innovative agreement.” Legal Aid Society letter of January 15, 1999 at 4; see also Transcript of Fairness Hearing of January 25, 1999, Statement of Monica Drinane on behalf of The Legal Aid Society, at 64.
While supporting the goals of the City Settlement Agreement and the functions of the Advisory Panel, The Legal Aid Society does raise concerns about the covenants not to sue and releases in the City Settlement Agreement. The Court has addressed most of these concerns above, supra Discussion *171 Section IV.A., and therefore will only address The Aid Society’s concern that the City Settlement Agreement prevents damages actions.
14

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

The releases in the City Settlement Agreement only prevent equitable class actions based on claims, occurring prior to the Court’s approval of the Settlement Agreement, arising from or in any way relating to any equitable claim which is or could have been stated in the pleadings. On the expiration of the Settlement Agreement, equitable class actions are barred if based on claims occurring during the period of the Agreement arising from or relating to any equitable claim which is or could have been stated in the litigation as described in Plaintiffs’ Statement of Claims to be Tried, set forth in the Pre–Trial Order dated July 16, 1998. These releases do not bar individual equitable claims seeking relief tailored to the individual. Nor do they bar, as is The Legal Aid Society’s concern, any form of damages actions.
The Court does not find these releases to overburden plaintiffs. To the contrary, the Court recognizes the achievement the City Settlement Agreement reaches by permitting unfettered access to ACS information and personnel and that this could not be accomplished without some guarantees against further equitable class action suits during and related to the time period when this open access occurs.

C. OHEL Children’s Home & Family Services (“OHEL”) OHEL, a private contract agency which was a defendant in the Wilder case and a signatory to the Wilder Stipulation of Settlement, objects to the dismissal of Wilder unless paragraph 61 of the Wilder Stipulation of Settlement is included in the Marisol City Settlement Agreement. Paragraph 61 of the Wilder Stipulation of Settlement specifically addressed OHEL’s interest in providing for children in foster care whose religious needs and customs so pervade every aspect of their lives that they require services in an agency solely dedicated to those needs. This Court does not find OHEL’s position, that without the inclusion of this paragraph OHEL’s clients’ rights will be severely impaired, persuasive.
The Wilder Stipulation of Settlement was at no point intended to continue indefinitely. See Stipulation of Settlement, ¶¶ 79–81; see also Memorandum Decision of Hon. Robert J. Ward dated July 1, 1998, 78 Civ. 957(RJW), (stating that the Court had “no intention of continuing the Stipulation indefinitely ...”). Therefore, paragraph 61 of the Stipulation of Settlement was always intended to be a time-limited provision.16

16

As discussed supra Discussion Section III., City

defendants moved to have Wilder dismissed, claiming

that the Stipulation of Settlement expired. While this

Court denied City’s motion, an appeal is pending.

With regard to paragraph 61 of the Wilder Stipulation of Settlement, William Bell, Deputy Commissioner for the Division of Child Protection at ACS, states that OHEL is the only agency specially designated by ACS to care for children “whose religious beliefs pervade and determine the entire mode of their lives.” Declaration of Gail Rubin in Support of the Settlement and in Opposition to the Motion by the Joel A. Plaintiffs to Intervene, Ex. E.: Affidavit of William Bell dated January 21, 1999, ¶ 2 (quoting Stipulation of Settlement, ¶ 61). Bell also stated that ACS considers whether a child’s or family’s religious beliefs determine their entire mode of living and places children accordingly, and that ACS has no plans to change its placement practices in any manner that would make them inconsistent with Paragraph 61 of the Stipulation of Settlement. Id. at ¶¶ 4–5.
In any event the Court finds that OHEL’s concerns are adequately addressed in the Marisol City Settlement Agreement, which states that “children in placement have ... the right to practice their own religion while in placement.” Further, OHEL retains the protection for such Free Exercise in foster care placement as is offered under state law. See Social Services Law § 373. Since OHEL’s concerns are addressed in the Marisol City Settlement Agreement, the City defendants have no intention of altering their practice concerning placement of children *172 whose religious beliefs determine their entire mode of living, and the Wilder Stipulation of Settlement was never intended to continue indefinitely, the fact that the Marisol City Settlement Agreement does not incorporate paragraph 61 of the Wilder Stipulation of Settlement does not render the City Settlement Agreement unfair to OHEL.
D. OTHER COMMENTS AND OBJECTIONS The remaining five comments were either in favor of the Settlement Agreements, sought specific relief from the Court, or discussed short-comings of New York City’s foster care system as a whole but did not specifically address the terms of the Settlement Agreements.
The Director of Child Welfare for the Diocese of Brooklyn, Barbara Conley, and the Director of Child Care for the Archdiocese of New York, Sr. Una McCormack, jointly wrote on behalf of their agencies in support of the approval of Marisol and the dismissal of Wilder. These 21 agencies endorse the Marisol Advisory Panel and will likely submit recommendations to the panel members. Further, these agencies observe how very different today’s foster care system is than the one existing when the Wilder lawsuit was initiated and point out that the Marisol Settlement Agreements take this into
15

Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (1999)

consideration.17

17

The Roman Catholic Archdiocese of New York,

represented by Lawrence F. McGovern, without

commenting on the substance of the Settlement

Agreements, requests that the parties continue to treat

the Roman Catholic Archdiocese of New York child

care agencies as interested parties, as they were in

Wilder. The Court, during the fairness hearing,

requested that the parties keep the child care agencies

associated with the Roman Catholic Archdiocese of

New York abreast of the reports filed by the Advisory

Panel. Further, the Roman Catholic Archdiocese child

care agencies can communicate their concerns to the

Advisory Panel directly.

Three individuals commented on the operations of ACS. Alvin A. Rivers, Sr., a grandfather of two children in the custody of ACS, stated at both the fairness hearing and in a written submission to the Court that he did not believe that ACS was capable of complying with a settlement agreement. The Court finds the City Settlement Agreement terms which contemplate ACS acting in bad faith, to amply provide for judicial enforcement of the Settlement Agreement. Rubin Quick discusses the problems he has encountered as a single male parent, but

he does not comment specifically on the Settlement Agreements. John L. Harris, Sr. objects to the Settlement Agreements and is specifically concerned that the Advisory Panel has insufficient power to change the system. The Court has already addressed this concern, finding that the Advisory Panel and the procedures instituted by the City Settlement Agreement provide for a novel approach to effecting substantial reform in the whole of ACS.
CONCLUSION
For the foregoing reasons, the Court finds the Marisol Settlement Agreements and the dismissal of Wilder to be fair, reasonable, and adequate. Accordingly, the Court approves the Marisol Settlement Agreements and grants the motion to dismiss Wilder.
Order and Final Judgments signed.
	  

16

 
 Marisol A. v. Giuliani, Not Reported in F.Supp. (1996)

Opinion

1996 WL 419887 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
MARISOL A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533 (RJW). | July 26, 1996.

MEMORANDUM AND ORDER
ROBERT J. WARD, District Judge.
*1 On June 18, 1996, this Court granted plaintiffs’ motion pursuant to Rule 23, Fed.R.Civ.P., for class certification and, on July 3, 1996, signed an order to that effect. The City defendants now ask this Court to certify this decision for immediate appeal pursuant to 28 U.S.C. § 1292(b). The State defendants do not join in the application.
Despite a strong belief that certification of the instant class was proper, this Court nevertheless feels constrained to grant the City defendants’ application to certify this matter since it involves a controlling question of law as to which there is substantial ground for difference of opinion and because an immediate appeal may materially advance the ultimate termination of litigation.
For the foregoing reasons, the City defendants’ application pursuant to 28 U.S.C. § 1292(b) for certification for interlocutory appeal of this Court’s order certifying this case as a class action is granted.
It is so ordered.

1

 
 Marisol A. v. Giuliani, Not Reported in F.Supp. (1996)

Opinion

1996 WL 453099 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
MARISOL A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533 (RJW). | Aug. 12, 1996.

MEMORANDUM AND ORDER
ROBERT J. WARD, District Judge.
*1 On June 18, 1996, this Court granted plaintiffs’ motion pursuant to Rule 23, Fed.R.Civ.P., for class certification and, on July 3, 1996, signed an order to that effect. The City defendants then asked this Court to certify that decision for immediate appeal pursuant to 28 U.S.C. § 1292(b). The State defendants did not indicate at that time that they joined in the application.
On July 26, 1996, this Court signed an order certifying the matter for interlocutory review. After being advised that the State defendants intended to join in the application, this Court, on August 7, 1996, approved a stipulation so doing. Because defendants failed to file a petition for permission to appeal with the clerk of the court of appeals within the ten day period required by Rule 5(a), Fed.R.App.P., they now ask this Court again to exercise its discretion to certify this matter for appellate consideration.
Despite a strong belief that certification of the instant class pursuant to Rule 23, Fed.R.Civ.P., was proper, this Court nevertheless feels constrained to grant defendants’ application to certify this matter since it involves a controlling question of law as to which there is substantial ground for difference of opinion and because an immediate appeal may materially advance the ultimate termination of the litigation.
For the foregoing reasons, defendants’ application pursuant to 28 U.S.C. § 1292(b) for certification for interlocutory appeal of this Court’s order certifying this case as a class action is granted. Upon their consent, defendants are directed to file their petition for permission to appeal with the clerk of the court of appeals within three business days from the date of this order.
It is so ordered.

1

 
 Marisol A. v. Giuliani, Not Reported in F.Supp. (1997)
1997 WL 240597 Only the Westlaw citation is currently available.
United States District Court, S.D. New York. MARISOL A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., et al., Plaintiffs,
v. Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW). | May 8, 1997.
Opinion
MEMORANDUM DECISION
WARD, J.
*1 Plaintiffs move for an order directing defendants to provide documentary discovery withheld and to permit deposition inquiries objected to on the basis of the deliberative privilege and to provide the parties with guidance regarding the scope of the privilege in this litigation.
After having briefed the matter, the parties appeared before the Court on April 16, 1997. It was agreed that plaintiffs would specify a representative number of documents which the Court would review in camera. By letter dated April 18, 1997, plaintiffs presented a list of representative documents for which individual in camera review was sought. The Court has reviewed the documents and rules upon the objections as follows:
1. Document # 1—Child Fatality Review Report 94–02 (including document numbers C906, C907, C908).
RULING: C906, pages 8–10, appears to consist of self-critical analysis. Objection sustained.
C907, pages 21–28, appears to consist of self-critical analysis and falls within the rule of Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS 12801 (S.D.N.Y. Sept. 15, 1993). Objection sustained.
C908, the City argues that the “FINAL REPORT of the NEW YORK CITY CHILD FATALITY REVIEW PANEL” is preliminary to the Panel’s Annual Public Report. While the Annual Report includes summary information regarding the year’s child fatalities, it does not appear to contain any details concerning individual child fatalities. Therefore, the Panel’s “Final Report” is final as to each individual child fatality and is not pre-decisional. Objection overruled.
2. Document # 5—Child Fatality Review Report 94–08 (C943, C944, C946, C947).
RULING: C943, pages 8–13, appears to consist of self-critical analysis. Objection sustained.
C944, pages 31–45, appears to consist of self-critical analysis and falls within the rule of Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS 12801 (S.D.N.Y. Sept. 15, 1993). Objection sustained.
C946, page 1, CWA’s responses to the HRA Fatality Panel’s recommendations does not come within either the deliberative privilege or self-critical analysis. Objection overruled.
C947, the City argues that the “FINAL REPORT of the NEW YORK CITY CHILD FATALITY REVIEW PANEL” is preliminary to the Panel’s Annual Public Report. While the Annual Report includes summary information regarding the year’s child fatalities, it does not appear to contain any details concerning individual child fatalities. Therefore, the Panel’s “Final Report” is final as to each individual child fatality and is not pre-decisional. Objection overruled.
1

Marisol A. v. Giuliani, Not Reported in F.Supp. (1997)
3. Document # 7—Child Fatality Review Report 94–27 (C9075, C9076, C9077, C9078, C9079, C9080, C9081, C9083, C9084, C9086).
RULING: Inasmuch as all of the above documents with the exception of C9080, C9081, and C9083, appear to have been furnished to plaintiffs unredacted, the Court will rule only with respect to C9080, C9081, C9083.
*2 C9080, pages 7–10, appears to consist of self-critical analysis. Objection sustained.
C9081, pages 28–30, appears to consist of self-critical analysis and falls within the rule of Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS 12801 (S.D.N.Y. Sept. 15, 1993). Objection sustained.
C9083, page 1, CWA’s responses to the HRA Fatality Panel’s recommendations does not come within either the deliberative privilege or self-critical analysis. Objection overruled.
4. Document # 8—January 1997 Report to commissioner on the Stat. of the James Satterwhite Academy, from Paula Y. Fendall, Director, presenting her view on conditions, issues and recommendations.
RULING: Although this forty-three page document includes facts, they are intertwined with opinion and self-criticism. The document falls within the rule of Lead Indus. Ass’n, Inc. V. Occupational Safety and Health Administration. et al., 610 F.2d 70, 83 (2d Cir.1979). Objection sustained.
5. Document # 13—August 12, 1996 Memo from K. Scurria to Scoppetta on background (pp. 1–3 unprivileged) including analysis of ACS independent living programs with proposals (pp. 4–10 privileged).
RULING: Appears to contain self-critical analysis and recommendations and falls within the rule of Lead Indus. Ass’n, Inc. v. Occupational Safety and Health Administration, et al., 610 F.2d 70, 83 (2d Cir.1979). Objection sustained.
6. Document # 16—March 13, 1996 Memo to Linder from J. Lilien regarding observations and comments, Manhattan Field office; outlines key issues and observations from staff interviews. sustained with the exception of the last page as to which the sustained with the exception of the last page as to which the sustained with the exception of the last page as to which the objection is overruled.
7. Document # 20—June 25, 1996 Memo from re-engineering team to W. Bell regarding issues and recommendations raised at the Brooklyn SupCons. RULING: This document appears to contain self-critical analysis. Additionally, it is pre-decisional and falls within the rule of Hopkins v. United States Dep’t of Housing & Urban Dev., 929 F.2d 81, 84 (2d Cir.1991). Objection sustained.
8. Document # 23—June 10, 1996 Memo from Lilien to W. Bell on interview with Manhattan OCACM office.
RULING: This one-page document appears to be primarily factual. Objection overruled.
9. Document # 25—July 9, 1991 Draft of HRA Baseline Analysis Project, CWA, containing critical observations and recommendations for change, with handwritten notes.
RULING: This fifty-seven page document is labeled “Draft–Baseline Analysis Project.” The City asserts that the draft, dated July 9, 1991 and prepared during the administration of an earlier Commissioner of the Human Resources Administration, was circulated only within the Agency and that no Final Report was issued. The City argues that the document is pre-decisional. Since the draft was never made into a Final Report, however, the document cannot be pre-decisional and shall be furnished with the handwritten comments redacted. Objection overruled except with respect to the handwritten comments.
*3 10. Document # 32—The “DeMarco Report” dated February 1996, produced as document number C536.
RULING: This report appears to be pre-decisional. Objection sustained.
11. Document C1550 a, b—Office of Field Services, Contract Agency Case Management “briefing books” (2 volumes). Book I redacted as to “Conditions” (4 pages); “Issues and Recommendations” (3 pages). In the Appendix to Book I, the following portions of the Office of Field Services and Case Management section in “Transition Issues,” dated January 12, 1994, are redacted: “Litigation Issues” (3 pages); “Impending/Critical Issues” (1 page); “Long Term Issues” (2 pages); the
2

Marisol A. v. Giuliani, Not Reported in F.Supp. (1997) following portions are redacted from the CWA Executive Summary section: “Impending/Critical Issues” (6 pages); “Long Term Issues” (4 pages); and in the document “Homemaking Overview,” three “proposals currently being considered” are redacted (1 page). RULING: C1550a appears to contain self-critical analysis on the pages which have been marked by the City. As to those pages, the objection is sustained. C1550b appears to have been furnished in its entirety. 12. Document C1554—Office of Direct Foster Care Services Briefing Report, Janice Hassan, Assistant Deputy Commissioner, Feb. 8, 1996, redacted as to “Alerts and Recommendations” (2 pages). RULING: On the two pages in question, the objection is overruled with respect to the “Alerts.” The objection is sustained with respect to the “Recommendations.” See Hopkins v. United States Dep’t of Housing & Urban Dev., 929 F.2d 81, 84 (2d Cir.1991). The Court is hopeful that the foregoing rulings with respect to the representative documents will enable the parties to resolve their differences with regard to the remaining documents and will provide guidance during the depositions regarding the scope of the privilege in this litigation. It is so ordered.
3

 
 Marisol A., by Next Friend Forbes v. Giuliani, Not Reported in F.Supp. (1997)

Opinion

1997 WL 349951 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Marisol A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW) DFE. | June 24, 1997.

MEMORANDUM AND ORDER
Douglas F. EATON, Magistrate Judge.
*1 Pursuant to my Standing Order on Discovery Disputes, the parties have proceeded by joint letter. I have before me a 6/4/97 joint letter from Marcia Lowry and Grace Goodman, and a 6/10/97 joint letter from Thomas Curnin and Judith Kramer. On 6/16/97 I heard oral argument from these attorneys, except that Craig Levine argued in place of Ms. Lowry. There are four disputes, and I shall discuss them in the order used at the oral argument.

1. Must the State produce documents from 1/1/90 or from 1/1/94?
For the time being, the plaintiffs have permitted the City to produce documents going back only to 1/1/94. But Mr. Curnin argues that the plaintiffs need to go farther back in time for documents held by the State. He says he needs to prove that the State had knowledge of the City’s violations. In that regard, he already has helpful evidence in the form of two State Reports—a 1989 report which criticized the City, and a 1996 report which he says was even more critical of the City. In addition, the State is providing documents for 1994 to the present. Nevertheless, Mr. Curnin argues that he needs documents for 1990 through 1993, so he can learn exactly what transpired between the State and the City, and who among the State officials may have knowingly failed to carry out the State’s obligations to audit and monitor the City.
I find that evidence from 1990 through 1993 would be of only marginal relevance compared with the other evidence, especially since the plaintiffs are seeking only prospective relief. Accordingly, I sustain the State’s objections.
At the oral argument, Mr. Curnin made an alternative request. He asked me to rule that the State should be precluded from making any argument based on the years 1990 through 1993. He hypothesized that the State may argue, “The circumstances in 1994 and 1995 were extraordinary and overwhelming, but we did a decent job during 1990–93.” This hypothetical argument seems extremely weak and unlikely to deprive the plaintiffs of any appropriate prospective relief, which will surely turn on the trial judge’s evaluation of the more recent evidence. On the other hand, I think we should learn now (before the 10/1/97 discovery cut-off) whether the State to intends to make any significant argument about the years 1990–93. Accordingly, I direct the State to send plaintiffs, by 7/1/97 by fax and by mail, an answer to the following:
Assume that Judge Ward will ask you at trial (a) to characterize the State’s performance during the years 1990 through 1993, and (b) to state the degree to which those years could potentially be relevant to the fashioning of prospective injunctive relief. At the present time, what is your answer to those two questions?

1

Marisol A., by Next Friend Forbes v. Giuliani, Not Reported in F.Supp. (1997)
2. Must the State produce copies of all the documents it received from the City?
In the 6/10/97 joint letter, the State offered the following compromise. The State asks that the plaintiffs provide the State with a set of relevant City documents that required some sort of action by the State Department of Social Services (“NYDSS”). With respect to each such document, the State will perform three tasks—(1) inquire of all NYDSS employees who have responsibilities relating to the subject matter contained in the document, in order to locate copies of the document, (2) provide any follow-up documents that may have been prepared in response to the City document, and (3) provide any copies of the City document itself upon which an NYDSS employee made a relevant notation. On the other hand, as to any copies that never got such a notation, the State doesn’t want to identify the rooms where they were found, and doesn’t want to produce copies of what the City has already produced.
*2 Mr. Curnin objects to this compromise. He says that it would not enable him to learn “if a State addressee merely placed the document in his files without making any notation on it, a critical fact in the context of this lawsuit.”
But he will know the name of the State addressee, and there will be a strong inference that this addressee took no action if the State fails to produce any follow-up document or any notation. There is a possibility that the addressee might have photocopied the City document and dumped it on the desks of some other NYDSS officials—but this possible fact is very unlikely to lead to any relevant evidence. If the document bore no notation by the addressee, and if there was no follow-up document (not even a “buck slip”), then the addressee essentially took no action, and it seems pointless to criticize any inaction by the other officials who merely received extra photocopies in such circumstances.
Mr. Curnin says that, at the very least, he wants to list approximately 12 State officials and require the State to say whether the personal files of each of these 12 officials contained a duplicate copy of a given City document. I doubt that this exercise will lead to relevant evidence, but I will order it because the burden on the State is not too great if the exercise is limited to 12 officials.
Accordingly I direct the plaintiffs to provide the State with (a) a set of relevant City documents that required some sort of action by the NYDSS, (b) a list describing these documents and giving each a number, and (c) a list of specific State officials (no more than 12). Within 21 days of receipt, the State shall perform the three “tasks” which I described on page 3 and, in addition, shall provide a written statement (perhaps a chart) showing whether the personal files of each of the 12 listed officials contained a copy of any of the City documents provided in the plaintiffs’ set and, if so, which documents.
3. Must the City answer the Second Request for Admissions?
Both the first and second Requests for Admissions concern the State’s April 1996 Report. The City responded to the First Request by admitting the Report’s authenticity but declining to admit that the Report was a business record under Fed.R.Evid. 803(6). At the oral argument, I said that the plaintiffs would be better advised to seek to qualify the Report as a public report under Fed.R.Evid. 803(8).
Meanwhile, back on 12/11/96, the plaintiffs served their Second Request for Admissions, which consists of 268 paragraphs. The first 5 paragraphs cover the same ground as the First Request. The remaining paragraphs are in effect “couplets” (such as ¶¶ 6 and 7, ¶¶ 8 and 9, etc.) or “triplets” (such as ¶¶ 194–96, ¶¶ 197–99, etc.).
In each couplet, the first paragraph gives a quotation or a paraphrase of a specific statement in the Report; if it is a quotation (but not if it is a paraphrase) the City has admitted that the Report made the specific statement. The second paragraph of each couplet takes the same statement from the Report and asks the City to admit that the statement is true; the City says it cannot admit or deny unless it assigns a City employee or an outside expert to replicate the State’s study, which would be unduly burdensome. At this time, I sustain the City’s objections.
*3 Fed. R.Civ. P. 36(a) provides that the answering party must make “reasonable inquiry” to see if the information is “known or readily obtainable by the party.” Here, more information will become obtainable in the near future. An updated case review is currently being conducted under the joint auspices of all parties, for use in the trial, on the same topics as the State’s April 1996 Report. After the updated case review is completed, the importance of the April 1996 Report may fade away. If the plaintiffs still feel that it is important, they may serve a Third Request for Admissions. In that event, they must, to the maximum feasible extent, eliminate paraphrases that are more conclusory or more evaluative than the language used in the
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Marisol A., by Next Friend Forbes v. Giuliani, Not Reported in F.Supp. (1997) Report. If that is done, then the City must admit or deny. “A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only part of the matter ..., the party shall specify so much of it as is true and qualify or deny the remainder.” As to requests for admission that a statement in the Report is true, the City must respond to each request separately. It will be a satisfactory response if the City cites and adopts a pertinent portion of the updated case review. If the City chooses not to cite and adopt such a portion, or claims that it is unable to find a pertinent portion, then the City must admit or deny or make a particularized objection as to why the City should not be required to admit or deny.
4. The plaintiffs’ request for further in camera review of documents. In the 6/4/97 joint letter, the plaintiffs asked me to review 22 documents as to which the City has claimed the deliberative privilege, and Ms. Goodman stated the reasons she was claiming the privilege. I then studied Judge Ward’s 5/8/97 Memorandum Decision on this precise topic, and I looked through the 12 documents he reviewed. On the basis of Ms. Goodman’s explanations, I ruled at the oral argument that I would grant in camera review as to only 8 of the 22 additional documents. The results of my in camera review are as follows. I sustain the City’s invocation of privilege as to Documents # # 1, 13, 17, 18, 19 and 20. I direct the City to send me an in camera affidavit by 7/1/97 by fax and by mail, answering the following questions: 1. In Document # 5, on the second page, under the heading “Nurseries in Office Locations”—(a) does the City contend that the first two sentences are so intertwined with privileged opinions and recommendations that disclosure of the first two sentences would compromise the deliberative privilege? (b) does the City submit any other grounds for opposing the disclosure of the first two sentences? 2. In Document # 5, on the eleventh page, under the heading “Closed Case Files”—(a) does the City contend that the first two sentences are so intertwined with privileged opinions and recommendations that disclosure of the first two sentences would compromise the deliberative privilege? (b) does the City submit any other grounds for opposing the disclosure of the first two sentences? *4 3. Exactly how is Document # 11 related to the SupCon process? (To understand Document # 11, I think I need to know the name and title of the person to whom it was given, and the purpose of the columns, particularly the right-hand column.)
3

 
 Marisol A. v. Giuliani, Not Reported in F.Supp. (1997)

Opinion

1997 WL 630183 United States District Court, S.D. New York.
Marisol A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW). | Oct. 10, 1997.

MEMORANDUM DECISION AND ORDER
WARD, D.J.
*1 The municipal defendants in this action, including the City of New York (“defendants” or “the City”), have moved this Court for a protective order pursuant to Rule 26(c), Fed.R.Civ.P., prohibiting the release of or disclosure to any non-party of the court-ordered report prepared by the Case Review Team, until the report has been received in evidence at the trial of this action. For the following reasons, the motion is denied.

BACKGROUND
This class action was filed in December 1995 on behalf of children who have suffered, and some of whom continue to be at risk of, severe abuse and neglect. The complaint alleges that defendants, who are officials with responsibility for the Child Welfare Administration of the City of New York, now renamed the New York City Administration for Children’s Services (“ACS”), mishandled plaintiffs’ cases and, through action or failure to act, deprived plaintiffs of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, under Article XVII of the New York State Constitution, as well as under several federal and state statutes.
On June 27, 1996, plaintiffs served defendants with a request for the production of a random sample of class members’ case records to conduct a case record review. After hearing the parties, the Court directed on November 22, 1996 that a case record review proceed. The parties subsequently agreed that the case record review would be conducted jointly. In a stipulation “So Ordered” by the Court on January 28, 1997 (“the Stipulation”), the parties established a Case Review Team (“the CRT”) to carry out the case review. The CRT consists of the Center for the Study of Social Policy, the United Way of New York City, and Larry G. Brown, the Director of the Performance Monitoring and Analysis Unit, Office of Children and Family Services, New York State Department of Social Services (“DSS”).
Under the Stipulation, the CRT is to “conduct a review of an appropriate sample(s) of records of members of the class for the purpose of determining the accuracy of the factual allegations in the complaint concerning alleged deficiencies in the New York City child welfare system.” Stipulation, ¶ 5. The Stipulation also provides that the “Case Review team shall produce a jointly written report based on the data obtained in the case record review. All parties reserve their right to present any other data or to call expert witnesses of their own selection at the trial in this matter.” Stipulation, ¶ 8. It was later decided that the written report of the CRT (“the Report”) would be issued in three stages.
Although the Stipulation requires that the “Case Review Team ... maintain the confidentiality of all case review information, case records and individual-identifying information,” Stipulation, ¶ 21, there is no provision of confidentiality for the Report itself.
On August 13, 1997, the CRT issued the first stage of its Report to counsel and the Court. That day, Children’s Rights Inc., counsel for plaintiffs, released the Report to the press. Defendants immediately sought an order from the Court prohibiting
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further release of the Report. During a telephone conference with the parties on August 13, 1997, the Court directed that the Report not be released pending further consideration by the Court. That directive was reaffirmed in a subsequent telephone conference on August 14, 1997. At a court conference on September 10, 1997, the Court set a briefing schedule for the instant motion for a protective order.1
DISCUSSION
*2 Under Rule 26(c), Fed.R.Civ.P., a court may, for good cause shown, “make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including an order that “disclosure or discovery ... be had only on specified terms and conditions.” The rule places the burden of showing good cause squarely on the movant.
Emphasizing that they are not asking that the Report be permanently sealed, defendants seek a protective order that would prohibit the release of the Report until such time as it is received in evidence at the trial of this matter. Their request centers on the timing of the disclosure of the Report.
According to defendants, this restriction is necessary “so that ACS can continue to function at the highest possible level without defeatism and demoralization.” Defs.’ Mem. in Supp. Mot. for a Protective Order (“Defs.’ Mem.”) at 6. Defendants claim that the press published abbreviated versions of both the first stage of the Report and the parties’ comments, focusing on controversy and tending to emphasize that which it interpreted as negative. Affidavit of Commissioner Scoppetta in Supp. Mot. for a Protective Order (“Scoppetta Aff.”) at ¶ 6. Such coverage, continues the City, “was needlessly embarrassing and demoralizing to many of the [ACS] staff.” Scoppetta Aff. at ¶ 8.
I. The presumption of access In Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), the Supreme Court discussed the common law right of public access to judicial documents:
It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice, ... American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies, ... and in a newspaper publisher’s intention to publish information concerning the operation of government.
Id. at 597–98 (citations omitted).
A. Whether the Report is a “judicial document” The Second Circuit explored the definition of “judicial document” in United States v. Amodeo, 44 F.3d 141 (2d Cir.1995). The panel rejected the Third Circuit’s mechanical view of the term, which “ ‘focused on the technical question of whether a document is physically on file with the court.” ’ Id. at 145 (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir.1994)). Instead, the court held that
*3 the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.
Id.
The Court acknowledges that it is implicit in the Second Circuit’s definition of “judicial document” that the document be 2

Marisol A. v. Giuliani, Not Reported in F.Supp. (1997)
filed with the Court. It is a mere technicality, however, that the Report in the instant case has been submitted to, but not filed with, the Court. The Report was created pursuant to a Stipulation which was “So Ordered” by the Court. A procedure was established whereby drafts of the Report are circulated to the parties for comment. Once finalized, the Report is submitted to the Court, which, in turn, distributes it to the parties. The Report is the essence of a judicial document because it came into existence through a court order.
Furthermore, like the report in Amodeo, the Report at issue in this case is “relevant to the performance of the judicial function and useful in the judicial process.” Id. at 146. According to the Stipulation, the purpose of the Report is to determine the accuracy of the factual allegations in the complaint concerning alleged deficiencies in the New York City child welfare system. Stipulation, ¶ 5. The determination of litigants’ substantive rights is conduct at the heart of Article III. United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir.1995). Since the Report was ordered by the Court and is likely to play a significant role in the determination of the litigants’ substantive rights in this case—be it as evidence at trial or as a basis for a dispositive motion—the Court considers it a judicial document. Having determined that the Report is a judicial document, the Court now must consider the strength of the presumption of access to the Report.
B. The strength of the presumption of access The presumption of access is based on the need for federal courts to have a measure of accountability to the public and for the public to have confidence in the administration of justice. Id. at 1048. The weight to be given the presumption of access depends on “the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Id. at 1049.
As explained in section I.A., supra, the Report is likely to play an important role in the Court’s Article III function in this case. Since “the public has an ‘especially strong’ right of access to evidence introduced at trials,” and to materials on which a court bases the grant of summary judgment, the presumption of access is strong. See, Amodeo, 71 F.3d at 1049 (citation omitted).
*4 The Second Circuit has also held that public access to discovery materials is “particularly appropriate when the subject matter of the litigation is of especial public interest.” In Re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987). The fate of children in the City’s child welfare system is important to the public. This is demonstrated by the press coverage of this case and of several highly publicized instances of sometimes fatal child abuse in the metropolitan area.
That the defendants are City and State officials responsible for child welfare also weighs in favor of access. Speaking of the federal government, the First Circuit held that, “[t]he appropriateness of making court files accessible is accentuated in cases where the government is a party.” Federal Trade Comm’n v. Standard Fin. Management Corp., 830 F.2d 404, 410 (1st Cir.1987). The extension of this principle to State and City officials seems only logical. Members of the public have a discrete interest in monitoring agency-spending of their tax dollars.
The presumption of access to the Report is strong because it is likely to play an important role in the Court’s Article III function and since both the parties and the subject matter of this litigation are of public interest.
II. Showing of good cause under Rule 26(c) It is defendants’ burden to overcome the strong presumption of access with a showing of good cause for the issuance of a protective order. Agent Orange, 821 F.2d at 145. The good cause requirement of Rule 26(c) “acts as a guardian of the public’s right of access to discovery documents by requiring parties to make a threshold showing before documents will be withheld from public view.” Havens v. Metropolitan Life Ins. Co., No. 94 Civ. 1402, 1995 WL 234710 at *12 (S.D.N.Y. Apr. 20, 1995).
A. The possible effects of negative publicity on the functioning of ACS The City’s argument for good cause is essentially that ACS will be unable to function effectively in the wake of public release of the Report. According to the City,
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[t]he media coverage of the first CRR Report had an immediate negative impact on ACS. ACS workers are engaged in one of the most demanding and stressful jobs of public service—protecting children from abuse. This involves the constant stress of interacting with dysfunctional families, which requires the highest degree of concentration and morale. The negative press reports generated by plaintiffs’ counsel and the press demoralized ACS workers by implying that they were failing to perform adequately and might even be harming the children they are trying so hard to protect.
ACS then had to take remedial action to reassure the ACS workers that they are doing a good job, and to explain the actual basis of the CRR Report, in contrast to what was reported about it. Resources which could have been used to further ACS’s mission were expended in this effort.
*5 Defs.’ Mem. at 8 (citations omitted).
There is no question that ACS workers have a demanding and stressful job that requires dedication. The Court is also mindful of the fact that, since its inception, ACS has been an agency under fire. That being said, it is difficult to gauge whether negative press resulting from the release of the Report would have any direct effect on dedicated ACS workers. It is not entirely clear to the Court that releasing the Report would, or should, hamper the functioning of ACS. Moreover, it is not the province of this Court, or Rule 26(c), to insulate a public agency or its workers from bad publicity. See e.g., Department of Econ. Dev. v. Arthur Andersen & Co., 924 F.Supp. 449, 487 (S.D.N.Y.1996) (holding that “ ‘[g]ood cause’ is not established merely by the prospect of negative publicity”); Vassiliades v. Israely, 714 F.Supp. 604, 606 (D.Conn.1989) (observing that “[t]he possibility of ‘adverse publicity’ in and of itself does not justify sealing”). The Court is sensitive to the pressures under which ACS and Commissioner Scoppetta are operating. Restricting access to the Report will not necessarily alleviate the pressure, however, and might serve only to increase public concern regarding ACS.
The City concedes that the Report will ultimately be released to the public. Accordingly, the Court sees no reason to delay such release until trial in this matter, which is currently set for March 1998. Moreover, following the City’s argument to its logical conclusion, negative coverage of the Report is no less likely to hinder the functioning of ACS in March than it is now.
B. Prejudice Defendants’ argument that all levels of the judiciary might be prejudiced by negative press directed at ACS hardly merits discussion. The parties have agreed to a bench trial. As a preliminary matter, the Court notes that the dangers of prejudice are much less prevalent in bench trials than in cases to be tried by a jury.
Like the parties, the Court has the Report in hand. Therefore, it is unlikely to resort to press accounts in lieu of reading the Report carefully and in its entirety. When the time comes, the Court will listen to the interpretation presented by each party and its experts. The same would be expected from any other member of the judiciary who may someday rule on this case.
C. Interpretive commentary accompanying release of the Report Arguing that the Report is to be presented at trial in conjunction with interpretive commentary from one or more expert witnesses, defendants maintain that by itself, the Report presents an incomplete and inaccurate picture. In short, defendants “want the public to get the complete picture, not just the raw statistical data (shaped for publication by plaintiffs’ counsel and the media).” Defs.’ Mem. at 6. According to defendants, when the first part of the Report was released, plaintiffs and the press emphasized only the negative and scandalous parts of the Report, purposely misconstruing it. To assess the motives of journalists, however, “risks self-serving judicial decisions tipping in favor of secrecy.” Amodeo, 71 F.3d at 1050.
*6 The City may well be underestimating the public’s ability to grasp and absorb raw statistical data. Given all the circumstances, the Court is loathe to order that the Report be withheld on the ground that the press or the public might interpret it inaccurately. It is not for this Court to filter information for the public.2
D. First Amendment concerns Defendants contend that the plaintiffs and the press have no First Amendment right to discovery materials. To support their argument, they rely on Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), in which the Supreme Court affirmed the grant of a protective order.
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In Seattle Times, a religious organization and its leader sued local newspapers for defamation. During discovery, the defendant newspapers sought the identities of the organization’s members and donors. Plaintiffs moved for a protective order preventing defendants from disseminating any information gained through discovery, arguing that it “would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association.” Id. at 25. Although the trial court initially denied the motion without prejudice, it was ultimately persuaded to grant the motion by affidavits of members filed in support of the motion, which detailed threats of physical harm and reprisals.
In affirming the grant of a protective order, the Supreme Court held that where “a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” Id. at 37. That a protective order entered in conformance with Rule 26(c) is not violative of the First Amendment, however, does not assist defendants in their attempt to show good cause.
Seattle Times is illustrative in that it provides an example of what constitutes good cause for a protective order. It is distinguishable from the case at bar in that it involved substantial government interests. Specifically, in seeking a protective order, plaintiffs had relied upon the rights of privacy and religious association. Id. at 37 n. 24. Additionally, “[b]oth the trial court and the Supreme Court of Washington ... emphasized that the right of persons to resort to the courts for redress of grievances would have been ‘chilled” ’ had the motion for a protective order been denied. Id.
*7 Although Seattle Times makes clear that this Court has broad discretion to “decide when a protective order is appropriate and what degree of protection is required,” Id. at 36, the compelling interests presented in that case are absent here. Release of the Report would in no way infringe on any individual’s constitutional rights. The most it could do is result in negative press for defendants, which, standing alone, does not amount to good cause for the issuance of a protective order.

CONCLUSION
The presumption of access to the Report is strong due to the likelihood that the Report will play a significant role in the Court’s exercise of Article III power in this case, and the public’s interest in this litigation. Moreover, defendants have failed to show good cause for the issuance of a protective order.
In light of the public’s interest in monitoring both the Article III functions of this Court and the operations of ACS and DSS, it would be improvident of the Court to delay release of the Report. Therefore, defendants’ motion for a protective order pursuant to Rule 26(c), Fed.R.Civ.P., is denied.
Notwithstanding the denial of the motion for a protective order, release of the Report shall be stayed until October 16, 1997 at 5:00 p.m., to afford defendants the opportunity to apply to the Court of Appeals for a further stay if so advised. Absent a stay from the Court of Appeals, the Report will be filed with the Clerk of the Court on October 17, 1997.
It is so ordered.

Parallel Citations

26 Media L. Rep. 1151

Footnotes

1

In addition to the parties’ submissions, the New York Times Company and the Public Advocate of the City of New York have each

filed briefs as amici curiae in opposition to the City’s motion for a protective order.

2

In ruling in favor of televising oral arguments on defendants’ motion to dismiss, this Court rejected defendants’ argument that

accepting plaintiffs’ allegations as true might confuse the public. The Court held that it “is unwilling to deny access to information

based on the perceived inability of the public to grasp such information.” Memorandum and Order, March 1, 1996 at 4.

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 Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)

Opinion

1998 WL 132810 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Marisol A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW). | March 23, 1998.

MEMORANDUM DECISION AND ORDER
WARD, D.J.
*1 Defendants Rudolph W. Giuliani (“Mayor Giuliani” or “Mayor”), Marva Hammons, and Nicholas Scoppetta (“Commissioner Scoppetta” or “Scoppetta”) (collectively referred to as “City defendants”) move this Court for an order quashing the notice of deposition of Mayor Giuliani and for a protective order precluding the deposition of the Mayor pursuant to Fed.R.Civ.P. 26(c). For the following reasons, City defendants’ motion is granted.

BACKGROUND
In December 1995, plaintiffs filed this action, alleging that systemic deficiencies in the Child Welfare Administration (“CWA”) were endangering the well-being of thousands of children in the City of New York. Mayor Giuliani, on December 18, 1995, announced that CWA would be reorganized, and on January 10, 1996, “he created—for the first time in the city’s history—a free-standing agency, reporting directly to him, that would be charged with, in his words, ‘first, last, and always’ protecting the children of this city.” Honorable Rudolph W. Giuliani and Nicholas Scoppetta, Protecting the Children of New York: A Plan of Action for the Administration for Children’s Services 6 (Dec. 19, 1996) (hereinafter “Protecting the Children of New York”). CWA was thereafter transformed into the New York City Administration for Children’s Services (“ACS”), and Nicholas Scoppetta (“Commissioner Scoppetta” or “Scoppetta”) became commissioner of this new agency on February 10, 1996. Although familiarity with the Court’s earlier decisions in this action is assumed, the Court will summarize the facts relevant to the motion to quash the notice of deposition of Mayor Giuliani.
Discovery for this case has been ongoing. On January 16, 1998, City defendants represented that over 25,000 pages of documents have been produced. See King Decl. Supp. of City Defs.’ Mot. to Quash and for a Protective Order Precluding the Deposition of Mayor Rudolph W. Giuliani ¶ 11 (“King Decl.”). Plaintiffs have also been provided access to an extensive list of knowledgeable persons for the purposes of depositions. Included among these are Commissioner Scoppetta, John Linder (“Linder”) who was the consultant on ACS’s reform plan, and many Assistant and Deputy Commissioners of ACS. In addition, on December 19, 1997, this Court denied City defendants’ motion to quash the deposition of Howard Wilson (“Wilson”), the City’s former Commissioner of Investigation.
After the death of Eliza Izquierdo, in November 1995, Mayor Giuliani asked Wilson to chair an inter-agency task force designed to review the operations of CWA and to recommend to the Mayor potential improvements to CWA. Giuliani Decl. Supp. of City Defs.’ Motion to Quash and for a Protective Order Precluding the Deposition of Mayor Rudolph W. Giuliani ¶ 3 (“Giuliani Decl.”). In an oral ruling the Court denied defendants’ motion to quash the deposition of Wilson, holding that Wilson’s deposition “may include questions concerning the facts ascertained during his investigation of the former Child Welfare Administration, which led to public statements by Mayor Giuliani.” Hearing Transcript of 12/19/97 at 40, line 7–10. Since Mayor Giuliani had made public comments regarding advice received from Wilson, which were reported in the press, this Court ordered that Wilson’s deposition could include the factual underpinnings of these publicized recommendations and
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conclusions. Id. at 40.
*2 Pursuant to Rule 30 of the Federal Rules of Civil Procedure, plaintiffs served Mayor Giuliani with a notice to appear for a deposition on December 23, 1997. In submissions to the Court and correspondence between the parties, plaintiffs claim that there are a variety of issues on which only Mayor Giuliani is qualified to present testimony. Among these are Mayor Giuliani’s: (1) reasons for requesting Wilson to investigate CWA and the findings which Wilson presented to Mayor Giuliani; (2) reasons for ordering the creation of ACS; (3) retention of Linder to draft a reform plan for CWA; (4) involvement in the setting of policy for ACS; and (5) reasons for appointing Scoppetta as the first commissioner of ACS. Plaintiffs also wish to question Mayor Giuliani regarding an alleged discrepancy between Commissioner Scoppetta’s testimony concerning the deficiencies existing in ACS when he became commissioner of the agency and Mayor Giuliani’s public statements regarding the shortcomings of the agency. See Pls.’ Mem. Opp. Mot. to Quash the Notice of Deposition of Mayor Rudolph W. Giuliani (“Pls.’ Mem.”); Letter from Marcia Robinson Lowry to the Court of 1/19/98 at 5–10 (“Pls.’ Letter to Court”); King Decl. Ex. B: Letter from Marcia Robinson Lowry to Gail Rubin of 12/18/97 at 3–4 (“Pls.’ Letter to Rubin”).
The City defendants now ask the Court to quash the notice of deposition of Mayor Giuliani.
DISCUSSION
I. Deposition of High Level Government Official
A. Legal Standard Rule 30 of the Federal Rules of Civil Procedure provides for broad access to persons during the discovery process. Fed.R.Civ.P. 30(a). Parties, however, may be limited in their pursuit of depositions under Rule 26(c), which provides that courts can issue a protective order to prevent “undue burden” in the discovery process. Fed.R.Civ.P. 26(c). While granting a protective order and quashing a deposition is the exception rather than the rule, the burden a deposition would place on a high ranking government official must be given special scrutiny.
While case law in the Second Circuit is scant on the issue of deposing high ranking government officials, the Court finds the two prong test applied by both plaintiffs and city defendants to be the standard when evaluating deposition notices of high ranking officials. Depositions of high level government officials are permitted upon a showing that: (1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source and (2) the deposition would not significantly interfere with the ability of the official to perform his governmental duties. See Martin v. Valley Nat’l Bank, 140 F.R.D. 291, 314 (S.D.N.Y.1991); see also Sanstrom v. Rosa, 1996 U.S. Dist. LEXIS 11923, *11–13 (S.D.N.Y. Aug. 16, 1996) (permitting the deposition of Governor Cuomo, after his governorship ended, because he possessed particular information necessary to the case that could not reasonably be obtained by other discovery devices). As a general proposition, high ranking government officials are not subject to depositions. See National Nutritional Foods Ass’n v. F.D.A., 491 F.2d 1141, 1144–46 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586–87 (D.C.Cir.1985); Church of Scientology v. I.R.S., 138 F.R.D. 9, 12 (D.Mass.1990).
*3 The first prong of this standard, which requires that the deposition be necessary to obtain relevant information not available from other sources, is strictly imposed. Courts, before permitting the involuntary deposition of a high ranking government official, require that the party seeking the deposition demonstrate that the official’s testimony will “likely lead to the discovery of admissible evidence and is essential to that party’s case.” Warzon v. Drew, 155 F.R.D. 183, 185 (E.D.Wis.1994) (citing Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982)). If the information is available through alternative sources, courts discourage the deposing of high officials. Id.
Further, when applying the first prong, courts only permit the deposition of a high ranking government official if he has unique personal knowledge that cannot be obtained elsewhere. For example, in L.D. Leasing Corp., Inc. v. Crimaldi, the court granted a protective order prohibiting the deposition of then Mayor David Dinkins (“Mayor Dinkins”). 1992 U.S. Dist. LEXIS 18683, *3–4 (E.D.N.Y. Dec. 1, 1992). In quashing the notice of deposition of Mayor Dinkins, the court found that: (1) Mayor Dinkins had no first-hand knowledge of the information being sought; (2) several key individuals had already been deposed; and (3) the examination with regard to a Local Law is the type of mental probing of officials that is prohibited. Id. The court held that, “[i]n general, a party may only obtain the deposition of a high-level government official by showing that
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official has particularized first-hand knowledge that cannot be obtained from any other source.” Id. at *2–3 (citations omitted).
In a similar case, a court suppressed the deposition of the Mayor of Philadelphia. Hankins v. City of Philadelphia, 1996 U.S. Dist. LEXIS 13314 (E.D.Pa.1996). The court placed the burden on those seeking the deposition to “demonstrate that [the official’s] testimony is likely to lead to the discovery of admissible evidence, is essential to that party’s case and that this evidence is not available through any alternative source or less burdensome means.” Id. at *3–4 (citations omitted). While the Mayor of Philadelphia was one of three members of the City’s Administrative Board, which approved changes to job requirements, the court found that the he had no unique personal knowledge of the particular reasons for the proposed changes. Id. (“High ranking government officials are generally entitled to limited immunity from being deposed concerning matters about which they have no unique personal knowledge.”) (citations omitted).
High ranking government officials are granted this limited immunity from being deposed when they have no personal knowledge to ensure that they have the time to dedicate to the performance of their governmental functions. See Warzon, 155 F.R.D. at 185; In re U.S., 985 F.2d 510, 512 (11th Cir.), cert. denied, 510 U.S. 989, 114 S.Ct. 545, 126 L.Ed.2d 447 (1993); Kyle Eng’g Co. v. Kleppe, 600 F.2d 226, 231–32 (9th Cir.1979). “If the head of a government agency were subject to having his deposition taken concerning any litigation affecting his agency ..., we would find that the heads of government departments and members of the President’s Cabinet would be spending their time giving depositions and would have no opportunity to perform their functions.” Capitol Vending Co. v. Baker, 36 F.R.D. 45, 46 (D.D.C.1964); see also Church of Scientology, 138 F.R.D. at 12. In weighing the concerns of those seeking depositions of government officials, courts must place “reasonable limits” so as to conserve the time and energies of public officials and prevent the disruption of the primary functions of the government. Community Fed. Sav. and Loan Ass’n v. Federal Home Loan Bank Bd., 96 F.R.D. 619, 621 (D.D.C.1983); Wirtz v. Local 30, Int’l Union of Operating Eng’rs, 34 F.R.D. 13, 14 (S.D.N.Y.1963) (“[C]ommon sense suggests that a member of the Cabinet and the administrative head of a large executive department should not be called upon personally to give testimony by deposition, either in New York or elsewhere, unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it.”).
B. The Standard as Applied to Plaintiffs’ Request to Depose Mayor Giuliani *4 After reviewing plaintiffs’ reasons for requesting the deposition of Mayor Giuliani, the Court finds that the legal standard applicable to high ranking government officials is not met. The information plaintiffs seek from the deposition of the Mayor can be obtained through other sources, and therefore the deposition would place an undue burden on an official who already has large demands on his time.1
The Court will briefly outline the issues plaintiffs would like to question the Mayor about and explain why they do not warrant his deposition. First, plaintiffs indicate that they wish to depose Mayor Giuliani about his reasons for asking Wilson to investigate CWA and the findings which Wilson presented to the Mayor. See Pls.’ Letter to Rubin at 3. Since this Court allowed Wilson’s deposition to go forward, it appears obvious that such information can be gathered from him. Deposing the Mayor on this basis would be unduly burdensome as any relevant information regarding Wilson’s investigation can be obtained from an alternative source, Wilson himself.
Second, plaintiffs indicate their desire to depose Mayor Giuliani regarding his retention of Linder to draft a reform plan for CWA. See Pls.’ Letter to Rubin at 3. Plaintiffs have already been given the opportunity to depose Linder, and it is clear to the Court that any information regarding recommendations made to the Mayor by Linder could be obtained from Linder. It would be a burden to a high ranking official to require his deposition on subject matter that can be obtained from another source.
Third, plaintiffs attempt to demonstrate a discrepancy between Commissioner Scoppetta’s deposition testimony and Mayor Giuliani’s public statements regarding the condition of the agency. Pls.’ Mem. at 8–10; Pls.’ Letter to Court at 5–6. This Court has reviewed the first two hundred pages of Commissioner Scoppetta’s deposition transcript and the newspaper and television reports featuring the Mayor’s comments on child welfare. See King Reply Decl. Supp. of City Defs.’ Mot. to Quash and for a Protective Order Precluding the Deposition of Mayor Rudolph W. Giuliani Ex. A (“King Reply Decl.”); Peters Decl. Supp. of Pls.’ Mem. Opp. Mot. to Quash the Notice of Deposition of Mayor Rudolph W. Giuliani Ex. F (“Peters Decl.”). The Court is in agreement with City defendants that Commissioner Scoppetta’s statements do not contradict those of the Mayor, nor do they exhibit an incongruity between the positions of the Mayor and Scoppetta with regard to child welfare in New York City. When questioned regarding specific areas of CWA or ACS, Scoppetta did not always indicate that the area was below legal standards or requirements or that the functions within the agency area were inadequate. He did
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acknowledge, however, the “ills of the agency” and that “Child Welfare needed a lot of attention.” King Reply Decl. Ex. A: Scoppetta’s Dep. at 13. Further, Scoppetta stated in the affirmative that there were unaddressed problems within ACS as of February 1996. King Reply Decl. Ex. A: Scoppetta’s Dep. at 33. Scoppetta acknowledged that he was concerned with improving most areas within ACS’s domain and that a global problem did exist.
*5 As plaintiffs point out, Mayor Giuliani acknowledged “widespread problems” within the agency. See Pls.’ Mem. at 9. But, plaintiffs also state that the “topics about which [they] seek to depose Mayor Giuliani do not involve the specific day-to-day-operation of ACS, but rather more global issues.” Pls.’ Mem. at 13. The Court does not find any inconsistencies between the Mayor’s global statements, about the agency as a whole, in the press and those made by Scoppetta in his deposition. Both the Mayor’s public statements and Scoppetta’s deposition testimony highlight that general problems existed in the area of child welfare. There is no divergence since the Mayor did not comment on the specific areas within the agency. While Scoppetta was unable to comment as to the effectiveness of every specific area within the purview of ACS, this provides no reason for deposing Giuliani. Further, the Mayor clearly states in his affidavit that he does not have first-hand knowledge of the factual affairs of ACS, so it is highly unlikely that the Mayor would be in a better position than Scoppetta to comment on the specific areas of ACS that plaintiffs refer to when attempting to show a schism between the Mayor and Scoppetta.2 See Giuliani Decl. ¶ 6–8. Plaintiffs have put forth no evidence showing contradictions, nor do they offer any evidence indicating the Mayor’s testimony will add crucial information to that already received. As the plaintiffs have already been given access to government officials better able to provide the information plaintiffs seek, including Scoppetta and the Assistant and Deputy Commissioners, the Court finds no reason to allow the deposition of Mayor Giuliani to go forward.
Fourth, plaintiffs claim that they need to depose the Mayor in order to learn his reasons for ordering the creation of ACS. Plaintiffs argue that the factors involved in initiating a reform plan are necessary for plaintiffs to determine the durability of the reform. See Pls.’ Mem. at 7. As the Mayor has indicated, any facts on which he based the need for reform were facts garnered from others, specifically from Wilson or Scoppetta. See Giuliani Decl. ¶ 6–7. In addition, as is discussed below, any new information that Mayor Giuliani could possibly supply to plaintiffs is subject to the executive privilege.3
Plaintiffs have failed to establish that the deposition of Mayor Giuliani is necessary to obtain information that is not available from any other source. Further, deposing the Mayor on the bases that plaintiffs assert would unduly burden an official whose duty is not just to set the policy of ACS, as plaintiffs point out, but to be the policy maker for the city as a whole. It would be improper to depose the Mayor regarding every topic that he at some point in time addressed in a public statement, and as he has no personal or unique knowledge regarding child welfare, this case should be no exception. Allowing for depositions where no personal knowledge existed would open up a floodgate of depositions, consuming much of the Mayor’s time—a clear interference with his ability to perform his governmental functions.
II. Executive Privilege
A. Legal Standard *6 City defendants claim that much of the information plaintiffs seek is subject to the executive privilege. The deliberative process privilege, or executive privilege, “protects the decisionmaking processes of the executive branch in order to safeguard the quality and integrity of governmental decisions.” Hopkins v. H.U.D., 929 F.2d 81, 84 (2d Cir.1991); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Local 3, Int’l Brotherhood of Electrical Workers, AFL–CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988); New York City Managerial Employee Ass’n v. Dinkins, 807 F.Supp. 955, 956 (S.D.N.Y.1992); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff’d, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). This privilege is premised on the notion that effective decisionmaking requires a free flow of information amongst government officials and that this free flow would be constrained if these communications had the potential to be revealed to outsiders. New York City Managerial Employee Ass’n, 807 F.Supp. at 956–57 (citing In re Franklin Nat’l Bank Sec. Litig., 478 F.Supp. 577, 580–81 (E.D.N.Y.1979); Archer v. Cirrincione, 722 F.Supp. 1118, 1122 (S.D.N.Y.1989)); see also Carl Zeiss Stiftung, 40 F.R.D. at 324–25.
The deliberative process privilege exists when communications are both (1) predecisional and (2) deliberative. Hopkins, 929 F.2d at 84; New York City Managerial Employee Ass’n, 807 F.Supp. at 957. Predecisional communications are those communications generated in order to assist the agency decisionmaker in making a decision. See Hopkins, 929 F.2d at 84; New York City Managerial Employee Ass’n, 807 F.Supp. at 957. Deliberative communications are those relating to the process by which policies are formulated. See Hopkins, 929 F.2d at 84; New York City Managerial Employee Ass’n, 807
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
F.Supp. at 957. Such communications are used to aid a decisionmaker in arriving at a policy decision.
In addition to communications with others, the executive privilege extends to the mental processes by which an executive reaches a decision. The Supreme Court has clearly stated that the mental processes of executives should not be probed. See United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) (holding that “the integrity of the administrative process must be [] respected,” and therefore discouraged the practice of calling high level officials as witnesses); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) (recognizing that it is “not the function of the court to probe the mental processes of the Secretary [of Agriculture] in reaching his conclusions”); see also Carl Zeiss Stiftung, 40 F.R.D. at 325–26. “[T]op executive [] officials should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions.” Simplex Time Recorder Co., 766 F.2d at 586.
*7 Exceptions to the deliberative process privilege do exist. “Where the decision-making process itself is the subject of the litigation, the deliberative privilege may not be raised as a bar against disclosure of critical information.” Burka v. New York City Transit Authority, 110 F.R.D. 660, 667 (S.D.N.Y.1986). The mental processes, which are normally privileged under the deliberative process privilege, may also be discoverable where there are allegations of misconduct or misbehavior. United States v. American Telephone and Telegraph Co., 524 F.Supp. 1381, 1389 (D.D.C.1981) (permitting staff members to be questioned regarding information normally considered deliberative privilege where the allegation involves inappropriate influence on the Commission in excess of the rules or customary practices of the Federal Communications Commission). In some instances, even when the court recognizes that an exception to the deliberative process privilege must be given as the allegation is personal to the defendant, the court still does not allow for the probing of the mental processes of the deponent. See Union Sav. Bank v. Saxon, 209 F.Supp. 319, 319–20 (D.D.C.1962) (permitting the deposition of the Comptroller of the Currency as he is accused of issuing a branch certificate to a bank on the basis of ex parte representations and a personal relationship between the Comptroller and the president of the bank).
This Court recognizes that a deposition cannot be barred simply because a deponent may be asked about privileged information. See Sanstrom, 1996 U.S. Dist. LEXIS 11923, *14 (“the mere fact that a witness may be asked questions that seek to elicit privileged matter does not provide a colorable basis for precluding the entire deposition”). But, when no other information is sought from a deposition, this privilege can bar the deposition.
B. The Executive Privilege of Mayor Giuliani The Court now turns to the few assertions plaintiffs put forth as reasons for deposing the Mayor which this Court finds barred by the executive privilege.
Plaintiffs seek to depose the Mayor regarding both his reasons for creating ACS and for appointing Scoppetta as its first commissioner. Pls.’ Mem. at 4; Pls.’ Letter to Court at 5–7. These decisions involve both factual underpinnings and the mental processes of the Mayor. This Court will take plaintiffs at their word that they “do not seek to probe the underlying mental processes that culminated in the Mayor’s decisions regarding child welfare.” See Pls.’ Mem. at 12. That being the case, the Court finds no non-privileged information regarding the Mayor’s decisions that cannot be obtained from alternative sources. As the Mayor has stated, any reasons for creating ACS are based on facts obtained from other individuals, primarily Wilson. Giuliani Decl. ¶ 6–8. Therefore, the only additional information that plaintiffs could potentially garner from the Mayor involves the thought processes of the Mayor. Any examination by plaintiffs as to the Mayor’s mental processes would be barred by the executive privilege.
*8 This Court recognizes that the deliberative process privilege cannot be raised as a bar to all decisionmaking processes, especially when such processes are the subject of litigation. Plaintiffs in the instant case, however, are not challenging the process by which decisions were made. Therefore, the Court finds no reason to overrule the deliberative privilege.
Further, the Mayor has not waived his executive privilege by issuing press releases or documents, including “Protecting the Children of New York: A Plan of Action for the Administration for Children’s Services.” Plaintiffs argue that “[t]o the extent that executive privilege might have ever applied to these subjects, such privilege has been waived as a result of voluntary action on the part of defendants in making this information public.” Pls.’ Mem. at 12. None of the authority on which plaintiffs base their claim persuades this Court that the Mayor waived his executive privilege. The court in In re Sealed Case, found that the “release of a document only waives [the deliberative process privilege] for the document or information specifically released, and not for related materials.” 121 F.3d 729, 741 (D.C.Cir.1997). Accordingly, the Mayor’s statements only waived the privilege with respect to the information provided in them, and clearly any additional underlying information which is not privileged can be obtained from other sources.4
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CONCLUSION
For the foregoing reasons, City defendants’ motion to quash the notice of deposition and for a protective order precluding the deposition of Mayor Giuliani is granted.
It is so ordered.

Footnotes

1

Any information which plaintiffs could garner only from the Mayor involves executive privilege. These issues are addressed in

Section II of this Discussion entitled “Executive Privilege.”

2

If the Court is to believe plaintiffs when they state that they do not wish to seek specific data from the Mayor, then the information

on which plaintiffs rely to prove a disagreement between the Mayor and Scoppetta is wholly unfounded. Plaintiffs attempt to assert

that Scoppetta’s lack of knowledge on specific areas of ACS demonstrates a discrepancy in views. See Pls.’ Mem. at 8–9. There is

no discrepancy, on the contrary, Scoppetta has acknowledged the overall problems facing the agency but did not recall specifics

with regard to such things as family preservation services and preventive services.

3

Plaintiffs’ additional reasons for seeking the deposition of Mayor Giuliani will be discussed in Section II of this Decision.

4

“Protecting the Children of New York: A Plan of Action for the Administration for Children’s Services,” was a policy statement

and plan of action issued jointly by Mayor Giuliani and Commissioner Scoppetta. Therefore, any information which plaintiffs seek

regarding this document can be obtained from Scoppetta. Plaintiffs will still have access to the material, but are not permitted to

unduly burden an additional high ranking government official.

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 Marisol A., By her Next Friend, Forbes v. Giuliani, Not Reported in F.Supp. (1998)

Opinion

1998 WL 158948 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Marisol A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 CIV. 10533(RJW). | April 1, 1998.

MEMORANDUM AND ORDER
WARD, D.J.
*1 State defendants having moved this Court for an order quashing the notice of deposition of George E. Pataki, Governor of the State of New York (“Governor Pataki”), and for a protective order precluding the deposition of Governor Pataki pursuant to Rule 26(c)(1), (3), (4) of the Federal Rules of Civil Procedure, and the Court having considered the submissions of the parties and the oral arguments of counsel finds that the following issues are properly subject to discovery except in the limited instances where they involve executive privilege:
(1) information of which Governor Pataki was made aware around the time of Elisa Izquierdo’s death regarding child welfare in New York City which potentially influenced his decision in December 1995 to direct the New York State Department of Social Services (“DSS”) to undertake an extensive review of the Child Welfare Administration, now the Administration for Children’s Services, that resulted in the April 1996 Report titled “A Review of Investigations, Assessment and Decision Making in Child Abuse and Maltreatment Reports Received by the Child Welfare Administration of New York City”; and
(2) information of which Governor Pataki was made aware which served to influence his decision to disband DSS and place its child welfare responsibilities in a new agency with a new Commissioner as of 1998–99.
Rule 30 of the Federal Rules of Civil Procedure provides for broad access to persons during the discovery process. Fed.R.Civ.P. 30(a). Parties, however, may be limited in their pursuit of depositions under Rule 26(c), which provides that courts can issue a protective order to prevent “undue burden” in the discovery process. Fed.R.Civ.P. 26(c). While granting a protective order and quashing a deposition is the exception rather than the rule, the burden a deposition would place on a high ranking government official is given special scrutiny.
To prevent Governor Pataki, a high ranking government official, from being unduly burdened, it is
ORDERED that State defendants designate witnesses with knowledge of the factual information furnished to Governor Pataki on which his decisions were based within five [5] business days of the date of this Memorandum and Order and that the depositions of these witnesses be conducted within ten [10] business days thereafter, and it is further
ORDERED that in the event State defendants are unwilling or unable to comply with the foregoing direction that Governor Pataki either furnish an affidavit concerning the issues identified above by April 15, 1998 or appear for an oral deposition at a time and place convenient to his schedule but in no event later than April 30, 1998.

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 Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)

Opinion

1998 WL 199927 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
MARISOL A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 Civ. 10533(RJW). | April 23, 1998.

MEMORANDUM DECISION AND ORDER
WARD, J. *1 Plaintiffs move for an order, pursuant to Rule 23(c)(4)(B), Fed.R . Civ.P., certifying subclasses. For the reasons that follow, plaintiffs’ motion is granted.

BACKGROUND
In December 1995 eleven named plaintiff children sued City and State officials alleging that the City of New York Child Welfare Administration (“CWA”), now known as the Administration for Children’s Services (“ACS”), is administered in violation of state and federal law. Plaintiffs allege that systemic deficiencies of agency-wide proportions have resulted in deprivations of their constitutional rights.
In an Order dated July 3, 1996 (“Class Certification Order”), the Court certified the following class:
[a]ll children who are or will be in the custody of [ACS], and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS.
City defendants asked the Court to certify the Class Certification Order for immediate appeal pursuant to 28 U.S.C. § 1292(b). By Memorandum and Order dated July 26, 1996, the Court granted City defendants’ request for interlocutory appeal, on the theory that “an immediate appeal may materially advance the ultimate termination of litigation.”
On appeal, the Second Circuit affirmed the Class Certification Order, but directed the Court to certify subclasses to facilitate the efficient and orderly administration of the litigation. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir.1997). Plaintiffs now move to certify subclasses.

DISCUSSION
In its decision upholding this Court’s grant of class certification, the Court of Appeals expressed concern regarding the breadth of the class and the high level of abstraction at which legal and factual issues common to the class were defined. The panel concluded that, although this Court had acted within its discretion in certifying a class based on what it deemed a super-claim, the creation of subclasses was necessary. The Court of Appeals cautioned that,
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[w]ell in advance of trial, the district court must engage in a rigorous analysis of the plaintiffs’ legal claims and factual circumstances in order to ensure that appropriate subclasses are identified, that each subclass is tied to one or more suitable representatives, and that each subclass satisfies Rule 23(b)(2). Thus, it is imperative that the district court identify (1) the discrete legal claims which are at issue, (2) the named plaintiffs who are aggrieved under each individual claim at issue, and (3) the subclasses that each named plaintiff represents.
Marisol A., 126 F.3d at 378–79.1 While it was left to this Court to determine what subclasses might be appropriate, the panel did offer the following guidance:
One possible method of developing proper subclasses would divide the present class based on the commonality of the children’s particular circumstances, the type of harm the children allegedly have suffered, and the particular systemic failures which the plaintiffs assert have occurred. *2 Id. at 379. Accordingly, plaintiffs now move to certify the following subclasses:
SUBCLASS I: Children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment.
The deficiencies, legal claims and named plaintiffs associated with Subclass I are as follows:
[text material not displayable] Failure to timely investigate reports of abuse or neglect, in violation of Child Abuse Prevention and Treatment Act (“CAPTA”) requirements that defendants maintain a system to receive allegations of suspected child abuse or neglect, 42 U.S.C. §§ 5106a(b)(1)(A) & (2), and New York Social Services Law (“SSL”) requirements regarding the role and functions of the New York State Child Abuse and Maltreatment Register (“State Central Register”), SSL §§ 398(2)(a) & (6)(a), 417, 421.1, 421.2(a) & (b), and the timing of investigations of abuse and neglect. SSL §§ 424, 424–b, 424–c. Named plaintiffs: Marisol A., Shauna D., Walter and Richard S.2
[text material not displayable] Failure to conduct adequate investigations and assessments of risk to children, in violation of CAPTA requirements that defendants promptly investigate reports of abuse and neglect and act immediately to protect abused or neglected children and children in danger of abuse or neglect, 42 U.S.C. §§ 5106a(b)(2), 5106c(b)(1), SSL requirements regarding the components of investigations of abuse and neglect, SSL §§ 424(6) & (7), and New York Family Court Act (“Family Court Act”) requirements concerning the initiation of Family Court proceedings, N.Y.F.C.A. § 1024 and the N.Y. Const. Art. XVII.
Named plaintiffs: Marisol A., Shauna D., Walter and Richard S.
[text material not displayable] Failure to take proper steps to protect children who are or should be found at risk of abuse or neglect in violation of 42 U.S.C. § 5106a(b)(2), and the Fourteenth Amendment to the United States Constitution.
Named plaintiffs: Marisol A., Shauna D., Walter and Richard S.
SUBCLASS II: Children in families in which there is an open indicated report of abuse or neglect.
The deficiencies, legal claims and named plaintiffs associated with Subclass II are as follows:
[text material not displayable] Failure to provide adequate and accessible preventive services and supervision to protect children and eliminate the need for, or reduce the length of, foster care placements in violation of the CAPTA requirement that defendants have procedures, adequate staffing, training, personnel, programs, services and facilities to address cases of abuse or neglect, 42 U.S.C. § 5106a(b)(3), Adoption Assistance and Child Welfare Act of 1980 (“Adoption Assistance Act”) requirements that defendants provide case plans including necessary services and permanency goals, 42 U.S.C. §§ 622(b)(9)(B)(iii) & (iv), 627(a)(2)(c) & (b)(3), 671(a)(16), 675(1), state law requirements governing the steps to be taken to protect children in open, indicated cases, SSL §§ 358–a, 392, 409, 409–a(1) & (7), 409–d(1) & (3)(b)(ii), 409–e, 409f(1), 424(10); N.Y.F.C.A. §§ 1055, 1055–a, 1058; N.Y. Const. Art. XVII, and federal constitutional due process requirements, U.S. Const. Amend. XIV.
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*3 Named plaintiffs: Marisol A., Shauna D., Walter and Richard S.
SUBCLASS III: Children in the custody of the Administration for Children’s Services.
The deficiencies, legal claims and named plaintiffs associated with Subclass III are as follows:
[text material not displayable] Failure to provide timely and adequate assessments, case plans and administrative reviews in violation of Adoption Assistance Act and SSL requirements that defendants establish and maintain written case plans for all foster children, prepared and updated within specified time periods and including specified information and assessments, 42 U.S.C. §§ 627, 671(a)(14) & (16), 675(1), and conduct periodic status reviews of the appropriateness of foster care placements and the progress made toward permanency goals. 42 U.S.C. §§ 675(1) & (5); SSL §§ 358–a, 397, 409e & 409f.
Named plaintiffs: Marisol A., Lawrence B., Thomas C., Ozzie E., Darren and David F., Bill and Victoria G., Brandon H., Steven I., and Walter and Richard S.
[text material not displayable] Failure to develop and maintain an adequate array of placements, placement of children in homes and facilities not best suited to their needs, and failure to ensure continuity and stability of placements in violation of Adoption Assistance Act and SSL requirements that children be placed in the least restrictive, most family-like, and most appropriate setting, and in foster homes or other institutions that accord with recommended standards regarding admissions, safety, sanitation, and civil rights protections. 42 U.S.C. §§ 671(a)(10), (11) & (16), 675(5)(A); SSL §§ 374–b, 374–c, 374–d, 375, 376, 377, 384–b, 397(3) & (4)(c), 398(3)(c), 398.6(g)(1); U.S. Const. Amend. XIV; N.Y. Const. Art. XVII. Named plaintiffs: Lawrence B., Thomas C., Ozzie E., Darren and David F., Steven I., Walter and Richard S., and Danielle J.3
[text material not displayable] Failure to provide services necessary to prevent foster children from deteriorating while in care in violation of the Adoption Assistance Act, 42 U.S.C. §§ 622(b)(9), 671(a)(16), 675(1) and SSL §§ 398, 409–e, 424–c, and in violation of federal and state due process and freedom from harm requirements, U.S. Const. Amend. XIV; N.Y. Const. Art. XVII, and requirements that children not be denied the protection and benefits of the child welfare system due to handicaps or disabilities. 29 U.S.C. § 794(a); 42 U.S.C. § 12132; SSL §§ 398.4(a), .6(p) & .15.
Named plaintiffs: Lawrence B., Thomas C., Darren and David F., Bill G., Steven I., Brandon H., Walter and Richard S.
[text material not displayable] Failure to provide services necessary to promote children’s return home where appropriate, in violation of the Fourteenth Amendment to the United States Constitution and Adoption Assistance Act requirements that states conduct periodic status reviews of the appropriateness of foster care placements and the progress made toward permanency goals, 42 U.S.C. §§ 522(b)(9), 675(1) & (5), and SSL requirements regarding permanency planning for children in foster care, SSL §§ 409–a, 409–e.
*4 Named plaintiff: Ozzie E.
[text material not displayable] Failure to provide timely and adequate adoption services, in violation of the Fourteenth Amendment to the United States Constitution, Adoption Assistance Act requirements that defendants conduct periodic status reviews of the appropriateness of foster care placements and the progress made toward permanency goals, 42 U.S.C. §§ 622(b)(9), 675(1) & (5), and SSL requirements regarding permanency planning for children in foster care, SSL §§ 372–b, 372–f, 409–a, 409–e.
Named plaintiffs: Marisol A., Thomas C., Darren and David F., Bill and Victoria G., Brandon H., and Walter and Richard S.
[text material not displayable] Failure to provide adequate independent living services, in violation of Adoption Assistance Act requirements that defendants conduct periodic status reviews of the appropriateness of foster care placements and the progress made toward permanency goals, 42 U.S.C. §§ 675(1) & (5), and SSL requirements regarding permanency planning for foster children, SSL §§ 409–a; 409–e.
Named plaintiffs: Thomas C. and Steven I.
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
[text material not displayable] Failure to ensure timely judicial reviews and to adhere to court orders in violation of the Adoption Assistance Act, 42 U.S.C. § 675(5), the SSL, SSL § 392, and the Family Court Act, N.Y.F.C.A. §§ 756–a, 1055, 1055–a & 1058.
Named plaintiffs: Bill and Victoria G. Plaintiffs’ proposed subclasses track the three major stages in a child’s journey through the child welfare system. First there is a report of abuse or neglect, then a case is opened, and finally, if necessary, the child is taken into protective custody. The subclasses proposed are modeled on the reports of the Case Review Team, which demarcated the same periods in its analysis of the system.4
Federal Rule of Civil Procedure 23(c)(4)(B) provides that, “[w]hen appropriate a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.” Courts are empowered, under Rule 23(c)(1), to amend their certification orders any time before the case is decided on the merits. Each subclass must independently meet the requirements of Rule 23(a), which permits certification
only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Parties seeking class certification must also show that the class action is maintainable under Rule 23(b). In the instant case, plaintiffs must establish that defendants have acted, or refused to act, in a way that is generally applicable to each proposed subclass, thereby making appropriate final injunctive relief that will benefit each subclass as a whole. Fed.R.Civ.P. 23(b)(2).
*5 Defendants contend that plaintiffs’ proposed subclasses do not satisfy Rule 23. The Court will discuss the requirements of Rule 23, and why plaintiffs’ proposed subclasses comport with them, in turn.
I. Numerosity Class certification is appropriate if the number of plaintiffs is so large as to render joinder impracticable. In Robidoux v. Celani, the Second Circuit noted that the
[d]etermination of practicability depends on all the circumstances surrounding a case, not on mere numbers. Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.
987 F.2d 931, 936 (2d Cir.1993) (citations omitted). These factors are particularly relevant in the instant case, where plaintiffs are children in New York City’s child welfare system. The findings of the CRT reflect that 69% of children enter the system because of inadequate guardianship, 43% because of caretaker drug abuse, 37% due to inadequate parenting skills and 26% because they have suffered serious physical injury. See Second Report of the CRT at 24. Children who are unable to protect themselves at home have neither the ability nor the financial resources to individually seek relief in the courts. Further, that plaintiffs seek prospective injunctive relief that would benefit future subclass members also militates in favor of a finding of impracticability.
Subclass I consists of children who the defendants know or should know have been abused or neglected by virtue of a report of abuse or neglect. It includes all children in New York City who have been the subject of a report of abuse or maltreatment made to the State Central Register. In the last quarter of 1996 alone, these reports numbered 10,196. See First Report of the CRT at 2.
Subclass II is comprised of all children in families on which ACS maintains an open indicated report of abuse or neglect. The Second Report of the CRT indicates that between July 1, 1996 and December 31, 1996, there were 15,561 open indicated cases active in New York City. See Second Report of the CRT at 2. Subclass III consists of all children currently in the custody of ACS. According to the Third Report of the CRT, in 1996 there were approximately 50,000 children in New York City’s foster care system. See Third Report of the CRT at 2.
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The thousands of putative members of each subclass renders joinder impracticable. Therefore, the three subclasses proposed by plaintiffs independently satisfy the numerosity requirement of Rule 23(a)(1).
II. Commonality To satisfy the commonality requirement, “plaintiffs’ grievances [must] share a common question of law or of fact.” Marisol A., 126 F.3d at 376. By their very nature, class actions seeking injunctive relief often present common questions satisfying Rule 23(a)(2). 7A Charles A. Wright, et al., Federal Practice and Procedure § 1763 at 201 (1986). Plaintiffs assert that there are questions of fact and law common to the members of each of the proposed subclasses.
*6 They contend that one of the questions of fact common to the members of Subclass One is: Whether investigations conducted by defendants are timely and thorough, and whether defendants take actions necessary to ensure the protection of children found to be at risk of neglect or abuse? A question of law common to the members of Subclass One is: Whether defendants are in compliance with their obligations under CAPTA and SSL regarding the maintenance of a system to receive allegations of suspected abuse or neglect, conducting timely and adequate investigations and assessments of risk to children, and protecting children at risk?
According to plaintiffs, the putative members of Subclass Two have a common interest in the following factual question: Whether defendants provide adequate, accessible preventive services sufficient to eliminate the need for, or reduce the length of, foster care placements; and whether defendants monitor children in open indicated cases to ensure that they do not undergo further abuse? Among the asserted legal claims common to Subclass Two are: Whether defendants are in compliance with their legal obligations under CAPTA, 42 U.S.C. § 5106a(b)(3), the Adoption Assistance Act, 42 U.S.C. §§ 622(b)(9)(B)(iii) & (iv), 627(a)(2)(C) & (b)(3), 671(a)(16), 675(1) and the SSL relating to the provision of services to prevent the need for foster care placement, and relating to the protection of children in open, indicated cases?
Plaintiffs contend that the members of Subclass Three also raise claims involving common questions of law and fact. The questions of fact common to members of Subclass Three include: Whether defendants provide children in the custody of ACS with services necessary to provide protection, and prevent harm and deterioration; and whether defendants engage in legally mandated case planning to prevent foster children from drifting for years through the system? Legal questions common to Subclass Three members include: Whether defendants provide timely and adequate assessments, case plans, administrative reviews, and necessary services in compliance with their obligations under the Adoption Assistance Act, 42 U.S.C. §§ 622(b)(9), 627, 671(a)(14) & (16), 675(1) & (5), and state law, SSL §§ 358–a, 397, 398, 409e & 409f and 424–c?
Defendants argue that plaintiffs cannot show commonality because many of the claims challenge the “adequacy” or “appropriateness” of ACS decisions or actions. According to defendants, these are “matters of judgment which must be examined individually for each person, in light of each person’s unique circumstances.” Defs.’ Mem. Opp’n Mot. for Certification of Subclasses (“Defs.’ Mem.”) at 14.
This Court has already held that “[t]he unique circumstances of each child do not compromise” the questions of law and fact common to the class. Marisol A. v. Giuliani, 929 F.Supp. 662, 690 (S.D.N.Y.1996). The commonality inquiry hinges not on the individual circumstances of each plaintiff, but on the actions of defendants. As noted by the Third Circuit in Baby Neal v. Casey, “classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” 43 F.3d 48, 57 (3d Cir.1994) (citing 7A Charles A. Wright, et al., Federal Practice and Procedure § 1763 at 219 (1986)).
*7 In Baby Neal, the Third Circuit reversed a district court’s denial of a motion for class certification. Id. The Court of Appeals held that the district court erred in concluding that “the factual differences of the 6,000 children” precluded a finding of commonality, and thus class certification. Id. at 61. The Third Circuit noted that “the putative class members in this case share the common legal claim that ... systemic deficiencies [in Philadelphia’s child welfare agency] result in widespread violations of [plaintiffs’] statutory and constitutional rights, irrespective of their varying individual needs and complaints.” Id. Likewise, in the instant case, this Court holds that the questions of law and fact common to each subclass satisfy Rule 23(a)(2) regardless of the different factual circumstances faced by each plaintiff.
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
III. Typicality The commonality and typicality requirements are closely related. As noted by the Supreme Court,
[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.
General Tel. Co. v. Falcon, 457 U.S. 147, 157–58 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The typicality requirement of Rule 23(a) “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992), cert. dismissed, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993) (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir .1968), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)).
Subclass One is represented by named plaintiffs Marisol A., Shauna D., and Walter and Richard S., who have claims that are typical of Subclass One members. All four of the proposed representatives of Subclass One were the subjects of reports of abuse or neglect to the State Central Register, and all claim that defendants failed to properly investigate those reports. See Compl. ¶¶ 91, 129; Proposed Intervening Compl. ¶¶ 7–8. These claims are typical of those of the members of the proposed subclass in that they emerge from a common factual base—the alleged inadequacy of defendants’ protective service system and defendants’ failure to respond properly to reports of abuse and neglect—and they involve legal questions identical to those raised generally by the class. See e.g., In re Drexel Burnham Lambert, 960 F.2d at 291.
The claims of the named plaintiffs in subclass Two, Marisol A., Shauna D., and Walter and Richard S., are typical of those of the Subclass in its entirety. According to plaintiffs, each of these proposed subclass representatives: (1) has resided in a home that has been the subject of an indicated report of abuse or neglect; (2) has endured incidents of abuse or neglect that occurred after they were reported to the child welfare system, which had by then assumed responsibility for their protection; and (3) had been denied the range of services necessary to secure their physical and psychological well-being. Pls.’ Mem. in Supp. Mot. for Certification of Subclasses (“Pls.’ Mem. Supp.”) at 16.
*8 Finally, the claims of the named plaintiffs who will represent Subclass Three are typical of those of the subclass as a whole. Plaintiffs contend that each of the named plaintiffs representing Subclass Three
is, or was at the time of class certification, in the custody of defendants. The named plaintiffs’ experiences are typical of those children in foster care and the allegations they raise rest on factual circumstances that are replicated widely within the proposed subclasses. For example, like many foster children, Darren and David F. were denied necessary psychological services and, as a result, their mental state and behavior deteriorated significantly. Defendants’ failure to provide Darren and David with necessary mental health services typifies a pattern whereby such services are denied to a substantial portion of the foster children who need them. Bill and Victoria G. were denied proper case planning and, as a result, drifted through the foster care system for thirteen years, often with a goal of return home even when their mother’s whereabouts were unknown to the agency. This too is typical of many children in the Subclass who also have been denied proper case planning, and who have had the goal of return home maintained even though their parents could not be located. Similarly, Thomas C. spent six years in foster care before his mother’s parental rights were terminated, even though it was clear from the outset that, as a drug abuser who abused Thomas, she would never be a proper care giver. While in foster care, Thomas was placed with a Minister who took him out of state and sexually abused him. As a result, Thomas suffers from serious emotional problems and has attempted suicide. Like many foster children, he now has special mental health needs that must be addressed if he is not to suffer further deterioration in foster care.
Pls.’ Mem. Supp. at 18–19 (citations to Compl. and Reports of the CRT omitted).
Defendants argue that because the factual circumstances of each case differ, no named plaintiff can be typical of the class. As with commonality, however, factual differences between the plaintiffs do not preclude a finding of typicality. To establish
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typicality, plaintiffs need not prove that the claims of class representatives are “identical to those of the class members.” McNeill v. New York City Hous. Auth., 719 F.Supp. 233, 252 (S.D.N.Y.1989). In Wilder v. Bernstein, this Court observed that
[t]here are diverse issues of fact in all class actions. The individual members of a class will invariably reach an adversary posture with the defendant in different ways. But Rule 23(a)(3) does not require that the factual background of the named plaintiff’s [sic] case be identical with that of other members of the class, but that the disputed issue occupy essentially the same degree of centrality to the named plaintiffs’ claim as to that of other members of their purported class.
499 F.Supp. 980, 992 (S.D.N.Y.1980) (quoting Cottrell v. Virginia Elec. & Power Co., 62 F.R.D. 516, 520 (E.D.Va.1974)). The typicality requirement of Rule 23 is satisfied here because “individual differences among the plaintiffs and between the plaintiffs and other class members do not affect the plaintiffs’ central claim” that ACS is being administered in contravention of state and federal law, and that systemic deficiencies in the agency are resulting in deprivations of plaintiffs’ constitutional rights. See id.
IV. Adequacy of Representation *9 Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” There are two components to the adequacy of representation prong of Rule 23(a). First, “class counsel must be ‘qualified, experienced and generally able’ to conduct the litigation. Second, the class members must not have interests that are ‘antagonistic’ to one another.” In Re Drexel Burnham Lambert Group, Inc., 960 F.2d at 291.
At no point have defendants challenged the adequacy of Children’s Rights Inc., counsel to the plaintiff class. Nor do defendants contend that there may be conflicts of interest between the named plaintiffs and other class members.5 Rather, defendants’ opposition to adequacy of representation is contained in a cross-motion to dismiss certain plaintiffs and next friends. In their cross-motion, defendants argue that the claims of Lawrence B., Marisol A. and Steven I. have become moot, and that the connection between several next friends and the named plaintiffs they purport to represent is too tenuous to render them adequate next friends and representatives. For the reasons stated supra in note 1, the cross-motion has been severed and will be disposed of by the Court in the near future. In the event that the motion is granted in whole or in part, plaintiffs will have to substitute additional named plaintiffs and next friends who can adequately represent the class.
V. Rule 23(b)(2) Plaintiffs move for certification under Rule 23(b)(2), which provides that a class action may be maintained if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” According to plaintiffs, they have been injured, or are at risk of being injured, by defendants’ pattern of failing to comply with federal and state law.
The Third Circuit has gone so far as to say that certification under Rule 23(b)(2) is almost always appropriate in actions seeking primarily injunctive relief. Baby Neal, 43 F.3d at 58 (citing Weiss v. York Hosp., 745 F.2d 786, 811 (3d Cir.1984), cert. denied, 470 U.S. 1060 (1985)). In the instant case, plaintiffs seek declaratory and injunctive relief necessary and appropriate to remedy any violations of plaintiffs’ rights under the United States Constitution and the New York State Constitution and federal and state laws. Compl. ¶ 354(c). Further, they ask the Court to appoint a receiver with full authority to oversee and direct the implementation of any injunctive relief granted by the Court, to restructure New York City’s child welfare system and ensure that the child welfare system operates in full compliance with all applicable law. Compl. ¶ 354(e).
Because the failings of defendants alleged by the members of each subclass are generally applicable to the subclass as a whole, and the relief sought by plaintiffs is primarily injunctive and would benefit the subclasses in their entirety, Rule 23(b)(2) is satisfied.
CONCLUSION
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*10 Plaintiffs’ proposed subclasses meet each of the requirements of Rule 23(a) and satisfy Rule 23(b)(2). Accordingly, plaintiffs’ motion to certify subclasses is granted, and the subclasses are defined as:

Subclass One
Children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment.

Subclass Two Children in families in which there is an open indicated report of abuse or neglect.

Subclass Three
Children in the custody of the Administration for Children’s Services. It is so ordered.

Footnotes

1

In addition to plaintiffs’ motion to certify subclasses, there are several other motions currently pending before the Court, including:

plaintiffs’ motion to intervene additional plaintiffs and add and substitute next friends; defendants’ cross-motion to dismiss certain

claims, plaintiffs and next friends; plaintiffs’ motion for an order holding defendants in contempt of the Interim Stipulation and

Order entered by the Court on July 17, 1997 (“the Interim Stipulation and Order”); and defendants’ motion to vacate the Interim

Stipulation and Order. To comply with the Second Circuit’s direction that this Court certify subclasses well in advance of trial,

however, the Court has severed the motion to certify subclasses, and will dispose of the remaining motions in forthcoming

decisions.

2

Walter and Richard S. are proposed intervening plaintiffs. See supra note 1. The Court has reviewed plaintiffs’ motion to intervene

additional plaintiffs and expects to grant it shortly.

3

Danielle J. is a proposed intervening plaintiff. As noted above, the Court anticipates granting plaintiffs’ motion to intervene in a

forthcoming decision. See supra notes 1–2.

4

In a stipulation “So Ordered” by the Court on January 28, 1997 (“Stipulation”), the parties established a Case Review Team

(“CRT”) to “conduct a review of an appropriate sample(s) of records of members of the class for the purpose of determining the

accuracy of the factual allegations in the complaint concerning alleged deficiencies in the New York City child welfare system.”

Stipulation ¶ 5. The CRT consists of the Center for the Study of Social Policy, the United Way of New York City, and Larry G.

Brown, the Director of the Performance Monitoring and Analysis Unit, Office of Children and Family Services, New York State

Department of Social Services. In accordance with the Stipulation, the CRT has provided the Court and the parties with a three-part

report summarizing its findings. The first part, entitled, “Investigations of Reports of Suspected Child Abuse and Maltreatment by

New York City’s Administration for Children’s Services” (“First Report of the CRT”), was released on August 12, 1997. The

second part, entitled, “Services to Families with Open Indicated Cases” (“Second Report of the CRT”), was released on September

5, 1997. The third and final installment of the report was released in December 1997, and is captioned, “Services to Children in

Foster Care and Their Families” (“Third Report of the CRT”).

5

In their opposition to plaintiffs’ motion for class certification, defendants contended that there were conflicts of interest between

the class members. That argument, however, was flatly rejected by both this Court, Marisol A., 929 F.Supp. at 692, and the Second

Circuit, Marisol A., 126 F.2d at 378.

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 Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)

Opinion

1998 WL 265123 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Marisol A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 Civ. 10533(RJW). | May 22, 1998.

MEMORANDUM DECISION
WARD, J.
*1 Plaintiffs seek the intervention of additional plaintiffs, pursuant to Fed.R.Civ.P. 24, and the addition and substitution of next friends, pursuant to Fed.R.Civ.P. 17(c). City defendants cross-move for an order, pursuant to Fed.R.Civ.P. 56(b), dismissing certain plaintiffs and claims, and all of the next friends appearing in this action. For the reasons that follow, plaintiffs’ motion to intervene additional plaintiffs, and add and substitute next friends is granted. City defendants’ cross-motion for an order dismissing certain plaintiffs and all of the next friends is denied. The cross-motion for an order dismissing certain claims is granted in part and denied in part.

BACKGROUND
This class action was filed in December 1995 on behalf of children who have suffered, and some of whom continue to be at risk of, severe abuse and neglect. The complaint alleges that defendants, who are city and state officials with responsibility for administering and monitoring New York City’s Administration for Children’s Services (“ACS”) (formerly known as the Child Welfare Administration or “CWA”), mishandled plaintiffs’ cases and, through action or failure to act, deprived plaintiffs of their rights under the First, Ninth and Fourteenth Amendments to the United States Constitution, the Constitution of the State of New York, and several federal and state statutes. For a full discussion of plaintiffs’ claims and the facts underlying them, see the Court’s decisions of June 18, 1996 (reported at 929 F.Supp. 662 (S.D.N.Y.1996) (granting class certification and denying defendants’ motion to dismiss)), and April 23, 1998 (certifying subclasses), familiarity with which is assumed.
Now before the Court are several motions by plaintiffs and city defendants. Plaintiffs move to intervene additional plaintiffs, and to add and substitute next friends. City defendants move to dismiss certain plaintiffs, next friends and claims. The Court will address each of the motions in turn.

DISCUSSION
I. Plaintiffs’ Motions A. Plaintiffs’ Motion to Intervene Additional Plaintiffs Plaintiffs seek to intervene three additional plaintiffs: Richard and Walter S., by their grandparents and next friends W.N. and N.N., and Danielle J., by her next friend Angela Lloyd.
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Factual Allegations of Richard and Walter S.
Richard and Walter S. are brothers aged seven and eight years whose case was first investigated and determined to be indicated1 in September 1993. Since that time, they have had at least three different placements.
In April 1994 they were placed in a kinship foster home with their Aunt S. Although the boys initially adjusted well to the placement, their Aunt, who had begun to care for an ill relative, ultimately became overwhelmed by it. In March 1996, Aunt S. informed the boys’ caseworker that she could no longer care for the children and asked that they be removed. While the boys were living with Aunt S., their mother did not visit them, partake in necessary drug treatment services or plan for their return home. Although the staff at the contract agency which had assumed responsibility for the boys’ case realized that it was unlikely that the boys would be able to return home, they took no steps to find a suitable adoptive home for the boys.
*2 In October 1996, the contract agency learned that the S. brothers had spent one night with their mother, Aunt S.’s cousin. Judging that Aunt S. had endangered the children’s safety, the contract agency abruptly transferred the S. brothers to a non-kinship foster care home, forcing them to switch schools. The boys did not adjust well and experienced problems at home and at school. Shortly thereafter, the boys’ grandparents expressed an interest in taking the children. A home study on the grandparents was not performed until nearly five months later, however. Meanwhile, the boys remained in the foster home and continued to deteriorate.
In November 1996, the contract agency received a report from the boys’ school that a man living in the foster home had possibly mistreated the children. No timely efforts were made to investigate this man’s background or to determine whether he posed a threat to the boys. The brothers’ behavior continued to deteriorate.
In March 1997, defendants received a report that the S. brothers were being abused in their foster home. This report was never properly investigated.
The S. brothers continue to suffer emotional distress as a result of their experience in foster care. Despite repeated requests from their grandparents, ACS has failed to provide the boys with necessary mental health services.
Intervening Compl. ¶¶ 2–9. The S. brothers will serve as class representatives for all three subclasses certified in this case. See Memorandum Decision and Order dated April 23, 1998. Subclass One is comprised of all children whom defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment. Subclass Two includes children in families in which there is an open indicated report of abuse or neglect. Finally, Subclass Three includes all children in the custody of ACS. Richard and Walter S. assert the following legal claims:
Defendants have violated their constitutional and statutory rights by failing to ensure that an appropriate written case plan be developed, reviewed and implemented in a timely manner containing the elements mandated by federal and state law, and reasonable professional standards; by failing to take the necessary steps to provide them with proper care and the services necessary to facilitate a permanent placement and to prevent them from deteriorating while in foster care; by failing to provide them with a safe, stable placement, by failing to conduct a proper investigation of potential abuse, and by failing to protect them from harm while in foster care, all as required by federal and state law and reasonable professional standards.
Intervening Compl. ¶ 10.
Factual Allegations of Danielle J.
Danielle J. is fifteen years old and has been in the custody of New York City’s child welfare system for virtually her entire life.
City defendants have assigned Danielle J. to various inappropriate placements, including the Pre–Placement center operated by ACS at 7 Laight Street in Manhattan, where Danielle J. has spent the night on several occasions, including a
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full week during November 1997. Danielle has stayed at Pre–Placement while awaiting assignment to a licensed or certified foster care placement. She was required to spend nights at the Pre–Placement facility because defendants did not have an available licensed or certified placement suited to her needs.
*3 While at the Pre–Placement center, Danielle suffered from restlessness and frustration. Due to the crowding in the facility and the poor quality of the bedding, she was unable to sleep well and continually felt exhausted. Danielle witnessed several fights during her stay at the Pre–Placement center, including altercations that resulted in the police having to be called to the facility. Danielle witnessed members of the staff at the Pre–Placement facility grow short-tempered at the end of long overtime shifts, and yell and scream at children.
As a result of the crowds and chaos at the Pre–Placement facility, Danielle J. experienced feelings of discomfort, anger, trauma, and frustration.
Intervening Compl. ¶¶ 12–15. Danielle J. will be a named plaintiff for Subclass Three, which includes all children in the custody of ACS. Her legal claim is that defendants have failed to protect her from harm while she has been in their custody. Intervening Compl. ¶ 16.2
Under Fed.R.Civ.P. 24(b)(2), the Court may grant a timely application for intervention when the applicant’s claim and the main action have a question of law or fact in common, so long as the intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. Rule 24(b)(2) does not require an identity of facts between the proposed intervenors and the plaintiffs. German v. Federal Home Loan Mortgage Corp., 899 F.Supp. 1155, 1166 (S.D.N.Y.1995) (citing Swift v. Toia, 450 F.Supp. 983, 990 (S.D.N.Y.1978), aff’d, 598 F.2d 312 (2d Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980)). Rather, the rule is satisfied when, “despite factual differences between the parties, a common question of law is involved.” Davis v. Smith, 431 F.Supp. 1206, 1209 (S.D.N.Y.1977), aff’d, 607 F.2d 535 (2d Cir.1978). Indeed, more than one court has noted that “[v]arying facts and circumstances may actually add to the Court’s understanding of the scope and breadth of the claims and therefore support an intervention motion.” German, 899 F.Supp. at 1166 (citations omitted).
According to plaintiffs, Richard and Walter S. and Danielle J. share with the plaintiff class the following issue of law: whether defendants maintain an adequate range and number of placements to ensure that children are placed appropriately and do not deteriorate while in foster care. The intervening plaintiffs “allege that they have suffered injuries similar to those alleged by the named plaintiffs, and that all such injuries are the direct result of the challenged” practices of defendants. McNeill v. New York City Hous. Auth., 719 F.Supp. 233, 250 (S.D.N.Y.1989). Plaintiffs contend that the intervention of the three additional named plaintiffs will help elucidate the issues presented at trial.
Defendants do not contest that the intervening plaintiffs have questions of law and fact in common with the class. Rather, they argue that the application is untimely, and that they will be prejudiced if intervention is granted.
*4 In evaluating the timeliness of an application to intervene, the Court must look at the totality of the circumstances. Farmland Dairies v. Commissioner of New York State Dep’t of Agric., and Mkts., 847 F.2d 1038, 1044 (2d Cir.1988) (citing NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973)). Relevant considerations include:
(1) the length of time the applicant knew or should have known of his interest before making the motion; (2) prejudice to existing parties resulting from the applicant’s delay; (3) prejudice to the applicant if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness.
Id. (citing United States v. New York, 820 F.2d 554, 557 (2d Cir.1987)).
Considering all of the factors outlined above, the Court holds that plaintiffs’ motion is timely. That intervening plaintiffs are minors unaware of their interest in this action warrants a flexible application of the timeliness requirement.
Their arguments to the contrary notwithstanding, defendants will not be prejudiced by the intervention of Richard and Walter S. and Danielle J. Defendants have long been aware of the S. brothers. In a letter dated September 4, 1997, plaintiffs informed defendants that one of their case practice experts planned to testify at trial regarding the case of Richard and Walter S. Further, by the time this motion was filed at the beginning of February, 1998, defendants had already produced these children’s case records, taken part in four depositions regarding their claims, and been provided with interrogatory answers concerning them.
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Although Danielle J. is new to the case, her claims, particularly those involving her overnight stays at ACS’s Pre–Placement facility, are not. In May 1997, plaintiffs sought from the Court a Temporary Restraining Order prohibiting the City from housing children in the Pre–Placement center. After an evidentiary hearing, and in lieu of granting injunctive relief, the Court “so ordered” an Interim Stipulation and Order in which defendants agreed, among other things, to end overnight stays at Pre–Placement. Although defendants have continuously maintained that the Pre–Placement claims are not properly part of this case,3 they have been on notice of plaintiffs’ claims regarding the Pre–Placement facility since the late Spring of last year.
As with the claims of Richard and Walter S., defendants have already provided plaintiffs a good deal of discovery regarding the Pre–Placement facility, and indeed, are under continuing disclosure requirements pursuant to the Interim Stipulation and Order.4 Defendants are well aware, therefore, of what information is in the hands of plaintiffs, and have had ample time to develop strategies to defend against it.
The Court firmly believes that defendants will not be prejudiced by the intervention of Richard and Walter S. and Danielle J., nor that such intervention should result in any substantial delay of the trial. To ensure fairness, however, the Court will allow, on a showing of good cause, whatever additional discovery is necessary for defendants to prepare their defense with respect to the claims asserted by Richard and Walter S. and Danielle J.
B. Plaintiffs’ Motion to Substitute and Add Next Friends *5 Plaintiffs seek to substitute two next friends and add another. Kathryn Conroy, next friend to Shauna D., was recently awarded a federal grant pursuant to which she provides training to ACS on child protection and domestic violence. To avoid the appearance of a conflict of interest, she withdrew from the case in June 1997. Plaintiffs propose to replace Ms. Conroy with Nedda de Castro, a social worker at the teen pregnancy and parenting program at New York Hospital–Cornell Medical Center.
Professor Mitchell I. Ginsberg, next friend to named plaintiff Lawrence B., passed away in March 1996 after the complaint was filed in this action. Plaintiffs propose to replace Professor Ginsberg with Dr. Vincent Bonagura, a specialist in pediatric AIDS at Long Island Jewish Hospital, and a Professor of Pediatrics, Microbiology, and Immunology at Albert Einstein College of Medicine.
Finally, plaintiffs move to add Ms. Raymunda Cruz as a next friend to Marisol A. Ms. Cruz is Marisol A.’s adoptive mother, and proposes to serve with Rev. Dr. James Alexander Forbes, Jr., who will continue his involvement in this litigation.
Defendants urge the Court to deny the motion for substitution and addition of next friends, on the ground that plaintiffs delayed too long in making it.5 They contend that they will be prejudiced if the Court grants the motion, because, now that the discovery phase of this case has been completed, they will have been deprived of the opportunity to conduct discovery concerning the proposed next friends. The Court notes that defendants have been apprised of the proposed substitutions for some time. By letter dated July 23, 1997, plaintiffs sought defendants’ agreement to the substitution of Dr. Bonagura and Ms. De Castro. Defendants refused to so stipulate, prompting more delay and the instant motion. Likewise, defendants have long known of Ms. Cruz. Although the adoption of Marisol A. became final in June 1997, the adoption proceedings had been pending in Family Court for some time.
Fed.R.Civ.P. 17(c), which provides for the representation of infants by next friends, states that the Court shall make any such order “it deems proper for the protection of the infant.” Because the replacement of Professor Ginsberg and Ms. Conroy is necessary to protect the interests of Lawrence B. and Shauna D., plaintiffs’ motion to substitute Dr. Bonagura and Ms. De Castro is granted. As the adoptive mother of Marisol A., Ms. Cruz has a substantial interest in this litigation. Accordingly, plaintiffs’ motion to add Ms. Cruz as a next friend to Marisol A. is also granted.
II. City Defendants’ Cross–Motion
A. City Defendants’ Motion to Dismiss Certain Plaintiffs City defendants contend that because Lawrence B. has died of AIDS, Marisol A. has been adopted, and Steven I. has turned eighteen and become ineligible for foster care, their claims are moot and they must be dismissed from the action.6 Plaintiffs
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
concede that these class representatives are no longer in the child welfare system, and therefore will not benefit from the prospective injunctive relief sought in the complaint.
*6 Denominating the cause a class action, the complaint was filed on December 13, 1995. This Court certified the class in an order dated July 3, 1996. Lawrence B. died on February 18, 1996, the adoption of Marisol A. was finalized on June 25, 1997, and Steven I. turned eighteen on July 12, 1997. Therefore, the class was certified before the adoption of Marisol A. and the eighteenth birthday of Steven I., but after the death of Lawrence B.
“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Class actions, however, warrant a more flexible application of the mootness doctrine. See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir.1991). Whether a class action is rendered moot depends in large part upon when mootness occurs. If the claims of named plaintiffs become moot before class certification, the entire class action can be rendered moot. Mootness is averted, however, if the named plaintiffs have a live controversy at the time the class action is certified by the district court. Geraghty, 445 U.S. at 398.
Defendants do not dispute that the claims of Marisol A. and Steven I. were live when the class was certified. The Supreme Court has held that “by obtaining class certification, plaintiffs preserve[ ] the merits of the controversy for [ ] review.” County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Comer, 37 F.3d at 798. Therefore, the Article III controversy may exist “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753, n. 5, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (citation omitted). Because the claims of Marisol A. and Steven I. were viable at the time the class was certified, they have been preserved for adjudication.
Although Lawrence B. died before the class was certified, even “[w]here the claims of the named plaintiffs become moot prior to class certification, there are several ways in which mootness is not had.” Comer, 37 F.3d at 799. There is an exception to mootness where, “under the appropriate circumstances, class certification may relate back to the filing of the complaint.” Id. (citing McLaughlin, 500 U.S. at 52 and Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). The Supreme Court has held that such circumstances exist where the claims are so “ ‘inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” ’ McLaughlin, 500 U.S. at 52 (quoting Geraghty, 445 U.S. at 399 (citation omitted)).
Defendants argue that a claim is not transitory unless it is necessarily “time-limited.” See, e.g., Sosna, 419 U.S. at 397 (challenging a one-year residency requirement to obtain a divorce); McLaughlin, 500 U.S. at 47 (involving requirement that persons arrested be arraigned within two days of arrest). Such a stringent interpretation is unwarranted, however, in this case. In Comer v. Cisneros, the Second Circuit held that the discrimination claims of low-income minority residents seeking public housing assistance, like the population of the housing market itself, were transitory “in some sense”, warranting application of the relation back doctrine. 37 F.3d at 799. The panel noted that “housing discrimination suits of this type are acutely susceptible to mootness because of the fluid composition of the public housing population. Thus, while the harm remains constant, those who suffer from the harm often change identity.” Id. at 797.
*7 Like the public housing population, the population of New York City’s child welfare system is equally fluid, making the provision of legally mandated foster care services inherently transitory. Children enter and leave the system all the time. This is particularly so because the goal of foster care is to locate appropriate permanent placements for children, not to have them remain in the child welfare system. Therefore, as with plaintiffs in Comer, the plaintiff children who suffer from the harm alleged in this case constantly change identity, rendering their claims particularly susceptible to mootness.7
This is especially true with respect to the claims of Lawrence B., a terminally ill child who alleged that he had been inappropriately placed and denied adequate medical treatment. At the time this action was filed, Lawrence B. had full blown AIDS. He died after the filing of the complaint and the motion for class certification, but before oral argument on the motion. In the complaint, Lawrence claims, among other things, that ACS failed to provide him with adequate medical treatment for his fatal illness.8 Given the advanced stage of his illness, it was virtually impossible for the Court to rule on plaintiffs’ motion for class certification before Lawrence died. Therefore, in its Opinion granting class certification and denying defendants’ earlier motion to dismiss, the Court held that class certification related back to the filing of the complaint. Marisol A. v. Giuliani, 929 F.Supp. 662, 670 n. 2 (S.D.N.Y.1996). None of the arguments in the instant motion have persuaded the Court to change its earlier decision with regard to Lawrence B., which represents the law of the case. Because class certification relates back to the filing of the complaint, the merits of the controversy have been preserved for adjudication.9
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
Clearly Marisol A., Steven I. and Lawrence B. will not benefit personally from any relief granted in this case, but by obtaining class certification, the controversy was preserved for adjudication. The class certification order was affirmed by the Second Circuit, whose direction that this Court divide the class into subclasses was meant only to facilitate the efficient and orderly administration of this litigation.10
The question of whether these named plaintiffs should continue to represent the class remains. In Comer, the Second Circuit observed that “[i]n class actions ... courts have come to recognize that an individual plaintiff may continue to represent the interests of others even after any prospect of individual recovery has vanished.” 37 F.3d at 798 (quoting 13A Charles A. Wright, et al., Federal Practice and Procedure § 3533.9, at 391 (1984 & Supp.1994)). The issue turns on whether named plaintiffs who will not benefit from any relief awarded in the action can adequately protect the interests of the class.
In the two and a half years that this case has been pending, the Court has had ample opportunity to observe the quality of representation being afforded the class. Ruminating on the “realities of class actions,” the Third Circuit has noted that,
*8 [i]n massive class action[s] ... it is counsel for the class who has the laboring oar. The class representatives furnish the factual basis to invoke the jurisdiction of the court and provide the outline of the controversy, but the lawyers shape the claims for adjudication by the compilation of factual and expert testimony and the presentation of statistical and documentary evidence.
Goodman v. Lukens Steel Co., 777 F.2d 113, 124 (3d Cir.1985). This is particularly so in the present case, where the class is comprised of infants who cannot be expected to play a large role in prosecuting the action. Rather, it falls to the next friends and class counsel to provide vigorous advocacy for the class. Having experienced over two years’ worth of vigorous advocacy in this case, the Court is satisfied that Marisol A., Steven I., and Lawrence B., through their next friends and counsel, will adequately protect the interests of the class at trial. Accordingly, defendants’ motion to dismiss Marisol A., Steven I. and Lawrence B. is denied.
B. City Defendants’ Motion to Dismiss All of the Next Friends Contending that the next friends of Marisol A.,11 Thomas C., Ozzie E., Darren and David F., Bill and Victoria G., Brandon H. and Steven I. “know next to nothing” about the named plaintiffs they represent, city defendants move to have them dismissed from the action.12 The high bar that city defendants would have this Court set for qualifying as a next friend, however, is contrary to the law in this Circuit.
In their depositions, many of the next friends conceded either that they had not met or had had very limited contact with the plaintiffs they represent. According to city defendants, the next friends, most of whom are professionals in the child welfare arena, are merely lending their credentials to the lawsuit. City defendants conclude that the next friends are inadequate representatives because they “cannot demonstrate that they are intimately involved with the plaintiffs, have first-hand knowledge of the plaintiffs’ needs, have genuine concern for the plaintiffs’ individual situations, or are the only individuals likely to be able to protect their rights.” Defs.’ Mem. at 17.13
Federal Rule of Civil Procedure 17(c) provides that:
Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
City defendants baldly assert that “[e]ach of these children has other adults in their life who have personal knowledge of their circumstances and motivations to seek their best interests [sic], who could have been named as next friends in the first place, but were not, probably because they are not famous people like Dr. Forbes and Prof[essor] Ginsberg.” Defs.’ Reply Mem. in Supp. of Mot. to Dismiss at 13–14. Plaintiffs’ counsel has represented to the Court, however, that when the named plaintiffs filed this action by next friends, they did not have “duly appointed representatives” within the meaning of Rule 17(c). The named plaintiffs’ appearance in this action by next friends is therefore appropriate.
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
*9 City defendants’ argument that there may be close family or friends who know the named plaintiffs and would be better suited to represent them in this action is flawed in that it ignores the fact that ACS has taken the named plaintiffs into custody, presumably because they were not being provided for adequately by their families. In an ideal world, there would be concerned family members or friends to represent these children in court. According to at least one commentator, however, “[t]here are no special requirements for the person suing as next friend.” 6A Charles A. Wright, et al., Federal Practice and Procedure § 1572 at 513 (1990). With a view to the unfortunate situation of children like the plaintiff class in this case, the Second Circuit has noted that
[t]he term [“next friend”] is broad enough to include any one who has an interest in the welfare of an infant who may have a grievance or a cause of action.... The right of access to courts by those who feel they are aggrieved should not be curtailed; and this is particularly so in the instance of children who, rightly or wrongly, attribute such grievances to their very custodians.
Ad Hoc Comm. of Concerned Teachers v. Greenburgh # 11 Union Free Sch. Dist., 873 F.2d 25, 31 (2d Cir.1989) (quoting Child v. Beame, 412 F.Supp. 593, 599 (S.D.N.Y.1976)). In this Circuit, a court is required only to “consider the good faith of those claiming to speak for the infant and satisfy itself that the ‘next friend’ is motivated by a sincere desire to seek justice on the infant’s behalf.” Id. at 30–31.
The Court has seen nothing to impugn the good faith of the next friends in this case. Having reviewed the curriculum vitae and deposition transcripts of the next friends, the Court is satisfied that they understand their role as next friends, and that they are motivated only by a sincere desire to seek justice for the named plaintiffs.14 Therefore, city defendants’ motion to dismiss all of the next friends is denied.
C. City Defendants’ Motion to Dismiss Certain Claims City defendants move to dismiss several claims for “lack of adequate basis and representation.” Plaintiffs agree to withdraw their claims under federal disability regulations, 45 C.F.R. §§ 84.53, 84.54 & 84.55, the Multiethnic Placement Act, 42 U.S.C. § 1996b, and N.Y. Soc. Serv. L. §§ 422.11(b), 432.2, 432.3 & 433.
1. New York Social Services Law Claims Under N.Y. Soc. Serv. L. § 398.4(a), city public welfare officials must obtain for mentally disabled15 and physically handicapped16 children admission to suitable schools, hospitals, or residential placements. In essence, the statute imposes an affirmative duty on child welfare officials to ensure that mentally disabled or physically handicapped children are appropriately placed.
According to allegations in the complaint, three of the named plaintiffs were either physically handicapped or mentally disabled and placed in group homes that were not suitable under N.Y. Soc. Serv. L. § 398.4(a). Plaintiffs contend that Lawrence B. had AIDS and was shuttled from one inappropriate placement to another, where his medical needs were not attended to. Compl. ¶ ¶ 93–108. Ozzie E. suffers from seizure disorder, brain lesions and behavioral problems. Compl. ¶ 131. According to plaintiffs, defendants allowed Ozzie to languish in a group home inappropriate for a child with Ozzie’s neurological problems rather than provide his mother, who wanted Ozzie back and with whom Ozzie wanted to live, with support services necessary to allow her to care for him in the face of his physical and behavioral problems. Compl. ¶¶ 131–38. Steven I. has severe psychiatric and emotional problems. By age twelve, he had exhibited violent behavior at school, including attempting to rape a nine-year old girl, soliciting oral sex from two other girls, stabbing people with pencils and starting fires. Compl. ¶ 180. In September of 1994, at the age of fifteen, he was committed to New York Hospital, where he was labeled a “sexual predator”. Compl. ¶ 183.
*10 Although the doctors who have treated Steven claim that he needs long-term residential treatment, CWA has ignored—and continues to ignore—his need for such care. Instead, CWA inappropriately assigned Steven to a group home, from which he ran away in 1994. Steven has never returned to this inappropriate placement, choosing instead to live on the streets.
Compl. ¶ 178.
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
Lawrence B. had AIDS and was therefore physically handicapped under New York law. Ozzie E. and Steven I., each of whom suffered from severe behavioral and psychiatric problems, are mentally disabled under the New York Social Services Law and the New York Mental Hygiene Law. Because plaintiffs allege that all three named plaintiffs were not placed in suitable homes, city defendants’ motion to dismiss claims under N.Y. Soc. Serv. L. § 398.4(a) is denied.
City defendants also move for dismissal of plaintiffs’ claims under N.Y. Soc. Serv. L. § 398.15, which concerns children placed in therapeutic foster homes, on the theory that there are no named plaintiffs placed in such homes. Darren and David F., however, currently reside in a therapeutic foster home. Further, plaintiffs allege that the F. brothers are not being provided with day treatment services that they need. Such treatment services, which presumably are aimed at helping the boys succeed in their therapeutic foster placement, could constitute “support services ... reasonably necessary to prevent placement of the child in a group home, an agency operated boarding home or an institution.” N.Y. Soc. Serv. L. § 398.15(a). Therefore, city defendants’ motion to dismiss claims under N.Y. Soc. Serv. L. § 398.15 is denied.
Plaintiffs have also made claims under N.Y. Soc. Serv. L. § 409–d. That section requires each social services district to submit child welfare service plans to the New York State Office of Children and Family Services (“OCFS”) (formerly the Department of Social Services) for approval. Under § 409–d(3)(b)(ii), the plan shall not be approved by OCFS unless “it demonstrates that child welfare services included in the plan are appropriate to meet the assessed needs of the children and families for whom the social services district is or may be responsible.” City defendants contend that plaintiffs’ claims under § 409–d must be dismissed because “[t]here is no claim that New York City failed to submit such plans, nor does any plaintiff claim any harm from lack of such a plan.” Defs.’ Mem. at 33. Plaintiffs do not claim that such plans have not been submitted but that they have been harmed by defendants’ failure to ensure that the plans provide for appropriate child welfare services. See Compl. ¶¶ 229–38. It is OCFS that determines whether the plan provides for “appropriate” child welfare services, and, in accordance with that determination, approves or rejects the plan. Because plaintiffs claim that plans have been approved in violation of § 409–d(3)(b)(ii), their claim is one against the state. Accordingly, city defendants’ motion to dismiss claims against them under N.Y. Soc. Serv. L. § 409–d is granted.
*11 City defendants also move to dismiss claims under N.Y. Soc. Serv. L. § 423(1)(a), which requires every local department of social services to establish a child protective service. Plaintiffs do not contend that city defendants have failed to establish a child protective service. Rather, they argue that the City does not have a child protective service staffed with sufficiently qualified and trained workers as required by N.Y. Soc. Serv. L. § 423(1)(c). Because it is not contested that city defendants have established a child protective service, their motion to dismiss claims under N.Y. Soc. Serv. L. § 423(1)(a) is granted.
2. Adoption Assistance Act Claims City defendants also move to dismiss plaintiffs’ claims under the Adoption Assistance Act, 42 U.S.C. §§ 622, 627 and 671. These sections pertain to the relationship between the federal government and the states. They require the states to comply with certain conditions in order to receive federal funding under the Adoption Assistance Act. Under 42 U.S.C. § 627(a)(2), the states must implement and operate: a statewide information system providing ready access to records on each child in the foster care system; a case review system; and a service program designed to help children be placed for adoption or, where appropriate, returned to their families. Section 627(b) provides that a state’s allotment will be reduced if it fails to comply with section 627(a)(2).17
Similarly, §§ 622 and 671 require that, in order to receive funding under the Adoption Assistance Act, the states must establish plans for child welfare services, and for foster care and adoption assistance, respectively. Sections §§ 622, 627, and 671 impose no enforceable obligations upon the city defendants in this case. Accordingly, as to city defendants, plaintiffs’ claims under 42 U.S.C. §§ 622, 627 and 671 are dismissed.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion to intervene additional plaintiffs and substitute and add next friends is granted. City defendants’ cross-motion for an order dismissing certain plaintiffs and all of the next friends is denied. The cross-motion of city defendants for an order dismissing certain claims is granted in part and denied in part in accordance with this memorandum decision.
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)

Settle order on notice.

Footnotes

1

A case is “indicated” when, after an investigation, it is determined that some credible evidence of the alleged abuse or

maltreatment exists. 18 N.Y.C.R.R. § 432.1(g).

2

Having reviewed the proposed intervening complaint, the Court finds that the intervenors share common questions of law with

members of each of the subclasses they represent, and that their claims are typical of members of the subclasses. Further, the Court

is satisfied that Richard and Walter S. and Danielle J., through their next friends and class counsel, will adequately represent their

respective subclasses.

3

City defendants’ Motion to Dismiss Pre–Placement Claims and Vacate the Interim Stipulation and Order is currently pending

before the Court.

4

The Court recently denied plaintiffs’ motion for an order holding city defendants in contempt of Court for failing to comply with

the Interim Stipulation and Order. See Tr. of Hearing, 5/11/98, at 872–76. In their opposition to the contempt motion, city

defendants urged the Court to eliminate the continuing disclosure requirements in the Interim Stipulation and Order. Having

concluded that the letter of the Interim Stipulation and Order had not been complied with, the Court held that the stipulation, and

its disclosure requirements, would remain in effect.

5

Relying on Fed.R.Civ.P. 25(a), defendants argue that plaintiffs’ motion to substitute Dr. Bonagura for Professor Ginsberg is

time-barred. Rule 25(a) provides that when a party dies, a motion for substitution must be made within ninety days after the party’s

death is “suggested on the record.” The Court has found no authority, and defendants have cited none, however, applying Rule

25(a) to the death of next friends, who are nominal parties only. 6A Charles A. Wright, et al., Federal Practice and Procedure §

1570 at 505 (1986).

6

City defendants’ motion to dismiss Lawrence B. and Shauna D. on the ground that they lack competent representation is rendered

moot by the Court’s granting of plaintiffs’ motion to substitute new next friends for these two named plaintiffs. See Section I.B,

supra .

As an alternative basis on which to dismiss Shauna D., city defendants contend in their reply papers that plaintiffs’ counsel has

been unable to contact Shauna D. for the past year. Defendants conclude from this that Shauna D. must have abandoned the

action, rendering her claims moot. Defendants’ bare assertions that Shauna D. has abandoned the action, without more, however,

are an inadequate basis on which to dismiss the claims of an infant plaintiff. Accordingly, defendants’ motion to dismiss Shauna

D. is denied.

7

The Court notes that the claims at issue in this case are “capable of repetition yet evading review”. Foster care is intended to be

temporary. While Marisol A., Steven I. and Lawrence B. will not again suffer harm as a result of the alleged flaws in the child

welfare system, the type of harm they allege might be visited upon other members of the class they represent. In Sosna v. Iowa, the

Supreme Court made clear that the “capable of repetition yet evading review” doctrine applies to avert mootness where, even

though there is no prospect that a challenged practice may again injure the named plaintiff, the practice may cause future injury to

unnamed members of the class. 419 U.S. at 400.

8

That Lawrence B.’s claims are in large part based on his illness, and lack of treatment therefor, is what distinguishes this case from

Swan v. Stoneman, 635 F.2d 97, 102 n. 6 (2d Cir.1980). In Swan, the Second Circuit noted that substitution of a new named

plaintiff was required after the death of a class representative where the named plaintiff’s “death had no particular relationship to

the claim at issue.” Id. Because Lawrence B. was gravely ill when he commenced this action, and was suing ACS for failing to

provide him with adequate care while he was in their custody, his death does not necessitate the substitution of a new named

plaintiff to ensure survival of his claims.

9

In its Opinion affirming class certification, the Second Circuit indicated that this Court should “ascertain whether any of [the

claims of Lawrence B.] are represented by other plaintiffs as part of its overall determination of subclasses and their

representation.” Marisol, 126 F.3d 372, 379 n. 4 (2d Cir.1997). This Court recently divided the class into three subclasses, see

Memorandum Decision and Order dated April 23, 1998, and notes that Lawrence B. is not the sole representative with regard to

any of the claims of Subclass Three (the only subclass for which he is a named representative).

10

Defendants also argue that the claims of Marisol A., Steven I. and Lawrence B. should be dismissed because they became moot

before subclasses were certified in this case. They cite two cases in support of their novel argument that “[w]hen a named

plaintiff’s claim of injury has become moot before the appropriate subclass has been certified, as here, that particular named

plaintiff is not a member of that class or subclass and cannot be an adequate representative.” Defs.’ Mem. Supp. Mot. to Dismiss

(“Defs.’ Mem.”) at 10 (citing East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 404, 97 S.Ct. 1891, 52 L.Ed.2d 453

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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)

(1977) and Alexander v. Yale Univ., 631 F.2d 178, 183 (2d Cir.1980)). Both cases are inapposite, and neither remotely involves subclasses. In neither case was a class certified by the district court. Rather, in East Texas Motor Freight the Court of Appeals for the Fifth Circuit certified a class, and was reversed by the Supreme Court for doing so. Similarly, in Alexander, the district court’s denial of class certification was affirmed.

11

Here, city defendants refer to Rev. Dr. James Alexander Forbes, Jr., the original next friend to Marisol A. Defendants’ opposition

to plaintiffs’ motion to add as next friend Raymunda Cruz, the adoptive mother of Marisol A., is discussed in Section I.B, supra.

12

That portion of the motion which seeks the dismissal of the next friends of Lawrence B. and Shauna D. is mooted by the Court’s

granting of plaintiffs’ motion to substitute new next friends for these named plaintiffs. See Section I.B, supra.

13

Defendants also argue that the next friends’ lack of knowledge regarding the named plaintiffs has deprived defendants of what

would otherwise be relevant discovery, thereby prejudicing their defense. The Court has found no support, however, for the

proposition that it is the role of next friends, who are nominal parties only, to provide defendants with information regarding the

infant plaintiffs. On the contrary, it may well be that plaintiffs, who have the burden of proof, will be disadvantaged by the next

friends’ lack of knowledge.

14

The same holds true for the next friends representing intervenors Richard and Walter S. and Danielle J. The S. brothers are

represented by their grandparents, who currently have custody of the boys. By assuming custody, W.N. and N.N. have expressed a

clear interest in the boys’ welfare.

Danielle J. is not so fortunate. Having spent almost her entire life in New York City’s child welfare system, she has no friend or

relative to represent her in this case. She has as her next friend Angela Lloyd, a Senior Staff Attorney at Covenant House who

provides legal representation to teenage runaways and teenagers in foster care. According to plaintiffs’ counsel, Ms. Lloyd is

fully familiar with the problems facing teenagers who have been subjected to multiple placements, has demonstrated a strong

interest in this litigation, and is fully committed to representing the best interests of Danielle J. and the rest of the plaintiff class.

Accordingly, the Court is satisfied that the next friends of Walter and Richard S. and Danielle J. are “motivated by a sincere

desire to seek justice” on their behalf. Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 30–31.

15

A child who suffers from mental illness is mentally disabled. See N.Y. Soc. Serv. L. § 371(8) and N.Y. Mental Hyg. L. § 1.03(3).

Mental illness is defined as “a mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or

judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.” N.Y. Mental Hyg. L. § 1.03(20).

16

A physically handicapped child is one “who, by reason of a physical disability or infirmity, whether congenital or acquired by

accident, injury or disease, ... is or may be expected to be handicapped, as provided in the public health law.” N.Y. Soc. Serv. L. §

371(9). Under N.Y. Pub. Health L. § 2581, children suffering from long-term disease are children with physical disabilities

(formerly, “physically handicapped children”). That section of the Public Health Law provides a non-exclusive list of long-term

ailments, including cancer, that qualify as disabilities. Like cancer, AIDS is a long-term, debilitating and incurable disease.

Therefore, Lawrence B., who suffered and died from AIDS, was physically handicapped within the meaning of the New York

Social Services Law and the New York Public Health Law.

17

The Court notes that 42 U.S.C. § 627 has been repealed. See Pub.L. 103–432, 108 Stat. 4454 (1994). The repeal became effective

with respect to fiscal years beginning on or after April 1, 1996. This action was commenced in December of 1995, however, while

§ 627 was still in effect.

10

 
 Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
1998 WL 274472 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
MARISOL A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., et al., Plaintiffs, v.
Rudolph W. GIULIANI, Mayor of the City of New York, et al., Defendants.
No. 95 Civ. 10533(RJW). | May 27, 1998.
Opinion
MEMORANDUM DECISION AND ORDER
WARD, J.
*1 City defendants move for an order, pursuant to Federal Rules of Civil Procedure 12(b)(1), 60(b)(4), or in the alternative, 56(b), dismissing plaintiffs’ claims regarding the Pre–Placement Center and vacating the Interim Stipulation and Order Concerning Overnights at Pre–Placement. For the following reasons, City defendants’ motion is denied.
BACKGROUND
On June 18, 1996, the Court denied Rudolph W. Giuliani, Marva Hammons, and Nicholas Scoppetta’s (collectively referred to as “City defendants” or “defendants”) motion to dismiss the Complaint for Declaratory and Injunctive Relief (“Complaint”) Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996), aff’d, 126 F.3d 372 (2d Cir.1997). The Complaint sets forth the legal framework of the claims, factual allegations regarding the named plaintiffs, and factual allegations regarding the systemic deficiencies of the Child Welfare Administration (“CWA”), now the Administration for Children’s Services (“ACS”). Included in these areas of the Complaint are claims regarding the placement of youths by ACS.
Under the heading of “Legal Framework,” plaintiffs include the Fourteenth Amendment of the United States Constitution (Compl.¶ 59), the Child Abuse Prevention and Treatment Act (Compl.¶ 65), and the New York State Social Services Law, Family Court Act and state regulations (Compl.¶ 72) as legal bases for suing defendants with respect to the placement of children within the custody of ACS. Plaintiffs further delineate in their answers to interrogatories how improper placements violate the rights of the plaintiff class within this legal framework.
Next in their Complaint, plaintiffs discuss specific allegations regarding the children who are the named plaintiffs. Among these children, there are several allegations of placement deficiencies. For example, Lawrence B., a child suffering from AIDS, was allegedly housed in numerous inappropriate placements which plaintiffs claim irreparably harmed him. He was initially placed in a diagnostic facility—one intended to be a temporary placement for ninety-day diagnoses—and remained there for seven months. Compl. ¶ 97. Next, rather than assign Lawrence B. to a facility designed to handle medical conditions such as his, CWA placed him in a private agency group home intended to prepare teens for independent living. CWA, allegedly, did not make the agency aware of Lawrence B.’s medical condition and when the agency informed CWA that it could not provide adequate medical supervision for Lawrence B., CWA did not transfer him to another placement. Id. ¶¶ 99–103. Additionally, plaintiffs claim that the facility Lawrence B. was placed in at the time the Complaint was filed could not provide the necessary psychological services that a young boy stricken with a terminal illness requires. Id. ¶ 104. Even after Lawrence B. made numerous trips to the hospital, CWA continued to insist that the private agency house him. Id. ¶¶ 103, 105.
*2 Plaintiffs also allege that the placements of Darren and David F. were inappropriate. These twins, who at the age of one were relinquished to CWA by their mother, were placed with their grandmother. Plaintiffs maintain that their grandmother
1

Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
was an inappropriate placement as she was too old to care for the children, left them in front of a loud television set for hours at a time, and allowed their mother, a known drug addict, to move into the foster home. Id. ¶¶ 141–42. When placed in a new foster home, CWA did not provide the foster parent with adequate services to deal with the special needs of Darren and David F. Id. ¶¶ 143–45. Then, in contravention of a psychiatrist’s recommendation that the agency not remove the children from a home setting and place them in a residential treatment center until a day treatment program was first tried, CWA placed Darren and David F. in a residential treatment center. Id. ¶¶ 146–47. Therefore, at the age of seven, these children were placed in a residential treatment center, which previously would not accept children under the age of twelve, and at the time the Complaint was filed were still residing there. Id. ¶ 148.
Another named plaintiff who alleges inappropriate placements is Steven I. Despite the fact that doctors who have evaluated Steven I. recommended long-term residential treatment in order to address his severe psychiatric needs, he was placed in a group home from which he ran away. Id. ¶¶ 178, 181. While still in the custody of CWA at the time the Complaint was filed, it is not clear that CWA was aware of Steven I.’s whereabouts after he ran away from the group home. Id. ¶ 184.
Plaintiffs also raise claims regarding systemic deficiencies in the placement of youths. In a Memorandum Decision and Order dated April 23, 1998, this Court certified subclasses, specifying which named plaintiffs represented each subclass. Claims regarding the appropriateness of placements are found in the Complaint under the heading “Out–of–Home Placements” and include:
239. When children are removed from the family setting, they are placed on a “hit-or-miss” basis in whatever bed is available, often with foster parents who have not been appropriately screened or trained. 240. Because defendants have not developed a sufficient range of different types of placements to meet the needs of children, many children are placed inappropriately. 241. Because of an insufficient number of adolescent placements, teenage foster children are either not taken into placement when necessary, or are pushed out of the foster care system and forced to live either on the streets or in one temporary shelter facility after another.
Id. (emphasis added).
During the discovery period, plaintiffs reviewed documents related to their placement claims. At that time, plaintiffs learned of the conditions at an ACS-operated facility at 7 Laight Street, New York, New York, where children are held while waiting for placements after business hours on weekdays, on holidays, and on weekends (“Pre–Placement” or “Pre–Placement Center”). Having determined that the conditions at the Pre–Placement facility were extremely harmful to children, plaintiffs sought immediate relief from the Court. In an application for a temporary restraining order, plaintiffs alleged that defendants were housing children at Pre–Placement, an unlicensed facility, without providing them with adequate beds, clothing, food, or heat. These allegations were repeated to the Court during hearings on May 13 and 14, 1997. See Transcripts of Hearings before Hon. Robert J. Ward, May 13, 1997, 2:15 p.m. & May 14, 1997, 10:00 a.m. As a result of these hearings, the Court signed an Amended Order to Show Cause and Temporary Restraining Order requiring defendants to obtain supplies, equipment, and staff for the Pre–Placement facility and barring defendants from keeping children overnight at Pre–Placement for more than one night during any thirty day period. See Amended Order to Show Cause, May 14, 1997.
*3 Before the Court ruled on plaintiffs’ motion for a preliminary or permanent injunction, the parties entered into a stipulation concerning overnights at Pre–Placement that was “So Ordered” by the Court on July 16, 1997. See Interim Stipulation and Order Concerning Overnights at Pre–Placement (“Interim Stipulation and Order”). City defendants now move this Court to dismiss the Pre–Placement claims and to vacate the Interim Stipulation and Order. They argue that the Court lacks Article III jurisdiction to hear the Pre–Placement claims, and therefore also lacked the jurisdiction to “So Order” the Interim Stipulation and Order, on the basis that no named plaintiff has standing to raise such claims. Upon review of the Complaint, however, the Court finds that it has jurisdiction to hear claims involving Pre–Placement and any other placement within the purview of ACS. Accordingly, the Court denies city defendants’ motion to dismiss the Pre–Placement claims and to vacate the Interim Order and Stipulation.
DISCUSSION
After examining the claims and the legal doctrine presented by plaintiffs in their Complaint, it is clear to the Court that there are named plaintiffs who have standing to assert claims regarding the Pre–Placement Center and that the Court has Article III
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Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
jurisdiction to hear such claims. See Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556, reh’g denied, 468 U.S. 1250 (1984) (“the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted”).
Article III of the Constitution limits the “judicial power” to the resolution of “cases” and “controversies”. Art. III § 2; see Allen v. Wright, 468 U.S. at 750. This limitation on federal court jurisdiction is enforced through various doctrines, including that of standing, which is the “threshold question in every federal case.” See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Standing is unique in that it “focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37–38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). To ascertain whether a plaintiff has standing, the Court must determine if standing existed on the date the suit was commenced. See County of Riverside v. McLaughlin, 500 U.S. 44, 50–52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Mayer v. Wing, 922 F.Supp. 902, 906 (S.D.N.Y.1996). If plaintiffs met the standing requirements at the time the Complaint was filed, standing exists. See id. Standing requires that a plaintiff “allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. at 751 (citation omitted) (holding that parents of black public school children did not have standing to bring class action alleging that the Internal Revenue Service did not fulfill its obligation of denying tax-exempt status to racially discriminatory private schools where there was no direct evidence of injury to their children).
*4 The standing requirements must always be met, even in the context of a class action. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 475–76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (“[t]hose who do not possess Art[icle] III standing may not litigate as suitors in the courts of the United States”); Sosna v. Iowa, 419 U.S. at 398 (holding that parties cannot by stipulation invoke Article III judicial power). “That a suit may be a class action, ... adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Lewis v. Casey, 518 U.S. 343, 357 (1996) (citations and internal quotations omitted); see also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 40, n. 20; Warth v. Seldin, 422 U.S. at 502. Therefore, “if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (citations omitted) (named plaintiffs must allege direct personal injury and thereby have a personal stake in the action); see also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264, n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
In Comer v. Cisneros, the Second Circuit detailed the requirements of standing:
Courts have divided the question of standing into a two-tiered inquiry which includes (1) three constitutional minima and (2) prudential considerations which may limit judicial review in some circumstances. (citation omitted). The three constitutional minima are that: (1) the litigant suffered a personal injury or threat of injury; (2) the injury fairly can be traced to the action challenged; and (3) the injury is likely to be redressed by the requested relief.
37 F.3d 775, 787 (2d Cir.1994) (citing Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661–64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. at 472; AMSAT Cable Ltd. v. Cablevision of Conn. Ltd. Partnership, 6 F.3d 867, 873 (2d Cir.1993); Heldman v. Sobol, 962 F.2d 148, 154 (2d Cir.1992); Lamont v. Woods, 948 F.2d 825, 829 (2d Cir.1991)); see also Allen v. Wright, 468 U.S. at 752; County of Riverside v. McLaughlin, 500 U.S. at 51; Loper v. New York City Police Dep’t, 802 F.Supp. 1029, 1035 (S.D.N.Y.1992), aff’d, 999 F.2d 699 (2d Cir.1993).
As defendants do not argue lack of standing based on prudential considerations, the Court will focus on the three constitutional minima. Primarily, defendants argue that plaintiffs have failed to satisfy the first and second constitutional minima: that plaintiffs suffered personal injury or threat of injury and that this injury can be traced to defendants’ conduct.
*5 The first question the Court will address is whether any of the named plaintiffs raise claims showing personal injury or the threat of such injury. This question must be answered in the affirmative. There are named plaintiffs who allege that they have suffered “concrete and particularized” injuries that are “real and immediate” and not merely “conjectural or hypothetical.” See City of Los Angeles v. Lyons, 461 U.S. 95, 101–02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Lujan v. Defenders of
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Wildlife, 504 U.S. at 560; Allen v. Wright, 468 U.S. at 755–56; Warth v. Seldin, 422 U.S. at 507–08; O’Shea v. Littleton, 414 U.S. at 494. Four named plaintiffs, Lawrence B., Darren and David F., and Steven I., all allege injury resulting from inappropriate placements. They claim that they were harmed in placements in many ways, including suffering physical and psychological deterioration.1 See supra pp. 2–4.
The second constitutional minimum required for standing is that the injury or threat of injury be traceable to defendants’ actions or inactions. See e.g., Allen v. Wright, 468 U.S. at 756–57. The harm alleged by plaintiffs is clearly traceable to ACS. In the case of Lawrence B., plaintiffs’ allegations link irreparable harm with his placements by ACS, which included a temporary facility where he remained for seven months. Darren and David F. were allegedly placed in a series of inappropriate placements by ACS including the home of their grandmother, who could not adequately care for them, a foster care situation where they were not provided adequate services, and a residential treatment center which previously did not accept such young children and which was recommended against in a psychiatric evaluation. Plaintiffs allege that these inappropriate placements by ACS have led to irreparable harm. Steven I. also alleges harm caused by ACS inappropriately placing him in a group home when his condition called for a residential treatment center capable of dealing with his severe psychiatric needs.
Defendants, however, argue that none of the claims of the named plaintiffs are causally linked to the Pre–Placement Center.
It is necessary to first examine the Complaint to determine if plaintiffs asserted claims regarding Pre–Placement. Defendants argue that Pre–Placement does not appear in the Complaint and therefore is not at issue in this litigation. This is erroneous as the Complaint articulates claims relating to facilities that house children. Since children sleep at the Pre–Placement Center, often for consecutive nights, Pre–Placement claims are encompassed in the Complaint as a placement concern. While defendants claim that Pre–Placement is not a placement, this Court disagrees.
The Court recognizes that the Pre–Placement Center was not established as a placement, but essentially it has become a placement. Originally, the Pre–Placement Center was designed to facilitate the transfer of children after the office of Placement Services closed for the evening. Therefore, after 6:00 p.m. on weekdays, on the weekends, and on holidays, children removed from their homes by case workers or the police, children picked up on the street by the police, children remanded to the custody of ACS by Family Court, and children who walk in off the street, are brought to the Pre–Placement Center. The original purpose of Pre–Placement was to gather intake information from the caseworkers or children, funnel this information to the Emergency Center Services which matches children to placements, and then, later in the evening, provide transportation for the children to their placement. If Pre–Placement operated in this fashion, the Court would agree with city defendants that Pre–Placement is not a placement.
*6 Pre–Placement, however, has become much more than a short stopover for children needing ACS placement services after regular business hours. Children began spending the night at the Pre–Placement Center and currently, many children spend multiple nights at Pre–Placement. The Pre–Placement Center now serves as a temporary placement provided by ACS. As such, it is clearly within the ambit of placement claims raised by plaintiffs in the Complaint.
As discussed above, the Complaint outlines the “Legal Framework” regarding placement claims and discusses specific allegations of inappropriate placements of named plaintiffs. See supra pp. 2–4. Under the heading “Out–of–Home Placements” in the Complaint, allegations that include the Pre–Placement Center can also be found. For example, the Complaint discusses situations where children are “placed on a ‘hit-or-miss’ basis in whatever bed is available.” Compl. ¶ 239. Plaintiffs allege that “many children are placed inappropriately,” which is one of the issues surrounding plaintiffs’ concerns with the Pre–Placement Center. Id. ¶ 240. Finally, the Complaint raises claims regarding “temporary shelter facilit[ies]” which clearly includes problems arising at the Pre–Placement Center. Id. ¶ 241.
Defendants next contend that since none of the named plaintiffs have remained overnight at the Pre–Placement Center, no named plaintiff has standing to assert claims with regard to the Pre–Placement Center. At the time the Interim Stipulation and Order was entered, defendants are correct that no named plaintiff had spent the night at the Pre–Placement Center. The Court, however, concludes that a named plaintiff need not have remained overnight at this particular placement for plaintiffs to have standing to challenge the Pre–Placement Center.2
The Court recognizes that an injury of one kind claimed by a named plaintiff does not give that named plaintiff, by virtue of that injury, standing to litigate injuries of a different kind suffered by other class members. See Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). While a named plaintiff must suffer injury that is causally linked to the defendants, there is no requirement that harm to the named plaintiff be identical to that of each member of the class. As this Court stated in Wilder v. Bernstein, “[t]here is no requirement that the factual basis for the claims of all members of a
4

Marisol A. v. Giuliani, Not Reported in F.Supp. (1998)
purported class be identical.” 645 F.Supp. 1292, 1312 (S.D.N.Y.1986), aff’d, 848 F.2d 1338 (2d Cir.1988) (citation omitted).
In Selzer v. Board of Educ., the court held that the fact that the named plaintiffs “suffered the same general injury suffered by all the class members, ... [was] sufficient to confer standing on them to represent all members of the class.” 112 F.R.D. 176, 183 (S.D.N.Y.1986). The court in Selzer v. Board of Educ. granted class certification to women challenging the procedures for filling high school supervisory and administrative positions in New York City. While the class consisted of women qualified to apply for the positions of principal, assistant principal in any subject or administrative area, or any supervisory or administrative position, none of the named plaintiffs were qualified at the time of certification for the position of principal. Id. at 177, 182–83. The court held, however, that as the named plaintiffs had the same interests as those qualified to be principals, and the positions they applied for could give them the requisite experience necessary to apply for the positions of principal in the future, they had standing to represent the claims. Id. at 183.
*7 Likewise, the named plaintiffs in the case at bar have standing to represent claims regarding similar placements and placements where they could eventually be assigned. First, there are named plaintiffs who have suffered the same harm from being inappropriately placed by ACS as that suffered by children staying at the Pre–Placement Center. For example, Lawrence B. remained in a temporary placement, designed as a placement not to last more than ninety days, for seven months. He experienced the same type of harm, causally linked to the same defendants, and requested the same type of relief for his inadequate placement as is sought on behalf of plaintiffs who have remained at the Pre–Placement Center. Second, as Pre–Placement provides temporary shelter for some children removed from their homes and children who go AWOL from their placements, there were named plaintiffs, at the time the Complaint was filed, who clearly faced the threat of spending nights at the Pre–Placement Center. For instance, Steven I., who at the time the Complaint was filed was in the custody of ACS but had gone AWOL from his placement, faced the threat of being brought to Pre–Placement by the police if he was found after 6:00 p.m. during the week, on a weekend, or on a holiday.
The Court is not persuaded that in order to have standing plaintiffs must have a named plaintiff in each and every placement that they allege is harmful. Such a requirement would obliterate the purpose of a class action. For example, plaintiffs need not have a named plaintiff in every foster home in New York City, nor do they need to have a named plaintiff placed with every agency which contracts with the City to provide foster and congregate care services. Because the named plaintiffs allege harm resulting from inappropriate placements maintained by ACS, and the Pre–Placement Center is such a placement, the second constitutional minimum required for standing is met.3
This case is distinguishable from class actions where courts have refused to find standing. For instance, in Blum v. Yaretsky, the Supreme Court did not find that the named plaintiffs, who were being transferred from higher level care nursing homes to lower level care nursing homes, could represent class members who were transferred from lower care facilities to higher care facilities. 457 U.S. at 1001–02. The conditions under which these transfers were made were significantly different as was the contemplated harm. Persons being moved to lower care units risked greater physical and psychological problems than those moved to higher care facilities. The Medicaid of those moved to lower care units was decreased as opposed to those moved to higher care facilities where Medicaid was increased. Further, unlike persons who refused to move to a higher care facility, those who refused to move to a lower level care facility jeopardized their Medicaid benefits. Id.
In 1996, the Supreme Court again decided a standing issue in the class action context. Lewis v. Casey. 518 U.S. 343 (1996). Defining standing, the Supreme Court noted that the mere “status of being subject to a governmental institution that was not organized or managed properly” is not enough to prove actual or imminent harm. Id. at 350. The Court, by example, illustrated a lack of standing:
*8 If ... a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care, ... simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.
Id. Unlike the hypothetical plaintiffs presented by the Supreme Court in Lewis v. Casey, the named plaintiffs in the instant case have alleged deprivation. While the named plaintiffs have not slept in every bed provided by ACS, the Supreme Court does not require identical factual allegations for there to be standing. It surely does not follow from the Supreme Court’s example of a lack of standing that to find standing there must be a named plaintiff suffering from each and every medical condition that the prison medical facility handles. Such a requirement would eradicate the purpose of efficiency that a class action provides.
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The third constitutional minimum required of standing is that “the injury is likely to be redressed by the requested relief.” Comer v. Cisneros, 37 F.3d at 787. When the Complaint was filed, named plaintiffs Lawrence B., Darren and David F., and Steven I., alleged that they were suffering harm as a result of being inappropriately placed by ACS. See supra pp. 2–4. Courts have declined to find standing where, by the time the Complaint has been filed, the injury has already occurred and is unlikely to recur. See O’Shea v. Littleton, 414 U.S. at 495–96 (“[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects”); Schroedel v. New York Univ. Med. Ctr., 885 F.Supp. 594, 599–600 (S.D.N.Y.1995) (standing not found in case seeking injunctive relief when past patient of hospital could not show likelihood that she would again need services of hospital). In this case, however, all of the named plaintiffs alleging harm from inappropriate placements were still being harmed at the time the Complaint was filed. These named plaintiffs, who were being harmed as a result of inappropriate placements at the time the Complaint was filed, represent a class of persons seeking injunctive relief to remedy this harm. The Court finds that the equitable relief sought by plaintiffs is likely to remedy the alleged harm,4 and therefore plaintiffs have met all of the standing requirements.

CONCLUSION
For the foregoing reasons, City defendants’ motion to dismiss plaintiffs’ claims regarding the Pre–Placement Center and vacate the Interim Stipulation and Order Concerning Overnights at Pre–Placement is denied.
It is so ordered.

Footnotes

1

Imminent harm also exists that named plaintiffs will continue to be placed in inappropriate placements by ACS, including potential

overnight stays at the Pre–Placement Center.

2

In a Memorandum Decision dated May 22, 1998, the Court granted the intervention of named plaintiff Danielle J. This named

plaintiff has spent multiple overnights at the Pre–Placement Center. The Court finds that Pre–Placement claims are raised by

plaintiffs in the Complaint and that Danielle J. is an adequate representative of such claims. While the presence of Danielle J. is not

necessary to maintain claims regarding the Pre–Placement Center, her status as a named plaintiff clearly operates to preclude the

dismissal of Pre–Placement claims. Therefore, the only question remaining is whether to vacate the Interim Stipulation and Order.

The Court finds, however, that since plaintiffs always had standing with regard to these claims, no grounds exist for vacating the

Interim Stipulation and Order.

3

The Court certified the class on July 3, 1996, certified subclasses on April 23, 1998, and intervened Danielle J. on May 22, 1998.

Throughout this certification process, the Court thoroughly examined the class, subclasses, and named plaintiffs to ensure that they

met the requirements of Federal Rules of Civil Procedure 23(a) and as such, the Court refuses to revisit the issue of whether the

named plaintiffs’ claims with regard to placement are common and typical of the class. As the named plaintiffs clearly meet Rule

23(a) requisites, and placement claims, which include the Pre–Placement Center, are raised, the Court finds that the named

plaintiffs are appropriate representatives with regard to Pre–Placement issues.

4

This ruling does not conflict with the Supreme Court’s holding in City of Los Angeles v. Lyons. 461 U.S. 95, 103 S.Ct. 1660, 75

L.Ed.2d 675 (1983). There the Supreme Court found that a plaintiff, who suffered injury but had virtually no likelihood of repeated

injury, did not meet the requisite needed for equitable relief. Id. at 105. In Lyons, the plaintiff was injured by police officers when

they placed him in a choke hold. The plaintiff was released by the police before filing suit, and the Supreme Court found that

repetition of the choke hold on the plaintiff was so unlikely that the plaintiff did not have standing to seek injunctive relief. Id. at

105–10. Unlike the case at bar, Lyons was not a class action and the injury was not likely to recur to the individual plaintiff. Here,

the named plaintiffs represent a class, where the remedy of equitable relief is usually most viable, and at the time the Complaint

was filed, the named plaintiffs were still alleging harm from inappropriate placements.

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 Marisol A. v. Giuliani, Not Reported in F.Supp.2d (1999)

1999 WL 33309 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
MARISOL A., et al., Plaintiffs, v.
Rudolph W. GIULIANI, et al., Defendants.
No. 95 Civ. 10533(RJW). | Jan. 25, 1999.
Opinion

MEMORANDUM DECISION AND ORDER

WARD, J.
*1 Nineteen voluntary child care agencies (“Intervenors”) who were granted leave to intervene by this Court in a related matter, Wilder v. Bernstein, 78 Civ. 957(RJW), now seek to intervene in Marisol v. Giuliani pursuant to Federal Rule of Civil Procedure 24(a).1 For the reasons hereinafter stated, the Intervenors’ motion is granted.

1

While the Intervenors brought this motion under the

caption of Wilder v. Bernstein, 78 Civ. 957(RJW), the

parties, both plaintiffs and City defendants, and the

Court understand it to be a motion to intervene in the

Marisol v. Giuliani action. Therefore, this motion will

be treated as such.

BACKGROUND
In order to properly address this motion, the Court must review events that occurred as far back as June 1973. Wilder v. Sugarman, 73 Civ. 2644(HRT), was filed in June 1973. The action was brought against various child care agencies, and City and State agencies and officials. Plaintiffs asserted “that the statutory scheme for the provision of child-care services, and the manner in which those services were provided, violated the first, eighth, and fourteenth amendments, and resulted in racial and religious discrimination in the access to these services.”Wilder v. Bernstein, 499 F.Supp. 980, 986 (S.D.N.Y.1980). A three-judge district court held in 1974 that “the challenged New York laws represent[ed] on their face a fair and reasonable accommodation between the Establishment and Free Exercise Clauses of the Constitution.”Wilder v. Sugarman, 385 F.Supp. 1013, 1029 (S.D .N.Y.1974).

In March 1978, a new action, Parker v. Bernstein, 78 Civ. 957(RJW), was filed which raised similar challenges. This Court, in a June 2, 1978 Order, dismissed Wilder v. Sugarman, on the condition that the opinion of the three-judge court would be treated as stare decisis in the surviving action. Subsequently, Parker v. Bernstein was amended and renamed Wilder v. Bernstein.SeeWilder v. Bernstein, 499 F.Supp. at 986–87, n. 4. A class was certified in 1980 and defined as: “all those New York City children who are black, and who are Protestant, of other non-Catholic or non-Jewish faiths, or are of no religion, and are in need of child-care services outside their home.”Wilder v. Bernstein, 499 F.Supp. at 994.

Before trial was to begin in August 1983, plaintiffs and City defendants entered into settlement negotiations. In April 1984, an initial draft of a Stipulation of Settlement was presented to this Court for approval. At that time, the Court heard objections from nineteen contract child care agencies, the Intervenors, and in June 1984 permitted them to intervene. The Intervenors objected to the initial draft Stipulation of Settlement’s focus on discrimination rather than on the best interests of all children in foster care. The Intervenors’ concerns were addressed on the record during further settlement negotiations and the Stipulation of Settlement was amended.

On October 8, 1986, the Stipulation of Settlement as amended was approved by this Court (“Stipulation of Settlement”).2Wilder v. Bernstein, 645 F.Supp. 1292 (S.D.N.Y.1986). A final judgment was entered on April 29, 1987 approving the settlement. Subsequently, a number of foster care agencies which also had been dismissed as defendants appealed the judgment. On May 4, 1987, this Court granted a ten-day stay to allow the appellants to seek a further stay from the Court of Appeals. The Court of Appeals granted a partial stay of the final judgment pending appeal on May 21, 1987. In June 1988, the Second Circuit affirmed the judgment. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir.1988).

2

The final provision of the Stipulation of Settlement

dismisses the State defendants from the action. Stip. ¶

84.

*2 The Stipulation in the Wilder settlement, among other things, established a panel to monitor activities designated within the Stipulation. The activities of this panel have been continuous and have included such things as monitoring kinship foster care.
Throughout the negotiation of the Stipulation of Settlement and during the continuing enforcement proceedings and court conferences in Wilder, the
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Marisol A. v. Giuliani, Not Reported in F.Supp.2d (1999)
Intervenors remained involved. They were represented at hearings and presented their position both in written and oral formats. Even in the latest Wilder decision where this Court refused to grant City defendants’ motion to declare the Stipulation of Settlement terminated and enjoin the parties from enforcing it, the Intervenors filed opposition papers to the motion. SeeWilder v. Bernstein, 1998 WL 355413 (S.D.N.Y. July 1, 1998).
While the Wilder post-judgment proceeding continued, the related case of Marisol v. Giuliani was filed. On December 3, 1995, eleven named plaintiffs brought a class action against City and State of New York officials responsible for administering and monitoring New York City’s Child Welfare Administration (“CWA”), now the Administration for Children’s Services (“ACS”), claiming that the defendants’ actions or inactions deprived plaintiffs of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, under Article XVII of the New York State Constitution, as well as under numerous federal and state statutes. In the Complaint, specific factual allegations regarding these named plaintiffs are identified as well as systemic problems of the class as a whole. In an Opinion dated March 1, 1996, this Court certified the plaintiff class of:
[a]ll children who are or will be in the custody of the New York City Child Welfare Administration (“CWA”), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA.
On April 23, 1998, at the direction of the Court of Appeals, this Court issued a Memorandum Decision and Order certifying subclasses.
Much discovery was conducted and after several scheduling orders, a firm trial date of July 27, 1998 was established. On the eve of trial, the parties informed the Court that they were engaged in active negotiation discussions. These discussions continued into early December at which time two signed settlement agreements were presented to the Court, one signed by plaintiffs and State officials and the other signed by plaintiffs and City officials. The parties proceeded by giving the appropriate notice and a fairness hearing regarding these settlement agreements is scheduled for January 22, 1999.
This motion made by the Intervenors concerns the settlement agreement signed by plaintiffs and City defendants (“Marisol City Settlement Agreement”). Within this agreement, the parties in Marisol agree that

upon the signing of the agreement, immediate suspension of the following Wilder-related activities will occur: “meetings and discussions between and among the City, Plaintiffs’ counsel and various other parties; all discovery obligations of any kind; all obligations to provide information and data to Plaintiffs’ counsel; and applications to the Court except as provided in this paragraph.”Marisol City Settlement Agreement, ¶ 33.
*3 The parties also agree that “the following additional activities should be suspended, and agree to jointly seek forthwith by an order to show cause with a proposed temporary restraining order the Court’s approval for such suspension: court conferences and all activities of the Wilder settlement panel, including any audits or case reviews.”Id. Further, the parties agree to dismiss Wilder and all of its obligations at the time of final approval of the Marisol City Settlement Agreement. Id. The Court was petitioned to suspend the above-mentioned Wilder activities and on December 21, 1998 signed an order suspending certain Wilder activities, pending the Court’s approval of the Marisol settlement agreement and the Court’s dismissal of the Wilder case upon motion of plaintiffs and City defendants.
The Intervenors, while parties in the Wilder action, were not included in any of the negotiations surrounding the Marisol City Settlement Agreement. As Marisol calls for the dismissal of Wilder but continues the obligations of Wilder, the Intervenors move pursuant to Rule 24(a) to intervene in the Marisol action.3They seek to intervene in the following manner with relation to plaintiffs and City defendants, not with regard to State defendants. First, the Intervenors request that the Advisory Panel, established in the Marisol City Settlement Agreement, “will provide the Intervenors with a draft of the Initial Report with respect to the Wilder Obligations referred to in paragraph 11.b. and will receive and discuss with the Intervenors any comments they wish to make concerning the draft as provided for the parties in paragraph 14” of the Marisol City Settlement Agreement. Notice of Motion, ¶ 1. Second, “[t]he Initial Report with respect to the Wilder Obligations referred to in paragraph 11.b. will be provided to the Intervenors at the same time it is provided to the parties pursuant to paragraph 15.”Id. ¶ 2. Third, “[a]ny Periodic Reports referred to in paragraph 19 with respect to the Wilder Obligations will be provided to the Intervenors when provided to the parties and the Court.”Id. ¶ 3. Fourth, “[w]ith respect to any Periodic Report concerning the Wilder Obligations under paragraph 23, a draft of such report will be provided to the Intervenors when provided to the parties.”Id. ¶ 4.

3

Intervenors’ motion to intervene is predicated on the

approval of the Marisol City Settlement Agreement and

the dismissal of Wilder by this Court. If this Court does

not approve Marisol and dismiss Wilder, this motion is

2

Marisol A. v. Giuliani, Not Reported in F.Supp.2d (1999)
moot. Therefore, the Court writes on the assumption that the Marisol City Settlement Agreement is approved and Wilder is dismissed.

Additionally, Intervenors request that if plaintiffs move for judicial enforcement of the Wilder Obligations pursuant to paragraph 31 of the Marisol City Settlement Agreement, Intervenors be served with motion papers and permitted to participate in the enforcement proceedings as a party. Id. ¶ 5 .4

4

Intervenors requested additional relief but then

withdrew that request in their reply papers. Thus, the

Court will not discuss the withdrawn request for relief.

DISCUSSION
Federal Rule of Civil Procedure 24(a)(2) provides: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.5

5

This Court finds that the Intervenors’ papers are

sufficient to meet the procedural requirements of

Federal Rule of Civil Procedure 24(c). As required, the

Intervenors state and set forth claims for which they

seek intervention. These claims are those which involve

the Wilder Obligations.

*4 The Second Circuit stated that intervention as of right under Rule 24(a)(2) is granted when the moving party:
(1) files a timely motion; (2) asserts an interest relating to the property or transaction that is the subject of the action; (3) is so situated that without intervention the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; and (4) has an

interest not adequately represented by the other parties.
United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir.1994); seealsoAmerican Lung Assoc. v. Reilly, 962 F.2d 258, 261 (2d Cir.1992); Washington Elec. Coop., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir.1990).
The Court finds that the Intervenors did request intervention in a timely manner. “Timeliness defies precise definition, although it certainly is not confined strictly to chronology. Among the circumstances generally considered are: (1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.”Pitney Bowes, Inc., 25 F.3d at 70.
The Intervenors received notice of their interest in the Marisol action in December 1998. It was at this time that the Intervenors were informed that the Marisol City Settlement Agreement called for the dismissal of Wilder.The Intervenors were not included in the Marisol settlement negotiations, nor were they informed of their impact on Wilder until after the Marisol City Settlement Agreement was reached. This Court recognizes the great confidentiality that surrounded the negotiations and finds that the Intervenors were not lacking in diligence. To the contrary, the Intervenors have moved in a most prompt manner. Notice of the proposed settlement in Marisol and dismissal of Wilder was given in December 1998 and comments were to be submitted by January 15, 1999. The Intervenors moved well within this period to have their interests heard.
Further, the timing of the intervention does not prejudice the original litigating parties. First, as the Intervenors are timely, any inconvenience to the parties is a matter of course that must be accepted. Second, it should have been foreseen by the parties in Marisol that the remaining parties in Wilder would seek to assert their rights in the remaining litigation. Finally, the Court finds that prejudice to the Intervenors would exist if the motion was denied. Assuming approval of the Marisol settlement and the dismissal of Wilder, denial of this motion would end the enforcement of Intervenors’ interests in Wilder related issues.
The Court finds that the Intervenors have an ongoing interest relating to the transaction that is the subject of the action. For example, one of the five areas that the Marisol Advisory Panel is instructed to examine is “[p]lacement and evaluation issues arising out of an agreed-upon set of existing legal obligations in Wilder set forth in paragraph
3

Marisol A. v. Giuliani, Not Reported in F.Supp.2d (1999)
30.b, below (“Wilder Obligations”).”Marisol City Settlement Agreement ¶ 11.b. Therefore, the interests that this Court found the Intervenors to have in the Wilder action continue to be present in the Marisol case.
*5 Without the ability to intervene, the Court would be denying the Intervenors the right to protect their interests. As Marisol calls for the dismissal of Wilder and the furtherance of Wilder objectives in a new manner, the Intervenors should be permitted to enforce the Wilder Obligations through this new medium.
Finally, this Court does not believe that the other parties adequately represent the interests of the Intervenors. As was noted in the Wilder litigation, the Intervenors’ “contributions ... were essential to the creation of the final Stipulation.”Wilder v. Bernstein, 725 F.Supp. 1324, 1350 (S.D.N.Y.1986), aff’d,944 F.2d 1028 (2d Cir.1991). Further, the Court finds that the interests the Intervenors had that afforded them party status in Wilder apply to the Wilder Obligations carried forth in Marisol.As “[t]he Court benefitted immeasurably from the [I]ntervenors’ initial insights into the operation of the child care system from the voluntary agency’s perspective,” the Court is sure that the Marisol Advisory Panel will likewise benefit from the insights of the Intervenors. Seeid. at 1350.
On the condition that the Marisol City Settlement Agreement is approved and Wilder is dismissed by this Court, the Court grants the Intervenors intervention in Marisol with regard to City defendants and the Wilder Obligations. It also grants the Intervenors’ requests to receive the draft of the Initial Report with respect to the Wilder Obligations referred to in paragraph 11.b. of the Marisol City Settlement Agreement from the Advisory Panel and for the Advisory Panel to then receive and discuss with the Intervenors any comments the Intervenors have regarding the draft, as provided for the parties in paragraph 14. Additionally, the Initial Report with respect to the Wilder Obligations referred to in paragraph 11.b. will be provided to the Intervenors when

provided to the other parties, and any Periodic Reports referred to in paragraph 19 with respect to the Wilder Obligations will be provided to the Intervenors when provided to the other parties.
The Court finds the Intervenors’ request to be permitted to participate in enforcement proceedings with plaintiffs to be moot. First, no such proceedings are currently under way. Second, as the Intervenors are granted party status with regard to the Wilder Obligations in Marisol, they may proceed as a party under the agreement and enforce any requirements concerning the Wilder Obligations, specifically those set forth in paragraph 31 of the Marisol City Settlement Agreement.
As a final matter, the City raises the concern of attorneys’ fees for the Intervenors. City defendants claim that the Intervenors agreed to waive attorneys’ fees in connection with Wilder, and that this should continue in the Marisol matter. This Court disagrees. Assuming that Wilder is dismissed by this Court, any such orders or agreements in Wilder no longer bind the Court. Therefore, any application for attorneys’ fees would be examined in Marisol, and the Court reserves decision on such applications until they are made.
CONCLUSION
*6 This Court grants Intervenors’ motion to intervene and the additional relief stated above, conditioned on this Court’s approval of the Marisol City Settlement Agreement and dismissal of Wilder v. Bernstein, 78 Civ. 957(RJW).
It is so ordered.
	  

4

 
 Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 1 of 19
NEW YORK STATE OFFICE OF CHIJ,DREN AND FAMILY SERVICES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MARISOL A., by her next friends, Rev. Dr. James Alexander Forbes, Jr., and Ms. Raymunda Cruz, et al.,

Plaintiffs,

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RUDOLPH W. GUILIANI, City of New York, et al.

Mayor

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CONNECTIONS

January 2017 REPORT

1

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 2 of 19

INTRODUCTION

The Office of Children and Family Services (OCFS) is pleased to report to the Court that, as in the previous semi-annual reports, OCFS has used reasonable efforts and the means available to it to develop and implement a statewide child welfare computer system. Child welfare services are provided through 58 local social services districts (local district(s)), including the New York City Administration for Children's Services (ACS) and the St. Regis Mohawk Tribe; and through locally-contracted, private voluntary authorized agencies (voluntary agencies). OCFS also is continuing to transform its child welfare information system so that it will be capable of supporting the needs of caseworkers in the years to come, while leveraging existing child welfare information systems to perform the specific tasks outlined in paragraph 22 of the State Settlement Agreement in Marisol A.

OCFS' ability to support child welfare case activity necessary to manage and supervise the child welfare system is managed across multiple, interfacing systems, including the CONNECTIONS system, that accomplish all of the tasks set forth in paragraph 22. Reporting capabilities have been progressively enhanced since the original State Settlement Agreement in Marisol A. As further detailed in this report, enhanced functionality through the Data Warehouse, Operational Data Store, and SharePoint reporting facility provides capabilities that did not exist when data resided only on mainframe data bases and provides opportunities to introduce new reports to workers from local districts, voluntary agencies and OCFS using more.current technology.
The CONNECTIONS system and related components serve as a child welfare information system to assist caseworkers and supervisors in activities that include:

improving case decision-making and planning;

•

improving the overall tracking of cases;

•

increasing the accuracy and timeliness of information;

e

providing an opportunity to integrate data across all service systems;

providing ready access to case files and resource information;

•

providing supervisory and management assistance in monitoring and evaluating

casework;

•

providing more efficient case management at all levels; and

meeting federal reporting requirements.

In prior reports, OCFS indicated that it was working on a CONNECTIONS Architectur~ Modernization Project (CAMP). The CAMP initiative is an essential maintenance and upgrade of CONNECTIONS' software and hardware that is part of efforts by OCFS to transform the business and technical approaches to its child welfare infom1ation system so that it will be capable of supporting the needs of caseworkers in the years to come. This effort has been strengthened through the approval by the U.S. Department of Health and Human Services' Administration for Children and Families (ACF) in September 2010 of an Annual Advance Planning Document Update (AAPDU) submitted by OCFS, which brought the rep01iing of the CONNECTIONS project from the point of the 2006 AAPDU to the present. ACF granted final approval of the OCFS 2011-2012 AAPDU on December 1, 2011. OCFS has received prior federal financial participation on all of the hardware and software purchased for the CAMP initiative, as well as for the staff augmentation consultants that are needed for the initiative.

2

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 3 of 19
Additional funding for CONNECTIONS transformation activities and operational expenses has been defined through the New York State budget process. State funding in the form of Personal Income Tax (PIT) bonds in support of CAMP transfonnation activities was provided in the amount of $17.4 million in State Fiscal Year (SFY) 2008-2009, $19 million in SFY 2010-2011, and$ $11.030 million 1n 2013-14. The financing of CAMP with State PIT bonds has been discontinued and now the State is using Pay-ASYou-Go financing to fund ongoing CAMP activities. The current State Budget for SFY 2016-17 provides support for on-going CONNECTIONS operational non-personal services expenses appropriation authority in the amount of $9.81 million. This is in addition to the $13.5 million for services supporting CONNECTIONS users and system that were transferred to the New York State Office of Information and Technology Services (ITS) over the past two state fiscal years. The focus for application development during the report period continued to be on modernizing the remaining windows written in Visual Basic (VB) 6.0 to VB.NET as well as providing support for the recently implemented functions to comply with the federal Preventing Sex Trafficking and Strengthening Families Act. The components of the system that document the provision of ongoing services cases, house the foster home record summary, and support various system security features are being addressed in the current modernization effort. When this modernization process is completed, CONNECTIONS will have a single development platform as well as user interface across the entire system.
3

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 4 of 19

TABLE OF CONTENTS

The following topic areas highlight OCFS' progress that has been achieved by the CONNECTIONS project during the period from July 1 to December 31, 2016.

1.

CONNECTIONS and System Enhancements................... .

2.

Implementation of Settlement Agreement .

3.

Recent Developments. . . . . . . . . . . . . . . . . . . ................ .

4.

Planning for the Future of New York's Child Welfare

Information System..................................... .

5.

Implementation Support Activities......................... .

6.

Conclusion.............................................. .

Page 5 Page 9 Page 12
Page 15 Page 17 Page 17

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Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 5 of 19

1.

CONNECTIONS

AND

SYSTEM

ENHANCEMENTS

A. CONNECTIONS
CONNECTIONS is New York State's response to federal legislation requiring that each state monitor and report on foster care and adoption services. New York State elected to pursue the design, development, and implementation of a system that would extend beyond the federal data collection and reporting requirements by developing a system under the federal standards for a Statewide Automated Child Welfare Information System (SACWIS). CONNECTIONS and related components are designed to assist in more effective and efficient administration and operation of the State's complex child welfare program. New York State's child welfare program is State-supervised by OCFS and locally-administered by local districts, such as ACS, and voluntary agencies.
CONNECTIONS and related components of the child welfare infonnation system have been · implemented and upgraded through a series of numbered Releases or Builds, which have been guided in part by operational reviews of the system and input from system users from local districts and voluntary agencies. State staff continue to manage, design, and implement functional and technical improvements to CONNECTIONS. They have successfully met a number of critical project milestones in the areas of application development, implementation planning, and technical infrastructure enhancements.
Since 2001, New York State has made significant progress with the development and implementation of CONNECTIONS. With the statewide implementation of the Case Management Module in 2006, CONNECTIONS is the system of record for child protective, preventive, adoption and foster care case initiation, assessment and service planning. In all 58 local districts and over 250 voluntary agencies, 16,000 caseworkers and supervisors access CONNECTIONS to review and document demographics, investigations, safety and risk assessments, progress notes, family assessments and service plans, and health and education information. The CONNECTIONS Resource Directory is the system of record for service providers and foster and adoptive home initiation and on-going certifications and approvals. Similar progress has been made in the child welfare system in general, such as by decreasing the number of children in foster care or awaiting adoption.
With CONNECTIONS Case Management functions available statewide, the system's ability to track data has been extended, providing caseworkers, managers and OCFS with the ability to follow a case through the delivery of child protective services (CPS) to foster care or other services. Data from CONNECTIONS is migrated to the Data Warehouse, along with data from the Juvenile Justice Information System (JJIS) operated by OCFS to record information regarding youth in its custody, to support extensive reporting and analysis including the federal Adoption and Foster Care Analysis and Reporting System (AFCARS) submission to the federal ACF.
CONNECTIONS provides a single case record and statewide access to case information by local districts and voluntary agencies. System prompts, timeline-tracking and person-search capabilities and opening communication among the workers involved in a case enhance permanency efforts and the safety of children. Planned efforts to track medical and educational needs and progress help to produce better outcomes regarding the well-being of children
The benefits of CONNECTIONS include:
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Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 6 of 19
Provides caseworkers with a framework for case practice: • Standardizes case practice across agencies and workers; • Focuses the caseworker on what needs to be done in a case; • Assists in the assessment of the entire family; • Guides the worker through safety and risk assessments; and • Facilitates the life skills assessment of children.
Facilitates the availability and communication of information; • Provides a single electronic case record that organizes and compiles data in a centralized location; • Allows case information to be viewed and communicated across voluntary agencies and local districts; • Provides immediate and up-to-date access related to what is occurring in the case, such as through progress notes; • Facilitates access to the contact information for staff with a role in the case; • Provides past history on the case; • Provides easy access to demographic information related to the case, such as household composition and family relationships; • Facilitates the review of case information since it is more legible and easier to access than handwritten, manual notes; and • Facilitates the location of information on whether a family has had a previous or open investigation/case through the Person Search tool.
Facilitates workflow and case management in numerous areas: • Increases the accountability of staff to complete the work; • Provides the ability to track due dates, manage workloads, and track staff completion of assignments through To Do's and the Open Caseload Inquiry (OCI) repo1t; • Facilitates assignment of worker roles to a case; • Provides alerts related to changes in a case, such as the opening of a new investigation or the new 'assignment of a worker to a case; • Enables the sharing of foster homes between local districts; and • Enhances a supervisor's ability to review a worker's casework.
All child welfare cases originate in CONNECTIONS. When a decision to purchase child welfare services is made, CONNECTIONS demographic information is used to drive an interface to the Welfare Management System (WMS), which in tum supports the eligibility and service authorization process. Since October, 2014, CONNECTIONS replaced the Child Care Review Services (CCRS) as the system of record for foster care placement and movement activities, legal activities, and certain adoption milestone recording.
Beginning in 2006, OCFS initiated a major re-architecture effort, the CAMP initiative. Following a phased implementation, CONNECTIONS modules written in the proprietary Foundation for Cooperative Program (FCP) were modernized to VB.NET. This process was completed in 2013. Since then, the state has undertaken the modernization of CONNECTIONS modules written in Visual Basic (VB) 6.0 to VB.Net that will be nearly completed by the end of the current report period. It was necessary to defer work on modernizing the final VB module in order to design, construct and implement a higher priority enhancement to CONNECTIONS. The remaining CONNECTIONS module will be modernized during the early part of the first quarter, 2017.
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Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 7 of 19
Additionally, CONNECTIONS has been augmented by related components of New York State's child welfare information system. OCFS is fully capable of producing child welfare case management reports to address multiple purposes and on many levels. The OCFS Data Warehouse was developed to provide access to data retrieved from CONNECTIONS and state legacy data systems. Users, who include local district, voluntary agency, and regional and home office OCFS staff, have on-demand pre-defined summary and detail reports as well as ad hoc (user-generated, on demand) reporting capability directly from their desk computers. These reports can be used for point in time and historical trend analysis of chilq welfare services in New York State.
Enhanced Data Warehouse capabilities and the development of an Operational Data Store and SharePoint reporting facility provide capabilities that did not exist when data resided only on mainframe data bases. The development of these resources by OCFS provides the capability to produce the reports specified in paragraph 22 of the Settlement Agreement, as detailed in Section 2 of this report.
B. The SharePoint Reporting Facility
Development of the SharePoint reporting facility provides opportunities to introduce new reports using more cunent technology and reaching a wider audience. This technology supports the new OCI report that provides a caseworker level overview of all critical tasks coming due and overdue within child protective investigations,. family services preventive, and foster care case management as well as foster/adoptive home development. The Multiple Person Report (MPR), recently added to SharePoint, provides a current view of potential duplicates for reconciliation to data maintenance experts in each local district. This report provides supervisors and managers with aggregate data on children with possible duplicate person identification data in CONNECTIONS based on an exact match of the primary name, gender, and date of birth. As duplicates are eliminated and redundant person records combined under a single person identifier, data analysis and reporting improves. The reporting capabilities from these existing sources (the Data Warehouse, the Operational Data Store and the SharePoint facility) combine to allow OCFS and local district and voluntary agency users to join data from several sources to get a holistic picture of case activity, history, compliance, and trends.
C. The Operational Data Store (ODS)
The ODS continues to supp01i local districts and voluntary agencies that have an on-going need for cunent data to support their specific operational needs The data is sourced from CONNECTIONS and raw incremental files are sent to a local district or voluntary agency-operated server. Data from the ODS allows local districts and voluntary agencies to synchronize their local applications with data entered into CONNECTIONS, conduct custom local analysis, and address specific local reporting needs. Local districts and voluntary agencies are required to have an ODS password and a New York State Office for Information Technology Services (ITS)-approved secure server. Through a secure data transfer, the ODS shares detailed child welfare information with local districts and voluntary agencies.
D. OCFS Data Warehouse
The OCFS Data Warehouse was developed to provide access to data retrieved from CONNECTIONS and State legacy data systems. Users, who include local district, voluntary agency, and regional and central office OCFS staff, have access to on-demand pre-defined summary and detail reports as well as to software that allows them to generate their own custom reports. These reports can be used for both pointin-time and historical trend analysis of child welfare services in New York State.
7

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 8 of 19
The OCFS Data Warehouse has over 3,518 users, including staff in 58 local districts, including ACS; the St. Regis Mohawk Tribe; 164 voluntary agencies; and OCFS central and regional office locations. The Data Warehouse provides the means of obtaining customized data and reports to support these organizations in meeting basic operational and strategic planning needs for children and families.
Ten years' wotih of foster care and CPS data is available by topic. Case management data has been available in the Data Warehouse since CONNECTIONS Build 18 in 2007. Data in the Data Warehouse is available in a series of standard reports that may be produced on demand at different levels of aggregation and time periods (current, historical and trend). The Data Warehouse also provides selected users with tools to produce customized reports.
We continue to use the upgraded Cognos 10.2 as the primary reporting tool that enables pre-defined and user-generated reports to be run throughout New York State. Data Warehouse plans to update some of the codes written in old programming languages to more updated languages to enable changes to existing datamarts. To achieve this, a team had examined those datamarts and is workin toward implementing necessary steps. Additionally, this team is examining the ability to move all the datamarts to one phase and streamline the refreshing schedules.
OCFS remains committed to developing and enhancing Data Warehouse reports in order to continue to provide the tools and information that service providers need to be effective in their work. Reports to key management personnel are available through the Data Warehouse as a tool for administering caseloads. The Data Warehouse also includes pre-defined reports listing CPS Allegations; CPS Investigations; CCRS Reports; Foster Care Cases; Foster Home Reports; facilities licensing and capacity; security; and permanency reports. These reports continue to provide local districts specific case level data to monitor progress on the OCFS Program Improvement Plan for the federal Child and Family Services Review (CFSR). Many of these same reports are also available to local district commissioners and their executive staff through the Commissioners' Dashboard. The Commissioners' Dashboard is a portal that joins summarized reporting from OCFS with the Department of Health and Office of Temporary and Disab.ility Assistance for decision making and strategic planning. The Commissioners' Dashboard has been recognized with numerous awards over the past few years.
A number of new predefined repmis have been added in the recent months. These include reports related to casework contacts and other routine activities. OCFS has devoted considerable resources to implement industry best practices in report creation. To this end, join methodology in existing reports are being changed and necessary changes were made to all public reports (over 100 reports) as well as user defined reports in the Child Welfare Service Reports. OCFS is working on implementing this with Child Protective Service (CPS) reports as well.
The Data Warehouse also serves an important role within OCFS by providing data support for monitoring and evaluation purposes for the entire agency. Projects have included producing data to monitor local district progress in the implementation of their local program improvement plans aimed at improving child safety, permanency and well-being. The CFSR data packets are shared with the districts twice a year, and are used to track performance on key outcome measures. The data, which for some measures is stratified by age, provides information to districts that assists them in selecting which family engagement strategies should be employed to improve outcomes for families and children. Additionally, beginning in 2011, key safety and permanency outcome measures (time to permanency, stability, and re-entry) have been made available to 57 voluntary agencies that primarily serve children outside New York City. Currently, ACS prepares similar data for authorized agencies that serve primarily children from New York City. This OCFS initiative is intended to serve as an opportunity to promote a collaborative datadriven improvement agenda between local districts and voluntary agencies.
8

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 9 of 19
The Data Warehouse is the primary data source for federal reporting that includes the National Child Abuse and Neglect Data System, Adoption and Foster Care Reporting System (AFCARS), Casework Contacts, Youth in Transition Data (NYTD), National Indian Child Welfare Act (NICWA) and the Annual Progress and Services Report for Title IV-B of the Social Security Act. Reports and data sourced from the Data Warehouse are used to respond to the majority of requests made by the general public, the Public Information Office, and the Commissioner's Office for current or historical data on child welfare in New York State.
E. Support and Training
Data Warehouse support is available via a special mailbox (data.warehouse@ocfs.ny.gov) for access, questions or connectivity issues. For the whole of 2016, there were about 848 questions sent to the Data Warehouse mailbox where 290 unique individuals were involved. Additionally, OCFS provided access to 237 new users this year. User guides, periodic newsletters and other printed materials are sent to users or posted by OCFS in the CONNECTIONS Weekly as needed to communicate changes and updates to users.
2. IMPLEMENTATION OF SETTLEMENT AGREEMENT
In December 1998, the parties agreed to terminate the action in Marisol A., and entered into settlement agreements. In the State Settlement Agreement, OCFS committed, inter alia, to develop and implement a statewide child welfare computer system that is capable of performing specific tasks. Those deliverables are contained in paragraph 22 of the State Settlement Agreement (paragraph 22). Specifically, OCFS is required to:
use reasonable efforts and the means available to it to develop and implement in New York State, at the earliest practicable date, an accurate and reliable statewide computer system (now referred to as "CONNECTIONS") to provide infonnation concerning: a) child welfare case activity necessary to manage and supervise the child welfare system and determine compliance with fiscal and legal standards; b) child welfare case management reports sufficient to create aggregate data on issues including but not limited to: timeliness of investigations; re-occurrence of indicated reports; timeliness of case plans; time in care; number of placements; number of re-entries into care; and adoption statistics.
OCFS continues to "use reasonable eff01is and the means available to it" in the development and implementation, through CONNECTIONS and other interfacing components, of an accurate and reliable statewide computer system that achieves all of the tasks set forth in paragraph 22 of the Marisol A. State Settlement Agreement. As described elsewhere in this report, OCFS continues to transform both the business and technical approaches to its child welfare information system so that it is capable of supporting the needs of caseworkers in the years to come. This transformation is necessary for New York
9

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 10 of 19
.State to deliver a case management system that remains accurate and reliable. However, OCFS remains committed to addressing the terms of the settlement agreement by also leveraging the existing child welfare information systems to perform the specific tasks outlined in paragraph 22.
· A. "Child Welfare Case Activity Necessary to Manage and Supervise the Child Welfare System and Determine Compliance with Fiscal and Legal Standards"
OCFS' ability to suppmi child welfare case activity necessary to manage and supervise the child welfare . system continues to be managed across multiple, interfacing components. With the implementation of
Build 18 in 2005, OCFS' ability to automate this data was extended through the availability of the Case Management functionality, providing caseworkers with the ability to follow a case through the delivery of child protective services to foster care or other services. Individuals share a common identifier, the Client Identification Number (CIN); across CONNECTIONS and legacy systems so that data not present in CONNECTIONS can be joined across systems to effectively manage and supervise the overall child welfare system.
Section l.A of this report provides· a description of the capabilities of CONNECTIONS and related components to provide information necessary to manage and supervise the child welfare system.
Compliance with fiscal and legal standards was achieved with the implementation of the Statewide Services Payment System (SSPS), phase 2A, which completed statewide deployment in June 2005. This system provides functionality for rate table entry, payment processing, monthly batch claiming, retroactive claiming, and retroactive payments for foster care, adoption subsidies, and Kinship Guardianship Assistance (KinGap). The system delivers automated fiscal support for all local districts, including ACS in New York City, and voluntary agencies.
Implementation of fiscal support through the Vendor Receivables (VR) module has been successfully completed. This module provides computerized support for identifying and recording overpayments made to vendors by· local districts and for the automated recoupment of the recovery of overpayments through check intercept. Substantial financial benefits continue to be realized statewide, and the overall SSPS project is complete. Additionally, the Benefit Issuance and Control System (BICS)/SSPS enhancements support an interface with both CONNECTIONS, including the Activities window that replaced the CCRS so that foster care placement and reimbursement meet state and federal standards.
OCFS culTently supports three different AFCARS quality improvements reports. The reports allow case workers to determine the level of completeness for a child's record and identify missing data elements for Clinical Diagnosis, Removal Reasons and Termination of Parental Rights. The Data Warehouse has made progress in creating an AFCARS datamart with bi-annual AFCARS submissions as well as monthly data containing AFCARS data elements. This datamart includes a wider range of handling improvements to enhance LDSS record keeping and improve data entry. Testing of this datamart and necessary improvements are being made. Preliminary reports from the AFCARS datamart to facilitate data quality improvement have been made.
At present, Data Warehouse is exploring bringing in data associated with the Federal Sex Trafficking Legislation (HR 4980) into the Data Warehouse. Progress has been made on this. This will enable reporting to monitor data entry quality as well as final Federal Reporting.
The child welfare information systems currently in place also play a significant role in supporting OCFS' efforts to meet additional federal eligibility documentation requirements under Title IV-E of the Social Security Act.
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Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 11 of 19
B. "Child Welfare Case Management Reports Sufficient to Create Aggregate Data on Issues Including but Not Limited To: Timeliness of Investigations; Re-occurrence of Indicated Reports; Timeliness of Case Plans; Time in Care; Number of Placements; Number of Reentries into Care; and Adoption Statistics"
Reporting capabilities have been progressively enhanced since the original State Settlement Agreement. OCFS is fully capable of producing Child Welfare Case Management Reports sufficient to create aggregate data on all ofthe areas cited in paragraph 22 through the CONNECTIONS system and the Data Warehouse. CONNECTIONS data through the OCI is the source of reports on the timeliness of investigations. The Data Warehouse is the source of the remaining reports cited in paragraph 22. The Data Warehouse, Operational Data Store, and SharePoint reporting facility are discussed in greater detail in Section 1 of this report.
Reports Designated in Paragraph 22 of the Marisol Settlement Agreement
A description of each report follows:
Timeliness of Investigations
Timeliness of investigations is supported in a series of on-line reports. CONNECTIONS data is used to produce the timeliness report (CPS OCI Report Series). It is available on-line at the worker level and generated monthly for each investigative jurisdiction. Statewide and regional roll ups are also produced. The repoti is distributed to each jurisdiction's liaison(s) and to OCFS regional and central office liaisons.
Timeliness of Case Plans; Family Assessment Service Plans (FASP)
The FASP serves a critical function in working with families. The FASP provides a uniform and effective method for workers to document their assessment of family and child functioning, strengths and needs. These assessments form the basis for detennining what aspects .of family functioning need to change in order to support the desired outcomes. The service plan and an evaluation of the previous service plan also must be documented in the FASP. FASPs are done on a periodic basis or whenever key status changes occur during the life of a case.
The FASP series in the OCFS Data Warehouse can assist supervisors and managers in local districts, voluntary agencies and OCFS regional offices in improving the FASP process by monitoring the status of open, overdue and coming due FASPs by type (Initial, Comprehensive, or Reassessment) for a particular month and monitoring FASP activity at different stages of the submittal-approval process.
Time in Care; Number of Placements; Adoption Statistics
The CONNECTIONS Activities window. replaced CCRS as the system of record for placement and movement-related information for children in foster care. Three reports -- In-care, Admission, and Discharge Summary -- provide descriptive data, by status, on the population on children in the care/custody of local districts or voluntary agencies, and are updated monthly. In addition to counts on average months in care, number of admissions, and discharges to adoption, data is also available on age, permanency-planning goal, previous admissions, gender and current facility.
Recurrence of Indicated Reports; Number of Reentries
Using the federal CFSR definition of recurrence of maltreatment and re-entry into foster care, reports are available to suppoti local districts in identifying potential factors related to safety and permanency for
11

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 12 of 19
children in care. These reports are available in summary or detail form. For each local district, a detailed report is available which lists each of the district's children included in the universe. Details of the CPS reports and periods in foster care are available in CONNECTIONS and/or the local case records. Details of foster care outcomes are available in the local case records.
Additional Reports
In a continuing effort to meet the on-going needs of local district, voluntary agency, and ;regional and central office OCFS Data Warehouse users, new reports were created in the areas of:
Foster Children and Associated Casework Contacts
OCFS continues to use a specialized datamart to generate reports that are regularly used by OCFS, local district, and voluntary agency personnel. OCFS continues to send quarterly letters to local district commissioners and voluntary agency directors reporting the year-to-date contact rate and emphasizing the importance of regular foster children contacts. OCFS regional office personnel have been meeting with upper management of voluntary agencies to emphasize the importance of accountability for casework contacts. As a result compliance with casework contact requirements has improved dramatically and we have met the Federal reporting thresholds. We were able to meet the higher 95% threshold Federal reporting requirement f~r FFY 2015 and in FFY 2016.
Indicators for Juvenile Delinquents and Persons In Need of Supervision
Data Warehouse development staff have created a new indicator for children with a status of juvenile delinquent or person in need of supervision based on legal events in CCRS. This indicator has been implemented in the Data Warehouse, allowing users to identify trends in such cases.

3.

RECENT

DEVELOPMENTS

OCFS during this second half of 2016 continued the modernization of the CONNECTIONS modules written in Visual Basic 6.0. This initiative enhances the capability of OCFS to provide improvements for the local district and voluntary agency workers using CONNECTIONS and related components as well as provide users with a single interface and consistent navigation across the entire application. The enhancements to functionality, technology, navigation and usability have been well received by the caseworker community.

12

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 13 of 19
A. CONNECTIONS Modernization
As noted in previous reports, the State successfully removed the FCP code base from the user interface and business tier portions of CONNECTIONS, providing users with a more· intuitive experience in working with the system. The new technical architecture is in a web-like environment that satisfies the federal requirement for the removal of all FCP components from CONNECTIONS. The migration to a new architecture has also allowed for the maturity of the CONNECTIONS application to be preserved while incorporating enhanced functionality, such as improved usability and easier navigation available through the use of newer technology. OCFS has nearly completed the process of modernizing the CONNECTIONS modules written in VB. The phased implementation of this modernization efTort was expected to be completed during the current reporting period, however some work was deferred in order to address a higher priority development effort. The last module that requires modernization is expected to be completed at the early part of the next report period.
B. Casework Contact Improvement Project In order to improve the documentation of caseworker visits/casework contacts with children in· foster care, OCFS continues to provide the technical support, training and oversight plan that addresses the following areas:
• Monitoring/Reporting: OCFS Regional Office staff continue to monitor and support, as necessary, local district and voluntary agency performance regarding casework contacts from month to month by using the Data Warehouse as well as ad hoc reports. Those local districts and voluntary agencies performing below the federal benchmark are contacted for purposes of identifying the reasons for the performance concern and offering assistance to improve performance. OCFS attained higher than the required 95% benchmark Federal Fiscal Year (FFY) 2015 and 2016.
C. CCRS Transfer into CONNECTIONS: The transfer of the CCRS functions into the CONNECTIONS Activities window in the fourth quarter of 2014 established CONNECTIONS as the system of record for legal, placement, movement and adoption functions. It has also provided casework staff more immediate access to the data for inquiry and/ or data entry purposes. The Data Warehouse has successfully made essential changes that were necessary as a result of movement of CCRS to the CONNECTIONS and continue to explore other potential issues such as those related to household composition. Changes related to race/ ethnicity have already been incorporated.
13

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 14 of 19
D. Modernization of Family Services Stage
The Family Services Stage (FSS) is the CONNECTIONS component in which casework staff document their work for ongoing preventive services, foster care and adoption services cases, including such modules as the family assessment and services plan (FASP), service plan review, progress notes, health and education as well as person demographics. Because it is so large, the modernization was conducted in several phases. During the current report period, the remaining FSS component (Health) was completed. The Local Data Maintenance window, in which designated staff can correct erroneous data, was also completed. The remaining VB window - the Foster Home Record Summary - will be modernized at the beginning of the next report period. D. Additional CONNECTIONS Development Activities
Based on programmatic priorities, CONNECTIONS development staff developed and built new functionality to more readily identify person · in reports of child abuse and maltreatment that are. a foster parent. The enhancements: support staff at the State Central Register to help identify if any person in the home involved in a CPS report is a foster parent; expands staff who will be alerted to the existence of the report; and provides additional supports to learn about foster children who are placed in the home. In addition OCFS worked with users from ACS and from across the state to define requirements for foster care placement functionality. Based on these requirements, window designs are currently being drafted. A particular challenge is meeting the highly varied needs of New York's decentralized child welfare organizations across all cities and counties within the state. E. Initial Implementation of an Interoperability Model
In January, 2016, OCFS implemented the data transfer from the NYS Education Department for children in foster care. Comprehensive data from fDster children's' educational history and in-depth data from the previous school term is included in the data package.
4. PLANNING THE FUTURE OF NEW YORK'S CHILD WELFARE INFORMATION SYSTEM
14

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 15 of 19
A. State Funding of CONNECTIONS Paragraph 22 of the State Settlement Agreement requires OCFS to "use reasonable efforts and the means available to it to develop and implement in New York State, at the earliest practicable date, an accurate and reliable statewide computer system, .." The means available to OCFS through State funding for a statewide child welfare computer system are established by the New York State Budget for each state fiscal year (SFY). The SFY 2016-17 general fund budget remains unchanged since the July 2016 report. The general fund budget provided $9.81 million in appropriation authority for the non-personal services portion of the operational expenses for CONNECTIONS. This is in addition to the $7.8 million in appropriation authority that was transferred to the State Office of Information and Technology Services (ITS) for non-personal services in SFY 2015-16, imd the $5.7 million in appropriation authority for Network, Data Center, and Enterprise Help Desks related costs for CONNECTIONS users and system that have been transferred to ITS in 2014-15. As noted in previous reports, OCFS has received the following additional support in the form of Personal Income Tax (PIT) bond funds as part of the plan to continue the transformation of CONNECTIONS (CAMP): $17.4 million in the SFY 2008-2009 budget; $19 million in SFY 20102011; and finally, during SFY 2013-14 $11.030 million was paid for CAMP principal and interest. The financing of CAMP with State PIT bonds funds has been discontinued and now ·the State is using Pay-As-You-Go financing to fund any ongoing CAMP activities. The on-going maintenance and upgrade by OCFS of CONNECTIONS' software and hardware and the funding of CONNECTIONS' operational expenses in an environment of continued fiscal challenges for the state serves as tangible evidence of New York State's continued commitment to the CONNECTIONS system and related components. The State through the joint efforts of OGS Strategic Sourcing and ITS has been moving towards an enterprise approach regarding the procurement and ongoing maintenance of necessary software and hardware support to maintain the CONNECTIONS application in an optimal mmmer. This new approach will make this process more efficient and will result in cost savings to the State.
B. Federal Funding of CONNECTIONS Other means available to OCFS for the development and implementation of a statewide child welfare computer system are potentially available through the federal ACF. Federal financial participation (FFP) to OCFS for CONNECTIONS has been described in prior reports, including copies of OCFS submissions and the federal ACF responses. These OCFS submissions include an Annual Advance Planning Document Update (AAPDU), which is submitted annually to request continued federal funding, and an As Needed Advance Planning Document Update (AN-APDU), which is submitted in case of significant changes to milestones related to CONNECTIONS. The 2016 AAPDU was submitted to ACF on September 2, 2016 and was approved by ACF on September 30, 2016. As noted in prior reports, federal approval to claim further reimbursement for CONNECTIONS developmental costs remains on hold. OCFS continues to believe that ACF' s restoration of FFP
15

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 16 of 19
through the AN-APDUs is an important part of restoring the full federal partnership with CONNECTIONS and would facilitate movementforward on CONNECTIONS. However, OCFS would like to restore the traditional 50 percent FFP level for development activities and the 25 percent FFP level for operational activities, rather than the current FFP level of 15-17 percent for only operational expenditures.
The federal regulations that govern state child welfare systems changed during the current report period. The function-driven Statewide Automated Child Welfare Information System (SACWIS) requirements no longer exist. Instead states have been given the option to implement more data collection and a data quality-driven Comprehensive Child Welfare Information Systems (CCWIS) in accordance with regulations which became effective August 1, 2016. New York has ~wo years to determine if it will seek to comply with these optional requirements for which enhanced federal fiscal participation is available. OCFS continues to maintain a working relationship with the federal ACF through regularly scheduled conference calls and meetings between ACF Regional staff and OCFS senior management.
C. CONNECTIONS Infrastructure Upgrades
The consolidation of information technology operations, including the infrastructure, makes it increasingly difficult to isolate technical changes specific to OCFS applications, including CONNECTIONS. Reported here are any changes that OCFS expects will have an impact on resources from the standpoint of testing or other support activities:
Citrix XenApp Upgrade Project
New York State is building a single platform to support all Citrix users statewide. Citrix controls the interface between the user and the application. The previous attempt to upgrade Citrix failed due to incompatibilities between Visual Basic 6.0 and the newest Citrix version. Therefore, it is imperative to complete the VB 6.0 rewrite before the migration of the OCFS Citrix environment to the enterprise environment, which is why OCFS has afforded such a high priority to completing the CONNECTIONS modernization.

5.

IMPLEMENTATION

SUPPORT

ACTIVITIES

A major focus for OCFS implementation staff during the first half of 2016 was to: assist case workers successfully adjust to the modernized VB 6.0 windows and the newly implemented Preventing. Sex Trafficking windows, including the development of training materials and user support tools and the provision of on-site support to assist staff with the application changes. The staff also conducted reviews of the physical and information security practices of local districts and voluntary agencies in compliance with State requirements. Implementation activities also focused on projects to improve the reporting of required data (AFCARS, NYTD) to the Federal government and assisting districts to maximize
16

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 17 of 19
reimbursement.
6. CONCLUSION
New York State has continued to make significant progress in the development and implementation of CONNECTIONS and the related components that comprise the child welfare information system. CONNECTIONS is the system of record for child protective, preventive, adoption and foster care case initiation, assessment and service planning. In all 58 local districts and over 250 voluntary agencies, caseworkers and supervisors access CONNECTIONS to review and document demographics, investigations, safety and risk assessments, progress notes, family assessments and service plans, and health and education information.
Additional resources such as the Data Warehouse, Operational Data Store, and SharePoint reporting facility provide capabilities that did not exist when data resided only on mainframe data bases. These resources provide workers from local districts, voluntary agencies arid OCFS with the capability to generate pre-defined sul:nmary and detail reports as well as ad hoc (usergenerated, on demand) reporting capability directly from their desk computers. These reports can be used for point in time and historical trend analysis of child welfare services in New York State.
OCFS continues to transform both the business and technical approaches to its child welfare information system so that it will be capable 'of supporting the needs of supervisors, caseworkers, and OCFS staff in the years to come. Having successfully completed the CAMP initiative, the state is currently completing the project to modernize the windows, written in VB 6.0 to VB .NET, providing users with a single, intuitive interface and consistent navigation across the entire application Progress was also made in the design of functionality to support foster care placements~ Development staff also quickly responded to the programmatic priority to identify situations in which a person in a CPS report is a foster parent and to notify all staff with a person on their caseload in any way connected to that person.
OCFS has used reasonable efforts and the means available to it to develop and implement, through CONNECTIONS and other interfacing components, an accurate and reliable statewide computer system that achieves the tasks set forth in paragraph 22 of the Marisol A. State Settlement Agreement. OCFS also continues to work with its business partners - other New York State agencies, the federal ACF, local districts and voluntary agencies - in the on-going improvement of the child welfare information system in New York.
17

Case 1:95-cv-10533-GBD-KHP Document 383 Filed 10/12/17 Page 18 of 19

4w RK

Office of Children

ATE and Family Services

ANDREW M. CUOMO Governor

SHEILA J. POOLE Acting Commissioner

December 27, 2016
Honorable Kevin T. Duffy United States District Judge Southern District of New York State Daniel Patrick Moynihan United States Courthouse 500 Pearl Street, Courtroom 26A New York, NY 10007-1312
RE: Marisol A,.et al. v. Giuliani. et al. 95-Civ- 10533(KTD)
Dear Judge Duffy:
Enclosed please find OCFS' semi- annual report, due January 2017, as required by the Court's
order dated August 29, 2001. This report provides in detail OFCS' efforts in complying with
paragraph 22 of the Settlement Agreement.

Enclosure cc: Children's Right, Inc.
Lawyers for Children Linda Fang, Assistant Attorney General William Bristow, Esq.
I Child Welfare Services Bureau 152 Washington Street, Rensselaer, NY 12144 (518) 474-3333 locfs.ny.gov

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 Case 1:95-cv-10533-GBD-KHP Document 388 Filed 08/06/18 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------X MARISOL A., et al.,
Plaintiffs, -against-
RUDOLPH GIULIANI, et al.,

08/06/2018
ORDER 95-CV-10533 (GBD) (KHP)

Defendants. -----------------------------------------------------------------X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

The Court has received the letter from the parties dated August 3, 2018 concerning

continuing compliance with the terms of the State Settlement Agreement (“Settlement

Agreement”) in this matter. After having reviewed the Settlement Agreement and the most

recent reports submitted to the Court by the New York State Office of Children and Family

Services (“OCFS”), and after consulting with the parties, the Court finds that the Defendant

OCFS has been in compliance with the Settlement Agreement and that there are procedures in

place to ensure continued compliance with the concerns addressed in the underlying lawsuit

and as set forth in paragraph 22 of the Settlement Agreement. Therefore, OCFS shall no longer

be required to continue to furnish biannual reports pursuant to the Settlement Agreement.

Additionally, this Court's August 29, 2001 Order, ECF Docket No. 375, is vacated insofar as it

retained jurisdiction of paragraph 22 of the State Settlement Agreement.

SO ORDERED.

Dated: August 6, 2018 New York, New York

______________________________ KATHARINE H. PARKER United States Magistrate Judge

 
 x/i
7218

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

To fce argued
MARC FALCONE
PWRW&G

JOEL A., MICHAEL D., ERIC R-, DAVID S., MAXX R. and RAY D.

"••'•" '

- -:;M

Intervenor-Plaintiffs-Appeilam

MARISOL. A, by her next friend, Rev. Dr. James Alexander Forbes, Jr., "by her next friend Raymond Cruz, LAWRENCE. B, by his next friend, Dr. Vincent Bonagura; THOMAS C , by his next friend, Dr. Margaret T. McHugh, SHAUNA D., by heri friend, Nedda de Castro, OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins! DARREN F., DAVID F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens, BILL G., VICTORIA G., by their next friend, Sister Dolores Gartanutti,! BRANDON H/, by his next friend, Thomas H. Moloney, STEVEN L, by his nexF Kevin Ryan, on their own behalf and behalf of and all others similarly situated, WALTER S., by his next friends, W.N. and N.N., grandparents, RICHARD S., by their next friends, W.N. and N.N., grandparents, DANIELLE J., by her next friend, Angela Lloyd,

Plaintiffs-Appellees,
v.
RUDOLPH W. GIULIANI, Mayor of the City of New York, MARVA LIVINGSTON HAMMONS, Administrator of the Human Resources Administration and Commissioner of the Dept. of Social Services of the City of New York, GEORGE E. PATAKI, Governor of the State of New York, JOHN JOHNSON, Commissioner of the New York Office of Children and Family fka Commissioner of the Dept. Social Services of the State of New York; NICHOLAS SCOPPETTA, in his official capacity as Commissioner of the New Yorlc City Administration for Children*s Services,

Defendants-Appellees,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF BSTERVENOR-PLAINTIFFS-APPELLANTS JOEL A., MICHAEL D., ERIC R., DAVID S., MAXX R. AND RAY D.

i r 'I "FT

URBAN JUSTICE CENTER
666 Broadway, 10th Floor New York, New York 10012 (212)533-0540

PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000
Attorneys for Intervenor-Plaintiffs-Appellants Joel A,, Michael D., Eric R., David S., MaxxR., and Ray D.

T ir»i

f i

n

TABLE OF CONTENTS

PRELIMINARY STATEMENT

1

STATEMENT OF JURISDICTION

3

ISSUES PRESENTED

3

STATEMENT OF THE CASE

4

A. The Marisol Litigation and Settlement

4

1. The Marisol Complaint

5

2. Marisol Class Certification

7

3. The Marisol Settlement

9

(a) The City Settlement Agreement

10

(b) The State Defendants' Settlement Agreement 16

B. The Joel A. Objectors

18

C. Settlement Approval Proceedings

21

THE DECISION BELOW

23

SUMMARY OF ARGUMENT

27

ARGUMENT

30

I. The Record Contains No Evidence Indicating That Any Structural Precautions Were Implemented to Assure Adequate Representation of the Diverse Interests of the Three Sub-classes During Settlement Negotiations. 34

II. The Covenants-not-to-sue and the Release Contained in the Settlement Agreements Are Overbroad, Oppressive, and Violate the Due Process Rights of Absent Class Members . 38

A. The covenants and the release unlawfully and

unfairly restrict the rights of class members to

seek judicial relief for injuries inflicted in the

future

39

B. The covenants and the release in the Settlement

Agreements unlawfully and unfairly restrict the

rights of class members to assert legal claims

that the class representatives lacked standing

to litigate

44

C. The provisions permitting actions by individuals

seeking limited relief are inadequate

51

III. The Extraordinary Covenants-not-to-sue and Release Were Given in Exchange for Illusory Consideration. . . . 53

A. The City Agreement

54

B. The State Agreement

60

Conclusion

61

Certificate of Compliance

62

TABLE OF AUTHORITIES
CASES
Adams v. Philip Morris, Inc., 67 F.3d 580(6th Cir. 1996)
Afro American Patrolmens League v. Duck, 503 F.2d 294 (6th Cir. 1974)
Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998)
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
Amchem Prods, v. Windsor, 521 U.S. 591 (1997)
Bounds v. Smith, 430 U.S. 817 (1977)
Brand Name Prescription Drugs Antitrust Litig., 1196 WL 167347 (N.D. 111. April 4, 1996)
Clement v. American Honda Fin. Corp., 176 F.R.D. 15 (D. Conn. 1997)
Cole v. Burns Jnt'J Security Servs., 105 F.3d 1465 (D.C. Cir. 1997)
County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990)
DeVito v. NYU College of Dentistry, 544 N.Y.S.2d 109 (Sup. Ct. 1989)
Denny v. Barber, 576 F.2d 465 (2d Cir. 1978)
Deposit Guaranty Nat'1 Bank v. Roper, 445 U.S. 326 (1980)
Epstein v. MCA, Inc., 126 F.3d 1235 (9th Cir. 1997) reh'g granted by Order, June 15, 1998, Dkt. No. 92-55675 9th Circuit
in

41 52 43 43
passim 58 55
53,54 42
23,57
40 45 52
49

Fund for Animals v. Babbitt,

89 F.3d 128 (2d Cir. 1996)

45

Georgine v. Amchem Prods.,

83 F.3d 610 (3rd Cir. 1996)

30

In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106 (7th Cir. 1979)

passim

General Telephone Company of the Southwest v. Falcon,

457 U.S. 147 (1983)

32

German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537 (S.D.N.Y. 1995)

44,45,48

Great Northern Assocs. Inc. v. Continental Casualty Co., 5 9 6 N . Y . S . 2 d 9 3 8 ( A p p . D i v . 1 9 9 3 )

. . . . 41

Gross v. Summa Four, Inc., 93 F.3d 987

(1st Cir. 1996)

45

Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983)

33,36

J.A. Shults v. Champion Int'1 Corp., 821 F. Supp. 520 (E.D. Tenn. 1993)

40,46

Jackson v. Foley, 156 F.R.D. 538

(E.D.N.Y. 1994)

51

Johnson v. Georgia Highway Express, Inc.,

417 F.2d 1122 (5th Cir. 1969)

32

Lewis v. Casey, 518 U.S. 343 (1996)

58

Louis M. v. Ambach, 113 F.R.D. 133

(N.D.N.Y. 1986)

Marisol A. v . Giuliani, (2d C i r . 1997)

126 F.3d 372

Matsushita Elect. Indus. Co. v. Epstein, 516 U.S. 367 (1996)

31 7,8,37
31

McDonald v. Heckler, 612 F. Supp. 293

(D. Mass. 1985)

51

IV

National Super Spuds, Inc. v. New York Mercantile Exchange,660 F.2d 9 (2d Cir. 1981)
Papilsky v. Berndt, 466 F.2d 251 (2d Cir. 1972)
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)
Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982)
Ray M. v. Board of Educ. of the City Sch. Dist. of the City of New York, 884 F. Supp. 696 (E.D.N.Y. 1995)
Richards v. Richards, 513 N.W.2d 118 (Wis. 1994)
Rosenthal v. Bologna, 620 N.Y.S.2d 376 (App. Div. 1995)
Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003 (1998)
United States v. Allegheny-Ludlum Industries, 517 F.2d 826 (5th C i r . 1975)
Wagenblast v. Odessa School District No. 105-157-166J, 758 P.2d 968 (Wash. 1988)
Williams v. Vukovich, 720 F.2d 909 (6thCir. 1983)

passim 31 31
31,33,48
51 40 40 45 42 40 42

CONSTITUTION

Ky. Const. § 196 N.M. Const, art. 20 § 16 N.Y. Const, art. I §§ 6, 11 U.S. Const, amend. XIV § 1

41 41
7 29

v

STATUTES

Ala. Code § 37-2-81

41

Ark. Code Ann. § 23-10-408

41

Cal. Civil Code § 1668

40

Colo. Rev. Stat. § 40-33-106 (1998)

(liability of common carrier)

41

Fla. Stat. Ann. § 440.54

40

Ga. Code Ann. § 1-3-7

40

Ga. Code Ann. § 34-7-44

41

235 111. Comp. Stat. § 5/6-21

41

Kan. Stat. Ann. § 66-240 (common carrier)

41

Ky. Rev. Stat. Ann. § 189.720

41

Mass. Gen. Laws ch. 231 § 85M

41

Minn. Stat. § 363.031 (1998)

40

Miss. Rev. Stat. § 71-3-107

40

Mont. Code Ann. §§ 1-3-204

40

Mont. Code Ann. § 28-2-702

40

Mont. Code Ann. § 69-14-216

41

N.D. Cent. Code § 8-07-07

41

N.D. Cent. Code § 9-08-02

40

NYC Human Rights Law, Title 8 Chapters 1, 6

43

18 N.Y.C.R.R. §§ 400-484

6

N.Y. Gen. Oblig. Law § 5-325

41

Nev. Rev. Stat. §705.320

41

Ohio Rev. Code Ann. §4973.02

41

Okla. Stat. tit. 15 § 211(3)

40

VI

Pa. Stat. Ann. tit. 77 §672 Tex. Rev. Civ. Stat. Ann. art. 6442 28 U.S.C. § 1291 28 U.S.C. § 1331 28 U.S.C. § 1343(a) (3) 28 U.S.C. § 1367(a) Va. Code Ann. § 8.01-60 Wash. Rev. Code § 81.29.020 Wyo. Stat. Ann. § 37-9-504
MISCELLANEOUS
Fed. R. Civ. P. 23 Restatement (Second) of Contracts § 195 (1979)
(A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.)

40 41
3 3 3 3 41 41 41
passim
40

VII

PRELIMINARY STATEMENT Intervenor-Plaintiffs-Appellants Joel A., by his next friend Jonathan Cole, Michael D., by his next friend Elise Harris, Eric R., by his next friend Jewelnel Davis, David S., by his next friend Michael Williams, Maxx R., and Ray D. (the "Joel A. Objectors") appeal from an order and judgment approving a class action settlement in the Southern District of New York (Ward, J.) .A/ Lesbian, gay, bisexual, and transgendered youth in the New York City foster care system are targeted for relentless violence, harassment, discrimination, and abuse due to their sexual orientation and gender atypicality. [JA 801]-/ This victimization is perpetrated largely by their straight peers within the class certified in this action (the "Marisol Class"), but also by social workers, child care workers, and New York City and State officials charged with the care of these young people. [JA 801-06] Moreover, because this victimization is a direct response to the victims' sexual orientation and identity, it has a profound impact not only on the victims' physical well-being, but also on the victims' mental health and personal development and on the physical, mental, and developmental well-being of indirect victims, i.e., those young people in the foster care
-' The Joel A. Objectors appear under pseudonyms to protect their privacy.
2/ "JA" designates the Joint Appendix, filed April 15, 1999.

system who live in fear, hiding feelings of same-sex attraction. [JA 813-19]
The Joel A. Objectors have filed a putative class action lawsuit on behalf of these severely victimized youth, seeking relief tailored to the cause of their injuries, systemic bias and ignorance concerning adolescent homosexuality. [JA 800 et seq.] That lawsuit is now pending before the Honorable Robert J. Ward in the Southern District of New York, who entered the order and judgment in this case from which the Joel A. Objectors now appeal.
The Joel A. Objectors oppose the Marisol Settlement because it imposes oppressively overbroad restrictions on the Class members' rights of access to the courts, in violation of public policy, the Due Process Clause of the United States Constitution, and Federal Rules of Civil Procedures 23 (e). In addition, these extraordinary concessions to the Marisol defendants were given in exchange for illusory relief. Finally, the record of the fairness hearing and the papers submitted in support of the settlement contain no evidence that the subclass of which the Joel A. Objectors are members was adequately represented vis a vis the other Marisol subclasses during settlement negotiations.

STATEMENT OF JURISDICTION This is an appeal from a final order approving the complete settlement of a class action lawsuit. The district court exercised jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1367(a). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The district court announced its final decision on the record in open court on January 22, 1999. The Joel A. Objectors filed their notice of appeal on February 17, 1999, making this appeal timely pursuant to Fed. R. App. P. 4(a)(2). The district court issued an opinion and entered a written order and final judgment on March 31, 1999.
ISSUES PRESENTED (1) Did the district court abuse its discretion by approving class action settlement agreements that contain a release and covenants-not-to-sue that are oppressively and impermissibly overbroad in that they severely restrict class members' access to the courts for the purpose of asserting claims that the class representatives did not have standing to litigate and in which the class representatives had no personal stake? (2) Did the district court abuse its discretion by approving class action settlement agreements that contain a release and covenants-not-to-sue that are oppressively and
I T

impermissibly overbroad in that they severely restrict class members' access to the courts for the purpose of seeking systemic relief from injuries inflicted after the date of the settlement?
(3) Did the district court abuse its discretion by approving a class action settlement pursuant to which an oppressively broad release and covenants-not-to-sue were given in exchange for relief with a practical value so speculative that there is a strong danger that the settlement will have absolutely no value to the class?
(4) Did the district court abuse its discretion by approving an omnibus settlement of claims asserted by three subclasses, certified for the purpose of assuring adequate representation of divergent interests within the class, despite the absence of any indication that, in fact, the subclasses were adequately represented vis a vis each other during settlement negotiations?
STATEMENT OF THE CASE A.
The Marlsol Litigation and Settlement On December 13, 1995, eleven named plaintiffs (the "Marisol Named Plaintiffs") filed a complaint in the United States District Court for the Southern District of New York against various officials of the City of New York (the "City Defendants") and against various officials of the State of New York (the "State Defendants") who were alleged to be responsible

for the operation or oversight of the New York City child welfare
system. [JA 77 et seq.] Each defendant, including the Mayor of
the City of New York and the Governor of the State of New York,
was sued in his or her official capacity. [JA 92-94]
1. The Marisol Complaint
The complaint contained extensive factual allegations
concerning the Named Plaintiffs. [JA 106-41] They purported to
represent an omnibus class (the "Marisol Class") consisting of
[a]11 children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA.
[JA 86]
On behalf of this expansive class, the Named Plaintiffs
asserted claims for violations of a sweeping array of legal
rights, defined at the highest level of generality. For example,
in their First Cause of Action, the Named Plaintiffs alleged:
As a result of the foregoing actions and inactions of the defendants, plaintiff children are being deprived of the rights conferred upon them by the First, Ninth and Fourteenth Amendments to the United States Constitution. These rights include but are not limited to their right to protection from harm; their right not to be deprived of a family relationship absent compelling reasons; their right not to be harmed—physically, emotionally, developmentally or otherwise—while in state custody; their right not to remain in state custody unnecessarily; their right to be housed in the least restrictive, most appropriate and family-like placement; their right to treatment; their right to equal
5

protection of the law and not to be discriminated against by virtue of their handicap or disability; their right to receive care, treatment and services consistent with competent professional judgment; and their right not to be deprived of state or federally created liberty or property rights without due process of law.
[JA 181]
The Named Plaintiffs' Prayer for Relief, like their
causes of action, was stated in the broadest terms possible.
They asked the district court to
[e]nter declaratory and injunctive relief necessary and appropriate to remedy the defendants' violations of the plaintiffs' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 United States Code §§ 620-27, 670-79a; the Child Abuse Prevention and Treatment Act, 42 United States Code §§ 510106a; the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program of the Medicaid Act, 42 United States Code §§ 1396a, 1396(a) and (r); the Multiethnic Placement Act of 1994, 42 United States Code § 622(b)(9); the Americans with Disabilities Act, 42 United States Code §§ 12101 et sea.; the Rehabilitation Act of 1973, 29 United States Code § 794, 794a; Article XVII of the New York State Constitution; the New York State Social Services Law, Articles 2, 3, 6 & 7; the New York State Family Court Act, Articles 6 & 10; and applicable state regulations, 18 N.Y.C.R.R. §§ 400-484.
[JA 107]
None of the Named Plaintiffs was alleged to be lesbian,
gay, bisexual, or transgendered. None alleged injury resulting
from bias-related violence, abuse, or harassment or

discrimination based on sexual orientation. None sought relief from discrimination on the basis of sexual orientation or gender atypicality under the Equal Protection Clause of the United States Constitution, nor on any basis under the equal protection and anti-discrimination provisions of the New York State Constitution, N.Y. CONST, art. I §§ 6, 11, or the New York City Human Rights Law, N.Y. COMP. CODES R. & REGS. tit. 8 chs. 1, 6 (1998) .
2. Marisol Class Certification On June 18, 1996, the district court certified the
Marisol Class, as defined in the Marisol complaint, pursuant to Fed. R. Civ. P. 23(b)(2). [JA 190 et seq.] The court subsequently granted the City and State Defendants' applications for interlocutory appeal from the class certification. [JA 1398-99]
This Court affirmed the Marisol Class certification, but with reservations. See Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997). The Court noted that the district court found certain legal and factual issues common to all members of the Marisol Class by conceptualizing those issues at a "high level of abstraction," and that the district court's generalized characterization of the claims raised by the Named Plaintiffs "stretches the notions of commonality and typicality." Id. at 377. Although the Court concluded that it had no basis, "at [that] stage of the litigation," to find that the district court
7

had abused its discretion by certifying the Class, id., this

Court instructed the district court to certify subclasses "well

in advance of trial":

the district court must engage in a rigorous analysis of the plaintiffs' legal claims and factual circumstances in order to ensure that appropriate subclasses are identified, that each subclass is tied to one or more suitable representatives, and that each subclass satisfies Rule 23(b)(2).

Id. at 378-79. This Court directed the district court to

undertake such a rigorous analysis so that the district court

could "weed out, and, if necessary, dismiss those claims for

which no named plaintiff is an adequate representative." Id.

at 379. Moreover, the Court provided guidance to assist the

district court in this task:

One possible method of developing proper subclasses would divide the present class based on the commonality of the children's particular circumstances, the type of harm the children allegedly have suffered, and the particular systemic failures which the plaintiffs assert have occurred. Id. On April 23, 1998, the district court certified three

subclasses proposed by the Named Plaintiffs:

Subclass I: Subclass II:

Children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment.
Children in families in which there is an open indicated report of abuse or neglect.

Subclass III: Children in the custody of the Administration for Children's Services.
[JA 424-26] According to the Marisol complaint, Subclass Three
consisted of approximately 43,000 children as of late 1995. [JA 80]
3. The Marisol Settlement In July 1998, "[a]fter more than two years of intensive
discovery and on the eve of the July 27, 1998 trial date" set by the district court in its Fourth Amended Scheduling Order, Class counsel and the City and State Defendants informed the court that they were engaged in settlement negotiations. [JA 1401] By that time, the City and State Defendants had produced over 100,000 pages of documents to Class counsel and the parties had exchanged extensive expert reports. [JA 1420-21]-7 Over thirty depositions had been taken. [JA 1357] All parties had submitted proposed findings of fact to the district court. [JA 1421] Class counsel believed that they were ready for trial and they were "confident" that they would prevail. [JA 1156] On December 2, 1998, the parties presented two settlement agreements for district court approval pursuant to Fed. R. Civ. P. 23 (e): an agreement between the Marisol Class and the City Defendants (the "City Settlement Agreement"), and a separate agreement between the Marisol Class
-' See also [JA 1357] (Class counsel stating that plaintiffs reviewed "hundreds of thousands of pages of documents").

and the State Defendants (the "State Settlement Agreement"). [JA 728, 755]
The Settlement Agreements provide no direct, concrete, effective or reasonably certain relief for the Marisol Class members, yet the Agreements bind Class members to a sweeping release and covenants-not-to-sue. [JA 745-47, 750-51, 775-76] These non-suit provisions extend to claims for relief from future injuries, inflicted after the date of the settlement, as well as to claims for which the Named Plaintiffs lack standing to litigate and in which they have no stake.
Moreover, the terms of the Settlement Agreements indicate that the three Marisol Subclasses were treated as a monolith during settlement negotiations, even though the Subclasses had been separately certified to assure adequate representation of their diverse interests vis a vis each other. Neither Settlement Agreement even mentions the Subclasses, and the City Settlement Agreement expressly defines "Plaintiffs" with reference to the omnibus class initially certified by the district court in 1996. [JA 730]; see also [JA 757] (omission in State Agreement of this Court's order concerning subclasses).
(a) The City Settlement Agreement The City Settlement Agreement provides for the establishment of an independent, privately-funded, Advisory Panel authorized to study five defined areas of the operations of the New York City Administration for Children's Services ("ACS") and
10

to produce a written Initial Report on each area.1' [JA 734-35] In each Initial Report, the Panel may recommend steps for ACS to take as part of the agency's reform effort. [JA 734] These recommendations are not binding; they are "purely advisory." [JA 734] Moreover, the Panel's discretion to make even these non-binding suggestions is restricted. The Panel may not even "attempt to suggest approaches" that would differ from the "overall goals and principles" of a reform plan issued by ACS approximately two years before the date of the Settlement. [JA 734] (emphasis added)
The Panel may, "at its sole discretion," extend its review and the subject matter of each Initial Report to ACS activities and programs that, although outside the five defined subject matter areas, nevertheless "directly affect" the subject matter of that Initial Report. [JA 735]
The Panel may provide "informal" written or oral advice to ACS concerning activities and programs that do not "directly affect" one of the five defined subject matter areas, but the
- Neither the members of the Advisory Panel—four experts in the child welfare field [JA 733]—nor the foundation which funds the Advisory Panel [JA 745] appears to be a party to the Settlement Agreement or to the Marisol litigation. They therefore appear not to be bound by the Agreement and to be beyond the jurisdiction of the court for purposes of enforcement. The City Settlement Agreement contains no provision fixing the parties rights vis a vis each other if the Advisory Panel cannot or does not perform its role as specified in the Agreement. 11

Panel may not include such advice "in any Advisory Panel review or report." [JA 736]
The Settlement Agreement establishes no schedule for the issuance of the Advisory Panel's Initial Reports, nor does it establish any fact-finding or other procedures for the Panel to follow.
After the Panel has completed all five of its Initial Reports, it will continue to review the five defined areas of ACS operations, and it will issue Periodic Reports on these areas. [JA 737-39] "The focus of the Periodic Reports will be to determine whether or not, in the Advisory Panel's opinion . . . , ACS is acting in good faith in making efforts toward reform in the operational areas being reviewed." [JA 737] The Panel may not determine whether ACS is acting in good faith based solely on whether ACS is implementing the Panel's recommendations, or adhering to schedules proposed by the Panel, or even "whether any reform efforts are actually effective in bringing about reform." [JA 737]
In addition, the Panel may not determine whether ACS is acting in good faith based solely on whether the City has complied with its only obligation under the entire Settlement Agreement, to provide the Panel with such information as the Panel may request. [JA 737-38] The City Settlement Agreement imposes no obligation whatsoever on at least one of the City Defendants, the Mayor of New York, who, according to the Marisol
12

complaint, "is responsible for ensuring that all New York City agencies comply with all applicable federal and state law." [JA 92-93]
Moreover, a "not in good faith" finding by the Panel is not an arbitral determination. It does not compel ACS or any of the City Defendants to alter their conduct and it does not establish legal liability to the Class. The only consequence of a "not in good faith" finding is that it entitles Class counsel to re-instate a portion of the Marisol class action lawsuit, subject to the City Defendants' right to rebut the Panel's bad faith finding in the district court. [JA 739-40]
In sum, after the Panel has issued all five of its Initial Reports (whenever that may be), and if the Panel subsequently finds that ACS is not pursuing its own reform agenda in good faith (a finding neither compelled nor even permitted based solely on the City Defendants' failure to achieved any degree of actual reform or remedy any violation of the Class members' legal rights), and if the City Defendants fail to rebut that finding in the district court, then the Class may re-instate those claims—and only those claims—already asserted in Marisol that are related to the subject matter areas in which the Panel has determined that ACS is not acting in good faith. Having reinstated that portion of the Marisol action, the Class will then bear the same legal burden they bore prior to Settlement: the Class must prove liability under the applicable laws already
13

identified in the Marisol pleadings (no new legal theories may be added) subject to all of the City Defendants' applicable defenses to liability and relief. [JA 739-40]
Lest there be any mistake about the very narrow and novel role that the Advisory Panel is to play under the City Settlement Agreement, the parties have expressly disclaimed "any rights for Plaintiffs to utilize the Advisory Panel as, in effect, arbitrators or administrative law judges with respect to any disputes Plaintiffs may have with ACS." [JA 739] The Panel is not a forum for resolving disputes between the Class, or individual Class members, and the City Defendants.-''
Nevertheless, the City Settlement Agreement binds Class members to a covenant not to sue and a release that place unprecedented restrictions on the Class members' access to the courts. First, the Agreement, which, by its own express terms, is not a consent decree [JA 733], bars the Class from bringing any action in court to enforce the Agreement itself, at least until and unless the Panel issues a Periodic Report that contains a finding of bad faith.^ [JA 739-40, 745-47] In other words, the Class will not have access to judicial enforcement of the
-' In the very next sentence, though, the Agreement does guarantee "rights" to the City -- including the right to meet with the Panel before a finding of bad faith is issued -- that "shall [not be] limit[ed]." [JA 739-40]
-' It is not clear whether, even then, the Class could bring such an action, or would be limited to pursuing its legal claims stated in the Marisol pleadings. [JA 739-40] 14

Agreement until after the Panel has issued all five Initial Reports. Supra at 12-13.
Second, the City Settlement Agreement bars Class members from initiating any action for "systemic declaratory, injunctive, or other form of equitable relief" based on events occurring prior to the Settlement and "based on, arising out of, or relating to any claims that were or could have been asserted" in the Marisol pleadings. [JA 746] (emphasis added)
Third, the Agreement bars Class members from initiating any action, ever, for "systemic declaratory, injunctive, or other form of equitable relief" based on "facts, events, actions or omissions . . . which relate in any way to any claim raised in the Marisol litigation, as described in Plaintiffs' Statement of Claims to be Tried2/ . . . and which occur after the signing of this Agreement and prior to December 15, 2000," the date on which the City Settlement Agreement expires. [JA 746] (emphasis added)
Fourth, the Agreement bars Class members from initiating, prior to December 16, 2000, "any new action for systemic declaratory, injunctive or other form of equitable relief based on facts, events, actions or omissions . . . which relate to claims raised [in the Marisol pleadings] which were not contained or described in Plaintiffs' Statement of Claims to be
1J These are set forth in the Pre-trial Order dated July 16, 1998. [JA 629-68] 15

Tried^ . . . and which occur after the signing of this Agreement and prior to December 15, 2000." [JA 746-47]
The agreement permits individual Class members to bring actions for damages and equitable relief, but such actions may seek only relief "tailored solely to the specific circumstances of that individual plaintiff." [JA 747]
(b) The State Defendants' Settlement Agreement The State Settlement Agreement calls for the State Defendants to do several things: to oversee, monitor, supervise, review, evaluate, discuss, recommend, report, provide information, and advertise. [JA 755 et seg.] The Agreement also requires the State Defendants to implement a statewide computer system and to decrease the time it takes to answer calls at the State Central Register, which accepts reports concerning domestic violence. [JA 763-65] The Agreement does not, however, provide any direct, concrete, or reasonably certain relief to any members of Marisol Subclass Three, even though the State Defendants have oversight authority over ACS. This authority is acknowledged in the State Settlement Agreement provisions calling for the State's Office of Children and Family Services ("OCFS") to undertake case record reviews to determine whether ACS is in "substantial noncompliance with applicable laws, regulations and/or reasonable case work practice" and then to "direct ACS to take Corrective
-' See note 4 . 16

Action designed to improve ACS's performance in the specific areas of non-compliance." [JA 767] OCFS need not exercise this oversight authority prior to completing the case record reviews, and it need not complete these reviews until twenty-one months after entry of the order dismissing the claims against the State Defendants in this case. [JA 766-67] Given the City and State Defendants' record of failing to address obvious atrocities within New York City's child welfare system—as set forth in both the Marisol and Joel A. complaints [JA 106-80, 801-67]-it is highly likely that any exercise of authority by OCFS is at least two years off.
During those two years of continuing devastation, the Marisol Class members will be barred from pursuing relief against the State Defendants through class action claims, and even through individual lawsuits alleging system-wide violations arising out of such claims, even if based on facts or circumstances that occur after execution of the Settlement Agreement. [JA 745-46] Moreover, class-wide or systemic claims arising from new facts and/or circumstances that occur" after execution of the proposed Settlement Agreement would be barred forever if those claims "relate in any way to any claim raised in . . . the Pre-Trial Order" in Marisol. [JA 746]
17

B. The Joel A. Objectors On January 15, 1999, the Joel A. Objectors filed a putative class action lawsuit against certain New York City and State officials who are also defendants in Marisol. [JA 800 et seq.] Each of the Joel A. Objectors is a gay youth in the care and custody of the New York City Administration for Children's Services. [JA 806-09] They are all victims of intense biasrelated violence, harassment, abuse, and discrimination based on sexual orientation perpetrated by their straight peers in the foster care system and by the City and State Defendants and the public and private entities for the actions of which the defendants are responsible. [JA 827-52] The Joel A. Objectors seek to represent a class of young people that finds itself in unique and dire circumstances within the foster care system —a class including young people in the New York City foster care system who are lesbian, gay, bisexual, transgendered, or gender atypical (the "Joel A. Class"). [JA 809-10] They seek, on behalf of this class, specific and concrete relief from bias-related victimization at the hands of their peers, and systemic discrimination based on sexual orientation, both of which result in physical, emotional, psychological, and developmental injuries. [JA 874-76] Moreover, the chief perpetrators of such victimization are members of Marisol Subclass Three; they are the heterosexual

peers of the Joel A. Class members against whom the Joel A.
objectors seek protection, including adequate disciplinary
responses to violence, harassment, and abuse perpetrated on the
basis of sexual orientation and gender atypicality. [JA 819-52]
The Joel A. Objectors allege, in general, that
36. By failing to protect Class members from bias-related violence, harassment, and abuse, and by placing Class members in hostile environments that disrupt critical developmental processes and thus cause grave emotional, psychological and developmental injury, the defendants manifest their indifference to the physical and mental health of the Class members and fail to provide Class members with care that meets minimum professional standards. Although researchers have documented the need for a professional response to the dire circumstances in which the Class members find themselves, and although the City defendants have admitted the need for and their failure to provide such a professional response, no defendant has implemented any concrete remedy.
37. Indeed, the defendants routinely discriminate against Class members in the provision of existing services offered to children in the defendants' care and custody. Class members are frequently excluded from group homes because of their actual or perceived sexual orientation; some group homes even maintain an official policy of excluding lesbian, bisexual, gay, and transgendered youth. When they are admitted to group homes, Class members are frequently denied even basic protection or services. Defendants' staff frequently manifest and adopt a position of deliberate indifference to the bias-related violence, harassment, and abuse to which Class members are subjected by other group home residents, and fail to act in situations where they would intercede on behalf of children whom they did not believe to be gay, lesbian or bisexual.
[JA 812]
In support of these general allegations, the Joel A.
Plaintiffs allege that members of the class they seek to
19

represent encounter a common set of challenges to their physical
and mental health and their personal development due in large
part to the intersection of the critical developmental tasks of
personal and social identity development that they must confront,
their awakening sense of same-sex attraction or gender
atypicality, and the intense heterosexist bias of both their
peers, with whom they must live in close contact, and those
charged with their care and protection. [JA 813-52] They
further allege intense bias-related victimization based on their
sexual orientation or gender atypicality. For example:
• Because he is gay, Joel A. has been punched and thrown down a flight of stairs. He has had his shoulder blade and finger broken, and he has had his nose broken twice, once from being hit in the face with a broom. Because of Joel's sexual orientation, one facility where he resided for three years assigned him four times to a special group for residents exhibiting "problematic sexualized behavior."
• Michael D., has had rocks and a textbook thrown at his face, and he has been repeatedly slapped and punched by other kids because he is gay and transgendered. Although he is constantly called "faggot," "'ho," "slug," and "batiman" by his peers, and feels completely isolated and alone, staff at his residence tell him that they won't be able to help him unless he
stops acting "so gay. „
Shortly after being warned by a social worker that he would be "torn apart" by the other residents at the group home where Maxx R. was first placed in the foster care system, Maxx was attacked by eight boys who burst into his room at night. After the attack, at about 3:00 A.M., Maxx told the residential staff that he was leaving because the group home was not safe for him. The staff responded by handing Maxx two dollars and showing him the door. Maxx spent the rest of that night at a squatters' house. A case worker subsequently told Maxx that she had intentionally
20

denied him a safe placement because she thought he needed to experience and learn to deal with hostility toward gay people. [JA 802] See also [JA 819-52] Finally, the Joel A. Plaintiffs allege that the City and State Defendants named in their complaint have manifested deliberate indifference for their failure to provide members of the Joel A. Class with care and protection that meets professional standards. [JA 852-67] The Joel A. Plaintiffs state claims for relief from their bias-related injuries under certain constitutional provisions, statutes, and regulations, including the Equal Protection Clauses of the United States and New York State Constitutions and the New York City Human Rights Law. [JA 868-73] They seek, on behalf of the putative class, specific, concrete relief tailored to the class members' unique and dire circumstances, including, for example, the immediate establishment of safe houses in which these youth can safely develop healthy sexual identities by disclosing and expressing their feelings, and by discussing issues related to sexual identity without fear. [JA 874]
C. Settlement Approval Proceedings Class counsel and the City and State Defendants presented the Settlement Agreements to the district court at a hearing on December 2, 1999. [JA 1401] The district court preliminarily approved the City and State Settlement Agreements,
21

and subsequently ordered the distribution of notice to the Class and scheduled dates for submission of objections and a fairness hearing. [JA 1411-13]
In their papers submitted in support of the Settlement Agreements, Class counsel asserted that they were "confident" that the Marisol Class would have prevailed on liability had the Class gone to trial instead of settling. [JA 1156] Class counsel asserted that this judgment was based on extensive discovery and trial preparation. Supra at 9. [JA 1155-56]
Moreover, the settling parties conceded that it was their intent to bar claims for systemic relief such as those asserted in the Joel A. class action, and that it is the parties' understanding that such claims are barred by the release and covenants not to sue in the City and State Settlement Agreements. [JA 1166, 1380]
22

THE DECISION BELOW After giving an account of the history of the proceedings in Marisol and a related case, Wilder v. Bernstein, 78 Civ. 957 (RJW) (S.D.N.Y.) [JA 1394-1400], the district court summarized the terms of the City and State Settlement Agreements [JA 1401-11], and summarized the settlement approval process [JA 1411-15]. The court then proceeded to analyze the sufficiency of the settlement consideration under the "Grinnell factors" identified by this Court in County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323-24 (2d Cir. 1990). The district court found that the Marisol litigation was highly complex, that few of the indigent children in the Marisol Class had filed objections to the Settlement, that extensive discovery had been completed prior to settlement, and that it was unlikely that the Marisol Class would have been decertified after trial. [JA 1411-15] The linchpin of the court's analysis, however, was its finding that the terms of the Settlement Agreements provided the Marisol Class with as much relief as the Class could have obtained even if it had prevailed on trial, and that the Settlement terms provided such relief in a more timely manner. [JA 1422-25] The Court also found that the Settlement Agreements were negotiated at arms length by experienced and competent Class counsel. [JA 1426-32]
23
I I

After discussing the dismissal of the Wilder action, supra, pursuant to the terms of the Marisol Settlement [JA 740-44], the district court turned to its discussion of the claims raised by the Joel A. Objectors [JA 1433-42]. The court rejected the Joel A. Objectors claim that the City Settlement Agreement was vague because a key term in the Agreement ("permanency") was defined by reference to a draft document that had been withheld from Class members. The court rejected this claim because (1) the settling parties had access to the document during settlement negotiations, (2) the court found the term defined with reference to the confidential document to be sufficiently clear on its face, and (3) the court found that any ambiguity in the term would beneficially increase the discretion of the Advisory Panel to determine the scope of its review of ACS operations. [JA 1434-36]
The court turned next to the Joel A. Objectors' claims regarding the non-suit provisions in the City and State Settlement Agreements and the sufficiency of the settlement consideration obtained on behalf of the Class. The court found that the settlement consideration is not illusory, as the Joel A. Objectors argued, because "the City and State Settlement Agreements are designed to benefit these children." [JA 1437] In addition, the court stated that the Joel A. Objectors had not indicated how the State Settlement Agreement is illusory. [JA 14 38]
24

The district court also rejected the Joel A. Objectors' claim that the release and non-suit covenants contained in the City and State Settlement Agreements were unfair and oppressive. [JA 1438-40] The court's ruling on this point rested on its conclusion that the Class members' right of access to the courts had been sufficiently preserved by the Settlement terms permitting Class members to bring actions for damages and nonsystemic equitable relief. [JA 1440] Moreover, the court concluded that the City Defendants' commitment to provide information to the Advisory Panel constituted adequate consideration for the Class members' relinquishing their right to initiate lawsuits for systemic relief against the City Defendants for the next two years. [JA 1440]
The district court also rejected the Joel A. Objectors' claim that the Marisol Named Plaintiffs compromised and released claims with respect to which the Named Plaintiffs could not adequately have represented the Joel A. Objectors because the Named Plaintiffs lacked standing to assert and had no personal stake in pursuing those claims. [JA 1440-42] The court construed the objection as one directed at the court's earlier decision to certify Subclass Three, rather than as a challenge to the attempt of Class counsel and the Named Plaintiffs to overstep their negotiating authority during the settlement negotiations and stated that it had previously resolved the issue. [JA 1441-42]
25

The district court overlooked and did not address the issue whether each of the three Marisol Subclasses had been adequately represented vis a vis each other during settlement negotiations, although the Joel A. Objectors called this issue to the court's attention both in their papers opposing settlement approval and at the fairness hearing. See Amended Memorandum in Support of Motion to Intervene and Objections to Proposed Class Action Settlement by Intervenor Joel Plaintiffs, at 24-25; [JA 1369-71].
26

SUMMARY OF ARGUMENT The Settlement Agreements require the members of the Marisol Class to relinquish vital rights of access to judicial relief in exchange for vague and highly speculative relief. The result is a profoundly unfair compromise of their rights and interests. First, the Settlement Agreements release all existing claims that relate to ACS's provision of child welfare services to the Class. These include the claims of the Joel A. plaintiffs, which the class representatives in Marisol did not possess and had no standing to assert. The Settlement Agreements also contain non-suit provisions that amount to a two-year-long "free pass," preventing Class members from ever seeking systemic relief on the basis of any actions taken by ACS for two years following the date of the Agreements. If ACS continues its demonstrated malfeasance during these two years, the only recourse left to an abused, neglected or homeless child in the Class is to seek individual representation and bring an individual suit addressed solely to the child's individual circumstances. The desperate circumstances of the Class members render such suits unlikely to be brought, and the desperate need for system-wide improvements instead of stop-gap measures render such suits unlikely to have any lasting effect. Second, in return for these extraordinary concessions, the Settlement Agreements give the Class members relief so
27

speculative that it will likely have no practical value. The totality of the relief that the City Settlement Agreement provides is the creation of an Advisory Panel without power to compel ACS to do anything. Its only function is to conduct carefully circumscribed investigations of ACS's activities, to make non-binding recommendations as to how ACS might improve its services, and, if it ultimately concludes that ACS has failed to proceed in good faith, to issue a rebuttable finding to that effect. This finding entitles the Class merely to reinstate portions of the lawsuit that was ready to go to trial in July 1998. Such "relief" would be illusory even if offered in return for only modest concessions. The relief afforded by the State Settlement Agreement is equally speculative. When measured against the sweeping releases contained in the Settlement Agreements, the relief is starkly inadequate.
Third, this profoundly unbalanced Settlement is the result of a process in which no structural precautions were implemented to ensure that the diverse interests of the certified subclasses were adequately represented. The district court made no finding concerning adequate representation of the Marisol subclasses vis a vis each other during settlement negotiations—and, indeed, had no basis on which to make such a finding due to the failure of Class counsel to address the issue.
The result of this flawed process is a profoundly unfair settlement that makes sweeping concessions in return for
28
TIT

no tangible benefit of any kind. This is a violation of both Rule 23 and the rights of the Marisol Class under the Due Process Clause, and it requires that the district court's approval of the settlement be reversed.
29

ARGUMENT Writing for the United States Court of Appeals for the Third Circuit in Georgine v. Amchem Products, Judge Edward Becker observed that "[ejvery decade presents a few great cases that force the judicial system to choose between forging a solution to a major social problem on the one hand, and preserving its institutional values on the other." 83 F.3d 610, 617 (3rd Cir. 1996) . This is such a case, and just as the Third Circuit in Georgine and the United States Supreme Court, on certiorari, in Amchem Products v. Windsor, 521 U.S. 591 (1997), adhered to the institutional values that protect the rights of unnamed parties in class action litigation, and rejected an improperly negotiated settlement even though it would greatly have mitigated the vexing problem of asbestos litigation, so this Court, adhering to those same values, should reverse the district court's approval of the two Settlement Agreements in this case. The City and State Settlement Agreements, which the proponents presented to the district court as an "extremely novel" approach to the dire situation of children in New York City's foster care system fJA 1353] are indeed novel in that they bind unnamed class members, who had no opportunity to opt-out of the settlement, to singularly and oppressively broad non-suit provisions in exchange for relief with a practical value so speculative that there is a strong danger that the settlement will have absolutely no value to the class. Moreover, although
30

the district court complied with the letter of this Court's instruction to certify subclasses on remand from the City and State Defendants' appeal concerning class certification, the record contains no evidence indicating that the purpose of that instruction—to assure that each class member received adequate representation for each claim resolved in this action—was fulfilled during settlement negotiations.
The district court's decision to approve the City and State Settlement Agreements is subject to review for abuse of discretion, but the district court's discretion to approve a class action settlement is limited by the court's fiduciary duty to unnamed class members. The district court must ensure that the settlement terms are fair, reasonable, and adequate as to all unnamed class members and that the interests of each were adequately represented—i.e., vigorously represented by a representative with undivided loyalty—during settlement negotiations. Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir. 1982); Papilsky v. Berndt, 466 F.2d 251, 260 (2d Cir. 1972); Louis M. v. Ambach, 113 F.R.D. 133, 137 (N.D.N.Y. 1986). This requirement of vigorous representation is continuing and applies "at all times," including, of course, during settlement negotiations. Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367, 395 (1996) (Ginsburg, concurring in part and dissenting in part), citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
31

Moreover, in determining the scope of claims that may be released or compromised in a class action settlement, the district court must ensure that the named plaintiffs have purported to represent the class "only to the extent of the interests they possess in common with members of the class." National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9, 17 (2d Cir. 1981). Indeed, the Supreme Court has cautioned against the tendency to permit expansive class representation based on the assumption that "all will be well for surely the plaintiff will win and manna will fall on all members of the class." General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 161 (1983), quoting Johnson v. Georgia Highway Express, Inc., All F.2d 1122, 1127 (5th Cir. 1969) (Godbold, J., specially concurring). That caution against permitting expansive representation is especially appropriate in the context of a settlement such as this, where representatives purport to release a vast spectrum of claims on behalf of a highly diverse class. What may be "most significant" about expansive representation is the unfairness to Class members who find themselves bound by a judgment. Falcon, 457 U.S. at 161 citing Johnson, All at 1127.
In this case, Class Counsel and the Named Plaintiffs exceeded the bounds of their representation by purporting to release claims which they had no standing to assert and in which they had no personal stake. In addition, the Named Plaintiffs
32

bound all absent Class members to onerous non-suit provisions that extend to claims based on future injury, and did so in exchange for speculative relief that is likely to have no practical value to the Class.
Moreover, there was no evidentiary basis, either in the papers submitted in support of the Settlements or in the record of the fairness hearing, to support a finding that the Subclass to which the Joel A. Objectors belong was adequately represented during settlement negotiations vis a vis the other Marisol Subclasses. Indeed, the district court made no such finding. Yet in order to fulfill its fiduciary obligation to unnamed Class members, however, the district court must make findings, and those findings must be based on an explanation of the facts, rather than on the arguments and recommendations of counsel. Plummer, 668 F.2d at 659. "[A] court may not delegate to counsel the performance of its duty to protect the interests of absent class members." Id. at 659 n.4. Moreover, the record must provide an appellate court with "a basis for judging the exercise of the district court's discretion." Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983).
33

I. The Record Contains No Evidence Indicating That Any Structural Precautions Were Implemented to Assure Adequate Representation of the Diverse Interests of the Three Sub-classes During Settlement Negotiations.
In its opinion affirming the district court's certification of the Marisol class, this Court expressly instructed the district court to certify subclasses in order to assure adequate representation of each unnamed class member with respect to the class member's "separate and discrete legal claims." Marisol, 126 F.3d at 378-79. This instruction was consistent with the Supreme Court's disapproval of global compromises achieved in the absence of any "structural assurance of fair and adequate representation for the diverse groups and individuals affected." Amchem, 111 S. Ct. at 2251.
Although the district court complied with the letter of this Court's instruction to certify proper subclasses, supra at 8-9, neither the papers submitted in support of the settlement nor the record of the fairness hearing contain any evidence indicating that settlement negotiations were conducted in a manner sufficient to assure that the certification of the three Marisol Subclasses served its purpose during those negotiations, to assure adequate representation of the class members' diverse interests vis a vis each other. Remarkably, neither the City nor State Settlement Agreements make any reference to the three Subclasses certified by the district court. Both Settlement Agreements treat the three Subclasses as a monolith. Supra
34

at 10. The district court did not appoint separate counsel for
each Subclass [JA 422 et seq.] , and the record contains no
evidence suggesting that Class counsel undertook to allocate among themselves the representation of the three Subclasses.-7
Moreover, neither the papers submitted in support of the
Settlements nor the record of the fairness hearing contain any
evidence establishing that Class counsel kept all representatives
of each Subclass adequately apprised of the course of the
settlement negotiations, or obtained the representatives'
approval of the Settlement after adequately apprising them of the final terms.—7 Despite the absence of any evidence indicating
that each Subclass was adequately represented vis a vis the other
Subclasses during settlement negotiations, the district court
conducted no inquiry and made no findings concerning this issue.
-' Class counsel had the resources to do so. The Class was represented by lawyers from two public interests organizations, Children's Right, Inc. and Lawyers for Children, and two prominent law firms, Schulte, Roth & Zabel and Cahill, Gorden & Reindel.
—' The Seventh Circuit noted in the General Motors Corporation Engine Interchange Litigation, that when Class counsel who were not involved in settlement negotiations express support for a settlement that is presented to them as a fait accompli, such support does not constitute ratification of the conduct of the negotiations because Class counsel "should know the options considered and the topics discussed during the negotiations before supporting a settlement as fair." 594 F.2d at 1126 n.29. Similarly, especially where diverse subclasses have been jointly represented by Class counsel, the subclass representatives should be apprised not only of the final terms of the proposed settlement, but also of the course of the negotiations.
35
WW

That omission constitutes a clear abuse of discretion. The proponents of a class action settlement must establish that all requirements for settlement approval have been met. See Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983); In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1126 n.30 (7th Cir. 1979). The district court may not shift the burden of proof regarding the fairness of the settlement, including the adequacy of representation during settlement negotiations, from the settlement proponents to objectors. See General Motors, 594 F.2d at 1126 n.30.
Moreover, the district court has a "continuing duty to undertake a stringent examination of the adequacy of representation by the named class representatives and their counsel at all stages of the litigation." Id. at 1124. This duty arises from the requirement, in Fed. R. Civ. P. 23(a)(4), that the court determine whether "the representative parties will fairly and adequately protect the interests of the class." The duty is heightened in the settlement context by the court's responsibility, under Fed. R. Civ. P. 23(e), to review the fairness of any compromise. See General Motors, 594 F.2d at 1124. The court's duty stringently to examine the adequacy of representation during settlement negotiations, and the settling parties' burden of coming forward with evidence establishing that all class members were adequately represented, apply with equal force regardless whether the -class was represented by private
36

counsel, who may be driven to settle by the prospect of earning a large fee, or public interest lawyers, who may be equally driven to settle by the prospect of reputational enhancement. Id. at 1125.
Moreover, the issue of subclass representation, which the settlement proponents failed to address, is especially acute in this case. This Court clearly expressed its concern that the district court was "near the boundary of the class action device" when it certified the omnibus Marisol Class, because the district court had addressed the commonality and typicality criteria of Fed R. Civ. P. 23(a) based on a conceptualization of the common legal and factual questions in this case at a "high level of abstraction." Marisol, 126 F.3d at 377. Indeed, this Court explicitly recognized that "the class certified by the district court implicitly consist[ed] of two large subclasses" and that "in reality, each of these subclasses consist[ed] of smaller groups of children, each of which has separate and discrete legal claims," each of which "is based on one or more specific alleged deficiencies of the child welfare system." Based on this recognition, id. at 378, this Court carefully instructed the district court to "engage in a rigorous analysis of the plaintiffs' legal claims and factual circumstances in order to ensure that appropriate subclasses are identified, that each subclass is tied to one or more suitable representatives, and that each subclass satisfies Rule 23(b)(2)." Id. at 378-79. The
37

Court stated its expectation that creation of subclasses in this manner would serve the purpose of "allow[ing] the district court to weed out, and, if necessary dismiss those claims for which no named plaintiff is an adequate representative." Id. at 379. In light of this Court's forceful expression of concern regarding the adequacy of representation for the separate and distinct legal claims and factual circumstances peculiar to subclasses within the Marisol Class, and in light of the Supreme Court's requirement that there be "structural assurance of fair and adequate representation for . . . diverse groups and individuals affected," Amchem, 117 S. Ct. at 2251 (emphasis added), the district court abused its discretion by permitting the question whether each Subclass received adequate representation vis a vis the other Subclasses to be passed over without comment by the settlement proponents and without evidence sufficient to support an explicit finding in this regard.
II. The Covenants-not-to-sue and the Release Contained in the
Settlement Agreements Are Overbroad, Oppressive, and Violate the Due Process Rights of Absent Class Members.
The Settlement Agreements bind all Marisol Class members to onerous non-suit provisions that compromise, and in many cases will extinguish for two years, as a practical matter, their rights to obtain relief from violations of vital legal rights. The Agreements include covenants not to sue and a release that preclude any action seeking systemic declaratory,
38

injunctive or other forms of equitable relief for two years, whether such relief is sought through a class action on behalf of a particular group of children or whether such relief is sought on behalf of an individual child, even if the claim is based on injuries inflicted after the Settlement. Supra 14-16, 11. Moreover, the non-suit provisions in the City and State Settlement Agreements extend to claims which the Named Plaintiffs lacked standing to assert and in which they had no personal stake. Although the Agreements permit suits seeking damages and non-systemic relief tailored to an individual's concerns, as a practical matter, this will offer cold comfort to Class members in many important cases, as explained in sub-section C, below.
A. The covenants and the release unlawfully and unfairly restrict the rights of class members to seek judicial relief for injuries inflicted in the future. The non-suit covenants and release in the City
Settlement Agreement bar claims for systemic relief based on "facts, events, actions or omissions by the City . . . which occur after the signing of this Agreement and prior to December 15, 2000." [JA 746] (emphasis added) The State Settlement Agreement has a similar provision, barring any claims for "system-wide violations . . . based upon new facts or circumstances that occur during the duration of this Agreement." [JA 776] (emphasis added)
"No settlement that precludes future, unknown causes of action can be considered fair, reasonable, or in the best
39

interests of the class as a whole." J.A. Shults v. Champion
Int'l Corp., 821 F. Supp. 520, 524 (E.D. Tenn. 1993). Indeed,
courts and legislatures agree that exculpatory releases violate
public policy.—7 As one New York court explained:
—' States have determined that willful or reckless acts that result in injury can never be shielded from liability by waiver or release. See, e.g., CAL. CIVIL CODE § 1668 (West 1999) ("All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law."); MONT. CODE ANN. § 28-2-702 (1997) (same); N.D. CENT. CODE § 9-08-02 (1997) (same); see also Richards v. Richards, 513 N.W.2d 118, 121 (Wise. 1994) ("An exculpatory agreement will be held to contravene public policy if it is so broad vthat it would absolve [the defendant] from any injury to [the plaintiff] for any reason.'"); Restatement (Second) of Contracts § 195 (1979) ("A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy."); Nagenblast v. Odessa School District No. 105-157-166J, 758 P.2d 968, 970 (Wash. 1988) (en bane); Rosenthal v. Bologna, 620 N.Y.S.2d 376, 378 (App. Div. 1995); DeVito v. NYU College of Dentistry, 544 N.Y.S.2d 109, 110 (Sup. Ct. 1989). Also, states have invalidated attempted waivers of civil and human rights, see MINN. STAT. § 363.031 (1998), and other waivers that contravene public order and morals, see, e.g., GA. CODE ANN. § 1-3-7 (1998) (prohibiting waiver of laws "made for the preservation of public order or good morals"); N.D. CENT. CODE § 9-08-02 (1997) (fraud, wilful injury, or violation of law) LA. CIV. CODE ANN. art. 7 (1998) (contracts that "derogate from laws enacted for the protection of the public interest"); MONT. CODE ANN. §§ 1-3204 (1997) (laws "established for a public reason"); OKLA. STAT. tit. 15 § 211(3) (1998) (contracts "contrary to good morals"). States have also recognized that children require special protection from harm and exploitation, invalidating attempts by employers to secure waivers of child-labor laws, or even to insure against such provisions. See, e.g., FLA. STAT. ANN. § 440.54 (1998); Miss. REV. STAT. § 71-3-107 (1998); PA. STAT. ANN. tit. 77 §
(continued..
40

While, concededly, exculpatory agreements or covenants not to sue are recognized by courts, under announced public policy they are ineffective to insulate the releasee from intentional, willful or grossly negligent acts. So strong is this policy that it is applicable regardless of whether exemption of such conduct was within the parties' contemplation at the time the agreement was executed.
Great Northern Associates, Inc. v. Continental Casualty Co.,
et al., 596 N.Y.S.2d 938, 940 (App. Div. 1993) (citations
omitted).
The release and non-suit covenants in the City and
State Settlement Agreements effectively license the City and
State Defendants to commit systemic violations of Marisol Class
members' legal rights over the next two years. See Adams v.
—' (...continued) 672 (1998). Where the activities of private individuals serve important public functions, as in the case of railroads and other common carriers, States have not hesitated to invalidate attempts by such individuals to escape, through waiver, the conseguences of their own malfeasance. See, e.g., ALA. CODE § 37-2-81 (1998) (liability of railroad); ARK. CODE ANN. § 23-10-408 (1997) (railroad); COLO. REV. STAT. § 40-33-106 (1998) (liability of common carrier); GA. CODE ANN. § 34-7-44 (1998) (railroad); KAN. STAT. ANN. § 66-240 (common carrier); KY. CONST. § 196 (common carrier) ; MONT. CODE ANN. § 69-14-216 (1997) (railroad transporting livestock); NEV. REV. STAT. § 705.320 (railroad); N.M. CONST, art. 20 § 16 (1998) (railroad); N.D. CENT. CODE § 8-07-07 (1997) (common carrier) ; id. § 49-16-05 (railroad) ; OHIO REV. CODE ANN. § 4973.02 (1998) (railroad); TEX. REV. CIV. STAT. ANN. art. 6442 (1998) (railroad); VA. CODE ANN. § 8.01-60 (1998) (railroad); id. 56-119 (transportation companies); WASH. REV. CODE § 81.29.020 (1998) (common carrier); WYO. STAT. ANN. § 37-9-504 (Michie 1998) (railroad); see also 235 III. COMP. STAT. § 5/6-21 (1998) (servers of alcohol); KY. REV. STAT. ANN. § 189.720 (1998) (liability of parking operator); MASS. GEN. LAWS ch. 231 § 85M (1998) (garage); N.Y. GEN. OBLIG. LAW § 5-325 (1998) (garages and parking places); id. § 5-326 (recreational facilities).
41

Philip Morris, Inc., 67 F.3d 580, 585 (6th Cir. 1996) (holding that a release could not apply to future claims and stating that "[a]n employer cannot purchase a license to discriminate").
The policy against waivers of future civil rights violations is clear. In Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983), the Sixth Circuit Court of Appeals examined a consent decree in a class action that included provisions "waiv[ing] the ability of minorities to complain about discrimination which may occur in the future." Id. at 924. In large part because of those provisions, the court determined that the consent decree "is illegal and contrary to the public interest." Id. at 925. Cf. Cole v. Burns Int'l Security Servs., 105 F.3d 1465, 1482 (D.C. Cir. 1997) ("Clearly, it would be unlawful for an employer to condition employment on an employee's agreement to give up the right to be free from racial or gender discrimination.")
Similarly, in United States v. Allegheny-Ludlum Industries, 517 F.2d 826 (5th Cir. 1975), the Fifth Circuit determined that certain broadly phrased releases could not bar suits based on future acts, in part because
the release can have no other acceptable meaning, for notwithstanding that the systemic reforms contained in the decrees have been put into operation . . . the defendants have an ongoing statutory responsibility independent of the decrees to see that the corrective measures and goals established thereunder are maintained and updated so that the effects of past discrimination will be wiped out as quickly as due diligence and business necessity permit. Id. at 855 (emphasis added).
42
• r

Both the Williams and Allegheny-Ludlum Industries courts relied on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which found that prospective waivers of employees' rights under Title VII in the collective bargaining context would be contrary to the very purpose of Title VII in protecting an individual's right to equal employment opportunities. Id. at 51-52. Here, by contrast, the proponents of the Settlement Agreement have asserted that even antidiscrimination claims—based on constitutional provisions, statutes, and regulations created in order to protect individuals from bias-related injuries such as those suffered by Joel A. Objectors, see, e.g. NYC Human Rights Law, Title 8, Chapters 1, 6—are precluded, even if those claims are based on events that have not yet occurred. The Supreme Court's reasoning in Gardner-Denver, however, dictates that such restrictive provisions are impermissible and directly contradict statutory protections.—'
The actions of the City and State Defendants in providing child welfare services implicate all of the principles that courts and legislatures have sought to protect by
—/ Indeed, Gardner-Denver dictates that the Marisol Named Plaintiffs themselves cannot release prospective claims that they have brought pursuant to the Americans with Disabilities Act and the Federal Rehabilitation Act of 1973. [JA 103] See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1303 n.25 (D.C. Cir. 1998) (expressing "skeptic[ism]" that ADA claims can be prospectively waived following Gardner-Denver) . 43

invalidating exculpatory release.—' The Defendants perform an essential and important public function on behalf of minor children in their custody and care; and a serious failure to perform that important public function threatens to deprive those children of their constitutionally and statutorily protected civil rights. Public policy dictates that Defendants not be permitted to obtain a license from those children that frees Defendants from liability for any system-wide practice or policy—whether it is reckless, intentionally discriminatory, or simply negligent—that they may choose to implement.
B. The covenants and the release in the Settlement Agreements unlawfully and unfairly restrict the rights of class members to assert legal claims that the class representatives lacked standing to litigate. This Court has held that the authority of a class
representative to represent class members extends only to claims on which there is a commonality of interest. See National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9, 17 (2d Cir. 1981). "The justification for permitting the representatives to sue [or settle] on behalf of the class has no application to claims of class members in which the representatives have no interest." Id. Moreover, "standing to sue is an essential prerequisite to maintaining an action, whether in one's own right or as a representative of a class." German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 548
—/ See note 9. 44

(S.D.N.Y. 1995). See also Gross v. Summa Four, Inc., 93 F.3d 987, 993 (1st Cir. 1996); Denny v. Barber, 576 F.2d 465, 468-69 (2d Cir. 1978). It is "an essential threshold which must be crossed before any determination as to class representation under Rule 23 can be made." German, 885 F. Supp. at 54 8.
In order to establish standing to assert a claim a plaintiff must establish (1) injury-in-fact, (2) causation, i.e., a fairly traceable connection between that plaintiff's injury and the defendant's conduct of which the plaintiff is complaining, and (3) redressability, i.e., a likelihood that the relief requested by the plaintiff will redress the plaintiff's alleged injury. See Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 1016-17 (1998); Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2d Cir. 1996). The Named Plaintiffs appointed to represent Subclass Three might adequately have represented the Joel A. Objectors on a variety of claims in which all members of Subclass Three have a truly common interest. Class counsel and the Named Plaintiffs exceeded the limits of their authority as representatives, however, when they purported to bind the absent class members in a highly diverse class to non-suit provisions that extend to claims for relief in which the Named Plaintiffs had no stake and which the Named Plaintiffs lacked standing to assert.
The terms of the release and non-suit covenants contained in the City and State Settlement Agreements restrict
45

the class members' ability to pursue claims that the class representatives do not have standing to litigate. This is due, in part, to the broad terms of the release and non-suit covenants and, in part, to the high level of generality at which Class counsel stated the claims of the Marisol Class. Supra at 5-6. The Settlement Agreements bar claims that are merely "related to" or even "which relate in any way" to claims asserted in the Marisol Complaint or the Marisol Plaintiffs' Statement of Claims to be Tried. [JA 746, 776] The use of such vague, broad terms in a class action release may be suited to actions arising out of discrete past events, such as mass torts, but these terms are not appropriate in a lawsuit such as this one, "concerning continuing conduct that might well vary in its intensity or degree." J.A. Shults, 821 F. Supp. at 523.
Moreover, the allegations and claims in the Marisol Complaint and Plaintiffs' Statement of Claims to be Tried are set forth at such a high level of abstraction that the covenants and release appear "related" and therefore applicable to every conceivable issue that could ever arise in the child welfare context. For example, one claim to be tried is described in part as defendants' "failure otherwise to treat [custodial plaintiffs] in accordance with reasonable professional standards." [JA 630] Accordingly, the covenants not to sue contained in both the City and State Settlement Agreements purport to bar any system-wide claim that can be considered related to the unprofessional
46

treatment of children in the custody of ACS—even if such unprofessional treatment is based on intentionally discriminatory or grossly negligent system-wide policies or practices. For example, although none of the Marisol Class Representatives alleged that he or she is gay, lesbian, bisexual, or transgendered, and although none claimed to be a victim of either bias-related violence, abuse, and harassment or systemic discrimination based on sexual orientation, the Settlement proponents clearly expressed to the district court their intent and understanding that the release and covenants in the Settlement Agreements extend to all the claims raised in the Joel A. litigation. [JA 1166, 1380]
The breadth of the release and covenants thus violates the due process rights of the Joel A. plaintiffs and others similarly situated, and also violates their right to adeguate representation during settlement negotiations under Fed. R. Civ. P. 23. Even if, at some extreme level of generality, the Marisol Class Representatives could be thought to have suffered all the same injuries as the Joel A. objectors, none of the injuries alleged by the Marisol Class Representatives was caused by bias-related violence, abuse, or harassment or by discrimination based on sexual orientation. Indeed, the interests of the Joel A. Objectors and their peers in Marisol Subclass Three are antagonistic because much of the harm from which the Joel A. Objectors seek relief is perpetrated by their
47

straight peers in Subclass Three. Supra at 18-21. Named plaintiffs cannot represent class members on claims regarding which their respective interests are antagonistic. See Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir. 1982).
Moreover, none of the injuries alleged by the Marisol Class Representatives could be redressed by the relief requested in the Joel A. Complaint, e.g., the creation of placements designed to meet the special needs of gay, lesbian, bisexual, and transgendered youth; training of ACS and contracting agency personnel in issues related to adolescent homosexuality; issuance of policy statements designed to deter discrimination based on sexual orientation; and the establishment of privately funded independent technical assistance centers to counsel child care workers regarding the needs of gay, lesbian, bisexual, and transgendered youth.
Because the Marisol Named Plaintiffs lack standing to bring any of the claims asserted in the Joel A. complaint, they do not even cross the "threshold" necessary to reach the issue whether they were adequate class representatives on those claims under Rule 23. German, 885 F. Supp. at 538. Moreover, because the Marisol Class Representatives have no stake in obtaining the relief that the Joel A. Objectors desperately need, the Marisol Class Representatives could not have adequately represented the Joel A. Objectors for the purpose of compromising those claims in any way. National Super Spuds, 660 F.3d at 17 n.6. Named
48

plaintiffs in a class action "can represent a class of whom they are a part only to the extent of the interests they possess in common with members of the class." Id. at 17.
In addition, the Marisol Named Plaintiffs are not adequate representatives with respect to claims that they could not have asserted against the City and State Defendants because neither the Named Plaintiffs nor Class counsel could have used those claims as leverage during settlement negotiations. The Supreme Court has recognized that permitting class representation for claims that the class representative cannot litigate "disarm[s]" Class counsel because she cannot use the threat of litigation on those claims to press for a better offer. Amchem, 117 S. Ct. at 2248. See also Epstein v. MCA, Inc., 126 F.3d 1235, 1248 (9th Cir. 1997) ("a plaintiff's power to negotiate a reasonable settlement derives from the threat of going to trial with a credible chance of winning"), reh'g granted by Order, June 15, 1998, Dkt. No. 92-55675 (9th Cir.).
Indeed, allowing class representatives to settle claims that they lacked standing to litigate, and in which they had no stake, is especially oppressive where, as here, no relief has been obtained in exchange for those claims. Infra at 53-60. The Class as a whole cannot obtain an advantage for the class "by the uncompensated sacrifice of claims of members, whether few or many, which were not within the description of claims assertable by the class." National Super Spuds, 660 F.2d at 19.
49

Moreover, even if the Settlements appeared substantively fair, reasonable, and adequate with respect to all Marisol Class members, including the Joel A. Objectors (in fact, the Settlements do not satisfy these criteria with respect to any Class member, infra at 53-60), the improper representation of the Joel A. Objectors during settlement negotiations with respect to claims on which the class representatives lacked standing, and in which the class representatives had no stake, would still doom the Settlements. Due process and Rule 23 require procedural integrity in addition to substantive fairness. The Supreme Court engraved this principle into federal law in Amchem, holding that a district court's finding that the substantive terms of a settlement proposal are fair does not constitute and cannot be substituted for a determination that each class member's interests were adequately represented during settlement negotiations. Amchem, 117 S. Ct. at 2248-51. The Seventh Circuit explained the point well in the General Motors Corporation Engine Interchange Litigation:
"fairness" may be found anywhere within a broad range of lower and upper limits. No one can tell whether a compromise found to be "fair" might have been "fairer" had the negotiating (attorney) . . . been animated by undivided loyalty . . . . The court can reject a settlement that is inadequate; it cannot undertake the partisan task of bargaining for better terms. The integrity of the negotiating process is, therefore, important.
50

In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1125 n.24 (7th Cir. 1979).
C. The provisions permitting actions by individuals seeking limited relief are inadequate The district court rejected the argument that the non-
suit covenants and release are unfair or oppressive because "[a]11 class members can bring individual suits at any time based on any claim seeking damages or injunctive relief, as long as the injunctive relief sought is not system-wide and is tailored to the individual's concerns." [JA 1439] (emphasis added) Yet the 100,000 indigent children who comprise the Marisol class obviously will not be able to engage counsel with the resources to prosecute any matter requiring, for example, extensive discovery or expert analysis and opinion. See Jackson v. Foley, 156 F.R.D. 538, 542 (E.D.N.Y. 1994) ("the majority of the class members are from extremely low income households, thereby greatly decreasing their ability to bring individual suits"); Ray M. v. Board of Educ. of the City Sch. Dist. of the City of New York, 884 F. Supp. 696, 705 (E.D.N.Y. 1995) (same); McDonald v. Heckler, 612 F. Supp. 293, 300 (D. Mass. 1985) ("These individuals claim to be disabled and of low income. It is therefore impracticable for these persons to bring individual lawsuits challenging the Secretary [of Health and Human Services'] policies.").
51

The prosecution of many lawsuits is economically feasible only when problems can be addressed systemically. As the Supreme Court has observed, "[w]hen it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device." Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 338 (1980) (emphasis added). Moreover, certain rights, such as the right to be free from invidious discrimination, cannot be vindicated on any basis less than systemic. Claims seeking to end discriminatory treatment, even when raised by an individual child, cannot be litigated and effectively remedied without discovery of and reference to the practices and policies that defendants implement with respect to similarly situated children. See Afro American Patrolmens League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) ("[A] suit by a single employee which is not brought as a class action ^is perforce a sort of class action for a fellow employee similarly situated' when it attacks the employment practices of the employer on grounds of discrimination.")
The City and State Defendants know all of this well. Indeed, the City and State Defendants appear to be talking out of both sides of their mouths when they say, on the one hand, that they are entitled under the Settlement Agreements to be free from burdensome litigation and, on the other hand, that the limitation
52

of actions by Class members to individual suits for non-systemic relief will not significantly impinge the Class members' access to court. The City Defendants stressed that "Defendants have no interest in beginning discovery again, conducting motion practice and preparing for trial in a new suit;" [JA 956], while State Defendants asserted that staff, money and resources were necessary to "defend wide-ranging, time consuming, and overly burdensome class action law suits." [JA 921-22] In short, even the settlement proponents recognize the impracticability of individual suits by indigent children against the City and State of New York.
III. The Extraordinary Covenants-not-to-sue and Release Were Given in Exchange for Illusory Consideration.
In presenting the Settlement Agreements to the district court, Class counsel and the City and State Defendants stressed repeatedly that the terms of the settlements are "novel." Indeed, they are. In exchange for the singularly expansive release and non-suit covenants that bind Class Members under the City and State Settlement Agreements, supra at 38-53, the City and State Defendants are providing relief with a practical value so speculative that "there is a strong danger that the settlement will have absolutely no value to the class." Clement v. American Honda Fin. Corp., 176 F.R.D. 15, 28 (D. Conn. 1997). This is especially bizarre in light of the expansive non-suit provisions in the City and State Settlement Agreement. "[A] defendant would
53

normally be expected to pay a premium for this type of global peace." Clement v. American Honda Finance Corp., 176 F.R.D. 15, 29 (D. Conn. 1997) (citation omitted).
A. The City Agreement In exchange for the sweeping restrictions on Class
members' rights to seek judicial relief from present and future injury, the City Settlement Agreement imposes a single obligation on the City Defendants: to provide information to a privatelyfunded Advisory Panel that is not a party to either the lawsuit or the Settlement Agreement, is not required, in any enforceable sense, to do anything with the information it receives or to disclose it to anyone, and has absolutely no authority to compel the City or State Defendants to do anything. Supra at 13-14. The Advisory Panel cannot even compel the City Defendants to comply with their commitment to produce information that the Panel requests. Supra at 12-13. Moreover, the City Agreement does not impose any obligation on defendant Mayor Rudolph Giuliani, and thus does not obligate the Mayor or his successors in office to ensure that ACS personnel accomplish the agency's reform agenda.
The parties' expectation that the work of the Advisory Panel will result in some actual benefit to the Marisol Class is based entirely on hope: hope that the relationship between the City Defendants and the Advisory Panel will be cooperative rather than adversarial; hope that the Mayor will require ACS personnel
54

to implement the agency's reform objectives; and hope that the Advisory Panel will issue its Initial and Periodic Reports in a timely manner and that the Panel's mission will not be disrupted or frustrated by irreconcilable differences among the four Panel members regarding the areas of ACS operation that they are to review.
Relief based on hope is not fair, reasonable, or adequate consideration for the substantial restrictions imposed on the class members' rights to seek redress from future injury. Indeed, such restrictions are justifiable in a class action, if at all, only if the defendant agrees to a complementary injunction prohibiting the defendant from inflicting upon the class members those injuries within the scope of any restriction on the class members' rights to seek redress.
It was on this basis that the United States District Court for the Northern District of Illinois rejected proposed settlement agreements in the Brand Name Prescription Drugs Antitrust Litigation, 1996 WL 167347 (N.D. 111. April 4, 1996). In that case, a class consisting of tens of thousands of retail pharmacies charged leading manufacturers and wholesalers of brand name prescription drugs with conspiring to fix prices in violation of the Sherman Act. Plaintiffs claimed that these prescription drug manufacturers and wholesalers violated the Act by maintaining a two-tiered pricing system in which defendants offered greater discounts to managed-care entities than to retail
55

pharmacies based solely on status. See id. at *6. The court recognized that the "ultimate purpose" of the lawsuit was to eliminate this two-tiered pricing system to the extent that it was not based on each plaintiff's ability to affect market share, id. at *7, and, on that basis, rejected proposed settlement agreements that provided for a general release of the class members' claims, but not for an injunction compelling defendants to change their pricing practices. See id. at *2, *6-7. The court held that the failure to provide for such an injunction "doom[ed]" the proposed settlements as "less than fair, reasonable, and adequate" even though defendants had agreed to pay a cash settlement of $408 million, "five times the largest settlement in any [other] antitrust class action not preceded by a prior governmental investigation." Id. at *4, * 7 .
By rejecting the proposed settlement for failing to provide injunctive relief, even while recognizing that the "settlement amount committed to by the defendants [would] surely counsel deterrence," id. at *7, the court implicitly held that class members' claims for relief from future injuries cannot be extinguished through a settlement release in the absence of a complementary injunction prohibiting the defendants from inflicting those injuries within the scope of the release. If this were not the law, then class representatives could effectively license defendants to inflict future injuries upon
56

class members, because the class members would have no access to any avenue of relief from those injuries.
In this case, in which Class counsel sought purely declaratory and injunctive relief for the Marisol Class, the ultimate purpose of the lawsuit was to assure the City and State Defendants' future compliance with their constitutional, statutory, and regulatory obligations to the Class members. By approving the City and State Settlement Agreements, however, the district court imposed onerous restrictions on the class members' ability to obtain relief from certain future injuries—indeed, as a practical matter, the Settlement Agreements approved by the district court bar class members from obtaining any relief from many types of future injury, supra at 38-53 — without providing any complementary injunctive protection.
The district court nonetheless concluded that the Settlement Agreements were fair, adequate, and reasonable based on its analysis of the Agreements under the "Grinnell factors" identified by this Court in County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323-24 (2d Cir. 1990). [JA 1417] The district court observed that only a few objectors appeared out of a class of over 100,000 children, but as the class was composed entirely of children—and children who, by definition are in extremis—this factor counts for very little in this case.
The linchpin of the court's analysis, however, was the court's conclusion that "even assuming that plaintiffs had a
57

strong chance of success at trial with respect to liability" [JA 1422], "the Court may not have been in a position to provide for more relief than simply encouraging continued effort and improvement by ACS." [JA 1423] In addition, the court concluded that the City Settlement Agreement "provides for a streamlined procedure for the plaintiff class to return to this Court if the Advisory Panel finds the City is not acting in good faith in any of the areas designated by the City Settlement Agreement for review by the Advisory Panel or in related areas." [JA 1424] Both conclusions are clearly wrong.
The court offered no support for its conclusion that it might not have been able to enter an order providing more certain relief than the City Settlement Agreement provides [JA 1421-24], and the Court surely could have provided such relief. In an order entered after trial (or even pursuant to a fair, adequate, and reasonable settlement), the court, at least, could have (1) identified the legal rights being violated by the City Defendants, (2) ordered the City Defendants to devise a program to cure these violations, (3) made such modifications to the plan as the Court deemed necessary after hearing objections from the Class, but always giving due deference to the expertise of the City Defendants, and (4) ordered compliance with the plan as modified. The Supreme Court has expressly approved such a procedure. Lewis v. Casey, 518 U.S. 343, 362-63 (1996), citing Bounds v. Smith, 430 U.S. 817, 818-20, 832-33 (1977) . Moreover,
58

such an order could have applied directly to all City Defendants, including the Mayor of the City of New York in his official capacity.
The court erred also in finding that the City Settlement Agreement benefits the Class by providing "a streamlined procedure for the plaintiff class to return to this Court if the Advisory Panel finds the City is not acting in good faith in any of the areas designated by the City Settlement Agreement." [JA 1424] In light of the extensive discovery taken by Class counsel prior to the Settlements, and in light of Class Counsel's representation that they were prepared to go to trial in July 1998 and are confident that they would have prevailed, supra at 9, the City Settlement Agreement can only be read as creating an obstacle to judicial relief rather than providing the Class with a "streamlined procedure." Under the terms of the City Settlement Agreement, the Marisol Class is cut off from judicial relief unless and until (1) the Advisory Panel has issued all five of its Initial Reports, (2) the Panel then issues a Periodic Report finding that ACS is not acting in good faith to reform one of the areas of operation within the scope of the Panel's study, (3) the City Defendants fail adequately to rebut that finding in the district court, and (4) the Class then proves that the City Defendants are in violation of some legal duty to the Class. Supra at 12-14. The Panel's finding of bad faith, even if upheld by the district court, does not entitle the Class
59

to any relief because, in addition to establishing that the City Defendants are not making a good faith effort to reform, the Class must establish that the City Defendants are in violation of their legal obligations to the Class. In this endeavor, the Class would bear all of the burdens of proof it would have born without the Settlement and would be subject to all the same defenses.
B. The State Agreement Although the State Settlement Agreement imposes
restrictions on Class members' access to the courts that run parallel to the restrictions in the City Settlement Agreement, supra at 17, the State Settlement Agreement also fails to provide any direct, concrete, or reasonably certain relief to members of Marisol Subclass Three. Supra at 16-17. Although the district court stated in its opinion regarding settlement approval that the Joel A. Objectors had not explained how the relief provided under the State Settlement Agreement is illusory, supra at 24, the Joel A. Objectors had, in fact, clearly expressed their position to the district court. See Amended Memorandum in Support of Motion to Intervene and Objections to Proposed Class Action Settlement, entered January 19, 1999 (document no. 212) at 11-12.
60

Conclusion For the foregoing reasons, the decision of the lower court should be reversed.

Dated:

New York, New York April 15, 1999

Respectful! submitted, PAUL, WEI RIFKtfND,

TON & GARRISON

By: Ma*rfc Falcone / Daniel J. Lef/fell
1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000

Of Counsel: Mariann Meier Wang Tobias B. Wolff Victoria Cook*

- and -

Of Counsel: Douglas Lasdon David Pumo*

URBAN JUSTICE CENTER 666 Broadway, 10th Floor New York, New York 10012

Attorneys for Intervenor-PlaintiffsAppellants Joel A., Michael D., Eric R., David S., Maxx R., and Ray D.

*Not admitted to the bar.

61

Certificate of Compliance I, Marc Falcone, attorney of record for IntervenorPlaintiffs-Appellants Joel A., Michael D., Eric R., David S., Maxx R., and Ray D., do hereby certify that the foregoing brief complies with the type-volume limitation as set forth in Federal Rule of Appellate Procedure 32(a)(7). The total number of words in the foregoing brief is 13,960.
Marc Falcone CMF-5249)
62

 
 CW-NY-00 -005

To be argued by: MARCIA ROBINSON LOWRY

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JOEL A., MICHAEL D., ERIC R., DAVID S., MAXX S., and RAY D.,

Intervenor-PlaintifFs-Appellants,
MARISOL A., by her next friend, Rev; Dr. James Alexander Forbes, Jr., by her next friend Raymunda Cruz, LAWRENCE B., by his next friend, Dr. Vincent Bonagura, THOMAS C , by his next friend, Dr. Margaret T. McHugh, SHAUNA D., by her next friend, Nedda de Castro, OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins, D4RREN F., DAVID F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens, BILL G., VICTORIA G., by their next friend, Sister Dolores Gartanutti, BRANDON H., by his next friend, Thomas H. Moloney, 'STEVEN I., by his next friend, Kevin Ryan, WALTERS., by his next friends, W X and N.N;, grandparents, RICHARD S., by their next friends, W.N. and N.N., grandparents, DANIELLE J., by her next friend, Angela Lloyd, on their own behalf and behalf of and all others similarly situated,

Plaintiffs-Appellees,
v.
RUDOLPH:W. GIULIANI, Mayor of the City of New York, MARVA LIVINGSTON HAMMONS, Administrator of the Human Resources Administration and Commissioner of the Dept, of Social Services of the City.of New York, GEORGE E. PATAKI, Governor of the State of New York, JOHN JOHNSON, Commissioner of the New York Office of Children and Family Services fka Commissioner of the Dept: Social Services of the State of New York, NICHOLAS SCOPPETTA, inhis official capacity as Commissioner of the New York CityAdministration for Children's Services,

Defendants-Appellees.

ON APPEAL FROM AN ORDER OF THE

""

UNITED STATES DISTRICT COURT FOR

. THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF PLAINTIFFS-APPELLEES

MARISOL A,, ET AL,

MARCIA ROBINSON LOWRY (ML 5501)

SUSAN LAMBIASE (SL 5041)

SHIRIMNOTHENBERG* (SN5913)

Children's Rights, Inc. 404 Park Ave. So., 11th Floor

New York, New York 10016

(212) 683-2210

[continued from the front cover]
KAREN FREEDMAN Lawyers for Children 110 Lafayette Street - 8th Floor New York, NY 10013 (212) 966-6420
THOMAS F. CURNIN ERA J. DEMBROW Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 (212)701-3000
DAVID M. BRODSKY JESS A. VELONA Schulte Roth & Zabel LLP 900 Third Avenue New York, New York 10022-4774 (212) 756-2000

TABLE OF CONTENTS

PRELIMINARY STATEMENT

1

ISSUES PRESENTED

4

STATEMENT OF THE CASE

6

A. The Man sol Complaint

6

B. Man sol Class Certification

7

C. Other Relevant Court Proceedings

9

D. Pre-Trial Proceedings and Settlement Negotiations

10

E. The Settlement

11

1. The City Agreement

11

2. The State Agreement

13

F. Dismissal of the Wilder Case

15

G. The Joel A. Objectors' Complaint and their Objections to the

Settlement

16

H. The Decision Below Approving the Settlement

18

STANDARD OF REVIEW

19

SUMMARY OF ARGUMENT

21

ARGUMENT

24

"IT

I. THE DISTRICT COURT PROPERLY APPLIED ESTABLISHED

STANDARDS IN FINDING THE MARISOL SETTLEMENT TO BE

FAIR, REASONABLE AND ADEQUATE

24

H. THE PLAINTIFF CLASS RECEIVED SUBSTANTIAL, TANGIBLE

BENEFITS FROM THE SETTLEMENT

28

A. The City Agreement Benefits All Class Members by Providing a Unique Opportunity to Spur the City to Make Reforms or Face Prima Facie Evidence of The Need for a More Intrusive Judicial Remedy 29

B. The Settlement Also Benefits All Class Members By Ensuring Concrete.Improvements in the State's Vital Oversight Activities . . 35

m. THE SETTLEMENT'S RELEASES AND COVENANTS NOT TO SUE

ARE LIMITED AND A REASONABLE EXCHANGE FOR THE

SUBSTANTIAL RELIEF OBTAINED BY THE CLASS, AND

PLAINTIFFS CLEARLY HAD FULL AUTHORITY TO AGREE TO

THESE PROVISIONS

38

A. The Settlement Permits Every Class Member to Pursue Any and All

Individual Legal Claims, and its Restriction on Class Actions and

Claims for System-Wide Relief While the Advisory Panel Has Full

Access to the City Child Welfare System Strikes a Reasonable

Balance

39

B. The Subclass HI Named Plaintiffs Had The Authority to Release the

Joel A. Objectors' Claims, Since They Arose Out of The Same Facts

As Those Pled in the Marisol Complaint, and There is No Material

Conflict Among Subclass IH or Any Other Members of the Marisol

Plaintiff Class

43

1. The Subclass EQ Named Plaintiffs Had Ample Authority to

Release Claims Arising Out of the Same Facts as Those Pled in

the Marisol Complaint

44

"•n

2. There in No Material Conflict Among Members of Subclass III

Because All Members, Including the Joel A. Objectors, Share

the Same Interest

52

IV. IN APPROVING THE SETTLEMENT, THE DISTRICT COURT

SUFFICIENTLY EVALUATED THE ADEQUACY OF

REPRESENTATION OF ALL CLASS MEMBERS

56

CONCLUSION

63

CERTIFICATE OF COMPLIANCE

65

111

TABLE OF AUTHORITIES CASES

Adams v. Philip Morris. Inc..

67 F.3d 580 (6th Cir. 1995)

41

In re Agent Orange Product Liability Litig..

996 F.2d 1425 (2d Cir. 1993)

45

Alexander v. Gardner-Denver Co..

415 U.S. 36 (1974)

41

Alfus v. Pyramid Technology Corp..

764 F. Supp 598 (N.D.Cal. 1991)

50

Allee v. Medrano.

416 U.S. 802 (1974)

50

Allen v. Wright.

468 U.S. 737 (1984)

50

Amchem Products. Inc. v. Windsor. 117 S.Ct. 2231 (1997)

passim

In re Baldwin-United Corp..

770 F.2d 328 (2d Cir. 1985)

44

Bernstein v. Mediobanca Banca di Credito Finanziario-Societa Per Azioni.

78 F.R.D. 1 (S.D.N.Y. 1978)

45

In re Brand Name Prescription Drugs Antitrust Litig.. 1996 WL 167347 (N.D. 111. April 4, 1996)

33, 45

IV

Camp v. Gregory. 67 F.3d 1286 (7th Cir. 1995), cert denied. 517 U.S. 1244 (1996)
Carson v. American Brands. Inc.. 450 U.S. 79 (1981)
City of Detroit v. Grinnell Corporation. 495 F.2d 448 (2d Cir. 1974)
In re Corrugated Container Antitrust Litigation. 643 F.2d 195 (5th Cir. 1981)
Cotton v. Hinton. 599 F.2d 1326 (5th Cir. 1977)
Doe v. New York City Dept. of Social Services. 649 F.2d 134 (2d Cir. 1981)
In re Drexel Burnham Lambert Group. Inc.. 960 F.2d 285 (2d Cir. 1992), cerL denied. 506 U.S. 1088 (1993)
E.E.O.C. v. Hiram Walker & Sons. Inc.. 768 F.2d 884 (7th Cir. 1985), cert denied. 478 U.S. 1004 (1986)
Fisher v. Koehler. 692 F. Supp. 1519 (S.D.N.Y. 1988)
In re General Motors Corp. Engine Interchange Litigation. 594 F.2d 1106 (7th Cir. 1979), cert denied. 444 U.S. 870 (1979)
General Tel. Co. of the Southwest v. Falcon. 457 U.S. 147 (1982)

54 25 18, 26 53 35 54
53
62 53
61 42

1Y

Grant v. Bethlehem Steel Corp.. 823 F.2d 20 (2d Cir. 1987)
Great Northern Associates. Inc. v. Continental Casualty Co.. 192 A.D.2d 976 (3rd Dep't 1993)
Grimes v. Vitalink Communications Corp.. 17 F.3d 1553 (3d Cir. 1994). cert, denied. 513 U.S. 986 (1994)
Halderman v. Pennhurst State School And Hosp.. 610 F. Supp. 1221 (D.C.Pa. 1985)
Handschu v. Special Servs. Div.. 787 F.2d 828 (2d Cir. 1986)
Haroco Inc. v. American Nat. Bank and Trust Co. of Chicago. 121 F.R.D. 664 (N.DI11. 1988)
Holmes v. Continental Can Co.. 706 F.2d 1144 (11th Cir. 1983)
In re Ivan F. Boesky Sec. Litig.. 948 F.2d 1358 (2d Cir. 1991)
J.A. Shults v. Champion Int'l Corp.. 821 F. Supp. 520 (E.D. Tenn. 1993)
Jesse E. v. New York City Dep't. of Social Serv.. 90 Civ. 7274 (S.D.N.Y.)
In re Joint Eastern and Southern Dist. Asbestos Litig.. 78 F.3d 764 (2d Cir. 1996)
Lyons v. Scitex Corp.. 987 F. Supp. 271 (S.D.N.Y. 1997)
VI

19, 59 41
44 32 62 50 61 19 41 20 53 53

Malchman v. Davis. 706 F.2d 426 (2d Cir. 1983)
Malchman v. Davis. 761 F.2d 893 (2d Cir. 1985), cerL denied. 475 U.S. 1143 (1986)
Marisol A. v. Giuliani. 929 F. Supp. 662 (S.D.N.Y. 1996)
Marisol A. v. Giuliani. 126 F.3d 372 (2d Cir. 1997)
Maywalt v. Parker & Parsley Petroleum Co.. 67 F.3d 1072 (2d Cir. 1995)
McDonald v. Chicago Milwaukee Corp.. 565 F.2d 416 (7th Cir. 1977)
In re Michael Milken and Assocs. Securities Litig.. 150 F.R.D. 57 (S.D.N.Y. 1993)
National Super Spuds. Inc. v. New York Mercantile Exchange. 660 F.2d 9 (2d Cir. 1981)
O'Brien v. National Property Analysts Partners. 739 F. Supp. 896 (S.D.N.Y. 1990)
Plummer v. Chemical Bank. 668 F.2d 654 (2d Cir. 1982)
Robertson v. National Basketball Association. 622 F.2d 34 (2d Cir. 1980)
In re Scott Paper Co. Securities Litigation. 142 F.R.D. 611 (E.D.Pa. 1992)
Vll

26, 62
53 7 7, 15, 61 59 42 35 44, 45, 51 53 61 44 50

TW

Sosna v. Iowa. 419 U.S. 393 (1975)
TBK Partners. Ltd. v. Western Union Corp.. 675 F.2d 456 (2d Cir. 1982)
Twelve John Does v. District of Columbia. 117 F.3d 571 (D.C. Cir 1997)
United States v. Allegheny-Ludlum Industries. 517 F.2d 826 (5th Cir.). cert, denied. 425 U.S. 944 (1975)
In re Warner Communications Securities Litigation. 798 F.2d 35 (2d Cir. 1986)
Warm v. Seldin. 422 U.S. 490 (1975)
In re Washington Public Power Supply System Sec. Litig.. 720 F. Supp. 1379 (D. Ariz. 1989), affd. 955 F.2d 1268, cerL denied. 506 U.S. 953 (1992)
Weinberger v. Kendrick. 698 F.2d 61 (2d Cir. 1982), cert denied. 464 U.S. 818 (1983)
Whitford v. First Nationwide Bank. 147 F.R.D. 135 (W.D.Ky.1992)
Wilder v. Bernstein. 78 Civ. 957 (RJW) (SDNY)
Wilder v. Bernstein. 499 F. Supp. 980 (S.D.N.Y. 1980)
Vlll

50 19, 44, 45
19 41 62 50
45 19 45, 62 . 6, 20 20

Wilder v. Bernstein. 645 F. Supp. 1292 (S.D.N.Y. 1986), affd, 848 F.2d 1338 (2d Cir. 1988)
Wilder v. Bernstein, 153 F.R.D. 524 (S.D.N.Y. 1994), appeal dismissed. 49 F.3d 69 (2d Cir. 1995)
Wilder v. Bernstein. No. 77 Civ. 953 (S.D.N.Y. July 1, 1998)
Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983)
MISCELLANEOUS
Fed. R. Civ. P. 23
Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11-41 at 11-91 (3d ed. 1992 and Supp. 1995)

20, 55, 56 20 31 41
18, 22, 57 25

IX

PRELIMINARY STATEMENT This appeal represents the culmination of Marisol v. Giuliani, a class action lawsuit which after almost three years of hotly contested litigation has resulted in a uniquely constructive settlement that provides the substantial likelihood of fundamental reform of New York City's historically destructive child welfare system. Building on the City and the State Defendants' expressed commitment to significantly change the manner in which they have operated, while providing extensive oversight and the intensive scrutiny, guidance, assistance and assessments of some of the nation's most skilled child welfare experts, the settlement ensures that New York's child welfare system is brought into compliance with the law, and finally fulfills its obligations to protect all children for whom it is responsible. Either the harms identified by this lawsuit will be corrected, or the Defendants will be brought back to court, with the documentation to support a far more intrusive remedy. The only roadblock to this settlement is presented by Appellants (the "Joel A. Objectors"), six members of the plaintiff class, who on the eve of the Marisol settlement fairness hearing suddenly filed a separate lawsuit and proposed to undo in its entirety Plaintiffs' settlement with the City and State of New York. They seek to unravel this hard-fought settlement because they disagree with the settlement's
l

approach, and because they want to bring their own class action lawsuit, even though they have long known they were Marisol class members, and, indeed, had actual notice that their claims were included within Marisol but declined an explicit invitation to participate in the Marisol suit. (JA 1224).1 They seek to press their proposed class action at the expense of the settlement, despite the fact that their suit addresses one of the issues — the absence of appropriate placements for youngsters in foster care -- addressed by Marisol. for the same period covered by Marisol. and seeks relief that has been addressed by the settlement.
The district court considered the Joel A. Objectors' arguments at length, rejected them in turn, and approved the settlement as fair, reasonable, adequate and likely to achieve real reform. Distorting key provisions of the Marisol settlement, the Joel A. Objectors incorrectly label its wide-ranging relief as "illusory," and exaggerate as "oppressive" its modest, partial limitations on related class action litigation during the two-year settlement period. They urge this Court to find that the experienced district court judge, who presided over the nearly three years of Marisol litigation, and more than 20 years of other, related child welfare litigation, abused his discretion in approving the settlement and should be reversed, and that
1 Numbers in parentheses refer to pages of the Joint Appendix.
2

the settlement should be set aside. Some counsel for the Man sol plaintiff class, unlike the Joel A. Objectors'
counsel, have had decades of experience representing thousands of children in institutional child welfare litigation, an assessing system-wide relief in New York City and around the country, and other plaintiffs' counsel have extensive experience in individual family court proceedings. These counsel recognized that this approach offers a far better likelihood of accomplishing speedy, meaningful and effective relief for the children in the class than would a long trial, followed by a protracted appeal and the uncertain scope of a court-ordered remedy. It was not an abuse of discretion for the district court, which likewise has decades of experience with the complexities and frustrations of enforcing court-ordered relief in the child welfare field, to have agreed.

ISSUES PRESENTED 1. Did the district court act within its discretion in approving a settlement in a
New York City child welfare class action lawsuit which provides meaningful system-wide relief that is fair, reasonable and adequate, particularly since this relief is more favorable than the relief that likely would have been awarded after trial? 2. Did the district court act within its discretion in approving a settlement in a New York City child welfare class action lawsuit, when as part of the settlement Plaintiffs agreed to bring only individual equitable relief and damages claims regarding new facts or circumstances arising during the two year duration of the settlement, in order to allow the child welfare system to institute system-wide reforms? 3. Did the district court act within its discretion in approving a settlement in a New York City child welfare class action lawsuit, when as a part of the settlement Plaintiffs agreed to release Defendants from class action equitable claims arising out of the same set of facts as the claims in the lawsuit, in order to allow the child welfare system to institute system-wide reforms? 4. Did the district court act within its discretion in approving a settlement in a New York City child welfare class action lawsuit when the three certified
4

subclasses were adequately represented by the Named Plaintiffs, the settlement fairly provides equal relief among the subclasses, and this Court has already held that there was no antagonism among different groups of class members?
IT r

STATEMENT OF THE CASE A. The Marisol Complaint The Marisol class action litigation was filed in the wake of years of chaos and systemic dysfunction in the New York City child welfare system, and after
•
years of enforcement activity in a separate class action, Wilder v. Bernstein. 78 Civ. 957 (RJW). The Wilder consent decree sought to reform one piece of the child welfare system, concerning placements and evaluations of children in care. Years of court-monitored implementation in Wilder led the Marisol Plaintiffs -whose counsel are also lead counsel in Wilder — to conclude that separate components of the New York City's child welfare system could not be fixed in a vacuum and that only relief which addressed system-wide flaws could achieve results for children.
Accordingly, the Marisol Complaint, filed on December 4, 1995, details how the multiple legal violations by New York City's child welfare agency (the Administration for Children's Services, hereinafter, "ACS") flowed directly from ACS' failure to maintain adequate staffing, sufficient training, reasonable caseloads, appropriate supervision, and the necessary range of placements, services, and accountability to ensure that children receive necessary protection, planning, and services and move through the system in accordance with their plans.
6

The Marisol Complaint also named as a defendant New York State officials who by law are charged with supervising localities which are delegated child welfare responsibilities. The ensuing litigation made clear that one key reason for the City's ongoing failures in child welfare was the State's failure to meet its oversight responsibilities. Improving state oversight, therefore, became, for the Marisol Plaintiffs, a crucial piece of a comprehensive reform effort.
B. Marisol Class Certification On June 18, 1996, the district court issued a comprehensive opinion which, inter alia, granted Plaintiffs' motion for class certification. (JA 190-253). Marisol A. v. Giuliani. 929 F. Supp. 662 (S.D.N.Y. 1996). On that same day the district court certified the following plaintiff class: All children who are or will be in the custody of the New York City Administration for Children's Services ("ACS"), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS. (JA241). On September 26, 1997, this Court affirmed the Marisol class certification. Marisol A.. 126 F.3d 372 (2d Cir. 1997). In its decision, the Court considered all factors for class certification under Fed. R. Civ. P. 23 (a) and (b)(2), and found, inter alia, that the Named Plaintiffs adequately represent the class and that the

different members of the class do not have divergent interests. Id,, at 378. In its appeal, Defendants alleged that the interest of one part of Plaintiffs' class — children in the custody of the child welfare system — are opposed to the interest of another part of the class — children who are not in the system. This Court explicitly disagreed, stating, "[p]laintiffs seek broad based relief which would require the child welfare system to dramatically improve the quality of all its services, including proper case management. In this regard, the interests of the class members are identical." kJL
On February 3, 1998, Plaintiffs moved for certification of the following three subclasses: Subclass I: Children whom the defendants know or should know have been
abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment. Subclass II: Children in families in which there is an open indicated report of abuse or neglect. Subclass III: Children in the custody of the Administration for Children's Services. See Plaintiffs' Memorandum in Support of Motion to Certify Subclasses, February 3, 1998, p. 6-9 (setting forth the proposed subclasses and the shared factual situations, legal claims, deficiencies and Named Plaintiffs associated with each subclass).
The subclasses track the three major stages in a child's journey through the

child welfare system and by identifying and categorizing claims, the subclasses accomplish the purposes for subclasses identified by this Court.2 On April 23, 1998, the district court certified the three subclasses proposed by Plaintiffs. (JA 424-26). The Joel A. Objectors did not appeal the certification of subclasses, or the adequacy of the class representatives.
C. Other Relevant Court Proceedings On May 12, 1997, Plaintiffs moved the district court to enjoin the harmful practice of allowing numerous children in the certified plaintiff class to spend their nights, often repeatedly, on the floor of the ACS Pre-Placement Office. After hearings3 and the issuance of a Temporary Restraining Order,4 the parties entered into a "So-Ordered" Stipulation to resolve the problem. Interim Stipulation and Order Concerning overnights at Pre-Placement, July 16, 1997 ("Interim Stipulation and Order"). On January 19, 1998, the City Defendants moved to dismiss the PrePlacement claims and vacate the Interim Stipulation and Order. (JA 254-269).
2 The subclasses also track the three subject areas selected for review by the court-appointed expert panel that conducted extensive reviews of ACS and contract agency case records and issued a report in each of these areas.
3 See Transcripts of Hearings before Hon. Robert J. Ward, May 13, 1997, 2:15 p.m. and May 14,1997,10:00 a.m.
4 See Amended Order to Show Cause, May 14, 1997.
9

Like the Joel A. Objectors on this appeal, City Defendants argued that the court lacked Article III jurisdiction to hear the Pre-Placement claims, on the basis that no Named Plaintiff had standing to raise such claims, since no Named Plaintiff had been placed in Pre-Placement overnight.
On May 26, 1998, the district court denied Defendants' motion to dismiss the Pre-Placement claims, finding that the Named Plaintiffs had standing to and did assert claims relating to placement issues.5 (JA 470-488).
D. Pre-Trial Proceedings and Settlement Negotiations . After almost three years of vigorously litigated discovery, including a courtordered three-part case record review, hundreds of deposition days, over 100,000 pages of documents produced and hundreds of pages of experts' reports, culminating in 2,877 pages of proposed findings of fact submitted by Plaintiffs (JA 1156, n. 4; JA 1420-21), on the eve of the July 27, 1998 trial date set by the district court (Fourth Amended Scheduling Order, June 1, 1998), the parties began settlement negotiations. The trial was postponed and extensive, contentious negotiations continued during a four month period.
5 The court also re-examined its earlier finding that the Named Plaintiffs were adequate representatives of the class under Rule 23(a), and held that the Named Plaintiffs were appropriate representatives with regard to the Pre-Placement issues. (JA485, n.3).
10

On December 2, 1998, two settlement agreements were filed with the court: one between Plaintiffs and City Defendants, and one signed by Plaintiffs and State Defendants (collectively referred to as "the settlement")(separately referred to as the "City Agreement" and the "State Agreement," respectively). Plaintiffs' counsel met with, discussed and shared drafts of the settlement proposals with the Next Friends of the Named Plaintiffs, who ultimately approved the final settlement. (JA 1163).
E. The Settlement 1. The City Agreement The City Agreement affords the plaintiff class a unique and immediate
opportunity to have privately funded, nationally respected experts accepted by both parties scrutinize the current functioning of all of the core areas of ACS operations with full cooperation of City Defendants.6 This Panel will issue recommendations, monitor and assess ACS progress toward implementing these recommendations or otherwise achieving necessary reform, as well as provide expert assistance to the
6 The City Agreement specifies the key areas of ACS operations that the Panel will review (JA 734-735 at *[fl 1), and also gives the Panel authority to review all other activities or programs that "directly affect those subject matter areas" (JA 735 at ^J12), leaving the Panel with the virtually unfettered discretion to use their expertise fully.
11

City. If the City is unable or unwilling to make good faith efforts at reform, as assessed by the Panel based on, among other things, timely implementation of the Panel's recommendations or the effectiveness of its reform efforts (JA 737 at 1f20), the plaintiff class will use the Panel's findings as presumptive evidence of liability and to propose a remedy to the court that will be tailored to the precise causes of the City's failures.
The Advisory Panel and its staff have already begun studying virtually every area of ACS operations. (JA 734-737, at ^7-17; JA 740-744 atffif30-34). Based upon its evaluations, the Panel is issuing a series of public Initial Reports, which will include analysis and recommendations, in each area.7 The Panel will then monitor ACS's performance in these areas, and will issue periodic, public progress reports. (JA 737-739 at ffl[ 19-25).
If, during the course of its work, the Advisory Panel finds that ACS is not acting in good faith to make necessary efforts toward reform, then the Plaintiffs will have the option of initiating a trial in the subject area to which the "absence of good faith" finding relates, and seeking any relief that Plaintiffs consider
7 The Panel's Second Report, addressing placement problems including those set forth in the Joel A. Complaint, is due to be released by the end of May, 1999.
12

appropriate.8 The Advisory Panel's reports and its members' testimony are admissible in such a proceeding, and their findings will constitute prim a facie evidence of the City Defendants' absence of good faith. (JA 739-740 at ffl[26-29).
If the Advisory Panel does not make an "absence of good faith" finding, the City Agreement and the court's jurisdiction will terminate on December 15, 2000. (JA 745 at 1f39).
2. The State Agreement The State Agreement also provides very substantial benefits to the plaintiff class because the State is required to exercise strqng, well-defined supervisory oversight over ACS. The State Defendants' New York State Office of Children and Family Services ("OCFS," formerly the Department of Social Services) is required to transform the current Metropolitan Regional Office ("MRO") from an office responsible for several counties in addition to all of New York City, to a New York City Regional Office ("NYCRO"), and must significantly increase the NYCRO
8 As part of this "good faith" determination, the City Agreement explicitly authorizes the Panel to assess whether ACS is implementing any or all of the Panel's recommendations, the speed with which such recommendations are being implemented, whether the City is meeting the Panel's proposed timetables, and whether the City's efforts are "actually effective in bringing about reform." (JA 737-738 at If 21).
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staff. (JA 758-61 at fflf 1-7). OCFS must review fatalities of children known to ACS, issue timely reports of these reviews, address and remedy the present backlog of incomplete reports (JA 761-63 atfflf8-9), and when necessary, OCFS must demand and monitor corrective action from ACS.
The State Central Register ("SCR," or, the child abuse "hotline") must evaluate several specified policies, make reasonable efforts to ensure that calls are not improperly screened out and that all calls are answered quickly, and implement a program to inform the public about the SCR. (JA 763-66 at ffif 10-17). OCFS must also conduct unprecedented case record reviews to evaluate ACS's performance in nine critical areas of its operation (JA 766-68 at ffil 18-21), and if the record reviews reveal substantial noncompliance, OCFS must require ACS to implement corrective action plans when necessary. (JA 767-68 at ^f 21). OCFS must make reasonable efforts to implement an accurate, reliable statewide child welfare computer system, to support and monitor case practice, and must implement a training program for using the system. (JA 768-69 at Iflj 22-24). Finally, OCFS must and evaluate the training of New York City child protective services caseworkers and supervisors (JA 770 at ^f 26), and conduct audits of congregate care facilities. (JA 771 at f 28).
To ensure compliance with the State Agreement, OCFS must furnish
14
T 1

Plaintiffs with relevant documents, and meet with Plaintiffs periodically to review compliance. (JA 771-72 at ff 29-31). Should there be noncompliance, the Plaintiffs can seek court enforcement of the Agreement. (JA 773 at f 34).
F. Dismissal of the Wilder Case The Wilder consent decree, which first went into effect in the late 1980's, provided that all children in ACS custody were to be placed on a first come, first served basis according to their needs, without regard to race or religion, and required that all children receive evaluations of their service needs no later than 30 days of their entry into foster care. A key element in the Marisol settlement is the opportunity and the pressure that it creates, for the first time, for New York City to provide its child welfare services in a coordinated, well-managed way, so that children under ACS supervision can receive "broad based relief which would dramatically improve the quality of all its services, including proper case management,"9 rather than have these services continue to be organized as a series of piecemeal responses to varying child welfare crises. Consistent with this approach, the main protections of the Wilder consent decree have been incorporated into the Marisol City Agreement, for reassessment by the Marisol
9 Marisol A.. 126 F.3d at 378.
15
-wr

Advisory Panel. The goal is to ensure that the Wilder protections are implemented in a meaningful way, as they have not been thus far, and in a manner consistent with other aspects of the child welfare system.
The Panel has the authority to modify the ways in which these Wilder protections are being implemented and to assess whether they are being implemented in good faith. In the absence of such good faith, Plaintiffs can move directly for judicial enforcement of these protections.10 (JA 742 at f 31).
G. The Joel A. Objectors' Complaint and their Objections to the Settlement
On January 15, 1999, the last day upon which interested parties could file comments upon or objections to the Marisol settlement (JA 1413), the Joel A. Objectors — members of Marisol subclass EQ — filed a putative class action lawsuit against the Marisol Defendants in which they seek to represent a class of "young people in the defendants' custody and care who either identify themselves as lesbian, gay, bisexual, or transgendered, or have not so self-labeled but are experiencing feelings of same-sex attraction or gender atypicality, or who are
10 If the Panel substantially modifies a Wilder Obligation, Plaintiffs also have to establish that the modification is consistent with Wilder Obligations as a predicate to judicial enforcement, although the Panel's findings are still prim a facie evidence of the City's absence of good faith. (JA 742 at ^ 31 .b.).
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questioning or confused about their sexual orientation or gender." (JA 801). On the same day, the Objectors filed objections to the Marisol settlement.
In their brief, the Joel A. Objectors assert, inter alia, that Defendants cause the putative class injury by placing them "in hostile environments that disrupt critical developmental processes," by "failing to protect Class members from biasrelated violence, harassment, and abuse," and by "routinely discriminating against Class members in the provision of existing services offered to children in the defendants' care and custody." (Obj. Br. at 19).
The Marisol Plaintiffs do not dismiss the egregious treatment experienced by the members of the putative Joel A. class. They firmly believe, however, that many children in placement, with many different, individual needs, are harmed by inappropriate placements and that the settlement reached in Marisol offers the best chance for meaningful system-wide child welfare reform in New York City ~ reform that will benefit all members of the Marisol class, including the Joel A. Objectors. Indeed, the remedy the Joel A. Objectors seek in their Complaint is relief that the Marisol Plaintiffs sought in theirs, and what they seek in their settlement: safe and appropriate placements according to each foster youth's specific needs, and adequate training for those with supervisory responsibility over foster children. (JA 875-876).
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H. The Decision Below Approving the Settlement On March 31, 1999, pursuant to Fed. R. Civ. P. 23(e), the district court approved the settlement and, in accordance with it, dismissed the claims raised in Man sol subject to the court's continuing jurisdiction and dismissed Wilder (JA 1453) the court found that the settlement "providefs] substantial relief to the plaintiff class." (JA 1417). The court emphasized that the settlement "touch[es] on almost all, if not all, of the City and State functions involving the New York City child welfare system," that the City Agreement "provides unfettered access to ACS personnel and records," and provides for a "streamlined procedure for the plaintiff class to return to this Court." (JA 1424) The court found that Plaintiffs' counsel in Marisol "had first-hand knowledge of what approaches do and do not improve the New York City child welfare system," (JA 1427), and concluded that the settlement is fair. reasonable and adequate under the standards set forth by this Court in City of Detroit v. Grinnell Corporation. 495 F.2d 448 (2d Cir. 1974). (JA 1426).
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STANDARD OF REVIEW It is well-settled that a district court's decision to approve a proposed settlement of a class action will be overturned only if the district court abused its discretion. In re Ivan F. Boesky Sec. Litig.. 948 F.2d 1358, 1368 (2d Cir. 1991); Grant v. Bethlehem Steel Corp.. 823 F.2d 20, 22 (2d Cir. 1987). In evaluating a settlement,
great weight is accorded [the trial judge's] views because he is exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly. Grinnell. 495 F.2d at 454 (citation omitted). See also Grant. 823 F.2d at 23; TBt Partners. Ltd. v. Western Union Corp.. 675 F.2d 456, 463 (2d Cir. 1982). As a result, courts of appeal should accord a district court's disposition of a proposed class action settlement "considerable deference," especially in light of the public policy favoring settlements. Weinberger v. Kendrick. 698 F.2d 61, 73 (2d Cir. 1982), cerL denied, 464 U.S. 818 (1983). Particular deference is owed to a district court's decision where the trial judge's experience has given him an unusually high degree of knowledge. See Twelve John Does v. District of Columbia, 117 F.3d 571, 576 (D.C. Cir. 1997).
The Honorable Robert J. Ward, who approved the settlement on appeal, has
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overseen this case since its inception in 1995. This case was related to two child welfare institutional reform cases that were also before Judge Ward: Wilder v. Bernstein. 78 Civ. 957 (S.D.N.Y.), over which Judge Ward presided for almost twenty years, and Jesse E. v. New York City Dep't. of Social Sen/.. 90 Civ. 7274 (S.D.N.Y.), over which Judge Ward has presided since 1990. Both cases resulted in consent decrees, and Judge Ward has been involved in extensive implementation activities in these cases. See, e.g.. Wilder v. Bernstein. 499 F. Supp. 980 (S.D.N.Y. 1980); Wilder v. Bernstein. 645 F. Supp. 1292, 1354 (S.D.N.Y. 1986), affd. 848 F.2d 1338, 1350 (2d Cir. 1988); Wilder v. Bernstein. 153 F.R.D. 524, 526 (S.D.N.Y. 1994), appeal dismissed. 49 F.3d 69, 70 (2d Cir. 1995).
Judge Ward's two decades of extensive experience presiding over matters regarding the New York City child welfare system in all likelihood render him the most knowledgeable district court judge in New York on matters regarding this system. Judge Ward is thus particularly, and perhaps uniquely, qualified to determine whether the settlement is fair, reasonable and adequate. Accordingly, this district court's approval of the settlement should be afforded even greater deference than that which is typically afforded to the district courts.
20
i • •i

SUMMARY OF ARGUMENT The Joel A. Objectors seek to pursue a class action in the district court, which the overall settlement between Plaintiffs and City and State Defendants bars during a two-year period. Therefore, the Objectors ask this Court to find that the district court abused its discretion in approving the settlement, and to set the settlement aside. Although Objectors acknowledge they are members of the Marisol class and seek safe and appropriate placements as do other Marisol class members, they nevertheless request to have the settlement set aside based on several intertwined but unsupportable arguments: 1) that the settlement is "illusory;" 2) that their rights were violated when Named Plaintiffs agreed to the settlement's terms and released claims; and 3) that there is a conflict among class members. All of these arguments appear to be based on the Objectors' dissatisfaction with the terms of the settlement. First, as experienced class counsel has determined and the district court has found, the settlement provides substantial benefits for Plaintiffs. In Plaintiffs' view, the settlement provides an extraordinary opportunity for an experienced expert panel to recommend specifically what the City needs to remedy legal violations, to assess whether the City is doing that or otherwise accomplishing reform and to guide the City in doing so. If the City fails at instituting real reform, the Panel's
21

work provides prima facie evidence that will be admitted at trial. In Plaintiffs' judgment, this agreement and process will lead to either true system-wide reform or a far more speedy adjudication of liability and a more targeted, effective judicial remedy.
Second, there is no support for the Objectors' attack on the adequacy of class representation or their position that they were entitled to separate representation during the settlement process ~ an argument that is nothing more than a veiled attempt to attack the terms of the settlement itself.11
. Finally, Objectors seek to support their attack on the adequacy of class representation by saying that there is conflict among class members, because some of the Joel A. Objectors have been placed in such inappropriate and poorly supervised facilities that they have been attacked by other class members. However, when City Defendants' failure to protect children and provide appropriate placements and supervision results in harm to some, this does not create a conflict among class members any more than the administrator of an
11 By their logic, all children with particular needs - the pregnant teenagers, the young mothers, the physically handicapped, in addition to the gay, lesbian and transgendered Plaintiffs they seek to represent — would likewise have been entitled to separate representation during the settlement negotiations. This is the very antithesis of the purpose of Fed. R. Civ. P. 23.
22

overcrowded, poorly-run institution creates a conflict because some of its residents harm others. A conflict among class members is created when some members benefit from the relief more than others, not when some victimize others; such a conflict is the opposite of what the Marisol settlement will achieve.
Objectors' primary objection, of course, is that regardless of the merits of the Marisol Settlement, they want to be able to pursue not only individual damage and injunctive actions, which they are free to do, but their own class action. In order to do so they must ask this Court to set aside the Marisol settlement, because it bars such class actions during the two year period of the Advisory Panel's work. The district court properly found that the provision imposing a two year hold on new class actions strikes a reasonable balance. (JA 1444).
Accordingly, this Court should find that the district court acted correctly and well within its discretion in approving the Marisol settlement as fair, reasonable and adequate for all class members and subclasses, and affirm the decision of the district court, which will permit the best hope for reforming the City's child welfare system to go forward.
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ARGUMENT The Joel A. Objectors boldly assert that "institutional values" embodied in the class action procedure would be threatened if the Marisol settlement is approved. (Obj. Br. at 30). In fact, the opposite is true. The Marisol settlement is the sound, carefully balanced product of a rigorous, almost three year litigation governed by class action rules, negotiated by Plaintiffs' counsel with vast experience in the field and supervised and approved by a district judge with similar experience. By contrast, the Joel A. Objectors' last-minute, uninformed attacks
#. upon this settlement are based on distortions of the settlement's terms and misinterpretations of applicable case law. If the Marisol settlement could be undone by such flawed arguments, it would cripple the utility of the class action procedure for Plaintiffs in the future.
I. THE DISTRICT COURT PROPERLY APPLIED
ESTABLISHED STANDARDS IN FINDING THE MARISOL SETTLEMENT
TO BE FAIR. REASONABLE AND ADEQUATE The Marisol Plaintiffs ask this Court to apply well-accepted precedent and affirm the district court's approval of the settlement of this action. In summary, "[o]verall the court has a duty to determine whether the settlement is fair,
24

reasonable and adequate." 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11-41 at 11-91 (3d ed. 1992 and Supp. 1995) (citations omitted). There is usually an initial presumption in favor of the fairness of a class action settlement negotiated by counsel for the class when settlement was reached by arms-length bargaining, sufficient discovery has been completed to permit intelligent analysis of the case, the settlement proponents are experienced in similar litigation, and the number of objections are not large compared to the size of the class as a whole. Newberg at 11-88. 11-91.
The United States Supreme Court has stated that "[c]ourts judge the fairness of a proposed compromise [in a class action suit] by weighing the plaintiffs likelihood of success on the merits against the amount and form of the relief offered in the settlement." Carson v. American Brands. Inc.. 450 U.S. 79, 88 n.14 (1981). The Second Circuit has particularized this duty and approved a district court's consideration of the following criteria:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risk of establishing liability; (5) the risks of establishing damages [or harm]; [and]
25

(6) the risks of maintaining the class action through the trial.
City of Detroit v. Grinnell. 495 F.2d at 463 (citations and three additional criteria,
applicable only to damages actions, omitted). The Second Circuit subsequently
summarized the essence of the Grinnell factors, stating that
[t]he trial judge determines fairness, reasonableness and adequacy of a proposed settlement by considering (1) the substantive terms of the settlement compared to the likely result of a trial, and (2) the negotiating process, examined in light of the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.
Malchman v. Davis. 706 F.2d 426, 433 (2d Cir. 1983) (citations omitted).
The district court in this case expressly applied each of this Circuit's Grinnell
factors in ruling that the Marisol settlement was fair, reasonable and adequate, and
found:
the case presented many unsettled and complex legal issues, the trial would be "extremely costly" and was expected to last at least five months, and the expense would not end with the trial (Grinnell Factor No. 1) (JA 1417-1419);
the mere three objections raised,12 out of a plaintiff class of 100,000 was evidence of the settlement's fairness (Grinnell Factor No. 2) (JA 1420);
the case had proceeded through 200 days of depositions, discovery of 100,000 pages of documents and exchange of expert reports, and
12 Only one of the three objections is the subject of this appeal.
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reached the eve of trial, so that counsel had "a thorough understanding of the complexity of the issues and the strengths and weaknesses of their claims and defenses" (Grinnell Factor No. 3) (JA 1420-21);
"[Pjlaintiffs would present a compelling case," but Defendants would also "present factual and legal arguments . . . sufficient to cause serious deliberation by the Court" (Grinnell Factor No. 4) (JA 142122);
"the Settlement Agreements [are] more favorable to the plaintiff class than any relief that the Court would have unilaterally ordered," (JA 1423) and, "it is not clear, nor has any person objecting to the Settlement Agreements suggested, that an alternative remedy would be more appropriate" (Grinnell Factor No. 5)(JA 1422-23);
it was unlikely that the Marisol class would be decertified during or after trial (Grinnell Factor No. 6)(JA 1425); and
beyond merely accepting that the settlement was negotiated by experienced counsel at arms-length, the court stressed that "[s]ome of the attorneys in Marisol have appeared before this Court for more than twenty years in conjunction with child welfare cases." (Malchman Factor No. 2)(JA 1427).
The Joel A. Objectors do not at all dispute five of these points.13 This is
understandable, since the Objectors are in no position to assess the relative
strengths of the parties' evidence, whereas the district court had, through almost
13 The Joel A. Objectors do address Grinnell Factor No. 2, but minimize the significance of the limited number of objections to the settlement, by noting that the class consists of children. (Obj. Br. at 57). This ignores the fact that there is a large group of child welfare advocates who could have been expected to object to the Marisol settlement if the Joel A. Objectors' arguments had merit. (JA 1376).
27

three years of motions and arguments, become intimately familiar with the merits of this case.
As a result of these undisputed findings, the Marisol settlement is entitled to a particularly strong presumption of fairness, reasonableness and adequacy. The Joel A. Objectors do not come close to overcoming this presumption in their unavailing attacks upon the nature of the uniquely constructive relief awarded in the settlement and the entirely appropriate process by which the settlement was reached.
II. THE PLAINTIFF CLASS RECEIVED SUBSTANTIAL, TANGIBLE
BENEFITS FROM THE SETTLEMENT The Joel A. Objectors, in alleging that the settlement provides Plaintiffs with only speculative or illusory relief, criticize the merits of both parts of the Marisol settlement — the City's agreement to open its child welfare agency to an Advisory Panel to spur reform, and the State's agreement to significantly increase its oversight of the City's child welfare activities. Especially when these elements are viewed as parts of a comprehensive reform effort, it is evident that the district court correctly rejected the Joel A. Objectors' arguments and found that the settlement "provide[s] substantial relief to the plaintiff class." (JA 1417).
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A. The City Agreement Benefits AH Class Members by Providing a Unique Opportunity to Spur the City to Make Reforms or Face Prima Facie Evidence of the Need for a More Intrusive Remedy
The Joel A. Objectors argue that it was an abuse of discretion for the district court to approve the City Agreement, because it offers only "speculative" relief in exchange for supposedly onerous restrictions on future lawsuits.14 (Obj. Br. at 53). In fact, the City Agreement provides very substantial benefits to the plaintiff class, affording them a unique and immediate, independently-funded examination of city operations by nationally respected experts, coupled with the ability to use the experts' findings as prima facie evidence in securing judgment and a more intrusive remedy if the City fails to make necessary efforts to achieve reform on its own.
The Advisory Panel's specific responsibility under the City Agreement is to assess ACS' operations in the key areas of child welfare practice ~ including the area of placement which is the gravamen of Objectors' Complaint ~ to develop specific recommendations about what ACS needs to do to achieve good child welfare practices in those areas, (the key areas are described at JA 734-735), and to monitor ACS' progress in reforming those areas. In monitoring and performing its assessment, the Panel will have complete access to whatever ACS information,
14 As to the allegations that the restrictions are "onerous," see Point III, supra.
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documents and personnel interviews it requests. Because all of the members of the
four-person Panel have been administrators in public child welfare systems (JA
1152-1153), they are in a unique position to not only knowledgeably evaluate the
current functioning of the New York City child welfare system, but also to fully
understand what can and cannot be done in systems committed to reform.
The Joel A Objectors assert that the relief provided is illusory because the
Advisory Panel is not authorized to compel the City to take any particular action.15
(Obj. Br. at 54). This conclusion is based on a fundamental disagreement about the
process of institutional reform, and how to accomplish the goals of the lawsuit.16
15 The Objectors' argument that the benefits provided by the City Agreement are illusory because there is nothing in the Agreement that compels the Advisory Panel to perform its agreed upon function is meritless. Both parties consented to the Agreement based on representations made by the Panel that it would perform the duties set out in the Agreement. (See JA 733 at Tf 5). The court approved the City Agreement based on further representations, made by the Panel in open court, that its members intend to fully comply with the Agreement. (JA 1374-1375).
16 Crafting an effective remedy requires judgment concerning what forces are most likely to secure relief for the clients, subject to the scrutiny and approval of the district court judge. In this instance, experienced class counsel made such judgments in a complex situation, based on a wide range of factors, and the district court approved them, a choice with which the Joel A. Objectors disagree, presumably preferring a more traditional approach. However, this kind of a disagreement is not a basis on which this Court should find that the district judge abused his discretion. For, although the Wilder settlement imposed mandatory, legally enforceable terms which presumably the Joel A. Objectors would have preferred, the district court found in that case that the requirements of the Wilder
(continued...)
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There is no question that the Panel will be in a far better position to design more effective remedies with the cooperation of the City Defendants, which this settlement assures at least in the initial stages, than would Plaintiffs' experts or, most likely, even a court-appointed expert. There is also no question that if the City is committed to implementing the Panel's recommendations voluntarily and fully, and develops the capacity to do so, it can provide effective and speedier relief than can be obtained under the coercive and externally-imposed authority of a court order. But Plaintiffs would have made a bad bargain had they been willing to rely exclusively on the City's voluntary activities, which they have not. Instead, the Settlement provides Plaintiffs with a very powerful alternative mechanism.
The Panel has authority to assess whether the City is acting in good faith, which it will determine by looking at 1) whether the City is implementing its recommendations, 2) whether it is doing so within the timetable the Panel has proposed, and 3) whether the City's reform efforts "are actually effective in bringing about reform." (JA 737-738 at 121). If the Panel finds, in its expert opinion, that the City is failing in more than one respect -- that is, for example, that
16(...continued) settlement had never been implemented, despite repeated enforcement efforts by plaintiffs. Wilder v. Bernstein. No. 77 Civ. 953 (RJW), slip op. at 11-14 (S.D.N.Y. July 1, 1998).
31

it is both failing to implement the Panel's recommendations and failing to do so on the specific schedule set by the Panel — then the Panel will make an absence-ofgood-faith rinding. Such a finding by the Panel enables the Plaintiffs to return to court for a liability finding in the particular areas affected, applying the facts as determined by the Panel to the court's previous legal rulings which established a broad range of legal rights for Plaintiffs. Under such circumstances the Panel's findings constitute admissible, prim a facie, evidence. Moreover, should that circumstance occur, the Panel will be in a position to present information to the court concerning precisely what the City has failed to do, and how it can be done, making an effective remedy far more likely. See, e.g.. Hal derm an v. Pennhurst School and Hospital. 610 F. Supp. 1221, 1231 (D.C. Pa. 1985).
The fact that the appellants do not understand the power of such a remedy does not make it illusory. Far from it, the City Agreement provides ample benefits to Plaintiffs because it moves Plaintiffs to the remedy stage years earlier than after a lengthy trial and likely appeal, while leading to one of two beneficial results. Either the Advisory Panel will provide the pressure to address fundamental problems, and the guidance and concrete expertise that the City has lacked, with the result that this dysfunctional system will finally begin to serve children properly, or, if the City remains resistant to fundamental reforms, the Plaintiffs can
32

return to court and present to the court a plan — the Panel's plan — to reform the agency directly under the court's supervision. The fact that counsel for several individual class members disagree with an approach chosen by experienced class counsel and approved by an experienced judge reflects only that there is disagreement, not an "illusory" settlement.
In a separate argument, the Objectors assert that the district court abused its discretion by approving the City Agreement because the Agreement "imposed onerous restrictions on the class members' ability to obtain relief from certain injuries . . . . without providing complementary injunctive protection." (Obj. Br. at 57). However, Objectors point to no case law that in fact holds that a settlement is per s_e unreasonable if it releases prospective claims without providing an injunction. The Objectors' reliance on In re Brand Name Prescription Drugs Antitrust Litig.. 1996 WL 167347 (N.D. 111.April 4, 1996), is unavailing. In Brand Name Prescription Drugs, the district court held that a settlement was unfair, not because it included an overly broad release without providing injunctive relief, but because the settlement contained HQ provision or commitment on the part of the settling defendants to act in accordance with the law. Id* at *7. In contrast, the City Agreement obligates the City Defendants to make a good faith effort to reform the system or it will find itself back in court defending against prima facie evidence
33

of illegal conduct. Even if, as the Objectors maintain, there were a rule of law that a settlement
releasing claims for future injuries is per se unreasonable in the absence of an injunction, such a rule was not violated in this case. Under the settlement, all class members retain the right to bring an individual injunctive action. The settlement's prohibition, for a limited two year period, of class action suits or suits seeking system-wide relief does not, even in the absence of an injunction, provide Defendants with license to inflict future injuries. See Part III, supra.
The Objectors' final assertion is that the district court abused its discretion by concluding that "the Settlement Agreements [are] more favorable to the plaintiff class than any relief that the Court would have unilaterally ordered." (JA 1423). The Objectors assert that instead, the court should have "identified the legal rights being violated by the City Defendants," and "ordered the City Defendants to devise a program to cure these violations." (Obj. Br. at 58). This position, however, demonstrates the Objectors' disagreement with the settlement and their complete lack of familiarity with, or understanding of, existing child welfare reform efforts. Instead of a settlement such as the Objectors advocate, where the City must take specific actions without any assistance in determining how to comply, the City Agreement takes an innovative approach that builds on ACS' stated commitment to
34

reform and forcefully guides it with expert assistance and the power of the court behind the experts. The opinion of experienced counsel regarding whether a settlement is fair and reasonable is entitled to great weight by a court in determining whether to approve the settlement. £ee Cotton v. Hinton. 599 F.2d 1326, 1330 (5th Cir. 1977); In re Michael Milken and Assoc. Securities Litig.. 150 F.R.D. 57, 68 (S.D.N.Y. 1993). Plaintiffs' counsel strongly believe this settlement is the best possible means of achieving real reform in this jurisdiction concerning a system as historically dysfunctional as ACS. The district court did not abuse its discretion when it accorded Plaintiffs' counsels' opinions the appropriate weight and approved the settlement.
B. The Settlement Also Benefits AH Class Members By Ensuring Concrete Improvements in the State's Vital Oversight Activities
The Objectors also claim that the State Agreement "fails to provide any direct, concrete or reasonably certain relief to members of Marisol Subclass Three." (Obj. Br. at 60; see aha Obj. Br. at 16-17). The Objectors' summary dismissal of the State Agreement is easily refuted as it wholly ignores two of the key aspects of relief mandated by the settlement that are perhaps most direct, concrete and certain.
After two years of discovery, the Marisol Plaintiffs concluded that state
35
i r

oversight was crippled by a lack of staff and institutional commitment. To remedy this critical institutional deficiency, the initial provisions of the State Agreement contain specific, concrete requirements. The larger Metropolitan Regional Office ("MRO") is to be replaced by a New York City Regional Office ("NYCRO") which is to be responsible for only the five counties of New York City. The staffing at the new NYCRO will be increased to at least 41 full time employees. On all child welfare matters, the Director of the NYCRO is to report directly to the Commissioner of OCFS and not, as previously had been the case, to a number of the Commissioner's deputies. Also, for the first time in the history of the State child welfare system, the NYCRO's Director, will have initial responsibility for the development and organization of the NYCRO's annual budget. (JA 758-61).
Discovery also revealed that individual reports of fatalities occurring among New York City children and annual cumulative reports of such fatalities -- which enable the State to determine why a particular death occurred so that the conditions that caused the death could be corrected to prevent future deaths — were not being prepared as required by statute. The State Agreement provides that all past due fatality reports are to be prepared by a specific date and all subsequent reports are to be prepared in adherence to the statutory due dates, and OCFS, for the first time, must when necessary direct ACS to adopt corrective action, which will be
36
i r

monitored by the NYCRO. (JA761-63). Requiring timely and prompt completion of investigations of the most egregious failures of the child welfare system — child fatalities — in order to prevent them in the future, is surely direct, concrete and fully certain relief.
The Joel A. Objectors also improperly minimize the significance of the case record reviews — a widely accepted technique for evaluating the day-to-day performance of child welfare bureaucracies in protecting and serving children — ignoring that, absent.the Marisol settlement, the State would have no obligation to conduct any case record reviews. Under the settlement, it will conduct reviews covering nine separate categories of children, including five which concern, in whole or in part, the subclass of children that includes the Joel A. Objectors. (JA 766-67 at TITJ18-21).
To ensure that the State Defendants will comply with the State Agreement, the Agreement establishes formal monitoring procedures, guaranteeing Plaintiffs' counsel access during the two-year term of the Agreement to the ongoing operations of OCFS and the NYCRO, and providing Plaintiffs with extensive written documentation. If the Plaintiffs determine that the State Defendants have failed to comply with any of the provisions of the State Agreement, then Plaintiffs can return to the district court to seek judicial enforcement. (JA 771-772 atffl[29-
37

30). The detailed provisions in the State Agreement, which were based upon
critical deficiencies in the State's monitoring of child welfare activities in New York City, are precisely the opposite of what the objectors dismissively characterize as "illusory."
III. THE SETTLEMENT'S RELEASES AND COVENANTS NOT TO SUE
ARE LIMITED AND A REASONABLE EXCHANGE FOR THE SUBSTANTIAL RELIEF OBTAINED BY THE CLASS, AND
PLAINTIFFS CLEARLY HAD FULL AUTHORITY TO AGREE TO THESE PROVISIONS
The Joel A. Objectors, having ignored an invitation to participate in the Marisol litigation while it was still in litigation, now seek to preserve the opportunity to proceed with their own belatedly filed separate class action without being fettered by any restrictions occasioned by the Marisol settlement. As a result, they criticize as "oppressive" the terms of the settlement's release and covenant not to sue provisions, and assert that the Named Plaintiffs had no authority to enter into any agreement concerning Joel A. Objectors' claims. In fact, however, nothing in the Marisol settlement prevents the Joel A. Objectors or any other gay or lesbian youth, or any other Marisol class member for that matter, from
seeking individual relief for harms suffered as a result of failures in the child
38

welfare system. The restrictions merely, and reasonably, limit new class actions or claims for system-wide relief during the two year period in which the Panel is working with the City to ensure coordinated reform of all aspects of the system and during which the City is fully opening up its child welfare records and staff to the Advisory Panel. Moreover, as the Joel A. Objectors have long known, their claims are clearly encompassed within the Marisol lawsuit, giving the Named Plaintiffs the authority to enter into appropriate releases with respect those claims.
A. The Settlement Permits Every Class Member to Pursue Any and All Individual Legal Claims, and its Restriction on Class Actions and Claims for System-Wide Relief While the Advisory Panel Has Full Access to the City Child Welfare System Strikes a Reasonable Balance
The Joel A. Objectors' contention that the settlement bars claims based on events that occur in the future and, therefore, "effectively license[s] the City and State Defendants to commit systemic violations of Marisol Class members' legal rights over the next two years" (Obj. Br. at 41) is no more than hyperbole attempting to bolster an unsupportable argument.
During this period that the City opens its records to full examination by the Advisory Panel and record reviews by the State, Plaintiffs may not commence a new class action or other action seeking "system-wide" relief. However, not all
claims are barred. All individual class members may, during the two year
39

settlement period, continue to bring suits for damages or for individual equitable relief, including prospective claims based upon bias-related injuries. Moreover, individuals such as the Joel A. Objectors have the right to press the Advisory Panel to address their concerns, and the Marisol Plaintiffs retain the right to seek a judgment and relief if the Advisory Panel finds that the City failed to act in good faith to implement the Panel's recommended reforms, further minimizing the effect of the limited restrictions on some types of lawsuits.
Additionally after the two year period expires, any type of claim, including a class action or suit requesting systemic relief, may be brought. Crucially, the City Agreement does not prevent Plaintiffs from offering into evidence facts, events, actions or omissions which may have occurred prior to December 15. 2000. if they do bring class action or systemic claims arising after December 15, 2000. (JA 747). These carefully crafted provisions hardly grant the City a license to break the law, but rather take concrete steps toward ensuring compliance with long-ignored laws.
The cases cited by the Objectors do not support their argument. Each involves a situation in which people were foregoing any and all avenues of judicial relief for prospective claims for all time, in contrast to the covenants in this case which do not preclude individual injunctive actions for non-systemic relief, and
40

only bar class action and systemic claims for a two-year period of time. See, e.g., Adams v. Philip Morris. Inc.. 67 F.3d 580, 582 (6th Cir. 1995) (release waived all present and future claims for all time); Williams v. Vukovich. 720 F.2d 909, 926 (6th Cir. 1983) (consent decree waived all prospective rights under Title VII); United States v. Allegheny-Ludlum Industries. 517 F.2d 826, 854 (5th Cir.), certdenied. 425 U.S. 944 (1975) (noting that a release cannot preclude a suit for all forms of appropriate relief for injuries caused by future acts); J.A. Shults v. Champion Int'l Corp.. 821 F. Supp. 520, 524 (E.D. Tenn. 1993)(settlement released "all future claims, demands, rights of action and causes of action of every kind, whether arising in law or equity"); Great Northern Associates. Inc. v. Continental Casualty Co.. 192 A.D.2d 976, 977 (3rd Dep't 1993) (contract term released defendants from any liabilities that may be incurred at any time in the future). The proposition that public policy may prohibit full waivers of all future discrimination claims, see Alexander v. Gardner-Denver Co.. 415 U.S. 36, 52 (1974), is simply beside the point with respect to the settlement at issue here, since this settlement plainly does not eliminate class members' ability to bring suits to remedy future violations of their rights.
Lastly, the Objectors contend that the members of the Joel A. putative class are in "desperate circumstances," and that class action is the only vehicle to address
41

their situation. (Obj. Br. at 27). However, certification is not an entitlement, see generally General Tel. Co. of the Southwest v. Falcon. 457 U.S. 147, 160 (1982), and there is no guarantee that a class defined as vaguely as that proposed by the Joel A. Objectors ~ which includes any youth in the New York City foster care system who is questioning or confused about his or her sexual orientation or gender (JA 801) -- would be certified so as to provide the relief the Objectors seek. Additionally, there is nothing in the settlement that precludes the individual Joel A. Objectors from presently pursuing their claims and seeking the immediate individual relief that they request.
There can be no doubt that in some situations class action lawsuits can be the best vehicle with which to challenge systemic deficiencies in a governmental agency. However, that is not the situation here, where there is a major initiative underway to develop and coordinate well-planned child welfare services for all class members, not just for the groups that attract counsel. The "inherent nature of a compromise is to give up certain rights or benefits in return for others." McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 429 (7th Cir. 1977). It is not only reasonable, but consonant with public policy, for the parties to agree that during this period of unrestricted agency access and cooperation while Defendants are admittedly working on a wide variety of reform initiatives under the guidance
42

and intense scrutiny of an expert panel, the Defendants should not be subject to other system-wide lawsuits based on the very same failures raised in the Marisol litigation by Marisol class members. It was not an abuse of discretion for the district court, with all of its informed experience, to have determined that this settlement, with its bargained-for exchanges, was reasonable in all respects, in light of all of the built-in protections and benefits the settlement provides.
B. The Subclass III Named Plaintiffs Had The Authority To Release the Joel A. Objectors' Claims, Since They Arose Out of The Same Facts As Those Pled in the Marisol Complaint, and There is No Material Conflict Among Subclass III or Any Other Members of the Marisol Plaintiff Class
Aside from their facial attack upon the breadth of the settlement's releases and covenants not to sue, the Joel A. Objectors argue that the Named Plaintiffs lacked the authority to enter into a settlement in which these provisions apply to the bias-related claims they now assert in their separate lawsuit ~ including, apparently, claims predating the Marisol settlement. (See Obj. Br. at pp. 44-51). The Objectors also claim that they were inadequately represented during the settlement negotiations, and suggest that they should have been separately represented at the negotiations because the Joel A. members of Subclass III are victimized by other Subclass in members. Under well-established law governing class action lawsuits, these arguments are meritless and indeed misperceive the
43

causes of the harm when inappropriately placed or poorly supervised young class members victimize other class members.
1. The Subclass III Named Plaintiffs Had Ample Authority to Release Claims Arising Out of the Same Facts as Those Pled in the Marisol Complaint
The Joel A. Objectors are class members of Marisol Subclass III, which includes "children in the custody of the Administration for Children's Services." (JA 440). The Objectors assert that when the Named Plaintiffs for Subclass III released legal claims for harms suffered by the Joel A. Objectors that were not pled in the Complaint and that the Named Plaintiffs could not have individually asserted, this violated the Objectors' right to due process and to adequate representation under Fed. R. Civ. P. 23.
However, it is axiomatic that a class representative, in settling a case, may release claims predicated on the same facts as those underlying the claims set forth in the class action complaint even if those claims were not, in fact, pled in that class action. TBK. 675 F.2d at 460-61; see also Grimes v. Vital ink Communications Corp.. 17 F.3d 1553, 1563-64 (3d Cir.). cert, denied. 513 U.S. 986 (1994); In re Baldwin-United Corp.. 770 F.2d 328, 336 (2d Cir. 1985); National Super Spuds. Inc. v. New York Mercentile Exchange. 660 F.2d 9, 21 n.7 (2d Cir. 1981); Robertson v. National Basketball Association. 622 F.2d 34, 35 (2d
44

Cir. 1980); In re Brand Name Prescription Drugs Antitrust Litig.. 1996 WL 167347, at *2; Whitford v. First Nationwide Bank. 147 F.R.D. 135, 142 (W.D.Ky. 1992); In re Washington Public Power Supply System Sec. Litig.. 720 F. Supp. 1379, 1413 (D. Ariz. 1989), affd, 955 F.2d 1268, cert denied. 506 U.S. 853 (1992); Bernstein v. Mediobanca Banca di Credito Finanziario-Societa Per Azioni. 78 F.R.D. 1, 4-5 (S.D.N.Y. 1978).
While absent or unnamed class members have a right to adequate representation before a settlement that binds them is entered, In re Agent Orange Product Liability Litig.. 996 F.2d 1425, 1435 (2d Cir. 1993), this right is generally violated only when a class representative procures better settlement terms for herself by bargaining away claims held by some absent class members that are not common to the class, and thus could not have been brought by the named representative. See National Super Spuds. 660 F.2d at 17-18. That is not the case here.
In TBK Partners, a federal shareholder class and derivative action, the trial court approved a settlement which barred members of the class from bringing any claims related to the federal action. TBK Partners. 675 F.2d at 459. Minority shareholders appealed the approval of the settlement on several grounds, including the fact that the settlement released state law appraisal claims that had not been
45

raised and could not have been raised in the context of the federal class action. This Court affirmed the approval of the settlement, finding that release of the state law appraisal claims was justified and did not unfairly penalize any particular class member or group of class members when those claims arose out of the same factual predicate as the federal claims. IcL at 462.
The Joel A. Objectors contend that this settlement unjustly deprives them of their right to assert the following claims: That Defendants, by not creating appropriate placements for lesbian, gay, bisexual or transgendered youth, have failed to protect these youth from bias-related verbal and physical abuse (JA 803804); that the putative Joel A. class suffers harm as a result of Defendants' failure to "train those charged with the care and protection of children to cope with the developmental obstacles they face because of their sexuality and gender atypicality" (JA 804-805); and that City Defendants make biased placement and service decisions towards the putative class members that cause them to suffer harm. (JA 805).
However, the factual predicate of the Objectors' claims is the same as that underlying some of the claims brought by the representatives of Subclass III — that they were emotionally and physically harmed by: (1) Defendants' failing to develop a sufficient range of different types of placements to meet the needs of children in
46

custody, causing many children to be placed inappropriately (JA 153 at f 240); (2) Defendants' placing children with caretakers who have not been appropriately trained (JA 154 at If 246); (3) Defendants' failing to ensure that foster children's mental health needs are addressed (JA 155-57 at ^ 249-259); (4) Defendants' failing to ensure that private agencies providing residential care for children such as the Joel A. Objectors are monitored, retain staff that are trained, and provide services in accordance with minimally accepted professional standards (JA 167 at f 296); and, (5) Defendants' failing to develop, implement and maintain sufficient training curricula, programs, procedures and requirements necessary to ensure that Plaintiffs are treated in accordance with their legal rights. (JA 634).
Thus, because the gravamen of the Joel A. Objectors' legal claims, although premised in part on different legal theories, rests on the same factual bases as the claims asserted by the relevant subclass representatives in the Man sol litigation, the named plaintiff representatives were well within their authority in entering into a settlement that precluded the Joel A. Objectors from bringing their suit as a class action. As this Court has recognized, "in order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the
47

claim was not presented and might not have been presentable in the class action." TBK Partners, 675 F.2d at 460.
The fact that the interests of adolescents in appropriate placements, services and protection in foster care were represented in the Man sol litigation is further demonstrated by Plaintiffs' Proposed Findings of Fact regarding the lack of appropriate placements for all teenagers and pre-teens, including pregnant young women and gay and lesbian youth.17 Indeed, one of the individual case histories developed in detail by Plaintiffs concerned a youth, Charles R., who was repeatedly beaten by other foster children.18 Additional Findings of Fact demonstrate that Plaintiffs specifically addressed the severe placement problems of gay and lesbian youth that form the basis of the claims alleged in the Joel A. Complaint.19 The lack of adequate placements for youth, including gay and lesbian youth, was also addressed in Plaintiffs' May, 1997 motion for a temporary restraining order regarding overnight placements at ACS' Pre-Placement Center,
17 See, e.g.. Plaintiffs' Proposed Findings of Fact, facts IV.A.l .aa. and IV.A.3.c; IV.A.b. and IV.A.l..a; IV.A.3.k., 1and m; and IV.A.3.mm. (JA 49596).
18 See, e ^ , Plaintiffs' Proposed Findings of Fact, XI.B.2.b.21; 33; 41.5; and 132;XI.B.2.c.223.
19 See, e ^ , Plaintiffs' Proposed Findings of Fact, facts rV.A.3.w. and ww.; IV.A.3.bbb; V.A.l.c.(56); V.A.g.; and VI.A.l .b.(5). (JA 495-500).
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and at a May, 1998 contempt hearing. (JA 1236; JA 1244-45; JA 1258-61; JA 1270; JA 1276-77).
The City Defendants moved to dismiss the claims regarding the PrePlacement Center on the same legal grounds that the Joel A. Objectors assert here - that there was no named plaintiff who had standing to bring the Pre-Placement Center claims because none of the class representatives had been placed at the PrePlacement Center overnight. (JA 258). The district court rejected that argument, holding that "there is no requirement that the harm to the named plaintiff be identical to that of each member of the class" and that "because the named Plaintiffs allege harm resulting from inappropriate placements maintained by ACS, and the Pre-Placement Center is such a placement" the Named Plaintiffs were adequate to raise the claims. (JA 483-485). Thus, the question of whether a class representative who suffers from a specific injury as a result of an inadequate placement -- such as a teen mother who is unnecessarily separated from her infant because there are not enough placements that can accommodate both the mother and child ~ can raise a claim on behalf of a class member who suffers a different specific harm resulting from a placement problem— such as bias-related victimization because of the lack of appropriate placements for gay youth ~ has
49

been settled in the affirmative by the district court in this case.20
The Joel A. Objectors rely heavily upon National Super Spuds. 660 F.2d 9,
20 The Objectors' argument that the Named Plaintiffs did not have "standing" to release the bias-related claims is predicated on a misunderstanding of the application of the standing requirement in the class action context. Standing is a jurisdictional question that focuses on the party bringing the suit, see Warth v. Seldin. 422 U.S. 490, 498 (1975), and is satisfied if that party has "allege[d] personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright. 468 U.S. 737, 751 (1984) (citation omitted). In the class action context, the named plaintiffs must first demonstrate that, as individuals, they have a live case or controversy; and second, that there is a sufficient nexus between the claims of the named plaintiffs and those of the class at large to meet the commonality, typicality and adequacy of representation requirements of Rule 23. See Sosna v. Iowa. 419 U.S. 393, 402-03 (1975). There is simply no requirement that the named representative have individual standing to bring all of the claims asserted by each class member as long as the named representatives' claims are typical of those asserted by the unnamed class members. See Allee v. Medrano. 416 U.S. 802, 819 n.13 (1974); In re Scott Paper Co. Securities Litigation. 142 F.R.D. 611, 614 (E.D.Pa. 1992): Alfus v. Pyramid Technology Corp.. 764 F. Supp 598, 606 (N.D. Cal. 1991); Haroco Inc. v. American Nat. Bank and Trust Co. of Chicago. 121 F.R.D. 664, 668 (N.D.111. 1988).
The Objectors have not claimed, nor would there be a basis to claim, that the Named Plaintiffs lacked individual standing. Thus, Objectors' standing argument must rest on an assertion that the claims of the named representatives were not related to those asserted in the Joel A. Complaint. As is discussed in text, the Objectors assert claims regarding placement, training and policy issues, which are not simply related to, but, in fact, are the same concerns raised by the" Subclass III representatives. Just as the district court in this case was "not persuaded that in order to have standing plaintiffs must have named plaintiffs in each and every placement that they allege is harmful" (JA 484), this Court should not be persuaded that to have standing the Named Plaintiffs must have endured every variation of harm suffered by class members as a result of Defendants' failure to provide adequate placements and training.
50

in support of their contention that the Named Plaintiffs for Subclass III could not release bias-related claims currently pled in the Joel A. Complaint. However, National Super Spuds, is readily distinguishable because in that case the named plaintiffs procured a better settlement for themselves by releasing claims unrelated to claims alleged in the complaint and to which they did not have a personal stake.
Not only do the Objectors' claims arise from the same facts as those asserted in the Marisol Complaint, but the relief sought by all members of Subclass in, including the Joel A. Objectors, is virtually the same. Indeed, the Advisory Panel will examine the lack of adequate placements for all adolescents ~ including, among others, gay and lesbian youth ~ and work with ACS to ensure that the City is making a good faith effort to provide safe, appropriate environments for these adolescents (JA 734-735), as well as for other class members for whom appropriate placements and well-trained staff have not been provided. Since all class members are treated identically by the settlement, in that all share equally in the privileges and remedies provided, there is not the concern, present in National Super Spuds, that the Named Plaintiffs bargained away the claims of unnamed class members to procure better settlement tenns for themselves. See National Super Spuds, 660 F.2d at 16. In fact, Judge Ward stated that no such unfair bargaining had taken place. (JA1371).
51
TIT

The named representatives for Subclass HI had authority to release the claims asserted by the Joel A. Objectors and did not achieve a better bargain for themselves by agreeing to the covenants and releases. Therefore, the district court's determination that the named representatives adequately represented Subclass HI should be affirmed.
2. There is No Material Conflict Among Members of Subclass III Because All Members, Including the Joel A. Objectors, Share the Same Interest
Also without merit is the Joel A. Objectors' assertion that the Named Plaintiffs could not adequately represent the Objectors' interests and that the Objectors should have been separately represented because of antagonism among members of Subclass III, based on the assertion that non-gay class members are the perpetrators of much of the abuse and victimization endured by the Objectors. Carrying their argument to its logical conclusion, Objectors actually want each "subclass" within a subclass -- that is, the pregnant teenagers, the emotionally disturbed youngsters, the physically disabled, indeed any children with special placement and treatment needs ~ to have separate named plaintiff representation. This is unnecessary, there is simply no material antagonism between the Subclass HI members. Furthermore, if the Joel A. Objectors' proposition ~ that they should
52

have been separately represented because they are victims of violence perpetrated by fellow class members ~ were in fact true, then it would also be true that in a prison reform case, named plaintiffs representing a class of all incarcerated individuals could not assert the class-wide constitutional right to be protected from violence perpetrated by fellow inmates in that class. Clearly that is not the law. See, e.g.. Fisher v. Koehler. 692 F. Supp. 1519, 1521 (S.D.N.Y. 1988).
A named plaintiff is deemed to adequately represent a class when he or she does not have interests that are antagonistic to those of other class members. See Amchem Products. Inc. v. Windsor. 117 S.Ct. 2231, 2251 (1997): In re Joint Eastern and Southern Dist. Asbestos Litig.. 78 F.3d 764, 778 (2d Cir. 1996); In re Drexel Burnham Lambert Group. Inc.. 960 F.2d 285, 291 (2d Cir. 1992), certdenied. 506 U.S. 1088 (1993). When class members or subclass members all share a common interest, no antagonism is deemed to exist. See, e.g.. In re Drexel Burnham. 960 F.2d at 291: Maichman v. Davis. 761 F.2d 893, 900 (2d Cir. 1985), cert, denied. 475 U.S. 1143 (1986); In re Corrugated Container Antitrust Litigation. 643 F.2d 195, 208 (5th Cir. 1981); Lyons v. Scitex Corp.. 987 F. Supp. 271, 275 (S.D.N.Y. 1997); O'Brien v. National Property Analysts Partners. 739 F. Supp. 896, 903 (S.D.N.Y. 1990).
53

The Plaintiffs in Subclass III all share a common interest ~ the right to appropriate placements, trained caseworkers and policies, procedures and practices aimed at ensuring children in foster care remain free from emotional or physical harm. Nowhere is it suggested that the Named Plaintiffs for Subclass IE did not work to further this shared interest. That Joel A. Objectors might be victimized by their peers or ACS staff while in Defendants' care is undeniably tragic, and Defendants have an obligation to ensure that such victimization does not occur. See, e.g.. Camp v. Gregory. 67 F.3d 1286, 1293 (7th Cir. 1995), cerL denied. 517 U.S. 1244 (1996); Doe v. New York City Dep't of Social Services. 649 F.2d 134, 141 (2d Cir. 1981). However, the Defendants' obligation to ensure the custodial children are protected enures to every member of Subclass III, and all members of this subclass share an interest in having this obligation enforced.
The Objectors' attempt to liken the relationship between class members in Marisol to the antagonistic relationship between class members in Amchem, 117 S.Ct. at 2251, is unavailing. In Amchem. the Supreme Court held that the named plaintiffs in a class action asbestos injury suit could not adequately represent the single class because of the existence of competing interests in that class between members who were currently suffering from asbestos related medical injuries,
54

whose goal was to receive immediate large payments, and members who had been exposed to asbestos but who had not yet suffered any medical injury, whose interest was in ensuring a large, future fund. Amchem. 117 S.Ct. at 2251. This case is clearly distinguishable from Amchem because, as has been demonstrated, the interests of the Subclass III members, including the Joel A. Objectors, far from being inexorably opposed, are in fact the same.
As this Court has recognized, "[i]n the end, the question whether named plaintiffs are adequate class representatives is one committed to the sound discretion of the district court." Malcham. 761 F.2d at 899-900. In this case, the district court rightly concluded that the named representatives fairly represented the subclass to which the Joel A. Objectors are members, and who all share the same interests. (JA 1442). See, e ^ , Wilder v. Bernstein. 645 F. Supp. at 1312.
55

IV. IN APPROVING THE SETTLEMENT, THE DISTRICT COURT SUFFICIENTLY EVALUATED THE ADEQUACY OF REPRESENTATION OF ALL CLASS MEMBERS The Joel A. Objectors assert that the district court abused its discretion by failing to abide by what they portray as a general directive by the Supreme Court in Amchem that there be "structural assurances of fair and adequate representation for . . . diverse groups of individuals affected" by the settlement. (Obj. Br. at 38, quoting Amchem. 117 S.Ct. at 2251). According to the Objectors, such an assurance could not be accomplished without the court making an explicit finding that "each Subclass received adequate representation vis-a-vis the other Subclasses." (Obj. Br. at 38). This is a red herring. Nothing in Amchem requires a court in this type of case to make such specific findings when approving a settlement. In any event, the district court conducted a searching inquiry throughout this litigation and prior to approving the settlement and has repeatedly found that the Named Plaintiffs' representation of the entire class, including each subclass, was fully adequate. The Amchem case concerned a completely different procedural and factual context than the one at present. In Amchem the parties negotiated a nationwide
56

settlement creating a single, fixed fund which would provide the exclusive remedy for all asbestos claimants and potential claimants for all time. The parties then presented to the court, simultaneously, a complaint, answer, proposed settlement, and, solely for settlement purposes, a joint motion to certify a single class consisting of everyone in the United States who had been exposed (or whose relative had been exposed) to asbestos from a particular manufacturer but who had not filed any lawsuits as a result. This proposed class included those who knew they had been exposed to asbestos and had identifiable injuries, and those who were completely unaware of such exposure and for whom the extent of any future injuries was unknown and unknowable. Nine people who knew they had been exposed to asbestos but had not yet filed lawsuits were proposed as named plaintiffs, and counsel for the plaintiffs who had pending asbestos lawsuits purported to represent this class.
The Supreme Court understandably refused to uphold class certification in these circumstances. The Court held, first, in evaluating the certification of a class at the time of settlement, a court must apply a heightened level of scrutiny in ensuring that all Fed. R. Civ. P. 23 requirements are met, especially that the named plaintiffs adequately represent the class. The reasoning behind this is that
57

otherwise there would be no structural assurance ~ that would exist had there been a class certification analysis prior to settlement ~ that the named plaintiffs share a common interest with absent class members and therefore can fairly enter into a settlement agreement that will bind them. 117 S.Ct. at 2248.
Applying this heightened scrutiny in Amchem, the Court found that the proposed class was not adequately represented, because it included members who were currently injured, who had an interest in immediate, large payments, and members who had not yet suffered injury, who had an obvious conflicting interest in smaller immediate settlement payments and a large future settlement fund. Id. The Court held that the class representatives for that class could not simultaneously advocate on behalf of both of these competing interests, id., which was demonstrated by the fact that the settlement favored the named plaintiffs who had already suffered asbestos-related injuries, at the expense of the interests of the absent class members who had not yet suffered from such injuries.
Given the extraordinarily irregular procedures presented in Amchem. it is arguable whether the decision has any relevance to Marisol. where Plaintiffs proceeded in the traditional sequence: first with class certification, then subclass certification, then completion of discovery, and on the eve of trial, a settlement.
58

While it is well-established that prior to approving a settlement, a court has a fiduciary duty to ensure that the interests of all class members were adequately represented during the settlement negotiations and that no interests were improperly compromised, the district court here amply fulfilled its duty. See Grant, 823 F.2d at 22; see also Maywalt v. Parker & Parsley Petroleum Co.. 67 F.3d 1072, 1078 (2d Cir. 1995).
Many searching inquiries into the adequacy of the Named Plaintiffs occurred in this case: when the district court certified the class (JA 241-251); when this Court affirmed the class certification, Marisol A.. 126 F.3d 372 (2d Cir. 1997); when the district court later certified the subclasses (JA 437-438); and again, when the district court issued its Opinion and Order concerning the Named Plaintiffs' standing to bring claims regarding the Pre-Placement Center. (JA 475-488). In each instance, the Named Plaintiffs were found adequate to protect the interests of the unnamed class members. Moreover, the court clearly considered the adequacy of the Named Plaintiffs when it stated that no claims of any subclass had been unfairly traded during settlement negotiations (JA 1371), and that the representatives of Subclass III had adequately represented the members of that subclass. (JA 1440-1442).
59

In addition, by finding it "unlikely that the class would have been decertified during or after trial," the court necessarily found that the Named Plaintiffs remained adequate representatives of the class through pre-trial settlement negotiations. (JA 1425). Nothing in Amchem suggests that where these searching inquiries have occurred in accordance with regular class certification and other procedures throughout the pendency of a class action lawsuit, a more searching finding must be made to ensure procedural safeguards during settlement negotiations.
Additionally, the Joel A. Objectors have failed to demonstrate that there was any antagonism among the subclasses or that the terms of the settlement make distinctions among the subclasses, which the Court in Amchem suggested also gives rise to greater judicial review of the adequacy of Named Plaintiffs. In fact, in affirming class certification, this Court conclusively rejected the argument that there was a conflict among class members, concluding instead that the Plaintiffs all share the same interest in an improved child welfare system. Marisol A.. 126 F.3d at378.2)
21 This Court directed that the district court certify subclasses, not because there was any conflict among class members that required individualized representation, but rather as a mechanism for clarifying and categorizing claims
(continued...) 60

All of the cases cited by the Objectors involved some irregularity in settlement, none of which is present here, that served to trigger the need for heightened scrutiny, including: disproportionate allocation of settlement benefits to named plaintiffs; allegations that class counsel sacrificed the class1 interest to assure sizable attorney's fees; and the absence of subclasses where antagonism among class members was sufficiently apparent to raise the prospect that some class members' interests might have been unfairly sacrificed. See, e^., Holmes v. Continental Can Co.. 706 F.2d 1144, 1147 (1 lth Cir. 1983); Plummer v. Chemical Bank. 668 F.2d 654, 656 (2d Cir. 1982); In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1125-30 (7th Cir. 1979), cert denied. 444 U.S. 870(1979).
hi contrast, the record here establishes that the settlement was negotiated by experienced counsel at arms-length, after almost three years of vigorous and contentious litigation. Objectors' unsupported suggestion that subclass representatives may not have been apprised of the course of negotiations ~ a new argument not raised below ~ is simply wrong. During settlement negotiations,
(...continued)
and so that Defendants would be sufficiently apprised of what they were to defend against. Marisol A.. 126 F.3d at 378-79.
61

Plaintiffs' counsel met with, discussed and shared drafts of settlement papers with the Next Friends of the Named Plaintiff class members, all of whom approved the settlement. (JA 1163).
The district court satisfactorily fulfilled its obligation to consider all factors relevant to whether the settlement was fair, reasonable and adequate, including whether Subclass in was adequately represented. See Malchman. 706 F.2d at 433; In re Warner Communications Securities Litigation. 798 F.2d 35, 37 (2d Cir. 1986); Handschu v. Special Servs. Div.. 787 F.2d 828, 833 (2d Cir. 1986); E.E.O.C. v. Hiram Walker & Sons. Inc.. 768 F.2d 884, 891 (7th Cir. 1985), certdenied, 478 U.S. 1004 (1986); Whitford, 147 F.R.D. at 140. Because, as this Court found, there was no conflict of interest among class members, and because the terms of the settlement treat all class members equally, there was simply no need for the district court to conduct an even more scrupulous inquiry and make further findings regarding whether each subclass received adequate representation vis-avis the other subclass, given the record in this case. Throughout the course of this litigation, the district court made appropriate findings which cumulatively support its approval of the settlement, and then made further detailed and appropriate, through and searching findings when directly addressing approval of the
62

settlement. The district court's approval of the settlement should not be disturbed. CONCLUSION
After presiding over vigorously contested litigation for more than three years, the district court acted wholly within its discretion in approving the settlement reached by the parties. The six Joel A. Objectors, however, wish to proceed with their own class action, on some of the same issues that have been resolved by this lawsuit. They ask this Court to set aside the agreement because it bars new class actions for the next two years, even though all individual equitable and damage lawsuits are not affected.
The Marisol parties believe this settlement offers the best opportunity to bring a historically destructive child welfare system into conformance with the law, and to bring about significant and long-lasting benefits for all New York City children affected by this system. The district court has agreed. Plaintiffs urge this Court to affirm the decision of the district court and to allow this settlement to go forward, so that New York City children May finally begin to have the protection and services to which the law entitles them.
63

Dated:

New York, New York May 14, 1999

Respectfully submitted,

MARCIA ROBINSON LOWRY (ML 5501) SUSAN LAMBIASE (SL 5041) SHTRIM NOTHENBERG (SN 5913) Children's Rights, Inc. 404 Park Ave. So., 11th Fir. New York, New York 10016 (212)683-2210
KAREN FREEDMAN Lawyers for Children 110 Lafayette Street - 8th Floor New York, NY 10013 (212) 966-6420
THOMAS F. CURNIN IRA J. DEMBROW Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 (212)701-3000
DAVID M. BRODSKY JESS A. VELONA
Schulte Roth & Zabel LLP 900 Third Avenue New York, New York 10022-4774 (212)756-2000
Counsel for Plaintiffs-Appellees
64

Certificate of Compliance I, Marcia Robinson Lowry, attorney of record for Plaintiffs-Appellees Marisol A., et al., do hereby certify that the foregoing brief complies with the typevolume limitation as set forth in Federal Rule of Appellate Procedure 32(a)(7). The total number of words in the brief is 13,922.
Marcia Robinson Lowry (ML 5501)
65

 
 TCbe1

JJNITED STATES CO OF^APPEALS

fit*

URCUIT

ft-i

Intervenor-Plainnrfs-Appellants,
Alexander Forbes, Jr., by her next friend o: .endI)r,A^ncentBonagura, THOMAS rCfiSy K3&S her next friend, Nedda de Castro^
^artaiufi(MBRMl)C^g^^^s n^^friend ^ThomasJffi yanrcS^^^^^behalf and.on behalf oral S, by theirJnSct friends, .W.Nr!an(iN.N.

- against -

ty of New York? MARVA DVINGSTON

HAMMONS, Administrator ofAthe HumaniResources Administration andCommissioner of the

't; of

SifofNewgYork, GEORGE E; PATAKIf Governor of the $$$?&:%

le New York Office^gfXhildren, and.

Dep t. of Social Services of the Statefbf1

us, official .capacity as. Commissioner,

ATCSTOSTRICTTOI fI)JSIRICT:i5RNEmYO]

>EFENDANTS^RPELLEES^

13

GIULIANI, HAMMONS, ANDSCOPPETTA

"•—¥ VII IT I I

• 1

MICHAEL D. HESS, Corporation Counsel of the
City of New York, Attorney for Defendants-Appellees
Giuliani, Hammons, and Scoppetta, 100 Church Street, New York, New York 10007 (212) 788-1036

LARRY A. SONNENSHEIN, GRACE GOODMAN, GAIL RUBIN,
Of counsel.

Dated:

New York, New York May 17, 1999

TABLE OF CONTENTS

PRELIMINARY STATEMENT

1

ISSUES PRESENTED

5

STATEMENT OF FACTS

6

A. The Marisol Litigation

6

1. Complaint and Class Certification

6

2. Discovery; Motion Practice Raising Issues

of Standing

8

3. Trial Preparations

10

B. The Marisol Settlements

11

1. Postponements of Trial Date

11

2. The City Settlement

11

3. Notice to the Class, Responses Received

15

4. Fairness Hearing

16

THE DECISION BELOW

18

ARGUMENT

23

POINT I: THE DISTRICT COURT'S FINDING THAT THE

CITY SETTLEMENT IS FAIR, ADEQUATE,

AND REASONABLE, BASED ON THE COURT'S

LONG INVOLVEMENT WITH THE CITY'S

CHILD WELFARE ISSUES, WAS A PROPER

EXERCISE OF DISCRETION AND MUST BE

UPHELD

23

A. Standard of Review

23

B. Class Action Approval Standards Are Met

23

1. Grinnell Factors on Substance Are Met

24

a. The Complexity, Expense, & Likely

Length of the Trial

24

b. Class's Reaction to the Settlement

25

c. Stage of Proceedings and How

Much Discovery Done

25

d. Risks of Establishing Liability

26

e. Risks of Establishing Remedies

27

f. Risks of Maintaining the Class

Through the Trial

28

!''••"

• i

2. The Negotiating Process Meets Applicable

Standards

29

POINT II: OBJECTIONS TO THE CLASS DEFINITION AND

ADEQUACY OF REPRESENTATIVE

PLAINTIFFS AND THEIR AGREEMENT TO

RELEASE OR DELAY NEW SYSTEMIC

LAWSUITS FOR TWO YEARS IN EXCHANGE

FOR TOTAL INFRASTRUCTURE REFORM

WERE RIGHTLY REJECTED BY THE DISTRICT

COURT

30

A. The Class Definition and Adequacy of Its

Plaintiffs Was Upheld on Appeal and the Named

Plaintiffs Adequately Represented the Objectors'

Subclass in Negotiations

31

1. No Need for Separate Subclass Counsel

31

2. Law of the Case Bars Revisiting the Class

Definition or Decisions on the

Representative Plaintiffs' Adequacy.

35

B. The Relief is Not Illusory; the Covenants and

Releases Are Lawful

42

1. The Settlement Promises System-wide

Reform

42

2. The Covenant Not to Sue and Releases

Are Not Overbroad

46

a. Releases of Claims Over Past

Events Have No Broader

Impact Than Under the

Doctrine of Res Judicata

48

b. The Limited Covenants Not to

Sue on Systemic Equitable

Claims Ripening in the Next

Two Years Are Lawful

49

CONCLUSION

57

TABLE OF AUTHORITIES

Ackerrrfann v. United States. 340 U.S. 193 (1950)

41

Amalgamated Sugar Co. v. NL Industries, Inc.. 825 F.2d 634 (2d Cir.),

cert, denied sub nom. Rothenberg v. Amalgamated Sugar Co.r

484 U.S. 992 (1988)

48

Anchem Products Inc. v. Windsor. 521 U.S. 591, 117 S.Ct. 2231 (1997)

3, 31, 33-35

Arizona v. California. 460 U.S. 605 (1983)

36

Baby Neal v. Casey. 43 F.3d 48 (3d Cir. 1994)

33, 34

City of Detroit v. Grinnell Corp.. 495 F.2d 448 (2d Cir. 1974) . . 18, 24-27

Cooper v. Federal Reserve Bank of Richmond. 467 U.S. 867 (1984)

48

County of Suffolk v. Long Island Lighting Co..

907 F.2d 1295 (2d Cir..l99Q)

23, 24

County of Suffolk v. Stone & Webster. 106 F.3d 1112 (2d Cir. 1997\ . . . . 40

David C. v. Leavitt. 13 F. Supp. 2d 1206, 1211-12 (D. Utah 1998)

43

Doe v. New York City Dep't of Social Services.

709 F.2d 782 (2d Cir. 1983)

36

Erie Telecom Inc. v. City of Erie. 853 F.2d 1084 (3d 1988)

51-55

Evans v. Jeff P . . 475 U.S. 717 (1986)

57

Fogel v. Chestnutt. 668 F.2d 100 (2d Cir. 1981),

cert, denied sub nom. Currier v. Fogel. 459 U.S. 828 (1982).. .37

General Motors Corp. Engine Interchange Litigation.

594F.2d 1106 (7th Cir.),

cert, denied. 444 U.S. 870 (1979.)
—iii—

31-32

Georgine v. Anchem Products. 83 F.3d 610, 617 (3d Cir. 1996), aff'd. sub nom. Anchem Products, Inc. v. Windsor. 521 U.S. 591 (1997)

3, 33

Handschu v. Special Services Division. 787 F.2d 828 (2d Cir. 1986) . . . . 23

Harborside Refrigerated Services, Inc. v. Vogel,

959 F.2d 368 (2d Ck. .1992)

48

Huerta v. East River Housing Corp.. 813 F.2d 580 (2d Cir. 1987)

57

Holmes v. Continental Can Co.. 706 F.2d 1144 (11th Cir. 1983)
In re Painewebber Limited Partnerships Litigation, 171 F.R.D. 104 (S.D.N.Y. 1997), aff'd. on opinion below, 117 F.3d 721 (2d Cir. 1997)

31-32 27

Johnson v. Zerbst. 304 U.S. 458 (1938)

55

Kalisch-Jarcho v. City of New York, 58 N.Y.2d 377 (1983)

55

Lake James Community Volunteer Fire Dep't Inc.

v. Burke County. 149 F.3d 277 (4th Cir. 1998)

50-52

Lewis v. Casey. 518 U.S. 343 (1996)

45

Malchman v. Davis. 706 F.2d 426 (2d Cir. 1983)

24, 25, 29

Marisol A. v. Giuliani. 126 F.3d 372 (2d Cir. 1997)

4, 7, 37

Matter of Eugene F. v. Gross (Sup. Ct., NY Co.), Index No. 1125/86 . . 43

Maywalt v. Parker & Parsely Petroleum Corp.,
67 F.3d 1072 (2d Cir. 1995) Patterson v. Newspaper & Mail Deliverers' Union.
514 F.2d 767, 771 (2d Cir. 1975), cert, denied. 427 U.S. 911(1976)

23 46, 57

Robertson v. National Basketball Ass'h.. 622 F.2d 34 (2d Cir. 1980) . . . . 54

-iv-

i ••'

Ross v. A.H. Robins Co.. Inc.. 700 F.Supp. 682 (S.D.N.Y. 1988)

25

Shults v. Champion Int'l Corp.. 821 F.Supp. 520 (E.D.Tenn. 1993) . . 54-55

TBK Partners. Ltd. v. Western Union Corp.. 675 F.2d 456 (2d Cir. 1982)51-54

Town of Newton v. Rumery. 480 U.S. 386, 392 (1987)

50, 55

United States v. Allegheny-Ludlum Industries.

517 F.2d 826 (5th Cir. 1975)

53

United States v. Bank of New York. 14 F.3d 756 (2d Cir. 1994)

41

United States v. Cirami. 563 F.2d 26 (2d Cir. 1977)

36

United States v. Adegbite. 877 F.2d 174 (2d Cir. 1989)

36

Virgin Atlantic Airways Ltd. v. National Mediation Bd.,

956 F.2d 1245 (2d Cir. 1992)

41

Wilder v. Bernstein. 78 Civ. 957, S.D.N.Y

11, 13, 43, 47

Wilder v. Bernstein. 848 F.2d 1338 (2d Cir. 1988)

24

Williams v. General Electric Capital Auto Lease Inc.. 159 F.3d 266 (7th Cir. 1998)

51-54

-v-

PRELIMINARY STATEMENT This is an appeal from the approval of settlement agreements between the class of Marisol plaintiff children and the City and the State. The appeal is taken by six members of the plaintiff class ("the Joel A objectors" or "Joel A plaintiffs" or "appellants"), who seek to represent gay, lesbian, bisexual and transgendered foster children. The Joel A. plaintiffs filed their own lawsuit for damages in January, 1999 and simultaneously filed objections to the Marisol settlements on the grounds that those settlements' terms would preclude the Joel A plaintiffs from also pursuing their suit for systemic equitable relief, at least for the next two years. At the fairness hearing on the Marisol settlements, the District Court permitted the Joel A objectors to intervene for the limited purpose of appealing from the Court's approval of the settlements. The Marisol settlement with the City ("City Settlement"), which was reached only on the eve of trial after two and a half years of hard-fought discovery, takes a system-wide approach to reform of the New York City Administration for Children's Services ("ACS") (728-54).1 Rather than imposing specific tasks to give specific relief to one or another category of children, the City Settlement establishes an Advisory Panel of distinguished child welfare experts who are to make a rigorous review of ACS's reform efforts in five major practice
Numbers in parentheses refer to pages of the Joint Appendix. -1-

areas, make public recommendations for any changes or additions, and make subsequent reviews to determine if ACS is acting in good faith to continue reforming its operations and performance in those areas. If the Panel should find that ACS is not acting in good faith, the City Settlement establishes a streamlined mechanism for the Marisol plaintiffs to bring the issue to the District Court. ACS has agreed to give the Panel complete cooperation and unfettered access to all its documents and personnel for these reviews. In return for this unprecedented openness, and in order to be able to evaluate its operations candidly and to implement the Advisory Panel's recommendations without being subject to potentially conflicting court decisions on the same topics, ACS bargained for assurances that its operations will not be disrupted by new system-wide lawsuits brought by Marisol class members during the term of the agreement, which concludes December 15, 2000.
Thus, the City Settlement contains not only the standard releases of injunctive claims based on past events, but also covenants by the plaintiff class not to sue for system-wide equitable relief based on events occurring during the twoyear term of the agreements. Damage actions or individual suits for injunctive relief tailored to individual plaintiffs are not barred at any time.
The Joel A objectors grandiosely frame their appeal argument as a choice between solving a major social problem - the long-awaited reform of the
-2-
'•"•"!

New York City child welfare system - and "upholding the institutional values of the courts," citing Georgine v. Anchem Products. 83 F.3d 610, 617 (3d Cir. 1996), aff'd. sub nom. Anchem Products. Inc. v. Windsor. 521 U.S. 591 (1997). That frame does not fit these facts. Nor does Anchem dictate the result of, or even an approach to, this appeal.
The institutional value that the objectors purportedly seek to uphold seems to be the proper definition of a plaintiff class in the context of a settlement. They complain that the Marisol class is so diverse that (a) it should have had separate representation of its subclasses in the settlement negotiations, Appellants' Brief ("App. Br.") Point I; and (b) the Marisol named plaintiffs lacked standing to assert the claims that the Joel A members of the class now want to assert in a separate lawsuit and therefore the Marisol plaintiffs could not adequately represent them in the Marisol litigation or its settlement; App. Br. Point II-B. They also object (c) that these "unrepresentative" negotiators accepted overbroad covenants not to sue, without adequate consideration, in that the consideration did not include specific relief for the Joel A class members; App. Br. Points II-A, II-C, HI.
These objections are unsound and come too late. Unlike the purelyfor-settlement class in Anchem. supra, the Marisol class was certified early in the litigation, and certification was upheld by this Court long before settlement was even on the horizon. Defendants, both City and State, argued vigorously at that
-3-

time that the proposed class was too diverse for a proper class action, citing many of the same cases and making many of the same arguments that the Joel A objectors make now. Marisol A. v. Giuliani. 126 F.3d 372, 376-78 (2d Cir. 1997). After considering these arguments, this Court found that, since plaintiffs' injuries all derive "from a unitary course of conduct by a single system" (126 F.3d at 377), a single class is appropriate even though the injuries differ in nature. The adequacy of the named plaintiffs as representatives of the class was also specifically upheld, with this Court explaining: "Plaintiffs seek broad based relief which would require the child welfare system to dramatically improve the quality of all of its services.... In this regard, the interests of the class members are identical." Id, at 378.
Thus, the objectors' arguments that the class was too diverse for the named plaintiffs adequately to represent the Joel A plaintiffs and their claims have already been decided and denied. That decision is the law of the case and there is no reason to revisit it now. See Point H-A, infra.
Objectors' remaining argument, that the negotiators settled for inadequate relief without sufficient consideration, appears to be a divergence in philosophy between Joel A counsel and Marisol counsel over what relief would be "adequate" for the entire class. The Joel A objectors would have preferred a specific injunction directed to their own issues, rather than the system-wide reform
-4-

that class counsel chose as the more effective approach to ensuring benefits to all categories of plaintiffs in the class. The District Court exercised its discretion in approving the systemic settlement, based both on the statements and submissions at the fairness hearing and also on the Court's own decades-long experience with other piecemeal, and largely failed, approaches to reform of the New York City child welfare system. The covenants not to sue were perfectly lawful, and here, were necessary in order to get the concessions from defendants that will allow the system-wide reform package to be implemented. See Points I, II-B, infra.
Since all the requirements for approval of a class-action settlement have been met, the District Court's discretion in approving the settlement should be upheld. See, Point I, infra.
ISSUES PRESENTED 1. When the settlement of a class action, whose certification was litigated and affirmed during the litigation, is challenged by certain plaintiffs who now argue that the class is too diverse and the named plaintiffs lacked standing to represent them, does the District Court abuse its discretion by following the law of the case and upholding the settlement as adequately negotiated?
-5-

2. When the parties to a class action settlement agree on an approach to reform of defendant agency's entire infrastructure, which includes limited covenants not to sue for systemic equitable relief on the class action issues during the two-year settlement term, does the District Court abuse its discretion by approving the settlement over objections from a group of plaintiffs who would prefer a different type of remedy, without such covenants?

STATEMENT OF FACTS

A,

The Marisol Litigation

1. Complaint and Class Certification

On December 12, 1995, eleven children filed a complaint entitled

Marisol A et al. v. Giuliani, et al.. alleging that they had been injured by various

aspects of the New York City child welfare system and seeking declaratory and

injunctive relief, including a Court-appointed receiver and unspecified injunctive

orders, but not damages (10, 77-189).

Two days later, on December 14, 1995, the plaintiffs moved to certify

a class (10), defined as "[a]ll children who are or will be in the custody of the

New York City Administration for Children's Services ("ACS"), and those

-6-

children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is or should be known to ACS."2
Defendants vigorously opposed class certification, and also moved to dismiss the majority of the claims asserted in the complaint. The District Court (Robert J. Ward, J.), denied the motion to dismiss, for the most part, and granted certification of the class, in an order dated June 18, 1996 (17, 190-253).
Judge Ward later certified for interlocutory appeal the portion of the June 18 decision dealing with class certification and defendants appealed to this Court, which accepted the appeal as of September, 1996 (18-20). Plaintiffs opposed the appeal as untimely sought, all the way to the Supreme Court, which denied certiorari: the appeal was argued and this Court's opinion issued in September, 1997. Marisol A. v. Giuliani. 126 F.3d 372, 375 (2d Cir. 1997). This Court affirmed certification of the class as proposed, and further directed the District Court to certify subclasses for purposes of trial management. IcL (37).
Thereafter, three subclasses were proposed by plaintiffs and ultimately, after motion practice, approved by the Court (43, 53, 56, 60, 422-40).

2

In January, 1996, Mayor Giuliani created a new child welfare agency,

the Administration for Children's Services ("ACS"), to replace the former Child

Welfare Administration ("CWA"). By order dated March 12, 1996, all references

in the Marisol litigation to CWA were replaced with ACS, and ACS's

Commissioner Nicholas Scoppetta was substituted for CWA's Kathryn Croft (16).

-7-

Subclass Three includes all children in the custody of ACS, and lists the named plaintiffs representing each of the subclass's seven stated legal issues, which include issues of appropriate placements and services for foster children of all types (426-27). (The Joel A objectors concede that they are members of Subclass Three (1369).)
2. Discovery; Motion Practice Raising Issues of Standing For two and a half years prior to settlement of this litigation, ACS was subject to far-ranging system-wide discovery, much of which was the subject of motion practice (17-57). Some 200 days of depositions were taken, including depositions of all of ACS's executive staff as well as many lower-level caseworkers, supervisors, and managers. In response to equally wide-ranging document requests, ACS produced over 100,000 documents and answered more than two dozen sets of interrogatories, covering all aspects of ACS's operations from 1994 to the present (968). In May, 1997, plaintiffs moved by Order to Show Cause with a Temporary Restraining Order for injunctive relief concerning conditions at the ACS Pre-Placement Center, where'many children are processed for entry into foster care (28). The City opposed, arguing, in part, that the Court lacked jurisdiction over this claim because, since no named plaintiff claimed any injury from Pre-Placement conditions, no plaintiff had standing to raise that claim (266).
-8-

However, the District Court signed the TRO and the parties entered an Interim Stipulation concerning Pre-Placement, which was ordered by the Court (32, 266).
As time went by, several of the individual plaintiffs had changes in their circumstances as stated in the Complaint: Lawrence B died of ADDS, Marisol A was adopted by her foster mother, Shauna D disappeared, Steven I aged out of foster care (451). Early in 1998, City defendants moved to dismiss them on grounds their claims were now moot and they lacked standing; the motion was denied (51, 63, 451-61). Plaintiffs had already moved to intervene additional plaintiffs Danielle J and Walter and Richard S, to exemplify claims of more recent vintage or additional types of injuries; their motion was granted (43, 65, 442-49). After plaintiffs had added additional counsel in May, 1997, they also noticed and received discovery (over defendants' objections, denied at conferences in July and December, 1997) on an additional 18 individuals, not representative plaintiffs, to serve as further exemplars of various specific types of injuries and claims (28, 38).
In December, 1998, plaintiffs filed a motion to hold the City in contempt of the Interim Order and Stipulation concerning Pre-Placement (40). The City opposed and moved to vacate the Interim Stipulation, again arguing, in part, that since no named plaintiff had been injured by conditions at Pre-Placement, there was no representative plaintiff with standing to raise such a claim (41, 254368). After full briefing, oral argument, and a five-day hearing on the contempt
-9-

motion, the Court found that the City was not in contempt. However, the Court also denied the City's motion to vacate the Interim Stipulation and Order, holding that it did have jurisdiction over the Pre-Placement claims because several named plaintiffs had alleged injuries related to placement practices generally (61, 63, 369421, 470-88).
3. Trial Preparations By mid-July, 1998, in preparation for the trial (then expected to start on July 27, 1998), proposed findings of fact were prepared - 7 volumes, consisting of over 2,700 pages, by plaintiffs; 2 volumes, over 300 pages, by the City, 1 volume by the State (64, 69, 489-543). The joint pre-trial order listed 133 witnesses for plaintiffs (many of them employees of the City and State), plus 12 experts, and hundred of witnesses for defendants, plus 13 experts (1418-19). The District Court ordered the parties to limit their trial presentations to 300 hours each - a total of at least five months (968, 1418). The parties also filed proposed conclusions of law on the multiple constitutional, statutory, and common-law claims asserted in the complaint (545628), as well as statements of the claims and defenses that remained to be tried after the District Court's various rulings on interim motions to dismiss or add claims (629-68). At the request of the District Court, the plaintiffs and the City
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defendants also filed briefs contesting the correct standards of review to be applied

to the evidence at trial (674-727).

B,

The Marisol Settlements

1. Postponements of Trial Date

Two days before trial was to start, the parties informed the District

Court that settlement discussions had begun. The Court granted a one-week trial

adjournment (669-71). A week later, the parties sought and were granted a further

adjournment to September 16, 1998 (672-73). On September 16, the District

Court further adjourned the trial to October 6 (70); on September 28, the date was

extended to October 8 (70); on October 8, the trial was adjourned without date

(71). Pre-trial conferences, reporting on progress toward settlement, were held

on October 15, 19, November 18, 20, 30, and December 2, 1998 (71). On

December 2, the City and State filed their Settlement Agreements (71, 728-79).

2. The City Settlement

The City Settlement was informed, in part, by the parties' knowledge

of the types of injunctive relief entered against other child welfare agencies around

the nation, as well as their own experience in New York City with Wilder v.

Bernstein, 78 Civ. 957, S.D.N.Y., which was settled in 1988 but had never

achieved its intended results (730, 1355). The City Settlement begins with an

acknowledgment of some of the substantial steps toward system-wide reform taken

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by ACS in the short time since its creation, and acknowledges that "continued reform" will be "substantially advanced" through the "novel and innovative resolution" contained in the City Settlement (731).
The major innovation of the City Settlement was creation of an Advisory Panel of four distinguished child welfare experts who agreed to personally undertake a two-year review of ACS, make public recommendations for any necessary changes or additions to its reform efforts, and do periodic assessments of its progress (733-39). Most significantly, ACS agreed to cooperate fully with the Panel's investigations, and to give the Panel full access to all "information, documents, and personnel as it may request" (734). If the Panel, in its periodic reviews, finds that ACS is not acting in good faith in any area, the plaintiffs may bring the matter to the District Court for relief, with the Panel's report as prima facie evidence (739-40).
Before coming to this agreement, the parties had asked the Panel members to do a "test run" by completing an initial report in one large area of ACS's operation - "permanency issues" (how to decide whether a foster child should be returned home or adopted'or trained for independent living, and how to implement the chosen goal most effectively and quickly) (734-35, 1354). The test run convinced ACS that the Panel members were trustworthy and constructive and would help build on and continue the progress already being made, rather than
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requiring ACS to leave its reform agenda unfinished and start over with some different agenda (734, 1363).
The City Settlement specified four additional areas for the Panel's review, including foster care placement, monitoring the private agencies who provide foster care services, tracking front-line caseworkers, and supervisory performance (735). The City Settlement specifically provides that if the Panel observes or learns about other ACS areas that it believes need attention, it can incorporate them in its review, either formally or informally (735-36).
The parties recognized that litigation and adversary procedings are not the most effective or efficient way to achieve reform, and the City Settlement minimized such activities so far as possible (739, 1355, 1362). (As noted above, if the Advisory Panel finds that ACS is not acting in good faith in any area under its review, further litigation will result on that issue.) (739-40).
Further minimizing the litigation approach to reform, and recognizing the shortcomings of long-term court supervision from experience with the longrunning Wilder case,3 the parties also agreed to seek dismissal of that case. The

3

Wilder was originally brought in 1973 to eliminate race and religion-

based foster-care placements; its settlement decree in 1988 established numerous

special procedures to govern ACS's placement and initial child evaluation

processes. Its specifics were further expanded by judicial interpretations over the

years that, e.g.. regulated new ACS procedures (kinship foster care, Child

Evaluation Specialists) that did not exist when the consent decree was entered.

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City Settlement incorporates the principles established by Wilder into the Marisol agreement, for Panel review and input as part of the placement topic (740-44).
If ACS was to receive guidance from the expert Panel and make its operating decisions in light of the recommendations, with the possibility of being hauled back to court if there was a finding of bad faith, it did not want to face the possibility of additional systemic-reform lawsuits that might result in contradictory orders during the settlement term. Therefore, in return for its agreement to open itself to the expert Advisory Panel in this unprecedented way (and further to minimize the distractions of system-wide litigation with which it was all-toofamiliar by then), ACS insisted that plaintiffs agree to covenants not to sue for system-wide equitable relief during the term of the Agreement (746-47). That term is scheduled to end on December 15, 2000 (745).4 Finally, the City Settlement contains the usual release of all system-wide equitable claims (not damage claims or individual equitable claims seeking only individual relief) that were or could

4

Technically, there are three covenants not to sue: U 41 parallels the

usual release of all claims (here limited to equitable claims) related to the Marisol

Complaint based on events up to the Court approval of the settlement; the

agreements in 11 42 deal with events that may occur during the two-year settlement

term. In 11 42a, plaintiffs agree not to seek systemic equitable relief for any such

events that are related to the narrower set of claims that were still in the case at

the time of the Pre-Trial Order, and in 1142b, they agree to defer, until after the

term is up on December 15, 2000, suits seeking systemic equitable relief on claims

for events in the two-year term that are not related to the pre-trial order claims.

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have been stated in the Marisol Complaint based on events through the date of Court approval of the Settlement (750-51). It also contains a release that will go into effect at the end of the Settlement term, releasing any system-wide equitable claims that were or could have been stated in Marisol (as limited by the Plaintiffs' Statement of Claims to be Tried in the pre-trial order), based on events occuring during the term of the Settlement (630, 751). Again, individual claims for damages or for individual equitable relief are not released (751).5
3. Notice to the Class. Responses Received After the District Court reviewed the settlements, it ordered that notice be sent to the members of class, for comments by January 15, 1999 (71, 780-99). Eight written comments were received, only three of them raising direct objections (1299-1342, 1420). One of the objections came from the Joel A plaintiffs, who filed their lawsuit on January 15, 1999, seeking specific injunctive relief requiring ACS to provide placements and services specific to the needs of

5

The State Settlement's terms will not be described here, other than to

say that the State agreed to continue its oversight duties as to ACS by, inter alia,

establishing an oversight office in New York City dedicated to ACS (758-61), and

by making a series of case record reviews in various practice areas, which will be

provided to plaintiffs' counsel (766-67). The State also agreed to continue to

improve those aspects of child welfare practice that are its responsibility, including

the State Central Register which receives all initial calls of suspected child abuse

or maltreatment for transmission to local offices including ACS, and the statewide

computerized information system used by ACS (763-66, 768-69). The State

Settlement also contained the usual releases and a covenant not to bring systemic

equitable litigation during the term of the Agreement (775-76).

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gay, lesbian, bisexual and transgendered foster children, including training supervisors to better protect this category of foster children from harm by their peers and caretakers. The Joel A plaintiffs also submitted a memorandum in opposition to the Marisol settlement on the grounds that it might be interpreted to bar their class action, with a request to intervene in order to object to the settlement for that reason (1341-43).
The parties thereupon submitted their comments supporting the settlement, and opposing the Joel A. request and objections (912-1298).
4. Fairness Hearing On January 22, 1999, the District Court held an all-day hearing on the fairness of the proposed settlements (1350-85). For the parties, speaking in support of the settlement were three of plaintiffs' counsel, from three of the four firms that had represented plaintiffs; the General Counsel from ACS, and an Assistant Corporation Counsel for the City; the General Counsel for the State's Office of Children & Family Services, and an Assistant Attorney General; and two attorneys representing foster care agencyintervenors in the Wilder case (1351, 1352-58, 1360-66). Other witnesses speaking in favor of the settlement were the president of the Citizens Committee for Children, the director of an agency serving children,
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and the director of the Legal Aid Society (who also stated reservations about the covenants not to sue; see Decision, infra) (1358-60, 1367-68).
Witnesses in opposition to the settlement were a grandfather of children in ACS custody (who did not discuss settlement terms), the attorney for the Joel A objectors, and a community representative from Harlem (who had not read the settlements and spoke generally) (1365-66, 1368-74, 1382-83).
At the Judge's request, a representative of the Advisory Panel created by the City Settlement Agreement testified in favor of the settlement, saying, among other things, that he and the Panel felt they "anticipate having more power to do good in the role that is set forth in this agreement than we would were we to be invited to serve as receiver or as trustee of this agency" (1374-75), in part because the Panel was "created by the mutual agreement of heretofore adversarial parties" and also "demands that accountability for change and for agency performance ultimately remain only [on] the City and the leaders it has appointed to head ACS" (1375).
After argument on the Joel A objectors' motion to intervene, the District Court endorsed the motion to the extent of granting intervention solely for the purpose of appealing from approval of the settlement and noted that the remainder of the motion had been withdrawn in open court (1344, 1382).
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At the conclusion of the fairness hearing, the Judge announced that he found the settlements "fair, reasonable and adequate" and would approve them, with a written opinion to follow and judgment to be settled (1383).
THE DECISION BELOW The District Court issued its written opinion March 31, 1999 (13891448). After reciting the history of the litigation and describing the City and State Settlement Agreements and associated orders (1394-1415), Judge Ward discussed the factors that led him to approve the settlements. The Court began by noting that the basic considerations in assessing whether the settlements were "fair, reasonable and adequate," are (1) a comparison of the terms of the settlement against the likely result of a trial, and (2) an assessement of the attorneys' vigor and experience and whether there appeared to be any collusion or coercion in the negotiating process; he further noted that these points are to be analyzed using nine factors set forth in City of Detroit v. Grinnell Corp.. 495 F.2d 448, 463 (2d Cir. 1974) (the "Grinnell factors") (1415-17). Judge Ward found that these factors were all met (1417). First, the Judge found 'that the litigation was complex "with many difficult and unsettled legal questions" (1417), raising concerns across the entire spectrum of ACS operations (1418). Judge Ward noted that, with 20 years' involvement in child welfare issues, he "would not hesitate to say that Marisol and
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Wilder present some of the most complex issues" in child welfare (1418). He observed that the litigants had incurred substantial expenses in their extensive motion practice and the contempt hearing; the trial would be extremely costly and would last at least five months - the longest non-jury case before Judge Ward in his 26 years - and would also involve extensive post-trial briefing (1418-19). He concluded that the expense, complexity and duration factors weighed in favor of approval of the settlement (1419).
Second, even with widespread and adequate notice to the class, only eight comments were received, only three raising direct objections (1420). Third, the Court noted that the parties entered settlement talks only at the conclusion of discovery when they had ample data and a "thorough understanding of the complexity of the issues and the strengths and weaknesses of their claims and defenses" (1420-21).
Fourth and fifth, the Court found the risks of litigation were serious enough that, even though plaintiffs "would present a compelling case," the defendants would present both factual and legal arguments "sufficient to cause serious deliberation by the Court"'(1422). Further, the relief that the Court believed it would be able to grant was outweighed by the relief granted by the settlements (1422-25). Because the City had already begun reforming ACS, and the Court felt that no receiver could have done a better job than Commissioner
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Scoppetta, "the Court may not have been in a position to provide for more relief than simply encouraging continued effort and improvement by ACS" (1423). The Court was impressed with the City Settlement's provisions giving open access to ths expert Advisory Panel on "a broad range of ACS's operations...including any subjects that are related to the enumerated areas specified...and any additional subject areas [the Panel] finds relevant" (1424), and the State Settlement's establishment of a monitoring office solely for ACS (1423-24). The Court also favorably noted the "streamlined procedure" to obtain judicial relief in case of a Panel finding of bad faith by ACS (1424). The Court stated flatly that "these voluntary Settlement Agreements are more favorable than any remedy that could have been imposed by the Court at the end of a trial" (1425).
The remaining Grinnell factors were found either to weigh for approval or to be addressed to damages and thus irrelevant here (1425-26).
The Court next found that the negotiations were conducted by experienced counsel, at arm's length (1426-27). Judge Ward particularly noted that plaintiffs' counsel, having litigated the Wilder case (before him (1432)) for more than 20 years, "had first-hand Icnowledge of what approaches do and do not improve the New York City child welfare system" (1427).
Finally, the Court considered the written objections, from the Joel A plaintiffs (1433-42) and two other objectors (1442-46), as well as the written
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comments generally (1446-48). As to the Joel A objections, he noted first, that they seemed to oppose a "basic tenet of the City Settlement agreement which the Court finds to be an attribute favorable to the plaintiff class" (1436), namely, the mandate to the Advisory Panel to review ACS's operations while being "also given some discretion in the scope of the review" (1436).
Next, the Court rejected the Joel A objectors' arguments that the relief provided by the settlements was either illusory or oppressive to the plaintiff class (1436-38). The Court noted that the Advisory Panel's reviews will include placement, contract agency performance in provision of services, and front-line practices affecting all areas for children in ACS's custody - all of these being issues for Subclass IJJ, of which the Joel A plaintiffs are members (1436-37). The Court found no cause for concern in the lack of specific deadlines for the Panel's reports; given its expertise and the overall time frame, this factor permits it flexibility to fashion comprehensive reports (1438).
As to the objections to the covenants and releases, the Court stated that it "has given considerable thought to these provisions and does not find them to be unfair or oppressive" (1439). " Individual plaintiffs can sue at any time for relief tailored to their concerns. Also, the Court found that it was reasonable for the City to require some protection from class suits in exchange for its "unprecedented" openness to the Panel (1439). In response to the Legal Aid
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Society's concerns about the covenants, the Court also reiterated its understanding that individual equitable suits, and all damages actions, could still go forward (1442-44).
As to the Joel A objection that no Marisol named plaintiff had standing to represent the Joel A claims because none shared the same bias-related injuries, the Court pointed out that "the adequacy prong of class certification...has already been decided...and affirmed" (1441). "[Tjhere are numerous children who have specific concerns regarding personal characteristics, attributes, conditions, or life positions" including teenage mothers, or children who have placement problems due to race or religion (1441-42). The named plaintiffs have standing to represent all of them, and "the Court does not find the lack of a named plaintiff who is identical to the proposed named plaintiffs in Joel A to be a reason to disapprove of the Settlement Agreements" (1442).
For all these reasons, the Court found the settlements fair, reasonable and adequate, and approved them (1448). Final judgments dismissing the Marisol claims and retaining jurisdiction pursuant to the Settlement Agreements, and dismissing the Wilder litigation, wefe entered March 31, 1999 (1449-54).
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ARGUMENT
POINT I THE DISTRICT COURT'S FINDING THAT THE CITY SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE, BASED ON THE COURT'S LONG INVOLVEMENT WITH THE CITY'S CHILD WELFARE ISSUES, WAS A PROPER EXERCISE OF DISCRETION AND MUST BE UPHELD. A. Standard of Review A District Court's approval of a class action settlement will be overturned only on a clear showing that the District Court abused its discretion. See, e.g.. Handschu v. Special Services Division. 787 F.2d 828, 833 (2d Cir. 1986), in which this Court explained: "The trial judge knows the litigants and the strengths and weaknesses of their contentions and is in the best position to evaluate whether the settlement constitutes a reasonable compromise." See also, Maywalt v. Parker & Parsely Petroleum Corp.. 67 F.3d 1072, 1079-80 (2d Cir. 1995) (the District Court's disposition is to be accorded "considerable deference"). B. Class Action Approval Standards Are Met.
Rule 23, FRCP, requires that a class action settlement be approved by the court before it is effective. To approve a settlement, the district court must find that the proposal is "fair, adequate and reasonable" to protect the interests of the plaintiff class. County of Suffolk v. Long Island Lighting Co.. 907 F.2d 1295, 1323 (2d Cir. 1990); Maywalt. supra.
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In a suit seeking injunctive relief rather than damages, the major factors that must be reviewed include (1) the substantive terms of the settlement compared to the likely result of a trial, and (2) the negotiating process - the vigor of the litigation, counsel's experience-level, and any coercion or collusion that may have marred negotiations. Malchman v. Davis. 706 F.2d 426, 433 (2d Cir. 1983), cert, denied. 475 U.S. 1143 (1986); Wilder v. Bernstein. 848 F.2d 1338, 1345 (2d Cir. 1988). These factors are essentially distilled from a longer list applicable to a damages settlement, as set out in Grinnell. supra. 495 F.2d at 463, and cited in County of Suffolk, supra, 907 F.2d at 1323-24.
The District Court found, correctly, that all applicable factors favored settlement. Appellants do not object to the Court's findings in most respects; their objections will be discussed in Point II, infra. As to the substance of the settlement agreements (measured by the Grinnell factors) and the negotiating process, the Court's findings must be upheld, as briefly discussed here.
1. Grinnell Factors on Substance Are Met. a. The Complexity. Expense, & Likely Length of the Trial
District Court Judge Robert Ward, with 20 years' experience in such issues, found that the Marisol and Wilder cases (which have overlapping classes and issues) "present some of the most complex issues in the child welfare arena" (1418). The parties proposed some 3,000 pages of findings of fact and extensive
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conclusions of law, all hotly contested; even the legal question of the correct standard of review of the facts had to be separately briefed. The Court was trying to limit the trial to five months, which would still make it one of the longest nonjury cases in the Southern District of New York. Expenses, both to the parties and to the judicial system, of a trial of that magnitude would be enormous. This factor is a strong weight in favor of approving the settlement. Malchman. 706 F.2d at 430; GrinnelL 495 F.2d at 467.
b. Class's Reaction to the Settlement The District Court noted that the notice to the class was widespread and adequate, but that only eight comments were received, of which only three directly objected to any part of the settlement. The current appellants, a group of six foster children, were the only class members (rather than parents or other adults) to object. None of the other 100,000-plus children in the class registered any objections. Such lack of objection weighs for approval of the settlement. Ross v. A.H. Robins Co.. Inc.. 700 F.Supp. 682, 684 (S.D.N.Y. 1988).
c. Stage of Proceedings and How Much Discovery Done Discovery in this case was massive, with City defendants producing more than 100,000 pages of documents and the parties taking some 200 days of depositions. Both parties had also engaged experts - two dozen, between them who studied ACS and prepared detailed reports on many aspects of its operations.
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Pre-trial submissions were completed. The parties were in position to know not only the facts, but also the risks they faced in trying to establish their legal claims
•r
and defenses. Settlement occuring at this stage of a litigation is more likely to represent a realistic and viable compromise than settlement at an earlier stage, and is appropriate for approval for that reason. Grinnell. 495 F.2d at 453 (where discovery had been conducted for three years and all pretrial motions were completed, settlement was properly approved).
d. Risks of Establishing Liability The District Court flatly stated that it could not "even begin to accurately assess the possible outcome of this case" (1421). There were no stipulated facts; all the thousands of proposed facts remained at issue. Although the plaintiffs expressed confidence that they would prevail at trial, defendants were sharply contesting the legal bases of plaintiffs' claims, on some issues pointing to decisional law changes after the District Court's denial of their original motion to dismiss (618, 620, 624-27, 707-08, 716-27). The District Court noted that although the plaintiffs would present "a compelling case," the defendants' presentations would be "sufficient to cause serious deliberation by the Court" (1421-22). Clearly, the case was not the sure victory that objectors suggest it would be, especially given the risks on the inevitable appeals (1362).
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-vr

The District Court correctly noted that it was not required to resolve these issues, but to weigh the likelihood of plaintiffs' success against the relief offered. It concluded that even if plaintiffs had a "strong chance of success at trial with respect to liability" (1422), the relief granted in the settlement was sufficiently favorable to weigh on the side of approval. This balance was correct. See, e.g.. In re Painewebber Limited Partnerships Litigation. I7l F.R.D. 104 (S.D.N.Y.), aff'd. on opinion below. 117 F.3d 721 (2d Cir. 1997) (where legal issues were hotly contested and many of plaintiffs' witnesses were defendants' employees and thus hostile, settlement to avoid risks of litigation was approved).
e. Risks of Establishing Remedies The District Court was particularly emphatic on this point, noting that even if plaintiffs established liability, the Court was unlikely to be able to grant as much relief as the settlements contain. The Court flatly stated that it "does not find it likely" that plaintiffs would have been granted the receiver over ACS that they sought, since "no receiver would do a better job than that done by the current Commissioner of ACS, Nicholas Scoppetta" (1423). The Court also noted that the City had already been working to reform the child welfare system, and that it was likely the only remedy plaintiffs would have received would be a declaration "encouraging continued effort and improvement by ACS" (1423). The Court noted that the City Settlement's
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provision for a panel of experts, with unfettered access to ACS personnel and documents in virtually its entire operation, goes beyond what the Court was likely to have ordered. Later Judge Ward noted (doubtless in light of his long experience with the Wilder litigation and its information-seeking activities), that such openness was "unprecedented" (1439). He also pointed to the provision for a "streamlined procedure" to seek judicial relief if the Panel finds that ACS is not acting in good faith, with the Panel's findings as prima facie evidence of ACS's bad faith. Given that these terms exceed what the Court would have granted in injunctive relief, the settlement merits approval. Grinnell. 495 F.2d at 457 (where settlement granted as much as the District Court's estimate of potential recovery, settlement was correctly approved).
f. Risks of Maintaining the Class Through the Trial The District Court noted that since class certification had been affirmed and subclasses had been created as directed by this Court, it was unlikely that the class would have been decertified during trial.6 This is not a class certified only for purposes of settlement. Claims of overbreadth, and the alleged lack of standing of some named plaintiffs, making them unrepresentative, had

6

Indeed, the only foreseeable decertification of the class would occur

if this Court disapproved the City Settlement on the grounds of class overbreadth

and lack of representativeness by the named plaintiffs, as objectors request.

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already been litigated; the court's decisions denying these allegations had become law of the case for purposes of the trial. See, Point H.A., infra.
2. The Negotiating Process Meets Applicable Standards. The conduct of the negotiations likewise weighs in favor of settlement. The District Court is familiar with plaintiffs' counsel from having presided over the Wilder case for the past 20 years, and found them to be "dedicated to and highly experienced in children's issues" (1426). Further, during the two and a half years of the Marisol litigation, the Court observed the contentious and always adversarial interactions between plaintiffs' and defendants' counsel, and concluded that the settlement agreements were reached "after extensive, arms-length negotiations between experienced counsel" (1427). The Court also specifically noted the "high level of experience that counsel for all parties have in child welfare issues and litigation seeking institutional reform" (1427). These factors led the Court to reject any inference of collusion or imbalance leading to coercion. Appellants do not appear to be suggesting that counsel engaged in improper collusion or coercion. Where there is no question of the attorneys' vigor or experience in the issues negotiated, the District Court's finding that negotiations were appropriately conducted should be upheld. E.g.. Malchman. supra. 761 F.2d at 903-04.
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POINT II OBJECTIONS TO THE CLASS DEFINITION AND ADEQUACY OF REPRESENTATIVE PLAINTIFFS AND THEIR AGREEMENT TO RELEASE OR DELAY NEW SYSTEMIC LAWSUITS FOR TWO YEARS IN EXCHANGE FOR TOTAL INFRASTRUCTURE REFORM WERE RIGHTLY REJECTED BY THE DISTRICT COURT.
The Joel A objectors, who are members of the plaintiff class, object to one aspect of the Settlement agreements: the releases of past equitable claims and the covenants by the plaintiff class not to sue for systemic equitable relief on Marisol claims that ripen in the two years that the settlement agreement is in effect. The Joel A class members apparently concede that the settlement precludes them from immediately pursuing their lawsuit as an action for separate systemic equitable relief on their particular issues. Appellants' Brief ("App. Br."), p. 27: "The Settlement Agreements...prevent...Class members from ever seeking systemic relief...for two years following the date of the Agreement."
They try to position their objection under the acceptable reasons to object to a class action settlement by claiming that the settlement negotiating process was flawed on account of an excessively broad definition of the class. They argue that the class, even when broken into subclasses, is so diverse that the named plaintiffs have different issues than they do and thus could not, and did not, adequately represent them in settlement. App. Br. Points I, II-B. The result of
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this inadequate representation, they argue, is that the negotiators settled for

overbroad releases and covenants; they argue further that this concession was

based on inadequate consideration. App. Br. Points II-A, -C, IE.

The District Court considered all of these arguments and rightly

rejected them. That decision was well within the District Court's lawful discretion

and must be upheld.

A.

The Class Definition and Adequacy of Its Plaintiffs Was Upheld on

Appeal and the Named Plaintiffs Adequately Represented the Objectors' Subclass in Negotiations.

1. No need for separate subclass counsel.

One fallacy in objectors' argument is immediately apparent: although

their claim in Point I is that there was no showing that the subclasses were

separately represented in negotiations, that factor is irrelevant.

Objectors cite no authority requiring separate subclass representation

in settlement negotiations as a per se rule. The Anchem case, on which they

principally rely, dealt with a class certified solely for settlement purposes which

did not even have subclasses; the Supreme Court's decision was to refuse to certify

the class, not to order creation of separate subclasses, much less separate counsel.

(See further discussion of Anchem. infra, at pp. 34-35.) And neither of the cases

also cited (App. Br. at pp. 33-35), Holmes v. Continental Can Co.. 706 F.2d 1144

(11th Cir. 1983) nor General Motors Corp. Engine Interchange Litigation. 594

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F.2d 1106 (7th Cir.), cert, denied. 444 U.S. 870 (1979), required separate counsel for subclasses in settlement negotiations. In both cases the issue was whether the distribution of money damages was fair, especially where absent class members did not get adequate notice to let them decide whether to opt out or to accept the amount offered. In Holmes, the disputing parties did not challenge the injunctive relief available to all (706 F.2d at 1146), but challenged the fact that eight named plaintiffs got half the settlement fund (Id.), a type of "preferential treatment for the named plaintiffs" (IcL at 1147) that the Court held calls for special scrutiny. In General Motors, only one subclass was to receive benefits under the proposed settlement and the other subclass did not even get notice of the settlement terms, again calling for special scrutiny. Here, there is no disparity in benefits to be scrutinized, since all class members benefit equally from the systemic reform established by the City Settlement. Rather than protesting inequitable distribution, the Joel A objectors seem to be asking for disparate special treatment for themselves (a sub-set of a subclass) without regard to what will benefit the rest of the class.7

7

Also, since all the Joel A plaintiffs are members of the same subclass

(children in foster care), any specific relief they seek, such as special placements

for their category of gay foster children, would conflict only with other foster

children in the same subclass, who might want special placements for other

categories (pregnant girls, retarded children, teen mothers). Separate negotiating

counsel for each subclass would not resolve such an intra-subclass conflict.

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Nor did the Joel A objectors' subclass, Sub-Class Three, fail to benefit here, so as to call for special scrutiny of representation in the negotiating process. Sub-Class Three is children in foster care; under the City Settlement, the Panel's reviews will focus, inter alia, on placements, foster care services, and adequacy of supervision, thus covering the major issues that this subclass raised. Compare, the second through sixth issues in the District Court's listing of Sub-Class Three issues (426-27), with the second, third, and fifth areas for Panel review (735). That the Sub-Class Three members received substantial benefits is apparent from the face of the City Settlement, whether or not they had separate counsel.
Appellants rely heavily on Anchem Products Inc. v. Windsor. 521 U.S. 591 (1997), and the Third Circuit opinion that it affirmed, Georgine v. Anchem, 83 F.3d 610 (3d Cir. 1996), to argue that the Marisol class was overbroad and that their issues were inadequately represented in the Marisol settlement negotiations. But Anchem addresses a different factual and procedural situation than Marisol and does not support any of appellants' arguments here.
The Third Circuit itself, in Georgine. distinguished the Anchem class which it refused to certify from the'class it had certified by its previous holding in Baby Neal v. Casey. 43 F.3d 48 (3d Cir. 1994) (on which this Court relied in affirming certification of the Marisol class); 83 F.3d at 627. Anchem was a products liability action seeking damages for up to two million potential claimants,
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all with different medical conditions and different exposures to the asbestos previously manufactured by defendant companies. Class certification was sought under FRCP 23(b)(3) opt-out provisions for a damages action, with a single class, no subclasses. However, the proposed settlement in Anchem dictated specific amounts of damages for numerous sub-categories, depending on the type of medical condition and the date of its discovery. This distribution of damages put the various categories of claimants in at least potential conflict with each other.
In contrast, Marisol. like Baby Neal. is a civil rights action seeking unitary systemic reform, not individual damage awards. The Marisol class was certified under FRCP 23(b) (2), seeking only injunctive relief for the class as a whole, not individual awards for individual representative plaintiffs and other class members. Thus no individual plaintiffs needed to opt out, or in, depending on their individual trial strategies, as in Anchem.
Also, in Anchem. the proposed class was sought for purposes of settlement only; no suit was even brought until a proposed settlement had been negotiated, and no litigation was contemplated. But the Marisol class sought and was granted certification early, and'was affirmed by this Court, in the midst of ongoing hard-fought litigation. Thus it, unlike the class in Anchem. was subject to adjustments (including creation of subclasses) as needed for trial management purposes. And the Court's concern in Anchem. 521 U.S. at , 117 S.Ct. 2231,
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2248-49, that, without the lever of threatened litigation, counsel in settlement negotiations lacked both incentive and tools to force more favorable terms for their clients, is simply inapplicable here.
The Marisol settlement also differs sharply from that proposed in Anchem. The Marisol settlement does not provide different categories of relief for each sub-category of plaintiff. Rather, it takes the more basic approach of trying to solve the alleged systemic infrastructure malfunctions that have contributed to all the problems, including, e^g., a shortage of appropriate placements for several categories of children in the plaintiff class. There is no provision in the Marisol settlement, as there was in Anchem. for any category of plaintiffs to come forward and prove that they qualified for a particular category of relief, with the potential of reducing the awards for another category of claimants such as those who might come later. Thus there can be no conflict over who gets the relief among the Marisol class members, regardless of their subclass. They all get it equally.
2. Law of the Case Bars Revisiting the Class Definition or Decisions on the Representative Plaintiffs' Adequacy.
What the objectors are really arguing is that the class definition itself is too broad, even when broken into subclasses, and that the representatative plaintiffs therefore could not adequately represent the Joel A claims. The Joel A objectors specifically argue that the Marisol class representatives lacked standing to litigate the types of claims asserted by the objectors, because the class
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representatives have not suffered the same types of injuries and thus lack a personal stake in the outcome. Those arguments are barred here by the doctrine of the law of the case.
The class definition and adequacy of the representatives to assert all the diverse class claims was challenged in 1996 by defendants (but not by any subgroup of plaintiffs) and was affirmed on appeal in 1997. The standing aspect of the adequacy of representation issue was specifically reconsidered and again found adequate by the District Court in mid-1998, over City defendants' objection to a claim about the Pre-Placement center based on the fact that no named plaintiff had suffered the precise injury stated by that claim. The Courts' decisions on the breadth of the class and the adequacy of its representatives were law of the case by the time the District Court had to rule on approval of the settlement.
The doctrine of law of the case "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California. 460 U.S. 605, 618 (1983); United States v. Adegbite. 877 F.2d 174, 178 (2d Cir. 1989). Law of the case means that "when an appellate c'ourt has once decided an issue, the trial court, at a later stage in the litigation, is under a duty to follow the appellate court's ruling on that issue." Doe v. New York City Dep't. of Social Services. 709 F.2d 782, 788 (2d Cir. 1983). Law of the case also requires "adherence by an appellate
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court to its own decision at an earlier stage of the litigation," United States v. Cirami. 563 F.2d 26, 33 n.6 (2d Cir. 1977). At either trial or appellate level, the doctrine applies both to that which is expressly decided and also to "everything decided by necessary implication," Fogel v. Chestnutt. 668 F.2d 100, 108 (2d Cir. 1981), cert, denied sub nom. Currier v. Fogel. 459 U.S. 828 (1982).
Here, this Court affirmed the District Court's certification of the Marisol class, with its named representative plaintiffs necessarily deemed to be adequate representatives for all the claims the class was asserting. City defendants, in opposition to the class, specifically argued the same points that the Joel A objectors argue now: that the class was too broad and had conflicts among various categories of plaintiffs, and that the named plaintiffs did not adequately represent all categories. Marisol A.. 126 F.3d at 376-78. Both the District Court and this Court rejected defendants' arguments. IcL Once that ruling became law of the case, the trial court could not, and this Court should not, reverse it.
Among the legal claims asserted by the Marisol plaintiff class, for which representation was found to be adequate, were claims that ACS failed to provide appropriate placements for all the categories of children in its care, failed to provide appropriate services by appropriately trained staff, and failed to protect children from harm, including physical abuse, while in care. These claims were among those specified by the District Court when it created subclasses and
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designated which named plaintiffs represented each claim (426-27). The Joel A objectors concede that they are in Sub-Class Three, children in foster care (1441). The claims they assert in their lawsuit directly parallel the Sub-Class Three legal issues described by the Court (426-27), for which representation was found adequate.
Further, in line with this Court's direction to consider the viability of various legal claims and the adequacy of the plaintiffs asserting them, the District Court ruled on several defense motions to dismiss plaintiffs and/or claims. These motions specifically raised the issues, now pressed by the Joel A objectors, of whether variations in the injuries suffered by class members disqualifies the named plaintiffs from representing the class for claims beyond those for their particular injury. (The Joel A objectors argue that because no Marisol plaintiff was gay or suffered bias-based abuse or discrimination in placement, such claims could not properly have been raised in Marisol.)
First, the City opposed creation of subclasses with such broad claims, objecting on the precise grounds that the Joel A objectors invoke here: the Marisol named plaintiffs had not suffered the specific injuries to give them standing to represent claimants under all the issues asserted. Next, the City moved to vacate an injunction concerning the Pre-Placement center, again arguing that since no Marisol plaintiff had suffered injury from having to stay overnight
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at the Pre-Placement center prior to placement, the Court lacked jurisdiction over claims that Pre-Placement overnights violated the law (254-261; 265-68).
The District Court ruled against the City, holding that it was not necessary that the harm to the representative plaintiffs "be identical to that of each member of the class" (483). The Court found that several Marisol plaintiffs had suffered injuries allegedly due to various aspects of placement covered by the general heading of "inappropriate placements." For instance, Lawrence B alleged that he had to stay too long in a "temporary" placement because nothing appropriate was available for a child with AIDS (484); Darren and David F and Steven I alleged they were placed where appropriate care or services were not available or the placement was not age-appropriate (479-80); Walter and Richard S alleged they were abused by a man living in the foster home with them (443). The District Court concluded that it was not necessary, for standing, to have a named plaintiff in each type of placement alleged to be harmful - including the temporary placement provided by Pre-Placement center - or to have a named plaintiff suffering from each type of problem handled in a placement facility (48486). The Court also refused to revisit the question, already affirmed, of whether the representative plaintiffs' claims were common and typical of the class; once the
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claims were found to be properly within the case, these plaintiffs were adequate representatives for them (485).8
Hence, the issues raised by the Joel A objectors have already been raised in this litigation and rejected by this Court and the District Court. If the Joel A plaintiffs were aggrieved by the District Court's decisions on these points if they felt that the named plaintiffs could not adequately represent them on issues of gender bias - it was incumbent on them to take an appeal from those decisions. Having failed to do so within the time allowed, they are now bound by the law of the case on those points. E.g.. County of Suffolk v.Stone & Webster Engineering Co.. 106 F.3d 1112, 1116 (2d Cir. 1997).9

8

Ironically, the Joel A plaintiffs appear to accept this principle de facto,

since they purport to represent not only gay youth but also lesbians, bisexuals and

transgendered youth. From the facts in their complaint, all the named plaintiffs

are gay and/or transgendered and not bisexual. Certainly they include no lesbians.

9

The Joel A counsel clearly knew of the Marisol action and made a

strategic decision not to intervene or otherwise participate in it earlier, saying at

the fairness hearing: "We believe that the interests of our clients would be best

served by a separate lawsuit in which they...did not have to share their representation with other people in the class..."(1372). New plaintiffs were intervened at several points during the Marisol litigation. The Joel A plaintiffs' counsel could have sought such intervention earlier than the fairness hearing, but

did not. The record shows counsel were even notified in July, 1998, of the opportunity to participate and thus avoid any possible preclusion, and that they rejected that opportunity (1224, 1345-47). After settlement procedings were

announced in the media, there were numerous court conferences at which they could have sought intervention to assure an adequate settlement, but they did not

(continued...)

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The District Court acted within its discretion when it ruled on the Joel A objections concerning standing and representativeness in line with its own prior rulings, even when there had not yet been any appellate review of several of those rulings. Virgin Atlantic Airways Ltd. v. National Mediation Bd.. 956 F.2d 1245, 1255 (2d Cir. 1992) (where no significant new law was presented in the motion, which merely rehashed principles which the court had considered in making its original ruling, no basis to change the law of the case). Thus, the District Court did not abuse its discretion when it followed the law of case in denying the Joel A objections to the standing of the Marisol plaintiffs and to their ability to represent the Joel A claims in Marisol.
In sum, the Joel A plaintiffs concede that they are all members of Marisol's Sub-Class Three, but argue that the subclasses were too diverse and were required to have separate representation because of conflicts among the members. First, there no such per se requirement. Next, the same reasoning that underlies this Court's affirmance of class certification also applies here: although the settlement does not specifically mention the different needs of each subclass,
9 (...continued) do so. Having made a strategic decision against pursuing their claims in this action, they are bound by that choice. E.g.. United States v. Bank of New York. 14 F.3d 756, 759 (2d Cir. 1994), citing Ackermann v. United States. 340 U.S. 193, 198 (1950).
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TT

it is structured to improve the entire system by establishing the expert Panel to

examine issues of common concern to the entire class. Finally, even if the

subclasses could possibly be construed to have conflicting interests, the Joel A

plaintiffs have no basis for complaint since, as members of Sub-Class Three, they

will benefit significantly from the settlement, which provides that then* issues will

be explicitly addressed by the Advisory Panel's focus on placement, services and

supervision.

B^

The Relief is Not Illusory: the Covenants and Releases Are Lawful.

1. The Settlement Promises System-wide Reform.

The Joel A objectors want the right to bring their own lawsuit, to seek

specific injunctive relief geared to their own issues. However, the parties in

Marisol recognized that the piecemeal approach to reform of the child welfare

system that has been tried in the past, through numerous suits seeking specific

injunctive relief on behalf of one or another sub-group of foster children, has not

succeeded to date. The parties therefore chose to focus on a holistic approach,

which appears likely to advance faster and bring a more lasting reform for the

entire system. The fact that the Jo'el A counsel have a different philosophy on

what constitutes an effective remedy does not make the parties' agreed-on solution

unfair, and should not be allowed to derail this promising settlement.

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Objectors claim that without specially targeted injunctive relief, the settlement will be inadequate to meet their needs. But the parties have learned otherwise, from past hard experience. The Wilder case, for instance, brought in 1973 on behalf of black Protestant children who claimed discrimination in placement, was settled with detailed injunctive relief in 1985 and has been under continuous Court supervision since then without solving the problems it raised. In state court, Matter of Eugene F. v. Gross. (Sup. Ct., NY Co.), Index No. 1125/86, was brought in 1986 on behalf of children in kinship foster care; it, too, remains open without having resolved its issues.
Nor has the specific injunction approach to child welfare reform proved successful in other jurisdictions; see, e.g.. reports from Washington D.C. (972-1140), where plaintiffs' counsel - the same counsel as in Marisol - won their lawsuit in 1995 and put in a receiver and detailed injunctive orders. Two years later, the court-appointed monitors reported that "the promise of reform has not yet been achieved and most of the basic problems of the system remain as they were before" (974). A year after that, a "revised implementation plan" was still under development, not yet producing any results (1086). This, in a less complex system that cares for only 2,500 foster children, not the 40,000-plus in New York's custody. And see. David C. v. Leavitt. 13 F. Supp. 2d 1206, 1211-12 (D.
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Utah 1998) (refusing to extend life of a "failed settlement" after four years when detailed injunctive orders and monitoring did not achieve system reform).
In contrast, the Marisol settlement aims to permit ACS to resolve the underlying systemic issues that have slowed progress on individual issues in the past. To achieve this basic reform, the parties agreed to obtain the best consultation available in the United States, and put together a panel of distinguished child welfare experts for this purpose. ACS agreed to open itself completely to these experts, to allow them access to all ACS records and personnel, and to receive and work through their recommendations together, upon pain of being brought back to court if the Panel finds ACS is not acting in good faith in its reform efforts. The plaintiffs agreed to give their input to the experts throughout the process, and to monitor progress (in part through the separate settlement agreement with the State, which has the statutory oversight responsibility for child welfare).
Without this basic reform, any piecemeal procedures imposed by court order are likely to lead only to more wheel-spinning, without real relief. Also, the Court and the parties have recognized that this time in history is particularly favorable to such systemic reform, given the Mayor's commitment to his new agency, and the undoubted competence and zeal of Commissioner Scoppetta (1357,
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1361-62, 1423). Indeed, the Court found that the Settlement provided more relief than the Court could have granted after a finding of liability.
The relief agreed upon in the Marisol settlement is not illusory, but extraordinarily promising and all-encompassing. It is based not simply on hope, as appellants suggest (App. Br. at 54), but on experience: both the experience of other, failed, remedies from the past, and the experience of the current, successful, steps toward infrastructure reform of the entire child welfare system. It is that forward momentum that this settlement seeks to maximize and enhance.
The parties also recognized, as did the District Court, that this settlement puts them at least two years ahead of where they would have been if the case were tried to judgment and liability established. There is no doubt that this case would have been hard fought through the trial and on the inevitable appeals. After that, some remedy would have to be fashioned. The Supreme Court has made clear that in cases seeking injunctive relief, after liability is found, the defendant agency must be given the first chance to propose a remedial plan; e.g.. Lewis v. Casey. 518 U.S. 343, 362 (1996). Litigation over defendants' proposal would likely have followed, and several more years could easily have elapsed before relief was finally ordered. By making this agreement voluntary rather than Court-imposed, not only do the experts have the benefit of a welcoming rather than adversarial atmosphere, but also the plaintiff children are likely to receive the
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results of the reform process far sooner. And see. Patterson v. Newspaper & Mail
Deliverers' Union. 514 F.2d 767, 771 (2d Cir. 1975), cert, denied. 427 U.S.
911(1976), noting that voluntary compliance by the parties can contribute
significantly to achieving desired goals.
The District Court was well within its discretion to recognize the
virtues of, and to approve, this very real relief.
2. The Covenant Not to Sue and Releases Are Not Overbroad.
The settling parties recognized that ACS cannot confront its basic
infrastructure issues with the candor necessary to resolve them while ACS is also
defending systemic litigations that seek to use such candor against the agency, or
that put the agency in the position of adopting systemic changes recommended by
the Panel while litigating the same issues, with the possibility of inconsistent
orders. As Deputy Commissioner Gerald Harris testified at the fairness hearing:
You can't effectively rebuild and wage war at the same time. The agency can spend the next two years litigating, reacting, taking defensive measures, or it can dedicate that time and effort and those resources to planning, to developing new approaches, to training its personnel, and to implementing new systems. The next two years could be spent in ongoing trial, appealing judicial rulings, or they can be used to work together with the leading experts in the country to accelerate reforms which have been underway for the past three years (1362).
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Since the Advisory Panel and ACS will be working to solve systemic problems for the two years, the parties covenanted not to bring separate suits during that period on equitable claims related to the claims listed in the plaintiffs' Pre-Trial Order.10 Such future claims based on events prior to settlement would be barred by res judicata anyway. And actions for systemic equitable relief based on facts that occur during the settlement term but are unrelated to the Pre-Trial Order claims are simply deferred. Such system-wide actions are rarely resolved within two years in any case; here, by the end of that time, the practice changes due to the settlement would likely require new discovery anyway, essentially restarting the litigation at that point. And if ACS has resolved the issues by then, the only result of the suit would be a waste of everyone's resources in having pursued it.

10

It also includes an agreement to incorporate the principles established

in the Wilder litigation and finally dismiss that case, with its long and troubled

history. If this settlement were disapproved, the currently-suspended Wilder

appeal would be reinstated. Further, if the Joel A lawsuit were permitted to seek

systemic injunctive relief relating to ACS's placement procedures, there is a danger

of still more litigation over how the Joel A claims relate to the injunctions in the

Wilder settlement and also a possibility of inconsistent orders that would ultimately

have to be resolved by this Court.

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TTIT

a. Releases of Claims Over Past Events Have No Broader Impact Than Under the Doctrine of Res Judicata.
The settlement's releases of past injunctive claims are no broader than those in other class action settlements, and have essentially the same effect as the doctrine of res judicata would have in any case. It is well settled that under the doctrine of res judicata. a final judgment in a prior case will bar relitigation of those matters actually addressed by the prior judgment and those which could have been raised in that action. Harborside Refrigerated Services. Inc. v. Vogel. 959 F.2d 368, 372 (2d Cir. 1992). A final consent decree settling an action is also entitled to res judicata effect. Amalgamated Sugar Co. v. NL Industries. Inc.. 825 F.2d 634 (2d Cir.), cert, denied sub nom. Rothenberg v. Amalgamated Sugar Co.. 484 U.S. 992 (1988). And as the Supreme Court has noted: "[U]nder elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation." Cooper v. Federal Reserve Bank of Richmond. 467 U.S. 867, 874 (1984).
The first release (1147, 750) and the corresponding covenant not to sue Cfl 41, 746) in the Marisol City Settlement do no more than release all claims that were or could have been asserted up to the date of the approval of the settlement. Given the definition of the class and its claims here, the Joel A plaintiffs (like all other plaintiffs in the Marisol class) would be precluded by res judicata from suing
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on claims based on events prior to March 31, 1999 (the settlement approval date), even if the City Settlement had no release and covenant to this effect.
b. The Limited Covenants Not to Sue on Systemic Equitable Claims Ripening in the Next Two Years Are Lawful.
As to the covenants and releases involving claims based on future events (UU 42, 48, 746-47, 751), the City Settlement is appropriately limited and permissible under the circumstances.11 First, the covenants and releases in the City Settlement do not preclude suits on future claims. Rather, they permit suits on claims arising after the settlement approval date, so long as these suits do not seek systemic equitable relief.12 Hence the Joel A objectors' argument that these covenants are unfair and overbroad is itself overbroad, since not all claims based on future events are barred by the settlement. All the City Settlement does is to preclude claims seeking systemic equitable relief if those claims arise from facts

11

Arguably, the Joel A objectors lack standing to raise this objection,

since all the injuries alleged in their complaint pre-date the approval of the Marisol

settlement (800-911).

12

Objectors try to undercut this provision by arguing that a bar on class

actions seeking systemic equitable relief amounts, de facto, to a bar on individuals

getting any form of relief - that individual suits are "impractical" to get real relief

(App. Br. at 53). Not so. If individuals wish to seek damages for alleged harm,

they are not barred at any time. If they want to change their individual

circumstances, they may seek individual equitable relief any time. What they may

not do, for the next two years, is seek a different court-imposed system-wide

remedy while the parties are implementing the remedy agreed to in this settlement.

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TT

occurring during the two-year settlement term and are related to the claims listed in the Marisol plaintiffs' pre-trial order - in other words, the very issues being worked on during the settlement term.13
Second, even if these covenants could be construed to bar "future claims," such releases or covenants, properly-limited and entered into knowingly for reasonable purposes, have been held to be enforceable. See, e.g.. the Supreme Court's holding in Town of Newton v. Rumery. 480 U.S. 386, 392 (1987) that there is no rule that such agreements, even those that waive constitutional claims, are per se invalid under public policy, but that each must be evaluated on its own facts. The City Settlement's covenants not to sue for systemic equitable relief for a two-year period are reasonably based and appropriately limited, given the continued availability of damages actions and individual equitable relief claims, and the limited duration of the covenants to only two years. These covenants were entered voluntarily, without coercion or wrongdoing, by parties represented by experienced counsel, and after hard negotiations.
Such voluntary covenants not to sue on events yet to occur have been enforced in, e.g.. Williams v. General Electric Capital Auto Lease Inc.. 159 F.3d 266, 273-74 (7th Cir. 1998); Lake James Community Volunteer Fire Dep't Inc.

13

And as to actions seeking systemic equitable relief other than on the

same claims that the parties are working on during the settlement term, the

covenants merely defer such litigation until the end of the two-year term.

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TT

v. Burke County. 149 F.3d 277 (4th Cir. 1998); Erie Telecom. Inc. v. City of Erie, 853 F.2d 1084 (3d Cir. 1988); TBK Partners. Ltd. v. Western Union Corp.. 675 F.2d 456, 460 (2d Cir. 1982).
In the Williams case, supra, the plaintiffs were enjoined from bringing a suit complaining of a certain provision in a GECAL car lease. They had been members of the plaintiff class in an earlier class action which had settled and released all claims that were or could have been brought arising from a list of lease provisions, including the one now sued on. The Williams plaintiffs argued that they could not have brought their claims for unlawful early termination of lease provisions in the first suit, because their leases had not yet been terminated when that suit was settled. The Seventh Circuit recognized that the prior class action release covered claims that would not have been presentable in that litigation because they were at that time "non-justiciable in the 'case or controversy' sense" (159 F.2d at 274), in that the events on which they were based (lease termination) had not yet ripened into injuries to give the plaintiffs standing on them. Nevertheless, the release barred a later suit on those claims after they ripened, because these claims were based on'"the identical factual predicate (the leases and the potential for an early termination penalty)" as the claims that were settled. IcL Also, the unripened claims were "closely enough related" to the claims that all plaintiffs shared in the first suit, that it was reasonable for the class to resolve
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everything in one settlement. Ici The Seventh Circuit therefore held that their claims were barred by the earlier release, and noted (distinguishing the Supreme Court's Anchem opinion) that there was nothing to suggest "that the federal courts lacked the Article III power to settle future claims of class members" even though the facts leading to those claims had not yet occurred and so would not have been justiciable at the time of the first suit. 159 F.3d at 274. See also. Erie Telecom.. supra (by releasing all claims relating to a franchise in a prior suit brought by a competitor, plaintiff is barred from a later suit against the City over an increase in franchise fees that had not occured when the prior settlement and release was signed); Lake James, supra (Fire Department's advance waiver of its access to the courts if future event occurs held to be enforceable since it was voluntarily entered and appropriately limited in scope).
The Williams court discussed and relied on the TBK case from this Circuit, 675 F.2d 456, which held that claims based on a yet-to-be-determined state-court assesesment of the value of a lease were barred by an earlier release in a suit on that lease, even though the state-law claims could not have been heard in the federal court; 675 F.2d at 460.
In TBK. supra. 675 F.2d at 460, this Court explained the broad scope permitted in such releases:
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[I]n order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.
Claims not normally "presentable" in the first action, but releasable, have included, inter alia, state-law claims not cognizable in federal court, or claims for specific amounts of damages not yet ascertained. E.g.. TBK. supra: United States v. Allegheny-Ludlum Industries. 517 F.2d 826, 852 (5th Cir. 1975).
Although the concept of an "identical factual predicate" might seem to exclude from release any claims based on events that had not yet happened when the case was settled (which is what objectors and their cases try to establish here,) in cases such as those discussed above, the concept of "identical factual predicate" has been interpreted to also allow advance waiver of claims based on exactly such events. In those cases, the releaseable future events are those that are a foreseeable outgrowth of, or "causally rooted, in origin, logic, and factual experience" (to use the Fifth Circuit's words in Allegheny-Ludlam. supra. 517 F.2d at 852) in the practice challenged in the original suit. Therefore they are held to be "based on the identical factual predicate" and knowingly waived by the earlier settlement. Williams. 159 F.3d at 274; TBK. 675 F.2d at 460; Erie Telecom.. 853 F.2d at 1101.
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Similarly here, future claims for systemic injunctive relief that are (1) related to the practices challenged in Marisol. but (2) based on facts that occur during the next two years while the system is still in process of reforming itself, will be exactly this kind of foreseeable outgrowth or "merely another variation on the...practices challenged" in the original suit. Robertson v. National Basketball Ass'n.. 622 F.2d 34, 35 (2d Cir. 1980). For example, if, next year, a gay foster child were assigned a foster care placement that he felt was inappropriate for his need, that "future event" would necessarily be a foreseeable outgrowth of, or variation on, the same ACS placement practices challenged and settled in Marisol. That claim (the sort the Joel A objectors apparently wish to bring) can lawfully be waived in advance. Williams, supra: TBK. supra.
The cases cited by the Joel A objectors in opposition to the covenants not to sue on future claims do not deal with such limited releases as those here. In Shults v. Champion Int'l Corp.. 821 F.Supp. 520, 521 (E.D.Tenn. 1993) - the only case that objectors cited in their submissions to the District Court (1439) - the release covered all future claims of any sort, for both damages and injunctive relief, relating in any way to the defendant paper mill's toxic waste discharges. The release also had no end, but continued unto the plaintiffs' children and grandchildren forever. Shults. 821 F. Supp. at 523. Another significant factor in Shults was the court's concern that class members had not been adequately notified
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that the resolution of property damage claims might also bar them from pursuing personal injury claims in future; I d . In contrast, the Marisol settlement only bars suits for system-wide equitable relief, not for individual equitable or damage relief; the bar is only for the two-year term of the settlement agreements, not for dl time; and the District Court has found that notice to the class was adequate (1419-20).
The Joel A objectors argue for the first time in their submission to this Court that any waiver or release of future claims violates public policy. This is simply not the case. See, e.g.. the Third Circuit's comment upholding the release in Erie Telecom., supra. 853 F.2d at 1099: "we are of the opinion that the 'knowing, voluntary and intelligent' standard established by the Supreme Court for the waiver of constitutional rights, subsumes consideration of the public's interests. Johnson v. Zerbst. 304 U.S. 458, 462-69...(1938)." And see. Rumery. supra, on the absence of a per se rule against such advance releases.
In support of their theory, appellants first discuss state-law cases against waiver of claims for willful or reckless actions (not mere negligence, which they admit can be waived by covenants not to sue; e.g.. Kaiisrh-Jarcho v. City of New York. 58 N.Y.2d 377, 384 (1983)). The first group of appellants' cases under this topic (App. Br. at 40-41) arise in the context of individual personal injury or property damage claims. Such claims are not foreclosed by the Marisol releases or covenants. Appellants' federal cases (App. Br. at 41-44) deal with a
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specific rule against waivers of individual Title VII discrimination claims for individual relief - not an issue here, since the Marisol settlement does not bar any individual from bringing such a claim at any time.
Appellants then make the offensive and unfounded statement that the settlements "license the City...to commit systemic violations of Marisol class members' rights over the next two years" (App. Br. at 41). Class members are not barred from suing at any time for damages or individual injunctive relief if they believe they were injured by some legal violation, systemic or not.14
Since the settlements' very limited deferral and projected release of claims based on events during the next 18 months remaining in the settlement term are lawful and not contrary to public policy, the District Court did not abuse its discretion by approving the settlements containing them.15

14

This statement also totally ignores the provisions in the City Settlement

that direct the Advisory Panel to review ACS's systemic performance and to report

to plaintiffs' counsel and ultimately to the Court if ACS is found to be acting in

bad faith. Commission of systemic violations that rise to the level of willfulness

would seem to suggest the possibility of bad faith. Far from "licensing" the

commission of such a violation, the Settlement provides a remedy for it. Should

such a situation arise, the City Settlement has a procedure, which the District

Court has rightly termed "streamlined" (1424), to seek appropriate judicial relief;

the releases and covenants do not bar that procedure.

15

This Court's only recourse, if it were to find that Judge Ward had

abused his discretion in approving the settlement, would be to reverse and remand

for further procedings. Neither an appellate court nor a district court can delete,

(continued...)

-56-

CONCLUSION The District Court properly exercised its discretion in approving the Marisol settlement agreements as being fair, reasonable, and adequate tinder all the applicable Grinnell factors. The Joel A plaintiffs' objections as to the adequacy of the class definition and the class representatives are barred by the law of the case, and objectors have failed to establish any defect in the settlement negotiating process. The relief granted to plaintiff class is not only not illusory, but in fact appears to be the most promising approach to the changes in ACS practices that all the plaintiffs, including the Joel A plaintiffs, have sought to obtain. The covenants and releases given in exchange for this relief are no broader than necessary for the purpose of permitting the City to bring about the desired reforms as quickly and efficiently as possible, and are well within the scope of contractual waivers permitted under the law.
15 (...continued) modify, or substitute provisions in a settlement agreement and require the parties to accept the changed agreement as a condition of the court's approval; e.g.. Evans v. Jeff P . . 475 U.S. 717, 726-27 (1986); Huerta v. East River Housing Corp.. 813 F.2d 580, 581 (2d Cir. 1987); Patterson v. Newspaper & Mail Deliverers' Union, supra. 514 F.2d at 771-72.
-57-

The District Court's discretionary approval of the Marisol settlements should be affirmed.

MICHAEL D. HESS, Corporation Counsel of the
City of New York, 100 Church Street, New York, New York 10007. (212) 788-1036

LARRY A. SONNENSHEIN, GRACE GOODMAN, GAIL RUBIN,
of Counsel.
May 15, 1999

By: Grace Goodman (GG 5903) Assistant Corporation Counsel

-58-

CERTIFICATION PURSUANT TO FRAP 32(A)(7)
Grace Goodman, an attorney for Defendants-Appellees Giuliani, Hammons, and Scoppetta, hereby certifies that this brief complies with the typevolume limitation set forth in Federal Rule of Appellate Procedure 32(a)(7), in that the number of words in this brief is 13,463.

May 17, 1999

Grace Goodman (GG 5903)

-59-

 
 99-721

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
JOEL A., MICHAEL D.; ERIC R., DAVID S., MAXX R. and RAY D.
Intervenor-Plaintiffs-Appellants,
MARISOL. A, by her next friend, Rev. Dr. James Alexander Forbes, Jr., by her next friend Raymond Cruz, LAWRENCE. B, by his next friend, Dr. Vincent Bonagura, THOMAS C , by his next friend, Dr. Margaret T. McHugh, SHAUNA D., by her next friend, Nedda de Castro, 02ZIE E., by his next friends, Jill Chaifetz and Kim Hawkins, DARREN F. , DAVID F. , by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens, BILL G., VICTORIA G., by their next friend, Sister Dolores Gartanutti, BRANDON H., by his next friend, Thomas H. Moloney, STEVEN I., by his next friend, Kevin Ryan, on their own behalf and behalf of and all others similarly situated, WALTER S., by his next friends, W.N. and N.N., grandparents, RICHARD S., by their next friends, W.N. and N.N., grandparents, DANIELLE J., by her next friend, Angela Lloyd,
Plaintiffs-Appellees, -against-
RUDOLPH W. GIULIANI, Mayor of the City of New York, MARVA LIVINGSTON HAMMONS, Administrator of the Human Resources Administration and Commissioner of the Dept. of Social Services of the City of New York, GEORGE E. PATAKI, Governor of the State of New York, JOHN JOHNSON, Commissioner of the New York Office of Children and Family fka Commissioner of the Dept. Social Services of the State of New York, NICHOLAS SCOPPETTA, in his official capacity as Commissioner of the New York City Administration for Children's Services,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR STATE DEFENDANTS-APPELLEES

PREETA D. BANSAL Solicitor General
MICHAEL S. BELOHLAVEK Assistant Attorney General
JUDITH T. KRAMER Assistant Attorney General
of Counsel

ELIOT_SPITZER Attorney General of the
State of New York Attorney for State
Defendants-Appellees 120 Broadway New York, New York 10271 Tel. No. (212) 416-8660
Marisol A. v. Giuliani
I • • • • I I I I I P B I I • • • • • HHIMI • •—•
CW-NY-001-007

TABLE OF CONTENTS

Preliminary Statement

Questions Presented For Review

Stst-c merit cf tiic Gsoe

1. The Marisol A. Litigation

2. The Joel A. Complaint

3. Relevant Terms of the State Agreement

4. The District Court's Opinion Below

Summary of the Argument

ARGUMENT -

THE DISTRICT COURT'S FINDING THAT THE STATE AGREEMENT IS FAIR, ADEQUATE AND REASONABLE IS ENTITLED TO DEFERENCE

A. Prior Determinations Of The Adequacy of Class Representation And Standing To Raise The Classwide Issues Sought To Be Raised The Joel A. Plaintiffs Should Not Be Disturbed

(i) It is the law of the case that the Marisol A. plaintiffs adequately represent the class and have standing to do so

(ii) The Joel A. Plaintiffs have been inexcusably dilatory in raising their objections

Page 1 1 2 2 5 6 9
12
14
16
16
19

(iii) Even if the Joel A. Plaintiffs'

objections are timely, they lack

merit

21

B. The Relief Provided By The State Agreement

Is Intended To Benefit All Marisol A. Class

Members And the Joel A. Plaintiffs Have Not

Demonstrated That It is "Illusory"

25

C. The Provisions In The State Agreement

Finally Resolving Of Certain Classwide

Claims And Provision Creating A Moratorium

On The Filing Of New Classwide Or Systemic

Relief Claims Does Not Deprive The Joel A.

Plaintiffs Of Their Right To Redress Any

Alleged Harm To Them Or To Any Other Individual

Marisol A. Class Members

28

CONCLUSION

31

TABLE OF AUTHORITIES
Cases
Amalgamated Sugar Co. v. NL Industries. Inc.. 825 F.2d 634 (2d Cir. 1987), cert.denied sub nom
Arnchem Products v. Windsor. '521 'U.'o. £>31 \1337y
City of Detroit v. Grinnell Corp.. 495 F.2d 448 (2d Cir. 1974)
Cooper v. Federal Reserve Bank of Richmond. 467 U.S. 867, 104 S.Ct. 2974, 81 L.Ed. 718 (1984)
Cotton v. Hinton. 559 F.2d 1326 (5th Cir. 1989)
County of Suffolk v. Long Island Lighting Co.. 907 F.2d 1295 (2d Cir. 1990)
County of Suffolk v. Stone & Webster Engineering Corp.. 106 F.3d 1112 (2d Cir. 1997)
Evans v. Jeff D.. 475 U.S. 717 (1986)
Fogel v. Chestnutt, 668 F.2d 100 (2d Cir. 1981), cert, denied. 459 U.S. 828 (1982)
Handshu v. Special Services Division. 787 F.2d 828 (2d Cir. 1986)
Huertas v. East River. 813 F.2d 580 (2d Cir. 1987)
In re Ivan Boesky Securitites Litigation. 948 F.2d 1358 (2d Cir. 1991)

Page 29 23 15
29 15 15
17 15
17 15 15 21

In re Warner Communications Securities Litigation v. Warner Communications. 798 F.2d 35

J.A. Shults v. Champion Int'l Corp., 821 F. Supp. 520 (E.D. Tenn. 1993)

Malchman v. Davis. 761 F.2d 893 (2d Cir.), cert .denied. suJb nom,

Marisol A. v. Giuliani. 126 F.3d 372 (2nd Cir. 1997)

Matsushita v. Electrical Industrial Co. v. Epstein. 516 U.S. 367 (1996)

Mountain Plains Congress of Seniors Organization

v. Malchman.

U.S.

(1986)

National Superspuds. Inc. v. New York Merchantile Exchange. 660 F.2d 9 (2d Cir. 1981)

Papilsky v. Berndt. 466 F2d 251 (2d Cir. 1972)

Plummer v. Chemical Bank. 668 F.2d 6543 (2d Cir. 1982)

Rothenberg v. Amalgamated Sugar Co.. 484 U.S. 992 (1988)

Selzer v. Board of Education. 112 F.R.D. 176 (S.D.N.Y. 1986)

Virgin Atlantic Airwaysr Ltd. v. National Mediation Bd.. 956 F.2d 1245 (2d Cir. 1992)

15 29 17 3, 11, 24
21 17 22, 23 22 22 29 18 19

Preliminary Statement Intervenor-plaintiff (the"Joel A. plaintiffs"), a group of lesbian, gay, bisexual or transgendered youth in the New York City foster care system, appeal from a judgment and order of the United States District Court for the Southern District of New York (Ward, J . ) ,approving separate class action settlement agreements between, the named plaintiffs ("the Marisol A. plaintiffs") and respectively, the City defendants and the State defendants.1 They contend that the settlement agreements impose "oppressively overbroad restrictions on the class members' rights of access to the courts" in exchange for "illusory relief." (Appellants' Brief, ["App. Br."] p. 2 ) .
Questions Presented For Review 1. Whether the district court abused its discretion in rejecting the Joel A. plaintiffs' contention that the Marisol A. plaintiffs lacked standing to adequately represent their concerns, when the issues of standing and adequacy had already been resolved against them and were law of the case.
1 The State defendants are Governor George Pataki and John Johnson, Commissioner of the New York State Office of Children's Services ("State defendants"). The City defendants are Rudolph Giuliani, Mayor of the City of New York and Nicholas Scopetta, Commissioner of the New York City Administration for Children's Services ("City defendants").

2. Whether the district court abused its discretion in rejecting the Joel A. plaintiffs' challenge to the substance of the State settlement Agreement ("State Agreement") when the court found that they "d[id] not indicate how the State Agreement is illusory." (JA 1438)
3. Whether the district court abused its discretion in rejecting the contention of the Joel A. plaintiffs that the covenant not to sue in the State Agreement is unfair and oppressive when the covenant does not preclude individual suits for damages or equitable relief, and does not preclude class action equitable claims indefinitely, but only during a two year moratorium.
Statement of the Case 1. The Marisol A. Litigation
Plaintiffs, through their "next friends", commenced this action ("Marisol A.") on September 13, 1995 against City and State defendants alleged to be responsible for the operation and oversight of the child welfare system in New York City. They sought relief on behalf of a class of children who allegedly have been deprived of their rights under the Due Process Clause of the United States Constitution, 42 U.S.C. § 1983, the Child Abuse Prevention and Treatment Act ("CAPTA"), the Adoption Assistance and Child Welfare Act, the Early Periodic Screening Diagnostic and

Treatment Act, the Americans with Disabilities Act ("ADA") and numerous other federal and state statutes.2 Plaintiffs moved for class certification on September 14, 1995. The lawsuit and ensuing events were well publicized. (JA 1200-22).
The class as certified consists of "all children who are or will be in the custody of the New York City Administration for Children Services ("ACS")" and "those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is or should be known to ACS." This Court sustained the certification of the class on September 26, 1997, but recommended the certification of Sub-classes. Marisol A. v. Giuliani. 126 F.3d 372 (2nd Cir. 1997).
The subsequently certified Sub-classes were defined as: (a) Sub-class I - Children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment, (b) Sub-class II - Children in families in which there is an open indicated report of abuse or neglect, (c) Sub-class III - Children in the custody of the Administration for Children's Services (JA 424-27).
2 We respectfully refer the Court to the district court's March 31, 1999 opinion for a fuller description of the litigation. (JA 1389-1448).

In July 1998, counsel for the Joel A. plaintiffs were formally informed of the ongoing Marisol A. litigation, advised of the potential to resolve their claims within it, and invited by plaintiffs' counsel to participate (JA 1224). They refused.
On the eve of a July 27, 1998 trial date, and after over two years of extensive pre-trial proceedings, the Marisol A. plaintiffs commenced settlement discussions. The discussions were well publicized and the trial was adjourned five times over a four month period (JA 69-71, 1219-20). Ultimately, the State and City settlement agreements at issue on this appeal were filed in the district court on December 2, 1998 (JA 1386) . Notice of the settlement agreements was widely disseminated in December, 1998 (JA 782-84), and the district court held a fairness hearing on January 22, 1999. 2. The Joel A. Complaint
On January 15, 1999, only one week prior to the fairness hearing, the Joel A. plaintiffs filed their class action complaint in the district court on behalf of a proposed class in the New York City foster care system defined as "young people in the defendants' custody and care who either identify themselves as lesbian, gay, bisexual, or transgendered, or who have not self-labeled but are experiencing feelings of same-sex attraction or gender atypicality,
I T

or who are confused about their sexual orientation or gender." (JA 801) .
The Joel A. plaintiffs challenge the propriety of their placements and the adequacy of the services that ACS has provided to them (JA 800-912). They allege that State defendants violated their rights under 42 U.S.C. § 1983, the Due Process and Equal Protection Clauses of the United States Constitution, the Adoption Assistance and Child Welfare Act ("AACWA"), and the Early and Periodic Screening, Diagnosis and the Treatment program of the Federal Medicaid Act ("the Medicaid Act"). They seek damages and systemic equitable relief to protect them from alleged abuse and harassment because of their sexual orientation, to provide services, to provide adequate training to staff, and to provide proper placements (JA 874-76).
At the fairness hearing held by the district court, the Joel A. plaintiffs appeared and objected to the settlement agreements (JA 1350-85) . At the conclusion of the hearing, the district court stated that it would approve the settlement agreements, that the parties should settle a judgment, and that a written opinion would follow (JA 1383). The Joel A. plaintiffs filed their notice of appeal on February 17, 1999 (JA 1386) . The opinion approving the settlement agreements was issued and the

order and judgment dismissing the lawsuit was filed on March 31, 1999 (JA 1389-1452). 3. Relevant Terms of the State Settlement Agreement
The State Agreement requires the State defendants to undertake a host of corrective initiatives:
(1) The New York State Office of Children and Family Services ("OCFS") must establish and a staff regional office devoted primarily to monitoring and supervising ACS's provision of child welfare services within New York City ("NYCRO") (JA 758-60).
(2) OCFS has agreed to issue timely individual and annual fatality reports as required by Social Services Law § 20. These reports must be reviewed with ACS, and OCFS will direct corrective action that it deems appropriate (JA 761-63).
(3) OCFS must develop and implement a campaign to advertise the State Central Register ("SCR"), which is the child abuse/neglect hotline. Additionally, it must evaluate its policies regarding educational neglect; clarify its policies to SCR personnel regarding the acceptance of reports of domestic violence; continue to spot-check telephone calls to assure that calls are not screened out inappropriately; and continue to make reasonable efforts toward a goal of answering all calls within one minute (JA 763-65) .

(4) OCFS must undertake one or more reviews of ACS case records in seven3 areas to determine if ACS is complying with applicable laws and reasonable case work practice. If warranted by the findings of the case record reviews, OCFS will direct ACS to take corrective action designed to improve ACS's performance (JA 766-68).
(5) OCFS must continue to audit licensed congregate foster care facilities to review compliance with applicable regulations (JA 7 7 ) .
(6) OCFS must use reasonable efforts to develop and implement a state-wide computer system to track important milestones for each child welfare case. OCFS also has agreed to develop and implement a computer training program and to provide plaintiffs with updates on its progress (JA 760-69).
(7) OCFS will monitor the training of child protective services caseworkers and supervisors and will establish procedures for evaluating ACS's current curriculum for such training. It has
3 (1) Child protective services cases; (2) open indicated cases; (3) cases receiving protective supervision in the home; (4) cases receiving mandated preventive services; (5) cases of children in placement for more than four years; (6) cases of children in placement with goals of returning home, adoption, or independent living; and (7) frequency of visitations to the home and child during investigations and while in custody.

agreed to recommend changes in training and to periodically discuss the status of risk assessment, as well as general compliance with the terms of the agreement with plaintiffs' counsel (JA 770-71) .
The State Agreement is to remain in effect for 21 months (or in some instances 24 months) after the entry of an order of approval. Upon approval it provides for the dismissal with prejudice of all claims raised or which could have been raised in the Complaint and Pre-trial Order dated July 16, 1998, except that plaintiffs retain the right to seek judicial enforcement to the extent that State defendants fail to comply with the terms of the agreement (JA 774).
The State Agreement further provides that during its duration plaintiffs shall not sue the State defendants in a class action, or in an action for injunctive or declaratory relief, based upon any statutory or constitutional claim set forth in the Pretrial Order, or for any individual claim(s) alleging systemic violations arising out of such claims based upon new facts and circumstances that occur during the duration of the agreement (JA 776) .
Nevertheless, any individual class member is permitted to file an action on his own behalf for the purpose of seeking damages

and/or equitable relief necessary and appropriate to protect his rights. 4. The District Court's Opinion
In a well-informed decision, the district court (Ward, J.) summarized the history of the Marisol A. litigation, and the 26- year-old Wilder litigation(JA 138S-1448); summarized the City and State Settlement Agreements (JA 1401-11); and summarized the settlement approval process (JA 1411-15).
The court then evaluated the sufficiency of the settlement by employing six of the nine "Grinnell factors" (JA 1417) that it found to be applicable to the case, concluding that the State Agreement satisfied all six factors (JA 1416-17).
First, the court found that "this is a complex case involving many difficult and unsettled legal questions" in which plaintiffs asserted numerous federal and state law violations "raising concerns across the spectrum of child welfare issues" (JA 1417-18) . It further found that the parties had incurred substantial expenses and that a trial would be extremely lengthy and costly with additional time needed to fashion a remedy if the plaintiffs prevailed (JA 1417-19).
Second, the court found that after a widely disseminated notice to the class, only eight comments were received and only
TT

three raised objections to the settlement agreements. The court
regarded the small number of objections as evidence that the
agreements were fair, reasonable and adequate (JA 1419-20).
In considering the third through sixth Grinnell factors-
-including the stage of the proceedings and the risks of
establishing liability and remedies, the court found that counsel
had sufficient information to fully understand the complexity of
the issues, the strengths and weaknesses of their respective cases,
and the risks of going forward. The court noted that no person
objecting to the settlement agreements suggested that an
alternative remedy would be more appropriate (JA 1423), and
concluded:
with the beneficial terms of the Agreements and safeguards in place should the City or State fail to comply, the Court believes that these voluntary Settlement Agreements are more favorable then any remedy that could have been imposed by the Court at the end of a trial. Therefore, this factor weighs heavily in favor of the Court finding the Settlement Agreements to be fair, reasonable, and adequate (JA 1425) .
The Joel A. plaintiffs filed the only substantive
objections to the agreements claiming that they provided only
"illusory relief". The court rejected this contention, finding
"nothing about the terms of the Settlement Agreements to be
10

illusory" and further that the Joel A. plaintiffs "do not indicate how the State Agreement is illusory" (JA 1438).
In addition, the court rejected the contention that the covenants not to sue and the releases in the Settlement Agreements were "unfair and oppressive." After giving these provisions careful consideration, it found that because they provided an "Open door policy," that is, a means for individual plaintiffs to seek redress for their specific injuries, it was reasonable for the agreements to require a limitation on class action suits during their duration while the parties work together to develop a better child welfare system (JA 1440) .
The Joel A. plaintiffs' final objection was that since none of the named Marisol A. plaintiffs were gay, lesbian, bisexual or transgendered, they could not adequately represent their concerns. The court found, however, that these plaintiffs were included within the Marisol Sub-class III and were, in fact, adequately represented. The court characterized this objection as a belated attempt to challenge the adequacy prong of class certification, and noted that this issue had been resolved and affirmed by this Court. Marisol A. v. Giuliani. 929 F.Supp. 662 (S.D.N.Y. 1996), aff 'd. 126 F.3d 373 (2d Cir. 1997). While recognizing that the Joel A. plaintiffs have concerns regarding
11
Tl • • r « HI

their sexual orientation, the court noted that "there are numerous children who have specific concerns regarding personal characteristics, attributes, conditions, or life positions such as teenagers with young children, or children who face difficulties in placement due to race or religion." It found, however, that the named plaintiffs in Marisol A. adequately represent all of these children and have standing to do so (JA 144 0-42).
Concluding that the State Agreement was fair, reasonable and adequate, the district court approved the agreement (JA 144 8).
of t h e ArcpT"ien.t The district court's approval of the State Agreement is entitled to deference. The district court was in a unique position to evaluate the fairness, adequacy and reasonableness of the State Agreement given its extensive familiarity with this and related cases challenging various aspects of the New York City child welfare system. The court carefully and properly considered the relevant Grinnell factors and concluded that the settlement was a product of arms-length negotiation and that it provided a more favorable remedy than that which could have been imposed after a trial. The Joel A. plaintiffs' challenge to the named plaintiffs' representation of the members of Sub-class III is both
12

baseless and untimely. This Court has affirmed the adequacy of representation. Similarly, the standing issue has already been decided by the district court. Both matters are law of the case. Moreover, even if this challenge was not barred, it is untimely. The Joel A. plaintiffs were or should have been well aware of this ongoing., well-publicized litigation. They had more than an ample opportunity to participate in the litigation at an earlier stage and to raise their objections.
In all events, the contentions of the Joel A. plaintiffs regarding adequacy of representation and standing are baseless. They have failed to produce any relevant authority to demonstrate how the district court erred: (1) in its application of any of the relevant Grinnell factors, or (2) in its finding that the Marisol A. plaintiffs were adequate class representatives including the claim that the named Marisol A. plaintiffs failed to pursue this litigation vigorously on behalf of members of Sub-class III.
Similarly, the Joel A. the district court properly found that the Joel A. plaintiffs had failed to indicate how the State Agreement is "illusory". Their "Amended Memorandum in Support of Motion to Intervene and Objections to Proposed Class Action Settlement" does not indicate the contrary and supports the district court's conclusion.
13

Finally, the Joel A. plaintiffs' characterization of the State Agreement's release and covenant not to sue provisions as "onerous" and "exculpatory" is meritless. The State Agreement provides for the dismissal of all claims with prejudice that were or could have been raised by the Marisol A. plaintiffs, which is nothing more than the recognition of the res judicata effect generally given to settlement agreements. Furthermore, it places a two- year moratorium on class action and systemic lawsuits so that the State defendants can carry out their obligations under the agreement without the added burdens of addressing class action litigation. Importantly, the State Agreement does not preclude any of the Joel A. plaintiffs from filing suit, as they have already, to redress their individual injuries.
ARGUMENT THE DISTRICT COURT'S FINDING THAT THE STATE AGREEMENT IS FAIR, ADEQUATE AND REASONABLE IS ENTITLED TO DEFERENCE Fed. R. Civ. P. 23 (e) provides that M a ] class action shall not be dismissed or compromised without the approval of the court." Although Rule 23(e) does not establish a specific standard by which to evaluate a proposed settlement, the universally applied standard is whether the settlement is fair, adequate and
14

reasonable. See. County of Suffolk v. Long Island Lighting Co.. 907 F.2d 1295, 1323 (2d Cir. 1990).4
On this appeal, this Court's review is limited to determining whether the district court abused its discretion in approving the State Agreement. See, Handshu v. Special Services Division. 787 F.2d 828, 833 (2d Cir. 1986); In re Warner Communications Securities Litigation v. Warner Communications. 798 F.2d 35. Moreover, where, as here, the district court "approves a settlement based upon well-reasoned conclusions, arrived at after a comprehensive consideration of the relevant factors,the settlement is entitled to deference upon review." Id. (citing City of Detroit v. Grinnell Corp.. 495 F.2d 448 (2d Cir. 1974)}.
The district court in this case was in a unique position to evaluate the State Agreement with an informed understanding of its terms. Judge Ward has presided over litigation raising issues related to the New York City child welfare system for over twenty years (JA 1394-96). A review of the court's comprehensive opinion
4 Rule 23 (e) does not give the court "the power... to modify a proposed consent decree and order its acceptance over either party's objection." Evans v. Jeff P.. 475 U.S. 717, 726-27 (1986); see also Huertas v. East River. 813 F.2d 580, 581 (2d Cir. 1987). The settlement must stand or fall as a whole. Cotton v. Hinton. 559 F.2d 1326,1333 (5th Cir. 1989); In re Warner Communications Securities Litigation v. Warner Communications. 798 F.2d 35, 37 (2d Cir. 1986) .
15

approving the State Agreement demonstrates that it carefullyconsidered the relevant Grinell factors and correctly reasoned that the objections of the Joel A. plaintiffs were baseless.
A. Prior Determinations Of The Adequacy of Class Representation And Standing To Raise The Classwide Issues Sought To Be Raised By The A. Fletin'fciif B Should "Not "Be "Discurbed The Joel A. plaintiffs argue on this appeal, as they did
below, that because none of the Marisol A. named plaintiffs are gay, lesbian, bisexual or transgendered, and have not been denied a safe placement because of bias-related victimization and discrimination, they cannot and did not adequately represent the Joel A. plaintiffs' concerns in reaching agreement with the State defendants. For the same reasons, they also argue that the Marisol A. plaintiffs lack standing to represent them. These arguments were rejected below and similarly should be rejected by this Court. The Joel A. plaintiffs' failiure to challenge the district court's prior approval of class certification which was approved by this court renders that determination law of the case. Moreover, the Joel A. plaintiffs eleventh-hour objections should be rejected as untimely and without merit.
(i) It is the law of the case that the Marisol A. plaintiffs adequately represent the class and have standing to do so.
16

The district court correctly reasoned that by challenging

the State Agreement on the ground that the existing named

plaintiffs cannot adequately represent their concerns, the Joel A.

plaintiffs are attempting to circumvent the law of this case (JA

1441) . Marisol v. Giuliani. 126 F.3d (2d Cir. 1997) . A

determination of the adequacy of representation is a matter left to

the sound discretion of the district court. Malchman v. Davis, 761

F.2d 893, 899 (2d Cir. 1985), cert.denied, sub nom, Mountain Plains

Congress of Seniors Organization v. Malchman.

U.S.

(1986) . Moreover, a decision made at a previous stage of the

litigation which could have been challenged in an ensuing appeal,

but was not, becomes law of the case and the parties are deemed to

have waived the right to challenge that decision. See. County of

Suffolk v. Stone & Webster Engineering Corp.. 106 F,3d 1112, 1117

(2d Cir. 1997); Foael v. Chestnutt. 668 F.2d 100, 109 (2d Cir.

1981), cert, denied, 459 U.S. 828 (1962) . Consequently, the Joel A. plaintiffsxchallenge to adequate representation is foreclosed.

Judge Ward was not required to revisit the issue of standing at the fairness hearing. He long ago rejected arguments similar to those that the Joel A. plaintiffs make here (see App. Br. pp. 46-47) . For example, he rejected the City defendants'
17

argument in their motion to vacate the Interim Stipulation and Order concerning Overnights at Pre-placement, that because none of the Marisol A. named plaintiffs had ever stayed in overnight preplacement, they lacked standing to raise the claim on behalf of those who had (JA 470-88).
The court found that the Marisol A. plaintiffs had standing to represent all members of the class who alleged injuries resulting from an inappropriate placement (JA 479) . It further decided that the harm from inappropriate placements need not be identical for each class member (JA 483) . Nor is there a requirement that plaintiffs must have a named plaintiff in each and every placement that they allege is harmful (JA 484) . The fact that the named plaintiffs "suffered the same general injury suffered by all the class members,... [is] sufficient to confer standing on them to represent all members of the class." Id.(citing Selzer v. Board of Education. 112 F.R.D. 176, 183 (S.D.N.Y. 1986).
The district court previously held that the Marisol A. plaintiffs had standing to represent claims regarding similar placements and placements where they ultimately could be assigned (JA 484). That holding, which was wholly supported by counsel for the class in the district court, is law of the case. See Virgin Atlantic Airways. Ltd. V. National Mediation Bd.. 956 F.2d 1245,
18

1255 (2d Cir. 1992) ("where litigants have battled for the court's decision, they should neither be required, nor without good reason to battle for it again [citations omitted]") Accordingly, because the Joel A. plaintiffs are indisputably members of Sub-class III and they are alleging an injury which can be traced to their allegedly inappropriate placements, they may not relitigate the issue of standing.
(ii) The Joel A. Plaintiffs have been inexcusably dilatory in raising their objections
As the record shows, the Joel A. plaintiffs had ample opportunity to intervene in this lawsuit long before the fairness hearing in January 1999. They have been in the care of ACS for periods ranging between four and eleven years. (JA 827-51). Indeed, Mr. Douglas Lasdon, one of the counsel for the Joel A. plaintiffs (JA 1345), was aware of the issues confronting his clients as early as the summer of 1994 (JA 900-05) . Moreover, the Joel A. plaintiffs should have been aware of the pendency of this well-publicized lawsuit when it was filed in December 1995 (JA 1204-1217). Nevertheless, they waited until the eleventh hour to seek to intervene, and failed to present good reason to the district court for their undue delay in coming forward:
19

The Court: . . . All of the support in your complaint seems to date back four or five years ago.

Mr. Falcone: Your Honor, we conducted interviews with expert witnesses. We read a number of articles. We were drafting the complaint. We were interviewing kids in the system.

The Court: You say there was an emergency and

you lie back and you do nothing, absolutely

nothing to bring the matter to the court's

attention. You wait, you wait, you wait, and

when you are good and ready, you come here

with a complaint and now claim the building's

on fire

(JA 1373) .

In addition, despite the Joel A. plaintiffs' repeated references to "severe and irreparable harm", (App. Br. p. 12), "continuing devastation", (Id., at p.12) and "desperate circumstances of the Class members," (.Id. at 27), it remains unclear why they did not come forward earlier. They knew that this class action might resolve many of their claims and were advised of the potential problems of proceeding on their own behalf because Marisol A. sub-class III encompasses the needs of gay and lesbian foster children (JA 1170-1172). They were encouraged to participate in this litigation and even had planned to file their own suit much earlier (JA 1349). Moreover, the trial was adjourned five times over a four-month period so that the well publicized

20

settlement negotiations could continue. In fact, even after coming forward, the Joel A. plaintiffs have not sought any type of preliminary injunctive relief from the district court to address each of their allegedly "desperate" situations.
Given the length of time that has passed from the time that the Joel A. plaintiffs were aware of the pendency of this lawsuit, and their failure to participate at an earlier stage, "an inference of a deliberate strategy of tactical disruption and delay seems inexorable." See In re Ivan Boesky Securitites Litigation. 948 F.2d 1358 (2d Cir. 1991).
(iii) Even if the Joel A. Plaintiffs' objections are timely, they lack merit
The Joel A. plaintiffs' contention that the district court failed to ensure that unnamed class members were vigorously represented during the course of the settlement negotiations are without merit. However, they have failed to support that contention factually, and their reliance upon Justice Ginsburg's concurring opinion in Matsushita v. Electrical Industrial Co. v. Epstein. 516 U.S. 367, 395 (1996) and other case law is misplaced.
In Matsushita, the federal district court declined to certify a class and dismissed the complaint. Contemporaneously, a settlement was reached in a related state court action. The
21

question presented was whether a federal court could withhold full faith and credit from the state court judgment approving the class action settlement which included a global release. Justice Ginsburg, who was concerned about collusion, stated only that since the state court never made a finding regarding adequate representation., the question was left unresolved and open for airing on remand.
Here, however, the district court determined adequacy of representation twice--once at the time the class was certified and again at the time of the fairness hearing. The court specifically found that all sides vigorously litigated the case up to the filing of the Pre-trial Order and that the State Agreement was not the product of collusion, but was negotiated at arms length (JA 1426).
Similarly, the Joel A. plaintiffs' reliance upon Plummer v. Chemical Bank. 668 F.2d 6543, 658 (2d Cir. 1982), Papilsky v. Berndt. 466 F2d 251, 260 (2d Cir. 1972) , and National Superspuds. Inc. v. New York Merchantile Exchange. 660 F.2d 9 (2d Cir. 1981), is misplaced. In Plummer. the district court found that the settlement was deficient under the Grinnell criteria and it was uncertain about the adequacy of representation. In Papilsky. there was compelling evidence that the representation was not vigorous because the plaintiffs failed to answer interrogatories. Finally,
22

in National Superspuds. counsel for the class members who had liquidated contracts conceded that the class did not purport to represent claims of objectors based upon unliquidated contracts. Given that limitation, even if the case had been tried, the judgment would not have bound claims based upon unliquidated contracts.
None of the foregoing circumstances can be found here, where all relevant Grinnell factors were met, the distrcit court found that class representation was vigorous at all times, and the allegations of Marisol A. Sub-class III members regarding inappropriate placements, lack of services and lack of monitoring and supervision by State defendants are substantially identical to those of the Joel A. plaintiffs in their complaint.
The Joel A. plaintiffs also rely on Amchem Products v. Windsor. 521 U.S. 591 (1997), a products liability suit. In that case the Supreme Court affirmed the disapproval of a class action settlement because class representation was inadequate from the outset and because the district court had never separately considered the diverse and overlapping interests of the class or the adequacy of representation of the class prior to approving the settlement. In fact the class action settlement was presented to the district court as a fait accompli and was submitted
23

contemporaneously with the pleadings and the motion for class certification, causing the Supreme Court to observe that "the action was never intended to be litigated." Id. at 601.
By contrast, the motion for class certification in this case was filed shortly after the commencement of the lawsuit, decided by the district court in 1996, and affirmed by this Court in 1997. Moreover, the State Agreement was not presented to the district court until December 2, 1998, well after the completion of discovery and the submission of a Pre-trial Order.
The Joel A. plaintiffs further argue (App. Br. 34) that the structure of the State Agreement does not show that the interests of Sub-class III were adequately represented; that separate counsel was not appointed to represent subclass III; that Judge Ward did not make findings regarding whether the members of sub-class III were adequately represented during the settlement negotiations; and that the district court erroneously shifted the burden of proof regarding the fairness of the settlement to the Joel A. plaintiffs.
Contrary to their contentions, however, the Joel A. plaintiffs do not provide any authority which demonstrates that it is an abuse of discretion for a district court to approve a settlement which is not structured to separately address the claims
24

I
of a subclass if it is satisfied, as it was here, that the overall settlement addresses the claims of the subclass. In its review of the State Agreement, the district court was well aware of the claims that the settlement was intended to reach. In fact, its decision approving the creation of subclasses sets forth a detailed description of the claims of each subclass and the named plaintiffs who represent each subclass (JA 424-427).
Similarly, the Joel A. plaintiffs do not cite any authority that requires each subclass to be represented by separate counsel. Nor do they contest, except in conclusory terms, the district court's finding that Sub-class III was adequately represented by plaintiffs' counsel during the settlement negotiations. The mere fact that their current counsel do not agree with the terms reached by class counsel, is not sufficient to justify a finding that the Joel A. plaintiffs lacked adequate representation. B. The Relief Provided By The State Agreement
Is Intended To Benefit All Marisol A. Class Members And the Joel A. Plaintiffs Have Not Demonstrated That It is "Illusory"
The Joel A. plaintiffs contend that the relief provided by the State Agreement is "illusory" (App. Br. p. 28) , but the district court correctly rejected that claim.
25

The Marisol A. plaintiffs alleged that the State defendants violated the Due Process Clause of the United States Constitution and the AACWA by failing to oversee, train, enforce, monitor and supervise the City defendants' operation of their local child welfare system in a variety ways including the monitoring and oversight of assessments, planning, services, and appropriate placements. The State Agreement addresses these claims by providing State oversight in each of the areas where it allegedly was deficient.
Nonetheless, the Joel A. plaintiffs assert that the State Agreement "fails to provide any direct, concrete or reasonably certain relief to members of Marisol Subclass Three." (App. Br. p. 60.) They further contend that the district court erred when it observed that they had failed to indicate how the State Agreement was illusory, id. , and in support of this contention they refer this Court to pages 11-12 of their Amended Memorandum in Support of Motion to Intervene and Objections to Proposed Class Action Settlement ("Plaintiffs' Memorandum in Support") (doc. no. 212). Id. However, a review of that document supports the district court's conclusion that they failed to indicate how the State Agreement was "illusory."
26

Indeed, at page 12 of that Memorandum, the Joel A. plaintiffs acknowledge that the State Agreement provides that OCFS "among other things, oversee, monitor, supervise, review, evaluate, discuss, recommend, issue reports, provide information, advertise, implement a state wide computer system, and even, after completing case record reviews and determining that ACS is in 'substantial non-compliance with applicable laws, regulations, and/or reasonable case work practice. . . direct ACS to take Corrective Action designed to improve ACS's performance in the specific areas of noncompliance'". Plaintiffs' memorandum in support, p. 12.(doc. no.212). Given this admission, it is difficult to understand how the Joel A. plaintiffs can claim that the State Settlement is illusory.
Their complaint that the twenty-one months required to complete the case record reviews is too long does not support a claim that the State Agreement is "illusory"; it merely demonstrates a disagreement with one term of the agreement. Moreover, although the Joel A. plaintiffs complain that nothing in the State Agreement obligates State defendants to take any action to address the "severe and irreparable harm to which both the Joel A.,. Class and the Marisol A. Class are now subjected on a daily
27

basis," (id.), they do not explain specifically how the terms of the State Agreement fail to address that harm. In fact, it is the intent of the parties that the State Agreement will do exactly that (JA 1158-60).
C. The Provisions In The State Agreement "Finally Resolving Certain Classwide Claims And Provision Creating A Moratorium On The Filing Of New Classwide Or Systemic Relief Claims Does Not Deprive The Joel A. Plaintiffs Of Their Right To Redress Any Alleged Harm To Them Or To Any Other Individual Marisol A. Class Members The Joel A. plaintiffs correctly state that the State
Agreement's covenant not to sue and release provisions preclude them from filing a class action or from seeking systemic relief based upon new facts or circumstances during the two year duration of the State Agreement. (App. Br. at 39) They contend, however, that the provisions are not fair or reasonable because they compromise their rights to obtain relief from violations of "vital legal interests" (App. Br. p. 38), and "effectively license the City and State defendants to commit systemic violations of Marisol A. class members legal rights over the next two years" (App. Br. p. 41). These allegations are baseless.
28

First, the "release" in the State Agreement, at Paragraph 1 36, is intended to reflect the res judicata effect of the State Agreement upon the class claims resolved by that agreement and nothing more. This provision is not novel. It is well settled that a final consent decree is entitled to res judicata effect. See Amalgamated Sugar Co. v. NL Industries. Inc.f 825 F.2d 634 (2d Cir. 1987) , cert.denied sub nom. Rothenberg v. Amalgamated Sugar Co., 484 U.S. 992 (1988) . " There is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation." Cooper v. Federal Reserve Bank of Richmond. 467 U.S. 867, 874 (1984).
Moreover, unlike J.A. Shults v. Champion Int'l Corp.. 821 F. Supp. 520 (E.D. Tenn. 1993), relied upon by the Joel A. plaintiffs, the "release" in the State Agreement does not resolve any class action claim or claim for systemic relief in perpetuity. Nor does the State Agreement provide a "waiver of future civil rights violations," as the Joel A. plaintiffs intimate. (App. Br. p. 42.) The State Agreement provides a two-year moratorium on class action lawsuits. If the alleged class or system-wide violations in Marisol A. continue to occur after twenty-four months, a new class action can be filed.
29

Moreover, the State Agreement does not bar claims raised by the individually named Joel A. plaintiffs for monetary damages and injunctive relief if that relief is tailored to their individual injuries. The Joel A. plaintiffs are entitled to pursue individual claims in their current lawsuit if those claims are not jurisdictionally barred or time barred.
Finally, the Joel A. plaintiffs argue that the permissive aspects of the State Agreement are inadequate because "the 100,000 indigent children who comprise the Marisol class obviously will not be able to engage counsel with the resources to prosecute any matter requiring, for example, extensive discovery or expert analysis and opinion." (App. Br. p. 51) . They are wrong, however, on two counts. First, there is no evidence that all members of the Marisol A. class are indigent. Second, even if some members are indigent, there are counsel, including current Joel A. plaintiffs counsel, who have been willing to assist them. The record shows that Legal Aid's Juvenile Rights Division represents the overwhelming majority of children in cases before the New York City Family Court involving child abuse and neglect, terminating of parental rights, status offenses, delinquency and other proceedings affecting children's rights and welfare (JA 1329). The Legal Aid Society's representation of children continues without interruption
30

as long as the children remain in the system (JA 1330) . Moreover, Children's Rights, Inc. and Lawyers for Children, counsel for Marisol A. class members, and other children's rights groups stand ready, as they always have, to represent all children who need assistance.
The reluctance of the State defendants to settle this class action without a promise that they would not be sued again by this class before they had an opportunity to fulfill their obligations under the State Agreement is perfectly logical. There would have been no incentive to settle if, as soon as the State Agreement was signed, the same defendants could be sued again by members of the same class. The intent was to allow OCFS an opportunity to devote its time to compliance activities, not to more litigation.
31

CONCLUSION
FOR ALL OF THE FOREGOING REASONS, THE ORDER AND JUDGMENT OF THE DISTRICT COURT APPROVING THE STATE AGREEMENT ON THE GROUNDS THAT IT IS FAIR, REASONABLE AND ADEQUATE SHOULD BE AFFIRMED IN ALL RESPECTS

Dated: New York, New York May 17, 1999

Respectfully submitted,
ELIOT SPITZER Attorney General of the
State of New York Attorney for State
Defendants-Appellees By:

PREETA D. BANSAL Solicitor General
MICHAEL S. BELOHLAVEK Assistant Attorney General
JUDITH T. KRAMER Assistant Attorneys General
of Counsel

JUDITH T. KRAMER(JK-4548) Assistant Attorney General

32

Certificate of Compliance I, JUDITH T. KRAMER, attorney of record for State Defendants Appellees Governor George Pataki and Commissioner John Johnson, do hereby certify that the foregoing brief complies with the type-volume limitation as set forth in Federal Rule of Appellate Procedure 32(a)(7). The total number of words in the foregoing brief is 6740.
OTJDITH T. KRAMER (JK-4548)
33

 
 99-721
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

.COPY RECEIVED L WEISS, RIFKINO. RTON & GARRISON

HAY 18 P 3= 32

BYfifllAKJ

D MA1L/PM

JOEL A., MICHAEL D., ERIC R., DAVID S., MAXX R. and RAY D.,

Intervenor-Plaintiffs-Appellants,

MARISOL A., by her next friends, Rev. Dr. James Alexander Forbes, Jr., and Raymonda

Cruz; LAWRENCE B., by his next friend, Dr. Vincent Bonagura; THOMAS C , by his

next friend, Dr. Margaret T. McHugh; SHAUNA D., by her next friend, Nedda de Castro;

OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins; DARREN F., DAVID F.,

by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; BILL G., VICTORIA G.,

by their next friend, Sister Dolores Gartanutti; BRANDON H., by his next friend,

Thomas J. Moloney; STEVEN I., by his next friend, Kevin Ryan, on their own behalf and

on behalf of all others similarly situated, WALTER S., by his next friends, W.N. and N.N.,

grandparents; RICHARD S., by their next friends, W.N. and N.N., grandparents;

DANIELLE J., by her next friend, Angela Lloyd,

-against-

Plaintiffs-Appellees,

•vi
81
I

o=
CO"

•5

RUDOLPH W. GIULIANI, Mayor of the City of New York; JASON TURNER, Administrator of the Human Resources Administration and Commissioner of the Dept. of Social Services of the City of New York; GEORGE E. PATAKI, Governor of the State of New York, JOHN JOHNSON, Commissioner of the New York Office of Children and Family Services of the State of New York; and NICHOLAS SCOPPETTA, in his official capacity as Commissioner of the New York City Administration for Children's Services,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICUS CURIAE THE LEGAL AID SOCIETY

PWRW & G
MAY I 8 1999
^DOCKETED D /MAGEO

NANCY ROSENBLOOM KAY McNALLY
Of Counsels
May 18,1999

DANIEL L. GREENBERG Attorney-in-Chief MONICA DRINANE Attorney-in-Charge THE LEGAL AID SOCIETY Juvenile Rights Division 90 Church Street, 15th Floor New York, New York 10007 (212) 577-3300

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ii

PRELIMINARY STATEMENT

1

THE AMICUS CURIAE

2

THE SETTLEMENT AGREEMENTS

3

ARGUMENT

I.

Amicus Urges This Court to Examine Carefully.the Way in Which

the Overly Broad Covenants Not to Sue and Releases Bar Claims

That Have Not Yet Arisen and Unfairly Affect Present and Future

Members of the Plaintiff Class

6

II.

Amicus Asks This Court to Consider Carefully the Harm Caused

by the Absence of Enforceable Relief in the City Agreement and

the Lack of Alternative Means of Redress for Children Who Are

and Will Be Members of the Plaintiff Class

10

A. The City Agreement Contains No Substantive Relief To Be Enforced

10

B. The Unique Arrangement Dismissing Marisol and Granting the Panel

the Authority to Reinstate the Case Restricts the Federal Court's Authority

to Enforce the Agreements

12

C. There Are No Effective Alternative Remedies

14

CONCLUSION

16

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Philip Morris. Inc.. 67 F.3d 580 (6th Cir. 1996)

9

Alexander v. Gardner-Denver Co.. 415 U.S. 36 (T974)

9

Blumv. Stenson. 465 U.S. 886(1984)

2

Deposit Guaranty National Bank v. Roper. 445 U.S. 326 (1980)

14

Kokkonen v. Guardian Life Insurance Co.. 114 S. Ct. 1673(1994)

12

Malchman v. Davis. 706 F.2d 426 (2d Cir. 1983)

6

McCall-Bev v. Franzen. 777 F.2d 1178 (7th Cir. 1985)

12

Robertson v. National Basketball Association. 556 F.2d 6^2 (2d Cir. 1977)

6

United States v. Alleghenv-Ludlum Industries. 517 F.2d 826 (5th Cir. 1975)

9

Wilder v. Bernstein. 645 F. Supp. 1292 (S.D.N.Y. 1986)

6

STATE CASES

Kalisch-Jarcho. Inc. v. Citv of New York. 58 N.Y.2d 377 (1983)

9

FEDERAL STATUTES

Fed. R. App. P. 29

1, 18

Fed. R. Civ. P. 23 (e)

4, 6,

12

OTHER AUTHORITIES

9 Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d §2367

8

u

PRELIMINARY STATEMENT This brief is submitted pursuant to Fed. R. App. P. 29, on behalf of amicus curiae, The Legal Aid Society. As we did in the District Court when it evaluated the fairness and adequacy of the settlement agreements in Marisol v. Giuliani, amicus seeks to explain the effect of the settlements and the dismissal of this litigation on our clients, who comprise the vast majority of the Marisol plaintiff class members. The Legal Aid Society has a role as amicus in the District Court, and asks this Court as well to consider the serious concerns of our clients.
THE AMICUS CURIAE The Legal Aid Society ("Society"), founded in 1876, is the oldest and largest law firm in the country providing legal representation to individuals and families who cannot afford to pay a private attorney. The Society's reputation has reached the highest level of the judicial system. The United States Supreme Court, in Blum v. Stenson. 465 U.S. 886, 890 n. 3 (1984), commented, "[The Society] enjoys a wide reputation for the devotion of its staff and the quality of its service." Since 1962, the Society's Juvenile Rights Division ("JRD") has represented children in the Family Courts of New York City. The Juvenile Rights Division represents the overwhelming majority of children in cases before the Family Courts involving child abuse and neglect, termination of parental rights, status offenses, delinquency, and other proceedings affecting children's rights and welfare. JRD attorneys and social workers handle the cases of some 45,000 children in these categories annually, including approximately 90 percent of the City's 40,000 children in foster care. The work of JRD professionals brings them into constant contact with the agencies and individuals responsible for the care and protection of our clients. It puts them in a unique

position to observe and assess the operations of the child welfare system on a wide scale and to identify specific problems. Although we address our clients' individual concerns about the system, case-by-case, at the Family Court level, we are also frequently obliged to seek remedies for systemic deficiencies impacting larger numbers of children through more broadly based litigation1. As it happens, our clients make up a large majority of the class member children affected by the Marisol litigation and its dismissal.
On January 22, 1999, the District Court in Marisol held a hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure to consider the parties' application for approval of settlement agreements reached between the plaintiffs and the New York City and New York State defendants, respectively. In conjunction with that hearing, The Society submitted written comments to the court which, while affirming the creative aspects of the settlements, expressed our deep concern that certain terms of the Marisol agreements will inhibit the ability of thousands of children in our caseload to obtain timely, effective relief from child welfare policies and practices that irreparably harm them. We reiterate before this Court our grave concern about the fairness, reasonableness and adequacy of the settlement with respect to the plaintiff class in light of two aspects of the agreements: (1) the releases and covenants not to sue that preclude existing claims as well as the claims of as-yet-unknown class members arising in the future; and (2) the District Court's dismissal of all claims with prejudice as of the date of its order, while at
'Over the years Legal Aid has successfully secured class-wide equitable relief in discrete areas of the child welfare system in the federal courts and in state courts of general jurisdiction. One such case. Jesse E. v. New York City Department of Social Services, a challenge to the City's practice of separating siblings in foster care, was the subject of a settlement approved by this Court and is currently in an active post-adjudication monitoring phase.

the same time retaining only severely limited jurisdiction to enforce the terms of the agreements or reinstate the original claims.
THE SETTLEMENT AGREEMENTS
The Marisol v. Giuliani lawsuit is global in nature, an attempt to achieve judicial child welfare reform of a scope and magnitude unprecedented in the history of New York City. The suit attacks on constitutional and statutory grounds virtually every area of the City's SI.2 billion child welfare operations, including abuse and neglect prevention, child protection, case assessment and planning, services provision, foster care and efforts to achieve permanency for children. See Complaint ^jf 187-324. It encompasses more than 100,000 children, including thousands who are not in contact with the system but may possibly be at risk of abuse or maltreatment. See Complaint ^[13-21. The essence of its request for relief is a judicial takeover of the system through the creation of a receivership. See Complaint f354.
In the settlement agreements reached with the New York City defendants ("City Agreement") and the New York State defendants ("State Agreement") plaintiffs have chosen to forego a judicial resolution of the controversy. The settlements, which are essentially private contracts among the parties and not "so ordered" decrees, required dismissal of the lawsuit with prejudice against the respective defendants upon the court's approval of the agreements pursuant to Fed. R. Civ. P. 23(e). The City Agreement, most notably, contains no injunctive or other enforceable relief, no specific tasks that the defendant government agency must perform, and no time deadlines. The centerpiece of the City Agreement is the parties' acceptance of the voluntary assistance for approximately two years of an independent Advisory Panel of four experts in child welfare, funded by a private foundation. See City Agr. 1HJ4-6. The goal of the settlement is

simply for the City's Administration for Children's Services ("ACS") to go forward with implementation of its own preexisting Pveform Plan, rather than a plan negotiated by the parties or developed with the help of the expert panel. City Agr. ^10. Using the ACS plan as a guide, the Advisory Panel is to study broadly defined areas of ACS' operations and issue reports and recommendations. City Agr. 1H7-25. The City's obligation under the agreement is limited to "cooperating] fully with the Advisory Panel's review processes . . . considering] fully each recommendation made by the Advisory Panel and to providing] the Advisory Panel full access to information, documents and personnel as it may request." City Agr. ]|9. The panel's "recommendations are not binding on ACS or the City but are purely advisory . . . ." City Agr. 110.
In exchange for the City defendant's cooperation with the purely advisory expert panel, plaintiffs' counsel has agreed that the plaintiff class members shall have no rights to pursue their existing claims during the next two years. They have also agreed to preclude both current and as-yet-unknown class member children's rights to seek judicial redress on even a limited systemic basis for claims that arise during the two years following the date of the settlement. Although equitable relief and damages may still be sought on behalf of individual children, the settlement prevents even individual class members from seeking any relief that has an impact on any class members other than themselves. See City Agr. ^fl[41-42, 47-48; State Agr. ^40-41.
The Marisol litigation was dismissed with prejudice upon the court's approval of the settlements, but the parties have provided in the City agreement that the district court will retain jurisdiction for very limited purposes: for "enforcing the terms of this Agreement during its term," and for reinstating a claim or claims in the event the Advisory Panel makes a finding that
4

the City has not acted in good faith. City Agr. 1J2. However, because there are no substantive terms of the agreement to enforce, practically speaking, the court's jurisdiction is in effect restricted to allowing the plaintiffs to move for reinstatement, subject to the panel's determination. See City Agr. ^26. ACS (but not the plaintiffs) will have an opportunity to discuss with the panel any preliminary "not in good faith" finding, ostensibly for purposes of convincing the panel not to "retainQ that conclusion" in a final report. City Agr. ^[24. It is only upon a final "not in good faith" finding that the plaintiffs will be allowed to make a motion before the court. Additionally, the plaintiffs are barred from using the panel "as, in effect, arbitrators or administrative law judges with respect to any disputes Plaintiffs may have with ACS." City Agr. f25.
ARGUMENT I.
Amicus Urges This Court to Examine Carefully the Way in Which the Overly Broad Covenants Not to Sue and Releases Bar Claims That Have Not Yet Arisen and Unfairly Affect Present and Future Members of the Plaintiff Class The general standard for judicial approval of a settlement in a class action is whether the settlement is fair, reasonable and adequate. Fed. R. Civ .P. 23(e); Malchman v. Davis. 706 F.2d 426, 433 (2d Cir. 1983). Despite the fact that Marisol was dismissed with prejudice upon approval of the settlement, the agreement nevertheless "reaches into the future and has continuing effect," so that "its terms require more careful scrutiny." Wilder v. Bernstein. 645 F. Supp. 1292, 1308(S.D.N.Y. 1986). We urge this reviewing Court to consider carefully the

reality of the circumstances in which the agreement will operate. In this regard, the "reaction of the class to the settlement" is perhaps the most crucial of the factors the Court is bound to consider. Robertson v. National Basketball Association. 556 F.2d 682, 684 n. 1 (2d Cir. 1977) (citing City of Detroit v. Grinnell Corp.. 495 r .2d 448, 463) (2d Cir. 1974).
As representatives of tens of thousands of class members, amicus urges this Court, as we urged the district court, to give "more careful scrutiny" to the potentially prejudicial effects of the non-litigation covenants and release provisions of the agreements. While we support the goals of this innovative agreement, we nonetheless have grave reservations about provisions of the settlements that will completely deprive our clients of the right to seek certain legal and equitable remedies for at least two years, without more than the mere hope that meaningful changes may someday occur.
In paragraph 41 of the City Agreement, plaintiff class members promise not to "sue, or bring or assign any cause of action, for systemic declaratory, injunctive, or other form of equitable relief against the City . . . in this or any other Court, based on events occurring prior to the signing of this Agreement and based on, arising out of, or relating to any claims that were or could have been asserted in the Complaint. . . ." Paragraph 42 similarly provides that plaintiffs will not commence any new action for such relief based on claims "which occur after the signing of this Agreement and prior to December 15, 2000," including claims which were not set forth in the Pretrial Order.2 Plaintiffs further release the City from all claims "known or unknown, foreseen or unforeseen, matured or unmatured, accrued or not accrued, direct or indirect... that
2The State settlement agreement contains similar non-litigation covenants. State Agr. WO-41.

[the plaintiff class] ever had, now has or have, or can, shall or may hereafter have . . . from the beginning of time" through December 15, 2000. City Agr. ^47-48. The settlement agreement expressly leaves room only for the assertion of legal and equitable claims "by an individual. .. tailored solely to the specific circumstances of that individual plaintiff." City Agr. 1)4 l(c). See also State Agr.^41.
In other words, the Marisol settlement agreement between the plaintiffs and the City defendants not only bars the plaintiff children from pursuing the claims raised in this litigation, but contains covenants not to sue and release clauses that reach out to bar future claims. These provisions preclude claims, perhaps by as-yet-unknown class members and regarding currently unforeseen events, that may arise in the roughly two years after the agreements were signed. While individual equitable relief and damages claims may still be pursued, the agreement precludes even individual children from seeking injunctive, declaratory or other equitable relief that has impact beyond themselves, both for existing claims and for many claims that have not yet arisen. It is written to encompass all claims that are or could have been stated in the Marisol Complaint or Intervening Complaint, as described in the plaintiffs' July 1998 Statement of Claims to be Tried. See City Agr.ffi[41-42,47-48.
Although the doctrine of res judicata, even absent the non-litigation covenants, would prevent the plaintiffs from raising again the same claims accruing prior to the 1995 Complaint or the 1998 Statement of Claims and dismissed with prejudice, res judicata alone does not bar new claims arising after the date of the agreement. See 9 Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d §2367. Indeed, the District Court recognized as much in its March 31, 1999 Marisol Decision at 19 (dismissal does not forever bar future claims: "after December 15,

2000, plaintiffs can bring an action seeking systemic declaratory, injunctive, or other forms of equitable relief based on claims arising after December 15, 2000 . . . ."). It is only the addition of the covenants not to sue and the releases in this private agreement that extend the claim preclusion into the future.
With specific regard to the banning of future legal claims raised by current or as-yetunknown class members, federal courts of appeals outside this Circuit have found that barring future claims is bad public policy, and that such settlements may not be fair, reasonable, or in the best interests of the whole class. The courts have stressed these concerns in particular with regard to waiving prospective claims based on violations of civil rights. See, e.g.. Adams v. Philip Morris. Inc.. 67 F.3d 580, 584 (6th Cir. 1996) (ADEA); United States v. AlleghenyLudlum Industries. 517 F.2d 826, 854 (5th Cir. 1975) (Title VIP: cf. Alexander v. GardnerDenver Co.. 415 U.S. 36 (1974) (waiver of prospective rights under Title VII). See also KalischJarcho. Inc. v. Citv of New York. 58 N.Y.2d 377, 384-85 (1983) (public policy dictates that exculpatory contract agreements, no matter how unqualified, will not exempt "willful or grossly negligent acts").
In this case, while the expert panel is conducting its long-range review of how the City will implement its own Reform Plan, a host of urgent problems infect all areas of the child welfare system. The root of these problems is systemic in nature. On a daily basis amicus' clients encounter serious and wide-spread deficiencies in kinship foster care practices, availability of resources for siblings and children with special needs, provisions of mental health and medical services and conditions in group foster care, to name but afew. Nowhere is this situation more acute than in cases of special needs children — estimated to comprise more than a
8

third of the total foster care population -- as well as countless other children being supervised in their homes. Relinquishing for two years the right to seek redress, where the children are especially vulnerable to harm, is contrary to the best interests of class members and contrary to public policy.
II. Amicus Asks This Court to Consider Carefully the Harm Caused by the Absence of Enforceable Relief in the City Agreement and the Lack of Alternative Means of Redress for Children Who Are and Will Be Members of the Plaintiff Class. In exchange for the covenants not to sue and the releases, the City Agreement affords no enforceable substantive relief to children who are currently members of the class and those who will join the class and suffer harm in the child welfare system over the coming two years.3 Even their right to invoke the court's jurisdiction for purposes of reinstating the original claims in the case is severely curtailed under the agreement, having been placed under the control of an independent and "purely advisory" body of child welfare experts, who are operating voluntarily, without judicial standards or guidelines, and whose recommendations for long-term agency change are "not binding" on anyone. City Agr. ^[10. We urge the Court to review carefully whether this sacrifice of class members' rights to seek relief, solely in favor of potential institutional improvement in the distant future, is a fair, reasonable and adequate exchange. A. The City Agreement Contains No Substantive Relief To Be Enforced.
The settlement with the City is structured as follows: All claims against the City are
3 Although plaintiffs' settlement with the State contains enforceable substantive provisions, chiefly in the nature of monitoring and reporting activities, the agreement with the City does not.

dismissed with prejudice immediately upon the court's signing of its decision approving the settlement — not at the end of the two-year period covered by the agreement. There is no injunctive relief as part of the settlement which would normally be enforceable by a court; rather the agreement provides only for the advisory panel to make non-binding recommendations. As the agreement is not "so-ordered" by the Court, it remains essentially a private contractual arrangement between the parties. The provision authorizing the Court to "retain jurisdiction" for purposes of "enforcing the agreement" (City Agr. 1J2) is deceptive and largely meaningless, both because the agreement itself defines more narrowly the circumstances under which jurisdiction can again be invoked by the plaintiffs and because the City has not committed itself under the agreement to do anything of direct benefit to the plaintiffs.
The City's only affirmative obligation under the agreement is to "cooperate fully with the Advisory Panel's review processes, to consider fully each recommendation made by the Advisory Panel and to provide the Advisory Panel full access to information, documents and personnel as it may request." City Agr. | 9 . The City is not even required to follow any of the panel's recommendations, which are expressly "not binding . . . but purely advisory, intended to assist ACS in achieving the reform goals it has set in each area under review." City Agr. ^10.
For its part, the Advisory Panel is to examine broadly defined operational areas of the child welfare system in light of the ACS Reform Plan; it may not "suggest approaches that would differ from the Reform Plan's overall goals and principles. City Agr. ]f8. The panel's focus is limited to determining the agency's good faith in implementing the Reform Plan. However, a lack-of- good-faith determination may not be based solely on whether the panel's recommendations have been followed, whether any reform efforts have actually been successful
10

or whether ACS has provided access to information. City Agr. ^20-21. On the other hand, the panel may excuse ACS' non-performance should it find that "significant legal and operating constraints", such as state and federal law, civil service laws or regulations, collective bargaining agreements or budget cuts, inhibit the agency in its reform efforts. City Agr. T[22. Finally, if, and only if, the panel reports a not-in-good-faith finding in an area under review are the plaintiffs entitled to bring the matter back before the court; and the only consequence of restoring the court's jurisdiction will be the opportunity to proceed with a trial of the original claim. City Agr. 1J26. In sum, the "relief agreed upon by the parties is insubstantial and of little or no concrete value to the plaintiff class. B The Unique Arrangement Dismissing Marisol and Granting the Panel the Authority to
Reinstate the Case Restricts the Federal Court's Authority to Enforce the Agreements What is unique to this class action settlement is that the arrangement does not specifically provide for any of the traditional means of continuing jurisdiction in the district court to enforce the terms of the settlement agreements. See Kokkonen v. Guardian Life Ins. Co.. 114 S.Ct. 1673 (1994); McCall-Bev v. Franzen. 777 F.2d 1178 (7th Cir. 1985). The District Court here approved a dismissal with prejudice that simultaneously provides for the possibility of a Rule 60(b)-type reinstatement but delegates the power to reinstate the action to an entity completely beyond the influence and control of the Court or the parties 4. The Advisory Panel ~ a group of experts operating voluntarily, at its own expense, and answerable to no one- is the sole arbiter of when the court may again have jurisdiction over this case. It is only upon a finding by the panel that
4See March 31, 1999 Decision at 5-6 (approving the settlement agreements pursuant to Fed. R. Civ. P. 23(e) and dismissing the claims in Marisol). The Court does not refer specifically to Rule 41 or to Rule 60(b).
11

the defendants have not complied in good faith with the terms of the settlement agreement that the plaintiffs may move the federal court to consider any aspect of this litigation. City Agr. H21-26.
Amicus questions the wisdom of a scheme which limits in this manner the plaintiffs' ability to seek relief from the dismissal and the court's power to grant reinstatement. Though the City Agreement goes into great detail about when and how plaintiffs may move to reinstate this action rather than filing a new action — in effect, defining a type of Rule 60(b) motion, the circumstances defined make it highly unlikely that such a motion could be filed. Under the City Agreement, the plaintiffs can make a motion for the litigation to be reinstated in whole or in part only if the panel deems the City not to be acting in good faith. Even if the panel should make such a finding as a preliminary matter, ACS, but not the plaintiffs, has the opportunity to discuss their behavior with the panel and attempt to dissuade the panel from stating this conclusion in one of its final reports. City Agr. 124. There is no provision otherwise for the court to consider a motion, as Rule 60(b) would provide in a normal situation.
Furthermore, the Advisory Panel's determination to find good faith or not, unlike the decisions of a federal magistrate judge or a court-appointed Special Master, cannot be reviewed or overturned by the court. Similarly, in contrast to a federal court order denying an actual Rule 60(b) motion, which is final and appealable, the panel's decision not to allow a motion for reinstatement of the action is not appealable. Additionally, whereas Rule 60(b) does not define the standard for vacating a judgment, the City Agreement superimposes a bad faith requirement without stipulating any judicially-approved guidelines by which the panel must evaluate good faith. Thus the independent panel becomes the exclusive, standardless and unreviewable
12

gatekeeper for the possible reinstatement of the action. This unorthodox arrangement will harm plaintiff class members by unfairly restricting
their access to court in the event the agreements are not complied with in part or whole. Not only will the plaintiff children be unable to enforce the substantive terms of the agreement by seeking court intervention, but they are likewise barred from asking the court to reinstate the action by the restrictive provisions that are offered as a substitute for Rule 60(b). While amicus applauds and supports on behalf of its clients the agreement of the parties to utilize the services of a distinguished panel of experts, we are nevertheless gravely concerned that children will be denied access to seek review of the private panel's determinations regarding defendants' good faith performance and, ultimately, to petition for the redress of palpable harms. C. There Are No Effective Alternative Remedies.
The Marisol agreements leave class members no dependable alternative mechanisms for addressing immediate systemic grievances. Case-by-case resolution of individual complaints cannot begin to get at the underlying causes of such shortcomings. See, e.g.. Deposit Guaranty Nat'l Bank v. Roper. 445 U.S. 326 (1980). To the contrary, individual litigation is the most inefficient and ineffective approach to problem-solving. It requires constant revisiting of the same issues, virtually on a daily basis, in the trial courts and severely tests the limited resources and energies of the participants in those proceedings. What is worse, individual litigation of an injunctive nature invariably pits children against one another in a contest for vital but scarce services, ensuring that some class members will succeed in getting the care and treatment they need at the expense of others. Amicus is concerned that the inability of class members to address
13

the policies and practices responsible for their difficulties may mean, for them, no "effective redress" at all. kL at 338.
Nor can the Marisol Advisory Panel be expected to investigate and intercede expeditiously in discrete areas of the system. Amicus has explored such a proposition with the panel members; and even with their impressive talent and commitment, their ability to act in this manner is highly doubtful. First, the panel, including its staff, is of limited size, consisting of only six people with the monumental task of examining the child welfare system in its entirety. Second, though the parameters of its investigations are only loosely delineated in the City Agreement, the panel does not envision its role as that of an ombudsman ~ resolving problems that affect children on a daily basis. Rather, the panel members expect to focus on the overarching administrative and policy issues that are key to long-term institutional transformation. Thus, the likelihood of drawing the panel's interest and energies toward more mundane functions of the system appears remote. Moreover, whatever the panel's own perception of its role may be, the City Agreement precludes approaching the panel for such purposes: "Nothing in this Agreement creates any rights for Plaintiffs to utilize the Advisory Panel as, in effect, arbitrators or administrative law judges with respect to any disputes Plaintiffs may have with ACS." See City Agr. ^[25.
Informal negotiation at administrative levels is an equally unsatisfactory alternative for the children who suffer because of urgent systemic deficiencies. During the past three years amicus has made conscientious attempts to pursue negotiated solutions to pressing issues with the Administration for Children's Services, rather than resorting immediately to the courts. In general our working relationship with ACS officials has been a positive one. For the most part.
14

however, progress has been painfully slow. While we intend to continue working together with the City on behalf of our clients wherever possible in the future, we are distressed that our clients will be barred from taking collective legal action when it is necessary.
In summary, the all-encompassing Marisol lawsuit was filed four years ago, presumably in the conviction that attacking the immense New York City child welfare system with a single, massive blow was the only effective way in the long run to ensure meaningful systemic reform. With these settlement agreements, plaintiffs' counsel have dramatically changed course. They have stepped away from litigation, deferring to a group of child welfare professionals who will determine whether or how the system can be repaired. They have left the City free of any judicial pressure for at least two years while officials attempt to carry out their self-described reform plan, even though full realization of this "unfinished roadmap" cannot be expected under the best of circumstances for years to come. See City Agr. p.3. However, two years is comparable to a lifetime for flesh and blood children, who may wait in vain for the advantages of administrative restructuring to trickle down to them. Though plaintiffs' counsel may have defensible reasons for embracing this non-judicial approach, our concern is that in agreeing simultaneously to suspend the pursuit of all systemic judicial relief, they unfairly sacrifice the immediate interests of a great many class members for the mere potential of long-term change.
CONCLUSION On behalf of the many children represented by The Legal Aid Society who are and will be members of the plaintiff class in this litigation, amicus urges this Court to consider carefully the concerns discussed above as the Court reviews the District Court's approval of the settlement as fair, reasonable and adequate.
15

Dated:

New York, New York May 18, 1999

Respectfully submitted,
THE LEGAL AID SOCIETY 90 Church Street, 15th floor New York, NY 10007 212-577-3300 DANIEL L. GREENBERG Attorney in Chief JUVENILE RIGHTS DIVISION Monica Drinane Attorney in Charge

Monica Drinane 5826

16

CERTIFICATE OF COMPLIANCE Nancy Rosenbloom, one of the attorneys for the amicus curiae, The Legal Aid Society, certifies that this brief complies with the type-volume limitation in Federal Rules of Appellate Procedure Rule 29(d) in that the brief contains 4,680 words.
NANCVROSENBLOOM 1275

 
 Marisol A. v. Giuliani
CW-NY-001-009
Following is a copy of the Panel's letter accompanying the report, as it was submitted to U.S. District Judge Robert Ward.
December 6, 2000
Hon. Robert Ward United States District Court 40 Centre Street New York, NY 10013
Dear Judge Ward:
The accompanying document is the Final Report of the Advisory Panel established under the stipulation of settlement in Marisol v. Giuliani. In this report, we review, in the context of the Panel's recommendations, the work done by the Administration for Children's Services over the past two years. We also look to the future, and suggest those further actions by ACS that we believe would do most to improve prospects for children and families.
We hope it will be useful to provide you with some context and background regarding the conclusions we draw in the report, and then to comment more broadly on our experience as Panel members.
The Panel's Conclusions
The settlement agreement assigned us the task of determining whether "...considering all the applicable circumstances, ACS is acting in good faith in making efforts towards reform in the operational areas being reviewed." It required us to consider good faith broadly, taking into account the legal and operational constraints ACS faces. We were instructed not to draw conclusions based "solely" on whether ACS implements specific Panel recommendations or its timeliness in doing so, but encouraged to consider these factors among others.
We are not lawyers, and we do not presume to define the term "good faith," but we think it important to convey to you how we understood this task. On one hand, we thought that, for this settlement to be a meaningful document that truly reflected the parties' mutual intention of furthering child welfare reform in New York City, "good faith" had to mean more than simply hard work and honest intentions. On the other hand, we had to recognize that "good faith" is a standard that stops short of demanding that significant, observable improvements already be in place in each of the areas studied by the time the settlement agreement expires on December 15,2000.

Our thinking in this regard was further influenced by the limited, two-year time span of
the settlement. It is our universal experience that change in large, complicated
bureaucratic systems takes a long time to accomplish. Many of us have spent years trying to improve systems far smaller than New York City's. Our experience leaves us with both a passionate conviction that it is possible to make child welfare systems much, much better, and a sense of humility about the magnitude of the effort required and how long it can take to see results. While two years was certainly sufficient time for us to come to an understanding about ACS's good faith in pursuing change, we understood from the beginning of our work that it was a very brief period in which to attempt to draw fair conclusions about the long-term impact of New York's reform efforts.
This is so especially because of the kind of change we hoped to promote. In many child welfare systems, change efforts have taken the form of crisis response. Too often, wellintentioned attempts to quickly remedy longstanding, serious problems have failed to get at the roots of those problems, and change has proved short-lived. One of the things that made us willing to take on this work in New York was the sense that a much deeper and more sustained effort at reform might be possible here. Accordingly, in many instances we have encouraged ACS to take actions that we believe will produce very substantial benefits, but whose effects are not likely to be felt immediately. In these areas (to cite just a few examples, improvements in training, supervision, evaluation systems, financing, the use of data, and the clear communication of values and policies), major change takes significant time to realize, but with potentially far greater payoff than activities that can be accomplished more quickly would produce.
Accordingly, as we examined the question of good faith, we asked ourselves questions like the following. To what extent has ACS identified, both on its own initiative and with the Panel's assistance, the key changes needed to reform this system? How quickly and how thoroughly has it responded to each of these needs? How relevant have its responses been? To what extent has it secured the resources needed to make change possible? How thoroughly has it communicated its vision of change and worked to influence other key stakeholders whose actions are also essential to the reform effort?
We have concluded that ACS has acted in good faith in each of the areas reviewed by the Panel. The facts that led us to these conclusions are detailed in the report, and we will not repeat them here, but we think that two general observations are warranted.
First, we are unanimously convinced that the breadth and pace of ACS's reform efforts are themselves compelling evidence of good faith, hi reviewing ACS's responses to many specific Panel recommendations, we do not want to lose site of the big picture. For most child welfare systems, it would be a very daunting proposition to reconfigure services along neighborhood lines, or to thoroughly overhaul the management of child protective services, or to dramatically increase the amount of training available to staff, or to reform civil service titles and substantially increase salaries for staff and supervisors, or to significantly change reimbursement and evaluation systems for contract providers, or to undertake family case conferencing at key points throughout the life of a

case. ACS has taken on all of these challenges, and more, and in our view it has done so with at least deliberate speed in virtually every area.
Second, it would be a very serious misreading of our Final Report if these conclusions regarding good faith were read as a judgment that this system has been fixed. In our view, ACS has made remarkable progress in many areas that must be changed if children and families are to have a better experience. The reforms already implemented were necessary, but they are not yet sufficient, to produce that better experience. Throughout this report, we identify critical areas in which we cannot yet observe sufficient change in the front line and supervisory practice that really determines what happens to the citizens who come into contact with New York's child welfare system. In the final section of the report, we identify those further actions we think would make the most difference in translating the many changes already undertaken into real practice improvement.
We believe that this assessment is shared by ACS and by other key stakeholders, and we present it here to reinforce the point that the continued efforts of everyone involved in this reform process over the next several years are absolutely essential to its long-term impact.
The Settlement as a Vehicle for Change
The Marisol settlement was an innovative effort to find a constructive solution to a common problem. Plaintiffs believed that, given the long and troubled history of child welfare in New York City, only a court decree could assure the public that real, sustained change would occur. Defendants believed that they had made a very substantial commitment to reform, and that the burden of trying a complex case, and perhaps of complying with a traditional settlement decree, would do more to impede than to advance their efforts. In our view, both parties deserve a great deal of credit for thinking their way out of this box and deciding on a promising but untested approach that revolved around the creation of this Panel.
We are, of course, not disinterested observers; our reflections on the work of the past two years necessarily risk being self-serving. Nevertheless, we think it worthwhile to report that we believe that the experiment has been a useful and, on the whole, a successful one. We say this because we believe that we have largely been able to carry out both of the complex and sometimes conflicting roles the settlement called on us to play.
First, of course, we were to advise ACS on how best to carry forward its reform efforts. In our view, ACS's leaders have been open to influence throughout this process. We believe that the effects of our continuing conversation with them can be felt both in areas where important reform efforts that might otherwise not yet have been addressed are now underway, as well as in areas where the pace and complexity of ACS's reform efforts have increased.
Second, the Panel has held the weighty responsibility of being a voice of public accountability for reform. In this role, we have met widely with stakeholders throughout

the system; have distributed our reports to everyone we could identify with an interest in them; and have tried to be as specific as possible in formulating recommendations concrete enough to permit the public, not just this Panel, to make informed judgments about ACS's efforts. We have also continually encouraged ACS to report data concerning its goals and the actual performance of the system, and to distribute this information as widely as possible. We hope that these efforts have had some impact in building public confidence in the prospects for change in New York City.

It has been a privilege to take part in this work, and we conclude with our thanks - to this Court; to all of those who have informed us and otherwise assisted the Panel over the past two years; and most of all to everyone involved in the difficult, frustrating, essential, and we believe ultimately rewarding struggle to improve child welfare in New York City.

Sincerely,

Douglas W. Nelson Paul Vincent Judith Goodhand

Carol Wilson Spigner John Mattingly

FINAL REPORT
December 7, 2000

Part I: Introduction and Background
This is the final report of the Special Child Welfare Advisory Panel, a body created to advise New York City's Administration for Children's Services (ACS) on how best to further reform of the City's child welfare system. The Panel was created as part of the settlement of litigation against the City (Marisol v. Giuliani), and the settlement agreement required it to carry out two sets of tasks.
First, the Panel was asked to develop Initial Reports addressing five specific aspects of child welfare in New York. It has done so in four reports: on permanency (issued February 11, 1999); on the placement of children in foster care (May 21, 1999); on monitoring and improving the performance of contract agencies (October 14, 1999); and, combining two topics in one report, on front line and supervisory practice (March 9, 2000). Each report contains the Panel's analysis of the critical issues related to the topic, along with recommendations for specific actions and proposed timetables for their completion.
The second set of Panel activities is a set of Periodic Reports, which gauge ACS's progress in these same areas. The Panel has issued three such reports: #1, addressing permanency (November 10, 1999); #2, addressing placement (May 18, 2000); and #3, addressing contract agency issues (August 31, 2000). Each of these reports contains benchmarks for further improvements, again with recommended timeframes.
The Marisol agreement terminates on December 15, 2000. Accordingly, we will, in this report, review all of the subjects covered in our Initial and Periodic Reports. The balance of this document is organized as follows.
• In Part II, we examine changes in New York City's child welfare system over the past several years. Our review incorporates both statistical evidence and an examination of those policy, system, and practice changes that have actually been implemented by ACS and contract agencies.
• In Part III, we examine those further changes that are currently being implemented or planned. This section is organized around the recommendations and benchmarks in the Panel's prior reports, and it includes an evaluation of ACS's progress in each area. In some areas, we suggest further benchmarks that the public can use to gauge improvement over the next year. Part III also contains, as required by the Marisol settlement, the Panel's conclusions about ACS's good faith in carrying forward system reform in each of the report areas.
• In Part IV, we step back from this detailed review and identify those activities we believe would be most effective in producing further broad, lasting improvements in New York City's child welfare system. Here we identify two themes around which we believe ACS could usefully build its next set of reform efforts, and we suggest specific, concrete actions related to those themes.
• Finally, a brief Appendix presents the results from a questionnaire concerning front line and supervisory practice.

The Panel gathered information for this report between August and November, 2000, from the following sources: • an extensive review of data, policies, procedures, and practice manuals provided by
ACS; • review of audits of ACS performance, and reports on aspects of the child welfare
system, by other government agencies and advocacy groups; • meetings with leaders of ACS and contract agencies, at which we reviewed both
broad policy directions and the specific actions completed, underway, or planned in the areas addressed by prior Panel reports; • meetings with supervisory and front line staff of ACS and contract agencies, at which we examined the extent to which the actual day-to-day work of these individuals has changed in the recent past or is now changing; • meetings with a large number of individuals who are knowledgeable about New York's child welfare system, including parents of children in foster care; leaders of the Family Court; attorneys and social workers who represent children and parents; and advocacy groups; • observation by Panel members of a significant number of family case conferences and service plan review meetings; • review of data from a questionnaire distributed by the Panel to approximately 130 of the individuals we met with during the past four months, asking for their impressions about change in key aspects of child welfare system performance.
We have also taken into account, in drawing conclusions in this report, comparisons between the reform effort in New York City and the scope and progress of similar endeavors in other large child welfare systems in the United States.
Throughout this process, we continued to have the full cooperation of ACS in supplying access to materials requested by the Panel and to ACS staff. We express our thanks to ACS leaders and staff, along with the many individuals from contract agencies, the court system, and legal and advocacy organizations, and the birth parents, youth in care, and foster parents, who have provided the Panel with information and guidance over the past two years.

Part II: What Has Changed in New York City's Child Welfare System?
We begin this report with an effort to assess how conditions in New York City's child welfare system are different from the way they were two years ago. Before turning to specifics, we think that two general observations are in order.
First, we believe that ACS has engaged over the past several years in a sustained, intelligent effort to change a complicated and difficult system, presided over by a talented group of leaders that has remained remarkably stable throughout this period. The scope and pace of ACS's reform effort compare favorably to similar efforts we have seen elsewhere in the country, addressing such widely different challenges as civil service reform, training, improved management controls, evaluation of contract providers, neighborhood-based services, family case conferencing, reimbursement systems, and the addition of substantial new resources, among other changes. In each of these areas, ACS and the other stakeholders in this system have much to be proud of. We will spend much of this report identifying those things we believe still need to be done, and that are in some cases absolutely essential, in order to make things better for the children and families who come into contact with ACS and its contract agency partners. The record of accomplishment already compiled should be the public's best evidence that it can demand further change with confidence that it can be accomplished.
Second, ACS had begun a reform effort well before this Panel came onto the scene, some of which focused on areas such as child protective services that have been outside of our purview. For the past two years, we have tried to assist ACS to broaden and deepen its reforms in the areas specified by the Marisol settlement, by identifying critical issues, proposing improvement goals, and recommending those specific actions we thought most likely to produce change. We devote much of this Final Report to a review of ACS's response to these Panel recommendations. It is therefore especially important to note that there are important accomplishments (for example, civil service changes that make it possible to secure more qualified staff and to compensate them more appropriately, and the improved management of child protective services operations) that pre-date any of our work, and others (for example, family case conferences and the effort to build a neighborhood-based service delivery system) that began earlier and have, we hope, been strengthened by our recommendations.
We now turn to the subjects of each of the Panel's four Initial Reports, and examine relevant data, along with those policy, system, and practice changes that have already been implemented. Our purpose here is to help the reader draw informed conclusions about what has changed significantly, and what has not, during this time.

A. Permanency
1. Policy, System, and Practice Changes Related toPermanency
Principles. ACS has developed principles regarding permanency, meant to guide the efforts of staff throughout the child welfare system. It has disseminated them widely and begun to incorporate them into its training curricula. With these principles, ACS publicly committed itself to the propositions that "all children deserve safe, nurturing, permanent families who can provide an unconditional, lasting commitment to them;" that "a child who can be protected within his or her own family and home with the support of community services should not come into foster care;" that "if placement into foster care is required to ensure a child's safety, the family should be fully engaged in planning for services and the child's safe return home as soon as possible;" and that "preventive and foster care services must be family-focused, culturally and linguistically competent, and accessible in the community," among others.
Neighborhood-based services. ACS has reconfigured most child welfare services along community district (CD) lines. Contracts for foster care, preventive, and homemaking services are now issued by CD, and ACS's protective service workers are also assigned by community. ACS has also developed ambitious targets for the recruitment of foster homes in each community sufficient to allow children coming into care to remain in their own neighborhood. This has been a massive effort, involving the reallocation of hundreds of millions of dollars in contract funds and the reassignment of thousands of staff in ACS and contract agencies. We believe that it is likely to produce many benefits for families and children, by increasing the likelihood that parents will be connected to culturally responsive support services they can readily access, in languages other than English when necessary; helping children in foster care remain in the same school and near parents, relatives, and friends; promoting regular visiting between parents and their children in foster care; and building positive working relationships between the ACS and contract agency staff who serve each neighborhood.
Child Safety Conferences. ACS has instituted Child Safety Conferences, intended to involve parents and all service providers very shortly after placement in deciding what needs to be done to achieve permanency while assuring the child's continued safety. In FY'98 there were no such conferences; in FY'OO there were 3,068, plus an additional 471 "elevated risk" conferences held prior to placement in the hope of averting the need for foster care. By July 2000, ACS held 405 conferences in a single month, of which 93 were for elevated risk. Parents attended 72% of these conferences. In our view, the adoption of this model by ACS has created very important opportunities for better service planning; early engagement of parents and their supports; and improved exchange of the information needed to assist families. The additional conferences being implemented by ACS, described just below, will further strengthen this effort. In Parts III and IV of this report, we provide our thoughts on how to improve the quality of these conferences and make full use of the opportunities they create.

Family permanency case conferences. ACS has instituted Family Permanency Conferences, to be held within 30 days of placement. These conferences are designed to build upon the work begun at the Child Safety Conference, bringing together the parent and all service providers once again after services have begun and much more is known about the family's situation. ACS began to pilot these conferences at the end of FY'00, and has recently implemented them city-wide.
Discharge case conferences. ACS has instituted family case conferences when children who have entered care because of abuse or neglect are ready to return to their parents. These conferences provide a valuable opportunity to ensure that there is a useful discharge plan, including connections to preventive services where appropriate, that will support the family and decrease the likelihood of renewed problems that might lead to the need for re-entry into foster care. From July through September 2000, 129 such conferences were held; ACS expects that this figure will grow substantially within the next several months.
Service Plan Reviews. ACS has instituted a series of changes designed to make the biannual Service Plan Review (SPR) required by State regulations into a much more valuable forum, in which real decisions regarding permanency, safety, services, and visiting take place. It has promulgated Permanency Review Guidelines for use in these forums; trained the staff of its Office of Contract Agency Case Management (OCACM) to play the role of "permanency advocate;"; strongly encouraged increased participation of birth parents in these meetings, and begun to collect and use data on this subject; and, most recently, begun joint training of OCACM and contract agency staff on a new and useful protocol for SPR's. The data collected to date indicate that this effort, while valuable, has not yet produced substantial gains in attendance at SPR's by birth parents, foster parents, and youth in care; for example, birth parents attended 39% of the SPR's held in February, 2000, and 38% of those held in July, 2000. We will return to this subject in the final section of this report.
2. Data Related to Permanency
The number of children in foster care decreased by 17.9%, from 39,563 at the end of June 1998, to 32,470 at the end of June 2000. The New York City foster care population is now lower than it has been at any time since 1989. The number of children admitted to the foster care system decreased by 23.6%, from 12,536 in FY'981 to 9,583 in FY'00. (By comparison, the number of new allegations of abuse or neglect decreased by 7.3% during the same time period, from 57,732 in FY'98 to 53,540 in FY'00.) The total number of families provided with preventive services at any time during the year decreased by 2.0%, from 18,416 in FY'98 to 18,052 in FY'00. This decline
i " F Y ' 9 8 " is New York City Fiscal Year 1998 (July 1, 1997 - June 30, 1998); FY'00 is Fiscal Year 2000 (July 1,1999 - June 30,2000). Elsewhere in this report we will use "CY" for data reported on a calendar year basis, e.g. "CY'99" would be January 1, 1999-December 31, 1999.
10

appears to be attributable to the changes resulting from the new contracts ACS

awarded during Fiscal Year 2000, as some existing providers had to stop opening

cases while new programs were not yet up and running. For Fiscal Year 2001,

however, ACS has funded a substantial expansion of preventive services. When the

new programs are fully functioning, contract providers will have the capacity to serve

at any one time 9,945 families in "general" preventive programs, up by 34% from

7,411 in FY'98, and 1,150 families in intensive (Family Rehabilitation) programs, up

by 26% from 910 in FY'98.

ACS's protective services are increasingly likely to refer families for help from

contract preventive services programs. In FY'OO, contract providers opened 3,147

cases referred by ACS, up 11.2% from 2,829 in FY'98 and by 23.1% from 2,556 in

FY'97.

The number of cases opened by ACS's directly provided Family Preservation

Program decreased by 8.4%, from 902 in FY'98 to 826 in FY'OO.

The number of adoptions completed in FY'OO was 3,148, a decrease of 18.4% from

3,860 in FY'98. However, it should be noted that the earlier figure was achieved at

the end of a period of very rapid increases in adoptions. From FY'94 to FY'98 the

number completed annually rose by 67.0%, from 2,312 to 3,860.

It is difficult to draw clear conclusions from data concerning the speed with which

children are able to leave foster care. The most useful statistics on this topic address

the experience of "cohorts" of children entering care (so, for example, they allow a

comparison of the proportion of children who entered care in 1998 who were able to

leave within one year against the same statistic for children who entered care in

earlier years). These data appear to indicate small improvements in discharge rates

for several years, a decline in performance for the 1998 entry cohort, and renewed

improvement for the 1999 cohort, for which of course only limited information is

available.

Year Entered % Who Left

% Who Left

Care

Within 6 Months Within 12 Months

1995

29.9%

38.4%

1996

30.2%

39.6%

1997

32.8%

41.6%

1998

29.8%

38.3%

1999

32.7% data not available

The data regarding how quickly children who are being adopted move through that

process also present a mixed picture. On one hand, the likelihood that these children

will have their permanency goal changed to adoption within 18 months of their entry

into foster care has decreased slightly over the past two years. In FY'98, 23.7% of

children in contract agencies with a goal of adoption, and 8.0% of those in ACS's

direct foster care program, had had this goal established within 18 months. In FY'OO,

the corresponding figures were 23.0% and 7.0%, respectively. On the other hand,

once the goal change takes place, the likelihood that the adoption will proceed

promptly appears to be increasing. In FY'98, 32.2% of children adopted from

contract agencies, and 9.2% of those adopted from ACS's direct foster care, had their

adoptions completed within 27 months of the time the adoption goal was set. In

FY'00, these figures increased to 37.4% and 21.3%, respectively.

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Taken as a whole, we believe that these data give some indication of system-wide progress with regard to permanency, particularly with regard to the declining rate of admissions to foster care coupled with the increasing use of preventive services in cases of abuse or neglect.
B. Placement
1. Policy, System, and Practice ChangesRelated to Placement
Placement Principles. ACS has developed principles to guide its staff in making placement decisions. The principles commit the organization to placing children whenever possible within their own communities, with siblings, with kin, and in stable and appropriate settings. They also address the need to folly inform parents about their children's placement and the conditions needed for reunification, and to take all possible steps to reduce the trauma experienced by children in the placement process. When fully understood and utilized by staff and supervisors, we believe that these principles will help ACS routinely make better, more thoughtfiil placement decisions.
Resources Related to Placement and Prevention. Through the RFP process it conducted in 1998 and 1999, ACS funded additional placement and preventive services resources. When all of these programs are fully operational, the additional placement resources will include: an expansion of more than 50% in the therapeutic foster boarding home program; 95 additional congregate care beds for "hard to place" youngsters; 276 additional beds for teen mothers and their young children, an increase of nearly 100% in the prior capacity for this population; 34 additional group care beds for gay, lesbian, and trans-gendered youth, which is also an increase of nearly 100%; and an increase from 155 to 429 beds, or 176%, in the supervised independent living program Similarly, as noted earlier in this section, ACS committed to a substantial increase in preventive services funding.
Approximately half of the new general preventive services programs, and about one-third of the new Family Rehabilitation programs, have now opened and begun to serve clients, and ACS expects that all remaining programs will be serving clients by March 31, 2001. Most of the additional placement resources are still in development. Two group homes for mothers and babies have already opened, and ACS expects to open a group home and three agency operated boarding homes for gay, lesbian and transgendered youth between December, 2000 and February, 2001. ACS also expects that significant additional resources addressing the broad range of needs identified in the RFP will be in place by June 2001.
Annual Placement Report. ACS has, for the first time in the history of New York City's child welfare system, gathered and publicly disseminated data on the placement experience of children entering the foster care system. The First Annual Placement Report (issued July 2000) addresses such topics as child demographics; placement in
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community, with siblings, and with kin; and transfer and re-placement rates. It also addresses basic questions about the equity of the placement process by breaking down certain key data by age, gender, and race/ethnicity. We are concerned by the frequency with which race/ethnicity and religion are recorded as "missing," and will return to this subject in Part III. Nevertheless, we think this report substantially increases the clarity with which the public can understand the system's performance and provides an important foundation for accountability and continued improvement.
Reducing the number of children at the "pre-placement" facility and improving conditions for them. ACS has reorganized its field office operations to permit the nurseries in each borough to remain open until 9 p.m. each night. In August, the most recent month for which data are available, 106 children who would previously have had to travel to Laight Street in Manhattan at the end of the regular business day were able to remain at the field office in their home borough, sparing them the additional trauma involved in having to move between multiple locations under the care of many different individuals while awaiting placement. ACS has also completed construction on, and is about to open, a new Children's Center in Manhattan, which will provide a far more spacious, comfortable, and appropriate environment for children awaiting placement than Laight Street.
2. Data Related to Placement
• For the six month period January-June, 2000, 10.0% of the children placed in nonrelative foster boarding homes were kept in their home Community District; 40.2% were placed in a different CD but in their home borough; and 49.8% were placed outside of their borough. ACS began monitoring these statistics recently, as part of its emphasis on neighborhood-based placement, so the earliest available comparative data are for FY'99. The comparison shows that children are significantly more likely than they were a year ago to be placed near their homes: in FY'99, 4.8% remained in their home CD, 26.0% were in a different CD in their home borough, and 69.2% were placed outside of their borough.
• The proportion of children entering foster care who were placed with relatives increased from 16.4% in FY'98 (2,054 children placed with kin out of 12,536 total admissions) to 19.5% in FY'OO (1,868 of 9,583). However, it should be noted that the FY'OO figure represents a decrease from FY'99, when the kinship placement rate reached 20.7% (2,201 of 10,646 admissions). (When considering kinship placements as a percentage of all foster boarding home placements, thus excluding congregate care placements from the analysis, the trends are similar. In FY'98, 21.6% of foster home placements were with relatives; this figure increased to 27.2% in FY'99, and this gain was partly offset by a decrease to 25.3% in FY'OO.)
• In FY'99, 7,502 children entered foster care as part of a group of two or more siblings. 53% of these children were placed together with all of their siblings in the same facility; 27% were placed with at least one of their siblings; and 21% were completely separated from siblings.2 Data permitting comparison of these figures with earlier time periods are not available. However, another set of data allows
' These figures add to more than 100% because of rounding.
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comparison of the experience of sibling groups who enter foster care at the same time. Incomplete data for CY'OO show that, when two siblings come into care on the same day, they have been placed together 94.7% of the time, as have 86.5% of siblings in groups of three and 54.6% of those in groups of four. Each of these figures is an increase over comparable data for CY'98, where the corresponding figures are 92.7%, 71.1%, and 35.4%, respectively. • In FY'OO, 3,031 children spent a total of 5,257 nights at ACS's "pre-placement" facility at Laight Street, because ACS was unable to find a suitable placement for them quickly enough. This is a decrease of 37.1% from the 4,820 children who had to stay overnight, and of 42.3% from the total of 9,114 overnight episodes, in FY'98.
These data indicate some progress in meeting system goals for placing children in their own neighborhoods, with relatives, and together with their siblings, and in finding placements in a timely manner.
C. Monitoring and Improving the Performance of Contract Agencies
1. Policy, System, and Practice Changes
Foster Care Evaluation System. In the past two years, ACS has developed and implemented a system for evaluating foster care programs that is far more sophisticated and comprehensive, and far better aligned with its policy goals and with good child welfare practice. The EQUIP system incorporates reviews of the outcomes achieved by providers (timely reunification of families and completion of adoptions, prevention of reentry into foster care, and preparation of youngsters for independent living); measures of the services provided; and measures of compliance with key regulatory requirements. ACS is currently completing the first round of EQUIP evaluations and anticipates using the results for decisions about contracts for the Fiscal Year beginning July, 2001.
Changes in Reimbursement. ACS has instituted a reimbursement system, known as STAR, which allows providers to keep some of the savings they produce by achieving permanency for children more quickly. STAR is a response to the disincentives to permanency that are inherent in a per diem reimbursement system, which pays agencies only when children are in foster care. Because of this initiative, the way in which ACS pays contract agencies is now much better aligned with the agency's policy goals. ACS has also used STAR to advance funds to contractors so they can innovate in ways that will further permanency.
Capacity Management. ACS has implemented a system by which it will manage the utilization of each contract provider to its contract level. In the past, agencies grew or got smaller largely because of their efforts at recruitment and their availability to ACS placement staff. This new model makes it possible for ACS to make explicit decisions to send more children to those agencies best able to provide high quality services and meet the system's policy goals.
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Collaboration. During the past two years, ACS has provided far more opportunities for contract agency providers, along with other stakeholders, to participate in policy decisions. ACS more often consults with these knowledgeable individuals early in the process and continues to do so repeatedly until final policies are completed. Although it is impossible to measure the effects of this change, our conversations lead us to believe that it has had a significant impact on stakeholders' commitment to carry out system reform efforts.
D. Front Line and Supervisory Practice
1. Policy, System, and Practice Changes Related to Front Line and Supervisory Practice
Training. ACS has identified, advocated for, and obtained the resources needed to permit greatly enhanced training of all staff throughout the child welfare system, including those in contract agencies as well as ACS employees. Its plans to deliver this training are addressed further in Part III (D), below. ACS has also developed, at its new Children's Center in Manhattan, a state-of-the-art training facility that will enhance its training capacity.
Many other ACS initiatives addressing front line and supervisory practice are currently being planned or implemented; we review their status as well in Section D of Part III, below.
2. Data Related to Front Line and Supervisory Practice
We have three sources of information.
a. Audits by the Office of Childrenand FamilyServices
The New York State Office of Children and Family Services has provided data on ACS's child protective services work (Case Record Review #1, August 2000), derived from a case review it conducted jointly with ACS. The State study documents improved compliance with regulatory standards across a wide variety of activities, including timely initiation and completion of investigations; interviewing or observing all at-risk children; contacts with collaterals likely to have information relevant to the investigation; and evidence of supervisory involvement and review of the investigation decision. It found problems, and required corrective actions, with regard to information gathering by protective staff, legal notifications to subjects of reports, and a number of other issues. Taken as a whole, the report suggests significant improvements in child protective practice in New York City.
OCFS is also planning to release an audit of foster care services in New York City in December 2000. The Panel has had the opportunity to examine drafts of both the audit itself and of ACS's response, and has discussed this material with ACS leaders.
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b. ACS statistics on regulatory compliance
ACS has also tracked compliance with certain key Federal and State requirements about aspects of front line work.
• The number of children in foster care with overdue Uniform Case Records has decreased by 75% from 5,434 in May 1998 to 1,370 in October 2000. (There were more than 6,200 children in this category in mid-1996.)
• The number of children in foster care facilities whose certification is not up to date (typically, foster homes whose authorizations have not been renewed in a timely manner) has decreased by 53%, from 2,677 in May, 1998 to 1,263 in October, 2000. (There were more than 7,300 children in this category in mid-1996.)
• The number of children in foster care for whom legal authority has lapsed has also decreased by 53%, from 3,755 in July 1998 to 1,781 in October 2000. (There were more than 10,700 children in this category in January, 1997.)
These data indicate continued progress in ensuring that certain legally required activities take place. The number of children for whom legal authority has lapsed or who are in homes without a current certification, however, remains cause for significant concern.
c. Panel questionnaire
The Panel has also collected some information about how stakeholders in this system view changes on the front lines over the past few years and what their expectations are for the near future. We did this by giving a brief questionnaire to the people we met with in preparing for this Final Report; we received 130 responses. This was not a random sample in any regard; the results indicate the views of the people who responded, and cannot be extrapolated to the system as a whole. Nevertheless, we find them sufficiently interesting to comment on some of the findings here.
Most of the people who answered our questionnaire believe that New York City's child welfare system is better now than it was three years ago, and most also believe that it will be better two years from now than it is today. ACS staff were most likely to perceive improvements (folly 90.2% thought that, taken as a whole, things are at least "somewhat better" now than in the recent past). Advocates and people who work for organizations that provide legal services to the system's clients were least likely to think things have improved, and contract agency staff were in between. However, even the lawyers and advocates were, in our view, surprisingly likely to perceive improvements (48.1% of them thought that the system as a whole is at least "somewhat better" now than it was three years ago, and 60.0% thought it will be better in two years than it is now).
The questionnaire included fifteen questions about specific aspects of practice. The areas that received the highest overall scores from respondents were: the Ikelihood that a child who is abused or neglected will be adequately protected; the likelihood that workers will be held accountable and expected to meet high standards; and the likelihood that a foster
16

family will get the help it needs to take good care cf the foster children. The areas that received the lowest overall scores were: the likelihood that a family will get help based on an understanding of its culture; the likelihood that everyone working with a family will work together as a team to help them; and the likelihood that a high-risk family will get the help it needs to be able to stay together and keep the children out of foster care. We find the data from the questionnaire, particularly the very strong indications by ACS's own workers and supervisors of change in their perceptions of their own practice, to be encouraging. The areas in which respondents indicated somewhat lower levels of confidence in the impact of reform efforts provide useful guidance for future priorities, and we will return to these issues, particularly with regard to support for parents and cultural understanding, in Part IV. The survey questions, along with a further presentation of the data and a copy of the survey instrument, can be found in the Appendix at the end of this report.
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Part III. Further Planned Changes; Review of Panel Recommendations
In this section, we turn to those reform efforts that are currently being implemented or planned by ACS and its system partners, with special attention to the status of actions previously recommended by the Panel. In the interest of avoiding an exhaustive review, we will not repeat here the full rationale for each of these recommendations. Instead, we follow the order of the Panel's Initial Reports, and refer the reader to those reports for further discussion.
A. Permanency
1. Review of Panel Recommendations and Related A CS Activities
Permanency principles. ACS has, as the Panel recommended, developed and disseminated these principles. In Section IV of this report, we will return to the question of the extent to which New York City's child welfare system carries out the principles in practice, and will suggest further actions that we believe would strengthen that connection.
Indicators of system performance. In the Panel's Initial Report on Permanency, we called on ACS to develop a limited number of key indicators of the performance of New York's child welfare system as a whole. ACS identified twelve such "outcomes and indicators," addressing such issues as timely permanency for children in foster care; low repeat maltreatment of children who have come into contact with the foster care system; and neighborhood-based placement. In Periodic Report #1, we suggested as a benchmark of performance that ACS have in place measurable objectives, benchmark data, and specific targets of system performance for all twelve of these indicators by March 31, 2000.
This work is not yet complete. ACS has developed plans to collect data for each of these indicators not only for the child welfare system as a whole, but also broken down by ACS unit, contract agency, and geographic area, as appropriate. Some indicators still need to be defined in greater detail, and for others ACS has to make adjustments to its information systems in order to be able to collect the data. ACS expects to be issuing regular management reports with data from five of the indicators by February 2001; five more between July and September 2001; and the final two indicators by January 2002. ACS expects to develop targets for system performance after it has been able to review the preliminary data for each of these indicators.
We recognize ACS's hesitation to develop targets before it has full information about current performance. Nevertheless, we believe that there is a real opportunity here to influence behavior throughout this system, and that the loss of time in making use of this opportunity is unfortunate. Benchmarks and targets have real power, in our view, to communicate goals and to help align individuals in many different organizations in pursuit of them. We encourage ACS to set these targets as soon as possible, and in any
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event to do so with regard to each indicator as soon as the baseline data are available rather than waiting until all such data is available in 2002.
Foster family census and recruitment targets. ACS has, as recommended by the Panel, set detailed targets for the number of foster families to be recruited in each of New York City's community districts. In Periodic Report #1, we proposed as a benchmark of performance that ACS issue, by September 1, 2000, a public report discussing success to date in the recruitment effort and identifying actions to be taken in response to any identified problems.
In setting these targets, ACS is pursuing two goals. First, there ought to be sufficient foster homes in each community to meet the needs of children entering foster care from that neighborhood. Second, these homes need to be supervised by the agencies ACS has contracted with to provide services in that community. (Historically, most providers have had homes spread throughout New York City, and the existing foster homes in any particular community may be supervised by as many as 30 or 40 different contract agencies.) Therefore, there are two related efforts underway simultaneously, one involving recruitment of new homes and the other involving the transfer of existing homes to providers with contracts for the neighborhoods in which they are located.
We think it no exaggeration to say that the success of New York City's efforts to build a neighborhood-based service system depends on this work. If there are not enough foster families in a given community to meet its needs, ACS will have to continue to place children too far away from their families, schools, and friends. If there are sufficient homes, but these remain with agencies that do not have contracts to serve the community, ACS will have the unhappy and ultimately unacceptable choice of placing children out of their neighborhoods or placing them near home but with providers that do not have sufficient knowledge of or presence in their community.
ACS has been collecting data on the success of these efforts, and has just begun to make the data available to its contract agency providers. It plans to distribute a quarterly management report with this information. The initial data suggest that the system made relatively little progress during the first nine months of calendar year 2000. As of the end of September 2000, there were 9,384 foster home beds in New York City in CD's for which the supervising agency has a contract to provide services. (There are thousands of additional beds where there is not a match between provider and CD.) This represents a net increase of 61 beds from January to September, taking into account not only homes added or transferred, which is a significantly larger number, but also those lost because of foster parent retirements, adoptions, etc. For the year as a whole, ACS hoped to achieve a gain of more than 5,000.
ACS believes that the slow pace of foster home transfers between agencies has been a significant cause of this limited progress. Accordingly, it has recently required information from all contract agencies about the foster homes they have opened outside of the neighborhoods assigned to them, and plans to work with providers to facilitate the transfer of these homes to agencies with contracts for the CD in which they are located.
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This will be a complex process, focused first on homes that are currently empty, but even there dependent on the willingness of the foster parent to work with a different agency. ACS also plans to convene a system-wide meeting in January, 2001, to discuss the progress of neighborhood-based recruitment and to assist agencies in making foster home transfers.
We believe that ACS's leaders fully understand the importance of this effort. Accordingly, rather than proposing a specific benchmark here, we encourage them to be vigorous both in supporting additional recruitment where it is necessary and in facilitating (and mandating if necessary) the transfer of foster homes between providers whenever this can be accomplished without harm to children in care.
Child Safety Conferences. The Initial Report called upon ACS to plan for, and make a substantial commitment, to institute family case conferences to be held shortly after children enter foster care. In the Initial Report on Placement, we added specificity to this recommendation by proposing a target of conferences in 85% of new placements by November 30, 1999. Finally, in Periodic Report #1, we suggested that ACS prepare a written plan addressing the goals of these conferences, and the skills and training workers need to conduct them, by February 1, 2000; prepare and make public a report containing an evaluation of the conferences by April 1, 2000; and achieve 50% participation of foster care agency workers at these conferences by June 1, 2000.
As noted in Part II of this report, the implementation of family case conferencing, on a scale unmatched by any other child welfare system in the United States, has been an impressive achievement of the past two years. In March, 1999, ACS held 31 family case conferences; in July, 2000 (the most recent month for which data are available), it held 405, of which 93 were "elevated risk" conferences held to determine whether foster care placement is necessary rather than waiting until after placement has already occurred. While ACS has not yet met the goal of holding conferences for 85% of all new placements, it appears well on the way to doing so. The 312 post-placement conferences held in July represent 73% of all of that month's placement cases. Moreover, ACS succeeded in holding conferences for 90% of protective services removals, which are the category of placements it has prioritized. Other placements (e.g. voluntary and PINS cases) had conferences 42% of the time in July. ACS has also achieved participation by birth parents in 72% of these conferences.
While ACS has not addressed all of the issues identified by the Panel in a single document, it has done a good deal of additional planning for these conferences during the past year. The protocol governing conference activities has been revised on several occasions, and ACS is in the process of instituting additional training for Child Evaluation Specialists, designed to help build their skills in facilitating the conferences. It is also planning further training, to be held in 2001, for all staff who participate in the conferences. These actions substantially meet the intent of our proposed benchmark.
ACS conducted an evaluation of the conferences, which includes a set of recommendations on how they can be strengthened. The recommendations address such
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issues as increasing the use of "elevated risk" conferences; increasing participation by foster care agency workers; and improving the quality of service plans and the way they are utilized in the Family Court process. The evaluation will be distributed publicly in the very near future. ACS has also provided the Panel with a preliminary status report on its actions in response to these internal recommendations.
ACS has held several meetings with foster care agency representatives designed to increase the participation of agency social workers in family case conferences. The participation rate for these workers reached 42% in July 2000. This represents progress towards the interim target proposed by the Panel. Far more important, we believe, is a joint effort on the part of ACS and foster care providers to reach a much more ambitious goal over the next year. The full benefit of family case conferences will be realized only when they routinely involve all of the key individuals involved in working with a family. Accordingly, we propose the following benchmark:
Benchmark #1. By July 1, 2001, ACS and contract agency providers should achieve participation of foster care social workers in 85% of Child Safety conferences.
Now that ACS has succeeded in institutionalizing these conferences, we believe that it is ready for a next series of steps aimed at enhancing their quality and folly realizing their potential to change the way the child welfare system works with families. We will return to this theme in Part IV of this report.
OCA CM Role Clarification. Both the Initial Report and Periodic Report #1 addressed issues relating to the role of the Office of Contract Agency Case Management. The most recent proposed benchmarks called for ACS (a) by February 1, 2000, to develop a written plan addressing OCACM's roles and responsibilities, training, staffing, and appropriate caseload size, and (b) by June 1, 2000, to issue a public report regarding OCACM's efforts to improve the quality of Service Plan Reviews.
ACS has defined the role of OCACM case managers as "permanency advocates," and is currently training these workers, together with contract agency staff, on how to use Service Plan Reviews to promote permanency. ACS has also conducted a workload analysis of OCACM, added clerical staff to the unit, and developed plans to reduce caseloads from the FY'OO level of 67 per worker to 54 by July, 2001, largely by transferring adoption and court ordered supervision cases to other units. ACS has not made a public report regarding its efforts to improve SPR's. We will return to this issue in Part IV.
Contract Agency Performance Expectations. In the Initial Report, the Panel recommended that ACS set clear expectations of its contract agency providers, monitor performance, and reward or sanction providers based on the results. We elaborated considerably on these themes in the Initial and Periodic Reports on contract agency issues, and refer the reader to Section C, below, for further discussion of ACS's accomplishments in this area.
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2. General Conclusions and Comments Regarding Good Faith
ACS has taken sustained, thoughtful, and substantial actions with regard to permanency, encompassing issues as diverse as moving to a neighborhood-based service system; developing permanency principles; instituting family case conferences; and trying to strengthen Service Plan reviews. ACS has also committed itself to further steps, including establishing targets and regularly disseminating data on the twelve "outcomes and indicators" of system performance; improving neighborhood-based recruitment; and implementing recommendations to strengthen family case conferences, among others. Taking into account all of these activities, both those already completed and those currently underway and planned, we believe that ACS has acted in good faith in this area.
We nevertheless believe, as does ACS, that a geat deal of work remains to be done to improve the prospects for permanency of the children and families who come into contact with New York City's child welfare system. Most of Part IV of this report is devoted to our further thoughts and recommendations on this subject.
B. Placement
1. Review of Panel Recommendations and Related ACS Activities
Gathering information. In the Initial Report, the Panel called on ACS to clarify and strengthen guidelines for the placement-related information that must be gathered routinely by protective services staff. In Periodic Report #2, we proposed as a benchmark of improvement that ACS analyze, by July 1, 2000, what information is not routinely gathered and why, and, by September 1, 2000, develop a plan to address the problem.
During the summer of 2000, ACS piloted a new Child Placement Referral form. This form asks workers to record information ACS has not routinely gathered in the past (for example, it has specific questions regarding the child's and family's strengths, and about what possessions the child is bringing with him into foster care). It will be distributed to all of the people who play a critical part in the placement process, including the intake worker at the receiving agency and the foster parent. ACS modified the form following the pilot, and now plans to introduce it after staff from each borough are trained in its use. This training, which includes multiple issues related to the placement process, will be completed between January and April 2001, beginning in Queens and finishing in Staten Island. Shortly after implementation, ACS plans to evaluate the information being recorded in order to identify any areas in which staff are having difficulty gathering the data, and it will then determine how to address these problems.
The Panel believes that the new form, if accompanied by ongoing monitoring and supervision that reinforces the critical importance of gathering and disseminating the
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information needed to make appropriate placements, will be useful. We will return to this issue in a proposed benchmark, found at the end of this section.
Child safety conferences. We have commented on the impressive work done in developing and implementing these conferences as part of our review of permanency, in Section A, above.
Placement principles and training on placement decision-making. ACS developed and disseminated placement principles, as recommended in the Initial Report, hi Periodic Report #2, we noted that staff needed additional guidance on how to use these principles in practice, with particular emphasis on how to balance conflicting goals (for example, choosing between a placement located near a child's home and a placement with a relative who lives further away). We proposed as benchmarks that ACS (a) provide skills-based training to those who make placement decisions, by August 1, 2000, and make substantial progress towards providing similar training to protective services and OCACM staff by November 1, 2000, and (b) evaluate the impact of the placement principles and plan to strengthen that impact, by September 1, 2000.
ACS made a preliminary effort to address these issues with placement staff earlier this year. It will now incorporate issues relating to the appropriateness of placement in the training, described above, to be held between January and April 2001. Again, we will return to this issue in a benchmark at the end of this section.
Placement with relatives. The Initial Report recommended that ACS develop concrete practice guidance on the use of relatives as placement resources. In Periodic Report #2, we called for an analysis of barriers to the use of kinship homes, including problems in supporting relatives, by July 1, 2000, and a plan to address these barriers by September 1, 2000.
ACS has taken a number of steps to promote placement with relatives. It has reissued policy memoranda and practice guidelines emphasizing the priority to be given to relatives as placement resources; conducted a management retreat that identified barriers to the use of kinship homes; and developed a consolidated procedure to come into compliance with revised Federal requirements governing the certification of relatives as foster parents. ACS plans to run focus groups with staff over the next several months to determine the impact of these efforts, and to develop more extensive practice guidelines by June 2001.
We believe that this work is essential. In the first two months of FY'01 (July and August, 2000), 20.1% of the children placed in foster care went to relatives, a slight increase from the 19.5% recorded for the previous fiscal year as a whole. We think it unlikely that this figure will change substantially until ACS has more clearly detailed the work it expects both protective services staff and contract agencies to do to find and evaluate relatives as placement resources; determined what system and procedural changes it will need to take to address any barriers that may now impede this work; and
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instituted systems for ongoing monitoring and supervisory review. Again, we address this issue further in the benchmark at the end of this section.
Resource development plan. In the Initial Report, we urged ACS to publish a resource development plan addressing both preventive services and placement resources, with specific reference to groups of children for whom it is currently difficult to find appropriate placements (for example, gay and lesbian youth, mothers with babies, and large sibling groups). In Periodic Report #2, we renewed this recommendation, calling for ACS to identify its "goals for changes in the configuration of resources... over the next three to five years" and its plan to develop or re-allocate resources to achieve these goals, by July 1,2000.
As described in Part II of this report, ACS has secured funding to add both preventive and placement resources to New York's child welfare system, and some of these programs are already serving clients. ACS also plans to issue a "Community Resource Book," providing data on the services and facilities available in each Community District. It has not, however, developed the kind of plan envisioned by the Panel.
We continue to believe that a public description of resource development goals appropriate to meet the placement and preventive services needs of this system - both those that entail additional resources and those that can be met through the reallocation of existing funds - would be a desirable means of promoting change. In our opinion, the value to be gained from such a resource development plan lies in more clearly communicating to key stakeholders that ACS recognizes the system's resource needs and is committed to addressing them; better identifying ACS's priorities; aiding ACS in building alliances and leveraging the efforts of others to support changes that ACS itself seeks; and providing the public with realistic benchmarks against which it can judge the system's progress in meeting the needs of the children it is responsible for. Therefore, we believe that ACS's decision to focus its activities in this area on preparation of the Community Resource Book is unfortunate.
Flexible funding. In the Initial Report, we recommended that ACS develop ways to pay for services other than those typically provided, when these are essential to support placement in the most home-like environment possible. Our particular concern was that, as this system is currently financed, some children may have to be placed in congregate care facilities in order to receive the services they need, when these children could be able to live with foster families if additional resources were made available to support them.
ACS's expansion of the therapeutic foster boarding home program was meant in part to address this difficulty. ACS has also successfully worked with the New York State Office of Mental Health to make that agency's Home and Community Based Waiver program available to foster children for the first time. This program provides extensive community services in order to allow children with significant mental health needs to remain with a family. ACS is now working with OMH to tailor the program so it can
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support both the foster family caring for a child and the birth parent(s) with whom the child will ultimately be reunified.
ACS has also designed a pilot program, which will make flexible funds available to be used as determined at family case conferences. Under this pilot, ACS will select ten of its Child Evaluation Specialists or Child Protective Services workers, and provide each with a budget of $25,000, with the discretion to recommend up to $1,000 per family in specialized services. An ACS manager will then have the authority to approve these expenditures. The pilot will be in place by January 1, 2001; because of constraints imposed by the City's contracting process, the range of goods and services available at that time will be limited, and ACS expects to broaden this list by March 1, 2001.
The Panel believes that this is a useful initial effort, and that it must be quickly evaluated to enable a decision about its potential system-wide applicability.
Benchmark #2: ACS should, by September 1, 2001, conduct a preliminary evaluation of the impact of the "flexible funding" pilot, and publicly disseminate it along with a plan for system-wide implementation or for the development of an alternative approach with system-wide impact.
Clearer accountability in the placement process. In the Initial Report, we made a series of recommendations designed to simplify the placement process and clarify responsibility and accountability for the many individuals who play a part in it. In Periodic Report #2, we proposed as benchmarks that, by October 1, 2000, ACS establish guidelines for teams of Child Evaluation Specialists, protective services workers, and placement staff to work together regularly; determine how the management structure to support these teams will work; pilot them in at least one borough; and develop a reasonable schedule for implementing them city-wide.
ACS has planned a set of inter-related changes in the placement process. One of these, the assignment of Child Evaluation Specialists to work with specified Child Protective Managers on cases from specific Community Districts, was implemented on October 1, 2000. This change will make it possible for CES's to routinely work with the same protective workers and supervisors, and to learn about the resources available in the communities in which they work. ACS has also recently issued instructions to its staff implementing procedures for CES's to interview or observe all children awaiting placement (in the past this practice has not been routine when the CES was not physically located in the same office as the nursery in which children await placement).
The remaining changes include: implementing the new consolidated placement information form mentioned above; eliminating one step in the placement process by doing away with the "Intake Placement" unit; assigning placement workers to handle cases from specific boroughs, so they can regularly interact with the same CPS and CES workers; and instituting telephone conference calls among the protective worker, CES, and placement worker involved in each case.
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ACS expects to implement these changes in each borough at the conclusion of the placement-related training described earlier in this section. Therefore, the new placement process should be in place in Queens by the end of January, aid throughout New York City by the end of April. We will return to this issue in the benchmark at the end of this section.
Reducing trauma. In the Initial Report, we called on ACS to address a series of concerns relating to the trauma experienced by children and families in the placement process. In Periodic Report #2, we proposed as a benchmark that ACS establish practice standards aimed at reducing trauma by August 1, 2000; conduct an analysis identifying barriers that make it difficult to meet these standards, by September 1, 2000; and develop a plan to deal with the barriers, by October 1, 2000.
As noted in Part II of this report, ACS has extended the hours at its field offices, allowing more of the children awaiting placement to remain in one location rather than having to move to Manhattan in the late afternoon. ACS is now strengthening this action by ensuring that a Child Evaluation Specialist is available at each borough office until 9 p.m., so children who are removed late in the day can be seen by a CES close to home.
ACS has developed, but not yet implemented, guidelines for reducing trauma. They are to be introduced to all staff involved in placements as part of the new placement training initiative described above. The analysis of barriers to implementing these guidelines of course cannot begin until after staff have begun to use them; ACS expects to conduct it in June and July 2001. Again, we will return to this issue in the benchmark found at the end of this section.
Family permanency (30-day) case conferences, hi the Initial Report, we recommended that ACS build upon the work begun at Child Safety Conferences by establishing family permanency conferences, to be held 30 days after placement. We called for ACS to hold these conferences in 85% of placements by November 30, 2000.
ACS has developed protocols for these conferences and, this past summer, piloted them in Manhattan. Full implementation of the new conferences began in Manhattan on November 1, 2000, and in the remaining four boroughs on December 1, 2000. ACS expects that by May 2001, all five boroughs will be holding conferences in 70% of remand (i.e. child protective removal) cases.
We applaud the commitment of resources and effort involved in this work. As the schedule is behind that which the Panel proposed, we will address it in the benchmark at the end of this section.
Placement information addressing non-discrimination. In the Initial Report, we encouraged ACS to develop regular public reports describing the placement experience of different groups of children entering foster care in New York. ACS did so, issuing an ambitious "First Annual Placement Report" in July 2000. In Periodic Report #2, we applauded this effort but noted our concern that, in the database from which the report
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was generated, information on a child's race and religion is very often recorded as "missing." Accordingly, we proposed as benchmarks that ACS (a) take steps needed to ensure the integrity of its data on race and religion of children coming into care, by July 1, 2000; (b) publicly report on the integrity of this data by November 1, 2000; and (c) "evaluate and publicly report data addressing non-discrimination in referral and placement in individual foster care programs," also by November 1, 2000.
ACS has examined the problems associated with complete data entry, and has presented the Panel with statistics indicating significant improvements over the past several months. If these improvements can be sustained, future Annual Placement Reports will be based on far more complete information. ACS has not yet done the kind of interim analysis we envisioned in the final part of the proposed benchmark. It is, however, prepared to proceed with a review of placement practices within the Residential Treatment Center level of care, examining demographics and quality by program, and to complete this work by March 2001. We believe that this will be useful work that will illuminate issues that have been of concern since the original Wilder lawsuit was filed many years ago.
Indicators of placement performance. In the Initial Report, we called on ACS to establish a limited number of indicators of performance related to placement, and to have data collection and reporting mechanisms in place for these items by April 15, 2000. The Annual Placement Report, mentioned just above, addresses many of the issues we had in mind in making this recommendation; the 12 "outcomes and indicators" described in Section III (A), above, also contain two indicators related to placement. Finally, ACS's management plan includes targets for such indicators as in-borough placement, in-CD placement, and keeping siblings together. We encourage ACS to continue to refine this work, and in particular to find mechanisms for making data on these critical indicators widely available more frequently than the annual report alone will permit.
2. General Conclusions and Comments Regarding Good Faith
ACS has addressed a significant number of the Panel's recommendations relating to placement. Its actions include: developing placement principles and related training; committing significant resources to institute 72-hour (child safety) and 30-day (family permanency) case conferences; developing new forms, procedures, and practice standards related to gathering information, improving accountability in placement, and reducing trauma for children and families; and collecting and publicly disseminating data on the placement experience of children coming into care. As described in Part II of this report, data indicate some promising early signs of improvement with regard to the likelihood that children will be placed in their own communities and with kin, and that siblings will be placed together. We believe that ACS's actions are sufficient to warrant a finding of good faith with regard to placement.
We caution, however, that many of these activities are only now reaching the point of implementation. When they are fully in place, we believe that most children who enter the foster care system will be likely to have a significantly better experience, and will have a better chance of receiving a placement that meets their needs well, than would
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have been true eighteen months ago, but we cannot yet conclude that this is the case today. Accordingly, we strongly encourage ACS to report to the public its progress regarding placement, as follows.
Benchmark #3. ACS should, by April 1, 2001 and again by October 1, 2001, publicly report on the implementation of changes related to the placement of children in foster care, including at least the following issues: • the implementation and practical effect of its effort to improve the way
information needed for placement is gathered and transmitted to the people who need it, and any additional steps ACS plans to take to further this effort; • the implementation and practical effect of its effort to improve the quality of placement decision-making, as measured by ACS's quality improvement program and/or other data collection efforts, and any additional steps ACS plans to take to further this effort; • the implementation and practical effect of the additional preventive services and placement resources for which it has contracted; • the implementation and practical effect of practice standards for the use of kinship homes, and any additional steps ACS plans to take to further this effort; • the implementation and practical effect of 30-day family permanency case conferences; • the implementation and practical effect of practice standards designed to reduce trauma for children entering care, including the analysis of barriers to full implementation of these standards, and any additional steps it plans to further this effort; and • the implementation and practical effect of changes in ACS's internal organization designed to improve accountability and promote teamwork among those involved in making placements.
C. Monitoring and Improving the Performance of Contract Agencies
1. Review of Panel Recommendations and Related ACS Activities
Evaluation of Foster Care Providers. As described in Part II of this report, ACS has already implemented most of the changes recommended by the Panel, including the refinement of its evaluation system; the development of additional indicators relating to its major policy goals, such as neighborhood-based placement; and clearer communication to contract agencies and other stakeholders of its evaluation goals and processes.
ACS has taken further action on two aspects of the evaluation process since the Panel issued its Periodic Report. It has worked with the Child Welfare League of America and a group of New York City stakeholders to develop mechanisms for feedback from birth parents, children in care, foster parents, and staff. ACS is currently finalizing a pilot project, which will gather data from birth parents, children in care, and foster parents for
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45 cases. ACS expects to conduct the pilot in December, to review the results with its workgroup in January 2001, and then to make decisions about how to expand this effort to the system as a whole.
ACS has also defined some additional components of the EQUIP evaluation system, and it will measure agency performance in these areas beginning January 1, 2001. They include service plan reviews (their timely occurrence and the attendance of required participants); family case conferences (similar issues to those listed above); the frequency with which children go absent without leave from congregate care programs; and the frequency with which children are moved from one placement to another (excluding such desirable transfers as those to reunite siblings or place children with relatives).
Capacity management. As noted in Part II, ACS has met the Panel's recommendation that it develop a system for controlling the number of children placed with each provider, tied to its evaluation of provider performance. We had further proposed that ACS use this system to set, by October 1, 2000, revised targets for the number of children to be placed with each contract agency for the 2001 contract year, which begins on July 1, 2001. This recommendation reflected an incomplete understanding on our part of the evaluation timetable; ACS's evaluations will not be complete until the end of the calendar year. Accordingly, ACS plans to set targets for the 2001 contract year by March 2001, and we believe that this is an appropriate timeframe.
Changes to the Reimbursement System. As noted in Part II, ACS has taken important actions, through the implementation of the STAR system, to reduce the disincentives to permanency inherent in the per diem reimbursement system and to better align its reimbursement system with its policy goals.
Better use of preventive services for high-risk cases, and improved coordination between protective and preventive services. In the Initial Report, we recommended that ACS rethink critical issues related to the way it uses preventive services. Our overriding purpose was to ensure that those services are available to and regularly used by protective services workers whenever they are appropriate to prevent placement. In Periodic Report #3, we suggested as a benchmark that ACS issue a public report describing how it plans to accomplish this goal, including appropriate timeframes for implementation, by October 1, 2000.
ACS developed a draft of a revised model for preventive services, addressing such issues as the definition of high-risk cases; differential service expectations and financing for those cases; and the way in which protective services will remain involved in these cases. It distributed this draft in September 2000, and subsequently met with a group of providers in October to discuss it in detail. ACS appropriately decided to modify this proposal, and has now distributed a revised version for comment with the expectation that the new model will be finalized by January 1,2001.
Coordination of preventive and foster care services. In the Initial Report, we also recommended that ACS take steps to improve the coordination between foster care and
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preventive services. ACS's primary activity in this regard was the institution of family case conferences to be held when children are about to be discharged from foster care. Among many other useful purposes, these conferences can help to ensure that families whose children are returning home are connected with preventive services in their neighborhoods when this would be a useful support. In Periodic Report #3, we suggested as a benchmark that ACS issue a public report, by October 1, 2000, describing discharge family case conferences and committing to a time by which they will be held for the large majority of children leaving foster care.
ACS has developed a schedule for the implementation of discharge case conferences, and reviewed the schedule and the protocol for the conferences with contract agencies. It began to hold discharge conferences for abuse cases in April 2000 and for neglect cases in July 2000. The schedule calls for conferences to be held in 50% of reunification cases by the end of December 2000 and 85% by July 2001. ACS also plans to evaluate the conferences by December 2001.
Evaluation of preventive services providers. In the Initial Report, we recommended that ACS develop a more refined system of evaluating its preventive services providers. We suggested that this work be done by October 1, 2000, so it could be used for the evaluation period that begins on January 1, 2001. When we wrote Periodic Report #3, it was clear that a new system would not be ready by October 1, and we proposed as a benchmark that ACS issue a public report by that date setting forth a timetable for developing and implementing it.
In late November, ACS distributed for comment by providers an outline of a new preventive services evaluation model. It identifies a range of indicators of program performance, grouped under the same three general headings (compliance, outcomes, and quality) used in EQUIP system for evaluating foster care programs. Comments are due by December 20, 2000.
This work is at a very early stage of development; we suspect that several of the indicators are likely to change, and a great deal of work will be needed to develop systems for collecting the data. ACS also quite rightly wants to ensure that its evaluation system is integrated with its new preventive services model, so that model must be finalized before the evaluation system can be completed. We therefore think it unlikely that ACS will be able to folly implement a revised system in 2001.
We continue to believe that this work is very important, for reasons similar to those ACS has set forth in developing EQUIP for foster care. ACS needs to communicate clearly with its preventive services providers about what it expects from them, and it needs to be able to measure performance against these expectations and to make contract decisions based upon these results. We strongly encourage ACS to work closely with its contract providers to develop an evaluation system that can be folly implemented for the contract year beginning January 1, 2002. Incremental progress towards this goal during the 2001 contract year would of course be highly desirable.
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Communication with contract agencies. In the Initial Report, we made two recommendations concerning this issue. First, we thought that ACS needed to develop procedures for better coordinating and communicating policy with regard to contract agencies. ACS instituted a process by which all major decisions affecting contract agencies must be reviewed by the Commissioner and Deputy Commissioners at a senior staff meeting. Second, we urged ACS to designate a lead person at the staff level to relate to each provider. We envisioned multiple roles here, including helping the contract agency solve problems that cut across divisions of ACS; interpreting ACS policies to providers; and ensuring that all of the staff in different units of ACS that relate to the same contract agency share information. In Periodic Report #3, we proposed as a benchmark that ACS, by October 1, 2000, identify the changes needed to allow the Agency Program Assistance (APA) unit, or some other part of ACS, to play these various roles, and commit to a timetable for implementing these changes.
ACS's leaders continue to work on improving their communications with contract agencies (Deputy Commissioners, for example, now meet regularly with foster care and adoption program directors). ACS has also developed an operating plan for the APA unit, which includes as part of its responsibilities that "contract agency personnel utilize APA staff to resolve any problems or issues they have with any department or unit in ACS." This is a useful step. We suspect that considerable additional work, addressing such concerns as the authority of APA when it deals with other parts of ACS and the number of different providers each APA staff member is expected to work with, will be needed to make it possible for APA to carry out this role effectively. We encourage ACS to join with contract agency leaders to carry forward this work.
2. General Conclusions and Comments Regarding Good Faith
When we issued Periodic Report #3 just a few months ago, we concluded that ACS had taken some action on virtually all of the critical issues regarding contract agencies, and had made extraordinary progress on several of these. Since that time, ACS has taken several additional steps with regard to client feedback; the development of a new model for preventive services; and the specification of additional important variables used in evaluating foster care providers. We believe that ACS has acted in good faith in its efforts to monitor and improve the performance of contract agencies. The full value of this work is, of course, dependent on the actions ACS takes in the future in response to its evaluation findings.
At the conclusion of Periodic Report #3, we addressed the critical importance of ensuring that contract agencies have adequate resources to carry out the many reform tasks in which they are joining with ACS. We will return to this issue once again in Part IV of this report.
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D. Front Line and Supervisory Practice
1. Review of Panel Recommendations and Related ACS Activities
The Panel issued its Initial Report on Front Line and Supervisory Practice in March 2000, and there has not been a separate Periodic Report on this topic. Accordingly, we will provide somewhat more detail in reviewing progress with regard to our recommendations in these areas.
Supervision. We made a set of recommendations aimed at clarifying the roles of supervisors, with particular emphasis on their responsibilities in coaching practice and communicating values, and on strengthening their ability to carry out these responsibilities. We called on ACS to revise supervisory job definitions and performance standards (by June 15, 2000) and develop mechanisms to review the impact of these changes (by September 15, 2000); to begin implementing a training curriculum for supervisors (by September 15, 2000); to provide supervisors with access to mentoring and clinical expertise (by October 15, 2000); and to make appropriate changes in the compensation and authority of supervisors (by October 15, 2000). These recommendations were aimed at the needs of supervisors both in contract agencies and in ACS itself.
ACS has developed ambitious plans for training supervisors throughout the child welfare system. In October, it began piloting a "supervisory common core" curriculum, with supervisors from ACS and several contract agencies participating. Panel members have had an opportunity to see this pilot in action and are impressed by both its substantive content and by the opportunities it provides to practice supervisory skills. ACS expects to offer ten days of training for all new supervisors, beginning in February 2001. It will develop a modified version of the core curriculum, lasting between two and four days, which can be offered to all current supervisors in the system. ACS hopes to be ready to begin this training by April 2001, and to complete it (there are more than 2,000 supervisors to be trained) by June 2002.
ACS is in the process of issuing a Request for Proposals for clinical consultants. ACS plans to procure the services of twelve consultant teams, each of which will include individuals who are knowledgeable about substance abuse, mental health, domestic violence, and medical services. The teams will be stationed in ACS offices, and will provide training and, eventually, individual case consultation to supervisors in both ACS and contract agencies. ACS plans to issue the RFP in December 2000, with submissions due February 2, 2001. It will award contracts by July 1, 2001, with programs expected to be operational as soon as possible and no later than October 1, 2001.
ACS has, as the Panel has previously reported, very significantly improved the compensation of its own supervisory staff over the past several years. In order to make similar changes possible in contract agencies, ACS and the New York State Office of Children and Family Services will have to work together to improve reimbursement to
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contract providers. We will therefore treat this recommendation as part of our larger discussion of that theme, below.
ACS is just beginning the process of reviewing and changing supervisory job definitions and evaluation standards. It plans to call together within the next several months a group of managers and supervisors from both ACS and contract agencies to begin to address these issues. Changes would, if possible, be implemented at the same time that increased compensation for contract agency supervisors becomes available. Accordingly, we do not expect that this part of our recommendation will be addressed before the late spring of 2001.
Training. The Panel made two recommendations concerning training, each of which is far-reaching. First, we noted that ACS had instituted major improvements in the training of its own staff over the past several years, but that staff in many contract agencies, which are constrained by limited resources, do not receive comparable preparation for their work. We recommended that ACS develop a plan, by September 15, 2000, to ensure that adequate training is made available to everyone who works with clients in New York City's child welfare system, and obtain the resources to fully implement that plan by September, 2001; we further suggested that ACS pilot training for a first group of contract agency staff by November, 2000. Second, we noted that the training provided at ACS's Satterwhite Academy was stronger in addressing the information workers need to learn and the agency procedures they must master than in providing staff with an opportunity to learn and practice the skills they will use in working with clients every day. We called on ACS to issue a policy statement clarifying the goals of its training program (by July 15, 2000), along with a plan to implement appropriate revisions in training by March 2001. We also recommended that ACS make substantial progress in implementing this plan by November 2000.
As noted in Part II of this report, ACS has obtained substantial new resources and committed them to training for staff in all parts of the child welfare system. ACS and contract agency representatives have been meeting regularly to determine how and by whom the training will be delivered to contract agency staff. At the same time, ACS and its partners have adopted New York State's "common core" approach to training child welfare staff, and they are working together to customize many elements of this training for New York City. ("Common core" refers to training that is to be delivered to all child welfare staff, regardless of whether they work in protective services, foster care, preventive services, or adoption. Additional, specialized components will also be available to address the worker's service area in greater depth.) The common core model is skills-based. It clearly describes the competencies staff members need to develop, and builds into training the opportunity to learn and practice those skills. It also presents opportunities for ACS and contract agency staff to be trained together, a change that in our view has extraordinary potential in helping to break down barriers and build teamwork across the different parts of the child welfare system.
These two initiatives, taken together, have produced a plan to offer a very substantial amount of training to many thousands of workers. The common core for caseworkers
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encompasses ten weeks of training, with alternate weeks in the classroom and on the job site. ACS currently projects that it will be piloted by between February and May, 2001, and that training cycles will then be offered beginning at least twice per month for new staff. ACS is also customizing a modified, seven-day version of the common core for current caseworkers. It hopes to pilot this training by May 2001, and to offer it to more than 5,000 individuals over the following eighteen months.
Much work remains to make these plans become realities. ACS and contract agencies must reach agreement on who will deliver the training, and on the extent to which staff must be trained before they can begin to see clients. Perhaps most important, New York City (together with any institutions which may receive contracts to provide some of this training) will have to recruit a very large number of trainers who are skilled both in delivering this curriculum and in modeling practice skills for caseworkers.
Benchmark #4. ACS should, by April 1, 2001, publicly report on the implementation of its plans to train staff and supervisors throughout the child welfare system.
Measurements of quality and outcomes related to front line practice. We observed in the Initial Report that, to the extent that front line workers and supervisors are provided with data about their own work, it is typically limited to information about compliance with regulations (for example, whether they are completing Uniform Case Records on schedule). We encouraged ACS and contract agencies to develop measures of quality and outcomes related to front line practice, based on a common set of practice standards, by September 15,2000.
ACS plans to break down the data gathered for its 12 "outcomes and indicators" (see the discussion of this subject under Permanency in Part III (A), above) by contract agency when this is relevant, and, within ACS, by worker and unit. (Unfortunately, because of limitations in the State's automated systems, breakdowns by worker and unit for contract agencies will not be possible.) ACS is also examining the Quality Service Review process now used in several other child welfare systems, which employs intensive, focused review of individual cases, as a mechanism for learning more about the quality of front line practice. And it has expanded the staff of its Quality Assurance division so they can conduct more frequent peer reviews of supervisory practice and casework in ACS's own operations.
These are all useful steps, and we believe that this work now can and should be brought to another level.. The heart of our concern remains the need for ACS and contract agencies to "...define what high quality and desirable outcomes mean in the work of each key group of staff and supervisors..." and then to "...identify those basic indicators for which data are already available or can readily be gathered, and begin to link these indicators to evaluation and incentive systems." We continue to believe that this effort is essential, and we address it further in Part IV of this report.
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Personal handoffs when cases are transferred. We called on ACS to establish, by September 15, 2000, procedures to ensure that case information is transferred between workers as thoroughly and promptly as possible. We encouraged ACS to have such "handoffs" take place face-to-face whenever possible, and to have them include joint meetings with birth parents and foster parents when appropriate.
ACS has analyzed the many different kinds of case transfers that take place in this system. Counting both case planning (the responsibility to provide services directly to families and children) and case management (the responsibility of various ACS units to oversee the work of contract agencies), ACS estimates that there are more than 2,000 such transfers per month. For example, every time a child is placed in foster care, case planning responsibility passes from a protective services worker to a contract agency or ACS foster care worker, while case management responsibility typically passes to OCACM or the Adoption Case Management unit.
ACS has prioritized personal contact for case planning transfers. Its plans to achieve this goal are in very different stages of implementation for different kinds of transfers. For example, the implementation of child safety conferences has created an opportunity for personal contact between the protective services worker who has done the investigation and the foster care worker who is beginning to work with the family. (As noted above, foster care workers are now present at these conferences about half the time, aid the full benefit of this opportunity will be obtained only when this rate is substantially increased.) By contrast, personal contact rarely happens when cases are transferred from protective to preventive services, but ACS expects to address this when it implements a revised model aimed at better coordinating these two systems (see the discussion under Contract Agencies, in section III(C), above). ACS is now considering the issue of personal contact between workers in different contract agencies, for example when a child is transferred from one foster care agency to another, or when a child is discharged from foster care and the family begins to receive preventive services from a different provider.
We continue to believe that this work would benefit from a clear statement of purpose by ACS leaders and the establishment of timeframes by which ACS expects to achieve it.
Benchmark #5: ACS should, by May 1, 2001, publicly report on (a) its plans to ensure personal contact between workers when cases are transferred, clearly identifying those situations in which it will require such contact, and (b) the status of implementation of these plans and the schedule for completing any steps that remain.
Revised policies and procedures re parent-child visiting. We concluded in the Initial Report that visits between parents and their children in foster care in New York "...are too limited in frequency, too often intrusively supervised, and too often take place in the artificial setting of an agency visiting room." We recommended that ACS, working together with contract agencies and the courts, establish revised policies and practices governing visiting by September 15, 2000.
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ACS conducted an extensive Visiting Improvement Project, which has been cited by a number of the agency representatives and advocates who participated as a model of thoughtful collaboration. ACS has drafted revised visiting policies and distributed them for comment, with the expectation that they will be ready for review by a wider audience in December 2000. These policies are likely to, among other changes, make it much more likely that visits will be unsupervised unless supervision has been mandated by a court order or is necessary because of clearly identified risks to the child's safety; begin to move the system towards a standard of weekly, rather than bi-weekly visits; promote the participation of birth parents in important activities in their children's lives, such as doctor visits and school conferences; and lead to the piloting of family-friendly visiting centers, open in the evenings and on weekends, in selected communities. In addition, ACS has worked extensively with the City and State corrections systems to facilitate visiting between children and their incarcerated parents.
We are very encouraged by this work. We believe that New York City will soon have much improved policies regarding visiting - and that the challenge of implementing these policies, and truly making more frequent and normalized visits a part of routine practice, will be enormous. In Part IV of this report, we will comment further on the connection between visiting and other important issues related to permanency.
Services to adolescents and their families. Based on our observations of front line practice, we concluded in our Initial Report that "...New York's child welfare system needs to fundamentally re-examine its approach to teenagers and their families," with the goal of ".. .a system-wide recommitment to permanency for teens." We made a cluster of recommendations related to this theme, including: (a) development and dissemination, by August 15, 2000, of a statement of principles governing services to adolescents and their families; (b) development of a plan, by October 15, 2000, for the additional preventive services, foster family resources, and "wraparound" services needed by teens and their families, with the goal of having these services in place by July 1, 2001; (c) identification of those specific congregate care sites that are most toubled, with plans for corrective action in place by July 15, 2000; and (d) implementation, by September 15, 2000, of a system of enhanced oversight of congregate care facilities, including unannounced visits by ACS staff.
Working together with contract agencies, advocates, and youth, ACS has developed an appropriate statement of principles governing services to teens and their families. The statement was distributed in a memorandum from the Commissioner on October 31, 2000.
ACS has addressed some of the resources needed by teens and their families as part of its preparation for last year's RFP for foster care services. As a result of those proposals, ACS is developing additional therapeutic foster boarding homes, supervised independent living programs, and congregate care beds for hard-to-place teens, gay and lesbian youth, and teen mothers with babies. ACS is also re-programming some group care beds for specific populations. However, ACS has not developed or made public a resource
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development plan specifically identifying the current and projected needs of teens and their families.
We think it would be useful to broaden this discussion. ACS's new statement of principles, cited just above, is a useful beginning of the effort to develop a system that better meets the needs of teens and their families. The next logical step, in our opinion, would be for ACS to identify the strengths and weaknesses of the existing system with regard to those principles, and the changes that will be needed to better carry them out. Some of these changes are likely to involve resources - for example, the identification of foster families able to meet the challenges of caring for adolescents, including those who can meet special needs such as those of mothers with babies and gay or lesbian teens. Others will address the comprehensive service needs of adolescents and their parents, in such diverse areas as more quickly enrolling teens in school and better addressing their educational needs; better involving them in the development and review of their own service plans; improving access to counseling and support services; and strengthening preparation for independent living.
Without clear leadership on this subject, we do not believe this system is likely to get significantly better at keeping teens and their families together, placing teens who must enter foster care with families, and promoting lasting connections with caring adults. Therefore, we believe that this work is necessary if the principles which ACS and its system partners have just developed are to have practical effect.
Benchmark #6: ACS should, by July 1, 2001, issue a public document that (a) describes the strengths and weaknesses of the current system in meeting the needs of adolescents and their families; (b) identifies the most significant changes in policies, procedures, training, and services required to better meet those needs; and (c) provides a detailed plan, with timeframes, for making these changes.
ACS has required corrective action plans of approximately eight congregate care programs, based on concerns identified in program reviews, during the investigation of abuse or neglect allegations, or by community residents. It has also undertaken a plan to strengthen its directly operated congregate facilities through physical plant improvements, substantial staffing increases, the development of new program models, and periodic safety audits by outsiders with expertise in residential services for youth. ACS has also committed itself to conduct unannounced visits to all congregate care programs, yearly for larger facilities, and every other year for smaller ones.
Reimbursement of contract providers. The ability of contract providers to deliver the kind of front line and supervisory practice this system needs is significantly related to the resources available to them. Reimbursement rates vary widely, and we have been particularly concerned about the constraints faced by providers with lower rates. Accordingly, we called on ACS to develop, by October 15, 2000, a plan to significantly enhance the reimbursement paid to lower-rate programs, with those resources to be available by the beginning of the next fiscal year on July 1,2001.
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We believe that ACS's leaders have oome to fully understand the importance of this issue and that they are committed to resolving it. The success of their efforts will be significantly affected by negotiations concerning the next New York State budget, for the State fiscal year beginning April 1, 2001. We encourage ACS to work as hard as possible to achieve this goal, with respect to both foster care and preventive services programs. And we call upon the New York State Office of Children and Families to demonstrate to the public its leadership and commitment by successfully advocating for the State resources that, along with additional City and Federal funds, will be needed.
Leadership in resolving Family Court problems. The Panel incorporated in the Initial Report a set of observations i>out the impact of various Family Court problems on New York's child welfare system. In view of the seriousness of these issues, we recommended that ACS and the leadership of the Court establish, by April 15, 2000, a high-level working group publicly committed to addressing critical issues.
Administrative Judge Joseph Lauria, the senior Family Court official in New York, has invited Joseph Cardieri, the ACS General Counsel, and Monica Drinane, Attorney-inCharge of the Juvenile Rights Division of the Legal Aid Society, to meet with him regularly to address issues of common concern. Several such meetings have already occurred, and all of the participants believe that they have substantially improved communication and created a forum for addressing important problems. Judge Lauria has also instructed the supervising judges in each borough to meet quarterly with all stakeholders.
The significant reform efforts underway include the following.
The Court expects to add approximately ten additional referees, and 24 case coordinators, within the next several months. This increase in resources will permit implementation of a system in which judges remain responsible for a case from intake to permanency, and are assisted by a referee and a coordinator in calendaring hearings, handling matters that do not require the judge's direct participation, and following up with the parties to ensure that they are prepared for court appearances. It will also make it more feasible for the Court to move to a "linear" case process, in which the same attorneys remain involved from intake until a child returns home or is adopted, and each court proceeding ends with clarity about when the next hearing will take place and what is expected to happen at that time.
ACS and the Criminal Justice Coordinator's Office, along with the Court, are seriously considering a Request for Proposals that would fund a significantly improved system for providing parents with legal representation. The RFP would lead to contracts with one or more organizations to provide continuous representation of parents, with attorneys supported by social work and clerical staff. While various approvals remain before this process can move forward, we view this as a highly encouraging development and commend both ACS and the Court for their leadership in addressing a critical problem.
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Judge Lauria has also committed to reduce the length of time it takes for cases to reach disposition, and has asked judges whenever possible to schedule sufficient fixed times, on consecutive or nearly consecutive dates, to complete hearings promptly. As judicial caseloads decline this should become feasible more often.
Finally, under the leadership of Chief Judge Kaye and Judge Lauria, respected judges from the National Council of Juvenile and Family Court Judges conducted weeklong sessions with New York judges in October. Senior ACS staff were invited to make presentations as part of these meetings, which focused on how judges view the strengths and weaknesses of the system and what they can do to strengthen it. Judge Lauria hopes to repeat this work on a broader basis, incorporating other system stakeholders, in 2001.
All of these steps are, in our opinion, promising early indications that the broad and sustained reform of Family Court practices so urgently needed by New York's children and families may be possible to achieve.
Addressing specific court-related concerns. We went on to recommend that ACS, with the cooperation of the court, address three pressing problems, by taking the following actions: (a) by September 15, 2000, implementing a system to ensure that workers appear in court on time and prepared, and to provide feedback when these standards are not met; (b) by September 15, 2000, instituting a system to properly disseminate court orders to the people who must implement them, and to provide feedback when orders are not complied with; and (c) by October 15, 2000, instituting a mutually acceptable standard for calendaring hearings that, at minimum, provides for cases to be scheduled for the morning or the afternoon.
ACS is developing a system for tracking court appearances, and expects it to be in place by January 1, 2001. It has also undertaken a quality assurance review of the process by which caseworkers are prepared for court, and plans to have recommendations from that study by February 15,2001.
ACS is installing scanning equipment in all five borough Family Courts. The scanners are to be used to enter court orders into the Connections system so they can be e-mailed to all of the workers involved with the case. Equipment is in place in three of the five boroughs, and the process is expected to be operational citywide by January 1, 2001. This system, however, does not permit the aggregation of data, so it will not provide ACS with information about the extent to which court orders are actually obeyed.
Benchmark #7: ACS should, by July 1, 2001, develop an information system that allows it to track the volume and type of court orders issued and the level of compliance with these orders, broken down by contract agency and ACS unit.
The effort to reduce waiting times in court is part of Judge Lauria's broader initiative to achieve consecutive trials and shorter hearings lengths, described above.
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2. General Conclusions and Comments Regarding Good Faith In the nine months since the Panel issued its Initial Report, ACS has made a series of commitments to increased and improved training that, when fully implemented, have the potential to make a tremendous impact on the quality of front line and supervisory practice in New York City. ACS has also taken significant steps to add clinical resources to strengthen supervision; improve visiting policies and practices; set policy direction for services to adolescents and their families; and address critical issues concerning the reimbursement of contract providers. Taking into account all of these activities, both those already completed and those currently underway and planned, we believe that ACS has acted in good faith in this area. The large majority of these activities remain in the planning stage, and a great deal of additional work will be required before they are implemented and their impact is felt. It is not too dramatic, we think, to say that the future of New York City's entire reform effort depends on the diligence and creativity with which ACS and its system partners pursue these actions. All of the impressive policy, program, and system changes already made, along with those underway, will have too little impact on the lives of families and children unless they are matched by changes of comparable magnitude in front line and supervisory practice. In Part IV of this report, we attempt to identify the most promising ways for ACS to broaden and strengthen the impact of its reform efforts on the day-today relationships between workers and their clients.
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Part IV: Remaining Challenges and Proposed Responses
A. Introduction
As the Panel has prepared to complete the tasks assigned to it by the Marisol settlement, we have struggled with two sets of questions. The first concern the progress and likely impact of the many changes ACS and its system partners have been working on over the past two years. Our evaluation of those efforts has been the focus of the preceding sections of this Final Report.
We turn now, however, to our other primary concerns, which are oriented to the future rather than the past. As we have met with ACS, contract agencies, advocates, parents, and others, and as we have talked among ourselves, we have continually asked this question: looking forward to the next few years, what are the critical activities that would have the greatest effect in making this child welfare system better for children and families?
The question itself is, of course, a challenge. It suggests that even finishing all the good work already started will not be enough - a belief we think is shared by virtually all of the stakeholders in this system, including ACS leaders, and that does not in any way negate our respect for the accomplishments of the past several years. We have reached two primary conclusions.
First, we believe that the most significant challenge facing this system is to make further, critically needed improvements with regard to permanency. The necessary changes will take many forms: they will help at-risk families stay together; they will make it possible for families with children in foster care to be reunited more quickly; they will better support adoptive parents; and they will make it more likely that teens leaving foster care on their own are connected with caring adults who will help them make the transition to independent adulthood. Second, we believe that the heart of a new system-wide approach to permanency is a re-thinking of the role of parents, around the primary themes of enhanced respect, engagement, and partnership.
hi section B of this Part, we present our thoughts on these subjects in greater detail, and in section C we propose two themes for he next phase of ACS's reform efforts, along with concrete steps we believe would be useful in that work.
B. Critical Next Steps for New York City's Child Welfare System
In the Panel's first report, issued in February 1999, we wrote the following with regard to ACS's December, 1996 Reform Plan.
Although the Plan embraces a number of important organizational, procedural, and programmatic Ainitiatives= related to improved permanence, it does not always anchor these initiatives in a clearly expressed commitment to permanency goals, values, practice standards, and outcomes for the citps child welfare
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system. When contrasted with the Plan=s robust articulation of child protection and safety goals, the commitments to permanency-focused reform are less developed, less connected, less concrete and less ready for implementation. While this differential in emphasis may well reflect an understandable and defensible calculation of how best to sequence reform, it also runs the unintended risk of signaling an underemphasis on or inattention to aggressively identifying and seizing opportunities to improve permanency outcomes for the children in the city=s care.
Nearly two years later, a good deal has changed. As we noted in earlier sections of this report, ACS has issued clear and useful permanency principles; implemented family case conferences in a variety of settings; begun to reorganize a vast service system along Community District lines; and paid increasing attention to Service Plan Reviews and parent-child visits as critical opportunities to promote permanency. All of these are very important actions that we have applauded before and that continue to impress us.
Nevertheless, we think it fair to conclude that on the front line, where parents encounter caseworkers and caseworkers encounter supervisors, not enough has changed with regard to permanency. Our conversations with parents, advocates, attorneys, caseworkers, and supervisors; our own observations of family case conferences and Service Plan Reviews; the data we have reviewed concerning services to parents, parent-child visits, and parent participation in service planning; the absence of effective legal representation for parents - all of these factors, taken together, have convinced us that this is the area in which major efforts are most needed and are most likely to make real, compelling changes in the lives of the families and children in this system.
We present below a series of observations about the challenges to be met. Before we do so, however, two caveats are in order. First, we do not for a moment suggest that this is a new set of insights gleaned by this Panel. Rather, these a"e themes we have heard again and again, from thoughtful individuals in ACS, contract agencies, and the Family Court many of them people in leadership roles - as well as from parents, advocates, and attorneys. Second, we cannot say strongly enough that we present them for the purpose of facilitating further progress, not as an indictment. These problems are present, in greater or lesser form - very often in greater - in virtually every child welfare system we know. Because of the reforms of the past five years, New York City is better positioned than most to take them on.
The goals and basic orientation of the system. We begin our observations with a broad, essential, and familiar concept. A child's ability to grow up in a safe and permanent home, with lasting connections to caring adults, depends fundamentally on the circumstances and capacity of the adults in that child's life. We describe the goal of society's interventions with troubled families as "child welfare," but we promote children's well-being first and foremost through our work with adults.
This concept has important implications for work with kinship, foster, and adoptive parents. So, for example, it puts in perspective such varied responsibilities as identifying
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and assisting relatives to care for children who must be separated from their parents; providing training and flexible supports to allow foster parents to do their work well; and continuing services to adoptive parents even after the adoption is finalized. It also reminds us of the need to build connections between the adults who are important in a child's life, as embodied in the concepts known as "Family to Family."
At least as important, we think, is the absolutely central role of the birth parent. Most children who are neglected or abused nevertheless remain with one or both of their parents; most children who enter foster care leave it by returning to their own families. In all of these situations, the speed with which the parent's situation improves is the primary factor determining the child's ability to live in a safe environment that can be expected to remain stable until adulthood. (Moreover, ASFA reminds us that concentrated efforts to assist parents are essential even when they prove unsuccessful, because the decision to move to adoption in place of return home as a permanency goal depends, both ethically and legally, on the vigor with which agencies have tried to do this work.) These observations in turn have two critical implications.
First, the fundamental intervention this system can make to improve the lives of most of the children it serves is to help make it possible for their parents to overcome the barriers that have kept them from providing a safe and nurturing home. Usually that will involve change in the parent — for example, getting off drugs, or learning more appropriate ways to provide discipline and structure, or getting more connected to neighbors and community supports. Often it will also involve change in the parent's circumstances for example, finding a more adequate apartment and a route to economic self-sufficiency. To be successful in promoting permanency, a child welfare system must work with parents to facilitate change on both of these fronts.
Second, when children are in foster care, maintaining and strengthening their connection with their birth parents is absolutely essential. Research demonstrates that the families who are most likely to be reunited are those that have maintained the most frequent and substantive contact while separated. Therefore, regular, normalized visits, along with continued parental involvement in the critical activities of childhood (for example, school and medical care) are vital.
In order for a child welfare system to help parents overcome their problems and help them remain connected with their children, everyone involved must view the entire family as the client. The child's direct needs - for a safe and appropriate placement, for help in dealing with the traumas that have led to placement and the trauma of separation, and the like - and the needs of kin and foster parents are of course terribly important. But, unless there is equal emphasis on assisting birth parents, and an understanding that parents are necessary and legitimate recipients of services, the child's needs for both safety and permanency cannot be adequately met.
We believe that this is not yet the focus of practice in New York City. Different observers have many theories to explain this, including high caseloads; the time spent doing paperwork or going to court; the concern for meeting children's needs; the
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insufficient availability of culturally and linguistically competent services; and judgmental or prejudiced attitudes about parents. Whatever the causes, though, the observable effects include the following.
Lost opportunities for effective service planning. At the heart of the effort to help parents change their capacity and circumstances is a plan tailored to their individual strengths and needs. New York has created opportunities to engage parents and their natural supports (family members, friends, and community service providers) in developing these plans, at child safety and family permanency case conferences, and then to gauge their progress and revise them at semi-annual Service Plan Reviews.
In practice, however, these settings are too rarely used to their full potential. They too rarely start from the parents' strengths; too rarely ask what their goals are and what kind of help they think they need to achieve those goals; too often shy away from the difficult emotional content that must be addressed; and too often present parents with a predetermined set of services to be agreed to and complied with, rather than using the conference itself as an opportunity to craft an individual plan. In short, these are too rarely settings in which real decisions are made and parents have a voice in shaping those decisions, and too often places in which administrative requirements are complied with.
We understand these difficulties to result from two causes. First, the goals of these meetings and the expectations about what will happen there are not yet sufficiently clear. Second, the staff who take part would benefit from a good deal of help in developing and practicing the skills they need to do this complicated work well. At the end of this section, we propose specific activities to address these needs.
Before we leave this subject, though, we have one further observation, which relates it to the larger questions raised earlier in this section. We have heard again and again that the language commonly used in this system is that parents, along with children older than ten, are "invited" to participate in case conferences and Service Plan Reviews. No doubt this language derives in part from State regulations requiring a written notice to be sent to each participant at least two weeks before SPR's, "...inviting them to attend...and informing them that they may be accompanied by a person(s) of their choice..."3 Nevertheless, we think it is telling. People are "invited" to events at which their participation is optional, and which will go on whether they are present or not. (No one is "invited" to go to court, or to vote, or to undergo a medical procedure.) Therefore, it is no great surprise that these meetings often proceed without parents (or teenagers who are in foster care), and that, even when the recipients of services are physically present, their participation is often very limited.
If parents are to be in the center of service planning, rather than at its periphery, New York City's child welfare system will have to adopt different language, which describes parental participation in this critical set of decisions as both a right and a responsibility. And it will have to adopt a different set of practices, by which these meetings are scheduled with parents (rather than informing them of when they will take place), at
3 NYCRR430.12(c)(2Xb)(l)
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times and in locations that make it possible for them to participate, and with the presence of their key supports actively encouraged and facilitated.
Limited engagement of parents. In our Initial Report on Front Line and Supervisory Practice (March, 2000), we made some very broad observations about the limited extent to which this system succeeds in engaging parents. We saw practice that varied very widely, and that included programs and workers who do an extraordinary job of connecting with, encouraging, and advocating for their clients. But we came to believe this practice to be the exception, not the rule, and were more commonly struck by situations in which parents were provided with referrals to services and, if they did not quickly follow up, labeled "non-compliant."
Our recent activities and conversations reinforce these concerns. Our observations of family case conferences and SPR's; the data we have reviewed concerning such issues as the frequency of parent-child visiting, caseworker contacts with parents, and parental involvement in service planning; and the observations of parents, law guardians for children in foster care, and parents' attorneys, all suggest significant problems in these areas. Finally, in reviewing the results from our questionnaire, we were struck by the fact that the questions with the lowest average responses are all related to permanency and to work with families (they addressed the likelihood that a family will get help based on an understanding of its culture, that everyone helping a family will work together as a team, and that a high-risk family will get the help it needs to stay together).
ACS and its system partners are currently making serious efforts to address some critical aspects of parent participation, through such actions as changing visiting policies and encouraging attendance at SPR's. These are important and worthwhile activities. We think it essential, however, to see them in broader context. As ACS recognizes, getting more parents to attend SPR's is related only in part to how the SPR is scheduled; it also depends on what actually happened at the last SPR, and on how the agency has interacted with the parents in the six months since it was conducted. The same argument could be made with regard to visiting.
We believe that the system's success in meeting this larger challenge depends fundamentally on the kinds of relationships with parents it pursues. When parents are expected, encouraged, and supported to play a key role in decisions about their children's futures (even when those children are in foster care); when they are both challenged to do the work they must do in order to be able to provide a safe home for their children, and supported in accomplishing that work; and when they are treated with the respect accorded people who are seen to be facing grave challenges and who are expected to succeed in meeting them, they will be far more deeply involved than when these expectations are absent. In Section C, below, we suggest both a general framework for approaching this issue and some concrete steps by which ACS can promote relationships of this kind.
Finally, we note that one measure of a system's effort to better engage parents is its willingness to hear from parents in roles other than that of recipient of services. On
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those occasions when ACS engages parents in discussions of values, principles, policies, and procedures, it sends a powerful message that parents matter. We encourage ACS both to increase the number of occasions on which this kind of contact takes place and to broaden the range of parents who participate. On a daily basis, we expect caseworkers to build relationships even with those parents whose experiences with public systems, including the child welfare system, have left them angry, hurt, or distrustful. Similarly, we think the real challenge for ACS is in building relationships even with those parents who have significant complaints regarding the child welfare system.
Parent representation. In our report on Front Line and Supervisory Practice, we made a number of observations about issues related to the Family Court. None was more critical than the absence of effective representation for parents in legal proceedings in New York City. We noted in Part III what appear to be very promising developments in this regard; we reiterate here our belief that resolving this issue is critical not only to the fundamental fairness of this system, but to children's prospects for permanency. Effective legal counsel can help to ensure that parents do not go without services they need, or are kept from visiting their children as frequently as they should, or have their children's return home from foster care unnecessarily delayed.
C. Proposed Reform Goals and Activities
Here we suggest two new, related themes for the next phase of ACS's system improvement effort, each designed to further the effort to improve prospects for permanency for children. They are
1. building a framework for better engaging and partnering with parents, and 2. strengthening the capacity of front line workers and supervisors to do this work.
For each theme, we propose specific actions for consideration by ACS and its system partners. We then re-visit some of our prior recommendations and re-examine them in the light of the same concepts.
1. Building a framework for engagement and partnership
The first theme is the need for ACS and its system partners to engage in a broad, sustained effort to improve children's prospects for permanency by better and more respectfully engaging birth parents in service planning; providing them with more flexible and hdividualized services; furthering their continued connections with their children; and creating and sustaining high expectations for their involvement and progress. Several of the Panel's prior recommendations, particularly those with regard to visiting, are important to the achievement of this goal. We have three additional specific activities to suggest.
First, we recommend that ACS, working in consultation with parents, their advocates and attorneys, and a broad cross-section of system stakeholders, develop and disseminate a statement of principles delineating the role of parents and the desired relationships
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between parents and service providers in New York City's child welfare system. We believe that this work could reasonably be accomplished within the next six months.
In our view, the development of principles has been a useful vehicle by which ACS and its partners have come to a common understanding of the values they mean to have drive practice in this system. The permanency and placement principles communicate themes that are meant to affect many aspects of work, and they provide guidance in the development of new policies and procedures and the modification of old ones. These principles touch on some important issues related to the treatment of parents, but as far as we know those issues have not yet been fully articulated anywhere. Now is the time for a system-wide conversation, resulting in a clear set of expectations about the role of parents. These guidelines should address the issues raised in the previous section of this report, including service planning; casework with parents; and parents' continued presence in the lives of children, including both visiting and participation in ongoing decision-making, among others. They might usefully take the form of a statement of parents' rights and responsibilities. The involvement of parents in helping to develop these guidelines should itself mirror the kind of engagement ACS hopes to see in day-today casework.
Second, we think that ACS ought to clarify its expectations regarding family case conferences and Service Plan Reviews, in order to (a) elevate their role as decisionmaking meetings and (b) promote, through revised expectations, procedures, and scheduling arrangements, the full participation of parents and of children over the age of ten. We believe that this work could be accomplished in three to four months.
In the list below, we use the word "conference" generically, to mean all meetings of this kind, including both family case conferences and SPR's. We suggest that the revised expectations include the following: • a requirement that each such conference explicitly include consideration of whether
there is a safety plan that would make it possible for a child to return home promptly; • a requirement that each such conference result in a concrete visiting plan that, in
keeping with ACS's forthcoming policy regarding visiting, supports frequent parentchild contact with the minimum level of supervision required to ensure safety; • clear emphasis on the need for service plans to be individualized and developed at the conference with the full participation of all participants, not determined beforehand by the Child Evaluation Specialist or foster care caseworker and presented to the family for ratification; • guidance to ACS and contract agency staff on procedures for scheduling conferences that maximize the likelihood of parents being present and able to participate fully, addressing such issues as where and when conferences are held; transportation and (for parents with some children still at home) babysitting arrangements; the availability of professional translation services for parents who do not speak English well; and encouraging and assisting parents to bring family, friends, or other supports; • clarification of the role of the various participants at Service Plan Reviews, with particular emphasis on identifying who is to facilitate the conference (a contract
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agency representative, the OCACM worker, or some other party) and what this t)le entails; and • ongoing evaluation of conferences that addresses not only who was present, but also whether decisions were actually made and the level of participation of family members.
Finally, we think that ACS should implement procedures to ensure that adequate knowledge of community resources is available at all family case conferences and SPR's. We believe that such procedures could be in place in approximately six months.
ACS has made an enormous investment in the re-configuration of child welfare services along Community District lines. It calculated, we believe quite rightly, that this fundamental transformation would be essential in getting parents the help they need and keeping them connected with their children.
hi our view, there is a significant barrier interfering with the realization of full benefits from this change. Perhaps the single critical event around which connections to parents must be built, and upon which the likelihood of success in changing their capacity and circumstances rests, is the development of the initial service plan. Today, that plan is established at the 72-hour child safety case conference, which is a setting in which significant knowledge of the parent's community is unlikely to be represented. The Child Evaluation Specialists who facilitate the conferences were until very recently assigned to cases from an entire borough, and developing knowledge of community resources is not part of their job responsibilities. And, as previously noted, foster care agency workers, who are themselves in many cases just learning neighborhoods to which their agencies were recently assigned, are present at only about half of the conferences. While the recent reassignment of CES's by community district, and the increase in foster care agency participation, are very valuable changes, we do not believe that alone they will have sufficient impact.
Various options are available to ACS to address this issue. One promising approach would be to rely more heavily on ACS's own Family Preservation Program (FPP), which includes staff whose primary responsibility is to develop linkages with community resources for FPP clients. ACS's statistics show that in Queens, FPP staff are regularly invited to conferences (they attend more than half of the child safety conferences in that borough), while this hardly ever happens elsewhere in the City. If attendance is impractical, FPP's community experts could be available to CES's for consultation prior to conferences, or by phone while they are going on. No doubt many other possibilities for example, the routine participation of local preventive services programs - exist, and there is probably no single right answer applicable in all circumstances. But we think it essential that ACS act to ensure that the people charged with making critical service planning decisions have enough information available to them to do this job well, at both child safety and family permanency case conferences. We encourage ACS and contract agencies to consider similar issues with regard to Service Plan Reviews and ensure that appropriate community knowledge is available to participants there as well.
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2. Strengthening front-line capacity for engagement and partnership
The second broad area in which we believe ACS could usefully focus the next phase of the reform effort is a set of actions designed to strengthen the capacity of front line workers and supervisors to engage parents, plan for services with them, and advocate on their behalf.
In the last part of this section, we suggested a set of changes in the system's expectations about work with families and a set of institutional arrangements that can further this work. Those changes are necessary, but alone they are not sufficient. Caseworkers and supervisors also need considerable help in developing and practicing the skills they need to build positive relationships with clients who may be angry and resentful; to work together with parents to develop individualized service plans; to help their clients get connected and stay connected with the services they need; and to set high, challenging expectations of parents, communicating honestly about the potential consequences of various courses of action without being punitive.
hi our view, the system's success in meeting this complex challenge will rest largely on four areas of work. We highlighted two of these, training and supervision, in our Initial Report on front line and supervisory practice, and we believe that ACS has begun to make progress in each of these areas. As noted in Part III of this report, what we have seen of the forthcoming "common core" training for workers and supervisors is particularly encouraging in this respect. That training is built around the competencies workers need to develop, and it incorporates substantial opportunities to practice skills. Similarly, the training on SPR's that ACS has recently conducted for contract agency and OCACM staff incorporated many of these same desirable features. We encourage ACS to make a substantial effort to provide training of comparable quality and depth to the Child Evaluation Specialists who facilitate family case conferences.
We turn here to the two remaining themes, which are practice standards and the evaluation of practice. We also addressed these issues in the Initial Report, but in retrospect believe that we did so incompletely and without adequately connecting them to the larger issues at stake. Accordingly, we suggest here two sets of actions that we think would substantially strengthen practice with regard to permanency; we then add our thoughts on a third, related item.
First, we think that ACS should promulgate practice standards related to permanency and coaching tools for supervisors to use in promoting those standards. We think that this work could be accomplished over the period of six months.
Most child welfare systems are governed by many detailed regulations and procedures, describing very specific requirements to be met in each case. In many systems, these rules are the only guidance workers can find about what they are expected to do, and they are provided with virtually no sense of why they are expected to do it. ACS's efforts to
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develop formal statements of the values and principles it is committed to are useful precisely because they provide a larger sense of context and purpose that is so often missing in child welfare systems.
What is still lacking, however, is sufficient guidance about how workers can build the principles into their day-to-day practice. We can illustrate the distinction with reference to service planning. ACS's permanency guidelines state that "Every child and family must receive an individualized assessment and service plan tailored to their particular needs," and that "Permanency planning for a child begins at intake." These are very appropriate goals. At the other extreme, ACS policies and State regulations describe a variety of specific tasks that are related to these goals - which forms to give parents when children are removed, when and how parents are to be notified about Service Plan Reviews, who must sign various forms, etc. Both of these kinds of communication are useful and necessary, but they are not sufficient to help workers and supervisors connect the system's goals and values to the work they do with clients.
The difficulty for workers and supervisors is that the goals are too general, and the regulations too specific, for either to serve as a useful basis for discussing, coaching, monitoring, and improving practice. "Did you begin permanency planning at intake?" doesn't mean much, and "Did you send out the invitation to the SPR two weeks before the date of the meeting?" is a question about compliance with an administrative requirement, not about practice. By contrast, here are a few examples of practice standards that might be relevant to service planning:
• the worker helps the parents identify the important people who have helped them during past crises, and encourages the parents to bring these people to family case conferences or SPR's;
• the worker identifies, with the parents and their supports, the parents' strengths; • the worker elicits from the parents their own sense of their most important needs, and
their beliefs about what kind of help would be most useful to them in meeting these needs; • the service plan developed by the team clearly relates the specific services to be provided to the family's major needs.
Statements like these define "good practice" in a way that can be observed by people with experience and judgment. They promote the kind of supervisory coaching that helps practice improve, beginning with questions about how the worker has tried to carry out these standards. We believe that they would be valuable in many areas of practice. In view of the larger issues raised in this section, we encourage ACS and its contract agency partners to begin by defining practice standards with regard to permanency, understood broadly to include such key areas as engaging and developing relationships with parents; service planning; and visiting.
This work, done well, will also call into question many current policies and procedures. Workers and supervisors will identify institutional arrangements that make it difficult to carry out the standards, ranging from caseload sizes to scheduling logistics. ACS and
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contract agencies will not be able to resolve all of these concerns, but taking them seriously is a critical part of the work of building a system that promotes good practice.
Second, we believe that ACS and contract agencies should develop an initial set of indicators of the quality of front line and supervisory practice, and incorporate these indicators into their performance appraisal processes. We think that this could be done in about nine months, that is, three months after the completion of the practice standards.
As we noted in the Initial Report on front line and supervisory practice, ACS has done a remarkable job over the past several years of gathering and using information on staff performance related to compliance with regulatory requirements. So, for example, ACS managers know how well various units, supervisors and workers do in re-certifying foster homes and in submitting legal petitions for the continuation of foster care.
The new evaluation system (EQUIP) devised for contract foster care providers, which we praised earlier in this report, is based on a clear understanding by ACS that this kind of review of compliance is necessary but not sufficient. ACS has built into EQUIP measurements that are related to outcomes and to the services provided by agencies to their clients.
This effort at a broader understanding of the child welfare system's performance has not yet been translated into methods of measuring front line and supervisory practice. We know whether workers submit their Uniform Case Records on time, but not how long the children they are responsible for stay in foster care, or what proportion of the families they serve are successfully reunified, or how many parents in their caseload visit their children regularly, or to what extent the service plans they develop reflect individual needs, to cite just a few examples of kinds of data that might be of interest. We very strongly suspect that, just as there is considerable difference among agencies in all of these areas, there is considerable difference among workers and supervisors within each agency and within ACS's direct service units. Knowing those differences, using them to understand where and how practice must be improved, and connecting them to performance evaluations, seem to us to be critical steps in strengthening front line practice in this system. The limitations of existing data systems will no doubt make this a difficult process, but we think that it is well worth undertaking.
We have no "right" list of such indicators to propose. Rather, we encourage ACS to connect this work to our larger theme by identifying, along with its contract agency partners, a preliminary set of variables related to permanency for which it can produce data within the next nine months. This list ought to grow over time.
Finally, we encourage ACS and contract agencies to implement mechanisms by which their senior leaders regularly visit practice settings, participate in family case conferences and Service Plan Reviews, and model for staff and supervisors the kind of practice they wish to encourage. We think that such efforts could be in place within three months.
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In the two broad themes set forth in this section, we have proposed that ACS and its partners develop a new model of relating to parents; modify practices around service planning and review; and develop practice standards and evaluation methods to support their goals. These are large changes, meant to affect the work of thousands of people, and they will be successful only to the extent that they are actually adopted by workers and supervisors throughout the system.
We believe that the personal participation of the system's leaders will be essential to that effort. The executive leadership of both ACS and contract agencies have abundant opportunities to demonstrate their commitment to a different kind of practice, and to model what that practice can look like, by their presence in the settings where workers and clients interact. We suggest here not only that the system's leaders visit field sites as often as possible, but also that they attend and participate in family case conferences, service plan reviews, and treatment team meetings. We recognize the additional burden this places on the time of already very busy people, but we think it every bit as important as clearer policies and better training in communicating the importance of developing a different kind of practice. This work will have the added benefit of allowing them to hear more regularly from birth parents, children in care, foster parents, and front line workers and supervisors.
We think it worthwhile to expand briefly on some of the comments and recommendations in our earlier reports and connect them with the themes developed in this section.
Issues of language and culture. Respectful engagement of parents, and the development of individualized service plans, are obviously far more likely when workers understand and value their cultural heritage and can communicate with them in their native language if they are not fluent English speakers. We encourage ACS, contract agencies, and the Family Court to pay close attention to these concerns, and note two examples of areas in which their impact is critical. First, parents who do not speak English well cannot be adequately represented in court unless they have attorneys who speak their native language or consistent access to skilled translators. Second, family case conferences cannot be fully successful unless similar needs for language assistance are met there, and, more broadly, those present know enough about a family's cultural background to inform them as they develop a service plan Similar issues exist with regard to training curricula and hiring practices, as well as procedures for translating forms and obtaining the services of interpreters.
Permanency as an agenda for all of ACS. In Part III(C), above, we reviewed our comments about the critical need for greater coordination between the protective and preventive services arms of New York's child welfare system. ACS's Division of Child Protection (DCP) is charged with keeping children safe by investigating allegations of abuse or neglect and responding appropriately. Accordingly, ACS has understandably focused enormous resources on training staff to do better investigations and ensuring appropriate management oversight and accountability for this function. But DCP's actions have everything to do with permanency, too. In some circumstances, children
52

will be able to remain at home with their parents only if DCP is deeply involved in connecting them to preventive services and monitoring their success. In many others, DCP staff will drive key decisions about permanency, including the content of initial service and visiting plans, especially in their roles as facilitators and participants at child safety conferences.
Many of the same issues are present for ACS's Division of Legal Services (DLS). DLS attorneys represent ACS in court, and that very often means exerting their best efforts to convince a judge that parents cannot be trusted with their children. But their work, too, has profound effects on the prospects for permanency of those children, as they help to determine the necessary services, interpret problems in service delivery, and influence judicial decisions on the flexibility with which parent-child visiting will occur.
We believe that the leadership of both DCP and DLS is sensitive to these issues; we think a great deal can be done, through policy communication, training, and supervision, to sensitize the staff of these divisions to the critical importance of permanency, and to ensure that both safety and permanency are the common goals of all parts of the child welfare system.
Services for adolescents and their families. Similarly, we have discussed this area in past reports and reviewed ACS's progress in Part III, Section C. Virtually all of the issues raised above with regard to this system's interaction with parents are equally applicable to its interactions with teenagers in care. Their involvement in planning for their own future, including participation in the development and review of service plans; their continued connection with their families, including younger siblings as well as parents; and the respect with which they are treated, even when they are difficult and challenging, are all critical factors influencing the likelihood that they will achieve good outcomes, whether they return home or leave foster care on their own.
Flexible funding. The effort to develop service plans that are truly tailored to the needs of individual clients depends in part on the availability of funds to meet special needs. In New York City, workers can reasonably assume that funds are available for services like drug treatment and parent training classes, and they use those resources very heavily. By contrast, this system has much less ability to deal with unique or less common problems, or to allow workers to be creative in designing services to meet a family's needs. Developing more flexible funding is therefore an important component of strengthening the work of promoting permanency and engaging families.
Adequate resources for contract providers. Again, we have referred to this issue above. In Periodic Report #3, we spoke of the extent to which ACS has succeeded in winning investments that have enabled it to strengthen its own human resources, in the form of significant salary increases and, in some instances, caseload reductions for its staff. We noted that similar gains would be needed to allow contract providers to participate in this reform effort as fully and effectively as they must if it is to be successful. Another way of conceptualizing this issue is that ACS has been able to make major improvements in the base upon which it builds its efforts to keep children safe. Most people who work in
53

protective services in New York City are significantly better trained and better compensated than was the case five years ago, and ACS is rightly proud of the impact of these changes. The same is not yet true for the large majority of the people whose work
is focused on permanency - those in preventive services and foster care programs,
ACS's success in capturing additional resources to bolster its contract providers is therefore an essential element of its work to further permanency for children in New York.
54

Appendix: Data from the Panel's questionnaire on front line and supervisory practice
We received responses from 130 people. Just under half work for ACS, about onequarter work for contract agencies, and the remaining quarter work for legal or advocacy organizations. (We also have a small number of responses from parents; we include responses from parents in the totals below, but too few parents participated to allow us to compare their responses as a group to those of other groups.) Respondents included caseworkers, supervisors, managers, attorneys, and executives.
The questionnaire includes the fifteen statements listed below, each addressing a specific area of front line practice and supervisory practice, and asks respondents to evaluate their likelihood for each of three time periods - three years ago, today, and two years from now.
1. A child who is abused or neglected will be adequately protected. 2. A child in foster care will get most of the help s/he needs. 3. A high-risk family will get most of the help they need to be able to stay together. 4. A family with children in foster care will get most of the help they need in order to
have the children return home. 5. A family will get help based on an understanding of its culture. 6. An individual who does not speak English well will get help from a worker who
speaks his or her language, or will have the help of an interpreter. 7. A foster family will get most of the help they need in order to take good care of the
foster children. 8. Everyone who works with a family will work together as a team to help them. 9. An ACS worker will have been provided with the training s/he needs to do the job
well. 10. A contract agency worker will have been provided with the training s/he needs to do
the job well. 11. An ACS worker will have the skills and judgment s/he needs to do the job well. 12. A contract agency worker will have the skills and judgment s/he needs to do the job
well. 13. A worker will be provided with clear, consistent policy direction about key issues. 14. A worker will be provided with adequate supervision to guide his or her efforts. 15. A worker will be held accountable and expected to meet high standards of
performance.
For each time period, respondents said that they thought this to be (1) very unlikely, (2) pretty unlikely, (3) about as likely as not, (4) pretty likely, or (5) very likely. (Those with less than three years' experience in the system were asked not to respond for the "three years ago" time period.)
We also asked two questions aimed at eliciting general views of system change: "In general, compared to three years ago, how well do you think New York City's child welfare system is working?" and "In general, compared to the way it works now, how
55

well do you expect New York City's child welfare system to be working two years from now?" These questions were scored (1) much worse, (2) somewhat worse, (3) about the same, (4) somewhat better, or (5) much better.

(1) Mean Response to All Questions
The data below show the average of the respondents' scores across all questions they answered from the 15 listed above.

Three years ago Today Two years from now Change past three years Change next two years Change over five years

All Responses
2.76 3.26 3.71 +0.50 +0.45 +0.95

ACS Staff 3.08 3.65 4.19
+0.57 +0.54 +1.11

Contract Agency Staff
2.78 3.22 3.64 +0.44 +0.42 +0.86

Advocates etc. 2.12 2.62 2.96
+0.50 +0.34 +0.84

These groups evaluated the actual performance of the system quite differently. ACS staff thought that, on average, the system three years ago was "about as likely as not" (mean response = 3.08) to meet the tests laid out in these questions, and that two years from now it will be more than "pretty likely" (mean = 4.19) to do so. Advocates and those who work for legal organizations, on the other hand, thought that three years ago the system was "pretty unlikely" to do well (mean = 2.12), and that two years from now it will be "about as likely as not" (mean = 2.96). The contract agency respondents, taken as a group, were in between these extremes.

However, the perceptions of improvement across these three groups were remarkably similar. The average rating for "today" by ACS staff was 0.57 higher than three years ago, only very slightly greater than the 0.50 gain scored by advocates or he 0.44 scored by contract agency staff. All three groups also expect further improvement over the next two years; when the full five year period is considered, even the advocates group rates typical items nearly a foil point higher (+0.84).

(2) Responses Regarding Overall System Performance

The responses to the two most general questions, again broken down by category of respondents, were as follows.

56

In general, how is the system working compared to three years ago? ACS Private Agencies

much worse somewhat worse about the same somewhat better much better average response

— — 9.8% 51.0% 39.2% 4.29

3.4% 10.3% 20.7% 55.2% 10.3%
3.59

Advocacy & Legal Organizations 11.1% 3.7% 37.0% 37.0% 11.1% 3.33

The large majority of ACS staff clearly think that the system as a whole has improved (90.2% rated it at least "somewhat better), as do most (65.5%) of the private agency respondents. Just under half (48.1%) of legal and advocacy organization respondents think things are better, 37.0% of this group think they are the same, and 14.8% think things are worse.

In general, how well do you expect the system to be working two years from now?

ACS Private Agencies

Advocacy & Legal

Organizations

much worse

--

—

—

somewhat worse

—

--

6.7%

about the same

18.2%

33.3%

30.3%

somewhat better

18.2%

57.6%

43.3%

much better

63.6%

9.1%

16.7%

average response

4.45

3.76

3.70

Again, ACS staff overwhelmingly think that things will continue to get better, and here there is a striking plurality who believe that they will be "much better." The other two groups also have majorities who expect improvement, but with many more respondents choosing "somewhat better" rather than "much better."

(3) Responses to the 15 Specific Questions

The average responses for each of he 15 questions, in each of the three time periods, are shown in the table on the next page. We caution again that the respondents were not a random sample of system participants; had we surveyed a different mix of ACS, contract agency, and advocacy organization staff, the figures below would likely have been different. Accordingly, we find this table interesting primarily for the comparison between items; we would be reluctant to generalize based on the scores themselves.

57

1. Child who is abused or neglected will be adequately protected.
2. Child in foster care will have most needs met. 3. High-risk family will get most help they need to
stay together. 4. Family with kids in foster care will get most help
they need to have kids return home. 5. Family will get help based on understanding of its
culture. 6. Individual who doesn't speak English will get help
in own language or an interpreter. 7. Foster family will get most help they need to care
for children. 8. Everyone who works with family will work
together as a team. 9. ACS worker will have training s/he needs to do job
well. 10. Contract agency worker will have training s/he
needs to do job well. 11. ACS worker will have skills & judgment to do job
well. 12. Contract agency worker will have skills &
judgment to do job well. 13. Workers will get clear, consistent direction re
policy. 14. Worker will get adequate supervision to guide
efforts. 15. Worker will be held accountable and expected to
meet high standards.

3 years ago
3.49

today 3.84

2 years from now
4.08

2.59 3.09

3.59

2.66 3.04

3.50

2.70 3.27

3.66

2.12 2.83

3.33

2.47 3.32

3.70

3.10 3.51

3.88

2.37 2.95

3.51

2.35 3.23

3.70

2.61 3.13

3.50

2.69 3.27

3.88

2.90 3.33

3.81

2.60 3.14

3.62

2.82 3.41

3.79

2.77 3.57

3.90

In terms of current performance, the highest average scores were for the following

questions.

—likelihood that a child who is abused or neglected will be adequately protected

3.84

- - likelihood that a worker will be held accountable and to high standards

3.57

—likelihood that a foster family will get the help it needs

3.51

The lowest average scores were for the following questions,

--likelihood that a family will get help based on understanding of its culture

2.83

—likelihood that everyone helping a family will work together as a team

2.95

--likelihood that a high-risk family will get help it needs to stay together

3.04

A copy of the survey instrument follows.

58

Special Child Welfare Advisory Panel

The purpose of this questionnaire is to provide information about the impressions of people who are knowledgeable about New York City's child welfare system. The survey is anonymous, and your answers will not be connected to you in any way. Thank you for your assistance.

I. Background Questions Please check theappropriate boxforeach question

1. I have been familiar with the New York City child welfare system for: CD less than 3 years

| [ between 3 years and6 years

CD between 6 years and 10 years

CD more than 10 years

2. I work for:

ED theAdministration forChildren's Services (ACS)

CD a private agency that provides foster care orpreventive services

CD an organization that provides legal representation (e.g. Legal Aid, Legal Services)

CD an advocacy organization

CD other (please describe thetype of organization:

)

[~| I'm a birth parent or relative, not an employee in the system
3. My primary responsibility is as: CD a birth parent or relative

dD a foster parent

CD a caseworker, social worker, or case aide

CD an attorney

CD a supervisor

CD a program director or manager

CD an executive

CD other (please describe:

)

4. Based onmypersonal experience, I ammost knowledgeable about (please check allthat apply): CD child protective services

CD foster care

CD preventive services

CD other (please describe:

)

II. View of Changes in Specific Areas
The questions below ask for your opinion about important aspects of New York City's child welfare system. For each question, please circle one number in each column, next to the choice that comes closest to what you think.
• The first column asks how well you think things were working three years ago. If you have worked in or been familiar with the system for less than three years, please leave this column blank.
• The second column asks how well you think things are working today. " The third column asks how well you think things will be working two years from now.

Statement
1. A child who is abused or neglected will be adequately protected.
2. A child in foster care will get most of the help s/he needs.
3. A high-risk family will get most of the help they need to be able to stay together.
4. A family with children in foster care will get most of the help they need in order to have the children return home.

How likely was it three years ago!
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

How likely is it today?
l very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

How likely will it be two years from now?
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

60

Statement
5. A family will get help based on an understanding of its
r*\t ltiin^ CuilUIC.
6. An individual who does not speak English well will get help from a worker who speaks his or her language or will have the help of an interpreter.
7. A foster family will get most of the help they need in order to take good care of the foster children.
8. Everyone who works with a family will work together as a team to help them.
9. An ACS worker will have been provided with the training s/he needs to do the job well.
10. A contract agency worker* will have been provided with the training s/he needs to do the job well.

How likely was it three years ago!
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know/no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

How likely is it today"?
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

How likely will it be two years from now?
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

* A worker in one of the private, non-profit agencies that ACS contracts with to provide foster care or preventive services. 61

TIT

Statement
11. An ACS worker will have the skills and judgment s/he needs to do the job well.
12. A contract agency worker will have the skills and judgment
Q/TIP nppfta to fin trip
job well.
13. A worker will be provided with clear, consistent policy direction about key issues.
14. A worker will be provided with adequate supervision to guide his or her efforts.
15. A worker will be held accountable and expected to meet high
performance.

How likely was it three years ago?
1 very unlikely

How likely is it today"?
1 very unlikely

2 pretty unlikely

2 pretty unlikely

3 about as likely as not

3 about as likely as not

4 pretty likely 5 very likely

4 pretty likely 5 very likely

0 don't know /no opinion 0 don't know /no opinion

1 very unlikely 2 pretty unlikely

T"very unlikely
2 pretty unlikely

3 about as likely as not

3 about as likely as not

4 pretty likely

4 pretty likely

5 very likely

5 very likely

0 don't know /no opinion 0 don't know /no opinion

1 very unlikely

1 very unlikely

2 pretty unlikely

2 pretty unlikely

3 about as likely as not

3 about as likely as not

4 pretty likely 5 very likely

4 pretty likely 5 very likely

0 don't know /no opinion 0 don't know /no opinion

1 very unlikely

1 very unlikely

2 pretty unlikely

2 pretty unlikely

3 about as likely as not

3 about as likely as not

4 pretty likely

4 pretty likely

5 very likely

5 very likely

0 don't know /no opinion 0 don't know /no opinion

1 very unlikely

1 very unlikely

2 pretty unlikely

2 pretty unlikely

3 about as likely as not

3 about as likely as not

4 pretty likely

4 pretty likely

5 very likely

5 very likely

0 don't know /no opinion 0 don't know /no opinion

How likely will it be two years from now?
1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion 1 very unlikely 2 pretty unlikely 3 about as likely as not 4 pretty likely 5 very likely 0 don't know /no opinion

62

III. View of Overall Change and Expectations for the Future

Please circle the number above the choice that comes closest to what you think. {If you have worked in or been familiar with the system for less than three years, please answer only question 4 on this page.)

I. In the past three years, how many changes in ACS policies and operations have you noticed?

1

2

3

0

no changes some changes many changes don't know/no opinion

2. How have these changes affected your ability to do your job well?

1

2

made it harder have not had

any effect

3

0

made it easier don't know/no opinion

3. In general, compared to three years ago, how well do you think New York City's child welfare system is working?

1

2

much worse somewhat worse

3

4

about the same somewhat better

5

0

much better don't know/

no opinion

4. In general, compared to the way it works now, how well do you expect New York City's child welfare system to be working two years from now?

1 much worse

2

3

4

5

0

somewhat worse about the same somewhat better much better don't know/

no opinion

Please feel free to add any comments, or to give us your opinion on issues you think are important that were not addressed by these questions, in the space below; continue on the back of the page if necessary.

Thank you for completing this questionnaire. Please return it to the person who distributed it.
63

 
 CLOSED,APPEAL,CASREF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:95−cv−10533−GBD−KHP

Marisol A., et al v. Rudolph Giuliani, et al Assigned to: Judge George B. Daniels Referred to: Magistrate Judge Katharine H. Parker Demand: $0 Related Case: 1:99−cv−00326−AJN
Case in other court: 99−07218. Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/13/1995 Date Terminated: 03/31/1999 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Marisol A. by her next friend, Rev. Dr. James Alexander Forbes, Jr; by her next friend Raymunda Cruz.

represented by Carol A. Marcus Children's Rights, Inc. 404 Park Avenue South 11th Floor New York, NY 10016 TERMINATED: 05/08/1997 LEAD ATTORNEY

David M. Brodsky Latham & Watkins LLP 885 Third Avenue, Suite 1000 New York, NY 10022 212−906−1628 Fax: 212−751−4864 Email: david.brodsky@lw.com LEAD ATTORNEY

Karen J. Freedman Lawyers for Children, Inc., 110 Lafayette St 8th Flr. New York, NY 10013 LEAD ATTORNEY

Marcia Robinson Lowry Children's Rights Incorporated 330 Seventh Avenue 4th Floor New York, NY 10001 (212)683−2210 Fax: (212) 683−4015 Email: info@childrensrights.org LEAD ATTORNEY

Rose Elaine Firestein New York State Department of Law Litigation 120 Broadway, 24th Floor New York, NY 10271 (212)−416−8306 Fax: (212)−416−6003 Email: rose.firestein@ag.ny.gov LEAD ATTORNEY

Shirim Nothenberg Children's Rights Incorporated 330 Seventh Avenue 4th Floor New York, NY 10001

Plaintiff Lawrence B. by his next friend, Dr. Vincent Bonagura
Plaintiff Thomas C. by his next friend, Dr. Margaret T. McHugh

212−683−2210 Fax: (212) 683−4015 Email: info@childrensrights.org TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin Cahill Gordon & Reindel 80 Pine Street New York, NY 10005 (212)701−3000 LEAD ATTORNEY
Betsy Kramer Lawyers For Children 110 Lafayette Street New York, NY 10013 (212)−966−6420 Email: bkramer@lawyersforchildren.org ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address)

Plaintiff Shauna D. by her next friend, Nedda de Castro
Plaintiff

LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by

Ozzie E. by his next friends, Jill Chaifetz and Kim Hawkins
Plaintiff Darren F.
Plaintiff David F. by their next friends, Juan A. Figueroa

Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address)

and Rev. Marvin J. Owens
Plaintiff Bill G.

TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer

Plaintiff Victoria G. by their next friend, Sister Dolores Gartanutti
Plaintiff Brandon H. by his next friend, Thomas J. Moloney

(See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
Betsy Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY

Plaintiff Stephen I. by his next friend, Kevin Ryan, on their own behalf and on behalf of and all others similarly situated
V. Defendant Rudolph W. Giuliani Mayor of the City of New York
Defendant Marva Livingston Hammons Aministrator of the Human Resources Administration and Commissioner of the Dept. of Social Services of the City of New York Defendant seorge E. Pataki Governor of the State of New York

Thomas F. Curnin (See above for address) LEAD ATTORNEY
represented by Carol A. Marcus (See above for address) TERMINATED: 05/08/1997 LEAD ATTORNEY
David M. Brodsky (See above for address) LEAD ATTORNEY
Karen J. Freedman (See above for address) LEAD ATTORNEY
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Rose Elaine Firestein (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Thomas F. Curnin (See above for address) LEAD ATTORNEY
represented by Grace Goodman Paul A. Crotty Corporation Counsel of the City of NY 100 Church Street Room 20176 New York, NY 10007 (212)788−0963 LEAD ATTORNEY
represented by Grace Goodman (See above for address) LEAD ATTORNEY
represented by Michael S. Popkin Dennis C. Vacco Attorney General of the State of NY 120 Broadway New York, NY 10271 (212)416−8570

Defendant Brian J. Wing Acting Commissioner of the Dept. of Social Services of the State of New York Defendant Nicholas Scoppetta in his official capacity as Commissioner of the New York City Administration for Children's Services Intervenor Plaintiff Joel A.
Intervenor Plaintiff Michael D.
Intervenor Plaintiff Eric R.
Intervenor Plaintiff David S.
Intervenor Plaintiff Maxx R.
Intervenor Plaintiff Ray D.
ADR Provider SHEILA J. POOLE Acting Commissioner of the New York State Office of Children and Family Services

LEAD ATTORNEY
represented by Michael S. Popkin (See above for address) LEAD ATTORNEY
represented by Grace Goodman (See above for address) LEAD ATTORNEY
represented by Marc Christopher Falcone Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212)−373−3506 Fax: (212)−492−0506 Email: mfalcone@paulweiss.com LEAD ATTORNEY
represented by Marc Christopher Falcone (See above for address) LEAD ATTORNEY
represented by Marc Christopher Falcone (See above for address) LEAD ATTORNEY
represented by Marc Christopher Falcone (See above for address) LEAD ATTORNEY
represented by Marc Christopher Falcone (See above for address) LEAD ATTORNEY
represented by Marc Christopher Falcone (See above for address) LEAD ATTORNEY
represented by Samantha Leigh Buchalter New York State Office of the Attorney General (28 Liberty) 28 Liberty Street New York, NY 10005 212−416−6582 Fax: 212−416−6009 Email: samantha.buchalter@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Courtroom Television Network
Plaintiff Walter S. by his next friends, W.N. and N.N., grandparents
Plaintiff Richard S. by his next friends, W.N. and N.N., grandparents
Plaintiff Danielle J. by her next friend, Angela Lloyd

represented by Floyd Abrams Cahill Gordon & Reindel LLP 80 Pine Street New York, NY 10005 (212)−701−3621 Fax: (212)−269−5420 Email: fabrams@cahill.com LEAD ATTORNEY
represented by Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
represented by Marcia Robinson Lowry (See above for address) LEAD ATTORNEY
Mark G. Peters Locke Lord LLP (NYC) 750 Lexington Avenue New York, NY 10022 212−308−4411 Fax: 212−308−4844 Email: mpeters@edwardswildman.com TERMINATED: 01/12/1999 LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
represented by Marcia Robinson Lowry (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY
Mark G. Peters (See above for address) TERMINATED: 01/12/1999 LEAD ATTORNEY
Shirim Nothenberg (See above for address) TERMINATED: 08/16/2000 LEAD ATTORNEY

Date Filed 12/13/1995

# Docket Text
1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); FILING FEE $ 120 RECEIPT # 252080 (sc) (Entered: 12/14/1995)

12/13/1995 12/14/1995 12/14/1995 12/21/1995 12/21/1995 12/26/1995 12/26/1995 01/31/1996
01/31/1996
01/31/1996 02/05/1996 02/05/1996 02/05/1996
02/06/1996

CASE REFERRED TO Judge Ward (sc) (Entered: 12/14/1995)
2 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. for class certification , Return date 1/4/96 (cd) (Entered: 12/20/1995)
3 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [2−1] motion for class certification (cd) (Entered: 12/20/1995)
Case accepted as related to 78 Cv 0957. Notice of assignment to follow. (sc) (Entered: 12/21/1995)
4 Notice of asg _ to Judge Robert J. Ward Copy of notice and judge's rules mailed to Attorney(s) of record: Karen J. Freedman, Marcia Robinson Lowry . (sc) (Entered: 12/21/1995)
5 Case Information Statement Addendum and Case Designation to a Magistrate Judge filed. Purs. to statement, it is suggested that the case be classified as unknown. Case is designated to Magistrate Judge Grubin. (sc) (Entered: 12/26/1995)
Pre−trial conference held (emil) (Entered: 12/27/1995)
6 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted , or, in the alternative declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law , Return date 2/12/96 (emil) (Entered: 02/05/1996)
7 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support of [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law (emil) (Entered: 02/05/1996)
8 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in opposition to class certification (emil) (Entered: 02/05/1996)
9 NOTICE OF MOTION by Rudolph W. Giuliani et al (city defts) for an order modifying the TRO of 1/19/96 , Return date 1/26/96 (cd) (Entered: 02/06/1996)
10 MEMORANDUM by Rudolph W. Giuliani etal (city defts) in support of [9−1] motion for an order modifying the TRO of 1/19/96 (cd) (Entered: 02/06/1996)
11 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law. Fld in night deposit on 2/5/96 on 7:51 p.m. (emil) (Entered: 02/07/1996)
12 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law (emil) (Entered: 02/09/1996)

02/13/1996 02/13/1996 02/13/1996 02/14/1996 02/14/1996 02/14/1996 02/20/1996
02/20/1996 02/20/1996 02/21/1996 02/21/1996 02/22/1996
02/23/1996

13 NOTICE OF MOTION by George E. Pataki, Brian J. Wing purs. to Rule 12(b)(6) of the FRCP, to dismiss the complaint in part , Return date 2/12/96 (emil) (Entered: 02/15/1996)
14 MEMORANDUM by George E. Pataki, Brian J. Wing in support of [13−1] motion purs. to Rule 12(b)(6) of the FRCP, to dismiss the complaint in part (emil) (Entered: 02/15/1996)
15 MEMORANDUM by George E. Pataki, Brian J. Wing in opposition to [2−1] motion for class certification (emil) (Entered: 02/15/1996)
16 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases , or, in the alternative for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety , Return date 3/4/96 (emil) (Entered: 02/15/1996)
17 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support of [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety (emil) (Entered: 02/15/1996)
18 AFFIRMATION of Grace Goodman by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support Re: [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for of Documents in its entirety (emil) (Entered: 02/15/1996)
19 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety. Fld in night deposit on 2/20/96 at 10:47 p.m. (emil) (Entered: 02/22/1996)
20 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support re: [2−1] motion for class certification. Fld in night deposit on 2/20/96 at 10:48 p.m. (emil) (Entered: 02/22/1996)
21 AFFIDAVIT in support of Marcia Robinson Lowry by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: [20−1] reply memorandum. Fld in night deposit on 2/20/96 at 10:48 p.m. (emil) (Entered: 02/22/1996)
22 AFFIDAVIT (corrected copy) in support of Marcia Robinson Lowry by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: [20−1] reply memorandum. Fld in night deposit on 2/21/96 at 9:08 p.m. (emil) (Entered: 02/23/1996)
24 REPLY MEMORANDUM by George E. Pataki, Brian J. Wing in support re: [13−1] motion purs. to Rule 12(b)(6) of the FRCP, to the complaint in part (emil) (Entered: 02/23/1996)
23 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support re: [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law (emil) (Entered: 02/23/1996)
26 NOTICE OF MOTION by George E. Pataki, Brian J. Wing purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases , for a protective order purs. to FRCP 26(c) vacating pltff's Second Request for Production of Documents in its entirety , Return date 3/4/96. Affirmation in support attached. (emil) (Entered:

02/26/1996 02/26/1996
02/26/1996
02/26/1996 02/27/1996 02/28/1996
02/28/1996 02/28/1996 02/29/1996 03/01/1996

02/26/1996)
25 NOTICE OF REDESIGNATION OF A CIVIL CASE TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Eaton. Please note that this is the reassignment of the designation only. Copy of notice mailed to Attorney(s) of record: Karen J. Freedman, Marcia Robinson Lowry . (sc) (Entered: 02/26/1996)
27 ORDER TO SHOW CAUSE; Show Cause Hearing set for 10:00 2/28/96 purs. to Rule 24 of the FRCP, for an order granting Court TV leave to intervene in this case for the limited purposes of (a) seeking to persuade this Court that Court TV may televise the 3/4/96 oral argument on pltffs' motion for class certification and defts' pretrial motions to dismiss and (b) obtaining the Court's written permission purs. to General Rule 7 of the Local Rules of this Court to televise the oral arguments scheduled for 3/4/96 ( signed by Judge John E. Sprizzo, Part I ); Copies mailed. (emil) (Entered: 02/26/1996)
28 MEMORANDUM by Court TV in support of [27−1] motion purs. to Rule 24 of the FRCP, for an order granting Court TV leave to intervene in this case for the limited purposes of (a) seeking to persuade this Court that Court TV may televise the 3/4/96 oral argument on pltffs' motion for class certification and defts' pretrial motions to dismiss and (b) obtaining the Court's written permission purs. to General Rule 7 of the Local Rules of this Court to televise the oral arguments scheduled for 3/4/96 (emil) (Entered: 02/26/1996)
29 Affidavit of Service of Order to Show Cause and supporting papers upon the following: NYC Law Dept. by Grace Goodman, Esq. 2/23/96; Office of NYS Atty. Gen., by Ronald Younkins on 2/23/96; Lawyers for Children, Inc. by Karen Freedman on 2/23/96; Children's Rights, Inc. by Robinson on 2/23/96. (emil) Modified on 02/27/1996 (Entered: 02/27/1996)
30 Affidavit of Service of Order to Show Cause and Letter of Jonathan Sherman dated 2/26/96 upon the following: Office of the Atty. Gen. by Ronald Younkins on 2/26/96; Lawyers for Children, Inc. by Karen Freedman on 2/26/96; Corp. Counsel of the City of NY by Grace Goodman on 2/26/96; Children's Rights, Inc. by Marcia Robinson Lowry on 2/26/96 (emil) (Entered: 02/28/1996)
Motion hearing held re: [27−1] motion purs. to Rule 24 of the FRCP, for an order granting Court TV leave to intervene in this case for the limited purposes of (a) seeking to persuade this Court that Court TV may televise the 3/4/96 oral argument on pltffs' motion for class certification and defts' pretrial motions to dismiss and (b) obtaining the Court's written permission purs. to General Rule 7 of the Local Rules of this Court to televise the oral arguments scheduled for 3/4/96; decision reserved. (emil) (Entered: 02/28/1996)
31 Reply affirmation of Grace Goodman by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support of [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety (emil) (Entered: 02/29/1996)
32 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft in support re: [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for of Documents in its entirety (emil) (Entered: 02/29/1996)
35 SUR−REPLY by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., H., Stephen I. Re: in opposition to defts' motions to bifurcate this action and to stay class−wide discovery. (emil) (Entered: 03/04/1996)
33 DECLARATION of Lorna Bade Goodman in opposition by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft [27−1] motion purs. to Rule 24 of the FRCP, for an order granting Court TV leave intervene in this case for the limited purposes of (a) seeking to persuade this Court that Court TV may televise the 3/4/96 oral argument on pltffs' motion for class certification and defts' pretrial motions to dismiss and obtaining the Court's written permission purs. to General Rule 7 of the Local Rules of this Court to televise the arguments scheduled for 3/4/96 (emil)

03/01/1996
03/01/1996 03/01/1996 03/04/1996
03/05/1996 03/07/1996 03/12/1996
03/21/1996 04/10/1996 05/01/1996 05/08/1996 05/08/1996

(Entered: 03/01/1996)
34 MEMORANDUM & ORDER granting in part, mooting in part [27−1] motion purs. to Rule 24 of the FRCP, for an order granting Court leave to intervene in this case for the limited purposes of (a) seeking to persuade this Court that Court TV may televise the 3/4/96 oral argument on pltffs' motion for class certification and defts' pretrial motions to dismiss and (b) obtaining the Court's written permission purs. to General Rule 7 of the Local Rules of this Court to televise the oral arguments scheduled for 3/4/96, Inasmuch as the Court heard counsel for the Proposed Intervenor on 2/28/96, the portion of the motion seeking to intervene is moot. For the reasons stated in this Order, the portion of the motion seeking to televise the March 4 Argument is granted ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 03/04/1996)
Memo endorsed on Order to Show Cause, doc. #27; motion disposed of in accordance w/ memorandum and order filed herewith ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 03/04/1996)
36 NOTICE of attorney appearance (as co−counsel) for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. by Thomas F. (emil) (Entered: 03/04/1996)
Motion hearing re: [26−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [26−2] motion for a protective order purs. to FRCP 26(c) vacating pltff's Second Request for Production of Documents in its entirety, [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety, [13−1] motion purs. to Rule 12(b)(6) of the FRCP, to dismiss the complaint in part, [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law, [2−1] motion for class certification (emil) (Entered: 03/05/1996)
37 AFFIRMATION of Grace Goodman by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft Re: to suggest on the record the death of pltff "Lawrence B." (emil) (Entered: 03/06/1996)
38 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Discovery Disputes only when Dist. Judge is unavailable ( signed by Judge Robert J. Ward ) Referred to Magistrate Judge Douglas F. Eaton (emil) (Entered: 03/08/1996)
39 ORDER, Nicholas Scoppetta, in his official capacity as Commissioner of the New York City Administration for Children's Services, is substituted as a deft for Kathryn Croft. The NYC Child Welfare Administration having been renamed the NYC Administration for Children's Services, effective 2/12/96, all references in the parties' submissions to either the Child Welfare Administration or the Administration for Children's Services shall be considered inclusive ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 03/12/1996)
Pre−trial conference held (emil) (Entered: 03/25/1996)
40 Letter filed dated 4/9/96 re change of address of Children's Rights, Inc., counsel for pltffs. (emil) Modified on 04/11/1996 (Entered: 04/11/1996)
41 Letter filed by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. dated 4/29/96 re new telephone number for Children's Rights, Inc., counsel for pltff. (emil) (Entered: 05/03/1996)
42 Transcript of record of proceedings filed for dates of 3/21/96 (emil) (Entered: 05/09/1996)
43 Transcript of record of proceedings filed for dates of 2/28/96 (emil) (Entered: 05/09/1996)

05/14/1996 06/18/1996
06/18/1996
06/18/1996 06/18/1996 06/18/1996 07/03/1996 07/03/1996 07/09/1996 07/26/1996 08/02/1996 08/07/1996

44 PROTECTIVE ORDER, regarding procedures that will govern the handling of individually−identifying information (as detailed in this order) ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 05/15/1996)
45 MEMORANDUM OPINION #76777 denying [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases; denying [13−1] motion purs. to Rule 12(b)(6) of the FRCP, to dismiss the complaint in part; denying [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted; granting [2−1] motion for class certification, defts' motions to dismiss are denied to the extent that (1) custodial pltffs may pursue their substantive due process claims based on alleged violations of their right to be free from harm and all pltffs may pursue their procedural due process claims based on alleged violations of various provision of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law; (2) pltffs may pursue their federal statutory claims based on the Adoption Assistance and Child Welfare Act, including the provision herein referred to as the Multiethnic Placement Act, the Child Abuse Prevention and Treatment Act, the Americans w/ Disabilities Act, and the Rehabilitation Act; and (3) pltffs may pursue their state law claims ( Signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 06/19/1996)
Memo endorsed on motion; denying [6−1] motion purs. to FRCP 12(b)(6), to dismiss portions of the First Cause of Action and the Second, Third, Fourth, Sixth, Seventh, and Eighth Causes of Action in the complaint in their entirety for failure to state a claim upon which relief can be granted, denying [6−2] motion declining to exercise pendant jurisdiction over, or abstaining from deciding, the Seventh and Eighth Causes of Action in the complaint, which are based on alleged violations of state law ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 06/19/1996)
Memo endorsed on motion; denying [16−1] motion purs. to FRCP 42(b), to bifurcate the discovery and trial of this action into two phases, denying [16−2] motion for a protective order purs. to FRCP 26(c) vacating Pltffs' Second Request for Production of Documents in its entirety ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 06/19/1996)
Memo endorsed on motion; denying [13−1] motion purs. to Rule 12(b)(6) of the FRCP, to dismiss the complaint in part ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 06/19/1996)
Memo endorsed on motion; granting [2−1] motion for class certification ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 06/19/1996)
Pre−trial conference held (emil) (Entered: 07/03/1996)
46 ORDER, regarding resolution of the following motions: City and State defts' motions to dismiss, that the court decline to exercise its supplemental jurisdiction, that pltff's state law claims be deemed nonjusticiable, and that the court abstain; City defts' motion to bifurcate the proceedings; and pltffs' motion for class certification ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 07/05/1996)
47 Transcript of record of proceedings filed for dates of 3/4/96 (emil) (Entered: 07/11/1996)
48 MEMORANDUM & ORDER, the City defts' application purs. to 28 USC 1292(b) for certification for interlocutory appeal of this Court's order certifying this case as a class action is granted ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 07/26/1996)
49 STIPULATION, extending time for City and State defts to Answer to the complaint is extended to 8/16/96 , reset answer due for 8/16/96 for Nicholas Scoppetta, for Brian J. Wing, for George E. Pataki, for Marva Livingston Hammons, for Rudolph W. Giuliani ( signed by Judge Robert J. Ward ). (kg) (Entered: 08/02/1996)
50 STIPULATION and ORDER, the parties to this action agree that the State Defts are deemed to have joined in the City Defts' application to certify the Court's Order, dated 7/3/96, for immediate appeal purs. to 28 USC 1292(b); and the State Defts shall have leave, along w/ the City Defts, to pursue said interlocutory appeal, under the terms of

08/08/1996 08/12/1996
08/16/1996 08/20/1996 08/20/1996 08/20/1996 09/09/1996 09/09/1996 09/11/1996
09/24/1996 10/02/1996
10/07/1996 10/08/1996 10/08/1996

the Court's Order, dated 7/26/96, granting the City Defts' application. The State Defts participation in that Order shall be nunc pro tunc, and no deadline established by the Court's 7/26/96 Order shall be extended by virtue of this Stip ( signed by Judge Robert J. Ward ). (emil) (Entered: 08/08/1996)
Pre−trial conference held (emil) (Entered: 08/09/1996)
51 MEMORANDUM & ORDER, defts' application purs. to 28 USC 1292(b) for certification for interlocutory appeal of this Court's order certifying this case as a class action is granted. Upon their consent, defts are directed to file their petition for permission to appeal w/ the clerk of the court of appeals within three business days from the date of this order ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 08/12/1996)
52 ANSWER to Complaint by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta (Attorney Grace Goodman) (emil) (Entered: 08/19/1996)
53 NOTICE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to take deposition of NYC Administration for Children's Services on 9/9/96; subpoena(s) issued. (emil) (Entered: 08/21/1996)
54 NOTICE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to take deposition of Dept. of Social Services of the State of NY on 9/5/96; subpoena(s) issued. (emil) (Entered: 08/21/1996)
55 ANSWER to Complaint by George E. Pataki, Brian J. Wing (Attorney Michael S. Popkin) (emil) (Entered: 08/23/1996)
56 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons purs. to FRCP 62 and 26(c), for a stay of classwide discovery pending determination of the appeal of this Court's order granting certification of a class , Return date 9/24/96. Declaration in support attached. (emil) (Entered: 09/10/1996)
57 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons in support of [56−1] motion purs. to FRCP 62 and 26(c), for a stay of classwide discovery pending determination of the appeal of this Court's order granting certification of a class (emil) (Entered: 09/10/1996)
58 True Copy of Order from the USCA as to George E. Pataki, Brian J. Wing RE: Motion for leave to appeal under 28 U.S.C. 1292 (b): It is hereby ordered that the motion be and it hereby is granted. (96−9134). GEORGE LANGE III, Clerk, U.S.C.A. (Construed as a Notice of Appeal. Fee paid $105.00 on 9/11/96, Receipt # E270377). (em) Modified on 09/12/1996 (Entered: 09/12/1996)
59 True Copy of Order from the USCA as to Nicholas Scoppetta RE: Motion for permission to appeal pursuant to 28 U.S.C. 1292(b). It is hereby ordered that the motion be and it hereby is granted. (96−9132 and 96−8036). (Construed as a Notice of Appeal). GEORGE LANGE III, Clerk, U.S.C.A. (em) (Entered: 09/24/1996)
60 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [56−1] motion purs. to FRCP 62 and 26(c), for a stay of classwide discovery pending determination of the appeal of this Court's order granting certification of a class (emil) (Entered: 10/04/1996)
61 Transcript of record of proceedings filed for dates of 8/8/96 (emil) (Entered: 10/08/1996)
62 NOTICE OF MOTION by The New York City Chapter of the National Association of Social Workers for an order allowing The NYC Chapter of the Nat'l Association of Social Workers to appear as an amicus curiae in this action , Return date 11/1/96 (emil) (Entered: 10/09/1996)
63 MEMORANDUM by NYC Chapter of the Nat'l Association of Social Workers in support of [62−1] motion for an order allowing The NYC Chapter of the Nat'l Association of Social Workers to appear as an amicus curiae in this action (emil)

10/08/1996
10/09/1996 10/09/1996
10/10/1996
10/16/1996 10/16/1996 10/16/1996
10/16/1996 10/16/1996 10/16/1996
10/28/1996 11/08/1996
11/08/1996 11/08/1996 11/08/1996 11/08/1996 11/22/1996

(Entered: 10/09/1996)
64 DECLARATION of Deborah K. Shepherd on behalf of NYC Chapter of the Nat'l Association of Social Worker in support [62−1] motion for an order allowing The NYC Chapter of the Nat'l Association of Social Workers to appear as an amicus curiae in this action (emil) (Entered: 10/09/1996)
Pre−trial conference held (emil) (Entered: 10/10/1996)
65 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons in support re: [56−1] motion purs. to FRCP 62 and 26(c), for stay of classwide discovery pending determination of the appeal of this Court's order granting certification of a class. (Received in unit for docketing on 10/16/96 from 500 Pearl St.) (emil) (Entered: 10/16/1996)
Memo endorsed on motion; denying [56−1] motion purs. to FRCP 62 and 26(c), for a stay of classwide discovery pending determination of the appeal of this Court's order granting certification of a class, discovery shall proceed in accordance w/ the oral direction of the Court as set forth in open court ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 10/10/1996)
66 Letter filed addressed to Judge Ward from Terrence J. Galligan, dated 10/11/96 re withdrawal of NYC NASW's motion and supporting memorandum filed on 10/8/96 (emil) Modified on 10/16/1996 (Entered: 10/16/1996)
67 Letter filed addressed to Judge Ward from Craig Levine dated 10/15/96 re request that the Court enter a stip & order regarding letters to be added to the record (emil) (Entered: 10/16/1996)
68 STIPULATION and ORDER, the following documents were intended to be included in the Court record of this matter, and should therefore be added to the docket of this action: Letter dated 4/2/96, annexed as Exhibit A; Letter dated 4/5/96, annexed as Exhibit B ( signed by Judge Robert J. Ward ). (emil) (Entered: 10/17/1996)
68 Letter filed addressed to Judge Ward from Craig Levine, dated 4/2/96 re: to address the class action status of the claims represented by the now−deceased named pltff, Lawrence B. (emil) (Entered: 10/17/1996)
68 Letter filed addressed to Judge Ward from Grace Goodman, dated 4/5/96 re: response to pltff's letter dated 4/2/96, concerning the deceased pltff Lawrence B (emil) (Entered: 10/17/1996)
Memo endorsed on motion; withdrawing [62−1] motion for an order allowing The NYC Chapter of the Nat'l Association of Social Workers to appear as an amicus curiae in this action ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 10/17/1996)
69 Notice that the original record on appeal has been certified and transmitted to the U.S. Court of Appeals (emil) (Entered: 10/30/1996)
70 STIPULATION and ORDER, regarding documents to be added to the docket of this action (copies of these documents are attached to this Stip as exhibits): Letter dated 2/13/96; Letter dated 2/13/96; Letter dated 2/9/96; Letter dated 2/13/96 ( signed by Judge Robert J. Ward ). (emil) (Entered: 11/12/1996)
70 Copy of Letter addressed to Judge Ward from Carolyn A. Kubitschek dated 2/13/96. (Docketed as per Stip & Order of Judge Ward) (emil) (Entered: 11/12/1996)
70 Copy of Letter addressed to Judge Ward from Marcia Robinson Lowry dated 2/13/96. (Docketed as per Stip & Order of Judge Ward) (emil) (Entered: 11/12/1996)
70 Copy of Letter addressed to Judge Ward from Geoffrey A. Mort, dated 2/9/96. (Docketed as per Stip & Order of Judge Ward) (emil) (Entered: 11/12/1996)
70 Copy of Letter addressed to Judge Ward from Steven M. Conolly, dated 2/13/96. (Docketed as Stip & Order of Judge Ward) (emil) (Entered: 11/12/1996)
Pre−trial conference held (emil) (Entered: 11/25/1996)

12/02/1996 12/16/1996 01/02/1997 01/03/1997 01/17/1997 01/29/1997
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03/14/1997 03/14/1997

71 Transcript of record of proceedings filed for dates of 10/9/96 (emil) (Entered: 12/02/1996)
Pre−trial conference held (emil) (Entered: 12/17/1996)
72 Transcript of record of proceedings before Judge Ward filed for dates of 11/22/96 (ls) (Entered: 01/02/1997)
73 Filed Memo−Endorsement on letter to USMJ, Francis from dated 12/26/96, In Re: extending time....pltff shall answer by 1/31/97 and defts may reply by 2/14/97. Pltff shall send copies of all correspondence to defts' counsel ( signed by Magistrate Judge James C. Francis IV ) (kg) (Entered: 01/06/1997)
74 STIPULATION and ORDER, extending time to 1/31/97 for defts to respond to pltffs' Second Requests for Admissions ( signed by Judge Robert J. Ward ). (emil) (Entered: 01/17/1997)
75 STIPULATION and ORDER, a jointly selected Case Review Team, agreed upon by the parties, is appointed by the Court to conduct a case record review. The Case Review Team consists of the Center for the Study of Social Policy, the United Way of New York City, and a designee of the NYS Dept. of Social Services who shall act w/ absolute neutrality in the conduct of this case record review and not as a representative of the state defts ( signed by Judge Robert J. Ward ). (emil) (Entered: 01/29/1997)
76 Transcript of record of proceedings filed for dates of 12/16/96 (emil) (Entered: 02/10/1997)
Pre−trial conference held (emil) (Entered: 02/14/1997)
77 STIPULATION and ORDER, inadvertent production of any documents that would be subject to a claim of privilege will not be deemed a waiver of that privilege, and the party receiving such a document shall return it promptly upon its identification as privileged, without making a copy ( signed by Judge Robert J. Ward ). (emil) (Entered: 02/25/1997)
Pre−trial conference held (emil) (Entered: 03/10/1997)
78 SCHEDULING ORDER: Discovery cutoff 10/1/97; Joint Pretrial Order or motion(s) for summary judgment to be submitted on or before 10/31/97; in the event any pltff fails to comply w/ the Court's direction, or to seek an extension by timely application, the Court on its own motion will dismiss pltff's claim for lack of prosecution. In the event that any deft fails to comply w/ this or any subsequent scheduling order or to seek an extension by timely application, the deft's answer will be stricken, and the Court shall enter appropriate injunctive relief in favor of pltffs and against such deft upon a default judgment ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 03/11/1997)
79 ORDER, the Clerk of the Court is to accept the funds (for case record review) for deposit and subsequently transfer them to the CRIS, interest bearing account in the name of "Marisol v. Giuliani Case Record Review". The Clerk of the Court shall deduct from the income on the investment a fee not exceeding the fee authorized by the Judicial Conference of the U.S. and set by the Director of the Administrative Office equal to 10% of the income earned for deduction in the investment so held without further order of the Court. Withdrawal of the funds may only be effected by further order of this Court ( signed by Judge Robert J. Ward ); Copies mailed. Sent to Cashier's Office on 3/11/97. (emil) (Entered: 03/11/1997)
80 STIPULATION and ORDER, regarding the integrity of records included in the joint case record review. ( signed by Judge Robert J. Ward ). (kg) (Entered: 03/14/1997)
81 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis of deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation , Return date not indicated. Fld in night deposit on 3/14/97 at 11:57 p.m. (emil) (Entered: 03/17/1997)

03/14/1997 03/21/1997
04/01/1997 04/01/1997 04/03/1997 04/03/1997
04/10/1997 04/16/1997 04/18/1997 04/18/1997 04/18/1997

82 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [81−1] motion for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis of deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation. Fld in night deposit on 3/14/97 at 11:58 p.m. (emil) (Entered: 03/17/1997)
83 STIPULATION and ORDER, the original paragraph 9 of the Stip & Order Establishing a Joint Case Record Review, entered by the Court on 1/28/97, is null and void. Paragraph 9 shall now hold as follows: 9. The pltffs, city defts & state defts shall share equally in all costs associated w/ the case record review, as specified in a budget to be submitted to the parties by the Case Review Team, which budget thall include a payment mechanism acceptable to the Case Review Team. The state defts shall be entitled to credit against their financial obligation in the amount of the reasonable value of the time spent on the case record review by their designated member of the Case Review Team and any other DSS employee who, at the request of the Case Review Team, may make a high−level contribution to the case record review of the sort for which the members of the Case Review Team from CSSP and UWNYC are compensated. The pltffs shall be entitled to a credit against their financial obligation in the amount of the reasonable value of the contribution to the case record review made by CSSP. CSSP agrees and is ordered never to bill or otherwise charge any of the parties herein for any portion of CSSP's work on, or expenses incurred in connection with, the case record review. In the event that either the city defts or the state defts do not accept the budget, those defts have the right to withdraw from this agreement ( signed by Judge Robert J. Ward ). (emil) (Entered: 03/21/1997)
84 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons in opposition to [81−1] motion for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis of deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation (emil) (Entered: 04/02/1997)
85 SUPPLEMENTAL AFFIDAVIT of Nicholas Scoppetta by Rudolph W. Giuliani, Marva Livingston Hammons Re: [81−1] motion for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis of deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation (emil) (Entered: 04/02/1997)
86 Transcript of record of proceedings filed for dates of 2/11/97 (emil) (Entered: 04/04/1997)
87 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in further support re: [81−1] motion for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation. Fld in night deposit on 4/3/97 at 3:51 a.m. (emil) (Entered: 04/04/1997)
88 NOTICE of attorney appearance for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. by Carol A. Marcus (emil) (Entered: 04/14/1997)
Pre−trial conference held (as to City Defts only) (emil) (Entered: 04/17/1997)
Motion hearing held re: City Defts' Order to Show Cause for TRO; Application withdrawn purs. to oral representation by pltff to comply voluntarily (emil) (Entered: 04/22/1997)
Pre−trial conference held as to State Defts only (emil) (Entered: 04/22/1997)
89 ORDER TO SHOW CAUSE by City Defendants; Show Cause Hearing set for 10:00 a.m. on 5/8/97 to disqualify Carol Marcus from this action , prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law , to disqualify Children's Right Inc. from this action. ( signed by Judge Robert J. Ward ); Copies mailed. (kw) (Entered: 04/22/1997)

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05/08/1997 05/08/1997 05/08/1997 05/08/1997 05/08/1997

89 AFFIDAVIT OF CHRISTOPHER in support by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta Re: [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action. (dcap) (Entered: 07/15/1998)
90 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action. (dcap) (Entered: 07/15/1998)
91 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action. (emil) (Entered: 04/28/1997)
92 ORDER, for Rebecca Kim Kimura to withdraw as attorney as counsel for pltffs ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 05/02/1997)
93 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to withdraw the Notice of Appearance of Carol A. Marcus , Return date not indicated. Affidavit in support attached. (emil) (Entered: 05/05/1997)
94 Transcript of record of proceedings filed for dates of 3/7/97 (emil) (Entered: 05/09/1997)
Motion hearing held re: [93−1] motion to withdraw the Notice of Appearance of Carol A. Marcus, [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action., [81−1] motion for an order directing defts to provide documentary discovery withheld, and permitting deposition inquiries blocked, on the basis of deliberative privilege, and to provide the parties w/ guidance regarding the scope of said privilege in this litigation (emil) (Entered: 05/09/1997)
95 AFFIDAVIT in support of Christopher Juge by Rudolph W. Giuliani, Marva Livingston Hammons Re: [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action. (emil) (Entered: 05/09/1997)
96 AFFIDAVIT in support of Robert L. Little by Rudolph W. Giuliani, Marva Livingston Hammons Re: [89−1] motion to disqualify Carol Marcus from this action, [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law, [89−3] motion to disqualify Children's Right Inc. from this action. (emil) (Entered: 05/09/1997)
Memo endorsed on motion; granting [93−1] motion to withdraw the Notice of Appearance of Carol A. Marcus ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 05/09/1997)
Memo endorsed on motion, doc. #81, the within motion to compel discovery withheld on the basis of deliberative privilege disposed of in accordance w/ Memorandum Decision filed this date ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 05/09/1997)
97 ORDER/MEMORANDUM DECISION, pltffs move (doc. #81) for an order directing defts to provide documentary discovery withheld and to permit deposition inquiries

05/08/1997 05/09/1997 05/09/1997 05/12/1997 05/13/1997 05/13/1997 05/14/1997 05/14/1997
05/14/1997
05/15/1997
05/15/1997 05/28/1997
06/03/1997

objected to on the basis of the deliberative privilege and to provide the parties w/ guidance regarding the scope of the privilege in this litigation. After having briefed the matter, the parties appeared before the Court on 4/16/97. It was agreed that pltffs would specify a representative number of documents which the Court would review in camera. By letter dated 4/18/97, pltffs presented a list of representative documents for which individual in camera review was sought. The Court has reviewed the documents and rules upon the objections as set forth in this Memorandum Decision ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 05/09/1997)
98 ORDER, pltff's motion to withdraw the Notice of Appearance of Carol A. Marcus is granted and Ms. Marcus' Notice of Appearance, filed on 4/10/97, is deemed withdrawn ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 05/09/1997)
99 NOTICE of attorney appearance for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. by Rose E. Firestein (emil) (Entered: 05/12/1997)
100 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial/After Initial Case Mgmt. Conference held by Dist. Judge ( signed by Judge Robert J. Ward ); Referred to Magistrate Judge Douglas F. Eaton (emil) (Entered: 05/12/1997)
101 NOTICE of attorney appearance for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. by David M. Brodsky (emil) (Entered: 05/13/1997)
102 Objection(s) by Rudolph W. Giuliani, Marva Livingston Hammons, Kathryn Croft and Nicholas Scoppetta to pltffs' First Updated Document Request (emil) (Entered: 05/14/1997)
Evidentiary hearing held on pltffs' application for a TRO (emil) (Entered: 05/15/1997)
Evidentiary hearing held on pltffs' application for a TRO. Application granted as modified by the Court. (emil) (Entered: 05/15/1997)
Memo endorsed on motion; denying as moot [89−1] motion to disqualify Carol Marcus from this action; denying as moot [89−2] motion prohibiting Carol Marcus from disclosing any confidences or secrets she acquired while employed at the Administration for Children's Services, except as may be permitted by law; denying as moot [89−3] motion to disqualify Children's Right Inc. from this action. ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 05/15/1997)
105 ORDER, that portion of the city defts' Motion to Disqualify Counsel as seeks to disqualify Carol A. Marcus as counsel for pltffs in this matter is denied as moot. That portion of the city defts' Motion to Disqualify Counsel as seeks to disqualify other attys from Children's Rights, Inc. as counsel for pltffs is also denied as moot ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 05/15/1997)
103 AMENDED ORDER TO SHOW CAUSE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I.; Show Cause Hearing set for 9:30 5/22/97 for a preliminary and permanent injunction , for temporary restraining order ( signed by Judge Robert J. Ward ); Copies mailed. (emil) Modified on 05/15/1997 (Entered: 05/15/1997)
104 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [103−1] motion for a preliminary and permanent injunction, [103−2] motion for a temporary restraining order (emil) (Entered: 05/15/1997)
Memo endorsed on motion; [103−1] motion for a preliminary and permanent injunction, [103−2] motion for temporary restraining order. Defts have agreed to extend the temporary restraing order to 6/12/97. Return date reset to 6/12/97 for [103−1] motion for a preliminary and permanent injunction, 6/12/97 for [103−2] motion for temporary restraining order ( signed Judge Miriam G. Cedarbaum, Part I ); Copies mailed. (lam) (Entered: 05/29/1997)
106 Transcript of record of proceedings before Judge Ward filed for dates of April 16, 1997. (sac) (Entered: 06/03/1997)

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107 Transcript of record of proceedings before Judge Ward filed for dates of April 18, 1997. (sac) (Entered: 06/03/1997)
108 ORDER, Return date reset to 6/27/97 @10:00 for [103−1] motion for a preliminary and permanent injunction ; the TRO issued on 5/14/97 is extended to 6/27/97 (signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 06/13/1997)
Discovery conference (contested issue) held on 6/16/97 before USMJ Eaton (ls) (Entered: 06/17/1997)
109 ORDER, that the Court authorized disclosure of information contained in files in completed adoptions for the purpose of conducting the joint case review in connection with this case; all records so disclosed shall be maintained in accordance with the terms and conditions for record retenetion and maintenance set forth in this Court's prior orders dated 1/128/97 and 3/13/97 ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 06/24/1997)
110 MEMORANDUM AND ORDER, as per "Must the State produce documents from 1/1/90 or from 1/1/94?" the State is directed to send pltffs, by 7/1/97 by fax and be mail, an answer to the following (see doc.); As per "Must the State produce copies of all the documents it received from the City" the pltffs are directed to provide the State with (a) set of relevant City documents that required some sort of action by the NYDSS, (b) a list describing these documents and giving each a #, (c) a list of specific State officials (12 at most), Within 21 days of receipt, the State shall perform the 3 "tasks" described on page 3 etc.; As per "Must the City answer the second request for admissions" it will be a satisfactory response if the City cites and adopts a pertinent portion of the updated case review; as per "The pltffs' request for futher in camera review of documents" I sustain the City's invocation of privilege as to documents ##1, 13, 7, 18, 19 and 20, the City is directed to sent an in camera affidavit by 7/1/97 by fax and be mail answering the following questions (see doc.) (signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 06/26/1997)
111 ORDER, reset show cause hearing for 10:00 a.m. 7/9/97, for preliminary & permanent injunction and temporary restraining order ( signed by Judge Robert J. Ward); Copies mailed. (kg) Modified on 06/27/1997 (Entered: 06/27/1997)
112 MEMORANDUM AND ORDER: In response to my 6/24/97 Memorandum and Order, Grace Goodman submitted an in camera affidavit dtd 6/27/97. I now sustain the City's invocation of privilege as to documents #5 and 11. In document #5 the four sentences that I singled out in my prior order contain opinions themselves, and are intertwined with additional opinions and recommendations. Document #11 was a handwritten draft by Julie Lilien for John Linder's eyes only, suggesting a format for recording some of the SupCon data (signed by Magistrate Judge Douglas F. Eaton); Copies mailed (kg) Modified on 07/02/1997 (Entered: 07/02/1997)
121 ORDER, authorizing interim payment of expenses to United Way of NYC from CRIS Acct 95cv10533: the Clerk of the Court is directed to arrange for the transfer of $71,855.60 from the funds currently held by CRIS in acct #95cxv10533, to the Registry of this Court; the Clerk of the Court is to prepare a check in the amount of $71,855.60 made payable to "United Way of New York City" and advise Mr. David Daykin, Director of Research that he may pick it up or arrange for mailing. ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 07/16/1997)
113 ORDER, reset show cause hearing for 10:00 a.m. 7/18/97 ; extending time of the TRO issued on 5/14/97 is extended to 7/18/97 (signed by Judge Robert J. Ward); Copies mailed. (kg) (Entered: 07/09/1997)
114 NOTICE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to take deposition of Phyllis Boyd and Paula Porter on 8/7/97; subpoena(s) issued. (kg) (Entered: 07/10/1997)
115 NOTICE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., H., Stephen I. to take deposition of Nina Melito on subpoena(s) issued. (kg) (Entered: 07/10/1997)
116 NOTICE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., H., Stephen I. to take deposition of Curtis Still on 8/14/97; subpoena(s) issued. (kg) (Entered: 07/10/1997)

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117 Objection(s) to [110−1] order as per "Must the State produce documents from 1/1/90 or from 1/1/94?" the State is directed to send pltffs, by 7/1/97 by fax and be mail, an answer to the following (see doc.); As per "Must the State produce copies of all the documents it received from the City" the pltffs are directed to provide the State with (a) set of relevant City documents that required some sort of action by the NYDSS, (b) a list describing these documents and giving each a #, (c) a list of specific State officials (12 at most), Within 21 days of receipt, the State shall perform the 3 "tasks" described on page 3 etc.; As per "Must the City answer the second request for admissions" it will be a satisfactory response if the City cites and adopts a pertinent portion of the updated case review; as per "The pltffs' request for futher in camera review of documents" I sustain the City's invocation of privilege as to documents ##1, 13, 7, 18, 19 and 20, the City is directed to sent an in camera affidavit by 7/1/97 by fax and be mail answering the following questions (see doc.) by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. (kg) (Entered: 07/10/1997)
118 Before MJ Eaton; Transcript of record of proceedings filed for dates of 6/16/97 (cd) (Entered: 07/11/1997)
Remark by Cashier's Office on doc. #121 (page 2), on 7/10/97 the following transaction was made: Received Check #447650 in the amount of $71,855.60 payable to United Way of New York City, mailed 7/10/97 to attn: Valerie Moore as per David Daykin. (lam) (Entered: 07/16/1997)
122 AFFIDAVIT in opposition of Joseph E. Nitsche , for the State Defts, to the pltffs' request for review of the 6/24/97 Memorandum and Order of US Magistrate Eaton. (lam) (Entered: 07/16/1997)
123 RESPONSE by State Defts to pltffs' objections Re: [117−1] to the 6/24/97 Memorandum and Order of Magistrate Judge Eaton re [110−1] order as per "Must the State produce documents from 1/1/90 or from 1/1/94?" the State is directed to send pltffs, by 7/1/97 by fax and be mail, an answer to the following (see doc.); As per "Must the State produce copies of all the documents it received from the City" the pltffs are directed to provide the State with (a) set of relevant City documents that required some sort of action by the NYDSS, (b) a list describing these documents and giving each a #, (c) a list of specific State officials (12 at most), Within 21 days of receipt, the State shall perform the 3 "tasks" described on page 3 etc.; As per "Must the City answer the second request for admissions" it will be a satisfactory response if the City cites and adopts a pertinent portion of the updated case review; as per "The pltffs' request for futher in camera review of documents" I sustain the City's invocation of privilege as to documents ##1, 13, 7, 18, 19 and 20, the City is directed to sent an in camera affidavit by 7/1/97 by fax and be mail answering the following questions (see doc.) (lam) (Entered: 07/16/1997)
119 Transcript of record of proceedings filed for dates of 5/8/97 @10:00 before Judge Ward. (lam) (Entered: 07/15/1997)
120 Transcript of record of proceedings filed for dates of 5/13 and 5/14/97 before Judge Ward (lam) (Entered: 07/15/1997)
124 STIPULATION and ORDER, the State defts may assert the atty−client, work product and/or the self−evaluative or deliberative process privilege to any document inadvertently produced to pltffs' counsel in response to pltffs' counsel's letter of 6/24/97, and that pltffs will not assert that such inadvertent production constitutes a waiver of the privilege. Pltffs, however, reserve their right to argue the privilege does not apply to a document so identified, but we will not do so on the basis of its inadvertent production. ( signed by Judge Robert J. Ward) (lam) (Entered: 07/18/1997)
Memo endorsed on motion; withdrawing [103−1] motion for a preliminary and permanent injunction, withdrawing [103−2] motion for temporary restraining order ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 07/21/1997)
125 INTERIM STIPULATION and ORDER concerning overnights at pre−placement ( signed by Judge Robert J. Ward ). (lam) (Entered: 07/22/1997)
126 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. re: [122−1] affidavit, and in support of their objections to the 6/24/97 Memorandum and order of

08/06/1997 09/10/1997 09/11/1997
09/11/1997 09/11/1997 09/11/1997
09/11/1997 09/11/1997
09/15/1997 09/17/1997 09/19/1997
09/19/1997 09/23/1997
09/23/1997

Magistrate Judge Eaton re [117−1]. (lam) (Entered: 07/23/1997)
Hearing begun and concluded : Pltff's objections to Magistrate Judge Eaton's decision of 6/24/97 (purs to Rule 72(A_ FRCP); Decision reserved. Submitted by Michael Guaranich, Deputy Court Clerk. (lam) (Entered: 08/07/1997)
Pre−trial conference held before Judge Ward. (lam) (Entered: 09/11/1997)
127 Letter filed by Marcia Robinson Lowry of Children's Rights by pltffs Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. dated 9/8/97 re raising several issues involving the city defts; important, long−requested and relevand discovery documents are still not being produced by defts and that defts are, in essence, being permitted to extend the trial date by failing to devote sufficient resources to this case. Seeking the Court's assistance in establishing deadlines for outstanding discovery. (lam) (Entered: 09/11/1997)
128 Letter filed by Grace Goodman, Asst Corp Counsel, atty for City Defts dated 9/9/97 re stating City defts' position on the items understood to be on the agenda for the conference now scheduled fot 9/10/97 @2:00. (lam) (Entered: 09/11/1997)
129 Letter filed by Grace Goodman, Asst Corp Counsel, atty for City defts dated 9/9/97 re response in detail to the letter from pltffs' counsel, Children's Rights Inc. dated 9/8/97. (lam) (Entered: 09/11/1997)
130 Letter filed by Thomas F. Curnin, atty for pltffs Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. dated 9/9/97 re to bring to the attention of the Court instances in which the State defts have failed to respond to long−standing requests made by pltffs for documents and other information. Pltffs request the Court to order the State defts to comply with pltffs' requests. (lam) (Entered: 09/11/1997)
131 Letter filed by Judith T. Kramer, Asst Atty General, atty for the State defts dated 9/9/97 re response to pltffs' letter to the Court dated 9/9/97 regarding alleged outstanding discovery. (lam) (Entered: 09/11/1997)
132 Letter filed by Marcia Robinson Lowry of Children's Rights by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. dated 9/10/97 re in response to several of the assertions in defts' several letters of 9/9/97, and to report on a development since our most recent submission. (lam) (Entered: 09/11/1997)
Pre−trial conference held before Judge Ward as to State Defts only. (lam) (Entered: 09/18/1997)
133 AFFIDAVIT in opposition of Brian J. Wing to the pltffs' request for copies of any and all documents related to the reorganization of the NYS Dept. of Social Services. (lam) (Entered: 09/18/1997)
134 NOTICE OF MOTION by City defts' for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial . With affidavit attached. Return date 9/25/97. (lam) Modified on 09/22/1997 (Entered: 09/22/1997)
135 MEMORANDUM by City defts' in support of [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial (lam) (Entered: 09/22/1997)
136 MEMORANDUM of Amicus Curiae The New York Times Co. in opposition to City deft's [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial (lam) (Entered: 09/24/1997)
Pre−trial conference held before Judge Ward. (lam) (Entered: 09/24/1997)

09/24/1997 09/25/1997 10/01/1997 10/02/1997
10/10/1997 10/10/1997
10/14/1997 10/14/1997 10/14/1997

137 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to the City defts' [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial (lam) (Entered: 09/24/1997)
138 REPLY MEMORANDUM by City Defendants re: [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial (lam) (Entered: 09/26/1997)
Pre−trial conference held before Judge Ward (lam) (Entered: 10/02/1997)
139 AMENDED SCHEDULING ORDER, vacating the Scheduling Order dated 3/7/97; by 10/10/97 defts shall serve and file written interrogatories ascertaining from pltffs the information deemed necessary by the Court of Appeals; by 11/10/97 pltffs shall serve answers to defts' interrrogatories; by 11/14/97 the parties shall set a firm schedule for all noticed depositions, and for the production of all outstanding discovery and shall advise the Court of the schedule; by 12/31/97 the parties shall complete all factual discovery; by 1/9/98 pltffs shall serve their expert reports on defts; by 1/19/98 defts shall serve their expert reports on pltffs; by 2/9/98 all depositions of pltffs' expert witnesses shall be completed; by 2/18/98 all depositions of expert witnesses shall be completed; reset joint pretrial order to be submitted on or before 3/18/98 ; final pretrial conference for 10:00 3/23/98; by 3/27/98 @12:00 the parties shall file their proposed findings of fact and conclusions of law; the trial shall commence on 3/30/98 @10:00; if any party fails to comply with this scheduling order or to seek an extension by timely application, the Court, on motion of the parties or on its own motion, shall issue such orders as it deems necessary, including, but not limited to, orders of preclusion, contempt, dismissal, and an order striking a deft's answer, providing for an inquest and the entry of a default judgment ( signed by Judge Robert J. Ward ) ; Copies mailed (lam) (Entered: 10/02/1997)
Memo endorsed on motion; denying in accordance with memorandum decision filed herewith [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 10/10/1997)
140 MEMORANDUM DECISION AND ORDER denying [134−1] motion for protective order purs to FRCP 26(c), preventing the release of or disclosure to any non−party of the "Case Record Review Reports" prepared in connection with this suit until the time that these Reports have been received in evidence at the trial. The presumption of access to the Report is strong due to the likelihood that the Report will play a significant role in the Court's exercise of Article III power in this case, and the public's interest in this litigation. Moreover, defts have failed to show good cause for the issuance of a protective order. In light of the public's interest in monitoring both the Article III functions of this Court and the operations of ACS and DSS, it would be impovident of the Court to delay release of the Report. Therefore, defts' motion for a protective order purs to Rule 36(c), FRCP is denied. Notwithstanding the denial of the motion for a protective order, release of the Report shall be stayed until 10/16/97 @5:00pm, to afford defts the opportunity to apply to the Court of Appeals for a further stay if so advised. Absent a stay from the Court of Appeals, the Report will be filed with the Clerk of the Court on 10/17/97 ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 10/10/1997)
141 Transcript of record of proceedings filed for dates of 8/6/97 @10:00 before Judge Ward. (lam) (Entered: 10/14/1997)
142 Transcript of record of proceedings filed for dates of 10/1/97 @1:15 before Judge Ward. (lam) (Entered: 10/14/1997)
143 NOTICE OF APPEAL by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. ; from [140−1] order Notwithstanding the denial of the motion for a protective order, release of the Report shall be stayed until 10/16/97 @5:00pm, to afford defts the opportunity to apply to the

10/17/1997
10/21/1997 10/21/1997 10/21/1997
10/31/1997 11/10/1997 11/10/1997 11/10/1997 11/10/1997 11/12/1997
11/12/1997
11/18/1997
12/01/1997 12/05/1997 12/08/1997

Court of Appeals for a further stay if so advised. Absent a stay from the Court of Appeals, the Report will be filed with the Clerk of the Court on 10/17/97, [140−2] relief . Copies of notice of appeal mailed to Attorney(s) of Record: David M. Brodsky . $105.00 Appeal filing fee paid on receipt # E 299329 on October 14, 1997. (dt) (Entered: 10/15/1997)
144 True Copy of Order from the USCA RE: Ordered that the motion for temporary stay pending the appeal is hereby granted pending consideration of this motion by the three judge panel sitting 10/21/97. GEORGE LANGE III, CLERK. (kk) (Entered: 10/20/1997)
Pre−trial conference held before Judge Ward (lam) (Entered: 10/21/1997)
145 Case Record Review: Services to Families with Open Indicated Cases (lam) (Entered: 10/21/1997)
146 MANDATE OF USCA (certified copy) Re: [143−1] appeal by Stephen I., Brandon H., Victoria G., Bill G., David F., Darren F., Ozzie E., Shauna D., Thomas C., Lawrence B., Marisol A. It is now hereby ordered, adjudged, and decreed that the order be and it hereby affirmed. (96−9132,96−9134) George Lange, III, Clerk, USCA. (as) (Entered: 10/23/1997)
pre−trial conference held and concluded before Judge Ward on 10/31/97 (ls) (Entered: 11/03/1997)
147 Transcript of record of proceedings filed for dates of 9/15/97 @12:00 before Judge Ward. (lam) (Entered: 11/10/1997)
148 Transcript of record of proceedings filed for dates of 9/10/97 @2:10 before Judge Ward. (lam) (Entered: 11/10/1997)
149 Transcript of record of proceedings filed for dates of 9/21/97 @10:15 before Judge Ward. (lam) (Entered: 11/10/1997)
150 Transcript of record of proceedings filed for dates of 9/10/97 @10:00 before Judge Pitman. (lam) (Entered: 11/10/1997)
151 RESPONSE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Rudolph W. Giuliani, Marva Livingston Hammons, George E. Pataki Re: City defts' First Set of Interrogatyories dated 10/10/97. (lam) (Entered: 11/12/1997)
152 RESPONSE by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Rudolph W. Giuliani, Marva Livingston Hammons, George E. Pataki Re: State defts' First Set of Interrogatories dated 10/9/97. (lam) (Entered: 11/12/1997)
153 MEMORANDUM & ORDER, I am responding to the 11/17/97 joint letter from Mr. Curnin and Ms. Stanch; I have reviewed in camera the unredacted copy of Document C 707, which was marked as Fazio Exhibit 4 and is a one−page memorandum dated 1/14/97 from ACS employee Michael Ng to Deputy Commissioner Linda Gibbs; I sustain the City's invocation of the deliberative process privilege ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 11/19/1997)
154 MANDATE OF USCA (certified copy) Re: It is hereby ordered that docket number 97−9294 is deleted as to this appeal. (97−9282, 97−9294) George Lange, III, Clerk, USCA. (as) (Entered: 12/02/1997)
155 Case Record Review: Services to Children in Foster Care and their families; prepared by Marisol Joint Case Review Team, December, 1997 (lam) (Entered: 12/05/1997)
156 MEMORANDUM & ORDER, in response to the joint letter from Mr. Curnin and Ms Goodman dated 12/4/97, I permit the pltffs to name up to 15 employees of the Administration for Children's Services; I direct the City defts to cause the files of those named employees to be searched for documents responsive to Items 1 through 13 in Pltffs' Tenth Request for Production of Documents from the City defts −− and to produce the documents within 14 days of the receipt of the pltffs' list of names ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 12/09/1997)

12/09/1997 12/09/1997 12/09/1997 12/09/1997
12/11/1997 12/15/1997 12/15/1997 12/16/1997 12/16/1997
12/17/1997 12/19/1997 12/19/1997 12/24/1997 01/05/1998 01/05/1998

157 Transcript of record of proceedings filed for dates of 10/31/97 @10:35 before Judge Ward. (lam) (Entered: 12/09/1997)
158 Transcript of record of proceedings filed for dates of 10/21/97 @10:00 before Judge Ward. (lam) (Entered: 12/09/1997)
159 NOTICE OF MOTION by City defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to quash deposition of Howard Wilson . With declaration attached. Return date 12/17/97 @10:00. (lam) (Entered: 12/11/1997)
160 ORDER, authorizing partial payment of expenses to United Way of New York City from CRIS acct 95−civ−10533: the Clerk of the Court is directed to arrange for the transfer of $64,431.58, the entire amount currently held by the CRIS in acct #95−civ−10533, to the Registry of this Court; the Clerk of the Court is to prepare a check for $64,431.58 made payable to "United Way of New York City" and advise David Daykin, Director of Research, United Way of New York City that he may pick it up or make arrangements for the mailing of the check ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 12/16/1997)
Remark by Cashiers Office on doc. #160 (page 2) on 12/11/97 the following transaction was made: Received Check #460081 in the amount of $64,431.58 payable to United Way of NYC; mailed 12/12/97. (lam) (Entered: 12/16/1997)
161 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [159−1] motion to quash deposition of Howard Wilson (lam) (Entered: 12/17/1997)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/17/1997)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/17/1997)
162 SECOND AMENDED SCHEDULING ORDER: Factual Discovery cutoff 1/30/98; pltff's shall serve their expert reports on defts by 2/6/98; all depositions of pltffs' expert witnesses due by 3/6/98; defts to serve their expert reports on pltffs by 3/6/98; Joint Pretrial order to be submitted on or before 4/1/98; Final Pretrial conference set for 10:00 4/6/98 which shall include motions in limine; all deposition of expert witnesses by 4/6/98; parties shall file proposed findings fact and conclusions of law by 4/10/98 @12:00 noon; the trial shall commence on 4/13/98 @10:00; if any party fails to comply with this scheduling order or to seek an by timely application, the Court, on motion of the parties or on its own motion, shall issue such orders as it deems necessary, including, but not limited to, orders of preclusion, contempt, dismissal, and an order striking a deft's answer, providing for an inquest and the entry of a default judgment ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 12/19/1997 (Entered: 12/18/1997)
163 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: in support of [159−1] motion to quash deposition of Howard Wilson (sac) (Entered: 12/23/1997)
Motion hearing re: [159−1] motion to quash deposition of Howard Wilson. City defts Motion denied in accordance with our decision rendered this date in open Court. (lam) (Entered: 12/19/1997)
Memo endorsed on motion; denying [159−1] motion to quash deposition of Howard Wilson ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 12/22/1997)
164 MEMORANDUM by City defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [159−1] motion to quash deposition of Howard Wilson (lam) (Entered: 12/29/1997)
Remark by Cashiers Office on doc. # 208 (page 2), on 1/5/98 the following transaction was made: Received check #460596 in the amount of $13,074.47 payable to United Way of NYC; mailed on 1/5/98. (lam) (Entered: 02/20/1998)
318 ORDER granting [317−1] endorsed motion for Craig Levine, Children's Rights, Inc. to withdraw as attorney; Motion granted ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 01/07/1999)

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01/16/1998
01/20/1998 01/20/1998 01/20/1998 01/20/1998 01/21/1998

165 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief . With affidavit attached. Return date 1/30/98 (lam) (Entered: 01/20/1998)
166 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [165−1] motion to schedule an evidentiary hearing as soon as possible following the date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) (Entered: 01/20/1998)
170 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to quash , and for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani Return date 1/28/98. Attached Declaration of Margaret G. King (ys) (Entered: 01/22/1998)
171 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [170−1] motion to quash, [170−2] motion for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani (ys) (Entered: 01/22/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 01/26/1998)
208 ORDER, authorizing payment of expenses to United Way of New York City from CRIS Account 95civ10533: that the Clerk of the Court, having received additional funds on 12/18/97, is directed to arrange for the transfer of $13,074.47, the balance of payment requested by the application dated 10/6/97, from the funds currently held by the CRIS in acct #95cv10533, to the Registry of this Court; that the Clerk of the Court prepare a check in the amount of $13,074.47 payable to "United Way of New York City" and advise David Daykin for pick up or to arrange for mailing ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 02/20/1998)
167 THIRD AMENDED SCHEDULING ORDER: no party shall request any further discovery, except for specific documents identified during oral deposition, as of 1/21/98 @5:00; setting factual Discovery cutoff 2/20/98; pltffs shall serve their expert reports on defts by 2/27/98; all depositions of pltffs' expert witnesses by 3/27/98; defts shall serve their expert reports on pltffs by 3/27/98; all depositions of expert witnesses by 4/17/98; A Joint Pretrial order to be submitted on or before 4/20/98; A Final Pretrial conference is set for 10:00 4/22/98; the parties shall file their proposed findings of fact and conclusions of law by 4/24/98 @12:00 noon; the trial shall commence on 4/27/98 @10:00; if any party fails to comply with this scheduling order or to seek an extension by timely application, the Court, on motion of the parties or on its own motion, shall issue such orders as it deems necessary, including but not limited to, orders of preclusion, contempt, dismissal, and an order striking a deft's answer, providing for an inquest and the entry of a default judgment ( signed by Judge Robert Ward ); Copies mailed (lam) Modified on 01/23/1998 (Entered: 01/22/1998)

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01/26/1998 02/02/1998 02/02/1998 02/02/1998 02/03/1998
02/03/1998

168 MEMORANDUM by City Defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of their Motion to Dismiss pre−placement claims and to vacate the "Interim Stipulation and Order" (motion not filed) (lam) (Entered: 01/22/1998)
169 DECLARATION in support by Grace Goodman, atty for City Defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: Motion to dismiss claims and vacate the Stipulation on preplacement. (lam) (Entered: 01/22/1998)
Remark by Cashiers Office on doc.#207 (page 2), on 1/22/98 the following transaction was made: Received check #462403 in the amount of $64,758.21 payable to United Way of NYC; mailed 1/23/98. (lam) (Entered: 02/20/1998)
172 Withdrawal of [143−1] appeal by Stephen I., Brandon H., Victoria G., Bill G., David F., Darren F., Ozzie E., Shauna D., Thomas C., Lawrence B., Marisol A. . (97−9282) George Lange, III, Clerk, USCA. (as) (Entered: 01/26/1998)
173 NOTICE OF CROSS MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to compel City Defts to respond to certain interrogatories and to compel City Defts to produce certain documents improperly withheld as priviledged . With affirmation attached. Return date 2/10/98 @9:30. (lam) (Entered: 01/27/1998)
174 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to City Defts' Motion to Compel complete responses to the City defts' Second Set of Interrogatories, contention interrogatories and request for the production of documents and things (motion not filed) and in support of pltffs' [173−1] cross motion to compel City Defts to respond to certain interrogatories and to compel City Defts to produce certain documents withheld as priviledged (lam) (Entered: 01/27/1998)
175 AFFIRMATION of Craig R. Levine, atty for pltffs Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. (lam) (Entered: 01/27/1998)
176 MEMORANDUM by George E. Pataki in support of deft's Motion for Protective Order and to quash the notice of deposition served on Governor Pataki (motion not filed) (lam) (Entered: 02/05/1998)
177 AFFIDAVIT in support by George E. Pataki Re: State's motion for a protective order to strike pltffs' notice of deposition (motion not filed) (lam) (Entered: 02/05/1998)
178 AFFIDAVIT of Judith T. Kramer, Asst Atty General RE: relevent documents exchanged between the parties (lam) (Entered: 02/05/1998)
179 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services ; to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J. ; to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. With affirmation attached. Return date 2/3/98. (lam) (Entered: 02/05/1998)
180 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services, [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J., [179−3] motion to substiute Nedda De Castro

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for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. (lam) (Entered: 02/05/1998)
181 Reply affidavit of John P. Woods, Asst Corp by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in further support of City defts' motion to compel answers to interrogatories and the production of documents. (lam) (Entered: 02/05/1998)
182 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in further support of their motion to compel complete answers to the City defts' Second Set of Interrogatories, Contention Interrogatories and request for the Production of Documents and things. (lam) (Entered: 02/05/1998)
183 MEMORANDUM AND ORDER; I am responding to the 2/2/98 joint letter from Mr. Curnin and AAG Kramer. I direct the State to produce to me by 2/5/98 for my in camera review (a) the 13−page preliminary draft written by Judy Gallo and shown to her at her deposition, (b) the "first edited" version of said draft which was edited by John Stupp and (c) an in camera affidavit stating the reasons why the State maintains these documents to be privileged in whole or in part. I am willing to consider whether the State should be required to produce 10 to 12 identified documents created prior to 1994. I direct pltffs to serve a list of these documents, no more than 12 ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (sac) (Entered: 02/05/1998)
184 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to defts' [170−1] motion to quash, [170−2] motion for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani (lam) (Entered: 02/06/1998)
185 AFFIRMATION by Mark G. Peters, an atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: upon review of documents in counsel's files, upon personal knowledge and/or upon information and belief. (lam) (Entered: 02/06/1998)
186 Reply affidavit of Mark G. Peters, an atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in further support of [173−1] cross motion to compel City Defts to respond to certain interrogatories and to compel City Defts to produce certain documents improperly withheld as priviledged (lam) (Entered: 02/06/1998)
187 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. for leave to file a sur−reply in opposition to City defts' motion to compel complete responses to the City defts' 2nd set of interrogatories, contention interrogatories and requests for the production of documents and things . With Sur−Reply attached. Return date not indicated. (lam) (Entered: 02/06/1998)
188 AFFIRMATION in support of Craig Levine, an atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: [187−1] motion for leave to file a sur−reply in opposition to City defts' motion to compel complete responses to the City defts' 2nd set of interrogatories, contention interrogatories and requests for the production of and things (lam) (Entered: 02/06/1998)
193 NOTICE OF MOTION by George E. Pataki for a protective order quashing the notice of deposition for the Governor purs to FRCP 26 . Return date 3/6/98 @9:30. (lam) (Entered: 02/10/1998)
189 Transcript of record of proceedings before Judge Ward filed for dates of December 19, 1997 (bm) (Entered: 02/06/1998)
190 ORDER, that the Queens County Family Court comply with the Subpoena by transcribing and producing to this Court on or before 2/6/98 @10:00am a written transcript of all sworn testimony and/or any other statements made at the Hearing ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered:

02/06/1998
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02/09/1998)
191 MEMORANDUM & ORDER, by 5:00pm on 2/9/98, the City defts must serve (a) complete answers to Interrogatories 8, 28, 29 and 30 of pltff's Seventh Set, (b) copies of the documents described in Mr. Curnin's 11/13/97 letter to Ms. Stanch, and (c) a copy of the draft Operating Protocol for the Accountability Review Unit, or, in the alternative, copies of all documents that are currently governing the operation of the Accountability Review Unit; I will rule on the other discovery disputes in the near future; until further notice, any future discovery dispute must be submitted in a single joint letter purs to my Standing Order for Discovery Disputes ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed and faxed by Chambers. (lam) Modified on 02/13/1998 (Entered: 02/09/1998)
192 CLARIFYING ORDER, Sua spone, I wish to clarigy paragraph 1(b) of the Memorandum and Order issued by me this morning; By 5:00 pm on 2/9/98, the City defts must serve copies of all unprivileged documents described in Mr. Curnin's 11/13/97 letter to Ms. Stanch, and a detailed privilege log describing each privileged document if any ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 02/09/1998)
196 MEMORANDUM & ORDER, I sustain the position, of the State defts objection to producing the draft of a report to be submitted to the Legislature regarding the suspension of 153−d sanctions, except to the following extent: I direct the State defts to produce to pltffs, by 3:00pm on 2/10/98, legible copies of (a) the 2 charts annexed to the draft and referred to as Tables 1 and 2, and (b) the lower half of page 4 (beginning at Sanction Process) and all of pages 5 through 9 of Ms. Gallo's draft; I write further with respect to pages 10 and 11, which contain Ms. Gallo's draft of preliminary recommendations; Mr. Curnin's 2/6/98 letter, near the end, argues that even if I find that these preliminary recommendations are privileged (which I do) I should order that they be turned over at a later date when the final report is issued, I decline to make such an order; I direct only that the State defts turn over the entire final report as soon as it is released; Mr. Curnin also requests an opportunity to examine, purs to FRCP 30(b)(6), the individual most knowlegeable about the report's final recommednation; on this request, he will have to confer with AAG Kramer and then, if there is no agreement, send me a single joint letter ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 02/11/1998)
197 MEMORANDUM AND ORDER, pltff's expert reports are due on 2/27/98; I have decided to require the pltffs to provide also on 2/27/98, additional answers to some of the defts' Second Set of Interrogatories ; except for the rulings in this document, I deny the City defts' [170−1] motion to quash, deny [170−2] motion for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani, and including their request for an extension beyond 3/27/98 for serving the defts' expert reports; except for my 2/6/98 rulings I deny pltffs' [173−1] cross motion to compel City Defts to respond to certain interrogatories and to compel City Defts to produce certain documents improperly withheld as priviledged (signed by Magistrate Judge Douglas F. Eaton ); Copies faxed and mailed by Chambers. (lam) (Entered: 02/11/1998)
194 Transcript of record of proceedings filed for dates of 12/16/97 @10:00am before Judge Ward. (lam) (Entered: 02/10/1998)
195 Transcript of record of proceedings filed for dates of 12/15/97 @10:10am before Judge Ward. (lam) (Entered: 02/10/1998)
198 AFFIDAVIT of Thomas F. Curnin, atty for pltffs Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: to provide the Court with relevant documents. (lam) Modified on 02/23/1998 (Entered: 02/11/1998)
199 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to [193−1] motion for a protective order quashing the notice of deposition for the Governor purs to FRCP 26 (lam) (Entered: 02/11/1998)
200 DECLARATION by Grace Gooman, Ast Corp. Counsel, atty for City defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in opposition to pltffs'

02/10/1998 02/10/1998
02/16/1998 02/17/1998

[165−1] motion to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief and in support of application by City defts for a modification of the Stipulation to remove any ongoing monitoring provisions. (lam) (Entered: 02/11/1998)
201 MEMORANDUM by City defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in opposition to pltffs' [165−1] motion to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) (Entered: 02/11/1998)
202 MEMORANDUM & ORDER, in response to the 2/9/98 joint letter from Ms. Lowry and Ms. Rubin 1. Production of unredacted documents, giving the names of the Children and parents in various reports reviewed by Deputy Commisioner William Bell: I direct the City defts to produce unredacted copies of the documents, giving the names of the children and parents, by 2/11/98, unless the City defts serve an affidavit from a knowledgeable official (a) stating that the names of the children and parents were redacted from these reports before they were submitted to Mr. Bell, and (b) specifying what burdens would have to be undertaken by the City defts in order to produce the names to the pltffs; 2. Production of documents relating to the depositions of Featherstone and Fendall: I see no reason why the City defts have no yet produced the Pearlman weekly reports and the Cardieri weekly reports, and the Hassan study; I direct the City defts to produce them by 5:00 on 2/11/98; I direct the City defts to answer the discovery requests relating to Paula Fendall as extensively as possible by 9:30 on 2/11/98, and to give full answers by 2/20/98; Production of the report from the Comptroller's office concerning the performance of OCI investigations: I direct the City defts to produce this report by 9:30 on 2/11/98; Production for in camera review of 36 specified documents: I direct the City defts to submit only 7 documents #7, 8, 9, 18, 23, 32, and 34 in the joint letter −− for in camera review, plus in camera affidavit setting for the the basis for the claims of privilege, by 2/17/98 @11:00 by hand or fax ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed and faxed by Chambers. (lam) (Entered: 02/13/1998)
207 ORDER, authorizing interim payment of expenses to United Way of New York City from CRIS Account 95civ10533: the Clerk of the Court is directed to arrange for the transfer of $64,758.21 from the funds currently held by the CRIS in acct #95civ10533, to the Registry of this Court; that the Clerk of the Court prepare forthwith a check in the amount of $64,758.21 payable to "United Way of New York City" and advise David Daykin for pickup or to arrange for mailing (signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 02/20/1998)
203 ORDER, that the City defts are directed to serve answers to all of the interrogatories in pltffs' 10th and 11th and 12th Sets by 2/20/98 ; the City defts are directed to produce, by 12:00 noon on 2/18/98, all of the documents identified in the 6 page Appendix to the joint letter; the City defts are also directed to produce David Fazio for futher deposition on 2/20/98 from 9:00am to 1:00pm ; the deposition of Elan Melamid is closed; I will reconsider my ruling on the report from the Comptroller's office concerning the performance of OCI investigations; I direct Ms. Rubin to submit it to

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me by 2/20/98 for in camera review, plus an in camera affidavit from an official in the Comptroller's Office setting forth the basis for the claims of privilege ( signed by Magistrate Judge Douglas F. Eaton) Copies mailed and faxed by Chambers. (lam) (Entered: 02/19/1998)
204 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: in support of [170−1] motion to quash, [170−2] motion for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani (lam) (Entered: 02/19/1998)
205 Reply declaration of Margaret G. King, Asst Corp Cousel for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [170−1] motion to quash, [170−2] motion for protective order pursuant ot F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani (lam) (Entered: 02/19/1998)
206 STIPULATION and ORDER, that any information provided by any agent or employee of St. Vincents Hospital and Medical Center to the parties in this action shall be subject to the Confidentiality Order dated 5/14/96; any information which has the potential to identify any present or former patient of St. Vincents Hospital shall be kept confidential and shall not be disclosed to any person except as authorized by this Court's previous Order and any reference to any present or future patient shall be by first name and last initial only; in the event that any confidential information is quoted or summarized in any papers filed with the Clerk of the Court, such document shall be filed under seal ( signed by Judge Barbara S. Jones ). (lam) (Entered: 02/20/1998)
210 AFFIDAVIT of Judith T. Kramer, Asst Atty General, for the state defts George E. Pataki, Brian J. Wing Re: additional relevant documents exchanged between the parties. (lam) (Entered: 02/23/1998)
211 REPLY MEMORANDUM by George E. Pataki, Brian J. Wing re: [199−1] opposition memorandum (lam) (Entered: 02/23/1998)
209 MEMORANDUM AND ORDER, at the end of my 2/10/98 Memorandum and Order, I agreed to conduct an in camera review of documents #7,8,9,18,23,32, and 34 on pages 6−8 of the 2/9/98 joint letter from Ms. Lowry and Ms. Rubin; I have now completed that in camera review; I uphold the City defts' claims of privilege except as follows: I enclose doc. #23 (Bates stamped C 33540) except that I have redacted the 6th "bullet point" and the 11th "bullet point"; I also enclose 1 page from doc. #32 (Bates stamped C 33566) except that I have redacted several lines of pre−decisional, deliberative discussion; there is no need to produce the page Bates stamped C 33570, since it is an exact duplicate of page C 33566 ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed and faxed by Chambers. (lam) Modified on 02/23/1998 (Entered: 02/20/1998)
212 MEMORANDUM by state defts George E. Pataki, Brian J. Wing in opposition to [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services, [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J., [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. (lam) (Entered: 02/23/1998)
213 AFFIDAVIT of Judith T. Kramer, Asst Atty General, for State Defts George E. Pataki, Brian J. Wing Re: with additional relevant documents exchanged betywwen the parties. (lam) (Entered: 02/23/1998)
214 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to compel answers to the City Defts Third Set of Interrogatories, Contention Interrogatories ; and requests for the production of documents ; and to extend the time for the City Defts to submit expert reports by a period equal to that from 2/2/98 when the pltffs should have submitted complete answers to the Third Set to the date when the pltffs actually submit such answers . Affidavit attached. Return

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date 3/2/98 @9:30. (lam) (Entered: 02/24/1998)
215 MEMORANDUM AND ORDER, responding to the 7 disputes set forth in the 2/19/98 joint letter from Mr. Curnin and Ms. Kramer; (Rule 30(b)(6) Deposition re Final 153−d Report) (Rule 30(b)(6) Deposition re Internal Audit Office) (Rule 30(b)(6) Deposition re Dollar Amounts of Sanctions) by 3/6/98 the State defts must either (a) produce the dollar amounts of sanctions for ACS non−compliance from January 1994 through June 1997, or (b) produce for deposition the person most knowledgeable about the dollar amounts of sanctions; (Documents requested by Pltffs during depositions) all documents requested by any party during a deposition must be produced no later than 10 days after the request, I believe the other portions of Dispute #4 are moot (Child Fatality Database) I direct Mr. Curnin and Ms. Kramer to arrange a telephone conference with me about Dispute #5; (Deposition Notice for Natoli & Gallo) I defer ruling on this dispute, and direct the parties to keep me posted on their effors to resolve it through compromise; (State's Production of Documents) I believe this dispute is moot (signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) Modified on 02/26/1998 (Entered: 02/24/1998)
216 MEMORANDUM AND ORDER, if the City defts or Mr. Wilson assert any privilege claims to which the pltffs object, I direct Ms. Stanch or Mr. Wilson to submit the disputed document to me by 2/25/98 at 3:00pm for an in camera review, plus an in camera affidavit or affidavits setting forth the basis for the claims of privilege ; I direct Ms. Stanch to produce to pltffs, by 2/27/98 @12:00 noon, all remaining responsive documents in the possession or control of the City defts; I direct Mr. Wilson to produce to pltffs, by 2/27/98 @12;00noon, all documents in his possession or control which are responsive to the document request in the 11/7/97 Notice of Deposition delivered to Mr. Wilson with a cover letter dated 11/12/97 ; I direct Mr. Wilson to appear for deposition on 3/4/98 from 9:30am to 5:30pm at the offices of Cahill Gordon & Reindel (signed by Magistrate Judge Douglas F. Eaton ); Copies mailed and faxed by Chambers. (lam) (Entered: 02/24/1998)
217 NOTICE OF CROSS MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) . With declaration attached. Return date 3/6/98 @2:00. (lam) (Entered: 02/24/1998)
218 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) (lam) (Entered: 02/24/1998)
219 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of their [214−1] motion to compel answers to the City Defts Third Set of Interrogatories, Contention Interrogatories, [214−2] motion requests for the production of documents, [214−3] motion to extend the time for the City Defts to submit expert reports by a period equal to that from 2/2/98 when the pltffs should have submitted complete answers to the Third Set to the date when the pltffs actually submit such answers (lam) (Entered: 02/24/1998)
220 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. re: in support of their [165−1] motion to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) (Entered: 02/25/1998)
221 AFFIDAVIT in support of Rose E. Firestein, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: [165−1] motion to schedule an evidentiary hearing as soon as

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02/26/1998
02/26/1998 02/26/1998 02/27/1998

possible following the return date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) (Entered: 02/25/1998)
222 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to defts' Motion to Dismiss pre−placement claims and to vacate the "Interim Stipulation and Order" (lam) (Entered: 02/25/1998)
223 AFFIRMATION of Mark Peters, an atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. (lam) (Entered: 02/25/1998)
224 DECLARATION in opposition by Grace Goodman, Asst Corp Counsel for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to pltffs' [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services, [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J., [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. (lam) (Entered: 02/27/1998)
225 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in opposition to [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services, [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J., [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. (lam) (Entered: 02/27/1998)
226 MEMORANDUM & ORDER, I am responding to the 2/19/98 joint letter from Mr. Levine and Ms. Rubin; I have reconsidered my 2/17/98 order, paragraph 4, which ruled that the deposition of Elan Melamid is closed. The pltffs now propose 2 compromises to take additional discovery from Mr. Melamid −− (a) a further deposition of no longer than 90 minutes or (b) an off−the−record telephone conference of no longer than 90 minutes. I decline to order either one (signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 03/02/1998)
228 Filed Memo−Endorsement on letter to Magistrate Judge Eaton from Linda J. Stanch, atty for the City defts dated 2/25/98, granting the request for an extension of time to produce documents for in camera inspection and in camera affidavits until 2:00pm on 2/26/98 ( signed by Magistrate Judge Douglas F. Eaton ) (lam) (Entered: 03/02/1998)
227 SUPPLEMENTAl DECLARATION in support by Grace Goodman, Asst Corp Counsel, atty for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b). With affidavits attached. (lam) Modified on 03/02/1998 (Entered: 03/02/1998)

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03/03/1998 03/03/1998 03/03/1998 03/03/1998

229 Filed Memo−Endorsement on letter to Magistrate Judge Eaton from Susan Lambiasa, counsel for pltffs and Betsy J. Witten, counsel for City defts dated 2/25/98, writing to request resolution of a discovery matter. The Defts' position is correct. The only exception would be if the pltffs categorically state that Lyn Slater will not be a witness at the trial (signed by Magistrate Judge Douglas F. Eaton) (lam) Modified on 03/03/1998 (Entered: 03/02/1998)
232 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to defts' [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) (lam) (Entered: 03/03/1998)
233 AFFIDAVIT of Mark G. Peters, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: upon review of documents in counsel's files, personal knowlege and/or information and belief (lam) (Entered: 03/03/1998)
234 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in opposition to City Defts' [214−1] motion to compel answers to the City Defts Third Set of Interrogatories, Contention Interrogatories, [214−2] motion requests for the production of documents (lam) (Entered: 03/04/1998)
230 MEMORANDUM AND ORDER, on 2/26/98 Linda Stanch sent me 27 documents; I have reviewed them in camera; I uphold the City defts' assertions of privilege, with the following exceptions ; I direct the City defts to produce, by 3/2/98, document 4 (the City may redact the handwritten notes) and document 16 ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 03/02/1998)
231 MEMORANDUM AND ORDER, further to pages 8−10 of the 2/13/98 joint letter from Craig Levine and Gail Rubin, I have now reviewed in camera: (a) a 2/5/98 Preliminary Draft of a report by the Office of the Comptroller entitled "Review of the Procedures used by the Office of Confidential Investigation to respond to allegations of child abuse or neglect" and (b) a 2/20/98 affidavit of Deputy Comptroller Roger Liwer, asserting privilege and saying he anticipates that a final report will be issued by mid−March; I will give the City defts until 3/17/98, on that date, they must produce (a) the final report or (b) the latest draft redacting only the sections marked "Recommendation", in either event, the City defts must also mail a courtesy copy to me ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (lam) (Entered: 03/03/1998)
235 AFFIDAVIT of Ann O'Reilly in Reply to Plaintiffs' Opposition to Defendants' Motion to dismiss Pre−Placement Claims and to Vacate the Interim Stipulation and Order (djc) (Entered: 03/04/1998)
236 City Defendants' Reply Memorandum of Law in Support of their Motion to Vacate the "Interim Stipulation and Order" (djc) (Entered: 03/04/1998)
237 AFFIRMATION of Mark G. Peters, an atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: review of documents in counsel's files, upon personal knowledge and/or upon information and belief. (lam) (Entered: 03/05/1998)
238 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. re: in further support of pltffs' [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's Services, [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J., [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Steven I., and to add Raymunda Cruz as a second next friend to named pltff Marisol A. (lam) (Entered: 03/05/1998)

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03/17/1998
03/23/1998 03/23/1998 03/24/1998 03/26/1998 04/01/1998

239 REPLY MEMORANDUM by City defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: in further support of their [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) (lam) (Entered: 03/06/1998)
Hearing re: pending Motions Re: Designation of sub−classes re to pltffs; Judge Ward's decision reserved (lam) (Entered: 03/12/1998)
240 Transcript of record of proceedings filed for dates of 1/20/98 @2;00 before Judge Ward (lam) (Entered: 03/16/1998)
241 SUR−REPLY AFFIDAVIT in further opposition of Ann O'Rielly, by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta Re: to pltffs' [165−1] motion to schedule an evidentiary hearing as soon possible following the return date of this motion; defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) Modified on 03/20/1998 (Entered: 03/20/1998)
242 SUR−REPLY DECLARATION in opposition by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to pltffs' [165−1] motion to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; Order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; Order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief (lam) (Entered: 03/20/1998)
Memo endorsed on motion; granting [170−1] motion to quash, granting [170−2] motion for protective order pursuant to F.R. Civ. Pro. 26 (c) precluding the deposition of defendant Giuliani ( signed by Judge Robert J. Ward ); Copies mailed. (djc) (Entered: 03/24/1998)
243 MEMORANDUM DECISION AND ORDER, City defendants' motion to quash the notice of deposition and for a protective order precluding the deposition of Mayor Giuliani is granted. (signed by Judge Robert J. Ward); Copies mailed (djc) (Entered: 03/25/1998)
244 ORDER FOR EXAMINATION AND REPORT; that purs. to Rule 35 of the F.R.C.P. the "S." children are to submit to a mental examination conducted by Dr. Gary Gosselin or other psychiatric/psychological experts of City defts' choice w/o pltffs' counsel present and w/o audio−taping ; that City defts' experts are to issue a report in the same manner as pltffs' experts ; ( signed by Judge Robert J. Ward ); copies mailed (ls) (Entered: 03/25/1998)
Before Judge Ward; Pre−trial conference held (cd) (Entered: 03/26/1998)
245 MEMORANDUM & ORDER; State defts have moved this Court for an order quashing the notice of deposition of George E. Pataki, Governor of the State of NY, and for a protective order precluding the deposition of Governor Pataki purs. to Rule 26(c)(1), (3), (4) of the FRCP. It is ordered that State defts designate witnesses w/ knowledge of the factual information furnished to Governor Pataki on which his decisions were based within 5 business days of the date of this Memorandum & Order and that the depositions of these witnesses be conducted within 10 business days thereafter. It is further ordered that in the event State defts are unwilling or unable to

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comply w/ the foregoing direction that Governor Pataki either furnish an affidavit concerning the issues identified in this Memorandum & Order by 4/15/98 or appear for an oral deposition at a time and place convenient to his schedule but in no event later than 4/30/98 ( signed by Judge Robert J. Ward ); Copies mailed (emil) (Entered: 04/02/1998)
246 Memo endorsed on copy of motion, doc. #193; motion disposed of in accordance w/ memorandum & order filed herewith ( signed by Judge Robert J. Ward ); Copies mailed. (emil) (Entered: 04/02/1998)
247 MEMORANDUM AND ORDER, plaintiffs shall return all copies of two memoranda concerning the adoption of Marisol A. in their possession to Ctiy defendants and these documents are not to be used by plaintiffs in connection with this or any other litigation ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 04/03/1998)
Memorandum to Docket Clerk: pending motions: pltff's Motion for Contempt; Pltffs' Motion for Intervention; City defts' Motion to Dismiss pltffs' pre−placement claims and to vacate interim Stipulation : 7/17/97; Oral arguments heard; A written Decision to be filed by the Court. (lam) (Entered: 04/07/1998)
248 ORDER concerning experts' reports and depositions; the City defts, who failed to comply with the Third Amended Scheduling Order dated 1/20/98 which directed that city defts' expert witness reports be served and file by 3/27/98, are to serve and file those reports as follows: all reports with the exception of those from Dr. Gary Gosselin, Robert B. McKeagney, Dr. Fred Wulczyn, Dr. Michael Aronoff, Dr. Glen S. Hirsch and Prof. Laurence Lynn, shall be served and by the close of business on 4/20/98; the report of Dr. Gosselin shall be served and filed by the close of business on 4/21/98; the reports of Robert B. McKeagney and Dr. Fred Wuczyn shall be served and filed by the close of business on 4/24/98; the reports of Dr. Michael Aronoff and Dr. Glen S. Hirsch shall be served and filed by the close of business on 5/1/98; the report of Prof. Laurence Lynn shall be served and filed by the close of business on 5/12/98; no expert depositions shall be disclosed to any expert until his or her report is served and filed (signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 04/23/1998 (Entered: 04/21/1998)
249 AMENDED ORDER concerning experts' reports and depositions; the city defts, who failed to comply with the Third Amended Scheduling Order dated 1/20/98 which directed that city defts' expert witness reports be served on or before 3/27/98, are to serve those reports as follows: all reports with the exception of the reports from Dr. Gary Gosselin, Robert B. McKeagney, Fran Gutterman, Mary Ann Quaranta, Dr. Aronoff, Dr. Glen S. Hirsch and Prof. Laurence Lynn, shall be served by the close of business on 4/20/98; the report of Dr. Gary Gosselin shall be served by the close of business on 4/21/98; the reports of Robert B. McKeagney, Fran Gutterman and Mary Ann Quaranta shall be served by the close of business on 4/24/98; the reports of Dr. Michael Aronoff and Dr. Glen S. Hirsch shall be served by the close of business on 5/1/98; the report of Prof. Laurence Lynn shall be served by the close of business on 5/12/98; no expert depositions shall be disclosed to any expert until his or her report is served ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 04/23/1998 (Entered: 04/21/1998)
Memo endorsed on motion; "The portion of the within motion seeking certification of subclasses is granted in accordance with the Memorandum Decision and Order filed this date. A decision with respect to the balance of the motion will be filed shortly"; granting [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of in families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Amdinistration for Children's ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 04/24/1998)
250 MEMORANDUM DECISION AND ORDER granting [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of children in families in

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05/13/1998 05/13/1998

which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Administration for Children's Services ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 05/04/1998 (Entered: 04/24/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 05/05/1998)
251 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. for Suzanne Frances Nossel and Rose Firestein to appear pro hac vice . With affidavits by Suzanne Frances Nossel and Rose Firestein and Certificates attached. Return date not indicated. (lam) Modified on 05/14/1998 (Entered: 05/05/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 05/05/1998)
252 Memo endorsed on motion; granting in part, denying in part [214−1] motion to compel answers to the City Defts Third Set of Interrogatories, Contention Interrogatories, granting in part, denying in part [214−2] motion requests for the production of documents, granting in part, denying in part [214−3] motion to extend the time for the City Defts to submit expert reports by a period equal to that from 2/2/98 when the pltffs should have submitted complete answers to the Third Set to the date when the pltffs actually submit such answers; "The within motion is disposed of in accordance with the oral rulings made by the Court on 4/30 and 5/1/98" ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 05/05/1998)
Memorandum to Docket Clerk: Evidentiary Hearing on pltffs' Motion for Contempt held 5/4, 5/5. 5/6, 5/7 5/8, 5/11 concluded; total days of hearing − 6 days; Judge's decision 5/11/98: Pltffs' motion denied in accordance with the oral decision rendered this date into the stenographic record; this Motion denied without prejudice. Submitted by Michael Guranich, Deputy Court Clerk (lam) (Entered: 05/12/1998)
Memo endorsed on motion; withdrawing as moot [251−1] motion for Suzanne Frances Nossel and Rose Firestein to appear pro hac vice ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 05/08/1998)
253 Transcript of record of proceedings filed for dates of 3/26/98 @10:00 before Judge Ward (lam) (Entered: 05/08/1998)
254 Transcript of record of proceedings filed for dates of 3/6/98 @2:30 before Judge Ward (lam) (Entered: 05/08/1998)
Memo endorsed on motion; denying [165−1] motion to schedule an evidentiary hearing as soon as possible following the return date of this motion; hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement; other defts to devise a detailed plan to end multiple overnights within 15 days of the Court's Order; permit pltffs an opportunity to comment on the plan; and Order city defts to implement this plan, as modified by the Court, to end multiple overnights on or before 4/30/98; order that, in the interim, city defts cease their practice of housing children ranging in age from 7−21 in the same sleeping room; order city defts to have children who remain at Pre−Placement for multiple overnights evaluated by a Child Evaluation Specialist; that city defts pay pltffs' attys' fees and costs in connection with this motion and with the underlying motion for a TRO and preliminary injunctive relief. The within motion is denied in accordance with the oral decision rendered this date (5/11/98) ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 05/12/1998)
255 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review . Return date not indicated. (lam) (Entered: 05/15/1998)
256 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. in support of [255−1] motion to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review (filed in night deposit with motion on 5/13/98 @7:25) (lam) (Entered:

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05/15/1998)
257 AFFIDAVIT of Marcia Robinson Lowry, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: Exhibit A, a true and exact copy of the Table of Contents page of the Proposed Research Plan for Marisol v. Giuliani, submitted by the Joint Case Review Team on 2/28/97. (lam) (Entered: 05/15/1998)
258 AFFIRMATION of Rose E. Firestein, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. Re: in response to City defts' sur−reply [242−1] affidavit, [241−1] affidavit, to pltffs' [165−1] motion to hold city defts in civil contempt for their violation of the Interim Stipulation and Order Concerning Overnights at Pre−Placement (lam) (Entered: 05/21/1998)
Memo endorsed on motion; The balance of the within motion is granted in accordance with the memorandum decision filed herewith. Settle order on notice re: [179−1] motion to certify the following 3 subclasses: 1)Subclass One − comprised of children whom the defts know or should know have been neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; 2)Subclass Two − comprised of families in which there is an open indicated report of abuse or neglect; 3)Subclass Three − comprised of children in the custody of the Administration for Children's Services, granted re: [179−2] motion to intervene the 3 additional named pltffs: Walter S., Richard S., Danielle J., granted re: [179−3] motion to substitute Nedda De Castro Kathryn Conroy as next friend to named pltff Shauna D., and to substitute Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Lawrence B., and to Raymunda Cruz as a second next friend to named pltff A (signed by Judge Robert J. Ward ); Copies mailed. (lam) Modified on 03/19/1999 (Entered: 05/26/1998)
Memo endorsed on motion; granting in part, denying in part in accordance with the memorandum decision filed herewith. Settle order on notice re: [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) ( signed by Judge Robert J. Ward ); Copies mailed. (lam) Modified on 03/19/1999 (Entered: 05/26/1998)
259 MEMORANDUM DECISION granting pltffs' [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle granting [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitue Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Lawrence B., and to Raymunda Cruz as a second next friend to named pltff Marisol A., denying City defts' [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b); the cross−motion of city defts for an order dismissing certain claims is granted in part and denied in part in accordance with this memorandum decision ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 03/19/1999 (Entered: 06/01/1998)
261 MEMORANUM DECISION AND ORDER, denying City defts' motion to dismiss pltffs' claims regarding the Pre−Placement Center and vacating the Interim Stipulation and Order Concerning Overnights at Pre−Placement ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 05/27/1998)
260 Memo endorsed on motion filed by Grace Goodman, Asst Corp Counsel, atty for City defts; for an order purs to FRCP 12(b)(1), 60(b)(4), or in the alternative, FRCP 56(b), vacating the Interim Stipulation and Order dated 7/17/97 as void for lack of jurisdiction when it was entered, and dismissing all purported claims of harm from conditions or overnight stays at the Administration for Children's Services' Pre−Placement center for lack of any pltff to assert such claims. Motion denied in accordance with memorandum decision filed herewith ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 06/03/1998 (Entered: 06/03/1998)
262 MEMORANDUM by city defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in opposition to pltffs' [255−1] motion to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review (lam) (Entered: 06/01/1998)
263 AFFIRMATION in opposition of Margaret G. King, Asst Corp Counsel for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta Re: pltffs' [255−1]

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06/10/1998 06/10/1998

motion to preclude the admission evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review (lam) Modified on 06/02/1998 (Entered: 06/02/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 06/02/1998)
264 FOURTH AMENDED SCHEDULING ORDER: Discovery cutoff by 6/15/98 Any motions in limine shall be served and filed by 6/22/98; Any opposition to such motions shall be served and filed by 6/29/98; Any reply shall be served and filed by 7/6/98; A Joint Pretrial order to be submitted on or before 7/13/98; Final Pretrial conference set for 10:00 7/17/98; Proposed findings of fact due by 7/22/98; The Trial shall commence on 7/27/98 at 10:00 a.m.; If any party fails to comply with this scheduling order or to seek an extension by timely application, the Court, on motion of the parties, or on its own motion, shall issue such orders as it deems necessary, including, but not limited to, orders of preclusion, contempt, dismissal, and an order striking a defts' answer, providing for an inquest and the entry of a default judgment ( signed by Judge Robert Ward ) Copies mailed (lam) Modified on 06/04/1998 (Entered: 06/02/1998)
266 AFFIRMATION by Marcia Robinson Lowry, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. (lam) (Entered: 06/05/1998)
267 REPLY MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. re: [255−1] motion to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review (filed in night deposit on 6/1/98 @5:41) (lam) (Entered: 06/05/1998)
265 ORDER that the third decretal paragraph of the Fourth amended Scheduling Order dated 6/1/98 is superseded; reset joint pretrial order due for 7/13/98 (signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 06/05/1998 (Entered: 06/03/1998)
Memo endorsed on motion; granting [255−1] motion to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review. Motion granted in accordance with memorandum decision filed herewith ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 06/05/1998)
268 MEMORANDUM AND ORDER granting [255−1] motion to preclude the admission into evidence of expert testimony or portions of expert reports that violate the Stipulation and Order Establishing a Joint Record Review. Accordingly, the motion to preclude pages and 9−14 of the report of Daniel S. Levy and pages 34−41 of the report of Robert B. McKeagney, as well as any testimony on the subject, is granted ( signed by Judge Robert J. Ward ); Copies mailed (lam) Modified on 06/05/1998 (Entered: 06/05/1998)
271 ANSWER by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to Intervening Complaint of pltffs Richard and Walter S., by their next friends W.N. and N.N., and Danielle J., by her next friend Angela Lloyd (emil) (Entered: 06/11/1998)
269 Transcript of record of proceedings before Judge Ward filed for dates of April 30, 1998 (jp) (Entered: 06/08/1998)
270 ORDER granting [179−2] motion to intervene the following 3 additional named pltffs: Walter S., Richard S., Danielle J.; granting [179−3] motion to substiute Nedda De Castro for Kathryn Conroy as next friend to named pltff Shauna D., and to substitute Dr. Vincent Bonagura for Prof. Mitchell I. Ginsburg as next friend to named pltff Lawrence B., and to add Raymunda Cruz as a second next friend to named pltff Marisol A.; granting in part, denying in part [217−1] cross motion to dismiss certain pltffs, next friends, and legal claims purs to FRCP 56(b) ( signed by Judge Robert J. Ward) Copies mailed (lam) Modified on 03/19/1999 (Entered: 06/11/1998)
272 Transcript of record of proceedings before Judge Ward filed for dates of April 3, 1998 (bm) (Entered: 06/11/1998)
273 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard

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06/25/1998

S., Danielle J. for an order establishing temporal limits on the scope of admissible evidence at trial, and requiring limited supplemental discovery due within 10 days of the service of pltffs' 16th Request for the Production of Documents . Return date not indicated. (lam) (Entered: 06/12/1998)
274 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. in support of pltffs' motion in limine [273−1] establishing temporal limits on the scope of admissible evidence at trial, and requiring limited supplemental discovery due within 10 days of the service of pltffs' 16th Request for the Production Documents (lam) (Entered: 06/12/1998)
275 AFFIRMATION Marisol A., Lawrence B., Thomas C., Shauna of Marcia Robinson Lowry, atty for D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. (filed in night deposit on 6/10/98 @7:48 along with doc. #273 & #274) (lam) (Entered: 06/12/1998)
276 MEMORANDUM in limine by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: concerning the temporal bounds of relevant evidence. (lam) (Entered: 06/16/1998)
277 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. in opposition to city defts' in limine motion concerning the temporal bounds of relevant evidence (motion not filed) (lam) (Entered: 06/19/1998)
278 AFFIRMATION of Mark G. Peters, atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. (lam) (Entered: 06/19/1998)
279 RESPONSIVE MEMORANDUM by City Defts Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta to [273−1] motion for an order establishing temporal limits on the scope of admissible evidence at trial, and requiring limited supplemental discovery due within 10 days of the service of pltffs' 16th Request for the Production of Documents (lam) (Entered: 06/19/1998)
280 AFFIRMATION in opposition of Margaret G. King, Asst Corp Counsel, atty for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta Re: [273−1] motion for an order establishing temporal limits on the scope of admissible evidence at trial, and requiring limited supplemental discovery due within 10 days of the service of pltffs' 16th Request for the Production of Documents (lam) (Entered: 06/19/1998)
Memo endorsed on motion; granting [273−1] motion for an order establishing temporal limits on the scope of admissible evidence at trial, and requiring limited supplemental discovery due within 10 days of the service of pltffs' 16th Request for the Production of Documents; The within motion is disposed of in accordance with order filed herewith ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 06/24/1998)
281 ORDER upon consideration of pltffs' and City defts' cross−motions for an order establishing temporal limits on the scope of evidence admissible at trial, and the parties' respective responses to the cross−motions, that evidence pertaining to liability, as well as remedy, shall be confined to the period beginning on 1/1/95 and continuing up and through the trial with the exception that limited evidence regarding background information prior to 1/1/95 shall be admitted, provided that it comports with Federal Rules of Evidence 401 and 403; defts shall serve and file full and complete answers to pltffs' 16th Request for Production of Documents within 20 days of the date of this Order and shall continue to supplement and update all of pltffs' discovery requests purs to FRCP 26(e)(2); any evidence defts intend to introduce at trial concerning information garnered after 2/20/98 be fully disclosed to pltffs immediately, and under no circumstances shall disclosure be made later than 48 hrs before defts intend to utilize such information at trial ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 06/24/1998)
282 NOTICE OF MOTION by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in limine to preclude pltffs' presentation of certain evidence at trial . With declaration attached. Return date not indicated. (lam) (Entered: 06/26/1998)

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07/06/1998
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07/16/1998 07/16/1998
07/17/1998 07/17/1998
07/21/1998
07/22/1998

283 MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta in support of [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial (lam) (Entered: 06/26/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 07/06/1998)
284 AFFIRMATION of Mark G. Peters, and atty for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. (lam) (Entered: 07/07/1998)
285 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. in opposition to City defts' [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial (lam) (Entered: 07/07/1998)
286 AFFIDAVIT/AFFIRMATION of Robert Suddath, psychiatrist, asked for a review by counsel for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. Re: upon review of defts' [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial (lam) (Entered: 07/07/1998)
287 Transcript of record of proceedings filed for dates of 5/8 and 5/11/98 before Judge Ward. (lam) (Entered: 07/13/1998)
288 Transcript of record of proceedings before Judge Ward filed for dates of July 1, 1998 (jp) (Entered: 07/13/1998)
289 Transcript of record of proceedings before Judge Ward filed for dates of May 4−7, 1998 (jp) (Entered: 07/13/1998)
Pre−trial conference held before Judge Ward (lam) (Entered: 07/16/1998)
290 STIPULATION and ORDER, that City defts may amend their Answers to the Complaint and to the Intervening Complaint to assert the defenses of res judicata and collateral estoppel; nothing in this Stipulation shall be contrued as waiving pltffs' rights to object to the filing of any motion based upon such defenses or to object to such motion itself; nothing in this Stipulation shall be construed as affirming the validity of any proposed defense based upon res judicata or collateral estoppel ( signed by Judge Robert J. Ward ). (lam) (Entered: 07/16/1998)
291 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: in support of [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial (lam) (Entered: 07/17/1998)
292 REPLY DECLARATION in support by Margaret G. King, atty for Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta re: [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial (lam) (Entered: 07/17/1998)
293 AMENDED ANSWER to Complaint by City Defts' Rudolph W. Giuliani, Marva Livingston Hammons, Nicholas Scoppetta : amends [52−1] answer, [271−1] intervenor answer (lam) (Entered: 07/21/1998)
Pre−trial conference held before Judge Ward; Judges decision: city defts motion in limine to preclude pltfs' presentation of certain evidence at trial granted in part and denied in part in accordance with the oral decision rendered into the stenographer Record−Ward, J. (lam) (Entered: 07/23/1998)
Memo endorsed on motion; terminating [282−1] motion in limine to preclude pltffs' presentation of certain evidence at trial. The within motion in limine is disposed of in accordance with oral decision rendered this date ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 07/22/1998)
294 PLTFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW regarding the cases of Lisa J. and Allen F., Larry H., Nolan M., Deborah L., Charles R., Walter and Richard S., Amy V., and Andrew P., and regarding the expert reports of Anita Marshall and Peter J. Walsh. (lam) (Entered: 07/23/1998)

07/22/1998
07/23/1998 07/23/1998 07/23/1998 07/23/1998 07/24/1998
07/24/1998 07/30/1998 07/31/1998
08/04/1998 08/07/1998 08/14/1998
08/17/1998
08/20/1998 09/14/1998 09/16/1998 09/16/1998 09/16/1998 09/18/1998

295 Revised Inentification of Witnesses to be call on pltffs' Case−In−Chief against the City and State Defts by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. (lam) (Entered: 07/23/1998)
296 State defts' Proposed Conclusions of Law (lam) (Entered: 07/24/1998)
297 STATE DEFTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (lam) (Entered: 07/24/1998)
298 CITY DEFTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (volume I & II) (lam) (Entered: 07/24/1998)
Pre−trial conference held before Judge Ward; Trial adjourned from 7/27/98 @10:00am to 8/3/98 @10:00am. (lam) (Entered: 07/29/1998)
299 STIPULATION and ORDER, the pltffs and the City defts are engaged in productive discussions that may lead to the settlement of this action against the City defts only and accordingly, wish to adjourn the scheduled trial date of this action for a limited time to facilitate further discussion; the trial of this action, scheduled to begin on 7/27/98, shall, with the approval of the Court, be adjourned until 8/3/98 ( signed by Judge Robert J. Ward ) (lam) (Entered: 07/28/1998)
300 ORDER concerning testimony of expert witnesses ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 07/28/1998)
Pre−trial conference held before Judge Ward; Judge's decision: trial adjourned from 8/3/98 @10:00am to 9/16/98 @10:00am. (lam) (Entered: 07/30/1998)
301 STIPULATION and ORDER, the pltff and City defts have agreed to continue to attempt to arrive at a settlement of this action against the City defts only; Accordingly, the parties wish to further adjourn the scheduled trial date of this action; the trial of this action scheduled to begin on 8/3/98, shall be adjourned until 9/16/98 ( signed by Judge Robert J. Ward ). (lam) Modified on 08/04/1998 (Entered: 08/03/1998)
302 BRIEF of amicus curiae filed by James Tierney, friend of the children. (lam) (Entered: 08/06/1998)
303 Transcript of record of proceedings filed for dates of 6/1/98 @11:40 before Judge Ward. (lam) (Entered: 08/07/1998)
304 MEMORANDUM by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. re: on the Proper Standard applicable to their 1983 Claims and Supplemental State Statutory Claims. (lam) (Entered: 08/17/1998)
305 CORRECTED COPY OF MEMORANDUM OF LAW by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., H., Stephen I., Walter S., Richard S., Danielle J. re: on the Proper Standard Applicable to their 1983 Claims and Supplemental State Statutory Claims. (lam) (Entered: 08/18/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 08/21/1998)
Pre−trial conference held; Judge's Decision: Trial adjourned from 9/16/98 @10:00am to 10/6/98 @10:00am; upon Joint Request of all parties, Ward J. (lam) (Entered: 09/16/1998)
306 Transcript of record of proceedings filed for dates of 7/14/98 @10:00am before Judge Ward. (lam) (Entered: 09/16/1998)
307 Transcript of record of proceedings filed for dates of 7/17/98 @10:15 before Judge Ward. (lam) (Entered: 09/16/1998)
308 Transcript of record of proceedings filed for dates of 7/30/98 @3:00pm before Judge Ward. (lam) (Entered: 09/16/1998)
309 PRETRIAL MEMORANDUM OF LAW on the standards applicable to pltffs' claims. (lam) (Entered: 09/22/1998)

09/28/1998 10/08/1998 10/15/1998 10/19/1998 11/05/1998 11/18/1998 11/20/1998 11/30/1998 12/02/1998 12/02/1998 12/02/1998 12/04/1998 12/09/1998
12/17/1998
12/17/1998
12/29/1998
12/29/1998 01/06/1999

Pre−trial conference held before Judge Ward: Judge's Decision: upon request of all parties, the Court adjourns the trial from 10/6/98 to 10/8/98. (lam) (Entered: 10/01/1998)
Pre−trial conference held before Judge Ward; Trial adjourned without date. (lam) (Entered: 10/13/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 10/22/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 10/22/1998)
310 Transcript of record of proceedings filed for dates of 8/20/98 @2:15pm before Judge Ward. (lam) (Entered: 11/05/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/02/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/02/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/02/1998)
Pre−trial conference held before Judge Ward. (lam) (Entered: 12/04/1998)
311 SETTLEMENT AGREEMENT filed by City Defts. (lam) (Entered: 12/04/1998)
312 SETTLEMENT AGREEMENT filed by the State Defts. (lam) (Entered: 12/04/1998)
313 ORDER, directing distribution of Legal Notice of Proposed Settlement Agreements in Marisol v. Giuliani and Proposed Dismissal of Wilder v. Bernstein and related matters (signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 12/07/1998)
314 ORDER TO SHOW CAUSE and Temporary Restraining Order by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., S tephen I., Walter S., Richard S., Danielle J.; Show Cause Hearing set for 2:00 12/17/98: that the parties show cause why an Order should not be entered suspending the Interim Stipulation and Order Concerning Overnights at Pre−Placement which was "so ordered" by this Court on 7/17/97, pending the expiration of the July 1997 order by its terms ; that pending hearing and determination of the issues raised in the Joint Declaration for an Order suspending the July 1997 order, let enforcement of that July 1997 order be stayed (signed by Judge Robert J. Ward) Copies mailed. (lam) (Entered: 12/14/1998)
315 ORDER that the Interim Stipulation and Order Concerning Overnights at Pre−Placement which was "so−ordered" by this Court on 7/17/97, is suspended, pending the expiration of the 7/17/97 order upon Court approval of the Settlement Agreements ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 12/21/1998)
Memo endorsed on motion; granting [314−1] motion that the parties show cause why an Order should not be entered suspending the Interim Stipulation and Order Concerning Overnights at Pre−Placement which was "so ordered" by this Court on 7/17/97, pending the expiration of the July 1997 order by its terms, granting [314−2] motion that pending hearing and determination of the issues raised in the Joint Declaration for an Order suspending the July 1997 order, let enforcement of that July 1997 order be stayed; The within joint motion to suspend the Interim Stipulation and Order concerning Overnights at Pre−Placement, dated 7/17/97, is granted. No opposition ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 12/21/1998)
316 NOTICE OF MOTION by counsel for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. for Craig Levine to withdraw as attorney . With Memoradum of Law. Return date not indicated. (lam) (Entered: 01/05/1999)
317 Memo endorsed on motion;, for Craig Levine, Children's Rights, Inc. to withdraw as attorney; Motion granted (signed by Judge Robert J. Ward ); Copies mailed. With Memorandum of Law attached. (lam) (Entered: 01/07/1999)
319 NOTICE OF MOTION for Mark Peters to withdraw as attorneyf or plntfs Return date not indicated; attached is a memo in support (cd) (Entered: 01/08/1999)

01/12/1999
01/12/1999 01/15/1999 01/21/1999 01/21/1999 01/21/1999 01/21/1999 01/22/1999
01/22/1999 01/25/1999
01/25/1999
01/25/1999 02/01/1999 02/01/1999 02/05/1999 02/05/1999

Memo endorsed on motion; granting [319−1] motion for Mark Peters to withdraw as attorney for pltffs (Terminated attorney Mark G. Peters for Danielle J., attorney Mark G. Peters for Richard S. ( signed by Judge Robert J. Ward ); Copies mailed. (lam) (Entered: 01/12/1999)
320 ORDER granting [319−1] motion for Mark Peters to withdraw as attorney for pltffs ( signed by Judge Robert J. Ward ); Copies mailed (lam) (Entered: 01/12/1999)
321 AMENDED MEMORANDUM in support of motion to intervene and objections to proposed class action settlement by intervenor Joel plaintiffs. (kw) (Entered: 01/19/1999)
323 MEMORANDUM by State defendants in support of the State settlement agreement and in opposition to motion to intervene. (kw) (Entered: 01/28/1999)
324 MEMORANDUM by city defendants' in support of the Marisol settlement agreement and the dismissal of Wilder and in opposition to the motion by the Joel A. plaintiffs to intervene. (kw) (Entered: 01/28/1999)
325 MEMORANDUM by plaintiffs in support of approval and entry of Marisol settlement agreements; in opposition to motion to intervene; and in further support of Wilder joint motion to dismiss. (kw) (Entered: 01/28/1999)
326 DECLARATION of Gail Rubin, on behalf of City Defendants i support of the settlement and in opposition to the motion by the Joel A. Plaintiffs to intervene. (kw) (Entered: 01/28/1999)
Hearing begun and concluded on 1/22/99 on the class action settlement agreements filed with the Court on 12/2/98. Judge's decision: the Court having hearing all parties responding to the fairness of the settlement, finds that the settlements are fair, reasonable & appropriate and approving the settlements. Settle Judgment on 2 day's notice. A written opinion will follow. (kw) (Entered: 01/28/1999)
327 Letters to Judge Ward in objections to settlement agreements. (kw) (Entered: 01/28/1999)
Memo endorsed on memorandum in support of motion to intervene doc. #321; the portion of the within motion seeking to intervene for the purpose of interposing objections to the proposed class action settlement is granted. The balance of the motion has been withdrawn in open court ( signed by Judge Robert J. Ward ); Copies mailed. (kw) Modified on 01/27/1999 (Entered: 01/27/1999)
322 MEMORANDUM DECISION AND ORDER, this Court grants Intervenors' motion to intervene and the additional relief stated in this document, conditioned on this Court's approval of the Marisol City Settlement Agreement and dismissal of Wilder v. Bernstein, 78 civ. 957 (RJW) ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 01/27/1999)
328 DECLARATION of Douglas Lasdon. (kw) (Entered: 01/28/1999)
329 Transcript of record of proceedings filed for dates of 11/18/98 @10:00am before Judge Ward. (lam) (Entered: 02/08/1999)
330 Transcript of record of proceedings filed for dates of 12/2/98 @9:40am before Judge Ward. (lam) (Entered: 02/09/1999)
331 ORDER, this Court's Memorandum Decision and Order dated 1/22/99, is vacated and the Wilder Intervenors' motion dated 1/5/99 in 78 civ. 957 is withdrawn ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 02/10/1999)
332 STIPULATION and ORDER, the Wilder Intervenors are to receive the draft of the Initial Report with respect to the Wilder Obligations referred to in paragraph 11.b of the City Settlement Agreement and the Advisory Panel is to receive and discuss with the Wilder Intervenors any comments the Wilder Intervenors have regarding the draft, as provided for the parties in paragraph 14 of the City Settlement Agreement and as set forth further in this document ( signed by Judge Robert J. Ward ). (kw) (Entered: 02/10/1999)

02/17/1999
02/17/1999 03/09/1999 03/09/1999 03/10/1999 03/18/1999 03/26/1999 03/26/1999 03/31/1999 03/31/1999 03/31/1999
03/31/1999 04/20/1999

333 NOTICE OF APPEAL by Joel A., Michael D., Eric R., David S., Maxx R., Ray D. ; from [322−1] order this Court grants Intervenors' motion to intervene and the additional relief stated in this document, conditioned on this Court's approval of the Marisol City Settlement Agreement and dismissal of Wilder v. Bernstein, 78 civ. 957 (RJW) . Copies of notice of appeal mailed to Attorney(s) of Record: David M. Brodsky, Thomas F. Curnin, Karen J. Freedman, Marcia Robinson Lowry, Gail Rubin, Judith Kramer, fee pd. $105.00, rec # 338033 . (as) (Entered: 02/22/1999)
Notice of appeal and certified copy of docket to USCA: [333−1] appeal by Ray D., Maxx R., David S., Eric R., Michael D., Joel A. ; Copy of notice of appeal sent to District Judge. (as) (Entered: 02/22/1999)
334 Transcript of record of proceedings filed for dates of 1/22/99 @10:00 before Judge Ward. (lam) (Entered: 03/09/1999)
335 ORDER, reset answer due for 4/5/99 for Nicholas Scoppetta, for Brian J. Wing, for George E. Pataki, for Marva Livingston Hammons, and for Rudolph W. Giuliani ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 03/11/1999)
USCA Case Number Re: [333−1] appeal by Ray D., Maxx R., David S., Eric R., Michael D., Joel A. USCA NUMBER: 99−7218. (dt) (Entered: 03/10/1999)
336 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [333−1] appeal by Ray D., Maxx R., David S., Eric R., Michael D., Joel A. (dt) (Entered: 03/18/1999)
337 Memo endorsed on motion; plaintiffs' motion, to enter appearance of Marcia Robinson Lowry on behalf of Danielle J., by her next friend, Angela Lloyd; and Richard and Walter S., by their next friends, W.N. and N.N., is granted. No opposition ( signed by Judge Robert J. Ward ); Copies mailed. (kw) (Entered: 03/29/1999)
338 ORDER, upon consideration of Plaintiffs' motion to enter appearance of Marcia Robinson Lowry on behalf of Danielle J., by her next friend, Angela Lloyd; and Richard and Walter S., by their next friends, W.N. and N.N., it is hereby ordered that the motion is granted ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 03/29/1999)
339 OPINION #82124, the Court finds the Marisol settlement agreements and the dismissal of Wilder to be fair, reasonable, and adequate. Accordingly, the Court approves the Marisol Settlement Agreements and grants the motion to dismiss Wilder ( Signed by Judge Robert J. Ward ); Copies mailed. (kw) (Entered: 04/01/1999)
340 ORDER, the settlement agreements, which are attached as exhibit, and each of them are approved by this Court ( signed by Judge Robert J. Ward ); Copies mailed (kw) (Entered: 04/01/1999)
341 FINAL JUDGMENT DISMISSING CLAIMS AND RETAINING JURISDICTION; that the plaintiffs' claims against the City defendants are dismissed with prejudice pursuant to the City Settlement Agreement, except that, pursuant to the City Settlement Agreement consented to by the plaintiffs and the City defendants and approved on this date by this Court, this Court shall retain jurisdiction over the City Settlement Agreement for the purposes set forth therein. The plaintiffs' claims against the State defendants are dismissed with prejudice pursuant to the State Settlement Agreement, except that, pursuant to the State Settlement Agreement consented to by the plaintiffs and the State defendants and approved on this date by this Court, this Court shall retain jurisdiction over the State Settlement Agreement for the purposes set forth therein. The issue of attorneys' fees and costs to be paid to plaintiffs as provided in the Settlement Agreements is reserved. ( signed by Judge Robert J. Ward ); Mailed copies and notice of right to appeal. Entered on 4/1/99. (kw) (Entered: 04/01/1999)
Case closed (kw) (Entered: 04/01/1999)
342 STIPULATION and ORDER, pursuant to FRCP 10(e)(2)(A) that the documents as set forth in this order, which were mistakenly omitted from the Court record of this matter, be certified and forwarded as part of the record on appeal in this action ( signed by Judge Robert J. Ward ). (kw) (Entered: 04/22/1999)

04/28/1999
08/13/1999 08/13/1999 09/02/1999 09/02/1999 09/10/1999 12/27/1999
01/14/2000 01/14/2000 04/14/2000 04/14/2000 04/14/2000 04/17/2000

343 ORDER authorizing payment of expenses to United Way of New York City from CRIS Acct 95cv10533; that the Clerk of the Court is directed to arrange for the transfer of all funds on deposit currently held by the CRIS in acct #95cv10533, to the Registry of this Court; that the Clerk of the Court prepare fothwith a check for all funds on deposit made payable to "United Way of New York City" and advise David Daykin that he may pick it up or make arrangement for the mailing of the check; that this Court retain jurisdiction in connection with any further application or matter which may arise in connection with this action ( signed by Judge Robert J. Ward ); Copies mailed; Remark by Cashiers Office: Received check #500754 dated 4/30/99 in the amount of 144,695.00 payable to United Way. (lam) (Entered: 05/10/1999)
344 NOTICE OF MOTION by plaintiffs for an order directing compliance with certain provisions of the Marisol State Settlement Agreement as set forth in this document ; Return date 9/3/99. (kw) Modified on 08/17/1999 (Entered: 08/17/1999)
345 MEMORANDUM by plaintiffs in support of [344−1] motion for an order directing compliance with certain provisions of the Marisol State Settlement Agreement as set forth in this document. (kw) (Entered: 08/17/1999)
346 AFFIDAVIT of Frederick Levitan on behalf of State defendants in opposition to Re: [344−1] motion for an order directing compliance with certain provisions of the Marisol State Settlement Agreement as set forth in this document. (kw) Modified on 09/07/1999 (Entered: 09/07/1999)
347 MEMORANDUM by State defendants in opposition to [344−1] motion for an order directing compliance with certain provisions of the Marisol State Settlement Agreement as set forth in this document. (kw) (Entered: 09/07/1999)
348 REPLY MEMORANDUM by plaintiffs to re: [347−1] opposition memorandum, and [346−1] affidavit. (kw) (Entered: 09/14/1999)
349 AGREEMENT ON ATTORNEYS' FEES AND COSTS/ORDER, the State Defendants will pay to Plaintiffs' Counsel the amount of $1,575,000 for the attorneys' fees and costs incurred by Plaintiffs in the Litigation. In addition to the $1,575,000 referred to in paragraph 1 of this document, the State Defendants agree to pay Plaintiffs' Counsel at a future date for the attorneys' fees and costs incurred by them after 3/31/99 for the monitoring and/or enforcement of the terms and conditions of the Settlement Agreement, up to a maximum amount of $175,000 ( signed by Judge Robert J. Ward ); Copies mailed. (kw) (Entered: 12/28/1999)
350 NOTICE OF MOTION by plaintiffs for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98 ; Return date 1/31/00. (kw) (Entered: 01/18/2000)
351 MEMORANDUM OF LAW by Marisol A. in support of [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. (kw) (Entered: 01/18/2000)
352 MEMORANDUM OF LAW by City Defts Rudolph W. Giuliani, Brian J. Wing, Nicholas Scoppetta in opposition to pltffs'` [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98 (filed in night deposit on 4/14/00 @9:00pm) (lam) (Entered: 04/17/2000)
353 DECLARATION of Gail Rubin, Asst Corp Counsel, for City Defts Rudolph W. Giuliani, Brian J. Wing, Nicholas Scoppetta in opposition to pltffs' [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. (filed in night deposit on 4/14/00 @9:00pm) (lam) (Entered: 04/17/2000)
354 DECLARATION of Grace Goodman, affidavit of Nicholas Scoppetta, declaration of Suzanne M. Halbardier in opposition to pltffs' [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. Filed by City Defts. (filed in night deposit on 4/14/00 @9:01pm) (lam) (Entered: 04/17/2000)
355 CORRECTED COPY OF MEMORANDUM OF LAW by City Defts, Rudolph W. Giuliani, Brian J. Wing, Nicholas Scoppetta in opposition to [350−1] motion for an

06/01/2000 06/05/2000 06/26/2000
06/26/2000
07/26/2000 07/26/2000 08/08/2000 08/11/2000 08/11/2000 08/16/2000
08/30/2000 08/30/2000 09/06/2000

order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98 (lam) (Entered: 04/19/2000)
356 NOTICE of attorney appearance for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. by Shirim Nothenberg (lf) (Entered: 06/05/2000)
357 REPLY MEMORANDUM by plaintiffs in support re: [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98 (lf) (Entered: 06/06/2000)
358 REPLY MEMORANDUM by Rudolph W. Giuliani, Marva Livingston Hammons, George E. Pataki, Brian J. Wing, Nicholas Scoppetta re: [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. Received in night deposit on 6/26/00 at 6:58 p.m. (jp) (Entered: 06/29/2000)
359 SUPPLEMENTAL DECLARATION of Gail Rubin by Rudolph W. Giuliani, Marva Livingston Hammons, George E. Pataki, Brian J. Wing, Nicholas Scoppetta in opposition to: [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. Received in night deposit on 6/26/00 at 6:58 p.m. (jp) (Entered: 06/29/2000)
Oral argument held before Judge Robert J. Ward re: pltffs' motion with reference to state defts directing complaince with certain provisions of Settlement Agreement; Judge's decision: motion disposed of as set forth on the record in open court. (lam) (Entered: 07/27/2000)
Memo endorsed on motion doc. #344; the within motion is disposed of as set forth on the record in open court . ( Signed by Judge Robert J. Ward ). Copies mailed. (kw) (Entered: 07/27/2000)
360 MANDATE OF USCA (certified copy) Re: Affirm [333−1] appeal by Ray D., Maxx R., David S., Eric R., Michael D., Joel A. 00−7898, Roseann B. MAckechnie, Clerk (sl) (Entered: 08/14/2000)
361 NOTICE OF MOTION by counsel for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. for Shirim Nothenberg to withdraw as attorney . Return date not indicated. (lam) (Entered: 08/15/2000)
362 MEMORANDUM OF LAW by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J. in support of [361−1] motion for Shirim Nothenberg to withdraw as attorney . (lam) (Entered: 08/15/2000)
363 ORDER granting [361−1] motion for Shirim Nothenberg to withdraw as attorney (Terminated attorney Shirim Nothenberg for Danielle J., attorney Shirim Nothenberg for Richard S., attorney Shirim Nothenberg for Walter S., attorney Shirim Nothenberg for Stephen I., attorney Shirim Nothenberg for Brandon H., attorney Shirim Nothenberg for Victoria G., attorney Shirim Nothenberg for Bill G. ( signed by Judge Robert J. Ward ); Copies mailed. (cd) (Entered: 08/17/2000)
Memo endorsed on motion; granting in accordance with Opinion filed herewith: [350−1] motion for an order granting attorney fees against the City Defendants in the amount of $9,361,098.02, for all activities rendered in this case up to 12/2/98. ( signed by Judge Robert J. Ward ); Copies mailed. (jp) (Entered: 08/31/2000)
364 OPINION #84456, plaintiffs' motion for an award of attorneys' fees and expenses is granted. Defendants are directed to reimburse plaintiffs in the amount of $5,835,116.78 for attorneys' fees and expenses . ( signed by Judge Robert J. Ward ); Copies mailed. (kw) (Entered: 09/01/2000)
365 Transcript of record of proceedings before Judge Robert J. Ward for the date(s) of 7/26/00 @11:05am. (lam) (Entered: 09/06/2000)

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01/31/2001 01/31/2001 02/06/2001 02/26/2001 03/09/2001
08/06/2001 08/09/2001 08/10/2001 08/13/2001

366 NOTICE OF APPEAL by Rudolph W. Giuliani, Marva Livingston Hammons, seorge E. Pataki, Brian J. Wing, Nicholas Scoppetta ; from [364−1] order plaintiffs' motion for an award of attorneys' fees and expenses is granted. Defendants are directed to reimburse plaintiffs in the amount of $5,835,116.78 for attorneys' fees and expenses . Copies of notice of appeal mailed to Attorney(s) of Record: Marcia Robinson Lowry, Susan Lambiase, Kim E. Murdock, Jeffrey K. Powell, Karen J. Freedman, Esq. and Jess A. Velona, Esq. $105.00 Appeal filing fee paid 9/29/00 on receipt # E 385619. (dt) (Entered: 10/02/2000)
Notice of appeal and certified copy of docket to USCA: [366−1] appeal by Nicholas Scoppetta, Brian J. Wing, seorge E. Pataki, Marva Livingston Hammons, Rudolph W. Giuliani ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 10/02/2000)
367 MANDATE OF USCA WITHDRAWING APPEAL (certified copy) Re: withdrawing [366−1] appeal by Nicholas Scoppetta, Brian J. Wing, seorge E. Pataki, Marva Livingston Hammons, Rudolph W. Giuliani. 00−9256, Roseann B. Mackehcnie, Clerk. (sl) (Entered: 11/03/2000)
368 NOTICE OF MOTION by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J., Joel A., Michael D., Eric R., David S., Maxx R., Ray D. to direct compliance with certain provisions of the Marisol State Settlement Agreement . Return date not indicated. (lam) (Entered: 01/08/2001)
369 MEMORANDUM OF LAW by Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Walter S., Richard S., Danielle J., Joel A., Michael D., Eric R., David S., Maxx R., Ray D. in support of [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement . (lam) (Entered: 01/08/2001)
370 AFFIDAVIT of Larry Brown by State Defendants in opposition to [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. (kw) (Entered: 02/01/2001)
371 MEMORANDUM OF LAW by State Defendants in opposition to [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. (kw) (Entered: 02/01/2001)
372 NOTICE of change of address for counsel Schulte Roth & Zabel for Marisol A., Lawrence B., Thomas C., Shauna D., Ozzie E., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I. . (lam) (Entered: 02/08/2001)
373 REPLY MEMORANDUM by plaintiffs in support of re: [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. (kw) (Entered: 02/27/2001)
374 AFFIDAVIT of Melvin I. Rosenblat by Rudolph W. Giuliani, Marva Livingston Hammons, seorge E. Pataki, Brian J. Wing, Nicholas Scoppetta Re: personal knowledge; and AFFIDAVIT of Larry G. Brown re in opposition to the pltff's motion for an order directing complaince and to supplement his affdvt of 1/29/01 (lf) (Entered: 03/12/2001)
Terminated document 368−1 pursuant to instructions of Magistrate Judge Eaton. (rag) (Entered: 08/06/2001)
Motion Hearing begun before Judge Robert J. Ward Re: [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. (kw) (Entered: 08/23/2001)
Motion Hearing continued before Judge Robert J. Ward Re: [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. (kw) (Entered: 08/23/2001)
Motion Hearing continued before Judge Robert J. Ward Re: [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. Plaintiff withdraw their claims as to paragraph #9 of the State Settlement agreement. Motion withdraw as to paragraph #9. (kw) Modified on 08/23/2001 (Entered: 08/23/2001)

08/22/2001 08/29/2001 08/29/2001
09/26/2001 09/26/2001 09/26/2001 01/21/2003
08/26/2003
07/01/2008 06/22/2017 06/22/2017 10/06/2017
10/12/2017 07/17/2018

Motion Hearing continued and concluded before Judge Robert J. Ward Re: [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement. Decision reserved. Total hearing days: 4. (kw) (Entered: 08/23/2001)
Memo endorsed on motion; granting in part, denying in part [368−1] motion to direct compliance with certain provisions of the Marisol State Settlement Agreement in accordance with opinion filed herewith. ( signed by Judge Robert J. Ward ); Copies mailed. (pl) (Entered: 08/30/2001)
375 Vacated as per Judges Order dated 08/06/2018, Doc. #388 OPINION AND ORDER #86038; for the reasons stated herein, pltffs' motion for an order directing compliance with paragraphs 14 and 21 of the State Settlement Agreement is denied. Pltffs' motion for an order directing compliance with paragraph 22 of the State Settlement Agreement is granted to the extent that the Court will continue its jurisdiction over par. 22 until the Court determines that defts have complied with that paragraph . The Office of Children and Family Services is directed to furnish semi−annual reports to the Court with copies to pltffs' attorneys. The first report shall be furnished on 1/2/02 and the last report shall be furnished when the Court determines that OCFS has complied with #22 of the State Settlement Agreement. . ( signed by Judge Robert J. Ward ); Copies mailed. (correction made to page 21 on 10/09/01 by Judge Ward, copies mailed and opinion re−microfilmed as of that date) (sn) Modified on 10/09/2001 Modified on 8/6/2018 (yv). (Entered: 08/30/2001)
376 Transcript of record of proceedings before Judge Robert J. Ward on 8/10/01. (kw) (Entered: 09/26/2001)
377 Transcript of record of proceedings before Judge Robert J. Ward on 8/9/01. (kw) (Entered: 09/26/2001)
378 Transcript of record of proceedings before Judge Robert J. Ward on 8/13/01. (kw) (Entered: 09/26/2001)
379 Ex Parte Order filed. Brian Lopez be permitted, with the consent of Jennie Casciano, to withdraw the sum of $3000.00 from the Account, being Citibank custodian account number 25867938, and that Citibank pay said sum to Mr. Lopez from said account as soon as possible upon demand by Mr. Lopez and Ms. Casciano in compliance with the procedures of the bank. ( signed by Judge Robert J. Ward ) (tp) (Entered: 01/23/2003)
380 Notice of Case Reassignment to Judge Kevin T. Duffy . Copy of notice and judge's rules mailed to Attorney(s) of record: Marc Christopher Falcone, Shirim Nothenberg, Marcia Robinson Lowry, Mark G. Peters, Grace Goodman, Floyd Abrams, Michael S. Popkin, David M. Brodsky, Rose E. Firestein, Carol A. Marcus, Thomas F. Curnin, Karen J. Freedman . (jjm) (Entered: 08/28/2003)
381 July 2008 Report by New York State Office of Children and Family Services. (pl) (Entered: 07/02/2008)
NOTICE OF CASE REASSIGNMENT to Judge George B. Daniels. Judge Kevin Thomas Duffy is no longer assigned to the case. (bcu) (Entered: 06/22/2017)
Magistrate Judge Katharine H. Parker is so redesignated. (ad) (Entered: 06/22/2017)
382 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement): OCFS's semi−annual report and Settlement. Referred to Magistrate Judge Katharine H. Parker. (Signed by Judge George B. Daniels on 10/6/2017) (mro) Modified on 11/15/2017 (mro). (Entered: 10/06/2017)
383 JANUARY 2017 REPORT (from New York State Office of Children & Family Services). (sc) (Entered: 10/16/2017)
384 ORDER SCHEDULING TELEPHONE CONFERENCE: A telephone conference in this matter is scheduled for Thursday, July 26, 2018 at 12:30 p.m. Counsel for the parties are directed to call Judge Parker's Chambers at 12:30 p.m. on Thursday, July 26, 2018 with counsel for all parties on the line. Please dial 212−805−0234. (Telephone Conference set for 7/26/2018 at 12:30 PM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 7/17/2018)

07/19/2018 07/26/2018 08/03/2018 08/03/2018
08/06/2018 08/06/2018

(cf) (Entered: 07/17/2018)
385 NOTICE OF APPEARANCE by Samantha Leigh Buchalter on behalf of SHEILA J. POOLE. (Buchalter, Samantha) (Entered: 07/19/2018)
Minute Entry for proceedings held before Magistrate Judge Katharine H. Parker: Telephone Conference held on 7/26/2018. (ca) (Entered: 07/26/2018)
386 NOTICE OF APPEARANCE by Betsy Kramer on behalf of Marisol A., Lawrence B., Thomas C., Courtroom Television Network, Shauna D., David S., Ozzie E., Eric R., Darren F., David F., Bill G., Victoria G.. (Kramer, Betsy) (Entered: 08/03/2018)
387 JOINT LETTER addressed to Judge George B. Daniels from Karen Freedman and Samantha L. Buchalter dated August 3, 2018 re: Telephone conference with Judge Parker on July 26, 2018. Document filed by Marisol A., Lawrence B., Thomas C., Courtroom Television Network, Shauna D., David S., Ozzie E., Eric R., Darren F., David F., Bill G., Victoria G., Brandon H., Stephen I., Danielle J., Joel A., Maxx R., Michael D., SHEILA J. POOLE, Ray D., Richard S., Walter S..(Kramer, Betsy) (Entered: 08/03/2018)
388 ORDER. This Court's August 29, 2001 Order, ECF Docket No. 375, is vacated insofar as it retained jurisdiction of paragraph 22 of the State Settlement Agreement. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 8/6/18) (yv) (Entered: 08/06/2018)
389 MEMO ENDORSEMENT on re: 387 Letter. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 8/6/2018) (jwh) (Entered: 08/06/2018)

 
 104 F.3d 524 (1996)
MARISOL, A., by her next friend, Rev. Dr. James Alexander FORBES, Jr., et al., PlaintiffsAppellees, v.
Rudolph W. GIULIANI, as Mayor of the City of New York, et al., Defendants-Appellants.
Docket No. 96-9132.
United States Court of Appeals, Second Circuit.
Motion Submitted December 10, 1996. Decided December 10, 1996. Opinion Filed January 8, 1997.
525 *525 Marcia Robinson Lowry, Craig Levine, Rebecca Kim Kimura, Karen Freedman, Anne Park, Children Rights, Inc., New York City; Karen Freedman, Gayle Lerner, Lawyers for Children, New York City; Thomas F. Curnin, Landis Best, Serina Vash, Cahill Gordon & Reindel, New York City, for Plaintiffs-Appellees.
Paul A. Crotty, Corporation Counsel of the City of New York, New York City (Francis F. Caputo, Grace Goodman, Stephanie Freeman Goldstein, of counsel), for City Defendants-Appellants.
Dennis C. Vacco, Attorney General of the State of New York, New York City (Robert A. Forte, Michael S. Popkin, Steven M. Connolly, Assistant Attorneys General, of counsel), Barbara G. Billet, Solicitor General, Thomas D. Hughes, Assistant Solicitor General, for State Defendants-Appellants.
Before: FEINBERG, ALTIMARI and PARKER, Circuit Judges.
FEINBERG, Circuit Judge:
In early September 1996, a panel of this court granted the petition of defendants-appellants under 28 U.S.C. § 1292(b) for permission to appeal from an interlocutory order of the United States District Court for the Southern District of New York, Robert J. Ward, J. About 2-1/2 months later, plaintiffs-appellees moved to dismiss the appeal, claiming that this court had not had jurisdiction under § 1292(b) to grant defendants leave to appeal. This panel denied the motion by order dated December 10, 1996. In light of varying approaches in other circuits to the jurisdictional issues raised by plaintiffs' motion to dismiss the appeal, we write to explain our holding. The basic question raised by the motion was whether a district court has the power to recertify under § 1292(b) the order 526 appealed from to enable the party opposing such order to file with this court a *526 timely petition for leave to appeal. If not, then defendants' petition to us in this case was not timely and our prior panel did not have jurisdiction in September to grant it. We hold that a district court does have such power to recertify the order under attack. As a result, the prior panel did have jurisdiction to consider whether to exercise its discretion to grant defendants leave to appeal.[1]
Prior Proceedings
Plaintiffs, children who are the legal responsibility of the New York City child welfare system, brought an action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York, against the Mayor of the City of New York, the Commissioner of the City's Department of Social Services, and the Commissioner of the City's Administration for Children's Services (collectively the City defendants), and the Governor of the State of New York, and the Acting Commissioner of the State Department of Social Services (collectively the State defendants). Plaintiffs allege that the New York City child welfare system has mishandled their cases and generally failed to protect their safety and well-being.

In July 1996, Judge Ward entered an order granting plaintiffs' motion to certify a class consisting of all children who are the legal responsibility of the City's child welfare system. On July 26, 1996, upon City defendants' motion,[2] the judge certified his class certification order for interlocutory appeal under 28 U.S.C. § 1292(b) (the first § 1292(b) order).[3] This started a 10-day period during which defendants could file a timely petition in this court seeking leave to appeal. Id.; see also Federal Rules of Appellate Procedure (FRAP) 5(a).[4]
However, during a status conference before the district court on August 8, 1996, the City defendants disclosed that due to an inadvertent miscalculation of this 10-day period, they had failed to timely file their petition. Upon defendants' request and over plaintiffs' objection, the district judge on August 9 entered an order (the second § 1292(b) order), which recertified the class certification order. That is, he again stated in writing that he believed that the class certification order "involve[d] a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal may materially advance the ultimate termination of the litigation." At plaintiffs' request, the judge limited defendants to three business days in which to file their petition in this court rather than allowing them the full 10 days allotted by § 1292(b) and FRAP 5(a). On August 14, 1996, defendants filed their petition in this court for leave to appeal. With no discussion of the possible jurisdictional question, a panel of this court granted defendants leave to appeal by order dated September 3, 1996.
In mid-November, some three weeks after defendants filed briefs on the merits of the appeal, plaintiffs brought 527 this motion to dismiss the appeal. They claimed that this *527 court did not have jurisdiction to allow the appeal
because defendants' petition in this court for leave to appeal was not filed within 10 days of the district court's first § 1292(b) order. As already indicated, we denied the motion to dismiss. This opinion explains why.
Discussion
Section 1292(b), see note 3 above, states that after a district court certifies an interlocutory order for appeal, a circuit court may grant leave to appeal "if application is made to it within ten days after the entry of the order." The second sentence of FRAP 5(a), see note 4 above, makes clear that the 10-day period begins when the district court amends the order under attack to include the § 1292(b) certification. The parties agree that FRAP 26(b) prohibits a circuit court from extending this 10-day time limit. Plaintiffs correctly note that these rules constitute a jurisdictional limit on the circuit court's power to consider a petition for leave to appeal. Tranello v. Frey, 962 F.2d 244, 248 (2d Cir.1992). Plaintiffs go on to argue that when Judge Ward entered the second § 1292(b) order after defendants had inadvertently failed to petition this court within 10 days after entry of the first § 1292(b) order, the district court enabled defendants to achieve an "end-run" around the jurisdictional limit.
Neither this circuit nor the Supreme Court has squarely addressed the issue of whether a circuit court has jurisdiction to consider a § 1292(b) petition in this situation.[5] Both parties cite Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), in which the district court had recertified its original interlocutory order nine months after the 10-day period had expired due to the appellant's failure to properly file its petition in the circuit court for leave to appeal. Id. at 159-60, 104 S.Ct. at 1729-30. The majority reached the merits of the appeal without even mentioning these facts. In dissent, however, Justice Stevens (joined by Justices Brennan and Marshall) noted a circuit split on the jurisdictional issue and explained that he was "persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the 10-day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will." Id. at 162, 104 S.Ct. at 1731 (Stevens, J., dissenting). Although defendants cite Baldwin as implicit support for the district court's power to recertify an order, the issue bears further exploration in view of the majority's silence on the issue.
In support of plaintiffs' position, at least one circuit has held that a district court cannot recertify an interlocutory order solely to "extend the jurisdictional period of time which the petitioner had permitted to elapse." Woods v. Baltimore and Ohio R.R., 441 F.2d 407, 408 (6th Cir.1971) (per curiam) (recertification six months after original certification did not give appellate court jurisdiction). That court reasoned that the district court should not be able to do indirectly what the circuit court could not do. Id. Relying on Woods, a district court in this circuit has held that, even assuming appellants were not at fault for failing to timely petition for appeal, the court was "powerless"

to recertify the interlocutory order solely to restart the 10-day period. Nakhleh v. Chemical Constr. Corp., 366 F.Supp. 1221, 1223 (S.D.N.Y.1973).
In contrast, the Fifth Circuit has held (in an opinion by Judge Alvin R. Rubin) that a district court may freely recertify an interlocutory order as long as the requirements for certification under § 1292(b) 0907 a controlling question of law as to which there is substantial ground for difference of opinion and immediate appeal may 528 materially advance the ultimate termination of the litigation 0907 continue to exist when the would-be *528 appellant seeks recertification. Aparicio v. Swan Lake, 643 F.2d 1109, 1110-1113 (5th Cir.1981); see Aucoin v. Matador Servs. Inc., 749 F.2d 1180, 1181 (5th Cir.1985); 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, Jurisdiction & Related Matters 2d. § 3929 at 395 (describing this as the "better view"); see also Rodriguez v. Banco Central, et al., 917 F.2d 664, 669 (1st Cir. 1990) (implying that district court could recertify order to enable negligent appellant to file petition); In re La Providencia Dev. Corp., 515 F.2d 94 (1st Cir.1975) (same).
In Aparicio, the Fifth Circuit considered the argument that allowing recertification when a year had elapsed after the district court's original certification order would vitiate § 1292(b)'s purpose of ensuring prompt disposition of interlocutory appeals. The court rejected this view because FRAP 5(a) allows a district court to amend "at any time" the order from which an appeal is to be taken, in order to add the certification provision, and the district court retains the power to reconsider its interlocutory orders until it enters final judgment. Therefore, the Aparicio court reasoned, an extended delay can occur between the entry and appeal of the interlocutory order under attack. Id. at 1111-12. More importantly, "[a] contrary interpretation of the statute would preclude an interlocutory appeal under circumstances in which the criteria of the statute are satisfied and both the district court and [circuit] court have concluded that an interlocutory appeal is appropriate." Id. at 1112.
With deference, we regard the Sixth Circuit's approach in Woods as unnecessarily rigid. The Fifth Circuit's observations in Aparicio are persuasive. However, the Ninth Circuit has noted that the Fifth Circuit's approach on its face goes "too far in the other direction" because it "effectively eliminate[s] the ten-day jurisdictional limit completely by allowing apparently uncontrolled and repeated recertifications." In re Benny, 812 F.2d 1133, 1137 (9th Cir.1987). The Ninth Circuit instead "elected to take the middle road adopted by the Seventh Circuit," by which a court of appeals may exercise jurisdiction over a petition to appeal from a recertified interlocutory order if "jurisdiction over the appeal would serve judicial efficiency" and thus "`advances the purposes of section 1292 (b).'" Id. at 1137 (citing Nuclear Engineering Co. v. Scott, 660 F.2d 241, 247 (7th Cir.1981)). To facilitate this inquiry, the court in Nuclear Engineering focused on "all events transpiring between the entry of certification orders that bear upon the utility of a section 1292(b) appeal." Id.; but see Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990) (describing in dicta the Ninth and Seventh Circuits' approach as "controversial").
Although we agree with Justice Stevens that the issue thus posed is "a close one," Baldwin, 466 U.S. at 162, 104 S.Ct. at 1731, we believe that the appropriate approach is that taken by the Ninth Circuit. As we understand it, that would allow a circuit court to accept an appeal in the situation we have here after considering a number of factors, including the length of the delay between the end of the original 10-day period and recertification of the order, the reasons given for failing to timely file in the circuit court, and any prejudice to the appellee from the delay. Benny, 812 F.2d at 1137; Nuclear Engineering, 660 F.2d at 247-48; see also Myles v. Laffitte, 881 F.2d 125, 126 n. 2 (4th Cir.1989) (suggesting in dicta evaluation of same factors). The Third Circuit advocated a somewhat similar approach in Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir.1977) (en banc), holding that a district court may recertify an order 0907 and thus restart the 10-day period 0907 when the appellant's failure to timely file was caused by a mistake of the court, rather than the party's own negligence. Id. at 955 (considering fault for and extent of delay and prejudice to appellee). The focus of this inquiry, however, should be on ensuring that the goal of § 1292(b) 0907 resolution of a controlling legal question that could advance the ultimate termination of the litigation 0907 will still be satisfied by allowing an interlocutory appeal.
Plaintiffs argue that even under this standard, we should not permit recertification here because defendants' failure to petition within the original 10-day period was due solely to their own negligence. Compare Nuclear 529 Engineering, 660 F.2d at 248 (recertification *529 allowed when district court "somewhat encouraged" appellants' legal misunderstanding), and Braden, 552 F.2d at 955 (same when delay due to "dereliction" of the district court), with Woods, 441 F.2d at 408 (no recertification when appellant "discovered" own error in failing to timely petition).

Plaintiffs contend that we should be especially unforgiving when a "seasoned" litigant such as a governmental unit commits the negligence. Cf. Baldwin, 466 U.S. at 148, 104 S.Ct. at 1724 (negligent petitioner was pro se litigant).
We reject the contention that an appellant's negligence completely strips the district court of discretion to recertify an interlocutory order. City defendants have candidly admitted from the outset that their failure to timely petition this court resulted from their miscalculation of the 10-day period. While we do not condone carelessness, we weigh the defendants' fault as but one factor 0907 albeit a significant one 0907 in our determination of whether district court recertification in this case serves the goals of § 1292(b).
The other factors appear to favor allowing defendants' appeal. Most significantly, the district court emphasized in entering the second § 1292(b) order that it still felt "constrained to grant the City defendants' application to certify this matter" because the certified issue 0907 whether class certification was proper 0907 was a controlling one, the prompt resolution of which could materially advance the ultimate termination of the litigation. Also, defendants moved for recertification in the district court just three days after the lapse of the original 10-day period, and promptly filed their petition in this court for leave to appeal, less than one week later. See, e.g. Wright, Miller & Cooper § 3929 at 397 ("Renewed certification may prove easiest if the ten-day period was barely missed."). Finally, plaintiffs do not suggest that recertification prejudiced them in any way. See Nuclear Engineering, 660 F.2d at 248. Indeed, defendants argue that plaintiffs waived their objections to recertification of the order because, after plaintiffs' initial objection in the district court, they failed to either raise this issue before the panel of this court that in early September 1996 granted defendants' petition for leave to appeal or move for reargument before that panel. While not determinative, plaintiffs' tardiness in raising this jurisdictional challenge reinforces defendants' argument that plaintiffs were not prejudiced by recertification in this case. Balancing all of these considerations, we denied plaintiffs' motion to dismiss.
Although we hold that recertification was proper in this case, we caution that "[t]he power to renew the certification should be used carefully to prevent misuse of interlocutory appeals for the purpose or with the effect of harassing an adversary or fostering delay." Wright, Miller & Cooper, § 3929 at 397. District and circuit courts can prevent potential abuse of recertification by carefully evaluating all circumstances surrounding the recertification request as they relate to the ultimate efficiency goals of § 1292(b). See Aparicio, 643 F.2d at 1112-13. As discussed above, these goals are served here.
Motion denied.
[1] We express no view on the prior panel's exercise of discretion in granting leave to appeal, but focus instead on the narrow jurisdictional argument of whether this court had the power to entertain defendants' petition at all.
[2] The parties later stipulated that the State defendants had joined the City's certification motion. However, this stipulation explicitly did not alter the amount of time defendants had to seek leave to appeal in this court.
[3] Section 1292(b) provides, in relevant part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order....
[4] FRAP 5(a) provides, in relevant part:
An appeal from an interlocutory order containing the statement prescribed by 28 U.S.C. § 1292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within 10 days after the entry of such order in the district court.... An order may be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended.

[5] In Sperry Rand Corp. v. Bell Telephone Laboratories, Inc., 272 F.2d 29 (2d Cir.1959) (in banc), an unusual in banc rehearing of the denial of a petition for leave to appeal under § 1292(b), this court considered a related problem. Although the case was decided before amendment of FRAP 5(a) to include its present language allowing district court certification under § 1292(b) of an order "at any time," we allowed a district court to include the § 1292(b) certification statement months after it had entered the order from which plaintiffs sought to appeal. Id. at 30.
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 126 F.3d 372 (1997)
MARISOL A., by her next friend, Reverend Dr. James Alexander FORBES, Jr., Lawrence B., by his next friend, Professor Mitchell I. Ginsberg, Thomas C., by his next friend, Dr. Margaret T. McHugh, Shauna D., by her next friend, Professor Kathryn Conroy, Ozzie E., by his next friends, Jill Chaifetz and Kim Hawkins, Darren F. and David F., by their next friends, Juan A. Figueroa, and Reverend Marvin J. Owens, Bill G. and Victoria G., by their next friend, Sister Dolores Gartanutti, Brandon H., by his next friend, Thomas J. Moloney, Steven I., by his next friend, Kevin Ryan, on their own behalf and on behalf of all others
similarly situated, Plaintiffs-Appellees, v.
Rudolph W. GIULIANI, Mayor of the City of New York, Marva Livingston Hammons, Administrator of the Human Resources Administration and Commissioner of the
Department of Social Services of the City of New York, Nicholas Scoppetta, Commissioner of the New York City Administration for Children's Services, George E.
Pataki, Governor of the State of New York, Brian Wing, Acting Commissioner of the Department of Social Services of the State of New York, Defendants-Appellants.
Nos. 29, 83, Dockets 96-9132, 96-9134.
United States Court of Appeals, Second Circuit.
Argued September 17, 1997. Decided September 26, 1997.
3734 *373 *374 Elizabeth I. Freedman, Francis F. Caputo, Grace Goodman, Stephanie Freeman Goldstein, Paul A. Crotty, Corporation Counsel of the City of New York, New York City, for Municipal Defendants-Appellants.
Michael S. Popkin, Barbara G. Billet, Thomas D. Hughes, Robert A. Forte, Steven M. Connolly, Dennis G. Vacco, Attorney General of the State of New York, New York City, for State Defendants-Appellants.
Craig Levine, Marcia Robinson Lowry, Rebecca Kim Kimura, John E. Kirklin, Anne Y. Park, Children's Rights, Inc., New York City, for Plaintiffs-Appellees.
Hayley J. Gorenberg, Carolyn A. Kubitschek, Lasner & Kubitschek, for Amicus Curiae National Coalition for Child Protection Reform in support of Defendants-Appellants.
Richard E. Carlton, David Gaukrodger, Sullivan & Cromwell, for Amici Curiae Covenant House New York, New York Chapter of the National Association of Social Workers, Empire State Coalition of Youth and Family Services, Urban Justice Center, Advocates for Children of New York, Inc., The Door 0907 A Center of Alternatives, Inc., Statewide Youth Advocacy, Inc., Youth Communications, National Association of Former Foster Children, Professor Louis Levitt in his Official Capacity as Executive Secretary of the New York State Association of Deans of Social Work, Dean Ronald A. Feldman, Dean Sheldon R. Gelman and Dean Thomas Meenaghan in support of Plaintiffs-Appellees.
Mitchell A. Lowenthal, Adam L. Aronson, Cleary, Gottlieb, Steen & Hamilton, for Amici Curiae National Center for Youth Law, Juvenile Law Center, Youth Law Center, American Civil Liberties Union National Prison Project, Judge David L. Bazelon Center for Mental Health Law, Puerto Rican Legal Defense and Education Fund, Inc., MexicanAmerican Legal Defense and Educational Fund, Poverty Law Project of the National Clearinghouse for Legal Services, Inc. in support of Plaintiffs-Appellees.
Before: FEINBERG, WALKER, LEVAL, Circuit Judges.
PER CURIAM:

Rudolph W. Giuliani, the Mayor of New York, Marva Livingston Hammons, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York, Nicholas Scoppetta, Commissioner of the New York City Administration for Children's Services, George E. Pataki, Governor of New York and Brian Wing, Acting Commissioner of the Department of Social Services of the State of New York ("the defendants") bring this interlocutory appeal from an order of the United States District Court for the Southern District of New York (Robert J. Ward, District Judge) certifying a class action pursuant to Rule 23(b) (2) of the Federal Rules of Civil Procedure, see Marisol A. ex rel. Forbes v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996).[1] The defendants claim that certification of the plaintiff class was improper because the plaintiffs 375 failed to demonstrate that the certified class adhered to the strictures of Fed.R.Civ.P. 23. Because we *375 find that the district court, in certifying the class at this point in the litigation, has not abused its discretion, we affirm the decision of the district court.
BACKGROUND
Familiarity with the painful allegations of the named plaintiffs, eleven children who claim they were deprived of the services of the New York City child welfare system to their extreme detriment, is presumed. See Marisol A., 929 F.Supp. at 669-72. Briefly, in December 1995, the named plaintiffs brought this action by and through their adult next friends seeking declaratory and injunctive relief against the defendants to redress injuries caused by the alleged systemic failures of the City's child welfare system.[2] The complaint charged that the manner in which the defendants operate that system violates a diverse array of federal and state laws, namely, the First, Ninth and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a; the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106a; the Early and Periodic Screening, Diagnosis and Treatment program of the Medicaid Act, 42 U.S.C. §§ 1396a, 1396d(a) & (r); the Multiethnic Placement Act of 1994, 42 U.S.C. § 622(b)(9); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a; Article XVII of the New York State Constitution; the New York State Social Services Law Articles 2, 3, 6 & 7,; the New York State Family Court Act, Articles 6 & 10; and various state regulations, 18 N.Y.C.R.R. §§ 400-484.
Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the plaintiffs asked the district court to certify a class of similarly situated children who are the legal responsibility of the child welfare system. The defendants, maintaining that the requirements of Rule 23 were not met, opposed class certification. In an order dated July 3, 1996, the district court certified a plaintiff class consisting of
All children who are or will be in the custody of the New York City Administration for Children's Services ("ACS"), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is or should be known to ACS.
Marisol A. ex rel. Forbes v. Giuliani, 95 Civ 10533 (S.D.N.Y. July 3, 1996). The defendants challenge the district court's order in this interlocutory appeal.
DISCUSSION
I. Standard of Review
A district court's decision to certify a class will be overturned only if the district court abused its discretion. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 482 (2d Cir.1995) (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir.1992)). A reviewing court must exercise even greater deference when the district court has certified a class than when it has declined to do so. See Lundquist v. Security Pac. Auto. Fin. Servs. Corp., 993 F.2d 11, 14 (2d Cir.1993). However, the failure to follow the proper legal standards in certifying a class, as the defendants argue has happened here, is an abuse of discretion. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993).

II. The Standards for Class Certification
Before certifying a class, a district court must determine that the party seeking certification has satisfied the four 376 prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation.[3]*376 See
Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir.1994); Marcera v. Chinlund, 595 F.2d 1231, 1237 (2d Cir.), vacated on other grounds sub nom, Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). Furthermore, the party seeking certification must qualify under one of three criteria set forth in Rule 23(b). See Comer, 37 F.3d at 796; Marcera, 595 F.2d at 1237. In the present case, plaintiffs sought certification under Rule 23(b)(2), which authorizes class actions where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
The district court found that the requirements of Rule 23(a) and Rule 23(b)(2) were met, and certified the class requested by the plaintiffs. Marisol A., 929 F.Supp. at 689-93. The defendants argue this was an abuse of discretion.
A. Numerosity
The district court found that the numerosity requirement of Rule 23(a)(1) was easily met, as the "class would number well over 100,000 children." Marisol A., 929 F.Supp. at 689-90. We agree. The class is obviously numerous, and individual joinder would be virtually impossible. See, e.g., Consolidated Rail, 47 F.3d at 483 (numerosity presumed at 40).
B. Commonality and Typicality
More difficult are the questions of commonality and typicality. The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3). See General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982); Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 597 (2d Cir.1986); 7 Wright & Miller, Federal Practice and Procedure § 1764 (1972). The crux of both requirements is to ensure that "maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13.
The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir.1987); Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994); 3B Moore's Federal Practice & Procedure ¶ 23.06-1 (1996). Typicality, by contrast, requires that the claims of the class representatives be typical of those of the class, and "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert, 960 F.2d at 291 (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)).
The defendants argue that, except at the grossest level of generality, there are no questions of law or fact common to the class and that no named plaintiff may convincingly assert that his or her claim is typical of the class. See K.L. ex rel. Dixon v. Valdez, 167 F.R.D. 688, 691 (D.N.M.1996) (refusing to certify similar class bringing variety of legal claims where "no named Plaintiff and no putative class member has allegedly suffered violations of all or even most of the statutory and constitutional rights listed."). The defendants point out that each named plaintiff challenges a different aspect of the child welfare system. These include allegations of inadequate training and supervision of foster parents, the failure to properly investigate reports of suspected neglect and abuse, unconscionable delay in removing children from abusive homes, and the inability to secure appropriate placements for adoption, see Marisol A., 929 F.Supp. at 669-72. The claimed deficiencies implicate different

377 statutory, *377 constitutional and regulatory schemes. Further, the defendants note that no single plaintiff (named or otherwise) is affected by each and every legal violation alleged in the complaint, and that no single specific legal claim identified by the plaintiffs affects every member of the class. Thus, in light of the broad range of injuries which the named plaintiffs allegedly have suffered, defendants argue that the commonality and typicality requirements have not been satisfied.
The district court rejected these contentions, finding that the plaintiffs' claims satisfied the commonality and typicality requirements. The court identified as a common question of law "whether each child has a legal entitlement to the services of which that child is being deprived." 929 F.Supp. at 690. It identified as a common question of fact "whether defendants systematically have failed to provide these legally mandated services." Id. In characterizing the legal and factual issues in this way, the district court determined that the myriad constitutional, regulatory, and statutory provisions invoked by the plaintiffs are properly understood as creating a single scheme for the delivery of child welfare services and as setting standards of conduct for those charged with providing such services0907standards that the defendants are alleged to have violated in a manner common to the plaintiff class by failing to operate and maintain a functioning child welfare system. The district court explained:
The unique circumstances of each child do not compromise the common question of whether, as plaintiffs allege, defendants have injured all class members by failing to meet their federal and state law obligations. Indeed, as plaintiffs argue, the actions or inactions of defendants are not isolated or discrete instances but, rather, form a pattern of behavior that commonly affects all of the proposed class members.
Id. at 690-91.
The core issue presented by this appeal is whether, by conceptualizing the common legal and factual questions at this high level of abstraction (or, understood differently, by aggregating all of the plaintiffs' claims into one "super-claim"), the district court abused the discretion granted it by Rule 23 to provide for the orderly and efficient maintenance of this lawsuit.
We find that the district court did not abuse its discretion by certifying this class at this time, notwithstanding our view, expressed in Section III, infra, that the creation of subclasses will be necessary. Three considerations compel this conclusion. First, "Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility ..." Sharif ex rel. Salahuddin v. New York State Educ. Dep't., 127 F.R.D. 84, 87 (S.D.N.Y.1989). The rule's inherent flexibility, and the district court's ability to manage the litigation as it develops, counsel against decertification.
Second, although the district court's generalized characterization of the claims raised by the plaintiffs stretches the notions of commonality and typicality, we simply cannot say that these claims are so unrelated that their aggregation necessarily violates Rule 23. The plaintiffs allege that their injuries derive from a unitary course of conduct by a single system, and the district court agreed. At this stage of the litigation, we see no basis for finding that the district court abused its discretion in this regard.
Finally, we note that the only other circuit court which has considered this very question has held that it was an abuse of discretion not to certify a class nearly identical to the one considered here. See Baby Neal, 43 F.3d at 64-65; cf. Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1287 (E.D.Wisc.1995) (certifying two subclasses, one of children in foster care and one of children not in foster care about whom the county had received reports of neglect or abuse, where plaintiffs "challenge[d] the operating practices of the ... foster-care system, and generally allege[d] that the ... program is systematically depriving children of their legal rights."). Although we believe that the district court is near the boundary of the class action device, we are not prepared to say that it has crossed into forbidden territory.
378 *378 C. Adequacy of Representation
The requirement that the named plaintiffs adequately represent the class is motivated by concerns similar to those driving the commonality and typicality requirements, namely, the efficiency and fairness of class

certification. See Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13. To achieve these ends, Rule 23(a)(4) requires that plaintiffs demonstrate that "class counsel is qualified, experienced, and generally able to conduct the litigation." In re Drexel Burnham Lambert, 960 F.2d at 291 (internal citations and quotations omitted). Plaintiffs must also demonstrate that there is no conflict of interest between the named plaintiffs and other members of the plaintiff class. See id.
Defendants do not contest the adequacy of class counsel. Instead, they contend that the interests of the children in the custody of the child welfare system are opposed to those of children who are not in the custody of the system. We disagree. Plaintiffs seek broad based relief which would require the child welfare system to dramatically improve the quality of all of its services, including proper case management. In this regard, the interests of the class members are identical. See Baby Neal, 43 F.3d at 63. The plaintiff class satisfies Rule 23(a) (4).
D. Rule 23(b)(2)
Class certification is appropriate where the defendant has acted or refused to act on grounds generally applicable to the class, thereby making injunctive or declaratory relief appropriate. Fed.R.Civ.P. 23(b)(2). Defendants argue that because the plaintiffs have alleged differing harms requiring individual remedies, no injunction will be appropriate for the entire class. Defendants further claim that due to the unique circumstances of each plaintiff's experience with the child welfare system, the defendants have not acted on grounds generally applicable to the class.
We disagree. Insofar as the deficiencies of the child welfare system stem from central and systemic failures, the district court did not abuse its discretion in certifying a 23(b)(2) class at this stage of the litigation. See Comer v. Cisneros, 37 F.3d at 796 (Rule 23(b)(2) satisfied "because the plaintiffs seek injunctive relief and they predicate the lawsuit on the defendants' acts and omissions with respect to" the class); Jeanine B., 877 F.Supp. at 1288 ("[c]ivil rights cases seeking broad declaratory or injunctive relief for a large and amorphous class ... fall squarely into the category" of 23(b)(2) actions); Advisory Committee Note to Subdivision (b)(2) ("Illustrative are various actions ... where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.").
III. Future Disposition of the Suit
For the foregoing reasons, we hold that the district court did not abuse its discretion by certifying the class at this point in the litigation. However, we also believe that it might unfairly prejudice the defendants were the district court to try the suit without further refining the class in advance of trial by certifying subclasses pursuant to Fed. R.Civ.P. 23(c)(4).
As presently certified, the class certified by the district court implicitly consists of two large subclasses. The first is comprised of "children who are or will be in the custody of the New York City Administration for Children's Services ("ACS");" the second is comprised of "those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is or should be known to ACS." Marisol A., 95 Civ 10533 at 3. But in reality, each of these subclasses consists of smaller groups of children, each of which has separate and discrete legal claims pursuant to particular federal and state constitutional, statutory, and regulatory obligations of the defendants. Each claim, in turn, is based on one or more specific alleged deficiencies of the child welfare system.
Well in advance of trial, the district court must engage in a rigorous analysis of the plaintiffs' legal claims and factual circumstances in order to ensure that appropriate subclasses are identified, that each subclass is tied to 379 one or more suitable representatives, and that each subclass satisfies Rule *379 23(b)(2).[4] Thus, it is imperative that the district court identify (1) the discrete legal claims which are at issue, (2) the named plaintiffs who are aggrieved under each individual claim at issue, and (3) the subclasses that each named plaintiff represents. Before trial, the parties should specify the proof they will rely upon to support or defend each claim.

The creation of subclasses will serve several purposes. By identifying the specific issues to be tried, the district court will be able to focus discovery on those issues, sparing the parties from directionless and haphazard discovery. In addition, the identification of subclasses will allow the district court to weed out, and, if necessary, dismiss those claims for which no named plaintiff is an adequate representative. The district court will be able to conduct the trial in a more orderly manner, by tying the order of proof to particular claims raised by the individual subclasses. Finally, subclass certification will provide the defendants with sufficient notice of the specific charges they face in a timely fashion.
Of course, it is for the district court to identify appropriate subclasses in the first instance. However, some guidance may be helpful. One possible method of developing proper subclasses would divide the present class based on the commonality of the children's particular circumstances, the type of harm the children allegedly have suffered, and the particular systemic failures which the plaintiffs assert have occurred. The allegations of the plaintiffs should provide a useful starting point. See Marisol A., 929 F.Supp. at 670-72. If necessary, the district court may allow additional discovery and hold evidentiary hearings in order to determine which classifications may be appropriate. See Chateau De Ville Productions, Inc. v. Tams Witmark Music Library, 586 F.2d 962, 966-67 (2d Cir.1978). We emphasize that the district court must not wait until the eve of trial to amend its certification order. The defendants must be given adequate notice of which claims are being raised and by whom, and of what proof is being offered and for what purpose.
Fortunately, Rule 23 in the first instance and Rule 16 before trial provide the district court with ample tools to fulfill its responsibility. Rule 23 gives the district court flexibility to certify subclasses as the case progresses and as the nature of the proof to be developed at trial becomes clear. Under Rule 23(c)(1), class certification may be altered or amended at any time before a decision on the merits. Under Rule 23(c)(4), the district court may (and in this case must) divide the class into subclasses. And finally, Rule 23(d) allows the district court to make such orders as are necessary to assure the orderly administration of the proceedings. See Advisory Committee Note on Subdivision (d) ("The court should consider how the proceedings are to be arranged in sequence, and what measures are to be taken to simplify the proof and argument."); see also Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir.1993) ("District courts retain substantial discretion in managing their cases and ... the district judge may of course take [necessary] measures, such as redefining the class and creating sub-classes...."); Stott v. Haworth, 916 F.2d 134, 139 (4th Cir.1990) ("[A]n order certifying a class must be reversed if it becomes apparent, at any time during the pendency of the proceeding, that class treatment of the action is inappropriate."). Rule 16(c), of course, affords the district court wide latitude at pre-trial conferences to narrow the issues and to require, in advance of trial, that plaintiffs pinpoint the evidence they will rely on to prove each individual claim. Indeed, it is our confidence that the district court will continue to exercise its discretion in the proper manner as this litigation proceeds that allows us to uphold the present class formulation at this preliminary stage in the proceedings.
CONCLUSION
380 The district court's order certifying the plaintiff class pursuant to Rule 23(b)(2) of the *380 Federal Rules of Civil Procedure is affirmed. We expect the district court to conduct further proceedings including the certification of such subclasses as are necessary for the efficient and orderly administration of this litigation, in accordance with this opinion.
[1] On July 26, 1996 the district court initially certified for immediate appeal pursuant to 28 U.S.C. § 1292(b) that portion of its order certifying the class. After the defendants failed to petition this court for permission to appeal within the ten-day period mandated by Fed. R.App. P. 5(a), the district court re-certified the class, and the defendants petitioned this court in a timely manner. We rejected the plaintiffs' argument that this re-certification was an improper attempt by the district court to expand our jurisdiction. See Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524 (2d Cir.1997), cert. denied, ___ U.S. ___, 117 S.Ct. 1694, 137 L.Ed.2d 821 (1997).
[2] When this case was filed, the system was administered by the Child Welfare Administration ("CWA"). Effective February 12, 1996, that agency was reorganized as the Administration for Children's Services ("ACS"). Any

differences between these two agencies are not relevant here, and we will generally refer to the agencies collectively as "the child welfare system."
[3] Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed R. Civ. P. 23(a).
[4] Defendants argue that the death of named plaintiff Lawrence B. before the certification of the plaintiff class mooted his individual and class claims. We leave it to the district court to ascertain whether any of those claims are represented by other plaintiffs as part of its overall determination of subclasses and their representation.
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 218 F.3d 132 (2000)
JOEL A., Michael D., Eric R., David S., Maxx R., and Ray D., Intervenor-PlaintiffsAppellants,
Marisol A., by her next friend, Rev. Dr. James Alexander Forbes, Jr., by her next friend Raymunda Cruz, Lawrence B., by his next friend, Dr. Vincent Bonagura, Thomas C., by his
next friend, Dr. Margaret T. McHugh, Shauna D., by her next friend, Nedda de Castro, 133 Ozzie E., by his next friends, Jill Chaifetz and Kim Hawkins, *133 Darren F., David F., by
their next friends, Juan A. Figueroa, and Rev. Marvin J. Owens, Bill G., Victoria G., by their next friend, Sister Dolores Gartanutti, Brandon H., by his next friend, Thomas H. Moloney,
Steven I., by his next friend, Kevin Ryan, on their own behalf and behalf of all others similarly situated, Walter S., Richard S., by their next friends, W.N. and N.N.,
grandparents, Danielle J., by her next friend, Angela Lloyd, Plaintiffs-Appellees, v.
Rudolph W. GIULIANI, Mayor of the City of New York, Marva Livingston Hammons, Administrator of the Human Resources Administration and Commissioner of the Dept. of Social Services of the City of New York, George E. Pataki, Governor of the State of New
York, John Johnson, Commissioner of the New York Office of Children and Family fka Commissioner of the Dept. Social Services of the State of New York, Nicholas Scoppetta,
in his official capacity as Commissioner of the New York City Administration for Children's Services, Defendants-Appellees.
Docket No. 99-7218
United States Court of Appeals, Second Circuit.
Argued July 14, 1999. Decided July 10, 2000.
1345 *134 *135 Marc Falcone, Paul, Weiss, Rifkind, Wharton & Garrison (Daniel J. Leffell, Mariann Meier Wang, Tobias B. Wolff, Victoria Cook, Paul, Weiss, Rifkind, Wharton & Garrison, and Douglas Lasdon, David Pumo, Urban Justice Center, on the brief), New York, New York, for Intervenor-Plaintiffs-Appellants.
Grace Goodman, Assistant Corporation Counsel (Larry A. Sonnenshein, Gail Rubin, Michael D. Hess, Corporation Counsel of the City of New York, on the brief), New York, New York, for Municipal DefendantsAppellees.
William Bristow, Assistant Attorney General (Preeta D. Bansal, Solicitor General, Judith T. Kramer, Assistant Attorney General, Michael S. Belohlavek, Assistant Attorney General, Eliot Spitzer, Attorney General of the State of New York, on the brief), New York, New York, for State Defendants-Appellees.
Marcia Robinson Lowry, Children's Rights, Inc. (Susan Lambiase, Shirim Nothenberg, Children's Rights, Inc., and Karen Freedman, Lawyers for Children, Thomas F. Curnin, Ira J. Dembrow, Cahill Gordon & Reindel, David M. Brodsky, Jess A. Velona, Schulte Roth & Zabel LLP, on the brief), New York, New York, for Plaintiffs-Appellees.
Richard J. Davis, Weil, Gotshal & Manges LLP (Harris J. Yale, Janet L. Goldberg, Weil, Gotshal & Manges LLP, on the brief), New York, New York, for Amici Curiae The Judge David L. Bazelon Center for Mental Health Law, The National Center for Youth Law, Support Center for Child Advocates, Youth Law Center, Dean Bogart R. Leashore, Dean Thomas M. Meenaghan, Dean Ronald Feldman, Dean Mary Ann Quaranta, Dean Sheldon R. Gelman, Dean Roger A. Levin, and Dean Frances L. Brisbane in support of Appellees' Opposition to Intervenor's Appeal.

Before: WALKER, CABRANES, and SACK, Circuit Judges.
JOHN M. WALKER, JR., Circuit Judge:
Intervenor-Plaintiffs-Appellants Joel A., Michael D., Eric R., David S., Maxx R., and Ray D. (the "Joel A. 136 objectors" or "the appellants") appeal from an order and *136 judgment of the United States District Court for the
Southern District of New York (Robert J. Ward, District Judge) that approved a class action settlement between the class action plaintiff children and officials of New York City and New York State. The plaintiff class, consisting of children either in the custody of the New York City Administration for Children's Services ("NYCACS" or "ACS") or at risk of neglect or abuse and whose status is or should be known to NYCACS (collectively, "the plaintiffs"), alleged that they were deprived of appropriate city and state services and sought to hold accountable New York City Mayor Rudolph Giuliani, the Administrator of the Human Resources Administration and Commissioner of the Department of Social Services, Marva Livingston Hammons, the NYCACS Commissioner, Nicholas Scoppetta, as well as George E. Pataki, Governor of New York, and Brian Wing, Acting Commissioner of the Department of Social Services of the State of New York (collectively, "the defendants"). The appellants, a class represented by Joel A., unsuccessfully objected to a settlement between the plaintiffs and defendants on the ground that it imposes overbroad restrictions on the class members' right of access to the courts for a specified period in exchange for illusory relief, and therefore that the district court abused its discretion in approving the settlement. Because we find that the district court did not abuse its discretion, we affirm the decision below.
BACKGROUND
The detailed allegations of the named plaintiffs, eleven children who claim they were deprived of the services of the New York City child welfare system to their extreme detriment, are fully set forth in the district court's opinion, Marisol A. ex rel. Forbes v. Giuliani, 929 F.Supp. 662, 669-72 (S.D.N.Y.1996) ("Marisol I"), and it is unnecessary to describe them further here. It will suffice to say that in December 1995, the plaintiffs, acting through their adult next friends, sought declaratory and injunctive relief against the defendants claiming injuries caused by systemic failures of the City's child welfare system. The complaint charged that the defendants, in operating that system, had violated an array of federal and state laws, including the First, Ninth and Fourteenth Amendments to the United States Constitution, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a, and the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106a, among others. See Marisol I, 929 F.Supp. at 672.
On June 18, 1996, the district court granted class certification under Fed. R.Civ.P. 23(b)(2) to a broad class of plaintiffs subject to the purview of the New York City Child Welfare Administration, currently known as ACS. The district court defined the class as "[a]ll children who are or will be in the custody of [ACS], and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is known or should be known to ACS." Marisol I, 929 F.Supp. at 693. We affirmed the certification, but directed the district court to break the class into various subclasses, and to identify for each subclass (1) the discrete legal claims at issue, (2) the named plaintiffs aggrieved under each such discrete claim, and (3) the subclasses represented by each named plaintiff. Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372, 379 (2d Cir.1997) (per curiam) ("Marisol II").
On remand, the district court certified three subclasses: (1) children whom the defendants know or should know have been abused or neglected/maltreated by virtue of a report of abuse or neglect/maltreatment; (2) children in families in which there is an open indicated report of abuse or neglect; and (3) children in the custody of ACS. Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 199927, at *5 (S.D.N.Y. Apr.23, 1998) ("Marisol III"). In 137 May 1998, the district court granted *137 intervention to three additional named plaintiffs and identified the subclasses they represented and the legal claims they asserted. Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 265123, at *2-4 (S.D.N.Y. May 22, 1998) ("Marisol IV"). Although this process provided an opportunity for any objector to challenge the subclass designation, the Joel A. objectors, appellants here, did not challenge the adequacy of the class representatives nor appeal from the certification of the subclasses. There is no dispute that the Joel A. objectors are members of the third subclass of Marisol plaintiffs: children in the custody of ACS.

I. The Settlement Agreements
After more than two years of intensive discovery and on the eve of trial in July 1998, the parties informed the district court that they were engaged in settlement negotiations. The trial date was postponed and the parties conducted negotiations for over four months. On December 2, 1998, two settlement agreements signed by the appropriate parties were filed with the district court: the City Settlement Agreement and the State Settlement Agreement.
The City Settlement Agreement establishes an Advisory Panel of four experts in the child welfare field selected and approved by plaintiffs and the City defendants. The Advisory Panel is to study various areas of ACS' operations, including permanency, placement and evaluation, and monitoring of private agencies, with the full cooperation of ACS, which agrees to provide the Panel with full access to information, documents, and personnel. The Advisory Panel is required to report on each of the enumerated areas and to determine whether ACS is making good faith efforts toward reform in those areas; if the Panel finds a lack of good faith, plaintiffs can seek judicial relief, using the Panel's findings as prima facie evidence that ACS is not acting in good faith. Notably, the City Agreement also contains limitations on the filing of class action lawsuits through December 15, 2000, the date the Agreement expires.
The State Settlement Agreement establishes a regional office of the New York State Office of Children and Family Services ("OCFS") in New York City to monitor and supervise child welfare services within the City, and provides for improvements to the State Central Register, the child abuse and neglect hotline. OCFS is also required to file fatality reports and undertake one or more case record reviews of ACS records in various areas, such as child protective services and cases of children in placement, to determine if ACS is complying with applicable laws and reasonable case work practice. The State Settlement Agreement also contains limitations on filing class action suits until December 31, 2000, the date the Agreement expires.
II. The Joel A. Objectors
On January 15, 1999, on the eve of the hearing to determine the fairness of the settlement and on the last day upon which interested parties could file objections to the settlement, the Joel A. objectors filed a separate class action suit against New York City and State officials who are also defendants in Marisol. Joel A. v. Giuliani, No. 99 Civ. 0326(RJW). Each of the objectors is a gay child in the custody and care of ACS, within the third subclass of the Marisol class. They are alleged victims of bias-related violence, harassment and discrimination at the hands of their heterosexual peers in the foster care system and by the City and State officials responsible for overseeing the child welfare system. They bring claims under a variety of federal and state constitutional and statutory provisions and seek "concrete relief for bias-related victimization by their peers, and systemic discrimination based on sexual orientation, both of which result in physical, emotional, psychological, and developmental injuries."
138 *138 The Joel A. objectors asserted in the district court and claim here that they could not be adequately represented within the Marisol subclass three, since the class consists of the very peers who have been victimizing them, and that the district court took insufficient steps to ensure that they were adequately represented in settlement discussions. The objectors allege that the Settlement Agreements impose unduly broad restrictions on their right of access to the courts, in violation of Rule 23(e) and the Due Process Clause of the United States Constitution. They further allege that the concessions made to the Marisol defendants were granted in exchange for illusory relief of practically no value to class members.
III. The District Court Opinion
After a fairness hearing on January 22, 1999, at which the Joel A. objectors interposed objections, the district court issued a written opinion. Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999) ("Marisol V"). The district court discussed at length the factors that a district court should consider in evaluating whether a class

action settlement is fair, reasonable and adequate. See id. at 162. These so-called Grinnell factors include: "(1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, [and] (6) the risks of maintaining the class action through the trial." Robertson v. National Basketball Ass'n, 556 F.2d 682, 684 n. 1 (2d Cir.1977) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)).
The district court found that the Grinnell factors either weighed in favor of the settlement or were irrelevant. In particular, the court noted that (1) the pending action presented many unsettled and complex legal issues, and a trial would take five months or more and be "extremely costly"; (2) only three objections were raised out of a class of 100,000; (3) trial preparation had been extensive, so that counsel was thoroughly familiar with the strengths and weaknesses of their respective cases; (4) the agreements were more favorable to the plaintiff class than any relief the district court could have unilaterally ordered after a trial resulting in a plaintiffs' verdict, and no preferable alternative remedy had been suggested; (5) it was unlikely that the class or subclasses would be decertified; and (6) the settlement was negotiated at arms length by experienced counsel. Marisol V, 185 F.R.D. at 162-65.
The court rejected the argument that the relief provided by the settlements was illusory, and found that the covenants not to sue and releases were not unfair or oppressive as they only precluded class equitable claims for two years, and allowed individual plaintiffs to sue for relief tailored to their specific concerns at any time. The court concluded that "a moratorium on class action equitable suits for two years, while plaintiffs and defendants work together to develop a better child welfare system, is fair, reasonable, and adequate." Id. at 170. In addition, the court held that the Joel A. objectors' claim of inadequate representation, on the basis that no Marisol named plaintiff had standing to raise claims of discrimination specific to the Joel A. class, had already been decided and affirmed on appeal. See id. The district court concluded that the settlements were fair, reasonable and adequate, and approved them. This appeal followed.
DISCUSSION
Federal Rule of Civil Procedure 23(e) requires court approval of any settlement that effects the dismissal of a class action. Before such a settlement may be approved, the district court must determine that a class action settlement is fair, adequate, and reasonable, and not a product of collusion. See, e.g., Maywalt v. Parker & 139 Parsley Petroleum Co., 67 F.3d *139 1072, 1079 (2d Cir.1995); Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir. 1987).
We review a district court's decision to approve a proposed settlement of a class action for abuse of discretion. See In re Ivan F. Boesky Secs. Litig., 948 F.2d 1358, 1368 (2d Cir.1991). The trial judge's views are accorded "great weight . . . because he is exposed to the litigants, and their strategies, positions and proofs. . . . Simply stated, he is on the firing line and can evaluate the action accordingly." Grinnell, 495 F.2d at 454 (internal quotation marks omitted). The considerable deference accorded to the judgment of the district court is heightened where the trial judge's experience has imparted to the judge a particularly high degree of knowledge. See, e.g., Twelve John Does v. District of Columbia, 117 F.3d 571, 576 (D.C.Cir.1997) (finding that "the district court's experience overseeing the case for nearly two decades" had given it "a unique familiarity with the issues and the performance of class counsel"). The Marisol case is related to two child welfare institutional reform cases, Jesse E. v. New York City Dep't of Soc. Servs., No. 90 Civ. 7274(RJW), and Wilder v. Bernstein, No. 78 Civ. 957(RJW), over which Judge Ward presided for nearly ten and twenty years, respectively. Judge Ward's two decades of experience in matters regarding New York City's child welfare system make him uniquely qualified to determine the reasonableness of the settlement achieved.
On appeal, the Joel A. objectors argue that (1) there is no evidence in the record of any structural precautions implemented to assure adequate representation of the interests of the three subclasses during settlement negotiations, (2) the covenants not to sue and releases contained in the agreements are given in exchange for illusory consideration, and (3) the covenants not to sue and releases are overbroad and oppressive, and violate the due process rights of absent class members. We consider each argument in turn.

I. Adequate Representation of Subclasses During Settlement Negotiations
Appellants contend that, although the district court created subclasses, it failed to ensure that the different interests of each subclass were adequately represented during settlement negotiations, and failed to implement structural precautions toward that end. We reject these contentions.
Relying on Amchem Products, Inc. v. Windsor, 521 U.S. 591, 627, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), appellants insist that the district court abused its discretion when it approved the settlements without complying with what appellants characterize as a requirement of "structural assurance of fair and adequate representation" of the subclasses. Amchem is inapposite to this case.
In Amchem, plaintiffs, exposed to the asbestos of one manufacturer, instituted a class action for a single class after a settlement had been agreed to in principle. The parties moved jointly for conditional class certification and approval of a settlement agreement. See id. at 601-02, 117 S.Ct. 2231. The district court granted the motion without any litigation. See id. at 605-06, 117 S.Ct. 2231. The Supreme Court held that, in those circumstances, there should be a higher level of scrutiny of whether Rule 23's requirements were met, because "a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold." Id. at 620, 117 S.Ct. 2231. In this case, by contrast, the class was certified and the case intensively litigated for more than two years before settlement negotiations began.
Moreover, the Amchem class presented an obvious conflict between those currently injured and those who had yet to suffer injury, but would in the future. See id. at 626, 117 S.Ct. 2231. No such obvious conflict is present in 140 this case. In fact, *140 when we approved the certification of the class in Marisol II, we specifically rejected defendants' contention that the interests of part of the class, children in the system's custody, were opposed to the interests of those children who were not in custody. We observed that with respect to the broad relief sought0907dramatic improvement in the quality of all child welfare services 0907"the interests of the class members are identical." Marisol II, 126 F.3d at 378. Without the sort of conflicting goals among the subclasses that would require separate representation, we find nothing in Amchem that requires a district court to make specific findings, when approving a settlement, that each subclass received adequate representation.
To the extent the Joel A. objectors are now contending that their representation by Marisol subclass three, of which they concede they are a part, was inadequate, that argument is untimely. Whatever perceived differences they had with the other subclass members were apparent when the subclasses were certified, just as it was clear that they were to be represented for all purposes, including settlement purposes, by the Marisol subclass three plaintiffs. If the Joel A. objectors wished to dispute the adequacy of the representation of their subclass, they should have done so when the subclasses were certified. To the extent that appellants' argument is a belated objection to class certification on the basis of adequacy of representation, the argument is waived.
We therefore decline to find that the district court inadequately responded to our earlier concern that the original certified class "stretche[d] the notions of commonality and typicality," id. at 377, when it certified the three subclasses, one of which included the Joel A. objectors.
II. The Relief Obtained for the Marisol Class Members
Appellants contend that the relief obtained in exchange for the release of claims was "illusory" because the City is only required to provide information to the Advisory Panel, which, in turn, "is not required, in any enforceable sense, to do anything with the information it receives" and has no authority to compel the defendants to act. Appellants assert that the district court should have "(1)identified the legal rights being violated by the City defendants, (2) ordered the City defendants to devise a program to cure these violations, (3) made such modifications to the plan as the Court deemed necessary . . . and (4) ordered compliance with the plan as modified." Appellants also claim, without much elaboration, that the State Settlement "fails to provide any direct, concrete, or reasonably certain relief" to class members. There is no merit to these arguments.

The district court explicitly found none of the relief provided for by the settlement agreements to be illusory. See Marisol V, 185 F.R.D. at 168-70. Judge Ward observed that "the City Settlement Agreement provides for a panel of nationally respected and renowned child welfare experts to comprehensively evaluate the operations of ACS," and that the Panel "has been given full access to information, documents, and personnel of ACS." Id. at 169. In response to the objectors' concerns about a lack of definitive dates for the Panel to issue its reports, the district court found that the Panel "has a time frame during which to complete its tasks . . . . Given the expertise of the Advisory Panel, the Court is not concerned that specific dates for the Reports are not included." Id. The district court further found that the State Settlement Agreement provided for "specific actions to be taken by the State, including establishing NYCRO and monitoring functions which benefit children in the care and custody of ACS." Id.
Finally, in discussing remedies, the district court observed that the City had been working to reform its child welfare system and had achieved certain improvements. It noted that although plaintiffs might have been able to 141 establish liability at trial, *141 "the Court may not have been in a position to provide for more relief than simply encouraging continued effort and improvement by ACS." Id. at 164. The district court concluded that:
With the beneficial terms of the Agreements and safeguards in place should the City or State fail to comply, the Court believes that these voluntary Settlement Agreements are more favorable than any remedy that could have been imposed by the Court at the end of a trial.
Id. at 165.
The district court did not abuse its discretion in finding that the Agreements provided tangible and valuable relief to class members, including the Joel A. objectors. While there are no guarantees that all class members will be satisfied by the reform that results from the Settlement Agreements, there is no evidence at this point that the Advisory Panel is ineffective or has not received the cooperation of the City and State defendants, nor is there any indication that any alleged weaknesses in the settlement terms would have a more adverse impact on the Joel A. objectors than on the entire class. Whether litigation will have to be resumed after the two-year hiatus imposed by the settlement agreements remains to be seen; in the meantime, appellants have not convinced us that Judge Ward, with his substantial expertise in overseeing litigation affecting the City's child welfare system, acted unwisely, much less abused his discretion, when he approved the Settlement Agreements as a fair exchange between the parties.
III. Covenants Not to Sue and Releases
Appellants argue that the covenants not to sue and the releases contained in the settlement agreements are overbroad and violate the due process rights of absent class members. They claim that (1) the restriction on their rights to seek relief for injuries during the duration of the agreements is impermissible, (2) the covenants and releases improperly restrict the rights of certain class members to pursue legal claims that the class representatives lacked standing to bring, and (3) the provisions that allow actions by individuals are inadequate. We do not think that, on the facts of this case, these concerns warrant invalidation of the settlement.
A. Restrictions on the Right to Seek Systemic Injunctive Relief
Paragraph 48 of the City Settlement Agreement provides:
Effective upon the expiration of the term of this Agreement on December 15, 2000, Plaintiffs . . . hereby jointly and severally release and forever discharge, on the merits and with prejudice, the City . . . of and from any and all manner of equitable claims, actions, costs, expenses and attorneys' and expert fees . . . whether known or unknown, foreseen or unforeseen, matured or unmatured, accrued or not accrued, direct or indirect, that the named Plaintiffs and the members of the class, and each of them, ever had, has or have on December 15, 2000, or can, shall or may thereafter have against the releasees . . . for, by reason of, involving, concerning, arising from or in any way relating to any equitable claim which is or could have been stated against the

releasees in the Marisol Litigation . . . and which claim is based on facts, events, actions or omissions by the City or any releasee which took place from the date of Court approval of this Agreement to December 15, 2000, other than a claim by an individual plaintiff for equitable relief tailored solely to the specific circumstances of that individual plaintiff.

Paragraph 41 of the State Settlement Agreement also provides:

All class-wide or systemic claims arising from new facts and/or circumstances that occur during

142

the duration of this Agreement and which relate in any way *142 to any claim raised in the Pre-

Trial Order are resolved by this Agreement, except that this Agreement shall not preclude any

individual class member from filing an action on their own behalf. . . .

We reject appellants' argument that these releases and covenants not to sue deny them due process. When viewed in the context of the entire settlement, the release is extremely limited in scope. Designed to "permit[] the parties and the Advisory Panel to focus upon and achieve the objectives of th[e] Agreement," City Agreement ¶ 42(a), the sole effect of the release is to prohibit, until December 16, 2000, class action suits asserting equitable claims that are related to the claims asserted by the Marisol class and seek systemic relief. The release explicitly preserves the right of "an individual plaintiff [to sue] for damages or equitable relief tailored solely to the specific circumstances of that individual plaintiff." Moreover, after December 15, not only are all plaintiffs 0907including, of course, the Joel A. plaintiffs0907free to pursue a class action for systemic relief of any outstanding violations, but in support of such an action they may rely upon evidence pre-dating December 15. As the Joel A. plaintiffs seek only prospective rather than remedial relief, the practical effect of the limited release is the same as if the settlement had merely stayed the Joel A. action for a reasonably brief period in order to allow an attempt to achieve an administrative solution that would moot the Joel A. and Marisol claims.

In substance, then, the Joel A. class members are not being barred from the courthouse door; they are simply being told that, with respect to claims in equity they may have that relate to the claims raised in the Pre-Trial Order in the Marisol litigation, they have to come one at a time 0907and seek no system-wide relief 0907 before December 16, 2000, whereupon they may return as a class, if need be, to remediate ongoing systemic deficiencies. The limited release effectively delays the Marisol and Joel A. suits until December 16, 2000, at which point defendants will have had a reasonable opportunity to effect the desired reforms. Thereafter, plaintiffs are free to re-initiate their actions and to request relief identical to what they seek in this suit. Moreover, if plaintiffs choose to re-file after December 15, discovery will be greatly facilitated because much, if not all, of the relevant documentation will have been collected and turned over to the Advisory Panel. Viewing the settlement as a whole, then, we conclude that the limited release and covenants not to sue at issue here do not contravene public policy or materially deprive the Joel A. plaintiffs of their claims. Accordingly, we find that the Joel A. plaintiffs have not been denied due process in this regard.

B. Standing to Assert Joel A. Claims

Appellants' second argument is that the Marisol plaintiffs had no authority to settle claims belonging to the Joel A. class, which they lacked standing to assert. Specifically, appellants claim that the Marisol plaintiffs had no stake in claims concerning bias-related violence, abuse and harassment or systemic discrimination based on sexual orientation. But the remedy anticipated by both Settlement Agreements, while broader than the particular relief sought by the Joel A. class, is likely to deal with these complaints, as they are a subset of a larger claim of systemic inadequacies. While the claims related to bias and discrimination on the basis of sexual orientation are not shared by all of Marisol subclass three, our precedents do not dictate that the settlement be invalidated because these claims are subsumed within a more generalized claim.
Plaintiffs cite National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9, 16 (2d Cir.1981), for the proposition that class representatives cannot bargain away rights belonging to class members in which they have 143 no stake. We do not find Super Spuds to be controlling *143 on the facts presented here. In Super Spuds, plaintiffs brought a class action on behalf of all persons who liquidated long positions in Maine potato futures contracts between April 13 and May 7, 1976, during which time prices had been depressed by defendants' wrongful conduct. See id. at 11. The proposed settlement agreement in Super Spuds not only barred class

members from bringing claims based on the liquidated contracts, but also barred all other claims by class members against the defendants, including claims based on contracts unliquidated at the close of trading on May 7. See id. at 14. In return, class members were to receive damages calculated solely on the contracts liquidated during the class period. See id. Richards, a class member who held contracts liquidated during the class period as well as contracts only liquidated after May 7, objected. We held that there was "no justification for requiring Richards or persons similarly situated to release claims based on unliquidated contracts as part of a settlement in which payments to class members are to be determined solely on the basis of the contracts they liquidated." Id. at 18.
Two primary characteristics distinguish Super Spuds from the present action: (1) a finite settlement fund that was to be allocated among class members, and (2) claims of certain class members (unliquidated contracts as of May 7) that were valued at zero in order to provide a higher payment to claims of other class members (contracts liquidated between April 13 and May 7). In that case it was clear that the settlement provided absolutely no benefit to class members who held unliquidated contracts as of May 7. There is no such clear divide between the members of Marisol subclass three and the Joel A. objectors. This is not a case presenting "the danger that a class representative not sharing common interests with other class members would `endeavor[] to obtain a better settlement by sacrificing the claims of others at no cost to themselves.'" TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 462 (2d Cir.1982) (quoting Super Spuds, 660 F.2d at 19 n. 10). In view of the important system-wide attempt to reform New York City's foster care system, it cannot be said that the settlement provides no benefit to the Joel A. class members, as they are in need of the same improved services, better training and closer monitoring as the other foster children. We find it therefore inaccurate to claim that the settlement was paid for with the "uncompensated sacrifice" of the Joel A. claims. Super Spuds, 660 F.2d at 19.
Furthermore, in light of the limited scope of the release in this matter, the Joel A. plaintiffs' reliance on our decisions in TBK Partners and Super Spuds is misplaced. In those cases, class plaintiffs objected to far broader, permanent releases of all their claims. As explained supra at 142, under the settlement in the instant matter, plaintiffs need only forego class actions seeking systemic relief, and then only for a relatively brief time. In these circumstances, it is immaterial whether the Joel A. claims "rest[] on the same factual predicate as" the Marisol claims. TBK Partners, 675 F.2d at 462.
Finally, to the extent that appellants now claim that the Marisol plaintiffs had no right to restrict the Joel A. objectors' ability to press claims that no class representative could have brought, we reject the argument as an untimely attack on the adequacy of the plaintiff subclasses. This claim was waived long ago; as we have explained supra at 136-37, appellants had ample opportunity to challenge the subclasses fashioned by the district court, but failed to do so.
C. Individual Rights of Action
Finally, appellants argue that the provisions allowing individual plaintiffs to bring actions for damages or injunctive relief are inadequate because they lack the resources to retain counsel and prosecute complex actions. We do 144 not accept the *144 objectors' assertion that they cannot achieve the relief they seek by bringing individual actions where necessary, and by waiting to benefit from systemic reform. These provisions afford an individual recourse to the courts if his or her circumstances demand it, and apply equally to all foster children. Appellants have put forth no reason why this bargained-for exchange was any less adequate for Joel A. class members than for any other foster children.
CONCLUSION
The City Settlement Agreement and State Settlement Agreement were negotiated by experienced public interest counsel and are the product of several years of discovery and months of negotiation. Together, they attempt to find the beginnings of a solution to the persistent inadequacies of New York City's foster care system alleged in plaintiffs' complaint. The City and State defendants recognize that reforms are necessary, and have exhibited a willingness to achieve them. It is possible that they may fall somewhat short of their stated goals of transparency and cooperation; however, a settlement agreement achieved through good-faith, non-collusive negotiation does

not have to be perfect, just reasonable, adequate and fair. The Agreements were reviewed in detail by a district judge steeped in child welfare litigation and possessed of great experience in such matters. He found that the covenants and releases, which effectively create a moratorium on class action equitable suits for two years while the parties attempt to reform the child welfare system, are not oppressive, and represent a fair compromise when balanced against the gains to the class members from systemic reform facilitated by the Agreements. We agree.
The district court acted within its discretion when it approved the City and State Settlement Agreements. The decision of the district court is affirmed.
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 Marisol A. by Forbes v. Giuliani, 520 U.S. 1211 (1997)
117 S.Ct. 1694 Supreme Court of the United States MARISOL A., by Her Next Friend, James Alexander FORBES, Jr., et al., petitioners,
v. Rudolph W. GIULIANI, Mayor of New York City,
et al. No. 96-1424. | May 12, 1997. Case below, 104 F.3d 524.

Opinion *1694 Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied.
Parallel Citations 117 S.Ct. 1694 (Mem), 137 L.Ed.2d 821, 65 USLW 3748, 65 USLW 3753
	  

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