Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 1 of 34 PageID #: 1

#,.~

THE LEGAL AID SOCIETY, JUVENILE RIGHTS PRACTICE 199 Water Street New York, New York 10038 Telephone: (212)-577-3300 Fax: (212)-557-3520

.. fJ1:iB S·y
u.•. d~.Q
* MAYU 20tO *
BROOKLYN OFFIce

PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000 Fax: (212) 336-2222
Attorneys for Plaintiffs and Proposed Class

COGAN',J.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
~~,-;~i~;r~b;~;r-~e~;ilie~d-~~~~bl~;;----CVf " •

M.M., a minor, by his next friend Cynthia Godsoe;

"O'Jv. __

and S.M., a minor, by his next friend Kinda Serafi;

on behalf of themselves and all others similarly

situated,

CLASS ACTION

COMPLAINT

Plaintiffs,

~l SI'

vs.

JOHN B. MATTINGLY, in his official capacity as Commissioner of the New York City Administration for Children's Services,

Defendant. - - - - -- - - - - - - - - - - - - - -- - - -- - - - - - - - -- - - X

Plaintiffs A.M., M.M., and S.M. ("Plaintiffs"), by and through their attorneys, the Legal Aid Society and Patterson Belknap Webb & Tyler LLP, for their complaint against Defendant John Mattingly, in his official capacity as Commissioner of the New York City Administration for Children's Services ("ACS"), hereby allege as follows:

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 2 of 34 PageID #: 2
PRELIMINARY STATEMENT I. This case involves children in the custody of ACS who are in New Yark City's foster care system and who have been or will be brought to psychiatric hospitals for emergency admission, and are kept confined in these hospitals for prolonged periods of time, even after the hospitals find them ready for discharge. 2. Plaintiffs and members of the proposed class ("Proposed class members") are children in foster care under eighteen years old who are or will be in the New York City foster care system, which is controlled and administered by the Defendant. Plaintiffs and the vast majority of Proposed class members were placed in the custody of ACS by New Yark City Family Court judges. ACS has custody of these children and is legally responsible for the care, housing, education, and other needs of Plaintiffs. While ACS delegates the Plaintiffs' day-to-day care to various contracted foster care agencies, ACS remains ultimately responsible under the law for these children's welfare. Among numerous other obligations, ACS is required to place Plaintiffs in the "least restrictive" and "most homelike" environment suitable to their needs, and must provide them with medical and mental health care that is appropriate to their needs. 3. While under the care of ACS and its contract foster care agencies, children in foster care and Proposed class members have been and continue to be brought to acute care psychiatric hospitals and are kept hospitalized in this highly-restrictive setting past the time when the hospitals find them ready for discharge to a less-restrictive setting. For some of these children, there was or is no legitimate need for them to be in a hospital at all, as they lack mental health needs of the requisite severity or have behavior problems more properly managed by other means. 4. On information and belief, ACS and some of its contract agencies are using certain psychiatric hospitals as if they are detention centers, to house children whose
2

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 3 of 34 PageID #: 3
behavior they see as difficult to control. For instance, some Proposed class members were brought to psychiatric hospitals for admission by their contract foster care agencies, not for symptoms of serious mental illness and instability requiring immediate hospitalization, but rather, as a result of behavior or disciplinary issues occurring in their foster home or congregate care placements where they were housed, such as breaking curfew, running away or being "absent without leave," or even mere "failure to adjust" to a group home setting.
5. Despite being perceived as "difficult" children or even having real mental health needs, many ofthe Plaintiffs and Proposed class members do not have mental illness and instability so severe that it requires the drastic step of confinement in a psychiatric hospital and the extreme deprivation ofliberty such confinement entails.
6. Following ACS's or its agents' application for admission of Plaintiffs to psychiatric hospitals, Plaintiffs have each languished in a hospital for weeks or months, even after hospital staff themselves declared Plaintiffs ready for discharge, because ACS has not provided them with a placement in a less restrictive setting as required by law.
7. Indeed, despite the fact that ACS could provide Plaintiffs and Proposed class members with housing and care in its Manhattan-based "Children's Center" if ACS has not found an appropriate less-restrictive placement by the time the children are found ready for discharge from the hospital, ACS has an ongoing practice of refusing to permit children to be discharged from psychiatric hospitals to its Children's Center. As a consequence of ACS's refusal to find Plaintiffs a place to live, and because they are children in foster care who cannot go home to their parents, they simply have nowhere to go and remain confined in psychiatric hospitals even after the hospitals themselves have confirmed that there is no medical reason for them to be there.
3

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 4 of 34 PageID #: 4
8. Far from placing them in the "least restrictive environment" as required by law, ACS has subjected these children, without justification, to the most restrictive environment conceivable - an acute care psychiatric hospital, not designed for long-term living. Because of ACS's refusal to place Plaintiffs in the less restrictive settings that they require, their confinement is ongoing, despite the pleas of Plaintiffs, their family members, their attorneys, and even officials in the psychiatric hospitals that house them.
9. During Plaintiffs' extended confinement in these psychiatric hospitals, they have been and continue to be subject to extreme deprivations of their liberty. While hospitalized, Plaintiffs and Proposed class members are rarely permitted to leave the hospital even temporarily. The children's movement is restricted, they are regularly administered psychotropic medications, and some children are also physically restrained. Their daily activities are seriously limited. They are removed from school and given little or no academic instruction in the hospitals. Their contact with family members and visitors is severely curtailed. In short, every day that it continues, Plaintiffs' extended, wrongful confinement in these institutions is causing them irreparable damage.
10. Regardless of the knowledge that these hospital admissions are acute in nature and should last only long enough to treat and stabilize an unstable child, ACS and its contract agencies often prolong Plaintiffs' stays in hospitals by waiting until the hospitals determine that a child in foster care is ready for discharge before beginning their exploration of a less restrictive foster care placement.
11. ACS's wrongful, prolonged confinement of the Plaintiff children in psychiatric hospitals violates the Americans with Disabilities Act (the "ADA"), the Rehabilitation Act, numerous provisions of the New York Social Services Law and its
4

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 5 of 34 PageID #: 5

implementing regulations, and the Due Process clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution.
12. Plaintiffs seek immediate release from their wrongful confinement in acute care psychiatric hospitals and immediate transfer to appropriate foster care placements as required by law. On information and belief, the wrongful, extended confinement of children in foster care in these psychiatric hospitals is a systemic problem affecting numerous children in foster care in addition to the named Plaintiffs.' Therefore, Plaintiffs also seek class treatment and prospective relief to prevent ACS and its contract agencies from continuing their illegal pattern and practice of "dumping" children in foster care in psychiatric hospitals and refusing to let them out.

PARTIES

Plaintiffs

13. Each of the Plaintiffs is a New York City child in foster care, in the

custody and care of ACS.

Defendant 14. Defendant John B. Mattingly is the Commissioner of ACS and is sued in

his official capacity. ACS is responsible for providing services to children in New York City

who are the subjects of abuse or neglect allegations or deemed "persons in need of supervision,"

or who are destitute. These services include protective services, preventive services, and foster

care placement services.

5

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 6 of 34 PageID #: 6

A.M.

INDIVIDUAL PLAINTIFFS' FACTS

15. A.M. is a nine year-old resident of New York City, who suffers from mild

mental retardation. She is currently hospitalized at Holliswood Hospital in Queens, New York.

16. On September 6, 2007, a New York County Family Court judge placed

A.M. in the care of the Defendant. The court made neglect and abuse findings against A.M.'s

mother. Since being placed in the care of ACS, A.M. has been in numerous foster care

placements.

17. A.M. has been hospitalized before. The most recent hospitalization, prior

to her current hospitalization, occurred on May 8, 2009. A.M. was hospitalized at St. Vincent's

Hospital due to suicidal ideations related to her separation from her biological mother.

18. Prior to being hospitalized at St. Vincent's Hospital, A.M. had regular

visits with her biological mother at ACS's contract foster care agency Heartshare Human

Services (Heartshare).

19. Prior to being hospitalized at St. Vincent's Hospital, A.M. was receiving

in-home mental health services through the Bridges to Health program. Her services included

bi-weekly in-home behavior services as well as weekly individual talk therapy.

20. Prior to being hospitalized at St. Vincent's Hospital, A.M. was designated

as a child in need of special education services. Her Individualized Education Plan required that

she receive counseling and speech/language therapy in connection with her schooling.

21. While at St. Vincent's Hospital, A.M. did not have any visitation with her

biological mother because the agency would not escort her mother to St. Vincent's Hospital.

The escort was necessary because the judge presiding over A.M.'s Family Court case previously

ordered the Heartshare caseworker to supervise all visits closely. At no time did ACS or

6

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 7 of 34 PageID #: 7
Heartshare seek modification of that order so that A.M. would be able to see her mother. This relief was sought by A.M.'s attorney in Family Court.
22. While at St. Vincent's Hospital, AM. did not receive either behavior therapy or talk therapy.
23. While at St. Vincent's Hospital, AM. did not receive either educational counseling or speech/language therapy. In fact, while hospitalized, AM. received only limited schooling.
24. A.M.'s diagnoses included Disruptive Behavior Disorder NOS ("not otherwise specified") and Attention Deficit Hyperactive Disorder NOS. While at St. Vincent's, A.M. stabilized on medication, and the hospital declared her ready for discharge by mid-August 2009, with a discharge recommendation for a therapeutic foster boarding home.
25. Nonetheless, ACS and Heartshare kept AM. confined at St. Vincent's Hospital throughout August and September 2009, while they searched for a therapeutic foster boarding home. AM.'s doctor was concerned that AM. would de-compensate mentally if she were to be confined to the hospital too long, as she risked becoming an institutionalized child who could lose her ability to live in a family and/or the community.
26. After A.M.'s attorney filed a motion in Family Court to get A.M. released from the hospital, ACS located a therapeutic foster boarding home with ACS's contract foster care agency CFHS for Hispanic Families (CFHS).
27. While in her new therapeutic foster boarding home from November 2009 to March 2010, AM. did not receive essential behavioral and talk therapy services through Bridges to Health or any other similar program.
7

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 8 of 34 PageID #: 8
28. While in this foster home, A.M. was re-evaluated for special educational servIces. After the evaluations, A.M. was placed in a class with reduced class size and increased adult supervision. She also received counseling in school twice per week.
29. While in this foster home, A.M. resumed visits with her biological mother, which occurred bi-weekly.
30. After a tussle in her foster home between A.M. and the daughter of her foster mother, during which A.M. suffered a black eye, A.M. became verbally aggressive and was hospitalized on March 29, 2010, at Holliswood Hospital. A.M. was declared ready for discharge soon after, so long as ACS provided a therapeutic foster boarding home where A.M. could receive community-based mental health services via the Bridges to Health program.
31. On information and belief, neither ACS nor CFHS sought a communitybased mental health evaluation or other services for A.M. prior to bringing her to Holliswood Hospital for admission in March 2010.
32. On at least one occasion, Holliswood Hospital staff have chemically restrained A.M. by injecting her with Zydis, an anti-psychotic medication, to tranquilize her.
33. Since being hospitalized, A.M. has not received educational services to which she is entitled.
34. Since being hospitalized, A.M. has not had consistent visits with her biological mother. She has not had any visits with her two brothers, who are also in foster care in the care of Defendant.
35. To date, neither Defendant nor ACS's agent CFHS has identified a foster home to which to move A.M. out of the acute hospital to a less-restrictive setting.
8

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 9 of 34 PageID #: 9
36. A.M. has remained in the hospital for more than a month after she was found ready for discharge to a less-restrictive setting.
M.M.
37. M.M. is a thirteen-year-old resident of New York City. He is currently hospitalized at South Oaks Hospital in Amityville. New York.
38. On December 14.2009. a Kings County Family Court judge placed M.M. in the care of the Defendant based on allegations against his mother. M.M. was placed in foster care. in the care of ACS' s contract agency Little Flower Children and Family Services (Little Flower).
39. Prior to his current hospitalization. M.M. was having regular visits with his family members.
40. Prior to his current hospitalization. M.M. was in school in a general education program in the New York City school system.
41. Prior to his current hospitalization. M.M. was placed in several foster boarding homes before a one-day acute psychiatric stay in Brookdale Hospital for observation in early January, 2010. The hospital recommended that M.M. be discharged to a therapeutic foster boarding home.
42. Brookdale Hospital could not keep M.M .• who was transferred to St. Vincent's Hospital in New York City to remain near his family. M.M. 's mother did not consent for M.M. to remain in the hospital, as his needs could be met in the community.
43. M.M. was discharged from St. Vincent's Hospital on January 6, 2010, to a therapeutic foster boarding home in Long Island, New York. a significant distance from his
9

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 10 of 34 PageID #: 10
family. M.M. remained in this home for a few days and then was admitted to Stony Brook Hospital in Suffolk County, New York.
44. After an incident in his foster home, M.M.'s foster mother contacted the Suffolk County police who brought M.M. to Stony Brook Hospital seeking admission on January 10,2010.
45. M.M. was transferred from Stony Brook Hospital to South Oaks Hospital on January 11,2010, where M.M. was diagnosed with Mood Disorder NOS but was not placed on any medication. M.M. was found ready for discharge on January 26, 2010, with a recommendation that he be placed in a therapeutic foster boarding home and a statement from the doctor that M.M. could b~ adequately treated on an outpatient basis.
46. Until early May 20 I 0, neither ACS nor Little Flower had found a foster home for M.M., nor had they made efforts to transfer M.M. to a New York City hospital so that he could be closer to his family.
47. Since being hospitalized at South Oaks, M.M. has not been able to have regular visits with his mother, stepfather or siblings due to the distance between their home and jobs and South Oaks Hospital.
48. At the hospital, M.M. is allowed to attend school for only two hours per day, where he is mostly given worksheets and puzzles.
49. Since being hospitalized at South Oaks M.M. has been chemically restrained on approximately two occasions by hospital staff who used injectable medication to tranquilize him. Shortly after each injection, M.M. fell asleep.
50. Given his negative experiences at home and in foster care, M.M. expressed uncertainty about leaving the hospital. Since being hospitalized, neither a social
10

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 11 of 34 PageID #: 11
worker nor a therapist from ACS or Little Flower has met regularly with M.M. to help him with his ambivalence about leaving the hospital setting.
51. Little Flower botched an effort to match M.M. with a therapeutic foster home. The agency sent a prospective foster mother to the hospital to meet M.M., but the agency sent her on her own, without facilitation on the Defendant's or Little Flower's part to assist with this possible transition. This foster parent rejected the idea of having M.M. in her home.
52. Little Flower waited until on or about March 18, 20 I0, to acknowledge that it did not have a placement for M.M., at which point the agency informed the Defendant of the need to search outside Little Flower for a therapeutic foster boarding home.
53. To date, neither ACS nor Little Flower is ready to move M.M. into a therapeutic home. Defendant belatedly asked another contract agency, Mercy First, to locate a foster home for M.M.. On information and belief, Mercy First in early May 20 I0 offered to locate a foster home for M.M., and has now identified a possibility, but has not yet moved M.M. out of the hospital..
54. M.M. has remained in the hospital for more than three months after he was found ready for discharge to a less restrictive setting. S.M.
55. Plaintiff S.M. is a six-year-old resident of New York City. He is currently hospitalized at Four Winds Hospital in Katonah, New York.
56. On April 24, 2009, a New York County Family Court judge approved the voluntary placement of S.M. into the care of the Defendant by his guardian. S.M. is placed with ACS in foster care with ACS's contract agency SCO Family of Services (SCO).
11

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 12 of 34 PageID #: 12
57. S.M. was hospitalized for only several days on two occasions prior to being placed in ACS's care. Since being placed in the Defendant's care, S.M. has been placed in two different therapeutic foster boarding homes. His first placement lasted only four months.
58. Since starting kindergarten in a New York City Department of Education (DOE) school, S.M. was designated a child in need of special education services, and he currently has an Individualized Education Plan (IEP). The special education services on his IEP include being placed in a reduced class size and receiving individual and group therapy.
59. After misbehavior in his foster home, S.M. was psychiatrically hospitalized on January 5, 2010, at Four Winds Hospital. S.M. was stabilized at Four Winds Hospital and has been ready for discharge since on or about April 2, 20 IO.
60. Since being hospitalized, S.M. has not received any special education servIces. In fact, while at Four Winds Hospital, S.M. only attends school for one hour and fifteen minutes per day. On information and belief, ACS has not provided the hospital with a copy ofS.M.'s IEP.
61. Since being hospitalized four months ago, S.M. has only been visited approximately two times by a staff member of SCO, the foster care agency responsible for his care.
62. Four Winds Hospital recommends that S.M. be discharged to a therapeutic foster boarding home or a family-based treatment home through the Office of Mental Health.
63. Until May 6, 2010, SCO had not provided Four Winds Hospital with any information about a possible therapeutic foster homes for S.M ..
12

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 13 of 34 PageID #: 13
64. For several months after S.M. was hospitalized - until late April, 2010Defendant had not completed the application to the State Office of Mental Health which is required to obtain a family-based treatment home for S.M ..
65. S.M. has remained in the hospital for more than five weeks after he was found ready for discharge to a less restrictive setting.
FACTS COMMON TO THE PROPOSED PLAINTIFF CLASS 66. The Proposed plaintiff class members include all children under 18 years old who are or will be in foster care in the custody of ACS, and who have been or will be brought to an acute care psychiatric hospital for admission by ACS or one of its contract agencies. 67. Plaintiffs' experiences of being hospitalized unnecessarily because Defendant has failed to provide them with a less restrictive foster care setting are not unique. They are part of a system-wide practice by Defendant. 68. As of February 2010, more than 16,040 children, ranging in age from birth until 21, are in foster care in the care of the Defendant. 69. According to a recent study by Children's Rights, Inc., 14% ofa sample of children in the Defendant's care were admitted to a psychiatric hospital in a one-year period. 70. Defendant and ACS's contract foster care agencies do not use the means at their disposal to find less restrictive placements for children including the Plaintiffs and Proposed class members, who as a result languish in acute psychiatric hospitals for long periods oftime. 71. One un-used resource available to Defendant, when ACS has failed to find less restrictive foster care placements once children are ready for discharge from psychiatric
13

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 14 of 34 PageID #: 14
hospitals, is ACS's own "Children's Center" in New York, New York. Despite the fact that ACS could provide Plaintiffs and Proposed class members with housing and care in its the Children's Center, ACS has an ongoing practice of refusing to permit children to be discharged from psychiatric hospitals to its Children's Center.
72. On information and belief, ACS and some of its contract agencies also use certain psychiatric hospitals as if they are detention centers, to house children whose behavior the agencies see as difficult to control. For instance, some Proposed class members are brought to psychiatric hospitals for admission by their contract foster care agencies, not for symptoms of serious mental illness and instability requiring immediate hospitalization, but rather, as a result of behavior or disciplinary issues occurring in their foster home or congregate care placements where they were housed, such as breaking curfew, running away or being "absent without leave," or even mere "failure to adjust" to a group home setting.
73. Staff from certain contract foster care agencies confirm that the agencies have "special relationships" with certain psychiatric hospitals, permitting them to bring for admission and house "difficult" children in those hospitals with few questions asked. In fact, several children in foster care have been taken by their foster care agencies to multiple psychiatric hospitals in turn, each of which rejected the child as not being in need of psychiatric hospitalization, before ultimately being brought to a psychiatric hospital with which the contract agency had a "special relationship."
74. Common questions oflaw and fact predominate among the Proposed class members, in that Defendant is legally required to provide appropriate care to all of these children, and to provide it in the least restrictive, most integrated setting. The Plaintiffs' and
14

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 15 of 34 PageID #: 15
Proposed class members' injuries all derive from Defendant's course of conduct in violation of Defendant's legal duties.
75. The claims of the Plaintiffs are typical of those of the Proposed class members. Each Plaintiff has been, and each Proposed class member has been or may be, wrongfully kept in a psychiatric hospital by ACS in violation of federal and state laws.
76. The Plaintiffs will fairly and adequately protect the interests of the Proposed class, in that Plaintiffs' interests are not antagonistic to those of the Class members, and Plaintiffs' counsel are qualified, experienced, and able to conduct this litigation.
77. The result of Defendant's failures to plan and to provide appropriate less restrictive settings is that many children in Defendant's care are and continue to be hospitalized unnecessarily and suffer severe harm.
JURISDICTION AND VENUE 78. This court has jurisdiction pursuant to 28 U.S.C. §§ l331 and 1337. 79. Venue in this judicial district is proper under 28 U.S.c. § 1391(b)(l) because Defendant maintains offices in this district, and under 28 U.S.c. § 1391(b)(2) because a substantial part of the events complained of took place in this district.
FACTUAL BACKGROUND
80. Plaintiffs are children in foster care under the age of 18 residing in New York City. Their parents are deceased or otherwise unable to care for them. Plaintiffs are in the care of ACS, and most have been placed in the Defendant's care by judges of the New York State Family Court in New York City.
81. Foster care placements fall along a continuum from the least restrictive (the most "homelike") to the most restrictive (the least "homelike"). See 18 N.Y.C.R.R.
15

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 16 of 34 PageID #: 16
§ 430.11. On one end of the continuum, traditional foster boarding homes are considered the least restrictive foster care placements. Somewhat more restrictive are "therapeutic" foster boarding homes, which are maintained by specially trained foster parents for the benefit of children needing special care or services. Next most restrictive are "congregate care" placements such as group homes, which are structured settings housing a number of children in foster care together. Next come other congregate placements such as residential treatment centers, where children in foster care are subject to more intense supervision and treatment than in group homes, and then "residential treatment facilities," which are still more restrictive. While in foster care, some children are temporarily hospitalized when necessary, but such hospitalizations are not foster care placements.
82. Before being brought to acute psychiatric hospitals, Plaintiffs lived in various foster boarding homes, therapeutic foster homes, group homes, and/or residential treatment centers.
83. Plaintiffs and Proposed class members are brought to acute care psychiatric hospitals by or on the instructions of ACS's contract foster care agency personnel or foster parents.
84. For example, S.M. was brought to Four Winds Hospital on January 5, 2010, after misbehavior in his foster home.
85. During Plaintiffs' and Proposed class members' extended confinement in these psychiatric hospitals, they have been subject to extreme deprivations of their liberty.
86. Plaintiffs and Proposed class members are rarely permitted to leave the hospital even temporarily.
16

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 17 of 34 PageID #: 17
87. Many Plaintiffs and Proposed class members have been chemically and physically restrained and these children are regularly administered psychotropic medications.
88. Plaintiffs' and Proposed class members' daily activities are regimented in minute detail and their range of activities has been seriously limited.
89. Plaintiffs' and Proposed class members' contact with family members and visitors has been severely curtailed.
90. Plaintiffs and Proposed class members have been removed from school and given little or no academic instruction that could lead to school credit or a diploma. Those who are in need of special education and services have not received all of the needed services.
91. Plaintiffs and Proposed class members spend weeks and at times months in acute care psychiatric hospitals, awaiting appropriate less restrictive foster care placements. ACS and its contract agencies have a practice of waiting until a hospital specifically states that a child is ready for discharge before beginning to locate an appropriate least restrictive placement.
92. Attorneys and social workers who represent children in foster care must regularly argue with the Defendant and ACS's contract agencies to attempt to have their clients discharged to a less restrictive placement, even though the Defendant and ACS's contract agencies are aware the children are medically ready for discharge.
93. Attorneys for children in foster care have filed numerous motions before New York City Family Court judges seeking orders to have their clients released from acute psychiatric hospitals because Defendant has failed to move the children to less restrictive settings, even though the hospitals have informed the Defendant and ACS's contract agencies that the children are medically ready for discharge.
17

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 18 of 34 PageID #: 18
94. Despite the hospitals' medical decision that Plaintiffs are ready for discharge from confinement in psychiatric hospitals, ACS has refused to provide them with placement in a less restrictive setting as required by law.
95. For instance, despite Plaintiff A.M. 's being medically ready for discharge, Defendant has not provided her with a less restrictive placement for more than a month. Plaintiff M.M. has been ready for discharge for three months, yet Defendant has not provided him with a less restrictive placement. And although Four Winds Hospital notified ACS and its contract agency five weeks ago that S.M. should be discharged, ACS has not secured a less restrictive placement for him. As a result, all three Plaintiffs have languished in acute psychiatric hospitals after the hospital determined that there was no medical reason for them to be there.
96. As a consequence of ACS's refusal to place Plaintiffs in the less restrictive settings to which they are entitled, Plaintiffs simply have nowhere to go, and remain confined in acute psychiatric hospitals long after the hospitals have confirmed that there is no legitimate reason for them to be there.
97. ACS is capable of finding foster care placements for Plaintiffs in less restrictive settings than acute psychiatric hospitals, but has not done so.
98. Indeed, ACS could accommodate Plaintiffs in its Children's Center in Manhattan while arranging foster care placement, yet ACS has a practice of refusing to permit children to be discharged from psychiatric hospitals to the Children's Center.
99. In previous incidents where other children in foster care under ACS's care have been subject to prolonged unnecessary confinement in acute psychiatric hospitals, attorneys for these children have been required to seek judicial orders compelling the release of these children from the hospitals in order for ACS even to begin to seek a less restrictive setting.
18

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 19 of 34 PageID #: 19
100. On infonnation and belief, unless class treatment and prospective injunctive relief is awarded in this case, ACS will continue its illegal pattern and practice of requiring children in foster care to go to extraordinary lengths to seek their release from acute psychiatric hospitals and compel ACS to place them in the least restrictive setting as required by law.
STATUTORY AND REGULATORY FRAMEWORK ACS's Duties Under the New York State Social Services Law and Regulations
101. Under Title 6 of the New York Social Services Laws and its implementing regulations under Title 18 of the New York Code of Rules and Regulations, ACS has numerous non-delegable duties to care for and protect children in foster care in New York City.
102. ACS is responsible for the health and welfare of children in foster care in New York City. N.Y. Soc. Servo Law § 396.
103. ACS is required to place each foster child in "[tJhe most appropriate level ofplacement for each child," which "will always be considered to be the least restrictive and most homelike setting in which the child can be maintained safely and receive all services specified in his or her service plan." 18 N.Y.C.R.R. § 430.11 (emphasis added).
104. ACS must develop family service plans to meet the needs of children in foster care, including "identification of necessary and appropriate services and assistance to the child and members of the child's family." N.Y. Soc. Servo Law § 409-e.
105. Family assessment and service plans prepared when the child is moved from one foster care placement to another "must also include but are not limited to ... the type and level ofplacement; documentation that the placement has been assessed to be one that can safely provide for the individual needs ofthe foster child; and the reasons for selecting the
19

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 20 of 34 PageID #: 20
placement ifit is not the least restrictive environment." 18 N.Y.C.R.R. § 428.6 (emphasis added). In many instances, when a child in foster care has been hospitalized, a change in foster care placement follows.
106. ACS must "[p]rovide for expert mental and physical examination of any child whom he has reason to suspect of mental or physical disability or disease and pay for such examination from public funds, if necessary." N.Y. Soc. Servo Law § 398(6)(b).
107. ACS must provide "[p]sychiatric, psychological and other essential services ... appropriate to the needs of the children in care." 18 N.Y.C.R.R. § 441.15.
108. ACS is required to "take such steps as may be necessary to make certain that all children in care receive education appropriate to their needs and in accordance with the requirements of the Education Law [and] ... shall make certain that each child in its care receives appropriate educational and vocational guidance." 18 N.Y.C.R.R. § 441.13.
ACS's Duties Under the ADA and Rehabilitation Act 109. Title 11 of the Americans with Disabilities Act (the "ADA"). 42 U.S.C
§ 12131, bars public entities from excluding any qualified individual with a disability from participation in or the benefit of the services, programs or activities of the public entity on the basis of disability.
110. Under the ADA, an "individual with a disability" includes an individual who is "regarded as having... an impairment." 42 U.S.C. § 12102(1)(C).
III. Under Title II of the ADA, "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs ofqualified individuals with disabilities." 28 C.F.R. § 35.130(d) (emphasis added).
20

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 21 of 34 PageID #: 21
112. ACS is subject to the requirements ofthe ADA because it is a "public entity" as defined in the statute. See 42 U.S.c. § 12131.
113. Section S04 of the Rehabilitation Act of 1973 (the "Rehabilitation Act") also prohibits covered entities from discriminating against persons with disabilities in the provision of benefits, services, and or programs. Section S04 of the Rehabilitation Act, 29 U.S.C. § 794(a) states:
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 Pederal financial assistance or under any program or activity .... 114. Under the Rehabilitation Act, which incorporates by reference the definition of an "individual with a disability" in the ADA, an "individual with a disability" includes an individual who is "regarded as having ... an impairment." 29 U.S.C. 70S(20)(B); 42 U.S.C. § 12102(l)(C). liS. And, like the ADA, the Rehabilitation Act requires that "recipients [of
federal financial assistanceJ shall administer programs or activities in the most integrated
setting appropriate to the needs ofqualified handicapped persons." 28 C.P.R. § 41.S1 (d) (emphasis added).
116. ACS is subject to the Rehabilitation Act because it receives federal financial assistance.
117. Thus, ACS is prohibited from excluding individuals with disabilities from the participation in or the benefits of any of their programs, activities, and/or services pursuant to Title II of the ADA and Section S04 of the Rehabilitation Act. See 42 U.S.C § 12131; 29 U.S.C. § 794; see also 28 C.P.R. §§ 3S.130(a), 3S.130(b), 42.S03(a), 42.S03 (b)(l)-(2).
21

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 22 of 34 PageID #: 22
118. Furthermore, ACS is required under Title II of the ADA and Section 504 of the Rehabilitation Act to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d); see 28 C.F.R. § 41.51(d).
FIRST CAUSE OF ACTION Violation of Title II ofthe Americans with Disabilities Act 119. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.c. § 12132, bars public entities from discriminating against any qualified individual with a disability on the basis of disability and from excluding any qualified individual with a disability from "participation in or the benefits of the services, programs or activities of the public entity" on the basis of disability. 42 U.S.C. §§ 12131-12132. "[U]ndue institutionalization," "unjustified institutional isolation," and "unjustified segregation" constitute discrimination under the ADA. Olmsleadv. L.e., 527 U.S. 581, 597,600 (1999). 120. In addition, a public entity is required to "administer services. programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). Thus, it is a violation of TitIe II of the ADA for a public entity to fail to administer services, programs, or activities to qualified individuals with disabilities in the most integrated setting appropriate to their needs. 121. Furthermore, public entities may not exclude a qualified individual with a disability from participation in or the benefits of their services, programs or activities, whether "directly or through contractual, licensing, or other arrangements." 28 C.F.R. § 35. 130(b)(l); see also 28 C.F.R. § 35.130(b)(3).
22

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 23 of 34 PageID #: 23
122. ACS is a "public entity" within the meaning of the ADA. See 42 U.S.C.
§ 12131 (I); LaBella v. New York City Admin. for Children's Servs., 2005 WL 2077192, at *10
(E.D.N.Y. Mar. 28, 2005). 123. Plaintiffs and Proposed class members are each a "qualified individual"
within the meaning of the ADA, because they are qualified under New York State law to receive foster care placement and related services from ACS in the least restrictive environment suitable to their needs.
124. Plaintiffs and Proposed class members are each a "qualified individual with a disability" within the meaning of the ADA. Under the ADA, an "individual with a disability" includes an individual who is "regarded as having... an impairment." 42 U.S.C. § 12102(1)(C). Plaintiffs are undisputedly "regarded as having... an impainnent" by ACS, because ACS has brought them to psychiatric hospitals purportedly on the basis of having serious mental illness requiring psychiatric hospitalization.
125. Some Plaintiffs and Proposed class members are also "individual[s] with a disability" within the meaning of the ADA because they have actual impairments..
126. By wrongfully and unnecessarily bringing Plaintiffs and Proposed class members to the most restrictive environment conceivable - acute psychiatric hospitals - ACS has denied them "participation in or the benefits of' the less restrictive foster care placements to which they are entitled, on the basis of perceived or actual mental illness.
127. Furthennore, by wrongfully institutionalizing, segregating, and isolating Plaintiffs and Proposed class members in acute psychiatric hospitals, ACS has excluded them from the educational, social, familial, and other opportunities available to children in its care who are not disabled or regarded as being disabled by mental illness.
23

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 24 of 34 PageID #: 24
128. By wrongfully institutionalizing, segregating, and isolating Plaintiffs and Proposed class members in the least integrated setting conceivable - acute psychiatric hospitals _ ACS has utterly failed to provide Plaintiffs and Proposed class members the foster care programs and services to which they are entitled in the most integrated setting appropriate to their needs.
129. Defendant's wrongful institutionalization, segregation, and isolation of Plaintiffs and Proposed class members in psychiatric hospitals, thereby denying them access to the educational, social, familial, and other opportunities available to children in its care in the less restrictive settings services to which Plaintiffs and Proposed class members are entitled, violates 42 U.S.C. § 12132,28 C.F.R. § 3S.130(b)(I), 28 C.F.R. § 3S.130(b)(3), and 28 C.F.R. § 3S.130(d). This is a continuing violation.
130. Further, in wrongfully institutionalizing, segregating, and isolating named Plaintiffs, Defendant acted with deliberate indifference to their rights under the ADA.
131. ACS knew or had reason to know that such prolonged confinement in an acute psychiatric facility did not constitute placement in the most integrated setting and did not meet expert recommendations for these children's needs. Indeed, ACS has kept each of the Plaintiff children confined in an acute psychiatric hospital for weeks after the hospitals themselves declared them medically ready for discharge.
132. ACS also knew or had reason to know that, in subjecting the Plaintiffs to prolonged confinement in an acute psychiatric facility, it was denying them access to foster care services and community placements available to other foster care children, solely by reason of their disabilities or perceived disabilities.
133. A.M., M.M., and S.M. have been and continue to be harmed by ACS's violation of their rights under the ADA.
24

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 25 of 34 PageID #: 25
SECOND CAUSE OF ACTION Violation ofSection 504 ofthe Rehabilitation Act 134. Section 504 of the Rehabilitation Act, 29 U.S.c. § 794(a) states: 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 or under any program or activity .... 135. The Rehabilitation Act states that "recipients [of federal financial
assistance1shall administer programs or activities in the most integrated setting appropriate to
the needs of qualified handicapped persons." 28 C.F.R. § 41.51 (d). 136. Furthermore, recipients offederal funds may not exclude a qualified
individual with a disability from participation in or the benefits of any aid, benefit, or service, whether "directly or through contractual, licensing, or other arrangements." 28 C.F.R. § 41.51(b)(I); see also 28 C.F.R. § 41.51(b)(3).
137. ACS receives federal financial assistance. 138. Plaintiffs and Proposed class members are each a "qualified individual" within the meaning of the Rehabilitation Act, because they are qualified under New York State law to receive foster care placement and related services from ACS in the least restrictive environment suitable to their needs. 139. Plaintiffs and Proposed class members are each a "qualified individual with a disability" within the meaning of the Rehabilitation Act. Under the Rehabilitation Act, an "individual with a disability" includes an individual who is "regarded as having... an impairment." 29 U.S.c. § 705(20)(B); 42 U.S.c. § 12102(l)(C). Plaintiffs are undisputedly "regarded as having... an impairment" by ACS, because ACS has brought them to acute
25

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 26 of 34 PageID #: 26
psychiatric hospitals purportedly on the basis of having serious mental illness requiring psychiatric hospitalization.
140. Some Plaintiffs and Proposed class members are also "individual[s) with a disability" within the meaning of the Rehabilitation Act because they have actual impairments.
141. By wrongfully and unnecessarily bringing Plaintiffs and Proposed class members to the most restrictive environment conceivable - acute psychiatric hospitals - ACS has denied them "participation in or the benefits of' the less restrictive foster care placements to which they are entitled, on the basis of perceived or actual mental illness.
142. Further, by wrongfully institutionalizing, segregating, and isolating Plaintiffs and Proposed class members in acute psychiatric hospitals, ACS has excluded them from the educational, social, familial, and other opportunities available to children in its care who are not disabled or regarded as being disabled by mental illness.
143. By wrongfully institutionalizing, segregating, and isolating Plaintiffs and Proposed class members in the least integrated setting conceivable - acute psychiatric hospitals ACS has utterly failed to provide Plaintiffs and Proposed class members the foster care programs and services to which they are entitled in the most integrated setting appropriate to their needs.
144. Defendant's wrongful institutionalization, segregation, and isolation of Plaintiffs and Proposed class members in psychiatric hospitals, thereby denying them access to the educational, social, familial, and other opportunities available to children in its care in the less restrictive settings services to which Plaintiffs and Proposed class members are entitled, violates 29 U.S.C. § 794, 28 C.F.R. § 41.51(b)(l), 28 C.F.R. § 41.51(b)(3), and 28 C.F.R. § 41.51 (d). This is a continuing violation.
26

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 27 of 34 PageID #: 27
145. Further, in wrongfully institutionalizing, segregating, and isolating named Plaintiffs, Defendant acted with deliberate indifference to their rights under the Rehabilitation Act.
146. ACS knew or had reason to know that such prolonged confinement in an acute psychiatric facility did not constitute placement in the most integrated setting and did not meet expert recommendations for the Plaintiffs' needs. Indeed, ACS has kept each of the Plaintiffs confined in an acute psychiatric hospital for weeks after the hospitals themselves declared these children medically ready for discharge.
147. Defendant also knew or had reason to know that, in subjecting the Plaintiffs to prolonged confinement in an acute psychiatric facility, it was denying them access to foster care services and community placements available to other foster care children, solely by reason of their disabilities or perceived disabilities.
148. A.M., M.M., and S.M. have been and continue to be harmed by ACS's violation of their rights under the Rehabilitation Act.
THIRD CAUSE OF ACTION Violations ofN. Y. Social Services Law and Implementing Regulations
149. Plaintiffs and Proposed class members are each children under the age of eighteen in the custody and care of ACS, which is the government agency designated under the laws of the State of New York as responsible for the health and welfare of Plaintiffs and Proposed class members.
150. Under Title 6 of the New York Social Services Laws and its implementing regulations under Title 18 of the New York Code of Rules and Regulations, ACS has numerous non-delegable duties to care for and protect children in foster care in New York City.
27

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 28 of 34 PageID #: 28
151. ACS is required to place each foster child in "[tJhe most appropriate level ofplacement jor each child," which "will always be considered to be the least restrictive and most homelike setting in which the child can be maintained safely and receive all services specified in his or her service plan." 18 N.Y.C.R.R. § 430.II(d)(I) (emphasis added).
152. ACS must develop family service plans to meet the needs of children in foster care, including "identification of necessary and appropriate services and assistance to the child and members of the child's family." N.Y. Soc. Servo Law § 409-e(l)(d).
153. Family assessment and service plans prepared when the child is moved from a foster care placement to an acute psychiatric hospital "must also include but are not limited to ... the type and level ofplacement; documentation that the placement has been assessed to be one that can safely provide for the individual needs ofthe foster child; and the reasonsjor selecting the placement ifit is not the least restrictive environment." 18 N.Y.C.R.R. § 428.6(a)(2) (emphasis added).
154. ACS must "[p]rovide for expert mental and physical examination of any child whom he has reason to suspect of mental or physical disability or disease and pay for such examination from public funds, if necessary." N.Y. Soc. Servo Law § 398(6)(b).
155. ACS must provide "[p]sychiatric, psychological and other essential services ... appropriate to the needs of the children in care." 18 N.Y.C.R.R. § 441.15.
156. ACS is required to "take such steps as may be necessary to make certain that all children in care receive education appropriate to their needs and in accordance with the requirements ofthe Education Law [and] ... shall make certain that each child in its care receives appropriate educational and vocational guidance." 18 N.Y.C.R.R. § 441.13.
28

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 29 of 34 PageID #: 29
157. ACS has violated each and everyone of these duties to Plaintiffs and Proposed class members.
158. Plaintiffs and Proposed class members have been harmed by Defendant's violations of their rights under the New York Social Services Law and implementing regulations. Plaintiffs and Proposed class members' harms include, but are not limited to, deprivation of numerous educational, social, and familial opportunities as a result of their wrongful confinement. Plaintiffs and Proposed class members have also suffered psychological, emotional, and reputational damage during the course of their wrongful confinement, and will continue to suffer such harm in the future as a result of the lasting impact and stigma of their wrongful psychiatric institutionalization.
FOURTH CAUSE OF ACTION Violation ofthe Fourteenth Amendment to the United States Constitution
159. Plaintiffs and Proposed class members are children under the age of eighteen in the custody and care of ACS, which is the government agency designated under the laws of the State of New York as responsible for the health and welfare of Plaintiffs and Proposed class members.
160. Defendant was at all times relevant hereto acting under color of state law. 161. The Fourteenth Amendment to the United States Constitution, which prohibits the deprivation of "life, liberty, or property without due process of law," guarantees to each child in state custody the substantive right to be free from harm and from undue restraints on their liberty. Youngberg v. Romeo, 457 U.S. 307 (1982). 162. Furthermore, "[w]hen individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties,
29

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 30 of 34 PageID #: 30
the nonfeasance of which may violate the constitution." Doe v. N. Y City Dep '/ ofSoc. Servs., 649 F.2d 134, 141 (2d Cir. 1981).
163. Defendant has deprived Plaintiffs and Proposed class members of their liberty without due process by, inter alia, (i) wrongfully bringing some children to acute psychiatric hospitals despite the lack of a legitimate medical need for emergency psychiatric hospitalization; (ii) wrongfully keeping them confined in acute psychiatric hospitals long after even these hospitals themselves have ordered their discharge; and (iii) failing to provide foster care placements for them outside of the psychiatric hospitals as required by law.
164. ACS's wrongful, unnecessary, and prolonged confinement of Plaintiffs and Proposed class members in psychiatric hospitals is arbitrary, oppressive, and shocking to the conscience, and manifests deliberate indifference to plaintiffs' constitutional rights.
165. Plaintiffs and Proposed class members have been harmed by Defendant ACS's violations of their rights under the Fourteenth Amendment. Plaintiffs and Proposed class members' harms include, but are not limited to, deprivation of numerous educational, social, and familial opportunities as a result of their wrongful confinement. Plaintiffs and Proposed class members have also suffered psychological, emotional, and reputational damage during the course of their wrongful confinement, and will continue to suffer such harm in the future as a result of the lasting impact and stigma of their wrongful confinement.
166. Defendant has deprived Plaintiffs and Proposed class members of their liberty without due process oflaw by not providing Plaintiffs and Proposed class members with the least restrictive, most home-like foster care setting appropriate to meet their needs.
167. Plaintiffs and Proposed class members accordingly seek redress pursuant to 42 U.S.C. § 1983.
30

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 31 of 34 PageID #: 31
FIFTH CAUSE OF ACTION Violation ofArticle I, § 6 ofthe New York Constitution 168. Plaintiffs and Proposed class members are each children under the age of eighteen in the custody and care of ACS, which is the government agency designated under the laws of the State of New York as responsible for the health and welfare of Plaintiffs and Proposed class members. 169. Article J, section 6 of the New York State Constitution, which prohibits the deprivation of "life, liberty, or property without due process oflaw," guarantees to each child in state custody the substantive right to be free from harm and from undue restraints on their liberty. 170. Furthermore, "[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 v. N. Y. City Dep't ofSoc. Servs., 649 F.2d 134, 141 (2d Cir. 1981). 171. Defendant has deprived Plaintiffs and Proposed class members of their liberty without due process by, inter alia, (i) wrongfully bringing some children to acute psychiatric hospitals despite the lack of a legitimate medical need for emergency psychiatric hospitalization; (ii) wrongfully keeping them confined in acute psychiatric hospitals long after even these hospitals themselves have ordered their discharge; and (iii) failing to provide foster care placements for them outside of the psychiatric hospitals as required by law. 172. ACS's wrongful, unnecessary, and prolonged confinement of Plaintiffs and Class members in acute psychiatric hospitals is arbitrary, oppressive, and shocking to the conscience, and manifests deliberate indifference to plaintiffs' constitutional rights.
31

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 32 of 34 PageID #: 32
173. Plaintiffs and Class members have been harmed by Defendant ACS's violations of their rights under Article I, section 6 of the New York State Constitution. Plaintiffs and Class members' harms include, but are not limited to, deprivation of numerous educational, social, and familial opportunities as a result of their wrongful confinement. Plaintiffs and Class members have also suffered psychological, emotional, and reputational damage during the course of their wrongful confinement, and will continue to suffer such harm in the future as a result of the lasting impact and stigma of their "'Tongful confinement.
PRAYER FOR RELIEF FOR ALL THESE REASONS, Plaintiffs demand judgment against Defendant and respectfully request that this Court order the following relief: A. An order certifying this action as a class action; B. A declaration that Defendant's acts, omissions, policies, and practices causing the wrongful, prolonged confinement of Plaintiffs and Proposed class members in psychiatric hospitals, violate rights guaranteed to Plaintiffs and Proposed class members by the Americans with Disabilities Act (42 U.S.c. § 12132), the Rehabilitation Act (29 U.S.C. § 794), the New York Social Services Law and implementing regulations, the Fourteenth Amendment to the United States Constitution, and Article I, § 6 ofthe New York State Constitution; C. Preliminary injunctive relief, including an order enjoining Defendant from continuing to confine Plaintiffs in acute psychiatric hospitals despite their readiness for discharge, and enjoining Defendant from failing to provide them with the least restrictive placement suitable to their needs, as is required by law; D. Permanent injunctive relief, including: (i) enjoining Defendant from bringing children in foster care to psychiatric hospitals unless such intervention is medically
32

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 33 of 34 PageID #: 33
necessary, and unless ACS has certified that less restrictive settings have been tried and have proved unsuccessful; (ii) requiring Defendant, within 24 hours of learning that a child in ACS's care is ready to be discharged from a psychiatric hospital, to make available a foster care placement in the least restrictive setting suitable to such child's needs or, if none is available, to house and provide services to the child at the ACS Children's Center before making an appropriate foster care placement available; (iii) requiring Defendant to keep complete and accurate records regarding placement of children in ACS's care in psychiatric hospitals and to update that information daily; (iv) requiring Defendant to develop and implement written plans for scheduled family visitation of children in ACS's care in psychiatric hospitals; (v) requiring Defendant to provide training to ACS staff and the staff of its contract foster care agencies regarding inappropriate confinement of children in foster care to psychiatric hospitals; and (vi) requiring Defendant to develop and implement new policies and protocols regarding commitment of children in ACS care to psychiatric hospitals designed to ensure that children in foster care are not improperly brought to acute psychiatric hospitals, and that children are discharged to lawful, least restrictive foster care placements immediately upon being found medically ready for discharge;
E. For Plaintiffs A.M., M.M., and S.M., an award of compensatory damages to each, together with interest, costs, disbursements, attorneys' fees, and other expenses, the amount to be established at trial;
F. For Plaintiffs A.M., M.M., and S.M., an award to each of prejudgment interest;
G. An award of costs and attorneys' fees in prosecuting this action; and H. Such other and further relief as the Court deems just and proper.
33

Case 1:10-cv-02181-BMC Document 1 Filed 05/12/10 Page 34 of 34 PageID #: 34

Dated: New York, New York May 12,2010

j Steven Banks, Att ey-in-Chief
THE LEGAL AID SOCIETY
Nancy Rosenbloom, Director, Law Reform Unit, Juvenile Rights Practice, of Counsel Kimberly Forte, of Counsel 199 Water Street New York, New York 10038 Telephone: (212)-577-3300 Fax: (212 -557-3520

PATTERSON BELKNAP WEBB & T 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2000 Fax: (212) 336-2222
By: Lisa E. Cleary Leonard M. Braman Jordan M. Engelhardt William F. Schmedlin

34

 
 Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 1 of 28 PageID #: 99

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - -- --- - - ----- ---- --- --- - - - - --- - - - - - - - -- - - x A.M., et al.,
Plaintiffs,
v.
JOHN B. MATTINGLY, in his official capacity as Commissioner of the New Yark City Administration for Children's Services,
Defendant.
- - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

CV 10-2181 (BMC)
ORAL ARGUMENT
REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 (212)-577-3300
Steven Banks, Attorney-in-Chief Nancy Rosenbloom, of Counsel Kimberly Forte, of Counsel

PATTERSON BELKNAP WEBB & TYLERLLP 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000
Lisa E. Cleary Leonard M. Braman Jordan M. Engelhardt William F. Schrnedlin
Attorneys for Plaintiffs and Proposed Class

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 2 of 28 PageID #: 100

TABLE OF CONTENTS

PRELIMINARY STATEMENT ..................................................................................................... 1

STATEMENT OF FACTS ..............................................................................................................3

ARGUMENT ...................................................................................................................................8

1.

THIS COURT SHOULD GRANT PRELIMINARY INJUNCTIVE RELIEF .................. 8

A. Plaintiffs Will Suffer Irreparable Harm in the Absence of a Preliminary Injunction ..................................................................................................9

B. Plaintiffs Are Likely to Succeed On the Merits of Their Claims ............................... 13

1. The Americans With Disabilities Act and Rehabilitation Act .............................. .14

2. Due Process ............................................................................................................ 18

3. New York Social Services Law ............................................................................ .20

C. The Balance of Hardships Tips Decidedly in Favor ofPlaintiffs .............................. .21

D. The Public Interest Favors Preliminary Injunctive Relief.. ........................................22

CONCLUSION ..............................................................................................................................23

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 3 of 28 PageID #: 101
TABLE OF AUTHORITIES
CASES
Anonymous v. City of Rochester, 13 N.Y.3d 35 (2009) .................................................. .18
Brown v. Board of Educ. of Rochester City School Dist., 2005 WL 17838 (W.D.N.Y. 2005) .............................................................................. 11
Bryant v. City of New York, 2003 WL 22861926 (S.D.N.Y. Dec. 2, 2003) ............................................................ .19
Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007) ..........................................................................22
Community Services, Inc. v. Heidelberg Twp., 439 F. Supp. 2d 380 (M.D. Pa. 2006) ......................................................................... .11
County of Sacramento v. Lewis, 523 U.S. 833 (1998) ..................................................................................................... 19
Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) ............................................................. 14, 16, 17
Doe ex reI Doe v. Mattingly, 2006 WL 3498564 (E.D.N.Y. Nov. 6, 2006) ........................................................ .11, 13
Doe v. N.Y. City Dep't of Soc. Servs., 649 F.2d 134 (2d Cir. 1981).........................................................................................20
Ferran v. Town of Nassau, 471 F.3d 363 (2d Cir. 2006)......................................................................................... 19
Humphrey v. Cady, 405 U.S. 504 (1972) ..................................................................................................... 19
LIH ex reI. LH v. New York City Bd. Of Educ., 103 F. Supp. 2d 658 (E.D.N.Y. 2000) ...............................................................9, 12,22
LaBella v. New York City Admin. for Children's Services, 2005 WL 2077192 (E.D.N.Y. Mar. 28, 2005) ............................................................. 15
Levine v. Smithtown Cent. School Dist., 565 F. Supp. 2d 407 (E.D.N.Y. 2008) ......................................................................... 15
Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) .......................................................... .19
11

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 4 of 28 PageID #: 102
Martin v. Wing, 1996 WL 191974 (N.D.N.Y. 1996) ................................................................. 10, 11, 17
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984)......................................................................................... 10
Morel v. Giuliani, 927 F. Supp. 622 (S.D.N.Y. 1995) ........................................................................ 10, 21
Olmstead v. L.C., 527 U.S. 581 (1999) ............................................................................................... 16,17
Olson v. Wing, 281 F. Supp. 2d 476 (E.D.N.Y. 2003) ...........................................................................8
Parham v. J.R.., 442 U.S. 584 (1979) ..................................................................................................... 19
Phillip v. Fairfield Univ., 118 F.3d 131 (2d Cir. 1997)...........................................................................................9
Reno v. Flores, 507 U.S. 292 (1993) ..................................................................................................... 18
Sharrock v. Dell Buick-Cadillac, Inc., 379N.E.2d 1169(N.Y.1978) ...................................................................................... 19
Soc'y for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984)....................................................................................... 19
Time Warner Cable ofN.Y.C. v. Bloomberg, L.P., 118 F.3d 917 (2d Cir. 1997)..................................................................................... 8, 22
Vitek v. Jones, 445 U.S. 480 (1980) ............................................................................................... 10,19
STATUTES & CONSTITUTIONAL PROVISIONS U.S. Const. Amend. XIV ................................................................................................... 18 New York State Constitution Art. I, § 6 ............................................................................ 18
42 U.S.C. § 12102 .............................................................................................................. 15
111

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 5 of 28 PageID #: 103 42 U.S.C. § 12131 .............................................................................................................. 14 42 U.S.C. § 12132 .............................................................................................................. 14 REGULATIONS 28 C.F.R. § 35.130(d) .................................................................................................. 15, 17 28 C.F.R. § 41.51(d) .......................................................................................................... 16 28 C.F.R. pt. 35, App. A, p. 450 ........................................................................................ 16 18 N.Y.C.R.R. § 430.11 .....................................................................................3, 12, 17,20 18 N.Y.C.R.R. § 430.12 ..................................................................................................... 12 18 N.Y.C.R.R. § 431.10 ................................... ,................................................................. 12 18 N.Y.C.R.R. § 431.14 ..................................................................................................... 12 18 N.Y.C.R.R. § 441.15.·........................................................................................ 17, 21, 22
IV

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 6 of 28 PageID #: 104
Plaintiffs A.M., M.M. and S.M. ("Plaintiffs") and proposed class members respectfully submit this memorandum oflaw in support of their motion for a preliminary injunction.
PRELIMINARY STATEMENT This case involves children in New York City's foster care system, in the custody of the New York City Administration for Children's Services ("ACS"). ACS and its contracted foster care agencies are subjecting children in their care to prolonged, unnecessary psychiatric hospitalization - keeping children confined in acute psychiatric hospitals long after the hospitals find them ready for discharge, and in some cases, improperly bringing children to acute psychiatric hospitals for admission who do not need to be there. In effect, ACS and certain of its contract foster care agencies are improperly using acute psychiatric hospitals, which are designed for patients to stay in only until stabilized, as long-term facilities in which to house children for up to several months, or as de Jacto detention centers to house children whose behavior they see as difficult to control. The named Plaintiffs in this case ("Plaintiffs") and proposed class members are all children under 18 years old who are in the New York City foster care system, which is controlled and administered by the Defendant. While ACS delegates day-to-day responsibilities for these children's care to various contracted foster care agencies, ACS retains custody of the children and is legally responsible for their care, housing, education, and other needs. Among numerous other obligations, ACS is required by New York State law to place Plaintiffs and proposed class members in the "least restrictive" and "most homelike" environment suitable to their needs, and must provide them with medical and mental health care appropriate to their needs. Similarly, under federal law, including the Americans with Disabilities Act ("ADA") and the Rehabilitation
1

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 7 of 28 PageID #: 105
Act, ACS is required to provide these necessary services in the "most integrated setting" appropriate to the children's needs.
ACS has repeatedly refused to comply with its duties to place children in its custody in the least restrictive setting appropriate to their needs. While in the care of ACS and its contract agencies, Plaintiffs have each been brought to an acute care psychiatric hospital and kept there for weeks or months, long after the hospitals have found them ready for discharge, and despite there being no legitimate need for some to have been hospitalized in the first place. Thus, far from placing them in the "least restrictive" environment as required by law, ACS has subjected these children, without justification, to the most restrictive environment conceivable an acute care psychiatric hospital, not suitable for long-term living. By these actions, ACS has repeatedly violated, and continues to violate, Plaintiffs' and proposed class members' rights under the ADA, the Rehabilitation Act, the substantive due process provisions of the federal and state constitutions, and numerous provisions of the New York Social Services Law and its implementing regulations.
Immediate injunctive relief is necessary to remedy the numerous imminent and irreparable harms Plaintiffs are suffering and will suffer from their prolonged, unnecessary hospitalization, including confinement and loss of liberty, psychological harm, disruption of schooling and loss of educational opportunities, and disruption of Plaintiffs' remaining family relationships. In short, every day that it continues, Plaintiffs' extended, wrongful confinement in these hospitals is causing them irreparable damage.
The experiences of Plaintiffs and proposed class members also illustrate the urgent need for ACS to become aware of and track, for the purposes of avoiding improper institutionalization, all children in ACS custody in foster care. Although ACS has delegated the
2

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 8 of 28 PageID #: 106
day-to-day care of most children in foster care in ACS custody to contracted foster care provider agencies, ACS retains the legal obligation to provide safe and lawful care to those children. Plaintiffs' own experiences demonstrate that ACS itself is often unaware that children in its custody are being improperly psychiatrically hospitalized until ACS is notified, often by a child's attorney or hospital social worker, that the child is still confined in the hospital despite being declared ready for discharge.
Accordingly, this Court should grant preliminary injunctive relief: (1) prohibiting ACS from keeping Plaintiffs confined in psychiatric hospitals despite their being found ready for discharge; (2) requiring ACS to immediately place Plaintiffs into the least restrictive foster care placement suitable to their needs, as required by law; and (3) requiring ACS immediately to implement a system by which it tracks all children in ACS custody who are or will be hospitalized in acute psychiatric hospitals and provides appropriate less restrictive placements for children who are ready for discharge.
STATEMENT OF FACTS Plaintiffs and proposed class members are New Yark City residents under the age of 18 who are in foster care. Their parents are deceased or otherwise unable to care for them. Plaintiffs and proposed class members are in the care of Defendant and most have been placed in the Defendant's care by judges of the New York State Family Court in New York City. (Complaint ~ 80). Foster care placements fall along a continuum from the least restrictive (the most "homelike") to the most restrictive (the least "homelike"). See 18 N.Y.C.R.R. § 430.11. On one end of the continuum, traditional foster boarding homes are considered the least restrictive foster care placements. Somewhat more restrictive are "therapeutic" foster boarding homes, which are
3

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 9 of 28 PageID #: 107
maintained by specially trained foster parents for the benefit of children needing special care or services. The next level includes "congregate care" placements such as group homes, which are structured settings housing a number of children in foster care together and are supervised by agency staff members. Still more restrictive are congregate care placements such as residential treatment centers, where children in foster care are subject to more intense supervision and treatment than in group homes. The most restrictive placements are "residential treatment facilities," which are operated by the New York State Office of Mental Health. While in foster care, some children are temporarily hospitalized for medical or mental health needs, but such hospitalizations are not foster care placements. (CompI. ~ 81).
Before being brought to acute psychiatric hospitals, Plaintiffs and proposed class members lived in various foster boarding homes, therapeutic foster homes, group homes, and/or residential treatment centers. For example, Plaintiffs A.M. and M.M. resided in multiple foster boarding homes and therapeutic foster boarding homes. Similarly, Plaintiff S.M. resided in multiple therapeutic foster boarding homes. (Declaration of Leslie Winston ("Winston DecI.") ,-r,-r 36, 54; Declaration of Clara Goetz ("Goetz Decl.") ~ 5).
Plaintiffs and proposed class members are generally brought for application for admission to acute psychiatric hospitals by the Defendant's contracted foster care agencies. These children are generally admitted to acute psychiatric hospitals for stabilization. For example, Plaintiff A.M. was admitted to St. Vincent's and Holliswood Hospitals for reported aggressive and self-inflicted harmful behavior. (Goetz DecI. ,-r~ 8, 28). Similarly, 13-year-old M.M. was admitted to South Oaks Hospital for reportedly misbehaving and leaving his foster
home. (Winston DecI. ,-r 38). S.M. was admitted to Four Winds Hospital for reported difficult behavior in his foster home. (Jd.,-r 55).
4

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 10 of 28 PageID #: 108
During Plaintiffs' and proposed class members' extended confinement in these acute psychiatric hospitals, they are subject to extreme deprivations of their liberty. Plaintiffs and proposed class members are rarely permitted to leave the hospital even temporarily. (Winston Decl. ~ 28). They are physically restrained and regularly administered psychotropic medications. (Jd. ~ 29). Their daily activities are regimented in minute detail and their range of activities is seriously limited. (Jd. ~~ 28, 48). Their contact with family members and visitors is severely cUliailed. (Jd. ~~ 28, 45; Goetz Decl. ~~ 32-33). They are removed from school and most are given little or no academic instruction that could lead to school credit or a diploma. (Winston Decl. ~~ 30, 46,60). Plaintiffs and proposed class members who have been designated as needing special educational services do not receive those services. (Winston Decl. ~~ 30, 62; Goetz Decl. ~ 13,16).
Despite being declared ready for discharge by the acute psychiatric hospitals in which they are confined, Plaintiffs and proposed class members are forced to remain confined in the hospitals because the Defendant has not provided less restrictive foster care placements for them. For example, Holliswood Hospital determined that A.M. was ready for discharge in April 2010, but to date, A.M. has remained confined at the hospital awaiting a placement. (Goetz Decl. ~ 31). Similarly, Four Winds Hospital determined that Plaintiff S.M. was ready for discharge April 2, 2010, but for over five weeks, S.M. has remained in the hospital awaiting a placement. (Winston Decl. ~. 61 & Ex. B at 2). And South Oaks Hospital determined that PlaintiffM.M. was ready for discharge on January 26, 2010, yet for more than three months, M.M. has remained in the hospital awaiting a placement. (Winston Decl. ~ 41).
Despite the hospitals' medical decisions that Plaintiffs are ready for discharge from confinement in psychiatric hospitals, ACS has refused to provide them with placement in a
5

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 11 of 28 PageID #: 109
less restrictive setting as required by law. Attorneys and social workers spend countless hours advocating for their clients who are ready to be discharged from acute psychiatric hospitals. (Winston Decl. 'J32). In previous incidents where other children in ACS's care have been subject to prolonged unnecessary confinement in acute psychiatric hospitals, attorneys for these children have been required to seek judicial orders compelling the release of these children from hospitals in order for ACS even to begin to seek a less restrictive setting. (Id.).
ACS's wrongful confinement of children in acute psychiatric hospitals for prolonged periods of time represents an illegal pattern and practice. By its own admission in March 2010, ACS does not maintain any statistical information regarding how many of the children in its care are psychiatrically hospitalized, nor does the agency record any information on treatment and services these children receive while psychiatrically hospitalized. (Declaration of Kimberly Forte ("Forte Decl.") 'J4, Exs. A & B ("Freedom ofInformation Law Request" and "FOIL Response")). ACS's most recent policy directive to its foster care agencies regarding children in acute psychiatric hospitals is more than a decade old. (Forte Decl. Ex. C (Memorandum from then-ACS Commissioner Nicholas Scoppetta)). The 1998 Memorandum largely focuses on the contracted foster care agencies' responsibilities to ACS and does not address ACS's legal responsibility for these children. Although the policy requires ACS's contract foster care agencies to inform ACS which children in its care have been psychiatrically hospitalized, the unit in ACS to which such reporting must be made, according to the policy, has been eliminated.
Sadly, Plaintiffs' experiences are not unique, as ACS has persisted in its illegal practice for years. The Legal Aid Society has represented dozens of children who have been subject to ACS's failure to adequately plan for them while they remained in acute psychiatric
6

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 12 of 28 PageID #: 110
hospitals ready to be discharged. The attached Declaration of Leslie Winston summarizes more than twenty of those clients' stories.
For example, a seven-year-old child in ACS's care, who was ready for discharge two weeks after his admission, spent more than two months in Bellevue Hospital awaiting a foster care placement. (Winston Decl. ~ 5). A sixteen-year-old child inACS's care, who was ready for discharge one month after her admission, spent nine additional months in BronxLebanon Hospital due to ACS's failure to find a therapeutic foster boarding home as recommended by the hospital. Ultimately, she was discharged to a family-based treatment home with OMH because the hospital prepared all the necessary paperwork to ensure her discharge. (ld. ~ 6). A nine-year-old child in ACS's care was hospitalized three times from July 2009 to the present, during which he has spent approximately eight months at South Oaks Hospital. Because his foster care agency failed to plan appropriately for his discharge, he remained in an acute psychiatric hospital setting long after he could have been discharged. As a result, his treatment primarily consists of crisis management and stabilization, not the long-term therapeutic intervention he so desperately needs. (ld. ~ 9).
If a child who lives at home with family is admitted to an acute psychiatric facility, he or she is able to return home immediately once declared ready for discharge. Plaintiffs and proposed class members, by contrast, are in foster care and are dependent on ACS for a place to live. As a result, ACS's refusal to place Plaintiffs in the less restrictive settings to which they are entitled me(J.ns that Plaintiffs simply have nowhere to go, and remain confined in psychiatric hospitals long after the hospitals have confirmed that there is no legitimate reason for them to be there.
7

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 13 of 28 PageID #: 111
ACS is capable of finding foster care placements for Plaintiffs in less restrictive settings than psychiatric hospitals, but has not done so. Indeed, Defendant fails to use a resource that is fully available to ACS to allow children to leave hospitals even when a stable foster care placement has not yet been provided. The ACS Children's Center is a facility that provides housing and medical care to children in ACS custody who lack a stable placement. (Compl.,-r 7). ACS could easily accommodate Plaintiffs in its Children's Center for a short period of time while arranging foster care placement. Young people housed at the Children's Center can attend school in their communities and visit with family members; yet ACS has a policy and practice of refusing to permit children to be discharged from psychiatric hospitals to the Children's Center.
ARGUMENT I. THIS COURT SHOULD GRANT PRELIMINARY INJUNCTIVE RELIEF
A party may obtain a preliminary injunction by demonstrating "a threat of irreparable injury: and either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party." Time Warner Cable ofNYC. v. Bloomberg, L.P., 118 F.3d 917,923 (2d Cir. 1997). Where, as here, a movant seeks preliminary injunctive relief against government action in a case where "there are public interest concerns on both sides," the movant may obtain relief by satisfying either standard. Id. at 923-24; see Olson v. Wing, 281 F. Supp. 2d 476, 485 (E.D.N.Y. 2003). Evidence that the public interest favors a preliminary injunction weighs in support of the movant. Time Warner, 118 F.3d at 929-930.
Here, Plaintiffs have suffered and continue to suffer numerous immediate and irreparable harms from their wrongful psychiatric hospitalization by ACS. In addition to the serious deprivation of their liberty and autonomy and the psychological harm and trauma of
8

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 14 of 28 PageID #: 112
being hospitalized unnecessarily, these children have been denied their basic rights by ACS while hospitalized, including their rights to appropriate education and to visitation with family members. The irreparable nature of these harms is well established in case law and warrants preliminary injunctive relief.
Plaintiffs and proposed class members are substantially likely to succeed on the merits of their claims under the ADA and Rehabilitation Act, because ACS has denied them, on the basis of actual or perceived mental illness, the right to receive the services to which they are entitled in the most integrated setting suitable to their needs. Similarly, Plaintiffs and proposed class members are likely to succeed on their substantive due process claims, because ACS has arbitrarily and egregiously violated their fundamental liberty interest in being free from unnecessary psychiatric hospitalization. Finally, Plaintiffs and proposed class members are likely to demonstrate ACS's violations of their rights under New Yark state law to appropriate foster care placement in the least restrictive and most homelike setting.
In addition, the balance of hardships tips decidedly in the Plaintiffs' and proposed class members' favor. ACS will suffer little if any prejudice from simply complying with its legal duty to place Plaintiffs and proposed class members in the least restrictive foster care setting suitable to their needs, while Plaintiffs and proposed class members suffer and will suffer renewed irreparable harm every day that their unnecessary confinement continues. Finally, the public interest favors a preliminary injunction, because the public interest is eminently served by protecting children in foster care from violations of their constitutional and statutory rights.
A. Plaintiffs Will Suffer Irreparable Harm in the Absence of a Preliminary Injunction Preliminary injunctive relief is appropriate where, as here, the movants are subject
to irreparable harm. Phillip v. Fairfield Univ., 118 F.3d 131, 133-34 (2d Cir. 1997); LIH ex reI. 9

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 15 of 28 PageID #: 113
LHv. New York CityBd. OjEduc., 103 F. Supp. 2d 658, 666-65 (E.D.N.Y. 2000). In this case, the numerous irreparable harms to which Plaintiffs and proposed class members are and will be subjected from their prolonged, unnecessary psychiatric hospitalization include extreme deprivation ofliberty and autonomy, isolation, stigma, psychological deterioration, deprivation of education, and fracturing of family relationships. The harms suffered by the Plaintiffs and proposed class members intensify with each passing day they remain hospitalized unnecessarily, and "[i]njunctive relief is therefore warranted to prevent a worsening of the harms demonstrated by Plaintiffs." Morel v. Giuliani, 927 F. Supp. 622, 639 (S.D.N.Y. 1995); see Martin v. Wing, 1996 WL 191974, at *3 (N.D.N.Y. 1996) (granting preliminary injunction ordering at-home care for disabled child, citing irreparable physical and mental harms of prolonged hospitalization).
The irreparable harms that Plaintiffs and proposed class members will suffer without an injunction are numerous. First, psychiatric hospitalization is a "massive curtailment of liberty" with stigmatizing consequences that implicate substantive due process. Vitek v. Jones, 445 U.S. 480, 491-92 (1980). Plaintiffs and proposed class members are and will be physically confined in the psychiatric hospitals and rarely can leave the grounds even temporarily. Indeed, some are not even allowed to go outdoors. (Winston Dec!. '1128). Plaintiffs' and proposed class members' lives in these psychiatric facilities are regimented in minute detail from morning until night. Life in this setting is devoid of choice and personal autonomy. Because continued wrongful confinement in psychiatric hospitals violates Plaintiffs' and proposed class members' fundamental liberty interest in freedom from unnecessary institutionalization, it presents a strong showing of irreparable harm. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (threatened deprivation of constitutional rights supports finding of
10

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 16 of 28 PageID #: 114
irreparable harm); see also Doe ex rei Doe v. Mattingly, 2006 WL 3498564, at *3 (E.D.N.Y. Nov. 6, 2006) (same).
Second, Plaintiffs' and proposed class members' unnecessary confinement in psychiatric hospitals is irreparably damaging their mental health. Case law confirms that psychological and physical harm from unnecessary hospitalization constitutes irreparable harm, which in turn justifies a preliminary injunction. In Martin v. Wing, the court granted a preliminary injunction ordering the New York State Department of Social Services to provide a disabled child with in-home care due largely to the irreparable harms the child suffered while hospitalized. 1996 WL 191974 at *2-5. The court observed that the child's continued hospitalization caused a deterioration in the child's mental health and exposed him to hospitalacquired infections he otherwise would not have contracted. Id. at *3. Likewise, in Community Services, Inc. v. Heidelberg Twp., 439 F. Supp. 2d 380 (M.D. Pa. 2006), the court preliminarily enjoined a township's efforts to prohibit the establishment of a "long term structured residence" for mentally challenged individuals, emphasizing the harms suffered by those individuals in a closed hospital setting. Id. at 394, 399 (reasoning that "it is extremely urgent that the prospective residents be placed outside of the closed hospital" and that "their therapy is adversely affected each day that they are not in a least restrictive environment").
Third, psychiatric hospitalization disrupts Plaintiffs' and proposed class members' formal education, which courts have repeatedly regarded as in itse(fan irreparable harm justifying preliminary injunctive relief. "[A] deprivation of one's education inflicts harm that cannot be remedied by money damages." Brown v. Board ofEduc. ofRochester City School Dist. 2005 WL 17838 at *1 (W.D.N.Y. 2005); see Martin, 1996 WL 191974 at *2 (finding irreparable harm and granting injunction against prolonged hospitalization where it prevented
11

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 17 of 28 PageID #: 115
child from attending school); LIH ex reI. LH, 103 F. Supp. 2d at 665 (granting preliminary injunction where students with disabilities could be enoneously excluded from summer school, stating that "[n]o level of monetary damages could possibly compensate these students for the educational opportunities they will lose"). Here, Plaintiffs and proposed class members have been removed from regular schooling in the community and placed in an environment where they receive sporadic, minimal schooling which is often inconsistent with their academic level; in some hospitals school attendance is not even mandatory. (Winston Dec!. ~~ 30, 46, 60, 62; Goetz Dec!. ~~ 13, 16).
Fourth, psychiatric hospitalization ineparably disrupts and will disrupt Plaintiffs' and proposed class members' relationships with their families - particularly crucial relationships for children in foster care, who have already experienced severe familial disruption. Many Plaintiffs maintain contact with biological parents, siblings, or other relatives, and ACS is legally required to facilitate such contact and visitation for these children. See 18 N.Y.C.R.R. § 428.6(a)(2) (requiring ACS family assessment and service plan for child to include "a visiting plan for the child with his or her parents(s), guardian, siblings, half-siblings and other significant family members, potential permanency resources and/or any other person of significance to the child."); § 430.11(c)(1)(i) ("Whenever possible, a child shall be placed in a foster care setting which permits the child to retain contact with the persons, groups and institutions with which the child was involved while living with his or her parents...."); § 430.12(d)(1) (requiring at least biweekly visitation between child and parents or caretakers to whom child is to be discharged); § 431.1 O(e) (requiring ACS facilitation of regular biweekly sibling visitation); § 431.14 (limiting ACS's ability to terminate or limit visitation). Because several of the psychiatric hospitals in which Plaintiffs and proposed class members are and will be confined are far removed
12

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 18 of 28 PageID #: 116
geographically from Plaintiffs' families in New York City, and because the hospitals strictly limit the length and nature of visitation and the individuals who may visit, Plaintiffs are often deprived of their only contact with family and the outside world.
Since being hospitalized, the Plaintiffs have been able to receive only sporadic family visits, or no family visits at all. For example, PlaintiffM.M. was seeing his mother almost daily, but after being hospitalized at South Oaks Hospital in Suffolk County, his visits with his mother have been severly curtailed. (Winston Dec!. 'il45). Similarly, prior to being hospitalized at Holliswood Hospital, Plaintiff A.M. had regular visitation with her mother and siblings while in foster care. However, even though hospital policy permits visits with siblings as young as two years-old, ACS has made no arrangements for A.M.' s brothers to visit her while she is confined in the hospital. (Goetz Dec!. 'il32). Such fracturing of family ties, isolating children from their family members for prolonged periods of time, constitutes irreparable harm justifying a preliminary injunction. See, e.g., Doe ex reI. Doe, 2006 WL 3498564 at *2-3 (interference with family relationship amounted to irreparable harm).
Unnecessary psychiatric hospitalization causes nearly complete loss of personal autonomy and freedom, deterioration of mental health, disruption of eduGation, and fracturing of family ties. All of these harms are irreparable, and they are compounded each day that Plaintiffs' and proposed class members' unlawful confinement continues. For all of these reasons, Plaintiffs and proposed class members will suffer irreparable harm absent a preliminary injunction.
B. Plaintiffs Are Likely to Succeed On the Merits of Their Claims Plaintiffs and proposed class members are likely to succeed on their claims
because ACS has deprived them of their right to be free from unnecessary institutionalization
13

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 19 of 28 PageID #: 117
and their right to receive the services to which they are entitled in the least restrictive and most integrated setting appropriate to their needs. ACS has failed to place Plaintiffs and proposed class members in the most integrated, least restrictive settings appropriate and has instead kept them confined in psychiatric hospitals, in violation of: (l) Title II of the Americans with Disabilities Act and the Rehabilitation Act; (2) the due process requirements of both the United States and New York Constitutions; and (3) applicable New York statutory law.
1. The Americans With Disabilities Act and Rehabilitation Act Plaintiffs and proposed class members are likely to succeed on the merits of their ADA and Rehabilitation Act claims.! To establish a violation of Title II of the ADA, a plaintiff must prove that: (1) he or she is a qualified individual with a disability; (2) the defendants are subject to the ADA; and (3) he or she was denied the opportunity to participate in or benefit from the defendants' services, programs or activities, or was discriminated against by defendants, by reason of his or her disability. 42 U.S.C. § 12132; Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 190 (E.D.N.Y. 2009). These elements are satisfied here. First, Plaintiffs and proposed class members have been placed in foster care in the care of ACS and, accordingly, each is qualified to receive the services that ACS provides. Because Plaintiffs and proposed class members "mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by [ACS]," they are "qualified individuals" under the ADA. 42 U.S.C. § 12131(2). Because each Plaintiff and proposed class member is either actually disabled by virtue of mental illness or "regarded as" disabled by ACS, they are individuals with disabilities
1 Claims under the ADA and the Rehabilitation Act "are treated identically unless ... one of the 'subtle differences' in the two statutes is pertinent to a claim." Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 190 (E.D.N.Y. 2009) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d. Cir. 2003)).
14

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 20 of 28 PageID #: 118
protected by the ADA. "An individual with a 'disability' is defined as any person who (l) has a physical or mental impairment that 'substantially limits' one or more 'major life activities'; (2) has a 'record ofsuch impairment'; or (3) is 'regarded as' having such an impairment." Levine v. Smithtown Cent. School Dist., 565 F. Supp. 2d 407,421-22 (E.D.N.Y. 2008) (citing 42 U.S.C. § 12102(2)); see 42 U.S.C. § 12102(3)(A) (ADA protects persons "subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment"). While certain Plaintiffs and proposed class members are "disabled" under the ADA due to a substantially limiting mental illness, 42 U.S.C. § 12102(2)(A), all Plaintiffs and proposed class members are undisputedly at least "regarded as having... an impairment" by ACS, because, whether or not they actually suffer from mental illness, ACS has brought them to psychiatric hospitals for admission purportedly on that basis.
Second, it is clear that ACS is subject to the ADA. See, e.g., LaBella v. New York City Admin. for Children's Services, 2005 WL 2077192, at *10 (E.D.N.Y. Mar. 28, 2005) ("There is no dispute that ... defendant is a covered entity subject to the ADA.").
Third, Plaintiffs and proposed class members have been and will likely be denied the opportunity to participate in or benefit from ACS services by reason of their actual or perceived disabilities. Under the "integration mandate" in the U.S. Department of Justice regulations interpreting Title II of the ADA,
a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d) (emphasis added). Similarly, the Department of Justice regulations interpreting Section 504 ofthe Rehabilitation Act require recipients of federal funds to "administer programs and activities in the most integrated setting appropriate to the needs of
15

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 21 of 28 PageID #: 119
qualified handicapped persons." 28 C.F.R. § 41.51 (d). The regulations also provide that "the most integrated setting appropriate to the needs of qualified individuals with disabilities" is "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. pt. 35, App. A, p. 450 (emphasis added).
Interpreting the ADA in light of these regulations, the Supreme Court recognized
in Olmstead v. L. c., 527 U.S. 581 (1999), that "undue institutionalization qualifies as
discrimination 'by reason of...disability.'" ld. at 597~98 (quoting 42 U.S.C. § 12132). The Olmstead Court noted that the text of the ADA identified "segregation" as a form of discrimination. ld. at 599-600 (citing 42 U.S.C. § 12101(a)(2) & (a)(5)). The Court held that unjustified confinement of an individual to a psychiatric institution is discrimination based on disability, because the improperly confined person must relinquish participation in community life she would otherwise enjoy in order to receive the services to which she is entitled. ld. at 598-601 (noting Congress's "comprehensive view of the concept of discrimination advanced in the ADA"). Following Olmstead, this Court recently held in Disability Advocates that New York State violated the ADA by segregating individuals with disabilities in "adult homes," thereby denying them the opportunity to receive services in the most integrated setting appropriate to their needs. 653 F. Supp. 2d at 267.
Thus, the law as clearly expressed in the Department of Justice regulations, and in Olmstead and its progeny, requires ACS to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Disability Advocates, 653 F. Supp. 2d at 191 (quoting 28 C.F.R. § 35.130(d)). There can be no dispute that Plaintiffs' and proposed class members' prolonged psychiatric hospitalization fails to provide them the most integrated setting appropriate to their needs, because Plaintiffs and
16

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 22 of 28 PageID #: 120
proposed class members have been kept in psychiatric hospitals long after having been cleared by the hospitals for discharge to a less restrictive setting. (Winston Decl. ~~ 41, 61; Goetz Dec!. ~ 31). There is no legitimate medical reason for any Plaintiff or proposed class member who is ready for discharge to be in an acute psychiatric hospital, the most restrictive environment conceivable.
In plain violation of Olmstead and the "integration mandate" of Title II of the ADA and the Rehabilitation Act, ACS is unjustifiably isolating Plaintiffs and proposed class members in psychiatric hospitals when there is no medical basis for them to be there. The psychiatric hospital setting is even more isolating than the "adult homes" at issue in Disability Advocates, because Plaintiffs' daily lives take place exclusively inside the hospitals, while adult home residents at least have some opportunities to leave. See Disability Advocates, 653 F. Supp. 2d at 201. Prolonged wrongful hospitalization also isolates Plaintiffs and proposed class members from family and from normal social development; it "prevents [Plaintiffs] from attending school and conducting [their] usual activities of daily living." Martin, 1996 WL 191974 at *2.
ACS's isolation of Plaintiffs and proposed class members in psychiatric hospitals is unjustified because Plaintiffs and proposed class members have been maintained in psychiatric hospitals for weeks or months after they are ready for discharge. (Winston Decl. ~~ 41, 61; Goetz Dec!. ~ 31). This practice is directly contrary to federal and New Yark law. See 28 C.F.R. § 35.130(d); 18 N.Y.C.R.R. § 430.11(d)(1) ("The most appropriate level ofplacement for each child will always be considered to be the least restrictive and most homelike setting in which the child can be maintained safely and receive all services specified in his or her service plan. "); § 441.15 ("Psychiatric, psychological and other essential services shall be made
17

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 23 of 28 PageID #: 121
available appropriate to the needs ofthe children in care.") (emphases added). Indeed, ACS's utter failure to plan for the discharge of Plaintiffs and proposed class members to less restrictive settings, causing "extended hospital stays beyond the period required for acute impatient care," is in violation of ACS's own internal policy. (Forte Decl. Ex. C ("Agencies must work with the hospital towards a discharge plan and accept the child back into care once the child is stabilized and medically cleared for hospital discharge."»). There is no justification for ACS's disregard of its duties under federal and state law.
Consequently, Plaintiffs and proposed class members are likely to succeed on the merits of their claims under Title II of the ADA and the Rehabilitation Act.
2. Due Process Plaintiffs and proposed class members are also likely to succeed on their claim that, by keeping them confined in psychiatric hospitals long after they have been declared ready for discharge, ACS has violated their substantive due process rights. The Due Process Clause of the Fourteenth Amendment provides that "no State shall ... deprive any person oflife, liberty, or property without due process oflaw." U.S. Const. Amend. XIV. The Due Process Clause's "substantive component.. .forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292,302 (1993) (emphasis in original).2 To establish a substantive due process claim, the plaintiff must (1) identify the constitutional right at stake; and (2) show that the depriving state action was arbitrary in a
2 Similarly, Art. I, § 6 of the New York State Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process ofIaw." The Due Process clause of the New'Vork State Constitution also has a substantive component, and while New York courts generally rely on federal substantive due process decisions in interpreting it, see, e.g., Anonymous v. City ofRochester, 13 N.Y.3d 35, 50 (2009), the New York Due Process clause may provide "even more protection than may be secured
18

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 24 of 28 PageID #: 122
constitutional sense. Bryant v. City a/New York, 2003 WL 22861926, at *8 (S.D.N.Y. Dec. 2, 2003), a/I'd, 404 F.3d 128 (2d Cir. 2005) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1984)).
Here, the constitutionally-protected liberty interest that has been compromised by ACS's state action is Plaintiffs' and proposed class members' fundamental and well-established interest in "not being confined unnecessarily for medical treatment." Parham v. J.R .., 442 U.S. 584, 600 (1979); see Vitek v. Jones, 445 U.S. 480,487 (1980) (involuntary transfer of prisoner to mental hospital implicates liberty interest protected by Due Process Clause); Humphrey v. Cady, 405 U.S. 504, 509 (1972) (calling compulsory psychiatric treatment a "massive
curtailment ofliberty"); Soc y for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d
1239, 1246 (2d Cir. 1984) ("[R]esidents are entitled to safe conditions and freedom from undue bodily restraint whether they are voluntary or involuntary residents.").
Plaintiffs and proposed class members are likely to show that their prolonged, wrongful confinement by ACS in psychiatric hospitals constitutes arbitrary, unconstitutional state action. For state action to violate substantive due process, it must be "arbitrary, conscienceshocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised." Ferran
v. Town a/Nassau, 471 F.3d 363,370 (2d Cir. 2006) (citation omitted); see County 0/
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). ACS's failure to reintegrate Plaintiffs and proposed class members into the community, causing them to remain confined for unnecessary medical treatment, is sufficiently "outrageous and egregious" and "truly brutal and offensive to human dignity" to violate due process. See Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007). This is especially true in light of the fact that Plaintiffs and proposed class members are
under the United States Constitution." Sharrock v. Dell Buick-Cadillac, Inc., 379 N.E.2d 1169, 1173 19

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 25 of 28 PageID #: 123
children in government custody - entirely dependent on ACS to care for their every need - and are thus uniquely vulnerable to oppressive state action. See Doe v. N. Y City Dep 't ofSoc. Servs., 649 F.2d 134,141 (2d Cir. 1981) ("When 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.").
In blatarit disregard of its clear duties under federal and state law to provide Plaintiffs and proposed class members with the least restrictive, most homelike, and most integrated setting, ACS has kept Plaintiffs and proposed class members confined in psychiatric hospitals for weeks and even months after they should be discharged. ACS has made the Plaintiffs and proposed class members languish in these institutions, confined indoors without the ability to leave even temporarily, their every activity watched and regimented in minute detail, physically restrained and regularly medicated with psychotropic drugs, with little to no schooling or family visitation. This is precisely the type of arbitrary, conscience-shocking action that violates Plaintiffs' rights to substantive due process.
3. New York Social Services Law Plaintiffs and proposed class members are also likely to prevail on their claims that ACS has violated numerous provisions of New York State law by wrongfully confining Plaintiffs in psychiatric hospitals. New York law imposes on ACS duties regarding the treatment of children in its care, which ACS has repeatedly and egregiously violated in its handling of psychiatric hospitalizations. For a foster care placement to be "considered appropriate" under New York law, it must be the "least restrictive and most homelike setting in which the child can be maintained
(N.Y. 1978).
20

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 26 of 28 PageID #: 124
safely and receive all services specified in his or her service plan." 18 N.Y.C.R.R. § 430.11 (emphasis added). To that end, every time a child enters foster care or is moved from one placement to another, the child's service plan must be updated to include "documentation that the placement has been assessed to be one that can safely provide for the individual needs of the
foster child; and the reasons for selecting the placement if it is not the least restrictive
environment." 18 N.Y.C.R.R. § 428.6(a)(2)(iv) (emphasis added). New York law further requires that "[pjsychiatric, psychological and other essential services shall be made available appropriate to the needs ofthe children in care." 18 N.Y.C.R.R. § 441.15 (emphasis added).
In violation of these provisions, ACS and its contracted foster care agencies are keeping Plaintiffs and proposed class members confined in psychiatric hospitals long after they have been declared ready for discharge by hospital staff, leaving them in overly restrictive and therefore inappropriate settings. Because Plaintiffs and proposed class members are thus likely to succeed on the merits of these state law claims, preliminary injunctive relief is appropriate.
C. The Balance of Hardships Tips Decidedly in Favor of Plaintiffs The balance of hardships in this case tips overwhelmingly in favor of Plaintiffs
and proposed class members. In the absence of an injunction, Plaintiffs and proposed class members will suffer a daily worsening of the numerous irreparable harms of unnecessary psychiatric hospitalization. See Morel, 927 F. Supp. at 639 ("Injunctive relief is therefore warranted to prevent a worsening of the harms demonstrated by Plaintiffs."). By contrast, if a preliminary injunction is issued and ACS must place Plaintiffs and proposed class members in the least restrictive settings appropriate to their needs during the pendency of this litigation, ACS will merely be compelled to fulfill the duties it already has under federal and state law to place children in the least restrictive, most homelike, most integrated settings appropriate to their
21

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 27 of 28 PageID #: 125
needs. See LIH ex reI. LH, 103 F. Supp. 2d at 668 ("[I]t is axiomatic that an agency is legally bound to respect its own regulations and commits procedural error if it fails to abide by them.").
In the event that Plaintiffs and proposed class members are ordered released from psychiatric hospitals yet still need mental health services, these services can be provided in less restrictive settings. See 18 N.Y.C.R.R. § 441.15 ("Psychiatric, psychological and other essential services shall be made available appropriate to the needs of the children in care."). Indeed, according to the professional judgment of the psychiatric hospitals where Plaintiffs and proposed class members are currently confined, there is no medical reason for Plaintiffs to be hospitalized, since whatever needs they might have can adequately be addressed in a community setting. In sum, there is no possible prejudice ACS could suffer from a preliminary injunction that compares to the irreparable harm Plaintiffs and proposed class members will suffer absent preliminary injunctive relief.
D. The Public Interest Favors Preliminary Injunctive Relief A court should also consider the public interest in determining whether to grant a
preliminary injunction. Time Warner, 118 F.3d at 929-930. In this case, Plaintiffs and proposed class members have been placed in the care of ACS, a government agency. Therefore the protection of Plaintiffs' and proposed class members' interests is the affirmative duty of the government. See Doe, 649 F.2d at 142. Furthermore, protecting Plaintiffs' and proposed class members' substantive due process right to be free from unnecessary institutionalization is in the public interest. Buck v. Stankovic, 485 F. Supp. 2d 576, 586-87 (M.D. Pa. 2007) ("[I]t is always in the public interest to prevent the violation of a party's constitutional rights."). Therefore, the public interest favors granting a preliminary injunction to release Plaintiffs and proposed class members from their wrongful confinement in psychiatric hospitals by ACS.
22

Case 1:10-cv-02181-BMC Document 5 Filed 05/14/10 Page 28 of 28 PageID #: 126

CONCLUSION For all of the foregoing reasons, this Court should enter a preliminary injunction (1) prohibiting ACS from keeping Plaintiffs confined in psychiatric hospitals despite their being found ready for discharge, (2) requiring ACS to place Plaintiffs immediately into the least restrictive foster care placement suitable to their needs, as required by law, and (3) requiring ACS to implement a system of identifying and tracking all children in ACS's custody who are or will be hospitalized in acute psychiatric hospitals, and (4) requiring ACS to provide, immediately, appropriate less restrictive foster care placements for those children who are and will become ready for discharge.

Dated: New York, New York May 13,2010

THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 (212)-577-3300
Steven Banks, Attorney-in-Chief Nancy Rosenbloom, Director, Special Litigation & Law Reform Unit, Juvenile Rights Practice, Of Counsel Kimberly Forte, Of Counsel
PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue fthe Americas
e York 10036-6

:_Z_-''----__ By: /-+-__

----"-_->r--_ _

Isa E. Cleary

Leonard M. Braman

Jordan M. Engelhardt

William F. Schmedlin

Attorneys for Plaintiffs and Proposed Class

23

 
 Case 1:10-cv-02181-BMC Document 11 Filed 05/19/10 Page 1 of 3 PageID #: 138

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

A.M., et a!.,

10 CV 2181 (BMC)

Plaintiffs,

-against-

STIPULATION AND ORDER

John B. Mattingly, in his official capacity as Commissioner of the New York City Administration for Children's Services,

Defendant.

WHEREAS, plaintiffs commenced the instant lawsuit on May 12,2010, alleging that the defendant violated federal and state law by confining improperly plaintiffs and a proposed class of plaintiff children who are in foster care, in acute care psychiatric hospitals;
WHEREAS, plaintiffs moved by Order to Show Cause for preliminary injunctive relief on May 14,2010;
WHEREAS, no finding of liability has been made; and WHEREAS, the parties have agreed to the following terms that avoid the need to adjudicate plaintiffs' May 14 Order to Show Cause for preliminary injunctive relief; IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: 1. Defendant, together with its contract agency Coalition for Hispanic Family
Services, has matched Plaintiff A.M. with a potential foster horne operated by seo Family of
Services. Visitation between A.M. and her potential foster family has commenced. A.M.'s anticipated discharge date from the hospital to this foster horne is May 21, 2010. If the Administration for Children's Services (ACS) and/or its contract agency the Coalition for

Case 1:10-cv-02181-BMC Document 11 Filed 05/19/10 Page 2 of 3 PageID #: 139
Hispanic Family Services, amend the plan for A.M.'s discharge from the hospital, ACS shall immediately contact Plaintiffs' attorneys and inform them of a new discharge plan for A.M.
2. Defendant has arranged for Plaintiff M.M. to be placed at a Residential Treatment Center ("RTC") operated by Children's Village. M.M.' s anticipated discharge date from the hospital is May 21, 2010. ACS, together with Children's Village, will continue to explore step down options such as a therapeutic foster boarding home as appropriate while he is at the RTC. If ACS and/or its contract agency, Little Flower Children and Family Services, amends M.M.'s discharge plan, ACS shall immediately contact Plaintiffs' attorneys and inform them of a new discharge plan for M.M.
3. Defendant's contract agency SCO Family of Services has matched Plaintiff S.M. with a potential family-based treatment home under the auspices of the New York State Office of Mental Health. Visitation has commenced among S.M., his legal guardian, and his potential family care home. S.M.'s anticipated discharge date from the hospital is May 24, 2010. If ACS and/or its contract agency, SCO Family of Services, amends S.M.'s discharge plan, ACS shall immediately contact Plaintiffs' attorneys and inform them of a new discharge plan for S.M.
4. During the pendency of this action, upon notice from Plaintiffs' attorneys that a potential class member child is in an acute psychiatric hospital and deemed ready for discharge, ACS will make best efforts to find, as soon reasonably possible, the least restrictive placement consistent with the recommendation of the child's hospital treatment team. ACS will communicate its efforts in writing to Plaintiffs' attorneys.
5. Plaintiffs' May 14 motion for preliminary injunctive relief is withdrawn without prejudice.

Case 1:10-cv-02181-BMC Document 11 Filed 05/19/10 Page 3 of 3 PageID #: 140

6. This Stipulation is solely for the purpose of settlement of Plaintiffs' Order to Show Cause for preliminary injunctive relief and is without prejudice to the parties' legal and equitable rights and defenses in this action.

Dated:

New York, New York May 19,2010

THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3300
By: /s/ Nancy Rosenbloom Nancy Rosenbloom
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By: /s/ Lisa E. Cleary Lisa E. Cleary

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923
By: /s/ Martha Calhoun Martha Calhoun Assistant Corporation Counsel

 
 Case 1:10-cv-02181-BMC Document 15 Filed 06/10/10 Page 1 of 3 PageID #: 168
Case 1:10-cv-02181-BMC Document 14 Filed 06/08/10 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------- )(
A.M., et at.,

Plaintiffs,
-against-
John B. Mattingly, in his official capacity as Commissioner ofthe New York City Administration for Children Services,

STIPULATION AND ORDER FOR CLASS CERTIFICATION
10 CV 2181 (BMC)

Defendant.

--------------------------------------------------------------------- )(

WHEREAS, plaintiffs commenced the instant lawsuit on May 12, 2010,

alleging that the defendant violated federal and state law by retaining improperly

plaintiffs and a proposed class of plaintiff children who are in foster care, in acute care

psychiatric hospitals; and

WHEREAS, the defendant denies each allegation contained ill the

Complaint; and

WHEREAS, no admission or finding of liability has been made; and

WHEREAS, the parties have agreed to the following terms to certifY a

plaintiff class;

follows:

IT IS HEREBY STIPULATED, by and between the undersigned, as

4020923v.2

Case 1:10-cv-02181-BMC Document 15 Filed 06/10/10 Page 2 of 3 PageID #: 169 Case 1:10-cv-02181-BMC Document 14 Filed 06/08/10 Page 2 of 3
I. The Court, upon stipulation by the parties hereto, may order the certification, pursuant to Rule 23(a) and (b)(2) ofthe Federal Rules of Civil Procedure, of the following plaintiff class: "Children under the age of 18 who are in the custody of the New York City Administration for Children's Services ("ACS") and who are currently admitted or will be brought to and admitted to acute psychiatric hospitals and who, once admitted and deemed ready for discharge, are not moved by ACS and/or one of its contract agencies to the least restrictive setting appropriate to their needs."
2. The plaintiff class is so numerous that joinder of all members is impracticable.
3. There are questions oflaw or fact common to the class. 4. The claims or defenses of the representative parties are typical of the claims or defenses of the class. 5. The representative parties will fairly and adequately protect the interests of the class. 6. Plaintiffs allege that the defendant has acted or refused to act on grounds that apply generally to the class, so that fmal injunctive relief or corresponding declaratory relief is appropriate respecting the class as a who Ie.
2
4020923v.2

Case 1:10-cv-02181-BMC Document 15 Filed 06/10/10 Page 3 of 3 PageID #: 170 Case 1:10-cv-02181-BMC Document 14 Filed 06/08/10 Page 3 of 3

7. This Stipulation and Order is solely for the purpose of resolving class certification and is without prejudice to the parties' legal and equitable rights and defenses in this action.

Dated: New York, New York June 8, 2010

THE LEGAL AID SOCIETY
Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel
Attorney for Plaintiffs 199 Water Street, 3rd Floor
New York, NY 10038 (212) 577-3300

MICHAEL A. CARDOZO Corporation Counsel of the City ofNew York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923

By: lsi Nancy Rosenbloom Nancy Rosenbloom
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000

By: /s/ Martha Calhoun Martha Calhoun Assistant Corporation Counsel

By: /s/ Lisa E. Cleary Lisa E. Cleary

s/Hon. Brian M. Cogan

SO ORDERED:

(,C
Hon.

Brian

"
M.

.~ ~
C~, p.S.DJ.

3
4020923v.2

 
 Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW Y--O---R--K----------A.M., eta/.,
Plaintiffs,
-against-
John B. Mattingly, in his official capacity as Commissioner of the New York City Administration for Children's Services,
Defendant.

10 CV 2181 (BMC)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND APPROVAL OF NOTICE

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 2 of 11
Plaintiffs, by their undersigned counsel, and upon the Notice of Motion, Attorney Declaration of Lisa E. Cleary with attached Exhibits, and the Next Friend Declarations of Kinda Serafi, Cynthia Godsoe and C.B. Mobley, submitted herewith, respectfully submit this Memorandum of Law in support of their motion for an order preliminarily approving the agreedupon settlement reflected in the Stipulation and Order of Settlement, signed October 12, 2010 (the "Settlement" or the "Stipulation"), and the proposed notice plan.
PRELIMINARY STATEMENT1 This litigation was brought in the Eastern District ofNew York on May 12, 2010, to challenge practices and procedures by theNew York City Administration for Children's Services ("ACS") that, Plaintiffs allege, improperly placed and detained children in foster care in acute-care psychiatric hospitals. As alleged in the Complaint, children in foster care languished in acute-care facilities for weeks and months beyond the dates on which they were cleared for release by doctors at these facilities. The Named Plaintiffs, three children currently in the care ofACS, sought, on behalf ofa class of similarly-situated children, injunctive reliefprohibiting such detention and designed to prevent such improper detention from occurring again in the future. After bringing the litigation and a preliminary injunction motion, engaging in discovery, having a Plaintiff class certified, and engaging in extensive, arms-length negotiations with counsel for the Defendant, the Plaintiffs now seek approval of a Settlement providing injunctive relief to the class. The Settlement, set forth in a detailed Stipulation submitted herewith, is the result of careful and complex arm's-length negotiations between experienced and informed counsel on both sides. Under the Stipulation, the class receives injunctive reliefto remedy the practices complained ofas unlawful, and the Defendant has agreed to extensive data collection and
1 All capitalized terms used herein are defined in the attached Stipulation. -2-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 3 of 11
monitoring to review the level of success ofthe injunctive relief. As discussed further below, the Settlement provides fair, adequate and reasonable relief for the Class in light of the risks and obstacles that might be faced were the case litigated to judgment.
Accordingly, with the consent of Defendant, the plaintiffs respectfully seek entry ofan order:
(1) preliminarily approving the settlement; (2) approving notice to the Class in substantially the forms attached hereto as Exhibits A and B
to the Attorney Declaration of Lisa E. Cleary ("Settlement Notice") and the proposed plan for disseminating the Settlement Notice; and (3) setting a date for the fairness hearing on the proposed Settlement.
BACKGROUND OF LITIGATION This litigation was brought under Title II ofthe Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); the Fourteenth Amendment ofthe U.S. Constitution; Article 1, § 6 ofthe New York Constitution; and various provisions of the New York Social Services Law and its implementing regulations. As noted above, the case is brought by children under the age of 18 who are in the custody of the ACS and who are currently admitted or will be brought to and admitted to acute psychiatric hospitals and who, once admitted and deemed ready for discharge, are not moved by ACS and/or one of its contract foster care agencies to the least restrictive setting appropriate to their needs. The Court so-ordered the parties' Stipulation for Class Certification on June 10, 2010. The Court also so-ordered the parties' Stipulation for preliminary injunctive relief on June 15, 2010. The parties have engaged in five months of settlement negotiations. Plaintiffs and Defendant reached agreement on a settlement resolving all of the Plaintiffs' claims against the Defendant. The Stipulation and Order of Settlement was signed on October 12,2010.
- 3-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 4 of 11
PRIMARY TERMS OF THE STIPULATION 1. Injunctive Relief
The Stipulation provides that ACS promulgate and implement a mandatory policy for its own staff and its foster care contract agencies that would require ACS and its foster care contract agencies to monitor each ofthe children in ACS's care who are admitted to acute psychiatric hospitals, immediately inform the child's parents and attorneys of any and all hospitalizations, ensure family visits for children who are hospitalized, and ensure that the children's education needs are being met while hospitalized. The policy provides for the creation ofa Mental Health Coordination Unit ("MHCU") which is charged with assisting ACS foster care contract agencies with the responsibilities described above as well as creating and providing training to ACS's and its foster care contract agencies' administrators and staff concerning the prevention of unnecessary psychiatric hospitalization, compliance with state and federal law regarding psychiatric hospitalization, and implementation of the tracking and monitoring relief described below. Stip. ,, 8, 9, 11. In anticipation ofthe approval of the agreement, ACS has begun its efforts to implement the measures that have been agreed to in the Stipulation. 2. Monitoring
The Stipulation provides for ACS to report data to Plaintiffs' Counsel. Stip.
m12, 14. ACS will provide Plaintiffs' Counsel monthly with aggregate reports containing
information about the: (i) Number of children hospitalized and being tracked by the newly-formed Mental Health Coordination Unit of Children's Services ("MHCU"); (ii) Number of new hospitalizations as of the last day ofthat month's reporting period;
-4-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 5 of 11
(iii) Number of children discharged from a hospital during the reporting period; (iv) Number ofMHCU-related training sessions provided to staff. The information about the specific children in these aggregate reports will include: (i) their length of stay; (ii) the number of children who returned to their previous placement, and the number
who had a change of placement; (iii) of children with a placement change, the number who remained at the same level
of care, moved to a higher level of care, or moved to a lower level of care than their previous placement; (iv) number of children referred to the clinical resources (e.g., B2H) prior to discharge and at the time of discharge; (v) barriers to discharge, if any; and (vi) the number of children for whom a family team conference was held during the hospitalization. ACS has also agreed to produce and provide to Plaintiffs' counsel monthly reports containing individual case information for each child admitted to or discharged from an acute psychiatric facility during that month. These reports will include the child's:
(i) Name; (ii) Date of Birth; (iii) Gender; (iv) Case planning agency; (v) Hospital that admitted the child; (vi) Date ofadmission;
- 5-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 6 of 11
(vii) Symptoms/behaviors that led to the child being brought to the hospital for assessment;
(viii) Diagnoses prior to admission (if available); (ix) Level ofplacement prior to admission; (x) Date of Discharge (if applicable); and (xi) Level of care to which child was discharged (if applicable). 3. Retention of Jurisdiction and Enforcement The Court will retain jurisdiction over this action for the purpose of enforcing the Settlement . If the Defendant fails to comply with the terms of the Stipulation, Plaintiffs may make a motion for enforcement and/or contempt before this Court and may also seek to extend the injunctive and monitoring provisions ofthe Stipulation for up to one year at a time from the date the Court's jurisdiction was scheduled to terminate. Stip. ~ 23. Unless otherwise ordered, the injunctive and monitoring provisions will sunset sixty months after the Court enters the Stipulation as an order of the Court. Stip. ~ 22.
ARGUMENT I. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL
A. The Standard for Preliminary Approval Federal Rule of Civil Procedure 23(e) provides that before a class action may
be settled, notice of the proposed settlement must be given in the manner directed by the court and judicial approval must be obtained. The first step ofthis process is for the court to review the proposed terms of settlement and make a preliminary determination as to the fairness, reasonableness, and adequacy of the settlement terms. See Manual for Complex Litigation, Fourth § 21.632. If "a proposed settlement appears to be the product of serious, informed, noncollusive negotiations, has no obvious deficiencies, does not improperly grant preferential
-6-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 7 of 11
treatment to class representatives or segments of the class, and falls within the range of possible approval, preliminary approval" should be granted. In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997). "Fairness is evaluated by examining (1) the negotiations that led up to the settlement, and (2) the substantive terms ofthe settlement." Sheppardv. Consol. Edison Co., No. 94 Civ. 0403,2002 U.S. Dist. LEXIS 16314, at *8~9 (E.D.N.Y. Aug. 1, 2002). The proposed Settlement is indeed fair, adequate, and reasonable, because it affords the plaintiff class injunctive relief directly targeting the Defendant's policies and practices complained of as unlawful. We therefore respectfully ask the court to preliminarily approve the settlement.
B. The Proposed Settlement Is Within the Range of Reasonableness The Second Circuit has set forth a nine-factor test to assess the fairness,
adequacy, and reasonableness of a class action settlement. See City ofDetroit v. Grinnell Corp., 495 F. 2d 448,463 (2d Cir. 1974). These factors include: "(1) the complexity, expense and likely duration ofthe litigation; (2) the reaction ofthe class to the settlement; (3) the stage of the proceedings and the amount ofdiscovery 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 ofthe 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 ofall the attendant risks of litigation." Id. (internal citations omitted). A full analysis ofthe fairness ofa settlement is not necessary at the preliminary stage, but courts often consider the Grinnell factors in granting preliminary approval. See, e.g. Ayzelman v. Statewide Credit Serv. Corp., 238 F.R.D. 358,366-67 (E.D.N.Y. 2006). The "most significant" ofthe nine factors is the strength ofthe Plaintiffs' case balanced against the settlement offer. See Selby v. Principal Mut. Lifo Ins. Co., No. 98 Civ.
- 7-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 8 of 11
5283, 2003 WL 22772330, at *2 (S.D.N.Y. Nov. 21, 2003). Courts routinely hold that there is a range of reasonableness with respect to settlements. See, e.g., Teachers Ret. Sys. v. A.C.L.N, Ltd, No. 01-CV-11814, 2004 U.S. Dist. LEXIS 8608, at *15 (S.D.N.Y. May 14, 2004) (quoting Newman v. Stein, 464 F. 2d 689,693 (2d Cir. 1972)).
The Settlement specifically addresses the issue alleged in the complaint. As noted above and set forth in the Stipulation, the Defendant is agreeing to set up a system of requirements and training, in addition to extensive monitoring and notification in order to prevent improper admission to, and unnecessary detention in, acute-care psychiatric hospitals. Stip. ~~ 7-14.
Although the Plaintiffs fully expect to successfully establish the liability of Defendant at trial, they also fully expect that the Defendant would challenge the Plaintiffs' case at all points prior to judgment and on appeal. This could not only ultimately prevent further injunctive relief from being obtained by Plaintiffs but would also at least significantly delay the implementation of injunctive relief. During this period, many foster children could be improperly placed or kept in acute-care psychiatric hospitals.
A trial would not necessarily guarantee that Plaintiffs would achieve the full reliefthat the Parties have agreed to in the Stipulation. These risks should be taken into account in assessing the proposed Settlement. See Grinnell, 495 F.2d at 463. The proposed Settlement will mitigate the uncertainty inherent in this lawsuit and create a framework for future legal compliance.
C. The Proposed Settlement is the Result of Arm's-Length Negotiations When a proposed settlement is the result of arm's-length negotiations
conducted by capable counsel experienced in class action litigation and occurring after meaningful discovery, it is presumed to be fair and reasonable. See Teachers' Ret. Sys., 2004
- 8-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 9 of 11
U.S. Dist. LEXIS 8608, at *5. The attached Settlement is the result oflengthy and vigorous litigation and negotiation between counsel for the Plaintiffs and counsel for the Defendant. Declaration of Lisa E. Cleary in Support of Preliminary Approval ofthe Settlement, ~~4, 5. Counsel have engaged in intensive negotiations, participating in numerous in-person meetings and telephone calls and exchanging letters and drafts of operative documents. Id. The Stipulation itself has been exchanged numerous times. The parties have participated in multiple settlement conferences. Further, colinsel for Plaintiffs have discussed the Settlement terms with Next Friends for the Named Plaintiffs and have received their approval of its terms.
Counsel for Plaintiffs recommend preliminary approval ofthe Settlement based upon their experience, their intimate knowledge ofthe strengths and weaknesses ofthe case, the likely recovery at trial and on appeal, and all other relevant facts. Courts have recognized the opinion of experienced and informed counsel supporting settlement is entitled to
considerable weight. See In re Salomon Inc. Sec. Litig., No. 91 Civ. 5442, 1994 U.S. Dist. LEXIS 8038, at *42 (S.D.N.Y. June 15, 1994); see also Mayer v. MacMillan Pub. Co., No. 78 Civ. 2133 (MEL), 1986 WL 15676, at *5 (S.D.N.Y. Mar. 28, 1986) ("In view of the fact that
judgment of counsel in this case is based on their thorough knowledge ofthe strength and weakness oftheir respective positions ... that judgment is entitled to deference."). This factor weighs heavily in favor ofpreliminary approval. II. THE PROPOSED NOTICE TO THE CLASS IS APPROPRIATE
Rule 23(e)(1) provides that, for a Settlement, "[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal." For a class certified under Rule 23(b)(2), "the court may direct appropriate notice to the class." Fed. R. Civ. P. 23(c)(2)(A). As more fully set forth below, the proposed notice complies with the requirements ofRule 23.
- 9-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 10 of 11
A. The Notice Plan The plan for providing notice to Class Members is comprehensive. The
Defendant, at ACS's expense, will be posting an 18 x 24 poster containing a condensed form of the notice in public areas of ACS's and their related agencies' offices, as well as the hospitals operated by the New York City Health and Hospitals Corporation. Furthermore, full notices will be distributed, at ACS's expense, to the directors of38local hospitals and the Executive Directors of 8 local organizations. A copy of the notice will be sent, at ACS's expense, to the Executive Director ofMental Hygiene Legal Services, while the Plaintiffs will distribute the notice to 12 other advocacy groups. The notice will also be posted on the website ofthe Legal Aid Society and in the Legal Aid Society offices in each Family Court building in New York City. The Legal Aid Society had obtained a dedicated telephone number that will be provided in all copies and variations ofthe notice in order to provide an informational resource for those interested in the Settlement.
B. The Proposed Notice Plan Satisfies Rule 23 and Due Process There is no bright-line rule to be met for notice of a settlement to satisfy the
requirements ofthe 14th Amendment and Rule 23. Still, the notice must fairly give prospective class members notice ofthe settlement, information as to the terms ofthe settlement, and explain the options available to the class members. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F. 3d 96, 114 (2d Cir. 2005). For a Rule 23(b)(2) class, individual notice is not required. Fed. R. Civ. P. 23(c)(2)(A); Foti v. NCO Fin. Sys., Inc., No. 04 Civ. 00707,2008 U.S. Dist. LEXIS 16511, at *13 (S.D.N.Y. Feb 20, 2008) ("Because this class action is filed under Rule 23(b)(2), due process is satisfied without individualized notice to prospective class members."). Indeed, because the Class Definition includes future class members, individual
- 10-

Case 1:10-cv-02181-BMC Document 21-5 Filed 11/17/10 Page 11 of 11

notice is not practicable. For a Rule 23{b)(2) class, notice "is flexible and may consist entirely of published notice in appropriate circumstances." In re NASDAQ, 169 F.R.D. at 515 n. 19.
The form and manner ofnotice are sufficient to properly notify the Class. The proposed form describes the nature, history and status of the litigation, sets forth the definition of the Class, states the claims alleged and issues involved, describes Class rights under Rule 23 and the Stipulation, and advises the Class that they may object to the Settlement. The Notice will include the date, time, and place ofthe Fairness hearing and the procedures for commenting on the Settlement. For all ofthe above reasons, the proposed notice is appropriate and satisfies all of the requirements of Rule 23.
CONCLUSION For the foregoing reasons, the Plaintiffs respectfully request that the Court preliminarily approve the Stipulation and approve the proposed notice as adequate.

Dated:

New York, New York November 17,2010

THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3300
By: Nancy Rosenbloom

PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue ofthe Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By: Is/ Lisa E. Cleary Lisa E. Cleary

- 11-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 1 of 8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------~-----~--------------------------··-------------------------·
' '
A.M., et al., ''''' Plaintiffs, '''''''''

10 CV 2181 (BMC)

-against-

icONSENT ORDER PURSUANT TO FED.

iR· CIV. P. RULE 23(e)

John B. Mattingly, in his official capacity as Commissioner of the New York City Administration

' ' ' ' '

for Children's Services,

' '

Defendant.

WHEREAS, Plaintiffs commenced the instant lawsuit on May 14, 2010 in the United States District Court for the Eastern District of New York, alleging that Defendant violated federal and state law by keeping children who are in foster care in acute-care psychiatric hospitals longer than necessary and failing to move these children to the least restrictive placements appropriate to their needs; and
WHEREAS, Plaintiffs and Defendant have negotiated and entered into a proposed Stipulation and Order of Settlement ("Stipulation"), which is subject to review under Rule 23 ofthe Federal Rules of Civil Procedure; and
WHEREAS, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure and by Order dated June 10, 201 0, this action was certified as a class action; and
WHEREAS, the Court has read and considered the Stipulation and the accompanying documents, and the parties to the Stipulation have consented to the entry of this Order; and
WHEREAS, the Plaintiff Class has been certified as:

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 2 of 8
Children Wlder the age of 18 who are in the custody of the New York City Administration for Children's Services ("ACS") and who are currently admitted or will be brought to and admitted to acute psychiatric hospitals and who, once admitted and deemed ready for discharge, are not moved by ACS and/or one of its contract agencies to the least restrictive setting appropriate to their needs.
IT IS HEREBY ORDERED that: 1. Defendant, at ACS's expense, shall cause a condensed notice of the terms of the proposed settlement to be distributed in both English and Spanish versions to and posted in an appropriate public area of the below listed agencies and offices with the form and text attached as Exhibit A, in a poster sized 18 x 24 inches, on or before _ _ _ _ _ _ _ _ _, and shall ensure that notice remains posted through the end of the notice period: (a) All ACS Field Offices; (b) ACS 's Office ofAdvocacy; (c) ACS's Children Center; (d) All ACS Contract Foster Care Agencies; and (e) All the hospitals listed below operated by the New York City Health
and Hospitals Corporation ("HHC"): (i) Bellevue Hospital Center; (ii) Coney Island Hospital; (iii) Elmhurst Hospital; (iv) Harlem Hospital; (v) Jacobi Medical Center; (vi) Jacobi-NCB Behavioral Health; (vii) Kings CoWlty Medical Center; (viii) Lincoln Medical and Mental Health Center;
-2-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 3 of 8
(ix) Metropolitan Hospital; (x) Morisania Diagnostic and Treatment Center; (xi) North Central Bronx Hospital; (xii) Queens Hospital Center; (xiii) Renaissance Health Care Network Diagnostic and Treatment
Center; and (xiv) Woodhull Medical and Mental Health Center. 2. Defendant, at ACS's expense, shall cause notice of the terms of the proposed settlement to be distributed to the Directors of the below listed hospitals with the form and text attached as Exhibit B, on or before _ _ _ _ _ _ _ __ (a) Bronx-Lebanon Hospital Center; (b) Brookdale University Hospital; (c) Brookhaven Hospital; (d) Brooklyn Hospital; (e) Brunswick Hospital; (f) Flushing Hospital; (g) Four Winds- Westchester; (h) Gouveneur Healthcare Services; (i) Holliswood Hospital; (j) Interfaith Medical Center; (k) Jamaica Hospital; (1) LIJ-Zucker-Hillside; (m) Long Island College Hospital;
- 3-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 4 of 8
(n) Lutheran Medical Center; (o) Maimonides Medical Center; (p) Montefiore Medical Center Children's Hospital; (q) Mount Sinai Medical Center; (r) New York Hospital Columbia Presbytarian; (s) North General Hospital; (t) New York Methodist Hospital; (u) New York Hospital Weill Cornell Payne Whitney Clinic; (v) New York Hospital- Westchester; (w) New York University Tisch Hospital; (x) Our Lady of Mercy; (y) Richmond University Medical Center; (z) Rye Hospital; (aa) Schneider Children's Hospital (Zucker); (bb) St. Barnabas; (cc) St. Johns Queens Hospital; (dd) St. Luke's Roosevelt Medical Center- Roosevelt Hospital; (ee) St. Luke's Roosevelt Medical Center St. Luke's Hospital; (ff) St. Vincent's- Westchester; (gg) South Oaks Hospital; (hh) Staten Island University Hospital- North Site; (ii) Staten Island University Hospital- South Site; (jj) Stony Lodge - Westchester;
-4-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 5 of 8
(kk) Westchester Medical Center; and (11) WyckoffMedical Center. 3. Defendant, at ACS's expense, shall cause a notice of the terms of the proposed settlement with the form and text attached as Exhibit B to be distributed to the Executive Directors of the below listed organizations and offices with a request that it be distributed to the sites that serve class members. (a) Advanced Center for Psychotherapy; (b) Addabbo Health Center; (c) Bleuler Psychotherapy Center; (d) The Child Center ofNew York; (e) FEGS Health and Human Services System; (f) Soundview Mental Health Center; (g) Steinway Children's Center; and (h) Western Queens Consultation Center. 4. Defendant, at ACS's expense, shall cause a notice of the terms of the proposed settlement to be distributed to the Executive Director of Mental Hygiene Legal Services at 170 Old Country Road, Mineola, NY, 11501 with a request that it be distributed to all offices. 5. Defendant shall provide to plaintiffs' counsel 20 (twenty) copies of the notice poster. 6. Plaintiffs, at their own expense, shall provide notice of the terms ofthe proposed settlement to the following, with the form and text attached as Exhibit B, on or before _ _ _ _ _ _ _ ___, to the following persons, with a request that they post the notice where children in ACS's care and their families have access to it:
- 5-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 6 of 8
(a) Lawyers for Children; (b) Children's Law Center; (c) Children's Rights, Inc.; (d) Jane Schreiber, Director ofthe Attorney for the Child Program,
Appellate Division, First Department; (e) Harriet Weinberger, Director ofthe Attorney for the Child Program,
Appellate Division, Second Department; (f) The Door; (g) Children's Aid Society's The Next Generation Center; (h) LIFT Legal Information for Families Today; (i) Administrative Judges ofthe New York City Family Courts; G) Center for Family Representation; (k) Bronx Defenders; and (1) Brooklyn Family Defense Project, Legal Services ofNew York. 7. Plaintiffs' counsel shall cause the notice to be posted during the notice and comment period on the website ofthe Legal Aid Society and in the Legal Aid Society offices in each Family Court building in New York City. 8. The form and· content of the settlement notice, and the method set forth herein of notifying the class of the settlement and its terms and conditions, meet the requirements of Rule 23 of the Federal Rules of Civil Procedure and of the Due Process Clause, and constitute the best notice practicable under the circumstances to all persons entitled to notice. 9. The Court will hold a hearing to consider the fairness and adequacy ofthe proposed settlement on _ _ _ _ _ _ _ _ _ _ _ ___, in the United States Courthouse at
-6-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 7 of 8
225 Cadman Plaza East, Brooklyn, New York 11201. Attendance at the fairness hearing by those seeking to comment on the settlement is not necessary.
10. Persons who wish to present comments or objections to the settlement must do so in writing with a statement that the comments relate to A.M. et al. v. Mattingly, 10 CV 2181 (BMC), and must mail them so as to be received by _ _ _ _ _ _ _ __, to:
CLERK OF THE COURT Brooklyn Courthouse (Main Office) United States District Court Eastern District ofNew York 225 Cadman Plaza East Brooklyn, NY 11201 11.. The Legal Aid Society will set up a hotline at telephone number 212577-3933 for those seeking to obtain information related to the proposed settlement. 12. Counsel for Plaintiffs and Defendant shall make submissions in support of the fairness and adequacy of the proposed settlement, together with copies of all comments received and responses to any objections made, or on before _ _ _ _ _ _ _ __
THE LEGAL AID SOCIETY Steven Bartks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, New York 10038 (212) 577-3300
By: Nancy Rosenbloom - 7-

Case 1:10-cv-02181-BMC Document 21-6 Filed 11/17/10 Page 8 of 8
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue ofthe Americas New York, New York 10036 (212) 336-2000 By:
Lisa E. Cleary MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923 By:
Martha A. Calhoun Assistant Corporation Counsel
SO ORDERED:
The Hon. Brian M. Cogan, U.S.D.J.
- 8-

 
 CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee11oof f1165 Page 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

A.M., et al.,

i 10 CV 2181 (BMC)

Plaintiffs,

-against-

$TIPULATION AND ORDER

/OF SETTLEMENT

John B. Mattingly, in his official capacity as

Commissioner of the New York City Adininistration /

for Children's Services,

Defendant.

WHEREAS, Plaintiffs commenced the instant lawsuit on May 12, 2010, alleging
that the Defendant violated federal and state law by improperly retaining Plaintiffs, and a
proposed class of Plaintiff children who are in foster care, in acute care psychiatric hospitals;
WHEREAS, on June 10, 2010, the Court so-ordered the parties' Stipulation and
Order for Class Certification certifying the following class:
Children under the age of 18 who are in the custody of the New York City Administration for Children's Services ("ACS") and who are currently admitted or will be brought to and admitted to acute psychiatric hospitals and who, once admitted and deemed ready for discharge, are not moved by ACS and/or one of its contract agencies to the least restrictive setting appropriate to their needs; and
WHEREAS, Defendant is implementing a new policy and procedure for the
- provision of emergency and inpatient mental health services for children in the foster care and
child protective system;
WHEREAS, Defendant is implementing a new system for tracking and
monitoring children in acute psychiatric hospitals;

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee22oof f1165 Page 2
WHEREAS, Defendant denies each and every allegation contained in the Complaint;
WHEREAS, no finding of liability has been made; WHEREAS, the parties desire to resolve the issues that have been raised in this litigation without further proceedings and without admitting fault or liability; NOW, THEREFORE, I T IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
DEFINITIONS 1. "Acute care psychiatric hospital": A municipal or voluntary hospital constituted
under Article 31 of the New York Mental Health Law that provides inpatient psychiatric care to children and adolescents under the age of 18 to stabilize psychiatric and behavior crises until such a time when acute potential risk to safety of self or others can be clinically ruled out and follow-up care can be safely carried out at an outpatient or intermediate care facility. 2. "Foster care provider agencies" or "provider agencies": Agencies authorized pursuant to Social Services Law §371(1O)(a) that contract with the Administration for Children's Services ("ACS" or "Children's Services") to provide care to children remanded to, or placed in, the custody of the Commissioner of Children's Services. 3. "Least restrictive placement" or "least restrictive setting": Pursuant to 18
N.Y.C.R.R. 8 430.1 1, the most appropriate level of placement will always be
considered to be the least restrictive and most homelike setting in which the child can be maintained safely and receive all services in his or her service plan.

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee33oof f1165 Page 3
4. "MHCU": The Mental Health Coordination Unit of Children's Services. 5. "Effective Date": The date this Stipulation and Order of Settlement
("Stipulation") is entered as an order of the Court. 6 . "Effective Period": The period of time from the Effective Date until the
termination of the Court's jurisdiction over this action. DEFENDANT'S OBLIGATIONS
7. As of the Effective Date of this Stipulation, Defendant shall have promulgated the mandatory policy and procedure regarding children in Children's Services' care who are admitted to acute care psychiatric hospitals, a copy of which is annexed hereto as Exhibit A.
8. Defendant shall develop, implement, and maintain policies and procedures, consistent with its obligations under state and federal law, including Title I1 of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Olmstead
v. L.C., 527 U.S. 581 (1999), Social Services Law 5 398(6)(g)(l), and 18 N.Y.C.R.R. 5 430.11, and other federal and state laws regarding the least
restrictive placement of children who have been psychiatrically hospitalized, to provide for the timely discharge of children in acute care psychiatric hospitals to the least restrictive setting appropriate to their needs. 9. By December 15, 2010, Defendant shall implement tracking and monitoring for children in acute care psychiatric hospitals using the data collection instruments annexed hereto as Exhibit B, through which the MHCU will track and monitor children in psychiatric hospitals.

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee44oof f1165 Page 4
10. Beginning January 1, 201 1, Defendant shall integrate questions related to case practice with children who experience acute care psychiatric hospitalizations into the Medical Quality AssuranceIQuality Improvement ("Medical QNQI") tool used in review of provider agencies. Defendant shall share all provider agencies' Medical QAIQI reports and scores and aggregate data from the MHCU tracking system related to number of hospitalizations and lengths of stay with the Division of Quality Assurance Agency Program Assistance ("APA") unit Director. If the Division of Quality Assurance APA unit Director determines that the Medical QNQI review of any foster care agency or the aggregate data from the MHCU tracking system with respect to any provider agency reflects significant or recurring noncompliance with Children's Services' policies and procedures regarding children in Children's Services' care who are admitted to acute care psychiatric hospitals, Defendant shall require the provider agency to implement a Corrective Action Plan. Defendant shall notify Plaintiffs' counsel of any such Corrective Action Plan, including the identity of the provider agency, within fourteen (14) days after its approval.
11. Defendant shall develop and conduct training on a regular basis on policies and procedures developed and issued pursuant to paragraphs 7, 8 , 9 , and 10 above, for provider agencies and appropriate Children's Services' staff, including (a) for Children's Services, Operational Deputy Directors in the Division of Child Protection; (b) for Children's Services, Office of Placement Administration ("OPA") managers and OPA staff in the specialized unit; and (c) for provider agencies, foster care program directors, medical and mental health directors,

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee55oof f1165 Page 5
designated foster care agency MHCU liaisons, and foster care program supervisors. Training materials will include education regarding the prevention of hospitalizations of children and will be made available to Children's Services staff and provider agencies through MHCU technical support and through Children's Services' website. Training for directors and managers will commence in October 2010; ACS will make best efforts to complete training for significant numbers of staff identified in this paragraph by April 30, 201 1 and shall complete training for all staff identified in this paragraph by July 1,2011. 12. Defendant shall provide monitoring to Plaintiffs' counsel as set forth in paragraph 14 below. 13. During the Effective Period of the Stipulation, Defendant shall provide copies of the policies, procedures, data collection instruments, and training materials described in paragraphs 7 through 11 above, and any future changes to these documents, to Plaintiffs' counsel for their review. Regarding changes to policy and/or procedures, Defendant will provide copies to Plaintiffs' counsel at least forty-five (45) days before implementation and Plaintiffs' counsel will have twenty (20) days in which to provide comments. Regarding changes to data collection instruments, Defendant will provide copies to Plaintiffs' counsel at least thirty (30) days before implementation, and Plaintiffs' counsel will have fourteen (14) days in which to provide comments. Regarding training materials, Defendant will provide copies of training materials to Plaintiffs' counsel and shall provide them, when feasible, thirty (30) days in advance of their expected use, and Plaintiffs' counsel will have fourteen (14) days in which to comment.

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee66oof f1165 Page 6
However, Defendant reserves the right to make changes or updates to a training curriculum without providing notice, in response to feedback from participants or trainers' experience in using a particular training. In such case, copies of the training materials will be provided to Plaintiffs' counsel no later than five (5) business days after the date on which they are first used.
MONITORING 14. By the Effective Date of this Stipulation, Children's Services shall develop
reports based on data collected from foster care agencies by the MHCU tracking unit to provide to Plaintiffs' counsel that will consist of the following information: (a) Monthly reports consisting of the following aggregate information:
(i) Number of children currently hospitalized, and being tracked by MHCU (point-in-time for last day of the reporting period);
(ii) Number of new hospitalizations as of the last day of that month's reporting period; and
(iii) Number of children discharged from a hospital during the reporting period.
(iv) For children discharged from a hospital during the reporting period, the report will also include the following aggregate data:
a. length of stay;

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee77oof f1165 Page 7
b. the number of children who returned to their previous placement, and the number who had a change of placement;
c. of children with a placement change, the number who remained at the same level of care, moved to a higher level of care, or moved to a lower level of care than their previous placement;
d. number of children referred to the clinical resources (e.g., B2H) prior to discharge and at the time of discharge;
e. barriers to discharge; and
f. the number of children for whom a family team conference was held during the hospitalization.
(v) Number of MHCU-related training sessions provided to Children's Services and foster care agency staff as of the last day of that month's reporting period.
(b) Monthly reports consisting of the following individual case information for each child admitted to or discharged from an acute psychiatric facility during the reporting period:
Name;
Date of Birth;
Gender;
Case planning agency;
- 7 -

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFilieledd0120/2/183/1/110 PPaaggee88oof f1165 Page 8
(v) Hospital that admitted the child; (vi) Date of admission;
(vii) Symptoms/behaviors that led to the child being brought to the hospital for assessment;
(viii) Diagnoses prior to admission (if available);
(ix) Level of placement prior to admission; (x) Date of Discharge (if applicable); and (xi) Level of care to which child was discharged (if applicable). (c) During the second year of this Stipulation, reports will be provided on all of the elements listed in paragraphs 14(a) and 14(b) every two months.
(d) During the third and subsequent years of this Stipulation, reports will be provided on all of the elements listed in paragraphs 14(a) and 14(b) on a quarterly basis.
(e) Beginning on the Effective Date, all reports listed in paragraph 14 shall be provided to Plaintiffs' counsel within thirty (30) days after the end of the month in which the data is collected.
INDIVIDUAL RELIEF 15. Without diminishing the right of the Plaintiff class to seek enforcement of the
provisions of this Stipulation, or of any individual class member to seek relief as set forth in paragraph 21 of this Stipulation, by the Effective Date of the
- 8 -

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee99oof f1165 Page 9
Stipulation, Defendant shall provide a mechanism pursuant to which Plaintiffs' counsel may bring to the attention of Children's Services individual cases or instances in which there has been an alleged violation of the terms and conditions of this Stipulation. Children's Services shall investigate the case(s), take any appropriate steps required to resolve the issue(s) concerning each individual case, and report the result of such investigation in writing to Plaintiffs' counsel.
JURISDICTION 16. The provisions of this Stipulation shall not take effect unless and until this
Stipulation is entered as an order of the Court, at which time it shall become effective. Defendant's obligations under this Stipulation shall run during the Effective Period. 17. Except for the claims of the individually-named Plaintiffs for damages and individual injunctive relief set forth in paragraph 25 below, as of the Effective Date, all remedies sought in the Complaint are limited to the provisions of this Stipulation. 18. The jurisdiction of this Court shall end at the conclusion of sixty (60) months following the Effective Date unless Plaintiffs move for and are granted an extension pursuant to paragraphs 22 and 23 of this Stipulation. At the time of termination of jurisdiction, all rights and claims arising under the provisions of this Stipulation shall terminate and all remaining claims under this Complaint shall be dismissed with prejudice.
ENFORCEMENT
- 9 -

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1100oof f1165 Page 10
19. In the event of a motion by Plaintiffs for enforcement or contempt based upon Defendant's alleged non-compliance with this Stipulation, Defendant shall be considered to be in compliance with the provisions of this Stipulation unless Plaintiffs establish that Defendant's failures or omissions to comply with the provisions of this Stipulation were not minimal or isolated, but were sufficiently significant or recurring as to be systemic. During the Effective Period, if Plaintiffs' counsel believes that Defendant has failed to comply, as defined by paragraph 19 above, with the provisions of this Stipulation, Plaintiffs' counsel shall notify Defendant's counsel in writing of the nature and specifics of the alleged failure to comply, and shall specify the basis for such belief, including any monitoring reports upon which such a belief is based. Such written notice shall be provided at least thirty (30) days before any motion is made for enforcement of this Stipulation or for contempt. Unless otherwise resolved, the parties' counsel shall meet within this thirty (30) day period following notice to Defendant's counsel in an attzmpt to arrive at a resolution of the alleged failure to comply. If no resolution is reached within thirty (30) days from the date of notice, Plaintiffs may move this Court for an order enforcing the provisions of this Stipulation and/or for contempt. Plaintiffs shall bear the burden of proving that the alleged noncompliance is sufficiently significant or recurring as to be systemic, as set forth in paragraph 19 above. Non-systemic individual and isolated violations of this Stipulation shall not form a basis for a finding that Defendant has acted in contempt of this Stipulation, or as a basis for a motion for

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1111oof f1165 Page 11
enforcement. Nothing in this paragraph, however, shall prevent Plaintiffs, when moving for enforcement or contempt of this Stipulation, from seeking individual injunctive relief in this Court on behalf of only those class members whose situations are described to exemplify the noncompliance complained of in the enforcement or contempt motion. No motion for contempt or enforcement shall be brought to remedy those violations that the parties agree (a) have been cured, or (b) will be cured pursuant to a plan agreed upon by the parties. In the event that the parties agree to a plan to cure an alleged violation and Plaintiffs believe that the violation has still not been cured, Plaintiffs must provide at least ten (10) days' notice before any motion is made for enforcement of this Stipulation or for contempt.
EXTENSION OF THE TERM OF THE STIPULATION 22. Plaintiffs may move this Court for an order extending the jurisdiction of the Court
over this Stipulation and Order of Settlement by complying with the provisions of paragraphs 20 and 21, and shall make any such motion no later than sixty (60) days before the scheduled termination of this Court's jurisdiction, unless another date is agreed upon by the parties. 23. In the event that Plaintiffs move to extend the jurisdiction of this Court pursuant to paragraph 22 of this Stipulation and Order of Settlement, the standard for measuring Defendant's compliance with the provisions of this Stipulation is that set out in paragraph 19, above, of this Stipulation. Any such extension of the jurisdiction of this Court shall be for a period of not more than one (1) year at a time from the date the Court's jurisdiction was scheduled to terminate. The

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1122oof f1165 Page 12
Court's jurisdiction shall only be extended over those provisions of this Stipulation that are necessary to correct or prevent violations of federal or state law as to class members. 24. Prior to the expiration of any period of extended jurisdiction set forth in paragraph 22 and 23 of this Stipulation and Order of Settlement, Plaintiffs may move for contempt or enforcement consistent with the provisions set forth in paragraphs 20 and 21 of this Stipulation. Plaintiffs may also move for a further extension of the jurisdiction of the Court beyond any extension granted pursuant to a motion made in accordance with paragraphs 22 and 23 of this Stipulation. No motion for extension of the Court's jurisdiction made pursuant to this paragraph shall be made prior to six months before the expiration of the Court's jurisdiction, and any such motion shall be subject to the provisions for extension of the Court's jurisdiction set forth in paragraphs 22 and 23 of this Stipulation. NAMED PLAINTIFFS' CLAIMS FOR DAMAGES AND INDIVIDUAL
INJUNCTIVE RELIEF 25. The claims for individual damages brought on behalf of Plaintiffs A.M., M.M.,
and S.M. will be addressed in a separate stipulation. GENERAL PROVISIONS
26. Defendant agrees that Plaintiffs are entitled to counsel fees and costs as though they are prevailing parties. The parties agree to attempt to negotiate the amount of such counsel fees and costs. If they are unable to agree on an amount within ninety (90) days of the Effective Date, Plaintiffs may submit an application for

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1133oof f1165 Page 13
counsel fees and costs to the Court, and Defendant reserves the right to respond to such an application in a manner that is consistent with this paragraph. 27. No provision in this Stipulation and Order of Settlement shall infringe upon any class member's right to seek to compel Defendant to provide any form of relief the class member deems appropriate in the Family Court so long as the class member is not seeking to challenge any of the provisions set forth in this Stipulation. 28. The parties' Protective Order regarding confidential information, entered by the Court on July 2, 2010, shall remain in effect during the Effective Period of this Stipulation. 29. Nothing contained in this Stipulation and Order of Settlement shall be deemed to be a finding or an admission that Defendant has in any manner violated Plaintiffs' rights as contained in the Constitution, Statutes, Ordinances and Rules and Regulations of the United States, the State of New York, or the City of New York. 30. This Stipulation and Order of Settlement shall not be admissible in, nor is it related to, any other proceeding. Nothing in this paragraph, however, shall bar Plaintiffs' counsel from using information or documents obtained in connection with this Stipulation, in any other proceeding in a manner that is consistent with the provisions of the Protective Order entered on July 2, 2010 and otherwise consistent with law. 3 1. Notwithstanding the provisions of this Stipulation, Defendant reserves the right to implement, change, or otherwise alter or amend the procedures and requirements of this Stipulation if required by intervening changes in federal statute or

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1144oof f1165 Page 14
regulation or state statute or regulation which are inconsistent with the terms of
this Stipulation. Defendant shall provide Plaintiffs7 counsel with written
notification of a required change at least sixty (60) days prior to the
commencement of implementation, unless Defendant is required to commence
implementation of such a required change in less than sixty (60) days. If
Defendant is required to commence implementation of a required change in less
than sixty (60) days, counsel for Defendant shall provide such notice no later than
seven (7) working days after learning thereof. Plaintiffs reserve the right to
oppose any changes sought by Defendant pursuant to this paragraph.
32. All written notifications sent pursuant to this Stipulation and all other
correspondence concerning this Stipulation shall be sent by electronic mail or
facsimile to the following addresses, or to such other address as the recipient
named below shall specify by notice in writing:
To Plaintiffs7counsel
Tamara A. Steckler The Legal Aid Society 199 Water Street New York, NY 10038 tasteckler@leaal-aid.org Fax: (212) 577-3521
Lisa E. Cleary Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 lecleary@,pbwt.com Fax: (212) 336-2222
To Defendant's counsel
Martha A. Calhoun D. Alan Rosinus

CCaassee11:1:100-c-cvv-0-022118811-B-BMMCC DDooccuummeennt t2305-1 FFileiledd0120/2/183/1/110 PPaaggee1155oof f1165 Page 15
New York City Law Department 100 Church Street New York, NY 10007 mcalhoun~law.nycg. ov arosinus~,1aw.nyc.gov Fax: (212) 788-0877
33. This Stipulation and Order of Settlement is final and binding upon the parties,
their successors and their assigns.

Dated:

New York, New York October 12,2010

THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rdFloor New York, NY 10038 (212) 577-3300

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, New York 10007

By:

PATTERSONBELKNAPWEBB&TYLERLLP Attorney for Plaintiffs 1133 Avenue of the Americas
ork 10036-6710

Case 1:10-cv-02181-BMC Document 35 Filed 02/28/11 Page 16 of 16
IT IS HEREBY ORDERED that: 1. This Stipulation is entered as an order of the Court and thereby takes effects pursuant to paragraph 16.

Dated: ________, 2011

______________________________ HON. BRIAN M. COGAN, U.S.D.J.

- 16 -

 
 Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 1 of 9 PageID #: 598

UNITED STATES DISTRICT COURT E__A_S_T_E_R_N__D_I_S_T_R_IC_T__O_F__N_E_W__Y_O__R_K______________ x
A.M., et al.,

FILED
IN CLERK'S OFFICE U.S DISTRICT COURT E.D.NY
* * JUN 2 9 2011
BROOKLYN OFFICE

Plaintiffs,

10 Civ. 2181 (BMC)

-against-
JOHN B. MATTINGLY, in his official capacity as Commissioner of the New York City Administration for Children's Services,

: STIPULATION AND ORDER : OF SETTLEMENT AS TO : ATTORNEYS' FEES

Defendant.
------------------------------------------x
WHEREAS, Plaintiff A.M., by her next friend C.B. Mobley, PlaintiffM.M., by his next

friend Cynthia Godsoe, and Plaintiff S.M., by his next friend Kinda Serafi (collectively "the

Individually Named Plaintiffs"), commenced this action by filing a Class Action Complaint (the

"Complaint") on May 12,2010, alleging that the Defendant violated federal and state law by

improperly retaining the Individually Named Plaintiffs, and a proposed class of Plaintiff

children, in acute care psychiatric hospitals; and

WHEREAS, the Complaint contains a prayer for an award of costs, expenses,

disbursements, and attorneys' fees in prosecuting this action; and

WHEREAS, on June 10, 2010, the Court so-ordered the parties' Stipulation and Order

for Class Certification pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure,

certifying the following class ("Class"):

Children under the age of 18 who are in the custody of the New York City Administration for Children's Services ("ACS") and who are currently admitted or will be brought to and admitted to acute psychiatric hospitals and who, once admitted and deemed ready for discharge, are not moved by ACS and/or one of its contract agencies to the least restrictive setting appropriate to their needs; and

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 2 of 9 PageID #: 599
WHEREAS, the Defendant is implementing a new policy and procedure for the provision of emergency and inpatient mental health services for children in foster case and the child protective system and is implementing a new system for tracking and monitoring children in acute care psychiatric hospitals; and
WHEREAS, the Defendant denies each and every allegation contained in the Complaint; and
WHEREAS, no finding of liability has been made; and WHEREAS, the Court approved and so-ordered the Stipulation and Order of Settlement of the claims of the Class for injunctive relief ("Class Settlement") on March 11, 2011; and WHEREAS, the Class Settlement provides that within 90 days of the entry of the Class Settlement, Plaintiffs' counsel may submit a request for attorneys' fees and costs to the Court; and WHEREAS, the Legal Aid Society and Paterson Belknap Webb & Tyler LLP (collectively, "Plaintiffs' counsel") have represented and continue to represent the Individually Named Plaintiffs and the certified Plaintiff Class (together, "Plaintiffs"); and WHEREAS, Plaintiffs' counsel have not received, and will not receive, any payment from the Individually Named Plaintiffs or other Plaintiff Class member in connection with work done on behalf of the Plaintiffs in this action; and WHEREAS, the Plaintiffs and the Defendant wish to resolve the Plaintiffs' claim for attorneys' fees, expenses, disbursements, and costs in prosecuting this action; NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
2

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 3 of 9 PageID #: 600
1. The Plaintiffs hereby agree that the settlement described in this Stipulation and Order of Settlement as to Attorneys Fees (the "Attorneys' Fees Stipulation") fully satisfies the claim set forth in the Complaint for an award of attorneys' fees, expenses, disbursements, and costs in the prosecution and settlement of this action, including all work performed with respect to the damages claims of the Named Plaintiffs.
2. The Defendant agrees to pay Patterson Belknap Webb & Tyler LLP, at 1133 Avenue of the Americas, New York, New York, 10036-6710, on behalf of its office and on behalf of the Legal Aid Society, the sum of three hundred and eight thousand dollars ($308,000.00) in full settlement and release of the Plaintiffs' claim against the Defendant for attorneys' fees, expenses, disbursements, and costs in the prosecution and settlement of this action. Payment will be made within ninety (90) days of the so-ordering ofthis Attorneys' Fees Stipulation and receipt of all papers necessary to effectuate this Stipulation (including, but not limited to, original copies ofthe Waiver and Release to which paragraph 3 below refers).
3. This Attorneys' Fees Stipulation and the payment described in paragraph "2" above is contingent upon the execution by each of the Individually Named Plaintiffs, through their next friends, and delivery to Defendant's counsel, of the Waiver and Release in the form attached hereto as Exhibit 1.
4. Nothing contained herein shall be deemed to be an admission by the Defendant of having violated in any manner or way the Plaintiffs' rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York, or any other rules, regulations, or bylaws of any department, agency, or subdivision of the City of New York.
3

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 4 of 9 PageID #: 601
5. This Attorneys' Fees Stipulation is solely for the purpose of settlement of Plaintiffs' claim for attorneys' fees, expenses, disbursements, and costs set forth in the Complaint and does not reflect the positions of the parties in any other judicial or administrative proceeding. Nothing contained in this Attorneys' Fees Stipulation shall be deemed, implied or construed to be a policy, custom or procedure of the Defendant, the City of New York, or any of its agencies.
6. This Attorneys' Fees Stipulation shall not be admissible in any other litigation, except for enforcement of the provisions contained herein.
7. If any date or period of time described in this Attorneys' Fees Stipulation falls or ends on a public holiday or on a weekend, the date or period oftime shall be extended to the next business day.
8. This Attorneys' Fees Stipulation is not in settlement or release of any potential future claim for attorneys' fees, expenses, disbursements, and costs incurred in connection with monitoring or enforcing the terms ofthe Class Settlement. Nothing herein shall be deemed to constitute a waiver of any defenses to any future application Plaintiffs may make in connection with attorneys' fees, costs, expenses, or disbursements in the future in this action.
9. This Attorneys' Fees Stipulation is final and binding on all Parties, as weB as their successors and assigns.
10. This Attorneys' Fees Stipulation contains all of the terms and conditions agreed to by the parties regarding the settlement of Plaintiffs' claim for attorneys' fees, expenses, disbursements, and costs set forth in the Complaint. No oral agreement entered into at any time nor any other written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, to bind the parties, or to vary the terms and conditions set forth in this Stipulation.
4

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 5 of 9 PageID #: 602

Dated: New York, New York May 26,2011

A.M., by and through her next friend, C.B. MOBLEY
M.M., by and through her next friend, CYNTHIA GODSOE
S.M., by and through her next friend, KlNDA SERAFI
THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3300
By: /s/ Tamara A. Steckler Tamara A. Steckler Attorney in Charge, Juvenile Rights Practice
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By: /s/ Lisa E. Cleary Lisa E. Cleary Partner

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923
By: /s/ Martha Calhoun Martha Calhoun Assistant Corporation Counsel

5

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 6 of 9 PageID #: 603

Dated: New York, New York
May 13; 2011

M.M., by and through her next friend, CYNTHIA GODSOE
S.M., by and through her next friend, KlNDA SERAFI
THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3300
By: Tamara A. Steckler Attorney in Charge, Juvenile Rights Practice
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By: Lisa E. Cleary Partner

MICHAEL A. CARDOZO Corporation Counsel ofthe City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923
By: Martha Calhoun Assistant Corporation Counsel

5

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 7 of 9 PageID #: 604

Dated: New York, New York
Ma~2011

A.M., by and through her next fricnd, C.B. MOBLEY
,.,-"
~M.-M-(, +~/d--th~ro~ug-h--~~----~
CYN'mrA GODSOE
S.M., by and through her next friend, KfNDA SERAFI
THE LEGAL AID SOCIETY Stcven Banks, Attorney-in-Chief Kimberly Forte, of cOtIDsei Attorney for Plaintiffs 199 Water Street, 3rt! Floor New York, NY 10038 (212) 577-3300
By: Tamara A Steckler Attorney in Charge, Juvenile Rights Practice
PATTERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By: Lisa E. Cleary Partner

MICHAEL A. CARDOZO Corporation Counsel orthe City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923
By: Martha Calhoun Assistant Corporation Counsel

5

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 8 of 9 PageID #: 605
'.

Dated: New York, New York May ~1-, 2011

A.M., by and through her next friend, C.B.MOBLEY
M.M., by and through her next friend, CYNTHIA GODSOE
s.Ml by and thrdJgh her next friend, KINDA SERAFI
THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Kimberly Forte, of counsel Attorney for Plaintiffs 199 Water Street, 3rd Floor New York, NY 10038 (212) 577-3300
By: Tamara A. Steckler Attorney in Charge, Juvenile Rights Practice
PATIERSON BELKNAP WEBB & TYLER LLP Attorney for Plaintiffs 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000
By:
Lisa E. Cleary
Partner

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, New York 10007 (212) 788-0923
By: Martha Calhoun Assistant Corporation Counsel

5

Case 1:10-cv-02181-BMC Document 46 Filed 06/29/11 Page 9 of 9 PageID #: 606
IT IS HEREBY ORDERED that: l. This Stipulation and Order of Settlement as to Attorneys' Fees is entered as an
order of the Court and thereby takes effect.
/s/(BMC)
Hon, Brian M,'Co~gn :/ United Sites Distr' Jfudge
Date: 6' 2<t ;' 2011
I

" ,

6

 
 Case 1:10-cv-02181-BMC Document 54 Filed 01/22/16 Page 1 of 3 PageID #: 624

Case 1:10-cv-02181-BMC Document 54 Filed 01/22/16 Page 2 of 3 PageID #: 625

Case 1:10-cv-02181-BMC Document 54 Filed 01/22/16 Page 3 of 3 PageID #: 626

Jan. 22

Digitally signed by Brian M. Cogan

 
 Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 1 of 8
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:10−cv−02181−BMC

CLOSED,IFP

A.M. et al v. Mattingly Assigned to: Judge Brian M. Cogan Cause: 42:1201 Civil Rights (Disability)
Plaintiff A.M. a minor, by her next friend CB Mobley

Date Filed: 05/12/2010 Date Terminated: 06/29/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Leonard Matthew Braman NYC Law Department 100 Church Street New York, NY 10007 212−356−2294 Fax: 212−788−1633 Email: lbraman@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Michael Engelhardt Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212−336−2000 Email: jengelhardt@pbwt.com ATTORNEY TO BE NOTICED
Kimberly Forte Legal Aid Society 199 Water Street New York, NY 10038 212−577−3800 Email: kforte@legal−aid.org ATTORNEY TO BE NOTICED
Leonard M. Braman 1133 Avenue of the Americas New York, NY 10036−6710 212−336−2000 Fax: 212−336−2222 ATTORNEY TO BE NOTICED
Lisa E. Cleary Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 (212) 336−2159 Fax: (212) 336−2222 Email: lecleary@pbwt.com ATTORNEY TO BE NOTICED
Lisa Freeman The Legal Aid Society 199 Water St New York, NY 10038 212−577−7982 Fax: 646−616−4982 Email: lafreeman@legal−aid.org ATTORNEY TO BE NOTICED

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 2 of 8

Plaintiff M.M. a minor, by his next friend Cynthia Godsoe
Plaintiff

Nancy Rosenbloom The Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 212−577−3265 Fax: 212−509−8753 Email: nrosenbloom@legal−aid.org TERMINATED: 06/06/2011 ATTORNEY TO BE NOTICED
Steven Banks Legal Aid Society 106th Street New York, NY 10029 212−426−3028 Email: sbanks@legal−aid.org ATTORNEY TO BE NOTICED
William F. Schmedlin Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036−6710 212−336−2000 Fax: 212−336−2222 ATTORNEY TO BE NOTICED
represented by Leonard Matthew Braman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Michael Engelhardt (See above for address) ATTORNEY TO BE NOTICED
Kimberly Forte (See above for address) ATTORNEY TO BE NOTICED
Leonard M. Braman (See above for address) ATTORNEY TO BE NOTICED
Lisa E. Cleary (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 06/06/2011 ATTORNEY TO BE NOTICED
Steven Banks (See above for address) ATTORNEY TO BE NOTICED
William F. Schmedlin (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 3 of 8

S.M. a minor, by his next friend Kinda Serafi; on behalf of themselves and all others similarly situated

Leonard Matthew Braman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Michael Engelhardt (See above for address) ATTORNEY TO BE NOTICED

Kimberly Forte (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Braman (See above for address) ATTORNEY TO BE NOTICED

Lisa E. Cleary (See above for address) ATTORNEY TO BE NOTICED

Nancy Rosenbloom (See above for address) TERMINATED: 06/06/2011 ATTORNEY TO BE NOTICED

Steven Banks (See above for address) ATTORNEY TO BE NOTICED

William F. Schmedlin (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
John B. Mattingly in his official capacity as Commissioner of the New York City Administration for Children's Services

represented by Carolyn Elizabeth Kruk NYC Law Department, General Litigation Division 100 Church Street New York, NY 10007 212−356−0893 Fax: 212−788−0940 Email: ckruk@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Anne Calhoun New York City Department of Law 100 Church Street New York, NY 10007 (212)788−0923 Fax: (212)788−0367 Email: mcalhoun@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Alan Rosinus , Jr. New York City Law Department 100 Church Street New York, NY 10007 212−788−8316 Fax: 212−788−0940

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 4 of 8
Email: arosinus@law.nyc.gov ATTORNEY TO BE NOTICED
Steven Douglas Weber Hoguet Newman Regal & Kenney, LLP 10 East 40th Street New York, NY 10016 212−689−8808 Fax: 212−689−5101 Email: sweber@hnrklaw.com TERMINATED: 06/29/2010

Date Filed 05/12/2010 05/12/2010 05/12/2010 05/13/2010 05/14/2010 05/14/2010 05/14/2010
05/14/2010 05/17/2010 05/17/2010 05/18/2010 05/18/2010 05/19/2010 05/19/2010

# Docket Text
1 COMPLAINT against John B. Mattingly Disclosure Statement on Civil Cover Sheet completed −yes,, filed by A.M., S.M., M.M.. (Attachments: # 1 Civil Cover Sheet) (Bowens, Priscilla) (Entered: 05/13/2010)
2 MOTION for Leave to Proceed in forma pauperis by A.M., M.M., S.M.. (Bowens, Priscilla) (Entered: 05/13/2010)
Summons Issued as to John B. Mattingly. (Bowens, Priscilla) (Entered: 05/13/2010)
3 Letter to Judge Cogan From Lisa E. Cleary Requesting That the Court Schedule a Pre−Motion Conference Regarding Plaintiff's Filing of a Motion for Class Certification by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 05/13/2010)
4 Unsigned Order to Show Cause for a Preliminary Injunction by A.M., M.M., S.M. (Attachments: # 1 Declaration of Leslie Winston, L.M.S.W., # 2 Declaration of Clara Goetz, # 3 Declaration of Kimberly Forte) (Cleary, Lisa) (Entered: 05/14/2010)
5 MEMORANDUM in Support re 4 Unsigned Order to Show Cause for a Preliminary Injunction filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 05/14/2010)
Minute Entry and Order for Status Conference held before Judge Brian M. Cogan on 5/14/10. Both sides present. The Court will hold an evidentiary hearing on plaintiffs' motion for a preliminary injunction as to plaintiffs A.M., M.M., and S.M., on 5/20/10 at 1:00 pm in Courtroom 4F North. The parties are to submit direct testimony by affidavits, which are to be exchanged by 5/19/10, and if either side want to cross−examine any of the affiants, the affiants must be produced at the hearing. If the parties arrive at a plan to deal with the named plaintiffs, they may file a stipulation or place it on the record in lieu of the hearing. (Weisberg, Peggy) (Entered: 05/14/2010)
6 SUMMONS Returned Executed by A.M., S.M., M.M.. John B. Mattingly served on 5/13/2010, answer due 6/3/2010. (Cleary, Lisa) (Entered: 05/14/2010)
7 Subpoena by John B. Mattingly. (Weber, Steven) (Entered: 05/17/2010)
8 NOTICE of Appearance by Leonard Matthew Braman on behalf of A.M., M.M., S.M. (aty to be noticed) (Braman, Leonard) (Entered: 05/17/2010)
9 NOTICE of Appearance by Martha Anne Calhoun on behalf of John B. Mattingly (aty to be noticed) (Calhoun, Martha) (Entered: 05/18/2010)
10 NOTICE of Appearance by Steven Douglas Weber on behalf of John B. Mattingly (aty to be noticed) (Weber, Steven) (Entered: 05/18/2010)
11 STIPULATION re 4 Unsigned Order to Show Cause (Withdrawing Without Prejudice Plaintiff's Motion for Preliminary Injunctive Relief) by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 05/19/2010)
ORDER re 11 Stipulation filed by S.M., M.M., A.M. The preliminary injunction hearing scheduled for 5/20 is canceled based on the parties' stipulation, which the Court will So Order and docket separately. Although the Court understands that the resolution is not final, the parties are to be congratulated for arriving at a common sense road map that at least presents the prospect of improving the difficult lives of these minors, something in which the Court believes both sides are interested in achieving. By separate Order, the Court will schedule an Initial Status Conference to

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 5 of 8

05/20/2010
06/02/2010 06/08/2010 06/10/2010 06/11/2010 06/14/2010 06/17/2010 07/01/2010 07/02/2010 10/13/2010 10/13/2010 11/17/2010
11/17/2010 11/18/2010 11/18/2010

address the final resolution of the case either consensually or by trial. Ordered by Judge Brian M. Cogan on 5/19/2010. (Cogan, Brian) (Entered: 05/19/2010)
12 ORDER granting 2 Motion for Leave to Proceed in forma pauperis. In addition, the Court will hold an Initial Status Conference on 6/11/10 at 9:30 a.m. in Chambers 717S. The joint summary letter requirement is waived, however the parties are required to bring to the conference a completed Civil Case Management Plan [see attachment]. Ordered by Judge Brian M. Cogan on 5/20/2010. (Weisberg, Peggy) (Entered: 05/20/2010)
13 ANSWER to 1 Complaint by John B. Mattingly. (Weber, Steven) (Entered: 06/02/2010)
14 STIPULATION and Proposed Order for Class Certification by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 06/08/2010)
15 STIPULATION AND ORDER for Class Certification. Ordered by Judge Brian M. Cogan. See attached for details. (Abdallah, Fida) (Entered: 06/10/2010)
Minute Entry and Order for Initial Status Conference held before Judge Brian M. Cogan on 6/11/10. Both sides present. The parties' Civil Case Management plan was adopted and will be docketed separately. Fact discovery to be completed by 11/15/10. (Weisberg, Peggy) (Entered: 06/11/2010)
16 SCHEDULING ORDER/Case Management Plan is hereby adopted. ( Ordered by Judge Brian M. Cogan on 6/11/2010 ) (Guzzi, Roseann) (Entered: 06/14/2010)
17 ORDER dated 6/15/10 re 11 Stipulation filed. ( Ordered by Judge Brian M. Cogan on 6/15/2010 ) (Guzzi, Roseann) (Entered: 06/17/2010)
18 STIPULATION and (Proposed) Protective Order by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 07/01/2010)
19 STIPULATION AND PROTECTIVE ORDER re 18 Stipulation and (Proposed) Protective Order. ( Ordered by Judge Brian M. Cogan on 7/2/2010 ) (Guzzi, Roseann) (Entered: 07/02/2010)
20 Letter from Lisa E. Cleary to Judge Cogan enclosing Stipulation and Order of Settlement for review and requesting court schedule a conference by A.M., M.M., S.M. (Attachments: # 1 STIPULATION and (Proposed) Order of Settlement) (Cleary, Lisa) (Entered: 10/13/2010)
ORDER re 20 Letter, filed by plaintiffs. There is no reason to hold the conference before the parties file their proposed notice. The conference will be held promptly after it is filed, perhaps in a matter of hours but no more than several days. Ordered by Judge Brian M. Cogan on 10/13/2010. (Cogan, Brian) (Entered: 10/13/2010)
21 Letter providing the Court with supplemental information to accompany the filed papers seeking preliminary approval of the Stipulation and Order of Settlement and approval of the agreed−upon notice and notice procedures by A.M., M.M., S.M. (Attachments: # 1 Declaration of Lisa E. Cleary in Support of Preliminary Approval of the Settlement, # 2 Declaration of Next Friend (Kinda Serafi), # 3 Declaration of Next Friend (Cynthia Godsoe), # 4 Declaration of Next Friend (Charla Beth Mobley), # 5 Memorandum of Law in Support of Plaintiff's Motion for Preliminary Approval of Settlement and Approval of Notice, # 6 Consent Order Pursuant to Fed.R.Civ.P. Rule 23(e)) (Cleary, Lisa) (Entered: 11/17/2010)
22 MOTION for Settlement (for Preliminary Approval of Settlement and Approval of Notice) by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 11/17/2010)
SCHEDULING ORDER: The Court will hold a telephone conference TODAY, 11/18/10. Parties will jointly call Chambers at 718−613−2230 at 12 noon. Ordered by Judge Brian M. Cogan on 11/18/2010. (Weisberg, Peggy) (Entered: 11/18/2010)
Minute Entry and Order for telephone conference held before Judge Brian M. Cogan on 11/18/10. Both sides present. Parties are to submit a joint letter by 11/25/10 regarding the implications of class certification on notice requirements as discussed. See transcript for details. (Court Reporter Marie Foley). (Weisberg, Peggy) (Entered: 11/18/2010)

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 6 of 8

11/19/2010 11/22/2010
11/22/2010 11/29/2010 11/29/2010 12/23/2010 02/28/2011 02/28/2011 02/28/2011 02/28/2011 02/28/2011 02/28/2011 02/28/2011 02/28/2011

23 Letter to Judge Cogan, dated November 19, 2010 by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 11/19/2010)
24 ORDER re 21 Letter by A.M., M.M., S.M. The Court, having reviewed the parties' proposed Stipulation of Settlement and supporting documentation, preliminary approves the settlement and directs the parties to distribute notice in the original and complete format required under paragraphs 2, 3, 4, and 6 of the Consent Order by 12/15/2010, and post notice in the secondary format required by paragraph 1 of the Consent Order, by 12/30/2010. Defendant will serve notice on the New York Attorney General by 11/28/2010 and file proof of service. Any objections must be submitted, in the manner stated in the Settlement Notice, by 2/10/2011. The parties are directed to file a motion for final settlement approval, addressing the "Grinnell factors," see City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974), overruled on other grounds by, Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463 (1989), by 2/28/2011. The Court will hold a fairness hearing on 3/11/2011 at 9:30 a.m. in Courtroom N4F. Ordered by Judge Brian M. Cogan on 11/22/2010. (Clarke, Melonie) (Entered: 11/22/2010)
25 NOTICE of Appearance by David Alan Rosinus, Jr on behalf of John B. Mattingly (aty to be noticed) (Rosinus, David) (Entered: 11/22/2010)
26 NOTICE by John B. Mattingly of Proposed Class Action Settlement Under 28 U.S.C. § 1715 (Attachments: # 1 Exhibit A: Complaint, # 2 Exhibit B: Proposed Rule 23(e)(1) Notice, # 3 Exhibit C: Proposed Stipulation and Order of Settlement, # 4 Exhibit D: Stipulation and Order for Class Certification, # 5 Exhibit E: Consent Order Pursuant to Rule 23(e)) (Rosinus, David) (Entered: 11/29/2010)
27 CERTIFICATE OF SERVICE by John B. Mattingly re 26 Notice(Other), Notice(Other) of Proposed Class Action Settlement Under 28 U.S.C. § 1715 (Rosinus, David) (Entered: 11/29/2010)
Reset Hearing Time: Fairness Hearing set for 9:30 a.m. on 3/11/2011 is reset to 2:15 PM in Courtroom 4F North. (Weisberg, Peggy) (Entered: 12/23/2010)
28 DECLARATION of David A. Rosinus, Jr. in support of the proposed settlement by John B. Mattingly (Attachments: # 1 Exhibit A: Declaration of Francene Mann, # 2 Exhibit B: Declaration of Michael Hannon, # 3 Exhibit C: Memorandum from Deirdre Newton of NYC HHC) (Rosinus, David) (Entered: 02/28/2011)
29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement by A.M., M.M., S.M.. (Attachments: # 1 Proposed Order) (Cleary, Lisa) (Entered: 02/28/2011)
30 MEMORANDUM in Support re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 02/28/2011)
31 AFFIDAVIT/DECLARATION in Support re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement Declaration of Lisa E. Cleary in Support of Final Approval of Proposed Settlement filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 02/28/2011)
32 AFFIDAVIT/DECLARATION in Support re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement Declaration of Next Friend Cynthia Godsoe filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 02/28/2011)
33 AFFIDAVIT/DECLARATION in Support re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement Declaration of Next Friend C.B. Mobley in Support of Motion filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 02/28/2011)
34 AFFIDAVIT/DECLARATION in Support re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement Declaration of Next Friend Kinda Serafi in Support of Motion filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 02/28/2011)
35 STIPULATION re 29 MOTION for Settlement Notice of Plaintiffs' Motion for Final Approval of Proposed Settlement ; Stipulation and (Proposed) Order of Settlement by

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 7 of 8

03/11/2011
03/14/2011 03/14/2011 04/20/2011 04/20/2011 05/17/2011 05/20/2011 05/27/2011 05/27/2011 05/27/2011 06/03/2011 06/24/2011
06/28/2011 06/28/2011 06/29/2011

A.M., M.M., S.M. (Cleary, Lisa) (Entered: 02/28/2011)
Minute Entry for Fairness Hearing held on 3/11/11 before Judge Brian M. Cogan. Counsel for both sides present. No objections were made to the proposed settlement. The Court approved the terms of the Stipulation of Settlement entered into between and among the parties to this litigation as fair and reasonable. The Consent Judgment will be separately entered. The parties will file a proposed stipulation of settlement for the claims of individual named plaintiffs by 4/21/11 and the Court will hold an infant compromise hearing on 4/28/11 at 11:00 a.m. in Courtroom 8D South. See transcript for details. (Court reporter Michele Nardone.) (Weisberg, Peggy) (Entered: 03/11/2011)
36 ORDER Approving Settlement re: 29 Motion for Settlement. ( Ordered by Judge Brian M. Cogan on 3/11/2011 ) (Guzzi, Roseann) (Entered: 03/14/2011)
37 Stipulation and Order of Settlement. ( Ordered by Judge Brian M. Cogan on 3/11/2011 ) (Guzzi, Roseann) (Entered: 03/14/2011)
38 Letter from Lisa E. Cleary to Judge Cogan requesting an extension of time to submit papers in support of settlement by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 04/20/2011)
ORDER GRANTING 38 Letter requesting an extension of time to submit papers in support of settlement to 5/18/2011. Infant Compromise Hearing is adjourned to 5/25/11 at 4:30 pm in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 4/20/2011. (Weisberg, Peggy) (Entered: 04/20/2011)
39 Letter to Judge Cogan requesting an additional three week extension to submit papers in support of the settlement and adjournment of the infant compromise hearing by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 05/17/2011)
ORDER re 39 Letter extending time to submit papers in support of settlement to 6/10. Infant Compromise Hearing is rescheduled for 6/24/2011 at 11:30 AM in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 5/20/2011. (Clarke, Melonie) (Entered: 05/20/2011)
40 MOTION for Attorney Fees by A.M., M.M., S.M.. (Attachments: # 1 Declaration of Lisa Cleary, # 2 Stipulation and Proposed Order of Settlement as to Attorneys' Fees) (Cleary, Lisa) (Entered: 05/27/2011)
41 MEMORANDUM in Support re 40 MOTION for Attorney Fees filed by A.M., M.M., S.M.. (Cleary, Lisa) (Entered: 05/27/2011)
42 MOTION for Approval of Infant Compromise by A.M., M.M., S.M.. (Attachments: # 1 Declaration of Lisa Cleary, # 2 Declaration of Kinda Serafi, # 3 Declaration of Cynthia Godsoe, # 4 Declaration of Charla Beth Mobley, # 5 Proposed Order) (Cleary, Lisa) (Entered: 05/27/2011)
43 Letter regarding counsel by A.M., M.M., S.M. (Rosenbloom, Nancy) (Entered: 06/03/2011)
MINUTE ENTRY AND ORDER for infant compromise hearing held before Judge Brian M. Cogan on 6/24/11. For the reasons stated on the record, the Court approves the settlement and grants leave to establish the described trusts for S.M., A.M., and M.M. conditional upon the filing of a successful motion for the Court's appointment of plaintiffs' next friends. See transcript for details (Court reporter Lisa Schmid). (Weisberg, Peggy) (Entered: 06/24/2011)
44 Letter Motion on consent regarding confirmation and appointment of Next Friends by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 06/28/2011)
45 Letter amending the previously filed Letter Motion on consent regarding confirmation and appointment of Next Friends by A.M., M.M., S.M. (Cleary, Lisa) (Entered: 06/28/2011)
46 STIPULATION AND ORDER OF SETTLEMENT AS TO ATTORNEY FEES re: 40 Motion for Attorney Fees. ( Ordered by Judge Brian M. Cogan on 6/24/2011 ) (Guzzi, Roseann) (Entered: 06/29/2011)

Case: 1:10-cv-2181 As of: 10/29/2016 07:23 PM EDT 8 of 8

06/29/2011 06/29/2011 06/29/2011 07/01/2011 07/07/2011
01/19/2016 01/22/2016 01/22/2016

47 ORDER re: retroactively appoint Kinda Serafi, Cynthia Godsoe, and Charla Beth Mobley as next friends for the infant−plaintiffs S.M., M.M., and A.M. ( Ordered by Judge Brian M. Cogan on 6/28/2011 ) (Guzzi, Roseann) (Entered: 06/29/2011)
48 ORDER OF COMPROMISE re: 42 Motion for Approval of Infant Compromise. ( Ordered by Judge Brian M. Cogan on 6/28/2011 ) (Guzzi, Roseann) (Entered: 06/29/2011)
49 ORDER/Memorandum of Understanding. ( Ordered by Judge Brian M. Cogan on 6/28/2011 ) (Guzzi, Roseann) (Entered: 06/29/2011)
50 ORDER dated 6/30/11 re: retroactively appoint Kinda Serafi, Cynthia Godsoe, and Charla Beth Mobley and next friends for the infant−plaintiffs S.M., M.M., and A.M., respectively. ( Ordered by Judge Brian M. Cogan on 6/30/11 ) (Guzzi, Roseann) (Entered: 07/01/2011)
51 ENDORSED STIPULATION AND ORDER OF SETTLEMENT AND DISCONTINUANCE AS TO INDIVIDUALLY NAMED PLTFFS on document #42−1, the claims of the Individually Named Pltffs for damages resulting from the facts alleged in this action are hereby dismissed, with prejudice, and without costs, expenses, or fees in excess of the amount in paragraph 2 below. The Deft hereby agrees to pay to the Individually Named Pltffs, within 90 days of the so−ordering of this Stipulation and Order of Settlement and Discontinuance and receipt of all papers necessary to effectuate the settlement as follows: to Pltff A.M., the sum of $210,000; to Pltff M.M., the sum of $237,000; and to Pltff S.M., the sum of $107,500. (Ordered by Judge Brian M. Cogan on 7/6/2011) c/m (Galeano, Sonia) (Entered: 07/07/2011)
52 NOTICE of Appearance by Carolyn Elizabeth Kruk on behalf of All Defendants (aty to be noticed) (Kruk, Carolyn) (Entered: 01/19/2016)
53 Joint MOTION to Alter Judgment by A.M.. (Attachments: # 1 Proposed Order Amending Stipulation) (Freeman, Lisa) (Entered: 01/22/2016)
54 AMENDMENT NO. 1 to Stipulation and Order of Settlement re: 53 Motion to Alter Judgment. ( Ordered by Judge Brian M. Cogan on 1/22/2016 ) (Guzzi, Roseann) (Entered: 01/22/2016)