Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 1 of 111

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ELISA W., by her next friend, Elizabeth Barricelli; ALEXANDRIA R., by her next friend, Alison Max Rothschild; THIERRY E., by his next friend, Amy Mulzer; AYANNA J., by her next friend, Meyghan McCrea; OLIVIA and ANAMARIA R., by their next friend, Dawn Cardi; XAVION M., by his next friend, Michael B. Mushlin; DAMEON C., by his next friend, Reverend Doctor Gwendolyn Hadley-Hall; TYRONE M., by his next friend, Bishop Lillian Robinson-Wiltshire; and BRITTNEY W., by her next friend, Liza Camellerie, individually and on behalf of a class of all others similarly situated, and LETITIA JAMES, the Public Advocate for the City of New York,
Plaintiffs,
-against-
THE CITY OF NEW YORK; the NEW YORK CITY ADMINISTRATION FOR CHILDREN’S SERVICES; GLADYS CARRIÓN, Commissioner of the New York City Administration for Children’s Services, in her official capacity; the STATE OF NEW YORK; the NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; and SHEILA J. POOLE, Acting Commissioner of the New York State Office of Children and Family Services, in her official capacity,
Defendants.

15 Civ. _____
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 2 of 111
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 PARTIES .........................................................................................................................................5
I. The Named Plaintiff Children..................................................................................5 II. The Public Advocate for the City of New York ....................................................36 III. Defendants .............................................................................................................39 JURISDICTION AND VENUE ....................................................................................................41 CLASS ACTION ALLEGATIONS ..............................................................................................41 STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM...............................45 FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S FOSTER CARE SYSTEM AND RESULTING HARM TO PLAINTIFF CHILDREN....................................................................56 I. DEFENDANTS ARE CAUSING IRREPARABLE HARM TO
CHILDREN IN ACS CUSTODY. ........................................................................59 A. Defendants Fail To Protect Children in ACS Custody from
Maltreatment. .............................................................................................59 B. Defendants Fail To Provide Children in ACS Custody with
Permanent Homes and Families Within a Reasonable Time.....................60 C. Defendants Fail To Provide Foster Placements and Services
that Ensure the Well-Being of Children in ACS Custody. ........................65 II. DEFENDANTS HAVE FAILED TO REMEDY THE SYSTEMIC
DEFICIENCIES PLAGUING NEW YORK CITY’S CHILD WELFARE SYSTEM ............................................................................................70 A. City Defendants Fail To Exercise Adequate and
Meaningful Oversight over Contract Agencies. ........................................71 B. Defendants Fail To Ensure an Adequately Staffed and
Appropriately Trained Child Welfare Workforce......................................73 C. Defendants’ Processes for Making Foster Placements in
New York City Are Deficient. ...................................................................77 D. ACS Fails To Ensure that Meaningful Case Plans and
Service Plans for Foster Children Are Developed and Implemented. .............................................................................................80 E. Defendants Fail To Ensure Timely Adjudication of Family Court Proceedings Involving Children in Foster Care...............................89 CAUSES OF ACTION ..................................................................................................................93 FIRST CAUSE OF ACTION ........................................................................................................93 SECOND CAUSE OF ACTION ...................................................................................................94

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 3 of 111 THIRD CAUSE OF ACTION .......................................................................................................95 FOURTH CAUSE OF ACTION ...................................................................................................97 FIFTH CAUSE OF ACTION ........................................................................................................99 PRAYER FOR RELIEF ..............................................................................................................101
ii

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 4 of 111
PRELIMINARY STATEMENT 1. Foster care is supposed to be safe and temporary. For children in New York City’s foster care system, it is neither. Children in New York City’s foster care system are in one of the most dangerous foster care systems in the country, and they spend longer in foster care than do foster children almost anywhere else in the country. The emotional damage—and, far too often, abuse—suffered by these children at the hands of a system designed to keep them safe is unacceptable. That the responsible state and city officials have known about these problems and done nothing to fix them is inexcusable. 2. Ten named plaintiffs, all children in foster care in New York City, bring this lawsuit as a civil rights action on behalf of all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services (“ACS”) (“Plaintiff Children”). They seek both declaratory and injunctive relief against the city and state agencies and officials responsible for violating their rights under the United States Constitution, federal law, and New York state law and regulations. Plaintiff Letitia James, as Public Advocate for the City of New York, who has received myriad constituent complaints concerning foster care, brings this lawsuit seeking injunctive and declaratory relief against the City Defendants to ensure that ACS promptly remedies the systemic failures that have been plaguing New York City’s foster care system for too long. 3. Defendants are the City of New York (“City”), ACS, Gladys Carrión, Commissioner of ACS, in her official capacity (collectively, “City Defendants”); the State of New York, the New York State Office of Children and Family Services (“OCFS”), and Sheila J. Poole, Acting Commissioner of OCFS, in her official capacity (collectively, “State Defendants”).

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 5 of 111
4. Through a pattern and practice of long-standing and well-documented action and inaction, Defendants—who are responsible for protecting New York City’s foster children—fail to keep these children safe. And, instead of ensuring that New York City’s foster children grow up in safe, permanent families, Defendants’ policies and customs cause far too many children to grow up in the custody of the state, without a home or family to call their own:
a. New York City children make up the majority of children in foster care in New York State, which has one of the worst rates of maltreatment in foster care of any jurisdiction in this country.
b. Children in foster care in New York City spend two times as much time in state custody as children in the rest of New York State, and over double the amount of time in state custody as children in the rest of the nation.
c. It takes longer to return New York City children in foster care to their parents than in the rest of New York State and the rest of the nation. The most recent federal data available shows that New York City performs worse on this measure than all but five other states and territories.
d. It takes longer for a foster child to be adopted in New York City than anywhere else in the country. New York City has performed worse on this measure than every state since at least 2007.
e. Many children who are without a permanent home never get adopted at all and leave the foster care system only when they get too old to stay in it any longer. Approximately 1,000 children “age out” of the foster care system each year, often winding up homeless and without any adult with whom they have a permanent connection.
2

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 6 of 111
5. New York City’s child welfare system is causing devastating, ongoing and longlasting harm to New York City children in its care:
a. Children who are separated from their parents to whom they could be returned weep at the end of visits with their parents but continue to live in foster care well beyond the time they could be returned home.
b. Parents whose children are removed because they need services are unable to gain access to the right services and thus are unable to regain custody of their children.
c. Children who cannot be safely returned to their parents languish in foster care, many moving from place to place, growing older and more damaged by their experiences, not knowing to which adults to form attachments, or trusting no adults at all.
d. Children traumatized by the disruptions in their young lives do not know where they will be living from one month to the next, or whether there are any adults on whom they can rely. Often by the time a decision is made about what the plan should be for their future, they are irreparably damaged by their experiences in foster care.
6. These consequences are the result of systemic deficiencies in which:
a. The state agency, OCFS, is responsible for foster care across New York State and for ensuring that federal foster care funds are spent as required by the governing federal statutes and state statutes and regulations
3

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 7 of 111
consistent with federal law, but neither monitors nor enforces those laws and regulations. b. The city agency, ACS, in whose legal custody all foster children are placed, delegates its responsibility for the day-to-day care of these children by contract to 29 agencies (the “Contract Agencies”), paying hundreds of millions of dollars to the Contract Agencies for foster care services but failing to ensure they meet minimum professional standards or provide adequate and meaningful oversight to ensure compliance with federal and state law and the applicable contracts. c. The damage that is being done to children in foster care in New York City as a direct result of these structural failures in the New York City child welfare system is both avoidable and a violation of these children’s statutory and constitutional rights.
7. The illegal conduct of which Plaintiffs complain has plagued New York City’s foster care system for far too long—a fact well known to Defendants, all of whom have been in a position to change it.
8. Plaintiffs seek a ruling from this Court that the structural deficiencies and longstanding actions and inactions described in this complaint violate the statutory and constitutional rights of all children dependent on the New York City foster care system for their safety, their well-being and their futures. They seek an equitable injunction against the responsible city and state officials and agencies named as Defendants in this lawsuit, directing that appropriate relief be granted so that New York City’s foster children are no longer irreparably harmed by the
4

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 8 of 111
system that is supposed to protect them. These children have a right to a safe and nurturing childhood. Plaintiffs ask this Court to protect that right.
PARTIES I. The Named Plaintiff Children
Elisa W. 9. Plaintiff Elisa W. is a 16 year old girl in the twelfth grade. ACS removed her from her biological mother when she was approximately four years old. She has been in ACS custody for the past 12 years—over two thirds of her life. 10. Plaintiff Elisa W. appears through her next friend, Elizabeth Barricelli. Ms. Barricelli has been an elementary school teacher for over 30 years and currently teaches elementary school science at a public school in Brooklyn. Ms. Barricelli taught Elisa W. from 2006 to 2010 when Elisa W. was in elementary school and they recently reconnected. Ms. Barricelli is familiar with Elisa W.’s background and education. Ms. Barricelli is truly dedicated to Elisa W.’s best interests. 11. ACS removed Plaintiff Elisa W. from her biological mother when she was four years old because of allegations of physical abuse. At the time, Elisa W.’s biological mother was approximately 19 years old and living in a mother-child foster placement in New York City. 12. Over the past 12 years, ACS has shuffled Plaintiff Elisa W. through so many foster placements that she is unable to account for all of them—a direct result of ACS’s failure to ensure an appropriate foster placement that could meet her needs. In the last two years alone, Elisa W. has been in four foster placements. Elisa W. has attended at least seven schools over the course of her young life.
5

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 9 of 111
13. Plaintiff Elisa W. has a reported history of physical and suspected sexual abuse while in ACS custody.
14. In the first foster placement Plaintiff Elisa W. can remember, she was sexually abused by the nephew of her then-foster mother. She was just six years old at the time. She did not report the incident to anyone because she did not want to get in trouble. At this same placement, Elisa W. was subjected to other physical, psychological and emotional abuse, including being forced by her then-foster mother to sleep in a bug-infested bedroom and being forced to walk around the foster home naked after bathing. Once, Plaintiff Elisa W.’s then-foster mother beat her and denied her food as punishment for purportedly telling her biological mother that she was being beaten by her foster mother; however, the allegation had been made by the foster mother’s own daughter pretending to be Elisa W. Upon information and belief, Elisa W.’s then-foster mother would allow family members with violent criminal records in the home. Elisa W. reports feeling like “just a total stranger” in this foster placement.
15. In approximately 2006, Elisa W. was placed in another foster placement, and again suffered severe physical, psychological and emotional abuse, including sexual abuse by multiple relatives of her then-foster mother. Elisa W.’s teachers made multiple reports of physical abuse to her caseworker, including when Elisa W.’s then-foster mother punched her in the face. Upon information and belief, neither the Contract Agency nor ACS took any action in response to these reports. Her then-foster mother neglected Elisa W., who often went to school unkempt and underfed; her teacher at the time, her next friend Ms. Barricelli, often had to buy Elisa W. snacks during the school day and maintained a clean uniform at school for her. Plaintiff Elisa W. remained in this abusive foster placement for five years—a direct result of ACS’s failure to ensure that the Contract Agency to which ACS had delegated day-to-day care of this
6

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 10 of 111
young girl was keeping her safe. On April 28, 2014, Plaintiff Elisa W. was assigned to a different Contract Agency when it was determined she needed “therapeutic foster placements”. Although Plaintiff Elisa W. is from New York City, the Contract Agency first placed her in a home in Suffolk County and then in a home in Nassau County. However, at the time—and to this day—the only person Elisa W. considers a friend lives in New York City.
16. As a result of the great emotional damage Elisa W. has suffered while in ACS custody for the past 12 years, this young girl has suffered and continues to suffer from a variety of mental health problems. Her diagnoses include depression, bipolar disorder and posttraumatic stress disorder. She has been on anti-depressants and mood stabilizers since she was 11 years old. In July 2014, Elisa W. requested she be placed in a mental health facility because of her mental health concerns. Elisa W. remained there for two months. Since her hospitalization, she has been placed on heavy doses of psychotropic medication; she reports that, as a result, she can barely string a sentence together and no longer looks people in the eye because she gets nervous.
17. In addition to failing to keep Plaintiff Elisa W. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Elisa W. in a permanent home. Twice, Plaintiff Elisa W.’s biological mother conditionally surrendered her parental rights so Elisa W. could be adopted. Neither adoption was ever finalized. In approximately 2010, Plaintiff Elisa W.’s aunt expressed interest in adopting Elisa W. This adoption was not finalized. In 2012, after Plaintiff Elisa W. already had been in foster care for approximately eight years, her biological mother’s parental rights were terminated. Although her aunt has been considered as an adoptive resource since then, the Contract Agency, ACS and Plaintiff Elisa W.’s law guardian
7

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 11 of 111
have not taken steps to pursue this possibility or sought out other non-relative adoption possibilities for Plaintiff Elisa W. to finally have a permanent home and family to call her own. Indeed, Elisa W. fears that she will “age out” of foster care—where she has spent the last 12 years being abused, neglected and shuffled from place to place—and return to living with her biological mother. Elisa W. fears that if this happens she will be unable to attend college.
18. Plaintiff Elisa W. describes her stay in foster care by noting that when she was younger she did well in school and had an extensive vocabulary, but now, as a result of her experiences in foster care and medication regimen, she has difficulty concentrating. She expresses great frustration that the Contract Agency and ACS are unresponsive to her requests for driving lessons and a state identification card—normal requests for a 16 year old girl. For the 12 years Elisa W. has been in foster care, the Contract Agency, ACS and Plaintiff Elisa W.’s law guardian have been making decisions about her life but, as she puts it—“no one ever asks me what I want”.
19. During the 12 years that Plaintiff Elisa W. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Elisa W. has suffered and continues to suffer
8

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 12 of 111
irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Elisa W. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Alexandria R. 20. Plaintiff Alexandria R. is a 12 year old girl in the fifth grade. ACS removed her from her biological mother’s home on August 9, 2007. Plaintiff Alexandria R.’s permanency goal currently is to be returned to her parent. She has been in the custody of ACS for the past eight years—over two thirds of her life. 21. Plaintiff Alexandria R. appears through her next friend, Alison Max Rothschild. Ms. Rothschild is the director of a private school in New York City. Ms. Rothschild knows Alexandria R. and her current foster parents, and is familiar with her background including her education. Ms. Rothschild is truly dedicated to Alexandria R.’s best interests. 22. Upon information and belief, this is Plaintiff Alexandria R.’s second time in foster care. Upon information and belief, ACS removed her from her biological mother a few months after she was born, placed her in a kinship foster placement with her maternal great-grandmother for three and a half years and returned her to her biological mother for a few months—only to remove her and again place her in foster care in 2007. 23. Plaintiff Alexandria R. is not the only child that ACS has removed from her biological mother and placed into foster care. Plaintiff Alexandria R. has six siblings: (1) a 15 year old sister, Andrea R.; (2) a 13 year old brother, Kavon L.; (3) an 11 year old brother, Russell
9

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 13 of 111
W.; (4) a nine year old brother, Anton W.; (5) a seven year old sister, Naomi M.W.; and (6) a 20 month old sister, Raquel W. All of her siblings are currently in foster care.
24. In 2006, ACS opened a preventive services case involving Plaintiff Alexandria R.’s biological mother because then six year old Andrea R. had jumped out of a second floor window after being locked in her bedroom. In August 2007, ACS removed Plaintiff Alexandria R. and her then-living siblings from their home and placed them in ACS custody because their biological mother’s boyfriend was physically abusing Alexandria R.’s brother, Kavon L. Now seven year old Naomi M.W. was born five months later and ACS took custody of her at birth. On or about May 13, 2015, ACS removed Plaintiff Alexandria R.’s youngest sister, 22 month old Raquel W., from their biological mother due to allegations of neglect.
25. From 2007 to 2011, between the time she was four and eight years old, ACS bounced Plaintiff Alexandria R. from placement to placement due to its failure to ensure an appropriate foster placement that could meet her needs. During her first four years in ACS custody, ACS placed Plaintiff Alexandria R. in approximately eight different foster homes and with two different Contract Agencies. When she was approximately eight years old, Plaintiff Alexandria R. spent approximately six months in the mental health unit of a residential treatment facility. Her then-foster parents dropped her off, telling her they would return the next morning to pick her up, and never returned. As a result, Plaintiff Alexandria R. suffered severe emotional trauma, compounding the emotional harm she was already experiencing from being moved from place to place.
26. ACS moved Plaintiff Alexandria R. to her current foster placement on November 11, 2011, when she was eight years old. She has now lived there for over three and a half years. At 12 years old, this is the longest she has ever lived in one place—a direct result of ACS’s
10

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 14 of 111
failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
27. Plaintiff Alexandria R. has a reported history of physical and suspected sexual abuse. Upon information and belief, the physical and suspected sexual abuse has taken place while Plaintiff Alexandria R. has been in ACS custody, and includes physical abuse by her biological mother during an unsupervised visit at her then-foster home.
28. As a result of the great emotional damage Alexandria R. has suffered while in ACS custody for the past eight years, this young girl has suffered and continues to suffer from a variety of mental health problems. Her diagnoses over the past eight years have only grown more serious during her time in foster care and have included adjustment disorder (2007), adjustment disorder with mixed disturbance emotions and conduct (i.e., mood and behavioral problems) (2009), disorder of childhood (2009) and post-traumatic stress disorder (2014 to present). She also suffers from learning disabilities and is behind her peers in school.
29. Since being placed in ACS custody, Plaintiff Alexandria R. has suffered severe emotional and behavioral problems, including physical aggression toward herself and others. She has an extreme distrust of people she views as “in the system”, including her doctors and therapists. She also has difficulty controlling her emotions. As recently as late 2014, Plaintiff Alexandria R. became highly emotional and distraught, including hysterically crying and becoming physically aggressive, when her biological mother missed a family therapy appointment.
11

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 15 of 111
30. In addition to failing to keep Plaintiff Alexandria R. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Alexandria R. in a permanent home. In approximately 2012, after she already had been in foster care for over four years, Plaintiff Alexandria R.’s permanency goal was changed to adoption and the Contract Agency to which ACS has delegated day-to-day responsibility for this child told this nine year old girl that she would be adopted by her foster parents. However, the adoption did not take place, even though her foster parents remain interested in adopting her, and this has created serious additional damage to Alexandria R.’s emotional state. She is now angry and does not understand why her foster parents have not been able to adopt her yet.
31. In July 2013, Plaintiff Alexandria R.’s permanency goal was changed from adoption to return to parent. Upon information and belief, this is because ACS attorneys failed to take necessary steps to obtain the termination of her biological mother’s parental rights.
32. After already languishing in foster care for almost eight years, and with none of her siblings currently living with her or her biological mother, Plaintiff Alexandria R.’s permanency goal currently is to be returned to her parent. Plaintiff Alexandria R. reportedly lives in fear that she will be moved yet again by ACS and has been deeply harmed by the continuing uncertainty about where and how she will grow up.
33. During the almost eight years that Plaintiff Alexandria R. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a
12

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 16 of 111
meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Alexandria R. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Alexandria R. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Thierry E. 34. Plaintiff Thierry E. is a three year old boy. ACS removed him from his biological mother on September 27, 2013. His permanency goal currently is to be returned to his parent. He has been in ACS custody for the past 21 months—nearly half his life. 35. Plaintiff Thierry E. appears through his next friend, Amy Mulzer. Ms. Mulzer is an Acting Assistant Professor of Lawyering at New York University School of Law. The primary focus of her research includes: Adoption, Child Welfare, Family Law, Parental Rights and Poverty Law. Prior to joining the lawyering faculty at NYU, Ms. Mulzer spent five years representing low-income parents whose children were in foster care or at risk of being placed in foster care, first as a staff attorney at Brooklyn Defender Services and then as an appellate attorney on the assigned counsel panel for the Appellate Division, Second Department. Ms. Mulzer is truly dedicated to Thierry E.’s best interests.
13

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 17 of 111
36. On or about August 15, 2013, Thierry E.’s mother, who has been a public school teacher for the past 11 years, called Safe Horizon, a domestic violence hotline, to request information about how she could remove Thierry E.’s biological father from her home. Safe Horizon reported the call to the Statewide Central Register of Child Abuse and Maltreatment and ACS opened an investigation. There was not and never has been any allegation that anyone abused Thierry E. or that his mother failed to provide him with appropriate, loving care. On September 23, 2013, Thierry E.’s mother obtained an order of protection from the Family Court against Thierry E.’s father. In her petition, she alleged that Thierry E.’s father had held a knife to her throat threatening to kill her, strangled her at least three times, punched her in the face and threw household furniture at her. Thierry E.’s mother has not been in a relationship with Thierry E.’s father since September 2013 and does not intend to re-enter a relationship with him.
37. ACS removed Plaintiff Thierry E. from his home on September 27, 2013, while his mother was at work, without taking necessary steps or making reasonable efforts to determine whether Thierry E. could remain safely at home with his mother. His father was no longer living in the house.
38. The Contract Agency to which ACS had delegated the day-to-day care of, and case planning responsibility for, Plaintiff Thierry E. first moved him to a foster placement far away from his mother’s home and required visits to take place at the Contract Agency’s office in the Bronx, even though he and his mother had lived in Manhattan. Moreover, the foster mother spoke only Spanish and Thierry E., then two years old, did not speak any Spanish. As a result, Thierry E.’s language and speech development was severely stunted. Thierry E.’s mother had him evaluated in March 2014 and the speech therapist recommended speech therapy twice a week, but the Contract Agency refused to provide this service.
14

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 18 of 111
39. On May 13, 2014, during a visit at the Contract Agency, Plaintiff Thierry E.’s mother noticed a severe rash while changing his diaper and reported this and other concerns to the Family Court. On June 21, 2014, the Family Court ordered that Thierry E. be transferred to a new Contract Agency. Thierry E. was moved to a second foster placement two days later.
40. Plaintiff Thierry E. has now been in foster care for 21 months—nearly half his life. This is a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be returned to his mother or, if that were not possible within a reasonable period of time, to ensure that he would grow up in a permanent family.
41. Plaintiff Thierry E. has suffered emotional harm as a result of spending nearly half his life in ACS custody without a permanent family. All indications are that he misses his mother very much. At the end of his twice weekly visits with his mother, he cries uncontrollably. When his mother expressed concern at this behavior, Thierry E.’s therapist told her that he had to “get used to it” because this was “his life now”.
42. ACS continues to fail to ensure that Plaintiff Thierry E. is receiving appropriate services. Although Thierry E. currently receives therapy, Thierry E.’s mother has expressed concerns that the therapy being provided by the Contract Agency is focused on normalizing Thierry E.’s separation from his mother rather than trying to help him prepare to be returned to her care—even though his permanency goal remains to be returned to his parent.
43. In addition to failing to keep Plaintiff Thierry E. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Thierry E. in a permanent home.
15

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 19 of 111
44. Although ACS removed Plaintiff Thierry E. from his home over 20 months ago, there has been no fact-finding hearing or disposition of ACS’s neglect petition against Thierry E.’s biological mother. The fact-finding hearing has been postponed several times.
45. Plaintiff Thierry E. had his first permanency hearing in December 2014—after he had already been in ACS custody for over a year.
46. Plaintiff Thierry E.’s permanency goal remains to be returned to his parent. His biological mother wants nothing more than to finally bring her son home. She has completed parenting classes, domestic violence counseling and mental health evaluations in accordance with the two different Contract Agencies’ instructions. In documents filed with the Family Court, the Contract Agency has stated that Thierry E.’s mother “comes prepared to her visits with activities to do with her son and also tries to reinforce parenting skills that will help her son’s vocabulary and pronunciation.”
47. Since his removal over 21 months ago, ACS has made no effort to ensure that this little boy is returned to the mother he misses, and that his permanency goal—reunification with his biological mother—is implemented as soon as possible.
48. During the nearly two years that Plaintiff Thierry E. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS
16

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 20 of 111
has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Thierry E. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Thierry E. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Ayanna J. 49. Plaintiff Ayanna J. is a two and a half year old girl. ACS removed her from her biological mother on November 2, 2012—three days after she was born. Her permanency goal currently is adoption. She has been in ACS custody for the past two and a half years—virtually her entire life. 50. Plaintiff Ayanna J. appears through her next friend, Meyghan McCrea. Meyghan McCrea is an attorney in private practice in New York City. She was previously employed as a Family Court Legal Services Attorney for ACS. Ms. McCrea has known Ayanna J. since March 2013 and has had regular contact with her since that time. Ms. McCrea has met Ayanna J.’s current foster parent and babysitter. Ms. McCrea is truly dedicated to Ayanna J.’s best interests. 51. Plaintiff Ayanna J. has two siblings: (1) a nine year old sister, Alyssa L., and (2) a sister, Angela L., who was beaten to death by her biological mother’s boyfriend in March 2010, when she was 19 months old. Documents filed with the Family Court allege that, given Angela L.’s extensive injuries, Plaintiff’s biological mother knew or should have known about the ongoing abuse that her daughter suffered. These documents also allege that Plaintiff Ayanna J.’s
17

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 21 of 111
biological mother delayed seeking medical care for Angela L., lied to hospital staff about the source of the child’s injuries and instructed her other daughter, Alyssa L., who was then three and a half years old, to lie about what had occurred.
52. The day after Angela L. died, ACS filed a petition against Ayanna J.’s biological mother alleging severe and repeated abuse. In October 2012, the Family Court made a finding of abuse against Ayanna J.’s biological mother. On appeal in June 2014, the New York State Appellate Division found that Ayanna J.’s biological mother “severely abused [Angela L.] and derivatively severely abused the subject child [Alyssa L.]”.
53. Plaintiff Ayanna J. was born after her sister Angela L. died. Due to the prior finding of abuse against her biological mother, ACS placed Plaintiff Ayanna J. in custody and in her current foster placement on November 2, 2012—three days after she was born. In March 2013, the Family Court made a finding of derivative abuse as to Ayanna J. and on September 30, 2014, the Family Court amended its finding to severe abuse as to Ayanna J. based on the Appellate Division’s June 2014 finding.
54. Since being placed in foster care two and a half years ago, Plaintiff Ayanna J. has had approximately eight caseworkers at the Contract Agency to which ACS has delegated her day-to-day care.
55. While in the custody of ACS, Plaintiff Ayanna J. has had supervised visits with her biological mother and father at the Contract Agency. During one such visit in September 2013, Plaintiff Ayanna J.’s biological father became angry and began screaming at Ayanna J.’s biological mother in front of Ayanna J., who was not even two years old at the time. Upon information and belief, at least one Contract Agency visit was discontinued because Ayanna J.’s biological parents were fighting. Ayanna J.’s biological father has not visited Plaintiff Ayanna J.
18

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 22 of 111
since April 2014. Upon information and belief, visits at Ayanna J.’s biological mother’s home were suspended after she threatened to physically assault a caseworker. Ayanna J. continues to have supervised visits with her biological mother twice per week at the Contract Agency. During one such visit in July 2014, Ayanna J.’s biological mother allowed her biological father to speak with Plaintiff Ayanna J. over the phone despite such contact being prohibited.
56. Plaintiff Ayanna J. has languished in the custody of ACS for the past two and a half years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
57. As a result of her continued placement in ACS custody, Plaintiff Ayanna J. has suffered great emotional harm. In 2013, Ayanna J. cried hysterically during supervised visits with her biological mother at the Contract Agency. Now that she is older, Ayanna J. expresses the desire to not attend visits with her biological mother, will not leave her babysitter to visit with her biological mother, or will ask for her babysitter in the middle of a visit with her biological mother. These visits have caused and continue to cause great stress, confusion and psychological harm to this young child.
58. In addition to failing to keep Plaintiff Ayanna J. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Ayanna J. in a permanent home.
59. On April 9, 2014, Plaintiff Ayanna J.’s permanency goal was changed from return to parent to adoption. Her current foster parent has indicated a willingness to adopt her.
19

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 23 of 111
60. A petition for termination of parental rights (“TPR”) was filed on April 28, 2014, after Plaintiff Ayanna J. already had been in foster care for almost one and a half years. The TPR proceedings were adjourned repeatedly due to ACS’s failure to ensure that all parties were prepared for court on scheduled hearing dates to resolve the permanency issues in this case. On April 27, 2015, almost a year after the TPR petition was filed, the assigned New York Family Court judge heard one day of testimony related to the TPR proceeding and continued the case until mid-June 2015. The next day, that Family Court judge was reassigned to another court. On June 22, 2015, Plaintiff Ayanna J.’s TPR proceeding was re-assigned to a new New York Family Court judge, who declared a mistrial and postponed a new trial until October 2015.
61. After languishing in foster care for two and a half years, Plaintiff Ayanna J.’s permanency goal remains to be adopted.
62. During the two and a half years that Plaintiff Ayanna J. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Ayanna J. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow
20

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 24 of 111
up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Ayanna J. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Olivia R. and Ana-Maria R. 63. Plaintiff Olivia R. is a five year old girl in the first grade, and Plaintiff Ana-Maria R. is a four year old girl in pre-kindergarten. ACS removed them from their biological mother’s home on June 8, 2011. The permanency goal for both children currently is adoption. They have been in ACS custody for more than four years. 64. Plaintiffs Olivia and Ana-Maria R. appear through their next friend, Dawn Cardi. Ms. Cardi is an attorney in private practice in New York City, specializing in criminal and family law. She is appointed and has served as a certified Law Guardian in the First Department of the Appellate Division, representing children in complex family law proceedings. She is truly dedicated to Olivia and Ana-Maria R.’s best interests. 65. Upon information and belief, this is Plaintiffs Olivia and Ana-Maria R.’s second time in ACS custody. Upon information and belief, ACS removed Plaintiffs Olivia and AnaMaria R. from their biological parents in January 2011, they spent a few months in a foster placement and then ACS returned them home. On June 8, 2011, when Olivia R. was two years old and Ana-Maria R. was eight months old, ACS again removed the girls from their home and placed them into ACS custody, reportedly due to domestic violence between their biological parents and their biological mother’s alcohol and drug use.
21

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 25 of 111
66. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, Plaintiffs Olivia and Ana-Maria R. initially placed them in a nonkinship foster placement—the third place they had been moved to in six months.
67. In March 2012, the Contract Agency returned Olivia and Ana-Maria R. to their biological mother on a trial discharge. In June 2012, their biological mother dropped them off at the foster home where they had been living and did not return to pick them up. She did not visit the children again until July 24, 2012.
68. ACS has allowed Plaintiffs Olivia and Ana-Maria R. to be bounced in and out of foster care for almost the entirety of their young lives, and they now have been in ACS custody for the past four years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable these young girls to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to ensure that they can grow up in a permanent family.
69. Plaintiffs Olivia and Ana-Maria R. have suffered physical and emotional abuse while in ACS custody. In October 2013, Plaintiff Olivia R., who was four years old at the time, was sexually abused by her biological mother’s friend during an unsupervised visit. Plaintiff Ana-Maria R. was present during that abuse. Although the Contract Agency was made aware of this abuse at that time, upon information and belief, neither the Contract Agency nor ACS took any action in response to the report. More recently, Plaintiff Olivia R. reported the incident to her therapist, who (as a mandated reporter) informed the Statewide Central Register of Child Abuse and Maltreatment and the police, and an investigation is underway. Plaintiffs Olivia and Ana-Maria R.’s biological mother has not visited with the children since November 26, 2014.
22

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 26 of 111
70. As a result of the emotional harm they have suffered while in ACS custody for the past four years, Plaintiffs Olivia and Ana-Maria R. have suffered and continue to suffer from a variety of mental health problems. Olivia R.’s diagnoses include Attention Deficit Hyperactivity Disorder, Developmental Coordination Disorder and Disruptive Behavior Disorder. She is in a special education setting at school. Ana-Maria R.’s diagnoses include Attention Deficit Hyperactivity Disorder, Anger Management, and Conduct Disorder. She is being evaluated for placement in a special education setting at school.
71. Since being placed in ACS custody, Plaintiffs Olivia and Ana-Maria R. have suffered severe emotional and behavioral problems. Olivia R. has developed serious trust issues and she wets the bed before any visit with her biological mother. Ana-Maria R. demonstrates severe hyperactivity and aggression. At school, she often would hit her teacher, tear things off the wall or break other items. In January 2015, her pre-kindergarten program would not allow her to attend classes until she was medicated for these behavioral problems. She did not start receiving medication until June 2015.
72. ACS has failed to ensure that Plaintiffs Olivia and Ana-Maria R. are provided with the necessary and appropriate services to ensure their physical, psychological and emotional well-being. One of their caseworkers recommended that the girls enroll in Bridges to Health Program (“B2H”)—a Medicaid waiver program that provides support for children in foster care who are medically fragile, have a developmental disability or are severely emotionally disturbed. Upon information and belief, when their foster mother initially requested these services, the Contract Agency declined to submit the request because an agency caseworker said “that’s a lot of paperwork”. Upon information and belief, Plaintiffs Olivia and Ana-Maria R. still do not have B2H services.
23

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 27 of 111
73. In addition to failing to keep Plaintiffs Olivia and Ana-Maria R. free from physical, psychological and emotional harm while in its custody, ACS also has failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Plaintiffs Olivia and Ana-Maria R. in a permanent home.
74. Plaintiffs Olivia and Ana-Maria R.’s permanency goal was not changed from return to parent to adoption until March 1, 2014—after they had been in ACS custody for almost three years. Olivia and Ana-Maria R.’s current foster mother has indicated a willingness to adopt them. TPR petitions were filed approximately eight months later in November 2014. Upon information and belief, on May 28, 2015, the judge made an oral statement that parental rights would be terminated; however, because none of the attorneys present had drafted a proposed order, that ruling has not been finalized and Olivia and Ana-Maria R. are not yet freed for adoption.
75. During the four years that Plaintiffs Olivia and Ana-Maria R. have been in the custody of ACS, Defendants repeatedly have violated their constitutional, statutory and contractual rights by failing to protect them from physical, psychological and emotional harm; by failing to provide services to ensure their physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable them to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to place them in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, these children. As a direct result of Defendants’ actions and inactions, Plaintiffs Olivia and Ana-Maria R. have suffered and continue to suffer irreparable
24

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 28 of 111
harm and continue to be subjected to the lasting emotional damage that is a consequence of children being harmed while in foster care, of not knowing where they will grow up and of believing that there is no family they can call their own. Because of Defendants’ actions and inactions, Plaintiffs Olivia and Ana-Maria R. are being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Xavion M. 76. Plaintiff Xavion M. is a five year old boy in the first grade. ACS removed him from his biological mother due to an allegation of neglect 15 days after he was born. Plaintiff Xavion M.’s permanency goal currently is adoption. He has been in ACS custody for over five years—nearly his entire life. 77. Plaintiff Xavion M. appears through his next friend, Michael B. Mushlin. Mr. Mushlin is a Law Professor at Pace University School of Law in New York City, where he has taught for the last 30 years. His scholarship has included maltreatment of children in foster care. Previously, he worked as a public interest and civil rights lawyer for 15 years as a staff attorney with Harlem Assertion of Rights, Inc., as a staff attorney and Project Director of the Prisoners Rights Project of the Legal Aid Society, and as Associate Director of the Children’s Rights Project of the American Civil Liberties Union. He is truly dedicated to Xavion M.’s best interests. 78. Plaintiff Xavion M. is not the only child that ACS has removed from his biological mother and placed into foster care. Plaintiff Xavion M. has two siblings: (1) a 12 year old brother, Vincent D., and (2) an 11 year old sister, Zahara D. Plaintiff Xavion M.’s siblings have been in ACS custody for the past six years. Upon information and belief, at least
25

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 29 of 111
one Family Court judge has referred to these two children as “unadoptable” and their permanency goals remain that they be returned to their parent.
79. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young boy first placed Plaintiff Xavion M. with a fictive kin foster parent, who was a friend of his biological mother. On December 21, 2011, when Xavion M. was just two years old, he was moved to a second, non-kinship, foster placement. When he arrived, he was anemic and malnourished. He has resided in this foster placement for well over three years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
80. Since being placed in foster care over five years ago, Plaintiff Xavion M. has had approximately four caseworkers at the Contract Agency to which ACS has delegated his care and case planning.
81. Plaintiff Xavion M., who has been in ACS custody for over five years, has weekly supervised visits with his biological mother and older siblings. Upon information and belief, Plaintiff Xavion M.’s brother hit and kicked him during a recent visit.
82. The Contract Agency to which ACS has delegated the day-to-day care of, and case planning responsibility for, this boy has not provided Plaintiff Xavion M. with necessary services for his physical and emotional well-being. Although his teacher recommended that an Individualized Education Program be written for him, Xavion M. has not received the evaluation necessary because his biological mother refuses to give consent.
26

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 30 of 111
83. As a result of the over five years that Plaintiff Xavion M. has spent in ACS custody, Xavion M. has suffered severe emotional damage. He has started to exhibit increased behavioral problems, including becoming aggressive and violent at home and at school; he also is having difficulty concentrating at school. At five years old, he will only sleep in the same bed as his foster mother and will not sleep through the night.
84. In addition to failing to keep Plaintiff Xavion M. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Xavion M. in a permanent home.
85. On July 21, 2014—after Plaintiff Xavion M. had been in foster care for almost five years—Xavion’s permanency goal was changed from return to parent to adoption. This goal change occurred only after the Family Court judge handling Xavion M. and his siblings’ case instructed Xavion M.’s caseworkers at the Contract Agency to file a petition to terminate the parental rights of Xavion M.’s biological mother and begin adoption proceedings. Xavion M.’s current foster mother has indicated a willingness to adopt. Almost a year later, no TPR petition has been filed.
86. Despite the court’s instruction, the Contract Agency plans to return Xavion M. to his biological mother after first returning Xavion M.’s older siblings to his mother on a trial basis. Indeed, papers filed in Family Court in March 2015 state that the “Agency is working with [biological mother] for reunification”. At a family team conference on June 24, 2015, the Contract Agency said it will pursue granting Xavion M.’s biological mother unsupervised visits despite the fact that Xavion M.’s therapist has stated that Xavion M. is not ready for this and that Xavion M.’s permanency goal is adoption. The long-standing inconsistency in planning for this
27

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 31 of 111
child’s future is increasing the insecurity and emotional damage this child is experiencing in foster care.
87. During the over five years that Plaintiff Xavion M. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Xavion M. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Xavion M. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Dameon C. 88. Plaintiff Dameon C. is a four year old boy with special needs. ACS removed him from his biological mother, who was then incarcerated, nine days after he was born. His permanency goal currently is adoption. He has been in ACS custody for over four years—nearly his entire life.
28

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 32 of 111
89. Plaintiff Dameon C. appears through his next friend, Reverend Doctor Gwendolyn Hadley-Hall. Reverend Doctor Hadley-Hall is an associate pastor at Christ Temple United Baptist Church in Brooklyn. Prior to entering the ministry, Reverend Doctor Hadley-Hall was a teacher at public elementary schools in New York City for 30 years. She is truly dedicated to Dameon C.’s best interests.
90. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this boy first placed Plaintiff Dameon C. in a foster placement.
91. On Christmas Eve 2011, when Plaintiff Dameon C. was nine months old, he was returned to his mother on a trial basis when she was released from jail. They were placed in a mother-child drug and alcohol rehabilitation center. His former foster parent would often take Dameon C. for two to three weeks at a time with his biological mother’s consent because Dameon C.’s behavior deteriorated drastically when he was moved to his mother’s care. He began banging his head, which he continues to do now at age four. In July 2012, his biological mother was expelled from the rehabilitation center and Dameon C. was returned to his former foster placement, where he remains to this day. He has been in foster care virtually his entire life—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
92. While in ACS custody, Plaintiff Dameon C. has had regular visits with his biological mother. In February 2014, when Dameon was almost three years old, his mother kicked him during the first unsupervised overnight visit at her drug treatment facility. Although she is still permitted to have supervised visits with him, she did not have contact with Dameon C.
29

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 33 of 111
between December 2014 and April 23, 2015, at which time she began attending supervised visits with Dameon C. again. However, in recent weeks, Dameon C.’s biological mother has disappeared from her drug treatment program and has not attended visits with him or contacted him since.
93. In addition to failing to keep Plaintiff Dameon C. safe from physical abuse and emotional damage, ACS has also failed to ensure that he is provided with necessary services to ensure his physical, psychological and emotional well-being. Although he has been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder, he was placed on the waiting list for B2H.
94. ACS also has failed to take reasonable and appropriate steps to place Plaintiff Dameon C. in a permanent home. Dameon C.’s permanency goal was not changed to adoption until November 3, 2014—after he had already been in ACS custody for over three and a half years. A TPR petition was filed thereafter. Plaintiff Dameon C.’s next court date had been scheduled for June 2, 2015, but has been postponed until November 2015.
95. During the over four years that Plaintiff Dameon C. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning
30

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 34 of 111
responsibility for, this child. As a direct result of Defendants’ actions and inactions, Dameon C. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Dameon C. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Tyrone M. 96. Plaintiff Tyrone M. is a seven year old boy with special needs. ACS removed him from his biological mother 12 days after he was born. His permanency goal currently is adoption. He has been in ACS custody for over seven years—nearly his entire life. 97. Plaintiff Tyrone M. appears through his next friend, Bishop Lillian RobinsonWiltshire. Bishop Robinson-Wiltshire is the Senior Pastor and Overseer of Cathedral of Christ Community Ministries in Brooklyn. Prior to entering the ministry 30 years ago, Bishop Robinson-Wiltshire was a family counselor and worked with families dealing with abuse and neglect. Bishop Robinson-Wiltshire has also served as a foster parent to older children. She is truly dedicated to Tyrone M.’s best interests. 98. Twelve days after he was born, ACS removed Plaintiff Tyrone M. from his biological mother when she tested positive for cocaine after giving birth to him. 99. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young boy first placed Plaintiff Tyrone M. in a kinship foster placement with his aunt. On June 23, 2014, ACS removed him from his aunt’s home after she failed a random drug screening. The Contract Agency then placed him in a non-kinship foster
31

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 35 of 111
placement where he currently resides. Plaintiff Tyrone M. has now spent his entire life in ACS custody—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
100. ACS also has also failed to keep Plaintiff Tyrone M. free from physical, psychological, and emotional harm while in its custody. When he arrived at his current foster placement, his health and behavior indicated severe neglect. He suffered from severe dental problems. He went to sleep in his clothing every night because in his previous foster placement he had not been provided with such basic care as being taught to undress or change into pajamas before bed.
101. As a result of the emotional harm he has suffered while in ACS custody for the past seven years, Plaintiff Tyrone M. suffered and continues to suffer from a variety of mental health problems. His diagnoses include Pervasive Developmental Disorder, Developmental Coordination Disorder, Communication Disorder and Attention Deficit Hyperactivity Disorder. Tyrone M. also exhibits severe behavioral problems and often becomes violent at school and throws chairs or pencils. As a result, his school has barred him from eating in the lunchroom with other students and from attending school-sponsored field trips.
102. ACS has also failed to ensure that Plaintiff Tyrone M. is provided with the necessary services to ensure his physical and emotional well-being. For example, although his Individualized Education Program states that he is required to receive psychological counseling outside of school, upon information and belief, it has taken the Contract Agency over a year to even begin the process for getting Tyrone M. mental health services.
32

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 36 of 111
103. In addition to failing to keep Plaintiff Tyrone M. physically free from harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Plaintiff Tyrone M. in a permanent home.
104. After almost seven years in foster care, his biological mother recently voluntarily surrendered her parental rights. Although he is now free to be adopted, it is not clear that he will be adopted by his current foster parent and, upon information and belief, the Contract Agency, ACS and Plaintiff Tyrone M.’s law guardian have not sought out other adoption possibilities for Plaintiff Tyrone M. to have a permanent home and family to call his own.
105. During the over seven years that Plaintiff Tyrone M. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Tyrone M. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Tyrone M. is being deprived of the
33

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 37 of 111
opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Brittney W. 106. Plaintiff Brittney W. is a six year old girl with special needs. ACS removed her from her biological mother and placed her into ACS custody on May 10, 2011. Her permanency goal currently is to be returned to her parent. She has been in ACS custody for over four years— most of her life. 107. Plaintiff Brittney W. appears through her next friend, Liza Camellerie. Ms. Camellerie is an attorney in private practice in New York City. She currently serves on the assigned panel for Family Court in Manhattan, representing children and parents in Article 10 cases, among others. She also spent six years as a Family Court Legal Services (“FCLS”) Attorney for ACS, four of which were spent as a supervisor to 25 to 30 other FCLS attorneys. Ms. Camellerie is truly dedicated to Brittney W.’s best interests. 108. Shortly after Plaintiff Brittney W. was born, a report was called in to the Statewide Central Register of Child Abuse and Maltreatment alleging that her biological mother’s own mental incapacity and developmental delays prevented her from caring for her infant daughter. Brittney W. was placed into voluntary kinship care with her biological mother’s niece by agreement with ACS. 109. On May 10, 2011, when Plaintiff Brittney W. was two years old, ACS remanded her into custody because her mother’s niece could no longer care for Brittney W. 110. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young girl then placed Plaintiff Brittney W. in a non-kinship foster placement. She has been residing in this foster placement for over four years—a direct
34

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 38 of 111
result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
111. After over four years in foster care, Plaintiff Brittney W.’s permanency goal is to be returned to her parent. Upon information and belief, Plaintiff Brittney W.’s lawyer does not think that her biological mother’s mental incapacities allow her to provide appropriate care for Brittney W. Upon information and belief, the Contract Agency to which ACS has delegated the care and case planning responsibility for this child has taken the position that Brittney W.’s biological mother can provide care if she has 24-hour medical support. Upon information and belief, because Brittney’s W.’s doctor reports that there is no reason why 24-hour support is medically necessary, the Contract Agency is trying to arrange for Brittany W.’s biological mother to have medical and other support during daytime hours. Brittney W.’s current foster mother has indicated a willingness to adopt. No TPR petition has been filed.
112. During the four years that Plaintiff Brittney W. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child.
35

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 39 of 111
As a direct result of defendants’ actions and inactions, Brittney W. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Brittney W. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
*** 113. All of Defendants’ actions and inactions as described herein substantially depart from accepted professional judgment and constitute deliberate indifference to the harms, risk of harms and violations of legal rights suffered by the Named Plaintiff Children.
II. The Public Advocate for the City of New York 114. Plaintiff Letitia James is the Public Advocate for the City of New York (the
“Public Advocate”). In this capacity, the Public Advocate ensures that the city government serves its citizens by exercising oversight of city agencies, investigating citizen complaints regarding city services, and making proposals or seeking relief to address perceived shortcomings or failures.
115. Just two months into her tenure, the Public Advocate introduced a law, Int. 01042014, that would require ACS to report information related to youth in the foster care system on an annual basis. This law ensures that the City monitors which supports and resources these young adults use and identifies ongoing educational barriers they experience and problems they might encounter with homelessness or law enforcement. In September 2014, the Office of the Public Advocate issued a policy report concerning youth “aging out” of the foster care system.
36

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 40 of 111
The report provided recommendations to improve data collection, access to housing, and coordination of services for young people aging out of the system. On September 30, 2014, Int. 0104-2014 was signed into law.
116. On an ongoing basis, the Office of the Public Advocate Constituent Affairs Department (“the Constituent Affairs Department”) receives complaints from constituents in all five boroughs alleging deficiencies and lapses in responsibilities by both ACS and Contract Agencies. Constituent complaints alleged, for instance, failure to investigate allegations of abuse of children in ACS custody, failure to initiate timely TPR proceedings, failure to follow proper procedures when removing children from their family home or foster home, failure to provide required services for both biological parents and foster children, failure to honor ACS vouchers and potentially retaliatory practices against those who complained directly to ACS or Contract Agencies. In total, the Constituent Affairs Department has received 259 complaints regarding ACS since January 1, 2014.
117. As a result of ongoing complaints, the Public Advocate identified ACS as an agency whose practices warrant investigation.
118. Upon learning that New York City keeps children in foster care longer than almost every jurisdiction in the country, the Office of the Public Advocate began to examine obstacles to permanency and established a hotline to hear directly from foster children and their advocates about their experiences.
119. In November 2014, the Office of the Public Advocate requested a copy of all contracts ACS holds with individual Contract Agencies; on November 17, 2014, ACS responded with electronic copies of all the contracts it has with the 29 Contract Agencies. On or about February 6, 2015, the Office requested all data collected by ACS used to produce “Scorecard”
37

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 41 of 111
evaluations (see infra ¶¶ 214–17) of the Contract Agencies from 2012 to 2014, in addition to the Scorecard evaluations themselves and any related documentation. After receiving no response, the Office of the Public Advocate repeated the request on February 27, 2015. A meeting was held on March 11, 2015, at which the document request was made for a third time and denied by ACS.
120. On or about April 1, 2015, the Office of the Public Advocate sent a letter to ACS threatening legal action if they did not comply with the data request and also requested access to ACS’s Legal Tracking System in order to investigate constituent complaints concerning significant delays and inefficiencies occurring in Family Court proceedings in which ACS is involved. Following this correspondence, ACS provided Scorecard evaluations, but did not provide the underlying data used to produce them, or the other requested information.
121. Also in April 2015, the Office of the Public Advocate launched a multilingual hotline to learn first-hand from children and their advocates about the current barriers to receiving better services while in foster care and obtaining a safe and permanent home. Participants in the hotline were asked to complete a survey. The survey’s questions varied based on the type of respondent—typically a child, birth parent or foster parent—and asked about the child’s trajectory in foster care, permanency planning, services provided and cases of maltreatment in care.
122. Combining anecdotal reports from the hotline and publicly available data, the Office of the Public Advocate identified several deficiencies including, but not limited to, ACS removal of children without proper court process, failure to identify and provide adequate services for parents of children in care and subsequent delays in reunification, failure to place children appropriately and thus creating instability, failure of ACS and the Contract Agencies to
38

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 42 of 111
be prepared for court dates, failure of ACS to recruit, train and support adoptive placements, failure to engage in concurrent planning, failure to protect children from maltreatment and failure to provide adequate health and mental health services to children in care. Those deficiencies and recommendations for addressing them were cited in a report that was issued on July 2, 2015.
III. Defendants 123. Defendant City of New York (“City”) was, and is, a municipal entity created and
authorized under the laws of the State of New York. It is authorized by law to maintain and ultimately is responsible for the New York City Administration for Children’s Services, which acts as its agent in the area of protecting the safety and welfare of children in the City. The City assumes the risks incidental to the maintenance of the New York City Administration for Children’s Services and its employment of attorneys, caseworkers and others.
124. Defendant New York City Administration for Children's Services (“ACS”) was, and is, a municipal agency of the City responsible for protecting the safety and welfare of all children in New York City. At all times relevant hereto, the officials, agents and employees of ACS were acting under the color of state law in the course and scope of their duties and functions as agents, servants, employees and officials of ACS and otherwise performed and engaged in conduct incidental to the performance of their lawful duties. The officials, agents and employees were acting for, and on behalf of, ACS at all times relevant herein with the power and authority vested in them as agents and employees of ACS and the City and incidental to their lawful pursuit of their duties as officials, employees and agents of ACS.
125. Defendant Gladys Carrión is Commissioner of ACS and is sued solely in her official capacity. She is responsible for ACS’s policies, practices and operations, and for ensuring that ACS and the private agencies with which it contracts comply with all applicable
39

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 43 of 111
federal and state laws, pursuant to the Charter of the City of New York, Chapter 24-B §§ 615 and 617. All children in foster care in New York City are in the custody of Defendant Carrión, and she is responsible for ensuring their health, safety and well-being, including, but not limited to, their freedom from maltreatment while in state custody and their placement in a permanent home within a reasonable period of time.
126. Defendant State of New York (“State”) was, and is, a governmental entity. It is authorized by law to maintain and is ultimately responsible for the New York State Office of Children and Family Services, which acts as its agent in the area of foster care, adoption and adoption assistance for children in New York State. The State assumes the risks incidental to the maintenance of the New York State Office of Children and Family Services.
127. Defendant New York State Office of Children and Family Services (“OCFS”) was, and is, an agency of the State responsible for programs involving foster care, adoption and adoption assistance for children in New York State. At all times relevant hereto, the officials, agents and employees of OCFS were acting under the color of state law in the course and scope of their duties and functions as agents, servants, employees and officials of OCFS and otherwise performed and engaged in conduct incidental to the performance of their lawful duties. The officials, agents and employees were acting for, and on behalf of, OCFS at all times relevant herein with the power and authority vested in them as agents and employees of OCFS and the State and incidental to their lawful pursuit of their duties as officials, employees and agents of OCFS.
128. Defendant Sheila J. Poole is Acting Commissioner of OCFS and is sued solely in her official capacity. She is responsible for the policies, practices and operation of OCFS, for ensuring OCFS’s compliance with all applicable federal and state law, pursuant to New York
40

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 44 of 111
State Social Services Law §§ 11 and 17, and for providing oversight to all social services districts in the state.
JURISDICTION AND VENUE 129. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983. The Court has jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a). The Court may exercise supplemental jurisdiction over the claims based on New York law pursuant to 28 U.S.C. § 1367(a). 130. This Court has jurisdiction to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2002 and Rule 57 of the Federal Rules of Civil Procedure. 131. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b) because the claims arise in this district. Although OCFS and ACS are responsible for children from all five boroughs of New York City, including those in the Eastern District of New York, the Commissioner of ACS has custody of all Plaintiff Children, and ACS’s administrative and managerial functions are operated out of its headquarters, which is located in the Southern District of New York.
CLASS ACTION ALLEGATIONS 132. This action is properly maintained as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 133. The general class is defined as all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services (“Plaintiff Children” or the “Class”).
41

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 45 of 111
134. The Class is sufficiently numerous to make joinder impracticable. As of April 2015, there were approximately 11,137 children in the foster care custody of the Commissioner of ACS.
135. The questions of fact and law raised by Named Plaintiff Children’s claims are common to and typical of those of each putative member of the Class whom they seek to represent. The Named Plaintiff Children and Plaintiff Children rely on Defendants for foster care services in New York City and wholly depend on the State and City Defendants for provision of those services. Defendants’ long-standing and well-documented actions and inactions substantially depart from accepted professional judgment and constitute deliberate indifference to the harm, risk of harm and violations of legal rights suffered by the Named Plaintiff Children and Plaintiff Children.
136. Questions of fact common to the Class include:
a. whether State and City Defendants fail to protect Plaintiff Children from physical, psychological and emotional harm;
b. whether State and City Defendants fail to ensure meaningful case plans to enable Plaintiff Children to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes;
c. whether State and City Defendants fail to provide foster care placements and services that ensure Plaintiff Children’s well-being; and
d. whether ACS fails to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
42

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 46 of 111
137. Questions of law common to the Class include:
a. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s substantive rights under the due process clause of the Fourteenth Amendment to the United States Constitution;
b. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s right to a permanent home and family under the First, Ninth and Fourteenth Amendments to the United States Constitution;
c. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997;
d. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s rights under New York State Social Services Law and regulations adopted pursuant thereto; and
e. whether City Defendants’ actions and inactions violate Plaintiff Children’s rights as third party beneficiaries to the contracts between the City Defendants and the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
138. The violations of law and resulting harms averred by Named Plaintiffs are typical of the legal violations and harms and/or risk of harms experienced by all Plaintiff Children in the Class.
43

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 47 of 111
139. Named Plaintiffs will fairly and adequately protect the interests of the Class that they seek to represent. Named Plaintiffs and Plaintiff Children are represented by the following attorneys who are competent and experienced in class action litigation, child welfare litigation and complex civil litigation:
a. Marcia Robinson Lowry, an attorney with A Better Childhood, Inc., a non-profit legal advocacy organization, who has substantial experience and expertise in federal child welfare class actions nationally; and
b. Attorneys from Cravath, Swaine & Moore LLP, including attorney Julie A. North, a Member of the Firm, who has significant experience in complex litigation in state and federal courts throughout the United States.
Plaintiff Children’s attorneys have identified and thoroughly investigated all claims in this action and have committed sufficient resources to represent the Class through trial and any appeals. Each Named Plaintiff appears by a next friend pursuant to Federal Rule of Civil Procedure 17(c), and each next friend is sufficiently familiar with the facts of the child’s situation and dedicated to the child’s best interests to fairly and adequately represent the child’s best interests in this litigation.
140. Defendants have acted or failed to act on grounds generally applicable to all members of the Class, necessitating class-wide declaratory and injunctive relief. Counsel for Plaintiff Children know of no conflict among the Class members.
44

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 48 of 111
STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM 141. Children in foster care in New York City are in the legal custody of the Commissioner of ACS (currently, Defendant Carrión) (“ACS custody”). At all times, ACS maintains legal custody and legal responsibility for all children in foster care in New York City. 142. Pursuant to its Charter, the City of New York and Defendant Carrión, as Commissioner of ACS, are responsible for ensuring that ACS complies with federal and state law. 143. New York State provides funding to New York City that is spent on child welfare services, and, through OCFS, is responsible for overseeing ACS and ensuring that ACS complies with all applicable federal and state laws. OCFS is also responsible for ensuring that ACS complies with all elements of the state plans (which OCFS signs as a condition of receiving child welfare funds from the United States Department of Health and Human Services) that document how the state will comply with certain core policies and procedures intended to, among other things, either enable children in foster care to be reunited with their families and/or ensure timely efforts to find a permanent home for children who cannot be reunited with their families. 144. Pursuant to the Constitution and federal and state statutory law, ACS, as the custodian of children in foster care in New York City, is required to:
a. Protect each child in foster care from physical, psychological and emotional harm, U.S. Const. amend. XIV;
b. Provide to each child in foster care the services necessary to ensure his or her physical, psychological and emotional well-being, U.S. Const. amend. XIV;
45

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 49 of 111
c. Provide to each child in foster care conditions, treatment and care consistent with the purpose and assumptions of custody, U.S. Const. amend. XIV;
d. Ensure that each child in foster care is not maintained in custody longer than is necessary to accomplish the purpose of custody, U.S. Const. amend. XIV;
e. Provide each child in foster care with a permanent home and family within a reasonable period of time, U.S. Const. amends. I, IX, XIV;
f. Place each child in foster care in a foster placement that conforms to nationally recommended professional standards, 42 U.S.C. § 671(a)(10);
g. Provide for each child in foster care a written case plan that includes a plan to provide safe, appropriate and stable foster care placements and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(A);
h. Provide for each child in foster care a written case plan that ensures that the child receives safe and proper care while in foster care and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
i. Provide for each child in foster care a written case plan that ensures the provision of services to facilitate reunification or, where that is not possible, a permanent home for the child and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
j. Provide for each child in foster care, where reunification is not possible or appropriate, a written case plan that ensures the location of an adoptive or
46

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 50 of 111
other permanent home for the child and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(E); k. Provide for each child in foster care a written case plan that ensures the educational stability of the child while in foster care and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(G); l. Maintain a case review system in which each child in foster care has a case plan designed to achieve safe, appropriate and stable foster care placements, 42 U.S.C. §§ 671(a)(16), 675(5)(A); m. Maintain a case review system in which the status of each child in foster care is reviewed every six months by a court, or person responsible for case management, for purposes of determining the safety of the child, the continuing necessity and appropriateness of the foster placement, the extent of compliance with the permanency plan and the projected date of permanency, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(C); n. Maintain a case review system that ensures that for each child that has been in foster care for 15 of the most recent 22 months, ACS files a petition to terminate the parental rights of the child’s parents and concurrently identifies, recruits, processes and approves a qualified family for an adoption, or documents compelling reasons for determining that filing such a petition would not be in the best interest of the child, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675 (5)(E); o. Provide to each child in foster care quality services to protect his or her safety and health, 42 U.S.C. § 671(a)(22);
47

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 51 of 111
p. Timely create meaningful and appropriate Family Assessment and Service Plans, New York State Social Services Law § 409-e;
q. Timely plan and complete meaningful and appropriate Family Assessment and Service Plan reviews, New York State Social Services Law § 409-e and N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12;
r. Place each child in a foster placement that meets standards for continuity and appropriate level of placement, N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11;
s. File a petition to terminate parental rights for each child who has been in foster care for 15 out of the most recent 22 months or, where applicable, appropriately document an exception, New York State Social Services Law § 384-b, N.Y. Comp. Codes R. & Regs. tit. 18, §§ 430.12 and 431.9; and
t. Provide each child in foster care who has been freed for adoption with meaningful and appropriate adoption services, including evaluation of the child’s placement and pre-placement needs, recruitment of and a home study for prospective adoptive parents, placement planning, supervision and post-adoption services, New York State Social Services Law §§ 372-b, 372-e and N.Y. Comp. Codes R. & Regs. tit. 18, § 421.8.
145. By contract, ACS has delegated the care of the City’s children in foster care to agencies (“Contract Agencies”). ACS currently has entered into valid and enforceable contracts with 29 Contract Agencies. The contracts into which ACS has entered with each of the Contract Agencies (referred to herein as the “Agreements”) require the Contract Agencies to comply with
48

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 52 of 111
all applicable ACS policies, as well as state and federal law. The Agreements also require the Contract Agencies to provide comprehensive foster care services as defined in the Agreements.1
146. Regardless of the terms of the Agreements, by law, ACS at all times maintains legal custody of and legal responsibility for all children in foster care in New York City. However, ACS has failed and continues to fail to ensure the protection of Plaintiff Children’s rights under federal and state constitutional and statutory law.
147. Children in New York City enter foster care in one of two ways—they can be voluntarily placed into foster care by their parents,2 or they can be removed from their parents by ACS. Most children in foster care in New York City have been removed from their parents. When children are removed from their parents, the removal is either (a) pursuant to a Family Court finding that the child is in danger of abuse or neglect if left with his or her parents or (b) on an emergency basis, subject to a later finding by the Family Court that the child would have been in danger of abuse or neglect if he or she had been left with his or her legal parents. In both cases, the Family Court must hold a fact-finding hearing to determine whether the child was in danger of being abused or neglected if left with his or her parents. After the fact-finding hearing, the Family Court holds a disposition hearing to determine whether the child can safely be returned home or should remain in foster care pending the completion of certain actions (e.g., treatment for drug or alcohol addiction, anger management classes, etc.).
1 Each Agreement between the Contract Agency and ACS is for a particular set of foster placement services. Therefore, one Contract Agency may have multiple Agreements with ACS, each for a different type of placement. Appendix A lists, to the best of our information and belief, the Agreements which were current as of November 2014 (see ¶ 119) and that are still in force today.
2 Unless otherwise specified, the term “parents” as used herein refers to the person(s) who have legal custody or legal responsibility for the child prior to his or her entry into foster care, and may include biological parents, grandparents, adoptive parents or other legal guardians.
49

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 53 of 111
148. Once a child enters foster care, ACS “places” the child with a Contract Agency, to which ACS delegates the day-to-day care of, and case planning responsibility for, the child. Upon information and belief, placement with a Contract Agency is determined largely by which Contract Agency has availability when placement is sought, not by a determination of the child’s health, safety or permanency needs, or of the ability of a potential available placement to meet those needs.
149. The Contract Agency with which the child has been placed then assigns the child a foster placement, which can be either a traditional home-like setting or residential facility.3 Upon information and belief, foster placements are determined largely by availability at the time the placement is sought, not by a determination of the child’s health, safety or permanency needs, or of the ability of a potential available placement to meet those needs.
150. Once a child is placed with a Contract Agency, caseworkers employed by that Contract Agency are responsible for generating and recommending a case plan for the child.
151. Pursuant to federal and state law, ACS is required to ensure that a case plan meeting statutory criteria and professional standards is prepared for each child in foster care. In New York, these case plans are referred to as Family Assessment and Service Plans (“FASP”). Each child’s FASP must describe, among other things, the child’s physical and mental health needs, the child’s permanency goal, the services necessary to meet the child’s physical and mental needs as identified in the case plan and the services necessary to help the child achieve his or her permanency goal as identified in the case plan.
3 Residential facilities include boarding homes, group homes, group residences, and institutions or residential treatment facilities. Residential facilities are the most restrictive settings, usually intended for the placement of older children with severe clinical, medical, mental and/or behavioral problems.
50

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 54 of 111
152. Pursuant to state and federal law, ACS also is responsible for ensuring that each child’s case plan is implemented, and for providing each child in its custody with the services necessary to meet the child’s physical and mental needs as identified in the case plan and the services necessary to help the child achieve his or her permanency goal as identified in the case plan.
153. ACS delegates the preparation of such case plans and the provision of such services to the Contract Agency with which the child has been placed. However, ACS fails to ensure that the Contract Agencies prepare meaningful and appropriate FASPs for each child in ACS custody, as required by state law. ACS also fails to ensure that the Contract Agencies provide the services necessary to meet both the child’s physical and mental needs and to help the child achieve his or her permanency goal (as identified in the case plan), as required by law.
154. Foster care is intended to be temporary—a short-term placement until a child can be safely reunified with his or her parents or, where that is not possible, placed into another stable, permanent home.
155. Accordingly, federal and state law require ACS to ensure that each child in foster care has a “permanency goal” and that reasonable efforts are made to reach each child’s established permanency goal within a reasonable period of time. There are five possible permanency goals: (1) return to parent; (2) adoption; (3) legal guardianship or kinship guardianship; (4) placement with a relative; and (5) another planned permanent living arrangement (“APPLA”), the permanency goal given to children who will “age out” of the foster care system.
156. ACS delegates case planning responsibility, including assigning permanency goals and making reasonable efforts toward permanency goals, to the Contract Agency with
51

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 55 of 111
which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agencies engage in meaningful and appropriate permanency planning, as required by federal and state law.
157. Federal law requires ACS to ensure that caseworkers engage in concurrent planning, so that each child in ACS custody has a primary permanency goal and a secondary permanency goal, both of which the caseworker must work toward simultaneously. For example, if a child’s primary permanency goal is “return to parent” and the secondary permanency goal is “adoption”, concurrent planning requires simultaneous provision of necessary services so that the child can be returned home safely and recruitment of potential adoptive parents in the event the child is unable to be returned home safely. The purpose of concurrent planning is to limit the harm caused to the child by a lengthy stay in foster care by ensuring that the child is placed into a permanent home within a reasonable period of time.
158. ACS delegates case planning responsibility, including engaging in concurrent planning, to the Contract Agency with which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agencies engage in meaningful and appropriate concurrent planning, as required by federal law.
159. Federal and state law require ACS to ensure that a child’s case plan is periodically reviewed to ensure that the child’s permanency goal is appropriate and that progress is being made toward safely returning the child to his or her parent or, if that were not possible within a reasonable period of time, placing the child in a permanent home. By state statute, an initial FASP review must be held between 60 and 90 days after the child is placed in foster care, and subsequent FASP reviews must be held no less than every six months thereafter. ACS must ensure that the caseworker and all relevant persons, including, but not limited to, the parents of
52

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 56 of 111
the child, relatives, the foster parent and the child, if old enough, participate in the FASP reviews. However, ACS fails to ensure that meaningful and appropriate FASP reviews occur as required by state law.
160. By state statute, a permanency hearing must be held in the Family Court within eight months of a child’s removal from his or her parents and every six months thereafter, and that permanency hearing must be completed within 30 days. The purpose of permanency hearings is to provide each child in ACS custody with timely judicial review of the child’s permanency goal and whether progress has been made toward achieving that goal.
161. Because ACS fails to ensure that all parties are prepared for court and that Contract Agencies submit necessary paperwork in a timely fashion, such permanency hearings often are not completed within the time period required by state law. In many if not most instances, the permanency hearings are held before the Family Court has even made a determination about whether the parent from whom the child was removed has in fact neglected or abused the child.
162. Federal and state law provide that ACS must, after a child is removed from his or her parents, make a reasonable effort to preserve family relationships, which includes providing services to the child’s parents. Federal law and policy dictate that the preferred course of action is to reunify the child with his or her parents.
163. ACS has delegated its responsibility to make reasonable efforts to reunify each child in its custody with his or her parents to the Contract Agency with which the child has been placed. However, ACS fails to ensure that reasonable efforts are being made or that necessary services are being provided to enable children in ACS custody to be returned home within a reasonable period of time, as required by federal and state law.
53

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 57 of 111
164. Even while efforts are being made to reunify a child with his or her parents, federal law and professional standards also require ACS to ensure that concurrent planning—i.e., to pursue another permanency option for the child in the event that the child cannot safely be returned to his or her parents (see supra ¶ 157)—occurs. That means that ACS should not wait months or years until reunification efforts have failed to begin alternative permanency planning, including identifying other potential permanent homes for the child.
165. Federal and state law require ACS to determine within a reasonable period of time whether or not a child in foster care can be safely and appropriately returned to his or her parents, and if not, to initiate a petition to terminate parental rights so that the child is legally available to be adopted. ACS has delegated the responsibility for making that determination to the Contract Agency with which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agency makes that determination within a reasonable time, as required by federal and state law.
166. Under federal and state law, ACS must file a petition to terminate parental rights (“TPR”) when a child has been in foster care for 15 of the previous 22 months, subject to certain exceptions that must be documented. Under state law, ACS must file a TPR petition (a) within 30 days of establishing a primary permanency goal of “adoption”; (b) within 60 days of completing a FASP that documents abandonment or permanent neglect of a child; and (c) within 60 days of a judicial determination that a child was abandoned. ACS has delegated its responsibility to file TPR petitions to the Contract Agency with which each child in its custody has been placed. However, ACS fails to ensure that TPR petitions are filed within the time periods required by federal and state law.
54

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 58 of 111
167. Once parental rights have been terminated and a child in ACS custody is considered “freed” for adoption, state statutory law and regulations require ACS to take a number of additional steps to place that child into a permanent home, including (a) timely acting on applications by persons looking to adopt children; (b) initiating and completing adoption studies (evaluations of an applicant’s ability to be an adoptive parent) within certain time periods; (c) placing children in adoptive homes within certain time periods; and (d) finalizing adoptions within certain time periods. However, as the concept of concurrent planning (see supra ¶ 157) makes clear, ACS should have been identifying other potential permanent homes for the child well before the child is freed for adoption. ACS has delegated these responsibilities to the Contract Agency with which each child in its custody has been placed; however, ACS fails to ensure that the necessary and appropriate steps are taken to develop an appropriate pool of adoptive families and to place children who have been freed for adoption into adoptive homes, as required by state law.
168. Although ACS has delegated the provision of comprehensive foster care services in New York City to 29 Contract Agencies, that delegation does not and cannot supplant ACS’s responsibilities to Plaintiff Children under federal and state law. ACS has legal custody of all children in foster care in New York City. ACS accordingly has legal responsibility for ensuring that the rights of all children in foster care in New York City are protected—which ACS has failed, and continues to fail, to do.
55

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 59 of 111
FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S FOSTER CARE SYSTEM AND RESULTING HARM TO PLAINTIFF CHILDREN
169. The experiences and current situations of the Named Plaintiff Children as described above are neither unusual nor aberrational. Rather, they are merely examples that are far too typical of the irreparable harm being suffered by all children in ACS custody.
170. Defendants are harming Plaintiff Children by:
a. failing to protect Plaintiff Children from physical, psychological and emotional harm;
b. failing to ensure the development and implementation of meaningful case plans to enable Plaintiff Children to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes; and
c. failing to provide foster care placements and services to ensure Plaintiff Children’s well-being.
171. These harms are a direct result of Defendants’ long-standing and well documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years:
a. ACS fails to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
56

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 60 of 111
b. ACS fails to ensure that Contract Agency caseworkers are assigned caseloads and receive appropriate training consistent with professional standards.
c. ACS fails to provide a system for making foster placements consistent with federal and state law and minimum professional standards.
d. ACS fails to ensure case and service plans are developed and implemented consistent with federal and state law and minimum professional standards.
e. ACS fails to take all necessary and available action to ensure timely adjudication of family court proceedings involving children in ACS custody consistent with federal and state law and minimum professional standards.
All of Defendants’ actions and inactions as described herein substantially depart from accepted professional judgment and constitute deliberate indifference to the harm, risk of harm and violations of legal rights suffered by Plaintiff Children.
172. Put simply, as a result of Defendants’ failures, caseworkers employed by the Contract Agencies to which ACS has delegated the care of Plaintiff Children often are inexperienced, undertrained, under-supervised, overworked and underpaid; case planning often is sloppy and ineffective; there are not enough suitable and appropriate foster and pre-adoptive placements to meet Plaintiff Children’s needs; and a lack of urgency and accountability pervades New York City’s foster care system.
173. Defendants have long been aware of these systemic failures and the resulting harm to the vulnerable children in ACS custody. Since 2000, OCFS has undergone two federal performance audits of the New York State child welfare system, known as Child and Family
57

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 61 of 111
Services Reviews (“CFSR”). These reviews are conducted by the United States Department of Health and Human Services to assess the performance of child welfare systems across the country, including the outcomes achieved for children, to identify areas in which systemic improvement is required to assure appropriate outcomes for children, and to implement corrective actions where outcomes for children are found to be deficient. States are evaluated on seven outcome indicators of safety, permanency and well-being—the unequivocal goals of all foster care systems pursuant to federal statutory law—and on seven systemic factors that affect the state’s capacity to deliver foster care services effectively.
174. The two federal audits completed to date revealed myriad areas in which the New York State foster care system was causing harm to the children in its care, and that New York State’s foster care system was getting worse. The first CFSR audit, which was published in 2002, found that New York State failed to conform to federal expectations in five of the seven safety, permanency and well-being indicators, and in three of the seven systemic factors. Seven years later, New York State performed worse. During the second CFSR audit, which was published in 2009, the federal government determined that New York State failed to conform to federal expectations in all seven safety, permanency and well-being indicators, and in five of the seven systemic factors. New York State’s CFSR results are heavily influenced by New York City’s child welfare system, which accounted for well over 60% of children in foster care in New York State in both 2002 and 2009.
175. Notwithstanding having had 13 years to improve performance since the first CFSR audit of New York State, Defendants continue to place New York City children in ACS custody at significant risk of harm. The most recent federal data available shows that children in
58

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 62 of 111

New York State spend longer in foster care and are more likely to be maltreated while in foster care than children in virtually all other states.
176. Defendants are not acting with sufficient urgency to address these known failures or to meet their legal obligations to protect the children in New York City’s foster care system.

I.

DEFENDANTS ARE CAUSING IRREPARABLE HARM TO CHILDREN IN ACS

CUSTODY.

A. Defendants Fail To Protect Children in ACS Custody from Maltreatment.

177. Maltreatment of children in foster care is a significant problem in New York City.

178. New York City currently accounts for almost 60% of children in foster care in

New York State, which lags far behind the nation with respect to the protection of children in

foster care.

179. Based on the most recent federal data available, New York State ranks 46th out of

48 states and territories for instances of substantiated or indicated maltreatment of children while

in foster care. Put simply, children in New York are more likely to be harmed while under the

state’s protection than children in virtually every other state.

180. New York State has had a high rate of maltreatment in foster care for years. In

both the 2002 and 2009 CFSRs, the federal government found that New York State did not meet

the national standard for the rate of maltreatment in foster care. Based on the most recent federal

data available, New York State did not meet the national standard for 2013.

181. Upon information and belief, the high rate of maltreatment in care in New York

State is largely driven by maltreatment of children in ACS custody in New York City, which

accounts for the majority of children in foster care in New York State.

182. All investigations of maltreatment, including those pertaining to children in foster

care custody, begin with a call to the Statewide Central Register of Child Abuse and
59

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 63 of 111
Maltreatment (“SCR”). According to ACS, in 2014, SCR received 1,987 reports of maltreatment of children in ACS custody (i.e., children in foster care in New York City). ACS’s Office of Special Investigation investigates reports of maltreatment made to the SCR, including those for children already in foster care; a report of maltreatment is “substantiated” when sufficient evidence is found to support a determination that a child was in fact maltreated. Of the 1,987 reports of maltreatment in foster care received by SCR in 2014, 28% were substantiated. The Children’s Bureau of the federal government does not publish comparable data.
183. The high rate of maltreatment of children in ACS custody is a direct result of Defendants’ long-standing and well-documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years. ACS’s failure to ensure that Plaintiff Children are protected from maltreatment substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
B. Defendants Fail To Provide Children in ACS Custody with Permanent Homes and Families Within a Reasonable Time.
184. Foster care is intended to be temporary. Children who do not grow up in stable family environments are less likely to complete their education, to form healthy relationships or to be otherwise prepared to live healthy, satisfying adult lives. Accordingly, federal and state law and professional standards dictate that foster children should be placed in permanent homes as quickly as is safely possible, whether with their parents, another relative or an adoptive family.
185. But ACS allows Plaintiff Children to languish for years in foster care without permanent homes or families to call their own. Indeed, the most recent federal data available shows that New York City lags far behind the rest of New York State and the nation as a whole
60

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 64 of 111
in placing children in foster care custody in permanent homes. As a result, children spend longer in foster care custody in New York City than virtually everywhere else in the nation.
1. Defendants Fail To Ensure Children Are Timely and Safely Reunified with Their Parents.
186. Federal and state law provide that ACS must, in the first instance, make reasonable efforts to preserve a child’s relationship with his or her family. After a child is removed from home due to allegations of abuse or neglect, federal and state law and policy dictate that the preferred course of action is to reunify the child with his or her parents. Reunification, however, is only appropriate where the reason for removal has been addressed through appropriate services to the family so that the child’s safety is assured. As a result, ACS must ensure the provision of appropriate and effective services4 so that children in ACS custody can safely return home.
187. ACS fails to ensure that children in ACS custody are safely returned to their parents within a reasonable period of time.
a. It takes longer to return children in foster care to their parents in New York City than in the rest of New York State and the rest of the nation as a whole. The most recent federal data available shows that children in New York City had spent a median of over a year—12.6 months—in foster care before being reunified with their parents, while children in the rest of New York State spent a median of 10.8 months, and children in the rest of the nation spent a median of 8.6 months in foster care prior to reunification.
4 Necessary reunification services, which should be established and set forth in the child’s case plan, may include psychological evaluations and/or care, substance abuse treatment, parenting classes or assistance, or assistance with accessing adequate housing.
61

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 65 of 111
b. New York City takes longer to return children in foster care to their parents than all but five other states and territories. Based on the most recent available federal data comparing the median number of days children spent in foster care prior to being returned to their parents, New York City ranks 48th of 53 jurisdictions.
188. ACS also fails to ensure that children are safely returned to their parents. Children who are eventually reunified with their legal parents too often re-enter foster care due to further abuse or neglect. In 2014, 13.9% of foster care placements in New York City were of children who had been in foster care within the previous three years. Failed reunifications cause harm to children both as a result of additional maltreatment—in the worst cases, severe injury or even death—and the trauma that accompanies repeated family separation.
2. Defendants Fail To Ensure a Timely Permanent Home for Children in ACS Custody when Reunification Is Not Possible.
189. When a child cannot be returned safely to his or her parents, federal and state law require ACS to promptly find children in its custody alternative permanent homes, typically through adoption or kinship guardianship.
190. However, ACS fails to secure timely adoptions for too many children in its custody who cannot safely be returned to their parents. Instead, these children languish in ACS custody for years without a permanent home or family to call their own.
a. For children who cannot be safely returned to their parents, it takes longer to be adopted in New York City than in the rest of New York State. It also takes longer to be adopted in New York City than in every other state in the nation.
62

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 66 of 111
b. Children who were adopted in New York City in 2013 spent a median of 55.8 months—over 4.5 years—in foster care prior to adoption. In contrast, children in the rest of New York State spent almost two years less time—a median of 32.6 months—in foster care prior to being adopted, and children in the rest of the nation spent less than half that amount of time—a median of 26.9 months—in foster care prior to being adopted.
c. Based on the most recent available federal data comparing the median number of days children spent in foster care prior to being adopted, New York City ranks dead last—a fact that has been true since at least 2007.
191. The City Defendants are well aware that it takes over 4.5 years for a child to be adopted in New York City. The City has published that fact for the past five years in its Mayor’s Management Reports.
3. Defendants’ Failure To Provide Children in ACS Custody Permanent Homes Within a Reasonable Period of Time Causes Irreparable Harm.
192. Research has shown that permanent homes and families are critical to ensuring a child’s healthy development and continue to confer benefits that contribute to the child’s success throughout life. Being placed with a permanent family helps infants with brain development; young children with self esteem, healthy attachment and behavior regulation; and adolescents with independence and healthy boundary-setting. Parental support and a stable, familiar environment also help children cope after traumatic experiences.
193. Conversely, research has shown that children suffer when they grow up in state custody without the protective effects of a permanent home and family. Each year,
63

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 67 of 111
approximately 1,000 young people “age out” of New York City’s foster care system, the vast majority on their own with virtually no safety net. These children suffer irreparable harm. Research has shown that children who “age out” of foster care are more likely than their peers to be unemployed, homeless and incarcerated as adults; are more likely to have drug dependence and post-traumatic stress disorder; and are less likely to have graduated high school, attended college, or to have a savings or checking account.
194. Too frequently, caseworkers push children to accept the permanency goal of APPLA—the goal given to children who will “age out” of the foster care system—at young ages, often failing to explore other options, such as adoption or placement with a relative. ACS allows too many children who cannot safely be returned home to be deemed “unadoptable” without making reasonable efforts to search for or secure permanent homes for those children. ACS also fails to explore alternative permanency options for older teens who may express that they do not want to be adopted but who would nevertheless benefit from a permanent and stable adult connection.
195. Defendants have long been aware of the harm children suffer when they do not grow up in a permanent home or have a permanent family. In February 2011, Defendant OCFS sent ACS and the Contract Agencies an informational letter stating that “children who have a significant connection to an adult generally fare better” and that “[s]tudies of youth who leave foster care without a safe, permanent family reveal consistently negative life outcomes.” However, Defendants have made no meaningful efforts to improve permanency for Plaintiff Children.
196. ACS’s failure to provide Plaintiff Children with permanent homes within a reasonable period of time is a direct result of Defendants’ long-standing and well-documented
64

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 68 of 111
actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years. ACS’s failure to ensure that Plaintiff Children are placed in permanent homes within a reasonable period of time substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
C. Defendants Fail To Provide Foster Placements and Services that Ensure the WellBeing of Children in ACS Custody.
197. Federal and state law and professional standards require ACS to ensure foster care services are provided in a manner that ensures the well-being of each child in ACS custody.
198. Federal and state law and professional standards require ACS to ensure that each child in ACS custody is placed in the most appropriate, least restrictive placement available. The abrupt and overwhelming change of being removed from his or her parents and placed into ACS custody can further traumatize a child. In the process of initial placement, children are removed, often abruptly, from familiar surroundings and lose everything known and comforting. Research has shown that change of this magnitude has a detrimental effect on brain and neurological function and other negative physiological effects.5 Accordingly, foster placements should be based on an assessment of the individual child’s needs and should promote stability and continuity by placing children with relatives, keeping children in their communities and schools, and keeping siblings together whenever possible.
5 This is one reason why children, especially very young children, often regress in their development and behaviors (e.g., toilet training, talking, etc.) after being removed from their parents. Separation from family, and the resulting attachment disruption, may intensify these negative physiological effects and is particularly devastating for younger children.
65

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 69 of 111
199. Instead, ACS further harms Plaintiff Children by putting them in inappropriate foster placements ill-equipped to meet their needs, which results in far too many children being shuffled from foster placement to foster placement:
a. In December 2011, ACS published data stating that 14% of children then in ACS custody had experienced more than six transfers while in foster care; and additional 16% had been shuffled from between three and five placements.
b. More recently, in July 2015, the Public Advocate published a report, finding that 26% of the foster children surveyed had experienced five or more transfers while in ACS custody.
200. Being shuffled from foster placement to foster placement negatively affects a child’s well-being. Children may be dropped off at a new place with no explanation for where they are going and why. This degree of turbulence can lead to emotional trauma and attachment disorders, and causes children to lose all sense of stability and security. Frequent moves may result in children losing contact with siblings, other family members, friends and adults in their community who may have been involved in their lives.
201. Multiple placements can also cause educational interruptions and compromise the child’s ability to finish school. Federal statutory law and reasonable professional standards require ACS to make reasonable efforts to keep children in the same school whenever possible.
202. As a result, for too many children in ACS custody, moving foster placements means changing schools, losing teachers and friends. In 2009, Children’s Rights, a national advocacy organization for abused and neglected children, ACS and the Legal Aid Society Juvenile Rights Practice conducted a study of children in New York City’s foster care system
66

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 70 of 111
(referred to herein as “The Long Road Home Study”).6 The Long Road Home Study found that 30% of children studied had experienced at least one school transfer within the past year and that children who had experienced more than one placement move in a one-year period were significantly more likely to have experienced a school transfer as well.
203. The failure to provide educational stability—like the failure to provide placement stability—further damages children in ACS custody. School is often the one place where children who are being abused or neglected at home feel safe, so changing schools can be traumatic. Research has also shown that children in foster care have lower standardized test scores, poorer academic performance and higher rates of grade retention, absenteeism, tardiness, truancy and dropout than their peers. According to data from the New York City Department of Education, foster youth in 8th grade score significantly lower than their peers in English and math.
204. Federal and state law also require ACS to ensure that all children in its legal custody receive the necessary services to ensure their well-being. This includes adequate medical, dental and mental health assessments and follow-up care; educational assessments and services; independent living services; substance abuse treatment; or family planning services, as needed.
205. However, ACS fails to ensure that all children in its custody are provided with these essential services to ensure their well-being:
a. New York City fails to meet the national standard for providing adequate medical, dental and mental health care. In the 2009 CFSR, for example,
6 The results of this study were published in a November 2009 report entitled “The Long Road Home: A Study of Children Stranded in New York City Foster Care”.
67

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 71 of 111
the federal government determined that only 73% of children in New York City received adequate services to meet their physical and mental health needs—well below the national benchmark of 95%. b. The Long Road Home Study found that ACS failed to ensure the provision of necessary mental health services for a substantial number of children in its custody—16% of children studied who needed a mental health assessment, 19% of children studied who needed individual therapy and 11% of children studied who needed psychotropic medication had not received those critical mental health services within the past year. The study also found that many children who needed the B2H Medicaid waiver program did not receive it because caseworkers failed to make timely referrals or because there were not enough slots in the program.
206. These services are critical to the well-being of children in ACS custody, who are particularly vulnerable to irreparable physical, psychological and emotional damage from ACS’s failure to provide necessary services. Children in foster care custody often have experienced severe and chronic trauma, including physical or sexual abuse, neglect and domestic or community violence, as well as other stressors such as extreme poverty or parental substance abuse. Research has shown that children exposed to repeated traumatic stress or pervasive neglect, including children removed from their home due to abuse or neglect, manifest increased physical, psychological and emotional problems later in life. Being placed in and left to languish in foster care without a permanent home or family further compounds these problems.
207. According to the National Child Traumatic Stress Network, exposure to trauma derails development in children of all ages. Young children (five and younger) may experience
68

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 72 of 111
sensitivity to noise, avoidance of contact, heightened startle response, confusion about what is dangerous and who to go to for protection, and fear of being separated from familiar people and places. School-aged children (ages six to 12) may exhibit emotional swings, learning problems, specific anxieties and fears, attention seeking behavior and reversion to younger behaviors. Adolescents (13 to 21) may have difficulty imagining or planning for the future, over- or underestimate danger, display inappropriate aggression, and engage in reckless and/or self-destructive behaviors.
208. Accordingly, it is critical that all children in ACS custody are properly assessed and receive necessary services as soon as possible to facilitate their recovery from the trauma they already have experienced. However, ACS fails to ensure that all children in its custody are provided with these critical services within a reasonable period of time.
209. ACS also fails to ensure that the quality of services being provided to Plaintiff Children is consistent with professional standards. Upon information and belief, many Contract Agencies do not directly provide services; instead, they refer foster children to other service providers with which the City contracts. However, upon information and belief, the City Defendants do not exercise adequate and meaningful oversight over these service providers. Upon information and belief, most mental health services provided to children in ACS custody are ineffective and of poor quality, but ACS continues to renew contracts with these substandard service providers while the few quality service providers have lengthy waiting lists.
210. ACS’s failure to provide Plaintiff Children with appropriate foster care placements consistent with professional standards and services to ensure their physical, psychological and emotional well-being is a direct result of Defendants’ long-standing and welldocumented actions and inactions and Defendants’ failure to remedy structural and systemic
69

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 73 of 111
deficiencies that have plagued New York City’s foster care system for years. These failures substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the risk of harm to Plaintiff Children.
II. DEFENDANTS HAVE FAILED TO REMEDY THE SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S CHILD WELFARE SYSTEM 211. The harms described in ¶¶ 177–210 are a direct result of Defendants’ long-
standing and well-documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years, including:
a. the City Defendants’ failure to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the dayto-day care of, and case planning responsibility for, Plaintiff Children to ensure foster care services are provided consistent with federal and state law and minimum professional standards;
b. ACS’s failure to ensure that Contract Agency caseworkers are assigned caseloads and receive appropriate training consistent with professional standards;
c. ACS’s failure to provide a system for making foster placements consistent with federal and state law and minimum professional standards;
d. ACS’s failure to ensure case and service plans are developed and implemented consistent with federal and state law and minimum professional standards; and
70

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 74 of 111
e. ACS’s failure to take all necessary and available action to ensure timely adjudication of family court proceedings involving children in ACS custody consistent with federal and state law and minimum professional standards.
These failures substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the harm, risk of harm and violations of rights suffered by Plaintiff Children.
A. City Defendants Fail To Exercise Adequate and Meaningful Oversight over Contract Agencies.
212. By contract, ACS delegates its responsibility to provide children in its custody with foster care services to Contract Agencies. However, ACS at all times maintains legal custody of and legal responsibility for all children in foster care in New York City. ACS thus has an obligation to Plaintiff Children to ensure that Contract Agencies are providing foster care services consistent with all applicable law and professional standards. ACS fails to do so.
213. Instead, ACS does not meaningfully supervise Contract Agencies or hold them accountable for underperformance. As a result, ACS shirks its legal obligations to Plaintiff Children while the City pays millions of dollars to Contract Agencies for the provision of foster care services without ensuring that those services are adequately provided to Plaintiff Children.
214. Under the Agreements, ACS is expressly required to supervise, monitor, audit and review the activities of the Contract Agencies. Currently, ACS conducts an annual evaluation, called “Scorecard”, of each Contract Agency to evaluate process, practice and outcome indicators in safety, permanency and well-being. According to ACS’s 2014 Scorecard Methodology, the Scorecard evaluation involves reviewing a combination of case-specific and
71

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 75 of 111
aggregate data. Each Contract Agency then receives a letter grade (from A to F) indicating its performance for safety, for permanency and for well-being.
215. The Scorecard evaluations are flawed and ineffective for at least the following reasons:
a. ACS fails to measure several key performance metrics. For example, ACS has failed to develop Scorecard measures to evaluate whether Contract Agencies are successfully engaging in concurrent planning and whether Contract Agencies are making efforts to recruit non-kinship foster parents and adoptive parents.
b. Upon information and belief, the results of the Scorecard evaluations do not accurately reflect each Contract Agency’s performance in providing foster care services to children in ACS custody.
c. ACS’s performance standards are simply too low—upon information and belief, the majority of Contract Agencies receive “passing” grades even though New York City has one of the worst foster care systems in the nation.
216. ACS also fails to hold Contract Agencies accountable for underperformance on the Scorecard evaluations. According to ACS’s 2014 Scorecard Methodology, ACS’s Agency Program Assistance team (“APA”) analyzes the Scorecard data to identify areas of strength and weakness for each Contract Agency and works collaboratively with each Contract Agency and with ACS to improve performance. APA sets benchmarks throughout the year for each Contract Agency; however these benchmarks are relative and set by taking into account the Contract Agency’s current performance, ACS standards and system-wide performance.
72

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 76 of 111
217. When performance is “considerably or persistently poor”, APA can use “accountability mechanisms” in order to drive performance. However, ACS does not adequately use its accountability mechanisms to ensure appropriate performance of the Contract Agencies. ACS’s failure to make Scorecard data publicly available further decreases accountability.
218. As a direct result of ACS’s failure to meaningfully oversee the Contract Agencies, Plaintiff Children suffer irreparable harm because there simply are no consequences for the failure to protect them from physical, psychological and emotional harm; the failure to enable them to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes; and the failure to provide them with appropriate foster placements and necessary services to ensure their well-being.
B. Defendants Fail To Ensure an Adequately Staffed and Appropriately Trained Child Welfare Workforce.
219. No foster care system can effectively perform its basic functions absent a welltrained, experienced and adequately staffed workforce. In New York City, ACS has delegated its obligation to care for the children in state custody to Contract Agencies, who in turn employ the caseworkers that directly interact with children in foster care and their families. However, ACS fails to ensure that these caseworkers are adequately trained, supervised and staffed, consistent with professional standards.
1. Defendants Fail To Ensure Caseworkers Are Adequately Trained and Supervised.
220. Caseworkers must be fluent in governing policy and procedure and familiar with current best practices. Consistent with professional standards, a foster care system should require pre-service training, which must be completed before caseworkers can carry an active caseload, and mandatory annual in-service training designed to refresh caseworkers in basic
73

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 77 of 111
policy and procedure and to teach advances in policy and in the field. In addition, it is critical to ensure appropriate supervision.
221. ACS fails to ensure that Contract Agency caseworkers receive adequate training or supervision. In 2009, the Long Road Home Study, which was performed in conjunction with ACS, found that a substantial proportion of caseworkers had not received any training before being given responsibility for a caseload of foster children. That same study also found that the quality of caseworker supervision at Contract Agencies was questionable.
2. Caseworkers Carry Unmanageable Caseloads. 222. Child welfare research has shown that high caseworker caseloads negatively impact children in foster care. Caseworkers with high caseloads have less time to interact with children, families and service providers and provide meaningful and appropriate case plans, necessary services, and timely casework and decision-making. It is therefore critical that caseworkers have manageable caseloads. 223. However, in New York City, ACS fails to ensure that all Contract Agency caseworkers carry caseloads consistent with professional standards. 224. The Child Welfare League of America (“CWLA”), a coalition of private and public agencies that develops child welfare policies and promotes sound child welfare practice, has established nationally recognized standards for caseworker caseloads. The standards governing foster care caseworkers limit caseloads to between 12 and 15 children per worker. The Council on Accreditation (“COA”), an accrediting body that partners with human service organizations to improve child welfare service delivery outcomes, recommends that caseloads for foster care caseworkers be limited to between eight and 15 children per worker, depending on the needs of the children.
74

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 78 of 111
225. Upon information and belief, ACS fails to ensure that Contract Agencies comply with these caseload standards, and many caseworkers’ caseloads in New York City exceed this standard by a wide margin. The Long Road Home Study found that caseworker caseloads exceed recommended sizes. Similarly, at a briefing in January 2013, a member of ACS’s senior management under the previous administration stated that caseloads could range from 16 to 24 children, noting that this was far too high.
226. Excessive caseloads overburden caseworkers and prevent them from performing casework consistent with federal and state law and professional standards.
227. High caseloads also contribute to burnout and turnover among caseworkers. Research has shown that Contract Agency caseworker turnover is associated with children experiencing multiple placements, receiving fewer services, staying in foster care longer and failing to achieve permanency. When a case changes hands from caseworker to caseworker, relationships are severed and valuable information is lost. ACS does not publish system-wide data regarding foster care caseworker turnover; upon information and belief, ACS does not collect such data. In 2006, the Council of Family and Child Caring Agencies reported Contract Agency caseworker turnover rates of 40%. In 2009, the Long Road Home Study reported that caseworker turnover is a major barrier to permanency. Upon information and belief, high foster care caseworker turnover rates persist.
3. Defendants Fail To Ensure Regular Caseworker Visits To Children in Foster Homes or Congregate Care.
228. Caseworkers must have regular face-to-face contact with children in foster care, parents, and foster parents or child care workers. The primary purpose of these contacts is to ensure the safety and well-being of the children, to engage families in planning for their children, to assess the strengths and needs of all family members and caregivers, and to address the needs
75

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 79 of 111
of all family members and caregivers in order to move children out of foster care and into permanent homes.
229. COA recommends that caseworkers meet separately with children, parents and foster parents at least once a month. ACS policy requires a minimum of monthly contact between caseworkers and children in foster care.
230. However, ACS fails to ensure that caseworkers are making sufficient contacts with children, parents and foster parents to ensure the safety and well-being of children in ACS custody. The Long Road Home Study, which was prepared in conjunction with ACS in 2009, found that caseworkers did not maintain adequate contact with children, parents and foster parents.
231. Moreover, upon information and belief, ACS fails to ensure that Contract Agencies make unannounced visits to ensure that children in ACS custody are protected from maltreatment. Upon information and belief, ACS also fails to ensure that visits with children take place privately and out of the presence of the child’s caretaker.
232. ACS’s failure to ensure that Contract Agency caseworkers maintain contact with key persons to ensure the safety and well-being of children in its care substantially departs from reasonable professional standards and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
233. As a direct result of ACS’s failure to ensure that caseworkers maintain regular contact with children, parents and foster parents, Plaintiff Children frequently suffer harm because their assigned caseworkers are unable to meaningfully assess the child’s safety and wellbeing and to provide necessary services to place the child into a permanent home. ACS’s failure to ensure that Contract Agency caseworkers make sufficient contacts with the children in ACS
76

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 80 of 111
custody substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
*** 234. As a direct result of Defendants’ failure to ensure that the first point of contact for all Plaintiff Children—the Contract Agency caseworkers—are trained, supervised, staffed and performing visits consistent with professional standards, Plaintiff Children frequently suffer harm because their assigned caseworkers are ill-prepared to make the judgments necessary to promote their safety, permanency and well-being, unable to meaningfully address their complex and varied needs and unable to meaningfully assess the child’s safety and well-being or provide necessary services. ACS’s failures as described above substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the harm, risk of harm and violations of legal rights suffered by Plaintiff Children.
C. Defendants’ Processes for Making Foster Placements in New York City Are Deficient.
235. When ACS removes a child from his or her parents, ACS is obligated to provide a safe temporary home for that child until he or she is discharged from foster care. Federal and state law require ACS to ensure that each child in ACS custody is placed in the most appropriate, least restrictive placement available. Professional standards dictate that foster placements be based on an assessment of the individual child’s needs and promote stability and continuity by placing children with relatives, keeping children in their communities and schools, and keeping siblings together whenever possible.
236. In order to meet the needs of a large and diverse foster care population, ACS must ensure the recruitment and maintenance of a sufficient number of homes to accommodate the
77

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 81 of 111
number of children currently in custody and additional children as they enter the system on an ongoing basis. In addition, a sufficient array of placement types must be available to meet children’s needs. The types of placements will range from “basic” foster homes that provide ordinary parental care to children without heightened therapeutic needs, to more “therapeutic”, “intensive” or “specialized” foster homes that receive additional training and support for the care of more high-needs children, to more highly structured or “restrictive” group homes and residential programs suitable for children who cannot yet thrive in a family setting. In addition, placements may vary in terms of their likelihood to develop into permanent or adoptive homes if the child cannot safely be returned to his parents.
237. Placement in a stable and appropriate foster home can be critical to a child’s chances of securing a permanent home because a child who cannot safely be returned to his parent is most likely to be adopted by kin or a foster parent.
238. However, ACS fails to ensure that Contract Agencies recruit and retain an adequate number and variety of placements to meet Plaintiff Children’s needs. In particular, ACS fails to ensure that a sufficient number of pre-adoptive homes are recruited and retained, particularly for children who cannot safely be returned to their parents but who are “hard to place” into adoptive homes, such as adolescents, children with health or behavioral problems and large sibling groups.
239. Pursuant to the Agreements, the City pays each Contract Agency per diem payments for every day a child is in foster care, thus incentivizing Contract Agencies to keep children in care longer. As a result, Contract Agencies may not pursue adoptive resources with urgency or offer sufficient resources for persons who are interested in adopting foster children. Upon information and belief, Contract Agencies often tell individuals interested in adoption that
78

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 82 of 111
they are “in the business of fostering, not adoption”—even though ACS has delegated to them both the care of children who safely can be returned to their parents and the care of children in need of adoption and waiting desperately for a permanent home and family to call their own.
240. The City and State Defendants have long been aware of, and have failed to fix, this systemic failure. Indeed, Defendant Carrión recently admitted that ACS “really need[s] to do a better job of publicizing . . . we need to do more to get the message out that these children are waiting and that they need adoptive homes.” However, the City Defendants have recently taken actions that will make these problems worse—by defunding the only two voluntary service providers whose sole mission was to find adoptive homes for older and “hard to place” children in foster care. During a March 2015 City Council meeting, Commissioner Carrión stated that the defunding of these two agencies “wasn’t a great loss”.
241. ACS also lacks an effective system for appropriately matching Plaintiff Children with the most appropriate foster placement to meet their needs. Upon information and belief, ACS does not assess a child’s safety, health or permanency needs prior to placing the child with a Contract Agency. Instead, ACS makes a blind placement decision based on which Contract Agency has availability at the time the placement is sought. Upon information and belief, the Contract Agency does not assess a child’s safety, health or permanency needs prior to placing the child into a foster placement. Instead, the Contract Agency makes the determination based on which foster placement has availability at the time the placement is sought.
242. Put simply, ACS fails to ensure that the children in its custody who cannot, or who are least likely to, return home safely are placed in pre-adoptive foster placements that are more likely to turn into permanent adoptive homes. Instead, ACS places the child with whatever Contract Agency has availability at the time the placement is sought.
79

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 83 of 111
243. Moreover, ACS also fails to ensure that children who are unlikely to be safely returned to their parents and who will not be adopted by kin or their current foster parent are quickly placed with Contract Agencies capable of individually recruiting adoptive parents.
244. As a direct result of these failures, Plaintiff Children frequently are harmed because they are not placed in the best foster home to meet their safety and permanency needs. ACS’s failure to recruit and retain a sufficient number of foster homes and to match children in its custody with foster placements that meet their needs substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the harm, risk of harm and violations of rights suffered by Plaintiff Children.
D. ACS Fails To Ensure that Meaningful Case Plans and Service Plans for Foster Children Are Developed and Implemented.
245. Federal and state law require caseworkers to establish a permanency goal and to develop a strategic plan for achieving that goal. This includes establishing a permanency goal, engaging in concurrent planning, developing and implementing service plans to promote reunification, and recruiting and securing an alternative permanent home for children who cannot be safely returned home.
246. According to OCFS’s own standards, caseworkers in New York State should establish a child’s permanency goal within 30 days of the child entering the foster care system. However, by OCFS’s own measure, nearly one-third of children entering foster care for the first time do not have a documented permanency goal within 90 days of admission.
247. Federal and state law and policy require caseworkers in New York City to conduct concurrent permanency planning as soon as a child is taken into foster care, so that there is a primary permanency plan and a secondary permanency plan that caseworkers pursue simultaneously. ACS fails to ensure that concurrent planning occurs. Upon information and
80

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 84 of 111
belief, caseworkers do not begin to engage in non-reunification permanency planning until long after it becomes clear that the child’s parents will not be able to safely care for the child.
248. As a direct result of these systemic deficiencies, New York City’s foster children stay in the system for far too long. This is no secret to ACS. ACS has been aware of rampant case planning deficiencies in New York City for years.
a. In the 2002 and 2009 CFSRs, the federal government concluded that appropriate permanency goals were not established in a timely manner for children in foster care in New York State.
b. Similarly, the Long Road Home Study, which was prepared in conjunction with ACS in 2009, found that children in ACS custody spent a long time in foster care before their permanency goal was changed to adoption, alternative permanency options were not adequately explored and concurrent planning was not sufficiently documented.
249. As a direct result of Defendants’ failures (as described in this section) to ensure the provision of meaningful and appropriate case plans, Plaintiff Children frequently grow up in ACS custody without a permanent home or family to call their own. ACS’s failure to ensure that meaningful and appropriate case planning occurs substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the harms, risk of harms, and violations of legal rights being suffered by Plaintiff Children.
1. ACS Fails To Ensure Services Are Provided To Sustain Family Ties and Support Reunification When It Is Safely Possible.
250. After a child is removed from home due to abuse or neglect, federal and state law and policy dictate that the preferred course of action is to reunify the child with his or her
81

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 85 of 111
parents. Reunification, however, is only appropriate where the reason for removal has been addressed through appropriate services to the family so that the child’s safety is assured. However, ACS fails to ensure the provision of meaningful case planning and effective services to support reunification:
a. ACS often fails to ensure that Contract Agencies involve parents in case planning and service planning for their children. In the 2009 CFSR, the federal government found that ACS had adequately assured family involvement in case and services planning in only 45% of cases—well below the national standard of 95%.
b. ACS fails to ensure that the reunification services required are adequately tailored to ensure that the child in ACS custody can safely be returned home. Often the services Contract Agencies require and refer parents to do not correspond to the conduct that led to the removal of the child from the home in the first place. For example, most parents are required to attend standardized anger management or parenting classes even though neither of those classes offer the particularized support that a parent may need. Upon information and belief, Contract Agencies do not evaluate services to determine if services better suited to a parent’s needs are available or, if they do, it is not until after the parent has completed standardized classes. Upon information and belief, Family Court judges are often reluctant to return children to their parents where the issue giving rise to the initial removal has not been addressed.
82

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 86 of 111
c. ACS fails to ensure that required services are evidence-based and represent recent innovations in the field. For example, required mental health services often do not incorporate trauma-based practice or cognitive behavioral therapy.
d. ACS fails to ensure that required services accomplish the purpose they purport to—ensuring children in ACS custody can be returned home within a reasonable period of time. Upon information and belief, neither ACS nor the Contract Agencies perform regular evaluations of what services correspond to successful reunifications.
e. ACS fails to ensure efficiency and coordination among multiple service providers, fails to ensure that required services are not duplicative of one another and fails to consider whether it is logistically possible for parents to comply with service plans (while also potentially searching for housing or employment, or working)—all of which delays children in foster care being returned to their parents.
f. ACS fails to ensure services are available to parents so that children in ACS custody can be returned home within a reasonable period of time. Contract Agencies frequently require parents to take a certain action or to obtain a certain service so that the child in foster care can return home, but that same parent is not provided with critical assistance in taking that action or obtaining that service. For example, many parents are required to obtain permanent housing before their children in ACS custody can be returned. However, ACS fails to provide assistance with completing
83

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 87 of 111
applications for public housing or expediting those applications. When mental health services are required, parents find they have no access to mental health services in their community or are unable to afford the appropriate services. g. ACS also fails to ensure alternative services are available to parents so that children in ACS custody can be returned home within a reasonable period of time. Upon information and belief, if suitable group classes do not exist, Contract Agencies do not seek out alternative arrangements, such as therapy or counseling, to meet a parent’s needs more quickly.
251. ACS’s failure to ensure that reunification services are appropriately tailored, effective and sufficiently available prevents or delays reunification, even though many parents could resume custody of their children if the proper services were provided consistent with federal and state law and professional standards.
252. These systemic failures have long been known to ACS. In 2003, the New York City Child Welfare Advisory Panel noted that ACS failed to ensure that parents knew how to get information about services or other issues, or whether or not someone from ACS or the Contract Agency was responsible for ensuring the service plan would be carried out and that services would be provided. The Long Road Home Study, which was conducted in 2009 in conjunction with ACS, found that substantial numbers of parents did not receive necessary reunification services due to both parents’ lack of participation and casework failures.
253. ACS has failed to address these problems and children in ACS custody have suffered as a direct result.
84

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 88 of 111
2. ACS Fails To Ensure Timely Adoptions. 254. When a child has been in foster care for 15 of the last 22 months, federal and state law require ACS to file a petition to terminate parental rights unless certain compelling circumstances exist and are documented. ACS has delegated its responsibility to timely file TPR petitions to the Contract Agencies. However, ACS fails to ensure that TPR petitions are timely filed consistent with federal and state law. 255. Defendants are well aware of this failure. In December 2011, ACS reported that New York City was failing to meet federal and state law standards for the overwhelming majority of children in ACS custody. For FY 2010—the most recent 12-month period for which this data is available—ACS reported that 94.9% of children who had been in ACS custody for the past 18 months did not have a TPR petition filed. 256. ACS’s failure to file TPR petitions in accordance with the time periods set by federal and state law is not a new problem. In the 2002 CFSR, the federal government reported that in New York State, caseworker turnover, staffing shortages, transfer of cases and caseworkers’ lack of familiarity with cases slowed down the TPR process. In the 2002 CFSR Report, the federal government also reported that delays in Family Court, including “lengthy adjournments”, “w[ere] seen as the greatest barrier” to the timely termination of parental rights. In the 2009 CFSR, the federal government concluded that New York State met federal requirements regarding timely termination of parental rights in only 62% of cases reviewed—far less than the 90% required to meet the national standard—and was not consistent in documenting compelling reasons when a termination of parental rights petition was not filed. Upon information and belief, the CFSR results for New York State are heavily influenced by New York City’s child welfare system, which accounted for over 60% of children in foster care in New York State in both 2002 and 2009.
85

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 89 of 111
257. Once both parents’ rights have been either voluntarily surrendered or terminated, a child is considered “freed” or legally available to be adopted into a permanent home and family. New York State regulations require that a child be freed for adoption within 12 months of his or her permanency goal changing to adoption.
258. However, ACS fails to ensure that children in its custody are freed for adoption within a reasonable time period. In New York City, it takes longer for a child in foster care to be freed for adoption than anywhere else in the country. Based on the most recent federal data available, it takes nearly two times longer to be freed for adoption in New York City than in the rest of New York State (42.2 months versus 22.1 months), and 2.5 times longer to be freed for adoption in New York City than in the rest of the nation (42.2 months versus 16.8 months).
259. ACS also fails to act on applications from potential adoptive families within the time periods set by state law.
260. When a foster parent or other person wants to adopt a child in foster care in New York City, he or she must submit an application. By state law, an adoption application must be acted upon within six months and such action must be sufficiently documented.
261. Then a potential adoptive parent must undergo an adoption study during which his or her fitness to be an adoptive parent is assessed. Completion of adoption studies are subject to strict timelines under state law. Priority for completion of an adoption study is determined by the characteristics of the child that the applicant seeks to adopt. Those who seek to adopt children with the age, racial and other characteristics of the highest proportion of children waiting to be adopted are given first priority. Second priority is given to those who seek to adopt photo-listed children. All other applicants are given third priority. For applicants with first priority, an adoption study should be offered within 30 days. An adoption study must be
86

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 90 of 111
completed within four months of initiation, subject to appropriate documentation of an exception.
262. When a foster parent applies to adopt a child, the adoption study must be completed within two months of application when the child is legally free for adoption or within four months of application when the child is not legally free for adoption.
263. Pursuant to state law, ACS must place a child who has been legally freed for adoption in an adoptive home within six months, or document an appropriate exception. State law also requires that adoptions be finalized within 12 months of the child placement in an adoptive home.
264. Upon information and belief, ACS fails to ensure that Contract Agencies comply with the timelines set by state law for conducting adoption studies and acting on adoption applications.
265. Upon information and belief, ACS fails to ensure that applications to become an adoptive parent are acted upon within six months as required by state law.
266. Upon information and belief, ACS fails to ensure that Contract Agencies offer to complete adoption studies within six months.
267. Upon information and belief, ACS fails to ensure that Contract Agencies offer to initiate adoption studies for those with first priority within 30 days.
268. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within four months of beginning the study or that an exception is appropriately documented.
87

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 91 of 111
269. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within two months of an application by a foster parent to adopt a child who is legally freed for adoption.
270. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within four months of an application by a foster parent to adopt a child who is not legally freed for adoption.
271. Upon information and belief, ACS fails to ensure that Contract Agencies place children who have been legally freed for adoption into adoptive homes within six months, or that an exception is appropriately documented.
272. ACS fails to ensure that children in its custody have finalized adoptions within 12 months of the child being placed in an adoptive home, as required by state law. In September 2012, ACS reported that 72% of children did not have finalized adoptions within 12 months of being placed in an adoptive home.7
273. Defendants’ failures to ensure that Contract Agencies process adoption applications, conduct adoption studies, place children in adoptive homes and finalize adoptions within the time periods set by state law further delays providing these children in ACS custody— who likely have already been in foster care for many months or even years—with a permanent home and family.
7 517 of the 1,825 children (28%) in adoptive placements on March 31, 2011 were adopted within 12 months of being adoptively placed.
88

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 92 of 111
E. Defendants Fail To Ensure Timely Adjudication of Family Court Proceedings Involving Children in Foster Care.
274. Defendants’ failure to ensure that Family Court proceedings are adjudicated in a timely fashion consistent with state law contributes significantly to the length of time New York City children spend in foster care without permanent homes and families.
275. State law requires that a child who is placed into foster care have a permanency hearing within eight months of being placed into foster care and every six months thereafter. That hearing must be completed within 30 days. The purpose of permanency hearings is to monitor the child’s safety and well-being, the family’s progress, and efforts to return the child home or to find the child another permanent home. Upon information and belief, Defendants fail to ensure that all children in ACS custody receive timely permanency hearings as required by state law.
276. The Long Road Home Study, which was prepared in 2009 in conjunction with ACS, detailed the following findings with respect to delays in Family Court proceedings involving children in ACS custody:
a. The length of time between a child’s entry into foster care and the Family Court’s completion of the fact-finding and disposition hearings was extremely long for many children;
b. Many children in ACS custody do not receive timely permanency hearings as required by state law;
c. The most common reasons for permanency hearing delays were that the Contract Agency had not submitted the permanency hearing report on time, that the Family Court did not have sufficient time for the hearing, that Contract Agency caseworkers were not present, that the permanency
89

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 93 of 111
hearing report did not sufficiently address the issues in the case, and that
ACS caseworkers were not present; and
d. Termination of parental rights proceedings were extremely delayed for
most children.
Additionally, the study noted that the number of adjournments and the length of time between
adjournments of all types of Family Court proceedings contribute to children’s lengthy stays in
foster care in New York City. The published study stated:
“[T]he Court gives ACS and the [Contract Agencies] many chances (and multiple hearing adjournments) to present evidence and provide necessary services to parents, even after they have been slow and negligent in doing so.” Finally, the study found that a lack of accountability in Family Court proceedings contributes to
delays in placing children in ACS custody into permanent homes and families, stating:
“The Court’s decision-making is hampered by poor-quality casework by ACS and the [Contract Agencies]. The Court depends on ACS and the [Contract Agencies] to provide appropriate services to children and families and to inform the Court’s decision-making through assessments of the children’s progress toward permanency . . . [J]udges and referees expressed frustration with the quality of the agencies’ case practices – and the fact that many caseworkers seem to see their role as only documenting parents’ attendance at services rather than providing the Court with clinical assessments of parents’ progress. In addition . . . the parties infrequently make applications or motions to the Court for relief to address pressing issues and try to move cases forward.” 277. In 2010, the New York County Lawyers’ Association Task Force on the Family
Court released a report recognizing two causes for delay in Family Court: (1) a shortage of
Family Court judges and (2) a culture of delay. The Task Force made a number of
recommendations to minimize delay and enhance the effectiveness of litigation, including:
90

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 94 of 111
a. scheduling trials where a child has been removed within 45 days of the first appearance;
b. requiring compliance with timely production and filing of documents, as well as attendance at status and trial conferences;
c. scheduling times certain for trial conferences; d. holding trials in block times on consecutive days; e. refraining from adjourning trials for more than 30 days, and then only for
good cause shown; and f. disciplining attorneys and other personnel who are unprepared, late or fail
to appear.
278. Defendants’ failure to ensure that ACS and Contract Agency attorneys and caseworkers are appropriately staffed with caseloads consistent with professional standards and given necessary support further contributes to delays in Family Court proceedings.
279. Upon information and belief, delays continue to plague the vast majority of Family Court proceedings involving children in ACS custody in New York City.
280. Defendants’ failures result in delays in Family Court proceedings involving children in ACS custody in New York City and include:
a. the State’s failure to ensure adequate judicial resources are devoted to Family Court in New York City;
b. the State’s failure to provide Family Court judges in New York City with sufficient resources, including referees or law clerks with social work experience;
91

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 95 of 111
c. Defendants’ failure to ensure that ACS and Contract Agency attorneys and caseworkers have caseloads consistent with professional standards;
d. ACS’s failure to ensure that attorneys and caseworkers appear at all Family Court proceedings prepared;
e. ACS’s failure to ensure that attorneys and caseworkers do not request adjournments absent good cause shown;
f. ACS’s failure to ensure that necessary paperwork is prepared in accordance with reasonable professional standards and submitted to the Family Court in a timely fashion; and
g. ACS’s failure to ensure that caseworkers are trained to give the Court detailed assessments of children and parents’ progress in accordance with reasonable professional standards.
281. A three- or six-month adjournment is a long time to a child in ACS custody who is struggling with the uncertainty and emotional harm of not knowing if or when he or she will be moved again and of not having a permanent home and family to call his or her own. Defendants have an obligation to ensure that all service providers, including caseworkers and attorneys, recognize the urgency of Family Court proceedings for Plaintiff Children, who are languishing in ACS custody.
282. As a direct result of Defendants’ failure to ensure that all reasonable efforts are made to ensure the timely adjudication of Family Court proceedings involving children in its custody, Plaintiff Children suffer harm by being forced to grow up in ACS custody rather than in a permanent home. Defendants’ failures substantially depart from reasonable professional
92

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 96 of 111
standards and demonstrate a deliberate indifference to the harms, risk of harms and violations of legal rights suffered by Plaintiff Children.
CAUSES OF ACTION FIRST CAUSE OF ACTION (Substantive Due Process under the U.S. Constitution) (Asserted by the Named Plaintiff Children and Plaintiff Children against Defendants) 283. Each of the foregoing allegations is incorporated as if fully set forth herein. 284. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to provide reasonable care to and to protect from harm a child it has taken into its foster care custody. 285. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a policy, pattern, practice or custom that is inconsistent with the exercise of accepted professional judgment and amounts to deliberate indifference to the constitutionally protected liberty and privacy interests of all Named Plaintiff Children and Plaintiff Children. As a result, all Named Plaintiff Children and Plaintiff Children have been, and are at risk of being, deprived of substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution. 286. These substantive due process rights include, but are not limited to:
a. the right to freedom from maltreatment while in foster care; b. the right to protection from unnecessary intrusions into the child’s
emotional well-being while in government custody;
93

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 97 of 111
c. the right to services necessary to prevent unreasonable and unnecessary intrusions into the child’s emotional well-being while in government custody;
d. the right to conditions and duration of foster care reasonably related to the purpose of government custody;
e. the right to treatment and care consistent with the purpose and assumptions of government custody; and
f. the right not to be maintained in custody longer than is necessary to accomplish the purpose to be served by taking a child into government custody.
SECOND CAUSE OF ACTION (First, Ninth and Fourteenth Amendments to the U.S. Constitution) (Asserted by the Named Plaintiff Children and Plaintiff Children against Defendants) 287. Each of the foregoing allegations is incorporated as if fully set forth herein. 288. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity constitute a policy, pattern, practice or custom that is inconsistent with the exercise of professional judgment and amounts to deliberate indifference to Plaintiffs’ constitutional rights. As a result, all Named Plaintiff Children and Plaintiff Children have been, and are at risk of being, deprived of the right to a permanent home and family derived from the First Amendment right of association, the Ninth Amendment’s reservation of rights to the people and the Fourteenth Amendment’s substantive due process protections.
94

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 98 of 111
THIRD CAUSE OF ACTION (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq.) (Asserted by the Named Plaintiff Children and Plaintiff Children against the State Defendants and City Defendants and by the Public Advocate against the City Defendants)
289. Each of the foregoing allegations is incorporated as if fully set forth herein. 290. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a policy, pattern, practice or custom of depriving the Named Plaintiff Children and Plaintiff Children of the rights conferred upon them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, to:
a. placement in a foster placement that conforms to nationally recommended professional standards, 42 U.S.C. § 671(a)(10);
b. a written case plan that includes a plan to provide safe, appropriate and stable foster care placements, 42 U.S.C. §§ 671(a)(16), 675(1)(A);
c. a written case plan that ensures that the child receives safe and proper care while in foster care and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
d. a written case plan that ensures provision of services to parents, children and foster parents to facilitate reunification, or where that is not possible, the permanent placement of the child and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
e. a written case plan, where appropriate, that ensures the location of an adoptive or other permanent home for the child and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(E);
95

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 99 of 111
f. a written case plan that ensures the educational stability of the child while in foster care and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(G);
g. a case review system in which each child has a case plan designed to achieve safe and appropriate foster care placements, 42 U.S.C. §§ 671(a)(16), 675(5)(A);
h. a case review system in which the status of the child is reviewed no less frequently than every six months by a court, or person responsible for case management, for purposes of determining the safety of the child, continuing necessity and appropriateness of the placement, extent of compliance with the permanency plan and projected date of permanency, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(C);
i. a case review system that ensures that for each child that has been in foster care for 15 of the most recent 22 months, the state files a petition to terminate the parental rights of the child’s parents and, concurrently identifies, recruits, processes, and approves a qualified family for an adoption, or documents compelling reason for determining that filing such a petition would not be in the best interests of the child, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675 (5)(E); and
j. receive quality services to protect each child’s safety and health, 42 U.S.C. § 671(a)(22).
291. As a direct result of the City Defendants’ failure to comply with the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act
96

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 100 of 111
of 1997, the Office of the Public Advocate has been forced to expend resources investigating and responding to complaints. The Defendants’ continued failure to adhere to the provisions of the law will result in the expenditure of similar resources in the future.
FOURTH CAUSE OF ACTION (New York State Social Services Law) (Asserted by the Named Plaintiff Children, Plaintiff Children and the Public Advocate
against the City Defendants) 292. Each of the foregoing allegations is incorporated as if fully set forth herein. 293. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a deprivation of rights conferred on the Named Plaintiff Children and Plaintiff Children by provisions of the New York State Social Services Law and regulations adopted thereto, including:
a. provision of various adoption services, such as evaluation of a child’s placement needs and pre-placement needs, recruitment of a home study for prospective adoptive parents, placement planning and supervision, as required under New York State Social Services Law § 372-b;
b. timely action on adoption applications and documentation of all action taken on such, as required under New York State Social Services Law § 372-e;
c. furnishing adoptive parent applicants with reasons for agency failure to act on applications and denial of applications, as required under New York State Social Services Law § 372-e;
97

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 101 of 111
d. termination of parental rights for children in foster care for 15 out of the most recent 22 months and, where applicable, appropriate documentation of exceptions, as required under New York State Social Services Law § 384-b;
e. timely completion of adoption home studies, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 421.14, 421.15 and 421.19;
f. timely and complete preparation and amendment of the FASP, as required under New York State Social Services Law § 409-e and 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 428.6 and 428.7;
g. placement in a foster placement that meets standards for continuity and appropriate level of placement, as required under 18 N.Y. Comp. R. & Regs. tit. 18, § 430.11;
h. timely implementation of the FASP and timely occurrence and completion of FASP reviews, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12;
i. timely initiation of proceedings to terminate parental rights, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 430.12 and 431.9;
j. timely placement in adoptive homes, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12; and
k. timely completion of adoptions of children who are legally free for adoption, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12.
98

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 102 of 111
294. As a direct result of the City Defendants’ failure to comply with New York State Social Services Law and regulations adopted thereto, the Office of the Public Advocate has been forced to expend resources investigating and responding to complaints. The Defendants’ continued failure to adhere to the provisions of the law will result in the expenditure of similar resources in the future.
FIFTH CAUSE OF ACTION (Common Law Contract)
(Asserted by the Named Plaintiff Children, Plaintiff Children and the Public Advocate against the City Defendants)
295. Each of the foregoing allegations is incorporated as if fully set forth herein. 296. The Agreements for the purchase of foster care services between ACS and the Contract Agencies constitute valid, binding and enforceable contracts.8 297. The Public Advocate is a member of New York’s City Council (the “Council”). Charter of the City of New York, Chapter 2 § 22. The Council is charged with reviewing “on a regular and continuous basis the activities of the agencies of the city, including their service goals and performance and management efficiency.” Charter of the City of New York, Chapter 2 § 29(a)(2). Further, the Council is charged with overseeing “patterns of contractual spending by city agencies” and “procedures for evaluating contractor performance.” Charter of the City of New York, Chapter 2 § 30(2), (4). 298. Under the terms of the Agreements, ACS pays hundreds of millions of dollars to Contract Agencies that agree to “provide comprehensive family foster care services as set forth
8 To the best of our information and belief, the Agreements, which are listed in Appendix A, were current as of November 2014 (see ¶ 119) and are still in force today. Attached hereto as Exhibit 1 is a copy of an excerpt of one such Agreement between ACS and a Contract Agency, which has been modified to include the relevant portion of the Agreement. The Agreements are substantively identical from Contract Agency to Contract Agency, with the exception of the contracting parties and the contract amount.
99

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 103 of 111
in this Agreement, the Law, court orders and mandates, ACS Policies, the Fiscal Manual”9 and several appendices to each Agreement. Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 2.01(A) (General Requirements).
299. Under the terms of the Agreement—and by law—the management and supervisory staff of ACS, on behalf of the Commissioner of ACS, “has the ultimate responsibility for the protection and preservation of the welfare of each child receiving services”, and “has the ultimate authority for making all decisions relative to the welfare of such child”. Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 4.01(A) (Responsibility and Authority of ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client).
300. City Defendants have breached and failed to enforce the Agreements, which were intended for the benefit of the Named Plaintiff Children and Plaintiff Children, and over which the Public Advocate has oversight.
301. The Agreements state that “ACS and the Contractor agree that the fundamental purpose of [the] Agreement is to provide the best available services, care and treatment to Foster Children who are entrusted to the Contractors care, and further ensure that the health, welfare and fundamental rights of the Foster Children shall be the guiding principle for all decisions which affect their lives”. Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 4.01(B) (Responsibility and Authority of ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client).
302. As a direct and causal result of City Defendants’ breach of the Agreements, the Named Plaintiff Children and Plaintiff Children have been harmed.
9 This language may differ to account for the type of foster placement services provided for in the Agreement but, in substance, the provisions are identical.
100

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 104 of 111
PRAYER FOR RELIEF WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action; b. Order that Plaintiff Children may maintain this action as a class action
pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure; c. Pursuant to Rule 57 of the Federal Rules of Civil Procedure, declare
unconstitutional and unlawful:
1. Defendants’ violation of Plaintiff Children’s right to be free from harm under the Fourteenth Amendment to the United States Constitution;
2. Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
3. Defendants’ violation of Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Action of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. § 670 et seq.;
4. City Defendants’ violation of Plaintiff Children’s rights under New York Social Services Law and regulations adopted thereto; and
5. City Defendants’ violation of Plaintiff Children’s rights under the Agreements with the Contract Agencies.
101

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 105 of 111
d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights, including:
1. Enjoin City Defendants from placing children with Contract Agencies that do not maintain caseloads for all workers providing direct supervision and planning for children that conform to accepted professional standards, as developed by either the COA and/or the CWLA, or a workload analysis conducted by ACS. Require that ACS independently and periodically verify that every Contract Agency meets and maintains the applicable caseload standards and its verification process and that the results shall be public information.
2. Require City Defendants to develop a process for matching children with Contract Agencies that takes into account the child’s need for permanence, the child’s service needs, and the Agency’s demonstrated ability to provide timely permanence for children, and timely and necessary individualized services for children and families based on timelines set by ACS in accordance with federal and state law and accepted professional standards. Require that ACS independently and periodically verify that each Contract Agency meets and maintains the applicable standards set by ACS and its verification process and that the results shall be public information.
102

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 106 of 111
3. Enjoin ACS from placing children in Contract Agencies that do not ensure that all workers receive training that OCFS and ACS shall approve and certify as meeting accepted professional training standards. Require that ACS independently and periodically verify that the approved training is being provided to all workers, and their verification process and that the results shall be public information.
4. Enjoin ACS from placing children in any Contract Agency unless at least 90% of the case plans for children currently placed with the Agency (a) meet federal requirements (as set forth in 42 U.S.C. §§ 671(a)(16), 675(1)) and accepted professional standards as set by COA and/or CWLA, (b) are created in a timely fashion pursuant to applicable regulations and (c) are implemented consistent with professional standards. Require that ACS independently and periodically verify that each Contract Agency with which ACS places children meets such standards, and their verification process and that the results shall be public information.
5. Enjoin ACS from placing children with any Contract Agency unless the Agency has demonstrated, and ACS has ascertained, that it conducts permanency planning, including concurrent planning, that it has the resources to provide individualized and effective reunification services and that it has the resources to develop and implement individualized adoptive recruitment for
103

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 107 of 111
children whose permanency goal is adoption. Require that, in conducting this assessment, ACS be guided by timelines to achieve permanency goals set by ACS in accordance with federal and state law and accepted professional standards. Require that ACS independently and periodically verify that each Contract Agency with which it places children shall meet these standards, and rank the agencies in their effectiveness in doing so. Require that their verification process and the results, including the Contract Agency rankings, shall be public information. 6. Require that ACS develop and fund post-permanency services of sufficient duration to provide all possible support for the successful reunification, guardianship or adoption of foster children. 7. Require that ACS ensure that its attorneys and attorneys employed by the Contract Agencies take all reasonable steps necessary (including not seeking adjournments except in extraordinary circumstances) to proceed to the adjudication and disposition in Article 10 proceedings within three months and, when a termination of parental rights process is necessary, to proceed to a disposition of that proceeding within four months of the petition being filed. Require that ACS collect and maintain detailed information on this, which shall be public record. 8. Require that City and State Defendants regularly collect and independently verify the information necessary to determine the
104

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 108 of 111
Contract Agencies’ compliance with the provisions of the state statutes and regulations enumerated in paragraph 293 above and provide public reports of each Agency’s compliance with each of these requirements. Require that the Defendants require corrective action of any Contract Agency failing to achieve at least 75% compliance with these requirements for two continuous six-month periods, and shall terminate the contract of any Agency that fails to achieve at least 75% compliance for a two-year period. 9. Require that OCFS conduct annual case record reviews of a statistically significant sample of children in ACS custody to measure the degree to which children in ACS custody are receiving timely permanence, as required by state and federal law, and the degree to which they are being maltreated in care; issue annual public reports on the findings of these case record reviews; and require corrective action when necessary. 10. The Court shall appoint a Special Master either with special expertise in the areas covered by the Remedial Order, or who shall appoint an Expert Panel to report to the Special Master, to determine whether the standards developed by Defendants comport with acceptable professional standards, and to monitor and report on Defendants’ compliance with their obligations as contained in the Court’s Order. Plaintiffs shall have the right to enforce the provisions of the Court Order entered pursuant to Federal Rule of
105

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 109 of 111 Civil Procedure 65(d), and the Court shall have continuing jurisdiction to oversee compliance with that Order.
e. Award Plaintiff Children the reasonable costs and expenses incurred in the prosecutions of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and the Federal Rules of Civil Procedure 23(e) and (h).
f. Grant such other and further equitable relief as the Court deems just, necessary and proper to protect Plaintiff Children from further harm while in Defendants’ custody in foster care.
106

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 110 of 111

Dated: New York, NY July 8, 2015

Respectfully submitted, by

Marcia Robinson Lowry
A Better Childhood, Inc. 1095 Hardscrabble Road Chappaqua, NY 10514 (844) 422-2425 mlowry@abetterchildhood.org
CRAVATH, SWAINE & MOORE LLP
/s/ Julie A. North Julie A. North Nicole M. Peles
Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 jnorth@cravath.com
Attorneys for Plaintiffs Elisa W., by her next friend, Elizabeth Barricelli; Alexandria R., by her next friend, Alison Max Rothschild; Thierry E., by his next friend, Amy Mulzer; Ayanna J., by her next friend, Meyghan McCrea; Olivia and Ana-Maria R., by their next friend, Dawn Cardi; Xavion M., by his next friend, Michael B. Mushlin; Dameon C., by his next friend, Reverend Doctor Gwendolyn Hadley-Hall; Tyrone M., by his next friend, Bishop Lillian RobinsonWiltshire; and Brittney W., by her next friend, Liza Camellerie, individually and on behalf of a class of all others similarly situated,
107

Case 1:15-cv-05273 Document 1 Filed 07/08/15 Page 111 of 111
Public Advocate for the City of New York 1 Centre Street, 15th Floor New York, NY 10007 (212)669-2175 jlevy@pubadvocate.nyc.org
Attorney for PlaintiffLetitia James, Public Advocate for the City of New York.
108

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 1 of 22
Appendix A1

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Abbott House

Agreement for the Purchase of Regular Family Foster Care Services

April 25, 2011

July 1, 2011 to June 30, 2016

$32,620,141.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

1 Appendix A lists all contracts between Defendant City of New York, acting through Defendant New York City Administration for Children’s Services (“ACS”), and the Contract Agencies (“Agreements”). (See Compl. ¶ 145 n.1.)
2 Each Agreement between the Contract Agency and ACS is for a particular set of foster placement services. Therefore, one Contract Agency may have multiple Agreements with ACS, each for a different type of placement. (Id.)
3 The “Execution Date” represents the date on which the Agreement was signed by ACS and the Contract Agency. 4 The “Modification Date” represents the date, where applicable, on which the Agreement was modified during the original term of the Agreement. 5 The “Contract Term” represents the duration of the Agreement between ACS and the Contract Agency. 6 The “Contract Amount” represents the amount ACS pays to the Contract Agency for its services under the Agreement. 7 This column provides the exact provision of each Agreement that corresponds to the provision alleged in Paragraph 298 of the Complaint. 8 This column provides the exact provision of each Agreement that corresponds to the provision alleged in Paragraphs 299 and 301 of the Complaint.

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 2 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 12, 2011

July 1, 2011 to June 30, 2016

$7,214,229.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Cardinal McCloskey Community Services

Agreement for the Purchase of Regular Family Foster Care Services

April 27, 2011

July 1, 2011 to June 30, 2016

$40,982,185.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 20, 2011

July 1, 2011 to June 30, 2016

$7,631,125.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Catholic Guardian Services

Agreement for the Purchase of Regular Family Foster Care Services

April 28, 2011

July 1, 2011 to June 30, 2016

$113,120,889.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

2

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 3 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Regular Residential Care Services

February 23, 2011
May 27, 2014 (Renewal)9

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with MR/DD10

May 2, 2011

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with Special Medical Needs11

May 12, 2011

December 20, 2013

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$8,093,067.00 $10,357,397.00 $1,712,751.00

July 1, 2011 to June 30, 2016

$8,778,093.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

9 The Agreements often provide ACS with the option to renew, and any renewal contract currently in effect (and cited herein) incorporates the provisions of the initial Agreement by reference. Therefore, the Contract Agency is still bound by its obligations and duties under the initial Agreement.
10 Agreement is for the purchase of specialized family foster care services for foster children with mental retardation, development delays and/or disabilities.
11 Agreement is for the purchase of specialized family foster care services for foster children with special medical needs including HIV and/or AIDS.
3

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 4 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Cayuga Home for Children
The Children’s Aid Society

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 12, 2011

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 16, 2011

Agreement for the Purchase of Regular Family Foster Care Services

April 29, 2011

July 1, 2011 to June 30, 2016

May 21, 2013

July 1, 2011 to June 30, 2016

First modification: September 5, 2012
Second modification: August 5, 2013

July 1, 2011 to June 30, 2016

$29,432,509.00 $6,197,603.00 $55,125,034.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

4

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 5 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with MR/DD

May 6, 2011

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with Special Medical Needs

May 13, 2011

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 13, 2011

July 1, 2011 to June 30, 2016

$4,621,164.00

July 1, 2011 to June 30, 2016

$29,575,452.00

July 1, 2011 to June 30, 2016

$25,007,007.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

5

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 6 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

The Children’s Village

Agreement for the Purchase of Regular Family Foster Care Services

May 18, 2011 May 24, 201212

Agreement for the Purchase of Regular Residential Care Services

March 4, 2011
May 23, 2014 (Renewal)

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

June 6, 2011 May 24, 201213

July 1, 2011 to June 30, 2016

July 1, 2012 to June 20, 2016

February 12, 2014

April 1, 2011 to June 30, 2014

July 1, 2014 to June 30, 2017

July 1, 2011 to June 30, 2016

October 10, 2012 July 1, 2012 to June 20, 2016

$27,027,467.00 Unknown $30,980,569.00 $36,133,610.00 $12,330,034.00 $4,880,957.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

12 This represents an assignment of the Agreement between ACS and Harlem Dowling-West Side Center for Children and Family Services to The Children’s Village. All information provided is for the term of the Agreement assigned to Children’s Village. Under the assignment, The Children’s Village accepts all obligations and duties under the Agreement.
13 This represents an assignment of the Agreement between ACS and Harlem Dowling-West Side Center for Children and Family Services to The Children’s Village. All information provided is for the term of the Agreement assigned to Children’s Village. Under the assignment, The Children’s Village accepts all obligations and duties under the Agreement.
6

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 7 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Residential Care Services: Rapid Intervention Center Services

February 23, 2011
May 6, 2014 (Renewal)

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

Agreement for the Purchase of Specialized Residential Care Services: Foster Children with Sexual Behavior Problems and Foster Children Who Have Sexually Abusive Behaviors

February 8, 2011
May 6, 2014 (Renewal)

January 29, 2014

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

Coalition for Hispanic Family Services

Agreement for the Purchase of Regular Family Foster Care Services

April 28, 2011

July 1, 2011 to June 30, 2016

$5,025,496.00 $3,857,212.00 $5,736,433.00 $7,397,633.00
$28,152,199.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

7

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 8 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

June 3, 2011

July 1, 2011 to June 30, 2016

$12,184,248.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Community Counseling & Mediation Services

Agreement for the Purchase of Regular Family Foster Care Services14

May 6, 2011

July 1, 2011 to June 30, 2016

$7,308,387.00

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Edwin Gould Services for Children and Families

Agreement for the Purchase of Regular Family Foster Care Services

May 5, 2011

July 1, 2011 to June 30, 2016

$101,200,567.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Sheltering Arms15

Agreement for the Purchase of Regular Family Foster Care Services

May 2, 2011

August 16, 2012 July 1, 2011 to June 30, 2016

$45,571,723.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

14 Attached hereto as Exhibit 1. 15 In February 2015, Episcopal Social Services changed its name to Sheltering Arms.
8

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 9 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Forestdale, Inc.
Good Shepherd Services

Agreement for the Purchase of Regular Residential Care Services

February 14, 2011
May 28, 2014 (Renewal)

Agreement for the Purchase of Regular Family Foster Care Services

May 2, 2011

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 18, 2011

Agreement for the Purchase of Regular Family Foster Care Services

April 26, 2011

December 5, 2013
July 27, 2012

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$6,463,360.00 $6,659,346.00 $54,307,026.00

July 1, 2011 to June 30, 2016

$6,738,683.00

July 1, 2011 to June 30, 2016

$48,041,837.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01 (A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

9

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 10 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Graham Windham

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 16, 2011

Agreement for the Purchase of Specialized Residential Care Services: Rapid Intervention Center Services

February 17, 2011
May 23, 2014 (Renewal)

Agreement for the Purchase of Regular Family Foster Care Services

April 26, 2011

Agreement for the Purchase of Regular Residential Care Services

February 11, 2011
May 27, 2014 (Renewal)

July 1, 2014
December 10, 2013

July 1, 2011 to June 30, 2016

$14,777,797.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$12,807,224.00 $8,323,187.00

July 1, 2011 to June 30, 2016

$98,971,277.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$19,969,972.00 $20,093,682.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

10

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 11 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 12, 2011

Inwood House

Agreement for the Purchase of Regular Family Foster Care Services

May 12, 2011

Agreement for the Purchase of Regular Residential Care Services

February 15, 2011
June 4, 2014 (Renewal)

Jewish Board of Family and Children Services

Agreement for the Purchase of Regular Residential Care Services

February 10, 2011
May 23, 2014 (Renewal)

July 1, 2011 to June 30, 2016

$20,233,547.00

July 1, 2011 to June 30, 2016

$5,492,417.00

January 29, 2014 April 1, 2011 to June 30, 2014

July 1, 2014 to June 30, 2017

December 13, 2013

April 1, 2011 to June 30, 2014

July 1, 2014 to June 30, 2017

$12,588,781.00 $11,155,610.00 $30,540,022.00 $31,681,430.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

11

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 12 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Residential Care Services: Rapid Intervention Center Services

February 9, 2011
May 23, 2014 (Renewal)

Jewish Child Care Association

Agreement for the Purchase of Regular Family Foster Care Services

May 9, 2011

Agreement for the Purchase of Regular Residential Care Services

February 16, 2011
June 9, 2014 (Renewal)

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with Special Medical Needs

May 12, 2011

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$7,719,642.00 $8,194,802.00

July 1, 2011 to June 30, 2016

$46,893,541.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$39,222,695.00 $37,577,196.00 $5,954,067.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

12

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 13 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children Who Have Been Sexually Exploited

June 7, 2011

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 23, 2011

Agreement for the Purchase of Specialized Residential Care Services: Foster Children with MR/DD

February 16, 2011
April 22, 2014 (Renewal)

August 19, 2013 July 1, 2011 to June 30, 2016

$5,153,487.00

July 1, 2011 to June 30, 2016

$37,224,720.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$20,637,715.00 $42,997,847.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

13

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 14 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Leake & Watts

Agreement for the Purchase of Specialized Residential Care Services: Foster Children Who Have Been Sexually Exploited

February 16, 2011
April 22, 2014 (Renewal)

Agreement for the Purchase of Regular Family Foster Care Services

May 11, 2011

Agreement for the Purchase of Regular Residential Care Services

March 3, 2011
May 28, 2014 (Renewal)

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 11, 2011

December 10, 2013

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$5,085,389.00 $5,559,687.00

July 1, 2011 to June 30, 2016

$37,842,101.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$4,362,472.00 $4,061,071.00 $3,593,687.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

14

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 15 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Little Flower Children & Family Services of New York

Agreement for the Purchase of Regular Family Foster Care Services

May 6, 2011

Lutheran Social Services

Agreement for the Purchase of Regular Family Foster Care Services

April 25, 2011

Agreement for the Purchase of Regular Residential Care Services

February 7, 2011
May 28, 2014 (Renewal)

December 5, 2013

Martin de Porres Group Homes

Agreement for the Purchase of Specialized Residential Care Services: Foster Children with Sexual Behavior Problems and Foster Children Who Have Sexually Abusive Behaviors

February 7, 2011
May 6, 2014 (Renewal)

MercyFirst

Agreement for the Purchase of Regular Family Foster Care Services

April 28, 2011

July 1, 2011 to June 30, 2016

$88,302,176.00

July 1, 2011 to June 30, 2016

$21,054,395.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$3,950,366.00 $3,223,787.00 $2,054,140.00 $2,438,348.00

July 1, 2011 to June 30, 2016

$65,147,483.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

15

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 16 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Regular Residential Care Services

February 17, 2011
June 4, 2014 (Renewal)

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 12, 2011

Agreement for the Purchase of Specialized Residential Care Services: Foster Children with Sexual Behavior Problems and Foster Children Who Have Sexually Abusive Behaviors

February 17, 2011
May 14, 2014 (Renewal)

December 4, 2013

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$31,794,459.00 $15,154,548.00 $8,398,419.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$4,173,742.00 $4,485,962.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

16

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 17 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

New Alternatives for Children

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with MR/DD

April 29, 2011

July 1, 2011 to June 30, 2016

$10,081,761.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with Special Medical Needs

May 12, 2011

July 1, 2011 to June 30, 2016

$19,329,177.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Specialized Treatment Family Foster Care (Children with Moderate to Severe Emotional Disorders)

May 12, 2011

August 2, 2012

July 1, 2011 to June 30, 2016

$10,142,649.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

The New York Foundling

Agreement for the Purchase of Regular Family Foster Care Services

April 20, 2011

July 1, 2011 to June 30, 2016

$102,571,421.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

17

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 18 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Regular Residential Care Services

February 7, 2011

First modification: April 4, 2013
Second modification: December 3, 2013

May 21, 2014 (Renewal)

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 10, 2011

Ohel Children’s Home and Family Services

Agreement for the Purchase of Regular Family Foster Care Services

May 6, 2011

Saint Dominic’s Home

Agreement for the Purchase of Regular Family Foster Care Services

May 4, 2011

April 1, 2011 to $24,482,998.00 June 30, 2014

July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$12,145,552.00 $30,247,247.00

July 1, 2011 to June 30, 2016

$4,339,249.00

July 1, 2011 to June 30, 2016

$41,220,075.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01 (A)

Part II, Section 4.01(A) and (B)

18

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 19 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Saint John’s Residence for Boys
Saint Vincent’s Services

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 12, 2011

Agreement for the Purchase of Regular Residential Care Services

February 10, 2011
May 21, 2014 (Renewal)

Agreement for the Purchase of Regular Family Foster Care Services

April 20, 2011

Agreement for the Purchase of Regular Residential Care Services

March 1, 2011
June 2, 2014 (Renewal)

December 3, 2013
July 2, 2012

July 1, 2011 to June 30, 2016

$7,526,901.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017
July 1, 2011 to June 30, 2016

$11,759,549.00 $12,048,961.00 $73,624,372.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$16,695,445.00 $14,020,812.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

19

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 20 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Agreement for the Purchase of Specialized Family Foster Care Services: Foster Children with Special Medical Needs

May 9, 2011

July 1, 2011 to June 30, 2016

$10,385,844.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

SCO Family of Services

Agreement for the Purchase of Regular Family Foster Care Services

May 2, 2011

July 1, 2011 to June 30, 2016

$145,833,024.00 Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

Agreement for the Purchase of Regular Residential Care Services

February 15, 2011

First modification: March 2, 2012
Second modification: June 14, 2012

April 1, 2011 to June 30, 2014

$41,194,011.00

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Third modification: April 11, 2014

June 13, 2014 (Renewal)

July 1, 2014 to June 30, 2017

$40,116,505.00

20

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 21 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Seamen’s Society for Children & Families

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 18, 2011

Agreement for the Purchase of Specialized Residential Care Services: Foster Children with MR/DD

February 9, 2011
May 1, 2014 (Renewal)

February 14, 2013

Agreement for the Purchase of Regular Family Foster Care Services

April 21, 2011

July 1, 2011 to June 30, 2016

$37,805,928.00

April 1, 2011 to June 30, 2014
July 1, 2014 to June 30, 2017

$26,190,867.00 $32,841,664.00

July 1, 2011 to June 30, 2016

$48,460,000.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

Part II, Section 2.01(A)

Part II, Section 4.01(A) and (B)

21

Case 1:15-cv-05273 Document 1-1 Filed 07/08/15 Page 22 of 22

Contract Agency

Type of Contract2

Execution Date3

Modification Date (where
applicable)4

Contract Term5

Contract Amount6

Agreement for the Purchase of Specialized Treatment Family Foster Care Services: Foster Children with Moderate to Severe Emotional Disorders

May 17, 2011

November 22, 2013

July 1, 2011 to June 30, 2016

$13,012,034.00

Scope of Services: General
Requirements7

Responsibility and Authority of
ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client8

Part II, Section 2.01(B)

Part II, Section 4.01(A) and (B)

22

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 1 of 123
Exhibit 1

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 2 of 123

APPROVAL AS TO FORM OF A CONTRACT BY STANDARD TYPE OF CLASS

AGENCY: ACS

EPIN:

06811P0020007

CONTRACT: Family Foster Care - CWS RFP

I hereby approve as to form the annexed contract by standard type of class. This approval is valid until 10/11/2011 and for a maximum of 26 contracts. The above approval is made on the express understanding that the substantive language of the subject contracts will not be altered or changed in any way without prior submission to the Office of the Corporation Counsel for approval, provided, however, that blank spaces in the contracts requiring names, dates, dollar amounts or other similar details may be completed.

Expiration 10/11/2011
I I

�dditional Number �llowed

h"otal Number Allowed Date Added

�6

126

04/11/2011

b

0

I I

�pproved By Slectronically Signed By STEVEN 1CUSHMAN

APPROVED AS TO FORM CERTIFIED AS TO LEGAL AUTHORITY
Electronically Signed By STEVEN CUSHMAN
ACTING CORPORATION COUNSEL
DATE: 04/11/2011 11 :16

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 3 of 123

AGREEMENT FOR THE PURCHASE OF REGULAR FAMILY FOSTER CARE SERVICES
TABLE OF CONTENTS

PART I

ARTICLE 1. CONTRACTOR FUNDED CAPACITY

Section 1 .0 1 Contractor Funded Capacity

2

ARTICLE 2. CONTRACT AMOUNT

Section 2.01 Contract Amount

2

ARTICLE 3. TERM OF AGREEMENT

Section 3.01 Term

2

Section 3.02 Renewal

2

Section 3 .03 Appropriation of Funds

3

PART II

ARTICLE 1. DEFINITIONS AND ACRONYMS

Section 1 .0 1 Definitions

4

Section 1 .02 Acronyms

7

ARTICLE 2. SCOPE OF SERVICES

Section 2.01 General Requirements

8

Section 2.02 Key Components and Approaches

8

Section 2.03 Staff Training and Development

9

Section 2.04 Recruitment, Training and Certification ofFoster and Adoptive

Parents

10

Section 2.05 Support Services for Foster and_Pre-Adoptive Parents

13

Section 2.06 Adoption Services

14

Section 2.07 Referral, Intake and Placement

15

Section 2.08 Permanency Planning

16

Section 2.09 Family Team Conference Model and Child Safety Conferences

22

Section 2.1 0 Program Services

23

Section 2.1 1 Transfer ofthe Foster Child

24

Section 2.1 2 Removal from a Foster Home

25

Section 2. 1 3 Case Closing Criteria and Procedures

26

1

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 4 of 123

Section 2. 14 Discharge Planning, Aftercare and Final Discharge

28

Section 2. 1 5 Services for Foster Children

29

Section 2. 1 6 Support Services for Birth Parents/Caretakers

36

ARTICLE 3. LITIGATION CLAIMS INVOLVING FOSTER CHILDREN

Section 3.01 Litigation Claims Involving Foster Children

38

ARTICLE 4 . RESPONSIBILITY AND AUTHORITY O F ACS AND RESOLUTION OF CERTAIN DISPUTES

Section 4.01 Responsibility and Authority ofACS and Procedure for Final Decisions

on Issues Related to Services Provided to the Client

39

ARTICLE 5. PERSONNEL

Section 5.01 Staffing

41

Section 5.02 Verification of Credentials, References and Screening Current and

Prospective Employees

42

Section 5.03 Suspected Abuse or Maltreatment of Children/Youth

43

Section 5.04 Employee Review

43

Section 5.05 Hiring and Dismissal of Certain Employees

44

Section 5.06 Collective Bargaining

44

ARTICLE 6. RECORDKEEPING AND REPORTING

Section 6.01 General

44

Section 6.02 Statistical Records

45

Section 6.03 Case Records

45

Section 6.04 Medical Records and Related Documentation

46

Section 6.05 Independent Reporting

48

Section 6.06 Family Planning Services

49

Section 6.07 Court Documents

49

Section 6.08 Independent Audit Reports

49

Section 6.09 Disposal of Confidential Data

49

Section 6. 1 0 Record Keeping Systems Maintenance and Utilization

49

Section 6.1 1 Change in Corporate Structure

50

ARTICLE 7. CONTRACTOR'S STANDARDS AND PROCEDURES

Section 7.01 Standards and Procedures

50

Section 7.02 Client Grievance Procedures

51

Section 7.03 Security and Emergency Plan

52

Section 7.04 Continuity of Operations Plan

52

11

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 5 of 123

ARTICLE 8. FISCAL PROVISIONS

Section 8.01 General

52

Section 8.02 Payment

53

Section 8.03 Statewide Service Payment System

53

Section 8.04 Advance

54

Section 8.05 Cost of Living Increases

54

Section 8.06 Special Payments, Other Expenses and Additional Funding

54

Section 8.07 Budget Modifications and Amendments

57

Section 8.08 Accounts

57

Section 8.09 Reporting Requirements

57

Section 8 . 1 0 Final Payment

58

Section 8. 1 1 Compliance with the Law and Policies

58

Section 8.1 2 Cost Allocation

58

Section 8. 1 3 Family Court Sanctions

59

ARTICLE 9. DENIAL OF REIMBURSEMENT

Section 9.01 Denial ofReimbursement

60

ARTICLE 10. AUDIT

Section 1 0.01 Contractor's Audit

60

Section 1 0.02 Audit by ACS

60

Section 1 0.03 ACS Audit Dispute Resolution

61

Section 1 0.04 Recoupment

62

Section 1 0.05 Federal Audit Requirements

63

Section 1 0.06 State Charities Registration and Audit Requirements

63

ARTICLE 1 1. MONITORING, EVALUATION AND QUALITY IMPROVEMENT

Section 1 1 .01 Monitoring, Evaluation and Quality Improvement

63

Section 1 1 .02 Capacity Building and Oversight (CBO) Review for Not-For-Profit

Contractors

65

ARTICLE 12. TERMINATION/EXPIRATION

Section 1 2.01 Termination

65

Section 1 2.02 Responsibilities after Notice of Termination or Expiration

66

Section 1 2.03 Threatened Termination by Contractor

67

Section 1 2.04 Miscellaneous

67

111

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 6 of 123

ARTICLE 13. SURVIVAL OF TERMS

Section 1 3 .0 1 Survival ofTerms

67

ARTICLE 14. CONTROLLING ORDER

Section 1 4.01 Controlling Order

67

Appendix A:
Attachment I Attachment II
Attachment III Attachment IV Attachment V

ATTACHMENTS
General Provisions Governing Contracts For Consultants, Professional, Technical, Human And Client Services
The RFP
The Contractor's Proposal and if applicable any Negotiated Addendum to the Proposal
The Foster Care Quality Assurance Standards
The Budget and Funded Capacity
Delegation and Centralization of Case Management Casework Requirements

iv

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 7 of 123

B/RD.RFFC.Al 0 1-08-10

AGREEMENT FOR THE PURCHASE OF REGULAR FAMILY FOSTER CARE SERVICES

I{� THIS AGREEMENT, dated this f.11'1day of

, 201 1 between the City ofNew

York ("City") acting through City Administration for Childre's Services ("ACS" or

"Department") with offices at 1 50 William Street, New York, New York 1 0038 and Community

Counseling and Mediation Services, Inc. ("Contractor") located at One Hoyt Street, Brooklyn,

NY 1 1 20 1 .

WITNESSETH

WHEREAS, the Commissioner of ACS, which is an authorized agency as defined by SSL § 3 7 1 ( 1 0), is charged with the responsibility for the administration of all child welfare services in the City; and

WHEREAS, ACS wishes to serve Foster Children and their families in their
neighborhood of origin by placing them in Foster Homes within their communities whenever appropriate; and

WHEREAS, the Commissioner may provide child welfare services through an authorized agency as defined in the SSL; and

WHEREAS, the Contractor is an authorized agency as defined in the SSL; and

WHEREAS, ACS issued a Request for Proposals with a release date of May 20, 2009 and a Procurement Identification Number 0682009CWSCP ("RFP") to establish family foster care services that will ensure the safety, permanency, and well-being of all New York City children and strengthen families; and

WHEREAS, the Contractor submitted a proposal in response to the RFP to provide the necessary family foster care services and the Contractor's proposal was accepted by ACS; and

WHEREAS, ACS requested the Contractor to provide family foster care services in accordance with the terms and conditions contained in this Agreement; and

WHEREAS, the Contractor under the terms of its corporate authority has the power to provide family foster care services and is willing and able to provide these services.pursuant to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained_in this Agreement the parties have agreed and so hereby agree as follows:

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 8 of 123
AGREEMENT FOR THE PURCHASE OF REGULAR FAMILY FOSTER CARE SERVICES
PART I
ARTICLE 1. CONTRACTOR SITE ADDRESSES AND FUNDED CAPACITY
Section 1.01 Contractor Funded Capacity
The Contractor's funded capacity by borough is listed in the Budget attached as Attachment IV.
ARTICLE 2. CONTRACT AMOUNT
Section 2.01 Contract Amount
ACS shall pay to the Contractor and the Contractor has agreed to accept for the services provided pursuant to this Agreement, an amount not to exceed $7,308,387.00 for the five (5) year period from July 1, 20 1 1 through June 30, 201 6 in accordance with this Agreement and the Budget attached as Attachment IV. The Contractor must demonstrate that the work has been completed in a form satisfactory to ACS prior to payment in accordance with the terms of this Agreement.
ARTICLE 3. TERM OF AGREEMENT
Section 3.01 Term
The term of this Agreement shall begin on July 1 , 20 1 1 for a period of five (5) years through June 3 0, 201 6.
Section 3.02 Renewal
A. ACS shall have the sole option to renew this Agreement for a maximum additional four (4) year term from July 1 , 201 6 through June 30, 2020.
B. ACS in its sole discretion may modify the length of the renewal option listed in Section 3.02(A) of this Part I. The total term of this Agreement after the exercise of the above option to renew shall not exceed nine (9) years. Any extensions of this Agreement may be made by ACS in its sole discretion and in accordance with the PPBR. All renewals and extensions shall be on substantially the same terms and conditions contained in this Agreement.
C. ACS may renew this Agreement by giving written notice to the Contractor no less than sixty (60) days prior to the expiration date ofthis Agreement including any renewal term. At each renewal interval, ACS agrees to reconsider and decide as it deems appropriate in its own discretion the target numbers for performance goals if requested to do so by the Contractor in
2

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 9 of 123 light of changing economic, social, or other conditions that make it necessary to reconsider those numbers. The exercise of each renewal option shall be subject to all required approvals, including ACS established criteria, the Law, and the appropriation of funds. Section 3.03 Appropriation of Funds
Since the term of this Agreement involves performance by the Contractor in a subsequent City Fiscal Year(s), funding for this Agreement is subject to the appropriation of funds for such subsequent City Fiscal Year(s).
[This portion of the page is intentionally left blank.]
3

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 10 of 123
AGREEMENT FOR THE PURCHASE OF REGULAR FAMILY FOSTER CARE SERVICES
PART II
ARTICLE 1. DEFINITIONS AND ACRONYMS
Section 1.01 Definitions
Whenever the following terms and phrases are used in this Agreement and the attachments annexed to this Agreement, they shall have the following meanings, unless it is expressly indicated that such term or phrase is to have a different or additional meaning. All such other terms and phrases that shall not be specifically defined in this Part II, shall have the meaning ascribed to it by Law, or, in the event that such term or phrase is not described in the Law, it shall have the meaning as is commonly ascribed to it.
A. "ACS Policies" shall mean all applicable ACS policies, procedures guidelines, bulletins and standards, as amended. ACS Policies are incorporated by reference and may be found via the Contractor's access to ACS ' intranet website at http://10.239.3 . 195:8080/docushare/dswebNiew/Collection-4166.
B. "Administrator" or "Commissioner" or "Agency Head" shall mean the Commissioner of ACS or her/his duly authorized representative. The term "duly authorized representative" shall include any person or persons acting within the limits ofher/his authority.
C. "Case Planning" shall mean the following functions and activities of the Contractor in connection with Recipients of Services which includes but is not limited to: conducting ongoing safety assessments for all children in a household and performing the regulatory function of child protective service monitor; scheduling required Family Team Conferences with the appropriate attendees; assessing service needs of children in care and their families; planning for service needs; arar nging for service provision; coordinating service provision and/or participating in joint planning, when appropriate; evaluating the outcome of service provision; completing, approving and implementing the FASP; conducting minimum required casework contacts; and providing necessary documentation in the case record. The Contractor, through its assigned caseworker(s), carries out planning functions for the entire family unit. When a family is authorized to receive services from a single foster care provider, that provider is always the primary planning foster care provider. The primary planning foster care provider always has the responsibility to coordinate services for the entire family, to prepare the single, family-focused case record and to arrange and conduct Service Plan Review conferences. The above definition may change from time to time based on changes in ACS Policies, the Law, Federal and State Court orders, and stipulations of settlement or decree.
D. "City" shall mean the City of New York, its departments and political subdivisions.
4

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 11 of 123

E . "Comptroller" shall mean the Comptroller o fthe City o fNew York.

F. "CONNECTIONS" or "CNNX" means the New York State automated system designed to create a single integrated statement system for collecting and recording child protective, preventive, foster care and adoption services information.

G. "Day" shall mean a calendar day unless otherwise specified in this Agreement.

H. "Days of Care" shall mean the number ofdays in which a Foster Child is in placement in, and physically present at, a program operated by the Contractor, plus the number of days of allowable absences during the time in which the Foster Child is in placement in such program.

I.

"Fiscal Manual" shall mean a set of instructions provided by ACS to the

Contractor documenting the applicable policies and procedures of ACS for Contractor to use in

such matters as record-keeping, bookkeeping, reporting, invoicing and claiming, budgeting, cost

allocating, procurement and payroll, as may be amended by ACS . The Fiscal Manual is

incorporated by reference and may be found online at www.nyc.gov/acs.

J.

"Foster Child (ren)" shall mean a person or persons placed in and receiving

services from the Contractor's family foster care program pursuant to this Agreement, ACS

Policies and the Law. Generally, Foster Children meet the following criteria:

1 . The child/youth is under the age of eighteen (18) years or is between the (a1g8etsh)obfiertighhdtaeyenan(d18h)aasncdontwseenntteydotnoere(2m1a)inyeinarsfoasntedr ecnatreerepdasftohsties/rhcearreeibgehfteoerenthhis(/1h8etrh)ebigirhtthedeanyth; and

a.

is a student attending a school, college or university; or

b. is regularly attending a course of vocational or technical training

designed to prepare him or her for gainful employment; or

c.

lacks the skills or ability to live independently.

2 . The child/youth is cared for away from his/her home twenty four (24) hours a day in a Foster Home, Residential Care Facility or combination thereof.

3 . The child's/youth's care and custody or guardianship and custody has been transferred to an authorized agency pursuant to the provisions of SSL §§ 384 or 384-a or the child/youth has been placed with a social services official pursuant to Article 3 , 7 or 10 of the Family Court Act.

K. "Foster Home" shall mean a residence owned, leased or otherwise under the control of a single person or family who has been approved or certified by an authorized agency to care for children, and such person or family receives payment from the agency for the care of such children.

5

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 12 of 123

1 . "Approved Relative Foster Home" shall mean a Foster Home in which the foster parent is a relative within the second or third degree of the parent(s) or stepparent(s) of the child and who is approved to care for specific related children in accordance with 1 8 NYCRR 443 .7 (for expedited approval) and/or with 1 8 NYCRR 443 .3, or any successor or amended regulations, for full approval.

2. "Certified Foster Home" shall mean a Foster Home in which the foster parent is certified to care for the number of children indicated on the certificate in accordance with the requirements of 1 8 NYCRR 443 .7 (for expedited certification) and 1 8 NYCRR 443 .3 or any successor or amended regulations.

L. "Law(s)" shall mean all applicable Federal, State and City laws, regulations, ordinances and rules and any successor and any amendments thereto including but not limited to the New York City Charter, the New York City Administrative Code, a local law ofthe City of New York, and any ordinance, rule or regulation having the force oflaw and including any waivers issued by OCFS.

M. "Office of Children and Family Services" or "OCFS" shall mean the New York State Office of Children and Family Services which is responsible for, among other things, regulating and monitoring child welfare services in New York State.

N. "Planned Placement" shall mean the placement of a child/youth with the Contractor following a planning process whereby, at the time of the placement, a placement packet (psychiatric, psychological and psychosocial) has been completed.

0. "Planned Placement Vacancy" shall mean a Contractor vacancy that may be filled by a Planned Placement.

P. "Recipients of Services" shall mean a child, his/her family unit, biological, adoptive or other family unit entrusted with the care ofthe child, his siblings and significant others related or unrelated to a child/youth who are determined by the Contractor and ACS to be an actual or potential source of support, care or assistance for the Foster Child.

Q. "Regular Placement" shall mean the placement of a child/youth into Foster Care which must be made immediately because of the need to ensure the safety and the welfare of the child/youth.

R. "Regular Placement Vacancy" shall mean a Contractor vacancy that may be filled by a Regular Placement.

S. "Residential Care Facility'' shall mean a foster care facility other than a Foster Home. Such facilities include:

1.

"Agency Operated Boarding Home" or "AOBH" shall mean a family-type

home for the care and maintenance of not more than six (6) children operated by an authorized

agency in quarters or premises owned, leased, or otherwise under the control of such authorized

6

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 13 of 123

agency except as may be permitted under 18 NYCRR 427.3 .

2. "Supervised Independent Living" or "SILP" shall mean special type of AOBH in which up to four (4) youth are allowed to reside on their own in the community, in a living unit separate from the authorized agency' s other Residential Care Facilities, under the supervision of an authorized agency. Such facility is intended to serve as a transitional experience for youth whose permanency planning goal is "discharge to independent living."

3.

"Group Home" shall mean a licensed family-type home operated and

staffed by an authorized agency for the care and maintenance of seven (7) to twelve (12) Foster

Children.

4. "Group Residence" shall mean a licensed institution operated and staffed by an authorized agency for the care and maintenance of up to twenty five (25) children.

5 . "Institution" shall mean a licensed facility operated and staffed b y an authorized agency for the care and maintenance of thirteen (13) or more Foster Children.

T. "State" shall mean the State ofNew York.

U. "Suspended Payment" shall mean the cessation ofpayments by the City to the Contractor when a Foster Child placed with the Contractor is not physically present and is not on an allowable absence.

Section 1.02 Acronyms

Whenever the following acronyms are used in this Agreement and the attachments annexed to this Agreement, they shall have the following meanings, unless it is expressly indicated that such acronym is to have a different or additional meaning.

AIDS - Acquired Immune Deficiency Syndrome APLA - Another Planned Living Arrangement B2H - Bridges to Health CCRS - Child Care Review System CIN - Client Identification Number CPA - Certified Public Accountant CSC - Child Safety Conference DCJS - New York State Division of Criminal Justice Services FASP - Family Assessment and Service Plan FBI - Federal Bureau of Investigation FCLS - Administration for Children's Services Division of Family Court Legal Services FTC - Family Team Conference GAAP - Generally Accepted Accounting Principles HIV - Human Immune-deficiency Disease IEP - Individualized Education Plans LTS - Legal Tracking System

7

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 14 of 123
NYCRR - New York Codes, Rules and Regulations OASAS - New York State Office of Alcoholism and Substance Abuse Services PH - Permanency Hearing PINS - Person In Need of Supervision PYA - Preparing Youth for Adulthood SCR-New York State Central Register of Child Abuse and Maltreatment SSL- New York State Social Services Law SSPS - Statewide Service Payment System TPR-Termination of Parental Rights
ARTICLE 2. SCOPE OF SERVICES
Section 2.01 General Requirements
A. The Contractor shall provide comprehensive family foster care services as set forth in this Agreement, the Law, court orders and mandates, ACS Policies, the Fiscal Manual and the following documents which are attached to this Agreement and made a part ofthis Agreement:
1. Appendix A: General Provisions Governing Contracts For Consultants, Professional, Technical, Human And Client Services;
2. Attachment I: The RFP; 3 . Attachment II: The Contractor's Proposal and if applicable any Negotiated Addendum to the Proposal; 4. Attachment III: The Foster Care Quality Assurance Standards ; 5. Attachment IV: The Budget and Funded Capacity; and 6. Attachment V: Delegation and Centralization ofCase Management Casework Requirements.
B. Attachment III, Attachment IV, and Attachment V may be revised at the sole discretion ofACS allowing for a (30) thirty-day comment period prior to implementation. Attachment II may be modified only upon mutual written agreement ofthe parties.
C. ACS reserves the right to issue ACS Policies for the purposes of explaining new and existing standards, policies or procedures. Any such ACS Policies shall be submitted to the Contractor for review and discussion at least thirty (30) days prior to final publication and implementation. The Contractor should use this time to submit comments to ACS. Any new ACS Policies shall be applied prospectively. The Contractor shall comply with ACS Policies, the Law, Federal or State Court orders, and stipulations of settlement or decree.
Section 2.02 Key Components and Approaches
A. The Contractor shall ensure that placement and supportive services are in place and available to promote timely reunification between Foster Children and their families, while ensuring safe and stable foster care experiences for Foster Children in settings that are as familial and least restrictive as possible consistent with the needs ofthe Foster Child. ACS shall share
8

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 15 of 123

with the Contractor as soon as possible any current assessment ofthe Foster Child's needs and any identified safety issues.

B. ACS shall provide the Contractor with all relevant information regarding the needs of the child/youth and family for children/youth referred to the Contractor.

C. The Contractor shall operate according to the following principals and practices in efforts to maximize and improve safety, permanency and well-being for Foster Children:

1 . Minimized periods of time spent in foster care and timely permanency through family reunification or adoption according to the strengths and needs of each Foster Child and his/her family.

2. Placement stability that minimizes the occurrence ofreplacements and relocations including movements from family foster care to residential care, and provides consistency in care throughout the time that Foster Children remain in care.

3 . In the event a Foster Child is removed from family foster care to residential care, the Contractor shall make efforts to minimize the length of time spent in residential care, returning the Foster Child to a family setting as soon as possible consistent with the needs and behaviors of the Foster Child as determined at the FTC.

4. Except where otherwise indicated for the safety and well-being of a Foster Child, the Contractor shall make efforts to place Foster Children in a Foster Home that is in the same community in which their birth parents/caretaker resides.

5 . Safety from abuse and neglect while in foster care.

6. Implement discharge planning and services to avoid re-entry of a Foster Child into foster care after discharge.

7. Implement services and support for Foster Children to develop to their fullest potential and become healthy, educated, and constructive members of the community with successful transitions to adulthood.

8.

Create and foster permanent adult connections for all Foster Children,

including older Foster Children, when they leave foster care.

Section 2.03 Staff Training and Development

A. The Contractor shall continually assess the training needs ofthe Contractor' s staff based on the population of Foster Children in the Contractor's care and tailor the training to ensure that its staff receives appropriate training.

B. In addition to the standards and expectations set forth in the Foster Care Quality Assurance Standards, the Contractor shall ensure that all Contractor staff except administrative

9

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 16 of 123
and support staff shall receive training each year to enhance their understanding ofthe needs and characteristics ofthe population in care and their skills to provide emotional support and care, and appropriately manage the behavior of Foster Children. Such training shall include the following:
1 . Training on trauma, the impact of abuse/maltreatment on children/youth, and the steps the Contractor's staff can take to mitigate past trauma and prevent additional trauma;
2. Training on the complex social, medical, developmental, nutritional and emotional needs of Foster Children, the effect of those needs on their normal growth and development, and demands and skills required in caring for Foster Children;
3 . Education on the importance o finitial and ongoing medical and mental health treatment and the importance ofkeeping scheduled appointments as well as compliance with treatment and on basic pharmacology as needed for Foster Children, including but not limited to the actions, side effects, and possible adverse reactions ofmedications that such Foster Children may be taking and basic information about administering medication and the dangers that can result from missed or improperly-administered doses of medications;
4. Training on behavior modification and management;
5 . Training o n youth development and permanency practice; and
6. Training on the Family Court process.
Section 2.04 Recruitment, Training and Certification of Foster and Adoptive Parents
A. Identification of Prospective Foster Parents and Adoptive Parents
1. Recruitment
a. The Contractor shall recruit prospective foster parents and adoptive parents who are able to provide a safe and nurturing environment in accordance with the Law and ACS Policies, and have the capacity and interest to become foster and/or adoptive parents. The Contractor shall establish a sufficient number of Foster Homes consistent with the capacity established in this Agreement to serve children/youth in need of foster care services, placing Foster Children within or as close to their communities as possible. ACS will provide and the Contractor shall base its efforts for the recruitment and retention of foster parents on placement data that indicates the need for homes in particular communities for Foster Children by age group, gender, medical conditions, culture, ethnicity, language, and the demand for homes that can support sibling groups. ACS shall assess the placement data and adjust recruitment targets in a timely manner. The Contractor shall also conduct specialized recruitment in efforts to recruit and identify foster parents who are willing to care for Foster Children with specialized needs.
10

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 17 of 123

b. When a child/youth is placed with the Contractor, the Contractor shall make efforts where appropriate to recruit, as foster parents, individuals with whom the Foster Child already has a positive relationship, including relatives and non-relatives.

2. Preparation of Foster and Adoptive Parents: The Contractor shall provide all prospective foster and adoptive parents with an orientation on foster parenting prior to accepting their application or prior to conducting their home study. The Contractor shall ensure
that prospective foster and adoptive parent applicants satisfactorily complete training as required
by Law and ACS Policies, including the Foster Care Quality Assurance Standards, prior to receiving certification as foster parents. For kinship homes identified by ACS, the Contractor shall assess the home in accordance with ACS Policies and the Law.

B. Certification or Approval

1 . Compliance with Law: The Contractor shall ensure that all Foster Homes, including emergency Foster Homes, are certified or approved in accordance with the Law including 1 8 NYCRR Part 443 and any successor or amended regulation.

2. Application: The Contractor shall screen all prospective foster and adoptive parents, which must include verification of age, source of income or receipt of Public Assistance, education history, and employment history.

3.

Statewide Central Register of Abuse and Maltreatment Clearance: The

Contractor shall clear all members of the prospective foster and adoptive parents household with

the SCR to determine whether any member of the household including the applicant has been or

is currently the subject of an indicated child abuse/maltreatment report. In the event the

applicant or any person residing in the home that is eighteen (18) years of age or older has lived

for any period of time in another state during the previous five (5) years, the Contractor shall also

inquire of each state the individual has resided in within the previous five (5) years whether the

individuals have been the subject of an indicated abuse or maltreatment report in that state. ACS

shall provide the Contractor with the contact information for clearance requests in all states. The

Contractor shall include, as a part of the household, any in-home, out of home or emergency

caretakers that provide child care for the prospective foster parents in the foster parent home

study. The Contractor shall ensure that all such caretakers are cleared with the SCR to determine

whether they have been or are currently the subject of an indicated child abuse/maltreatment

report.

4. Fingerprinting and Criminal History Record Check: The Contractor shall conduct criminal history records checks with the DCJS and the FBI for every prospective foster and adoptive parent and each person over the age of eighteen (18) years of age who currently resides in the home of such prospective foster and adoptive parent before the foster and adoptive parent can be approved or certified for the placement of a Foster Child. In furtherance of the criminal history record check, the Contractor shall obtain and/or arrange for the taking of fingerprints and obtain signed 'Consent for the Release of Confidential Information' forms from every applicant and every person eighteen (18) years of age and older, including Foster Children who are over eighteen (18) years of age, who currently reside in the home of such prospective or

11

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 18 of 123
existing foster parent in the manner prescribed by OCFS and such other information as is required by the OCFS, DCJS and the FBI. Once collected, the Contractor shall arrange for the submission of fingerprints and signed consent forms to OCFS. In the event there is an indication of a criminal history, the Contractor shall comply with ACS Policies and the provisions set forth in the Law including 1 8 NYCRR 443 .7 when seeking certification or approval for a Foster Home on an emergency basis; or 1 8 NYCRR 443 .8 when seeking certification of a prospective foster parent; or 1 8 NYCRR 443 .9 when seeking concurrent certification or approval of an individual as both a foster and adoptive parent, or any successor or amended regulations to determine whether or not to certify or approve the foster parent application.
5 . Home Study: The Contractor shall conduct a Home Study that meets all New York State licensing, certification and/or approval requirements in accordance with ACS Policies and the Law including 1 8 NYCRR Part 443 or any successor or amended regulation. The Contractor shall ensure that all emergency Foster Homes are certified or approved pursuant to the Law including 1 8 NYCRR 443 .7 or any successor or amended regulation.
6. References: The Contractor shall obtain three (3) references for each prospective foster and adoptive parent. One (1) reference shall be in writing, and two (2) shall be obtained through face-to-face interviews conducted by qualified staff of the Contractor. The Contractor must document each reference in the applicant's foster parent record.
7. Recertification: The Contractor shall ensure that the certification or approval for each Foster Home is renewed on an annual basis, including an update ofthe home study, in accordance with ACS Policies and the Law including 1 8 NYCRR 443 . 1 0 or any successor or amended regulation. The Contractor shall establish a protocol for immediate re­ placement of the Foster Child with another foster parent in the event that his/her foster parents not meet the recertification requirements.
8 . Concurrent Certification: The Contractor shall ensure that all individuals applying to be both foster and adoptive parents are certified or approved pursuant to the Law including 1 8 NYCRR 443 .9 or any successor or amended regulation.
C. Foster Parent Training
1. Training: The Contractor shall ensure that foster parents receive ongoing in-service training that takes into account the needs of the foster parents and the population of Foster Children served. The Contractor shall ensure that foster parents receive a minimum of six (6) hours of such training annually and make efforts to connect foster parents to an additional six (6) hours of training through community based supports and/or ACS provided training.
2. Training for Re-Certification or Re-Approval: The Contractor shall ensure that all foster parents complete all required training contained in the ACS Foster Parent Agreement form in order to be re-certified or re-approved as foster parents.
3 . Recordkeeping and Documentation of Foster Parent Training in CONNECTIONS : The Contractor shall document all training that is administered to foster
12

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 19 of 123
parents in accordance with ACS Policies including the Foster Care Quality Assurance Standards.
Section 2.05 Support Services for Foster and Pre-Adoptive Parents
A. Communication between the Contractor and Foster and Pre-Adoptive Parents: The Contractor shall maintain and foster ongoing communication with all foster and pre-adoptive parents. The Contractor shall encourage foster parents to communicate to case planners and other appropriate Contractor staff issues regarding key events in their Foster Child's life, including but not limited to birthdays, holidays, first days of school, changes to parent or sibling visitation orders, meetings with school staff, Family Court hearings, service plan reviews and other conferences. The Contractor shall instruct foster parents to contact the Contractor when an event, situation or emergency occurs that falls outside of the foster parents' general responsibilities, the foster parent feels they cannot handle without assistance.
B. Engagement with Foster Children: The Contractor shall instruct foster and preadoptive parents to both engage their Foster Children in the decision making process regarding their future, and offer them an opportunity for meaningful participation in that process. The Contractor shall involve Foster Children in their own case planning and encourage them to serve as advocates on their own behalf as appropriate to their age/developmental level.
C. Working with Foster Parents: The Contractor shall offer support that is aimed at recruiting and retaining foster parents.
1 . The Contractor shall hold regular meetings with groups of foster parents to obtain feedback about the quality of the Contractor's available support systems. The Contractor shall work with foster parents and utilize data from such meetings to develop a foster parent support plan, which shall be updated at least once a year.
2. The Contractor shall provide foster parents with emergency on-call support, which shall be available twenty-four (24) hours day, seven (7) days a week and shall include, but not be limited to crisis intervention support.
3 . The Contractor shall collaborate with each foster family on the development of an emergency/evacuation plan for their Foster Home.
4. The Contractor shall provide every foster parent with an emergency wallet card with instructions on how to contact their caseworker, their caseworker's supervisor, a Contractor administrator, and the ACS Office of Advocacy by telephone and email.
5. The Contractor shall supply each foster parent with a photo-identification card upon the foster parent's request, and ensure options are available for foster parents to receive their monthly stipends by direct deposit upon request.
6. The Contractor shall develop and implement procedures to address foster parents' concerns. The Contractor shall work with foster parents to create and sustain a network
13

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 20 of 123
of foster parent support groups. The Contractor shall also implement and options to dispense information discussed during support group meetings for foster parents that are unable to attend support group meetings.
7. The Contractor shall ensure that foster parents are a part of the decision making process during FTC ' s and other conferences.
8. The Contractor shall ensure that foster parents have a meaningful role in the development ofthe Contractor's policies and program planning activities.
9. The Contractor shall educate foster parents on parental mental health and its impact on Foster Children.
Section 2.06 Adoption Services
A. Recruitment: The Contractor shall facilitate where appropriate foster parents to adopt Foster Children in their care. In such situations, when foster parents intend to adopt, the Contractor shall complete an adoption home study and have approved adoptive parents sign an adoption placement agreement once the child/youth is freed for adoption. For Foster Children who are freed for adoption and are not placed in a home that will adopt, the Contractor shall make diligent efforts to recruit and identify adoptive homes.
B. Home Study: The Contractor shall conduct or arrange for a home study of all prospective adoptive parents pursuant to the Law including 18 NYCRR Part 42 1 or any successor or amended regulation. The Contractor shall educate prospective adoptive parents about the types of trauma that can be caused by abuse and maltreatment in addition to the behaviors that can result from such trauma.
C. Filing for Adoption in Family Court: For each adoption, the Contractor shall require and take steps necessary for the prospective adoptive parents to file an adoption petition in the Family Court as soon as practicable from the date of notice that the Foster Child has been legally freed for adoption, except when the Foster Child was freed for adoption through an extra­ judicial surrender, in which case the petition may not be filed until at least forty-five (45) days after the surrender was executed; or the Foster Child was freed for adoption through an order of a court committing custody and guardianship ofthe Foster Child to the Commissioner and to the authorized foster care provider pursuant to the provisions of SSL § 384-b in which case, the petition may not be filed until at least thirty (30) days after service of the order of commitment on the birth parent(s)/caretaker(s).
D. Comprehensive Adoption Report: The Contractor shall maintain and update comprehensive adoption reports, including objective and comprehensive information on the Foster Child, the adoptive family, and the birth parents/caretakers, to facilitate expeditious adoptions and assist family court judges and/or surrogates when determining whether adoption is in the best interest of a Foster Child.
14

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 21 of 123

Section 2.07 Referral, Intake and Placement

A. Placement: A child/youth is deemed to have been placed with the Contractor on the day on which the child/youth enters the Contractor's care pursuant to a referral to the Contractor by ACS.

B . Referral and Intake

1 . ACS, pursuant to the Commissioner's responsibility and authority under Article 6 ofthe SSL and the City Administrative Code, shall, in its sole discretion, refer children/youth in need of service, for placement with the Contractor. Both parties agree to comply with all Laws prohibiting discrimination in placement on the basis of any factors including, but not limited to race, religion, color, national origin, disability, age, sexual orientation and gender identity, and each child/youth will have access to quality services. The parties shall, where practicable, recognize the statutorily permissible desire for in-religion placement, in accordance with SSL §373 and in a manner consistent with the principles of equal protection and non-discrimination as defined in other applicable Law. Pursuant to 18 NYCRR 441 . 1 1, the parties shall preserve and protect the religious faith ofthe child/youth.

2. Notwithstanding any provision to the contrary contained in this Agreement, ACS shall have complete and final authority over all placement decisions and referrals for placement.

3 . I fa parent physically appears at the Contractor's offices seeking voluntary placement of a child/youth, the Contractor shall, in compliance with all Laws and ACS Policies, refer that child/youth to the appropriate ACS office. Thereafter, ACS shall determine whether the child/youth needs placement and, ifnecessary, ACS shall place the child/youth.

4. The Contractor may recommend that a child/youth referred to ACS for placement is placed in its care.

5. In accordance with this Agreement including Section 2.01 ofPart II ofthis Agreement entitled "General Requirements," the Contractor shall make best efforts to find a foster family able and willing to provide care for children/youth referred by ACS who meet the criteria for family level ofplacement.

C. Capacity and Vacancy Reporting and Wait List

1. The Contractor shall report its capacity, Regular Placement Vacancies, and ·
Planned Placement Vacancies to ACS as follows:

a.

Capacity . The Contractor shall accurately report its capacity on a

monthly basis or more frequently as requested by ACS.

b. Regular Placement Vacancy Reporting. The Contractor shall report to ACS its Regular Placement Vacancies on a daily basis by 10:00 AM or as soon as possible

15

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 22 of 123

thereafter.

c.

Planned Placement Vacancy Reporting. The Contractor shall report

to ACS its Planned Placement Vacancies every Monday and Thursday by 12:00 pm (noon) or as

soon as possible thereafter via the Vacancy Control database.

d. Back-up Staff: The Contractor shall designate one person and an
additional back-up staffperson from its intake section as a liaison who will report vacancies to
ACS.

2. The Contractor's failure to report vacancies in accordance with this Agreement, including ACS Policies, shall trigger an immediate review ofthe Contractor's vacancy reporting process and may result in the suspension ofthe Contractor's intake.

3 . Waitlist: For Planned Placements, the Contractor may place children/youth referred to it on a waitlist in the event the Contractor does not have a vacancy. Notwithstanding the Contractor's ability to place a referred child/youth on the Contractor's waitlist, ACS may in its sole discretion place the child/youth with another foster care provider.

Section 2.08 Permanency Planning

A. Service Plan Design and Delivery

1. Upon the placement of a Foster Child with the Contractor in accordance with this Agreement, the Contractor shall provide case planning, permanency and supportive services in accordance with all Laws and ACS Policies.

2. Notwithstanding Section 2.08 (A)( l ), above, case planning responsibility for Foster Children who are being transferred to a residential care provider from the Contractor' s family foster program shall be transferred to the residential care provider or retained by the Contractor in accordance with ACS Policies.

3 . For cases in which the Contractor does not have case planning responsibility for a Foster Child in its care, the Contractor shall be responsible for cooperating with the case planning foster care provider to ensure well-coordinated services. Such cooperation shall include:

a. birth parents/caretakers;

Coordination of visitation between the Foster Children and their

b. Coordination of visitation between siblings;

c.

Completing relevant portions ofthe FASP; and

d. When necessary, attendance at FTCs.

16

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 23 of 123

4. The Contractor shall prepare foster parents with knowledge about the needs of a child/youth before placing the child/youth in such foster parent's home. After placement of a Foster Child, the Contractor shall continue to provide foster parents with appropriate educational and information services, as needed, specific to the Foster Child placed a foster parent's home. The Contractor shall adhere to the provisions ofthe Law including 1 8 NYCRR 443 .2 or any successor or amended regulation regarding authorized agency operating requirements.

B . Case Opening Criteria and Procedures

1 . Intake and Admissions

a.

The Contractor and the Contractor's staffshall be available

twenty-four (24) hours a day, seven (7) days a week, to receive intake referrals from ACS.

b. The Contractor shall implement and document policies and procedures that define the intake and placement process for Foster Children entering the Contractor's care, and that clearly delineates the types and intensity of services provided to meet the needs of the Foster Children. The Contractor's intake and placement process must comply with this Agreement and ACS Policies.

c. ACS shall assign a CIN to each Foster Child, document eligibility requirements and placement/payment information in CNNX and document other required systems to support payment to the Contractor within three (3) business days of the Foster Child's placement.

d. The Contractor shall verify with ACS that a case record is opened immediately upon the admission of each Foster Child entering the Contractor's care. The Contractor shall maintain a Uniform Case Record in accordance with the Law. The Contractor shall have specified procedures for obtaining admission information on Foster Child, including receiving information from ACS and integrating it into Foster Child s immediate service plan.

2. The First Two (2) Business Days after Placement

a. Foster Home Visit: The Contractor's staff shall visit each Foster Home, including the homes of kinship foster parents, within two (2) business days after a Foster Child has been placed in such Foster Home, during which time the Contractor shall perform a safety and risk assessment ofthe Foster Home as well as a permanency assessment. All visits and contacts to a Foster Home shall be conducted in accordance with the Law and ACS Policies.
b. Initial Contact with Birth Parents/Caretakers: The Contractor shall initiate contact with birth parents/caretakers within the first two (2) business days of such Foster Child' s placement in a Foster Home in efforts to engage the birth parents/caretakers in the permanency planning process.

17

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 24 of 123

3 . Visitation and Establishment of Visitation Plan

a. Responsibility for Visits: In accordance with ACS Policies, the Contractor shall arrange and facilitate visits and other forms of contact between Foster Children, their birth parents/caretakers, and among separated siblings. When appropriate, the Contractor may facilitate visits between Foster Children and other significant adults in their life.

b.

Sibling Contact: The Contractor shall ensure that all siblings and

half siblings be placed together whenever possible, unless such placement would be a risk to a

Foster Child's health and safety. When placement together is not possible or appropriate, the

Contractor shall arrange frequent opportunities for sibling visits, communication by telephone,

letters, and or other forms of regular and meaningful contact.

c.

Scheduling: When making visitation arrangements, the Contractor

shall take into consideration the schedules and transportation options of all those involved,

including birth parents/caretakers, Foster Children, and foster parents. The Contractor shall

ensure that Foster Children are actively involved in their own visitation planning and scheduling

process. The Contractor shall facilitate evening and weekend hours for supervised visits to take

place. The Contractor may comply with this requirement by collaborating with community­

based partners who offer space during evening and/or weekend hours. When making visitation

arrangements, the Contractor shall take into consideration travel distance, cost and safety issues, including situations involvfog domestic violence where visits must be monitored carefully so as

not to compromise the safety of the Foster Children and their birth parent(s)/caretaker(s), as well

as cultural, religious and language issues.

d. Onset of Visiting: In accordance with ACS Policies, the Contractor shall ensure that each Foster Child has an initial visit with their birth parents/caretakers within two (2) business days of removal or a new placement.

e. Activities and Location: When the goal is reunification, Foster Child - birth parent/caretaker visits shall serve as preparation for reunification, allowing birth parents/caretakers to resume as much parental responsibility as possible while maintaining the safety of the Foster Child. When making visitation arrangements, the Contractor shall accommodate Foster Children and their birth parents'/caretakers' schedules. The Contractor shall make efforts to provide a private comfortable space equipped with age-appropriate toys and materials when visits take place at the Contractor's site.

f.

Supervision: The Contractor shall comply with ACS Policies

regarding visitation between Foster Children and birth parents/caretakers including the Best

Practice Guidelinesfor Family Visiting Arrangementsfor Children in Foster Care, August 28,

2006 or any successor or amended guideline. Visitation shall be unsupervised unless the

Contractor can justify and/or document reasons that supervision should be supervised. ACS and

the Contractor acknowledge that these decisions are sometimes made by the Family Court.

18

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 25 of 123

g. Visitation and the Visiting Plan

i.

Visitation between a Foster Child and his/her birth

parents/caretakers shall not be suspended or limited in a punitive manner solely due to the birth

parents'/caretakers' lack of compliance with the outlined services developed by the Contractor,

unless such noncompliance is directly related to the birth parents'/caretakers' ability to keep their

child/youth safe. Additionally, the Contractor shall not prohibit visitation as a form of discipline

or punishment for the Foster Child.

ii. When reunification is the permanency goal, and unless the Contractor can justify and/or document reasons to the contrary, visitation frequency and length shall increase over time, with the level of any supervision deemed necessary decreasing over time as consistent with the well-being and safety of the Foster Child. The Contractor shall ensure that a Foster Child with a goal of reunification have visitation with his/her birth/caretaker family at least once a week, except for infants, which shall have visitation with their birth/caretaker family at least twice a week. Whenever reunification is the permanency goal for a Foster Child, that Foster Child's visitation plan shall evolve from one ( 1 ) visit to two (2) visits per week to more frequent visits of greater length, to overnight and weekend visits, leading to trial and then final discharge.

111. The Contractor shall evaluate each Foster Child's visitation plan at least on a quarterly basis. During supervised visits, the Contractor shall observe and assess birth parent/caretaker-Foster Child interactions to understand the birth parents'/caretakers' progress in modifying their own behavior so that birth parents/caretakers can eventually care for the Foster Child safely. For unsupervised visits, the Contractor shall discuss how the visit went with the birth parents/caretakers and Foster Child separately, and with any other adult who was a part ofthe visit in efforts to understand and assess birth parents'/caretakers' capacity to care safely for the Foster Child. If a Foster Child's visitation plan has not progressed between quarterly reviews, the Contractor shall document the reasons the visitation plan has not progressed clearly in the case record. At a minimum, the Contractor shall review each Foster Child's visitation plan and level of supervision at all FTC's, service plan reviews, dispositional and permanency hearings, and at any other court dates. The Contractor and ACS acknowledge that court orders pertaining to visitation can only be modified in court.

iv. When considering a change in visiting plan, the Contractor shall have a caseworker present at all or part of a visit to assess case circumstances and progress, in order to ensure that the proposed change in the visitation plan is appropriate. Except as indicated below, Foster Children shall not be trial or final discharged from foster care without first having experienced successful overnight and weekend visits with the birth parent/caretaker over a period of time. The only exception is for cases where there is a court order for an immediate discharge for a Foster Child, where the Contractor shall comply with the provisions of the court order regardless of whether or not there have been prior overnight and/or weekend visits. At the same time, the Contractor shall remain fully involved in assessing and acting as needed to keep the Foster Child safe unless a court order for an immediate discharge/case closure precludes such ongoing involvement. The Contractor may contact FCLS and recommend

19

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 26 of 123

appealing court ordered discharges with which the Contractor disagrees due to safety or risk concerns.

v. Visits with Birth Parents/Caretakers Who are Incarcerated: The Contractor acknowledges that birth parents/caretakers who are incarcerated retain their parental rights to visits until their rights are terminated or a court has suspended visitation. Upon birth parent/caretaker incarceration, the Contractor shall establish a new visitation plan. When the permanency goal is reunification, the Contractor shall arrange for visits at least once a month between Foster Children and their birth parents/caretakers who are incarcerated within fifty (50) miles of the Foster Child's placement. If a Foster Child's birth parent/caretaker is incarcerated further than fifty (50) miles from the Foster Child's placement, visitation shall be carried out in accordance with the established visiting plan. When the whereabouts of a birth parent/caretaker are unknown, the Contractor in accordance with ACS Policies shall inquire as to whether the birth parent/caretaker may have been arrested and is incarcerated.

h. Visiting Initiatives: The Contractor shall work with the Community Partnership in the community, if any, to locate visitation hosts for Foster Children and their families and additional community venues where visitations can be hosted.

C. Engagement and Assessment: Engagement and assessment are core responsibilities of the Contractor. The Contractor shall engage Foster Children, birth parents/caretakers, discharge resources, and foster parents on a regular basis throughout the permanency planning process. The Contractor shall document the Contractor's engagement and assessment efforts in each Foster Child's case record. The Contractor shall use engagement and assessment information obtained on behalf of each Foster Child to inform and enhance case planning, service delivery and service coordination for each Foster Child. Such information shall be applied and incorporated in appropriate situations, settings, meetings and appointments, including but not limited to FTCs. In addition to the assessment requirements set forth below, the Contractor shall initiate conversations with appropriate individuals, including Contractor' s staff, service providers, family members and foster parents, about the needs of each Foster Child. Furthermore, the Contractor shall assist Foster Children ten (10) and older to articulate their own needs.

1 . Birth Parent/Caretaker Engagement

a.

Placement Transition Meeting: In accordance with ACS Policies,

the Contractor shall schedule and facilitate an initial meeting with the birth parents/caretakers

("Placement Transition Meeting") within two (2) business days of each Foster Child's placement

for the purpose of educating birthparents/caretakers about their child's placement and educating

them about family foster care (see also Section 2.08(B)(3)(d) of this Part II entitled "Onset of

Visiting"). The Contractor shall assign a staffmember to each Foster Child's birth

parent/caretaker for the initial meeting.

b.

The Contractor shall ensure that birth parents/caretakers are part of

the Foster Child's programming while in family foster care with birth parents/caretakers being

engaged throughout the Foster Child's planning process.

20

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 27 of 123

c.

The Contractor shall ensure that birth parents/caretakers are

engaged, appraised and involved with every aspect of the Foster Child' s life, including but not

limited to decisions regarding the service plan, education, medical issues, development and

overall wellbeing. When possible, the Contractor shall take measures to facilitate the attendance

of birth parents/caretakers at occurrences such as school conferences and medical appointments,

and shall update birth parents/caretakers on the outcome of such events when they are unable to

attend.

2.

Safety and Risk Assessments: The Contractor shall conduct regular safety

and risk assessments for each Foster Child and any other children living in a Foster Home. The

initial safety and risk assessment shall occur during the initial visit made within two (2) business

days of placing a Foster Child in a Foster Home. The Contractor shall also conduct safety and

risk assessments with regard to the factors that led to each Foster Child's placement into foster

care. The Contractor shall conduct all safety and risk assessments in accordance with the Law,

ACS Policies, and OCFS guidelines.

3.

Permanency Assessments: During the initial visit to a Foster Home,

which is required to be conducted within two (2) business days of a Foster Child's placement,

the Contractor shall begin assessing each Foster Child's permanency options, with such

assessments continuing throughout the duration of each Foster Child's placement. The

Contractor shall assess the permanency needs of each Foster Child, develop a permanency plan,

and work to reach established permanency goals as soon as possible. The Contractor shall

conduct all permanency assessments in compliance with the Law, ACS Polices and OCFS

guidelines.

4. Initial Assessment/Evaluation: The Contractor shall complete an initial comprehensive assessment/evaluation for each Foster Child within thirty (30) days ofplacement. The initial comprehensive assessment/evaluation shall incorporate the input of clinical and social work experts and practitioners as appropriate to the needs of each Foster Child, including but not limited to a pediatric/adolescent medicine specialist, a developmental specialist, psychiatrist, psychologist, social workers, and educational, recreational, and vocational specialists. The Contractor shall ensure that the comprehensive assessment/evaluation integrates the results of any assessments done prior to the Foster Child's referral to foster care, assessments done since the Foster Child's placement and an assessment for past trauma (including incest and other sexual abuse) and presenting trauma symptoms.

5. Additional Foster Child Assessments: The Contractor shall conduct the following screenings/evaluations/assessments within thirty (30) days of each Foster Child's placement into foster care, in accordance with this Agreement and ACS Policies:

a.

Medical health and developmental screenings (Section 2 . 1 5 (C) of

this Part II entitled "Health Services");

b. Mental health screenings, including chemical dependency/use

screening for Foster Children age ten ( 1 0) years and older (Section 2. 1 S(B) of this Part II entitled

"Mental Health Services");

21

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 28 of 123

c. Domestic Violence Screening; and d. Educational assessment.

D. Services Related to Abuse and Neglect

1.

The Contractor shall ensure that Contractor's staff are trained in and carry

out their responsibilities to report alleged child abuse or maltreatment in accordance with the Law.

2. When an allegation of abuse or neglect is accepted by the SCR, the Contractor shall cooperate in any steps deemed necessary by ACS to ensure the safety ofthe Foster Child, the Foster Child's siblings, or other children/youth in care. Where necessary, ACS shall, in cooperation with the Contractor, establish a plan for responding to the alleged abuse or neglect, and the Contractor shall caryr out such plan.

Section 2.09 Family Team Conference Model and Child Safety Conferences

A. Family Team Conference Model: The Contractor shall utilize the FTC model as a fundamental approach to case planning. The FTC model is designed to engage families and community members in critical child welfare decisions related to safety, risk, well-being, and service planning. Decisions are made jointly and service plans are developed by the family, the social supports, community supports and service providers. The FTC model shall serve as the main tool for encouraging and supporting decision making for each case as well as a central mechanism for organizing and facilitating the Contractor's work with Foster Children and families, while focusing on safety and permanency. The Contractor shall partner with ACS in the FTC model. The Contractor' s foster care program shall incorporate the principles and guidelines of the FTC model and ensure that FTCs promote practices that reflect ACS ' core principles, thus enhancing children's safety and well-being. The Contractor shall conduct and/or participate in all FTC in accordance with ACS Policies, including the Foster Care Quality and Assurance Standards.

B. The Contractor shall conduct and/or participate in conferences as required by and in accordance with ACS Policies.

C. Other Types of Required Conferences

1 . Parent to Parent Meetings: In accordance with ACS Policies, the Contractor shall facilitate a parent-to-parent meeting between the birth parents/caretakers and foster parents to occur immediately following the Placement Transition Meeting.

2. Initial Child Safety Conferences: Initial CSCs are held through the ACS Division of Child Protection for the purpose of making placement decisions, and are generally held after an emergency removal, because ACS Child Protective Services is considering a removal, or when some other legal intervention is deemed necessary to keep a Foster Child safe. All ofthe people who have an impact and/or can contribute to the safety of a Foster Child are gathered to meet and determine the most appropriate intervention for a Foster Child who is determined to be at risk and/or in imminent danger. When the Contractor already has a previous

22

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 29 of 123

relationship with a family involved in an initial CSC, the Contractor shall provide all information pertaining to the history of the family as it relates to ACS and the Contractor, making such information accessible for the initial CSC.

3. Follow-up Child Safety Conference: The follow-up CSC is a collaborative process through which families, their support system, various ACS staff, caseworkers, foster parents, service providers and other involved community partners meet to review the initial safety plan that developed at the initial CSC, the appropriateness of the Foster Child's placement, and to define a more comprehensive service plan for the family and permanency plan for the Foster Child. The Contractor shall attend all follow-up CSCs, notify foster parents about any scheduled follow-up CSC ' s, and educate foster parents about their role in the CSC. The Contractor shall be available to meet with ACS staffprior to follow-CSCs for purposes of preparation.

Section 2.10 Program Services

A. Coordination and Delivery of Services

1.

Service Planning: The Contractor shall implement or arrange for the six

(6) permissible permanency plans pursuant to the Law, which in order of consideration are:

a.

Returning the Foster Child to their birth parent/caretaker;

b. Placement for adoption with the filing of a petition to terminate

parental rights;

c. Referral for legal guardianship;

d. Permanent placement with a fit and willing relative;

e. APLA - which can only be selected in the event there is a

compelling reason why none ofthe other possible permanency plans is in the Foster Child's best

interests; or

f.

Adult Residential Care.

2. Service Plan Reviews: The Contractor shall conduct service plan reviews for each Foster Child in accordance with the Law including 18 NYCRR 428.9 and 18 NYCRR 430. 1 2, or any successor or amended regulation.

3 . Family Assessment and Service Plan: The Contractor shall create and maintain written service plans for each Foster Child, which shall be documented in the CNNX system. The Contractor shall create service plans in conjunction with birth parents/caretakers, Foster Children, foster parents and others in accordance with the Law including 18 NYCRR Part 428 or any successor or amended regulation. The Contractor shall design service plans utilizing the FTC model, and shall specify the steps to be taken by each participant of the FTC, timeframes for accomplishment of goals, and concrete actions to monitor the progress of each Foster Child and their birth/caretaker families.

4.

Permanency Planning: The Contractor shall work with appropriate

individuals in each Foster Child's life to develop a plan to successfully discharge the Foster

23

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 30 of 123
Child with the preferred goal being reunification. The Contractor shall conduct all such permanency planning efforts in accordance with the provisions of the Law. For Foster Children that have not been reunified after fifteen ( 1 5) months in foster care, the Contractor shall commence a TPR proceeding, unless there is a compelling reason that indicates filing a TPR proceeding is not in the Foster Child's best interests.
5. Concurrent Planning: Unless determined to be inappropriate in a particular case, the Contractor shall engage in concurrent planning upon intake of each Foster Child for adoption or another custodial arrangement in addition to facilitating the formal service goal of reunification. The Contractor shall carry out such efforts to expedite alternate permanency goals in the event that reunification with birth parents/caretakers is ultimately determined not to be the appropriate plan and the circumstances result in the termination of the birth parent's/caretaker' s parental rights.
6. Planning for Teens: The Contractor shall ensure that older Foster Children are given the opportunity and encouraged to be active participants in their own permanency plans. The goal of APLA shall only be used when there is a compelling reason why none ofthe other permanency plans are in the Foster Child's best interest and shall be used with a concurrent family-based plan. Furthermore, the goal of APLA can only be assigned after an FTC. The Contractor acknowledges that there is no age limit for adoption, which shall remain a viable option for adolescents and young adults. The Contractor shall inform all youth that are eighteen (18) years old and older that they can consent to their own adoption without a TPR. The Contractor shall provide support to and explore reasons and concerns offered by adolescents that are ambivalent about adoption or indicate that they do not wish to be adopted.
B. Casework Contacts
1 . Foster Children, Birth Parents/Caretakers and Foster Parents: The Contractor shall conduct casework contacts with Foster Children, birth parents/caretakers or relatives, and foster parents in accordance with the Law including 18 NYCRR 441 .2 1 , 18 NYCRR 423.4 and 18 NYCRR 443.4 or any successor or amended regulations.
2. Discharge Resource: The Contractor shall use casework contacts as a forum for discussing and reviewing all changes of identified discharge resources with Foster Children and their birth parents/caretakers and foster and adoptive parents, if applicable.
Section 2.11 Transfer of the Foster Child
A. Transfer within the Contractor' s Care: It may be necessary in order to meet the needs of a Foster Child to transfer the case within the Contractor' s family foster care program. Transfers within the Contractor' s care shall be made in accordance with ACS Policies and this Agreement.
24

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 31 of 123
C*ҩ #(­ҩWҩҩ ҩ(
eҩ3ҩ
J V ҩ ă(ҩҩ
3ҩҩҩҩҩ ҩҩҩ(ҩҩŦ ҩҩ(­ҩ  ҩ
(ҩҩ( ҩҩ
0ҩ*ҩ #(­ҩҩ( ҩҩ
(ҩҩ (ҩҩҩҩ (

(
ҩ ҩҩ)
ҩ(ҩ ҩ-¢ҩ
H[ҩ  ҩ(ҩҩ ҩҩ(­ҩҩ! ҩҩ
(ҩ&ҩ ҩ (
ҩ (ҩҩ (ҩ ҩҩ ¶ҩ ( ҩ
(ҩҩҩҩ(&ҩ!ҩ (ҩ ( ҩ
&ҩ 
ҩ ҩҩ ¶ҩ
(ҩ(&ҩ3ҩfҩ(&ҩ!ҩ (ҩ
 ҩ(ҩҩ  (ҩ ҩ ҩҩ
(ҩҩҩ ҩ ҩҩ ҩ (ҩҩ(­*ҩ # ҩ (
ҩ (ҩҩ(ҩ
 (ҩ ( ҩfg(ҩ(ҩ(ҩ
(ҩ(ҩҩ ҩҩ ҩ
(ҩҩ ҩ.rҩ7 J u4ҩ(ҩҩ ҩ!­*ҩ
R « ҩ :ҩ ҩ
(ҩҩ(ҩ!ҩ!­ҩ (ҩ ҩҩ ҩҩ( ҩҩ
3ҩ &ҩ ҩ(
ҩ (ҩ(ҩ ҩҩ ҩҩ(
(ҩҩ ҩ(ҩҩ ҩ9ҩ (ҩ  ҩҩ ҩҩ ҩ(ҩ(ҩ!ҩ
((
ҩҩ (ҩҩ ҩ!ҩ
&ҩ
ҩ(ҩ 
ҩ ҩ ҩҩ ҩ(ҩ ҩ(ҩҩ(­&ҩ9(ҩҩҩ ¶ҩ ­ҩ(ҩ ҩҩ(ҩ(ҩ
ҩҩ ҩ#ҩ(ҩҩҩ ҩҩ ҩҩ ҩҩ 5(ҩ3ҩ(
ҩҩҩ_ҩҩҩ(­Vҩ
X*ҩ (ҩ!ҩҩҩҩ ҩ ҩ0ҩ (­ҩҩ(ҩ
(ҩ (ҩ(­ҩҩ ҩ(ҩ
(ҩҩҩҩ(ҩҩ ҩ (
ҩҩ(

!
ҩ ҩҩ)
*ҩ
u*ҩ :ҩ ҩ(
ҩ((ҩ
(ҩ!ҩҩ(ҩҩ ҩ(­°ҩҩ ҩ ҩ(
eҩ
(&ҩ ҩ(
ҩ (ҩҩҩҩҩ(ҩ (&ҩ(ҩ (ҩ
~Ñҩ(
ҩҩ(ҩҩO Vҩ # ҩ(
ҩ (ҩҩҩҩ
ҩ  ҩҩ )&ҩҩ ҩҩ)ҩҩ&ҩ ҩҩ.ҩ7Xҩ u4ҩ(ҩҩ(­*ҩ
Ă&Ă * ĂvĂ ĂĂ3Ă
*ҩ :ҩ(

(
ҩ ҩҩ)
&ҩ(ҩ#ҩҩҩ ҩҩҩ ҩѴ(ҩҩ(ҩ ҩ ҩĲҩ(ҩҩ_&ҩ9
ҩ ҩ ҩ ( ҩҩ(­ҩҩ ҩҩ ҩ8ҩ  (ҩ ҩҩ ҩҩҩ(ҩĲҩ ҩҩ_*ҩ :ҩ(ҩ
ҩҩ(ҩ(ҩ ҩ #ҩҩ
ҩ ҩ ҩ(&ҩ ҩ(
ҩ (ҩ
ҩ ҩ(ҩҩ)
ҩ(ҩ 
 ҩ
(Vҩ
C*ҩ :ҩ ҩҩ ҩҩ ҩҩҩҩ(ҩĲҩ ҩҩ_ҩ ҩҩ ( ҩҩ(­ҩ&ҩ ҩт(
ҩ (ҩ

ҩ!ҩ#ҩҩ(

(
ҩ ҩҩ )
Lҩ
Huҩ

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 32 of 123

Section 2.13 Case Closing Criteria and Procedures

A. Discharge from Foster Care

1 . In accordance with ACS Policies, an FTC must be held before the Contractor can discharge a Foster Child from foster care. Before a Foster Child can be reunified with their birth/caretaker family, the Contractor shall first determine whether the birth parent(s)/caretaker(s) will be able to provide a safe and nurturing home for the Foster Child. The Contractor shall link birth families/caretakers with community-based services, such as after school programs, child care, support groups, and in-home supports.

2. Trial Discharge

a. i.

During the trial discharge period, the Contractor shall

monitor the home to assess the birth/caretaker family's interactions with the Foster Child;

continue conversations with key service providers regarding the ongoing ability of the birth

parents/caretakers to care safely for their child; and shall be responsible for returning the

child/youth back into foster care if the child/youth cannot safely remain with his/her birth

parents/caretakers. The Contractor shall provide continued casework contacts and home

monitoring during trial discharge in accordance with ACS Policies. The Contractor shall provide

a minimum of one (1) face-to-face casework contact and one (1) home monitoring visit per

month during this period. The Contractor shall provide additional casework contacts as

necessary in the event that more than one Foster Child is returning home; one or more Foster

Children has special needs; one or more Foster Children is under the age of six (6) years old; one

(1) or more Foster Children had previously been returned home and then re-entered foster care

after a prior trial or final discharge; or birth parent(s)/caretaker(s)need advocacy and assistance

in securing community-based services for themselves and/or their children.

ii. For trial discharges where Foster Children are reunified with a birth parent/caretaker or relative in cases where the Family Court has made a finding of abuse/maltreatment, the Contractor must ensure that an enhanced level of casework contact and/or monitoring is scheduled during the trial discharge period for a minimum of six (6) months. Enhanced monitoring shall include conferences with school or day care personnel, with medical providers, with other service providers, and family members and supporters.

b. In the event a Foster Child that has been reunified with his/her birth/caretaker family can no longer remain safely in the home, the Contractor shall make efforts to place the Foster Child with the foster parent that cared for the Foster Child prior to discharge when possible and appropriate.

B. Discharge to Adoption

1. Once a decision has been made to change a Foster Child' s goal to adoption, the Contractor shall facilitate a conference with the Foster Child's foster parent concerning their desire to adopt the Foster Child. In the event the foster parent does not wish to

26

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 33 of 123
adopt, or ifthe Foster Child is not in a Foster Home setting, prior to freeing the Foster Child, the Contractor shall provide or arrange for recruiting efforts in accordance with ACS Policies.
2. When a Foster Child is to be discharged to adoption, the Contractor shall facilitate the transition process of the Foster Child into the adoptive family' s home with efforts that shall include visits to the home, and regular monitoring of the placement. Prior to discharging a Foster Child, the Contractor shall ensure that both the Foster Child and adoptive family have the support they need to remain together as an intact family, including physical and mental health services, support groups, chemical dependency/use education and prevention, educational advocacy and assistance and other services. When appropriate, the Contractor shall also help families to engage with community-based programs.
C. Discharge to Another Planned Living Arrangement: When planning the discharge of a Foster Child to APLA, the Contractor shall provide the following:
1 . The Foster Child has been connected to a caring adult who has made a commitment to the Foster Child emotional well-being beyond the age of twenty-one (2 1 ), including a demonstrated willingness to provide a place to live;
2. The Foster Child has safe and stable housing;
3 . The Foster Child is in possession ofneeded government documents such as birth certificates or and social security cards and any immigration issues have been resolved to the extent possible;
4. The Foster Child is in possession of any other necessary documents as required;
5. The Foster Child is enrolled in an educational or vocational program, and/or is employed or has another stable source of income;
6. The Foster Child is referred to community-based medical care, mental health care, chemical dependency/use treatment, aftercare, and other clinical services as needed;
7. The Foster Child has medical benefits coverage, and all paperwork for transitioning to community Medicaid has been submitted; and
8. The Contractor shall provide guidance to young people who will require clinical supports through the application process for supportive housing or other services available through adult social service, health, and mental health systems.
D. Discharge to Adult Residential Care: When discharging a Foster Child to adult residential care, the Contractor shall facilitate the Foster Child's enrollment in Medicaid, Social Security, and other government assistance programs as early as possible and as soon as is appropriate. The Contractor shall:
27

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 34 of 123
1 . Commence planning for discharge to adult residential care at or before the Foster Child's sixteenth ( 1 6th) birthday or as soon as practicable for a Foster Child who enters Foster Care at sixteen ( 1 6) years of age or older;
2. Refer the Foster Child to a facility and/or program that will be able to begin serving him/her upon discharge; and
3. Make best efforts to connect the Foster Child to a caring adult who is willing to make a commitment to the youth's future well-being beyond the age of twenty-one (2 1 ), despite the fact that the youth will not be living in the adult's home.
E. Unplanned Discharges: The Contractor shall document all unplanned discharges, including Foster Children missing from foster care, parental removal of voluntarily placed Foster Children, and court ordered discharges that are effective immediately. In the event of an unplanned discharge, the Contractor shall act to the full extent of its authority to ensure safety of the Foster Child through continued oversight, assessment, prudent decision-making and service planning until the final discharge. Documentation requirements include:
1 . Assessment of circumstances under which Foster Child was discharged;
2. Assessment of Foster Child' s current situation and identification of required services to prevent replacement; and
3 . Diligent efforts to locate a Foster Child that is missing from foster care in accordance with ACS Policies.
Section 2.14 Discharge Planning, Aftercare and Final Discharge
A. Establishing Necessary Aftercare Services: As part of the discharge plan, the Contractor shall ensure that children and their families are connected to services and supports needed to maintain safety and stability and to continue progress made during the foster care placement. The Contractor shall develop and maintain linkage agreements with community based service providers in order to assist families and facilitate a smooth transition for Foster Children that are returning to their community of origin upon discharge. Among the services that should be considered are the OCFS Aftercare Service Programs.
B. Health Care Related Discharge Planning
1 . The Contractor shall ensure that all Foster Children's health care is up-todate and all referrals are followed up prior to discharge, including filing all paperwork for transitioning into community Medicaid. The Contractor shall ensure that health services are available to all Foster Children discharged from placement and help Foster Children obtain medical coverage by assisting with the Medicaid application process or linking Foster Children to low-premium health insurance options. The Contractor shall ensure that health records are up­ to-date and all records are transferred to the discharge resource person and the post-discharge health services provider, as appropriate.
28

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 35 of 123

2. The Contractor shall work with the discharge resource person and/or the Foster Child, as age appropriate, to identify and establish a linkage with the Foster Child 's post­ discharge primary care provider and mental health provider, if applicable.

C. Bridges to Health Waiver Program: For Foster Children that are enrolled in B2H while in care and will continue to receive these services upon discharge, the Contractor shall ensure that the B2H Heath Care Integration Provider is familiar with each Foster Child's discharge plan and working with the discharge resource to ensure an uninterrupted continuation of services. The Contractor shall actively participate in any B2H team meetings related to discharge planning.

D. Final Discharge: The Contractor may not final discharge a Foster Child without Family Court approval.

E. Post-Discharge: The Contractor shall provide post-discharge supervision in accordance with the Law and ACS Policies. The Contractor shall provide post-discharge services for a minimum of three (3) months and a maximum of six (6) months for Foster Children discharged from foster care with extensions provided when necessary and/or appropriate, including youth between the ages of eighteen ( 18) and (2 1) that are discharged to APLA.

Section 2.15 Services for Foster Children

A. Educational Services

1 . Education Plan: The Contractor shall provide for or work in collaboration with an educational provider for the provision of an educational plan for each Foster Child that is based on an assessment of each Foster Child's educational level and complies with the Law, this Agreement and ACS Policies. The Contractor shall work with foster parents, birth/caretaker family members and school personnel to develop and monitor plans for each Foster Child's educational achievement.

2. Educational Liaison: The Contractor shall identify at least one (1) educational liaison with experience in education programming or a related field. The identified staffmember(s) shall in conjunction with other Contractor staff as appropriate:

a.

Be able to make use of educational data; any educational

performance data provided by ACS throughout the year; and educational information obtained

by the Contractor' s caseworkers in support of best practice and case planning;

b. Work with caseworkers, foster parents and birth parents/caretakers to address any educational concerns; build and maintain collaborative relationships with the schools; provide advocacy on behalf of Foster Children; negotiate with appropriate school staff to ensure the implementation ofrecommended and appropriate educational services; and monitor the Foster Child's performance and experiences in school;

29

• Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 36 of 123

c.

Make contact with each Foster Child's school within a short time

of the Foster Child's entering foster care to track areas in need of improvement and deveiop

educational plans; and

d. Give particular focus to helping Foster Children achieve the best possible educational outcome, including school stability, attendance, access to appropriate assessments and services, and academic progression.

3 . Special Education Planning: The Contractor shall implement special education planning for a Foster Child when necessary.

a.

The Contractor shall obtain copies ofthe Foster Child's IEP and

evaluations conducted by or on behalf of the school, and incorporate the IEP goals into the

Foster Child's overall service plan.

b. The Contractor shall advocate with schools for the provision of necessary educational services; obtain legal assistance from education advocacy programs; and make use of technical assistance from ACS and community resources when necessary'.

4. Communication with Foster Child s School

a. The Contractor' s staff shall meet regularly with school guidance counselors, teachers, and other school staff to determine that each Foster Child is developing at sufficient competency levels in the subjects of reading and mathematics.

b. The Contractor shall ensure that adolescents are receiving appropriate educational services placing them on track to achieve a Regent' s high school diploma, except for situations where this standard is deemed unrealistic by an assessment of the particular Foster Child's capacity. In situations when attainment of a Regent's high school diploma is deemed to be unrealistic, the Contractor's staff shall assist the Foster Child and family in the development of an alternative educational plan to maximize the Foster Child's reading and mathematic competency.

c.

The Contractor is encouraged to secure and/or provide tutorial

services to every Foster Child whose reading or math scores are two (2) or more grades below

their age-appropriate levels.

d. The Contractor shall engage each birth parent/caretaker as active participants in the Foster Child's education, and work to facilitate the birth parent/caretaker's involvement with the Foster Child's school.

B. Mental Health Services

1 . Screenings: For each Foster Child, the Contractor shall complete age appropriate mental health screenings within thirty (30) days from the date of placement. In

30

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 37 of 123

addition to the initial mental health screenings, the Contractor shall conduct annual mental health screenings for each Foster Child. The mental health screening shall include a substance abuse screening in accordance with ACS Policies and Section 2 . 1 5(D) ofthis Part II entitled "Substance Abuse Services."

2. Treatment

a.

If a Foster Child's psychological and/or psychiatric evaluation

indicates a need for further mental health or behavioral health services, the Contractor shall

arrange for follow-up treatment.

b. When deemed appropriate by a qualified mental health professional, the Contractor shall ensure that a mental health or behavioral health service treatment plan is developed, a copy of which shall be included in the case record of the Foster Child.

c. The Contractor shall ensure that mental health services are delivered by qualified licensed mental health providers, and that services are documented in the Uniform Case Record maintained by the Contractor.

3 . The Contractor shall develop linkages with mental health support service providers, which can serve the Contractor' s families, and provide birth parents/caretakers and foster parents with basic information about the Foster Child and his/her mental health. The Contractor shall make best efforts to ensure that birth parents/caretakers and foster parents are meaningfully engaged in the Foster Child's mental health treatment. The Contractor shall develop linkages with New York State Office of Mental Health home and community based services waiver programs for Foster Children with serious emotional disturbances.

C. Health Services

1 . Continuum of Care: The Contractor shall ensure that each Foster Child's medical needs are met, and that Foster Children have access to a full range of specialty, sub­ specialty, ancillary, dental and hospital services. The Contractor shall ensure that all medical services are provided directly or through linkage agreements with hospitals and specialty networks, and/or through primary care physicians who are affiliated and/or have admitting privileges with a hospital network. The Contractor shall ensure that both the Contractor's services and those provided through external sources shall be neighborhood-based for the Foster Children receiving medical treatment. The Contractor shall monitor and coordinate all healthcare services.

2. Medical Services: The Contractor shall coordinate all primary and subspecialty care for Foster Children with providers that:

a.

Offer health care services that are delivered or directed by a

licensed medical professional;

31

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 38 of 123

b. Can explain diagnoses and treatment modalities;

c. Are accessible to each Foster Child;

d. young adulthood; and

Offer continuity of care from infancy through adolescence and

e.

Maintain a private and accessible centralized system in which a

comprehensive record ofthe Foster Child's health information is stored and maintained.

3 . Initial and Comprehensive Health and Development Screenings

a. The Contractor shall ensure that each Foster Child receives an immediate health screening upon placement. For each Foster Child, the Contractor shall complete comprehensive health and development screenings within thirty (30) days from the date of placement.

b. The comprehensive health and developmental screenings shall include an age appropriate vision, hearing and dentals assessment for each Foster Child. The Contractor shall ensure that the comprehensive health and development screening is performed by each Foster Child's identified primary care provider, that the immunization/vaccination status of each Foster Child is reviewed by appropriate healthcare professionals, and that the Foster Child's immunization/vaccination status is up-to-date.

c. The Contractor shall implement a protocol to ensure that the ACS Medical Triage Packet for each Foster Child entering placement is reviewed by the Contractor' s health services staff and incorporated into the Foster Child's medical records. The Contractor and its staff shall follow up and carry out recommendations contained in the ACS Medical Triage Packet.

4. Referral to Bridges to Health Waiver Program: The Contractor shall refer eligible Foster Children who are emotionally disturbed, developmentally disabled or medically fragile to the B2H program.

5. Referral to Specialized Services: When indicated to be appropriate by a medical or mental health assessment of a Foster Child, the Contractor shall facilitate the Foster Child's enrollment/referral to an appropriate community based clinical service provider. In the event the Contractor does not provide the specialized health or mental health services required by a Foster Child, the Contractor shall develop formal referral linkages with organizations that can provide such services. The Contractor shall also link with community-based chemical dependence/abuse programs to address the full range and family chemical dependency/use prevention, counseling, education, treatment and aftercare needs. The Contractor shall ensure that all Foster Children and birth/caretaker family members with chemical dependency/use disorders shall be referred to an OASAS-licensed treatment program.

32

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 39 of 123

6. Emergency Medical Services: The Contractor shall arrange for on-call availability of a primary care physician or appropriate coverage for any urgent medical and medical and mental health consultations sought by a caseworker or foster parent regarding a Foster Child on a twenty-four (24) hour a day, seven (7) days a week basis. The Contractor shall implement a protocol to ensure that all emergency care information is shared with foster care staff, social workers, foster parents, and all relevant medical and health care providers in a timely fashion.

7. Medication Management: The Contractor shall implement a medication management plan to serve as a guide for health services providers and a Foster Child' s foster parent. The Contractor shall implement policies/procedures and provide adequate training to staff, foster parents, and birth parents/caretakers to assure proper and safe medication administration. The Contractor shall implement a specialized medication management plan for Foster Children requiring medication for chronic conditions, to ensure appropriate monitoring of dosage, dispensing, and duration. The Contractor shall ensure that all medication shall be kept in well-lit, locked storage areas that provide sufficient privacy for uninterrupted handling of medication. The Contractor shall also ensure that individual Foster Homes store any necessary medication in locked cabinets or labeled containers that are out ofreach of Foster Children.

8. Consent: In accordance with the Law and ACS Policies including the Administrationfor Children 's Services Procedure No. 1 02/Bulletin 99-1 "Guidelinesfor Providing Medical Consentsfor Children in Foster Care " as amended, the Contractor must first seek informed consent for medication provision to Foster Children from the birth parent(s)/caretaker(s), unless the birthparent(s)/caretaker(s) rights have been terminated or surrendered.

9. Psychotropic Medication

a.

In addition to the elements of informed consent indicated above,

informed consent prior to the administration ofpsychotropic medications shall include the

following information from the prescribing psychiatrist: reasons for prescribing the medication;

name and dosage ofmedication and the date prescribed; previous non-pharmacological

interventions, and expected results ofthe medication and potential side effects. The Contractor

shall ensure that psychiatrists prescribing psychotropic medication communicate regularly with

any other clinicians providing mental health services to the Foster Child.

b. The Contractor shall ensure that every Foster Child shall be cleared medically with appropriate indicated lab tests performed in the twelve (12) week period preceding the administration of psychotropic medication. Thereafter, the prescribing physician or an equivalent ·shall observe all Foster Children receiving psychotropic medication at least once a month and document the observations in the case record.

c.

The Contractor shall ensure that all Foster Children on

psychotropic medication shall be given a physical examination and appropriate indicated lab

tests at a minimum of every six (6) months or based on the frequency required by State health

standards.

33

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 40 of 123
d. The Contractor shall maintain an up-to-date list of all current medications, a current treatment plan, and copies of medication consent forms for each Foster Child receiving such treatment. The Contractor shall ensure that the psychiatrist for a Foster Child receiving psychotropic medication(s) shall assume responsibility for medical aspects of mental health care provided by the Contractor in all phases of intervention. The Contractor shall ensure that all Foster Children prescribed psychotropic medication are required to receive concurrent non-medical mental health treatment, unless indicated by the Foster Child' s condition or treatment needs.
D. Substance Abuse Services: The Contractor shall ensure that the mental health screening of each Foster Child includes questions and/or instruments related to the Foster Child ' s history of use or abuse of alcohol and/or other drugs. Such screenings shall be conducted in accordance with the Law. The Contractor shall ensure that Foster Children' s experimenting with substances receive alcohol and other drug education and counseling, which shall be provided either on site or by referral to a community based OASAS licensed program. In the event there has been chemical dependency/use in a Foster Child's birth/caretaker family, the Foster Child shall be referred to a treatment program unless otherwise indicated. The Contractor shall offer services or a referral for services to birth parents/caretakers that require chemical dependence/use treatment.
E. Enrichment/Recreational Activities: The Contractor shall ensure that Foster Children are provided recreational opportunities pursuant to the Law including 18 NYCRR 442.20 or any successor or amended regulation.
F. Financial Literacy and Employment Training: The Contractor shall provide Foster Children with financial literacy and employment training where appropriate and in accordance with the Foster Child's age and development.
G. Legal Services: The Contractqr shall submit timely and complete permanency reports to FCLS; attend Family Court proceedings; and comply with all Court orders. The Contractor shall ensure that staff with substantive knowledge of any given case situation appear in court when determined to be necessary by ACS. The Contractor shall provide FCLS attorneys with updated information including Foster Child status, location, assigned caseworker and supervisor. The Contractor shall maintain contact with FCLS attorneys to review any important developments, and communicate with lawyers for Foster Children as necessary, pursuant to ACS Policies. The Contractor and its staff must cooperate with FCLS attorneys during preparation for trial and court appearances. The Contractor shall retain legal counsel for TPRs as well as other situations where representation is needed at no additional costs to ACS.
H. Sexual Health Education and Services: The Contractor shall ensure that all Foster Children aged twelve (12) years old and over, and younger Foster Children who are sexually active, receive comprehensive information about family planning and sexual health issues, and have access to the full range of services including contraception, options counseling, and education and treatment related to sexually transmitted diseases and HIV/AIDS. The Contractor
34

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 41 of 123

shall also adhere to ACS Policies regarding comprehensive sexual health information and services for Foster Children.

I.

Transportation: The Contractor shall ensure that transportation services are

readily available to transport Foster Children to the hospital, medical and mental health

appointments and other sub specialty providers as necessary.

J.

Preparing Youth for Adulthood (PYA): The Contractor shall prepare each Foster

Child that is fourteen (14) years of age and older, regardless of their permanency plan, for

adulthood through classes, extra-curricular activities, individual instruction and other methods in

accordance with the Law and ACS Policies. The Contractor shall make efforts ensure that Foster

Children will: establish permanent connections with adults, always reside in stable living

conditions, are afforded opportunities to advance their education and personal development, are

encouraged to take increasing responsibility for their work and life decisions, have their

individual needs met, and will receive ongoing support after aging out of foster care.

K. Housing Services: On behalf of Foster Children returning to birth parents/caretakers or transitioning to APLA or out of foster care, the Contractor and the Contractor' s staff shall provide the following support services:

1 . Understanding the community characteristics, resources, and needs, and successfully negotiating services for Foster Children within a neighborhood-based environment;

2. Helping Foster Children find adequate and affordable housing upon discharge from foster care;

3.

Ensuring that all Foster Children have an appropriate and stable living

arrangement available prior to discharge;

4. Develop relationships with existing housing providers and, whenever possible, develop its own housing resources; and

5. Finding stable housing - stable housing is defined as housing in which there is a reasonable expectation that the residence will remain accessible for the first twelve (12) months after discharge.

L. Family Planning Services: The Contractor shall notify all Foster Children twelve (12) years and older and Foster Children younger than twelve ( 1 2) years old who are known to be sexually active ofthe availability of family planning services within thirty (30) days after placement and every six (6) months thereafter, and provide them with such services upon request. The Contractor shall ensure that such notification is made both in writing and verbally and must be recorded in each Foster Child's medical record and in CNNX as part of the Foster Child's health history. The Contractor shall ensure that such notice complies with the Law including 18 NYCRR Part 463.2 or any successor or amended regulation. The notice must inform the Foster Child of the Foster Child's rights to confidential sexual and reproductive health

35

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 42 of 123

services and social, educational, health, and medical family planning services and shall not convey religious beliefs regarding family planning.

Section 2.16 Support Services for Birth Parents/Caretakers

A. Various Supop rt Services: The Contractor shall facilitate supportive services for birth parents/caretakers, including but not limited to day care, parent training, support groups, advocacy, legal assistance, housing assistance and/or financial assistance where indicated through active referral and case planning by a caseworker The Contractor shall provide birth parents/caretakers and other significant family members of the Foster Child with referrals and access to services to meet identified needs related to their medical and mental health, chemical dependency, domestic violence, and educational and/or vocational services in efforts to accomplish FASP goals. The Contractor shall support additional needs and presenting circumstances ofbirth parents/caretakers and extended family members to achieve successful reunification, including, but are not limited to:

1 . Assistance with job training and finding employment;

2. Cultural and linguistic barriers to services;

3 . Connections to community supports and services;

4. Immigration status services;

5. Education and information regarding the impact ofincarceration on

permanency plans;

6.

Information regarding legal status pertaining to family court proceedings,

including PINS petitions; and

7.

Support for responding to children's/youth's sexual orientation and/or

gender identity/gender expression.

B. Parenting Skills Education: The Contractor shall provide birth parents/caretakers with parenting skills training that is culturally sensitive and delivered in a manner that is responsive to the needs of the specific parent. The Contractor shall provide individualized parenting skills training in cases where group participation is not appropriate. The Contractor shall provide parenting skills training and psycho-education to birth parents/caretakers to address the issues that led to their child's/youth's placement in foster care, including the implementation and operation of an internal system to provide parent education, and/or identify external resources where the Contractor can refer birth parents/caretakers.

C. Domestic Violence Services: The Contractor shall conduct timely domestic violence assessments for each Foster Child and his/her family in accordance with ACS Policies. The Contractor shall refer all non-abusive birth parents/caretakers to appropriate services when appropriate, including domestic violence programs. When appropriate, the Contractor shall make referrals law enforcement agencies or the courts for legal intervention. The Contractor shall engage birth parent's/caretakers that are survivors of domestic violence in developing a strategy for increasing their safety and preparing in advance for the possibility of future violence. The Contractor shall take into account a family's history of domestic violence when planning or making recommendations about visitation between birth parents/caretakers and Foster Children, to ensure that such arrangements do not endanger the Foster Child or the non-abusive birth

36

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 43 of 123
parent/caretaker. The Contractor shall ensure that any Foster Child's visits with an abusive birth parent/caretaker shall be planned with the non-abusive birth parent/caretaker to minimize risk.
D. Alcohol and Substance Abuse Services: The Contractor shall conduct a risk behavior assessment of each birth parent/caretaker, which shall include the history of use, abuse or dependence of alcohol or other drugs. The Contractor shall make substance abuse/chemical dependency services available for any birth parent/caretaker who abuses alcohol or any other dependency inducing substance, either through the Contractor's own OASAS licensed program, if applicable, or by referral to a community-based OASAS licensed treatment provider. Once the Contractor has referred a parent for treatment, the Contractor shall communicate with the treatment provider about the birth parent's/caretaker's compliance and progress in treatment, and shall make necessary efforts to coordinate the delivery of services, aftercare, and discharge planning to ensure Foster Child safety and a supportive transition for reunification or other appropriate permanency goals.
E. Mental Health Services
1 . The Contractor shall assess birth parents/caretakers to determine the presence of mental health issues, and provide or arrange for any necessary follow-up assessments, diagnoses, testing, psychotherapy, specialized therapies and interventions when appropriate. The Contractor shall refer birth parents/caretakers that require intensive mental health services to programs that are able to provide comprehensive services, including but not limited to mental health case management programs and assertive community treatment teams. The Contractor shall develop linkages with home and community based clinical service providers, mental health case management programs for adults.
2 . The Contractor shall ensure that birth parents/caretakers receive education about parental mental health and its impact on children/youth.
3 . The Contractor shall obtain appropriate releases for confidential and protected information, and maintain frequent communication with mental health providers in order to effectively coordinate services to families receiving them.
F. Housing and Housing Subsidy Services: The Contractor shall assess the need for and arrange for individuals and families to improve housing conditions. Services shall include, helping individuals and families obtain necessary home repairs; identifying and arranging for the correction of sub-standard rental housing conditions or code violations; finding suitable and adequate alternative housing; help in obtaining available and needed assistance; and relief from public agencies that regulate housing, including assistance in obtaining legal services when necessary. The Contractor shall refer mentally ill birth parents/caretakers that need supportive housing, as appropriate, to New York-New York III and/or other supportive programs as appropriate in order to reunite with their Foster Children. Whenever the Contractor determines that a lack of adequate housing is the primary factor preventing the discharge of a Foster Child, the Contractor shall determine ifthe family is otherwise eligible for a housing subsidy, and if so, make a referral to ACS for the provision of a housing subsidy in accordance with the Law.
37

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 44 of 123

G. Birth Parents/Caretakers of Foster Children with Serious Health and Mental Health Needs: The Contractor shall make support services available, directly or by referral, to
foster parents and birth parents/caretakers that are caring for Foster Children with serious health and mental health needs.

H. Health Education: The Contractor shall provide birth parents/caretakers with health education focused on the specific needs of the Foster Child.

I.

Foster Parents as Resources to Birth Parents/Caretakers: When appropriate, the

Contractor shall encourage and provide foster parents with the ability to become actively

involved with a Foster Child's birth/caretaker family before, during and after placement, with

foster parents serving as resources to birth parents/caretakers.

J.

Transportation: The Contractor shall provide birth parents/caretakers with

transportation to office and family visits.

K. Involvement of Birth Parents/Caretakers in the Provision of Foster Care Services: The Contractor shall encourage involvement ofbirth parents/caretakers in the provision of services to their child/youth and document the Contractor's efforts to encourage birth parents/caretakers involvement as well as the actual involvement of the birth parents/caretakers in the provision of services to their child/youth. The Contractor shall ensure that the birth parents/caretakers are trained in applicable special needs curriculum and is involved in the case planning for their child/youth.

ARTICLE 3. LITIGATION CLAIMS INVOLVING FOSTER CHILDREN

Section 3.01 Litigation Claims Involving Foster Children

A. The Contractor shall notify the ACS Office ofthe General Counsel and ACS shall notify the Contractor of all litigation concerning a Foster Child within a reasonable time of acquiring this information and the Contractor shall forthwith provide ACS with all pertinent papers and documentation in advance of any pending court hearings or litigation. The Contractor shall provide its own legal representation when requested to do so by ACS. The Contractor shall, within three (3) business days, notify ACS in writing of the results of such court hearings or litigation.

B. In cases involving a Foster Child who is the subject of litigation, including writs

of habeas corpus, ACS, after consultation with the Contractor, reserves the right to make an

independent evaluation ofthe matter, including, but not limited to review ofthe Contractor's

records and contacts with the Foster Child and/or the birth family/caretakers, foster family and

significant others. The decision of ACS shall be binding on the Contractor in accordance with

Article 4 of this Part II entitled "Responsibility and Authority of ACS and Resolution of Certain

Disputes."

·

38

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 45 of 123
C. In a court proceeding involving a Foster Child, the Contractor may, with the consent of ACS, make such appeals as are provided by Law.
D. The Contractor shall expeditiously pursue appropriate legal action for the appointment of a guardian ad litem to protect the rights of a Foster Child with respect to all monetary benefit claims, including but not limited to tort, contract or inheritance claims. The Contractor, when appropriate, shall arrange for or assist a Foster Child in retaining legal counsel. The Contractor shall forthwith notify ACS of all circumstances necessitating legal representation of the Foster Child in all such instances, including but not limited to matters of a criminal nature or juvenile delinquency.
E. If a Foster Child commits an act in a Foster Home in which he/she is a resident which is a crime, or if committed by an adult would constitute a crime, the Contractor may report such act to the appropriate law enforcement officials. The Contractor shall report such acts in writing to the appropriate ACS personnel prior to taking any affirmative action with respect to such acts or as soon as possible thereafter.
ARTICLE 4. RESPONSIBILITY AND AUTHORITY OF ACS AND RESOLUTION OF CERTAIN DISPUTES
Section 4.01 Responsibility and Authority of ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client
A. It is recognized and agreed by the parties that the Commissioner has the ultimate responsibility for the protection and preservation of the welfare of each child receiving services under this Agreement. It is further recognized and agreed by the parties that the Commissioner has the ultimate authority for making all decisions relative to the welfare of such child and that the management and supervisory staff of ACS carries out such responsibilities on behalf ofthe Commissioner and in accordance with the authority vested in the Commissioner. It is further recognized and agreed that the Contractor's Board of Directors shall have responsibility and control of its day to day affairs and programs.
B. ACS and the Contractor agree that the fundamental purpose ofthis Agreement is to provide the best available services, care and treatment to Foster Children who are entrusted to the Contractor's care, and further to ensure that the health, welfare and fundamental rights of the Foster Children shall be the guiding principle for all decisions which affect their lives. The Contractor agrees to take such steps as may be necessary to ensure that the services, care, treatment and support, that Recipients of Services require, are provided.
C. Resolution of Disputes Between ACS ·and the Contractor: The parties agree to comply with the protocols and procedures set forth in this Section 4.01 (C) in the event of a dispute between the Contractor's staff and ACS's staffrelating to case planning, case practice and service planning, and positions to be taken at any court or administrative hearing. ACS and the Contractor acknowledge the need to address disputes governed by this Section expeditiously, and agree to cooperate with each other in such situations and/or inquiries to the fullest extent possible. Failure of the Contractor to report any dispute or submit an appeal within the time
39

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 46 of 123
frames indicated below shall constitute a waiver of any such dispute.
1 . If after the performance of an internal review of its position, the Contractor's Executive Director disagrees with ACS on a decision relating to case planning, case practice and service planning, and/or a position to be taken at any court or administrative hearing, the Contractor shall present its position and recommendation in writing ("Notice of
Dispute") within five (5) business days of the occurrence ofan event giving rise to the dispute to
the appropriate ACS Assistant/Associate Commissioner for the ACS organizational unit involved. The Notice of Dispute shall include all the facts, evidence, documents, or other basis upon which the Contractor relies in support of its position. The ACS Assistant/Associate Commissioner will make every reasonable and good faith attempt to resolve the dispute after due consideration of the opinion, expertise and professional judgment of the Contractor, and render a written decision within five (5) business days from the date the dispute was referred to him/her. If the ACS Assistant/Associate Commissioner is unavailable to meet or unable to render a decision within such five (5) business days, the time for decision-making may be extended at ACS sole discretion.
2. If the dispute remains unresolved after the decision of the ACS Assistant/Associate Commissioner or undecided after thirty (30) days from the date the Contractor submitted the dispute to ACS, the Contractor, may appeal the decision or non­ decision, as the case may be, by submitting its appeal in writing to the ACS Deputy Commissioner responsible for the ACS organizational unit involved within five (5) business days of (i) the Contractor's receipt of the ACS Assistant/Associate Commissioner's decision or (ii) thirty (30) days from the date the Contractor submitted the dispute to ACS. A copy of Contractor's appeal must be submitted simultaneously to the ACS Assistant/Associate Commissioner to whom the original dispute was referred. The written appeal must contain the following information and documentation (i) a brief statement ofthe substance of the·dispute and the reason(s) the Contractor contends the dispute was wrongly decided by the ACS Assistant/Associate Commissioner; (ii) a copy of the decision of the ACS Assistant/Associate Commissioner, if any, and (iii) a copy of all materials submitted by the Contractor to the ACS Assistant or Associate Commissioner. The ACS Deputy Commissioner will make every reasonable and good faith attempt to resolve the dispute after due consideration of the opinion, expertise and professional judgment of the Contractor, and render a written decision within five (5) business days from the date the dispute was referred to him/her. If the ACS Deputy Commissioner is unavailable to meet or unable to render a decision within five (5) business days, the time for decision-making may be extended at ACS's sole discretion.
3 . I fthe dispute remains unresolved after the decision o fthe ACS Deputy Commissioner or undecided after thirty (30) days from the date the Contractor submitted the dispute to the ACS Deputy Commissioner, the Contractor, may appeal the decision or non­ decision, as the case may be, by submitting its final appeal in writing to the ACS Commissioner within five (5) business days of (i) the Contractor's receipt ofthe ACS Deputy Commissioner's decision or (ii) thirty (30) days from the date the Contractor submitted the dispute to the ACS Deputy Commissioner. The written final appeal must contain the following information and documentation (i) a brief statement of the substance of the dispute and the reason(s) the Contractor contends the dispute was wrongly decided by the ACS Assistant/Associate
40

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 47 of 123
Commissioner and the ACS Deputy Commissioner; (ii) a copy of the decisions ofthe ACS Assistant/Associate Commissioner and ACS Deputy Commissioner, if any, and (iii) a copy of all materials submitted by the Contractor to the ACS Assistant/Associate Commissioner and the ACS Deputy Commissioner. The Commissioner will make every reasonable and good faith attempt to promptly resolve the dispute after due consideration of the opinion, expertise and professional judgment of the Contractor.
4. The decision ofthe Commissioner shall be binding upon all parties.
5. At any stage during the above described procedure, where a decision is made which the Contractor does not wish to present to the next level of supervision such decision shall promptly be carried out by the Contractor to the extent that it is required to do so and to the extent that it is not required to caryr out such decision, the Contractor shall not impede the cariry ng out of such decision.
6. During the pendency ofthe appeal procedure described above, the Contractor shall take no action which may undermine or impede the then current decision of ACS.
ARTICLE 5. PERSONNEL
Section 5.01 Staffing
A. The Contractor shall comply with the provisions contained in this Agreement in regard to its employees, staffing and personnel. Furthermore, the Contractor expressly covenants and agrees that any and all rights and powers conferred upon ACS thereby are intended by the parties to ensure proper and consistent personnel standards and procedures regarding the provision of services set forth in this Agreement, and do not vest in ACS any of the Contractor's rights or obligations in connection with its employees nor to give ACS any direct control over employees of the Contractor, nor to vest in the Contractor or any of its employees any rights as against ACS. The Contractor's personnel shall be employed on the basis of standards established by the Contractor, which have been approved by ACS and appropriate State agencies.
1 . The Contractor shall make every effort to maintain sufficient qualified staff, facilities and equipment, in accordance with the Law and ACS Policies. The Contractor shall provide the services required pursuant to this Agreement and provide written notice to ACS within twenty four (24) hours whenever it is unable to do so.
2. The Contractor shall have the responsibility of recruiting, hiring, training, supervising and retaining appropriate personnel in accordance with Section 2.01 of this Part II entitled "General Requirements." All applicants shall complete employment applications which shall include inquiries relative to the applicant's most recent employers and prior criminal convictions. The use of this information in the applicant's evaluation shall be consistent with Article 23-A of the New York State Correction Law or any successor or amended Law.
B. Subject to the provisions ofthis Agreement, the Contractor through its executive
41

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 48 of 123

staff shall manage its affairs and programs and shall have the responsibility for the day-to-day provision of services to and for each Foster Child in accordance with this Agreement.

Section 5.02 Verification of Credentials, References and Screening Current and Prospective Employees

A. The Contractor shall be responsible for the verification of credentials and references and screening of all current and prospective employees. The Contractor shall comply with all applicable Laws when performing background checks, including providing appropriate notices where required in accordance with New York State General Business Law Sections 380c (b) and 380-g(d). Such screening shall include but not be limited to:

1.

Obtaining current background declarations indicating criminal conviction

records, if any, and conducting a record review through the DCJS for current and prospective

employees who have the potential for direct contact with children;

2. Inquiry to the SCR: The Contractor shall provide written notice to each prospective employee applying for a position in which there is potential for direct contact with children of its intention to make inquiry of the SCR;

3. For prospective employees, written inquiries to at least three (3) of the applicant's most recent prior employers, if applicable. The Contractor shall use its best efforts to obtain a response to such inquiry prior to placing the prospective employee on the payroll; and

4. Fingerprinting all prospective employees who have the potential for direct contact with children in accordance with SSL § 378-a and all other Laws. The fingerprinting processing fee may be paid either by the prospective employee or by the Contractor. In either case, the fee will not be paid or reimbursed by ACS.

B. The Contractor may retain an employee who has the potential for direct contact with children on a probationary basis in accordance with ACS Policies, pending the results of the record review conducted by DCJS and the SCR. For such probationary hires, the Contractor shall keep in confidential personnel files documentation describing supervision and measures taken to ensure the safety of children with whom such staff is working, pending background clearance. The Contractor shall notify ACS of decisions to hire employees on a probationary basis pending the results of a criminal background check.

C. The Contractor shall make employment decisions concerning prospective employees with a criminal record in accordance with the Law. The Contractor will refer to the New York State Correction Law Article # 23-A, §750-§755, when considering applicants with previous criminal convictions. In the event the Contractor hires a candidate with a criminal record, the Contractor shall document the basis for the decision to hire such employee, which shall be signed and approved by the Contractor's executive director. The Contractor shall inform ACS of decisions to hire employees with criminal records.

42

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 49 of 123
Section 5.03 Suspected Abuse or Maltreatment of Children/Youth
A. Ifthe Contractor has reasonable cause to suspect that an employee ofthe Contractor working or providing services in connection with this Agreement has abused, maltreated, neglected, assaulted or endangered the welfare of any child/youth, the Contractor shall, immediately report such belief to the SCR, and take appropriate action to remove the employee from the proximity of all children/youth while the matter is being investigated. The Contractor shall immediately notify ACS of any Contractor reports made to the SCR regarding employees of the Contractor.
B. ACS reserves the right to conduct its own investigation with regard to any employee ofthe Contractor for which the Contractor has filed an SCR report. The Contractor agrees to fully cooperate with any such investigation.
C. 1 . If there is a finding of indicated abuse, maltreatment or neglect by the Contractor's employee, the Contractor shall immediately take action to ensure the permanent removal of the employee from the proximity of all children/youth, and ACS and/or the Contractor may take appropriate legal action or disciplinary action, if necessary, to accomplish such removal.
2. If, notwithstanding the finding of indicated abuse, maltreatment or neglect by the Contractor' s employee in question, the Contractor believes that there are special mitigating circumstances in the matter, the Contractor shall promptly submit a written request to the Commissioner for a review ofthe matter. This request shall contain a complete explanation, including all pertinent documentation, and the actions the Contractor intends to take, in regard to the employee. During the review process the employee shall remain removed from proximity to all children/youth. The Commissioner or his/her designee shall review the matter and may meet with the Contractor and/or the employee and shall promptly notify the Contractor ofthe Commissioner's decision concerning the permanent removal of the employee from the proximity of all children/youth.
Section 5.04 Employee Review
A. ACS reserves the right to request that the Contractor review the performance of any employee who has direct contact with children and/or families referred by ACS pursuant to this Agreement. Upon completion of the review, the Contractor shall take appropriate action, with respect to the employee, and thereafter notify ACS of such action.
B . The Contractor reserves the right to request that ACS review the performance of any employee who has dfrect contact with children and/or families referred by ACS pursuant to this Agreement. Upon completion ofthe review, ACS shall take appropriate action, with respect to the employee, and thereafter notify the Contractor of such action.
43

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 50 of 123
Section 5.05 Hiring and Dismissal of Certain Employees
The Contractor shall advise the Commissioner reasonably in advance in writing, whenever the Contractor hires or dismisses a chief executive officer, chief fiscal officer, or program director of foster care services. The Contractor shall include in the notice of the dismissal of a chief executive officer, chief fiscal officer, or program director of foster care services the reason(s) for the dismissal. The Commissioner shall keep all such information confidential, except that the Commissioner may make disclosures to persons who have a legally cognizable interest in said information. Additionally, the Contractor shall forward a copy of the particular resume(s) to ACS for new hires in accordance with ACS Policies.
Section 5.06 Collective Bargaining
The Contractor acknowledges that neither the City nor ACS is responsible or shall be liable for any obligations contained in any agreement into which Contractor or a representative of Contractor has entered concerning the collective bargaining rights or benefits of its employees paid in full or in part by funds provided through this Agreement. Furthermore, the Contractor agrees to abide by all applicable Laws governing the use of funds in connection with union activities.
ARTICLE 6. RECORDKEEPING AND REPORTING
Section 6.01 General
A. The Contractor shall maintain adequate program files and fiscal records, and shall ensure that its staff follow appropriate record keeping practices and procedures for all records in the Contractor' s possession. The Contractor' s records shall comply with all Laws and ACS Policies regarding recordkeeping. The Contractor shall keep separate files and records for each Recipient of Service so that they may be readily identifiable from those relating to other activities of the Contractor. In addition to information normally kept by the Contractor in individual files, such as basic information about the individual, describing and recording each use of the services by the individual, and the individual's progress, the Contractor shall include such other information in individual files as ACS may reasonably require. The files and records of each recipient shall be made available to ACS at reasonable times upon reasonable notice and request.
B. The Contractor shall upon reasonable notice and request by ACS, provide information and records relating to Foster Children in the custody of ACS. ACS shall have access to information and records including, but not limited to, information and records pertaining to programs, birth parents/caretakers, foster parents, Foster Children and compliance with legally mandated activities. The Contractor shall collect and maintain all information and records reasonably requested by ACS.
C. The Contractor shall ensure that its staff, consultants and subcontractors shall at reasonable times and upon reasonable notice, be made available to ACS or its counsel upon request for consultation either at the office of the Contractor or at the offices of ACS.
44

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 51 of 123
Section 6.02 Statistical Records
A. The Contractor agrees to produce and maintain reasonable program statistical records as required by ACS and to produce program narar tive and statistical data at times prescribed by and on forms furnished by ACS. ACS shall use its best efforts to minimize duplicative record requests.
B. The Contractor agrees to collect statistical data of a fiscal nature on a regular basis and to make fiscal statistical reports at times prescribed by and on forms furnished by ACS.
Section 6.03 Case Records
A. The Contractor shall maintain adequate case files and shall ensure that staff follow appropriate record-keeping and retention practices and procedures in a manner that is in compliance with and supports all Laws and is consistent with ACS Policies. The Contractor shall cooperate with ACS assessment and evaluation systems. The Contractor shall ensure that its appropriate staff are trained in the use of CNNX, LTS, CCRS, and SSPS and any subsequent tracking systems or databases as required by ACS, OCFS or the Law. The Contractor shall ensure the caseworker, shall have primary responsibility for the development, documentation and maintenance of all case records within his/her caseload. The Contractor' s policies and procedures shall clearly define the requirements of the caseworker and child care worker in documenting and maintaining case records, including required forms, content and format of other documentation, and storage. The Contractor shall ensure that primary case record information is documented and maintained in CNNX. The Contractor shall maintain hard copies of all other information that cannot be captured in CNNX in physical case records. The Contractor shall ensure that case records contain: demographic and contact information; the reason for a request or referral for services; up-to-date assessments; copies of all signed consent forms; a description of services provided by referral; and documentation ofroutine supervisory review. The Contractor's documentation procedures shall also define the documentation requirements for all service providers, including but not limited to, medical, psychiatric, chemical dependency/use prevention, and treatment and after care providers as well as education professionals.
B. CONNECTIONS (CNNX): The Contractor shall ensure that relevant staff members are knowledgeable and proficient in CNNX. The Contractor shall document all processes and activities into CNNX that pertain to Foster Children and their families, including case information, health, education and permanency hearing reports. The Contractor shall ensure that all relevant staff receives the necessary training, and are informed of pertinent policies and procedures regarding CNNX.
C. Family Case Record/Child Case Record: The Contractor shall maintain a physical case record for each Foster Child, which shall document all services and treatment provided to each Foster Child. The case record shall be indexed to reflect the organization and documentation in the record. The Contractor shall also retain and maintain supportive records and documents, including but not limited to, applications for services, assessments, evaluations, education and medical reports, legal documents and collateral contacts. The Contractor shall
45

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 52 of 123
maintain case records in accordance with the Law including 18 NYCRR Part 428 or any successor or amended regulations.
D. Foster Parent Case Record: The Contractor shall maintain a detailed and current foster parent case record, which shall be updated as needed. The Contractor shall maintain foster parent records in accordance with the Law including 18 NYCRR 443.2(£) or any successor or amended regulation. The Contractor shall maintain the foster parent case record in accordance with the Law and ACS Policies including the Foster Care Quality Assurance Standards.
Section 6.04 Medical Records and Related Documentation
A. Authorization for Release of Health Information and Consent Form: The Contractor shall request written authorization from birth parents/caretakers for medical care including medical and/or psychological assessments, immunizations and medical treatment, and for emergency medical or surgical care at the time the care is necessary, at the time of placement for cases where the Foster Child is voluntarily placed, or within ten ( 1 0) days after admission into care in emergency or court-ordered placements. In those instances when birth parents/caretakers are unable, unavailable, or unwilling to sign a release, the Contractor shall ensure that the case planner complies with the Law and ACS Policies with regard to obtaining medical consent. The Contractor shall make diligent efforts to contact birth parents/caretakers for consent whenever there is a significant change in the health status of the Foster Child requiring non-routine medical attention, surgery or administration ofpsychotropic medication. The Contractor shall ensure that all consent forms are retained in the medical record and CNNX health narrative as part of the Foster Child's health history.
B. Health Records and Documentation: The Contractor shall maintain complete health information in each Foster Child's CNNX case record and shall comply with all Laws and ACS Policies. In addition to the requirements for the medical documentation contained in CNNX, the Contractor shall establish a comprehensive health history for each Foster Child by working with the birth family/caretaker and known previous health providers for each Foster Child. The medical record shall include, but not be limited to: a complete medical history, dental history, immunization record, an admission physical exam and all subsequent physical exams, records of all medical treatment, consent(s) for treatment, and any other appropriate documentation related to medications and procedures, diagnostic and therapeutic. The Contractor shall comply with all timelines for collection of such information as required by ACS Policies. In efforts to maintain each Foster Child's confidentiality and to maximize the delivery of effective health care services and health care coordination, the Contractor shall ensure that all child welfare health service providers responsible for a Foster Child's care receive health information about a Foster Child's health status and history on a "need to know" basis, and as appropriate. The Contractor shall maintain each Foster Child's individual medical history in an organized and readily transferable manner that details all critical information regarding the Foster Child's health status and history.
1 . Physical Examination: The Contractor shall document the results of each Foster Child's physical examinations using the Child's Health Record, Form DSS-71 1 or a comparable form. The Contractor shall include in this form the results ofinitial and periodic
46

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 53 of 123

health examinations given to each Foster Child. The Contractor shall ensure that the Child's Health Record contains a section describing a plan for each Foster Child's health needs and documents all on-going medical treatment. The Contractor shall ensure that the Child's Health Record includes information on all specialty referrals, copies of laboratory results, and summary discharge notes from any hospitalizations. The Contractor shall include the Foster Child's CIN in each Foster Child's health record. The Contractor shall comply with the Law including 18 NYCRR 44 1 .22 or any successor or amended regulation with regard to health and medical services for Foster Children.

2. Continuing Health History: The Contractor shall maintain a hard copy of
each Foster Child ' s health history and other relevant health documents that cannot be recorded in CNNX.

3 . Health Summary Form: The Contractor shall maintain a health summary form for each Foster Child. The health summary shall include results of the initial comprehensive health and mental health examinations; substance use/abuse status; health care providers; dental, vision and hearing test results; current immunization history and any information regarding follow up referrals and evaluations. The Contractor shall complete the summary form during the first six (6) months of placement. The Contractor shall update the health summary form every six (6) months the Foster Child remains in care in conjunction with the FASP.

4. Medical Passport: The Contractor shall maintain a medical passport for each Foster Child and ensure that it is updated by health service providers with each visit. The medical passport shall not be used as a substitute for the full medical record. The Contractor shall keep a copy of each Foster Child's most up-to-date medical passport in their medical records. The Contractor shall ensure that the medical passport is updated as often as possible and at minimum of every six (6) months.

C. Mental Health Screening and Treatment Documentation

1 . Medication-Related Documentation: The Contractor shall ensure that all medications administered to Foster Children while in care are documented in each Foster Child's medical record. Such information shall include, but not be limited to:

a. The name of the medication(s) currently being taken by the Foster Child, including dose and dosage schedule;

b. treated or managed;

The purpose of the medication(s) or condition/diagnosis being

c.

The name and credentials ofthe prescriber;

d. followed by the provider;

Documentation of appropriate consent and consent procedures

47

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 54 of 123

e.

All associated health facility visits, specialty and subspecialty care

associated with the medication;

f.

Documentation that the Contractor has provided appropriate

administration of the medication;

g. Documentation of non-compliance to prescribed medications;

h. Documentation ofany allergies or adverse reactions that the Foster Child may have had to any past medication(s), and the incident report associated with each adverse reaction while the Foster Child was in the Contractor' s care; and

i.

Documentation of training on medication administration for all

foster care parents including Model Approach to Partnerships in Parenting (MAPP) training.

2. Psychotropic Medication Documentation: The Contractor shall ensure that the following information is documented for Foster Children receiving psychotropic medication:

a.

Documentation of appropriate informed consent procedures

followed by the Contractor prior to initial administration of the medication;

exams;

b. Documentation of appropriate initial and follow-up laboratory

c.

Documentation of recent one (1) month physical exam prior to

initiation/change of treatment regimen;

d.

Documentation ofmonthly evaluation or appropriate explanation

for exception to this requirement by a child psychiatrist or other appropriate health care provider;

and

e.

Documentation of appropriate monitoring of the Foster Child's

reaction to any treatment or medication.

Section 6.05 Independent Reporting

A. The Contractor shall notify ACS immediately in the event of a situation, which presents an imminent danger to the health or welfare of any Foster Child. For purposes of this clause, immediate notice shall mean providing notice to ACS as soon as practicably possible without placing the Foster Child in any further danger.

B. The Contractor shall report fatalities, serious accidents and incidents, and injuries of any Foster Child to ACS within twenty-four (24) hours of receiving notice. The Contractor shall immediately send notification to ACS ' s Shared Services Response Team upon knowledge of any such incident, and shall follow up with a comprehensive report within twenty-

48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 55 of 123
four (24) hours ofthe initial notification. The Contractor shall comply with the Law with regarding to reporting including 18 NYCRR 441 .7 and 18 NYCRR 44 1 .8 or any successor or amended regulation. The Contractor shall submit a copy of each critical incident report within twenty-four (24) hours of completion of the report to its commercial general liability insurance carrier and to the City of New York Law Department Affirmative Litigation Division.
Section 6.06 Family Planning Services
The Contractor shall ensure that the notification ofthe availability of family planning services pursuant to Section 2 . 1 5 (L) of this Part II entitled "Family Planning Services" is recorded in each Foster Child's medical record and in CNNX as part of the Foster Child's health history.
Section 6.07 Court Documents
Upon request, the Contractor shall furnish documents to FCLS attorneys for their work on cases involving Foster Children. Such requests for documents may include, but not be limited to, case records, FTC and other conference summaries, FASPs, notes, medical records and evaluations, as well as written reports prepared specifically for the Court. The Contractor shall ensure that any documents are furnished, whenever possible, within a reasonable time in advance of the Court hearing, giving the attorney an opportunity to discuss the use of the documents with the Contractor. The Contractor shall also submit PH reports to FCLS attorneys pursuant to ACS Policies and established timeframes.
Section 6.08 Independent Audit Reports
Ifthe Contractor has an independent audit performed ofthe records relating to this Agreement, a true copy ofthe audit report shall be provided to ACS within thirty (30) days after acceptance by the Contractor.
Section 6.09 Disposal of Confidential Data
The Contractor acknowledges that each Foster Child's case record and any documents contained therein are confidential. Other confidential items include, but are not limited to, documents containing: child/youth and family names, addresses, social security numbers, case information, details of allegations of abuse, confidential employee information, medical information, and other personal information. The Contractor shall comply with all Laws regarding record retention and disposal.
Section 6.10 Record Keeping Systems Maintenance and Utilization
A. Legal Tracking System (LTS): The Contractor shall designate at least one ( 1 ) LTS liaison for all LTS-related issues and updates, including PH reports. The Contractor shall ensure that the LTS Liaison is able to communicate regularly with designated individuals at ACS when necessary. The Contractor shall use LTS during the regular course of business to carry out duties which include but are not limited to, reviewing Court orders, hearing outcomes, and attorneys'
49

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 56 of 123
court action summaries. The Contractor shall ensure that manager and supervisor level staffrun and review LTS reports about PH report timeliness and submission rates, in addition to utilizing other management tools available in LTS in efforts to improve the delivery ofprogram services. The Contractor shall follow all applicable ACS Policies and OCFS procedures when submitting PH reports from CNNX to FCLS attorneys. The Contractor shall update CNNX as soon as possible regarding changes in assigned caseworker or other information as listed in LTS. The Contractor shall not disclose any information contained in LTS to third parties, absent instruction from ACS.
B. Child Care Review System (CCRS): CCRS is a statewide system used to track Foster Children as well as PINS. ACS shall open a CCRS case within three (3) business days of a Foster Child's placement. ACS and the Contractor shall mutually strive to keep CCRS accurate and timely at all times. Once ACS opens a CCRS case, the Contractor shall enter data related to any Foster Child absence and return to care, inter- and intra agency transfers, and adoption codes.
Section 6.11 Change in Corporate Structure
Any contemplated fundamental change in the Contractor's corporate structure (such as merger with another entity or fundamental changes in governance) which will affect the provision of services covered by this Agreement shall be reported to ACS in writing at the earliest feasible time, but in no case later than ninety (90) days prior to the contemplated change. In the event that a merger is contemplated, the Contractor shall notify ACS when a plan of merger is filed with a state agency.
ARTICLE 7. CONTRACTOR'S STANDARDS AND PROCEDURES
Section 7.01 Standards and Procedures
A. The Contractor agrees to comply with the following requirements and expressly covenants and agrees that any and all rights and powers conferred upon ACS in this Agreement are intended by the parties to ensure proper and consistent personnel standards and procedures regarding Foster Care services and Recipients of Services which constitute the subject matter ofthis Agreement, and are not intended to vest ACS with any of the Contractor's rights or obligations in connection with its employees nor to give ACS any direct control over such employees of the Contractor, nor to vest in the Contractor or any of its employees any rights as against ACS.
B. The Contractor shall create and maintain written plans that detail all management systems and the manner in which they are designed to ensure proper planning and implementation ofprogrammatic operations and fiscal administrative policies and procedures ("Standards and Procedures"). The Contractor's Standards and Procedures shall include the records and maintenance of: personnel management systems; fiscal management systems, including procurement and cash management systems; facility management systems; program management systems; and parents' decision-making systems.
50

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 57 of 123

C. The Contractor shall submit to ACS immediately upon ACS' request a copy of all Standards and Procedures requested by ACS. The Standards and Procedures requested by ACS may include but not be limited to:

1.

Organizational papers such as a true copy of the Certificates of

Incorporation filed with the New York Secretary of State, by-laws, and any other related

documentation reasonably requested by ACS;

2 . Personnel policy practices including such matters as job descriptions and qualification requirements, hiring and selection practice, personnel grievance procedures, benefits and leave, salary increases, holiday schedules and other related matters;

3 . Purchasing policy and procedures;

4. Fiscal Policies and Procedures;

5 . Intake and Planning Procedures; and

6. Completed Safety Plan that provides specific and detailed procedures for responding to a range of incidents.

D. ACS may direct the Contractor at any time, and from time to time, to rescind, modify or add to its Standards and Procedures to bring the Standards and Procedures in compliance with this Agreement, the Law and ACS Policies.

Section 7.02 Client Grievance Procedures

A. The Contractor shall establish procedures through which Recipients ofServices may present complaints and grievances about the provision of any service under this Agreement. The Contractor shall advise Recipients of Services ofthese procedures and oftheir right to appeal thereafter to ACS.

B. Ifthe Contractor is unable to resolve the problem and the Recipient of Service initiates an appeal to ACS, the Contractor shall forward a summary ofthe relevant information to ACS. ACS shall confer with all the parties, either separately or jointly, and may request such
additional information and material, as it deems necessary.

C. Ifthe Recipient of Service and the Contractor can not come to an agreement concerning the Recipient's complaints and grievances, ACS shall have the right to make a final determination pursuant to Article 4 of this Part II entitled "Responsibility and Authority of ACS and Resolution of Certain Disputes."

D. In circumstances where the Law or due process requires, the Contractor shall advise the Recipient of Service ofhis/her right to request a fair hearing by OCFS.

51

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 58 of 123
Section 7.03 Security and Emergency Plan
A. Prior to the commencement of services under this Agreement, Contractor shall submit for ACS ' review and approval a written plan to provide for the safety and security of clients, participants, staff, and the Contractor' s facility, which shall include emergency procedures, including first aid and cardiopulmonary resuscitation training; evacuation procedures; and the identification of the means by which safety and security of clients, participants, staff, and the Contractor's facility will be maintained throughout the term of this Agreement. Such a plan will insure its clients' basic needs are met in the event of a City-wide emergency or natural and man-made disasters, including extremes ofweather, blackouts and other regional and national emergencies. The Contractor shall maintain a file of emergency contacts for each client and participant, which shall include the names, addresses, telephone numbers, and locations where such contacts can be reached. Submission of a security plan applying to all of the Contractor's operations rather than specifically to the City-funded operations shall be sufficient to comply with the terms of this requirement. The provisions of this Section shall not apply to programs housed in courts or other City-operated locations.
B. In the event that a State of Emergency (SOE) is declared by the Mayor of the City, the City may suspend Contractor's normal operations until further notice. No damages shall be assessed for suspension of normal services during this time. All other terms and conditions of this Agreement shall remain in effect, except as modified by a contract amendment registered pursuant to New York City Charter §328 or other appropriate contract action. The Contractor may, at the request of and in a manner determined by ACS, assist ACS in caryr ing out emergency procedures during a State of Emergency. Emergency procedures shall remain in effect until the Mayor has determined that the SOE has expired. In consideration thereof, the City agrees to indemnify the Contractor against all claims by third parties arising out of the actions of its employees during the SOE that are directed by the City and not otherwise required to be performed under this Agreement, except for those arising out of the employees' gross negligence or intentional misconduct.
Section 7.04 Continuity of Operations Plan
Prior to the commencement of services under this Agreement, Contractor shall submit for ACS' review and approval a written Continuity of Operations Plan (COOP) for its business which indicates its ability to continue the provision of essential services to ACS in the event that a State of Emergency is declared by the Mayor. The Contractor should seek guidance from ACS on how to develop a COOP plan. A COOP plan includes, but is not limited to: the identification of an alternate site of business; appointment of alternate personnel for identified essential staff; development ofprotocols for the safekeeping ofvital business records; and, a transportation
·
contingency plan for its employees.
ARTICLE 8. FISCAL PROVISIONS
Section 8.01 General
Should the needs of the City child welfare system call for changes to this Agreement, ACS
52

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 59 of 123

reserves the right to select a different payment structure. ACS would do so with consideration of the needs ofthe Contractor and would attempt to integrate the Contractor's concerns into any new payment structure that might be introduced.

Section 8.02 Payment

A. ACS payment to the Contractor is subject to the terms of this Agreement, ACS receipt of funds and cost allocation using an appropriate cost allocation plan. ACS shall not pay the Contractor for any child/youth not placed in accordance with this Agreement.

B. ACS agrees to pay to the Contractor on a monthly basis an amount based on an

administrative per diem rate set by ACS ("Per Diem Rate") and a foster parent stipend rate as set

by OCFS and the Budget contained in Attachment IV to this Agreement (except as Attachment

IV may be subsequently amended or modified by ACS in accordance with adjustments in the Per

Diem Rate and adjustments in the ACS budget allocation) which is equal to the applicable Per

Diem Rate and the foster parent stipend rate as multiplied by each Day ofCare provided by the

Contractor and approved by ACS for each Foster Child in the Contractor's care. The Contractor

shall not be paid for any Foster Child who has been transferred to another provider or any case

that is in a Suspended Payment status in accordance with the Fiscal Manual. ACS shall make the

monthly payments to the Contractor after the submission of appropriate documentation as ACS

mmuaystrbeequciorme apnledteadftberytthheeCseovnetrnatchto(7rt'hs)

electronic submission of Days of Care to SSPS which business day before the end of the following month.

Such payment shall be made in accordance with ACS Policies.

C. Notwithstanding anything to the contrary contained in this Agreement, payment for services provided by the Contractor pursuant to this Agreement must be authorized by ACS and shall be effective from the date the service was commenced and authorized by ACS.

D. In the event the Contractor fails to comply with the Fiscal Manual regarding approval of special and exceptional need rates, ACS may disallow the rate and recoup any amount overpaid to the Contractor in connection with the Contractor's non-compliance.

Section 8.03 Statewide Service Payment System

SSPS is a statewide payment system used to process Per Diem Rate payment for services provided to Foster Children. When submitting requests for per diem payment for services, the Contractor shall:

fifth

(5th)

1. business

Submit an initial day of the following

request month.

for

payment

of

services

for

each

month

by

the

seventh

(ih)

2. business

Submit the final request for payment of services day before the end of the following month.

for

each

month

by

the

3 . Work with ACS staff to reconcile any discrepancies.

53

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 60 of 123

Section 8.04 Advance

The amount ofany advance to be paid to Contractor under this Agreement shall be determined solely by ACS in accordance with the Fiscal Manual and any applicable Comptroller directives. The funds shall be used exclusively for the payment of expenditures and obligations authorized by and properly incurred pursuant to the Budget.

Section 8.05 Cost of Living Increases

Where the Contractor's industry has experienced an increase in costs (e.g, salary, wage or fringe benefit cost of living increases, a change in the prevailing or living wage, a renegotiated collective bargaining agreement, an industry-wide increase in the Producer Price Index (PPI) for fuel or energy) that exceeds the Budget, and the Office of Management and Budget (OMB) or another independent agency has determined in writing that additional funds will be made available to a City agency for the class of contracts pursuant to which the Contractor provides the same or substantially similar services, then the Department shall reimburse the Contractor for such increases in costs to the extent that such increases have been authorized by the City for contracts within such class of contracts and to the extent that funds are appropriated for such purposes. Any cost of living increase will not be effective unless and until an amendment to the contract is registered pursuant to New York City Charter §328.

Section 8.06 Special Payments, Miscellaneous Expenses and Additional Funding

A. Special Payments

1 . ACS shall in accordance with the Law and the Fiscal Manual including the Administrationfor Children 's Services Payment Bulletin FC 0 7-12 or any amended or succeeding bulletin ("Payment Bulletin") reimburse the Contractor for Special Payments expenses listed specifically in the Payment Bulletin ("Special Payments") to the extent that such expenses comply with this Agreement and the Fiscal Manual including the Payment Bulletin.

2.

ACS payment/reimbursement to the Contractor pursuant to this Section

8.06(A) is subject to the following:

a. The allocation for Special Payments as provided in the Budget;

b. The Contractor's submission of the proposed Special Payment if required by the Payment Bulletin and ACS advanced approval of the expense if required by the Payment Bulletin; and

c. The Contractor' s timely and appropriate submission of invoices/requests for reimbursement in compliance with Section 8.06(E) entitled "Reimbursement Requirements" and the Fiscal Manual including the Payment Bulletin. Any invoice/request for reimbursement which does not comply with the Fiscal Manual including the Payment Bulletin and is received after the time frame indicated in the Payment Bulletin may be disallowed.

54

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 61 of 123

B. Miscellaneous Expenses

1 . ACS may, in accordance with this Agreement and the Fiscal Manual including the Payment Bulletin, reimburse the Contractor for expenses which are not specifically listed in the Payment Bulletin and/or expenses which are not included in the Special Payment allocation.

2. ACS payment/reimbursement to the Contractor pursuant to this Section 8.06(B) is subject to the following:

Budget;

a.

The allocation for Miscellaneous Expenses as provided in the

b. As required by this Agreement, ACS Policies and/or the Fiscal Manual, the Contractor's submission of the proposed expense to ACS and ACS advanced approval of the expense; and

c.

The Contractor' s timely and appropriate submission of

invoices/requests for reimbursement in compliance with Section 8.06(E) entitled

"Reimbursement Requirements" and the Fiscal Manual including the Payment Bulletin. The

Contractor must submit invoices/requests for reimbursement to ACS by the deadline for

submission of invoices/requests for reimbursement outlined in the Payment Bulletin. Any

invoice/request for reimbursement which does not comply with the Fiscal Manual including the

Payment Bulletin and is received after the time frame indicated in the Payment Bulletin may be

disallowed.

C. Preparing Youth for Adulthood (PYA) Funding and Reinvestment Funding

1 . General: Notwithstanding any provision contained in this Agreement, ACS may in ACS ' sole discretion provide the Contractor with funding for the following initiatives: PYA which supports Foster Children in and transitioning from foster care and reinvestment funding ("Reinvestment Funding") to strengthen the Contractor's family foster care program. The Contractor shall use this additional funding, if any, in accordance with this Agreement, ACS Policies, the Fiscal Manual and the Law and such additional funding shall be subject to cost allocation.

2.

PYA Funding: The Contractor shall use PYA Funding to support special

services and supports for Foster Children who are ages fourteen (14) years of age and older

consistent with this Agreement, ACS Policies, and the Fiscal Manual.

3 . Reinvestment Funding: The Contractor shall use Reinvestment Funding to support permanency for children/youth including aftercare preparation and services to help expedite and stabilize permanency for Foster Children and to provide services to Foster Children who are ages twelve ( 1 2) years of age and older to reduce movements within Foster Care and step-ups to residential care.

55

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 62 of 123

4. ACS payment/reimbursement to the Contractor pursuant to this Section 8.06(C) is subject to the following:

Budget;

a.

The allocations for PYA and Reinvestment as they appear in the

b. As required by this Agreement, ACS Policies, and/or the Fiscal Manual, the Contractor's submission of the proposed expense to ACS and ACS advanced approval of the expense; and

c. The Contractor's timely and appropriate submission of invoices/requests for reimbursement in compliance with Section 8.06(E) entitled "Reimbursement Requirements" and the Fiscal Manual including the Payment Bulletin. The Contractor must submit invoices/requests for reimbursement to ACS by the deadline for submission of invoices/requests for reimbursement outlined in the Payment Bulletin. Any invoice/request for reimbursement which does not comply with the Fiscal Manual including the Payment Bulletin and is received after the time frame indicated in the Payment Bulletin may be disallowed.

5 . If PYA or Reinvestment Funding i s reduced in any fiscal year for reasons other than census reduction, ACS shall discuss the scope of the PYA or reinvestment program, as the case may be, with the Contractor's representative organization.

D. Additional Funding

1 . ACS may from time to time and in ACS ' sole discretion provide the Contractor with additional funding for ACS specified program initiatives. The Contractor shall use this additional funding, if any, in accordance with this Agreement, ACS Policies and the Law and such additional funding shall be subject to cost allocation.

2. ACS payment/reimbursement to the Contractor pursuant to this Section 8.06(D) is subject to the following:

Budget;

a.

The specified additional funding allocation as provided in the

b. The Contractor's submission of the proposed expense to ACS and ACS advanced approval of the expense; and

c.

The Contractor's timely and appropriate submission of

invoices/requests for reimbursement in compliance with Section 8.06(E) entitled

"Reimbursement Requirements" and the Fiscal Manual including the Payment Bulletin. The

Contractor must submit invoices/requests for reimbursement to ACS by the deadline for

submission of invoices/requests for reimbursement outlined in the Payment Bulletin. Any

invoice/request for reimbursement which does not comply with the Fiscal Manual including the

56

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 63 of 123
Payment Bulletin and is received after the time frame indicated in the Payment Bulletin may be disallowed.
E. Reimbursement Requirements
1 . The Contractor shall submit all invoices/requests for reimbursement on a form acceptable to ACS for Special Payments, expenses related to PYA Funding, Reinvestment Funding and all other expenses outlined in the Payment Bulletin and this Section 8.06 no later than the deadline for invoices/requests for reimbursement provided in the Payment Bulletin. Any invoice/request for reimbursement which does not comply with ACS Policies and is received after the time frame indicated in the Payment Bulletin may be disallowed.
2. ACS ' rate of reimbursement to the Contractor for any expense in connection with this Agreement including Special Payments and/or expenses listed in the Payment Bulletin shall not exceed the maximum amount allocable by Law, ACS Policies, the Fiscal Manual including the Payment Bulletin and the Budget.
Section 8.07 Budget Modifications and Amendments
All increases and decreases ofthe Budget shall become effective only by duly executed and approved amendments to this Agreement.
Section 8.08 Accounts
A. The Contractor shall establish and maintain one or more separate accounts for the funds obtained from or through the City of New York related to this and all other agreements with the City, and shall maintain records for such account to track and clearly identify the funds obligated through this Agreement.
B. The Contractor shall provide to ACS immediately upon request copies of all bank records including bank statements and cancelled checks.
C. The Contractor shall notify ACS ofthe names, titles, and business addresses of such persons authorized by the Contractor to receive, handle or disburse monies under this Agreement, including the company name and company address where such persons are not employees ofthe Contractor. Such notification must be in writing and furnished to ACS within five (5) days from the execution ofthis Agreement, and within five (5) days from any subsequent change or substitution of authorized signatories.
Section 8.09 Reporting Requirements
The Contractor shall file annually and shall provide to ACS upon request the following reports:
1 . IRS Form 990 upon submission to the IRS, and any subsequent amendments to Form 990;
57

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 64 of 123

2. All forms mandated by the State in the Standards ofPayment system at the time they are submitted to the State; and

3 . Reports required by the City Comptroller no later than six (6) months after close of the Fiscal Year.

Section 8.10 Final Payment

Notwithstanding anything to the contrary contained in this Agreement, final payment shall be deemed to have occurred upon the occurrence ofany ofthe following events:

1 . the expiration of six (6) years and ninety (90) days from the date ofthe Contractor's submission of forms/documentation required by the New York State Standards of Payment for Foster Care ofChildren Program Manual to ACS and/or OCFS, ifno draft audit has been issued; or

2.

the later of(i) issuance ofthe final audit (as defined in Section 1 0.02 ofthis

Part II entitled "Audit by ACS" and Section 10.03 of this Part II entitled "ACS Audit Dispute

Resolution") or (ii) execution of a Settlement Agreement between the Comptroller's Office and the
Contractor after completion of an Appeal Conference as provided for in Section 1 0.03 of this Part II

entitled "ACS Audit Dispute Resolution"; or

3. disallowance; or

filing by the Contractor o fa final judicial resolution o fany contested audit or

4.

filing with the Comptroller of the certificate for the final payment under

this Agreement; or

5 . acceptance by the Contractor or its assignees o fthe final payment under this Agreement, whether by voucher, judgment of any court of competent jurisdiction or any other administrative means.

Section 8.11 Compliance with the Law and Policies

All payments using City, State and Federal dollars made to or by the Contractor in connection with this Agreement and the services provided pursuant to this Agreement shall comply with the Law, this Agreement and all OCFS and ACS policies, procedures and bulletins in effect at the time ofpayment.

Section 8.12 Cost Allocation

A. ACS requires the Contractor to fairly and accurately allocate costs which are attributable to the operation of two or more programs among such programs by a method which represents the benefit of such costs to each program, or a method as set forth in the New York State Standards ofPaymentfor Faster Care ofChildren Program Manual. The Contractor shall

58

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 65 of 123
have a cost allocation plan setting forth such fair and accurate allocation of costs and shall submit its cost allocation plan to ACS within thirty (30) days of ACS ' request. The Contractor's cost allocation plan shall b e updated annually.
B. The Contractor shall not receive reimbursement from another funding source, including the City or another department of the City, when City funding pursuant to this Agreement is fully covering a particular expense, except upon the express written permission of ACS. Written permission of ACS shall not be required where the supplemental funding is intended to improve the service to be provided. Notwithstanding the provisions of this paragraph, the Contractor shall be permitted to seek private or public support to fund the costs of delivering work. Reimbursement for
clients being served by the Contractor in a distinctly different program shall not be construed as
payment for duplication of contracted services.
C. In no event shall the Contractor submit duplicate costs for reimbursement to separate City, State or Federal agencies. In the event of duplicative billing, ACS shall have the right to offset or recoup the duplicative billed amount from the Contractor.
D. The Contractor shall:
1 . Establish an allocation methodology that fairly, reasonably, and accurately apportions costs and include that allocation methodology in its cost allocation plan;
2. For each fiscal year, maintain books, records, documents and other evidence, in sufficient detail to support all claims against the Contractor's family foster care program, including those that have been made on a cost allocation basis;
3 . Make the records available for review by ACS or its representative(s) upon reasonable notice and request; and
4. Review allocation percentages on an annual basis and adjust them as necessary to reflect a reasonable cost distribution among programs.
Section 8.13 Family Court Sanctions
In the event the Family Court imposes a fine or sanction against ACS which arises out of an act or failure to act by the Contractor, ACS may, in its sole reasonable discretion, and on a case by case basis in discussion with the Contractor, direct the Contractor to pay the fine or sanction, in whole or in part, and the Contractor herewith agrees to make such payment, or ACS may, in its sole discretion, withhold further payments hereunder for the purpose of set-off in
·
sufficient sums to cover the said fine or sanction.
59

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 66 of 123
ARTICLE 9. DENIAL OF REIMBURSEMENT
Section 9.01 Denial of Reimbursement
A. 1 . Expenditures by the Contractor for the care and maintenance of a Foster Child, and the administration thereof, shall not be reimbursed in whole or in part by ACS in such instances when, by an act or failure to act by the Contractor ACS has been denied reimbursement by the Federal Department of Health and Human Services pursuant to the Law including Title IV-E ofthe Social Security Act. Moreover, the City may order the Contractor to make repayment, and the Contractor herewith agrees to make such repayment, of any monies previously paid as reimbursement under the terms of this Agreement for which ACS was denied reimbursement by the State and for which such denial of reimbursement was attributable to an act or a failure to act by the Contractor.
2 . In the event that another provider or providers have cared for the Foster Child during a period of time which is the subject of a denial of reimbursement, ACS shall, in its sole reasonable discretion, allocate the liability among the Contractor and the other provider or providers in accordance with procedures promulgated by ACS.
B. Contractor Liability: The Contractor shall be liable for any denial of reimbursement imposed upon ACS by OCFS pursuant to the Law including Title IV-E of the Social Security Act when such denial results from an act or failure to act by the Contractor.
ARTICLE 10. AUDIT
Section 10.01 Contractor's Audit
The Contractor shall conduct an annual financial audit performed by an independent CPA. The Contractor shall submit the annual audit to ACS' Office of Audit, 1 50 William Street, 1 0th Floor, New York, New York 1 0038 within thirty (30) days after the Contractor's receipt of the final report but no later than nine (9) months after the audit period. The Contractor shall provide within thirty (30) days of ACS' request copies of all ACS requested records. The audit period shall be for a one (1) year period beginning July 1 st. The audit must contain an opinion regarding the Contractor' s financial statements in conformity with GAAP and shall contain a separate opinion ofthe adequacy ofthe Contractor's internal controls to safeguard its assets.
Section 10.02 Audit by ACS
A. ACS may conduct an audit of the Contractor at ACS' discretion and the Contractor shall fully cooperate with all requests for documentation in accordance with this Agreement. The ACS audit shall be conducted in accordance with the New York State Standards ofPaymentfor Foster Care ofChildren Program Manual. If an audit is conducted by ACS, a draft of such audit must be issued within six (6) years and ninety (90) days from the date the Contractor submits applicable forms/documentation required by the New York State Standards of Paymentfor Foster Care ofChildren Program Manual to both OCFS and ACS and the final audit shall be issued within ninety (90) days of the Contractor's submission to ACS of a written
60

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 67 of 123

response to the draft audit. Ifthe Contractor fails to submit to ACS a written response to the draft within thirty (30) days of Contractor's receipt of the draft audit, the Contractor shall be deemed to have accepted the contents of the draft audit. The Contractor may request from ACS an extension to the thirty (30) day comment period and such extension shall be granted at ACS ' sole discretion and must be in writing.

B. In the event the Contractor submits a written response to the draft audit and the Contractor's objections are supported by voluminous data or require that the auditors visit the Contractor's offices to review its books and record or if the Contractor's records are complex in nature, ACS may, in its sole discretion, extend the ninety (90) day period in which it shall issue the final audit, by an additional ninety (90) days. ACS in it sole discretion may provide for further extensions beyond the ninety (90) days. In any instance where ACS is materially prevented from completing a draft or final audit as a result ofthe conduct ofthe Contractor, the time period during which the Contractor's actions (or in-actions) prevented such completion of the draft or final audit, shall not be included, and shall specifically be excluded, for purposes of computing the time periods for issuing the draft or final audit.

C. The Contractor shall be afforded an audit exit conference, prior to the issuance of a final audit. At the exit conference the preliminary findings of the auditors shall be made known to the Contractor as well as a brief explanation ofthe basis upon which the auditors have made such preliminary findings. The Contractor may be represented at the exit conference by anyone authorized by the Contractor to act on its behalf.

D. The fiscal records ofthe Contractor under this Agreement shall be examined by ACS at such times as ACS considers necessary.

E. The performances of ACS auditors shall be in accordance with GAAP and only those rules, regulations and procedures in effect at the time of actual expenditure will apply.

Section 10.03 ACS Audit Dispute Resolution

The following subsections establish procedures for resolving disputes arising from an ACS audit of the Contractor.

AC S .

1 . A copy of the final audit report shall be forwarded to the Contractor by

2. ACS shall notify the Contractor, in writing, within thirty (30) days of ACS ' acceptance of the final audit of the action ACS intends to take as a result of the final audit, if any, and of the Contractor's right to have any of the Contractor's audit objections be reviewed by the ACS Audit Review and Appeals Panel ("Final Audit Notification").

3.

The audit shall be considered final and ACS shall take such action as

noted in the Final Audit Notification, unless the Contractor requests, in writing, within thirty (30)

days of receipt of the Final Audit Notification, that the Contractor's audit objections be reviewed

by the ACS Audit Review and Appeals Panel ("Appeal Request"). The Appeal Request must

61

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 68 of 123

contain all objections and disputes concerning the audit and briefly detail the specific items of the final audit with which the Contractor disagrees. The Contractor may request a conference ("Appeal Conference") with the ACS Audit Review and Appeals Panel in its Appeal Request. The purpose of the Appeal Conference is to give the Contractor an opportunity to make an oral presentation and to document its objections to the audit findings, and to give the Audit Review and Appeals Panel an opportunity to clarify any issues.

4.

If the Contractor fails to request an Appeal Conference in its Appeal

Request, the ACS Audit Review and Appeals Panel shall make its determination based on the

final audit, the Final Audit Notification and the Appeal Request.

5. Ifthe Appeal Request contains a request for an Appeal Conference, the Appeal Conference shall be scheduled within thirty (30) days or as soon thereafter as possible. The Contractor will be notified, in writing, ofthe date and location of the Appeal Conference.

6. At the Appeal Conference the Contactor may make an oral and/or written presentation and respond to questions of the ACS Audit Review and Appeals Panel. There shall be no post-conference submissions, unless specifically requested by the ACS Audit Review and Appeals Panel.

7. The ACS Audit Review and Appeals Panel shall make a determination
regarding all items originally objected to by the Contractor. The Contractor shall be advised, in writing, ofthe ACS Audit Review and Appeals Panel's decision. The ACS Audit Review and Appeals Panel shall provide a detailed statement ofthe factual basis underlying its decision regarding any disallowance.

8. The decision of the ACS Audit Review and Appeals Panel shall be final and bindings on the parties. The ACS Audit Review and Appeals Panel may negotiate settlements regarding ACS audits or refer part or the entire audit back to the auditors.

9. The informed review procedure set forth above shall not be deemed to constitute a waiver, by either party, of any and all other rights or remedies at law or pursuant to this Agreement.

1 0. All notices to be provided pursuant to this Article shall be certified mail, return receipt requested.

Section 1 0.04 Recoupment

A. When any audit ofthe Contractor discloses overpayments and/or disallowed costs, which were previously made by the City to the Contractor, pursuant to any agreement between the Contractor and the City including this Agreement, ACS may, at its option, withhold for purposes of set-offmonies due and owing to the Contractor. The Contractor may propose a re-payment schedule; however such repayment schedule must be submitted to ACS within thirty (30) days from the Contractor's receipt of ACS' notification of overpayment and/or

62

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 69 of 123
disallowance. ACS in its sole discretion may accept or deny the Contractor's proposed repayment schedule.
B. Before ACS commences recoupment through set-off, based upon an ACS audit pursuant to this Agreement, the Contractor shall be afforded the opportunity to convene the audit dispute resolution procedure, as more fully described in this Article, and no set-off shall be made until such procedures are completed.
C. If an audit by ACS conducted pursuant to Section 1 0.02 ofthis Part II entitled "Audit by ACS" discloses an underpayment by ACS, ACS in its sole discretion, may pay the amount of the underpayment to the Contractor or offset the amount against amount owed by the Contractor to ACS, if any.
Section 10.05 Federal Audit Requirements
If applicable, the Contractor shall fulfill the audit requirements of the Federal Office of Management and Budget Circular A- 1 33, "Audits of lnstitutions ofHigher Education and Other Non-Profit Organizations," and shall provide such audit to ACS within thirty (30) days after its receipt ofthe final audit by the Contractor from the preparing accountant.
Section 10.06 State Charities Registration and Audit Requirements
If the Contractor is required by New York State law to register with and make annual filings to the Charities Bureau ofthe New York State Department of Law, timely compliance with such requirements shall be deemed a material term of this Agreement. The Contractor shall make available to ACS all such filings, including any audit and/or financial report required to be submitted with such filings, within thirty (30) days of receiving such final audit or financial report from its preparer, and in no event later than ten (10) days following the filing of such audit or :financial report with the Charities Bureau.
ARTICLE 1 1 . MONITORING, EVALUATION AND QUALITY IMPROVEMENT
Section 1 1.01 Monitoring, Evaluation and Quality Improvement
A. The Contractor shall have a quality assurance plan in place that describes how it will provide quality assurance, planning and program evaluation for Foster Children placed in its care.
B. Contractor Participation in ·collection of Information for Review Procedures: The Contractor shall participate in on-going ACS assessment, evaluation, and monitoring review procedures on the performance of Foster Care services and provide all information appropriate to allow ACS to conduct these review procedures and complete a full review of the Contractor's family foster care program.
63

• Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 70 of 123

C. ACS Data Collection and Program Evaluation

1. ACS shall collect and monitor data as part of a full evaluation process and monitor program performance indicators as appropriate and as needed. ACS shall provide data and the evaluation to the Contractor in a timely manner, as appropriate, to support the Contractor's decisions regarding any needed changes.

2. ACS will establish and notify the Contractor of evaluation standards prior to their implementation. Standards will be established in advance of the evaluation period. The Contractor will be afforded the opportunity to rebut an evaluation before it is made final by ACS.

3. ACS may in its sole discretion:

a.

Implement monitoring methods including, but not limited to, direct

contact with Recipients of Services including Foster Children and birth/caretaker families and

foster families by telephone or mail to assess the sufficiency, efficiency and adequacy of the

services performed.

b. Have ACS personnel visit the Contractor to enable ACS to assess
and determine the effectiveness of the Contractor's staffon a regular basis. During site visits, ACS personnel may provide technical assistance in solving problems affecting the provision of family foster care services.

c. Review all program activities, procedures, records., and records recording, and conduct other evaluatory activities as ACS deems necessary and appropriate, including, at reasonable times, unannounced and unscheduled visits.

d. Duplicate all of Contractor's records, forms, and other data, which ACS deems necessary as they relate to this Agreement.

D. ACS shall provide the Executive Director and Board of Directors of the Contractor with written information concerning the results ofmonitoring visit or evaluation.

E. All records ofthe Contractor kept pursuant to this Agreement shall be subject at all reasonable times to inspection, review or audit by City, State, or Federal personnel and other personnel duly authorized by ACS.

F. The Contractor agrees that a program and facilities review, including unannounced visits, meeting with Foster Children and birth/caretaker families and foster families, review of service records, review of service policy and procedural issuances, review of staffing ratios and job descriptions, and meetings with any staff directly or indirectly involved in the provision of services, may be conducted at any reasonable time by ACS, State and Federal personnel, or other persons duly authorized by ACS.

G. Monitoring and evaluation performed pursuant to this Agreement shall be in addition to, and shall not be deemed to limit, the right of the Comptroller, ACS and any Federal

64

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 71 of 123
or State governmental entity or their designees from conducting fiscal audits or other evaluations.
H. The parties to this Agreement recognize ACS's duty and authority to supervise, monitor, audit and review the activities ofthe Contractor in providing the family foster care services contemplated in this Agreement. The Contractor agrees to comply with ACS Policies and to provide the information required for any review or evaluation requested by ACS. The Contractor further agrees to implement corrective action plans required by ACS.
Section 1 1 .02 Capacity Building and Oversight (CBO) Review for Not-For-Profit Contractors
If requested by ACS, the Contractor must complete the Mayor's Office of Contract Services (MOCS) Capacity Building and Oversight (CBO) Review process. As part of that process, the Contractor must submit specified documents to the CBO unit of MOCS, which then conducts an evaluation of the Contractor and its operations for compliance with the terms of its contracts, its own by-laws, internal fiscal controls, applicable laws and regulations, and best practices in not-for-profit organization administration. The specified documents may include, but are not limited to, the Contractor's Internal Revenue Service ("IRS") determination of tax exemption, the most recent IRS Form 990 filing; the most recent audited financial statement (including the auditor's letter to the management), the functional budget for the current fiscal year in the format approved by the Board of Directors, an organizational chart identifying key staffby title, a copy ofthe most recently-approved Board Minutes, the by-laws of the corporation, a roster of the membership of the Board of Directors and a list of Board committees, the Contractor's current policies and procedures as adopted, and any other organizational documents, whether or not they are specifically required to be maintained pursuant to this contract or applicable laws and regulations. In the course ofthe CBO review process, MOCS may make recommendations to the Contractor, request the Contractor to take certain remedial actions and/or to implement certain policy changes. Any such recommendations and the Contractor's responses thereto, will be provided to the Department for its consideration and any appropriate actions under this contract.
ARTICLE 12. TERMINATION/EXPIRATION
Section 12.01 Termination
A. In addition to the termination rights set forth in Article 10 of Appendix A of this Agreement, ACS and the Contractor shall have the right to unilaterally terminate this Agreement in whole or in part, upon sixty (60) days' written notice to the other subject to the terms of this Agreement including Section 1 2.02(A) of this Part II entitled "Responsibilities after Notice of Termination or Expiration."
B. The City shall not incur or pay any further obligation pursuant to this Agreement beyond the termination date. The City shall pay for services provided in accordance with this Agreement prior to the termination date. Any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after the
65

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 72 of 123

termination date shall be paid by the City in accordance with the terms ofthis Agreement. In no event shall such obligation be construed as including any lease agreement, oral or written, entered into between the Contractor and its landlord.
Section 12.02 Responsibilities after Notice of Termination or Expiration
A. Upon ACS's receipt ofthe Contractor's notice to terminate this Agreement or the Contractor's receipt of ACS' notice of termination or expiration of this Agreement, ACS shall make its best efforts to arrange for the transfer or discharge of all Foster Children to another foster care provider, as soon as possible. Notwithstanding any provision in this Agreement, the Contractor agrees to continue to provide all care and services required by this Agreement and the Law for all Foster Children in the Contractor's care and not to discharge or refuse to continue to provide care and services to such charges until all Foster Children are transferred or discharged at the Commissioner's direction. ACS shall pay the Contractor the rate established in this Agreement or any modified rate established by OCFS, until all Foster Children are transferred or discharged. The City agrees to bring to the attention of OCFS the Contractor' s costs and expenses in closeout.
B. Upon notice of termination or expiration, the Contractor shall comply with all ACS close-out procedures, including but not limited to:
1 . Accounting for and refunding to ACS, within thirty (30) days after notice of termination or expiration, any unexpended funds which have been provided to the Contractor pursuant to this Agreement;
2. Furnishing within thirty (30) days after notice of termination or expiration an inventory to ACS of all equipment, appurtenances and property purchased through or provided under this Agreement and carrying out any ACS or City directive concerning the disposition of such equipment, appurtenances and property;
3. Turning over to ACS or its designees all books, records, documents and material specifically relating to this Agreement that the Department has requested be turned over;
4. Submitting to ACS, within ninety (90) days after termination or expiration, final report ofreceipt and expenditures of funds relating to the Agreement. The report shall be made by a CPA or a licensed public accountant;
5. Transmitting forthwith to ACS copies of all case records; and

contractor. C.

6. Providing reasonable assistance to ACS in the transition, if any, to a new This Section shall survive the termination or expiration of this Agreement.

66

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 73 of 123
Section 12.03 Threatened Termination by Contractor
The Contractor expressly agrees that it will not join together with other family foster care and/or residential care providers under contract with ACS to threaten termination of their respective agreements for the purpose of coercing ACS to modify or renegotiate the terms of an existing agreement. This provision is not intended to proscribe consultation among such ACS contracted family foster care and/or residential care providers.
Section 12.04 Miscellaneous
The requirements, rights and remedies provided in this Article shall not be exclusive and are in addition to all other requirements, rights and remedies provided by Law or under this Agreement, including Article 1 0 of Appendix A entitled "Termination, Default and Reduction in Funding."
ARTICLE 13. SURVIVAL OF TERMS
Section 13.01 Survival of Terms
Notwithstanding any other provision in this Agreement to the contrary, the provisions of this Agreement which are specified as surviving and/or provisions which by their nature contemplate effectiveness beyond the termination or expiration of this Agreement shall survive termination or expiration of this Agreement. Any such surviving provisions which require for their effectiveness the survival of other provisions of this Agreement shall also survive termination or expiration of this Agreement.
ARTICLE 14. CONTROLLING ORDER
Section 14.01 Controlling Order
ACS ' Request for Proposals ("RFP"), Contractor's proposal ("Proposal") and the negotiated addendum ("Negotiated Addendum") (if any) to the Proposal are attached hereto and made a part hereof. The terms and conditions of Part I and II and Appendix A of this Agreement shall govern in the event of any conflict with the RFP, the Proposal and the Negotiated Addendum to the Proposal. In the event that the Agreement is silent on any point, the terms and conditions of the RFP shall govern over any conflicting provision(s) of the Proposal and the Negotiated Addendum to the Proposal. In the event that the RFP is silent on any point, the terms and conditions of the Negotiated Addendum to the proposal shall govern over any conflicting provisions of the Proposal. Therefore, the controlling order shall be (1) the Agreement; (2) Attachment I -·the RFP; (3) Attachment IV - the Budget; (4) Attachment II - the Negotiated Addendum; (5) Attachment II - the Proposal.
[This portion of the page is intentionally left blank.]
67

ă +<

> Ăă

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 74 of 123

:Gҩ:#Gaҩ_a5aW" ҩ ҩҩ ҩҩ9
ҩ ҩ-ҩҩ ҩҩ.ҩҩ Lҩ
:#nҩW"ҩGaҩnW5Łҩ =g:Ǩ:#5#:WGҩ"W5ҩ_:b=5aGP  ҩa5:aҩ ʮWgg::WGa5ҩ

ҩ
ҩ Ŵ9ҩ  ҩÅҩ

WG#5#W5ҩ

4> -;< 6  >

#ҩ ='3#> D D
  ă  DD "Lҩaҩ:L=*ҩG*ҩҩ 
Lҩ 
LҩGҩ

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 75 of 123
##a W" Ga nW5Ł 4ҩ }}ҩ
WŬG#nҩW"ҩGaҩnW5Ł 4ҩ
$ HIҩ D ҩҩҩҩ
ҩ ҩҩ'ҩҩ'ҩҩҩҩҩ ҩ ҩ=g:G:#5#:WGҩ"W5ҩ ҩ ҩ:#nҩW"ҩGaҩnW5Ł ҩ ҩҩ
ҩҩ!ҩ ҩҩ ßҩß Õҩҩµ
ßҩ ҩҩ~ҩҩ ҩҩ ҩ ҩҩ ҩ į'ҩҩҩ ҩ ҩµ
ßҩ ҩyҩҩ ҩß ҩ ҩNҩ
GW#5nҩ)ŬCb:ҩ

##aҩW"ҩ 4ҩ  $$+> }}ҩ
WŬG#nҩW"ҩ 4ҩ  $
$

HIҩϏ ҩҩҩҩ
ҩ

ҩ' ҩ  ҩҩҩҩßҩ ҩҩ

*>

D

ҩ ҩ ҩҩ ҩ

 ҩ
 ҩ
ҩҩҩ  
 ҩµ
ßҩ  ҩҩ&< ~]ҩ ҩ ҩ'ҩ ҩҩҩҩ
 ]ҩ ҩďҩ ҩ .9ҩҩҩ~ҩҩß
 ҩ
 ҩ]ҩ ҩҩҩҩ.µҩҩҩҩ ҩCҩҩ =
ҩҩҩ
  ҩҩ ҩ ҩҩ ҩҩ ҩҩ'ҩLҩ

¡1ăA;6Bl8>l ,£w1ă<C23l@cdl]l,¾ă¦àíă
Gă#&A:,&/l 4Á¼ă5ăÚÃ8ă(ßùÛă (ÕÔ8ñ5ă Æê»:zì4ă+-l +#& + l

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 76 of 123
Appendix A December 2010 Final

APPENDIX A

GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL, TECHNICAL, HUMAN and CLIENT SERVICES

ARTICLE 1 - DEFINITIONS

Section 1.01 Definitions

The following words and expressions, or pronouns used in their stead, shall, wherever they appear in this Agreement, be construed as follows, unless a different meaning is clear from the context:

A. "Agency Chief Contracting Officer" or "ACCO" shall mean the position delegated authority by the Agency Head to organize and supervise the procurement activity of subordinate Agency staffin conjunction with the City ChiefProcurement Officer.

B. "Agreement" shall mean the various documents, including this Appendix A, that constitute the contract between the Contractor and the City.

C. "City" shall mean The City ofNew York.

D. "City Chief Procurement Officer" or "CCPO" shall mean the position delegated authority by the Mayor to coordinate and oversee the procurement activity of Mayoral agency staff, including the ACCOs.

E. "Commissioner" or "Agency Head" shall mean the head ofthe Department or his · or her duly authorized representative. The term "duly authorized representative" shall include any person or persons acting within the limits of his or her authority.

F. "Comptroller" shall mean the Comptroller of the City ofNew York.

G. "Contractor" shall mean the entity entering into this Agreement with the Department.

H. "Days" shall mean calendar days unless other-wise specifically noted to mean business days.

I.

"Department" or "Agency" shall mean the City agency that has entered into this

Agreement.

J.

"Law" or "Laws" shall mean the New York City Charter ("Charter"), the New

York City Administrative Code ("Admin. Code"), a local rule of the City of New York, the

Constitutions of the United States and the State of New York, a statute of the United States or of

the State of New York and any ordinance, rule or regulation having the force of law and adopted
pursuant thereto, as amended, and common law.

Page 1 of47

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 77 of 123
Appendix A December 2010_Final
K. "Procurement Policy Board" or "PPB" shall mean the board established pursuant to Charter § 3 1 1 whose funCtion is to establish comprehensive and consistent procurement policies and rules which have- broad application throughout the City.
L. "PPB Rules" shall mean the rules of the Procurement Policy Board as set forth in Title 9 of the Rules of the City of New York ("RCNY"), § 1 -01 et seq.
M. "State" shall mean the State of New York.
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
Section 2.01 Procurement of Agreement
A. The Contractor represents and warrants that no person or entity (other than an officer, partner, or employee working solely for the Contractor) has been employed or retained to solicit or secure this Agreement upon any agreement or understanding for a commission, percentage, brokerage fee, contingent fee or any other direct or indirect compensation. Notwithstanding the preceding sentence, the Contractor may retain consultants to draft proposals, negotiate contracts, and perform other similar services. The Contractor further represents and warrants that no payment, gift, or thing of value has been made, given, or promised to obtain this or any other agreement between the parties. The Contractor makes such representations and warranties to induce the City to enter into this Agreement and the City relies upon such representations and warranties in the execution ofthis Agreement.
B. For any breach or violation of the representations and warranties set forth in Paragraph A above, the Commissioner shall have the right to anun l this Agreement without liability, entitling the City to recover all monies paid to the Contractor; and the Contractor shall not make claim for, or be entitled to recover, any sum or sums due under this Agreement. The rights and remedies of the City provided in this Section are not exclusive and are in addition to all other rights and remedies allowed by Law or under this Agreement.
Section 2.02 Conflicts of Interest
A. The Contractor represents and warrants that neither it nor any of its directors, officers, members, partners or employees, has any interest nor shall they acquire any interest, directly or indirectly, which conflicts in any manner or degree with the performance of this Agreement. The Contractor further represents and warrants that no person having such interest
or possible interest shall be employed by or connected with the Contractor in the performance of
this Agreement.
B. Consistent with Charter § 2604 and other related provisions of the Charter, the Admin. Code and the New York State Penal Law, no elected official or other officer or employee of the City, nor any person whose salary is payable, in whole or in part, from the City Treasury, shall participate in any decision relating to this Agreement which affects his or her personal
Page 2 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 78 of 123
Appendix A December 2010 Final
interest or the interest of any corporation, partnership or other entity in which he or she is, directly or indirectly, interested; nor shall any such official, officer, employee, or person have any interest in, or in the proceeds of, this Agreement. This Paragraph B shall not prevent directors, officers, members, partners, or employees of the Contractor from participatiµg in decisions relating to this Agreement where their sole personal interest is in the Contractor.
C. The Contractor shall not employ a person or permit a person to serve as a member
of the Board of Directors or as an officer of the Contractor if such employment or service would violate Chapter 68 ofthe Charter.
[PARAGRAPHS D-H ARE APPLICABLE ONLY TO HUMAN OR CLIENT SERVICE CONTRACTS.]
D. Except as provided in Paragraph E below, the Contractor's employees and members of their immediate families, as defined in- Paragraph F below, may not serve · on the Board of Directors of the Contractor ("Board"), or any committee with authority to order personnel actions affecting his or her job, or which, either by rule or by . practice, regularly nominates, recommends or screens candidates for employment in the program to be operated pursuant to this Agreement.
E. If the Board has more than five (5) members, then Contractor's employees and members of their immediate families may serve on the Board, or any committee with authority to order personnel actions affecting his or her job, or which, either by rule or by practice, regularly nominates, recommends or screens candidates for employment in the program to be operated pursuant to this Agreement, provided that (i) Contractor's employees and members o f their immediate families are prohibited from voting on any such personnel matters, including but not limited to any matters directly affecting their own salary or other compensation, and shall fully disclose all conflicts and potential conflicts to the Board, and (ii) Contractor's employees and members of their immediate families may not serve in the capacity either of Chairperson or Treasurer of the Board (or equivalent titles), nor constitute more than one-third of either the Board or any such committee.
F. Without the prior written consent of the Commissioner, no person may hold a job or position with the Contractor over which a member of his or her immediate family exercises any supervisory, managerial or other authority whatsoever whether such authority is reflected in a job title or otherwise, unless such job or position is wholly voluntary and unpaid. A member of an immediate family includes: husband, wife, domestic partner, father, father-in-law, mother, mother-in-law, brother, brother-in-law, sister, sister-in-law, son, son-in-law, daughter, daughter­ in-law, niece, nephew, aunt, uncle, first cousin, and separated spouse. Where a member of an immediate family has that status because of that person's relationship to a spouse (e.g., father-in­ law), that status shall also apply to a relative of a domestic partner. For purposes of this Section, a member of the Board is deemed to exercise authority over all employees of the Contractor.
G. If the Contractor has contracts with the City that in the aggregate during any twelve-month period have a value of more than One Million Dollars ($ 1 ,000,000) and such amount constitutes more than fifty percent (50%) of the Contractor's total revenues, then the
Page 3 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 79 of 123
Appendix A December 2010 Final
Contractor must have a minimum of five (5) persons on its Board.
H. Paragraphs D-H of this Section 2;02 apply only if Contractor is a not-for-profit corporation.
Section 2.03 Fair Practices
A. The Contractor and each person signing on its behalf certifies, under penalties of perjury, that to the best of its, his or her knowledge and belief:
1 . The prices and other material terms set forth in this Agreement have been arrived at independently, without collusion, consultation, communication, or agreement with any other bidder or proposer or with any competitor as to any matter relating to such . prices or terms for the purpose of restricting competition;
2. Unless otherwise required by Law or where a schedule ofrates or prices is uniformly established by a government agency through regulation, policy or directive, the prices and other material terms set forth in this Agreement which have been quoted in this Agreement and on the bid or proposal submitted by the Contractor have not been knowingly disclosed by the Contractor, directly or indirectly, to any other bidder or proposer or to any competitor prior to the bid or proposal opening; and
3 . No attempt has been made or will be made b y the Contractor to induce any other person or entity to submit or not to submit a bid or proposal for the purpose of restricting competition.
B. The fact that the Contractor (i) has published price lists, rates, or tariffs covering items being procured, (ii) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (iii) has sold the same items to other customers at the same prices and/or terms being bid or proposed, does not constitute, without more, a disclosure within the meaning of this Section.
Section 2.04 VENDEX
The Contractor represents and warrants that it and its principals have duly executed and filed all required VENDEX Questionnaires and, if applicable, Certificates of No Change, pursuant to PPB Rule § 2-08 and in accordance with the policies and procedures of the Mayor' s Office of Contract Services. The Contractor understands that the Department's reliance upon the completeness and veracity of the information stated therein is a material condition to the execution of this Agreement, and represents and warrants that the information it and its principals have provided is accurate and complete.
Section 2.05 Political Activity
The Contractor' s provision of services under this Agreement shall not include any partisan political activity or any activity to further the election or defeat of any candidate for
Page 4 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 80 of 123
Appendix A December 2010 Final
public, political, or party office, nor shall any of the funds provided under this Agreement be used for such purposes.
Section 2.06 Religious Activity ; ,
There shall be no religious worship, instruction or proselytizing as part of or in connection with the Contractor's provision of services under this Agreement, nor shall any of the funds provided under this Agreement be used for such purposes.
Section 2.07 Unlawful Discriminatory Practices: Admin. Code § 6-123
As required by Admin. Code § 6-123, the Contractor will not engage in any unlawful discriminatory practice as defined in and pursuant to the terms of Title 8 of the City Administrative Code. The Contractor shall include a provision in any agreement with a first­ level subcontractor performing services under this Agreement for an amount in excess of Fifty Thousand Dollars ($50,000) that such subcontractor shall not engage in any such unlawful discriminatory practice.
Section 2.08 Bankruptcy and Reorganization
In the event that the Contractor files for bankruptcy or reorganization under Chapter Seven or Chapter Eleven of the United States Bankruptcy Code, the Contractor shall disclose such action to the Department within seven (7) days of filing.
ARTICLE 3 - ASSIGNMENT AND SUBCONTRACTING
Section 3.01 Assignment
A. The Contractor shall not assign, transfer, convey or otherwise dispose o f this Agreement, or the right to execute it, or the right, title or interest in or to it or any part of it, or assign, by power of attorney or otherwise, any of the monies due or to become due under this Agreement, without the prior written consent of the Commissioner. The giving of any such consent to a particular assignment shall not dispense with the necessity of such consent to any further or other assignments. Any such assignment, transfer, conveyance or other disposition without such written consent shall be void.
B. Before entering into any such assignment, transfer, conveyance or other disposal of this Agreement, the Contractor shall submit a written request for approval to the Department giving the name and address of the proposed assignee. The proposed assignee's VENDEX questionnaire must be submitted within thirty (30) Days after the ACCO has granted preliminary written approval of the proposed assignee, if required. Upon the request of the Department, the Contractor shall provide any other information demonstrating that the proposed assignee has the necessary facilities, skill, integrity, past experience and financial resources to perform the specified services in accordance with the terms and conditions of this Agreement. The Agency shall make a final determination in writing approving or disapproving the assignee after receiving all requested information.
Page 5 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 81 of 123
Appendix A December 2010 Final
C. Failure to obtain the prior written consent to such an assignment, transfer, conveyance, or other disposition may result in the revocation and annulment of this Agreement, at the option of the Commissioner. The City shall thereupon be relieved and discharged from any further liability and obligation to the Contractor, its assignees, or transferees, who shall forfeit all monies earned under this Agreement, except so much as may be necessary to p ay the Contractor's employees.
D. The provisions of this Section shall not hinder, prevent, or affect an assignment by the Contractor for the benefit of its creditors made pursuant to the Laws ofthe State.
E. This Agreement may be assigned, in whole or in part, by the City to any corporation, agency, or instrumentality having authority to accept such assignment. The City shall provide the Contractor with written notice of any such assignment.
Section 3.02 Subcontracting
A. The Contractor shall not enter into any subcontract for an amount greater than Five Thousand Dollars ($5,000) for the performance of its obligations, in whole or in part, under this Agreement without the prior approval by the Department of the subcontractor. The Department hereby grants approval for all subcontracts for an amount that does not exceed Five Thousand Dollars ($5,000). The Contractor must submit monthly reports to the Department indicating all such subcontractors. All subcontracts must be in writing.
B. Prior to entering into any subcontract for an amount greater than Five Thousand Dollars ($5,000), the Contractor shall submit a written request for the approval of the proposed subcontractor to the Department giving the name and address of the proposed subcontractor and the portion of the services that it is to perform and furnish. At the request of the Department, a copy of the proposed subcontract shall be submitted to the Department. The proposed subcontractor's VENDEX Questionnaire must be submitted, if required, within thirty (3 0) Days after the ACCO has granted preliminary approval of the proposed subcontractor. Upon the request of the Department, the Contractor shall provide any other information demonstrating that the proposed subcontractor has the necessary facilities, skill, integrity, past experience and financial resources to perform the specified services in accordance with the terms and conditions of this Agreement. The Agency shall make a final determination in writing approving or disapproving the subcontractor after receiving all requested information. For proposed subcontracts that do not exceed Twenty-five Thousand Dollars ($25,000), the Department' s approval shall b e deemed granted i f the Department does not issue a written approval or disapproval within forty-five (45) Days of the Department's receipt of the written request for approval or, if applicable, within forty-five (45) Days of the Department's acknowledged receipt of fully completed VENDEX Questionnaires for the subcontractor.
C. All subcontracts shall contain provisions specifying that:
1 . The work performed by the subcontractor must be in accordance with the terms of the agreement between the City and the Contractor;
Page 6 of48

• Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 82 of 123
Appendix A December 2010 Final
2. Nothing contained in the agreement between the Contractor and the subcontractor shall impair the rights of the City;
'
3 . Nothing contained in the agreement between the Contractor and the subcontractor, or under the agreement between the City and the Contractor, shall create any contractual relation between the subcontractor and the City; and
4. The subcontractor specifically agrees to be bound by Section 4.07 and Article 5 of this Appendix A and specifically agrees that the City may enforce such provisions directly against the subcontractor as if the City were a party to the subcontract.
D. The Contractor agrees that it is as fully responsible to the Department for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by such subcontractors as it is for the acts and omissibns of any person directly employed by it. · ·
E. For determining the value of a subcontract, all subcontracts with the same subcontractor shall be aggregated.
F. The Department may revoke the approval of a subcontractor granted or deemed granted pursuant to Paragraphs (A) and (B) of this section if revocation is deemed to be in the interest of the City in writing on no less than ten (10) Days notice unless a shorter period is warranted by considerations of health, safety, integrity issues or other similar factors. Upon the effective date of such revocation, the Contractor shall cause the subcontractor to cease all work under the Agreement. The City shall not incur any further obligation for services performed by such subcontractor pursuant to this Agreement beyond the effective date of the revocation. The City shall pay for services provided by the subcontractor in accordance with this Agreement prior to the effective date of revocation.
G. The Department's approval of a subcontractor shall not relieve the Contractor of any of its responsibilities, duties and liabilities under this Agreement. At the request of the Department, the Contractor shall provide the Department a copy of any subcontract.
H. Individual employer-employee contracts are not subcontracts subject to the requirements of this Section.
ARTICLE 4 - LABOR PROVISIONS
Section 4.01 Independent Contractor Status
The Contractor and the Department agree that the Contractor is an independent contractor and not an employee of the Department or the City. Accordingly, neither the Contractor nor its employees or agents will hold themselves out as, or claim to be, officers or employees of the City, or of any department, agency or unit ofthe City, by reason of this Agreement, and they will not, by reason of this Agreement, make any claim, demand or application to or for any right or benefit applicable to an officer or employee of the City, including, but not limited to, Workers'
Page 7 of48

e • Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 83 of 123
App£'.ndix A December 201 0 Final
Compensation coverage, Disability Benefits coverage, Unemployment Insurance benefits, Social Security coverage or employee retirement membership or credit.
' Section 4.02 Employees
All persons who are employed by the Contractor and all consultants or independent contractors who are retained by the Contractor to perform services under this Agreement are neither employees of the City nor under contract with the City. The Contractor, and not the City, is responsible for their work, direction, compensation, and personal conduct while engaged under this Agreement. Nothing in the Agreement shall impose any liability or duty on the City for the acts, omissions, liabilities or obligations of the Contractor, or any officer, employee, or agent of the Contractor, or for taxes of any nature, or for any right or benefit applicable to an officer or employee of the City, including, but not limited to, Workers' Compensation coverage, Disability Benefits coverage, Unemployment Insurance benefits, Social Security coverage or employee
retirement membership or credit. Except as specifically stated in this Agreement, nothing in this
Agreement shall impose any liability or duty on the City to any person or entity.
Section 4.03 Removal of Individuals Performing Work
The Contractor shall not have anyone perform work under this Agreement who is not competent, faithful and skilled in the work for which he or she shall be employed. Whenever the Commissioner shall inform the Contractor, in writing, that any individual is, in his or her opinion, incompetent, unfaithful, or unskilled, such individual shall no longer perform work under this Agreement. Prior to making a determination to direct a Contractor that an individual shall no longer perform work under this Agreement, the Commissioner shall provide the Contractor an opportunity to be heard on no less than five (5) Days' written notice. The Commissioner may direct the Contractor not to allow the individual from performing work under the Agreement pending the opportunity to be heard and the Commissioner's determination.
Section 4.04 Minimum Wage
Except for those employees whose minimum wage is required to be fixed pursuant to Sections 220 or 230 of the New York State Labor Law or by City Administrative Code § 6- 1 09, all persons employed by the Contractor in the performance of this Agreement shall be paid, without subsequent deduction or rebate, unless expressly authorized by Law, not less than the minimum wage as prescribed by Law. Any breach of this Section shall be deemed a material breach of this Agreement.
Section 4.05 Non-Discrimination: New York State Labor Law § 220-e
A. If this Agreement is for the construction, alteration or repair of any public building or public work or for the manufacture, sale, or distribution of materials, equipment, or supplies, the Contractor agrees, as required by New York State Labor Law § 220-e, that:
1 . In the hiring of employees for the performance of work under this Agreement or any subcontract hereunder, neither the Contractor, subcontractor, nor any
Page 8 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 84 of 123
F!l Appendix A December 2010
person acting on behalf of such Contractor or subcontractor, shall by reason o f race, creed, color, disability, sex or national origin discriminate against any citizen of the State of New York who is qualified and available to perform the work to which the employment relates;
2. Neither the Contractor, subcontractor, nor any person on his or her behalf shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, creed, color, disability, sex or national origin;
3 . There may be deducted from the amount payable to the Contractor by the City under this Agreement a penalty of Fifty Dollars ($50) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provi_sions of this Agreement; and
4. This Agreement may be terminated by the City, and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation o f the terms or conditions of this Section.
B. The provisions of this Section shall be limited to operations performed within the territorial limits of the State of New York.
Section 4.06 Non-Discrimination: Admin. Code § 6-108
If this Agreement is for the construction, alteration or repair of buildings or the construction or repair of streets or highways, or for the manufacture, sale, or distribution of materials, equipment or supplies, the Contractor agrees, as required by New York City Administrative Code § 6-108, that:
A. It shall be unlawful for any person engaged in the construction, alteration or repair of buildings or engaged in the construction or repair of streets or highways pursuant to a contract with the City or engaged in the manufacture, sale or distribution of materials, equipment or supplies pursuant to a contract with the City to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person.
B. It shall be unlawful for any person or any servant, agent or employee o f any person, described in Paragraph A above, to ask, indicate or transmit, orally or in writing, directly or indirectly, the race, color, creed or religious affiliation of any person employed or seeking employment from such person, firm or corporation.
C. Breach of the foregoing provisions shall be deemed a breach of a material provision of this Agreement.
D. Any person, or the employee, manager or owner of or officer of such firm or corporation who shall violate any of the provisions of this Section shall, upon conviction thereof, be punished by a fine of not more than One Hundred Dollars ($ 1 00) or by imprisonment for not
Page 9 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 85 of 123
Appendix A December 2010 Final
more than thirty (30) Days, or both.
Section 4.07 Non-Discrimination: E.O. 50 -- Equal Employment Opportunity
' ,
A. This Agreement is subject to the requirements of City Executive Order No. 50 ( 1 980) ("E.O. 50"), as revised, and the rules set forth at 66 RCNY § 10-01 et seq. No agreement will be awarded unless and until these requirements have been complied with in their entirety. The Contractor agrees that it:
1 . Will not discriminate unlawfully against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability, marital status, sexual orientation or citizenship status with respect to all employment decisions including, but not limited to, recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employment;
2. Will not discriminate unlawfully in the selection of subcontractors on the basis of the owners', partners' or shareholders' race, color, creed, national origin, sex, age, disability, marital status, sexual orientation, or citizenship status;
3 . Will state in all solicitations or advertisements for employees placed by or on behalf of the Contractor that all qualified applicants will receive consideration for employment without unlawful discrimination based on race, ·color, creed, national origin, sex, age, disability, marital status, sexual orientation or citizenship status, and that it is an equal employment opportunity employer;
4. Will send to each labor organization or representative of workers with
which it has a collective bargaining agreement or other contract or memorandum of
understanding, written notification of its equal employment opportunity commitments under E.O. 50 and the rules and regulations promulgated thereunder;
5. Will furnish before this Agreement is awarded all information and reports including an Employment Report which are required by E.O. 50, the rules and regulations promulgated thereunder, and orders of the City Department of Small Business Services, Division of Labor Services ("DLS"); and
6. Will permit DLS to have access to all relevant books, records, and accounts for the purposes of investigation to ascertain compliance with such rules, regulations, and orders.
B. The Contractor understands that in the event of its noncompliance with the nondiscrimination clauses of this Agreement or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of this Agreement and noncompliance with E.O. 50 and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of DLS, the Director of DLS may direct the Commissioner to impose any or all of the following sanctions:
Page 10 of 48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 86 of 123
F!l Appendix A December 2010

1. Disapproval ofthe Contractor; and/or

2. Suspension or termination of the Agreement; and/or 3 . Declaring the Contractor in default; and/or

4. program.

In lieu of any of the foregoing sanctions, imposition of an employment

C. Failure to comply with E.O. 50 and the rules and regulations promulgated
thereunder in one or more instances may result in the Department declaring the Contractor to be non-responsible.

D. The Contractor agrees to include the provisions of the foregoing Paragraphs in every subcontract or purchase order in excess of One Hundred Thousand Dollars ($ 1 00,000) to which it becomes a party unless exempted by E.O. 50 and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be
directed by the Director of DLS as a means of enforcing such provisions including sanctions for
noncompliance. A supplier of unfinished products to the Contractor needed to produce the item contracted for shall not be considered a subcontractor or vendor for purposes of this Paragraph.

E. The Contractor further agrees that it will refrain from entering into any subcontract or modification thereof subject to E.O. 50 and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 5 0 and the rules and regulations promulgated thereunder. A supplier of unfinished products to the Contractor needed to produce the item contracted for shall not be considered a subcontractor for purposes of this Paragraph.

F. Nothing contained in this Section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised or controlled by or in connection with a religious organization, from lawfully limiting employment or lawfully giving preference to persons of the same religion or denomination or from lawfully making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.

ARTICLE 5 - RECORDS, AUDITS, REPORTS, AND INVESTIGATIONS

Section 5.01 Books and Records

The Contractor agrees to maintain separate and accurate books, records, documents and other evidence, and to utilize appropriate accounting procedures and practices, which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement.

Page 1 1 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 87 of 123
Appendix A December 2010 Final

Section 5.02 Retention of Records

The Contractor agrees to retain all books, records, and other documents relevant to this

Agreement, including those required pursuant to Section 5.01, for six years after the final

payment or expiration or termination of this Agreement, or for a period otherwise prescrib ed by

Law, whichever is later. In addition, if any litigation, claim, or audit concerning this Agreement

has commenced before the expiration of the six-year period, the records must be retained until

the completion of such litigation, claim, or audit. Any books, records and other documents that

are created in an electronic format in the regular course of business may be retained in an

electronic course of

format. business

Any books, records, as a paper copy may

banedreottahinereddoinc.uamneenltescttrhoanticarfeorcmreaattepdroivnidtehde

regular that the

records satisfy the requirements of New York Civil Practice Law and Rules ("CPLR") 4539{b),

.i11cluding the requirement that the reproduction is created in a manner "which does not permit

additions, deletions, or changes without leaving a record of such additions, deletions, or

changes." Furthermore, the Contractor agrees to waive any objection to the admissibility of any

such books, records or other documents on the grounds that such documents do not satisfy CPLR

4539{b).

Section 5.03 Inspection

A. At any time during the Agreement or during the record retention period set forth in section 5.02, the City, including the Department and the Department's Office of the Inspector General, as well as City, State and federal auditors and any other persons duly authorized by the City shall, upon reasonable notice, have full access to and the right to examine and copy all books, records, and other documents maintained or retained by or on behalf of the Contractor pursuant to this Article. Notwithstanding any provision herein regarding notice of inspection, all books, records and other documents of the Contractor kept pursuant to this Agreement shall be subject to immediate inspection, review, and copying by the Department's Office of the Inspector General and/or the Comptroller without prior notice and at no additional cost to the City. The Contractor shall make such books, records and other documents available for inspection in the City of New York or shall reimburse the City for expenses associated with the out-of-City inspection.

B. The Department shall have the right to have representatives of the Department or of the City, State or federal government present to observe the services being performed.

C. The Contractor shall not be entitled to final payment until the Contractor has complied with any request for inspection or access given under this Section.

Section 5.04 Audit

A. This Agreement and all books, records, documents, and other evidence required to be maintained or retained pursuant to this Agreement, including all vouchers or invoices presented for payment and the books, records, and other documents upon which such vouchers or invoices are based (e.g., reports, cancelled checks, accounts, and all other similar material), are

Page 1 2 of 48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 88 of 123
! Appendix A December 2010 F l
subject to audit by (i) the City, including the Comptroller, the Department, and the Department's Office of the Inspector General, (ii) the State, (iii) the federal government, and (iv) other persons duly authorized by the City. Such audits may include examination and review of the source and application of all funds whether from the City, the State, the federal government, private sources or otherwise.
B. Audits by the City, including the Comptroller, the Department, and the Department' s Office of the Inspector General, are performed pursuant to the powers and
responsibilities conferer d by the Charter and the Admin. Code, as well as all orders, rules, and
regulations promulgated pursuant to the Charter and Admin. Code.
C. The Contractor shall submit any and all documentation and justification in support of expenditures or fees under this Agreement as may be required by the Department and by the Comptroller in the exercise of his/her powers under La_w:
D. The Contractor shall not be �ntitled to final payment until the Contractor has complied with the requirements of this Section.
Section 5.05 No Removal of Records from Premises
Where performance of this Agreement involves use by the Contractor of any City books, records, documents, or data (in hard copy, or electronic or other format now known or developed in the future) at City facilities or offices, the Contractor shall not remove any such data (in the format in which it originally existed, or in any other converted or derived format) from such facility or office without the prior written approval of the Department's designated official. Upon the request by the Department at any time during the Agreement or after the Agreement has expired or terminated, the Contractor shall return to the Department any City books, records, documents, or data that has been removed from City premises.
Section 5.06 Electronic Records
As used in this Appendix A, the terms books, records, documents, and other data refer to electronic versions as well as hard copy versions.
Section 5.07 Investigations Clause
A. The Contractor agrees to cooperate fully and faithfully with any investigation, audit or inquiry conducted by a State or City agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry.
B. L If any person who has been advised that his or her statement, and any information from such statement, will not be used against him or her in any subsequent criminal proceeding refuses to testify before a grand jury or other governmental agency
Page 1 3 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 89 of 123
Appendix A December 2010 Final

or authority empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath concerning the award of or performance under any transaction, agreement, lease, permit, contract, or license entered into with the City, or State, or any political subdivision or public authority thereof, or the Port Authority of New York and New Jersey, or any local development corporation within the City, or any public benefit corporation organized under the Laws ofthe State, or;

2.

If any person refuses to testify for a reason other than the assertion of his

or her privilege against self-incrimination in an investigation, audit or inquiry conducted

by a City or State governmental agency or authority empowered directly or by

designation to compel the attendance of witnesses and to take testimony under oath, or by

the Inspector General of the governmental agency that is a party in interest in, and is

seeking testimony concerning the award of, or performance under, any transaction,

agreement, l�a�e, permit, contract, or license entered into with the City, the State, or any

political subdivision thereof or any local development corporation within the City, then;

C. 1 . The Commissioner or Agency Head whose agency is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license shall convene a hearing, upon not less than five (5) Days written notice to the parties involved to determine if any penalties should attach for the failure of a person to testify.

2.

If any non-governmental party to the hearing requests an adjournment, the

Commissioner or Agency Head who convened the hearing may, upon granting the

adjournment, suspend any contract, lease, permit, or license pending the final

determination pursuant to Paragraph E below without the City incurring any penalty or

damages for delay or otherwise.

D. The penalties that may attach after a final determination by the Commissioner or Agency Head may include but shall not exceed:

1 . The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person, or any entity of which such person was a member at the time the testimony was sought, from submitting bids for, or transacting business with, or entering into or obtaining any contract, lease, permit or license with or from the City; and/or

2. The cancellation or termination of any and all such existing City contracts, leases, permits or licenses that the refusal to testify concerns and that have not been assigned as permitted under this Agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value prior to the issuance of the notice scheduling the hearing, without the City incurring any penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, or fees accrued prior to the cancellation or termination shall be paid by the City.

E. The Commissioner or Agency Head shall consider and address in reaching his or

Page 14 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 90 of 123
F!l Appendix A December 2010
her determination and in assessing an appropriate penalty the factors in Paragraphs ( 1 ) and (2) below. He or she may also consider, if relevant and appropriate, the criteria established in Paragraphs (3) and (4) below, in addition to any other information that may be relevant and appropriate:
1 . The party' s good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigation or audit, including but not limited to the discipline, discharge, or disassociation of any person failing to testify, the production of accurate and complete books and records, and the forthcoming testimony of all other members, agents, assignees or fiduciaries whose testimony is sought.
2. The relationship of the person who refused to testify to any entity that is a party to the hearing, including, but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity.
3 . The nexus of the testimony sought to the subject entity and its contracts, leases, permits or licenses with the City.
4. The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under Paragraph D above, provided that the party or entity has given actual notice to the Commissioner or Agency Head upon the acquisition of the interest, or at the hearing called for in Paragraph (C)(l) above gives notice and proves that such interest was previously acquired. Under either circumstance, the party or entity must present evidence at the hearing demonstrating the potential adverse impact a penalty will have on such person or entity.
F. Definitions
1 . The term "license" or "permit" as used in this Section shall be defined as a license, permit, franchise, or concession not granted as a matter of right.
2. The term "person" as used in this Section shall be defined as any natural person doing business alone or associated with another person or entity as a partner, director, officer, principal or employee.
3 . The term "entity" as used in this Section shall be defined as any firm, partnership, corporation, association, or person that receives monies, benefits, licenses, leases, or permits from or through the City, or otherwise transacts business with the City.
4. The term "member" as used in this Section shall be defined as any person associated with another person or entity as a partner, director, officer, principal, or employee.
G. In addition to and notwithstanding any other provision of this Agreement, the
Page 1 5 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 91 of 123
�ppendix A December 2010 Final
Commissioner or Agency Head may in his or her sole discretion terminate this Agreement upon not less than three (3) Days written notice in the event the Contractor fails to promptly report in writing to the City Commissioner of Investigation any solicitation of money, goods, requests for ,future employment or other benefits or thing of value, by or on behalf of any employee o f the . City or other person or entity for any purpose that may be related to the procurement or obtaining of this Agreement by the Contractor, or affecting the performance of this Agreement.
Section 5.08 Confidentiality
A. The Contractor agrees to hold confidential, both during and after the completion or termination of this Agreement, all of the reports, information, or data, furnished to, or prepared, assembled or used by, the Contractor under this Agreement. The Contractor agrees that such reports, information, or data shall not be made available to any person or entity without the prior written approval of the Department. The Contractor agrees to maintain the confidentiality of such reports, information, or data by using a reasonable degree of care, and using at least the same degree of care that the Contractor uses to preserve the confidentiality of its own confidential information. In the event that the data contains social security numbers or other Personal Identifying Information, as such term is defined in Paragraph B of this Section, the Contractor shall utilize best practice methods (e.g., encryption of electronic records) to protect the confidentiality of such data. The obligation under this Section to hold reports, information or data confidential shall not apply where the City would be required to disclose such reports, information or data pursuant to the State Freedom of Information Law ("FOIL"), provided that the Contractor provides advance notice to the City, in writing or by e-mail, that it intends to disclose such reports, information or data and the City does not inform the contractor, in writing or by e-mail, that such reports, inforniation, or data are not subject to disclosure under FOIL.
B. The Contractor shall provide notice to the Department within three (3) days of the discovery by the Contractor of any breach of security, as defined in Admin. Code § 10-501 (b), of any data, encrypted or otherwise, in use by the Contractor that contains social security numbers or other personal identifying information as defined in Admin. Code § 1 0-501 ("Personal Identifying Information"), where such breach of security arises out ofthe acts or omissions of the Contractor or its employees, subcontractors, or agents. Upon the discovery of such security breach, the Contractor shall take reasonable steps to remediate the cause or causes o f such breach, and shall provide notice to the Department of such steps. In the event of such breach of security, without limiting any other right of the City, the City shall have the right to withhold further payments under this Agreement for the purpose of set-off in sufficient sums to cover the costs of notifications and/or other actions mandated by any Law, or administrative or j udicial order, to address the breach, and including any fines or disallowances imposed by the State or federal government as a result of the disclosure. The City shall also have the right to withhold further payments hereunder for the purpose of set-off in sufficient sums to cover the costs of credit monitoring services for the victims of such a breach of security by a national credit reporting agency, and/or any other commercially reasonable preventive measure. The Department shall provide the Contractor with written notice and an opportunity to comment on such measures prior to implementation. Alternatively, at the City's discretion, or if monies remaining to be earned or paid under this Agreement are insufficient to cover the costs detailed
Page 1 6 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 92 of 123
Fial Appendix A December 2010

above, the Contractor shall pay directly for the costs, detailed above, if any.

C. The Contractor shall restrict access to confidential information to persons who

have a legitimate work related purpose to access such information. The Contractor agrees that it

;

will instruct its officers, employees, and agents to maintain the confidentiality of any and all

'

information required to be kept confidential by this Agreement.

D. The Contractor, and its officers, employees, and agents shall notify the Department, at any time either during or after completion or termination of this Agreement, of any intended statement to the press or any intended issuing of any material for publication in any media of communication (print, news, television, radio, Internet, etc.) regarding the services provided or the data collected pursuant to this Agreement at least twenty-four (24) hours prior to any statement to the press or at least five (5) business Days prior to the submission of the material for publication, or such shorter periods as are reasonable under the circumstances. The Contractor may not issue any statement or submit any material for publication that includes
confidential information as prohibited by this Section 5.08.

E. At the request of the Department, the Contractor shall return to the Department any and all confidential information in the possession of the Contractor or its subcontractors. If the Contractor or its subcontractors are legally required to retain any confidential information, the Contractor shall notify the Department in writing and set forth the confidential information that it intends to retain and the reasons why it is legally required to retain such information. The Contractor shall confer with the Department, in good faith, regarding any issues that arise from the Contractor retaining such confidential information. If the Department does not request such information, or the Law does not require otherwise, such information shall be maintained in accordance with the requirements set forth in Section 5 .02.

F. A breach of this Section shall constitute a material breach of this Agreement for which the Department may terminate this Agreement pursuant to Article 10. The Department reserves any and all other rights and remedies in the event of unauthorized disclosure.

ARTICLE 6 - COPYRIGHTs, PATENTS, INVENTIONS, and ANTITRUST

Section 6.01 Copyrights

A. Any reports, documents, data, photographs, deliverables, and/or other materials produced pursuant to this Agreement, and any and all drafts and/or other preliminary materials in any format related to such items produced pursuant to this Agreement, shall upon their creation become the exclusive property of the City.

B. Any reports, documents, data, photographs, deliverables, and/or other materials provided pursuant to this Agreement ("Copyrightable Materials") shall be considered "work­ made-for-hire" within the meaning and purview of Section 1 0 1 of the United States Copyright Act, 1 7 U.S.C. § 1 0 1 , and the City shall be the copyright owner thereof and of all aspects, elements and components thereof in which copyright protection might exist. To the extent that

Page 1 7 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 93 of 123
Appendix A Decem�er 2010 Final
the Copyrightable Materials do not qualify as ''work-made-for-hire," the Contractor hereby
irrevocably transfers, assigns and conveys exclusive copyright ownership in and to the Copyrightable Materials to the City, free and clear of any liens, claims, or other encumbrances. The Contractor shall retain no copyright or intellectual property interest in the Copyrightable Materials. The Copyrightable Materials shall be used by the Contractor for no purpose other than in the performance of this Agreement without the prior written permission of the City. The Department may grant the Contractor a license to use the Copyrightable Materials on such terms as determined by the Department and set forth in the license.
C. The Contractor acknowledges that the City may, in its sole discretion, register copyright in the Copyrightable Materials with the United States Copyright Office or any other government agency authorized to grant copyright registrations. The Contractor shall fully cooperate in this effort, and agrees to provide any and all documentation necessary to accomplish this.
D. The Contractor represents and warrants that the Copyrightable Materials: (i) are wholly original material not published elsewhere (except for material that is in the public domain); (ii) do not violate any copyright Law; (iii) do not constitute defamation or invasion of the right of privacy or publicity; and (iv) are not an infringement, of any kind, of the rights of any third party. To the extent that the Copyrightable Materials incorporate any non-original material, the Contractor has obtained all necessary permissions and clearances, in writing, for the use of such non-original material under this Agreement, copies of which shall be provided to the City upon execution of this Agreement.
E. If the services under this Agreement are supported by a federal grant of funds, the federal and State government reserves a royalty-free, non-exclusive irrevocable license to reproduce, publish, or otherwise use and to authorize others to use, for federal or State government purposes, the copyright in any Copyrightable Materials developed under this Agreement.
F. If the Contractor publishes a work dealing with any aspect of performance under this Agreement, or with the results of such performance, the City shall have a royalty-free, non­ exclusive irrevocable license to reproduce, publish, or otherwise use such work for City governmental purposes.
Section 6.02 Patents and Inventions
The Contractor shall promptly and fully report to the Department any discovery or invention arising out of or developed in the course of performance of this Agreement. If the services under this Agreement are supported by a federal grant of funds, the Contractor shall promptly and fully report to the federal government for the federal government to make a determination as to whether patent protection on such invention shall be sought and how the rights in the invention or discovery, including rights under any patent issued thereon, shall be disposed of and administered in order to protect the public interest.
Section 6.03 Pre-existing Rights
Page 1 8 of 48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 94 of 123
! Appendix A December 2010 F l
In no case shall Sections 6.01 and 6.02 apply to, or prevent the Contractor from asserting or protecting its rights in any discovery, invention, report, document, data, photograph, deliverable, or other material in connection with or produced pursuant to this Agreement that · existed prior to or was developed or discovered independently from the activities directly related to this Agreement.
Section 6.04 Antitrust
The Contractor hereby assigns, sells, and transfers to the City all right, title and interest in and to any claims and causes of action arising under the antitrust laws of the State or of the United States relating to the particular goods or services procured by the City under this Agreement.
- ARTICLE 7 INSURANCE
Section 7.01 Agreement to Insure
The Contractor shall not commence performing services under this Agreement unless and until all insurance required by this Article is in effect, and shall ensure continuous insurance coverage in the manner, form, and limits required by this Article throughout the term of the Agreement.
Section 7.02 Commercial General Liability Insurance
A. The Contractor shall maintain Commercial General Liability Insurance covering the Contractor as Named Insured and the City as an Additional Insured in the amount of at least One Million Dollars ($ 1 ,000,000) per occurrence. Such insurance shall protect the City and the Contractor from claims for property damage and/or bodily injury, including death that may arise from any of the operations under this Agreement. Coverage under this insurance shall be at least as broad as that provided by the most recently issued Insurance Services Office ("ISO") Form· CG 000 1 , shall contain no exclusions other than as required by law or as approved by the Department, and shall be "occurrence" based rather than "claims-made."
B. Such Commercial General Liability Insurance shall name the City, together with its officials and employees, as an Additional Insured with coverage at least as broad as the most recently issued ISO Form CG 20 1 0.
C. The Contractor shall ensure that each subcontractor adds the City, together with its officials and employees, as an Additional Insured under all Commercial General Liability Insurance policies obtained by a subcontractor covering work performed by such subcontractor under this Agreement with coverage at least as broad as the most recently issued ISO Form CG 20 26.
Section 7.03 Professional Liability Insurance
Page 19 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 95 of 123
Appendix A December 2010 Final
A. At the Department's direction, if professional services are provided pursuant to this Agreement, the Contractor shall maintain and submit evidence of Professional Liability Insurance appropriate to the type(s) of such services to be provided under this Agreement in the amount of at least One Million Dollars' ($ 1 ,000,000) per claim. The policy or policies shall include an endorsement to cover the liability assumed by the Contractor under this Agreement arising out of the negligent performance of professional services or caused by an error, omission or negligent act ofthe Contractor or anyone employed by the Contractor.
B. All subcontractors of the Contractor providing professional services under this Agreement for which Professional Liability Insurance is reasonably commercially available shall also maintain such insurance in the amount of at least One Million Dollars ($ 1 ,000,000) per claim, and the Contractor shall provide to the Department, at the time of the request for subcontractor approval, evidence of such Professional Liability Insurance on forms acceptable to the Department.
C. Claims-made policie!! will be accepted for Professional Liability Insurance. All such policies shall have an extended reporting period option or automatic coverage of not less than two (2) years. If available as an option, the Contractor shall purchase extended reporting period coverage effective on cancellation or termination of such insurance unless a new policy is secured with a retroactive date, including at least the last policy year.
Section 7.04 Workers' Compensation, Disability Benefits, and Employer's Liability Insurance
The Contractor shall maintain, and ensure that each subcontractor maintains, Workers' Compensation Insurance, Disability Benefits Insurance, and Employer's Liability Insurance in accordance with the Laws of the State on behalf of, or with regard to, all employees providing services under this Agreement.
Section 7.05 Unemployment Insurance
To the extent required by Law, the Contractor shall provide Unemployment Insurance for its employees.
Section 7.06 Business Automobile Liability Insurance
A. If vehicles are used in the provision of services under this Agreement, then the Contractor shall maintain Business Automobile Liability insurance in the amount of at least One Million Dollars ($ 1 ,000,000) each accident combined single limit for liability arising out of ownership, maintenance or use of any owned, non-owned, or hired vehicles to be used in connection with this Agreement. Coverage shall be at least as broad as ISO Form CAOOOl , ed. 1 0/01 .
B. If vehicles are used for transporting hazardous materials, the Business Automobile Liability Insurance shall be endorsed to provide pollution liability broadened coverage for covered vehicles (endorsement CA 99 48) as well as proof of MCS-90.
Page 20 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 96 of 123
! Appendix A December 2010 F l 1
Section 7.07 General Requirements for Insurance Coverage and Policies
A. All required insurance policies shall be maintained with companies that may lawfully issue the required policy and have an A.M. Best rating of at least A- I "VII" or a Standard and Poor's rating of at least A, unless prior written approval is obtained from the City Law Department.
B. All insurance policies shall be primary (and non-contributing) to any insurance or self-insurance maintained by the City.
C. The Contractor shall be solely responsible for the payment of all premiums for all required insurance policies and all deductibles or self-insured retentions to which such policies are subject, whether or not the City is an insured under the policy.
D. There shall be no self-insurance program with regard to any insurance required under this Article unless approved in writing by the Commissioner. Any such self-insurance program shall provide the City with all rights that would be provided by traditional insurance required under this Article, including but not limited to the defense obligations that insurers are required to undertake in liability policies.
E. The City's limits of coverage for all types of insurance required under this Article shall be the greater of (i) the minimum limits set forth in this Article or (ii) the limits provided to the Contractor as Named Insured under all primary, excess, and umbrella policies of that type of coverage.
F. All insurance policies required pursuant to Sections 7.02 and 7.03 shall contain an endorsement requiring that the issuing insurance company endeavor to provide the City with advance written notice in the event such policy is to expire or be cancelled or terminated for any reason, and to mail such notice to both the Commissioner, City of New York Administration for Children' s Services, 1 50 William Street, New York, New York 1 0038, and the New York City Comptroller, Attn: Office of Contract Administration, Municipal Building, One Centre Street,. Room 1 005, New York, New York 1 0007. Such notice is to be sent at least (30) days before the expiration, cancellation or termination date, except in cases of non-payment, where at least ten
( 1 0) days written notice would be provideq:
Section 7.08 Proof of Insurance
A. For Workers' Compensation Insurance, Disability Benefits Insurance, and Employer' s Liability Insurance, the Contractor shall file one of the following within ten ( 1 0) Days of award of this Agreement. ACORD forms are not acceptable proof of workers' compensation coverage.
1 . C- 105.2 Certificate ofWorkers' Compensation Insurance;
2. U-26.3 -- State Insurance Fund Certificate of Workers' Compensation
Page 2 1 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 97 of 123
Appendix A December 2010 Final

Insurance;

3.

Request for WC/DB Exemption (Form CE-200);

' '

4. Equivalent or successor forms used by the New York State Workers'

Compensation Board; or

5 . Other proofo finsurance i n a form acceptable to the City.

B. For each policy required under this Agreement, except for Workers' Compensation Insurance, Disability Benefits Insurance, Employer's Liability Insurance, and Unemployment Insurance, the Contractor shall file a Certificate of Insurance with the Department within ten ( 1 0) Days of award of this Agreement. All Certificates of Insurance shall be (a) in a form .aqceptable to the City and certify the issuance and effectiveness of such policies of insurance, each with the specified minimum limits; and (b) accompanied by the endorsement in the Contractor's general liability policy by which the City has been made an additional insured pursuant to Section 7.02(B). All Certificate(s) of Insurance shall be accompanied by either a duly executed "Certification by Broker" in the form attached to this Appendix A or copies of all policies referenced in the Certificate of Insurance. If complete policies have not yet been issued, binders are acceptable, until such time as the complete policies have been issued, at which time such policies shall be submitted.

C. Certificates of Insurance confirming renewals of insurance shall be submitted to the Commissioner prior to the expiration date of coverage of policies required under this Article. Such Certificates of Insurance shall comply with the requirements of Section 7.08 (A) and Section 7.08(B), as applicable.

D. The Contractor shall provide the City with a copy of any policy required under
this Article upon the demand for such policy by the Commissioner or the New York City Law Department.

E. Acceptance by the Commissioner of a certificate or a policy does not excuse the Contractor from maintaining policies consistent with all provisions of this Article (and ensuring that subcontractors maintain such policies) or from any liability arising from its failure to do so.

F. In the event the Contractor receives notice, from an insurance company or other person, that any insurance policy required under this Article shall expire or be cancelled or terminated for any reason, the Contractor shall immediately forward a copy of such notice to both the Commissioner, City of New York Administration for Children's Services, 1 50 William Street, New York, New York 1 0038, and the New York City Comptroller, Attn: Office of Contract Administration, Municipal Building, One Centre Street, Room 1005, New York, New York 1 0007.

Section 7.09 Miscellaneous

A. Where notice of loss, damage, occurrence, accident, claim or suit is required

Page 22 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 98 of 123
� ! Appen ix A December 2010 F l

under a policy maintained in accordance with this Article, the Contractor shall notify in writing all insurance carir ers that issued potentially responsive policies of any such event relating to any operations under this Agreement (including notice to Commercial General Liability Insurance
carriers for events relating to the Contractor's own employees) no later than twenty (20) Days after such event. Such notice shall expressly specify that "this notice is being given on behalf of
the City of New York as Additional Insured as well as the Named Insured." Such notice shall
also contain the following information: the number of the insurance policy, the name o f the named insured, the date and location of the damage, occurrence, or accident, and the identity of the persons or things injured, damaged, or lost. The Contractor shall simultaneously send a copy of such notice to the City of New York c/o Insurance Claims Specialist, Affirmative Litig ation Division, New York City Law Department, 1 00 Church Street, New York, New York 1 0007.

B. The Contractor's failure to maintain any of the insurance required by this Article

shall constitute a material breach of this Agreement. Such breach otherwise excused by any action or inaction by the City at any time.

shall

not

be- waived

or

C. Insurance coverage in the minimum amounts required in this Article shall not relieve the Contractor or its subcontractors of any liability under this Agreement, nor shall it preclude the City from exercising any rights or taking such other actions as are available to it under any other provisions of this Agreement or Law.

D. The Contractor waives all rights against the City, including its officials and employees for any damages or losses that are covered under any insurance required under this Article (whether or not such insurance is actually procured or claims are paid thereunder) or any other insurance applicable to the operations of the Contractor and/or its subcontractors in the performance of this Agreement.

E. In the event the Contractor requires any subcontractor to procure insurance with regard to any operations under this Agreement and requires such subcontractor to name the Contractor as an additional insured under such insurance, the Contractor shall ensure that such entity also name the City, including its officials and employees, as an additional insured with
coverage at least as broad as ISO form CG 20 26.

- ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY
AND INDEMNIFICATION

Section 8.01 Reasonable Precautions

The property of

Contractor shall take the City and of others

farlolmredaasmonaagbel,e lopsr·secoaruitniojunrsy troespurltoitnegctfraolml

persons and the the Contractor's

and/or its subcontractors' operations under this Agreement.

Section 8.02 Protection of City Property

The Contractor assumes the risk of, and shall be responsible for, any loss or damage to City property, including property and equipment leased by the City, used in the performance of

Page 23 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 99 of 123
Appendix A December 2010 Final

this Agreement, where such loss or damage is caused by any tortious act, or failure to comply with the provisions of this Agreement or of Law by the Contractor, its officers, employees,
·
agents or subcontractors.
; ;
Section 8.03 Indemnification

The Contractor shall defend, indemnify and hold the City, its officers and employees harmless from any and all claims (even if the allegations of the lawsuit are without merit) or judgments for damages on account of any injuries or death to any person or damage to any property and from costs and expenses to which the City, its officers and employees may be subjected or which it may suffer or incur allegedly arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission, any intentional tortious act, or failure to comply with the
provisions of this Agreement or oOh� Laws. Insofar as the facts or Law relating to any claim
would preclude the City from being completely indemnified by the Contractor, the City shall be partially indemnified by the Contractor to the fullest extent permitted by Law.

Section 8.04 Infringement Indemnification

The Contractor shall defend, indemnify and hold the City harmless from any and all claims (even if the allegations of the lawsuit are without merit) or judgments for damages and from costs and expenses to which the City may be subject to or which it may suffer or incur allegedly arising out of or in connection with any infringement by the Contractor of any copyright, trade secrets, trademark or patent rights or any other property or personal right of any third party by the Contractor and/or its subcontractors in the performance of this Agreement. The Contractor shall defend, indemnify, and hold the City harmless regardless of whether or not the alleged infringement arises out of compliance with the Agreement's scope of services/scope
of work. Insofar as the facts or Law relating to any claim would preclude the City from being
completely indemnified by the Contractor, the City shall be partially indemnified by the Contractor to the fullest extent permitted by Law.

Section 8.05 Indemnification Obligations Not Limited By Insurance Obligation

The indemnification provisions set forth in this Article shall not be limited in any way by the Contractor's obligations to obtain and maintain insurance as provided in this Agreement.

Section 8.06 Actions By or Against Third Parties

AgreemA.en. t,

In the event any claim is made or any action brought in any way relating to other than an action between the City and the Contractor, the Contractor shall

diligently render to the City without additional compensation all assistance which the City may

reasonably require of the Contractor.

B. The Contractor shall report to the Department in writing within five (5) business Days ofthe initiation by or against the Contractor of any legal action or proceeding in connection with or relating to this Agreement.

Page 24 of 48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 100 of 123
! Appendix A December 2010 F l

Section 8.07 Withholding of Payments

A. In the event that any claim is made or any action is brought against the City for which the Contractor may be required to indemnify the City pursuant to this Agreement, the City shall have the right to withhold further payments under this Agreement for the purpose o f set-off in sufficient sums to cover the said claim or action.

B. In the event that any City property is lost or damaged as set forth in Section 8 . 02, except for normal wear and tear, the City shall have the right to withhold further payments under this Agreement for the purpose of set-off in sufficient sums to cover such loss or damage.

C. The City shall not, however, impose a setoff in the event that an insurance

company that provided liability insurance pursuant to Article 7 above has accepted the City's

tender ofthe claim or action without a reservation ofriglits:

·

D. The Department may, at its option, withhold for purposes of set-off any monies due to the Contractor under this Agreement up to the amount of any disallowances or questioned · costs resulting from any audits of the Contractor or to the amount of any overpayment to the Contractor with regard to this Agreement.

E. The rights and remedies of the City provided for in this Section shall not be exclusive and are in addition to any other rights and remedies provided by Law or this Agreement.
Section 8.08 �o Third Party Rights

The provisions of this Agreement shall not be deemed to create any right of action in
favor of third parties against the Contractor or the City or their respective officers and employees.

- ARTICLE 9 CONTRACT CHANGES

Section 9.01 Contract Changes

Changes to this Agreement may be made only as duly authorized by the ACCO or his or
her designee and in accordance with the PPB Rules. Any amendment or change to this
Agreement shall not be valid unless made in writing and signed by authorized representatives of both parties. Contractors deviating from the requirements of this Agreement without a duly approved and executed change order document, or written contract modification or amendment, do so at their own risk.

Section 9.02 Changes Through Fault of Contractor

In the event that any change is required in the data, documents, deliverables, or other services to be provided under this Agreement because of negligence or error of the Contractor,

Page 25 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 101 of 123
Appendix A De".ember 2010 Final
no additional compensation shall be paid to the Contractor for making such change, and the Contractor is obligated to make such change without additional compensation.
ARTICLE'lO - TERMINATION, DEFAULT, AND REDUCTIONS IN FUNDING
Section 10.01 Termination by the City Without Cause
A. The City shall have the right to terminate this Agreement, in whole or in part, without cause, in accordance with the provisions of Section 1 0.05.
� ·�·
B. If the City terminates this Agreement pursuant to this Section, the following provisions apply. The City shall not incur or pay any further obligation pursuant to this Agreement beyond the termination date set by the City pursuant to Section 1 0.05. The City shall pay for services provided in accordance with this Agreement prior to the termination date. In addition, any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after the termination date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.
Section 10.02 Reductions in Federal, State and/or City Funding
A. This Agreement is funded in whole or in part by funds secured from the federal, State and/or City governments. Should there be a reduction or discontinuance of such funds by action of the federal, State and/or City governments, the City shall have, in its sole discretion, the right to terminate this Agreement in whole or in part, or to reduce the funding and/or level of services of this Agreement caused by such action by the federal, State and/or City governments, including, in the case of the reduction option, but not limited to, the reduction or eiimination of programs, services or service components; the reduction or elimination of contract-reimbursable staffor staff-hours, and corresponding reductions in the budget of this Agreement and in the total amount payable under this Agreement. Any reduction in funds pursuant to this Section shall be accompanied by an appropriate reduction in the services performed under this Agreement.
B. In the case of the reduction option referred to in Paragraph A, above, any such reduction shall be effective as of the date set forth in a written notice thereof to the Contractor, which shall be not less than thirty (30) Days from the date of such notice. Prior to sending such notice of reduction, the Department shall advise the Contractor that such option is being exercised and afford the Contractor an opportunity to make within seven (7) Days any suggestion(s) it may have as to which program(s), service(s), service component(s), staff or staff­ hours might be reduced or eliminated, provided, however, that the Department shall not be bound to utilize any of the Contractor' s suggestions and that the Department shall have sole
discretion as to how to effectuate the reductions.
C. If the City reduces funding pursuant to this Section, the following provisions apply. The City shall pay for services provided in accordance with this Agreement prior to the reduction date. In addition, any obligation necessarily incurred by the Contractor on account of
Page 26 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 102 of 123
! Appendix A1 December 2010 F l

this Agreement prior to receipt of notice of reduction and falling due after the reduction date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.

D. To the extent that the reduction in public funds is a result of the State determining that the Contractor may receive medical assistance funds pursuant to title eleven of article five of the Social Services Law to fund the services contained within the scope of a program under this Agreement, then the notice and effective date provisions of this section shall not apply, and the Department may reduce such public funds authorized under this Agreement by informing the Contractor of the amount of the reduction and revising attachments to this agreement as appropriate.

Section 1 0.03 Contractor Default

A. The City shall have the right to declare the Contractor in default:

1 . Upon a breach by the Contractor of a material term or condition of this Agreement, including unsatisfactory performance ofthe services;

2. Upon insolvency or the commencement of any proceeding by or against
the Contractor, either voluntarily or involuntarily, under the Bankruptcy Code or relating to the insolvency, receivership, liquidation, or composition of the Contractor for the benefit of creditors;

3 . If the Contractor refuses or fails to proceed with the services under the Agreement when and as directed by the Commissioner;

4. If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially involved in its activities are indicted or convicted after execution ofthe Agreement under any state or federal law of any of the following:

a. a criminal offense incident to obtaining or attempting to obtain or performing a public or private contract;

b. fraud, embezzlement, theft, bribery, forgery, falsification, or destruction of records, or receiving stolen property;

c.

a criminal violation of any state or federal antitrust law;

d. violation of the Racketeer Influence and Corrupt Organization Act, 1 8 U.S.C. § 1961 et seq., or the Mail Fraud Act, 1 8 U.S.C. § 1 341 et seq., for acts in connection with the submission of bids or proposals for a public or private contract;

Page 27 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 103 of 123
Appendix A December 2010 Final

e.
grounds for above; or

conspiracy conviction -or

ltioabciloitmymunitdearn-yanaycsttaotrutoemdiesssciroinbetdhaitn

would constitute subparagraph (d)

f.

an offense indicating a lack of business integrity that seriously and

directly affects responsibility as a City vendor.

5 . If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially involved in its activities are subject to a judgment of civil liability under any state or federal antitrust law for acts or omissions in connection with the submission of bids or proposals for a public or private contract; or

6. If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially involved in its activities makes or causes to be made any false, deceptive, or fraudulent material statement, or fail to make a required material statement in any bid, proposal, or application for City or other government work.

B. The right to declare the Contractor in default shall be exercised by sending the Contractor a written notice of the conditions of default, signed by the Commissioner, setting forth the ground or grounds upon which such default is declared ("Notice to Cure"). The Contractor shall have ten ( 1 0) Days from receipt of the Notice to Cure or any longer period that
is set forth in the Notice to Cure to cure the default. The Commissioner may temporarily suspend services under the Agreement pending the outcome of the default proceedings pursuant to this Section.

C. If the conditions set forth in the Notice to Cure are not cured within the period set forth in the Notice to Cure, the Commissioner may declare the Contractor in default pursuant to this Section. Before the Commissioner may exercise his or her right to declare the Contractor in default, the Commissioner shall give the Contractor an opportunity to be heard upon not less than five (5) business days notice. The Commissioner may, in his or her discretion, provide for such opportunity to be in writing or in person. Such opportunity to be heard shall not occur prior to the end of the cure period but notice of such opportunity to be heard may be given prior to the end of the cure period and may be given contemporaneously with the Notice to Cure.

D. After the opportunity to be heard, the Commissioner may terminate the Agreement, in whole or in part, upon finding the Contractor in default pursuant to this Section, in accordance with the provisions of Section 1 0.05.

E. The Commissioner, after declaring the Contractor in default, may have the services under the Agreement completed by such means and in such manner, by contract with or without public letting, or otherwise, as he or she may deem advisable in accordance with applicable PPB Rules. After such completion, the Commissioner shall certify the expense
incurred in such completion, which shall include the cost of re-letting. Should the expense of
such completion, as certified by the Commissioner, exceed the total sum which would have been

Page 2 8 of48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 104 of 123
i Appendix A December 2010 F al

payable under the Agreement if it had been completed by the Contractor, any excess shall be promptly paid by the Contractor upon demand by the City. The excess expense of such completion, including any and all related and incidental costs, as so certified b y the , Commissioner, and any liquidated damages assessed against the Contractor, may be charged against and deducted out ofmonies earned by the Contractor.

Section 10.04 Force Majeure

A. For purposes of this Agreement, a force majeure event is an act or event beyond the control and without any fault or negligence of the Contractor ("Force Majeure Event"). Such events may include, but are not limited to, fire, flood, earthquake, storm or other natural disaster, civil commotion, war, terrorism, riot, and labor disputes not brought about by any act or omission ofthe Contractor.

B.

In the event the Contractor cannot comply- with the terms of the Agreement'

(including any failure by .the Contractor to make progress in the performance of the services)

because of a Force Majeure Event, then the Contractor may ask the Commissioner to excuse the

nonperformance and/or terminate the Agreement. If the Commissioner, in his or her reasonable

discretion, determines that the Contractor cannot comply with the terms of the Agreement

because of a Force Majeure Event, then the Commissioner shall excuse the nonperformance and

may terminate the Agreement. Such a termination shall be deemed to be without cause.

C. If the City terminates the Agreement pursuant to this Section, the following provisions apply. The City shall not incur or pay any further obligation pursuant to this Agreement beyond the termination date. The City shall pay for services provided in accordance with this Agreement prior to the termination date. Any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after the termination date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.

Section 10.05 Procedures for Termination

A. The Department and/or the City shall give the Contractor written notice of any termination of this Agreement. Such notice shall specify the applicable provision(s) under which the Agreement is terminated and the effective date of the termination. Except as otherwise provided in this Agreement, the notice shall comply with the provisions of this Section. For termination without cause, the effective date of the termination shall not be less than ten ( 1 0) Days from the date the notice is personally delivered, or fifteen (1 5) Days from the date the notice is either sent by certified mail, return receipt requested, or sent by fax and deposited in a post office box regularly maintained by the United States Postal Service in a postage pre-paid envelope. In the case of termination for default, the effective date of the termination shall be as set forth above for a termination without cause or such earlier date as the Commissioner may determine. If the City terminates the . Agreement in part, the Contractor shall continue the performance of the Agreement to the extent not terminated.

Page 29 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 105 of 123
Appendix A December 2010 Final

B. Upon termination or expiration of this Agreement, the Contractor shall comply with the City close-out procedures, including but not limited to:

1 . Accounting for and refunding to the Department, within forty-five (45)
Days, any unexpended funds which have been advanced to the Contractor pursuant to this Agreement;

2. Furnishing within forty-five (45) Days an inventory to the Department of all equipment, appurtenances and property purchased through or provided under this Agreement and carrying out any Department or City directive concerning the disposition of such equipment, appurtenances and property;

3 . Turning over to the Department or its designees all books, records, docl!-�ents and material specifically relating to this Agreement that the Department has requested be turned over;

4.

Submitting to the Department, within ninety (90) Days, a final statement

and report relating to the Agreement. The report shall be made by a certified public

accountant or a licensed public accountant; and

5. Providing reasonable assistance to the Department in the transition, if any, to a new contractor.

Section 1 0.06 Miscellaneous Provisions

A. The Commissioner, in addition to any other powers set forth in this Agreement or by operation of Law, may suspend, in whole or in part, any part of the services to be provided under this Agreement whenever in his or her judgment such suspension is required in the best interest of the City. If the Commissioner suspends this Agreement pursuant to this Section, the City shall not incur or pay any further obligation pursuant to this Agreement beyond the suspension date until such suspension is lifted. The City shall pay for services provided in accordance with this Agreement prior to the suspension date. In addition, any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of suspension and falling due during the suspension period shall be paid by the City in accordance with the terms ofthis Agreement.

B . Notwithstanding any other provisions of this Agreement, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of the Contractor's breach of the Agreement, and the City may withhold payments to the Contractor for the purpose of set-off in the amount of damages due to the City from the Contractor.

C. The rights and remedies of the City provided in this Article shall not be exclusive and are in addition to all other rights and remedies provided by Law or under this Agreement.

ARTICLE 11 - PROMPT PAYMENT AND ELECTRONIC FUNDS TRANSFER

Page 30 of48

  Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 106 of 123
õ2ĂĂ"Ă

Ă Ă

Ă '
Ă ìĂ %Ă

tEă 4ΥΥΥŋΥ Υ557Υ 9Υ ºΥ Rf#KΥ ·Υ  ΥΥ ΘΥ 
Υ
ΥΥrPΥ ȰΥ΄˔ΥΥ?ΥôΥΥΥΥ ΥΥ ΥΥΥ
ΥxΥΥ?
ΥΥ
ΥΥΥ%NΥΥ+Υ557Υ9QΥ

7CΥ 4Υ â ƣΥ Υ Υ ΥΥ  ΥΥ Υ Υ =Υ Υ Υ rΥ 
Υ Υ Υ  Υ Υ Υ 
Υ Υ 

Υ Υ +Υ ΥΥΥ0Υ Υ%Υ Υ 

ΥΙQΥ

QΥ &ΥΥΥ
ΥΥΥ
ΥΥ 
 ΥΥΥ557Υ9Υ
Υ ΥÓ ΥΥΥÁΥ ΥΥ+ΥΥΥm ΥΥ+ΥΥΥQΥ

Ă '
Ă Ă Ă [Ă

QΥ AΥ  
 Υ Υ 
QΥ 
Υ ºΥ KÖ 1 #^Υ` 1 6 Υ Υ  ¯Υ rΥ Υ  ƘΥ Υ
ΥΥrΥVƑΥNΥĨΥΥ  Υp
ΥjQΥ 'ă   Υp
Υ 0jΥ Υ Υ0jΥ Υʫ
Υ Υ Υ Υ Υ¶
Υ Υ  >Υ ĳxΥ Υ GΥ Υ nΥ  Υ Υ 
Υ ¬Υ Υ   Υ S/Υ  Υ nΥ âΥ ΥΥ ΥΥΥΥΥ 
ΥƜn Υ ΥΥΥ; ΥnΥΥ
ΥΥ 
Υ Υ  ǗΥ 5ΥΥ Υ;ΥΥ
Υ
Υ+Υ rΥ ƇΥ Υ Υ 
Υ Υ ; Υ Υ Υ Υ 
Υ ̞Υ Υ 
Υ Υ Υ Υ O_4Υ Ū
Υ 5Υ OΥ _S£Υ Υ VΥ +Υ  Υ Υ Υ ĤjkB B
ΥΥ
ΥΥ
Υ Υ ΥΥΥ&¦ΥΥ_0 ΥΥ %Υ GΥ%ΥΥ  Υ Υ  ŌΥ  3 Υ p
Υ 30{ΥΥ·ʲΥ Υ

Υ; ΥnΥΥ̰
ΥΥWΥ 4Υ 
ΥΥ+ΥΥΥ ΥÂΥ ΥΥ Υ  ΥΥΥ>Υ ΥΥ ; ĻΥ ΥΥΥ Ĭ 
Υ ΥΥ

ΥΥ+Υ N ΥFΥ ͫΥ pΥc ΥΥΥΥ%Υ Υ hΥ Υ Υ Υ 
Υ Υ r×Υ 4Υ  Υ %SΥ 
Υ Υ +Υ  ΥΥc ΥΥ 3 Υ pė
Υ0jΥΥΥ ;
Υ ΥΥpΥ=Υ ɳ
ΥΥZPΥ

7PΥ 4Υ ΥL
ΥΥΥΥ  ΥΥΥ?²ΥΥΥ Ȯ Υ ƖΥ Υ Υ 3 Υ 
ΥΥΥΥ GΥ ºΥ k 1 H ` Υ AΥ

ΥƈΥ Υ ΥΥ&GNΥΥ_ Υ
ΥΥ3ΥΥqΥΥĘ
G
ΥΥΥ Υ Υ  Υ Υ Υ Υ ?Υ Υ Υ  Υ %Υ Υ Υ Υ %Υ  0 ĤΥ ,2Υ %Υ 

Υ Υ Υ ʊΥ 

Υ ʣΥ Υ Ò Υ Υ Υ G
UΥ ,2Υ %Υ ; Υ Υ Υ Υ  >UΥ Υ ,2Υ Υ Υ  0 Υ Υ Υ Υ  ΥΥΥΥΥΥΥCΥ

BΥ 4Υ  ΥΥ  ΥΥ  Υ |
Υ Υ4f_Υ4
Υ&Υ ,«@H###2Υ
ΥƮCΥ

Ă'
Ă )Ă-Ă >Ă

;ĂĂ $Ă

$  $!$

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 107 of 123
Appendix A December 2010 Final
This Agreement shall be deemed to be executed in the City and State of New York, regardless of the domicile of the Contractor, and shall be governed by and construed in accordance with the Laws ofthe State ofNew York (notwithstanding New York choice of l aw or conflict of law principles) and the Laws of the United States, where applicable.
Section 12.02 Jurisdiction and Venue
The parties agree that any and all claims asserted by or against the City arising under or related to this Agreement shall solely be heard and determined either in the courts of the United States located in the City or in the courts of the State located in the City and County of New York. The parties shall consent to the dismissal and/or transfer of any claims asserted in any other venue or forum to the proper venue or forum. If the Contractor initiates any action in breach of this Section, the Contra.ctor shall be responsible for and shall promptly reimburse the City for any attorneys' fees incurred by the City in removing the action to a proper court consistent with this Section.
Section 12.03 Resolution of Disputes
A. Except as provided in Subparagraphs (A)(l ) and (A)(2) below, all disputes
between the City and the Contractor that arise under, or by virtue of, this Agreement shall be finally resolved in accordance with the provisions of this Section and PPB Rule § 4-09. This procedure shall be the exclusive means ofresolving any such disputes.
1 . This Section shall not apply to disputes concerning matters dealt with in other sections of the PPB Rules or to disputes involving patents, copyrights, trademarks, or trade secrets (as interpreted by the courts of New York State) relating to proprietary rights in computer software, or to termination other than for cause.
2. For construction and construction-related services this Section shall apply only to disputes about the scope of work delineated by the Agreement, the interpretation of Agreement documents, the amount to be paid for extra work or disputed work performed in connection with the Agreement, the conformity of the Contractor' s work to the Agreement, and the acceptability and quality of the Contractor's work; such disputes arise when the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head makes a determination with which the Contractor disagrees. For construction, this Section shall not apply to termination of the Agreement for cause or other than for cause.
B. All determinations required by this Section shall be clearly stated, with a reasoned explanation for the determination based on the information and evidence presented to the party making the determination. Failure to make such determination within the time required by this Section shall be deemed a non-determination without prejudice that will allow application to the next level.
C. During such time as any dispute 1s being presented, heard, and considered
Page 32 of 48

e e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 108 of 123

Appendix A December 2010 Final

I

pursuant to this Section, the Agreement terms shall remain in full force and effect and, unless

otherwise directed by the ACCO or Engineer, the Contractor shall continue to perform work in

. accordance with the Agreement and as directed by the ACCO or City Engineer, City Resident

,. ECnognitnraecetro, rCtiotycoEnntgininueeetrhiengwAorukdaits

Officer, or other designee directed shall constitute a

of the Agency Head. Failure o f the waiver by the Contractor of any and

all claims being presented pursuant to this Section and a material breach of contract.

D. Presentation of Dispute to Agency Head.

1 . Notice of Dispute and Agency Response. The Contractor shall present its dispute in writing (''Notice of Dispute") to the Agency Head within the time specified herein, or, if no time is specified, within thirty (30) Days of receiving written notice of the determination or action that is the subject of the dispute. This notice requirement shall not be read to replace any other notice requirements contained in the Agreeilel: nt. The Notice of Dispute shall include all the facts, evidence, documents, or other basis upon which the Contractor relies in support of its position, as well as a detailed computation demonstrating how any amount of money claimed by the Contractor in the dispute was arrived at. Within thirty (30) Days after receipt of the complete Notice of
Dispute, the ACCO or, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, shall submit to the Agency Head all materials he or she deems pertinent to the dispute. Following initial submissions to the Agency Head, either party may demand of the other the production of any document or other material the demanding party believes may be relevant to the dispute. The requested party shall produce all relevant materials that are not otherwise protected by a legal privilege recognized by the courts of New York State. Any question of relevancy shall be determined by the Agency Head whose decision shall be final. Willful failure of the Contractor to produce any requested material whose relevancy the Contractor has not disputed, or whose relevancy has been affirmatively determined, shall constitute a waiver by the Contractor of its claim.

2 . Agency Head Inquiry. The Agency Head shall examine the material and may, in his or her discretion, convene an informal conference with the Contractor and the ACCO and, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, to resolve the issue by mutual consent prior to reaching a determination. The Agency Head may seek such technical or other expertise as he or she shall deem appropriate, including the use of neutral mediators, and require any such additional material from either or both parties. as he or she deems fit. The Agency Head's ability to render, and the effect of, a decision hereunder shall not be impaired by any negotiations in connection with the dispute presented, whether or not the Agency Head participated therein. The Agency Head may or, at the request of any party to the dispute, shall compel the participation of any other contractor with a contract related to the work of this Agreement and that contractor shall be bound by the decision of the Agency Head. Any contractor thus brought into the dispute resolution proceeding shall have the same rights and obligations under this Section as the Contractor initiating the dispute.

Page 33 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 109 of 123
Appendix A December 2010 Final
3. Agency Head Determination. Within thirty (30) Days after the receipt of all materials and information, or such longer time as may be agreed to by the parties, the · Agency Head shall make his or her detem'lination and shall deliver or send a copy o f such ,' determination to the Contractor and ACCO and, in the case of construction or · construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, together with a statement concerning how the decision may be appealed.
4. Finality of Agency Head Decision. The Agency Head's decision shall be final and binding on all parties, unless presented to the Contract Dispute Resolution Board ("CDRB") pursuant to this Section. The City may not take a petition to the CDRB. However, should the Contractor take such a petition, the City may seek, and the CDRB may render, a determination less favorable to the Contractor and more favorable to the City than the decision of the Agency Head.
E. Presentation of Dispute to the Comptroller. Before any dispute may be brought by the Contractor to the CDRB, the Contractor must first present its claim to the Comptroller for his or her review, investigation, and possible adjustment.
1 . Time, Form, and Content of Notice. Within thirty (30) Days of receipt of a decision by the Agency Head, the Contractor shall submit to the Comptroller and to the Agency Head a Notice of Claim regarding its dispute with the Agency. The Notice of Claim shall consist of (i) a brief statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends the dispute was wrongly decided by the Agency Head; (ii) a copy of the decision of the Agency H ead; and (iii) a copy of all materials submitted by the Contractor to the Agency, including the Notice of Dispute. The Contractor may not present to the Comptroller any material not presented to the Agency Head, except at the request ofthe Comptroller.
2. Agency Response. Within thirty (30) Days of receipt of the Notice of Claim, the Agency shall make available to the Comptroller a copy of all material submitted by the Agency to the Agency Head in connection with the dispute. The Agency may not present to the Comptroller any material not presented to the Agency Head, except at the request of the Comptroller.
3 . Comptroller Investigation. The Comptroller may investigate the claim in dispute and, in the course of such investigation, may exercise all powers provided in Admin. Code § § 7-201 and 7-203. In addition, the Comptroller may demand of either party, and such party shall provide, whatever additional material the Comptroller deems pertinent to the claim, including original business records of the Contractor. Willful failure of the Contractor to produce within fifteen ( 1 5) Days any material requested by the Comptroller shall constitute a waiver by the Contractor of its claim. The Comptroller may also schedule an informal conference to be attended by the Contractor, Agency representatives, and any other personnel desired by the Comptroller.
Page 34 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 110 of 123
Append& A December 2010 Final
4. Opportunity of Comptroller to Compromise or Adjust Claim. The Comptroller shall have forty-five (45) Days from his or her receipt of all m aterials referred to in Paragraph (E)(3) above to investigate the disputed claim. The period for investigation and compromise may be further extended by agreement between the Contractor and the Comptroller, to a maximum of ninety (90) Days from the Comptroller's receipt of all the materials. The Contractor may not present its petition to the CDRB until the period for investigation and compromise delineated in this Paragraph has expired. In compromising or adjusting any claim hereunder, the Comptroller may not revise or disregard the terms of the Agreement.
F. Contract Dispute Resolution Board. There shall be a Contract Dispute Resolution Board composed of:
1 . the chief administrative law judge of the Office of Administrative Trials and Hearings ("OATH") or his or her designated OATH administrative law judge, who shall act as chairperson, and may adopt operational procedures and issue such orders consistent with this Section as may be necessary in the execution of the CDRB' s functions, including, but not limited to, granting extensions o f time to present o r respond to submissions;
2. the City Chief Procurement Officer ("CCPO") or his or her designee; any designee shall have the requisite background to consider and resolve the merits of the dispute and shall not have participated personally and substantially in the particular matter that is the subject ofthe dispute or report to anyone who so participated; and
3 . a person with appropriate expertise who is not an employee of the City. This person shall be selected by the presiding administrative law judge from a prequalified panel of individuals, established, and administered by OATH, with appropriate background to act as decision-makers in a dispute. Such individuals may not have a contract or dispute with the City or be an officer or employee of any company or organization that does, or regularly represent persons, companies, or organizations having disputes with the City.
G. Petition to CDRB. In the event the claim has not been settled or adjusted by the Comptroller within the period provided in this Section, the Contractor; within thirty (30) Days thereafter, may petition the CDRB to review the Agency Head determination.
1 . Form and Content of Petition by the Contractor. The Contractor shall present its dispute to the CDRB in the form of a petition, which shall include (i) a brief statement of the substance of the dispute, the amount of money, if any, claimed, and the reason(s) the Contractor contends that the dispute was wrongly decided by the Agency Head; (ii) a copy of the decision of the Agency Head; (iii) copies of all materials submitted by the Contractor to the Agency; (iv) a copy of the decision ofthe Comptroller, if any, and (v) copies of all correspondence with, and material submitted by the Contractor to, the Comptroller's Office. The Contractor shall concurrently submit four complete sets of the petition: one to the Corporation Counsel (Attn: Commercial and Real
Page 35 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 111 of 123
Appendix A December 2010 Final

Estate Litigation Division), and three to the CDRB at OATH' s offices, with proof of

service on the Corporation Counsel. In addition, the Contractor shall submit a copy of the

statement of the substance of the.dispute, cited in (i) above, to both the Agency Head and

the Comptroller.

'

2.

Agency Response. Within thirty (30) Days of receipt of the petition b y the

Corporation Counsel, the Agency shall respond to the statement of the Contractor and

make available to the CDRB all material it submitted to the Agency Head and

Comptroller. Three complete copies of the Agency response shall be submitted to the

CDRB at OATH's offices and one to the Contractor. Extensions of time for submittal of

the Agency response shall be given as necessary upon a showing of good cause or, upon

the consent of the parties, for an initial period ofup to thirty (30) Days.

3 . Further Proceedings. The CDRB shall permit the Contractor to present its case by submission of memoranda, briefs, and oral argument. The CDRB shall also permit the Agency to present its case in response to the Contractor by submission of memoranda, briefs, and oral argument. If requested by the Corporation Counsel, the Comptroller shall provide reasonable assistance in the preparation of the Agency' s case. Neither the Contractor nor the Agency may support its case with any documentation or other material that was not considered by the Comptroller, unless requested by the CDRB. The CDRB, in its discretion, may seek such technical or other expert advice as it shall deem appropriate and may seek, on it own or upon application of a party, any such additional material from any party as it deems fit. The CDRB, in its discretion, may combine more than one dispute between the parties for concurrent resolution.

4. CDRB Determination. Within forty-five (45) Days of the conclusion of
all submissions and oral arguments, the CDRB shall render a decision resolving the dispute. In an unusually complex case, the CDRB may render its decision in a longer
period of time, not to exceed ninety (90) Days, and shall so advise the parties at the commencement of this period. The CDRB' s decision must be consistent with the terms of this Agreement. Decisions of the CDRB shall only resolve matters before the CDRB and shall not have precedential effect with respect to matters not before the CDRB.

5. Notification of CDRB Decision. The CDRB shall send a copy of its decision to the Contractor, the ACCO, the Corporation Counsel, the Comptroller, the CCPO, and, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head. A decision in favor of the Contractor shall be subject to the prompt payment provisions of the PPB Rules. The required paymen� date shall be thirty (30) Days after the date the parties are formally notified of the CDRB's decision.

6. Finality of CDRB Decision. The CDRB's decision shall be final and binding on all parties. Any party may seek review of the CDRB 's decision solely in the form of a challenge, filed within four months of the date of the CDRB's decision, in a court of competent jurisdiction of the State of New York, County of New York pursuant to Article 78 of the Civil Practice Law and Rules. Such review by the court shall be

Page 36 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 112 of 123
Appendix A December 2010 Final
limited to the question of whether or not the CDRB's decision was made in violation of lawful procedure, was affected by an error of Law, or was arbitrary and capricious or an abuse of discretion. No evidence or information shall be introduced or relied upon in such proceeding that was not presented to the CDRB in accordance with PPB Rules § 409.
H. Any termination, cancellation, or alleged breach of the Agreement prior to or during the pendency of any proceedings pursuant to this Section shall not affect or impair the ability of the Agency Head or CDRB to make a binding and final decision pursuant to this Section.
Section 12.04 Claims and Actions
A. Any claim against the City or Departmen� based on this Agreement or arising out of this Agreement that is not subject to dispute resolution under the PPB Rules or this Agreement shall not be made or asserted in any legal proceeding, unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims as provided in this Agreement.
B. No action shall be instituted or maintained on any such claims unless such action shall be commenced within six (6) months after the date of filing with the Comptroller of the certificate for the final payment under this Agreement, or within six (6) months of the termination or expiration of this Agreement, or within six (6) months after the accrual of the cause of action, whichever first occurs.
Section 12.05 No Claim Against Officers, Agents or Employees
No claim shall be made by the Contractor against any officer, agent, or employee of the City in their personal capacity for, or on account of, anything done or omitted in connection with this Agreement.
Section 12.06 General Release
The acceptance by the Contractor or its assignees of the final payment under this Agreement, whether by check, wire transfer, or other means, and whether pursuant to invoice, voucher, judgment of any court of competent jurisdiction or any other administrative means, shall constitute and operate as a release of the City from any and all claims of and liability to the Contractor, ofwhich the Contractor was aware or should reasonably have been aware, arising out of the performance of this Agreement based on actions of the City prior to such acceptance of final payment, excepting any disputes that are the .subject of pending dispute resolution procedures.
Section 12.07 No Waiver
Waiver by either the Department or the Contractor of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be
Page 37 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 113 of 123
Appendix A December 2010 Final
construed to be a modification of the terms of the Agreement unless and until the same shall be agreed to in writing by the parties as set forth in Section 9.01 .
ARTICLE 1 3 - APPLIQABLE LAWS
Section 13.01 PPB Rules
This Agreement is subject to the PPB Rules. In the event of a conflict between the PPB Rules and a provision of this Agreement, the PPB Rules shall take precedence.
Section 13.02 All Legal Provisions Deemed Included
Each and every provision required by Law to be inserted in this Agreement is hereby deemed. tQ be a part of this Agreement, whether actually inserted or not.
Section 13.03 Severability I Unlawful Provisions Deemed Stricken
If this Agreement contains any unlawful provision not an essential part oftheAgreement and which shall not appear to have been a controlling or material inducement to the making of this Agreement, the unlawful provision shall be deemed of no effect and shall, upon notice by either party, be deemed stricken from the Agreement without affecting the binding force of the remainder.
Section 13.04 Compliance With Laws
The Contractor shall perform all services under this Agreement in accordance with all applicable Laws as are in effect at the time such services are performed.
Section 13.05 Americans with Disabilities Act (ADA)
A. This Agreement is subject to the provisions of Subtitle A of Title II of the Americans with Disabilities Act of 1 990, 42 U.S.C. § 1 2 1 3 1 et seq. ("ADA") and regulations promulgated pursuant thereto, see 28 CFR Part 3 5 . The Contractor shall not discriminate against
an individual with a disability, as defined in the ADA, in providing services, programs, or
activities pursuant to this Agreement. If directed to do so by the Department to ensure the Contractor' s compliance with the ADA during the term of this Agreement, the Contractor shall prepare a plan ("Compliance Plan") which lists its program site(s) and describes in detail, how it intends to make the services, programs and activities set forth in the scope of services herein readily accessible and usable by individuals with disabilities at such site(s). In the event that the · program site is not readily accessible and usable by individuals with disabilities, contractor shall also include in the Compliance Plan, a description of reasonable alternative means and methods that result in making the services, programs or activities provided under this Agreement, readily accessible to and usable by individuals with disabilities, including but not limited to people with visual, auditory or mobility disabilities. The Contractor shall submit the Compliance Plan to the ACCO for review within ten ( 1 0) Days after being directed to do so and shall abide by the Compliance Plan and implement any action detailed in the Compliance Plan to make the
Page 38 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 114 of 123
Appendix A December 2010 Final
services, programs, or activities accessible and usable by the disabled.
B. The Contractor' s failure to either submit a Compliance Plan as required herein or implement an approved Compliance Plan may be deemed a material breach of this Agreement and result in the City terminating this Agreement.
Section 13.06 Voter Registration
A. Participating Agencies. Pursuant to Charter § 1 057-a, if this Agreement i s with a participating City agency and the Contractor has regular contact with the public in the daily administration of its business, the Contractor must comply with the requirements of this S ection. The participating City agencies are: the Administration for Children's Services; the City Clerk; the Civilian Complaint Review Board; the Commission on Human Rights; Community B oards; the Department of Small Business Services; the Department of Citywide Administrative S ervices; the Department of Consumer Affairs; the Department of Correction; the Department of Environmental Protection; the Department of Finance; the Department of Health and . Mental Health; the Department of Homeless Services; the Department of Housing Preservation and Development; the Department of Parks and Recreation; the Department of Probation; the Taxi and Limousine Commission; the Department of Transportation; and the Department of Youth and Community Development.
B. Distribution of Voter Registration Forms. In accordance with Charter § 1 05 7-a, the Contractor, if it has regular contact with the public in the daily administration of its business under this Agreement, hereby agrees as follows:
1 . The Contractor shall provide and distribute voter registration forms to all persons together with written applications for services, renewal, or recertification for services and change of address relating to such services. Such voter registration forms shall be provided to the Contractor by the City. The Contractor should be prepared to provide forms written in Spanish or Chinese, and shall obtain a sufficient supply of such forms from the City.
2. The Contractor shall also include a voter registration form with any Contractor communication sent through the United States mail for the purpose of supplying clients with materials for application, renewal, or recertification for services and change of address relating to such se.rvices. If forms written in Spanish or Chinese are not provided in such mailing, the Contractor shall provide such forms upon the Department's request.
3 . The Contractor shall, subject to approval by the Department, incorporate an opportunity to request a voter registration application into any application for services, renewal, or recertification for services and change of address relating to such services provided on computer terminals, the World Wide Web or the Internet. Any person indicating that they wish to be sent a voter registration form via computer terminals, the World Wide Web or the Internet shall be sent such a form by the Contractor or be directed, in a manner subject to approval by the Department, to a link on that system
Page 39 of 48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 115 of 123
Appendix A December 2010 Final

where such a form may be downloaded.

4.

The Contractor shall, at the earliest practicable or next regularly scheduled

printing of its own forms, subject to approval by the Department/physically incorporate

the voter registration forms with its own application forms in a manner that permits the

voter registration portion to be detached therefrom. Until such time when the Contractor

amends its form, the Contractor . should affix or include a postage-paid City B oard of

Elections voter registration form to or with its application, renewal, recertification, and

change of address forms.

5. The Contractor shall prominently display in its public office, subject to approval by the Department, promotional materials designed and approved by the City or State Board of Elections.

6. For the purposes of Paragraph A of this Section, the word "Contractor" shall be deemed to include subcontractors having regular contact with the public in the daily administration of their business.

7. The provisions of Paragraph A of this Section shall not apply to services that must be provided to prevent actual or potential danger to life, health, or safety of any individual or ofthe public.

C. Assistance in Completing Voter Registration Forms. In accordance with Charter § 1 057-a, the Contractor hereby agrees as follows:

1 . In the event the Department provides assistance in completing distributed voter registration forms, the Contractor shall also provide such assistance, in the manner and to the extent specified by the Department.

2. In the event the Department receives and transmits completed registration forms from applicants who wish to have the forms transmitted to the City Board of Elections, the Contractor shall similarly provide such service, in the manner and to the extent specified by the Department.

3 . If, in connection with the provision of services under this Agreement, the Contractor intends to provide assistance in completing distributed voter registration forms or to receive and transmit completed registration forms from applicants who wish to have the forms transmitted to the City Board of Elections, the Contractor shall do so only by prior arrangement with the Department. .

4. The provision of Paragraph B services by the Contractor may be subject to Department protocols, including protocols regarding confidentiality.

D. Required Statements. In accordance with Charter § 1 057-a, the Contractor hereby agrees as follows:

Page 40 of48

. e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 116 of 123
Appendix A December 2010 Final

1 . The Contractor shall advise all persons seeking voter registration forms and information, in writing together with other written materials provided by the Contractor or by appropriate publicity, that the Contractor's or government services are not conditioned on being registered to vote.

2. No statement shall be made and no action shall be taken by the Contractor or an employee ofthe Contractor to discourage an applicant from registering to vote or to encourage or discourage an applicant from enrolling in any particular political party.

3 . The Contractor shall communicate to applicants that the completion of voter registration forms is voluntary.

4. The Contractor and the Contractor's employees shall not:

a.

seek to influence an applicant' s political preference or party

designation;

b. display any political preference or party allegiance;

c. make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from registering to vote; or

d. make any statement to an applicant or take any action the purpose or effect of which is to lead the applicant to believe that a decision to register or not to register has any bearing on the availability of services or benefits.

E. The Contractor, as defined above and in this Agreement, agrees that the covenants and representations in this Section are material conditions ofthis Agreement.

F. The provisions of this Section do not apply where the services under this Agreement are supported by a federal or State grant of funds and the source of funds prohibits the use of federal or State funds for the purposes ofthis Section.

Section 13.07 Participation in an International Boycott

A. The Contractor agrees that neither the Contractor nor any substantially-owned
affiliated company is participating or shall participate in an international boycott in violation of
the provisions of the federal Export Administration Act of 1 979, as amended, 50 U.S.C. Appendix. §§ 240 1 et seq., or the regulations of the United States Department of Commerce promulgated thereunder.

B. Upon the final determination by the Commerce Department or any other agency of the United States as to, or conviction of, the Contractor or a substantially-owned affiliated company thereof, of participation in an international boycott in violation of the provisions of the
Export Administration Act of 1 979, as amended, or the regulations promulgated thereunder, the
Comptroller may, at his or her option, render forfeit and void this Agreement.

Page 4 1 of48

e Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 117 of 123
Appendix A December 2010 Final
C. The Contractor shall comply in all respects, with the provisions of Admin. Co4e § 6- 1 1 4 and the rules issued by the Comptr�ller thereunder.
; ,
Section 13.08 MacBride Principles
A. In accordance with and to the extent required by Admin. Code § 6-1 1 5. 1 , the Contractor stipulates that the Contractor and any individual or legal entity in which the Contractor holds a ten percent ( 1 0%) or greater ownership interest and any individual or legal entity that holds a ten percent ( 1 0%) or greater ownership interest in the Contractor either (a)
have no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to
conduct any business operations they have in Northern Ireland in accordance with the MacBride Principles, and shall permit independent monitoring of their compliance with such principles.
B. The Contractor agrees that the covenants and representations in Paragraph A above are material conditions to this Agreement.
C. This Section does not apply if the Contractor is a not-for-profit corporation.
Section 13.09 Acces·s to Public Health Insurance Coverage Information
A. Participating Agencies. Pursuant to Charter § 1 069, if this Agreement is with a participating City agency and the Contractor is one to whom this Section applies as provided in Paragraph B of this Section, the Contractor hereby agrees to fulfill the obligations in Paragraph C of this Section. The participating City agencies are: the Administration for Children's S ervices; the City Clerk; the Commission on Human Rights; the Department for the Aging; the Department of Corrections; the Department of Homeless Services; the Department of Housing Preservation and Development; the Department of Juvenile Justice; the Department of Health and Mental Hygiene; the Department of Probation; the Department of Social Services/Human Resources Administration; the Taxi and Limousine Commission; the Department of Youth and Community Development; the Office to Combat Domestic Violence; and the Office of Immigrant Affairs.
B. Applicability to Certain Contractors. This Section shall be applicable to a Contractor operating pursuant to an Agreement which (i) is in excess of $250,000 and (ii) requires such Contractor to supply individuals with a written application for, or written renewal or recertification of services, or request for change of address form in the daily administration of its contractual obligation to such participating City agency. "Contractors" to whom this Section applies shall be deemed to include subcontractors if the subcontract requires the subcontractor to supply individuals with a written application for, or written renewal or recertification of services, or request for change of address form in the daily administration of the subcontractor's contractual obligation.
C. Distribution of Public Health Insurance Pamphlet. In accordance with Charter § 1 069, when the participating City agency supplies the Contractor with the public health insurance program options pamphlet published by the Department of Health and Mental Hygiene
Page 42 of48

• • Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 118 of 123
Appendix A December 2010 Final

pursuant to Section 1 7- 1 83 of the Ad.min. Code (hereinafter "pamphlet"), the Contractor hereby agrees as follows:

written

1a,-pplicaTtihoen

Contractor will distribute the pamphlet to for services, renewal or recertification of

all persons requesting services or request for

a a

change of address relating to the provision of services.

2. The Contractor will include a pamphlet with any Contractor communication sent through the United States mail for the purpose of supplying an individual with a written application for services, renewal or recertification of services or with a request for a change of address form relating to the provision of services.

3 . The Contractor will provide an opportunity for an individual requesting a written application for services, renewal or recertification for services or change of address form relating to the provision of services via the Internet to request a pamphlet, and will provide such pamphlet by United States mail or an Internet address where such pamphlet may be viewed or downloaded, to any person who indicates via the Internet that they wish to be sent a pamphlet.

4. The Contractor will ensure that its employees do not make any statement to an applicant for services or client or take any action the purpose or effect of which is to lead the applicant or client to believe that a decision to request public health insurance or a pamphlet has any bearing on their eligibility to receive or the availability of services or benefits.

5. The Contractor will comply with: (i) any procedures established by the participating City agency to implement Charter § 1 069; (ii) any determination of the commissioner or head of the participating City agency (which is concurred in by the commissioner of the Department of Health and Mental Hygiene) to exclude a program, in whole or in part, from the requirements of Charter § 1 069; and (iii) any determination of the commissioner or head of the participating City agency (which is concurer d in by the commissioner of the Department of Health and Mental Hygiene) as to which Workforce Investment Act of 1998 offices providing workforce development services shall be required to fulfill the obligations under Charter § 1 069.

D. Non-applicability to Certain Services. The provisions of this Section shall not apply to services that must be provided to prevent actual or potential danger to the life, health or safety of any individual or to the public.

ARTICLE 14 - MISCELLANEOUS PROVISIONS

Section 14.01 Conditions Precedent

A. This Agreement shall be neither binding nor effective unless and until it is registered pursuant to Charter § 328.

Page 4 3 o f4 8

• • Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 119 of 123
App�ndix A December 2010 Final
B. The requirements of this Section shall be in addition to, and not in lieu o f, any approval or authorization otherwise required for this Agreement to be effective and for the expenditure of City funds.
Section 14.02 Merger
This written Agreement contains all the terms and conditions agreed upon by the p arties, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties, or to vary any of the terms contained in this Agreement, other than a written change, amendment or modification duly executed by both parties pursuant to Article 9 of this Appendix A.
Section 14.03 Headings
Headings are inserted only as a matter of convenience and therefore are not a part o f and do not affect the substance of this Agreement.
Section 14.04 Notice
A. The Contractor and the Department hereby designate the business addresses specified at the beginning of this Agreement as the places where all notices, directions, or communications from one such party to the other party shall be delivered, or to which they shall be mailed. Either party may change its notice address at any time by an instrument in writing executed and acknowledged by the party making such change and delivered to the other party in the manner as specified below.
B. Any notice, direction, or communication from either party to the other shall be in writing and shall be deemed to have been given when (i) delivered personally; (ii) sent by certified mail, return receipt requested; (iii) delivered by overnight or same day courier service in a properly addressed envelope with confirmation; or (iv) sent by fax or email and, unless receipt of the fax or e-mail is acknowledged by the recipient by fax or e-mail, deposited in a post office box regularly maintained by the United States Postal Service in a properly addressed, postage pre-paid envelope.
C. Nothing in this Section shall be deemed to serve as a waiver of any requirements for the service of notice or process in the institution of an action or proceeding as provided by Law, including the New York Civil Practice Law and Rules.
Page 44 of 48 ·

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 120 of 123
! • Appendix A December 2010 F l
VENDOR NAME CHECK FEES Pursuant to PPB Rule § 2-08(f)(2), the Contractor will be charged a fee for the administration of the VENDEX system, including the Vendor Name Check process, if a Vendor Name Check review is required to be conducted by the Department of Investigation. The Contractor shall also be required to pay the applicable required fees for any of its subcontractors for which Vendor Name Check reviews are required. The fee(s) will be deducted from payments made to the contractor under the Agreement. If this Agreement has an estimated value of less than or equal to $ 1 ,000,000, the fee is $ 1 75 per Vendor Name Check. If the Agreement has an estimated value of greater than $ 1 ,000,000, the fee is $350 per Vendor Name Check.
Page 45 of 48

• • Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 121 of 123
Appendix A December 2010 Final
PUBLIC ASSISTANCE HIRING COMMITMENT
A. Except as otherwise provided by Paragraph G below, Contractor agrees as a condition of this Agreement, to hire at least orie Public Assistance Recipient ("PA Recipient") for each $250,000 in value of this Agreement, or to the extent that the Contractor enters into other contracts with the Department of the City, for each $250,000 of the cumulative value of contracts of the Contractor during the term of this Agreement.
B. Such hiring shall be for full-time employment of at least a minimum of thirty-five (35) hours per week. The rate of pay shall be at least 20% above the federal minimum wage, and the duration of the employment shall be for at least one ( 1 ) year. In the event that a replacement of a PA Recipient is made by the Contractor during the one (1) year, such replacement shall not
count as an additional employee toward Contractor's hiring requirement set forth herein.
C. Within thirty (30) days of the commencement date of this Agreement ("commencement date") or fifteen ( 1 5) days following notice from the Department that a request for an exemption from the provisions of this Rider has been denied, Contractor shall submit, on forms specified by the Department, information and specifications for the position(s) available.
D. The Contractor may at its option request the assistance of the Department in identifying potential employees. In such case, the Department will refer PA Recipients to the Contractor for employment interviews.
E. Contractor shall hire the number of employees agreed upon pursuant to this Rider within ninety (90) days of the commencement date or such longer period as may be specified, in writing, by the Department.
F. In the event Contractor fails to hire the required number of PA Recipients within the required time period, or fails to pay and retain such employees pursuant to the above requirements, Contractor shall pay to the Department or the Department may at its option, deduct from monies due or become due to Contractor, the amount of nineteen dollars and eighteen cents ($ 1 9. 1 8) per employee for each calendar day for which such PA Recipient(s)
is/are not employed by Contractor as required by this Rider. Such amount is hereby fixed and
agreed as liquidated damages.
G. Contractor may apply to the Department for exemption from all or part of the requirements of this Rider. Any application for an exemption must be made before the expiration of thirty (30) days after the commencement date of this Agreement, or any subsequent contract as discussed in Paragraph A herein, and shall be in the form specified by the Department. Exemption may be granted upon a showing that the operation of this Rider will constitute an extreme hardship, within the sole discretion of the Department; or to any Contractor not employing twenty (20) or more employees at a place of business within the City of New York.
Page 46 of 48

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 122 of 123

&&%!())  $')

Ă
!%")



 #)

">2e ZH02PX?<20e LQJMJX2Pe JPe -?002Pe *37IXe *H0e 02/C*P2Xe Y>*Ye X*?0e LPJLJX2Pe JPe -?002Pe ?Xe HJYe ?He ,W2*PXe YJeY>2e ?Y`eJ3e2]e &JPBe ZLJHe 02-Ye /JHYP*/YeJPeY*_2Xe +H0e ?Xe HJYe *e 025ZCY2Pe *XeXZP2Y`eJPe JY>2P]?X2e ZMJHe J-C?;*Y?JHeYJeY>2e ?Y`eJ4e2]e &JPBe *H0e >*Xe HJYe -22He 02/E*P20e HJYe P2XMJHX?-C2e JPe 0?XOZ*C?720e -`e *H`e *;2H/ae J3eY>2e ?Y`e J3e2]e &JPBe HJPe ?Xe Y>2P2e *H`eLPJ/220?H;e M2H0?H;e P2C*Y?H;e YJe Y>2e P2XLJHX?-?C?Y`eJPe OZ*D?7/*Y?JHe J3eY>2eLPJMJX2PeJPe -?002PeYJe P2/2?[2eMZ-E?/e /JHYP*/Ye

ZDCe H*G2eJ3eSJMJX2PeJPe ?002Pe (-2DJ])e

>

0D (&0>§<ă

00P2XXe Că

3D /D

!Y*Y2e āă

'?Le J02e Ï©¨ă

 ) )))  ) ) )

e e  H0?[?0Z*CeJPe!JC2ePJLP?2YJPX>?LXe

!e !#"&e# e

e e  *PYH2PX>?MeJ?HYe%2HYZP2eJPeJY>2PeZH?H/JPMJP*Y20eJP;*H?d*Y?JHe

&e ""e  #     e
2D e  JVJP*Y?JHe &e""e#e \l < l ; ă  ( 
 D

"@YDe

 3 e*e /JSLJP*Y?JHeME*/2eX 2 * C e>2P2e

ZXYe -2e X?=20e-`e*HeJ6/2PeJPe0ZC`e*ZY>JP?d20eP2LP2X2HY*Y?[2e

l

$H02Pe Y>2e 202P*Ee P?[*/`e /Ye Y>2e 9UX>?H;e J3e!J/?*Ce !2/ZPAY`e HZF-2PXe -`e -?002PXe JPe

NSKMJX2PXe JHe ?Y`e /JHYP*/YXe ?Xe \JDZHY*P`e *?CZP2e YJe NRJ[?02e *e !J/?*De !2/ZTY`e HZF-2Pe ^?DDe HJYe

P2XZDYe ?He *e -?002P XMPJLJX2PXe0?XOZ*C?7/*Y?JHe !J/?*Ce !2/ZPAY`e HZF-2PXe ^?DCe -2e ZX20e YJe ?02HY?:e

.?002PXe MPJMJX2PXe JPe [2H0JPXe YJe 2HXZP2e Y>2?Pe /JFME?*H/2e ]?Y>e E*]Xe YJe +XX?XYe Y>2e ?Y`e ?He

2H8P/2F2HYe J3eD *^Xe *Xe ^2EEe *Xe YJe MPJ[?12e Y>2e ?Y`e *e F2*HXe J3e?02HY? 3`?H;e -ZX?H2XX2Xe X22B?H;e

@Y`e/JHYP*/YXe

$
$!
$

Case 1:15-cv-05273 Document 1-2 Filed 07/08/15 Page 123 of 123

oâãµ×²Éămă ~¶°·Ó¯¸æăcX\YăÅÖªÍă

.%/+ă 0ă*ă )$)'. )-"'. > >s¯yF¯zz>t6i¥¯ n=ă > >¯ %'. yF¯bh>¯Òúóă- !
.
,- 
(
"- ) - Tmoy¢_sX¯ #('. ,- ) - #->isY¯ #+D [>¯ +- ','. )7¯ "*".
`tUx'ays¯ "t8¯ bZ'{>¯ y|¯ ! )- ! '- yG¯ "mm¯ zynh1_>¯ {>H?|>s1>9¯ cs¯ \@¯ #' (. yI¯
t|+1>
¯ s¯[>¯',>s3>¯yJ¯y[z>'>.! '- -_t7>¯QlS>!ö>

|/%.+ă 0ă*ă

l>¯ t:>_ZD;¯ &)" . $ "- _Tz`,t)'- ( . '. (-. yJ¯ +. y¯ ''. )- ('.

>dR1"@¯ -wae^M- Äïă )#(. - (mm¯ p">&m¯ }>z>1 ¯ ®ă *)- )-  '& - et~*2>¯ &.

>O>1f¡@¯Rl yK¯]A¯;$>¯yK¯]`¯ >gS3&fyt¯

9Zl }ÎÝÐ]Ñ ^ă õØð÷9ÿÙ±3ă

 '

 .yG¯.yj>¯­ª¤>s¯

 h ă áËÌă 
 ' $#'   ă %& ' ă B  $ e  ă

l l --

òý+ëă
XDl

> ' !' <
"q>¯yL¯"]y«><¯yP5¯®¦z>£g>t¯
' 
!"#'
&.'DyM¯#y¬><¯yQ1>|¯©E£?s ¯
 !  !$ ă yv%1¯^yw>¯r/E~¯V¯yk>¯¨>£>t ¯
q&em¯7={E¯yN¯%  %-§z>¤Ct!¯

¢û6îă ô6ă0>W>¯p>¯-%&,D

$ DÜ¿ăD

 
 Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ELISA W., by her next friend, Elizabeth Banicelli; ALEXANDRIA R., by her next friend, Alison Max Rothschild; THIERRY E., by his next friend, Amy Mulzer; AYANNA J., by her next friend, Meyghan McCrea; OLIVIA and ANAMARIA R., by their next friend, Dawn Cardi; XAVION M., by his next friend, Michael B. Mushlin; DAMEON C., by his next friend, Reverend Doctor Gwendolyn Hadley-Hall; TYRONE M., by his next friend, Bishop Lillian Robinson-Wiltshire; and BRITTNEY W., by her next friend, Liza Camellerie, individually and on behalf of a class of all others similarly situated, and LETITIA JAMES, the Public Advocate for the City of New York,
Plaintiffs,
-against-
THE CITY OF NEW YORK; the NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES; GLADYS CARRI6N, Commissioner of the New York City Administration for Children's Services, in her official capacity; the STATE OF NEW YORK; the NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; and SHEILA J. POOLE, Acting Commissioner of the New York State Office of Children and Family Services, in her official . capacity,
Defendants.

Case No: I: 15-cv-5273 CONSENT DECREE

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 2 of 18
WHEREAS, the above-referenced action was commenced by the above-named plaintiffs on behalf of themselves and similarly situated persons and the Public Advocate (collectively, "plaintiffs") against defendants the City of New York; the New York City Administration for Children's Services ("ACS"); Gladys Carrion, in her official capacity as Commissioner of ACS; the State of New York; the New York State Office of Children and Family Services ("OCFS"); and Sheila Poole, in her official capacity as Acting Commissioner of OCFS (collectively, "defendants"); and
WHEREAS, plaintiffs and the Public Advocate allege that defendants have failed to remedy alleged systemic deficiencies in New York City's foster care system; and
WHEREAS, the State of New York, OCFS and the Acting Commissioner of OCFS, (collectively, "State defendants") deny any and all wrongdoing alleged in the Complaint and deny any liability to plaintiffs in this action; and
WHEREAS, the State defendants along with plaintiffs and the Public Advocate agree that children in the New York City foster care system should be (a) protected from maltreatment, (b) provided with permanent homes and families within a reasonable time and (c) provided with foster placements and services that promote their well-being; and
WHEREAS, plaintiffs, the Public Advocate, and State defendants desire to avoid expending any further time, avoid incurring costs and expense, avoid any future uncmiainty oflitigation, and seek to resolve all matters embraced in the litigation as between the plaintiffs, the Public Advocate, and the State defendants; and
WHEREAS, OCFS, pursuant to Sections 17,20 and 34 of the New York Social Services Law has authority and responsibility to monitor and supervise the operations of local social services depmiments and officials within New York State, including but not limited to ACS, and to establish rules, regulations and policies and issue directives to the local social services depatiments to accomplish the forgoing, consistent with the above-referenced statutory provisions of New York Social Services Law; and
WHEREAS, OCFS, pursuant to Section 153-k(4) ofthe New York Social Services Law, has authority to approve or disappmve a request by a local social services department to establish a managed care system or other system for the delivery of child welfm·e services including, but not limited, to ACS' Improved Outcomes for Children ("IOC") initiative, and also has discretion to waive certain statutory and regulatot:y requirements related to such a system; and
WHEREAS, plaintiffs, the Public Advocate and State defendants (collectively, the "Parties") recognize, and the CoUJt by entering this Consent Decree finds, that this Consent D'ecree has · been negotiated by the plaintiffs, the Public Advocate and State defendants in good faith and will avoid futther litigation between the plaintiffs, the Public Advocate and State defendants, and that this Consent Decree is fair, reasonable, and that it is in the public interest for the children in the New York City foster care system to receive the care and services to which they are entitled under federal and State law;
2

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 3 of 18
NOW, THEREFORE, with the consent of the plaintiffs, the Public Advocate and State defendants, it is hereby ORDERED; ADJUDGED, and DECREED as follows:
1. Definitions: When used in this Consent Decree, the following terms have the following meanings:
1.1. The phrase "effective date" shall have the definition provided in Section 3 of this Consent Decree.
1.2. The phrase "Office of Children and Family Services", or the acronym "OCFS", refers to the New York State Office of Children and Family Services.
1.3. The phrase "Administration for Children's Services", or the acronym "ACS", refers to the New York City Administration for Children's Services.
1.4. The phrase "plaintiff children's counsel" refers to Marcia Robinson Lowry, and Cravath Swaine and Moore, LLP.
'
1.5. The phrase "Public Advocate", or the term "Advocate", refers to the Public Advocate for the City of New York.
1.6. The phrase "Research Expett", or the te1m "Expert", refers to an individual retained by ACS to conduct cettain research activities as described in Section 7 of this Consent Decree.
1.7. The te1m "Monitor" refers to an individual retained by OCFS to conduct certain
monitoring activities as described in Section 6 of this Consent Decree.
1.8. The phrase "voluntary agencies" refers to those authorized agencies (as that term is defined in Section 37l(IO)(a) ofthe Social Services Law) that have contracts with ACS to provide foster care for children in the custody of the Commissioner ofACS.
1.9. The phrase "Improved Outcomes for Children" or the acronym "IOC'' refers to a child welfare initiative undertaken by ACS and approved by OCFS pursuant to Section 153-k(4) of the Social Services Law. IOC includes the delegation of cettain local social services department case management functions to voluntary agencies and incorporates a family engagement practice model and a performance measurement and monitoring system.
1.10. The plu·ase "State defendants" refers to the State ofNew York, OCFS and the Acting Commissioner of OCFS.
2. Jurisdiction and Venue
3

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 4 of 18
2.1. The Court has jurisdiction over this action pursuant to 42. U.S.C §1983 and 28 U.S.C. §§1331 and 1343(a).
2.2. Venue lies in this judicial district pursuant to 28 U.S.C §1391(b).
3. Effective Date and Duration of Consent Decree
3.1. The Effective Date of this Consent Decree shall be the date upon which this Consent Decree is entered by the Coutt, or a motion to enter the Consent Decree is granted, whichever occurs first, as recorded on the Court's docket.
3.2. The Consent Decree shall remain in full force and effect until its expiration is so ordered by a Comt of competent jurisdiction or until such time as Court jurisdiction otherwise expires.
4. Conditional Nature ofthis Consent Decree
4.1. · This Consent Decree shall not take effect until the Comt, pursuant to Federal Rule of Civil Procedure 23(e), approves this Consent Decree as full settlement and release of each and every claim against the State defendants alleged by plaintiffs
and the Public Advocate in the above-referenced action, enters a judgment, and
"So Orders" this Consent Decree.
4.2. Unless and until the Consent Decree is So Ordered, State defendants are not obligated to perform the acts described in this Consent Decree and plaintiffs and the Public Advocate have no enforceable rights against the State defendants based on any provision of this Consent Decree.
5. Class Definition -Settlement Class.
5.1. This action shall be certified as a class action only with respect to plaintiff
children's or the Public Advocate's claims for injunctive and declaratory relief against the State defendants as set forth in the above-referenced action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).
5.2. The plaintiff class shall be defined as all children who are now or who will be in the foster care custody ofthe Commissioner of ACS during the duration of this Consent Decree ("plaintiff class").
6. Injunctive Relief- Monito1·
6.1. Hiring of a Monitor
6.1.1. OCFS will retain, as soon as is reasonably possible in accordance with applicable New York State procurement statutes, an individual to review and evaluate alleged systemic issues within the foster care system in New
4

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 5 of 18
I
I
York City that reflect widespread and/or ongoing substantial noncompliance with federal and State statutes, regulations and policies relating to the safety, permanency and well-being of foster children (the "Monitor").
6.1.2. The Monitor will have sufficient knowledge, qualifications and experience to perform such activities.
6.1.3. OCFS will have sole discretion to detetmine who it will retain as the Monitor. OCFS will provide plaintiff children's counsel and the Public Advocate with infotmation regarding the individual OCFS intends to retain as the Monitor prior to retaining his or her services. OCFS will give due weight to any comments plaintiff children's counsel and the Public Advocate may have regarding the [tppropriateness of such person.
6.2. Monitor's Duties
6.2.1. The Monitor will observe, review, report findings, and make recommendations regarding the safety, permanency and well-being of foster children in the foster care system in New York City. This will include, but not be limited to, the implementation and effectiveness of the IOC initiative. The Monitor's assessment of the foster care system in New York City shall include, but not be limited to: (a) the placement process in New York City, (b) the causes of maltreatment of children in foster care in New York City, if any, and ways to lower the rate of such maltreatment, (c) the availability and appropriateness of services in the foster care system in New York City, and (d) the recruitment of an appropriate and sufficient array of placements, including potential permanent families, for children in the foster care system in New York City.
6.2.2. OCFS will develop the criteria by which the Monitor will review and evaluate alleged systemic issues within the foster care system in New York City. OCFS will provide such ctiteria to plaintiff children's counsel and the Public Advocate for any recommended changes prior to adopting the criteria. OCFS shall not umeasonably withhold the adoption of any such recommendations·.
6.2.3. In conducting the review and evaluation contemplated by this Agreement, the Monitor, as directed by OCFS, will coordinate and consult with ACS, the voluntary agencies, and any !ask-force or similar group convened by ACS and advocacy organizations, to review and reform agency practice in relation to the foster care system in New York City.
6.3. Monitor's Access
5

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 6 of 18
6.3 .1. The Monitor will have access to records, data and foster care programs as determined by OCFS to be necessary to fulfill the Monitor's function and consistent with OCFS' statutory and regulatory authority.
6.3 .2. The Monitor will have reasonable access to staff of OCFS, ACS and the voluntary agencies in relation to the Monitor's duties.
6.3.3. ACS and the voluntary agencies shall cooperate with the Monitor, as directed by OCFS, in providing the Monitor with records, data and access to staff and foster care programs.
6.3.4. State defendants shall provide the Monitor with adequate resources to fulfill the responsibilities described in this Consent Decree.
6.4. Monitor Reports
6.4.1. The Monitor will prepare Quarterly Rep01ts outlining the Monitor's: activities for the qumter; findings concerning systemic issues with the New York City foster care system, if any; and any recommendations for changes to improve the system.
6.4.2. A draft of the rep01t shall be provided to the parties at least Thhty (30) days prior to the submission of the Quarterly Report, along with the aggregate data the Monitor used to produce the draft rep01t. The patties shall have Fifteen (15) days after receipt of such draft Quarterly Report to provide comments to the Monitor, on notice to each other, and the Monitor shall issue to the parties a final Quatierly Rep01t within Fifteen (15) days after mceiving such comments. The Qumterly Reports will be provided to the Court, OCFS, ACS, plaintiff children's counsel and the Public Advocate.
6.5. Corrective Actions
6.5.1. OCFS will review the Monitor's Quarterly Reports, discuss them with ACS, and determine what actions, if any, will be necessary to address any issues raised in such reports. If OCFS determines that no conective action is necessary to address a finding of substantial non-compliance, OCFS must document the reason for that determination.
6.5.2. ACS will prepare a proposed conective action plan, including timetables for implementation, to address such issues and provide the proposed conective action plan to OCFS for review and approval. A draft of the proposed COI'I'ective action plan will be provided to plaintiff children's counsel and the Public Advocate prior to OCFS' approval of such plan. Plaintiff children's counsel and the Public Advocate will have Fifteen (15)
6

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 7 of 18
days after receipt of such draft plan to provide comments to OCFS. OCFS will consider any comments regarding the appropriateness of such plan.
6.5.3. After approval by OCFS, ACS will implement the conective action plan and shall undertake all necessary co1~·ective actions. OCFS will review the actions taken by ACS to determine whether the actions satisfactorily address the issues requiring con-ection.
6.5.4. OCFS will have the authority and responsibility to approve, modify, oversee, review and monitor the development and implementation of any plan for con·ective action that ACS adopts or is directed to adopt in order to correct substantial non-compliance issues found to exist by the Monitor.
6.5.5. OCFS will use reasonable efforts to exercise its monitoring authority. If OCFS determines such issues are not satisfactorily addressed in accordance with any such conective action plan, OCFS will take such additional action, consistent with its statutory authority, to require ACS to satisfactorily address such issues.
6.6. Duration ofthe Monitor
6.6.1. The parties will meet in three years after the effective date of this Consent Decree and then every two years thereafter during the duration of the Consent Decree to determine whether the Monitor continues to be effective regarding his or her ability to can·y out the duties set fotth in this section. In the event that one or more of the patties believes the Monitor is no longer effective, and another patty or parties disagrees, the parties shall attempt to resolve the matter as set forth in Section 8. If the pa1ties are unable to do so, they will present the matter to the Comt for a determination as to whether the Monitor is effective in meeting his or her duties set forth under this Consent Decree.
7. Research Expert
7.1. Hil'ing of a Research Expert
7.1.1. OCFS will require ACS, as soon as is reasonably possible in accordance with applicable New York State and City procurement statutes, to retain an individual with adequate resources to conduct reviews of case records of children in the custody of the Commissioner of ACS to dete1mine compliance with relevant federal and State laws, regulations and policies relating to the safety, permanency, and well-being of foster children (the "Expert").
7.1.2. The Expert shall have sufficient knowledge, qualifications and experience to conduct such reviews.
7

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 8 of 18
7.2. Approval of the Expert
7.2.1. ACS must obtain OCFS' approval prior to retaining the Expe11. ACS will submit to OCFS such information concerning the prospective Expert as OCFS deems necessary to determine whether the prospective Expert is suitable and appropriate.
7.2.2. OCFS will provide plaintiff children's counsel and the Public Advocate with information concerning the prospective expert prior to granting such approval. OCFS approval will be contingent on reaching consensus with plaintiff children's counsel and the Public Advocate. Plaintiff children's counsel and the Public Advocate will not unnecessarily or unreasonably withhold their approval.
7.3. Expert's Duties
7.3.1. The Expettwill conduct, on an annual basis, case record reviews of a statistically significant sample of the case records of children in the custody of the Commissioner of ACS to determine whether the case records show substantial compliance by ACS and the voluntary agencies with the relevant federal and State statutes, regulations and policies. The case records of the ten named plaintiffs identified in the complaint shall be reviewed in the first annual review, as long as such plaintiffs remain in ACS custody. The Expert will issue individual case reports and bi-annual aggregate reports as set forth in 7.4 and 7.5.
7.3.2. The Expert will submit to OCFS, for approval, the Expett's proposed research protocols and methodology, including the method for determining the sample of cases to be reviewed, to determine whether they meet the criteria for a bona fide research proposal and are sufficient to appropriately determine substantial compliance with the relevant federal and State statutes, regulations and policies.
7.3.3. OCFS will provide information to plaintiff children's counsel and the Public Advocate regarding the research protocols and methodology OCFS proposes to approve and will consider any recommended changes plaintiff children's counsel and the Public Advocate may have. OCFS shall not unreasonably withhold the adoption of any such recommendations. OCFS will have sole discretion in determining whether to approve the research protocols and methodology.
7.3.4. OCFS' approval of the Expert's research protocols and methodology will include providing the Expert with the necessary approval to obtain copies of relevant confidential case records, other than sealed adoption records.
8

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 9 of 18
7.4. Expert's Reports -Individual Cases
7.4.1. For any individual cases reviewed as part of a case record review where the Expert finds substantial non-compliance by a voluntary agency and/or ACS with any relevant federal and State statutes, regulations and/or policies, the Expe1t will prepare a written individual case repo1t detailing the findings on that case. The Expe1t will share such written repmts with ACS and OCFS.
7.4.2. For any individual case where the Expe1t finds substantial non-compliance by a voluntary agency, ACS will review the reports, assess what corrective action, if any, is necessary, and prepare a corrective action plan or cause a proposed corrective action plan to be prepared. ACS may consult with the . voluntmy agency in determining what corrective action is necessary, and may require the voluntary agency to prepare the proposed corrective action plan for review and approval by ACS. If ACS determines that no corrective action is necessary to address a finding of substantial noncompliance, ACS must document the reason for. that dete1mination.
7.4.3. If ACS determines that cOJTective action is necessary, ACS will require that the voluntary agency take the necessa1y corrective actions and will review the actions taken by the voluntary agency to detennine whether the actions satisfactorily address the issues requiring correction. ACS will have the authority and responsibility to oversee, review and monitor the implementation of any plan for coJ1'ective action that a voluntal'Y agency adopts or is directed to adopt in order to correct substantial noncompliance issues determined to exist as a result of a case record review. The Expe1t will conduct a follow-up individual case review to see whether the problem has been !!ddressed by the COJ1'ective action plan.
7.4.4. ACS will report to OCFS on a qua1terly basis on the status of all such corrective action plans, and the follow-up individual case review results. If OCFS determines that any substantive issues are not being satisfactorily addressed in accordance with such con·ective action plans, OCFS will take such additional action as it deems appropriate, consistent with its statutoty authority, to require ACS to satisfactorily address such issues.
7.4.5. For any individual case where the Expe1t finds substantial non-compliance by ACS, OCFS will review the reports and determine what con·ective action, if any, is necessary. OCFS may consult with ACS in determining what corrective action is necessary, and may require ACS to prepare a corrective action plan for review and approval by OCFS. If ACS determines that no corrective action is necessary to address a finding of substantial non-compliance, ACS must document the t·eason for that detennination.
9

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 10 of 18
7.4.6. OCFS will require that ACS take any necessary cotTective action, and ACS will take the required con·ective action. OCFS will review the actions taken by Acs·to determine whether the actions satisfactorily address the issues requiring cmTection. OCFS will have the authority and responsibility to approve, modify, oversee, review and monitor the development and implementation of any such con·ective action plan that ACS adopts or is directed to adopt in order to correct substantial noncompliance issues determined to exist as a result of a case record review. OCFS will use reasonable effmts to exercise its oversight authority. If OCFS determines any such issues are not satisfactorily addressed in accordance with such corrective action plan, OCFS will take such additional action, consistent with its statutory authority, to require ACS to satisfactorily address such issue.
7.4.7. Plaintiff children's counsel, the Public Advocate, and State defendants will work collaboratively to determine the mechanism by which the adequacy of the Expert's review of individual cases is to be assessed by plaintiffs and the Publi<; Advocate. Such mechanism shall include appropriate privacy protections, consistent with statutory confidentiality provisions, for individual class members including whel'e appropriate, tedaction of identifying infonnation and the implementation of special circumstances foi·teview of documentation. Such mechanism fmther will be contingent upon execution of a court ordered protective order to protect the identity and privacy of individual children in the foster care system.
7.5. Expert Reports- Aggregate Reports
7.5.1. The Expe1t will prepare, on a bi-annual basis, an aggregate repmt summarizing the major results of all the case records reviewed during the applicable previous six-month period setting forth: aggregate data regarding all incidents of non-compliance identified; cotrective action plans implemented; reasons why any corrective actions were detennined not to be needed; the results of follow-up re,views; and any general trends related to the Expe1t's findings of substantial non-compliance issues with the relevant federal and State statutes, regulations and/or policies across multiple cases that appear to be widespread due to the fi·equency or commonality with which the issues occur with regard to any particular specified voluntary agency, overall across various voluntary agencies, and/or with regard to ACS and/or the Family Court. Such repmt will only · include aggregate information and will not include any information that identifies particular cases, particular children in foster care, or the families of such children.
7.5.2. Each bi-annual report from the Expe1t will be provided to the Comt, ACS, OCFS, the Monitor, plaintiff children's counsel and the Public Advocate.
10

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 11 of 18
7.5.3. OCFS and the Monitor will review the Expert's bi-annual report and determine what ·corrective action, if any, is necessary to address any substantial compliance issues identified in the bi-annual report. OCFS may consult with ACS in determining what cotTective action is necessary, and may require one or inore voluntary agencies and/or ACS to prepare a corrective action plan for review and approval by OCFS. If OCFS and the Monitor determine that no corrective action is necessary to address a finding of substantial non-compliance, they must document the reason for that determination.
7.5.4. A draft of the proposed corrective action plan will be provided to plaintiff children's counsel and the Public Advocate prior to OCFS' approval of such plan. Plaintiff children's counsel and the Public Advocate shall have Fifteen (I 5) days after receipt of such draft plan to provide comments to OCFS. OCFS will consider any comments regarding the appropt'iateness of such plan.
7.5.5. OCFS will require that one or more voluntary agencies and/or ACS take any necessary cotTective action, and such voluntary agency and/or ACS · will take the required corrective action. OCFS will review the actions taken to determine whether the actions satisfactorily address the issues requiring correction. OCFS will have the authority and responsibility to approve, modify, oversee, review and monitor the development and · implementation of any such cotTective action plan that a volmttary agency or ACS adopts or is directed to adopt in order to con•ect substantial noncompliance issues determined to exist as a result of a case record review. OCFS will use reasonable efforts to exercise its oversight authority. If OCFS determines any such issues am not satisfactorily addressed in accordance with such corrective action plan, OCFS will take such additional action, consistent with its statutory authority, to require a voluntary agency or ACS to satisfactorily address such issue.
7.6. Duration of the Expert: The pmties will meet every two years after the effective date of this Consent Decree to detetmine whether the Expert continues to be effective regarding his or her ability to carry out the duties set forth in this section. In the event that one or more ofthe parties believes the Expert is no longer effective, and another party or parties disagree, the patties shall attempt to resolve the matter as set forth in Section 8. If the parties are unable to do so, they will present the matter to the Court for a determination as to whether the Expett is effective in meeting the duties set forth under this Consent Decree.
8. Dispute Resolution Procedures
8.1. If plaintiff children's counselor the Public Advocate believes that any State defendant is not in substantiai compliance with the terms of this Consent Decree, plaintiff children's counsel or the Public Advocate may not seek relieffrom the
11

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 12 of 18
Coutt for such failut·e of substantial compliance without first requesting in writing and attending a meeting with counsel for the State defendants at a mutually agreeable time and place to discuss and attempt to resolve the dispute. The State defendants shall only be dete1mined to have failed to be in substantial compliance with a particular provision of this Consent Decree if the failure, in whole or in pa1t, is substantial and sufficiently widespread as to be systemic. Such substantial non-compliance shall include the State defendants' failure to design inquiries and corrective action plans and oversee implementation of such corrective action plans in a manner that substantially complies with federal and State laws.
8.2. Prior to taking any action against any State defendant arising out of an alleged failure to be in substantial compliance with this Consent Decree, plaintiff children's counsel or the Public Advocate shall provide reasonable notice to counsel for the State defendants of the area(s) of alleged non-compliance. Thirty (30) days after receipt of such notice, the State defendant shall provide to plaintiff children's counsel or the Public Advocate, as applicable, information sufficient to establish the State defendant's reasonable good-faith efforts toward compliance with the term(s) of the Consent Decree for which non-compliance is alleged. Within Fifteen (15) business days after the State defendant's response, the parties shall meet and make a good-faith effort to resolve any differences or disputes arising from or out of this Consent Decree. Nothing said by any patty or counsel during those meetings may be used by the opposing patty in any subsequent litigation in this or any other lawsuit or for any purpose.
8.3. In the event that the aforementioned meeting results in an agreement on an action plan to address the dispute(s), plaintiff children's counsel or the Public Advocate may not seek relief from the Court for violation of this Consent Decree until at least Thirty (30) days after the projected completion of such action plan, and only if plaintiff children's counsel or the Public Advocate then believes at such time that the relevant State defendants are still not in substantial compliance with the terms of this Consent Decree after such Thirty (30) day period. In the event that the aforementioned meeting does not result in an agreement on an action plan to address the dispute(s), the plaintiffs, Public Advocate, and State defendants will submit to a confidential neutral mediator, to be agreed upon by all pa1iies, with sufficient knowledge, qualifications, and experience to propose an action plan to address the dispute. In the event the plaintiffs OJ' the Public Advocate do not believe the proposed action plan is sufficient or State defendants fail to implement the proposed action plan, plaintiff children's counsel or the Public Advocate may, in its sole discretion, seek immediate relief from the Court for the alleged violation of this Consent Decree without pursuing any other procedure with, or providing prior notice to, the State defendants' counsel.
9. . Notice of Fail'ness Hcal'ing
9.1. Within Ten (10) days after this Consent Decree has been fully executed, Counsel for all parties shall jointly make a motion to the Court for preliminary approval of
12

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 13 of 18
this Consent Decree and for entry of an Orde1· for Notice and Hearing. Counsel · shall also request the Court to set a date for a Fairness Hearing on the proposed Consent Decree in accordance with Federal Rule of Civil Procedure Rule 23(c).
9.2. Should the Court determine that an evidentiary hearing is needed to respond to the motion, the State defendants' will cooperate in responding to all reasonable requests for information in preparation for such hearing.
9.3. Counsel for all parties will jointly request the Court to find that, under the circumstances of this case, sufficient and appropriate notice consists of publication of notice of the Fairness Hearing by the State defendants twice within a three week period in each of the following publications: The New York Post; The New York Daily News, and El Diario (notice shall be in the Spanish language), as soon as practicable after the Court schedules a Fairness Hearing. Publication notices shall include the Public Advocate's and plaintiff children's counsel's contact information. Publication Notice shall be in the form attached in Exhibit "A".
10. Release and Discharge of Claims and Actions
10.1. As of the effective date of this Consent Decl'ee, all claims raised by plaintiffs and the Public Advocate against the State defendants are hereby withdrawn with prejudice and all remedies sought in the Complaint conceming said claims are limited to the provisions of this Consent Decree, and the complaint is dismissed in its entirety as against the State defendants.
10.2. Upon the Coutt's approval of this Consent Decree, the Public Advocate, and plaintiffs, individually and on behalf of each member of the proposed plaintiff class, and on behalfof the respective heirs, executors, administrators, personal representatives, successors and assigns of each of themselves and each member of the proposed class, hereby jointly and severally release and forever discharge, on the merits with prejudice, State defendants, including without limitations State defendants' past and present officials, employees, departments, agencies, representatives, directors and agents, their successors and assigns and their respective heirs, executors, administrators, personal representatives, and transferees (collectively "the releasees") and each of them, of ;md from any and all claims, actions whether known or unknown, foreseen or unforeseen, matured or un-matured, acctued or not accrued, direct or indirect, from the beginning of time through the effective date of the Court's Consent Decree that plaintiffs or the Public Advocate ever had, now has or have, or can, shall or may hereafter have against the releasees or any of them, either alone or in combination with others, for, by reason of, involving, concerning, arising fi·om or in any way relating to any claim contained within the Complaint. Plaintiffs may submit the Issue of reasonable fees and costs to the Court. State defendants reserve the right to make any and all objections to such motion for fees and costs.
13

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 14 of 18
11. Entirety of Agreement: This Consent Decree constitutes the entire agreement of the parties and the provisions of this Consent Decree resolve the action in its entirety as against the State defendants. For the duration ofthis Consent Decree, State defendants have no additional obligations with respect to the matters settled herein, and plaintiffs and the Public Advocate may not impose, or seek to impose, or bring any suit that seeks to impose, any additional systemic obligations upon State defendants with respect to the matters settled herein.
12. No Admission/No Precedential Value
12.1. State defendants deny any express or implied wrongdoing or liability. This Consent Decree represents the pmiies' compromise of disputed claims, and reflects the parties' recognition that litigation of these claims would severely burden all concemed and would require further commitment oftime, resources and money. The Consent Decree does not constitute, is not intended to constitute, and shall not under any circumstances be deemed to constitute, an admission by the State defendants as to the merits, validity, or accuracy, or lack thereof, of any of the allegations, claims, or defenses alleged in this case.
12.2. Neither this Consent Decree nor any of its terms shall have any precedentia1 value whatsoever, and shall not be offered, or used or admissible in anyway whatsoever in any future action or proceeding in any court or other tribunal against the State defendants except for the purpose of seeking enforcement of its terms or any subsequent orders entered pursuant thereto.
13. Jurisdiction ofthe Com·t: As of the effective date of this Consent Decree, the jurisdiction ofthis Court over the dispute between plaintiffs, the Public Advocate, and State defendants shall terminate for all purposes except that the Court shall maintain continuing jurisdiction for the purpose of deciding motions regarding enforcing any specific provisions of the Consent Decree.
14. Enforcement: In the event the plaintiffs or the Public Advocate seeks judicial enforcement of the term(s) of this Consent Decree, plaintiff.~ or the Public Advocate will in the first instance seek an order directing compliance with this Consent Decree and thereafter may, if necessary, seek further judicial remedies to enforce the terms and conditions of this Consent Decree.
15. Resolution of Ambiguities: All parties to this Consent Decree have participated in its drafting; consequently, any ambiguity shall not be construed for or against any patty.
16. Severability: If any of the provisions, tetms or clauses of this Consent Decreeare declared illegal, unenforceable, or ineffective in a legal forum, those provisions, terms and clauses shall be deemed severable, such that all other provisions, terms and clauses of this Consent Decree shall remain valid and binding on the plaintiffs and State defendants.
14

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 15 of 18
17. Implementation Dates: If any date .or period of time described in this Consent Decree falls or ends on a public holiday or weekend, the date or period of time shall be extended to the next business day.
18. Confidentiality of Information: Plaintiff children's counsel and the Public Advocate shall protect the confidentiality of all infmmation concerning the named plaintiff children and members of the proposed class that is provided by State defendants under the terms of this Consent Decree and any applicable protective order issued by the Comt, and shall not disclose such information to any individual or entity other than in compliance with federal and State law.
19. Notices
19.1. Any notice, report or cormnunication required by or made pursuant to the terms of this Consent Decree shall be sent by first class mail, postage prepaid, and by electronic mail, to all of those listed below:
Marcia Robinson Lowry A Better Childhood, Inc. 1095 Hardscrabble Road Chappaqua, NY 10514
Julie A. North Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue NewYork,NY 10019
Jennifer Levy Public Advocate for the City of New York 1 Centre Street, 15th Floor New York, NY 10007
19.2. Any pruty may change the above-designated addressee or address by written notice to the other patties.
20. Covenant Not to Sue
20. l. For the duration of this Consent Decree and the implementation of this Consent Decree, plaintiff class, plaintiff class members, and the Public Advocate, agree not to sue the State defendants for injunctive or declaratory relief based on any alleged facts or causes of action, statutory, or constitutional .claim set forth in the complaint for the above captioned action, or for any class or individual claim(s) that allege system-wide violations arising out of such claim(s) and fact(s) alleged in the complaint for the above captioned action.
15

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 16 of 18
•,
20.2. All class-wide or systemic claims arising from facts and/or circumstances occurring after execution of this Consent Decree, but which occur during the duration of this Consent Decree, and relate factually or legally to the claims raised in the complaint by the plaintiff class and the Public Advocate against the State defendants, are resolved by this Consent Decree, except that this Consent Decree shall not preclude any plaintiff or any present or future child in the custody of ACS from filing an action on his or her own behalf against any of the State defendants during the duration ofthe Consent Decree for the purposes of seeking damages and/or equitable relief to protect the rights, well-being and interests of such present or future child in the custody of ACS; provided, however, that: (I) such equitable relief must be limited to that which is necessary or appropriate to redress the individual child's injury, and (2) this Consent Decree shall not constitute, be construed as or be read as a consent by any State defendant to be sned in federal court, or as a waiver of any defense of sovereign immunity any defendant may seek to raise, including an Eleventh Amendment immunity fi·om suit in federal court.
IN WITNESS WHEREOF, the plaintiffs, the Public Advocate, and State defendants hereto, intending to be legally bound hereby, have executed this Consent Decree on the 29'1 day of September, 2015.
Dated:

~--~ ~II, ~V<--~ /:_{
Matcia Robinson Lowry

0

Attomey for Plaintiff Children

A Better Childhood, Inc.

16

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 17 of 18
•'.'!
JuljbA:NOrth Al!orney for Plaintiff Children Cravath, Swaine & Moore LLP
~/
Alphonso B. David Counsel to Governor Andrew M. Cuomo
Sheila J. Poole Acting Commissioner of OCFS
So Ordered Hon. Laura Taylor Swain
17

Case 1:15-cv-05273-LTS-HBP Document 50 Filed 10/20/15 Page 18 of 18

Julie A. North Attorney for Plaintiff Children Cravath, Swaine & Moore LLP
Alphonso B. David Counsel to Governor Andrew M. Cuomo

Acting Commissioner of OCFS

So Ordered Hon. Laura Taylor Swain

17

 
 Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 1 of 129

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ELISA W., by her next friend, Elizabeth Barricelli; ALEXANDRIA R., by her next friend, Alison Max Rothschild; THIERRY E., by his next friend, Amy Mulzer; LUCAS T., XIMENA T., JOSE T.C. AND VALENTINA T.C., by their next friend, Rachel Friedman; AYANNA J., by her next friend, Meyghan McCrea; OLIVIA and ANA-MARIA R., by their next friend, Dawn Cardi; XAVION M., by his next friend, Michael B. Mushlin; DAMEON C., by his next friend, Reverend Doctor Gwendolyn Hadley-Hall; TYRONE M., by his next friend, Bishop Lillian Robinson-Wiltshire; BRITTNEY W., by her next friend, Liza Camellerie; MIKAYLA G., by her next friend, Amy Mulzer; MYLS J. AND MALIK M., by their next friend, Elizabeth Hendrix; and EMMANUEL S. AND MATTHEW V., by their next friend, Samuel D. Perry, individually and on behalf of a class of all others similarly situated, and LETITIA JAMES, the Public Advocate for the City of New York,
Plaintiffs,
-against-
THE CITY OF NEW YORK; the NEW YORK CITY ADMINISTRATION FOR CHILDREN’S SERVICES; GLADYS CARRIÓN, Commissioner of the New York City Administration for Children’s Services, in her official capacity; the STATE OF NEW YORK; the NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; and SHEILA J. POOLE, Acting Commissioner of the New York State Office of Children and Family Services, in her official capacity,
Defendants.

15 Civ. 5273 (LTS) (HBP)
AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 2 of 129
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 PARTIES .........................................................................................................................................5
I. The Named Plaintiff Children..................................................................................5 II. The Public Advocate for the City of New York ....................................................55 III. Defendants .............................................................................................................58 JURISDICTION AND VENUE ....................................................................................................60 CLASS ACTION ALLEGATIONS ..............................................................................................60 STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM...............................64 FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S FOSTER CARE SYSTEM AND RESULTING HARM TO PLAINTIFF CHILDREN....................................................................75 I. DEFENDANTS ARE CAUSING IRREPARABLE HARM TO
CHILDREN IN ACS CUSTODY. ........................................................................78 A. Defendants Fail To Protect Children in ACS Custody from
Maltreatment. .............................................................................................78 B. Defendants Fail To Provide Children in ACS Custody with
Permanent Homes and Families Within a Reasonable Time.....................79 C. Defendants Fail To Provide Foster Placements and Services
that Ensure the Well-Being of Children in ACS Custody. ........................84 II. DEFENDANTS HAVE FAILED TO REMEDY THE SYSTEMIC
DEFICIENCIES PLAGUING NEW YORK CITY’S CHILD WELFARE SYSTEM ............................................................................................89 A. City Defendants Fail To Exercise Adequate and
Meaningful Oversight over Contract Agencies. ........................................90 B. Defendants Fail To Ensure an Adequately Staffed and
Appropriately Trained Child Welfare Workforce......................................92 C. Defendants’ Processes for Making Foster Placements in
New York City Are Deficient. ...................................................................96 D. ACS Fails To Ensure that Meaningful Case Plans and
Service Plans for Foster Children Are Developed and Implemented. .............................................................................................99 E. Defendants Fail To Ensure Timely Adjudication of Family Court Proceedings Involving Children in Foster Care.............................107 CAUSES OF ACTION ................................................................................................................112 FIRST CAUSE OF ACTION ......................................................................................................112 SECOND CAUSE OF ACTION .................................................................................................113

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 3 of 129 THIRD CAUSE OF ACTION .....................................................................................................114 FOURTH CAUSE OF ACTION .................................................................................................116 FIFTH CAUSE OF ACTION ......................................................................................................118 PRAYER FOR RELIEF ..............................................................................................................119
ii

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 4 of 129
PRELIMINARY STATEMENT 1. Foster care is supposed to be safe and temporary. For children in New York City’s foster care system, it is neither. Children in New York City’s foster care system are in one of the most dangerous foster care systems in the country, and they spend longer in foster care than do foster children almost anywhere else in the country. The emotional damage—and, far too often, abuse—suffered by these children at the hands of a system designed to keep them safe is unacceptable. That the responsible state and city officials have known about these problems and done nothing to fix them is inexcusable. 2. Nineteen named plaintiffs, all children in foster care in New York City, bring this lawsuit as a civil rights action on behalf of all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services (“ACS”) (“Plaintiff Children”). They seek both declaratory and injunctive relief against the city and state agencies and officials responsible for violating their rights under the United States Constitution, federal law, and New York state law and regulations. Plaintiff Letitia James, as Public Advocate for the City of New York, who has received myriad constituent complaints concerning foster care, brings this lawsuit seeking injunctive and declaratory relief against the State Defendants to ensure that ACS promptly remedies the systemic failures that have been plaguing New York City’s foster care system for too long. 3. Defendants are the City of New York (“City”), ACS, Gladys Carrión, Commissioner of ACS, in her official capacity (collectively, “City Defendants”); the State of New York, the New York State Office of Children and Family Services (“OCFS”), and Sheila J. Poole, Acting Commissioner of OCFS, in her official capacity (collectively, “State Defendants”). 4. Through a pattern and practice of long-standing and well-documented action and inaction, Defendants—who are responsible for protecting New York City’s foster children—fail

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 5 of 129
to keep these children safe. And, instead of ensuring that New York City’s foster children grow up in safe, permanent families, Defendants’ policies and customs cause far too many children to grow up in the custody of the state, without a home or family to call their own:
a. New York City children make up the majority of children in foster care in New York State, which has one of the worst rates of maltreatment in foster care of any jurisdiction in this country.
b. Children in foster care in New York City spend two times as much time in state custody as children in the rest of New York State, and over double the amount of time in state custody as children in the rest of the nation.
c. It takes longer to return New York City children in foster care to their parents than in the rest of New York State and the rest of the nation. The most recent federal data available shows that New York City performs worse on this measure than all but five other states and territories.
d. It takes longer for a foster child to be adopted in New York City than anywhere else in the country. New York City has performed worse on this measure than every state since at least 2007.
e. Many children who are without a permanent home never get adopted at all and leave the foster care system only when they get too old to stay in it any longer. Approximately 1,000 children “age out” of the foster care system each year, often winding up homeless and without any adult with whom they have a permanent connection.
2

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 6 of 129
5. New York City’s child welfare system is causing devastating, ongoing and longlasting harm to New York City children in its care:
a. Children who are separated from their parents to whom they could be returned weep at the end of visits with their parents but continue to live in foster care well beyond the time they could be returned home.
b. Parents whose children are removed because they need services are unable to gain access to the right services and thus are unable to regain custody of their children.
c. Children who cannot be safely returned to their parents languish in foster care, many moving from place to place, growing older and more damaged by their experiences, not knowing to which adults to form attachments, or trusting no adults at all.
d. Children traumatized by the disruptions in their young lives do not know where they will be living from one month to the next, or whether there are any adults on whom they can rely. Often by the time a decision is made about what the plan should be for their future, they are irreparably damaged by their experiences in foster care.
6. These consequences are the result of systemic deficiencies in which:
a. The state agency, OCFS, is responsible for foster care across New York State and for ensuring that federal foster care funds are spent as required by the governing federal statutes and state statutes and regulations
3

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 7 of 129
consistent with federal law, but neither monitors nor enforces those laws and regulations. b. The city agency, ACS, in whose legal custody all foster children are placed, delegates its responsibility for the day-to-day care of these children by contract to 29 agencies (the “Contract Agencies”), paying hundreds of millions of dollars to the Contract Agencies for foster care services but failing to ensure they meet minimum professional standards or provide adequate and meaningful oversight to ensure compliance with federal and state law and the applicable contracts. c. The damage that is being done to children in foster care in New York City as a direct result of these structural failures in the New York City child welfare system is both avoidable and a violation of these children’s statutory and constitutional rights.
7. The illegal conduct of which Plaintiffs complain has plagued New York City’s foster care system for far too long—a fact well known to Defendants, all of whom have been in a position to change it.
8. Plaintiffs seek a ruling from this Court that the structural deficiencies and longstanding actions and inactions described in this complaint violate the statutory and constitutional rights of all children dependent on the New York City foster care system for their safety, their well-being and their futures. They seek an equitable injunction against the responsible city and state officials and agencies named as Defendants in this lawsuit, directing that appropriate relief be granted so that New York City’s foster children are no longer irreparably harmed by the
4

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 8 of 129
system that is supposed to protect them. These children have a right to a safe and nurturing childhood. Plaintiffs ask this Court to protect that right.
PARTIES I. The Named Plaintiff Children
Elisa W. 9. Plaintiff Elisa W. is a 17 year old girl in the twelfth grade. ACS removed her from her biological mother when she was approximately four years old. She has been in ACS custody for the past 13 years—over three quarters of her life. 10. Plaintiff Elisa W. appears through her next friend, Elizabeth Barricelli. Ms. Barricelli has been an elementary school teacher for over 30 years and currently teaches elementary school science at a public school in Brooklyn. Ms. Barricelli taught Elisa W. from 2006 to 2010 when Elisa W. was in elementary school and they recently reconnected. Ms. Barricelli is familiar with Elisa W.’s background and education. Ms. Barricelli is truly dedicated to Elisa W.’s best interests. 11. ACS removed Plaintiff Elisa W. from her biological mother when she was four years old because of allegations of physical abuse. At the time, Elisa W.’s biological mother was approximately 19 years old and living in a mother-child foster placement in New York City. 12. Over the past 13 years, ACS has shuffled Plaintiff Elisa W. through so many foster placements that she is unable to account for all of them—a direct result of ACS’s failure to ensure an appropriate foster placement that could meet her needs. In the last two years alone, Elisa W. has been in four foster placements. Elisa W. has attended at least seven schools over the course of her young life.
5

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 9 of 129
13. Plaintiff Elisa W. has a reported history of physical and suspected sexual abuse while in ACS custody.
14. In the first foster placement Plaintiff Elisa W. can remember, she was sexually abused by the nephew of her then-foster mother. She was just six years old at the time. She did not report the incident to anyone because she did not want to get in trouble. At this same placement, Elisa W. was subjected to other physical, psychological and emotional abuse, including being forced by her then-foster mother to sleep in a bug-infested bedroom and being forced to walk around the foster home naked after bathing. Once, Plaintiff Elisa W.’s then-foster mother beat her and denied her food as punishment for purportedly telling her biological mother that she was being beaten by her foster mother; however, the allegation had been made by the foster mother’s own daughter pretending to be Elisa W. Upon information and belief, Elisa W.’s then-foster mother would allow family members with violent criminal records in the home. Elisa W. reports feeling like “just a total stranger” in this foster placement.
15. In approximately 2006, Plaintiff Elisa W. was placed in another foster placement, and again suffered severe physical, psychological and emotional abuse, including sexual abuse by multiple relatives of her then-foster mother. Elisa W.’s teachers made multiple reports of physical abuse to her caseworker, including when Elisa W.’s then-foster mother punched her in the face. Upon information and belief, neither the Contract Agency nor ACS took any action in response to these reports. Her then-foster mother neglected Elisa W., who often went to school unkempt and underfed; her teacher at the time, her next friend Ms. Barricelli, often had to buy Elisa W. snacks during the school day and maintained a clean uniform at school for her. Elisa W. remained in this abusive foster placement for five years—a direct result of ACS’s failure to ensure that the Contract Agency to which ACS had delegated day-to-day care of this young girl
6

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 10 of 129
was keeping her safe. On April 28, 2014, Elisa W. was assigned to a different Contract Agency when it was determined she needed “therapeutic foster placements”. Although Elisa W. is from New York City, the Contract Agency first placed her in a home in Suffolk County and then in a home in Nassau County. However, at the time—and to this day—the only person Elisa W. considers a friend lives in New York City.
16. As a result of the great emotional damage Plaintiff Elisa W. has suffered while in ACS custody for the past 13 years, this young girl has suffered and continues to suffer from a variety of mental health problems. Her diagnoses include depression, bipolar disorder and posttraumatic stress disorder. She has been on anti-depressants and mood stabilizers since she was 11 years old. In July 2014, Elisa W. requested she be placed in a mental health facility because of her mental health concerns. Elisa W. remained there for two months. Since her hospitalization, she has been placed on heavy doses of psychotropic medication; she reports that, as a result, she can barely string a sentence together and no longer looks people in the eye because she gets nervous. On or about December 16, 2015, Elisa W. was voluntarily hospitalized for one day because of her mental health concerns.
17. In addition to failing to keep Plaintiff Elisa W. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Elisa W. in a permanent home. Twice, Elisa W.’s biological mother conditionally surrendered her parental rights so Elisa W. could be adopted. Neither adoption was ever finalized. In approximately 2010, Elisa W.’s aunt expressed interest in adopting Elisa W. This adoption was not finalized. In 2012, after Elisa W. already had been in foster care for approximately eight years, her biological mother’s parental rights were terminated. Although Elisa W. has requested that her aunt be considered as an adoptive
7

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 11 of 129
resource, upon information and belief, the Contract Agency, ACS and Elisa W.’s law guardian have not taken steps to pursue this possibility or sought out other non-relative adoption possibilities for Elisa W. to finally have a permanent home and family to call her own. Indeed, Elisa W. fears that she will “age out” of foster care—where she has spent the last 13 years being abused, neglected and shuffled from place to place—and return to living with her biological mother. Elisa W. fears that if this happens she will be unable to attend college.
18. Plaintiff Elisa W. describes her stay in foster care by noting that when she was younger she did well in school and had an extensive vocabulary, but now, as a result of her experiences in foster care and medication regimen, she has difficulty concentrating. Elisa W. is at risk of having to repeat the twelfth grade because of class days she misses for appointments made with doctors by the Contract Agency and Family Court appearances. She expresses great frustration that the Contract Agency and ACS are unresponsive to her requests for driving lessons and a state identification card—normal requests for a 17 year old girl. Although Elisa W. has told the supervisor at the Contract Agency that she wants to be like “normal kids” and go on school trips, the Contract Agency has denied her requests to go on such trips. For the 13 years Elisa W. has been in foster care, the Contract Agency, ACS and Plaintiff Elisa W.’s law guardian have been making decisions about her life but, as she puts it—“no one ever asks me what I want”.
19. During the 13 years that Plaintiff Elisa W. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful,
8

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 12 of 129
timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Elisa W. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Elisa W. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Alexandria R. 20. Plaintiff Alexandria R. is a 12 year old girl in the sixth grade. ACS removed her from her biological mother’s home on August 9, 2007. She has been in the custody of ACS for the past eight years—over two thirds of her life. 21. Plaintiff Alexandria R. appears through her next friend, Alison Max Rothschild. Ms. Rothschild is the director of a private school in New York City. Ms. Rothschild knows Alexandria R. and her current foster parents, and is familiar with her background including her education. Ms. Rothschild is truly dedicated to Alexandria R.’s best interests. 22. Upon information and belief, this is Plaintiff Alexandria R.’s second time in foster care. Upon information and belief, ACS removed her from her biological mother a few months after she was born, placed her in a kinship foster placement with her maternal great-grandmother
9

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 13 of 129
for three and a half years and returned her to her biological mother for a few months—only to remove her and again place her in foster care in 2007.
23. Plaintiff Alexandria R. is not the only child that ACS has removed from her biological mother and placed into foster care. Alexandria R. has six siblings: (1) a 15 year old sister, Andrea R.; (2) a 13 year old brother, Kavon L.; (3) an 11 year old brother, Russell W.; (4) a nine year old brother, Anton W.; (5) a seven year old sister, Naomi M.W.; and (6) a two year old sister, Raquel W. All of her siblings are currently in foster care; five live in foster placements and Naomi M.W. has been returned to her biological father on a trial basis.
24. In 2006, ACS opened a preventive services case involving Plaintiff Alexandria R.’s biological mother because then six year old Andrea R. had jumped out of a second floor window after being locked in her bedroom. In August 2007, ACS removed Alexandria R. and her then-living siblings from their home and placed them in ACS custody because their biological mother’s boyfriend was physically abusing Alexandria R.’s brother, Kavon L. Now seven year old Naomi M.W. was born five months later and ACS took custody of her at birth. On or about May 13, 2015, ACS removed Plaintiff Alexandria R.’s youngest sister, Raquel W., from their biological mother due to allegations of neglect.
25. From 2007 to 2011, between the time she was four and eight years old, ACS bounced Plaintiff Alexandria R. from placement to placement due to its failure to ensure an appropriate foster placement that could meet her needs. During her first four years in ACS custody, ACS placed Alexandria R. in approximately eight different foster homes and with two different Contract Agencies. When she was approximately eight years old, Alexandria R. spent approximately six months in the mental health unit of a residential treatment facility. Her thenfoster parents dropped her off, telling her they would return the next morning to pick her up, and
10

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 14 of 129
never returned. As a result, Alexandria R. suffered severe emotional trauma, compounding the emotional harm she was already experiencing from being moved from place to place.
26. ACS moved Plaintiff Alexandria R. to her current foster placement on November 11, 2011, when she was eight years old. She has now lived there for over four years. At 12 years old, this is the longest she has ever lived in one place—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
27. Plaintiff Alexandria R. has a reported history of physical and suspected sexual abuse. Upon information and belief, the physical and suspected sexual abuse has taken place while Alexandria R. has been in ACS custody, and includes physical abuse by her biological mother during an unsupervised visit at her then-foster home.
28. As a result of the great emotional damage Plaintiff Alexandria R. has suffered while in ACS custody for the past eight years, this young girl has suffered and continues to suffer from a variety of mental health problems. Her diagnoses over the past eight years have only grown more serious during her time in foster care and have included adjustment disorder (2007), adjustment disorder with mixed disturbance emotions and conduct (i.e., mood and behavioral problems) (2009), disorder of childhood (2009) and post-traumatic stress disorder (2014 to present). She also suffers from learning disabilities and is behind her peers in school.
29. Since being placed in ACS custody, Plaintiff Alexandria R. has suffered severe emotional and behavioral problems, including physical aggression toward herself and others. She has an extreme distrust of people she views as “in the system”, including her doctors and
11

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 15 of 129
therapists. She also has difficulty controlling her emotions. As recently as late 2014, Alexandria R. became highly emotional and distraught, including hysterically crying and becoming physically aggressive, when her biological mother missed a family therapy appointment.
30. In addition to failing to keep Plaintiff Alexandria R. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Alexandria R. in a permanent home. In approximately 2012, after she already had been in foster care for over four years, Alexandria R.’s permanency goal was changed to adoption and the Contract Agency to which ACS has delegated day-to-day responsibility for this child told this nine year old girl that she would be adopted by her foster parents. However, the adoption did not take place at that time, even though her foster parents were interested in adopting her. This created serious additional damage to Alexandria R.’s emotional state, causing her anger and confusion as to why her foster parents have not been able to adopt her. Alexandria R. reportedly has lived in fear that she will be moved yet again by ACS and has been deeply harmed by the continuing uncertainty about where and how she will grow up.
31. In July 2013, Plaintiff Alexandria R.’s permanency goal was changed from adoption to return to parent. Upon information and belief, this is because ACS attorneys failed to take necessary steps to obtain the termination of her biological mother’s parental rights.
32. On or about October 28, 2015, Plaintiff Alexandria R.’s biological mother voluntarily surrendered her parental rights on the condition that Alexandria R.’s current foster parents adopt her. Upon information and belief, the possibility of voluntarily surrendering her parental rights or pursuing an open adoption was not discussed with Alexandria R.’s biological mother until 2015—after Alexandria R. had already been in foster care for between seven and
12

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 16 of 129
eight years. Although Alexandria R.’s foster parents are pursuing adopting her, they have been unable to timely obtain the documents necessary to proceed with the adoption.
33. During the eight years that Plaintiff Alexandria R. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Alexandria R. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Alexandria R. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Thierry E. 34. Plaintiff Thierry E. is a four year old boy in pre-kindergarten. ACS removed him from his biological mother on September 27, 2013. His permanency goal currently is to be returned to his parent. He has been in ACS custody for more than two years—over half his life.
13

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 17 of 129
35. Plaintiff Thierry E. appears through his next friend, Amy Mulzer. Ms. Mulzer is an Acting Assistant Professor of Lawyering at New York University School of Law. The primary focus of her research includes: Adoption, Child Welfare, Family Law, Parental Rights and Poverty Law. Prior to joining the lawyering faculty at NYU, Ms. Mulzer spent five years representing low-income parents whose children were in foster care or at risk of being placed in foster care, first as a staff attorney at Brooklyn Defender Services and then as an appellate attorney on the assigned counsel panel for the Appellate Division, Second Department. Ms. Mulzer is truly dedicated to Thierry E.’s best interests.
36. On or about August 15, 2013, Plaintiff Thierry E.’s biological mother, who has been a public school teacher for over a decade, called Safe Horizon, a domestic violence hotline, to request information about how she could remove Thierry E.’s biological father from her home. Safe Horizon reported the call to the Statewide Central Register of Child Abuse and Maltreatment and ACS opened an investigation. There was not and never has been any allegation that anyone abused Thierry E. or that his biological mother failed to provide him with appropriate, loving care. On September 23, 2013, Thierry E.’s biological mother obtained an order of protection from the Family Court against Thierry E.’s biological father. In her petition, she alleged that Thierry E.’s biological father had held a knife to her throat threatening to kill her, strangled her at least three times, punched her in the face and threw household furniture at her. Thierry E.’s biological mother has not been in a relationship with Thierry E.’s biological father since September 2013 and does not intend to re-enter a relationship with him. Thierry E.’s biological father has since been diagnosed with a psychotic disorder.
37. ACS removed Plaintiff Thierry E. from his home on September 27, 2013, while his biological mother was at work, without taking necessary steps or making reasonable efforts
14

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 18 of 129
to determine whether Thierry E. could remain safely at home with her. His biological father was no longer living in the house.
38. The Contract Agency to which ACS had delegated the day-to-day care of, and case planning responsibility for, Plaintiff Thierry E. first moved him to a foster placement far away from his biological mother’s home and required visits to take place at the Contract Agency’s office in the Bronx, even though he and his biological mother had lived in Manhattan. Moreover, the foster mother spoke only Spanish and Thierry E., then two years old, did not speak any Spanish. As a result, Thierry E.’s language and speech development was severely stunted. Thierry E.’s biological mother had him evaluated in March 2014 and the speech therapist recommended speech therapy twice a week, but the Contract Agency refused to provide this service. When Thierry E. entered a pre-kindergarten program, he started speech therapy once a week.
39. On May 13, 2014, during a visit at the Contract Agency, Plaintiff Thierry E.’s biological mother noticed a severe rash while changing his diaper and reported this and other concerns to the Family Court. On June 21, 2014, the Family Court ordered that Thierry E. be transferred to a new Contract Agency. Thierry E. was moved to a second foster placement two days later. This foster placement is in the Bronx, even though Thierry E. and his biological mother had lived in Manhattan. In approximately December 2015, Thierry E. reported to his biological mother that his foster parent hit him. Upon information and belief, an investigation of this report is underway.
40. Plaintiff Thierry E. has now been in foster care for more than two years—over half his life. This is a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this
15

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 19 of 129
young boy to be returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he would grow up in a permanent family.
41. Plaintiff Thierry E. has suffered emotional harm as a result of spending nearly half his life in ACS custody without a permanent family. All indications are that he misses his biological mother very much. At the end of his once weekly visits with her, he cries uncontrollably. When she expressed concern at this behavior, Thierry E.’s therapist told her that he had to “get used to it” because this was “his life now”. Upon information and belief, Thierry E. is experiencing more anxiety the longer he is without a permanent family.
42. ACS continues to fail to ensure that Plaintiff Thierry E. is receiving appropriate services. Although Thierry E. currently receives therapy, Thierry E.’s biological mother has expressed concerns that the therapy being provided by the Contract Agency is focused on normalizing Thierry E.’s separation from her rather than trying to help him prepare to be returned to her care—even though his permanency goal remains to be returned to his parent.
43. In addition to failing to keep Plaintiff Thierry E. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Thierry E. in a permanent home.
44. Although ACS removed Plaintiff Thierry E. from his home over two years ago, there has been no disposition of ACS’s neglect petition against Thierry E.’s biological mother. The fact-finding hearing began only in August 2015 after having been postponed several times. The fact-finding hearing then proceeded on non-consecutive dates in September, October and November 2015. The next fact-finding hearing date is in February 2016.
45. Plaintiff Thierry E. had his first permanency hearing in December 2014—after he had already been in ACS custody for over a year.
16

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 20 of 129
46. Plaintiff Thierry E.’s permanency goal remains to be returned to his parent. His biological mother wants nothing more than to finally bring her son home. She has completed parenting classes, domestic violence counseling and multiple mental health evaluations in accordance with the two different Contract Agencies’ instructions. In documents filed with the Family Court, the Contract Agency has stated that Thierry E.’s biological mother “comes prepared to her visits with activities to do with her son and also tries to reinforce parenting skills that will help her son’s vocabulary and pronunciation.”
47. Since his removal over two years ago, ACS has made no effort to ensure that this little boy is returned to the mother he misses, and that his permanency goal—reunification with his biological mother—is implemented as soon as possible.
48. During the over two years that Plaintiff Thierry E. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Thierry E. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and
17

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 21 of 129
inactions, Plaintiff Thierry E. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Lucas T., Ximena T., Jose T.C. and Valentina T.C. 49. Plaintiff Lucas T. is a seven year old boy in the second grade. Plaintiff Ximena T. is a four year old girl in kindergarten. Plaintiff Jose T.C. is a three year old boy. Plaintiff Valentina T.C. is a one year old girl. ACS removed these children from their biological mother on February 4, 2015. Their permanency goal is to be returned to their parent. They have been in ACS custody for the past ten months. 50. Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. appear through their next friend, Rachel Friedman. Ms. Friedman is a tenth grade English teacher in Manhattan and has been a teacher since 2008. During her time as a teacher in New York City, Ms. Friedman has worked primarily with low-income students and has taught students that are or were previously in the custody of ACS. Ms. Friedman is truly dedicated to Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s best interests. 51. In November 2014, Lucas T., Ximena T., Jose T.C. and Valentina T.C. and their biological mother began living in a rented room in an apartment in Queens in which they did not have full use of the kitchen. Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother cared for the children full time while Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological father worked and lived elsewhere. Upon information and belief, because she did not have full use of a kitchen, Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother purchased cereal, fruit and prepared food for the children to eat.
18

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 22 of 129
52. ACS removed Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. from their biological parents on February 4, 2015, reportedly due to their biological parents’ inability to adequately supervise and provide guardianship to the children because the children were left home unattended, they had poor hygiene and there was an insufficient amount of food and formula at their home, without taking necessary steps or making reasonable efforts to determine whether Lucas T., Ximena T., Jose T.C. and Valentina T.C. could remain safely at home with their biological mother. The children spent the night of February 4, 2015, at the Children’s Center.
53. The Contract Agency to which ACS had delegated the day-to-day care of, and case planning responsibility for, Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. first moved them to a foster placement in which the foster parents did not speak Spanish even though Lucas T., Ximena T., Jose T.C. and Valentina T.C. speak Spanish almost exclusively. Lucas T., the only one of his siblings in school at that time, was moved to a new school.
54. Upon information and belief, in May 2015, during a visit at the Contract Agency, Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother noticed bruising and lacerations on the children and reported this and other concerns to the Contract Agency. On May 29, 2015, Lucas T., Ximena T., Jose T.C. and Valentina T.C. were removed from their foster placement and placed in two separate foster placements—Lucas T. and Jose T.C. are in one foster placement and Ximena T. and Valentina T.C. are in a second foster placement. Upon information and belief, Lucas T., Ximena T., Jose T.C. and Valentina T.C. see each other only during visits with their biological mother at the Contract Agency.
55. Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. have now been in foster care for over ten months. This is a direct result of ACS’s failure to develop and implement
19

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 23 of 129
an appropriate case plan and provide appropriate services consistent with professional standards to enable these young children to be returned to their biological mother or, if that were not possible within a reasonable period of time, to ensure that they would grow up in a permanent family.
56. Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. have suffered emotional harm as a result of spending the past ten months in ACS custody without a permanent family. All indications are that they miss their biological mother very much. They are very excited when they have their visits with their biological mother and ask when they can go home with her.
57. In addition to failing to keep Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Lucas T., Ximena T., Jose T.C. and Valentina T.C. in a permanent home.
58. Although ACS removed Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. from their home over ten months ago, there has been no fact-finding hearing or disposition of ACS’s neglect petition against their biological parents.
59. Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s permanency goal remains to be returned to their parent. Their biological mother wants nothing more than to bring her children home. In February 2015, Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s mother was told by ACS that she needed domestic relationship/family violence services, mental health/emotional stability services, parenting skills services and decision making/problem solving skills services. There are no allegations of domestic violence in the neglect petition against her. According to the service agency providing her services, she “is participating in the
20

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 24 of 129
entire service plan she has been assigned to”. She completed a mental health evaluation in June 2015, and has completed parenting classes and domestic violence counseling. Upon information and belief, Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother was recently informed that she has to undergo another psychological evaluation, which she has completed.
60. Upon information and belief, soon after Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. were placed in ACS custody, the Contract Agency informed their biological mother that it could not expedite reunification because she did not have suitable housing. Upon information and belief, at that time, the Contract Agency provided her with no assistance to find suitable housing. Using her own limited resources, Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother secured a two bedroom apartment during the summer of 2015. Upon information and belief, she has had to move out of this housing because the home was the subject of foreclosure proceedings and was sold. Lucas T., Ximena T., Jose T.C. and Valentina T.C.’s biological mother now lives in a rented room in Queens. Upon information and belief, the Contract Agency has taken no steps to assist her in finding housing so her children can come home.
61. Since their removal over ten months ago, ACS has made no effort to ensure that these young children are returned to the mother they miss, and that their permanency goal— reunification with their biological parent—is implemented as soon as possible.
62. During the nearly one year that Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. have been in the custody of ACS, Defendants repeatedly have violated their constitutional, statutory and contractual rights by failing to protect them from psychological and emotional harm; by failing to provide services to ensure their physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements
21

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 25 of 129
consistent with professional standards or of a meaningful, timely and appropriate plan to enable them to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to place them in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, these children. As a direct result of Defendants’ actions and inactions, Lucas T., Ximena T., Jose T.C. and Valentina T.C. have suffered and continue to suffer irreparable harm and continue to be subjected to the lasting emotional damage that is a consequence of children being harmed while in foster care, of not knowing where they will grow up and of believing that there is no family they can call their own. Because of Defendants’ actions and inactions, Plaintiffs Lucas T., Ximena T., Jose T.C. and Valentina T.C. are being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Ayanna J. 63. Plaintiff Ayanna J. is a three year old girl in pre-kindergarten. ACS removed her from her biological mother on November 2, 2012—three days after she was born. Her permanency goal currently is adoption. She has been in ACS custody for over three years— virtually her entire life. 64. Plaintiff Ayanna J. appears through her next friend, Meyghan McCrea. Meyghan McCrea is an attorney in private practice in New York City. She was previously employed as a Family Court Legal Services Attorney for ACS. Ms. McCrea has known Ayanna J. since March 2013 and has had regular contact with her since that time. Ms. McCrea has met Ayanna J.’s current foster parent and babysitter. Ms. McCrea is truly dedicated to Ayanna J.’s best interests.
22

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 26 of 129
65. Plaintiff Ayanna J. has two siblings: (1) a nine year old sister, Alyssa L., and (2) a sister, Angela L., who was beaten to death by her biological mother’s boyfriend in March 2010, when she was 19 months old. Documents filed with the Family Court allege that, given Angela L.’s extensive injuries, Ayanna J.’s biological mother knew or should have known about the ongoing abuse that her daughter suffered. These documents also allege that Ayanna J.’s biological mother delayed seeking medical care for Angela L., lied to hospital staff about the source of the child’s injuries and instructed her other daughter, Alyssa L., who was then three and a half years old, to lie about what had occurred.
66. The day after Angela L. died, ACS filed a petition against Plaintiff Ayanna J.’s biological mother alleging severe and repeated abuse. In October 2012, the Family Court made a finding of abuse against Ayanna J.’s biological mother. On appeal in June 2014, the New York State Appellate Division found that Ayanna J.’s biological mother “severely abused [Angela L.] and derivatively severely abused the subject child [Alyssa L.]”.
67. Plaintiff Ayanna J. was born after her sister Angela L. died. Due to the prior finding of abuse against her biological mother, ACS placed Ayanna J. in ACS custody and in her current foster placement on November 2, 2012—three days after she was born. In March 2013, the Family Court made a finding of derivative abuse as to Ayanna J. and on September 30, 2014, the Family Court amended its finding to severe abuse as to Ayanna J. based on the Appellate Division’s June 2014 finding.
68. Since being placed in foster care over three years ago, Plaintiff Ayanna J. has had approximately thirteen caseworkers at the Contract Agency to which ACS has delegated her dayto-day care. Upon information and belief, five of these caseworkers have been assigned to Ayanna J. in the last six months.
23

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 27 of 129
69. While in the custody of ACS, Plaintiff Ayanna J. has had supervised visits with her biological mother and father at the Contract Agency. During one such visit in September 2013, Ayanna J.’s biological father became angry and began screaming at Ayanna J.’s biological mother in front of Ayanna J. Upon information and belief, at least one Contract Agency visit was discontinued because Ayanna J.’s biological parents were fighting. Ayanna J.’s biological father has not visited her since April 2014. Upon information and belief, visits at Ayanna J.’s biological mother’s home were suspended after she threatened to physically assault a caseworker. Ayanna J. continues to have supervised visits with her biological mother twice per week at the Contract Agency. During one such visit in July 2014, Ayanna J.’s biological mother allowed her biological father to speak with Ayanna J. over the phone despite such contact being prohibited.
70. Plaintiff Ayanna J. has languished in the custody of ACS for the past three years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
71. As a result of her continued placement in ACS custody, Plaintiff Ayanna J. has suffered great emotional harm. In 2013, Ayanna J. cried hysterically during supervised visits with her biological mother at the Contract Agency. Now that she is older, Ayanna J. expresses the desire to not attend visits with her biological mother, will not leave her babysitter to visit with her biological mother, or will ask for her babysitter in the middle of a visit with her biological mother. These visits have caused and continue to cause great stress, confusion and psychological harm to this young child.
24

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 28 of 129
72. In addition to failing to keep Plaintiff Ayanna J. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Ayanna J. in a permanent home.
73. On April 9, 2014, Plaintiff Ayanna J.’s permanency goal was changed from return to parent to adoption. Her current foster parent has indicated a willingness to adopt her.
74. A petition for termination of parental rights (“TPR”) was filed on April 28, 2014, after Plaintiff Ayanna J. already had been in foster care for almost one and a half years. The TPR proceedings were adjourned repeatedly due to ACS’s failure to ensure that all parties were prepared for court on scheduled hearing dates to resolve the permanency issues in this case. On April 27, 2015, almost a year after the TPR petition was filed, the assigned Family Court judge heard one day of testimony related to the TPR proceeding and continued the case until mid-June 2015. The next day, that Family Court judge was reassigned to another court. On June 22, 2015, Plaintiff Ayanna J.’s TPR proceeding was re-assigned to a new Family Court judge, who declared a mistrial and postponed a new trial. To date, no further testimony on this petition has been heard.
75. After languishing in foster care for three years, Plaintiff Ayanna J.’s permanency goal remains to be adopted.
76. During the over three years that Plaintiff Ayanna J. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that
25

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 29 of 129
were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Ayanna J. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Ayanna J. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Olivia R. and Ana-Maria R. 77. Plaintiff Olivia R. is a six year old girl in the first grade, and Plaintiff Ana-Maria R. is a five year old girl in kindergarten. ACS removed them from their biological mother’s home on June 8, 2011. The permanency goal for both children currently is adoption. They have been in ACS custody for more than four years. 78. Plaintiffs Olivia and Ana-Maria R. appear through their next friend, Dawn Cardi. Ms. Cardi is an attorney in private practice in New York City, specializing in criminal and family law. She is appointed and has served as a certified Law Guardian in the First Department of the Appellate Division, representing children in complex family law proceedings. She is truly dedicated to Olivia and Ana-Maria R.’s best interests. 79. Upon information and belief, this is Plaintiffs Olivia and Ana-Maria R.’s second time in ACS custody. Upon information and belief, ACS removed Olivia and Ana-Maria R. from their biological parents in January 2011, they spent a few months in a foster placement and
26

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 30 of 129
then ACS returned them home. On June 8, 2011, when Olivia R. was two years old and AnaMaria R. was eight months old, ACS again removed the girls from their home and placed them into ACS custody, reportedly due to domestic violence between their biological parents and their biological mother’s alcohol and drug use.
80. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, Plaintiffs Olivia and Ana-Maria R. initially placed them in a nonkinship foster placement—the third place they had been moved to in six months.
81. In March 2012, the Contract Agency returned Plaintiffs Olivia and Ana-Maria R. to their biological mother on a trial basis. In June 2012, their biological mother dropped them off at the foster placement where they had been living and did not return to pick them up. She did not visit the children again until July 24, 2012.
82. ACS has allowed Plaintiffs Olivia and Ana-Maria R. to be bounced in and out of foster care for almost the entirety of their young lives, and they now have been in ACS custody for the past four years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable these young girls to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to ensure that they can grow up in a permanent family.
83. Plaintiffs Olivia and Ana-Maria R. have suffered physical and emotional abuse while in ACS custody. In October 2013, Olivia R., who was four years old at the time, was sexually abused by her biological mother’s friend during an unsupervised visit. Ana-Maria R. was present during that abuse. Although the Contract Agency was made aware of this abuse at that time, upon information and belief, neither the Contract Agency nor ACS took any action in response to the report. More recently, Olivia R. reported the incident to her therapist, who (as a
27

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 31 of 129
mandated reporter) informed the Statewide Central Register of Child Abuse and Maltreatment and the police, and an investigation is underway. Olivia and Ana-Maria R.’s biological mother has not visited with the children since November 26, 2014.
84. As a result of the emotional harm they have suffered while in ACS custody for the past four years, Plaintiffs Olivia and Ana-Maria R. have suffered and continue to suffer from a variety of mental health problems. Olivia R.’s diagnoses include Attention Deficit Hyperactivity Disorder, Developmental Coordination Disorder and Disruptive Behavior Disorder. She is in a special education setting at school. Ana-Maria R.’s diagnoses include Attention Deficit Hyperactivity Disorder, Anger Management, and Conduct Disorder. She is in a special education setting at school.
85. Since being placed in ACS custody, Plaintiffs Olivia and Ana-Maria R. have suffered severe emotional and behavioral problems. Olivia R. has developed serious trust issues and she would wet the bed before any visit with her biological mother. Ana-Maria R. demonstrates severe hyperactivity and aggression. In her pre-kindergarten program, she often would hit her teacher, tear things off the wall or break other items. In January 2015, her prekindergarten program would not allow her to attend classes until she was medicated for these behavioral problems. Although her doctor has recommended that she be given medication, upon information and belief, she has been unable to start taking medication because the Contract Agency has not approved it.
86. ACS has failed to ensure that Plaintiffs Olivia and Ana-Maria R. are provided with the necessary and appropriate services to ensure their physical, psychological and emotional well-being. One of their caseworkers recommended that the girls enroll in Bridges to Health Program (“B2H”)—a Medicaid waiver program that provides support for children in foster care
28

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 32 of 129
who are medically fragile, have a developmental disability or are severely emotionally disturbed. Upon information and belief, when their foster mother initially requested these services, the Contract Agency declined to submit the request because an agency caseworker said “that’s a lot of paperwork”. Upon information and belief, Olivia and Ana-Maria R. still do not have all of the B2H services for which they have been approved, including speech therapy and education assistance.
87. In addition to failing to keep Plaintiffs Olivia and Ana-Maria R. free from physical, psychological and emotional harm while in its custody, ACS also has failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Olivia and Ana-Maria R. in a permanent home.
88. Plaintiffs Olivia and Ana-Maria R.’s permanency goal was not changed from return to parent to adoption until March 1, 2014—after they had been in ACS custody for almost three years. TPR petitions were filed approximately eight months later in November 2014. Upon information and belief, on May 28, 2015, the Family Court judge handling Olivia and AnaMaria R.’s case made an oral statement that parental rights would be terminated; however, because none of the attorneys present had drafted a proposed order, that ruling was not finalized and Olivia and Ana-Maria R. were not freed for adoption at that time. Upon information and belief, since then, Olivia and Ana-Maria R. have been freed for adoption. Olivia and Ana-Maria R.’s current foster mother has indicated a willingness to adopt them and has submitted paperwork to proceed with the adoption. Upon information and belief, the Contract Agency has not provided clear instructions regarding what paperwork, classes and other information are necessary to complete the adoption, and has directed Olivia and Ana-Maria R.’s foster mother to submit to steps that are not requirements or steps that have already been completed. On
29

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 33 of 129
November 27, 2015, the Family Court judge informed the Contract Agency that it must provide clear, written instructions regarding the adoption process to Olivia and Ana-Maria R.’s foster mother. Upon information and belief, the Contract Agency has not yet done so.
89. During the more than four years that Plaintiffs Olivia and Ana-Maria R. have been in the custody of ACS, Defendants repeatedly have violated their constitutional, statutory and contractual rights by failing to protect them from physical, psychological and emotional harm; by failing to provide services to ensure their physical, psychological and emotional wellbeing; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable them to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to place them in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, these children. As a direct result of Defendants’ actions and inactions, Plaintiffs Olivia and Ana-Maria R. have suffered and continue to suffer irreparable harm and continue to be subjected to the lasting emotional damage that is a consequence of children being harmed while in foster care, of not knowing where they will grow up and of believing that there is no family they can call their own. Because of Defendants’ actions and inactions, Plaintiffs Olivia and Ana-Maria R. are being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
30

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 34 of 129
Xavion M. 90. Plaintiff Xavion M. is a six year old boy in the first grade. ACS removed him from his biological mother due to an allegation of neglect 15 days after he was born. He has been in ACS custody for over six years—nearly his entire life. 91. Plaintiff Xavion M. appears through his next friend, Michael B. Mushlin. Mr. Mushlin is a Law Professor at Pace University School of Law in New York City, where he has taught for the last 30 years. His scholarship has included maltreatment of children in foster care. Previously, he worked as a public interest and civil rights lawyer for 15 years as a staff attorney with Harlem Assertion of Rights, Inc., as a staff attorney and Project Director of the Prisoners Rights Project of the Legal Aid Society, and as Associate Director of the Children’s Rights Project of the American Civil Liberties Union. He is truly dedicated to Xavion M.’s best interests. 92. Plaintiff Xavion M. is not the only child that ACS has removed from his biological mother and placed into foster care. Xavion M. has two siblings: (1) a 13 year old brother, Vincent D., and (2) an 11 year old sister, Zahara D. Xavion M.’s siblings have been in ACS custody for the past six years. Upon information and belief, at least one Family Court judge has referred to these two children as “unadoptable” and their permanency goals remain that they be returned to their parent. 93. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young boy first placed Plaintiff Xavion M. with a fictive kin foster parent, who was a friend of his biological mother. On December 21, 2011, when Xavion M. was just two years old, he was moved to a second, non-kinship, foster placement. When he arrived, he was anemic and malnourished. He resided in this foster placement for well over three
31

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 35 of 129
years. On August 26, 2015, the Contract Agency removed Xavion M. from this foster placement and returned him to his biological mother on a trial basis. That Xavion M. has bounced in and out of foster placements is a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
94. Since being placed in foster care over six years ago, Plaintiff Xavion M. has had approximately four caseworkers at the Contract Agency to which ACS has delegated his care and case planning.
95. Plaintiff Xavion M., who has been in ACS custody for over six years, had weekly supervised visits with his biological mother and older siblings prior to July 2015. Upon information and belief, Xavion M.’s brother hit and kicked him during one such visit. In July 2015, Xavion M. started attending weekend, overnight visits with his biological mother. Upon information and belief, during one such visit, Xavion M.’s biological mother took him to a home in which his biological father resides, whom Xavion M. is not permitted to see because of an order of protection.
96. The Contract Agency to which ACS has delegated the day-to-day care of, and case planning responsibility for, this boy has not provided Plaintiff Xavion M. with necessary services for his physical and emotional well-being. Although his teacher recommended that an Individualized Education Program (“IEP”) be written for him, Xavion M. did not receive the evaluation necessary for many months because his biological mother refused to give consent.
97. As a result of the over six years that Plaintiff Xavion M. has spent in ACS custody, Xavion M. has suffered severe emotional damage. He has exhibited behavioral
32

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 36 of 129
problems, including becoming aggressive and violent at home and at school; he also is having difficulty concentrating at school. At five years old, he would only sleep in the same bed as his foster mother and would not sleep through the night. Although Xavion M. was attending regular therapy sessions, upon information and belief, he has not attended these sessions since August 2015.
98. In addition to failing to keep Plaintiff Xavion M. free from physical, psychological and emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Xavion M. in a permanent home.
99. On July 21, 2014—after Plaintiff Xavion M. had been in foster care for almost five years—Xavion M.’s permanency goal was changed from return to parent to adoption. This goal change occurred only after the Family Court judge handling Xavion M. and his siblings’ case instructed Xavion M.’s caseworkers at the Contract Agency to file a petition to terminate the parental rights of Xavion M.’s biological mother and begin adoption proceedings. Xavion M.’s foster mother at that time indicated a willingness to adopt him.
100. No TPR petition was filed and the Contract Agency continued to pursue plans to return Xavion M. to his biological mother after first returning Xavion M.’s older siblings to his mother on a trial basis. Indeed, papers filed in Family Court in March 2015 state that the “Agency is working with [biological mother] for reunification”. At a family team conference on June 24, 2015, the Contract Agency said it intended to pursue granting Xavion M.’s biological mother unsupervised visits despite the fact that Xavion M.’s therapist had stated that Xavion M. was not ready for this and that Xavion M.’s permanency goal was adoption.
33

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 37 of 129
101. Upon information and belief, on July 29, 2015, the Contract Agency informed the Family Court judge that it wanted to return Xavion M. to his biological mother on a trial basis immediately. Upon information and belief, the Family Court judge informed the Contract Agency that it could do so only after Xavion M. had one month of weekend, overnight visits with his biological mother and upon 28 days’ notice.
102. On August 26, 2015, Xavion M. was returned to his biological mother on a trial basis. The long-standing inconsistency in planning for this child’s future is increasing the insecurity and emotional damage this child is experiencing in foster care.
103. During the over six years that Plaintiff Xavion M. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Xavion M. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Xavion M. is being deprived of the
34

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 38 of 129
opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Dameon C. 104. Plaintiff Dameon C. is a four year old boy with special needs. ACS removed him from his biological mother, who was then incarcerated, nine days after he was born. His permanency goal currently is adoption. He has been in ACS custody for over four years—nearly his entire life. 105. Plaintiff Dameon C. appears through his next friend, Reverend Doctor Gwendolyn Hadley-Hall. Reverend Doctor Hadley-Hall is an associate pastor at Christ Temple United Baptist Church in Brooklyn. Prior to entering the ministry, Reverend Doctor Hadley-Hall was a teacher at public elementary schools in New York City for 30 years. She is truly dedicated to Dameon C.’s best interests. 106. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this boy first placed Plaintiff Dameon C. in a non-kinship foster placement. 107. On Christmas Eve 2011, when Plaintiff Dameon C. was nine months old, he was returned to his mother on a trial basis when she was released from jail. They were placed in a mother-child drug and alcohol rehabilitation center. His former foster parent would often take Dameon C. for two to three weeks at a time with his biological mother’s consent because Dameon C.’s behavior deteriorated drastically when he was moved to his biological mother’s care. He began banging his head, which he continues to do now at age four. In July 2012, his biological mother was expelled from the rehabilitation center and Dameon C. was returned to his former foster placement, where he remains to this day. He has been in foster care virtually his
35

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 39 of 129
entire life—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
108. While in ACS custody, Plaintiff Dameon C. has had regular visits with his biological mother. In February 2014, when Dameon C. was almost three years old, his biological mother kicked him during the first unsupervised overnight visit at her drug treatment facility. Although she is still permitted to have supervised visits with him, she did not have contact with Dameon C. between December 2014 and April 23, 2015, at which time she began attending supervised visits with Dameon C. again. However, during the summer of 2015, Dameon C.’s biological mother disappeared from her drug treatment program and has not consistently attended visits with him or contacted him since.
109. In addition to failing to keep Plaintiff Dameon C. safe from physical abuse and emotional damage, ACS has also failed to ensure that he is provided with necessary services to ensure his physical, psychological and emotional well-being. Although he has been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder, and has been approved to receive services through B2H, he is on a waiting list for those services.
110. ACS also has failed to take reasonable and appropriate steps to place Plaintiff Dameon C. in a permanent home. Dameon C.’s permanency goal was not changed to adoption until November 3, 2014—after he had already been in ACS custody for over three and a half years. A TPR petition was filed thereafter. Plaintiff Dameon C.’s next court date had been scheduled for June 2, 2015, but was postponed until November 2015, at which time it was postponed until February 2016.
36

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 40 of 129
111. During the over four years that Plaintiff Dameon C. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Dameon C. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Dameon C. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Tyrone M. 112. Plaintiff Tyrone M. is a seven year old boy with special needs. ACS removed him from his biological mother 12 days after he was born. His permanency goal currently is adoption. He has been in ACS custody for over seven years—nearly his entire life. 113. Plaintiff Tyrone M. appears through his next friend, Bishop Lillian RobinsonWiltshire. Bishop Robinson-Wiltshire is the Senior Pastor and Overseer of Cathedral of Christ Community Ministries in Brooklyn. Prior to entering the ministry 30 years ago, Bishop
37

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 41 of 129
Robinson-Wiltshire was a family counselor and worked with families dealing with abuse and neglect. Bishop Robinson-Wiltshire has also served as a foster parent to older children. She is truly dedicated to Tyrone M.’s best interests.
114. Twelve days after he was born, ACS removed Plaintiff Tyrone M. from his biological mother when she tested positive for cocaine after giving birth to him.
115. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young boy first placed Plaintiff Tyrone M. in a kinship foster placement with his aunt. On June 23, 2014, ACS removed him from his aunt’s home after she failed a random drug screening. The Contract Agency then placed him in a non-kinship foster placement where he currently resides. Tyrone M. has now spent nearly his entire life in ACS custody—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young boy to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to ensure that he can grow up in a permanent family.
116. ACS also has also failed to keep Plaintiff Tyrone M. free from physical, psychological, and emotional harm while in its custody. When he arrived at his current foster placement, his health and behavior indicated severe neglect. He suffered from severe dental problems. He went to sleep in his clothing every night because in his previous foster placement he had not been provided with such basic care as being taught to undress or change into pajamas before bed.
117. As a result of the emotional harm he has suffered while in ACS custody for the past seven years, Plaintiff Tyrone M. suffered and continues to suffer from a variety of mental health problems. His diagnoses include Pervasive Developmental Disorder, Developmental
38

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 42 of 129
Coordination Disorder, Communication Disorder and Attention Deficit Hyperactivity Disorder. Tyrone M. also exhibits severe behavioral problems and often becomes violent at school and throws chairs or pencils. As a result, his school has barred him from eating in the lunchroom with other students and from attending school-sponsored field trips.
118. ACS has also failed to ensure that Plaintiff Tyrone M. is provided with the necessary services to ensure his physical and emotional well-being. Although he has been approved to receive services through B2H, he is on a waiting list for those services.
119. In addition to failing to keep Plaintiff Tyrone M. physically free from harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Tyrone M. in a permanent home.
120. After Plaintiff Tyrone M. had been in foster care for over seven years, his biological mother voluntarily surrendered her parental rights. Although he is now free to be adopted, it is not clear that he will be adopted by his current foster parent and, upon information and belief, the Contract Agency, ACS and Tyrone M.’s law guardian have not sought out other adoption possibilities for Tyrone M. to have a permanent home and family to call his own.
121. During the over seven years that Plaintiff Tyrone M. has been in the custody of ACS, Defendants repeatedly have violated his constitutional, statutory and contractual rights by failing to protect him from physical, psychological and emotional harm; by failing to provide services to ensure his physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable him to be safely returned to his biological mother or, if that were not possible within a reasonable period of time, to place him in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the
39

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 43 of 129
Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Tyrone M. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where he will grow up and of believing that there is no family he can call his own. Because of Defendants’ actions and inactions, Plaintiff Tyrone M. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Brittney W. 122. Plaintiff Brittney W. is a seven year old girl with special needs. ACS removed her from her biological mother and placed her into ACS custody on May 10, 2011. Her permanency goal currently is to be returned to her parent. She has been in ACS custody for over four years—most of her life. 123. Plaintiff Brittney W. appears through her next friend, Liza Camellerie. Ms. Camellerie is an attorney in private practice in New York City. She currently serves on the assigned panel for Family Court in Manhattan, representing children and parents in Article 10 cases, among others. She also spent six years as a Family Court Legal Services (“FCLS”) Attorney for ACS, four of which were spent as a supervisor to 25 to 30 other FCLS attorneys. Ms. Camellerie is truly dedicated to Brittney W.’s best interests. 124. Shortly after Plaintiff Brittney W. was born, a report was called in to the Statewide Central Register of Child Abuse and Maltreatment alleging that her biological mother’s own mental incapacity and developmental delays prevented her from caring for her
40

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 44 of 129
infant daughter. Brittney W. was placed into voluntary kinship care with her biological mother’s niece by agreement with ACS.
125. On May 10, 2011, when Plaintiff Brittney W. was two years old, ACS remanded her into its custody because her biological mother’s niece could no longer care for Brittney W.
126. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, this young girl then placed Plaintiff Brittney W. in a non-kinship foster placement. She has been residing in this foster placement for over four years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to ensure that she can grow up in a permanent family.
127. After over four years in foster care, Plaintiff Brittney W.’s permanency goal is to be returned to her parent. Upon information and belief, Brittney W.’s lawyer does not think that her biological mother’s mental incapacities allow her to provide appropriate care for Brittney W. Upon information and belief, the Contract Agency to which ACS has delegated the care and case planning responsibility for this child has taken the position that Brittney W.’s biological mother can provide care if she has 24-hour medical support.
128. In September 2015, Brittney W.’s biological mother was assigned a part-time home health attendant, and, soon after, Brittney W. started once a week, four-day, overnight visits with her mother. Upon information and belief, Brittney W.’s biological mother was unable to ensure that Brittney W. got to and from school on time and, in October 2015, allowed a stranger to transport Brittney W. to her foster placement. Upon information and belief, during a recent visit, Brittney W.’s biological mother struck Brittney W. across the face. Upon
41

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 45 of 129
information and belief, the Contract Agency has terminated overnight visits because of this, however it intends to proceed with returning Brittney W. to her biological mother on a trial basis. Brittney W.’s current foster mother has indicated a willingness to adopt her. No TPR petition has been filed.
129. During the over four years that Plaintiff Brittney W. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from physical, psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Brittney W. has suffered and continues to suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Brittney W. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
42

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 46 of 129
Mikayla G. 130. Plaintiff Mikayla G. is a two year old girl. ACS removed her from her biological mother on November 21, 2013. Her permanency goal currently is adoption. She has been in ACS custody for the past two years—nearly her entire life. 131. Plaintiff Mikayla G. appears through her next friend, Amy Mulzer. As discussed supra, Ms. Mulzer is an Acting Assistant Professor of Lawyering at New York University School of Law. The primary focus of her research includes: Adoption, Child Welfare, Family Law, Parental Rights and Poverty Law. Prior to joining the lawyering faculty at NYU, Ms. Mulzer spent five years representing low-income parents whose children were in foster care or at risk of being placed in foster care, first as a staff attorney at Brooklyn Defender Services and then as an appellate attorney on the assigned counsel panel for the Appellate Division, Second Department. Ms. Mulzer is truly dedicated to Mikayla G.’s best interests. 132. Upon information and belief, on November 20, 2013, Plaintiff Mikayla G.’s biological mother, then an 18 year old who had formerly been in the custody of ACS and who was struggling to financially support herself and her four month old child, arranged for childcare so that she could go to the Human Resources Administration to arrange for childcare, housing and other benefits. Upon information and belief, thereafter, she went to several grocery stores to use her Women, Infants, and Children benefits (“WIC”) to purchase formula Mikayla G. needed for colic. Upon information and belief, upon her return to pick up her child, Mikayla G.’s biological mother was told that Mikayla G. had been taken to a family member’s home. Upon information and belief, Mikayla G.’s biological mother was told that an ACS caseworker would not allow her in her family member’s home. The next day, Mikayla G.’s biological mother was told that Mikayla G. was being removed from her custody.
43

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 47 of 129
133. ACS removed Plaintiff Mikayla G. without taking necessary steps or making reasonable efforts to determine whether Mikayla G. could remain safely at home with her biological mother. Although Mikayla G.’s biological mother had contact with ACS between July and November 2013, no preventive services case was ever opened and a report made to the Statewide Central Register of Child Abuse and Maltreatment came back “unfounded”. Upon information and belief, ACS removed Mikayla G. without offering Mikayla G.’s biological mother the services that would have allowed Mikayla G. to remain safely at home with her.
134. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, Plaintiff Mikayla G. initially placed her in a non-kinship foster placement. The foster mother did not provide Mikayla G. with the appropriate formula. Upon information and belief, in approximately December 2013, the Contract Agency moved Mikayla G. to a new foster placement because the foster mother in her first foster placement was not appropriately feeding Mikayla G. Upon information and belief, Mikayla G. is one of many children living in this second foster placement.
135. Plaintiff Mikayla G. has now been in foster care for two years—nearly her entire life. This is a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable this young girl to be returned to her biological mother or, if that were not possible within a reasonable period of time, to ensure that she would grow up in a permanent family.
136. Plaintiff Mikayla G. has had three caseworkers and two supervisors during her time in ACS custody.
137. Plaintiff Mikayla G. has suffered emotional harm as a result of spending nearly her entire life in ACS custody without a permanent family. All indications are that she misses
44

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 48 of 129
her biological mother very much. Mikayla G. visits once a week with her biological mother and asks at the end of every visit if she can go home with her. Upon information and belief, Mikayla G.’s biological mother has expressed concern that Mikayla G. is confused about her placement in foster care and has asked the Contract Agency to provide services to address this. Upon information and belief, the Contract Agency has not provided any services to address this issue.
138. In addition to failing to keep Plaintiff Mikayla G. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with professional standards to place Mikayla G. in a permanent home.
139. On or about March 2, 2015, Plaintiff Mikayla G.’s permanency goal was changed from return to parent to adoption. On April 28, 2015, a TPR petition was filed. Upon information and belief, in June 2015, the Family Court judge handling Mikayla G.’s case ordered that Mikayla G.’s permanency goal be changed back to return to parent. The Contract Agency is proceeding with adjudication of the TPR petition and the trial is scheduled to begin in February 2016.
140. Plaintiff Mikayla G.’s biological mother wants nothing more than to finally bring her daughter home. When Mikayla G. was removed, Mikayla G.’s biological mother was ordered to attend parenting classes, attend a drug treatment program and find stable housing. Upon information and belief, Mikayla G.’s biological mother was not provided with any assistance in finding a parenting class. She identified one herself and completed it in nine weeks. Mikayla G.’s biological mother was referred to a drug treatment program for her marijuana use. Upon information and belief, she has been in and out of drug treatment programs and she has communicated to the Contract Agency that she intends to begin an outpatient drug program again soon. Upon information and belief, the Contract Agency has told Mikayla G.’s biological
45

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 49 of 129
mother that she cannot meet with its housing specialist to help find her stable housing until she has completed her outpatient drug treatment program. Due to her inability to find affordable and stable housing, Mikayla G.’s biological mother lived in an abandoned house with other family members for a number of months. Mikayla G.’s biological mother now lives with friends. Upon information and belief, the Family Court judge and Contract Agency caseworker handling Mikayla G.’s case told her to give finding work and housing lower priority than her drug treatment.
141. If Plaintiff Mikayla G. is unable to be returned to her parent, Mikayla G.’s biological mother would like her to be placed with a relative. Upon information and belief, since her removal over two years ago, neither ACS nor the Contract Agency has made efforts to determine whether this little girl’s relatives may be appropriate foster or adoptive placements even though family members have presented themselves to ACS and the Contract Agency as options for placement.
142. During the more than two years that Plaintiff Mikayla G. has been in the custody of ACS, Defendants repeatedly have violated her constitutional, statutory and contractual rights by failing to protect her from psychological and emotional harm; by failing to provide services to ensure her physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable her to be safely returned to her biological mother or, if that were not possible within a reasonable period of time, to place her in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, this child. As a direct result of Defendants’ actions and inactions, Mikayla G. has suffered and continues to
46

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 50 of 129
suffer irreparable harm and continues to be subjected to the lasting emotional damage that is a consequence of a child being harmed while in foster care, of not knowing where she will grow up and of believing that there is no family she can call her own. Because of Defendants’ actions and inactions, Plaintiff Mikayla G. is being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
Myls J. and Malik M. 143. Plaintiff Myls J. is a five year old boy in kindergarten, and Plaintiff Malik M. is a three year old boy in pre-kindergarten. Myls J. and Malik M. are brothers. Myls J. was removed from his biological mother on March 14, 2011. Malik M. was removed from his biological mother on April 4, 2012, just two days after he was born. The permanency goal for both children currently is adoption. Myls J. has been in ACS custody for more than four years and Malik M. has been in custody for over three and a half years—nearly his entire life. 144. Plaintiffs Myls J. and Malik M. appear through their next friend, Elizabeth Hendrix. Ms. Hendrix worked as a special education teacher in public schools for several years before specializing in how to teach children with dyslexia or other reading disabilities, both in public schools and private tutoring. Ms. Hendrix is truly dedicated to Myls J. and Malik M.’s best interests. 145. Upon information and belief, shortly after Plaintiff Myls J. was born, his biological mother, then a 15 year old girl who had formerly been in the custody of ACS, left him with her grandmother. Upon information and belief, Myls J.’s biological great-grandmother reported to the Statewide Central Register of Child Abuse and Maltreatment that Myls J.’s biological mother had abandoned him.
47

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 51 of 129
146. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, Plaintiff Myls J. initially placed him in a non-kinship emergency foster placement. Myls J. was then placed in a non-kinship foster placement—the third place he had lived in one month.
147. When Plaintiff Malik M. was born, the Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, Malik M. placed him in the same non-kinship foster placement as Myls J. Malik M. reportedly was removed from his biological mother because of her problems with drug and alcohol use.
148. In the past four years, Plaintiffs Myls J. and Malik M. have had approximately twelve caseworkers at the Contract Agency to which ACS has delegated their day-to-day care.
149. Plaintiffs Myls J. and Malik M. had sporadic supervised visits with their biological mother at the Contract Agency until approximately August 2012 when their biological mother stopped attending visits. Upon information and belief, Myls J. did not visit his biological mother at all in 2013, and Malik M. visited with his biological mother only once in 2013. In 2014, neither Myls J. nor Malik M. visited their biological mother. On July 31, 2015, Myls J. and Malik M. saw their biological mother for the first time since 2013. In November 2015, the Family Court judge handling Myls J. and Malik M.’s case suspended visits with their biological mother.
150. Plaintiff Myls J. has languished in the custody of ACS for over four years and his brother Plaintiff Malik M. has languished in the custody of ACS for nearly his entire life—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable these young boys to be
48

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 52 of 129
safely returned to their biological mother or, if that were not possible within a reasonable period of time, to ensure that they can grow up in a permanent family.
151. As a result of their continued placement in ACS custody, Plaintiffs Myls J. and Malik M. have suffered great physical and emotional harm. Although a doctor has prescribed Myls J. medication for Attention Deficit Hyperactivity Disorder and to address his problems sleeping, he was unable to start this medication until a year after it was prescribed because the Contract Agency was unable to locate his biological mother so that she could give consent. Additionally, Myls J. and Malik M.’s visits with their biological mother caused them severe anxiety. Soon after visits began in 2015, Myls J. began screaming and crying at school. Malik M. had previously seen his biological mother only twice before, when he was approximately two months old, and was confused about who she was.
152. As a result of the emotional harm they have suffered while in ACS custody for the past four years, Plaintiffs Myls J. and Malik M. have suffered and continue to suffer from a variety of mental health problems. Myls J.’s diagnoses include Attention Deficit Hyperactivity Disorder, Autistic Disorder and Pervasive Developmental Disorder. He is in a special education setting at school. Malik M. also is in a special education early education program.
153. In addition to failing to keep Plaintiffs Myls J. and Malik M. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Myls J. and Malik M. in a permanent home.
154. On October 10, 2012, the Contract Agency determined that Plaintiffs Myls J. and Malik M.’s permanency goal should be changed from return to parent to adoption. Their current foster parent has indicated a willingness to adopt them.
49

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 53 of 129
155. A petition for TPR was filed on or about June 12, 2013. Upon information and belief, the TPR proceedings have been adjourned repeatedly due to ACS’s failure to ensure that all parties were prepared for court on scheduled hearing dates to resolve the permanency issues in this case. The TPR proceedings are currently scheduled to begin on March 1, 2016.
156. After languishing in foster care for over three years, Plaintiffs Myls J. and Malik M.’s permanency goal remains to be adopted.
157. During the more than three years that Plaintiffs Myls J. and Malik M. have been in the custody of ACS, Defendants repeatedly have violated their constitutional, statutory and contractual rights by failing to protect them from psychological and emotional harm; by failing to provide services to ensure their physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable them to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to place them in a permanent home. ACS has further failed to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, these children. As a direct result of Defendants’ actions and inactions, Myls J. and Malik M. have suffered and continue to suffer irreparable harm and continue to be subjected to the lasting emotional damage that is a consequence of children being harmed while in foster care, of not knowing where they will grow up and of believing that there is no family they can call their own. Because of Defendants’ actions and inactions, Plaintiffs Myls J. and Malik M. are being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
50

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 54 of 129
Emmanuel S. and Matthew V. 158. Plaintiff Emmanuel S. is a 14 year old boy in the ninth grade, and Plaintiff Matthew V. is a 13 year old boy in the eighth grade. Emmanuel S. and Matthew V. are brothers. The permanency goal for both children currently is adoption. They have been in ACS custody for more than four years. 159. Plaintiffs Emmanuel S. and Matthew V. appear by their next friend, Samuel Perry. Mr. Perry is a high school history and government teacher. Mr. Perry started his career teaching students in special education classes and currently mentors a student who was previously in the custody of ACS. Mr. Perry is truly dedicated to Emmanuel S. and Matthew V.’s best interests. 160. Upon information and belief, this is Plaintiffs Emmanuel S. and Matthew V.’s second time in ACS custody. Upon information and belief, ACS removed the children from their biological parents and then returned them home. On September 19, 2011, when Emmanuel S. was ten years old and Matthew V. was nine years old, ACS removed Emmanuel S. and Matthew V. and placed them in ACS custody again, reportedly because of their biological mother’s mental health issues and drug use. Emmanuel S. and Matthew V.’s biological father suffers from Alzheimer’s disease and is unable to care for the children. When the children were placed in ACS custody, the Family Court entered a temporary order of protection prohibiting Emmanuel S. and Matthew V.’s biological mother from contacting them because of her mental health issues and drug use. 161. The Contract Agency to which ACS delegated the day-to-day care of, and case planning responsibility for, these children placed Plaintiffs Emmanuel S. and Matthew V. in a
51

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 55 of 129
kinship foster placement with their cousin. At that time, their permanency goal was to be returned to their parent. They remain in that kinship foster placement with their cousin.
162. Upon information and belief, from October 2011 to March 2013, Plaintiffs Emmanuel S. and Matthew V. had occasional visitation with their biological mother. During at least one such visit, Emmanuel S. and Matthew V.’s biological mother brought with her to a visit a man who is prohibited by court order from being around the children. Upon information and belief, Emmanuel S. and Matthew V.’s visitation with their biological mother has become sporadic because of their reluctance to visit with her or have other contact with her.
163. Plaintiffs Emmanuel S. and Matthew V. have languished in the custody of ACS for the past four years—a direct result of ACS’s failure to develop and implement an appropriate case plan and provide appropriate services consistent with professional standards to enable these young boys to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to ensure that they can grow up in a permanent family.
164. As a result of their continued placement in ACS custody, Plaintiffs Emmanuel S. and Matthew V. have suffered severe emotional trauma.
165. In June 2012, Plaintiff Emmanuel S. was diagnosed with adjustment disorder with depressed mood with moderate psychosocial stressors caused by conflicts between his biological mother and foster parent. In October 2013, the Contract Agency reported that Emmanuel S. experienced “emotional turmoil” over the course of the previous year and was disturbed by his inability to effectively communicate with his biological mother to express his feelings in a way she would consider. During this time, Emmanuel S.’s biological mother would also contact him at inappropriate times and in inappropriate places, such as when he was at school. Because of these events, Emmanuel S. began attending mental health counseling sessions once a week as
52

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 56 of 129
opposed to twice a month. In March 2015, Emmanuel S. was diagnosed with adjustment disorder with a mood psychosocial stressor, the “need for permanency”. Upon information and belief, Emmanuel S. has developed an eating disorder because of the anxiety he suffers as a result of his continued placement in foster care.
166. Plaintiff Matthew V. has also suffered emotional harm because of his continued placement in ACS custody. In March 2012, a counselor at the school he attended reported that Matthew V. presented concerning behavior impacting his ability to cooperate with his teacher and complete his work, including being readily persuaded to engage in inappropriate behavior by his peers, such as going through his teacher’s belongings and engaging in physical fights. The same counselor reported that he shared that “he is both angry and sad about the current relationship situation with his mother”. In May 2014, Matthew V. was diagnosed with anxiety with “lack of permanency” as a stressor. In March 2015, Matthew V. was diagnosed with adjustment disorder with depressed mood with a mood psychosocial stressor, the “need for permanency”.
167. ACS has failed to ensure that Plaintiffs Emmanuel S. and Matthew V. are provided with the necessary and appropriate services to ensure their physical, psychological and emotional well-being. Upon information and belief, Emmanuel S. and Matthew V. have had at least five caseworkers since they were placed in ACS custody four years ago, one of whom was their caseworker for only two weeks. Although Emmanuel S. and Matthew V. struggle in school and their foster mother requested additional education support for them, the Contract Agency did not approve an IEP evaluation, attend any of the IEP meetings or provide them with other educational support until an advocate intervened on their behalf.
53

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 57 of 129
168. In addition to keeping Plaintiffs Emmanuel S. and Matthew V. free from emotional harm while in its custody, ACS has also failed to take reasonable and appropriate steps consistent with reasonable professional standards to place Emmanuel S. and Matthew V. in a permanent home.
169. On April 16, 2013, the Contract Agency informed Emmanuel S. and Matthew V.’s therapists and their biological mother’s therapist that it planned to request Emmanuel S. and Matthew V.’s goal be changed to adoption. On April 17, 2013, the Contract Agency conducted a “goal change conference” and decided to postpone changing the children’s goal to adoption until the Contract Agency provided services to Emmanuel S. and Matthew V.’s biological mother that it had failed to provide. On August 21, 2013, the Contract Agency conducted a “goal change conference” and filed a TPR petition in Family Court. On August 27, 2013, nearly two years after entering care, the Contract Agency spoke to Emmanuel S. and Matthew V. about being adopted by their current foster parent. Upon information and belief, Emmanuel S. and Matthew V. have not yet been freed for adoption. Upon information and belief, the trial in Family Court regarding the TPR petition is scheduled to begin in March 2016.
170. During the four years that Plaintiffs Emmanuel S. and Matthew V. have been in the custody of ACS, Defendants repeatedly have violated their constitutional, statutory and contractual rights by failing to protect them from psychological and emotional harm; by failing to provide services to ensure them physical, psychological and emotional well-being; by failing to ensure the provision of appropriate foster care placements consistent with professional standards or of a meaningful, timely and appropriate plan to enable them to be safely returned to their biological mother or, if that were not possible within a reasonable period of time, to place them in a permanent home. ACS has further failed to exercise adequate and meaningful
54

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 58 of 129
oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, these children. As a direct result of Defendants’ actions and inactions, Emmanuel S. and Matthew V. have suffered and continue to suffer irreparable harm and continue to be subjected to the lasting emotional damage that is a consequence of children being harmed while in foster care, of not knowing where they will grow up and of believing that there is no family they can call their own. Because of Defendants’ actions and inactions, Plaintiffs Emmanuel S. and Matthew V. are being deprived of the opportunity for a childhood that is reasonably free from harm and that provides the opportunity for stability and healthy development.
*** 171. All of Defendants’ actions and inactions as described herein substantially depart from accepted professional judgment and constitute deliberate indifference to the harms, risk of harms and violations of legal rights suffered by the Named Plaintiff Children.
II. The Public Advocate for the City of New York 172. Plaintiff Letitia James is the Public Advocate for the City of New York (the
“Public Advocate”). In this capacity, the Public Advocate ensures that the city government serves its citizens by exercising oversight of city agencies, investigating citizen complaints regarding city services, and making proposals or seeking relief to address perceived shortcomings or failures.
173. Just two months into her tenure, the Public Advocate introduced a law, Int. 01042014, that would require ACS to report information related to youth in the foster care system on an annual basis. This law ensures that the City monitors which supports and resources these young adults use and identifies ongoing educational barriers they experience and problems they
55

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 59 of 129
might encounter with homelessness or law enforcement. In September 2014, the Office of the Public Advocate issued a policy report concerning youth “aging out” of the foster care system. The report provided recommendations to improve data collection, access to housing, and coordination of services for young people aging out of the system. On September 30, 2014, Int. 0104-2014 was signed into law.
174. On an ongoing basis, the Office of the Public Advocate Constituent Affairs Department (“the Constituent Affairs Department”) receives complaints from constituents in all five boroughs alleging deficiencies and lapses in responsibilities by both ACS and Contract Agencies. Constituent complaints alleged, for instance, failure to investigate allegations of abuse of children in ACS custody, failure to initiate timely TPR proceedings, failure to follow proper procedures when removing children from their family home or foster home, failure to provide required services for both biological parents and foster children, failure to honor ACS vouchers and potentially retaliatory practices against those who complained directly to ACS or Contract Agencies. In total, the Constituent Affairs Department has received 559 complaints regarding ACS since January 1, 2014.
175. As a result of ongoing complaints, the Public Advocate identified ACS as an agency whose practices warrant investigation.
176. Upon learning that New York City keeps children in foster care longer than almost every jurisdiction in the country, the Office of the Public Advocate began to examine obstacles to permanency and established a hotline to hear directly from foster children and their advocates about their experiences.
177. In November 2014, the Office of the Public Advocate requested a copy of all contracts ACS holds with individual Contract Agencies; on November 17, 2014, ACS responded
56

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 60 of 129
with electronic copies of all the contracts it has with the 29 Contract Agencies. On or about February 6, 2015, the Office requested all data collected by ACS used to produce “Scorecard” evaluations (see infra ¶¶ 272–75) of the Contract Agencies from 2012 to 2014, in addition to the Scorecard evaluations themselves and any related documentation. After receiving no response, the Office of the Public Advocate repeated the request on February 27, 2015. A meeting was held on March 11, 2015, at which the document request was made for a third time and denied by ACS.
178. On or about April 1, 2015, the Office of the Public Advocate sent a letter to ACS threatening legal action if they did not comply with the data request and also requested access to ACS’s Legal Tracking System in order to investigate constituent complaints concerning significant delays and inefficiencies occurring in Family Court proceedings in which ACS is involved. Following this correspondence, ACS provided Scorecard evaluations, but did not provide the underlying data used to produce them, or the other requested information.
179. Also in April 2015, the Office of the Public Advocate launched a multilingual hotline to learn first-hand from children and their advocates about the current barriers to receiving better services while in foster care and obtaining a safe and permanent home. Participants in the hotline were asked to complete a survey. The survey’s questions varied based on the type of respondent—typically a child, birth parent or foster parent—and asked about the child’s trajectory in foster care, permanency planning, services provided and cases of maltreatment in care.
180. Combining anecdotal reports from the hotline and publicly available data, the Office of the Public Advocate identified several deficiencies including, but not limited to, ACS removal of children without proper court process, failure to identify and provide adequate
57

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 61 of 129
services for parents of children in care and subsequent delays in reunification, failure to place children appropriately and thus creating instability, failure of ACS and the Contract Agencies to be prepared for court dates, failure of ACS to recruit, train and support adoptive placements, failure to engage in concurrent planning, failure to protect children from maltreatment and failure to provide adequate health and mental health services to children in care. Those deficiencies and recommendations for addressing them were cited in a report that was issued on July 2, 2015.
III. Defendants 181. Defendant City of New York (“City”) was, and is, a municipal entity created and
authorized under the laws of the State of New York. It is authorized by law to maintain and ultimately is responsible for the New York City Administration for Children’s Services, which acts as its agent in the area of protecting the safety and welfare of children in the City. The City assumes the risks incidental to the maintenance of the New York City Administration for Children’s Services and its employment of attorneys, caseworkers and others.
182. Defendant New York City Administration for Children’s Services (“ACS”) was, and is, a municipal agency of the City responsible for protecting the safety and welfare of all children in New York City. At all times relevant hereto, the officials, agents and employees of ACS were acting under the color of state law in the course and scope of their duties and functions as agents, servants, employees and officials of ACS and otherwise performed and engaged in conduct incidental to the performance of their lawful duties. The officials, agents and employees were acting for, and on behalf of, ACS at all times relevant herein with the power and authority vested in them as agents and employees of ACS and the City and incidental to their lawful pursuit of their duties as officials, employees and agents of ACS.
58

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 62 of 129
183. Defendant Gladys Carrión is Commissioner of ACS and is sued solely in her official capacity. She is responsible for ACS’s policies, practices and operations, and for ensuring that ACS and the private agencies with which it contracts comply with all applicable federal and state laws, pursuant to the Charter of the City of New York, Chapter 24-B §§ 615 and 617. All children in foster care in New York City are in the custody of Defendant Carrión, and she is responsible for ensuring their health, safety and well-being, including, but not limited to, their freedom from maltreatment while in state custody and their placement in a permanent home within a reasonable period of time.
184. Defendant State of New York (“State”) was, and is, a governmental entity. It is authorized by law to maintain and is ultimately responsible for the New York State Office of Children and Family Services, which acts as its agent in the area of foster care, adoption and adoption assistance for children in New York State. The State assumes the risks incidental to the maintenance of the New York State Office of Children and Family Services.
185. Defendant New York State Office of Children and Family Services (“OCFS”) was, and is, an agency of the State responsible for programs involving foster care, adoption and adoption assistance for children in New York State. At all times relevant hereto, the officials, agents and employees of OCFS were acting under the color of state law in the course and scope of their duties and functions as agents, servants, employees and officials of OCFS and otherwise performed and engaged in conduct incidental to the performance of their lawful duties. The officials, agents and employees were acting for, and on behalf of, OCFS at all times relevant herein with the power and authority vested in them as agents and employees of OCFS and the State and incidental to their lawful pursuit of their duties as officials, employees and agents of OCFS.
59

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 63 of 129
186. Defendant Sheila J. Poole is Acting Commissioner of OCFS and is sued solely in her official capacity. She is responsible for the policies, practices and operation of OCFS, for ensuring OCFS’s compliance with all applicable federal and state law, pursuant to New York State Social Services Law §§ 11 and 17, and for providing oversight to all social services districts in the state.
JURISDICTION AND VENUE 187. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983. The Court has jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a). The Court may exercise supplemental jurisdiction over the claims based on New York law pursuant to 28 U.S.C. § 1367(a). 188. This Court has jurisdiction to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2002 and Rule 57 of the Federal Rules of Civil Procedure. 189. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b) because the claims arise in this district. Although OCFS and ACS are responsible for children from all five boroughs of New York City, including those in the Eastern District of New York, the Commissioner of ACS has custody of all Plaintiff Children, and ACS’s administrative and managerial functions are operated out of its headquarters, which is located in the Southern District of New York.
CLASS ACTION ALLEGATIONS 190. This action is properly maintained as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
60

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 64 of 129
191. The general class is defined as all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services (“Plaintiff Children” or the “Class”).
192. The Class is sufficiently numerous to make joinder impracticable. As of September 2015, there were approximately 10,313 children in the foster care custody of the Commissioner of ACS.
193. The questions of fact and law raised by Named Plaintiff Children’s claims are common to and typical of those of each putative member of the Class whom they seek to represent. The Named Plaintiff Children and Plaintiff Children rely on Defendants for foster care services in New York City and wholly depend on the State and City Defendants for provision of those services. Defendants’ long-standing and well-documented actions and inactions substantially depart from accepted professional judgment and constitute deliberate indifference to the harm, risk of harm and violations of legal rights suffered by the Named Plaintiff Children and Plaintiff Children.
194. Questions of fact common to the Class include:
a. whether State and City Defendants fail to protect Plaintiff Children from physical, psychological and emotional harm;
b. whether State and City Defendants fail to ensure meaningful case plans to enable Plaintiff Children to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes;
c. whether State and City Defendants fail to provide foster care placements and services that ensure Plaintiff Children’s well-being; and
61

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 65 of 129
d. whether ACS fails to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
195. Questions of law common to the Class include:
a. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s substantive rights under the due process clause of the Fourteenth Amendment to the United States Constitution;
b. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s right to a permanent home and family under the First, Ninth and Fourteenth Amendments to the United States Constitution;
c. whether Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997;
d. whether City Defendants’ long-standing and well-documented actions and inactions violate Plaintiff Children’s rights under New York State Social Services Law and regulations adopted pursuant thereto; and
e. whether City Defendants’ actions and inactions violate Plaintiff Children’s rights as third party beneficiaries to the contracts between the City Defendants and the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
62

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 66 of 129
196. The violations of law and resulting harms averred by Named Plaintiffs are typical of the legal violations and harms and/or risk of harms experienced by all Plaintiff Children in the Class.
197. Named Plaintiffs will fairly and adequately protect the interests of the Class that they seek to represent. Defendants have acted or failed to act on grounds generally applicable to all members of the Class, necessitating class-wide declaratory and injunctive relief. Counsel for Plaintiff Children know of no conflict among the Class members.
198. Named Plaintiffs and Plaintiff Children are represented by the following attorneys who are competent and experienced in class action litigation, child welfare litigation and complex civil litigation:
a. Marcia Robinson Lowry, an attorney with A Better Childhood, Inc., a non-profit legal advocacy organization, who has substantial experience and expertise in federal child welfare class actions nationally; and
b. Attorneys from Cravath, Swaine & Moore LLP, including Julie A. North and J. Wesley Earnhardt, Members of the Firm, who have significant experience in complex litigation in state and federal courts throughout the United States.
Plaintiff Children’s attorneys have identified and thoroughly investigated all claims in this action and have committed sufficient resources to represent the Class through trial and any appeals. Each Named Plaintiff appears by a next friend pursuant to Federal Rule of Civil Procedure 17(c), and each next friend is sufficiently familiar with the facts of the child’s situation and dedicated to the child’s best interests to fairly and adequately represent the child’s best interests in this litigation.
63

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 67 of 129
STRUCTURE OF THE NEW YORK CITY CHILD WELFARE SYSTEM 199. Children in foster care in New York City are in the legal custody of the Commissioner of ACS (currently, Defendant Carrión) (“ACS custody”). At all times, ACS maintains legal custody and legal responsibility for all children in foster care in New York City. 200. Pursuant to its Charter, the City of New York and Defendant Carrión, as Commissioner of ACS, are responsible for ensuring that ACS complies with federal and state law. 201. New York State provides funding to New York City that is spent on child welfare services, and, through OCFS, is responsible for overseeing ACS and ensuring that ACS complies with all applicable federal and state laws. OCFS is also responsible for ensuring that ACS complies with all elements of the state plans (which OCFS signs as a condition of receiving child welfare funds from the United States Department of Health and Human Services) that document how the state will comply with certain core policies and procedures intended to, among other things, either enable children in foster care to be reunited with their families and/or ensure timely efforts to find a permanent home for children who cannot be reunited with their families. 202. Pursuant to the Constitution and federal and state statutory law, ACS, as the custodian of children in foster care in New York City, is required to:
a. Protect each child in foster care from physical, psychological and emotional harm, U.S. Const. amend. XIV;
b. Provide to each child in foster care the services necessary to ensure his or her physical, psychological and emotional well-being, U.S. Const. amend. XIV;
64

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 68 of 129
c. Provide to each child in foster care conditions, treatment and care consistent with the purpose and assumptions of custody, U.S. Const. amend. XIV;
d. Ensure that each child in foster care is not maintained in custody longer than is necessary to accomplish the purpose of custody, U.S. Const. amend. XIV;
e. Provide each child in foster care with a permanent home and family within a reasonable period of time, U.S. Const. amends. I, IX, XIV;
f. Place each child in foster care in a foster placement that conforms to nationally recommended professional standards, 42 U.S.C. § 671(a)(10);
g. Provide for each child in foster care a written case plan that includes a plan to provide safe, appropriate and stable foster care placements and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(A);
h. Provide for each child in foster care a written case plan that ensures that the child receives safe and proper care while in foster care and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
i. Provide for each child in foster care a written case plan that ensures the provision of services to facilitate reunification or, where that is not possible, a permanent home for the child and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
j. Provide for each child in foster care, where reunification is not possible or appropriate, a written case plan that ensures the location of an adoptive or
65

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 69 of 129
other permanent home for the child and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(E); k. Provide for each child in foster care a written case plan that ensures the educational stability of the child while in foster care and implement that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(G); l. Maintain a case review system in which each child in foster care has a case plan designed to achieve safe, appropriate and stable foster care placements, 42 U.S.C. §§ 671(a)(16), 675(5)(A); m. Maintain a case review system in which the status of each child in foster care is reviewed every six months by a court, or person responsible for case management, for purposes of determining the safety of the child, the continuing necessity and appropriateness of the foster placement, the extent of compliance with the permanency plan and the projected date of permanency, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(C); n. Maintain a case review system that ensures that for each child that has been in foster care for 15 of the most recent 22 months, ACS files a petition to terminate the parental rights of the child’s parents and concurrently identifies, recruits, processes and approves a qualified family for an adoption, or documents compelling reasons for determining that filing such a petition would not be in the best interest of the child, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(E); o. Provide to each child in foster care quality services to protect his or her safety and health, 42 U.S.C. § 671(a)(22);
66

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 70 of 129
p. Timely create meaningful and appropriate Family Assessment and Service Plans, New York State Social Services Law § 409-e;
q. Timely plan and complete meaningful and appropriate Family Assessment and Service Plan reviews, New York State Social Services Law § 409-e and N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12;
r. Place each child in a foster placement that meets standards for continuity and appropriate level of placement, N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11;
s. File a petition to terminate parental rights for each child who has been in foster care for 15 out of the most recent 22 months or, where applicable, appropriately document an exception, New York State Social Services Law § 384-b, N.Y. Comp. Codes R. & Regs. tit. 18, §§ 430.12 and 431.9; and
t. Provide each child in foster care who has been freed for adoption with meaningful and appropriate adoption services, including evaluation of the child’s placement and pre-placement needs, recruitment of and a home study for prospective adoptive parents, placement planning, supervision and post-adoption services, New York State Social Services Law §§ 372-b, 372-e and N.Y. Comp. Codes R. & Regs. tit. 18, § 421.8.
203. By contract, ACS has delegated the care of the City’s children in foster care to agencies (“Contract Agencies”). ACS currently has entered into valid and enforceable contracts with 29 Contract Agencies. The contracts into which ACS has entered with each of the Contract Agencies (referred to herein as the “Agreements”) require the Contract Agencies to comply with
67

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 71 of 129
all applicable ACS policies, as well as state and federal law. The Agreements also require the Contract Agencies to provide comprehensive foster care services as defined in the Agreements.1
204. Regardless of the terms of the Agreements, by law, ACS at all times maintains legal custody of and legal responsibility for all children in foster care in New York City. However, ACS has failed and continues to fail to ensure the protection of Plaintiff Children’s rights under federal and state constitutional and statutory law.
205. Children in New York City enter foster care in one of two ways—they can be voluntarily placed into foster care by their parents,2 or they can be removed from their parents by ACS. Most children in foster care in New York City have been removed from their parents. When children are removed from their parents, the removal is either (a) pursuant to a Family Court finding that the child is in danger of abuse or neglect if left with his or her parents or (b) on an emergency basis, subject to a later finding by the Family Court that the child would have been in danger of abuse or neglect if he or she had been left with his or her legal parents. In both cases, the Family Court must hold a fact-finding hearing to determine whether the child was in danger of being abused or neglected if left with his or her parents. After the fact-finding hearing, the Family Court holds a disposition hearing to determine whether the child can safely be returned home or should remain in foster care pending the completion of certain actions (e.g., treatment for drug or alcohol addiction, anger management classes, etc.).
1 Each Agreement between the Contract Agency and ACS is for a particular set of foster placement services. Therefore, one Contract Agency may have multiple Agreements with ACS, each for a different type of placement. Appendix A lists, to the best of our information and belief, the Agreements which were current as of November 2014 (see ¶ 177) and that are still in force today.
2 Unless otherwise specified, the term “parents” as used herein refers to the person(s) who have legal custody or legal responsibility for the child prior to his or her entry into foster care, and may include biological parents, grandparents, adoptive parents or other legal guardians.
68

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 72 of 129
206. Once a child enters foster care, ACS “places” the child with a Contract Agency, to which ACS delegates the day-to-day care of, and case planning responsibility for, the child. Upon information and belief, placement with a Contract Agency is determined largely by which Contract Agency has availability when placement is sought, not by a determination of the child’s health, safety or permanency needs, or of the ability of a potential available placement to meet those needs.
207. The Contract Agency with which the child has been placed then assigns the child a foster placement, which can be either a traditional home-like setting or residential facility.3 Upon information and belief, foster placements are determined largely by availability at the time the placement is sought, not by a determination of the child’s health, safety or permanency needs, or of the ability of a potential available placement to meet those needs.
208. Once a child is placed with a Contract Agency, caseworkers employed by that Contract Agency are responsible for generating and recommending a case plan for the child.
209. Pursuant to federal and state law, ACS is required to ensure that a case plan meeting statutory criteria and professional standards is prepared for each child in foster care. In New York, these case plans are referred to as Family Assessment and Service Plans (“FASP”). Each child’s FASP must describe, among other things, the child’s physical and mental health needs, the child’s permanency goal, the services necessary to meet the child’s physical and mental needs as identified in the case plan and the services necessary to help the child achieve his or her permanency goal as identified in the case plan.
3 Residential facilities include boarding homes, group homes, group residences, and institutions or residential treatment facilities. Residential facilities are the most restrictive settings, usually intended for the placement of older children with severe clinical, medical, mental and/or behavioral problems.
69

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 73 of 129
210. Pursuant to state and federal law, ACS also is responsible for ensuring that each child’s case plan is implemented, and for providing each child in its custody with the services necessary to meet the child’s physical and mental needs as identified in the case plan and the services necessary to help the child achieve his or her permanency goal as identified in the case plan.
211. ACS delegates the preparation of such case plans and the provision of such services to the Contract Agency with which the child has been placed. However, ACS fails to ensure that the Contract Agencies prepare meaningful and appropriate FASPs for each child in ACS custody, as required by state law. ACS also fails to ensure that the Contract Agencies provide the services necessary to meet both the child’s physical and mental needs and to help the child achieve his or her permanency goal (as identified in the case plan), as required by law.
212. Foster care is intended to be temporary—a short-term placement until a child can be safely reunified with his or her parents or, where that is not possible, placed into another stable, permanent home.
213. Accordingly, federal and state law require ACS to ensure that each child in foster care has a “permanency goal” and that reasonable efforts are made to reach each child’s established permanency goal within a reasonable period of time. There are five possible permanency goals: (1) return to parent; (2) adoption; (3) legal guardianship or kinship guardianship; (4) placement with a relative; and (5) another planned permanent living arrangement (“APPLA”), the permanency goal given to children who will “age out” of the foster care system.
214. ACS delegates case planning responsibility, including assigning permanency goals and making reasonable efforts toward permanency goals, to the Contract Agency with
70

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 74 of 129
which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agencies engage in meaningful and appropriate permanency planning, as required by federal and state law.
215. Federal law requires ACS to ensure that caseworkers engage in concurrent planning, so that each child in ACS custody has a primary permanency goal and a secondary permanency goal, both of which the caseworker must work toward simultaneously. For example, if a child’s primary permanency goal is “return to parent” and the secondary permanency goal is “adoption”, concurrent planning requires simultaneous provision of necessary services so that the child can be returned home safely and recruitment of potential adoptive parents in the event the child is unable to be returned home safely. The purpose of concurrent planning is to limit the harm caused to the child by a lengthy stay in foster care by ensuring that the child is placed into a permanent home within a reasonable period of time.
216. ACS delegates case planning responsibility, including engaging in concurrent planning, to the Contract Agency with which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agencies engage in meaningful and appropriate concurrent planning, as required by federal law.
217. Federal and state law require ACS to ensure that a child’s case plan is periodically reviewed to ensure that the child’s permanency goal is appropriate and that progress is being made toward safely returning the child to his or her parent or, if that were not possible within a reasonable period of time, placing the child in a permanent home. By state statute, an initial FASP review must be held between 60 and 90 days after the child is placed in foster care, and subsequent FASP reviews must be held no less than every six months thereafter. ACS must ensure that the caseworker and all relevant persons, including, but not limited to, the parents of
71

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 75 of 129
the child, relatives, the foster parent and the child, if old enough, participate in the FASP reviews. However, ACS fails to ensure that meaningful and appropriate FASP reviews occur as required by state law.
218. By state statute, a permanency hearing must be held in the Family Court within eight months of a child’s removal from his or her parents and every six months thereafter, and that permanency hearing must be completed within 30 days. The purpose of permanency hearings is to provide each child in ACS custody with timely judicial review of the child’s permanency goal and whether progress has been made toward achieving that goal.
219. Because ACS fails to ensure that all parties are prepared for court and that Contract Agencies submit necessary paperwork in a timely fashion, such permanency hearings often are not completed within the time period required by state law. In many if not most instances, the permanency hearings are held before the Family Court has even made a determination about whether the parent from whom the child was removed has in fact neglected or abused the child.
220. Federal and state law provide that ACS must, after a child is removed from his or her parents, make a reasonable effort to preserve family relationships, which includes providing services to the child’s parents. Federal law and policy dictate that the preferred course of action is to reunify the child with his or her parents.
221. ACS has delegated its responsibility to make reasonable efforts to reunify each child in its custody with his or her parents to the Contract Agency with which the child has been placed. However, ACS fails to ensure that reasonable efforts are being made or that necessary services are being provided to enable children in ACS custody to be returned home within a reasonable period of time, as required by federal and state law.
72

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 76 of 129
222. Even while efforts are being made to reunify a child with his or her parents, federal law and professional standards also require ACS to ensure that concurrent planning—i.e., to pursue another permanency option for the child in the event that the child cannot safely be returned to his or her parents (see supra ¶ 215)—occurs. That means that ACS should not wait months or years until reunification efforts have failed to begin alternative permanency planning, including identifying other potential permanent homes for the child.
223. Federal and state law require ACS to determine within a reasonable period of time whether or not a child in foster care can be safely and appropriately returned to his or her parents, and if not, to initiate a petition to terminate parental rights so that the child is legally available to be adopted. ACS has delegated the responsibility for making that determination to the Contract Agency with which each child in ACS custody has been placed. However, ACS fails to ensure that the Contract Agency makes that determination within a reasonable time, as required by federal and state law.
224. Under federal and state law, ACS must file a petition to terminate parental rights (“TPR”) when a child has been in foster care for 15 of the previous 22 months, subject to certain exceptions that must be documented. Under state law, ACS must file a TPR petition (a) within 30 days of establishing a primary permanency goal of “adoption”; (b) within 60 days of completing a FASP that documents abandonment or permanent neglect of a child; and (c) within 60 days of a judicial determination that a child was abandoned. ACS has delegated its responsibility to file TPR petitions to the Contract Agency with which each child in its custody has been placed. However, ACS fails to ensure that TPR petitions are filed within the time periods required by federal and state law.
73

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 77 of 129
225. Once parental rights have been terminated and a child in ACS custody is considered “freed” for adoption, state statutory law and regulations require ACS to take a number of additional steps to place that child into a permanent home, including (a) timely acting on applications by persons looking to adopt children; (b) initiating and completing adoption studies (evaluations of an applicant’s ability to be an adoptive parent) within certain time periods; (c) placing children in adoptive homes within certain time periods; and (d) finalizing adoptions within certain time periods. However, as the concept of concurrent planning (see supra ¶ 215) makes clear, ACS should have been identifying other potential permanent homes for the child well before the child is freed for adoption. ACS has delegated these responsibilities to the Contract Agency with which each child in its custody has been placed; however, ACS fails to ensure that the necessary and appropriate steps are taken to develop an appropriate pool of adoptive families and to place children who have been freed for adoption into adoptive homes, as required by state law.
226. Although ACS has delegated the provision of comprehensive foster care services in New York City to 29 Contract Agencies, that delegation does not and cannot supplant ACS’s responsibilities to Plaintiff Children under federal and state law. ACS has legal custody of all children in foster care in New York City. ACS accordingly has legal responsibility for ensuring that the rights of all children in foster care in New York City are protected—which ACS has failed, and continues to fail, to do.
74

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 78 of 129
FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S FOSTER CARE SYSTEM AND RESULTING HARM TO PLAINTIFF CHILDREN
227. The experiences and current situations of the Named Plaintiff Children as described above are neither unusual nor aberrational. Rather, they are merely examples that are far too typical of the irreparable harm being suffered by all children in ACS custody.
228. Defendants are harming Plaintiff Children by:
a. failing to protect Plaintiff Children from physical, psychological and emotional harm;
b. failing to ensure the development and implementation of meaningful case plans to enable Plaintiff Children to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes; and
c. failing to provide foster care placements and services to ensure Plaintiff Children’s well-being.
229. These harms are a direct result of Defendants’ long-standing and well documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years:
a. ACS fails to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the day-to-day care of, and case planning responsibility for, Plaintiff Children.
75

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 79 of 129
b. ACS fails to ensure that Contract Agency caseworkers are assigned caseloads and receive appropriate training consistent with professional standards.
c. ACS fails to provide a system for making foster placements consistent with federal and state law and minimum professional standards.
d. ACS fails to ensure case and service plans are developed and implemented consistent with federal and state law and minimum professional standards.
e. ACS fails to take all necessary and available action to ensure timely adjudication of family court proceedings involving children in ACS custody consistent with federal and state law and minimum professional standards.
All of Defendants’ actions and inactions as described herein substantially depart from accepted professional judgment and constitute deliberate indifference to the harm, risk of harm and violations of legal rights suffered by Plaintiff Children.
230. Put simply, as a result of Defendants’ failures, caseworkers employed by the Contract Agencies to which ACS has delegated the care of Plaintiff Children often are inexperienced, undertrained, under-supervised, overworked and underpaid; case planning often is sloppy and ineffective; there are not enough suitable and appropriate foster and pre-adoptive placements to meet Plaintiff Children’s needs; and a lack of urgency and accountability pervades New York City’s foster care system.
231. Defendants have long been aware of these systemic failures and the resulting harm to the vulnerable children in ACS custody. Since 2000, OCFS has undergone two federal performance audits of the New York State child welfare system, known as Child and Family
76

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 80 of 129
Services Reviews (“CFSR”). These reviews are conducted by the United States Department of Health and Human Services to assess the performance of child welfare systems across the country, including the outcomes achieved for children, to identify areas in which systemic improvement is required to assure appropriate outcomes for children, and to implement corrective actions where outcomes for children are found to be deficient. States are evaluated on seven outcome indicators of safety, permanency and well-being—the unequivocal goals of all foster care systems pursuant to federal statutory law—and on seven systemic factors that affect the state’s capacity to deliver foster care services effectively.
232. The two federal audits completed to date revealed myriad areas in which the New York State foster care system was causing harm to the children in its care, and that New York State’s foster care system was getting worse. The first CFSR audit, which was published in 2002, found that New York State failed to conform to federal expectations in five of the seven safety, permanency and well-being indicators, and in three of the seven systemic factors. Seven years later, New York State performed worse. During the second CFSR audit, which was published in 2009, the federal government determined that New York State failed to conform to federal expectations in all seven safety, permanency and well-being indicators, and in five of the seven systemic factors. New York State’s CFSR results are heavily influenced by New York City’s child welfare system, which accounted for well over 60% of children in foster care in New York State in both 2002 and 2009.
233. Notwithstanding having had 13 years to improve performance since the first CFSR audit of New York State, Defendants continue to place New York City children in ACS custody at significant risk of harm. The most recent federal data available shows that children in
77

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 81 of 129

New York State spend longer in foster care and are more likely to be maltreated while in foster care than children in virtually all other states.
234. Defendants are not acting with sufficient urgency to address these known failures or to meet their legal obligations to protect the children in New York City’s foster care system.

I.

DEFENDANTS ARE CAUSING IRREPARABLE HARM TO CHILDREN IN ACS

CUSTODY.

A. Defendants Fail To Protect Children in ACS Custody from Maltreatment.

235. Maltreatment of children in foster care is a significant problem in New York City.

236. New York City currently accounts for almost 60% of children in foster care in

New York State, which lags far behind the nation with respect to the protection of children in

foster care.

237. Based on the most recent federal data available, New York State ranks 46th out of

48 states and territories for instances of substantiated or indicated maltreatment of children while

in foster care. Put simply, children in New York are more likely to be harmed while under the

state’s protection than children in virtually every other state.

238. New York State has had a high rate of maltreatment in foster care for years. In

both the 2002 and 2009 CFSRs, the federal government found that New York State did not meet

the national standard for the rate of maltreatment in foster care. Based on the most recent federal

data available, New York State did not meet the national standard for 2013.

239. Upon information and belief, the high rate of maltreatment in care in New York

State is largely driven by maltreatment of children in ACS custody in New York City, which

accounts for the majority of children in foster care in New York State.

240. All investigations of maltreatment, including those pertaining to children in foster

care custody, begin with a call to the Statewide Central Register of Child Abuse and

78

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 82 of 129
Maltreatment (“SCR”). According to ACS, in 2014, SCR received 1,987 reports of maltreatment of children in ACS custody (i.e., children in foster care in New York City). ACS’s Office of Special Investigation investigates reports of maltreatment made to the SCR, including those for children already in foster care; a report of maltreatment is “substantiated” when sufficient evidence is found to support a determination that a child was in fact maltreated. Of the 1,987 reports of maltreatment in foster care received by SCR in 2014, 28% were substantiated. The Children’s Bureau of the federal government does not publish comparable data.
241. The high rate of maltreatment of children in ACS custody is a direct result of Defendants’ long-standing and well-documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years. ACS’s failure to ensure that Plaintiff Children are protected from maltreatment substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
B. Defendants Fail To Provide Children in ACS Custody with Permanent Homes and Families Within a Reasonable Time.
242. Foster care is intended to be temporary. Children who do not grow up in stable family environments are less likely to complete their education, to form healthy relationships or to be otherwise prepared to live healthy, satisfying adult lives. Accordingly, federal and state law and professional standards dictate that foster children should be placed in permanent homes as quickly as is safely possible, whether with their parents, another relative or an adoptive family.
243. But ACS allows Plaintiff Children to languish for years in foster care without permanent homes or families to call their own. Indeed, the most recent federal data available shows that New York City lags far behind the rest of New York State and the nation as a whole
79

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 83 of 129
in placing children in foster care custody in permanent homes. As a result, children spend longer in foster care custody in New York City than virtually everywhere else in the nation.
1. Defendants Fail To Ensure Children Are Timely and Safely Reunified with Their Parents.
244. Federal and state law provide that ACS must, in the first instance, make reasonable efforts to preserve a child’s relationship with his or her family. After a child is removed from home due to allegations of abuse or neglect, federal and state law and policy dictate that the preferred course of action is to reunify the child with his or her parents. Reunification, however, is only appropriate where the reason for removal has been addressed through appropriate services to the family so that the child’s safety is assured. As a result, ACS must ensure the provision of appropriate and effective services4 so that children in ACS custody can safely return home.
245. ACS fails to ensure that children in ACS custody are safely returned to their parents within a reasonable period of time.
a. It takes longer to return children in foster care to their parents in New York City than in the rest of New York State and the rest of the nation as a whole. The most recent federal data available shows that children in New York City had spent a median of over a year—12.6 months—in foster care before being reunified with their parents, while children in the rest of New York State spent a median of 10.8 months, and children in the rest of the nation spent a median of 8.6 months in foster care prior to reunification.
4 Necessary reunification services, which should be established and set forth in the child’s case plan, may include psychological evaluations and/or care, substance abuse treatment, parenting classes or assistance, or assistance with accessing adequate housing.
80

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 84 of 129
b. New York City takes longer to return children in foster care to their parents than all but five other states and territories. Based on the most recent available federal data comparing the median number of days children spent in foster care prior to being returned to their parents, New York City ranks 48th of 53 jurisdictions.
246. ACS also fails to ensure that children are safely returned to their parents. Children who are eventually reunified with their legal parents too often re-enter foster care due to further abuse or neglect. In 2014, 13.9% of foster care placements in New York City were of children who had been in foster care within the previous three years. Failed reunifications cause harm to children both as a result of additional maltreatment—in the worst cases, severe injury or even death—and the trauma that accompanies repeated family separation.
2. Defendants Fail To Ensure a Timely Permanent Home for Children in ACS Custody When Reunification Is Not Possible.
247. When a child cannot be returned safely to his or her parents, federal and state law require ACS to promptly find children in its custody alternative permanent homes, typically through adoption or kinship guardianship.
248. However, ACS fails to secure timely adoptions for too many children in its custody who cannot safely be returned to their parents. Instead, these children languish in ACS custody for years without a permanent home or family to call their own.
a. For children who cannot be safely returned to their parents, it takes longer to be adopted in New York City than in the rest of New York State. It also takes longer to be adopted in New York City than in every other state in the nation.
81

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 85 of 129
b. Children who were adopted in New York City in 2013 spent a median of 55.8 months—over 4.5 years—in foster care prior to adoption. In contrast, children in the rest of New York State spent almost two years less time—a median of 32.6 months—in foster care prior to being adopted, and children in the rest of the nation spent less than half that amount of time—a median of 26.9 months—in foster care prior to being adopted.
c. Based on the most recent available federal data comparing the median number of days children spent in foster care prior to being adopted, New York City ranks dead last—a fact that has been true since at least 2007.
249. The City Defendants are well aware that it takes over 4.5 years for a child to be adopted in New York City. The City has published that fact for the past five years in its Mayor’s Management Reports.
3. Defendants’ Failure To Provide Children in ACS Custody Permanent Homes Within a Reasonable Period of Time Causes Irreparable Harm.
250. Research has shown that permanent homes and families are critical to ensuring a child’s healthy development and continue to confer benefits that contribute to the child’s success throughout life. Being placed with a permanent family helps infants with brain development; young children with self esteem, healthy attachment and behavior regulation; and adolescents with independence and healthy boundary-setting. Parental support and a stable, familiar environment also help children cope after traumatic experiences.
251. Conversely, research has shown that children suffer when they grow up in state custody without the protective effects of a permanent home and family. Each year,
82

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 86 of 129
approximately 1,000 young people “age out” of New York City’s foster care system, the vast majority on their own with virtually no safety net. These children suffer irreparable harm. Research has shown that children who “age out” of foster care are more likely than their peers to be unemployed, homeless and incarcerated as adults; are more likely to have drug dependence and post-traumatic stress disorder; and are less likely to have graduated high school, attended college, or to have a savings or checking account.
252. Too frequently, caseworkers push children to accept the permanency goal of APPLA—the goal given to children who will “age out” of the foster care system—at young ages, often failing to explore other options, such as adoption or placement with a relative. ACS allows too many children who cannot safely be returned home to be deemed “unadoptable” without making reasonable efforts to search for or secure permanent homes for those children. ACS also fails to explore alternative permanency options for older teens who may express that they do not want to be adopted but who would nevertheless benefit from a permanent and stable adult connection.
253. Defendants have long been aware of the harm children suffer when they do not grow up in a permanent home or have a permanent family. In February 2011, Defendant OCFS sent ACS and the Contract Agencies an informational letter stating that “children who have a significant connection to an adult generally fare better” and that “[s]tudies of youth who leave foster care without a safe, permanent family reveal consistently negative life outcomes.” However, Defendants have made no meaningful efforts to improve permanency for Plaintiff Children.
254. ACS’s failure to provide Plaintiff Children with permanent homes within a reasonable period of time is a direct result of Defendants’ long-standing and well-documented
83

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 87 of 129
actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years. ACS’s failure to ensure that Plaintiff Children are placed in permanent homes within a reasonable period of time substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
C. Defendants Fail To Provide Foster Placements and Services that Ensure the WellBeing of Children in ACS Custody.
255. Federal and state law and professional standards require ACS to ensure foster care services are provided in a manner that ensures the well-being of each child in ACS custody.
256. Federal and state law and professional standards require ACS to ensure that each child in ACS custody is placed in the most appropriate, least restrictive placement available. The abrupt and overwhelming change of being removed from his or her parents and placed into ACS custody can further traumatize a child. In the process of initial placement, children are removed, often abruptly, from familiar surroundings and lose everything known and comforting. Research has shown that change of this magnitude has a detrimental effect on brain and neurological function and other negative physiological effects.5 Accordingly, foster placements should be based on an assessment of the individual child’s needs and should promote stability and continuity by placing children with relatives, keeping children in their communities and schools, and keeping siblings together whenever possible.
5 This is one reason why children, especially very young children, often regress in their development and behaviors (e.g., toilet training, talking, etc.) after being removed from their parents. Separation from family, and the resulting attachment disruption, may intensify these negative physiological effects and is particularly devastating for younger children.
84

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 88 of 129
257. Instead, ACS further harms Plaintiff Children by putting them in inappropriate foster placements ill-equipped to meet their needs, which results in far too many children being shuffled from foster placement to foster placement:
a. In December 2011, ACS published data stating that 14% of children then in ACS custody had experienced more than six transfers while in foster care; an additional 16% had been shuffled from between three and five placements.
b. More recently, in July 2015, the Public Advocate published a report, finding that 26% of the foster children surveyed had experienced five or more transfers while in ACS custody.
258. Being shuffled from foster placement to foster placement negatively affects a child’s well-being. Children may be dropped off at a new place with no explanation for where they are going and why. This degree of turbulence can lead to emotional trauma and attachment disorders, and causes children to lose all sense of stability and security. Frequent moves may result in children losing contact with siblings, other family members, friends and adults in their community who may have been involved in their lives.
259. Multiple placements can also cause educational interruptions and compromise the child’s ability to finish school. Federal statutory law and reasonable professional standards require ACS to make reasonable efforts to keep children in the same school whenever possible.
260. As a result, for too many children in ACS custody, moving foster placements means changing schools, losing teachers and friends. In 2009, Children’s Rights, a national advocacy organization for abused and neglected children, ACS and the Legal Aid Society Juvenile Rights Practice conducted a study of children in New York City’s foster care system
85

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 89 of 129
(referred to herein as “The Long Road Home Study”).6 The Long Road Home Study found that 30% of children studied had experienced at least one school transfer within the past year and that children who had experienced more than one placement move in a one-year period were significantly more likely to have experienced a school transfer as well.
261. The failure to provide educational stability—like the failure to provide placement stability—further damages children in ACS custody. School is often the one place where children who are being abused or neglected at home feel safe, so changing schools can be traumatic. Research has also shown that children in foster care have lower standardized test scores, poorer academic performance and higher rates of grade retention, absenteeism, tardiness, truancy and dropout than their peers. According to data from the New York City Department of Education, foster youth in 8th grade score significantly lower than their peers in English and math.
262. Federal and state law also require ACS to ensure that all children in its legal custody receive the necessary services to ensure their well-being. This includes adequate medical, dental and mental health assessments and follow-up care; educational assessments and services; independent living services; substance abuse treatment; or family planning services, as needed.
263. However, ACS fails to ensure that all children in its custody are provided with these essential services to ensure their well-being:
a. New York City fails to meet the national standard for providing adequate medical, dental and mental health care. In the 2009 CFSR, for example,
6 The results of this study were published in a November 2009 report entitled “The Long Road Home: A Study of Children Stranded in New York City Foster Care”.
86

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 90 of 129
the federal government determined that only 73% of children in New York City received adequate services to meet their physical and mental health needs—well below the national benchmark of 95%. b. The Long Road Home Study found that ACS failed to ensure the provision of necessary mental health services for a substantial number of children in its custody—16% of children studied who needed a mental health assessment, 19% of children studied who needed individual therapy and 11% of children studied who needed psychotropic medication had not received those critical mental health services within the past year. The study also found that many children who needed the B2H Medicaid waiver program did not receive it because caseworkers failed to make timely referrals or because there were not enough slots in the program.
264. These services are critical to the well-being of children in ACS custody, who are particularly vulnerable to irreparable physical, psychological and emotional damage from ACS’s failure to provide necessary services. Children in foster care custody often have experienced severe and chronic trauma, including physical or sexual abuse, neglect and domestic or community violence, as well as other stressors such as extreme poverty or parental substance abuse. Research has shown that children exposed to repeated traumatic stress or pervasive neglect, including children removed from their home due to abuse or neglect, manifest increased physical, psychological and emotional problems later in life. Being placed in and left to languish in foster care without a permanent home or family further compounds these problems.
265. According to the National Child Traumatic Stress Network, exposure to trauma derails development in children of all ages. Young children (five and younger) may experience
87

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 91 of 129
sensitivity to noise, avoidance of contact, heightened startle response, confusion about what is dangerous and who to go to for protection, and fear of being separated from familiar people and places. School-aged children (ages six to 12) may exhibit emotional swings, learning problems, specific anxieties and fears, attention seeking behavior and reversion to younger behaviors. Adolescents (13 to 21) may have difficulty imagining or planning for the future, over- or underestimate danger, display inappropriate aggression, and engage in reckless and/or self-destructive behaviors.
266. Accordingly, it is critical that all children in ACS custody are properly assessed and receive necessary services as soon as possible to facilitate their recovery from the trauma they already have experienced. However, ACS fails to ensure that all children in its custody are provided with these critical services within a reasonable period of time.
267. ACS also fails to ensure that the quality of services being provided to Plaintiff Children is consistent with professional standards. Upon information and belief, many Contract Agencies do not directly provide services; instead, they refer foster children to other service providers with which the City contracts. However, upon information and belief, the City Defendants do not exercise adequate and meaningful oversight over these service providers. Upon information and belief, most mental health services provided to children in ACS custody are ineffective and of poor quality, but ACS continues to renew contracts with these substandard service providers while the few quality service providers have lengthy waiting lists.
268. ACS’s failure to provide Plaintiff Children with appropriate foster care placements consistent with professional standards and services to ensure their physical, psychological and emotional well-being is a direct result of Defendants’ long-standing and welldocumented actions and inactions and Defendants’ failure to remedy structural and systemic
88

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 92 of 129
deficiencies that have plagued New York City’s foster care system for years. These failures substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the risk of harm to Plaintiff Children.
II. DEFENDANTS HAVE FAILED TO REMEDY THE SYSTEMIC DEFICIENCIES PLAGUING NEW YORK CITY’S CHILD WELFARE SYSTEM 269. The harms described in ¶¶ 235–68 are a direct result of Defendants’ long-standing
and well-documented actions and inactions and Defendants’ failure to remedy structural and systemic deficiencies that have plagued New York City’s foster care system for years, including:
a. the City Defendants’ failure to exercise adequate and meaningful oversight over the Contract Agencies to which ACS has delegated the dayto-day care of, and case planning responsibility for, Plaintiff Children to ensure foster care services are provided consistent with federal and state law and minimum professional standards;
b. ACS’s failure to ensure that Contract Agency caseworkers are assigned caseloads and receive appropriate training consistent with professional standards;
c. ACS’s failure to provide a system for making foster placements consistent with federal and state law and minimum professional standards;
d. ACS’s failure to ensure case and service plans are developed and implemented consistent with federal and state law and minimum professional standards; and
e. ACS’s failure to take all necessary and available action to ensure timely adjudication of family court proceedings involving children in ACS
89

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 93 of 129
custody consistent with federal and state law and minimum professional standards.
These failures substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the harm, risk of harm and violations of rights suffered by Plaintiff Children.
A. City Defendants Fail To Exercise Adequate and Meaningful Oversight over Contract Agencies.
270. By contract, ACS delegates its responsibility to provide children in its custody with foster care services to Contract Agencies. However, ACS at all times maintains legal custody of and legal responsibility for all children in foster care in New York City. ACS thus has an obligation to Plaintiff Children to ensure that Contract Agencies are providing foster care services consistent with all applicable law and professional standards. ACS fails to do so.
271. Instead, ACS does not meaningfully supervise Contract Agencies or hold them accountable for underperformance. As a result, ACS shirks its legal obligations to Plaintiff Children while the City pays millions of dollars to Contract Agencies for the provision of foster care services without ensuring that those services are adequately provided to Plaintiff Children.
272. Under the Agreements, ACS is expressly required to supervise, monitor, audit and review the activities of the Contract Agencies. Currently, ACS conducts an annual evaluation, called “Scorecard”, of each Contract Agency to evaluate process, practice and outcome indicators in safety, permanency and well-being. According to ACS’s 2014 Scorecard Methodology, the Scorecard evaluation involves reviewing a combination of case-specific and aggregate data. Each Contract Agency then receives a letter grade (from A to F) indicating its performance for safety, for permanency and for well-being.
90

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 94 of 129
273. The Scorecard evaluations are flawed and ineffective for at least the following reasons:
a. ACS fails to measure several key performance metrics. For example, ACS has failed to develop Scorecard measures to evaluate whether Contract Agencies are successfully engaging in concurrent planning and whether Contract Agencies are making efforts to recruit non-kinship foster parents and adoptive parents.
b. Upon information and belief, the results of the Scorecard evaluations do not accurately reflect each Contract Agency’s performance in providing foster care services to children in ACS custody.
c. ACS’s performance standards are simply too low—upon information and belief, the majority of Contract Agencies receive “passing” grades even though New York City has one of the worst foster care systems in the nation.
274. ACS also fails to hold Contract Agencies accountable for underperformance on the Scorecard evaluations. According to ACS’s 2014 Scorecard Methodology, ACS’s Agency Program Assistance team (“APA”) analyzes the Scorecard data to identify areas of strength and weakness for each Contract Agency and works collaboratively with each Contract Agency and with ACS to improve performance. APA sets benchmarks throughout the year for each Contract Agency; however these benchmarks are relative and set by taking into account the Contract Agency’s current performance, ACS standards and system-wide performance.
275. When performance is “considerably or persistently poor”, APA can use “accountability mechanisms” in order to drive performance. However, ACS does not adequately
91

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 95 of 129
use its accountability mechanisms to ensure appropriate performance of the Contract Agencies. ACS’s failure to make Scorecard data publicly available further decreases accountability.
276. As a direct result of ACS’s failure to meaningfully oversee the Contract Agencies, Plaintiff Children suffer irreparable harm because there simply are no consequences for the failure to protect them from physical, psychological and emotional harm; the failure to enable them to be safely returned to their parents or, if that were not possible within a reasonable period of time, to place them in permanent homes; and the failure to provide them with appropriate foster placements and necessary services to ensure their well-being.
B. Defendants Fail To Ensure an Adequately Staffed and Appropriately Trained Child Welfare Workforce.
277. No foster care system can effectively perform its basic functions absent a welltrained, experienced and adequately staffed workforce. In New York City, ACS has delegated its obligation to care for the children in state custody to Contract Agencies, who in turn employ the caseworkers that directly interact with children in foster care and their families. However, ACS fails to ensure that these caseworkers are adequately trained, supervised and staffed, consistent with professional standards.
1. Defendants Fail To Ensure Caseworkers Are Adequately Trained and Supervised.
278. Caseworkers must be fluent in governing policy and procedure and familiar with current best practices. Consistent with professional standards, a foster care system should require pre-service training, which must be completed before caseworkers can carry an active caseload, and mandatory annual in-service training designed to refresh caseworkers in basic policy and procedure and to teach advances in policy and in the field. In addition, it is critical to ensure appropriate supervision.
92

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 96 of 129
279. ACS fails to ensure that Contract Agency caseworkers receive adequate training or supervision. In 2009, the Long Road Home Study, which was performed in conjunction with ACS, found that a substantial proportion of caseworkers had not received any training before being given responsibility for a caseload of foster children. That same study also found that the quality of caseworker supervision at Contract Agencies was questionable.
2. Caseworkers Carry Unmanageable Caseloads. 280. Child welfare research has shown that high caseworker caseloads negatively impact children in foster care. Caseworkers with high caseloads have less time to interact with children, families and service providers and provide meaningful and appropriate case plans, necessary services, and timely casework and decision-making. It is therefore critical that caseworkers have manageable caseloads. 281. However, in New York City, ACS fails to ensure that all Contract Agency caseworkers carry caseloads consistent with professional standards. 282. The Child Welfare League of America (“CWLA”), a coalition of private and public agencies that develops child welfare policies and promotes sound child welfare practice, has established nationally recognized standards for caseworker caseloads. The standards governing foster care caseworkers limit caseloads to between 12 and 15 children per worker. The Council on Accreditation (“COA”), an accrediting body that partners with human service organizations to improve child welfare service delivery outcomes, recommends that caseloads for foster care caseworkers be limited to between eight and 15 children per worker, depending on the needs of the children. 283. Upon information and belief, ACS fails to ensure that Contract Agencies comply with these caseload standards, and many caseworkers’ caseloads in New York City exceed this
93

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 97 of 129
standard by a wide margin. The Long Road Home Study found that caseworker caseloads exceed recommended sizes. Similarly, at a briefing in January 2013, a member of ACS’s senior management under the previous administration stated that caseloads could range from 16 to 24 children, noting that this was far too high.
284. Excessive caseloads overburden caseworkers and prevent them from performing casework consistent with federal and state law and professional standards.
285. High caseloads also contribute to burnout and turnover among caseworkers. Research has shown that Contract Agency caseworker turnover is associated with children experiencing multiple placements, receiving fewer services, staying in foster care longer and failing to achieve permanency. When a case changes hands from caseworker to caseworker, relationships are severed and valuable information is lost. ACS does not publish system-wide data regarding foster care caseworker turnover; upon information and belief, ACS does not collect such data. In 2006, the Council of Family and Child Caring Agencies reported Contract Agency caseworker turnover rates of 40%. In 2009, the Long Road Home Study reported that caseworker turnover is a major barrier to permanency. Upon information and belief, high foster care caseworker turnover rates persist.
3. Defendants Fail To Ensure Regular Caseworker Visits to Children in Foster Homes or Congregate Care.
286. Caseworkers must have regular face-to-face contact with children in foster care, parents, and foster parents or child care workers. The primary purpose of these contacts is to ensure the safety and well-being of the children, to engage families in planning for their children, to assess the strengths and needs of all family members and caregivers, and to address the needs of all family members and caregivers in order to move children out of foster care and into permanent homes.
94

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 98 of 129
287. COA recommends that caseworkers meet separately with children, parents and foster parents at least once a month. ACS policy requires a minimum of monthly contact between caseworkers and children in foster care.
288. However, ACS fails to ensure that caseworkers are making sufficient contacts with children, parents and foster parents to ensure the safety and well-being of children in ACS custody. The Long Road Home Study, which was prepared in conjunction with ACS in 2009, found that caseworkers did not maintain adequate contact with children, parents and foster parents.
289. Moreover, upon information and belief, ACS fails to ensure that Contract Agencies make unannounced visits to ensure that children in ACS custody are protected from maltreatment. Upon information and belief, ACS also fails to ensure that visits with children take place privately and out of the presence of the child’s caretaker.
290. ACS’s failure to ensure that Contract Agency caseworkers maintain contact with key persons to ensure the safety and well-being of children in its care substantially departs from reasonable professional standards and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
291. As a direct result of ACS’s failure to ensure that caseworkers maintain regular contact with children, parents and foster parents, Plaintiff Children frequently suffer harm because their assigned caseworkers are unable to meaningfully assess the child’s safety and wellbeing and to provide necessary services to place the child into a permanent home. ACS’s failure to ensure that Contract Agency caseworkers make sufficient contacts with the children in ACS custody substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the risk of harm to Plaintiff Children.
95

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 99 of 129
*** 292. As a direct result of Defendants’ failure to ensure that the first point of contact for all Plaintiff Children—the Contract Agency caseworkers—are trained, supervised, staffed and performing visits consistent with professional standards, Plaintiff Children frequently suffer harm because their assigned caseworkers are ill-prepared to make the judgments necessary to promote their safety, permanency and well-being, unable to meaningfully address their complex and varied needs and unable to meaningfully assess the child’s safety and well-being or provide necessary services. ACS’s failures as described above substantially depart from accepted professional judgment and demonstrate a deliberate indifference to the harm, risk of harm and violations of legal rights suffered by Plaintiff Children.
C. Defendants’ Processes for Making Foster Placements in New York City Are Deficient.
293. When ACS removes a child from his or her parents, ACS is obligated to provide a safe temporary home for that child until he or she is discharged from foster care. Federal and state law require ACS to ensure that each child in ACS custody is placed in the most appropriate, least restrictive placement available. Professional standards dictate that foster placements be based on an assessment of the individual child’s needs and promote stability and continuity by placing children with relatives, keeping children in their communities and schools, and keeping siblings together whenever possible.
294. In order to meet the needs of a large and diverse foster care population, ACS must ensure the recruitment and maintenance of a sufficient number of homes to accommodate the number of children currently in custody and additional children as they enter the system on an ongoing basis. In addition, a sufficient array of placement types must be available to meet children’s needs. The types of placements will range from “basic” foster homes that provide
96

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 100 of 129
ordinary parental care to children without heightened therapeutic needs, to more “therapeutic”, “intensive” or “specialized” foster homes that receive additional training and support for the care of more high-needs children, to more highly structured or “restrictive” group homes and residential programs suitable for children who cannot yet thrive in a family setting. In addition, placements may vary in terms of their likelihood to develop into permanent or adoptive homes if the child cannot safely be returned to his parents.
295. Placement in a stable and appropriate foster home can be critical to a child’s chances of securing a permanent home because a child who cannot safely be returned to his parent is most likely to be adopted by kin or a foster parent.
296. However, ACS fails to ensure that Contract Agencies recruit and retain an adequate number and variety of placements to meet Plaintiff Children’s needs. In particular, ACS fails to ensure that a sufficient number of pre-adoptive homes are recruited and retained, particularly for children who cannot safely be returned to their parents but who are “hard to place” into adoptive homes, such as adolescents, children with health or behavioral problems and large sibling groups.
297. Pursuant to the Agreements, the City pays each Contract Agency per diem payments for every day a child is in foster care, thus incentivizing Contract Agencies to keep children in care longer. As a result, Contract Agencies may not pursue adoptive resources with urgency or offer sufficient resources for persons who are interested in adopting foster children. Upon information and belief, Contract Agencies often tell individuals interested in adoption that they are “in the business of fostering, not adoption”—even though ACS has delegated to them both the care of children who safely can be returned to their parents and the care of children in need of adoption and waiting desperately for a permanent home and family to call their own.
97

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 101 of 129
298. The City and State Defendants have long been aware of, and have failed to fix, this systemic failure. Indeed, Defendant Carrión recently admitted that ACS “really need[s] to do a better job of publicizing . . . we need to do more to get the message out that these children are waiting and that they need adoptive homes.” However, the City Defendants have recently taken actions that will make these problems worse—by defunding the only two voluntary service providers whose sole mission was to find adoptive homes for older and “hard to place” children in foster care. During a March 2015 City Council meeting, Commissioner Carrión stated that the defunding of these two agencies “wasn’t a great loss”.
299. ACS also lacks an effective system for appropriately matching Plaintiff Children with the most appropriate foster placement to meet their needs. Upon information and belief, ACS does not assess a child’s safety, health or permanency needs prior to placing the child with a Contract Agency. Instead, ACS makes a blind placement decision based on which Contract Agency has availability at the time the placement is sought. Upon information and belief, the Contract Agency does not assess a child’s safety, health or permanency needs prior to placing the child into a foster placement. Instead, the Contract Agency makes the determination based on which foster placement has availability at the time the placement is sought.
300. Put simply, ACS fails to ensure that the children in its custody who cannot, or who are least likely to, return home safely are placed in pre-adoptive foster placements that are more likely to turn into permanent adoptive homes. Instead, ACS places the child with whatever Contract Agency has availability at the time the placement is sought.
301. Moreover, ACS also fails to ensure that children who are unlikely to be safely returned to their parents and who will not be adopted by kin or their current foster parent are quickly placed with Contract Agencies capable of individually recruiting adoptive parents.
98

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 102 of 129
302. As a direct result of these failures, Plaintiff Children frequently are harmed because they are not placed in the best foster home to meet their safety and permanency needs. ACS’s failure to recruit and retain a sufficient number of foster homes and to match children in its custody with foster placements that meet their needs substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the harm, risk of harm and violations of rights suffered by Plaintiff Children.
D. ACS Fails To Ensure that Meaningful Case Plans and Service Plans for Foster Children Are Developed and Implemented.
303. Federal and state law require caseworkers to establish a permanency goal and to develop a strategic plan for achieving that goal. This includes establishing a permanency goal, engaging in concurrent planning, developing and implementing service plans to promote reunification, and recruiting and securing an alternative permanent home for children who cannot be safely returned home.
304. According to OCFS’s own standards, caseworkers in New York State should establish a child’s permanency goal within 30 days of the child entering the foster care system. However, by OCFS’s own measure, nearly one-third of children entering foster care for the first time do not have a documented permanency goal within 90 days of admission.
305. Federal and state law and policy require caseworkers in New York City to conduct concurrent permanency planning as soon as a child is taken into foster care, so that there is a primary permanency plan and a secondary permanency plan that caseworkers pursue simultaneously. ACS fails to ensure that concurrent planning occurs. Upon information and belief, caseworkers do not begin to engage in non-reunification permanency planning until long after it becomes clear that the child’s parents will not be able to safely care for the child.
99

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 103 of 129
306. As a direct result of these systemic deficiencies, New York City’s foster children stay in the system for far too long. This is no secret to ACS. ACS has been aware of rampant case planning deficiencies in New York City for years.
a. In the 2002 and 2009 CFSRs, the federal government concluded that appropriate permanency goals were not established in a timely manner for children in foster care in New York State.
b. Similarly, the Long Road Home Study, which was prepared in conjunction with ACS in 2009, found that children in ACS custody spent a long time in foster care before their permanency goal was changed to adoption, alternative permanency options were not adequately explored and concurrent planning was not sufficiently documented.
307. As a direct result of Defendants’ failures (as described in this section) to ensure the provision of meaningful and appropriate case plans, Plaintiff Children frequently grow up in ACS custody without a permanent home or family to call their own. ACS’s failure to ensure that meaningful and appropriate case planning occurs substantially departs from accepted professional judgment and demonstrates a deliberate indifference to the harms, risk of harms, and violations of legal rights being suffered by Plaintiff Children.
1. ACS Fails To Ensure Services Are Provided To Sustain Family Ties and Support Reunification When It Is Safely Possible.
308. After a child is removed from home due to abuse or neglect, federal and state law and policy dictate that the preferred course of action is to reunify the child with his or her parents. Reunification, however, is only appropriate where the reason for removal has been addressed through appropriate services to the family so that the child’s safety is assured.
100

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 104 of 129
However, ACS fails to ensure the provision of meaningful case planning and effective services to support reunification:
a. ACS often fails to ensure that Contract Agencies involve parents in case planning and service planning for their children. In the 2009 CFSR, the federal government found that ACS had adequately assured family involvement in case and services planning in only 45% of cases—well below the national standard of 95%.
b. ACS fails to ensure that the reunification services required are adequately tailored to ensure that the child in ACS custody can safely be returned home. Often the services Contract Agencies require and refer parents to do not correspond to the conduct that led to the removal of the child from the home in the first place. For example, most parents are required to attend standardized anger management or parenting classes even though neither of those classes offer the particularized support that a parent may need. Upon information and belief, Contract Agencies do not evaluate services to determine if services better suited to a parent’s needs are available or, if they do, it is not until after the parent has completed standardized classes. Upon information and belief, Family Court judges are often reluctant to return children to their parents where the issue giving rise to the initial removal has not been addressed.
c. ACS fails to ensure that required services are evidence-based and represent recent innovations in the field. For example, required mental
101

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 105 of 129
health services often do not incorporate trauma-based practice or cognitive behavioral therapy. d. ACS fails to ensure that required services accomplish the purpose they purport to—ensuring children in ACS custody can be returned home within a reasonable period of time. Upon information and belief, neither ACS nor the Contract Agencies perform regular evaluations of what services correspond to successful reunifications. e. ACS fails to ensure efficiency and coordination among multiple service providers, fails to ensure that required services are not duplicative of one another and fails to consider whether it is logistically possible for parents to comply with service plans (while also potentially searching for housing or employment, or working)—all of which delays children in foster care being returned to their parents. f. ACS fails to ensure services are available to parents so that children in ACS custody can be returned home within a reasonable period of time. Contract Agencies frequently require parents to take a certain action or to obtain a certain service so that the child in foster care can return home, but that same parent is not provided with critical assistance in taking that action or obtaining that service. For example, many parents are required to obtain permanent housing before their children in ACS custody can be returned. However, ACS fails to provide assistance with completing applications for public housing or expediting those applications. When mental health services are required, parents find they have no access to
102

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 106 of 129
mental health services in their community or are unable to afford the appropriate services. g. ACS also fails to ensure alternative services are available to parents so that children in ACS custody can be returned home within a reasonable period of time. Upon information and belief, if suitable group classes do not exist, Contract Agencies do not seek out alternative arrangements, such as therapy or counseling, to meet a parent’s needs more quickly.
309. ACS’s failure to ensure that reunification services are appropriately tailored, effective and sufficiently available prevents or delays reunification, even though many parents could resume custody of their children if the proper services were provided consistent with federal and state law and professional standards.
310. These systemic failures have long been known to ACS. In 2003, the New York City Child Welfare Advisory Panel noted that ACS failed to ensure that parents knew how to get information about services or other issues, or whether or not someone from ACS or the Contract Agency was responsible for ensuring the service plan would be carried out and that services would be provided. The Long Road Home Study, which was conducted in 2009 in conjunction with ACS, found that substantial numbers of parents did not receive necessary reunification services due to both parents’ lack of participation and casework failures.
311. ACS has failed to address these problems and children in ACS custody have suffered as a direct result.
2. ACS Fails To Ensure Timely Adoptions. 312. When a child has been in foster care for 15 of the last 22 months, federal and state law require ACS to file a petition to terminate parental rights unless certain compelling
103

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 107 of 129
circumstances exist and are documented. ACS has delegated its responsibility to timely file TPR petitions to the Contract Agencies. However, ACS fails to ensure that TPR petitions are timely filed consistent with federal and state law.
313. Defendants are well aware of this failure. In December 2011, ACS reported that New York City was failing to meet federal and state law standards for the overwhelming majority of children in ACS custody. For FY 2010—the most recent 12-month period for which this data is available—ACS reported that 94.9% of children who had been in ACS custody for the past 18 months did not have a TPR petition filed.
314. ACS’s failure to file TPR petitions in accordance with the time periods set by federal and state law is not a new problem. In the 2002 CFSR, the federal government reported that in New York State, caseworker turnover, staffing shortages, transfer of cases and caseworkers’ lack of familiarity with cases slowed down the TPR process. In the 2002 CFSR Report, the federal government also reported that delays in Family Court, including “lengthy adjournments”, “w[ere] seen as the greatest barrier” to the timely termination of parental rights. In the 2009 CFSR, the federal government concluded that New York State met federal requirements regarding timely termination of parental rights in only 62% of cases reviewed—far less than the 90% required to meet the national standard—and was not consistent in documenting compelling reasons when a termination of parental rights petition was not filed. Upon information and belief, the CFSR results for New York State are heavily influenced by New York City’s child welfare system, which accounted for over 60% of children in foster care in New York State in both 2002 and 2009.
315. Once both parents’ rights have been either voluntarily surrendered or terminated, a child is considered “freed” or legally available to be adopted into a permanent home and
104

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 108 of 129
family. New York State regulations require that a child be freed for adoption within 12 months of his or her permanency goal changing to adoption.
316. However, ACS fails to ensure that children in its custody are freed for adoption within a reasonable time period. In New York City, it takes longer for a child in foster care to be freed for adoption than anywhere else in the country. Based on the most recent federal data available, it takes nearly two times longer to be freed for adoption in New York City than in the rest of New York State (42.2 months versus 22.1 months), and 2.5 times longer to be freed for adoption in New York City than in the rest of the nation (42.2 months versus 16.8 months).
317. ACS also fails to act on applications from potential adoptive families within the time periods set by state law.
318. When a foster parent or other person wants to adopt a child in foster care in New York City, he or she must submit an application. By state law, an adoption application must be acted upon within six months and such action must be sufficiently documented.
319. Then a potential adoptive parent must undergo an adoption study during which his or her fitness to be an adoptive parent is assessed. Completion of adoption studies are subject to strict timelines under state law. Priority for completion of an adoption study is determined by the characteristics of the child that the applicant seeks to adopt. Those who seek to adopt children with the age, racial and other characteristics of the highest proportion of children waiting to be adopted are given first priority. Second priority is given to those who seek to adopt photo-listed children. All other applicants are given third priority. For applicants with first priority, an adoption study should be offered within 30 days. An adoption study must be completed within four months of initiation, subject to appropriate documentation of an exception.
105

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 109 of 129
320. When a foster parent applies to adopt a child, the adoption study must be completed within two months of application when the child is legally free for adoption or within four months of application when the child is not legally free for adoption.
321. Pursuant to state law, ACS must place a child who has been legally freed for adoption in an adoptive home within six months, or document an appropriate exception. State law also requires that adoptions be finalized within 12 months of the child placement in an adoptive home.
322. Upon information and belief, ACS fails to ensure that Contract Agencies comply with the timelines set by state law for conducting adoption studies and acting on adoption applications.
323. Upon information and belief, ACS fails to ensure that applications to become an adoptive parent are acted upon within six months as required by state law.
324. Upon information and belief, ACS fails to ensure that Contract Agencies offer to complete adoption studies within six months.
325. Upon information and belief, ACS fails to ensure that Contract Agencies offer to initiate adoption studies for those with first priority within 30 days.
326. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within four months of beginning the study or that an exception is appropriately documented.
327. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within two months of an application by a foster parent to adopt a child who is legally freed for adoption.
106

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 110 of 129
328. Upon information and belief, ACS fails to ensure that Contract Agencies complete adoption studies within four months of an application by a foster parent to adopt a child who is not legally freed for adoption.
329. Upon information and belief, ACS fails to ensure that Contract Agencies place children who have been legally freed for adoption into adoptive homes within six months, or that an exception is appropriately documented.
330. ACS fails to ensure that children in its custody have finalized adoptions within 12 months of the child being placed in an adoptive home, as required by state law. In September 2012, ACS reported that 72% of children did not have finalized adoptions within 12 months of being placed in an adoptive home.7
331. Defendants’ failures to ensure that Contract Agencies process adoption applications, conduct adoption studies, place children in adoptive homes and finalize adoptions within the time periods set by state law further delays providing these children in ACS custody— who likely have already been in foster care for many months or even years—with a permanent home and family.
E. Defendants Fail To Ensure Timely Adjudication of Family Court Proceedings Involving Children in Foster Care.
332. Defendants’ failure to ensure that Family Court proceedings are adjudicated in a timely fashion consistent with state law contributes significantly to the length of time New York City children spend in foster care without permanent homes and families.
333. State law requires that a child who is placed into foster care have a permanency hearing within eight months of being placed into foster care and every six months thereafter.
7 517 of the 1,825 children (28%) in adoptive placements on March 31, 2011 were adopted within 12 months of being adoptively placed.
107

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 111 of 129
That hearing must be completed within 30 days. The purpose of permanency hearings is to monitor the child’s safety and well-being, the family’s progress, and efforts to return the child home or to find the child another permanent home. Upon information and belief, Defendants fail to ensure that all children in ACS custody receive timely permanency hearings as required by state law.
334. The Long Road Home Study, which was prepared in 2009 in conjunction with ACS, detailed the following findings with respect to delays in Family Court proceedings involving children in ACS custody:
a. The length of time between a child’s entry into foster care and the Family Court’s completion of the fact-finding and disposition hearings was extremely long for many children;
b. Many children in ACS custody do not receive timely permanency hearings as required by state law;
c. The most common reasons for permanency hearing delays were that the Contract Agency had not submitted the permanency hearing report on time, that the Family Court did not have sufficient time for the hearing, that Contract Agency caseworkers were not present, that the permanency hearing report did not sufficiently address the issues in the case, and that ACS caseworkers were not present; and
d. Termination of parental rights proceedings were extremely delayed for most children.
108

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 112 of 129
Additionally, the study noted that the number of adjournments and the length of time between
adjournments of all types of Family Court proceedings contribute to children’s lengthy stays in
foster care in New York City. The published study stated:
“[T]he Court gives ACS and the [Contract Agencies] many chances (and multiple hearing adjournments) to present evidence and provide necessary services to parents, even after they have been slow and negligent in doing so.”
Finally, the study found that a lack of accountability in Family Court proceedings contributes to
delays in placing children in ACS custody into permanent homes and families, stating:
“The Court’s decision-making is hampered by poor-quality casework by ACS and the [Contract Agencies]. The Court depends on ACS and the [Contract Agencies] to provide appropriate services to children and families and to inform the Court’s decision-making through assessments of the children’s progress toward permanency . . . [J]udges and referees expressed frustration with the quality of the agencies’ case practices – and the fact that many caseworkers seem to see their role as only documenting parents’ attendance at services rather than providing the Court with clinical assessments of parents’ progress. In addition . . . the parties infrequently make applications or motions to the Court for relief to address pressing issues and try to move cases forward.”
335. In 2010, the New York County Lawyers’ Association Task Force on the Family
Court released a report recognizing two causes for delay in Family Court: (1) a shortage of
Family Court judges and (2) a culture of delay. The Task Force made a number of
recommendations to minimize delay and enhance the effectiveness of litigation, including:
a. scheduling trials where a child has been removed within 45 days of the
first appearance;
b. requiring compliance with timely production and filing of documents, as
well as attendance at status and trial conferences;
c. scheduling times certain for trial conferences;
109

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 113 of 129
d. holding trials in block times on consecutive days; e. refraining from adjourning trials for more than 30 days, and then only for
good cause shown; and f. disciplining attorneys and other personnel who are unprepared, late or fail
to appear.
336. Defendants’ failure to ensure that ACS and Contract Agency attorneys and caseworkers are appropriately staffed with caseloads consistent with professional standards and given necessary support further contributes to delays in Family Court proceedings.
337. Upon information and belief, delays continue to plague the vast majority of Family Court proceedings involving children in ACS custody in New York City.
338. Defendants’ failures result in delays in Family Court proceedings involving children in ACS custody in New York City and include:
a. the State’s failure to ensure adequate judicial resources are devoted to Family Court in New York City;
b. the State’s failure to provide Family Court judges in New York City with sufficient resources, including referees or law clerks with social work experience;
c. Defendants’ failure to ensure that ACS and Contract Agency attorneys and caseworkers have caseloads consistent with professional standards;
d. ACS’s failure to ensure that attorneys and caseworkers appear at all Family Court proceedings prepared;
e. ACS’s failure to ensure that attorneys and caseworkers do not request adjournments absent good cause shown;
110

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 114 of 129
f. ACS’s failure to ensure that necessary paperwork is prepared in accordance with reasonable professional standards and submitted to the Family Court in a timely fashion; and
g. ACS’s failure to ensure that caseworkers are trained to give the Court detailed assessments of children and parents’ progress in accordance with reasonable professional standards.
339. A three- or six-month adjournment is a long time to a child in ACS custody who is struggling with the uncertainty and emotional harm of not knowing if or when he or she will be moved again and of not having a permanent home and family to call his or her own. Defendants have an obligation to ensure that all service providers, including caseworkers and attorneys, recognize the urgency of Family Court proceedings for Plaintiff Children, who are languishing in ACS custody.
340. As a direct result of Defendants’ failure to ensure that all reasonable efforts are made to ensure the timely adjudication of Family Court proceedings involving children in its custody, Plaintiff Children suffer harm by being forced to grow up in ACS custody rather than in a permanent home. Defendants’ failures substantially depart from reasonable professional standards and demonstrate a deliberate indifference to the harms, risk of harms and violations of legal rights suffered by Plaintiff Children.
111

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 115 of 129
CAUSES OF ACTION FIRST CAUSE OF ACTION (Substantive Due Process under the U.S. Constitution) (Asserted by the Named Plaintiff Children and Plaintiff Children against Defendants) 341. Each of the foregoing allegations is incorporated as if fully set forth herein. 342. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to provide reasonable care to and to protect from harm a child it has taken into its foster care custody. 343. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a policy, pattern, practice or custom that is inconsistent with the exercise of accepted professional judgment and amounts to deliberate indifference to the constitutionally protected liberty and privacy interests of all Named Plaintiff Children and Plaintiff Children. As a result, all Named Plaintiff Children and Plaintiff Children have been, and are at risk of being, deprived of substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution. 344. These substantive due process rights include, but are not limited to:
a. the right to freedom from maltreatment while in foster care; b. the right to protection from unnecessary intrusions into the child’s
emotional well-being while in government custody; c. the right to services necessary to prevent unreasonable and unnecessary
intrusions into the child’s emotional well-being while in government custody;
112

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 116 of 129
d. the right to conditions and duration of foster care reasonably related to the purpose of government custody;
e. the right to treatment and care consistent with the purpose and assumptions of government custody; and
f. the right not to be maintained in custody longer than is necessary to accomplish the purpose to be served by taking a child into government custody. SECOND CAUSE OF ACTION
(First, Ninth and Fourteenth Amendments to the U.S. Constitution) (Asserted by the Named Plaintiff Children and Plaintiff Children against Defendants)
345. Each of the foregoing allegations is incorporated as if fully set forth herein. 346. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a policy, pattern, practice or custom that is inconsistent with the exercise of professional judgment and amounts to deliberate indifference to Plaintiffs’ constitutional rights. As a result, all Named Plaintiff Children and Plaintiff Children have been, and are at risk of being, deprived of the right to a permanent home and family derived from the First Amendment right of association, the Ninth Amendment’s reservation of rights to the people and the Fourteenth Amendment’s substantive due process protections.
113

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 117 of 129
THIRD CAUSE OF ACTION (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq.) (Asserted by the Named Plaintiff Children, Plaintiff Children and the Public Advocate against the State Defendants and by the Named Plaintiff Children and Plaintiff Children
against the City Defendants) 347. Each of the foregoing allegations is incorporated as if fully set forth herein. 348. The foregoing actions and inactions of Defendants City of New York, ACS, Gladys Carrión, in her official capacity, State of New York, OCFS and Sheila J. Poole, in her official capacity, constitute a policy, pattern, practice or custom of depriving the Named Plaintiff Children and Plaintiff Children of the rights conferred upon them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, to:
a. placement in a foster placement that conforms to nationally recommended professional standards, 42 U.S.C. § 671(a)(10);
b. a written case plan that includes a plan to provide safe, appropriate and stable foster care placements, 42 U.S.C. §§ 671(a)(16), 675(1)(A);
c. a written case plan that ensures that the child receives safe and proper care while in foster care and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
d. a written case plan that ensures provision of services to parents, children and foster parents to facilitate reunification, or where that is not possible, the permanent placement of the child and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(B);
e. a written case plan, where appropriate, that ensures the location of an adoptive or other permanent home for the child and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(E);
114

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 118 of 129
f. a written case plan that ensures the educational stability of the child while in foster care and implementation of that plan, 42 U.S.C. §§ 671(a)(16), 675(1)(G);
g. a case review system in which each child has a case plan designed to achieve safe and appropriate foster care placements, 42 U.S.C. §§ 671(a)(16), 675(5)(A);
h. a case review system in which the status of the child is reviewed no less frequently than every six months by a court, or person responsible for case management, for purposes of determining the safety of the child, continuing necessity and appropriateness of the placement, extent of compliance with the permanency plan and projected date of permanency, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675(5)(C);
i. a case review system that ensures that for each child that has been in foster care for 15 of the most recent 22 months, the state files a petition to terminate the parental rights of the child’s parents and, concurrently identifies, recruits, processes, and approves a qualified family for an adoption, or documents compelling reason for determining that filing such a petition would not be in the best interests of the child, 42 U.S.C. §§ 671(a)(16), 675(5)(B), 675 (5)(E); and
j. receive quality services to protect each child’s safety and health, 42 U.S.C. § 671(a)(22).
349. As a direct result of the Defendants’ failure to comply with the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act
115

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 119 of 129
of 1997, the Office of the Public Advocate has been forced to expend resources investigating and responding to complaints. The Defendants’ continued failure to adhere to the provisions of the law will result in the expenditure of similar resources in the future.
FOURTH CAUSE OF ACTION (New York State Social Services Law) (Asserted by the Named Plaintiff Children and Plaintiff Children against the City
Defendants) 350. Each of the foregoing allegations is incorporated as if fully set forth herein. 351. The foregoing actions and inactions of Defendants City of New York, ACS and Gladys Carrión, in her official capacity, constitute a deprivation of rights conferred on the Named Plaintiff Children and Plaintiff Children by provisions of the New York State Social Services Law and regulations adopted thereto, including:
a. provision of various adoption services, such as evaluation of a child’s placement needs and pre-placement needs, recruitment of a home study for prospective adoptive parents, placement planning and supervision, as required under New York State Social Services Law § 372-b;
b. timely action on adoption applications and documentation of all action taken on such, as required under New York State Social Services Law § 372-e;
c. furnishing adoptive parent applicants with reasons for agency failure to act on applications and denial of applications, as required under New York State Social Services Law § 372-e;
d. termination of parental rights for children in foster care for 15 out of the most recent 22 months and, where applicable, appropriate documentation
116

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 120 of 129
of exceptions, as required under New York State Social Services Law § 384-b; e. timely completion of adoption home studies, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 421.14, 421.15 and 421.19; f. timely and complete preparation and amendment of the FASP, as required under New York State Social Services Law § 409-e and 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 428.6 and 428.7; g. placement in a foster placement that meets standards for continuity and appropriate level of placement, as required under 18 N.Y. Comp. R. & Regs. tit. 18, § 430.11; h. timely implementation of the FASP and timely occurrence and completion of FASP reviews, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12; i. timely initiation of proceedings to terminate parental rights, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 430.12 and 431.9; j. timely placement in adoptive homes, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12; and k. timely completion of adoptions of children who are legally free for adoption, as required under 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12.
117

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 121 of 129
FIFTH CAUSE OF ACTION (Common Law Contract)
(Asserted by the Named Plaintiff Children and Plaintiff Children against the City Defendants)
352. Each of the foregoing allegations is incorporated as if fully set forth herein. 353. The Agreements for the purchase of foster care services between ACS and the Contract Agencies constitute valid, binding and enforceable contracts.8 354. Under the terms of the Agreements, ACS pays hundreds of millions of dollars to Contract Agencies that agree to “provide comprehensive family foster care services as set forth in this Agreement, the Law, court orders and mandates, ACS Policies, the Fiscal Manual”9 and several appendices to each Agreement. Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 2.01(A) (General Requirements). 355. Under the terms of the Agreement—and by law—the management and supervisory staff of ACS, on behalf of the Commissioner of ACS, “has the ultimate responsibility for the protection and preservation of the welfare of each child receiving services”, and “has the ultimate authority for making all decisions relative to the welfare of such child”. Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 4.01(A) (Responsibility and Authority of ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client).
8 To the best of our information and belief, the Agreements, which are listed in Appendix A, were current as of November 2014 (see ¶ 177) and are still in force today. Attached hereto as Exhibit 1 is a copy of an excerpt of one such Agreement between ACS and a Contract Agency, which has been modified to include the relevant portion of the Agreement. The Agreements are substantively identical from Contract Agency to Contract Agency, with the exception of the contracting parties and the contract amount.
9 This language may differ to account for the type of foster placement services provided for in the Agreement but, in substance, the provisions are identical.
118

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 122 of 129
356. City Defendants have breached and failed to enforce the Agreements, which were intended for the benefit of the Named Plaintiff Children and Plaintiff Children.
357. The Agreements state that “ACS and the Contractor agree that the fundamental purpose of [the] Agreement is to provide the best available services, care and treatment to Foster Children who are entrusted to the Contractor’s care, and further to ensure that the health, welfare and fundamental rights of the Foster Children shall be the guiding principle for all decisions which affect their lives.” Agreement for the Purchase of Regular Family Foster Care Services Part II, Section 4.01(B) (Responsibility and Authority of ACS and Procedure for Final Decisions on Issues Related to Services Provided to the Client).
358. As a direct and causal result of City Defendants’ breach of the Agreements, the Named Plaintiff Children and Plaintiff Children have been harmed.
PRAYER FOR RELIEF WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action; b. Order that Plaintiff Children may maintain this action as a class action
pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure; c. Pursuant to Rule 57 of the Federal Rules of Civil Procedure, declare
unconstitutional and unlawful:
1. Defendants’ violation of Plaintiff Children’s right to be free from harm under the Fourteenth Amendment to the United States Constitution;
119

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 123 of 129
2. Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
3. Defendants’ violation of Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Action of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. § 670 et seq.;
4. City Defendants’ violation of Plaintiff Children’s rights under New York Social Services Law and regulations adopted thereto; and
5. City Defendants’ violation of Plaintiff Children’s rights under the Agreements with the Contract Agencies.
d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights, including:
1. Enjoin City Defendants from placing children with Contract Agencies that do not maintain caseloads for all workers providing direct supervision and planning for children that conform to accepted professional standards, as developed by either the COA and/or the CWLA, or a workload analysis conducted by ACS. Require that ACS independently and periodically verify that every Contract Agency meets and maintains the applicable caseload standards, and that its verification process and the results shall be public information.
120

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 124 of 129
2. Require City Defendants to develop a process for matching children with Contract Agencies that takes into account the child’s need for permanence, the child’s service needs, and the Agency’s demonstrated ability to provide timely permanence for children, and timely and necessary individualized services for children and families based on timelines set by ACS in accordance with federal and state law and accepted professional standards. Require that ACS independently and periodically verify that each Contract Agency meets and maintains the applicable standards set by ACS, and that its verification process and the results shall be public information.
3. Enjoin ACS from placing children in Contract Agencies that do not ensure that all workers receive training that OCFS and ACS shall approve and certify as meeting accepted professional training standards. Require that ACS independently and periodically verify that the approved training is being provided to all workers, and that its verification process and the results shall be public information.
4. Enjoin ACS from placing children in any Contract Agency unless at least 90% of the case plans for children currently placed with the Agency (a) meet federal requirements (as set forth in 42 U.S.C. §§ 671(a)(16), 675(1)) and accepted professional standards as set by COA and/or CWLA, (b) are created in a timely fashion pursuant to applicable regulations and (c) are implemented
121

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 125 of 129
consistent with professional standards. Require that ACS independently and periodically verify that each Contract Agency with which ACS places children meets such standards, and that its verification process and the results shall be public information. 5. Enjoin ACS from placing children with any Contract Agency unless the Agency has demonstrated, and ACS has ascertained, that it conducts permanency planning, including concurrent planning, that it has the resources to provide individualized and effective reunification services and that it has the resources to develop and implement individualized adoptive recruitment for children whose permanency goal is adoption. Require that, in conducting this assessment, ACS be guided by timelines to achieve permanency goals set by ACS in accordance with federal and state law and accepted professional standards. Require that ACS independently and periodically verify that each Contract Agency with which it places children shall meet these standards, and rank the agencies in their effectiveness in doing so. Require that their verification process and the results, including the Contract Agency rankings, shall be public information. 6. Require that ACS develop and fund post-permanency services of sufficient duration to provide all possible support for the successful reunification, guardianship or adoption of foster children.
122

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 126 of 129
7. Require that ACS ensure that its attorneys and attorneys employed by the Contract Agencies take all reasonable steps necessary (including not seeking adjournments except in extraordinary circumstances) to proceed to the adjudication and disposition in Article 10 proceedings within three months and, when a termination of parental rights process is necessary, to proceed to a disposition of that proceeding within four months of the petition being filed. Require that ACS collect and maintain detailed information on this, which shall be public record.
8. Require that City and State Defendants regularly collect and independently verify the information necessary to determine the Contract Agencies’ compliance with the provisions of the state statutes and regulations enumerated in paragraph 351 above and provide public reports of each Agency’s compliance with each of these requirements. Require that the Defendants require corrective action of any Contract Agency failing to achieve at least 75% compliance with these requirements for two continuous six-month periods, and shall terminate the contract of any Agency that fails to achieve at least 75% compliance for a two-year period.
9. Require that OCFS conduct annual case record reviews of a statistically significant sample of children in ACS custody to measure the degree to which children in ACS custody are receiving timely permanence, as required by state and federal law, and the
123

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 127 of 129
degree to which they are being maltreated in care; issue annual public reports on the findings of these case record reviews; and require corrective action when necessary. 10. The Court shall appoint a Special Master either with special expertise in the areas covered by the Remedial Order, or who shall appoint an Expert Panel to report to the Special Master, to determine whether the standards developed by Defendants comport with acceptable professional standards, and to monitor and report on Defendants’ compliance with their obligations as contained in the Court’s Order. Plaintiffs shall have the right to enforce the provisions of the Court Order entered pursuant to Federal Rule of Civil Procedure 65(d), and the Court shall have continuing jurisdiction to oversee compliance with that Order. e. Award Plaintiff Children the reasonable costs and expenses incurred in the prosecutions of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and the Federal Rules of Civil Procedure 23(e) and (h). f. Grant such other and further equitable relief as the Court deems just, necessary and proper to protect Plaintiff Children from further harm while in Defendant Carrión’s custody in foster care.
124

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 128 of 129

Dated: New York, NY December 28, 2015

Respectfully submitted,
by
Marcia Robinson Lowry
A Better Childhood, Inc. I 095 Hardscrabble Road Chappaqua, NY 10514 (844) 422-2425 mlowry@abetterchildhood.org
CRAVATH, S
Ju ie A. North J. Wesley Earnhardt
Nicole M. Peles
Worldwidc Plaza 825 Eighth Av~nu~ New York. NY 10019 (212) 474-1000 jnorthgcravath.com weamhardt@cravath.com npeles@cravath.com
Attorneys for Plaintiffs Elisa W., by her next friend, Elizabeth Barricelli; Alexandria R., by her next friend, Alison Max Rothschild; Thierry E., by his next friend, Amy Mulzer; Lucas T., Ximena T., Jose T.C. and Valentina T.C., by their next friend, Rachel Friedman; Ayanna J., by her next friend, Meyghan McCrea; Olivia and Ana-Maria R., by their next friend, Dawn Cardi; XavionM., by his next friend, MichaelB. Mush/in; Dameon C., by his next friend, Reverend Doctor Gwendolyn Hadley-Hall; Tyrone M., by his next friend, Bishop Lillian Robinson-Wiltshire; Brittney W., by her next friend, Liza Camellerie; Mikayla G., by her next friend, Amy Mulzer; Myls J. and Malik M., by their next friend, Elizabeth Hendrix; and Emmanuel S. and Matthew V, by their next friend, Samuel D. Perry, individually and on behalfofa class ofall others similarly situated

125

Case 1:15-cv-05273-LTS-HBP Document 8961 Filed 12/289/15 Page 129 of 129
Public Advocate for the City of New York I Centre Street, 15th Floor New York, NY 10007 (212) 669-2175 jlevy@pubadvocate.nyc.org mthomas-jensen@pubadvocate.nyc.org
Attorneysfor PlaintiffLetitia James, Public Advocate for the City ofNew York
126

W et al v. The City Of New York , et al, Docket No. 1:15-cv-05273 (S.D.N.Y. Jul 08, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Southern District of New York; United States District Court for the Southern District of New York
Civil Rights - Other[440]
1:15-cv-05273

© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 130

 
 Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 1 of 7
~CSDCSDNY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ELISA W., by her next friend, Elizabeth Barricelli, eta!.,

I· iL)OLECCUTMREON~ITCALLY FILED

I - ,:

;)OC#:
\':T n:

rn·

-~~- 2)>\\p

.

- - - . L. - - - - - - - - - - - - - - ~--

Plaintiffs,

15 Civ. 5273 (LTS) (HBP)

-against-

THE CITY OF NEW YORK, eta!., Defendants.

Upon consideration of Named Plaintiff Children's Motion for Preliminary Approval of Settlement, made under Rule 23 of the Federal Rules of Civil Procedure, and upon the Court's review ofthe Consent Decree, IT IS HEREBY ORDERED AS FOLLOWS:
1. The Court preliminarily approves the Consent Decree as being fair, reasonable and adequate, subject to the rights of Class Members 1 to challenge the fairness, reasonableness or adequacy of the Settlement Agreement and to show cause, if any exists, why a final judgment dismissing this case against State Defendants and all released claims should not be entered following a fairness hearing.
2. The Class is conditionally certified for purposes of providing notice pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).

1 As used herein, "Class Members" refers to "all children who are now or will be in the foster care custody of the Commissioner of [New York City's Administration for Children's Services] during the duration of this Consent Decree". (Consent Decree~ 5.2.)

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 2 of 7

i.

Plaintiff Children satisfy the numerosity requirement because there are

approximately 9,9572 children in foster care custody in the class-. See

Toney-Dick v. Doar, No. 12 Civ. 9162 (KBF) 2013 WL 5295221, at *4

(S.D.N.Y. Sept. I6, 2013) (citing Canso!. Rail Corp. v. Town ofHyde

Park, 47 F.3d 473, 483 (2d Cir. 1995) ("numerosity is presumed at a level

of 40 members")).

11. Named Plaintiff Children satisfy the commonality requirement because "the class members have suffered the same injury", Wal-Mart Stores Inc., v. Dukes, I3 I S. Ct. 2541, 25 5 I (20 11 )(internal quotation marks and citation omitted), and there are common questions of law and fact among the class members.

111. Named Plaintiff Children satisfy the typicality requirement because each class member's claims arc traceable to the same course of conduct by the Commissioner of OCFS, which has resulted in the deprivation of their constitutional and statutory rights. See Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d. Cir. 1997) (holding that typicality is found when each class member's claim arises from the same conduct and "each class member makes similar legal arguments to prove the defendant's liability" (internal quotation marks omitted)).

2 According to ACS, as of December 2015, the most recent date for which there IS available data, there were 9,957 children in foster care. Data/Policy, NYC Administration for Children's Services, http://www1.nyc.gov/site/acs/about/data-policy.page (last visited March 31, 2016).
2

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 3 of 7

iv. Named Plaintiff Children "will fairly and adequately protect the interests of the class" because the interests of the Named Plaintiff Children are not antagonistic to the rest ofthe class. See Marisol A., 126 F.3d at 378.

v. Named Plaintiff Children satisfy the requirements of Federal Rule of Civil Procedure 23(b)(2) because the Commissioner ofOCFS has "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole". Fed. R. Civ. P. 23(b)(2). See Marisol A., I 26 F.3d at 375 (deprivation of constitutional and statutory rights to children in foster care or at risk of entering foster care).

3. Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, the Court appoints as class counsel, Marcia Robinson Lowry of A Better Childhood, Inc. and attorneys from Cravath, Swaine & Moore LLP, including Julie A. North and J. Wesley Earnhardt, to represent the Class Members for purposes of the settlement.

4. The Court hereby approves the substance, form and manner of the Notice of Proposed Class Action Settlement (the "Notice"), attached hereto as Exhibit A.

i.

The Commissioner ofOCFS will direct voluntary agencies that operate

residential facilities in New York State that provide foster care and

services to children in ACS's custody to post the Notice, in both English

and Spanish, in such residential programs.

3

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 4 of 7
11. The Commissioner of OCFS will direct voluntary agencies providing foster care services to children in ACS's custody to post the Notice, in both English and Spanish, in areas of the offices usually frequented by foster children.
111. The Commissioner of OCFS will direct ACS and the voluntary agencies providing foster care services to children in ACS's custody to post the Notice, in both English and Spanish, on their respective websites.
1v. The Commissioner ofOCFS will post the Notice, in both English and Spanish, on its website.
v. The Commissioner ofOCFS will request that family courts in New York City post the Notice, in both English and Spanish, in areas of the court usually frequented by foster children.
vi. The Commissioner of OCFS will request that Legal Information for Families Today post the Notice, in both English and Spanish, on its website.
vn. The Commissioner of OCFS will mail the Notice, in both English and Spanish, to the following providers of legal services and request that the Notice be shared with all attorneys representing children in ACS custody: Legal Aid Society; Lawyers for Children; the Children's Law Center; and the Office of Attorneys for Children.
4

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 5 of 7
viii. The Commissioner of OCFS will mail the Notice, in both English and Spanish, to the following providers of legal services and request that the Notice be shared with all attorneys representing the parents of children in ACS custody: Brooklyn Defender Services; Bronx Defenders; Center for Family Representation; the Assigned Counsel Panel; Federal Defenders of New York; Legal Services NYC (Brooklyn Legal Services, Bronx Legal Services, Manhattan Legal Services, Queens Legal Services and Staten Island Legal Services); New York Legal Assistance Group; MFY Legal Services; Advocates for Children; New York Lawyers for the Public Interest; Urban Justice Center; Northern Manhattan Improvement Corporation; West Side SRO Law Project; Make the Road by Walking; MinKwon Community Action Center; Community Service Society; Legal Action Center; Lenox Hill Neighborhood House; The Door, A Center of Alternatives, Inc.; the Citizen's Committee for Children; the Clerk of Court in the Southern District ofNew York with a request that the Notice be distributed to the Clerk for the Criminal Justice Act Panel for the Southern District of New York; and the Clerk of Court in the Eastern District of New York with a request that the Notice be distributed to the Processor for the Criminal Justice Act Panel for the Eastern District of New York.
IX. The Commissioner of OCFS will publish the Notice, in both English and Spanish, twice within a three-week period in each of the following
5

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 6 of 7

publications: The New York Post, The New York Daily News and EI Diario as soon as practicable after the Court schedules a fairness hearing.

x. Counsel for Plaintiff Children will set up a dedicated telephone number whereby interested class members can obtain more information about the settlement.

5. The Court enters the below schedule for approval of the settlement.

Event Commissioner of OCFS to provide notice of the proposed Consent Decree to the appropriate federal and state officials as required by the Class Action Fairness Act.
Deadline for Publication of Notice to Class Members
Deadline for Class members to comment upon or object to the proposed Consent Decree
Deadline for Filing of Motion for Final Approval of Settlement

Time for Compliance
M~ 2- '2016
Ten (1 0) days after entry of the Preliminary Approval Order.
M-~ (3 '2016
Twenty-one (21) days after entry ofthe Preliminary Approval Order.
Ju~ 1.1 '2016
Forty-five (45) days prior to the Fairness Hearing.
J~l~ '2016
Twenty-one (2 I) days prior to the Fairness Hearing.

6

Case 1:15-cv-05273-LTS-HBP Document 154 Filed 04/22/16 Page 7 of 7

Deadline for Opposition to Motion for Final Approval of Settlement, or for Any Supplemental Objections to the proposed Consent Decree
Deadline for Reply in Support of Motion for Final Approval, or Responses to Any Supplemental Objections to the proposed Consent Decree

Ju~,z,z.. , 2016
Fourteen (14) days prior to the Fairness Hearing.
J~M '2016
Seven (7) days prior to the Fairness Hearing.

Fairness Hearing

w A~r+ ~ ,2016 to·. 30 A1'1
Nity (9ftj days after deadline for Commissioner of OCFS to provide notice of the proposed Consent Decree to the appropriate federal and state officials as required by the Class Action Fairness Act.

Dated: New York, NY

April '2:l-, 2016

~or Swain

United States District Judge

't''(lL

7

 
 Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x ELISA W., by her next friend, Elizabeth Barricelli, et al.

Plaintiffs,

No. 15 CV 5273-LTS-HBP

-against-

THE CITY OF NEW YORK, et al.,

Defendants. -------------------------------------------------------x

MEMORANDUM OPINION & ORDER

On July 8, 2015, the named plaintiff children (“Named Plaintiff Children”) and

New York City Public Advocate Letitia James (“James” and, together with the Named Plaintiff

Children, “Plaintiffs”) filed the instant action, on behalf of themselves and a purported class of

plaintiffs, asserting claims under the First, Ninth, and Fourteenth Amendments to the United

States Constitution, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et

seq. (the “AACWA”) (pursuant to 42 U.S.C. § 1983), New York State Social Services Law and

common law contract law against the City of New York (the “City”), the New York City

Administration for Children’s Services (“ACS”), ACS Commissioner Gladys Carrion (“Carrion”

and, together with the City and ACS, the “City Defendants”),1 the New York State Office of

Children and Family Services (“OCFS”) and OCFS Acting Commissioner Sheila J. Poole

(“Poole” and, together with OCFS, the “State Defendants”),2 stemming from alleged deficiencies

1

Carrion is sued in her official capacity as ACS Commissioner only. (See Docket

Entry Nos. 1 (“Complaint”) and 91 (“Amended Complaint”).)

2

Poole is sued in her official capacity as OCFS Acting Commissioner only. (See

Complaint; Amended Complaint.)

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

1

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 2 of 21
in New York City’s foster care system. (See generally Complaint; Amended Complaint.) Plaintiffs filed the Amended Complaint on December 29, 2015. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
Plaintiffs now move, pursuant to Federal Rule of Civil Procedure 23, for final approval of the proposed Consent Decree agreed to between the Plaintiffs and the State Defendants in this action. (See Docket Entry No. 150-1 (the “Consent Decree”).) Final approval is opposed by the City Defendants, as well as by two separate groups of intervenors: the Parent Advocates (comprised of The Bronx Defenders, The Brooklyn Defender Service, The Center for Family Representation, and Neighborhood Defender Service of Harlem) and the Children’s Advocates (comprised of Lawyers for Children, The Children’s Law Center of New York, and The Legal Aid Society).3 A fairness hearing regarding the proposed settlement was held on August 5, 2016. Two parents of children in foster care filed written objections and were given the opportunity to speak at the hearing as well; one parent appeared and spoke.
The Court has carefully considered the parties’ voluminous submissions, as well as the arguments proffered at the August 5, 2016, fairness hearing. For the reasons set forth below, Plaintiffs’ motion for final approval of the settlement is denied, and the conditional certification of the Plaintiff class is vacated.

3

On July 12, 2016, the Court granted both the Parent Advocates’ and the

Children’s Advocates’ unopposed motions to intervene in this action for the

limited purpose of objecting to the proposed settlement. (See Docket Entry No.

216.)

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

2

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 3 of 21

BACKGROUND

The Court assumes the parties’ familiarity with the underlying facts and provides

only a brief procedural background.

Plaintiffs filed the initial Complaint in this action on July 8, 2015, asserting

various causes of action against Defendants stemming from alleged deficiencies in the New

York City foster care system. (See generally Complaint.)

One day later, on July 9, 2015, the State Defendants contacted the Plaintiffs

seeking to discuss a potential settlement. (Docket Entry No. 225, Declaration of Julie A. North

in Support of the Motion for Final Approval (“North Decl.”), at ¶ 11.) Plaintiffs and the State

Defendants thereafter discussed a settlement by phone, and then in three days of in-person

meetings. (North Decl., at ¶¶ 12-13.) An agreement in principle was reached on July 20, 2015,

twelve days after the Complaint was filed. (North Decl., at ¶ 13.) The parties continued

negotiating the specifics of a settlement through September 2015. (Id.)

On October 22, 2015, Plaintiffs and State Defendants filed the proposed Consent

Decree with the Court, purporting to settle Plaintiffs’ claims against the State Defendants. (See

generally Docket Entry No. 50.) Plaintiffs represent that the Consent Decree was negotiated

over the course of several months by counsel for the Named Plaintiff Children and the Public

Advocate, based on the Public Advocate’s investigation of the child welfare system in New York

City and the State Defendants’ understanding of extensive public reporting on the state of the

New York City foster care system. (See Docket Entry No. 224, Memorandum of Law in

Support of the Motion for Final Approval of Settlement (“Pl. Memo”), at p. 19.) Plaintiffs

further represent that the Consent Decree is the “product of months of robust arm’s length

negotiations” between the Plaintiffs and State Defendants and that, over the course of these

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

3

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 4 of 21

several months, the parties exchanged numerous drafts of the proposed agreement and engaged

in multiple conferences, both telephonic and in person, before filing the proposed Consent

Decree. (See Docket Entry No. 226, Declaration of Marcia Robinson Lowry in Support of the

Motion for Final Approval (“Lowry Decl.”), at ¶ 4; see also North Decl., at ¶¶ 11-15.)

After the proposed Consent Decree was filed, the Court entered an order directing

the parties to commence motion practice, pursuant to Federal Rule of Civil Procedure 23(e),

requesting Court approval of the Consent Decree. (Docket Entry No. 51.)

In early December 2015, before the commencement of the motion practice, the

City Defendants informed Plaintiffs of their intention to file a motion to dismiss the Complaint.

(See Docket Entry No. 80.) In response, Plaintiffs proposed to amend the Complaint to address

the issues the City Defendants indicated they planned to raise (see id.), and filed an Amended

Complaint on December 29, 2015. (Docket Entry No. 91.)

The Amended Complaint alleges, on behalf of a purported class of approximately

10,295 children in the New York City foster care system, that the system: (i) fails to exercise

sufficient oversight over contract agencies to which the City has delegated care of the purported

class of children to ensure that they comply with federal and state law, ACS policies, and the

terms of contracts with the City; (ii) fails to ensure that caseworkers are assigned manageable

caseloads or receive appropriate training and supervision; (iii) fails to develop and implement a

process for placing children into foster placements that matches children’s needs; (iv) fails to

ensure that adequate case plans are timely developed and implemented; (v) fails to ensure that

children in foster care are timely placed in stable permanent homes; and (vi) fails to take

reasonable steps to ensure timely adjudication of family court proceedings involving children in

ACS custody. (See generally Amended Complaint.) As against the State Defendants, the

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

4

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 5 of 21

Named Plaintiff Children, on behalf of a putative class, assert claims for violation of substantive

due process under the Fourteenth Amendment, violation of a right to permanent home and

family derived from the First, Ninth, and Fourteenth Amendments, and violations of the

AACWA. Plaintiff James joins the Named Plaintiff Children in asserting the AACWA claim

against the State Defendants. As against the City Defendants, the Named Plaintiff Children, on

behalf of a putative class, allege the same claims brought against the State Defendants as well as

claims under the New York State Social Services Law and for breach of contract based on the

contracts between the City and the contract agencies described above. (See generally Complaint

¶¶ 341-358.)

On January 20, 2016, the Plaintiffs and State Defendants filed their joint motion

for preliminary approval of the settlement (Docket Entry No. 95), which was opposed by the

City Defendants (Docket Entry No. 106). On April 5, 2016, the Court held a hearing on

Plaintiffs’ and State Defendants’ joint motion for preliminary approval. Following several

Court-directed adjustments to the Consent Decree and settlement notice materials, the Court

entered an order on April 22, 2016, preliminarily approving the settlement and conditionally

certifying a settlement class consisting of all children who are, or will be, in foster care custody

of the Commissioner of ACS during the duration of the Consent Decree. (Docket Entry No.

154.) That order set a May 13, 2016, deadline for publication of notice to settlement class

members; a June 21, 2016, deadline for objections to the Consent Decree; and a July 15, 2016,

deadline for filing of a motion for final approval of the settlement. (See id.) The order also

scheduled a fairness hearing for August 5, 2016, at 10:30 a.m., for final evaluation of the

Consent Decree. (Id.)

Plaintiffs filed their motion for final approval of the settlement on July 15, 2016.

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

5

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 6 of 21

(Docket Entry No. 223.) In response, the Court has received: the Parent Advocates’ objections to the proposed settlement from (Docket Entry No. 221); the Parent Advocates’ opposition to final approval of the proposed settlement (Docket Entry No. 234); the Children’s Advocates’ objections to the proposed settlement (Docket Entry No. 187); the City Defendants’ opposition to final approval of the proposed settlement (Docket Entry No. 231); and letters of objection from two parents of putative class members.

The Proposed Consent Decree

The proposed Consent Decree purports to secure relief from the State Defendants

for the putative class primarily through the creation of two oversight positions: a Monitor (see

Consent Decree § 6) and a Research Expert (see Consent Decree § 7). The Monitor, who would

be retained by the Commissioner of OCFS, with input from Plaintiff Children’s counsel and the

Public Advocate, would be tasked with reviewing and evaluating unspecified alleged systemic

issues affecting New York City’s foster care system that reflect widespread and ongoing

noncompliance with federal and state statutes, regulations and policies. (See Consent Decree

§§ 6.1 & 6.2.) The Commissioner of OCFS would develop the criteria by which the Monitor

reviews and evaluates systemic issues within the foster care system, and the Monitor would

report his or her findings and make recommendations regarding the safety, permanency and

well-being of foster children in New York City. (See Consent Decree § 6.2.) The Monitor

would be granted necessary resources, as well as access to records and data on foster care

programs as determined by the Commissioner of OCFS, and would prepare quarterly reports

outlining his or her activities, findings and recommendations for improvements to the City’s

foster care system. (See Consent Decree § 6.4.) These quarterly reports would be reviewed by

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

6

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 7 of 21

the Commissioner of OCFS in conjunction with ACS in order to determine what actions may be

needed to address issues raised in the reports, and ACS would thereafter be directed to prepare

corrective action plans for the Commissioner’s approval. (See Consent Decree § 6.5.) The

Monitor is proposed to serve an initial term of three years, and is to be reviewed at that time by

the parties, and further reviewed every two years thereafter. (See Consent Decree § 6.6)

The Research Expert is to be retained by ACS at the direction and approval of the

Commissioner of OCFS, with input from counsel for the Plaintiff Children and the Public

Advocate. (See Consent Decree §§ 7.1 & 7.2.) The Research Expert would be charged with

conducting reviews of case records of children in the custody of ACS in order to determine

compliance with relevant federal and state laws, regulations and policies related to the well-

being of children. (See Consent Decree § 7.3.) The Research Expert’s proposed research

protocols and methodology (which are as yet entirely unspecified) would be subject to approval

by the Commissioner of OCFS, who would consider recommended changes from Plaintiff

Children’s counsel and the Public Advocate. (See id.) The Research Expert would be

responsible for producing two types of reports: (1) reports on individual cases where voluntary

agencies and/or ACS have violated federal or state statutes, regulations or policies, in which the

Research Expert would recommend corrective action and conduct follow-up reviews; and (2) bi-

annual aggregate reports summarizing the major results of all case records reviewed over the

preceding 6-month period. (See Consent Decree §§ 7.4 & 7.5.) The Research Expert is to serve

an initial term of two years, and is to be reviewed at that time by the parties, and further

reviewed every two years thereafter. (See Consent Decree § 7.6.)

In consideration for this relief, the Consent Decree includes a broad claim release,

which provides that the Plaintiff Children and Public Advocate will withdraw with prejudice all

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

7

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 8 of 21

claims and remedies sought in Amended Complaint, and release any claims relating to or arising from any claims raised in Amended Complaint, as against the State Defendants. (See Consent Decree § 10.1.) The Consent Decree also contains a covenant not to sue as against the State Defendants, which precludes all suits for injunctive or declaratory relief for the life of the agreement – seven years – based on facts or causes of action set out in the Amended Complaint. (See Consent Decree § 10.2.4)

Objections to the Proposed Consent Decree Both the Parent Advocate Intervenors and the Children’s Advocate Intervenors
have submitted objections to the proposed Consent Decree, highlighting numerous perceived deficiencies in the settlement terms. The concerns of both groups of intervenors generally overlap. The intervenors argue that the relief provided in the Consent Decree is inadequate in that: the roles and objectives of the Research Expert and Monitor are vague and ill-defined; the remedies conferred by the Consent Decree do not address the alleged civil rights violations identified in the Amended Complaint; the additional oversight provided by the Monitor and Research Expert is duplicative of the work of OCFS’s New York City Regional Office (“NYCRO”); the settlement precludes the possibility of litigation to reform harmful practices carried out by the State Defendants; and the parents of children in foster care may be precluded from participation in important decision-making with respect to their children’s placement. (See

4

The covenant not to sue does not cover individual actions against the State

Defendants for damages or injunctive relief, or class-wide or systemic claims

against the State Defendants that do not relate factually or legally to the claims

raised in the Amended Complaint against the State Defendants. (See Consent

Decree § 10.3.) It is difficult to conceive of a systemic claim regarding foster

care that would not relate factually or legally to the claims raised in the Amended

Complaint.

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

8

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 9 of 21
generally Docket Entry Nos. 187 & 221.) The intervenors also take issue with the fact that the Consent Decree was agreed to prior to the exchange of discovery in this case. Perhaps most notably, the intervenors protest the seven-year duration of the Consent Decree and covenant not to sue, arguing that the length of the agreement is unprecedented and unjustified, that the terms of the release and covenant are overly broad and that the covenant will strip the Plaintiffs of a crucial tool for pursuing systemic change for an extraordinary period of time. (See generally id.)
The Court has also received objections from two non-class member parents of children who are in foster care. One argues that: counsel for the Named Plaintiff Children have not kept the children or their parents sufficiently informed about this case; the lawsuit does not adequately address the treatment of children in foster care system, including the high level of abuse that these children allegedly endure; and that the lawsuit is a front for the passage of “shady money.” This parent also objects to the fact that the suit does not seek any monetary relief.5 The other parental objection submitted asserts generally that the parent was not kept abreast of developments in the suit; that ACS keeps children in foster care for excessive periods of time in order to make money; and that she has been retaliated against in response to her advocacy for changes in the City’s foster care system. (See Docket Entry No. 255.) Both nonclass member parent objectors were permitted an opportunity to speak at the August 5, 2016, fairness hearing. One parent spoke regarding issues relating to the particulars of her son’s foster care case, her opposition to the manner in which this lawsuit has been structured and conducted, and systemic issues. The other parent was not present at the hearing.

5

This parent’s objection was filed under seal as authorized by an Order of this

Court. (Docket entry no. 257.)

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

9

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 10 of 21

DISCUSSION Legal Standard for Settlement Approval
Pursuant to Federal Rule of Civil Procedure 23(e), “[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court’s approval.” See Fed. R. Civ. P. 23(e). The Court may only approve a settlement upon finding that its terms are “fair, reasonable, and adequate.” See id. This determination falls squarely within the trial court’s discretion. See Kelen v. World Fin. Network Nat. Bank, 302 F.R.D. 56, 68 (S.D.N.Y. 2014) (“It is within a trial court's discretion to approve a proposed class action settlement.”); Maywalt v. Paker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) (“The ultimate responsibility to ensure that the interests of class members are not subordinated to the interests of either the class representatives or class counsel rests with the district court.”).
A district court examining a proposed class action settlement must examine “both the settlement’s terms and the negotiating process leading to the settlement.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005). A court must first “review the negotiating process leading up to the settlement for procedural fairness, to ensure that the settlement resulted from an arm’s-length, good faith negotiation between experienced and skilled litigators.” Charron v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013). A presumption of procedural fairness attaches to settlements that are negotiated at arm’s length by experienced counsel. See, e.g., In re Austrian and German Holocaust Litig., 80 F. Supp. 2d 164, 173-74 (S.D.N.Y. 2000). Once the court has determined whether the settlement was negotiated in a procedurally fair manner, it moves on to evaluate the settlement’s substantive terms in light of the nine factors set out by the Second Circuit in City of Detroit v. Grinnell Corporation, 495 F.2d 448 (2d Cir.

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

10

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 11 of 21
1974).6 See Charron, 731 F.3d at 247. Courts evaluating class action settlements must remain “mindful of the ‘strong
judicial policy in favor of settlements, particularly in the class action context.’” Wal-Mart, 396 F.3d at 116 (quoting In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998)). Moreover, the adequacy of a settlement should not be judged “in comparison with the possible recovery in the best of all possible worlds.” Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650, 665 (S.D.N.Y. 2015). Rather, a court need only determine that a settlement falls within a “range of reasonableness.” Id. at 666. “Due to the presumption in favor of settlement, [a]bsent fraud or collusion, courts should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.” Peoples v. Annucci, No. 11 CV 2694-SAS, 2016 WL 1464613, at *10 (S.D.N.Y. Apr. 14, 2016) (internal quotation marks and citation omitted). Nevertheless, while a district court must “stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case,” it must also “eschew any rubber stamp approval in favor of an independent evaluation” of the settlement’s fairness. See Grinnell, 495 F.2d at 463.

6

The nine Grinnell factors are: (1) the complexity, expense and likely duration of

the litigation; (2) the reaction of the class to the settlement; (3) the stage of the

proceedings and the amount of discovery completed; (4) the risks of establishing

liability; (5) the risks of establishing damages; (6) the risks of maintaining the

class action through the trial; (7) the ability of the defendants to withstand a

greater judgment; (8) the range of reasonableness of the settlement fund in light

of the best possible recovery; and (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the attendant risks of

litigation. See Grinnell, 495 F.2d at 463.

Where, as here, the settlement calls solely for injunctive relief, the final three

Grinnell factors are not at issue, and the fifth factor is evaluated in light of the

likelihood of establishing remedies rather than damages. See Ingles v. Toro, 438

F. Supp. 2d 203, 211 (S.D.N.Y. 2006) (Chin, J.); Marisol A. v. Giuliani, 185

F.R.D. 152, 162 (S.D.N.Y.1999).

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

11

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 12 of 21

Procedural Fairness As previously noted, courts must evaluate the procedural fairness of the
negotiation of the settlement in conjunction with reviewing the agreement’s substantive terms. Charron, 731 F.3d at 247. In assessing procedural fairness, “a proposed settlement is presumed fair, reasonable, and adequate if it culminates from “arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Blessing v. Sirius XM Radio Inc., 570 F. App’x 1 (2d Cir. 2012) (emphasis added); see also Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169, 178 (S.D.N.Y. 2014).
Plaintiffs assert that, because the Consent Decree was negotiated at arm’s length by experienced counsel, it is entitled to a presumption of fairness. See In re Austrian and German Bank Holocaust Litig., 80 F. Supp. 2d at 173-74. Plaintiffs proffer that both Julie North and Marcia Robinson Lowry are experienced and capable litigators in the areas of class action and children’s rights litigation, respectively. (North Decl., at ¶ 9; Lowry Decl., at ¶ 2.) Plaintiffs further represent that the proposed Consent Decree is the product of months of “robust arm’s length negotiations” and that, over the course of several weeks beginning in July 2015, counsel for the Named Plaintiff Children, the Public Advocate and the State Defendants engaged in a series of meetings, calls and debates concerning a potential settlement. (Lowry Decl., at ¶ 4; North Decl., at ¶¶ 11-15.) Nevertheless, the record before the Court makes it clear that the contours of the settlement were agreed to in principle a mere week after the Complaint was filed, and that the parties have not engaged in “meaningful discovery” beyond a purported investigation into the state of New York City’s child welfare system and an examination of city, state and federal public reports detailing the failings of the child welfare system in New York

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

12

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 13 of 21

City.7 In particular, and as Plaintiffs’ counsel acknowledged at the fairness hearing, there has been no investigation focused on the State Defendants’ alleged non-compliance with legal provisions governing its role in the child welfare system. Plaintiffs do not demonstrate how their purported pre-litigation investigation connected meaningfully to the Named Plaintiff Children or to the specific allegations regarding State agency violations that are contained within the Amended Complaint. In the absence of any “meaningful discovery”8 into the merits of the claims asserted against the settling defendants by the Named Plaintiff Children, the settlement is not entitled to a presumption of procedural fairness.
The cases cited by Plaintiffs for the proposition that courts routinely approve settlements in which limited or no formal discovery has been conducted are inapposite. The court in Handschu v. Special Servs. Div., 605 F. Supp. 1384 (S.D.N.Y. 1985) did recognize that discovery need not be “formal discovery under the Federal Rules of Civil Procedure,” but further noted that counsel must be able to demonstrate access to “sufficient information regarding the facts of their case.” Id. at 1394 (emphasis added). While Plaintiffs purport to have assessed publicly available information regarding the New York City foster care system, they have made no showing that they investigated the particular circumstances of the Named Plaintiff Children,

7

Plaintiffs proffer that the facts in the Amended Complaint were well known to the

State Defendants in light of their responsibility in overseeing ACS. However, as

the City Defendants point out, State Defendants did not seek input from ACS in

contextualizing these facts, nor do the State Defendants appear to admit that these

facts establish violations of federal law.

8

As the Children’s Advocates point out, the paucity of the record here is

particularly apparent when compared with that in another class action targeting

New York City’s child welfare system, Marisol A. v. Giuliani, where “[e]xtensive

discovery had been conducted, including over 200 deposition days, over 100,000

pages of documents provided by the City and State, and the exchange of extensive

expert reports.” 185 F.R.D. at 163.

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

13

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 14 of 21

the State’s compliance with the Constitution and federal and state law, or the allegations of

abuse and systemic deficiencies in the Amended Complaint. In In re Nissan

Radiator/Transmission Cooler Litigation, No. 10CV7493-VB, 2013 WL 4080946 (S.D.N.Y.

May 30, 2013), the court noted that “[the] plaintiffs conducted an investigation prior to

commencing the action, retained experts, and engaged in confirmatory discovery in support of

the proposed settlement.” Id. at *5. That level of discovery clearly exceeds the efforts Plaintiffs

represent they have undertaken here. And in Van Oss v. New York, No. 10CV7524-SAS, 2012

WL 2550959 (S.D.N.Y. July 2, 2012), the court recognized that “although there ha[d] been no

formal discovery, plaintiffs’ counsel ha[d] done an adequate factual investigation to be

thoroughly apprised of the merits of the case.” Id. at *1. Here, however, while Plaintiffs assert

that they have investigated the general state of affairs of the New York City foster care system,

they have failed to proffer anything indicative of an investigation into the merits of the Named

Plaintiff Children’s – or the putative class members’ – claims against the State Defendants.

The Children’s Advocates, Parents’ Advocates and City Defendants all point to

the thin evidentiary record in this case as a factor undermining the settlement’s procedural

fairness, arguing persuasively that the Plaintiffs and State Defendants could not possibly have

developed a proper appreciation for the strengths and weaknesses of the plaintiff children’s

claims against the State Defendants – and, in turn, the propriety of the proposed remedies

– before entering into the settlement. See, e.g., In re General Motors Corp. Pick-Up Truck Fuel

Tank Prod. Liability Litig., 55 F.3d 768, 814 (3d Cir. 1995) (“The inchoate stage of case

development reduces our confidence that the proceedings had advanced to the point that counsel

could fairly, safely, and appropriately decide to settle the action.”). Although none of the parties

opposing settlement have proffered affirmative evidence indicating collusive activity, the near-

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

14

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 15 of 21

total abandonment of the settling parties’ obligation to assess the merits of the Named Plaintiff Children’s claims leads the Court to conclude that the Consent Decree is not entitled to a presumption of procedural fairness, and that the proponents have failed to establish that it was developed under conditions that were procedurally fair to the putative class.

Application of the Grinnell Factors

1. Complexity, Expense, and Duration of the Litigation

This case fits squarely within the common understanding that class actions are

“inherently complex” and therefore benefit from settlement, which “avoids the costs, delays, and

multitude of other problems” associated with complex litigation. In re Austrian and German

Bank Holocaust Litig., 80 F. Supp. 2d at 174. However, here, the Plaintiffs’ agreement will

terminate this litigation only as to the State Defendants, and the litigation will remain ongoing as

to the City Defendants. Plaintiffs characterize this settlement as the first of two steps, and

recognize that there will be a continuing need to litigate against the City Defendants. (See Pl.

Memo at 4.) Plaintiffs assert that actively pursuing this litigation against both sets of defendants

would be more complex and expensive, but many of the examples of costs that Plaintiffs claim

would be mitigated by the settlement – fact discovery, expert discovery, briefing, and

presentation of evidence as to both the 19 Named Plaintiff Children and the broader class of

thousands of children – will be required in order to effectively continue this litigation against the

City Defendants. As such, this factor is at best neutral with regards to the Consent Decree.

2. Reaction of the Class to the Proposed Settlement

The “reaction of the class to the settlement” is one of the most significant factors

courts consider when weighing the fairness of a proposed settlement. See Grinnell, 495 F.2d at

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

15

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 16 of 21

463. No objections by class members to the Consent Decree have been received. This fact is

neither surprising nor particularly significant here, because the class is composed entirely of

minor children who are in the foster care system, individuals who are both uniquely vulnerable

and, because of their age and dependence on others, generally ill-suited to appreciate the stakes

of litigation involving their interests and to be effective advocates on their own behalf. Such

factors are particularly significant where, as here, the proposed settlement is with defendants

who are not directly involved in the individual plaintiffs’ day to day custody issues and would

have no immediate impact on the individual plaintiffs’ circumstances. The Court concludes that

the objections to the Consent Decree by the Children’s Advocates and the Parent Advocates are

significant for purposes of this factor of the Grinnell analysis, as these organizations are well

suited to advocate on behalf of many of those whose interests would be affected by the Consent

Decree.

The response by the intervenor organizations is starkly negative. Both argue that

the Consent Decree has no provisions to provide meaningful, concrete benefits to the class; that

the Consent Decree is entirely vague about the roles, responsibilities, and authority of the

Monitor and Research Expert; and that the Consent Decree’s seven-year term is an

unprecedented waiver that would significantly stymie future efforts at reforming the foster care

system in New York. As discussed in detail below, the Court finds many of the intervenors’

arguments persuasive.

First, the intervenors argue that the Consent Decree does not provide concrete

benefits to the class. Plaintiffs walk an unusual line in defending the fact that the Consent

Decree calls only for the creation of two temporary oversight roles and itself provides no

substantive changes to the foster care system. Although Plaintiffs recognize that the State has

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

16

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 17 of 21

ultimate authority over the foster care system, they repeatedly characterize the State’s role as one

of oversight, and argue that the Consent Decree will strengthen the State’s oversight capacity.

Plaintiff’s argument is, however, undermined by its own premise: if the State-level oversight

roles are to be meaningful at all, the State must be able to compel ACS to make operational

changes; if the State has this power, describing its role as merely one of oversight is a

mischaracterization. By contrast, prior settlements with OCFS, like the one in Marisol A.,

contained significant and detailed requirements.

Even if the Court were to conclude that the Monitor and Research Expert

structure contemplated by the Consent Decree were adequate in theory, the wholesale lack of

specificity within the Consent Decree as to the goals, objectives, and responsibilities of these

two new officials raises significant questions as to the reasonableness of the settlement. See

Martens v. Smith Barney, Inc., 181 F.R.D. 243, 269 (S.D.N.Y. 1998) (noting that the Court

cannot “declare its duty to evaluate the settlement complete before the parties more meaningfully

clarify what it does”). The absence of specificity with respect to problems to be studied and

goals to be achieved is particularly striking given the extent to which the Complaint identifies

numerous alleged systemic problems. The Consent Decree leaves it to the Monitor and Research

Expert to recommend areas of attention and goals to the Commissioner of the OCFS, and gives

the OCFS final say over what problems will be recognized at all and what, if anything, is to be

done about them. The covenant not to sue provisions of the Consent Decree would insulate the

OCFS from any systemic challenge to its actions across a broad swath of foster care and

adoption issues for seven years. The Plaintiffs assert that the Consent Decree has specific

provisions about how the goals and objectives of the Monitor and Research Expert will be

defined, but this procedural specificity is no substitute for concrete commitments as to issues to

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

17

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 18 of 21

be addressed and remedial actions to be taken, in the absence of which the Court’s ability to

determine whether the creation of these offices constitutes adequate compensation for the release

and protection from future litigation is limited at best.

Finally, the intervenors argue that the seven-year covenant not to sue is

unprecedented in its duration. Plaintiffs have proffered no example of a similarly long waiver;

each of their examples of consent decrees whose ultimate term was similarly lengthy involved a

significantly shorter term that was extended by order of the overseeing court. None of those

courts approved a seven-year fixed term of release. Such a lengthy term, especially where the

covenant would bar any systemic claims similar to the sweeping allegations raised by Plaintiffs

in their Complaint, would be questionable even if the consideration provided by the settlement

were clearly and effectively addressed to identified problems. On the current record, where the

only undertakings by the settling defendants are to hire unspecified individuals to identify as yet

unspecified problems in another agency and make recommendations that the released and

protected parties are not bound to follow, the Court concludes that the intervenors’ concerns are

well founded.

The Court therefore concludes that the reaction of the class weighs heavily

against approval of the proposed Consent Decree.

3. Stage of the Proceedings and Discovery Completed

As discussed above in relation to procedural fairness, the record before the Court

indicates that this settlement was sought and negotiated at an extremely early stage in the

proceedings – before discovery had even commenced, let alone before significant discovery had

been exchanged. The State Defendants reached out to Plaintiffs’ counsel regarding settlement

only one day after the Complaint was filed in this action. (North Decl., at ¶¶ 10-11.) A

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

18

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 19 of 21

settlement was discussed over the following week, with an agreement in principle reached

twelve days after the Complaint was filed. (North Decl., at ¶¶ 10-13.) In a case of this

complexity – with a 111-page Complaint asserting five causes of action under the Constitution

and various statutes – resolution of all issues within twelve days (even if negotiation of the

precise language of that resolution took longer) is difficult, if not impossible, to square with a

conclusion that both parties fully appreciated the strengths and weaknesses of their litigation

positions prior to reaching a settlement. See In re Austrian and German Bank Holocaust Litig.,

80 F. Supp. 2d at 173 (“The parties have less information on the relative strengths and

weaknesses of claims when a settlement is arrived at early in the life of a case. Therefore,

members of the settlement class and the Court may be hindered in their ability to determine the

fairness of the settlement.”). The stage of the litigation at which settlement was reached weighs

against approval of the proposed Consent Decree.

Similarly, the record indicates that discovery was not exchanged between the

settling parties prior to settlement. Although Plaintiffs’ counsel represent that they spent

considerable time investigating the facts underlying the Complaint prior to filing that document,

there is no indication that they participated in the kind of “sufficiently adversarial” pretrial

discovery that would demonstrate that the Plaintiffs attempted “to ferret out facts helpful to the

prosecution of the suit.” Id. at 176 (quoting Martens, 181 F.R.D. at 263.)

Accordingly, the Court concludes that this factor weighs against approval of the

proposed Consent Decree.

4. Risks of Establishing Liability and Damages, and Maintaining the Class

The parties have discussed the remaining Grinnell factors in combination, and the

Court adopts that grouping for ease of analysis. When considering the fifth factor, the court may

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

19

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 20 of 21

consider how the relief granted by the settlement compares to the scope of relief potentially

available after trial. Cf. Ingles, 438 F. Supp. 2d at 214 (approving settlement where the court

found that it would be “difficult to imagine that the Court would have imposed, following trial,

significantly more extensive and detailed relief”). Here, given the State Defendants’ admitted

power to both oversee and direct action by the New York City foster care authorities, the

absence of specificity as to issues or corrective actions in the Consent Decree suggests strongly

that more specific and robust remedies would be feasible were Plaintiffs to prevail at trial.

Plaintiffs highlight generally the uncertainty of litigation and the possibility that

they will not prevail either on a class certification motion or at trial. The intervenors and the

City Defendants do not meaningfully contest this point, but argue that these factors do not

overcome the significant problems with the settlement process and the Consent Decree itself.

Plaintiffs would still, in any event, be required to establish liability and the propriety of class

action proceedings as against the City Defendants. Thus, although the risks of proceeding

against two groups of defendants is greater than proceeding against only one, the Court

concludes that this factor does not weigh strongly either for or against approval of the settlement.

Summary

As discussed above, the Consent Decree is not entitled to a presumption of

fairness. The Grinnell factors generally weigh against approval of the settlement, or are

relatively neutral. The failure of the Consent Decree to identify concrete issues, much less

remedial measures and goals; the proponents’ failure to demonstrate that the parties had the

requisite understanding of the facts and the strengths and weaknesses of the Plaintiffs’ claims of

legal noncompliance by the State; and the extraordinary length of time for which the parties

propose to bar further systemic litigation all render the Consent Decree patently unfair and

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

20

Case 1:15-cv-05273-LTS-HBP Document 259 Filed 08/12/16 Page 21 of 21

unreasonable as a settlement of Plaintiffs’ claims against the State Defendants. The motion for final approval of the Consent Decree is therefore denied and the
conditional certification of the Plaintiff class is vacated.9

CONCLUSION

Plaintiffs’ motion for approval of the proposed Consent Decree is denied and the

conditional certification of the Plaintiff class is vacated. This Memorandum Opinion and Order

resolves Docket Entry No. 223.

A pretrial conference in this matter will be held on October 13, 2016, at 2:00 p.m.

The parties must submit an updated joint preliminary pre-trial statement in accordance with the

Initial Conference Order (docket entry no. 32) in advance of that conference. This case remains

referred to Magistrate Judge Pitman for general pre-trial management.

SO ORDERED.

Dated: New York, New York August 12, 2016

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN United States District Judge

9

Given this conclusion, the Court need not address the other issues raised by the

City Defendants.

MOTAPPROVESETTLEMENT.WPD

VERSION AUGUST 12, 2016

21

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ELISA W., by her next friend, Elizabeth Barricelli, et al.,
Plaintiffs,
-v-
THE CITY OF NEW YORK, et al.,
Defendants.

No. 15 CV 5273-LTS-HBP

OPINION AND ORDER

APPEARANCES:
Marcia Robinson Lowry A BETTER CHILDHOOD, INC. 1095 Hardscrabble Road Chappaqua, NY 10514
Attorney for Named Plaintiff Children
Julie A. North J. Wesley Earnhardt Nicole M. Peles Rachel J. Lamorte CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019
Attorneys for Named Plaintiff Children

Lauren A. Lively NEW YORK CITY LAW DEPARTMENT Office of the Corporation Counsel 100 Church Street New York, NY 10007
Attorney for Defendants the City of New York, the New York City Administration for Childrens’ Services, and Commissioner Gladys Carrion.

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

1

Jennifer L. Levy Molly A. Thomas-Jensen OFFICE OF THE PUBLIC ADVOCATE 1 Centre St, 15th Flr. New York, NY 10007 Attorneys for Plaintiff Letitia James, Public Advocate of the City of New York
LAURA TAYLOR SWAIN, United States District Judge

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

2

The City of New York moves to dismiss certain claims in this action, which was filed on behalf of certain named plaintiff children (the “Named Plaintiff Children”) and a putative class of children in foster care, with New York City Public Advocate Letitia James (“James”) as co-plaintiff as to certain claims. Plaintiffs assert claims under the First, Ninth and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq. (the “AACWA”) (pursuant to 42 U.S.C. § 1983 (“Section 1983”)); the New York State Social Services Law; and common law contract law against the City of New York (the “City”), the New York City Administration for Children’s Services (“ACS”), ACS Commissioner Gladys Carrion (“Carrion” and, together with the City and ACS, the “City Defendants”),1 the New York State Office of Children and Family Services (“OCFS”) and OCFS Acting Commissioner Sheila J. Poole (“Poole” and, together with OCFS, the “State Defendants”),2 stemming from alleged systemic failures of the New York City foster care system. (See generally Complaint; Amended Complaint.) On December 29, 2015, the Plaintiffs filed an Amended Complaint, in which Plaintiff James withdrew her claims under the AACWA as against the City Defendants and asserted them, instead, solely against the State Defendants. (Compare Complaint ¶¶ 289-91 with Amended Complaint ¶¶ 347-49.) The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
In their 126-page Amended Complaint, Plaintiffs present harrowing allegations regarding mistreatment of the individual plaintiffs while in foster care, and allege that the entire

1

Carrion is sued in her official capacity as ACS Commissioner only. (See Docket

Entry Nos. 1 (“Complaint”) and 91 (“Amended Complaint”).)

2

Poole is sued in her official capacity as OCFS Acting Commissioner only. (See

Complaint; Amended Complaint.)

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

3

New York City foster care system suffers from crippling and dangerous systemic defects. They assert constitutional and federal and state statutory claims, including claims under 42 U.S.C. section 1983 to enforce rights purportedly established by certain provisions of the AACWA.
The City Defendants now move: (1) to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), all of Plaintiffs’ claims brought under the AACWA; (2) to dismiss the claims of Plaintiff James, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim and, alternatively, pursuant to Federal Rule of Civil Procedure 17, on the basis of lack of capacity to sue; and (3) to dismiss the action as against Carrion and ACS because they are non-suable entities. (See generally Docket Entry No. 115, City Defendants’ Memorandum of Law in Support of their Motion to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion and All Claims Brought Under the AACWA (“City Def. Memo”).) Plaintiff James and the Named Plaintiff Children have submitted separate briefs in opposition to the City Defendants’ motion. (See Docket Entry No. 119, Memorandum of Law in Opposition to City Defendants’ Motion to Dismiss (“Pl. Children Opp.”) and Docket Entry No. 120, Memorandum of Law in Opposition to City Defendants’ Motion to Dismiss.)
The Court has reviewed carefully all of the parties’ submissions. For the reasons stated and as explained below, the City Defendants’ motion is granted in part and denied in part.

DISCUSSION

When deciding a motion brought pursuant to Federal Rule of Civil Procedure

12(b)(6) to dismiss a complaint, courts “must accept as true all of the factual allegations set out

in the Plaintiff’s complaint, draw inferences from those allegations in the light most favorable to

the Plaintiff, and construe the complaint liberally.” Roth v. Jennings, 489 F.3d 499, 510 (2d Cir.

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

4

2007). In order to survive a motion to dismiss, a complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the pleaded factual content allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 566). If the plaintiffs have not “nudged their claims

across the line from conceivable to plausible, their complaint must be dismissed.” Twombly,

550 U.S. at 570.

Here, the City’s arguments go the legal viability of Plaintiffs’ claims rather than

the factual sufficiency of the Amended Complaint. In particular, they assert that there are no

private rights of action created under the AACWA provisions upon which Plaintiffs rely, and

that New York law precludes the assertion of claims against ACS and its Commissioner

(requiring, instead, that claims be asserted against the City). Such arguments are properly

considered in the context of motion practice under Rule 12(b)(6). See Fair v. Verizon Comm’ns,

Inc. 621 F. App’x 52, 53 (2d Cir. 2015) (summary order) (“Determinations that a federal statute

does not provide a private right of action are typically subject to dismissal under Federal Rule of

Civil Procedure 12(b)(6) . . . for failure to state a claim.”); Republic of Iraq v. ABB AG, 678

F.3d 145, 171 (2d Cir. 2014) (affirming district court’s dismissal under Rule 12(b)(6) of claim

on grounds that Foreign Corrupt Practices Act does not provide a private right of action); Gupta

v. Headstrong, Inc., No. 12 CV 6652-RA, 2013 WL 4710388, at *4 (S.D.N.Y. Aug. 30, 2013)

(“Gupta’s complaint must also be dismissed for failure to state a claim upon which relief can be

granted pursuant to Rule 12(b)(6) because there is no private right of action until administrative

remedies have been exhausted.”).

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

5

Private Right of Action Under the AACWA

The City Defendants move to dismiss all of the Plaintiffs’ AACWA claims,

arguing that the statute does not confer a private right of action. Invoking Section 1983,

Plaintiffs assert numerous claims in their Third Cause of Action that are rooted, variously, in

sections 671(a)(10), 671(a)(16), 617(a)(22), 675(1), and 675(5) of the AAWCA. None of the

cited sections makes explicit provision for any private right of action. Plaintiffs contend,

however, that they create federal statutory rights that are enforceable as against the defendant

state and municipal authorities through Section 1983.

In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme Court held that Section

1983 protects certain rights that are conferred by federal statutes. See Blessing v. Freestone, 520

U.S. 329, 340 (1997). A plaintiff asserting a statute-based Section 1983 claim “must assert the

violation of a federal right, not merely a violation of federal law.” Id. “To determine whether a

federal statute creates a privately enforceable right, courts must consider three factors: (1)

‘Congress must have intended that the provision in question benefit the plaintiff’; (2) ‘the

plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and

amorphous that its enforcement would strain judicial competence’; and (3) ‘the statute must

unambiguously impose a binding obligation on the States.’” Walker v. Eggleston, No. 04 CV

369-WHP, 2005 WL 639584, at *3 (S.D.N.Y. Mar. 21, 2005) (quoting Blessing, 520 U.S. at

340-41); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“A court’s role in discerning

whether personal rights exist in the § 1983 context . . . require[s] a determination as to whether

or not Congress intended to confer individual rights upon a class of beneficiaries.”). “In

determining whether a private right of action exists, ‘the ultimate issue is whether Congress

intended to create a private cause of action.’” Gupta, 2013 WL 4170388, at *4 (quoting

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

6

California v. Sierra Club, 451 U.S. 287, 293 (1981)).

“Even if a plaintiff demonstrates that a federal statute creates an individual right,

there is only a rebuttable presumption that the right is enforceable under [Section] 1983.”

Blessing, 520 U.S. at 341. “[D]ismissal is proper if Congress ‘specifically foreclosed’ a remedy

under [Section] 1983" by expressly precluding Section 1983 claims or by creating “a

comprehensive enforcement scheme that is incompatible with individual enforcement under

[Section] 1983" and thus impliedly foreclosing claims under that provision. Id. (citations

omitted).

It is insufficient for a Section 1983 plaintiff to assert generally that a particular

statute creates enforceable rights. Rather, plaintiffs must “identify with particularity” the claims

rights, so that the court can “ascertain whether each separate claim satisfies the various criteria”

that the Supreme Court has identified as determinative of “whether a federal statute creates

rights.” Id. The Blessing Court cited three of its prior decisions as instructive in this regard. In

Wright v. City of Roanoke Redev. and Housing Auth., 479 U.S. 418 (1987), the Court upheld the

lower court’s determination that a particular provision of a public housing statute limiting “rent”

to a specified proportion of the tenant’s income conferred a right on individual tenants: the

statute specified a particular percentage of income that could be charged as rent in language that

was “mandatory . . . [and] focus[ed] on the individual family and its income.” Id. at 430.

Language requiring that a “reasonable” allowance for utilities be included in the rent cap was not

too vague to confer a right, in that regulations established guidelines and a notice and comment

procedure for setting the allowances. Id. at 431. Private enforcement of the right was not

foreclosed by provisions vesting a federal agency with power to conduct audits and cut off

public housing authority funding in the event of violations. Id. at 428-29.

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

7

In Wright v. Wilder, 496 U.S. 498 (1990), also cited in Blessing, the Court held

that a provision of the Medicaid statute requiring that providers be reimbursed “according to

rates that a ‘State finds, and makes assurances satisfactory to the Secretary, are reasonable and

adequate to meet the costs that must be incurred by efficiently and economically operated

facilities’” created a right enforceable by providers in Section 1983 actions. Id. at 501.

Congressional intent to benefit health care providers was indicated by reimbursement provision

language specifically referring to such providers, id. at 510; language specifying that

reimbursement at the targeted rates “must” be provided for by a required state plan at the risk of

withholding of federal funding was found to be sufficient to constitute a mandate, rather than

merely precatory, id. at 512; and pre-existing precedent recognized the existence of a private

right of action for injunctive relief requiring proper reimbursement, id. at 517-518.

In Suter v. Artist M., 503 U.S. 347 (1992), by contrast, the Court rejected a

contention that a subdivision of the AACWA created privately enforceable right to “reasonable

efforts . . . to prevent or eliminate the need for removal of the child from his home, and . . . to

make it possible for the child to return to his home .” Id. at 358 (quoting 42 U.S.C.

§ 671(a)(15)). This AACWA provision, which appears in a portion of one of the subdivisions

upon which Plaintiffs rely in this case, requires a state seeking federal foster care and adoption

services to have in place certain plans with respect to foster care administration, and requires that

plan comprise certain features, including a provision requiring the above-referenced “reasonable

efforts.” The Court found the reference to “reasonable efforts” one as to which the statute

provided no guidance, leaving the determination of how to comply up to the states, and that it

thus did not unambiguously confer an enforceable right upon individual beneficiaries of the

AACWA. Id. at 362-63. Under those circumstances, and in light of the Court’s conclusions that

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

8

the statutory mandate directed to the states dealt with eligibility for funding and “goes only so far as to ensure that the State have a plan approved by the Secretary which contains the 16 listed features” and that the statute contained sufficient administrative enforcement measures to ensure the “reasonable efforts” provision’s vitality, no private right of action seeking “reasonable efforts” was created. Id. at 358-61. Following the Suter decision, Congress enacted a statute, colloquially referred to as the “Suter fix”, that directed that in an action brought to enforce a provision of the laws governing Social Security (of which the AACWA is a part), the provision “is not to be deemed unenforceable because of its inclusion in a section . . . requiring a State plan or specifying the required contents of a State plan,” but also provided that the new statute was “not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter . . . but not applied in prior Supreme Court decisions respecting such enforceability.” The statute further provides that it was not intended to alter Suter’s holding “that section 671(a)(15) of [the AACWA] is not enforceable in a private action.” 42 U.S.C.S. § 1320a-2 (LexisNexis 2008). Suter therefore remains instructive as to the construction of the language of specific provisions of section 671(a) in connection with the assertion of individually enforceable rights thereunder. The lower courts have reached varying determinations as to private enforceability of numerous provisions of the AAWCA, and the Second Circuit precedent regarding the claims that are asserted in the Amended Complaint is likewise ambiguous. The Court now turns to the claims asserted by Plaintiffs pursuant to Section 1983 and the AACWA.

42 U.S.C. § 671(a)(10) – Right to Foster Placement that Conforms to Nationally Recommended Standards

In paragraph 348(a) of the Amended Complaint, Plaintiffs assert that the

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

9

Defendants have violated a right, conferred on them by Section 671(a)(10), to “placement in a foster placement that conforms to nationally recommended professional standards.” Section 671(a) requires that, “[i]n order for a State to be eligible for [federal foster care and adoption payments] . . ., it shall have a plan approved by the Secretary” that has specified features, including:
(10) provi[sion] (A) for the establishment or designation of a State authority or authorities that shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for the institutions or homes . . . . 42 U.S.C.S. § 671(a) (LexisNexis 2008). The subdivision goes on to require the State to apply the referenced standards to foster family homes and child care institutions receiving funding, and that the standards include certain caregiver liability provisions. It also includes limitations on waivers of the standards. Id. The first step in the three-part Blessing analysis is to examine whether the statutory section indicates Congressional intent to benefit the individual plaintiff. 520 U.S. at 340. While the purpose of foster care and adoption arrangements, and standards relating thereto, is obviously to provide quality care for children in foster care, this particular subdivision is not focused on individual child placements. Rather, its focus is systemic, requiring a state to establish or designate an authority that is then given the responsibility of developing standards by reference to certain benchmarks, and to apply those state-determined standards to homes and institutions receiving funding. The indirect, albeit very important, benefit to children in foster care placement that accrues from proper compliance with the standard-setting mandate to the state is, in this Court’s view, insufficient to indicate a Congressional intent to confer a right,

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

10

directly enforceable by individual foster care beneficiaries, to the establishment of standards that “conform to nationally recommended professional standards.” (Cf. Amended Complaint ¶ 348(a).) Indeed, the statutory mandate to the State standard developers is also less definitive than Plaintiff’s asserted right – state authorities are commanded to develop standards “which are reasonably in accord with recommended standards of national organizations concerned with standards for the institutions or homes.” The statute leaves it to the state authority to identify the reference organizations and to determine what will “reasonably . . . accord” with the reference organizations’ standards. In this respect, the statutory language is similar to that at issue in Suter, which called for “reasonable efforts”, and unlike the language found to create a right in Wright, which provided a specific benchmark for cost reimbursement determinations and required affirmative State assurance that the reimbursement levels were consonant with the benchmark. Suter, 503 U.S. at 358-61; Wright, 496 U.S. at 509-512.
The Court therefore concludes that no individually enforceable right to foster care standards is created by 42 U.S.C. section 671(a)(10) and that the Amended Complaint fails to state a claim upon which relief may be granted insofar as it seeks relief pursuant to Section 1983 premised on such a right. (See Amended Complaint ¶ 348(a).)

42 U.S.C. §§ 671(a)(16), 675(1)(A) - Right to Written Case Plan That Includes a Plan to Provide Safe, Appropriate and Stable Foster Care Placements

Paragraph 348(b) of the Amended Complaint seeks enforcement of the captioned

right, as derived from subdivision (a)(16) of section 671 and 42 U.S.C. section 675(1), which is a

definitional provision of the statute. Section 671(a)(16) requires that the mandated State plan:

provide[] for the development of a case plan (as defined in section 671(a) of this title . . .) for each child receiving foster care

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

11

maintenance payments under the State plan and provide[] for a case review system which meets the requirements described in sections 675(5) and 675a of this title with respect to each child.

42 U.S.C.S. § 671(a)(16) (LexisNexis 2008). Section 675(1) defines “case plan” and sets forth

extensive specific content requirements for the plan, including requirements of descriptions of

the type of placement, discussions of the safety and propriety of the placement and the

responsible agency’s plan for carrying out the relevant placement agreement or judicial

determination, inclusion of a plan for assuring that the child receives “safe and proper care” and

that services are provided to the parties in interest to facilitate return of the child to the home or

permanent placement, and discussion of the “appropriateness” of the services that are being

provided. The plan must also include the child’s health and educational records, a written

description of transition plans for older children, and documentation of the steps the agency is

taking to find an appropriate permanent living arrangement for the child. “A plan for ensuring

the educational stability of the child while in foster care” is another required component of the

“case plan.” 42 U.S.C.S. § 671(1) (LexisNexis 2008).

The written case plan requirement of section 671(a)(16) is specifically directed to

fulfillment with respect to “each child receiving foster care maintenance payment.” Such

children are, therefore, unquestionably the intended beneficiaries of the case plan requirement,

which meets the first prong of the Blessing test. The second prong of the test is also satisfied in

that the right “is not so ‘vague and amorphous’ that its enforcement would strain judicial

competence.” Blessing, 520 U.S. at 341-42. Section 675(1), whose requirements are

incorporated by reference into section 671(a)(16), provides specific plan content requirements.

The statutory language is also mandatory, not precatory, in that it requires the creation of a

written plan for “each child.” See id. at 342. Section 671(a)(16) thus indicates that Congress

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

12

intended to create a right for each child receiving foster care payments to be the subject of a written care plan, and a rebuttable presumption arises that the right is enforceable under Section 1983. Id. The Court thus turns to whether there is any indication that Congress specifically foreclosed such a remedy, and finds no such indication. The AACWA contains no express preclusion of the Section 1983 remedy. Nor is it implicitly foreclosed. There is no comprehensive scheme that would be incompatible with individual enforcement under Section 1983. Furthermore, although Congress has explicitly provided for a private right of action with respect to one other subdivision of Section 671 – Section 671(a)(18), relating to discrimination in foster care placements – that remedy is broader than the Section 1983 remedy in that it permits actions against the State and is not limited to claims against persons acting under color of state law, so it carries no implication that Congress intended to preclude resort to the narrower Section 1983 remedial route for enforcement of any rights that are created by other provisions of Section 671. See 42 U.S.C.S. § 674(d)(3) (LexisNexis 2008) (providing private right of action to “any individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity”).3 The United States Court of Appeals for the Ninth Circuit recently reached this same conclusion in Henry A. v. Willden, 678 F.3d 991, 1006-08 (9th Cir. 2012).
The City’s motion is therefore denied with respect to the AAWCA case plan

3

The Court recognizes that, in Charlie H. v. Whitman, 83 F. Supp. 2d 476, 489

(D.N.J. 2000), the court found that the section 674(d)(3) private action provision

was “strong evidence that Congress did not intend th[e] other various State plan

elements in Section 671(a) to confer rights enforceable pursuant to 42 U.S.C.

§ 1983. The Charlie H. Court did not, however, recognize the difference in scope

between Section 1983 and the AAWCA private action provision. See id.

(“Congress recently chose to amend 42 U.S.C. § 674 to include a private right of

action under § 1983 for a state or other entity’s failure to comply with 42 U.S.C.

§ 671(a)(18).”)

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

13

claim asserted in paragraph 348(b) of the Amended Complaint insofar as Plaintiffs seek to enforce a right to the preparation of a written case plan meeting the specifications set forth in 42 U.S.C. § 675(1).

42 U.S.C. §§ 671(a)(16), 675(1)(A) - Right to Written Case Plan that Ensures that the Child Receives Safe and Proper Care While in Foster Care and Implementation of that Plan

In paragraph 348(c) of the Amended Complaint, Plaintiffs assert a different sort

of written plan claim based on the same provisions of the AAWCA. Here, Plaintiffs assert that

the written case plan provisions establish an individually enforceable right to implementation of

a written plan that ensures safe and appropriate outcomes. The Court finds that the statute

confers no such rights. As shown above, section 671(a)(16) is phrased strictly in terms of the

requirement of a plan. Section 675(1) specifies the required content of the plan, and is phrased

largely in terms of requiring “discussion” of safety, placement propriety and other issues, and of

“design” to meet certain goals or outcomes. See 42 U.S.C. § 675(1). While it is of course to be

expected that a plan will be implemented, nothing in the statutory language specifically requires

implementation or achievement of all of the particulars of the plan, much less successful

achievement of outcomes. Rather, the plan principally serves notice and accountability

functions in aid of reviews of goals, services and outcomes. Unlike the Medicaid reimbursement

formula considered by the Supreme Court in Wright, the State is not required to make

affirmative representations that the elements of the written plan meet particular standards or

goals. See Wright, 496 U.S. at 514-15 (rejecting argument that findings and assurance

requirements are purely procedural – “the only plausible interpretation of the [statute] is that by

requiring a State to find that its rates are reasonable and adequate, the statute imposes the

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

14

concomitant obligation to adopt reasonable and adequate rates.”) Plaintiffs have not demonstrated that Congress created the privately enforceable
right described in paragraph 348(c) of the Amended Complaint; the City’s motion will therefore be granted to the extent it seeks dismissal of the Plaintiff’s claims premised on the right described in paragraph 348(c).

42 U.S.C. §§ 671(a)(16), 675(1)(B),(E),(G) - Rights to Written Case Plan Ensuring Reunification Services to Families or Permanent Placement, Ensuring Location of Permanent Home and Implementation of Plan, and Ensuring Educational Stability while in Foster Care and Implementation of Plan
For substantially the reasons explained in the foregoing paragraph, Plaintiffs’
claims of individually enforceable substantive rights to implementation of particular plan
provisions and particular outcomes are not supported by the language of the cited statutory
provisions and, thus, fail to state claims upon which relief may be granted under Section 1983.
The City’s motion is therefore granted to the extent it seeks dismissal of
Plaintiffs’ AAWCA claims set forth in paragraphs 348(d)-(f) of the Amended Complaint.

42 U.S.C. §§ 671(a)(16), 675(5)(A),(B),(C),(E) - Rights to Case Review System in Which Each Child has a Case Plan Designed to Achieve Safe and Appropriate Foster Care Placements, in Which Case Status of Child Is Reviewed at Least Every Six Months, and that Ensures that State Files Parental Rights Termination Petition for Each Child Who has Been in Foster Care for 15 of the Most Recent 22 Months and Concurrently Identifies, Recruits, Processes and Approves Adoption Family

The second clause of Section 671(a)(16) requires the State to have a plan that

“provides for a case review system which meets the requirements described in sections 675(5)

. . . with respect to each child” receiving foster care payments. 42 U.S.C.S § 671(a)(16)

(LexisNexis 2008). Section 675(5) defines “case review system” as “a procedure for assuring

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

15

that,” inter alia, “each child has a case plan designed to achieve placement in a safe setting” that

meets certain criteria, “the status of each child is reviewed periodically but no less frequently

than once every six months by either a court or by administrative review,” procedural safeguards

are applied to permanency plan hearings held every 12 months for children in foster care, and

that, with enumerated exceptions, in the case of a child who has been in foster care for 15 of the

most recent 22 months, the state will file a petition to terminate parental rights and concurrently

identify, recruit, process and approve a qualified family for adoption. 42 U.S.C.S. § 675(5)

(LexisNexis 2008) (emphasis supplied). Plaintiffs’ claims of rights as set forth in paragraphs

348(h) to (i) are generally consistent with the statutory provisions on which they rely. Although

the provisions speak in terms of a “system” and “procedures,” they require that such system and

procedures “assur[e]” that “each child” have a case plan designed to achieve placement in a

“safe setting” that is “least restrictive” and “most appropriate,” and further assure periodic

reviews by courts or administrative bodies of particular aspects of their foster care status. 42

U.S.C.S. § 675(5)(A),(B),(C) (LexisNexis 2008). Section 675(5)(E) similarly requires that the

procedure assure the commencement of termination of parental rights proceedings and

concurrent adoption placement activity for children who have been in care for a specified period

of time, unless specific exceptions are satisfied. The language that Congress has used indicates

an intention that each child whose care is subject to the statutorily-mandated plan benefit from

these features of the required system and is mandatory insofar as it requires particular structures

and timetables. Nor are the provisions, which specify goals to be addressed in plan design and

proceedings to occur before specified tribunals too vague and amorphous as to strain judicial

competence. See Blessing, 520 U.S. at 340-41. As explained above, the AAWCA does not

establish any comprehensive enforcement system that is incompatible with individual

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

16

enforcement of these provisions under Section 1983, and Congress has not expressly foreclosed private enforcement under Section 1983.
Accordingly, the City’s motion is denied insofar as it seeks dismissal of the Plaintiffs’ Section 1983 claims premised on rights identified in paragraphs 348(g) through (i) of the Amended Complaint.

42 U.S.C. § 671(a)(22) - Right to Receive Quality Services to Protect Each Child’s Safety and Health
Paragraph 348(j) of the Amended Complaint asserts that Defendants have violated a right guaranteed by Section 671(a)(22), which provides that “the State shall develop and implement standards to ensure that children in foster care placements in public or private agencies are provided quality services that protect the safety and health of the children.” 42 U.S.C.S. § 671(a)(22) (LexisNexis 2008). This section is clearly intended to benefit individual children who are in placements with agencies, and it is phrased in mandatory terms insofar as it requires the development and implementation of standards, thus meeting the first and third elements of the Blessing test. See 520 U.S. at 340-41. Its language is, however, too vague and amorphous to support the finding of an individually enforceable right. Nothing in the statute provides a benchmark or other means for determining how the mandate for provision of “quality services that protect the safety and health of the children” is to be met. Congress has delegated to the states the responsibility of determining the requisite levels of “quality” of services and the extent and by what means the “safety and health of the children” are to be protected through services. The Court finds that, like the “reasonable efforts” provision at issue in Suter, it is “a directive whose meaning will obviously vary with the circumstances of each individual case,”

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

17

503 U.S. at 360, that is not enforceable in an individual action pursuant to Section 1983. Accordingly, the City’s motion is granted with respect to Plaintiffs’ claims
premised on the claim of right asserted in paragraph 348(j) of the Amended Complaint.

Claims of Plaintiff James

The City Defendants also move, pursuant to Federal Rule of Civil Procedure

12(b)(6), to dismiss the claims asserted by Plaintiff James, arguing that she has failed to state a

claim upon which relief can be granted. (See City Def. Memo, at pp. 16-19.) As noted at the

outset of this Memorandum Opinion and Order, Plaintiff James has withdrawn her claims

against the City and, in the Amended Complaint, only asserts claims against the State

Defendants. A Rule 12(b)(6) motion is a defensive motion, see, e.g., Del Medical Imaging Corp.

v. CR Tech USA, Inc., No. 08 CV 8556-LAP, 2010 WL 1487994, at *9 (S.D.N.Y. Apr. 13,

2010), and thus cannot be asserted by City Defendants as against a plaintiff who has asserted no

claim against them, see, e.g., Dover Ltd. v. A.B. Watley, Inc., No. 04 CV 7366-FM, 2006 WL

2987054, at *8 (S.D.N.Y. Oct. 18, 2006) (“[Defendant] also contends that the six additional

counts of the [complaint] fail to state a claim for relief . . . What he fails to note is that he has not

been named as a defendant in any claim for relief other than Count I. Accordingly, he lacks

standing to attack the legal sufficiency of those other counts”); Chabad Lubavitch of Litchfield

County, Inc. v. Borough of Litchfield, Conn., No. 09 CV 1419-JCH, 2010 WL 1882308, at *3

(D. Conn. May 10, 2010) (“[A] party may only file a Rule 12(b) motion presenting a defense to

claims asserted against it.”). Furthermore, because James has asserted no claims as against the

City Defendants, there is no case or controversy between these parties, and City Defendants thus

lack standing to challenge James’ capacity to sue pursuant to Federal Rule of Civil Procedure 17.

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

18

Furthermore, the City Defendants’ capacity arguments concern state and local law matters (including the Public Advocate’s ability to exercise control over ACS and her rights to litigate in her official capacity) that do not arise from the same transactions or occurrence as Plaintiffs’ claims concerning foster care. The City Defendants’ motion is therefore denied to the extent that it seeks the dismissal of Plaintiff James’ claims.

Defendants ACS and Commissioner Carrion

City Defendants move to dismiss Plaintiffs’ claims to the extent that they are

asserted against Defendants ACS and Commissioner Carrion (sued in her official capacity only),

arguing that those Defendants are non-suable entities. The Second Circuit has recognized that

“as a general matter, agencies of New York City are not suable entities in § 1983 actions.”

Nnebe v. Daus, 644 F.3d 147, 163 n.6 (2d Cir. 2011); see also Allen v. Mattingly, No. 10 CV

667-SJF, 2011 WL 1261103, at *14 (E.D.N.Y. Mar. 29, 2011) (where plaintiff sued the

Commissioner of ACS, the attorney for ACS and an ACS caseworker in their official capacities,

“such claims [were] deemed to be claims against the ACS, which lack[ed] the capacity to sue or

be sued”), aff’d, 478 F. App’x 712 (2d Cir. 2012); Friedman v. New York City Admin. For

Children’s Services, 502 F. App’x 23, 28 n.3 (2d Cir. 2012) (“Even though Mr. Friedman

brought claims against ACS, City agencies are not suable entities, and thus, the proper defendant

is the City of New York.”). Moreover, courts within this Circuit have consistently held that New

York City agencies are not considered “persons” for the purposes of Section 1983 liability. See,

e.g., Milhouse v. Renaissance Men’s Residence, No. 12 CV 6437-DLI, 2013 WL 1811332, at *3

(E.D.N.Y. Apr. 29, 2013) (“Moreover, to the extent Plaintiff’s claim can be construed as arising

under the Civil Rights Act, 42 U.S.C. § 1983 . . . DHS is a New York City agency, and,

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

19

therefore, is not a ‘person’ for purposes of § 1983 liability.”); Reaves v. Department of Veterans

Affairs, No. 08 CV 1624-RJD, 2008 WL 2853255, at *2 (E.D.N.Y. July 22, 2008) (“Section

1983 claims against the City and federal agencies would also be dismissed, because only

individuals, and not entities such as agencies or facilities, may be considered ‘persons’ for

purposes of liability under § 1983.”); Vasquez v. City of New York, No. 99 CV 4606-DC, 2000

WL 869492, at *4 (S.D.N.Y. June 29, 2000) (“New York City agencies . . . are organizational

subdivisions of the City of New York lacking independent legal existence and, therefore, cannot

be sued under § 1983.”) (internal quotation marks and citation omitted).

Section 396 of the New York City Charter provides that “[a]ll actions and

proceedings for the recovery of penalties for the violation of any law shall be brought in the

name of the City of New York and not in that of any agency, except where otherwise provided

by law.” See N.Y. City Charter Ch. 17, § 396 (“Section 396"). Courts have consistently found

this language to mean that “[i]ndividual City agencies are not suable entities unless specified by

law.” Pimentel v. City of New York, No. 00 CV 326-SAS, 2000 WL 1576871, at *2 (S.D.N.Y.

Oct. 23, 2000). The Second Circuit has noted that Section 396 “has been construed to mean that

New York City departments, as distinct from the City itself, lack the capacity to be sued.”

Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008). This reasoning

extends to ACS and, in turn, Commissioner Carrion. See, e.g., Ampratwum v. City of New

York, No. 11 CV 6111-DLC, 2013 WL 1935321, at *6 (S.D.N.Y. May 9, 2013); Worrell v. City

of New York, No. 12 CV 6151-MKB, 2014 WL 1224257, at *3 (E.D.N.Y. Mar. 24, 2014).

Plaintiffs argue, however, that Section 396 only forecloses suits brought against

city agencies for monetary damages, focusing on the provision’s use of the term “recovery of

penalties.” (See Pl. Children Opp., at pp. 21-23.) In the instant case, Plaintiffs argue, the only

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

20

relief sought is injunctive, and thus the suit is not barred by the City Charter. (See id.) This

argument is unavailing. As an initial matter, Section 396 contains no modifier that can be

construed to limit the word “penalties” in that provision solely to monetary repercussions.

Although Plaintiffs urge that a plain language reading of that provision limits its application to

suits seeking monetary recovery, the dictionary definition cited by City Defendants makes clear

that “penalties” are not a strictly financial concept. (See Docket Entry No. 135, Reply City

Defendants’ Memorandum of Law in Support of their Motion to Dismiss, at pp. 14-15.) The

cases cited by Plaintiffs in support of their argument are unpersuasive, as none of them engages

in legal analysis of the issue of whether Section 396 permits suits seeking injunctive relief

against city agencies. See generally Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996);

M.K.B. v. Eggleston, 445 F. Supp. 2d 400 (S.D.N.Y. 2006); Nicholson v. Scoppetta, 344 F.3d

154 (2d Cir. 2003); People United For Children, Inc. v. City of New York, 108 F. Supp. 2d 275,

302 (S.D.N.Y. 2000). Moreover, the City Defendants have pointed to several cases in which

courts have dismissed arguments by plaintiffs claiming that they may sue city agencies because

they seek declaratory or injunctive relief in addition to monetary penalties. See, e.g., Corley v.

City of New York, No. 14 CV 3202-GHW, 2014 U.S. Dist. LEXIS 121330, at *3-4 (S.D.N.Y.

Aug. 29, 2014) (the fact that an individual seeks declaratory and injunctive relief “does not

change the fact that the [relevant city agencies] are not suable entities”); Rentas v. Johnson, No.

10CV4244-DAB-FM, 2011 WL 2652473, at *5 n.3 (S.D.N.Y. June 22, 2011) (Report &

Recommendation) (dismissing claims seeking both injunctive and monetary relief as against

non-suable city agency); Allen, 2011 WL 1261103 (same).

The City Defendants’ motion is, accordingly, granted to the extent that it seeks to

dismiss Plaintiffs’ claims against ACS and Commissioner Carrion, without prejudice to litigation

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

21

of those claims as against the Defendant City.

CONCLUSION

For the foregoing reasons, City Defendants’ motion is granted in part. City

Defendants’ motion is granted to the extent that it seeks to dismiss Plaintiffs’ AACWA claims

premised on 42 U.S.C. §§ 671(a)(10) and 671(a)(22) described in paragraphs 348(a) and (j) of

the Amended Complaint, and on the purported rights described in paragraphs 348(c)-(f) of the

Amended Complaint. City Defendants’ motion is also granted to the extent that it seeks the

dismissal of the claims asserted against ACS and Commissioner Carrion, without prejudice to

the litigation of those claims as against the Defendant City. The motion is denied in all other

respects.

This Opinion and Order resolves Docket Entry Number 114.

SO ORDERED.

Dated: New York, New York September 12, 2016

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN United States District Judge

ELISA W - MTD.WPD

VERSION SEPTEMBER 12, 2016

22

 
 Case 1:15-cv-05273-LTS-HBP Document 216 Filed 07/12/16 Page 1 of 2

----~~-...
USDCSD.'\Y

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)( ELISA W., by her ne)Ct friend, Elizabeth Barricelli, et al.

DOCU.\-1 [ S T

I:

I; ELECTRO.'\IC:\LLY FILED
1I: DOC#:
lk DATE FILED· J j J.c 7.P

-against-

Plaintiffs,

No. 15CV5273-LTS-HBP

THE CITY OF NEW YORK, et al.,

Defendants. -------------------------------------------------------)(

MEMORANDUM ORDER

On June 21,2016, the Court received, from interested parties (the "Parent

Advocates" and the "Childrens's Advocates"), motions to intervene in this action for the limited

purpose of objecting to the proposed settlement agreement between Plaintiffs and State

Defendants in this case. (See Docket Entry Nos. 180-81.) On June 24, 2016, the Court issued an

order directing the parties to file any opposition to the intervention motions by Friday, July 1,

2016. (Docket Entry No. 199.)

On July 1, 2016, Plaintiffs filed a response with the Court indicating that the

parties to the proposed settlement agreement do not oppose the Parent Advocates' and

Children's Advocates' motions to intervene for the limited purpose of objecting to the proposed

settlement, and reserving their rights to oppose intervention, or any other participation of the

Parent and/or Children's Advocates for any and all other purposes. (See Docket Entry No. 214.)

In light of the foregoing, the Court grants both the Parent Advocates' and the

Children's Advocates' unopposed motions for intervention for substantially the reasons set forth

in their respective memoranda of law. (See Docket Entry Nos. 182, 188.) The Parent Advocates

l N T E R V E N E O R D E R . WPD

VERSION JULY I2, 20 I6

Case 1:15-cv-05273-LTS-HBP Document 216 Filed 07/12/16 Page 2 of 2

and Children's Advocates are permitted to intervene in this action for the limited purpose of

objecting to the proposed settlement agreement between the Plaintiffs and the State Defendants.

The Parent Advocates must file their objections to the proposed settlement no

later than Friday, July 22, 2016.

This Memorandum Order resolves Docket Entry Numbers 180 and 181.

SO ORDERED.

Dated: New York, New York July 12,2016

c~AYLOR SWAIN United States District Judge

lNTERVENbORDER.WPD

VERSION JULY 12, 2016

2

 
 Contact: Javier Lacayo, jlacayo@pubadvocate.nyc.gov, 646-942-1703 Marcia Robinson Lowry, mlowry@abetterchildhood.org, 844-422-2425
FACT SHEET: Elisa W. v. City of New York
Plaintiffs: Ten foster children representing the class of over 11,000 New York City foster children; and Public Advocate Letitia James. The foster children are being represented by Marcia Robinson Lowry, Executive Director, A Better Childhood, and Cravath, Swaine & Moore LLP.
Defendants: The City of New York, New York City Administration of Children’s Services (ACS), ACS Commissioner Gladys Carrion, the State of New York, the New York State Office of Children and Family Services (OCFS), and OCFS Commissioner Sheila Poole.
The lawsuit alleges that: ● ACS and OCFS are causing irreparable harm to children in custody by failing to protect children from maltreatment, failing to ensure services provided are effective and of acceptable quality, and failing to ensure appropriate placements. ACS and OCFS fail to provide children in ACS custody with permanent homes and families and reunification within a reasonable time. ● The harms and risks that children in ACS custody suffer result from ACS and OCFS are failing to properly address structural deficiencies in the New York City child welfare system.
About the NYC foster care system: ● There are currently 11,137 children in the NYC foster care system, accounting for almost 60% of children in foster care in NYS. ● ACS is legally responsible for all children in foster care, but has delegated responsibility for the day-to-day care of these children to 29 private agencies, with which it contracts for the children’s care. ● NYS ranks 46th out of 48 states and territories for instances of substantiated or indicated maltreatment of children while in foster care. ● Children in NYC spend over twice as long in foster care as children in the rest of NYS and the country. They spend a median of 27.2 months in foster care while children in the rest of NYS spend a median of 15.1 months in foster care and children in the nation spend a median of 12.4 months in foster care. ● Children in NYC spend a median of 12.6 months in foster care before being reunified with their families while children in the rest of NYS spend a median of 10.8 months, and children in the rest of the nation spend a median of 8.6 months, in foster care prior to being returned home. ● It takes longer to be adopted in NYC than in the rest of NYS and every other state in the nation. Children who were adopted in NYC in 2013 spent a median of 55.8 months—over 4.5 years—in foster care prior to adoption. ● In number of days until a child is freed for adoption, NYC ranks last. It takes twice as long to be freed for adoption in NYC as in the rest of NYS (42.2 months v. 22.1 months). It takes 2.5 times as long to be freed for adoption in NYC as in the rest of the nation (42.2 months v. 16.8 months). ● Each year, approximately 1,000 young people “age out” of the NYC foster care system, 80% of whom are on their own with virtually no safety net. Research has shown that children who age out are more likely than their peers to be unemployed, homeless, and incarcerated as adults. Twenty percent of children who aged out of the foster care system in NYC entered a homeless shelter within three years of leaving the foster care system.

THE PLAINTIFFS
The children’s identities legally cannot be revealed. Using pseudonyms, these are the plaintiffs representing the class:
Elisa W. ACS removed Elisa W. from her biological mother when she was four years old and her mother’s parental rights have been terminated. She is now 16 years old, and has been in foster care for 12 years. Elisa W. has been shuffled through so many foster placements she is unable to account for all of them. While in foster care, she has been sexually abused, beaten, denied food, and neglected. Elisa W. has been diagnosed with depression, bipolar disorder, and PTSD. She has been hospitalized for mental health reasons and has been on antidepressants and mood stabilizers since she was 11. She would like to go to college and remembers that when she was younger she did well in school, but now has difficulty concentrating. At 16, Elisa W. is old enough to articulate her hopes and feelings but, in her own words, “no one ever asks me what I want.” She fears that she will age out of foster care and return to living with her biological mother. Elisa W. remains without a permanent home and family to call her own.
Alexandria R. ACS removed Alexandria R. from her biological mother when she was four years old; reportedly, this is her second time in foster care. She is now 12 years old and has been in foster care for the past eight years. During this time, she has been in approximately nine foster care placements and suffered physical and suspected sexual abuse. Alexandria R. now suffers from PTSD and behavioral problems, including physical aggression toward herself and others. She deeply distrusts anyone she views as “in the system” and does not understand why her current foster parents, who are interested in adopting her, have been unable to do so. Alexandria R. remains without a permanent home and family to call her own.
Thierry E. ACS removed Thierry E. from his biological mother when he was two years old after his mother reported that she was being abused by Thierry E.’s biological father. Thierry E. is now almost four years old and has spent almost half of his young life in foster care. During the past 21 months he has spent in ACS custody, he has been shuffled between two contract agencies and two foster placements. As a result, he suffers from developmental delays and emotional trauma. All indications are that he misses his mother very much; at the end of their twice weekly visits, he cries uncontrollably. Although his mother has completed parenting classes, mental health evaluations and counseling, ACS has made no effort to ensure that this little boy is returned to her. In fact, when Thierry E.’s mother expressed concern about how upset he is when their visits end, she was told to “get used to it” because this was “his life now”. Thierry E. remains without a permanent home and family to call his own.
Ayanna J. ACS removed Ayanna J. from her biological mother three days after she was born due to a prior finding of abuse against her mother. Before Ayanna J. was born, her nineteen month old sister was beaten to death by her mother’s then-boyfriend. Ayanna J. is now almost three years old and still in ACS custody. Ayanna J. used to cry hysterically during visits with her mother and now says she does not want to visit her mother, often refusing during those visits to leave her babysitter’s side. A petition to terminate Ayanna J.’s biological parents’ parental rights was filed in April 2014, but Ayanna J.’s court hearing has been repeatedly postponed. Her foster parent is willing to adopt her. Ayanna J. remains without a permanent home and family to call her own.
Olivia R. and Ana-Maria R. ACS removed Olivia and Ana-Maria R. from their biological parents in 2011. They are now five and four years old, respectively, and have spent the past four years in foster care. During their time in foster care, ACS has shuffled them between three homes. In 2013, Olivia R. was sexually abused while Ana-Maria

R. was present. When Olivia and Ana-Maria R.’s foster care agency was made aware of the abuse, neither the agency nor ACS took any action. As a result of the severe emotional damage they have both suffered while in custody, both girls have been diagnosed with a variety of mental health problems—Olivia R. has serious trust issues and Ana-Maria R. must be medicated for severe hyperactivity and aggressive behavior. Ana-Maria R. spent all of spring 2015 unable to attend her pre-kindergarten program because her caseworker did not obtain the necessary medication for her to attend. Olivia and Ana-Maria R.’s foster mother is willing to adopt them. Olivia and Ana-Maria R. remain without a permanent home and family to call their own.
Xavion M. ACS removed Xavion M. from his biological mother when he was just 15 days old. He is now five years old and has spent his entire young life in foster care. During his time in custody, he has been in two foster homes, including one in which he was severely neglected. Xavion M. has been physically assaulted by his sibling during an unsupervised visit with his mother. As a result of the severe emotional damage he has suffered while in ACS custody, he exhibits behavioral problems and attachment issues, such as refusing to sleep anywhere but in his foster mother’s bed. Although Xavion M.’s official permanency goal is “adoption” and his foster mother is willing to adopt him, his caseworker intends to return him to live with his biological mother. Xavion M. is very confused about whether or when he will be moving again to live with his biological mother. Xavion M. remains without a permanent home and family to call his own.
Dameon C. ACS removed Dameon C. from his biological mother when he was just nine days old. He is now four years old and has special needs. During the past four years, Dameon C. has been shuffled among placements and was physically abused by his mother during their first unsupervised overnight visit. As a result of the severe emotional damage he has suffered while in state custody, he has been diagnosed with ADHD and Oppositional Defiant Disorder; he also exhibits persistent head banging behavior. Dameon C.’s foster mother is willing to adopt him, but his Family Court hearings have been repeatedly postponed. Dameon C. remains without a permanent home and family to call his own.
Tyrone M. ACS removed Tyrone M. from his biological mother when he was just 12 days old. He is now seven years old and is still in foster care. Tyrone has been shuffled through three foster care placements. In the foster care placement immediately previous to his current placement, he suffered severe neglect. Tyrone M. arrived at his current foster care placement exhibiting severe dental problems and went to sleep in his clothing every night because he was never taught to undress or change into pajamas. As a result of the severe emotional damage he has suffered while in ACS custody, he suffers from a variety of mental health problems and exhibits behavioral problems so severe that his school has barred him from eating in the lunchroom. Tyrone M. is legally free to be adopted but he remains without a permanent home and family to call his own.
Brittney W. ACS removed Brittney W. from her biological mother when she was two years old. Brittany W. has special needs. She is now seven years old and has been in foster care for over four years. Even though Brittney W.’s lawyer does not think that her biological mother is able to provide appropriate care for her daughter, the foster care agency to which Brittney W. is assigned has taken the position that her biological mother can provide care if she has 24-hour medical support. Meanwhile, her biological mother’s doctor does not believe this is necessary. It is unclear what will happen to Brittney or when a decision about her future will be made. Her foster mother is willing to adopt her, but she remains without a permanent home and family to call her own.

 
 CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:15-cv-05273-KMW-SLC

Elisa W. et al v. The City Of New York , et al Assigned to: Judge Kimba M. Wood Referred to: Magistrate Judge Sarah L Cave Cause: 42:1983 Civil Rights Act

Date Filed: 07/08/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Ayanna J. by her next friend, Meyghan McCrea

represented by Brittany Lynn Sukiennik Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212)-474-1828 Fax: (212)-474-3700 Email: bsukiennik@cravath.com ATTORNEY TO BE NOTICED

Claire Botnick Cravath, Swaine and Moore LLP 825 8th Ave New York, NY 10023 (212)-474-1109 Email: cbotnick@cravath.edu ATTORNEY TO BE NOTICED

Daniel Slifkin Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: dslifkin@cravath.com ATTORNEY TO BE NOTICED

Justin Conrad Clarke Cravath Swaine & Moore LLP 825 Eighth Ave. New York, NY 10019 (212)-474-1184 Email: jcclarke@cravath.com

ATTORNEY TO BE NOTICED
Marcia Robinson Lowry A Better Childhood, Inc. 355 Lexington Avenue Floor16 New York, NY 10017 646-795-4463 Email: mlowry@abetterchildhood.org ATTORNEY TO BE NOTICED
Molly Montgomery Jamison Cravath, Swaine & Moore, LLP 825 Eighth Ave. New York, NY 10019 (212)-474-1110 Email: mjamison@cravath.com ATTORNEY TO BE NOTICED
Nicole Marie Peles Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1624 Fax: (212) 474-3700 Email: npeles@cravath.com ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212)-474-1512 Email: rlamorte@cravath.com ATTORNEY TO BE NOTICED
Sarah W Jaffe A Better Childhood 1095 Hardscrabble Road Chappaqua, NY 10514 (347)-687-2063 Email: sjaffe@abetterchildhood.org ATTORNEY TO BE NOTICED
Scott Bartron Reents

Plaintiff
Dameon C. by his next friend, Reverend Doctor Gwendolyn Hadley-Hall

Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 212-474-1000 Email: sreents@cravath.com ATTORNEY TO BE NOTICED
Julie A North Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: jnorth@cravath.com ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte

Plaintiff Letitia James the Public Advocate for the City of New York TERMINATED: 12/04/2019
Plaintiff Olivia R. by their next friend, Dawn Cardi

(See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer L. Levy New York State Attorney General 28 Liberty St. New York, NY 10005 212-416-8450 Email: jlevy@pubadvocate.nyc.gov TERMINATED: 01/02/2019
Molly Anne Thomas-Jensen Everytown Law 450 Lexington Ave Ste PO #4184 New York, NY 10017 646-324-8226 Email: mthomasjensen@everytown.org ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Valentina T.C. by their next friend, Rachel Friedman

Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Matthew V. by their next friend, Samuel D. Perry, Individually and on behalf of a class of all others similarly situated

Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison

Plaintiff
Mikayla G. by her next friend, Michael B. Mushlin

(See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address)

Plaintiff
Myls J. by their next friend, Elizabeth Hendrix

ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose T.C. by their next friend, Rachel Friedman
Plaintiff Lucas T. by their next friend, Rachel Friedman

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Emmanuel S. by their next friend, Samuel D. Perry, Individually and on behalf of a class and all others similarly situated

Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison

Plaintiff
Ximena T. by their next friend, Rachel Friedman

(See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address)

Plaintiff
Malik M. by their next friend, Elizabeth Hendrix

ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED
represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elisa W.
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Alexandria R. by her next friend, Alison Max Rothschild
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Thierry E. by his next friend Michael B. Mushlin
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Ana-Maria R. by their next friend, Dawn Cardi
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Xavion M. by his next friend, Michael B. Mushlin
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Tyrone M. by his next friend, Bishop Lillian Robinson-Wiltshire
Plaintiff

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Brittney W. by her next friend, Shamara Mills
V.

represented by Brittany Lynn Sukiennik (See above for address) ATTORNEY TO BE NOTICED
Claire Botnick (See above for address) ATTORNEY TO BE NOTICED
Daniel Slifkin (See above for address) ATTORNEY TO BE NOTICED
Justin Conrad Clarke (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Molly Montgomery Jamison (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Peles (See above for address) ATTORNEY TO BE NOTICED
Rachel Jennifer Lamorte (See above for address) ATTORNEY TO BE NOTICED
Sarah W Jaffe (See above for address) ATTORNEY TO BE NOTICED
Scott Bartron Reents (See above for address) ATTORNEY TO BE NOTICED
Julie A North (See above for address) ATTORNEY TO BE NOTICED

Defendant The City of New York

represented by Agnetha Elizabeth Jacob New York City Law Department 100 Church Street New York, NY 10007 212-356-0881 Fax: 212-788-0940 Email: ajacob@law.nyc.gov ATTORNEY TO BE NOTICED
Ian William Forster New York City Law Department, General Litigation Division 100 Church Street New York, NY 10007 (212) 356-2624 Email: iforster@law.nyc.gov ATTORNEY TO BE NOTICED
Jonathan L. Pines NYC Law Department, Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212) 788-0933 Fax: (212) 788-0940 Email: jpines@law.nyc.gov ATTORNEY TO BE NOTICED
Lauren Almquist Lively New York City Law Department 100 Church Street New York, NY 10007 (212)-356-0885 Email: llively@law.nyc.gov ATTORNEY TO BE NOTICED
Neil Anthony Giovanatti New York City Law Department 100 Church Street Room 2663 New York, NY 10007 (212)-356-0886 Fax: (212)-788-3770 Email: giovanattin@michigan.gov ATTORNEY TO BE NOTICED

Defendant New York City Administration for Childrens Services
Defendant State Of New York

Sharon Vicky Sprayregen New York City Law Department 100 Church St. New York, NY 10007 212-356-0873 Email: ssprayre@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Ian William Forster (See above for address) ATTORNEY TO BE NOTICED
Jonathan L. Pines (See above for address) ATTORNEY TO BE NOTICED
Lauren Almquist Lively (See above for address) ATTORNEY TO BE NOTICED
Neil Anthony Giovanatti (See above for address) ATTORNEY TO BE NOTICED
Sharon Vicky Sprayregen (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer C. Simon Office of the Attorney General of the State of New York 120 Broadway, 24th fl. New York, NY 10271 212-416-6556 Email: jennifer.simon@ag.ny.gov LEAD ATTORNEY
Antoinette W Blanchette NYS Office of the Attorney General 28 Liberty Street New York, NY 10005 212-416-8595 Fax: 212-416-6009 Email:

Defendant New York State Office of Children and Family Services TERMINATED: 01/27/2017
Defendant Gladys Carrion Commissioner of the New York City Administration for Childrens Services, in her official capacity TERMINATED: 12/04/2019

Antoinette.Blanchette@ag.ny.gov ATTORNEY TO BE NOTICED
Samantha Leigh Buchalter New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212-416-6582 Fax: 212-416-6009 Email: samantha.buchalter@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Jennifer C. Simon (See above for address) LEAD ATTORNEY
Antoinette W Blanchette (See above for address) ATTORNEY TO BE NOTICED
Samantha Leigh Buchalter (See above for address) ATTORNEY TO BE NOTICED
represented by Ian William Forster (See above for address) ATTORNEY TO BE NOTICED
Jonathan L. Pines (See above for address) ATTORNEY TO BE NOTICED
Lauren Almquist Lively (See above for address) ATTORNEY TO BE NOTICED
Neil Anthony Giovanatti (See above for address) ATTORNEY TO BE NOTICED
Sharon Vicky Sprayregen

Defendant
David Hansel Commissioner of the New York City Administration for Children's Services, in his official capacity
Defendant
The New York State Office of Children and Family Services
Defendant
Sheila J. Poole Acting Commissioner of the New York State Office of Children and Family Services, in her official capacity

(See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer C. Simon (See above for address) TERMINATED: 02/02/2017 LEAD ATTORNEY
Antoinette W Blanchette (See above for address) ATTORNEY TO BE NOTICED
Cara Brown Chomski New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212)-416-8177 Fax: (212)-416-6009 Email: cara.chomski@ag.ny.gov ATTORNEY TO BE NOTICED
Roderick Leopold Arz New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212-416-8633 Fax: 212-416-6009 Email: Roderick.Arz@ag.ny.gov ATTORNEY TO BE NOTICED
Samantha Leigh Buchalter (See above for address) ATTORNEY TO BE NOTICED

Nominal Defendant Non-party agency
ADR Provider Non-party agency
Intervenor The Legal Aid Society

represented by Celia Goldwag Barenholtz Cooley LLP 1114 Avenue of the Americas New York, NY 10036 (212) 479-6330 Fax: (212) 202-4711 Email: cbarenholtz@cooley.com ATTORNEY TO BE NOTICED
Kara Corinne Wilson Cooley LLP (NY) 1114 Avenue of the Americas New York, NY 10036 (212)-479-6545 Fax: (212)-479-6275 Email: kwilson@cooley.com ATTORNEY TO BE NOTICED
Lisa Freeman The Legal Aid Society 199 Water Street New York, NY 10038 212 577 7982 Fax: 646 616 4982 Email: lafreeman@legal-aid.org ATTORNEY TO BE NOTICED
Stephanie B Turner Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, NY 10001-8602 973-978-9253 Email: sturner@cooley.com ATTORNEY TO BE NOTICED
Tamara A. Steckler The Legal Aid Society 199 Water Street

Intervenor Lawyers for Children, Inc.

New York, NY 10038 (212)-577-3502 Fax: (212)-577-3521 Email: tasteckler@legal-aid.org ATTORNEY TO BE NOTICED
Theresa Beth Moser The Legal Aid Society (Juvenile Rights Division ) 199 Water Street New York, NY 10038 (212)-577-3284 Fax: (212)-577-3520 Email: tbmoser@legal-aid.org ATTORNEY TO BE NOTICED
Victoria Anna Foltz Cordova Faegre Drinker Biddle & Reath LLP One Logan Square Suite 2000 Philadelphia, PA 19103 215-988-1191 Email: vfoltz@cooley.com ATTORNEY TO BE NOTICED
represented by Betsy Kramer Lawyers For Children 110 Lafayette Street New York, NY 10013 (212)-966-6420 Email: bkramer@lawyersforchildren.org ATTORNEY TO BE NOTICED
Celia Goldwag Barenholtz (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Karen J. Freedman Lawyers for Children, Inc., 110 Lafayette St

Intervenor The Children's Law Center of New York
Intervenor Center for Family Representation

8th Flr. New York, NY 10013 (212)-966-6420 Fax: (212)-966-0531 Email: kfreedman@lawyersforchildren.org ATTORNEY TO BE NOTICED
Stephanie B Turner (See above for address) ATTORNEY TO BE NOTICED
Victoria Anna Foltz Cordova (See above for address) ATTORNEY TO BE NOTICED
represented by Celia Goldwag Barenholtz (See above for address) ATTORNEY TO BE NOTICED
Kara Corinne Wilson (See above for address) ATTORNEY TO BE NOTICED
Stephanie B Turner (See above for address) ATTORNEY TO BE NOTICED
Victoria Anna Foltz Cordova (See above for address) ATTORNEY TO BE NOTICED
represented by Audra Jan Soloway Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3289 Fax: 212-492-0289 Email: asoloway@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Jordan Hamilton

Intervenor Bronx Defenders

Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (914)-262-9708 Fax: (212)-492-0936 Email: chamilton@paulweiss.com ATTORNEY TO BE NOTICED
Daniel H. Levi Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3497 Fax: 212-492-0497 Email: dlevi@paulweiss.com ATTORNEY TO BE NOTICED
Luke Xavier Flynn-Fitzsimmons Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of The Americas New York, NY 10019 (212)-373-3338 Fax: (212)-492-0338 Email: lflynnfitzsimmons@paulweiss.com TERMINATED: 03/05/2020
represented by Audra Jan Soloway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Jordan Hamilton (See above for address) ATTORNEY TO BE NOTICED
Daniel H. Levi (See above for address) ATTORNEY TO BE NOTICED
Luke Xavier Flynn-Fitzsimmons

Intervenor Brooklyn Defender Service
Intervenor Neighborhood Defender Service of Harlem

(See above for address) TERMINATED: 03/05/2020
represented by Audra Jan Soloway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Jordan Hamilton (See above for address) ATTORNEY TO BE NOTICED
Daniel H. Levi (See above for address) ATTORNEY TO BE NOTICED
Luke Xavier Flynn-Fitzsimmons (See above for address) TERMINATED: 03/05/2020
represented by Audra Jan Soloway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Jordan Hamilton (See above for address) ATTORNEY TO BE NOTICED
Daniel H. Levi (See above for address) ATTORNEY TO BE NOTICED
Luke Xavier Flynn-Fitzsimmons (See above for address) TERMINATED: 03/05/2020

Date Filed 07/08/2015

# Docket Text
1 COMPLAINT against Gladys Carrion, New York City Administration for Childrens Services, New York State Office of Children and Family Services, SHEILA J. POOLE, State Of New York, The City Of New York,. Document filed by XAVION M., THIERRY E., DAMEON C., BRITTNEY W., ALEXANDRIA R, TYRONE M., AYANNA J., ELISA

07/08/2015 07/08/2015 07/08/2015 07/08/2015 07/08/2015
07/08/2015 07/08/2015 07/08/2015 07/08/2015

W, Letitia James, OLIVIA and ANA-MARIA R.. (Attachments: # 1 Appendix A, # 2 Exhibit 1)(North, Julie) (Entered: 07/08/2015)
2 REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
3 REQUEST FOR ISSUANCE OF SUMMONS as to New York City Administration for Children's Services, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Gladys Carrion, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
5 REQUEST FOR ISSUANCE OF SUMMONS as to The State of New York, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
6 REQUEST FOR ISSUANCE OF SUMMONS as to The New York State Office of Children and Family Services, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANAMARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Sheila J. Poole, re: 1 Complaint,. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
8 CIVIL COVER SHEET filed. (North, Julie) (Entered: 07/08/2015)
9 MOTION to Certify Class . Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W..(North, Julie) (Entered: 07/08/2015)
10 DECLARATION of Marcia Robinson Lowry in Support re: 9 MOTION to Certify Class .. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M.,

07/08/2015 07/08/2015 07/08/2015 07/09/2015
07/09/2015
07/09/2015
07/09/2015 07/09/2015

ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
11 DECLARATION of Julie A. North in Support re: 9 MOTION to Certify Class .. Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
12 MEMORANDUM OF LAW in Support re: 9 MOTION to Certify Class . . Document filed by DAMEON C., THIERRY E., AYANNA J., Letitia James, TYRONE M., XAVION M., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)
Case Opening Fee Paid electronically via Pay.gov: for 1 Complaint,. Filing fee $ 400.00. Pay.gov receipt number 0208-11125169, paid on 7/8/2015. (laq) (Entered: 07/08/2015)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Julie A. North. The party information for the following party/parties has been modified: Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Shiela J. Poole, Alexanddria R., Ana-Maria R., The City of New York, Brittney W. The information for the party/parties has been modified for the following reason/reasons: party name was entered in all caps. (laq) (Entered: 07/09/2015)
***NOTICE TO ATTORNEY REGARDING CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Julie North. The following case opening statistical information was erroneously selected/entered: Cause of Action code 42cv1983dr. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 42cv1983. (laq) (Entered: 07/09/2015)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Laura Taylor Swain. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (laq) (Entered: 07/09/2015)
Magistrate Judge Henry B. Pitman is so designated. (laq) (Entered: 07/09/2015)
Case Designated ECF. (laq) (Entered: 07/09/2015)

07/09/2015 07/09/2015 07/09/2015 07/09/2015 07/09/2015 07/09/2015 07/09/2015
07/09/2015
07/09/2015
07/09/2015
07/09/2015

13 ELECTRONIC SUMMONS ISSUED as to Gladys Carrion. (laq) (Entered: 07/09/2015)
14 ELECTRONIC SUMMONS ISSUED as to City of New York. (laq) (Entered: 07/09/2015)
15 ELECTRONIC SUMMONS ISSUED as to New York State Office of Children and Family Services. (laq) (Main Document 15 replaced on 7/9/2015) (laq). (Entered: 07/09/2015)
16 ELECTRONIC SUMMONS ISSUED as to Sheila J. Poole. (laq) (Entered: 07/09/2015)
17 ELECTRONIC SUMMONS ISSUED as to New York City Administration for Childrens Services. (laq) (Entered: 07/09/2015)
18 ELECTRONIC SUMMONS ISSUED as to State Of New York. (laq) (Entered: 07/09/2015)
19 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Gladys Carrion served on 7/9/2015, answer due 7/30/2015. Service was accepted by B. Mazyck, New York City Law Department. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
20 SUMMONS RETURNED EXECUTED Summons and Complaint, served. City of New York served on 7/9/2015, answer due 7/30/2015. Service was accepted by B. Mazyck, New York City Law Department. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
21 SUMMONS RETURNED EXECUTED Summons and Complaint, served. New York City Administration for Childrens Services served on 7/9/2015, answer due 7/30/2015. Service was accepted by B. Mazyck, New York City Law Department. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
22 SUMMONS RETURNED EXECUTED Summons and Complaint, served. State Of New York served on 7/9/2015, answer due 7/30/2015. Service was accepted by Bryant Gordon, Office of the Attorney General of the State of New York. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
23 SUMMONS RETURNED EXECUTED Summons and Complaint, served. New York State Office of Children and Family Services served

07/09/2015 07/09/2015
07/09/2015 07/09/2015

on 7/9/2015, answer due 7/30/2015. Service was accepted by Kerri Barber, Child Welfare Services. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
24 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Sheila J. Poole served on 7/9/2015, answer due 7/30/2015. Service was accepted by Kerri Barber, Child Welfare Services. Document filed by Dameon C.; Alexandria R.; ELISA W; Xavion M.; Thierry E.; Brittney W.; Tyrone M.; Ayanna J.; Letitia James; Ana-Maria R.. (North, Julie) (Entered: 07/09/2015)
25 CERTIFICATE OF SERVICE of NOTICE OF MOTION FOR CLASS CERTIFICATION, DECLARATION OF MARCIA ROBINSON LOWRY IN SUPPORT OF PLAINTIFF CHILDRENS MOTION FOR CLASS CERTIFICATION, DECLARATION OF JULIE A. NORTH IN SUPPORT OF PLAINTIFF CHILDRENS MOTION FOR CLASS CERTIFICATION and MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF CHILDRENS MOTION FOR CLASS CERTIFICATION served on Gladys Carrion, Commissioner of the New York City Administration for Children's Services, in her official capacity; The City of New York; The New York City Administration for Children's Services on 7/9/15. Service was accepted by B. Mazyck at the New York City Law Department and Bryant Gordon at The Office of the Attorney General for the State of New York. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 07/09/2015)
26 CERTIFICATE OF SERVICE of NOTICE OF MOTION FOR CLASS CERTIFICATION, DECLARATION OF MARCIA ROBINSON LOWRY IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS CERTIFICATION, DECLARATION OF JULIE A. NORTH IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS CERTIFICATION and MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS CERTIFICATION served on The New York State Office of Children and Family Services on 7/9/15. Service was accepted by Kerri Barber, Child Welfare Services. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 07/09/2015)
27 CERTIFICATE OF SERVICE of NOTICE OF MOTION FOR CLASS CERTIFICATION, DECLARATION OF MARCIA ROBINSON LOWRY IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS CERTIFICATION, DECLARATION OF JULIE A. NORTH IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS

07/15/2015 07/15/2015 07/15/2015 07/16/2015 07/17/2015 07/21/2015
07/23/2015 07/27/2015

CERTIFICATION and MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF CHILDREN'S MOTION FOR CLASS CERTIFICATION served on Sheila J. Poole, Acting Commissioner of the New York State Office of Children and Family Services, in her official capacity on 7/9/15. Service was accepted by Kerri Barber, Child Welfare Services. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 07/09/2015)
28 NOTICE OF APPEARANCE by Jennifer L. Levy on behalf of Letitia James. (Levy, Jennifer) (Entered: 07/15/2015)
29 NOTICE OF APPEARANCE by Neil Anthony Giovanatti on behalf of Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 07/15/2015)
30 NOTICE OF APPEARANCE by Marcia Robinson Lowry on behalf of Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (Lowry, Marcia) (Entered: 07/15/2015)
32 INITIAL CONFERENCE ORDER: Initial Conference set for 10/8/2015 at 11:30 AM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain. (See Order.) (Signed by Judge Laura Taylor Swain on 7/16/2015) (ajs) (Entered: 07/17/2015)
31 NOTICE OF APPEARANCE by Lauren Almquist Lively on behalf of Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Lively, Lauren) (Entered: 07/17/2015)
33 ORDER terminating 9 Motion to Certify Class. It is hereby ORDERED, that the above-referenced motion is hereby TERMINATED for purposes of the Court's docket, without prejudice to reinstatement upon application, upon notice to adverse parties and accompanied by the requisite certification; it is further ORDERED, that no response to the motion is required unless a reinstatement application is granted, in which case the time to respond of any adverse party will be calculated from the date of service of the order of reinstatement and in accordance with Local Civil Rule 6.1 of the United States District Court for the Southern District of New York. (As set forth within this Order.) (Signed by Judge Laura Taylor Swain on 7/20/2015) (ajs) (Entered: 07/21/2015)
34 NOTICE OF APPEARANCE by Jonathan L. Pines on behalf of Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Pines, Jonathan) (Entered: 07/23/2015)
35 CERTIFICATE OF SERVICE of Initial Conference Order filed July 16th, 2015 served on City of New York; New York City Administration for Children's Services; State Of New York; New York State Office of

07/28/2015 07/28/2015 07/29/2015 07/29/2015 08/24/2015 09/01/2015
09/01/2015

Children and Family Services; Gladys Carrion, Commissioner of the New York City Administration for Children's Services, in her official capacity; Sheila J. Poole, Acting Commissioner of the New York State Office of Children and Family Services, in her official capacity on July 27, 2014. Service was made by Mail. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 07/27/2015)
36 FIRST LETTER MOTION for Extension of Time to File Answer addressed to Judge Laura Taylor Swain from Lauren Almquist Lively dated July 28, 2015. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Lively, Lauren) (Entered: 07/28/2015)
37 CONSENT LETTER MOTION for Extension of Time to File Answer addressed to Judge Laura Taylor Swain from William H. Bristow III dated July 28, 2015. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Bristow, William) (Entered: 07/28/2015)
38 ORDER granting 36 Letter Motion for Extension of Time to Answer. The request is granted. DE #36 resolved. (Signed by Judge Laura Taylor Swain on 7/29/2015) (kl) (Entered: 07/29/2015)
39 ORDER granting 37 Letter Motion for Extension of Time to Answer. The request is granted. DE #37 resolved. (Signed by Judge Laura Taylor Swain on 7/29/2015) (kl) (Entered: 07/29/2015)
40 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Laura Taylor Swain from Julie A. North dated August 24, 2015. Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(North, Julie) (Entered: 08/24/2015)
41 MEMO ENDORSEMENT on re: 40 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Laura Taylor Swain from Julie A. North dated August 24, 2015. filed by Alexandria R., Brittney W., Olivia R., Tyrone M., Xavion M., Ana-Maria R., Thierry E., Ayanna J., ELISA W, Dameon C. ENDORSEMENT: This discovery dispute is now referred to Magistrate Judge Pitman. Counsel are requested to contact Judge Pitman's Chambers promptly to request the conference. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/31/2015) (ajs) (Entered: 09/01/2015)
42 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute: Discovery dispute specified in joint letter of August 24, 2015. (Docket Entry No. 40.)

09/02/2015
09/08/2015 09/14/2015 09/14/2015 09/24/2015 09/24/2015
09/26/2015

Referred to Magistrate Judge Henry B. Pitman. Motions referred to Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 9/1/2015) (ajs) (Entered: 09/01/2015)
43 LETTER MOTION for Local Rule 37.2 Conference (Pursuant to Judge Swain's September 1, 2015 Orders - Docket Nos. 41 and 42) addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated September 2, 2015. Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(North, Julie) (Entered: 09/02/2015)
A discovery conference is set for 9/14/2015 at 04:00 PM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (bh) (Entered: 09/08/2015)
44 NOTICE OF APPEARANCE by Nicole Marie Peles on behalf of Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (Peles, Nicole) (Entered: 09/14/2015)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 9/14/2015. (bh) (Entered: 09/14/2015)
45 LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated September 24, 2015. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Simon, Jennifer) (Entered: 09/24/2015)
46 LETTER MOTION for Extension of Time under Proposed Modification of Initial Conf. Order addressed to Judge Laura Taylor Swain from Jonathan Pines dated September 24, 2015. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix Initial Conference Order dated 7/16/15)(Pines, Jonathan) (Entered: 09/24/2015)
47 LETTER MOTION for Conference re: 32 Order for Initial Pretrial Conference, 46 LETTER MOTION for Extension of Time under Proposed Modification of Initial Conf. Order addressed to Judge Laura Taylor Swain from Jonathan Pines dated September 24, 2015., 45 LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated September 24, 2015. addressed to Judge Laura Taylor Swain from Nicole M. Peles dated 9/26/15. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(Peles, Nicole) (Entered: 09/26/2015)

09/28/2015 10/06/2015
10/20/2015 10/22/2015
10/23/2015 10/23/2015

48 ORDER granting 45 Letter Motion to Adjourn Conference. The foregoing scheduled changes are approved. SO ORDERED. Pretrial Conference set for 1/8/2016 at 10:30 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 9/25/2015) (ajs) (Entered: 09/28/2015)
49 ORDER: A conference having been held in this matter on September 14, 2015 during which a dispute concerning the protective order was discussed, after hearing counsel for all parties, for the reasons stated on the record in open court, it is hereby ORDERED that: 1. Plaintiffs' application to require the inclusion of an anti-retaliatory provision in the protective order is denied without prejudice to renewal for good cause shown. If plaintiffs have reason to believe that defendants are engaging in retaliatory conduct, they are encouraged to bring such conduct to my attention promptly. (Signed by Magistrate Judge Henry B. Pitman on 10/6/2015) Copies Sent By Chambers. (lmb) (Entered: 10/06/2015)
50 SETTLEMENT AGREEMENT . Document filed by Letitia James.(Levy, Jennifer) (Entered: 10/20/2015)
51 ORDER: A proposed Consent Decree resolving the above-captioned action as against the State Defendants was filed on the electronic docket on October 20, 2105. (Docket Entry No. 50.) This Consent Decree calls for certification of the proposed class in connection with settlement. The parties are hereby reminded that the settlement of a certified class action requires approval under Federal Rule of Civil Procedure 23(e), through procedures including notice, a hearing and the submission of evidence establishing that the settlement is fair, reasonable and adequate. The parties are hereby directed to consult with each other and propose to the Court by October 26, 2015, a schedule for the necessary motion practice. The proposal must be set forth in a letter filed on the ECF system, with a courtesy copy provided to Chambers as required by the Individual Practice Rules of the undersigned. (Signed by Judge Laura Taylor Swain on 10/22/2015) (mro) (Entered: 10/23/2015)
52 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference regarding disclosure of Plaintiff Children's identities to their Family Court attorneys, parents/guardians, and parents'/guardians' attorneys -- addressed to Judge Laura Taylor Swain from Jonathan Pines dated 10/23/15. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) Modified on 10/27/2015 (ldi). (Entered: 10/23/2015)
53 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - AMENDED LETTER MOTION for Conference (supplying previously omitted exhibit) addressed to Judge Laura Taylor Swain from Jonathan Pines dated 10/23/15. Document filed by Gladys Carrion, City

10/25/2015 10/26/2015 10/26/2015 10/26/2015 10/26/2015 10/26/2015

of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix Advocates' Press Statement)(Pines, Jonathan) Modified on 10/27/2015 (ldi). (Entered: 10/23/2015)
54 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - SECOND LETTER MOTION for Conference (2d amended letter, with exhibit) addressed to Judge Laura Taylor Swain from Jonathan Pines dated October 23, 2015. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix Advocates Groups' Press Statement')(Pines, Jonathan) Modified on 10/26/2015 (db). (Entered: 10/25/2015)
55 TRANSCRIPT of Proceedings re: Discovery Hearing held on 9/14/2015 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/19/2015. Redacted Transcript Deadline set for 11/30/2015. Release of Transcript Restriction set for 1/27/2016.(ca) (Entered: 10/26/2015)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 09/14/2015 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(ca) (Entered: 10/26/2015)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Notice to Attorney Jonathan L. Pines to RE-FILE Document 54 SECOND LETTER MOTION for Conference (2d amended letter, with exhibit) addressed to Judge Laura Taylor Swain from Jonathan Pines dated October 23, 2015. Use the event type Letter found under the event list Other Documents. (db) (Entered: 10/26/2015)
57 FOURTH LETTER addressed to Judge Laura Taylor Swain from Jonathan Pines dated October 23, 2015 re: Disclosure of Plaintiff Children's names to their Fam. Ct. lawyers, parents/guardians & their Fam. Ct. lawyers. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix Advocate Groups' Press Statement)(Pines, Jonathan) (Entered: 10/26/2015)
58 JOINT LETTER addressed to Judge Laura Taylor Swain from Nicole M. Peles dated October 26, 2015 re: October 22, 2015 Order regarding

10/26/2015 10/27/2015
10/27/2015 10/27/2015 10/28/2015

scheduling of events relating to the proposed Consent Decree on behalf of Plaintiffs and State Defendants. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(Peles, Nicole) (Entered: 10/26/2015)
59 LETTER addressed to Judge Laura Taylor Swain from Nicole M. Peles dated October 26, 2015 re: City Defendants' October 23, 2015 request to disclose the identities of Named Plaintiff Children (Dkt. No. 57). Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (Attachments: # 1 Exhibit A)(Peles, Nicole) (Entered: 10/26/2015)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Notice to Attorney Jonathan L. Pines to RE-FILE Document 52 LETTER MOTION for Conference regarding disclosure of Plaintiff Children's identities to their Family Court attorneys, parents/guardians, and parents'/guardians' attorneys - addressed to Judge Laura Taylor Swain from Jonathan, 53 AMENDED LETTER MOTION for Conference (supplying previously omitted exhibit) addressed to Judge Laura Taylor Swain from Jonathan Pines dated 10/23/15. Use the event type Letter found under the event list Other Documents. (ldi) (Entered: 10/27/2015)
60 LETTER addressed to Judge Laura Taylor Swain from Vaughn C. Williams dated 10/27/15 re: the October 23, 2015 Request by the City of New York. Document filed by The Legal Aid Society, Lawyers for Children, Inc., The Children's Law Center of New York.(Goldstein, Heidi) (Entered: 10/27/2015)
61 MEMO ENDORSEMENT on re: 58 Letter, filed by Alexandria R., Brittney W., Olivia R., Tyrone M., Xavion M., Ana-Maria R., Thierry E., Letitia James, Ayanna J., ELISA W, Dameon C. ENDORSEMENT: The proposed schedule for initiation of the motion practice is approved. The parties' proposed preliminary approval order should make provision for the setting of the additional dates identified above., ( Motions due by 11/13/2015.) (Signed by Judge Laura Taylor Swain on 10/27/2015) (lmb) (Entered: 10/27/2015)
62 FILING ERROR - DEFICIENT DOCKET ENTRY - FILER ERROR (See #63) LETTER addressed to Judge Laura Taylor Swain from Nicole M. Peles dated October 28, 2015 re: responding to October 27, 2015 letter from Vaughn Williams (ECF docket 160). Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..

10/28/2015 10/29/2015 10/29/2015 10/30/2015
11/05/2015 11/06/2015

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Peles, Nicole) Modified on 10/28/2015 (kj). (Entered: 10/28/2015)
63 LETTER addressed to Judge Laura Taylor Swain from Nicole M. Peles dated October 28, 2015 re: the October 27, 2015 letter from Vaughn Williams (Dkt. No. 60). Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Peles, Nicole) (Entered: 10/28/2015)
64 ORDER: This matter will be referred to Magistrate Judge Henry B. Pitman for a conference regarding the notice procedure and structure for objections associated with the anticipated motion for class certification. Judge Pitman's Chambers will contact the parties to schedule a conference at a time convenient to all parties. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 10/29/2015) (spo) (Entered: 10/29/2015)
65 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute Conference regarding notice procedure and structure for objections associated with anticipated motion for class certification. (See Docket Entry Nos. 51 , 61 .) Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 10/29/2015) (spo) (Entered: 10/29/2015)
66 ORDER: It is my understanding that the parties have reached a tentative settlement in this matter which includes certification of what is currently a putative class. Given the nature of the plaintiffs and the nature of the allegations, this action appears to present unusual issues concerning the method by which notice will be provided to class members and the method by which objections and opt-out notices will be received. Among other things, it is not clear to me to whom notice should be provided nor is it clear how objections should be received. Presumably, objections and opt-out notices must be submitted in a manner that preserves the anonymity of infant class members. Counsel are directed to confer concerning these issues (and any other related issues) and to submit a joint letter to me concerning these matters no later than November 16, 2015. If the parties are unable to agree on a joint proposal, the joint letter should contain each side's proposal. (Signed by Magistrate Judge Henry B. Pitman on 10/30/2015) (kgo) (Entered: 10/30/2015)
67 NOTICE OF APPEARANCE by Molly Anne Thomas-Jensen on behalf of Letitia James. (Thomas-Jensen, Molly) (Entered: 11/05/2015)
68 LETTER MOTION for Extension of Time to File Joint Motion for Preliminary Approval and Joint Letter addressed to Magistrate Judge Henry Pitman and addressed to Judge Laura Taylor Swain from Nicole M. Peles dated November 6, 2015. Document filed by Dameon C.,

11/09/2015 11/09/2015 11/12/2015
11/12/2015
11/12/2015 11/17/2015 11/18/2015 11/18/2015 11/20/2015 11/20/2015

Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(Peles, Nicole) (Entered: 11/06/2015)
69 ORDER granting 68 Letter Motion for Extension of Time to File. Application granted. (Signed by Magistrate Judge Henry B. Pitman on 11/9/2015) (lmb) (Entered: 11/09/2015)
Set/Reset Deadlines: Motions due by 12/11/2015. (lmb) (Entered: 11/09/2015)
70 LETTER MOTION for Extension of Time to File Answer re: 1 Complaint, addressed to Judge Laura Taylor Swain from Jonathan Pines dated November 12, 2015. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. Return Date set for 12/4/2015 at 11:59 PM.(Pines, Jonathan) (Entered: 11/12/2015)
71 LETTER addressed to Judge Laura Taylor Swain from Nicole M. Peles dated November 12, 2015 re: City Defendants' November 12, 2015 request for a two week adjournment of the deadline to respond to the Complaint (ECF No. 70). Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., AnaMaria R., Olivia R., ELISA W, Brittney W..(Peles, Nicole) (Entered: 11/12/2015)
72 ORDER granting 70 Letter Motion for Extension of Time to Answer. City Defendant must respond to the Complaint by December 4, 2015. DE #70 resolved. (City of New York answer due 12/4/2015.) (Signed by Judge Laura Taylor Swain on 11/12/2015) (spo) (Entered: 11/12/2015)
73 LETTER MOTION for Extension of Time Regarding Dates Set by Initial Conference Order addressed to Judge Laura Taylor Swain from Jonathan Pines dated 11/17/2015. Document filed by City of New York.(Pines, Jonathan) (Entered: 11/17/2015)
74 ORDER granting 73 Letter Motion for Extension of Time. The proposed schedule is approved. The initial pretrial conference will be held on January 22, 2016, at 11:45 AM. DE #73 resolved. (Signed by Judge Laura Taylor Swain on 11/18/2015) (spo) (Entered: 11/18/2015)
Set/Reset Hearings: Initial Conference set for 1/22/2016 at 11:45 AM before Judge Laura Taylor Swain. (spo) (Entered: 11/18/2015)
75 MOTION to Certify Class . Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(North, Julie) (Entered: 11/20/2015)
76 MEMORANDUM OF LAW in Support re: 75 MOTION to Certify Class . . Document filed by Dameon C., Thierry E., Ayanna J., Tyrone

11/20/2015 11/20/2015 11/24/2015 12/04/2015
12/07/2015 12/11/2015
12/14/2015 12/14/2015

M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 11/20/2015)
77 DECLARATION of Julie A. North in Support re: 75 MOTION to Certify Class .. Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 11/20/2015)
78 DECLARATION of Marcia Robinson Lowry in Support re: 75 MOTION to Certify Class .. Document filed by Dameon C., Thierry E., Ayanna J., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W.. (North, Julie) (Entered: 11/20/2015)
79 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Laura Taylor Swain on 11/24/2015) (lmb) (Entered: 11/24/2015)
80 JOINT LETTER MOTION for Extension of Time for Various Deadlines due to Anticipated Filing of Amended Complaint addressed to Judge Laura Taylor Swain from Jonathan Pines dated December 4, 2015. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 12/04/2015)
81 ORDER granting 80 Letter Motion for Extension of Time for Various Deadlines due to Anticipated Filing of Amended Complaint. The foregoing requests are granted. DE #80 resolved. SO ORDERED. (Amended Pleadings due by 12/28/2015.) (Signed by Judge Laura Taylor Swain on 12/7/2015) (kko) (Entered: 12/07/2015)
82 LETTER MOTION for Extension of Time to File preliminary approval papers and joint letter addressed to Magistrate Judge Henry Pitman and addressed to Judge Laura Taylor Swain from Nicole M. Peles dated December 11, 2015. Document filed by Dameon C., Thierry E., Ayanna J., Letitia James, Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., ELISA W, Brittney W..(Peles, Nicole) (Entered: 12/11/2015)
83 ORDER granting 82 Letter Motion for Extension of Time to File. Application granted. (Signed by Magistrate Judge Henry B. Pitman on 12/14/2015) (lmb) (Entered: 12/14/2015)
84 MEMO ENDORSEMENT on re: 82 LETTER MOTION for Extension of Time to File preliminary approval papers and joint letter addressed to Magistrate Judge Henry Pitman and addressed to Judge Laura Taylor Swain from Nicole M. Peles dated December 11, 2015. filed by Alexandria R., Brittney W., Olivia R., Tyrone M., Xavion M., Ana-Maria R., Thierry E., Letitia James, Ayanna J., ELISA W, Dameon C. ENDORSEMENT: The foregoing schedule modifications are approved,

12/28/2015
12/28/2015 12/28/2015 12/28/2015 12/28/2015 12/29/2015

DE #82 resolved. (Signed by Judge Laura Taylor Swain on 12/14/2015) (mro) (Entered: 12/15/2015)
86 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR - AMENDED COMPLAINT amending 1 Complaint, against All Defendants.Document filed by Olivia R., Dameon C., Alexandria R., ELISA W, Xavion M., Thierry E., Brittney W., Tyrone M., Ayanna J., Letitia James, Ana-Maria R., Valentina T.C., Matthew V., Mikayla G., Myls J., Jose T.C., Lucas T., Emmanuel S., Ximena T., Malik M.. Related document: 1 Complaint, filed by Alexandria R., Brittney W., Tyrone M., Xavion M., Ana-Maria R., Thierry E., Letitia James, Ayanna J., ELISA W, Dameon C.. (Attachments: # 1 Appendix A to Amended Complaint, # 2 Exhibit 1 to Amended Complaint)(North, Julie) Modified on 12/29/2015 (moh). (Entered: 12/28/2015)
87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., ELISA W, Brittney W..(North, Julie) (Entered: 12/28/2015)
88 MEMORANDUM OF LAW in Support re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., ELISA W, Brittney W.. (North, Julie) (Entered: 12/28/2015)
89 DECLARATION of Marcia Robinson Lowry in Support re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., ELISA W, Brittney W.. (North, Julie) (Entered: 12/28/2015)
90 DECLARATION of Julie A. North in Support re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., ELISA W, Brittney W.. (North, Julie) (Entered: 12/28/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Julie North to RE-FILE Document No. 86 Amended Complaint. The filing is deficient for the following reason(s): the All Defendant radio button was selected. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the

12/29/2015
01/18/2016 01/19/2016 01/19/2016 01/20/2016 01/20/2016

correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (moh) (Entered: 12/29/2015)
91 AMENDED COMPLAINT amending 1 Complaint, against Gladys Carrion, City of New York, New York City Administration for Childrens Services, New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.Document filed by Olivia R., Myls J., Dameon C., Mikayla G., Alexandria R., Emmanuel S., ELISA W, Xavion M., Thierry E., Valentina T.C., Brittney W., Matthew V., Lucas T., Tyrone M., Malik M., Ayanna J., Ximena T., Letitia James, Jose T.C., Ana-Maria R.. Related document: 1 Complaint, filed by Alexandria R., Brittney W., Tyrone M., Xavion M., Ana-Maria R., Thierry E., Letitia James, Ayanna J., ELISA W, Dameon C.. (Attachments: # 1 Appendix A to Amended Complaint, # 2 Exhibit 1 to Amended Complaint)(North, Julie) (Entered: 12/29/2015)
93 JOINT LETTER MOTION for Extension of Time to File Response to Complaint, to Adjourn City Defs' Opp. to Class Certification, and to ReSchedule Meet & Confer re: Initial Conference Order Obligations; addressed to Judge Laura Taylor Swain from Jonathan Pines dated January 18, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 01/18/2016)
94 ORDER granting 93 Letter Motion for Extension of Time to File Response to Complaint, to Adjourn City Defs' Opp. to Class Certification, and to Re-Schedule Meet & Confer re: Initial Conference Order Obligations. The proposed schedule is approved. (Signed by Judge Laura Taylor Swain on 1/19/2016) (kko) (Entered: 01/19/2016)
Set/Reset Deadlines: Gladys Carrion answer due 2/19/2016; City of New York answer due 2/19/2016; New York City Administration for Childrens Services answer due 2/19/2016. (kko) (Entered: 01/19/2016)
95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 01/20/2016)
96 MEMORANDUM OF LAW in Support re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1,

01/21/2016 01/25/2016 01/25/2016
01/26/2016 01/26/2016 01/27/2016

# 2 Exhibit 2, # 3 Exhibit 3, # 4 Appendix A, # 5 Appendix B)(North, Julie) (Entered: 01/20/2016)
97 ORDER: In light of the pending motion practice in this case, the initial pretrial conference currently scheduled for Friday, January 22, 2016, at 11:45 a.m. is hereby adjourned to Thursday, March 31,2016 at 11:00 a.m. (Initial Conference set for 3/31/2016 at 11:00 AM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 1/21/2016) (spo) (Entered: 01/21/2016)
98 FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the abovecaptioned action is voluntarily dismissed, against the defendant(s) All Defendants. Document filed by Letitia James. (Levy, Jennifer) Modified on 1/26/2016 (jk). (Entered: 01/25/2016)
99 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated January 25, 2016 re: Response pursuant to the Court's October 30, 2015 Order (ECF no. 66). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., New York State Office of Children and Family Services, Sheila J. Poole, Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., State Of New York, Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 01/25/2016)
***NOTE TO ATTORNEY TO E-MAIL DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Jennifer Levy to E-MAIL Document No. 98 Notice of voluntary dismissal to judgments@nysd.uscourts.gov. This document is not filed via ECF. (jk) (Entered: 01/26/2016)
100 NOTICE OF APPEARANCE by Rachel Jennifer Lamorte on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Lamorte, Rachel) (Entered: 01/26/2016)
101 NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)(1)(A)(i) PLEASE TAKE NOTICE THAT pursuant to F.R.C.P. 41(a)(1) (A)(i) of the Federal Rules of Civil Procedure, counsel for the Plaintiff Public Advocate for the City of New York, Letitia James, hereby gives notice that the abovecaptioned action is voluntarily dismissed, without prejudice against the Defendants the CITY OF NEW YORK, the NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES; and GLADYS CARRION, Commissioner of the New York City Administration for Children's Services, in her official

01/29/2016 02/01/2016 02/03/2016

capacity. (Signed by Judge Laura Taylor Swain on 1/27/2016) (spo) (Entered: 01/27/2016)
102 LETTER MOTION for Extension of Time and for Scheduling of Parties' Motions, or, Alternatively, for Conference to Discuss Same addressed to Judge Laura Taylor Swain from Jonathan Pines dated January 29, 2016., LETTER MOTION for Conference re: 91 Amended Complaint,,, 96 Memorandum of Law in Support of Motion,, 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement")., 88 Memorandum of Law in Support of Motion, 90 Declaration in Support of Motion, 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification")., 89 Declaration in Support of Motion, addressed to Judge Laura Taylor Swain from Jonathan Pines dated January 29, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 01/29/2016)
103 LETTER RESPONSE in Opposition to Motion addressed to Judge Laura Taylor Swain from Julie A. North dated February 1, 2016 re: 102 LETTER MOTION for Extension of Time and for Scheduling of Parties' Motions, or, Alternatively, for Conference to Discuss Same addressed to Judge Laura Taylor Swain from Jonathan Pines dated January 29, 2016. LETTER MOTION for Conference re: 91 Amended Complaint,,, 96 Memorandum of Law in Support of Motion,, 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement")., 88 Memorandum of Law i . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., AnaMaria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 02/01/2016)
104 SUPPLEMENTAL LETTER MOTION for Conference re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification")., 89 Declaration in Support of Motion, 96 Memorandum of Law in Support of Motion,, 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement")., 88 Memorandum of Law in Support of Motion, 90 Declaration in Support of Motion, 103 Response in Opposition to Motion,,, 102 LETTER MOTION for Extension of Time and for Scheduling of Parties' Motions, or, Alternatively, for Conference to Discuss Same addressed to Judge Laura Taylor Swain from Jonathan Pines dated January 29, 2016. LETTER MOTION for Conference re: 91 Amended Complaint,,, 96 Memorandum of Law in Support of Motion,, 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement")., 88 Memorandum of

02/04/2016
02/04/2016 02/08/2016 02/08/2016

Law i addressed to Judge Laura Taylor Swain from Jonathan Pines dated February 3, 2016., LETTER MOTION for Extension of Time addressed to Judge Laura Taylor Swain from Jonathan Pines dated February 3, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 02/03/2016)
105 ORDER terminating 102 Letter Motion for Extension of Time; terminating 102 Letter Motion for Conference; terminating 104 Letter Motion for Conference; terminating 104 Letter Motion for Extension of Time. The Court's determinations as to the issues raised are as follows: Any submissions in opposition to the pending motion for preliminary approval of Plaintiffs' proposed settlement with the State Defendants (Docket Entry No. 95) must be filed by February 8, 2016. Any reply papers must be filed by February 16, 2016. Such submissions, if any, should address the issues that the submitter believes are pertinent to preliminary approval, bearing in mind that there will be an opportunity for opposition submissions in connection with final approval. City Defendants' request for postponement of their time to respond to the Complaint is denied, as is their request for a blanket stay of discovery concerning the claims against them and of the motion practice concerning the proposed settlement with the State Defendants. The scheduled approved by the Court's January 19, 2016, letter endorsement (Docket Entry No. 94) remains in effect. This Order resolves Docket Entry Numbers 102 and 104. SO ORDERED. (Signed by Judge Laura Taylor Swain on 2/3/2016) (kl) (Entered: 02/04/2016)
Set/Reset Deadlines: Responses due by 2/8/2016 Replies due by 2/16/2016. (kl) (Entered: 02/04/2016)
106 MEMORANDUM OF LAW in Opposition re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement"). . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Pines, Jonathan) (Entered: 02/08/2016)
107 FILING ERROR - DEFICIENT DOCKET ENTRY(SEE 108 Declaration) - DECLARATION of Jonathan Pines in Opposition re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Exhibit A: Politico article dated October 29, 2015, # 2 Exhibit B: Legal Aid Society Press Statement on Behalf of Children and Parent Advocate Orgs., # 3 Exhibit C: G.K. Order of Preliminary Approval (N.D. OK), # 4 Exhibit D: "Exhibit A" to G.K. Order)(Pines, Jonathan) Modified on 2/9/2016 (db). (Entered: 02/08/2016)

02/09/2016
02/11/2016 02/12/2016 02/16/2016 02/16/2016 02/16/2016 02/19/2016

108 DECLARATION of Jonathan Pines in Opposition re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Exhibit A: Politico article dated October 29, 2015, # 2 Exhibit B: Legal Aid Society Press Statement on Behalf of Children and Parent Advocate Orgs., # 3 Exhibit C: G.K. Order of Preliminary Approval (N.D. OK), # 4 Exhibit D: "Exhibit A" to G.K. Order)(Pines, Jonathan) (Entered: 02/09/2016)
109 LETTER addressed to Judge Laura Taylor Swain from Steckler, Tamara; Freedman, Karen; Simmons, Karen dated February 11, 2016 re: Plaintiffs' Motion for Preliminary Approval of Settlement. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society.(Freeman, Lisa) (Entered: 02/11/2016)
110 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated February 12, 2016 re: the February 11, 2016 letter from Tamara Steckler, Karen Freedman, and Karen Simmons (Dkt. No. 109). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 02/12/2016)
111 NOTICE OF APPEARANCE by Jennifer C. Simon on behalf of New York State Office of Children and Family Services, Sheila J. Poole, State Of New York. (Simon, Jennifer) (Entered: 02/16/2016)
112 REPLY MEMORANDUM OF LAW in Support re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1 [Proposed] Order Preliminarily Approving Settlement)(North, Julie) (Entered: 02/16/2016)
113 DECLARATION of Julie A. North in Support re: 95 MOTION to Approve Settlement ("Notice of Motion for Preliminary Approval of Settlement").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A: Declaration of Lee Dorrance Prochera, # 2 Exhibit B: Conference Call Invitation)(North, Julie) (Entered: 02/16/2016)
114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. Document filed by Gladys Carrion, City of New York, New York City

02/19/2016 02/19/2016 02/19/2016 03/04/2016
03/07/2016 03/07/2016 03/07/2016

Administration for Childrens Services.(Lively, Lauren) (Entered: 02/19/2016)
115 MEMORANDUM OF LAW in Support re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Lively, Lauren) (Entered: 02/19/2016)
116 DECLARATION of Lauren Almquist Lively in Support re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA.. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Lively, Lauren) (Entered: 02/19/2016)
117 ANSWER to 91 Amended Complaint,,,. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Giovanatti, Neil) (Entered: 02/19/2016)
118 ORDER: The Court has received and reviewed the Plaintiff and State Defendants' (the "Moving Parties") January 20, 2016, motion for preliminary approval of the proposed settlement agreement in this case, including approval of the class notice and definition of certified class. (See Docket Entry Nos. 95-96.) The Court has also received and reviewed the submissions in opposition to the Moving Parties' motion for preliminary approval by the City Defendants, The Legal Aid Society, Lawyers For Children and the Childrens Law Center. (See Docket Entry Nos. 106, 108, 109.) The parties are hereby directed to appear for a conference concerning the motion on Monday, March 14, 2016 at 3:00 p.m. (As further set forth in this Order.) (Status Conference set for 3/14/2016 at 03:00 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 3/4/2016) (cf) (Entered: 03/04/2016)
119 MEMORANDUM OF LAW in Opposition re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 03/07/2016)
120 MEMORANDUM OF LAW in Opposition re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. . Document filed by Letitia James. (Levy, Jennifer) (Entered: 03/07/2016)
121 DECLARATION of Jennifer Levy in Opposition re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion,

03/09/2016 03/10/2016 03/10/2016 03/11/2016 03/11/2016 03/14/2016 03/14/2016

and all claims brought under the AACWA.. Document filed by Letitia James. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Levy, Jennifer) (Entered: 03/07/2016)
122 CONSENT LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated March 9, 2016. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Simon, Jennifer) (Entered: 03/09/2016)
123 ORDER granting 122 Letter Motion to Adjourn Conference. The hearing is adjourned to Tuesday, April 5, 2016, at 4:00 p.m. The parties to the proposed amended consent decree should endeavor to file proposed revisions to the notice by Friday, April 1, 2016. (Status Conference set for 4/5/2016 at 04:00 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 3/10/2016) (spo) (Entered: 03/10/2016)
124 LETTER addressed to Judge Laura Taylor Swain from Neil Giovanatti dated March 10, 2016 re: the production of nonparties' confidential information in the Named Plaintiff Children's case files. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Giovanatti, Neil) (Entered: 03/10/2016)
125 MEMO ENDORSEMENT on re: 124 Letter, filed by Gladys Carrion, New York City Administration for Childrens Services, City of New York. ENDORSEMENT: This and all other discovery disputes are now referred to Magistrate Judge Pitman. The parties are directed to contact Judge Pitman's chambers. (Signed by Judge Laura Taylor Swain on 3/11/2016) (cf) (Entered: 03/11/2016)
126 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute: ALL DISCOVERY DISPUTES (DOC # 124 and all other discovery disputes). Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 3/11/2016) (tn) (Entered: 03/11/2016)
127 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated March 14, 2016 re: the production of nonparties' confidential information in the Named Plaintiff Children's case files. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Giovanatti, Neil) (Entered: 03/14/2016)
128 LETTER MOTION for Extension of Time to File Response/Reply as to 116 Declaration in Support of Motion, 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion,

03/15/2016
03/15/2016 03/16/2016 03/18/2016 03/23/2016

and all claims brought under the AACWA., 115 Memorandum of Law in Support of Motion, addressed to Judge Laura Taylor Swain from Jonathan Pines dated March 14, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 03/14/2016)
129 ORDER granting 128 LETTER MOTION for Extension of Time to File Response/Reply as to 116 Declaration in Support of Motion, 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA., 115 Memorandum of Law in Support of Motion, addressed to Judge Laura Taylor Swain from Jonathan Pines dated March 14, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. The requested adjournment is granted. DE #128 resolved. So ordered. (Replies due by 3/24/2016). (Signed by Judge Laura Taylor Swain on 3/14/2016) (rjm) (Entered: 03/15/2016)
130 ORDER. The initial pretrial conference in this matter presently scheduled for Thursday, March 31, 2016, at 11:00 a.m. is hereby adjourned to Thursday, May 6, 2016, at 10:00 a.m. This adjournment does not affect the conference regarding Plaintiffs' and State Defendants' settlement approval motion, which remains scheduled for Tuesday, April 5, 2016, at 4:00 p.m. (Initial Conference set for 5/6/2016 at 10:00 AM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 3/14/2016) (rjm) (Entered: 03/15/2016)
131 NOTICE OF APPEARANCE by Antoinette W Blanchette on behalf of New York State Office of Children and Family Services, Sheila J. Poole, State Of New York. (Blanchette, Antoinette) (Entered: 03/16/2016)
132 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated March 18, 2016 re: response to Mr. Giovanatti's March 10, 2016 letter regarding the production of nonparties' confidential information contained in the plaintiff foster children's case files. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1)(North, Julie) (Entered: 03/18/2016)
133 LETTER MOTION for Leave to File Excess Pages in City Defendants' Reply Memorandum addressed to Judge Laura Taylor Swain from Lauren Almquist Lively dated March 23, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Lively, Lauren) (Entered: 03/23/2016)

03/24/2016 03/24/2016 04/01/2016 04/01/2016 04/04/2016
04/04/2016 04/04/2016

134 ORDER granting 133 Letter Motion for Leave to File Excess Pages. The request is granted. Docket Entry number 133 is resolved. (Signed by Judge Laura Taylor Swain on 3/22/2016) (spo) (Entered: 03/24/2016)
135 REPLY MEMORANDUM OF LAW in Support re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Lively, Lauren) (Entered: 03/24/2016)
136 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference proposing additional agenda item addressed to Judge Laura Taylor Swain from Jonathan Pines dated April 1, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) Modified on 4/4/2016 (db). (Entered: 04/01/2016)
137 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 1, 2016 re: the Court's March 4, 2016 Order (ECF No. 118). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., AnaMaria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A)(North, Julie) (Entered: 04/01/2016)
138 ORDER re: 124 Letter, filed by Gladys Carrion, New York City Administration for Childrens Services, City of New York, 132 Letter,, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T.: that within ten days of the date of this Order, counsel are directed to submit simultaneous letters addressing whether the foregoing categories of information are relevant to the claims or defenses and the feasability of redacting these categories of information. (Signed by Magistrate Judge Henry B. Pitman on 4/4/2016) Copies Transmitted By Chambers. (tn) (Entered: 04/04/2016)
139 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 4, 2016 re: City Defendants' April 1, 2016 letter (ECF No. 136). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 04/04/2016)
140 LETTER addressed to Judge Laura Taylor Swain from Audra J. Soloway dated April 4, 2016 re: preliminary approval conference. Document filed by Center for Family Representation, Bronx Defenders, Brooklyn

04/04/2016 04/04/2016 04/05/2016 04/05/2016 04/05/2016
04/13/2016

Defender Service, Neighborhood Defender Service of Harlem.(Soloway, Audra) (Entered: 04/04/2016)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Notice to Attorney Jonathan L. Pines to RE-FILE Document 136 LETTER MOTION for Conference proposing additional agenda item addressed to Judge Laura Taylor Swain from Jonathan Pines dated April 1, 2016. Use the event type Letter found under the event list Other Documents. (db) (Entered: 04/04/2016)
141 LETTER addressed to Judge Laura Taylor Swain from Jonathan Pines dated April 1, 2016 re: Proposed Additional Agenda Item for April 5, 2016, Conference. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 04/04/2016)
142 ORDER terminating 75 Motion to Certify Class. In light of Plaintiffs' filing of an Amended Motion for Class Certification on December 28, 2015 (Docket Entry No. 87), the Court respectfully requests that the Clerk terminate Plaintiff's original Motion for Class Certification (Docket Entry No. 75). (Signed by Judge Laura Taylor Swain on 4/1/2016) (spo) (Entered: 04/05/2016)
143 LETTER addressed to Judge Laura Taylor Swain from Tamara Steckler, Karen Freedman and Karen Simmons dated April 5, 2016 re: Plaintiffs' April 1, 2016 Letter (ECF No. 137). Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society.(White, Caroline) (Entered: 04/05/2016)
Minute Entry for proceedings held before Judge Laura Taylor Swain: Motion Hearing held on 4/5/2016 re: 136 LETTER MOTION for Conference proposing additional agenda item addressed to Judge Laura Taylor Swain from Jonathan Pines dated April 1, 2016 filed by Gladys Carrion, New York City Administration for Childrens Services, City of New York. Court reporter Eve Giniger present.MOTION HRG held. As stated on the record today, the Court will grant the preliminary approval of the settlement between named Plaintiff children and State Defendants. Approval will be granted upon receipt of an acceptable revised Proposed Notice and a Proposed Order granting preliminary approval. The Court also expects to receive either an amended Consent Decree or a supplemental rider to the present Consent Decree. Once the discovery issue between counsel for the Plaintiffs and for the City are resolved, the Court will set a schedule for the remainder of the briefing with respect to the motion for class certification. (lan) (Entered: 04/11/2016)
144 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 13, 2016 re: the Named Plaintiff Children's Amended Motion for Class Certification. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M.,

04/14/2016 04/14/2016
04/14/2016 04/15/2016 04/15/2016 04/15/2016

Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1)(North, Julie) (Entered: 04/13/2016)
145 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute: Discovery and scheduling issues raised in Doc # 144. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 4/14/2016) (spo) (Entered: 04/14/2016)
146 MEMO ENDORSEMENT on re: 144 Letter re: The Named Plaintiff Children's Amended Motion for Class Certification, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: The protective order and scheduling issues raised in this letter are now referred to Magistrate Judge Pitman. The parties are directed to contact his chambers promptly to request a conference. (Signed by Judge Laura Taylor Swain on 4/14/2016) (spo) (Entered: 04/14/2016)
147 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated April 14, 2016 re: the Court's April 4, 2016 Order (ECF No. 138). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1)(North, Julie) (Entered: 04/14/2016)
148 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated April 15, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 04/15/2016)
149 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated April 15, 2016 re: Response to Plaintiffs' Letter dated 4/13/16 (Dkt. 144). Document filed by Gladys Carrion, City of New York.(Pines, Jonathan) (Entered: 04/15/2016)
150 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 15, 2016 re: the Court's April 5, 2016 Minute Entry. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., AnaMaria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Proposed Consent Decree)(North, Julie) (Entered: 04/15/2016)

04/18/2016 04/18/2016 04/19/2016 04/22/2016
04/22/2016 04/25/2016

151 TRANSCRIPT of Proceedings re: conference held on 4/5/2016 before Judge Laura Taylor Swain. Court Reporter/Transcriber: Eve Giniger, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/12/2016. Redacted Transcript Deadline set for 5/23/2016. Release of Transcript Restriction set for 7/21/2016.(McGuirk, Kelly) (Entered: 04/18/2016)
152 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 4/5/16 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/18/2016)
153 ORDER: The Court has received and reviewed Plaintiffs' Proposed Order Preliminarily Approving the Settlement, which includes the Proposed Notice to class members. (Submitted via email to Orders & Judgments Clerk; Proposed Notice also at Docket Entry No. 150, Attachment # 1, Ex. A (ECF pps. 25-31 ).) The Court directs Plaintiffs to edit the Proposed Notice in accordance with the revisions annexed hereto and submit an updated version to the Court promptly. (Signed by Judge Laura Taylor Swain on 4/19/2016) (mro) (Entered: 04/20/2016)
154 ORDER PRELIMINARILY APPROVING SETTLEMENT granting 95 Motion to Approve Settlement. IT IS HEREBY ORDERED AS FOLLOWS: The Court preliminarily approves the Consent Decree as being fair, reasonable and adequate, subject to the rights of Class Members to challenge the fairness, reasonableness or adequacy of the Settlement Agreement and to show cause, if any exists, why a final judgment dismissing this case against State Defendants and all released claims should not be entered following a fairness hearing. The Class is conditionally certified for purposes of providing notice pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The Court enters the below schedule for approval of the settlement as further set forth in this Order. (Signed by Judge Laura Taylor Swain on 4/22/2016) (spo) (Entered: 04/22/2016)
Set/Reset Deadlines: Motions due by 7/15/2016. Responses due by 7/22/2016. Replies due by 7/29/2016. Fairness Hearing set for 8/5/2016 at 10:30 AM before Judge Laura Taylor Swain. (spo) (Entered: 04/22/2016)
155 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 25, 2016 re: the Court's April 22, 2016 Order (ECF No. 154).

04/26/2016
04/29/2016 05/05/2016 05/10/2016 05/13/2016
05/16/2016

Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Proposed Notice)(North, Julie) (Entered: 04/25/2016)
156 MEMO ENDORSEMENT on re: 155 Letter re: The Court's April 22, 2016 Order (ECF No. 154), filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: The referenced Notice, a copy of which is attached to this endorsed order, is approved. (Signed by Judge Laura Taylor Swain on 4/26/2016) (spo) (Entered: 04/26/2016)
157 PRELIMINARY PRETRIAL STATEMENT . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 04/29/2016)
158 ORDER: The initial pretrial conference currently scheduled for Friday, May 6, 2016, at 10:00 a.m. is hereby rescheduled to Friday, May 13,2016, at 2:45 p.m. (Initial Conference set for 5/13/2016 at 02:45 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 5/5/2016) (spo) (Entered: 05/05/2016)
A discovery conference is set for 5/23/2016 at 2:30 PM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (bh) (Entered: 05/10/2016)
Minute Entry for proceedings held before Judge Laura Taylor Swain: Initial Pretrial Conference held on 5/13/2016. Court Reporter Pamela Utter present. IPTC held. PTC Scheduling Order to follow. Case is referred to MJ Pitman for GPT. (Order to follow.) Status report due in 2 weeks. FPTC is scheduled for 2/9/2018 at 11:00am. ( Final Pretrial Conference set for 2/9/2018 at 11:00 AM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (lan) (Entered: 05/16/2016)
159 PRE-TRIAL SCHEDULING ORDER: Amended Pleadings due by 7/29/2016. Joinder of Parties due by 7/29/2016. Motions due by 11/10/2017. Expert Discovery due by 9/29/2017. Discovery due by 6/30/2017. Final Pretrial Conference set for 2/9/2018 at 11:00 AM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 5/13/2016) (spo) (Entered: 05/16/2016)

05/16/2016
05/16/2016 05/16/2016 05/19/2016 05/23/2016 05/24/2016 05/26/2016
05/27/2016

160 AMENDED ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement). Referred to Magistrate Judge Henry B. Pitman. Motions referred to Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 5/13/2016) (spo) Modified on 5/20/2016 (spo). (Entered: 05/16/2016)
161 JOINT ELECTRONIC DISCOVERY SUBMISSION NO. 1 AND ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Laura Taylor Swain on 5/13/2016) (spo) (Entered: 05/16/2016)
162 RULE 502(d) STIPULATION & ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Laura Taylor Swain on 5/16/2016) (spo) (Entered: 05/16/2016)
REMARK: NOTICE OF SETTLEMENT OF CLASS ACTION LAWSUIT, in English and Spanish, sent to SDNY CJA panel members via email on 5/17/2016. (mt) (Entered: 05/19/2016)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 5/23/2016. (bh) (Entered: 05/23/2016)
163 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated May 24, 2016 re: Proposed Amended Protective Order. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Text of Proposed Order Amended Protective Order)(Giovanatti, Neil) (Entered: 05/24/2016)
164 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated May 26, 2016 re: City Defendants' proposed Amended Protective Order (ECF No. 163-1). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(North, Julie) (Entered: 05/26/2016)
165 TRANSCRIPT of Proceedings re: Discovery Hearing held on 5/23/2016 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/20/2016. Redacted Transcript Deadline set for 6/30/2016. Release of Transcript Restriction set for 8/29/2016.(ca) (Entered: 05/27/2016)

05/27/2016 05/27/2016 05/31/2016 05/31/2016 06/01/2016 06/07/2016 06/07/2016

166 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 05/23/2016 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(ca) (Entered: 05/27/2016)
167 STATUS REPORT. in response to Court's Pre-Trial Scheduling Order dated May 13, 2016, titled "Report Concerning Plans For A Public Event Notification Website" Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 05/27/2016)
168 TRANSCRIPT of Proceedings re: conference held on 5/13/2016 before Judge Laura Taylor Swain. Court Reporter/Transcriber: Pamela Utter, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/24/2016. Redacted Transcript Deadline set for 7/5/2016. Release of Transcript Restriction set for 9/1/2016.(McGuirk, Kelly) (Entered: 05/31/2016)
169 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 5/13/16 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/31/2016)
170 AMENDED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...(As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 5/31/2016) (cf) (Entered: 06/01/2016)
171 FIRST LETTER MOTION for Extension of Time to respond to Plaintiffs' discovery demands addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated June 7, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Giovanatti, Neil) (Entered: 06/07/2016)
172 NOTICE of Intent to Request Redaction by Julie A North re 168 Transcript,,.(North, Julie) (Entered: 06/07/2016)

06/08/2016 06/08/2016 06/09/2016
06/13/2016

173 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated June 8, 2016 re: 171 FIRST LETTER MOTION for Extension of Time to respond to Plaintiffs' discovery demands addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated June 7, 2016. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 06/08/2016)
174 LETTER REPLY to Response to Motion addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated June 8, 2016 re: 171 FIRST LETTER MOTION for Extension of Time to respond to Plaintiffs' discovery demands addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated June 7, 2016. . Document filed by Gladys Carrion, City of New York. (Pines, Jonathan) (Entered: 06/08/2016)
175 ORDER granting in part and denying in part 171 Letter Motion for Extension of Time. The City defendants' application for an extension of time to respond to plaintiffs' first request for the production of documents and first set of interrogatories is granted in part and denied in part. I appreciate that there are multiple deadlines coming up in this matter, but I also appreciate that the Law Department is fortunate to have a large number of talented attorneys. According to its web site, the Law Department has approximately 730 attorneys and 690 "support professionals" -- far more professional and paraprofessional personnel than most metropolitan law firms. The City defendants' current application does not disclose how many attorneys it currently has assigned to this matter or nor does it explain why it is unable to assign more attorneys to work on this matter. I conclude that the proposed schedule set forth in plaintiffs' June 8 letter is generally reasonable and adopt it with a slight, 7-day adjustment. The City defendants are to respond to the discovery requests to which they are asserting only general objections no later than July 1, 2016 (a 22-day extension). For those discovery request for which the City defendants do not have general objections, the City defendants are to respond no later than July 21, 2016; to the extent that the City defendants are producing documents in response to plaintiffs' discovery requests, the documents are also to be produced by July 21, 2016. (Signed by Magistrate Judge Henry B. Pitman on 6/9/2016) (lmb) (Entered: 06/09/2016)
176 Federal Rules of Civil Procedures - Rule 5d Memo: The following document(s): Petition to Reject Settlement / Motion to Opt Out of Class Action cannot be immediately filed because: Non Party Filing. Document(s) forwarded to Judge Laura Taylor Swain for approval on 06/13/2016. (ca) (Entered: 06/13/2016)

06/16/2016
06/20/2016
06/21/2016 06/21/2016 06/21/2016 06/21/2016

178 ORDER: The City Defendants' objections to the disclosure of the HIV/AIDS status are sustained with respect to non-parties and overruled with respect to the named plaintiffs. The City Defendants are to produce the named plaintiffs' case files on a rolling basis; production of the case files shall be completed by June 30, 2016. The City Defendants' are to file their opposition to the named plaintiffs' motion for class certification by June 30, 2016. The named plaintiffs' are to file their reply to the City Defendants' opposition to class certification by July 14, 2016. Set Deadlines/Hearing as to 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification"). :( Responses due by 6/30/2016, Replies due by 7/14/2016.) (Signed by Magistrate Judge Henry B. Pitman on 6/16/2016) Copies Transmitted by Chambers. (tro) (Entered: 06/17/2016)
179 ENDORSED LETTER addressed to Ms. Krajick from Julie A. North dated 6/13/2016 re: I respectfully request that you inform the Clerk for the Criminal Justice Act Panel for the Southern District of New York of this URL and pass along my request that the existence of and URL for this website be shared with all attorneys who represent children or parents in New York State Family Court proceedings in New York City. ENDORSEMENT: The Clerk of Court is respectfully requested to share the URL and the foregoing request with the member of the CJA Panel. SO ORDERED. (Signed by Judge Laura Taylor Swain on 6/20/2016) (kl) Modified on 6/21/2016 (kl). (Entered: 06/20/2016)
180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society.(Barenholtz, Celia) (Entered: 06/21/2016)
181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem.(Soloway, Audra) (Entered: 06/21/2016)
182 MEMORANDUM OF LAW in Support re: 181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree. . Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 06/21/2016)
183 DECLARATION of Charles J. Hamilton in Support re: 181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree.. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service)(Soloway, Audra) (Entered: 06/21/2016)

06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/22/2016

184 AFFIRMATION of Karen J. Freedman in Support re: 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement.. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Barenholtz, Celia) (Entered: 06/21/2016)
185 AFFIRMATION of Tamara A. Steckler in Support re: 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement.. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Barenholtz, Celia) (Entered: 06/21/2016)
187 Objection to the Proposed Settlement. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Barenholtz, Celia) (Entered: 06/21/2016)
188 MEMORANDUM OF LAW in Support re: 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement. . Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Attachments: # 1 Exhibit)(Barenholtz, Celia) (Entered: 06/21/2016)
189 NOTICE OF APPEARANCE by Celia Goldwag Barenholtz on behalf of Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Barenholtz, Celia) (Entered: 06/21/2016)
190 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Victoria Anna Foltz on behalf of Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society (Foltz, Victoria) (Entered: 06/21/2016)
191 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Stephanie B Turner on behalf of Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society (Turner, Stephanie) (Entered: 06/21/2016)
192 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Kara Corinne Wilson on behalf of Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society (Wilson, Kara) (Entered: 06/21/2016)
***STRICKEN DOCUMENT. Deleted document number 186 from the case record. The document was stricken from this case pursuant to 201 Order on Motion for Leave to File Document. (cf) Modified on 6/27/2016 (cf). (Entered: 06/27/2016)
193 NOTICE OF APPEARANCE by Lisa Freeman on behalf of The Legal Aid Society. (Freeman, Lisa) (Entered: 06/22/2016)

06/22/2016 06/22/2016 06/22/2016 06/22/2016 06/24/2016
06/24/2016
06/27/2016
06/27/2016 06/27/2016

194 NOTICE OF APPEARANCE by Tamara A. Steckler on behalf of The Legal Aid Society. (Steckler, Tamara) (Entered: 06/22/2016)
195 NOTICE OF APPEARANCE by Theresa Beth Moser on behalf of The Legal Aid Society. (Moser, Theresa) (Entered: 06/22/2016)
196 NOTICE OF APPEARANCE by Betsy Kramer on behalf of Lawyers for Children, Inc.. (Kramer, Betsy) (Entered: 06/22/2016)
197 NOTICE OF APPEARANCE by Karen J. Freedman on behalf of Lawyers for Children, Inc.. (Freedman, Karen) (Entered: 06/22/2016)
198 LETTER MOTION for Leave to File Corrected Affirmation of Karen P. Simmons and to strike the current Simmons Affirmation (ECF No. 186) from the docket addressed to Judge Laura Taylor Swain from Celia Goldwag Barenholtz dated June 24, 2016. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society.(Barenholtz, Celia) (Entered: 06/24/2016)
199 ORDER: The Court has received, from interested parties, two motions to intervene for the purpose of objecting to the proposed settlement agreement in this case. (See Docket Entry Nos. 180-81.) In view of the short time between the motion filing dates and the fairness hearing scheduled for August 5, 2016, the parties are directed to file any opposition to the intervention motions no later than Friday, July 1, 2016. Any reply briefs must be filed no later than Thursday, July 7, 2016. Set Deadlines/Hearing as to 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement, 181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree: Responses due by 7/1/2016, Replies due by 7/7/2016. (Signed by Judge Laura Taylor Swain on 6/24/2016) (tn) (Entered: 06/24/2016)
200 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Julie North dated 6/21/2016 re: redactions proposed by Named Plaintiff Children. ENDORSEMENT: The Court has reviewed the proposed redactions and the counter-proposed redactions. The Court will direct the Court Reporter to make the city's proposed redactions and in addition, to redact the parent's name and the initials of children that appear on lines 12, 16 and 17 of page 11 of the transcript. The unredacted version is directed to be filed under seal. (Signed by Judge Laura Taylor Swain on 6/27/2016) (cf) (Entered: 06/27/2016)
Transmission to Sealed Records Clerk. Transmitted re: 200 Endorsed Letter to the Sealed Records Clerk for the sealing or unsealing of document or case. (cf) (Entered: 06/27/2016)
201 ORDER granting 198 Letter Motion for Leave to File Document. The requests are granted. DE #198 resolved. (Signed by Judge Laura Taylor Swain on 6/27/2016) (cf) (Entered: 06/27/2016)

06/28/2016 06/28/2016 06/29/2016 06/30/2016 06/30/2016 06/30/2016 06/30/2016 06/30/2016

202 AFFIRMATION of Karen P. Simmons in Support re: 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement.. Document filed by Lawyers for Children, Inc., The Children's Law Center of New York, The Legal Aid Society. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Barenholtz, Celia) (Entered: 06/28/2016)
203 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge Laura Taylor Swain from Lauren Almquist Lively dated June 28, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Lively, Lauren) (Entered: 06/28/2016)
204 ORDER granting 203 Letter Motion for Leave to File Excess Pages. The request is granted. DE # 203 resolved. (Signed by Judge Laura Taylor Swain on 6/28/2016) (cf) (Entered: 06/29/2016)
205 MEMORANDUM OF LAW in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification"). . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
206 DECLARATION of Jacqueline McKnight in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
207 DECLARATION of Kerri Smith in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
208 DECLARATION of Jonathan Pines in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Giovanatti, Neil) (Entered: 06/30/2016)
209 DECLARATION of Christopher J. Mucciaccio in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)

06/30/2016 06/30/2016 06/30/2016 06/30/2016 07/01/2016
07/07/2016 07/12/2016

210 DECLARATION of Suzanne Niedzwiecki-Lattime in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
211 DECLARATION of Jenny Woo in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
212 DECLARATION of Ron Cerreta in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
213 DECLARATION of Diane Bahrenburg in Opposition re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 06/30/2016)
214 RESPONSE to Motion re: 180 MOTION to Intervene for the Limited Purpose of Objecting to The Proposed Settlement., 181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/01/2016)
215 REPLY to Response to Motion re: 181 MOTION to Intervene for the Limited Purpose of Objecting to the Consent Decree. . Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/07/2016)
216 MEMORANDUM ORDER granting 180 Motion to Intervene; granting 181 Motion to Intervene. In light of the foregoing, the Court grants both the Parent Advocates' and the Children's Advocates' unopposed motions for intervention for substantially the reasons set forth in their respective memoranda of law. (See Docket Entry Nos. 182, 188.) The Parent Advocates and Children's Advocates are permitted to intervene in this action for the limited purpose of objecting to the proposed settlement agreement between the Plaintiffs and the State Defendants. The Parent Advocates must file their objections to the proposed settlement no later than Friday, July 22, 2016. This Memorandum Order resolves Docket Entry Numbers 180 and 181.

07/12/2016
07/12/2016 07/13/2016 07/14/2016 07/14/2016 07/14/2016 07/15/2016

(Signed by Judge Laura Taylor Swain on 7/12/2016) (kko) (Entered: 07/12/2016)
217 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE 218 Letter Motion) - LETTER MOTION for Leave to File Excess Pages for memoranda of law and replies addressed to Judge Laura Taylor Swain from Julie A. North dated July 12, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) Modified on 7/13/2016 (db). (Entered: 07/12/2016)
218 LETTER MOTION for Leave to File Excess Pages for memoranda of law and replies addressed to Judge Laura Taylor Swain from Julie A. North dated July 12, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/12/2016)
219 ORDER terminating 217 Letter Motion for Leave to File Excess Pages; granting 218 Letter Motion for Leave to File Excess Pages. The requests are granted. DE #217 resolved. (Signed by Judge Laura Taylor Swain on 7/12/2016) (cf) (Entered: 07/13/2016)
220 REPLY MEMORANDUM OF LAW in Support re: 87 MOTION to Certify Class ("Notice of Amended Motion for Class Certification"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/14/2016)
221 Objection to the Proposed Settlement. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/14/2016)
222 DECLARATION of Charles J. Hamilton re: 221 Objection (nonmotion) . Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Soloway, Audra) (Entered: 07/14/2016)
223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C.,

07/15/2016 07/15/2016 07/15/2016 07/19/2016 07/20/2016
07/21/2016

Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/15/2016)
224 MEMORANDUM OF LAW in Support re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/15/2016)
225 DECLARATION of Julie A. North in Support re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(North, Julie) (Entered: 07/15/2016)
226 DECLARATION of Marcia Robinson Lowry in Support re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/15/2016)
227 LETTER MOTION for Extension of Time addressed to Judge Laura Taylor Swain from Jonathan Pines dated July 19, 2016., LETTER MOTION for Leave to File Excess Pages addressed to Judge Laura Taylor Swain from Jonathan Pines dated July 19, 2016.( Return Date set for 8/5/2016 at 10:30 AM.) Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 07/19/2016)
228 LETTER RESPONSE in Opposition to Motion addressed to Judge Laura Taylor Swain from Julie A. North dated July 20, 2016 re: 227 LETTER MOTION for Extension of Time addressed to Judge Laura Taylor Swain from Jonathan Pines dated July 19, 2016. LETTER MOTION for Leave to File Excess Pages addressed to Judge Laura Taylor Swain from Jonathan Pines dated July 19, 2016. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/20/2016)
229 NOTICE OF APPEARANCE by Sarah W Jaffe on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas

07/21/2016 07/21/2016 07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/22/2016

T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Jaffe, Sarah) (Entered: 07/21/2016)
230 ORDER granting 227 Letter Motion for Leave to File Excess Pages. The page limit extension is granted. The brief must be filed by July 22, 2016 (Friday). The declaration must be filed no later than July 25, 2016 (Monday.) All other scheduling remains in place. DE #227 resolved. (Signed by Judge Laura Taylor Swain on 7/20/2016) (cf) (Entered: 07/21/2016)
238 LETTER from Angeline Montauban dated 7/20/2016 re: Speaking at August 5th Hearing. (rdz) (Entered: 07/26/2016)
231 MEMORANDUM OF LAW in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Giovanatti, Neil) (Entered: 07/22/2016)
232 DECLARATION of Jonathan Pines in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giovanatti, Neil) (Entered: 07/22/2016)
233 LETTER addressed to Judge Laura Taylor Swain from Jonathan Pines dated July 22, 2016 re: Apprising Court of No Further Opposition Submission from City Defendants. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 07/22/2016)
234 MEMORANDUM OF LAW in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). . Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/22/2016)
235 DECLARATION of Charles J. Hamilton in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Attachments: # 1 Exhibit A)(Soloway, Audra) (Entered: 07/22/2016)
236 DECLARATION of Dr. John Mattingly in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/22/2016)

07/22/2016 07/26/2016
07/27/2016 07/29/2016
07/29/2016 07/29/2016 07/29/2016 07/29/2016

237 DECLARATION of Professor Christine Gottlieb in Opposition re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement").. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/22/2016)
239 LETTER MOTION for Leave to File Excess Pages for reply briefs addressed to Judge Laura Taylor Swain from Julie A. North dated July 26, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/26/2016)
240 ORDER granting 239 Letter Motion for Leave to File Excess Pages. The requested page limit extension is granted. (Signed by Judge Laura Taylor Swain on 7/26/2016) (cf) (Entered: 07/27/2016)
241 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION to Compel City Defendants to produce addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated July 29, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) Modified on 8/10/2016 (db). (Entered: 07/29/2016)
243 NOTICE OF APPEARANCE by Audra Jan Soloway on behalf of Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Soloway, Audra) (Entered: 07/29/2016)
244 NOTICE OF APPEARANCE by Daniel H. Levi on behalf of Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Levi, Daniel) (Entered: 07/29/2016)
245 NOTICE OF APPEARANCE by Luke Xavier Flynn-Fitzsimmons on behalf of Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Flynn-Fitzsimmons, Luke) (Entered: 07/29/2016)
246 NOTICE OF APPEARANCE by Charles Jordan Hamilton on behalf of Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Hamilton, Charles) (Entered: 07/29/2016)

07/29/2016 07/29/2016
08/01/2016
08/01/2016 08/03/2016 08/04/2016 08/05/2016

247 REPLY MEMORANDUM OF LAW in Support re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/29/2016)
248 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated July 29, 2016 re: 241 LETTER MOTION to Compel City Defendants to produce addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated July 29, 2016. . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Exhibit Plaintiffs' First Document Requests)(Pines, Jonathan) Modified on 8/10/2016 (db). (Entered: 07/29/2016)
249 LETTER RESPONSE in Support of Motion addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated August 1, 2016 re: 241 LETTER MOTION to Compel City Defendants to produce addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated July 29, 2016. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(North, Julie) (Entered: 08/01/2016)
250 ORDER: The following time limits will apply to arguments and oral objections regarding the proposed settlement (including any arguments regarding standing to object) at the fairness hearing that will be held at 10:30 a.m. on Friday, August 5, 2016, in Courtroom 12D, 500 Pearl Street, New York, New York 10007. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 8/1/2016) (cf) (Entered: 08/01/2016)
251 LETTER addressed to Judge Laura Taylor Swain from Molly ThomasJensen dated August 3, 2016 re: Request that Plaintiff James be allowed to address the Court. Document filed by Letitia James.(Thomas-Jensen, Molly) (Entered: 08/03/2016)
252 MEMO ENDORSEMENT on re: 251 Letter filed by Letitia James. ENDORSEMENT: Ms James may participate in the Proponents' time allotment. (Signed by Judge Laura Taylor Swain on 8/4/2016) (cf) (Entered: 08/04/2016)
Minute Entry for proceedings held before Judge Laura Taylor Swain: Fairness Hearing held on 8/5/2016. Court Reporter Tara Jones present.

08/05/2016 08/08/2016
08/11/2016 08/11/2016 08/11/2016 08/12/2016

FAIRNESS HEARING held. As stated on the record, the Court takes the proposed settlement under advisement and the parties will be notified when a written decision has been rendered. (lan) (Entered: 08/08/2016)
255 LETTER addressed to Judge Laura Taylor Swain from Angeline Montauban re: My full testimony a testimony from a mother. (rdz) (Entered: 08/10/2016)
253 ORDER: The City defendants are ordered (1) to complete their production of documents in response to plaintiffs' May 6, 2016 document request no later than August 18, 2016 and (2) to commence immediately the production of documents that the City defendants state they will produce in their July 29, 2016 letter (Docket Item 248). Because this the second time I have had to order the City defendants to produce documents in response to plaintiffs' May 6, 2016 document request, further disobedience by the City defendants will result in the imposition of sanctions. See Fed.R.Civ.P. 37(b). (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 8/8/2016) Copies Sent By Chambers. (lmb) (Entered: 08/09/2016)
257 ORDER: For the reasons stated in a sealed order of the Court dated August 11, 2016, the Clerk of Court is requested to remove docket entry no. 256 from the public docket, and file that document under seal. (Signed by Judge Laura Taylor Swain on 8/11/2016) (cf) (Entered: 08/11/2016)
Transmission to Sealed Records Clerk. Transmitted re: 257 Order, to the Sealed Records Clerk for the sealing or unsealing of document or case. (cf) (Entered: 08/11/2016)
258 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/11/2016)
259 MEMORANDUM OPINION & ORDER re: 223 MOTION to Approve Settlement ("Notice of Motion for Final Approval of Settlement"). filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. Plaintiff's motion for approval of the proposed Consent Decree is denied and the conditional certification of the Plaintiff class is vacated. This Memorandum Opinion and Order resolves Docket Entry No. 223. A pretrial conference in this matter will be held on October 13, 2016, at 2:00 p.m. The parties must submit an updated joint preliminary pre-trial statement in accordance with the Initial Conference Order (docket entry no. 32) in advance of that conference. This case remains referred to Magistrate Judge Pitman for general pre-trial management. (As further set forth in this Order.) (Pretrial Conference set for 10/13/2016 at 02:00 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 8/12/2016) (cf) (Entered: 08/12/2016)

08/15/2016 08/16/2016 08/16/2016
08/16/2016

260 LETTER MOTION to Stay re: 253 Order,, 259 Memorandum & Opinion, Set Hearings,,,,,,,, City Defs' Letter Motion for Stay of Discovery addressed to Judge Laura Taylor Swain from Jonathan Pines dated August 15, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 08/15/2016)
261 LETTER MOTION for Extension of Time or, in the alternative, stay of discovery addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated August 16, 2016. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services.(Pines, Jonathan) (Entered: 08/16/2016)
262 LETTER RESPONSE in Opposition to Motion addressed to Judge Laura Taylor Swain from Julie A. North dated August 16, 2016 re: 261 LETTER MOTION for Extension of Time or, in the alternative, stay of discovery addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated August 16, 2016., 260 LETTER MOTION to Stay re: 253 Order,, 259 Memorandum & Opinion, Set Hearings,,,,,,,, City Defs' Letter Motion for Stay of Discovery addressed to Judge Laura Taylor Swain from Jonathan Pines dated August 15, 2016. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 08/16/2016)
264 ORDER denying 260 Letter Motion to Stay. The City Defendants' application to stay discovery is denied. Judge Swain's comments concerning the adequacy of plaintiffs' counsel's investigation of the particular circumstances of the named plaintiff children and counsel's assessment of the named plaintiff children's claims were all made in the context of the motion to approve the settlement with the State Defendants and, in particular, were addressing the issue of whether the settlement was reached after meaningful discovery. Judge Swain was not asked to address whether "the claims, defenses, and other legal contentions [in the amended complaint were] warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law" or whether "the factual contentions [in the amended complaint] have evidentiary support or.. will likely have evidentiary support after a reasonable opportunity for further investigation or discovery...." Fed.R.Civ. P. 11 (b) (2), (3). In short, Judge Swain was not assessing whether there was a violation of the Rule 11(b)'s implied certifications, and the City Defendants' attempt to contort her words into a finding of a Rule 11 violation divorces the words from the context in which they were made. Whether counsel's discovery and investigation is sufficient to justify approval of a class action settlement is a different, more demanding inquiry than whether counsel's pre-suit investigation satisfied Rule 11. It

08/17/2016 08/17/2016 08/19/2016 08/22/2016

is also noteworthy that the City Defendants, who have substantial knowledge of the named plaintiff children's circumstances and the allegations made in the amended complaint, have never even suggested that the amended complaint was so baseless that Rule 11 sanctions were warranted. The fact that the City Defendants never commenced the procedures set forth in Rule 11(c) that must precede a motion for Rule 11 sanctions casts doubt on the veracity of their newly asserted arguments. I appreciate that the City Defendants deny plaintiffs' material allegations. Nevertheless, in the absence of a showing that the allegations in the amended complaint were asserted in bad faith and were utterly baseless in law and fact, there is no basis for the stay of discovery sought by the City Defendants. The annexed application is, therefore, denied. (Signed by Magistrate Judge Henry B. Pitman on 8/16/2016) Copies Sent By Chambers. (lmb) (Entered: 08/17/2016)
263 LETTER REPLY to Response to Motion addressed to Judge Laura Taylor Swain from Jonathan Pines dated August 17, 2016 re: 261 LETTER MOTION for Extension of Time or, in the alternative, stay of discovery addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated August 16, 2016., 260 LETTER MOTION to Stay re: 253 Order,, 259 Memorandum & Opinion, Set Hearings,,,,,,,, City Defs' Letter Motion for Stay of Discovery addressed to Judge Laura Taylor Swain from Jonathan Pines dated August 15, 2016. . Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Pines, Jonathan) (Entered: 08/17/2016)
265 ORDER granting 261 Letter Motion for Extension of Time. Given the City Defendants' representations concerning their efforts to complete their document production, I shall extend their time to complete their production of documents to September 16, 2016. The City Defendants are to make their production on a rolling basis. In addition, until their production is complete, the City Defendants are to submit status reports to my chambers every Friday, staring on August 19, 2016, describing the efforts they have made to complete production in the preceding week. (Signed by Magistrate Judge Henry B. Pitman on 8/17/2016) (mro) (Entered: 08/18/2016)
266 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonatan Pines dated August 19, 2016 re: Status Update Letter # 1. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix Rachel Kaufman Status Update and Explanatory Memorandum)(Pines, Jonathan) (Entered: 08/19/2016)
267 TRANSCRIPT of Proceedings re: argument held on 8/5/2016 before Judge Laura Taylor Swain. Court Reporter/Transcriber: Tara Jones, (212) 805-0300. Transcript may be viewed at the court public terminal or

08/22/2016
08/25/2016 08/26/2016 08/29/2016 08/31/2016 09/02/2016

purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/15/2016. Redacted Transcript Deadline set for 9/26/2016. Release of Transcript Restriction set for 11/25/2016.(McGuirk, Kelly) (Entered: 08/22/2016)
268 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a argument proceeding held on 8/5/16 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/22/2016)
269 LETTER MOTION to Seal Document 255 Letter, 238 Letter addressed to Judge Laura Taylor Swain from Julie A. North dated August 25, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 08/25/2016)
270 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated August 26, 2016 re: City Defs' 2d Status Update. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix R. Kaufman - 2d update memorandum)(Pines, Jonathan) (Entered: 08/26/2016)
271 NOTICE of Intent to Request Redaction re: 267 Transcript,,. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 08/29/2016)
272 CONSENT LETTER MOTION to Adjourn Conference set for October 13, 2016 addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated August 31, 2016. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Simon, Jennifer) (Entered: 08/31/2016)
273 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated September 2, 2016 re: City Defs' 3d Status Update. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix R. Kaufman - 3d update memorandum)(Pines, Jonathan) (Entered: 09/02/2016)

09/06/2016 09/06/2016 09/06/2016 09/06/2016 09/09/2016 09/12/2016
09/16/2016

274 ORDER granting 269 Motion to Seal Document. The request is granted. For the foregoing reasons, the Clerk of Court is directed to remove the documents filed as ECF entries 238 and 255 from the public docket and file them under seal. (Signed by Judge Laura Taylor Swain on 9/6/2016) (cf) (Entered: 09/06/2016)
Transmission to Sealed Records Clerk. Transmitted re: 274 Order to the Sealed Records Clerk for the sealing or unsealing of document or case. (cf) (Entered: 09/06/2016)
275 ORDER granting 272 Letter Motion to Adjourn Conference. The conference is adjourned to November 18, 2016, at 10:30 AM and the related deadlines are modified accordingly. DE # 272 resolved. Pretrial Conference set for 11/18/2016 at 10:30 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 9/6/2016) (cf) (Entered: 09/06/2016)
276 SEALED DOCUMENT placed in vault.(mps) (Entered: 09/06/2016)
277 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated September 9, 2016 re: City Defs' 4th Status Update. Document filed by Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Attachments: # 1 Appendix R. Kaufman - 4th update memorandum)(Giovanatti, Neil) (Entered: 09/09/2016)
278 OPINION AND ORDER re: 114 MOTION to Dismiss Plaintiff Letitia James, Defendants ACS and Gladys Carrion, and all claims brought under the AACWA. filed by Gladys Carrion, New York City Administration for Childrens Services, City of New York. For the foregoing reasons, City Defendants' motion is granted in part. City Defendants' motion is granted to the extent that it seeks to dismiss Plaintiffs' AACWA claims premised on 42 U.S.C. §§ 671(a)(10) and 671(a)(22) described in paragraphs 348(a) and (j) of the Amended Complaint, and on the purported rights described in paragraphs 348(c)-(f) of the Amended Complaint. City Defendants' motion is also granted to the extent that it seeks the dismissal of the claims asserted against ACS and Commissioner Carrion, without prejudice to the litigation of those claims as against the Defendant City. The motion is denied in all other respects. This Opinion and Order resolves Docket Entry Number 114. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 9/12/2016) (cf) (Entered: 09/12/2016)
279 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated September 16, 2016 re: City Defs' 5th Status Update; and request to extend City Defendants' deadline to produce emails on consent. Document filed by City of New York. (Attachments: # 1 Appendix R. Kaufman - 5th update memorandum)(Giovanatti, Neil) (Entered: 09/16/2016)

09/20/2016
09/20/2016 09/23/2016 09/27/2016
09/30/2016 10/03/2016 10/04/2016 10/04/2016

280 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated 9/15/2016 re: Na,ed P1aintiff Children propose to redact such confidential and individually identifying material in the publicly filed version of this transcript. ENDORSEMENT: The proposed redactions are approved. The highlighted copy showing the proposed redactions will be filed under seal. (Signed by Judge Laura Taylor Swain on 9/19/2016) (cf) (Entered: 09/20/2016)
Transmission to Sealed Records Clerk. Transmitted re: 280 Endorsed Letter to the Sealed Records Clerk for the sealing or unsealing of document or case. (cf) (Entered: 09/20/2016)
281 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated September 23, 2016 re: City Def's 6th Status Update. Document filed by City of New York. (Attachments: # 1 Appendix R. Kaufman - 6th update memorandum)(Giovanatti, Neil) (Entered: 09/23/2016)
282 MEMORANDUM ORDER denying without prejudice 87 Motion to Certify Class. Plaintiffs' motion for class certification is denied without prejudice to renewal in a manner consistent with this Memorandum Order. This Memorandum Order resolves docket entry no. 87. This case remains referred to Magistrate Judge Pitman for general pre-trial management. The next pre-trial conference in this matter is scheduled for November 18, 2016, at 10:30 a.m. (As further set forth in this Order.). (Signed by Judge Laura Taylor Swain on 9/27/2016) (cf) (Entered: 09/27/2016)
283 SEVENTH LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated September 30, 2016 re: City Defs' 7th Status Update Letter. Document filed by City of New York.(Pines, Jonathan) (Entered: 09/30/2016)
284 MEMO ENDORSEMENT on re: 279 Letter, filed by City of New York. ENDORSEMENT: Given plaintiffs' consent, defendants' time to complete production of their emails is extended to 10/31/2016. Defendants' counsel are to continue submitting weekly progress reports. (Signed by Magistrate Judge Henry B. Pitman on 10/3/2016) (tro) (Entered: 10/03/2016)
285 Redaction of 267 Transcript,, (McGuirk, Kelly) (Entered: 10/04/2016)
286 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT REDACTED proceeding held on 8/5/16 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely

10/07/2016 10/11/2016
10/11/2016 10/21/2016 10/28/2016 10/28/2016 10/31/2016

electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/04/2016)
287 LETTER MOTION for Conference addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 7, 2016. Document filed by City of New York. (Attachments: # 1 Appendix Pls.' Document Requests to City Def., # 2 Appendix Pls' Subpoenas of Vol. Agencies)(Pines, Jonathan) (Entered: 10/07/2016)
288 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated October 11, 2016 re: in response to the City's status report submitted on Oct 7. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 10/11/2016)
289 LETTER REPLY to Response to Motion addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 11, 2016 re: 287 LETTER MOTION for Conference addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 7, 2016. . Document filed by City of New York. (Pines, Jonathan) (Entered: 10/11/2016)
290 TENTH LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated October 21, 2016 re: City Defs' 10th Status Update Letter. Document filed by City of New York.(Giovanatti, Neil) (Entered: 10/21/2016)
291 LETTER MOTION for Extension of Time of City Defendants' deadline to produce emails as set forth in the Court's Order (Dkt. No. 284) and 11th Status Update Letter addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 28, 2016. Document filed by City of New York.(Giovanatti, Neil) (Entered: 10/28/2016)
292 CONSENT LETTER MOTION to Adjourn Conference set for November 18, 2016 addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated October 28, 2016. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Simon, Jennifer) (Entered: 10/28/2016)
293 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated October 31, 2016 re: in response to to City Defendant's October 28, 2016 letter motion (ECF No. 291). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 10/31/2016)

11/01/2016
11/04/2016 11/11/2016 11/16/2016 11/16/2016 11/16/2016
11/16/2016 11/16/2016 11/18/2016 11/21/2016
11/21/2016

294 ORDER granting 292 Letter Motion to Adjourn Conference set for November 18, 2016. The conference is adjourned to December 19, 2016, at 11:00 AM and the related deadlines are modified accordingly. DE # 292 resolved. (Pretrial Conference set for 12/19/2016 at 11:00 AM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 11/1/2016) (cla) (Entered: 11/01/2016)
295 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated November 4, 2016 re: 12th Update Letter. Document filed by City of New York.(Pines, Jonathan) (Entered: 11/04/2016)
296 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated November 11, 2016 re: 13th Update Letter. Document filed by City of New York.(Giovanatti, Neil) (Entered: 11/11/2016)
297 MOTION for Summary Judgment on Grounds of Mootness. Document filed by City of New York.(Lively, Lauren) (Entered: 11/16/2016)
298 MEMORANDUM OF LAW in Support re: 297 MOTION for Summary Judgment on Grounds of Mootness. . Document filed by City of New York. (Lively, Lauren) (Entered: 11/16/2016)
299 DECLARATION of Lauren Almquist Lively in Support re: 297 MOTION for Summary Judgment on Grounds of Mootness.. Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lively, Lauren) (Entered: 11/16/2016)
300 RULE 56.1 STATEMENT. Document filed by City of New York. (Lively, Lauren) (Entered: 11/16/2016)
A discovery conference is set for 11/28/2016 at 11:30 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (bh) (Entered: 11/16/2016)
301 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated November 18, 2016 re: 14th Update Letter. Document filed by City of New York.(Giovanatti, Neil) (Entered: 11/18/2016)
302 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Laura Taylor Swain from Julie A. North dated November 21, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/21/2016)
303 LETTER MOTION to Adjourn Conference addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated November 21, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls

11/21/2016 11/22/2016 12/02/2016 12/02/2016 12/07/2016
12/09/2016 12/12/2016
12/12/2016

J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/21/2016)
304 ORDER granting 302 Letter Motion for Extension of Time to File Response/Reply. The extension request is granted. DE # 302 resolved. Responses due by 12/12/2016 (Signed by Judge Laura Taylor Swain on 11/21/2016) (cf) (Entered: 11/21/2016)
The discovery conference is adjourned to 12/13/2016 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (bh) (Entered: 11/22/2016)
305 CONSENT LETTER addressed to Judge Laura Taylor Swain from Jennifer C. Simon dated December 2, 2016 re: Scheduling of State Defendants' Time to Respond to the Amended Complaint. Document filed by New York State Office of Children and Family Services, Sheila J. Poole, State Of New York.(Simon, Jennifer) (Entered: 12/02/2016)
306 LETTER addressed to Magistrate Judge Henry B. Pitman from Lauren Almquist Lively dated December 2, 2016 re: City Defendant's Status Update. Document filed by City of New York.(Lively, Lauren) (Entered: 12/02/2016)
307 MEMO ENDORSEMENT on re: 305 Letter filed by New York State Office of Children and Family Services, State Of New York, Sheila J. Poole. ENDORSEMENT: The proposed schedule is approved. The conference is adjourned to May 26, 2017, at 10:00 a.m. and the related deadlines are modified accordingly. DE # 305 resolved. SO ORDERED., ( Motions due by 1/26/2016., Responses due by 2/13/2017, Replies due by 2/24/2017., Pretrial Conference set for 5/26/2017 at 10:00 AM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 12/07/2016) (ama) (Entered: 12/07/2016)
308 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated December 9, 2016 re: 16th Update Letter. Document filed by City of New York.(Giovanatti, Neil) (Entered: 12/09/2016)
309 MEMORANDUM OF LAW in Opposition re: 297 MOTION for Summary Judgment on Grounds of Mootness. ("Named Plaintiff Children's Memorandum Of Law In Opposition To City Defendant's Motion For Summary Judgment"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 12/12/2016)
310 RESPONSE re: 300 Rule 56.1 Statement ("Named Plaintiff Children's Responses To City Defendant's Statement Of Facts Not In Dispute").

12/12/2016
12/12/2016 12/13/2016 12/19/2016 12/19/2016 12/19/2016 12/19/2016 12/19/2016 12/20/2016 12/20/2016

Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 12/12/2016)
311 DECLARATION of Sarah Jaffe in Opposition re: 297 MOTION for Summary Judgment on Grounds of Mootness.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A to Jaffe Declaration (filed under seal), # 2 Exhibit B to Jaffe Declaration (filed under seal), # 3 Exhibit C to Jaffe Declaration (filed under seal), # 4 Exhibit D to Jaffe Declaration (filed under seal), # 5 Exhibit E to Jaffe Declaration (filed under seal), # 6 Exhibit F to Jaffe Declaration (filed under seal))(North, Julie) (Entered: 12/12/2016)
312 SEALED DOCUMENT placed in vault.(mps) (Entered: 12/13/2016)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 12/13/2016. (bh) (Entered: 12/13/2016)
313 LETTER MOTION for Leave to File Excess Pages addressed to Judge Laura Taylor Swain from Lauren Almquist Lively dated December 19, 2016. Document filed by City of New York.(Lively, Lauren) (Entered: 12/19/2016)
314 REPLY MEMORANDUM OF LAW in Support re: 297 MOTION for Summary Judgment on Grounds of Mootness. . Document filed by City of New York. (Lively, Lauren) (Entered: 12/19/2016)
315 REPLY AFFIRMATION of Lauren Almquist Lively in Support re: 297 MOTION for Summary Judgment on Grounds of Mootness.. Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lively, Lauren) (Entered: 12/19/2016)
316 RULE 56.1 STATEMENT. Document filed by City of New York. (Lively, Lauren) (Entered: 12/19/2016)
317 REPLY AFFIRMATION of Lauren Almquist Lively in Support re: 297 MOTION for Summary Judgment on Grounds of Mootness.. Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lively, Lauren) (Entered: 12/19/2016)
318 SEALED DOCUMENT placed in vault.(rz) (Entered: 12/20/2016)
319 ORDER granting 313 Letter Motion for Leave to File Excess Pages. The requested extension is granted. DE #313 resolved. (Signed by Judge Laura Taylor Swain on 12/20/2016) (kgo) (Entered: 12/20/2016)

12/20/2016 12/20/2016 12/21/2016 12/21/2016 12/21/2016 12/22/2016

320 LETTER MOTION for Leave to File Sur-Reply in Response to City Defendant's Reply Memorandum of Law in Support of Its Motion for Partial Summary Judgment (ECF No. 314) addressed to Judge Laura Taylor Swain from Julie A. North dated December 20, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 12/20/2016)
321 LETTER RESPONSE in Opposition to Motion addressed to Judge Laura Taylor Swain from Jonathan Pines dated December 20, 2016 re: 320 LETTER MOTION for Leave to File Sur-Reply in Response to City Defendant's Reply Memorandum of Law in Support of Its Motion for Partial Summary Judgment (ECF No. 314) addressed to Judge Laura Taylor Swain from Julie A. North dated Decem . Document filed by City of New York. (Attachments: # 1 Exhibit Parties' email exchange re: surreply)(Pines, Jonathan) (Entered: 12/20/2016)
322 TRANSCRIPT of Proceedings re: Discovery Hearing held on 12/13/2016 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Carole Ludwig, (212) 420-0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/11/2017. Redacted Transcript Deadline set for 1/23/2017. Release of Transcript Restriction set for 3/21/2017.(anc) (Entered: 12/21/2016)
323 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 12/13/2016 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(anc) (Entered: 12/21/2016)
324 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated December 21, 2016 re: clarifying for the Court the Parties' correspondence regarding City Defendant's consent for a sur-reply (ECF No. 321). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit to December 21, 2016 letter)(North, Julie) (Entered: 12/21/2016)
325 ORDER: Plaintiffs and defendant City of New York are to brief whether Monell discovery should be bifurdated. Defendants shall submit their

12/22/2016 12/23/2016 12/29/2016
01/12/2017 01/17/2017 01/17/2017 01/17/2017

brief on or before January 12, 2017. Plaintiffs shall submit their opposition brief by January 20, 2017. (As further set forth in this Order.) (Motions due by 1/12/2017., Responses due by 1/20/2017) (Signed by Magistrate Judge Henry B. Pitman on 12/21/2016) Copies Sent By Chambers. (cf) (Entered: 12/22/2016)
326 ORDER granting 320 Letter Motion for Leave to File Document. The request to file a surreply is granted. DE # 320 resolved. (Signed by Judge Laura Taylor Swain on 12/21/2016) (mro) (Entered: 12/23/2016)
327 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated December 23, 2016 re: Named Plaintiff Children's intention to submit a sur-reply no later than December 29, 2016. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 12/23/2016)
328 REPLY MEMORANDUM OF LAW in Opposition re: 297 MOTION for Summary Judgment on Grounds of Mootness. ("Named Plaintiff Children's Sur-Reply In Opposition To City Defendant's Motion For Summary Judgment"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 12/29/2016)
329 MEMORANDUM OF LAW in Support re: 287 LETTER MOTION for Conference addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 7, 2016. . Document filed by City of New York. (Pines, Jonathan) (Entered: 01/12/2017)
330 MOTION to Compel City Defendant's Responses to Named Plaintiff Children's Interrogatories . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 01/17/2017)
331 MEMORANDUM OF LAW in Support re: 330 MOTION to Compel City Defendant's Responses to Named Plaintiff Children's Interrogatories . . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 01/17/2017)
332 DECLARATION of Julie A. North in Support re: 330 MOTION to Compel City Defendant's Responses to Named Plaintiff Children's

01/19/2017 01/20/2017 01/20/2017
01/23/2017 01/24/2017

Interrogatories .. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit A to North Declaration, # 2 Exhibit B to North Declaration, # 3 Exhibit C to North Declaration, # 4 Exhibit D to North Declaration, # 5 Exhibit E to North Declaration, # 6 Exhibit F to North Declaration)(North, Julie) (Entered: 01/17/2017)
333 LETTER addressed to Magistrate Judge Henry B. Pitman from Neil Giovanatti dated January 19, 2017 re: Requesting that the Court reject Plaintiffs' Motion to Compel for Plaintiffs' failure to comply with Local Rule 37.2 and Your Honor's Individual Practices. Document filed by City of New York.(Giovanatti, Neil) (Entered: 01/19/2017)
334 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated January 20, 2017 re: in response to City Defendant's letter of January 19, 2017. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 01/20/2017)
335 MEMORANDUM OF LAW in Opposition re: 287 LETTER MOTION for Conference addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 7, 2016. ("Named Plaintiff Children's Memorandum Of Law In Opposition To City Defendant's Request For Bifurcation"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Text of Proposed Order)(North, Julie) (Entered: 01/20/2017)
336 REPLY MEMORANDUM OF LAW in Support re: 287 LETTER MOTION for Conference addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated October 7, 2016. in Support of City Def's Bifurcation Motion. Document filed by City of New York. (Pines, Jonathan) (Entered: 01/23/2017)
337 LETTER MOTION for Leave to File sur-reply addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated January 24, 2017. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 PROPOSED NAMED PLAINTIFF CHILDREN'S SUR-REPLY MEMORANDUM OF LAW IN FURTHER OPPOSITION TO CITY DEFENDANT'S REQUEST FOR BIFURCATION)(North, Julie) (Entered: 01/24/2017)

01/24/2017 01/25/2017 01/26/2017 01/26/2017
01/26/2017 01/26/2017 01/26/2017 01/27/2017

As a reminder, Oral Argument on the motion for bifrucation is set for 1/25/2017 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (bh) (Entered: 01/24/2017)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 1/25/2017. Oral argument on the motion to compel scheduled for February 2, 2017 at 2:00 p.m. (bh) (Entered: 01/25/2017)
338 NOTICE OF APPEARANCE by Samantha Leigh Buchalter on behalf of New York State Office of Children and Family Services, Sheila J. Poole, State Of New York. (Buchalter, Samantha) (Entered: 01/26/2017)
339 ORDER denying 287 Letter Motion for Conference. A conference having been held in this matter on January 25, 2017, during which I heard oral argument concerning defendants' application to bifurcate custom and policy discovery, for the reasons stated on the record in open court, defendants' motion is denied. The Clerk of the Court is directed to mark Docket Item 287 as closed. (Signed by Magistrate Judge Henry B. Pitman on 1/25/2017) Copies Sent By Chambers. (cf) (Entered: 01/26/2017)
340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims. Document filed by Sheila J. Poole.(Buchalter, Samantha) (Entered: 01/26/2017)
341 MEMORANDUM OF LAW in Support re: 340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims. . Document filed by Sheila J. Poole. (Buchalter, Samantha) (Entered: 01/26/2017)
342 ANSWER to 91 Amended Complaint,,,. Document filed by Sheila J. Poole.(Buchalter, Samantha) (Entered: 01/26/2017)
343 NOTICE OF PARTIAL VOLUNTARY DISMISSAL WITHOUT PREJUDICE PURSUANT TO FED R. CIV P. 41(a)(1)(A)(i): Pursuant to Fed R. Civ P. 41 (a)(1)(A)(i), and subject to approval of the Court, counsel for Plaintiffs hereby voluntarily dismiss without prejudice Defendants the STATE OF NEW YORK and the NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES from the abovecaptioned action. These Defendants have not filed an answer to either the complaint or the amended complaint nor filed a motion for summary judgment. SO ORDERED. *** Party New York State Office of Children and Family Services and State Of New York terminated. Signed by Judge Laura Taylor Swain on 1/26/2017) (ama) Modified on 1/27/2017 (ama). (Entered: 01/27/2017)

01/31/2017 01/31/2017 01/31/2017 02/01/2017 02/02/2017 02/02/2017 02/03/2017
02/08/2017
02/08/2017

344 PRE-CONFERENCE STATEMENT in Advance of Rule 33.2 Informal Conference. Document filed by City of New York.(Pines, Jonathan) (Entered: 01/31/2017)
345 MOTION for Jennifer C. Simon to Withdraw as Attorney . Document filed by Sheila J. Poole.(Simon, Jennifer) (Entered: 01/31/2017)
346 DECLARATION of Jennifer C. Simon in Support re: 345 MOTION for Jennifer C. Simon to Withdraw as Attorney .. Document filed by Sheila J. Poole. (Simon, Jennifer) (Entered: 01/31/2017)
347 NOTICE OF APPEARANCE by Brittany Lynn Sukiennik on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Sukiennik, Brittany) (Entered: 02/01/2017)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 2/2/2017. (bh) (Entered: 02/02/2017)
348 MEMO ENDORSEMENT granting 345 Motion to Withdraw as Attorney. ENDORSEMENT: APPLICATION GRANTED. Attorney Jennifer C. Simon terminated (Signed by Magistrate Judge Henry B. Pitman on 2/1/2017) (cf) (Entered: 02/02/2017)
349 ORDER granting 330 Motion to Compel. Plaintiffs' application to compel supplemental responses to their First Set of Interrogatories is granted. (As further set forth in this Order.) The Clerk of the Court is directed to mark Docket Item 330 closed. (Signed by Magistrate Judge Henry B. Pitman on 2/3/2017) Copies Sent By Chambers (cf) (Entered: 02/03/2017)
350 TRANSCRIPT of Proceedings re: Discovery Hearing held on 1/25/2017 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Carole Ludwig, (212) 420-0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/1/2017. Redacted Transcript Deadline set for 3/13/2017. Release of Transcript Restriction set for 5/9/2017.(anc) (Entered: 02/08/2017)
351 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 1/25/2017 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(anc) (Entered: 02/08/2017)

02/13/2017 02/13/2017 02/23/2017
02/23/2017
02/24/2017 03/22/2017 03/23/2017 03/23/2017

352 MEMORANDUM OF LAW in Opposition re: 340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 02/13/2017)
353 MEMORANDUM OF LAW in Opposition re: 340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims. . Document filed by Letitia James. (Levy, Jennifer) (Entered: 02/13/2017)
354 TRANSCRIPT of Proceedings re: Discovery Hearing held on 2/2/2017 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Carole Ludwig, (212) 420-0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/16/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/24/2017.(jwh) (Entered: 02/23/2017)
355 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 2/2/2017 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(jwh) (Entered: 02/23/2017)
356 REPLY MEMORANDUM OF LAW in Support re: 340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims. . Document filed by Sheila J. Poole. (Buchalter, Samantha) (Entered: 02/24/2017)
Terminate Transcript Deadlines re: 322 . (anc) (Entered: 03/22/2017)
357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 03/23/2017)
358 MEMORANDUM OF LAW in Support re: 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend . . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 03/23/2017)

03/23/2017
03/23/2017
04/03/2017 04/06/2017 04/06/2017 04/20/2017 04/20/2017 04/20/2017 04/25/2017

359 DECLARATION of Yusuf El Ashmawy in Support re: 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend .. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Letitia James, Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 03/23/2017)
360 DECLARATION of Liza Camellerie in Support re: 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend .. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 03/23/2017)
361 LETTER MOTION for Extension of Time to respond to 357 Plaintiffs Motion to Substitute Yusuf El Ashmawy as a Next Friend addressed to Judge Laura Taylor Swain from Agnetha E. Jacob dated 4/3/2017. Document filed by City of New York.(Jacob, Agnetha) (Entered: 04/03/2017)
362 ORDER granting 361 Letter Motion for Extension of Time. APPLICATION GRANTED. (Signed by Magistrate Judge Henry B. Pitman on 4/6/2017) (cf) (Entered: 04/06/2017)
Set/Reset Deadlines: Responses due by 4/20/2017 (cf) (Entered: 04/06/2017)
363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. Document filed by City of New York.(Jacob, Agnetha) (Entered: 04/20/2017)
364 DECLARATION of Agnetha E. Jacob in Support re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children.. Document filed by City of New York. (Attachments: # 1 Exhibit Excerpts of transcript of proceedings held before Magistrate Judge Pitman on December 13, 2016)(Jacob, Agnetha) (Entered: 04/20/2017)
365 MEMORANDUM OF LAW in Support re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. and in Opposition to 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend. Document filed by City of New York. (Jacob, Agnetha) (Entered: 04/20/2017)
366 LETTER MOTION for Extension of Time to File Response/Reply as to 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend ., 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. addressed to Judge Laura Taylor Swain from Julie A. North dated April 25, 2017. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M.,

04/25/2017
04/26/2017 04/26/2017 05/11/2017
05/11/2017 05/11/2017

Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 04/25/2017)
367 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 25, 2017 re: letter to City Defendant (copy to Judge Swain) pursuant to pursuant to Judge Swain's individual Rule A.2.b.iii informing City Defendant that Named Plaintiff Children will not seek leave to amend their Amended Complaint. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 04/25/2017)
368 ORDER granting 366 Letter Motion for Extension of Time to File Response/Reply. APPLICATION GRANTED. BOTH MOTIONS WILL BE BEFORE ME. (Signed by Magistrate Judge Henry B. Pitman on 4/26/2017) (ras) (Entered: 04/26/2017)
Set/Reset Deadlines as to 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend, 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. Replies due by 5/11/2017. Responses due by 5/11/2017 (ras) (Entered: 04/26/2017)
369 MEMORANDUM OF LAW in Opposition re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. and In Support of Named Plaintiff Children's Motion to Substitute Yusuf El Ashmawy As A Next Friend (Dkt. 357). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Addendum A - Field Center brief, # 2 Addendum B National Association brief)(North, Julie) (Entered: 05/11/2017)
370 DECLARATION of Marcia Robinson Lowry in Opposition re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 05/11/2017)
371 DECLARATION of Elisa W. (Filed Under Seal) in Opposition re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 05/11/2017)

05/11/2017
05/11/2017 05/15/2017 05/15/2017 05/16/2017 05/18/2017 05/18/2017 05/19/2017 05/23/2017

372 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated May 11, 2017 re: Under Seal Filing of the Elisa W. Declaration (Dkt. 371). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 05/11/2017)
373 SEALED DOCUMENT placed in vault.(rz) (Entered: 05/12/2017)
374 NOTICE OF APPEARANCE by Justin Conrad Clarke on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Clarke, Justin) (Entered: 05/15/2017)
375 LETTER MOTION for Extension of Time to reply to 369 - 371 Plaintiffs' opposition to Defendant's cross-motion addressed to Magistrate Judge Henry B. Pitman from Agnetha E. Jacob dated 5/15/17. Document filed by City of New York.(Jacob, Agnetha) (Entered: 05/15/2017)
376 ORDER granting 375 Letter Motion for Extension of Time. The City's time to serve and file a reply in further support of its motion to dismiss is extended to June 1, 2017. (HEREBY ORDERED by Magistrate Judge Henry B. Pitman)(Text Only Order) Copies of Notice of Electronic Filing Sent By Chambers. (Pitman, Henry) (Entered: 05/16/2017)
377 NOTICE OF APPEARANCE by Claire Botnick on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Botnick, Claire) (Entered: 05/18/2017)
378 NOTICE OF APPEARANCE by Molly Montgomery Jamison on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Jamison, Molly) (Entered: 05/18/2017)
379 JOINT PRELIMINARY PRETRIAL STATEMENT . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 05/19/2017)
380 NOTICE OF APPEARANCE by Scott Bartron Reents on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R.,

05/25/2017
05/26/2017
06/01/2017 07/14/2017 07/17/2017 07/19/2017
07/21/2017

Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Reents, Scott) (Entered: 05/23/2017)
381 ORDER: Accordingly, and in light of the pending motion practice, the May 26, 2017, conference scheduled before the undersigned is cancelled, and the parties are directed to schedule a conference with Judge Pitman promptly to address the issues raised in their joint statement. SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/24/2017) (ama) (Entered: 05/25/2017)
382 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated May 26, 2017 re: request for conference pursuant to the Court's May 25, 2017 Order (ECF No. 381). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 05/26/2017)
383 REPLY MEMORANDUM OF LAW in Support re: 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children. . Document filed by City of New York. (Jacob, Agnetha) (Entered: 06/01/2017)
384 NOTICE OF APPEARANCE by Roderick Leopold Arz on behalf of Sheila J. Poole. (Arz, Roderick) (Entered: 07/14/2017)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Status Conference held on 7/17/2017. (ajc) (Entered: 07/17/2017)
385 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated July 19, 2017 re: Proposed Schedule. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/19/2017)
386 ORDER: It is hereby ORDERED that: 1. Plaintiffs are permitted to take up to 30 depositions. This order is without prejudice to an application from plaintiffs to take additional depositions or to an application from a defendant for a protective order with respect to a particular deposition or depositions. 2. Provided that plaintiffs include proposed search terms in their document requests, the parties shall meet and confer concerning search terms within 30 days of the date on which a document request is served. 3. In an effort to ensure the prompt resolution of any discovery disputes that may arise in this matter, monthly discovery conferences will be held commencing on August 10, 2017 and at four-week intervals thereafter, i.e. September 7, 2017, October 5, 2017, November 2, 2017, etc. The conferences will commence at 3:00 p.m. Any party wishing to

07/21/2017 08/03/2017
08/03/2017
08/10/2017 08/23/2017

raise an issue at the conference is directed to file a letter describing the issue on the ECF system by 5:00 p.m. on the Monday preceding the conference; such letters shall be limited to a maximum of 1500 words in length and shall include a representation that counsel has had a viva voce conversation -- not merely an exchange of correspondence, emails or faxes -- with the adverse party in a good faith attempt to resolve the dispute without my intervention. Opposition letters shall not be submitted. If no letters are filed prior to the date of a scheduled conference, I shall assume that no discovery issues currently exist and that there is no need for a conference at that time. This Order does not preclude any party from seeking discovery conferences in addition to the regularly scheduled Thursday conferences. (Signed by Magistrate Judge Henry B. Pitman on 7/21/2017) (rj) (Entered: 07/24/2017)
Set/Reset Hearings: Discovery Hearing set for 8/10/2017 at 03:00 PM before Magistrate Judge Henry B. Pitman. Discovery Hearing set for 9/7/2017 at 03:00 PM before Magistrate Judge Henry B. Pitman. Discovery Hearing set for 10/5/2017 at 03:00 PM before Magistrate Judge Henry B. Pitman. Discovery Hearing set for 11/2/2017 at 03:00 PM before Magistrate Judge Henry B. Pitman. (rj) (Entered: 07/24/2017)
387 TRANSCRIPT of Proceedings re: status conference held on 7/17/2017 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/24/2017. Redacted Transcript Deadline set for 9/5/2017. Release of Transcript Restriction set for 11/1/2017.(rro) (Entered: 08/03/2017)
388 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a status conference proceeding held on 7/17/2017 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 08/03/2017)
389 NOTICE OF APPEARANCE by Cara Brown Chomski on behalf of Sheila J. Poole. (Chomski, Cara) (Entered: 08/10/2017)
390 AMENDED RULE 502(d) STIPULATION & ORDER [AMENDED STIPULATION AND ORDER REGARDING THE DISCLOSURE OF PRIVILEGED INFORMATION]...regarding procedures to be followed that shall govern the handling of confidential material (See document). (Signed by Magistrate Judge Henry B. Pitman on 8/22/2017) (ras) (Entered: 08/23/2017)

08/23/2017 09/01/2017
09/01/2017 09/01/2017
09/07/2017 09/08/2017 09/11/2017 09/11/2017

391 SECOND AMENDED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...(As further set forth herein). (Signed by Magistrate Judge Henry B. Pitman on 8/22/2017) (ras) (Entered: 08/23/2017)
392 MEMORANDUM OPINION AND ORDER: re: 297 MOTION for Summary Judgment on Grounds of Mootness filed by City of New York. Accordingly, because the Court has not yet made a final determination as to whether this case will proceed as a class action, Defendants' motion for partial summary judgment dismissing the six Plaintiffs' claims on the grounds of mootness is denied. This Memorandum Opinion and Order resolves docket entry no. 297. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/01/2017) (ama) (Entered: 09/01/2017)
393 LETTER addressed to Magistrate Judge Henry B. Pitman from Samantha L. Buchalter dated September 1, 2017 re: Request for Extension of Time. Document filed by Sheila J. Poole.(Buchalter, Samantha) (Entered: 09/01/2017)
394 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated September 1, 2017 re: issues for discussion at the upcoming September 7, 2017 discovery conference. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 09/01/2017)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 9/7/2017. (ajc) (Entered: 09/07/2017)
395 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated 9/8/17 re: Cases addressing non-production of nonresponsive family members. Document filed by City of New York.(Pines, Jonathan) (Entered: 09/08/2017)
396 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated September 11, 2017 re: Request For List Of Citations. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 09/11/2017)
397 MEMORANDUM OPINION AND ORDER: re: 340 MOTION to Dismiss Plaintiff Letitia James and Plaintiffs' AACWA Claims filed by Sheila J. Poole. For the foregoing reasons, the Commissioner's motion to dismiss the Third Cause of Action is granted in part and denied in part. The Public Advocate's claims against theCommissioner in the Third Cause of Action are dismissed. The Named Plaintiff Childrens' claims against the Commissioner as described in paragraphs 348(a), (c), (d), (e),

09/19/2017
10/05/2017 10/05/2017 10/30/2017

(f), and (j) of the AC are dismissed. The Commissioner's motion is denied in all other respects. This Memorandum Opinion and Order resolves docket entry no. 340. This case remains referred to Magistrate Judge Pitman for general pre-trial management. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/11/2017) (ama) (Entered: 09/11/2017)
398 ORDER: It is hereby ORDERED that: The State Defendant's objection to producing documents sufficient to show the State Defendant's policies concerning the oversight of residential facilities is sustained. The State Defendant's request for an extension of time to September 15, 2017 to start the meet and confer process with Plaintiffs regarding the search terms that the State Defendant will use to identify electronically stored information that is potentially responsive to Plaintiffs' documents requests is granted...Plaintiffs' application to compel the City Defendants to produce non-responsive, non-privileged irrelevant documents that are attached to relevant, responsive documents is denied...Accordingly, plaintiff's application to compel the City Defendants to produce nonresponsive, nonprivileged, irrelevant documents that are attached to relevant responsive documents is denied, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 9/19/2017) Copies Transmitted By Chambers. (ras) (Entered: 09/20/2017)
399 TRANSCRIPT of Proceedings re: Discovery Hearing held on 9/7/2017 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/26/2017. Redacted Transcript Deadline set for 11/6/2017. Release of Transcript Restriction set for 1/3/2018.(rro) (Entered: 10/05/2017)
400 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 9/7/2017 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 10/05/2017)
401 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated October 30, 2017 re: July 21, 2017 Order (ECF No. 386). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 10/30/2017)

11/01/2017 11/02/2017 11/13/2017
11/13/2017
11/16/2017 11/22/2017 11/27/2017

402 NOTICE OF APPEARANCE by Daniel Slifkin on behalf of Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Slifkin, Daniel) (Entered: 11/01/2017)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 11/2/2017. (ajc) (Entered: 11/02/2017)
403 TRANSCRIPT of Proceedings re: Discovery Hearing held on 11/2/2017 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Carole Ludwig, (212) 420-0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/4/2017. Redacted Transcript Deadline set for 12/14/2017. Release of Transcript Restriction set for 2/12/2018.(rro) (Entered: 11/13/2017)
404 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 11/2/2017 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 11/13/2017)
405 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated November 16, 2017 re: City Defendant's relevance and responsiveness objections. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/16/2017)
406 JOINT LETTER MOTION for Leave to File Letter Brief addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated November 22, 2017. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/22/2017)
407 ORDER: granting 406 Letter Motion for Leave to File Document. APPLICATION GRANTED. (Signed by Magistrate Judge Henry B. Pitman on 11/27/2017) (ap) (Entered: 11/27/2017)

12/08/2017 12/08/2017
12/11/2017 12/29/2017 12/29/2017 02/01/2018

408 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Discovery opposing production of ACS Draft Policies addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated December 8, 2017. Document filed by City of New York. (Attachments: # 1 Appendix Pls' First Request for Production of Documents)(Pines, Jonathan) Modified on 12/29/2017 (ldi). (Entered: 12/08/2017)
409 LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated December 8, 2017 re: City Defendant's responsiveness and relevance objections. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Elisa W.. (Attachments: # 1 Exhibit A to North Letter, # 2 Exhibit B to North Letter, # 3 Exhibit C to North Letter, # 4 Exhibit D to North Letter, # 5 Exhibit E to North Letter, # 6 Exhibit F to North Letter, # 7 Exhibit G to North Letter)(North, Julie) (Entered: 12/08/2017)
410 LETTER RESPONSE in Support of Motion addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated December 11, 2017 re: 408 LETTER MOTION for Discovery opposing production of ACS Draft Policies addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated December 8, 2017. City Def's Response to Pls' counsel's letter of December 8, 2017. Document filed by City of New York. (Pines, Jonathan) (Entered: 12/11/2017)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Notice to Attorney Jonathan L. Pines to RE-FILE Document 408 LETTER MOTION for Discovery opposing production of ACS Draft Policies addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated December 8, 2017. Use the event type Letter found under the event list Other Documents. (ldi) (Entered: 12/29/2017)
411 LETTER addressed to Magistrate Judge Henry B. Pitman from Jonathan Pines dated December 8, 2017 re: Relevance/Responsiveness of ACS Draft Policy Documents. Document filed by City of New York. (Attachments: # 1 Appendix Pls' First Request for Production of Documents)(Pines, Jonathan) (Entered: 12/29/2017)
412 ORDER: The final pretrial conference currently scheduled for February 9, 2018, is hereby adjourned to Friday, February 23, 2018 at 12:00 p.m. in Courtroom 17C. SO ORDERED., ( Final Pretrial Conference set for 2/23/2018 at 12:00 PM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 2/01/2018) (ama) (Entered: 02/01/2018)

02/14/2018 02/16/2018 02/28/2018 02/28/2018

413 JOINT LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Julie A. North dated February 14, 2018. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 02/14/2018)
414 ORDER: granting 413 Letter Motion to Adjourn Conference. The Final Pre-trial Conference is adjourned to March 15, 2019, at 11:00 AM and the related deadlines are modified accordingly. DE # 413 resolved. SO ORDERED. Final Pretrial Conference set for 3/15/2019 at 11:00 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 2/15/2018) (ama) (Entered: 02/16/2018)
415 JOINT LETTER MOTION for Extension of Time for completion of fact and expert discovery addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated February 28, 2018. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 02/28/2018)
416 REPORT AND RECOMMENDATION re: 357 MOTION To Substitute Yusuf El Ashmawy As A Next Friend, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T., 363 CROSS MOTION to Dismiss Next Friends of Additional Plaintiff Children, filed by City of New York. I respectfully recommend that City's motion to dismiss to dismiss Amy Mulzer, Rachel Friedman, Dawn Cardi, Michael B. Mushlin, Reverend Doctor Gwendolyn HadleyHall, Bishop Lillian Robinson-Wiltshire, Liza Camellerie, Elizabeth Hendrix, Samuel Perry as next friends be denied, that its motion to dismiss Elizabeth Barricelli as the next friend of Elisa W. be granted and that plaintiffs' motion to substitute Yusuf El Ashmawy in place of Liza Camellerie as the next friend of plaintiff Brittney W. be granted. If accepted, this Report and Recommendation closes Docket Items 357 and 363. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Laura Taylor Swain, United States District Judge, Room 1440, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT

03/02/2018 03/20/2018
03/30/2018 03/30/2018

WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IDE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983). (Objections to R&R due by 3/14/2018.) (Signed by Magistrate Judge Henry B. Pitman on 2/28/2018) Copies Mailed By Chambers. (ras) (Entered: 02/28/2018)
417 AMENDED ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement) and Dispositive Motion (i.e., motion requiring a Report and Recommendation): docket entries 357 and 363. Referred to Magistrate Judge Henry B. Pitman. Motions referred to Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 3/2/2018(NPT to 3/23/2017)) (mro) Modified on 3/2/2018 (mro). (Entered: 03/02/2018)
418 ORDER: for 416 Report and Recommendations 357 Motion for Miscellaneous Relief, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T., 363 Motion to Dismiss filed by City of New York. Having reviewed Magistrate Judge Pitman's thorough and well-reasoned Report, to which no objection has been made, the Court finds no clear error. Therefore, the Court adopts the Report in its entirety. Accordingly, Defendants' Motion to Dismiss next friends Amy Mulzer, Rachel Friedman, Dawn Cardi, Michael B. Mushlin, Reverend Doctor Gwendolyn Hadley-Hall, Bishop Lillian Robinson-Wiltshire, Liza Camellerie, Elizabeth Hendrix, and Samuel Perry is denied. Defendants' Motion to Dismiss Elizabeth Barricelli as the next friend of Elisa W is granted. Plaintiffs' Motion to Substitute Yusuf El Ashmawy As Next Friend of Brittney W. is granted. The Clerk of Court is requested to update the docket accordingly. This Order resolves docket entry nos. 357 and 363. This case remains referred to Judge Pitman for general pretrial management, and as further set forth in this order. (Signed by Judge Laura Taylor Swain on 3/20/2018) (ap) Modified on 3/20/2018 (ap). Modified on 3/22/2018 (ap). (Entered: 03/20/2018)
419 ORDER granting 415 Letter Motion for Extension of Time. APPLICATION GRANTED. (Signed by Magistrate Judge Henry B. Pitman on 3/29/2018) (ras) (Entered: 03/30/2018)
Set/Reset Deadlines: Expert Discovery due by 2/28/2019. Fact Discovery due by 11/29/2018. (ras) (Entered: 03/30/2018)

04/25/2018 04/25/2018 04/25/2018 04/25/2018 11/19/2018
11/29/2018 11/29/2018 12/05/2018
12/06/2018

420 NOTICE OF CHANGE OF ADDRESS by Samantha Leigh Buchalter on behalf of Sheila J. Poole. New Address: New York State Office of the Attorney General, 28 Liberty Street, New York, New York, United States 10005, 212-416-6582. (Buchalter, Samantha) (Entered: 04/25/2018)
421 NOTICE OF CHANGE OF ADDRESS by Antoinette W Blanchette on behalf of Sheila J. Poole. New Address: New York State Office of the Attorney General, 28 Liberty Street, New York, NY, 10005, (212) 4168595. (Blanchette, Antoinette) (Entered: 04/25/2018)
422 NOTICE OF CHANGE OF ADDRESS by Roderick Leopold Arz on behalf of Sheila J. Poole. New Address: New York State Office of the Attorney General, 28 Liberty Street, New York, New York, 10005, (212) 416-8633. (Arz, Roderick) (Entered: 04/25/2018)
423 NOTICE OF CHANGE OF ADDRESS by Cara Brown Chomski on behalf of Sheila J. Poole. New Address: New York State Office of the Attorney General, 28 Liberty Street, New York, New York, 10005, (212) 416-8177. (Chomski, Cara) (Entered: 04/25/2018)
424 LETTER MOTION for Extension of Time for completion of fact discovery on class certification addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated November 19, 2018. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/19/2018)
425 ORDER granting 424 Letter Motion for Extension of Time. THE SCHEDULE PROVIDED HEREIN IS APPROVED. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 11/29/2018) (ne) (Entered: 11/29/2018)
Set/Reset Deadlines: Fact Discovery due by 4/30/2019. (ne) (Entered: 11/29/2018)
426 LETTER MOTION to Adjourn Conference ("Final Pretrial Conference scheduled for March 15, 2019") addressed to Judge Laura Taylor Swain from Julie A. North dated December 5, 2018. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 12/05/2018)
427 ORDER: granting 426 Letter Motion to Adjourn Conference. The Final Pretrial Conference is adjourned to December 20, 2019, at 2:00 p.m. as a control date and the related deadlines are suspended pending further Order of the Court. DE # 426 resolved. SO ORDERED. Final Pretrial Conference set for 12/20/2019 at 02:00 PM before Judge Laura Taylor

12/20/2018 12/31/2018 01/02/2019
03/04/2019
03/05/2019 03/05/2019 06/18/2019

Swain. (Signed by Judge Laura Taylor Swain on 12/06/2018) (ama) (Entered: 12/06/2018)
428 OPINION AND ORDER: Accordingly, for all the foregoing reasons, plaintiffs' application to compel the production of drafts of certain of defendants' policies is denied. (Signed by Magistrate Judge Henry B. Pitman on 12/20/2018) Copies Transmitted By Chambers. (ne) (Entered: 12/20/2018)
429 FIRST MOTION for Jennifer Levy to Withdraw as Attorney for Plaintiff Letitia James. Document filed by Letitia James. (Attachments: # 1 Exhibit Proposed Order)(Levy, Jennifer) (Entered: 12/31/2018)
430 ORDER GRANTING MOTION TO WITHDRAW JENNIFER LEVY AS A COUNSEL OF RECORD FOR PLAINTIFF granting 429 Motion to Withdraw as Attorney. IT IS HEREBY ORDERED that Jennifer Levy, Esq., is withdrawn as counsel of record for Plaintiff Letitia James. IT IS FURTHER ORDERED that Jennifer Levy, Esq., shall no longer receive electronic notices from the court's CM/ECF system in this proceeding. It is SO ORDERED. Attorney Jennifer L. Levy terminated. (Signed by Magistrate Judge Henry B. Pitman on 1/2/2019) (ne) (Entered: 01/02/2019)
431 LETTER MOTION for Extension of Time for Close of Fact Discovery on Class Certification addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated March 4, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 03/04/2019)
432 ORDER granting 431 Letter Motion for Extension of Time. The within application is granted. Fact discovery is extended to May 31, 2019. The parties are to submit a proposed briefing schedule for plaintiffs' motion for class certification no later than June 30, 2019. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 3/5/2019) Copies Transmitted By Chambers. (ne) (Entered: 03/05/2019)
Set/Reset Deadlines: Fact Discovery due by 5/31/2019. (ne) (Entered: 03/05/2019)
433 JOINT LETTER addressed to Magistrate Judge Henry B. Pitman from Julie A. North dated June 18, 2019 re: proposed briefing schedule for Plaintiffs' motion for class certification. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 06/18/2019)

06/19/2019
07/23/2019 07/24/2019 07/29/2019 07/30/2019

434 MEMO ENDORSEMENT on re: 433 Letter, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: THE SCHEDULE PROPOSED HEREIN IS APPROVED. SO ORDERED. (Motions due by 7/31/2019, Responses due by 10/31/2019, Replies due by 12/20/2019.) (Signed by Magistrate Judge Henry B. Pitman on 6/19/2019) (ne) (Entered: 06/19/2019)
435 LETTER MOTION for Leave to File Excess Pages addressed to Judge Laura Taylor Swain from Julie A. North dated July 23, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/23/2019)
436 ORDER: denying 435 Letter Motion for Leave to File Excess Pages. The requested extension is Denied. Plaintiffs are granted an extension of up to 60 pages in total for their opening brief as to both Defendants. SO ORDERED. (Signed by Judge Laura Taylor Swain on 7/24/2019) (ama) (Entered: 07/24/2019)
437 LETTER MOTION to Seal Document addressed to Judge Laura Taylor Swain from Julie A. North dated July 29, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/29/2019)
438 ORDER: granting 437 Motion to Seal Document. The request is granted insofar as it seeks to redact identifying information of Named Plaintiff Children in their memorandum of law and exhibits to the same. Named Plaintiff Children's request to file under seal certain excerpts of 30(b)(6) depositions of certain third-party agencies (the "Contract Agencies") is granted temporarily until August 14, 2019, by which date either the Named Plaintiff Children or the Contract Agencies must file a letter motion on ECF seeking leave for the continued sealing of these excerpts. The letter motion, which may be redacted if necessary, must identify any relevant provisions of the Second Amended Protective Order (docket entry no. 391), justify the request in light of the standards set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 11920 (2d Cir. 2006), and state whether the request is on consent and, if not, the substance of any opposing position(s). Unredacted courtesy copies of the letter motion and relevant deposition excerpts with all proposed redactions in highlighted form must be provided to Chambers. If no timely request seeking leave for continued sealing is filed, the excerpts shall be unsealed without further notice. Named Plaintiff Children are directed to serve a copy of this order upon the Contract Agencies no later

07/30/2019 07/30/2019 07/30/2019
07/30/2019
07/30/2019

than July 31, 2019. This Order resolves docket entry no. 437. SO ORDERED. (Signed by Judge Laura Taylor Swain on 7/30/2019) (ama) (Entered: 07/30/2019)
Set/Reset Deadlines: Motions due by 8/14/2019. (ama) (Entered: 07/30/2019)
439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 07/30/2019)
440 MEMORANDUM OF LAW in Support re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4)(North, Julie) (Entered: 07/30/2019)
441 DECLARATION of Marcia Robinson Lowry in Support re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 07/30/2019)
442 DECLARATION of Julie A. North in Support re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51,

07/31/2019 08/01/2019
08/05/2019
08/05/2019

# 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121)(North, Julie) (Entered: 07/30/2019)
443 SEALED DOCUMENT placed in vault.(mhe) (Entered: 07/31/2019)
444 LETTER MOTION to Seal Document (letter requesting an extension of the class certification briefing schedule) addressed to Judge Laura Taylor Swain from Julie A. North dated August 1, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 08/01/2019)
445 JOINT LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated August 5, 2019 re: extension of class certification briefing schedule. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 08/05/2019)
446 MEMO ENDORSEMENT: on re: 445 Letter filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T., ), ENDORSEMENT: The proposed schedule is approved and the request to withdraw the prior letters is Granted. DE # 445 resolved, DE # 444 withdrawn and terminated. SO ORDERED. Motions terminated: 444 LETTER MOTION to Seal Document (letter requesting an extension of the class certification briefing schedule) addressed to Judge Laura Taylor Swain from Julie A. North dated August 1, 2019

08/14/2019 08/14/2019 08/15/2019
08/15/2019
09/06/2019 09/11/2019

filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Jose T.C., Alexandria R., Mikayla G., Olivia R., Xavion M., Myls J., Ana-Maria R., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ( Responses due by 12/12/2019, Replies due by 1/31/2020.) (Signed by Judge Laura Taylor Swain on 8/05/2019) (ama) (Entered: 08/05/2019)
447 LETTER addressed to Judge Laura Taylor Swain from Kristin L. Williams dated 08/13/2019 re: Order to Unseal Testimony. Document filed by Non-party agency.(Williams, Kristin) (Entered: 08/14/2019)
448 LETTER addressed to Judge Laura Taylor Swain from Non-party agency dated 08/13/2019 re: Order to Unseal Testimony. Document filed by Non-party agency.(Williams, Kristin) (Entered: 08/14/2019)
449 ORDER: The temporary sealing of the deposition excerpts is hereby continued until September 6, 2019. If no timely joint report is filed, the excerpts shall be unsealed without further notice. Named Plaintiff Children are directed to serve a copy of this Order upon CHFS and HSVS, and to file a certificate attesting to such service, no later than August 16, 2019. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/15/2019) (ks) (Entered: 08/15/2019)
450 CERTIFICATE OF SERVICE of the Order of the Court (ECF No. 449) served on Kristin L. Williams on August 15, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Winograd, Max) (Entered: 08/15/2019)
451 LETTER addressed to Judge Laura Taylor Swain from Non-party agency dated 09/06/2019 re: Continued Sealing of Deposition Excerpts Filed Under Seal. Document filed by Non-party agency.(Williams, Kristin) (Entered: 09/06/2019)
452 ORDER: The Court hereby grants the agencies a third and final opportunity to offer more than conclusory statements demonstrating the need for continued sealing. The third-party agencies must file no later than September 20, 2019, a submission (1) explaining the specific deposition testimony they seek to file under seal, (2) demonstrating why that testimony will "cause embarrassment and harm," "damage [the agencies'] relationship with ACS," or "damage the trust and security the families have in their foster services," and (3) describing how continued sealing or redaction is necessary to preserve higher values beyond the third-party agencies' mere desire not to disclose this information to the public. To the extent that the agencies contend that the supplemental explanatory material includes material that itself meets the high standard for sealing or protection, the statement may be filed on ECF in redacted form with the unredacted version delivered for chambers and served on

09/11/2019 09/20/2019 09/24/2019 09/25/2019
10/02/2019 10/02/2019

Named Plaintiff Children. The Court will review and rule on whether that material may remain sealed in conjunction with its ruling on whether the deposition excerpts that are the subject of the Named Plaintiff Childrens application may remain sealed. The temporary sealing of the deposition excerpts is hereby continued until September 23, 2019. If no timely supplemental submission is filed, the excerpts shall be unsealed without further notice. Named Plaintiff Children are directed to serve a copy of this Order upon CHFS and HSVS, and to file a certificate attesting to such service, no later than September 12, 2019. And as set forth herein. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/11/2019) (ama) (Entered: 09/11/2019)
453 CERTIFICATE OF SERVICE of the Order of the Court (ECF No. 452) served on Kristin L. Williams on September 11, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Coleman, Amanda) (Entered: 09/11/2019)
454 LETTER addressed to Judge Laura Taylor Swain from Non-party agency dated 9/20/19 re: In Response to Court Order. Document filed by Nonparty agency.(Williams, Kristin) (Entered: 09/20/2019)
455 MEMO ENDORSEMENT: on re: 454 Letter filed by Non-party agency. ENDORSEMENT: The Court appreciates the Agencies' concerns but finds no proper legal basis for maintaining the referenced excerpts under seal. Plaintiff are directed to file them on the ECF docket by September 30, 2019. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/23/2019) (ama) (Entered: 09/24/2019)
456 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated September 25, 2019 re: filing of previously sealed deposition excerpts pursuant to order of September 24, 2019 (ECF No. 455). Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 9-Gonzalez Excerpts, # 2 Exhibit 15--Munoz Excerpts)(North, Julie) (Entered: 09/25/2019)
Magistrate Judge Sarah L. Cave is so redesignated. (ad) (Entered: 10/02/2019)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Sarah L. Cave, for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement). Magistrate Judge Henry B. Pitman no longer referred to the case. Motions referred to Sarah L. Cave. (ad) (Entered: 10/02/2019)

10/02/2019 10/03/2019 10/23/2019 10/24/2019 10/25/2019 11/01/2019
11/01/2019 11/01/2019

457 NOTICE OF APPEARANCE by Sharon Vicky Sprayregen on behalf of Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Sprayregen, Sharon) (Entered: 10/02/2019)
458 NOTICE OF APPEARANCE by Ian William Forster on behalf of Gladys Carrion, City of New York, New York City Administration for Childrens Services. (Forster, Ian) (Entered: 10/03/2019)
459 LETTER MOTION to Seal Document addressed to Judge Laura Taylor Swain from Julie A. North dated October 23, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 10/23/2019)
460 ORDER denying 459 Motion to Seal Document. The general request is denied, without prejudice to a motion, consistent with paragraph A.5 of the individual practices rules of the undersigned, demonstrating the need for redaction of specific identifying or medical information. DE # 459 resolved. (Signed by Judge Laura Taylor Swain on 10/24/2019) (ras) (Entered: 10/24/2019)
461 LETTER MOTION to Seal Document addressed to Judge Laura Taylor Swain from Julie A. North dated October 25, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 10/25/2019)
462 ORDER granting 461 LETTER MOTION to Seal Document addressed to Judge Laura Taylor Swain from Julie A. North dated October 25, 2019. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W. The request is granted. DE #461 resolved. So ordered. (Signed by Judge Laura Taylor Swain on 11/1/2019) (rjm) Transmission to Sealed Records Clerk for processing. (Entered: 11/01/2019)
463 MOTION to Substitute Michael B. Mushlin and Shamara Mills as Next Friends . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W..(North, Julie) (Entered: 11/01/2019)
464 MEMORANDUM OF LAW in Support re: 463 MOTION to Substitute Michael B. Mushlin and Shamara Mills as Next Friends . . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik

11/01/2019 11/01/2019 12/04/2019
12/06/2019 12/10/2019

M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(North, Julie) (Entered: 11/01/2019)
465 DECLARATION of Michael B. Mushlin in Support re: 463 MOTION to Substitute Michael B. Mushlin and Shamara Mills as Next Friends .. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 11/01/2019)
466 DECLARATION of Shamara Mills in Support re: 463 MOTION to Substitute Michael B. Mushlin and Shamara Mills as Next Friends .. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (North, Julie) (Entered: 11/01/2019)
467 MEMO ENDORSEMENT on NOTICE OF MOTION TO SUBSTITUTE MICHAEL B. MUSHLIN AND SHAMARA MILLS AS NEXT FRIENDS: granting 463 Motion for SUBSTITUTE MICHAEL B. MUSHLIN AND SHAMARA MILLS AS NEXT FRIENDS. ENDORSEMENT: The within Motion for the substitution of Ms. Mills as next friend to Brittany W. and for the substitution of Ms. Mushlin as next friend to Mikayla G. and Thierry E. is Granted, and the Clerk of Court is directed to update the caption as set forth above. DE # 463 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/04/2019) (ama) (Entered: 12/04/2019)
468 JOINT LETTER addressed to Judge Laura Taylor Swain from Jonathan Pines dated December 6, 2019 re: extension of filing schedule for opposition and reply papers relating to Plaintiffs' pending Motion for Class Certification. Document filed by City of New York.(Forster, Ian) (Entered: 12/06/2019)
469 MEMO ENDORSEMENT: on re: 468 Letter filed by The City of New York. ENDORSEMENT: In light of the need for time for further discussions, the Clerk of Court is directed to terminate the pending motion (DE # 439) without prejudice to restoration for completion of briefing, by letter request on or after April 1, 2020, for approval by briefing according to the above schedule. SO ORDERED., ( Responses due by 4/13/2020, Replies due by 5/29/2020.), Motions terminated: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification") filed by Lucas T., Brittney W., Emmanuel S.,

12/13/2019 02/27/2020 02/28/2020 03/04/2020 03/05/2020
03/16/2020

Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. (Signed by Judge Laura Taylor Swain on 12/06/2019) (ama) (Entered: 12/10/2019)
470 ORDER: The final pretrial conference currently scheduled for December 20, 2019, is hereby adjourned to Friday, March 13, 2020 at 2:00 p.m. in Courtroom 17C. (Final Pretrial Conference set for 3/13/2020 at 02:00 PM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 12/13/2019) (cf) (Entered: 12/13/2019)
471 LETTER MOTION to Adjourn Conference (Final PTC currently 3/13/20 @ 2:00) addressed to Judge Laura Taylor Swain from Jonathan Pines dated February 27, 2020. Document filed by The City of New York..(Pines, Jonathan) (Entered: 02/27/2020)
472 ORDER: granting 471 Letter Motion to Adjourn Conference. The FPTC is adjourned to October 2, 2020 at 2:00 p.m. as a control date. The parties must file a joint status report by July 31, 2020. DE # 471 resolved. SO ORDERED. Final Pretrial Conference set for 10/2/2020 at 02:00 PM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 2/28/2020) (ama) (Entered: 02/28/2020)
473 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem..(Flynn-Fitzsimmons, Luke) (Entered: 03/04/2020)
474 NOTICE AND ORDER FOR WITHDRAWAL OF COUNSEL re: 473 Proposed Order for Withdrawal of Attorney: The Clerk of Court is respectfully directed to terminate Attorney Luke Xavier FlynnFitzsimmons' appearance as attorney for Intervenors Brooklyn Defender Services, The Bronx Defenders, Center for Family Representation, Inc., and Neighborhood Defender Service of Harlem. (Attorney Luke Xavier Flynn-Fitzsimmons terminated.) (Signed by Magistrate Judge Sarah L Cave on 3/5/2020) (jwh) (Entered: 03/05/2020)
475 SCHEDULING ORDER: It is hereby ORDERED, pursuant to Fed. R. Civ. P. 30(b)(3) and (b)(4), that all depositions in this action may be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means. This order does not dispense with the requirements set forth in Fed. R. Civ. P. 30(b)(5), including the requirement that ("[u]nless the parties stipulate otherwise") the deposition be "conducted before an officer appointed or designated under Rule 28," and that the deponent be placed under oath by that officer. For avoidance of doubt, however, a deposition will be deemed to have been conducted "before" an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call

03/17/2020 03/19/2020 03/19/2020

or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants. It is further ORDERED, pursuant to Fed. R. Civ. P. 16(b)(4), that all unexpired deadlines for the completion of fact depositions, fact discovery, expert depositions, expert discovery, and/or all discovery are hereby EXTENDED for a period of 30 days, together with all post-discovery deadlines previously set by this Court. Nothing in this Order prevents the parties from seeking to further modify the pretrial schedule in this action in light of the COVID-19 pandemic (or for any other good cause). Prior to seeking such relief, the parties must, as always, meet and confer (via remote means) in a good faith effort to reach agreement on how best to fulfil the goals of Rule 1 while avoiding unnecessary health risks. On receipt of this order, each party is directed to ensure that all other parties in this action are aware of the order, particularly if this action involves a pro se party. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 3/16/2020) (ama) (Entered: 03/16/2020)
476 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated March 17, 2020 re: Amended Exhibit 1 to ECF Docket No. 442. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit Amended Exhibit 1 (Redacted) to the Declaration of Julie A. North in Support).(North, Julie) (Entered: 03/17/2020)
477 MEMO ENDORSEMENT: on re: 476 Letter filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: The foregoing application to file an amended version of Exhibit 1 to DE 442 with the corrected redacted exhibit is granted. The implicit motion to file under seal the unredacted exhibit with access permitted only to the Court and counsel for named parties is also granted. The unredacted exhibit must be filed under seal electronically, linked to this authorizing order in accordance with the Court's ECF rules. DE # 476 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/18/2020) (ama) (Entered: 03/19/2020)
478 ***SELECTED PARTIES***NOTICE of Amended Exhibit 1 re: 477 Memo Endorsement, Set Deadlines/Hearings,,,,,,. Document filed by Olivia R., Myls J., Dameon C., Alexandria R., Emmanuel S., Elisa W., Valentina T.C., Matthew V., Lucas T., Malik M., Mikayla G., Xavion M., Thierry E., Brittney W., Tyrone M., Ayanna J., Ximena T., Jose T.C., Ana-Maria R., David Hansel, New York City Administration for Childrens Services, Sheila J. Poole, State Of New York, The City of

04/13/2020 04/14/2020 06/05/2020 06/08/2020 07/16/2020 07/17/2020

New York, The New York State Office of Children and Family Services. Motion or Order to File Under Seal: 477 .(North, Julie) (Entered: 03/19/2020)
479 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated April 13, 2020 re: request for an extension for restoration of the briefing schedule on behalf of all parties. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 04/13/2020)
480 MEMO ENDORSEMENT on re: 479 Letter, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: The schedule proposed above is approved. DE #479 resolved. SO ORDERED. ( Responses due by 6/15/2020, Replies due by 7/31/2020.) (Signed by Judge Laura Taylor Swain on 4/14/2020) (va) (Entered: 04/14/2020)
481 LETTER addressed to Judge Laura Taylor Swain from Julie A. North dated June 5, 2020 re: restoration of the briefing schedule. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 06/05/2020)
482 MEMO ENDORSEMENT on re: 481 Letter, filed by Lucas T., Brittney W., Emmanuel S., Tyrone M., Thierry E., Ayanna J., Malik M., Alexandria R., Jose T.C., Olivia R., Mikayla G., Xavion M., Ana-Maria R., Myls J., Valentina T.C., Dameon C., Elisa W., Matthew V., Ximena T. ENDORSEMENT: The request is granted and the proposed briefing schedule is approved. The motion for class certification (DE # 439) is deemed refiled on June 8,2020. DE # 481 resolved. SO ORDERED., ( Responses due by 8/31/2020, Replies due by 9/18/2020.) (Signed by Judge Laura Taylor Swain on 6/08/2020) (ama) (Entered: 06/08/2020)
483 PROPOSED STIPULATION AND ORDER. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Appendix A--Minimum Technical Requirements for Remote Depositions).(North, Julie) (Entered: 07/16/2020)
484 STIPULATED ORDER REGARDING REMOTE DEPOSITIONS. It is ORDERED that the Remote Depositions shall proceed subject to the following rules and procedures, which have been agreed upon by the

07/22/2020 07/29/2020

Parties: Pursuant to Rule 30(b)(5) of the Federal Rules of Civil Procedure, Remote Depositions will be conducted before a Court Reporter who shall have all of the authority of an officer appointed or authorized under Rule 28 to take Depositions. Remote Depositions shall be conducted using the Remote Deposition Video and Exhibit Platforms, and shall be accessed only through a secured connection to protect confidential information. In order to facilitate reliable use of the Remote Deposition Video and Exhibit Platforms, each attorney shall be responsible for acquiring, maintaining, and utilizing computer, audio, and video equipment that meets the minimum requirements set forth in Appendix A. The Parties stipulate that the language set forth below shall be included in oral deposition notices served pursuant to Rule 30(b)(1) and provides sufficient notice with respect to Remote Depositions as further set forth in this Stipulation. Except as otherwise provided herein, the Remote Depositions shall in all ways be governed by the rules regarding depositions by oral examination set forth in Rule 30 of the Federal Rules of Civil Procedure. The Remote Depositions shall satisfy the Parties and each Witnesss obligations to make the Witness available for deposition to the same extent as if the depositions had been conducted in person. Except as otherwise provided in this Stipulated Order or as otherwise agreed by the parties, no Participant shall permit anyone who is not a Participant to hear or view the Remote Deposition while it is being conducted. No Participant shall communicate or attempt to communicate with the Witness while the Remote Deposition is on the record through any means other than the Remote Deposition Video and Exhibit Platforms, except that the Videographer or Operator may communicate with the Witness to resolve technical issues through means other than the Remote Deposition Video and Exhibit Platforms. Notwithstanding this provision, subject to all otherwise applicable rules, including Federal Rule of Civil Procedure 30(d)(1), the Defending Attorney may communicate privately with the Witness by any means any time during breaks in the Remote Deposition or if the Court Reporter otherwise suspends the Remote Deposition. This Stipulated Order also shall govern any Remote Depositions of non-Party witnesses and as further set forth in this Stipulation. IT IS SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 7/17/20) (yv) (Entered: 07/17/2020)
NOTICE OF CASE REASSIGNMENT to Judge Kimba M. Wood. Judge Laura Taylor Swain is no longer assigned to the case..(wb) (Entered: 07/22/2020)
485 LETTER MOTION for Extension of Time to File Response/Reply as to 482 Memo Endorsement, Set Deadlines/Hearings,,,, and All Parties' Joint Status Update Letter addressed to Judge Kimba M. Wood from Jonathan Pines dated July 29, 2020. Document filed by The City of New York..(Pines, Jonathan) (Entered: 07/29/2020)

08/04/2020
08/21/2020 08/24/2020
08/31/2020
08/31/2020 08/31/2020 08/31/2020

486 ORDER granting 485 Letter Motion for Extension of Time to File Response/Reply. On July 29, 2020, the City Defendant submitted a letter to the Court on behalf of the parties, seeking to resolve a dispute regarding the date on which the Defendants' papers in opposition to Plaintiffs' Renewed Motion for Class Certification will be due. (ECF No. 485.) The Court adopts the briefing schedule proposed by Plaintiffs. The City Defendant shall file its opposition by August 31, 2020. The State Defendant shall file its opposition by September 21, 2020. Plaintiffs shall file their reply by October 9, 2020. SO ORDERED. Responses due by 9/21/2020. Replies due by 10/9/2020. (Signed by Judge Kimba M. Wood on 8/4/2020) (va) (Entered: 08/04/2020)
487 LETTER MOTION for Leave to File Excess Pages on behalf of State and City Defendants addressed to Judge Kimba M. Wood from Jonathan Pines dated August 21, 2020. Document filed by The City of New York..(Pines, Jonathan) (Entered: 08/21/2020)
488 ORDER granting 487 LETTER MOTION for Leave to File Excess Pages on behalf of State and City Defendants addressed to Judge Kimba M. Wood from Jonathan Pines dated August 21, 2020. Document filed by The City of New York. The City Defendant's requested is GRANTED. The City Defendant's memorandum in opposition to Plaintiffs' motion for class certification shall be limited to 75 pages, and the State Defendant's memorandum in opposition shall be limited to 40 pages. SO ORDERED. (Signed by Judge Kimba M. Wood on 8/24/2020) (rjm) (Entered: 08/24/2020)
489 DECLARATION of Jonathan Pines in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by The City of New York. (Attachments: # 1 Exhibit C (Metro News article), # 2 Exhibit D (Long Dep. excerpt), # 3 Exhibit E (Long Dep. excerpt), # 4 Exhibit F (Long Dep. excerpt), # 5 Exhibit G (Long Dep. excerpt), # 6 Exhibit H (CGS Dep. excerpt), # 7 Exhibit I (Children's Village Dep. excerpt), # 8 Exhibit J (Graham Windham Dep. excerpt), # 9 Exhibit K (Little Flower Dep. excerpt), # 10 Exhibit L (HHS ACF letter 6/23/20)).(Pines, Jonathan) (Entered: 08/31/2020)
490 DECLARATION of Julie Farber in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by The City of New York..(Pines, Jonathan) (Entered: 08/31/2020)
491 DECLARATION of Andrew White in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by The City of New York..(Pines, Jonathan) (Entered: 08/31/2020)
492 DECLARATION of Allon Yaroni in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification")..

08/31/2020
08/31/2020 08/31/2020 09/01/2020 09/21/2020 09/21/2020 09/21/2020 09/29/2020
09/30/2020

Document filed by The City of New York. (Attachments: # 1 Exhibit Yaroni-A (Reas. Efforts Chart))).(Pines, Jonathan) (Entered: 08/31/2020)
493 MEMORANDUM OF LAW in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). with Appendix (City's 2016 Memo of Law in Opp to Class Certification, De 205). Document filed by The City of New York. (Attachments: # 1 Appendix City Def's 2016 Memo in Opp to Class Certification)).(Pines, Jonathan) (Entered: 08/31/2020)
494 RESPONSE in Opposition to Motion re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). Margaret Burt Expert Report. Document filed by The City of New York..(Pines, Jonathan) (Entered: 08/31/2020)
495 RESPONSE in Opposition to Motion re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). Fred Wulczyn Expert Report. Document filed by The City of New York..(Pines, Jonathan) (Entered: 08/31/2020)
496 DECLARATION of Nancy Thomson in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by The City of New York..(Pines, Jonathan) (Entered: 09/01/2020)
497 MEMORANDUM OF LAW in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). . Document filed by Sheila J. Poole..(Buchalter, Samantha) (Entered: 09/21/2020)
498 DECLARATION of Lisa Ghartey Ogundimu in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by Sheila J. Poole. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E).(Buchalter, Samantha) (Entered: 09/21/2020)
499 DECLARATION of Samantha L. Buchalter in Opposition re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification").. Document filed by Sheila J. Poole. (Attachments: # 1 Exhibit F, # 2 Exhibit G).(Buchalter, Samantha) (Entered: 09/21/2020)
500 JOINT LETTER addressed to Judge Kimba M. Wood from Julie A. North dated September 29, 2020 re: case scheduling. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 09/29/2020)
501 SCHEDULING ORDER: Completion of Plaintiffs' Document Productions due by 10/30/2020. Defendants File Daube1t Motion due by

11/25/2020 11/27/2020 11/27/2020 12/29/2020 12/30/2020
01/07/2021

November 30, 2020. Plaintiffs File Opposition to Daubert due by December 14, 2020. Defendants File Reply In Support of Daubert Motion Due December 21, 2020 Completion of City Defendants' February 6, 2021 Document Productions due by 2/6/2021. Close of Expert Depositions due by 3 weeks after close of City Defendants' document productions. The pretrial conference scheduled for October 2, 2020 is adjourned.The conference shall take place seven days after the issuance of an orderon Plaintiffs' motion for class certification.Plaintiffs' request to file additional pages in reply to City and StateDefendants' opposition briefs is granted. (Motions due by 11/30/2020. Responses due by 12/14/2020 Replies due by 12/21/2020.) (Signed by Judge Kimba M. Wood on 9/30/2020) (rro) (Entered: 09/30/2020)
502 FIRST LETTER MOTION for Extension of Time to file Daubert motion (on consent) addressed to Judge Kimba M. Wood from Sharon Sprayregen dated November 25, 2020. Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 11/25/2020)
503 AMENDED SCHEDULING ORDER granting 502 Letter Motion for Extension of Time. City Defendant's request for an extension to the deadline for filing a Daubert motion (ECF No. 502) is granted. Motions due by 12/30/2020. (nb) (Entered: 11/30/2020)
Set/Reset Deadlines: Responses due by 1/13/2021 Replies due by 1/21/2021. (nb) (Entered: 11/30/2020)
504 LETTER MOTION for Extension of Time on consent to file the Daubert motion, and joint request to supplement DE 503 addressed to Judge Kimba M. Wood from Sharon Sprayregen dated December 29, 2020. Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 12/29/2020)
505 SECOND AMENDED SCHEDULING ORDER: Motions due by 1/11/2021. Responses due by 1/25/2021. Defendants File Reply in Support of Daubert Motion due 2/2/2021. Completion of City Defendants' Document Productions 2/6/2021. Deposition due by 3/1/2021. Replies due by 3/22/2021. City Defendant's request for an extension to the deadline for filing a Daubert motion and to supplement the November 27, 2020 Scheduling Order is granted. (ECF No. 504.) Counsel are advised that further extensions to the deadline for filing a Daubert motion shall not be granted absent a showing of good cause. SO ORDERED. (Signed by Judge Kimba M. Wood on 12/30/2020) (va) (Entered: 12/30/2020)
506 LETTER addressed to Judge Kimba M. Wood from Ian William Forster dated January 7, 2021 re: City Defendant's amended expert reports to be filed separately, originally filed at Dkt. Nos. 494 and 495. Document filed by The City of New York..(Forster, Ian) (Entered: 01/07/2021)

01/07/2021 01/07/2021 01/08/2021 01/08/2021 01/11/2021 01/11/2021 01/11/2021 01/11/2021
01/13/2021 01/15/2021

507 NOTICE of Amended Margaret Burt Expert Report re: 494 Response in Opposition to Motion, 506 Letter,. Document filed by The City of New York..(Forster, Ian) (Entered: 01/07/2021)
508 NOTICE of Amended Fred Wulczyn Expert Report re: 506 Letter, 495 Response in Opposition to Motion. Document filed by The City of New York..(Forster, Ian) (Entered: 01/07/2021)
509 LETTER MOTION for Leave to File Excess Pages on consent addressed to Judge Kimba M. Wood from Sharon Sprayregen dated January 8, 2021. Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 01/08/2021)
510 ORDER granting 509 Letter Motion for Leave to File Excess Pages. Granted. SO ORDERED. (Signed by Judge Kimba M. Wood on 1/8/2021) (va) (Entered: 01/08/2021)
511 MOTION to Disqualify pursuant to Fed. R. Evid. 702. Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 01/11/2021)
512 MEMORANDUM OF LAW in Support re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702. . Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 01/11/2021)
513 DECLARATION of Jonathan Pines in Support re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E).(Sprayregen, Sharon) (Entered: 01/11/2021)
514 ***SELECTED PARTIES***DECLARATION of Jonathan Pines in Support re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702.. Document filed by The City of New York, Bronx Defenders, Brooklyn Defender Service, Dameon C., Center for Family Representation, Thierry E., Mikayla G., David Hansel, Ayanna J., Myls J., Lawyers for Children, Inc., Malik M., Tyrone M., Xavion M., Neighborhood Defender Service of Harlem, New York City Administration for Childrens Services, Nonparty agency, Sheila J. Poole, Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., State Of New York, Lucas T., Ximena T., Jose T.C., Valentina T.C., The Children's Law Center of New York, The Legal Aid Society, The New York State Office of Children and Family Services, Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit B)Motion or Order to File Under Seal: 477 .(Sprayregen, Sharon) (Entered: 01/11/2021)
515 MOTION to Amend/Correct 513 Declaration in Support of Motion, Amd. Ex. E Amd. Anastas Rept. (incl. CV). Document filed by The City of New York..(Sprayregen, Sharon) (Entered: 01/13/2021)
516 LETTER MOTION for Extension of Time addressed to Judge Kimba M. Wood from Julie A. North dated January 15, 2021. Document filed by

01/16/2021 01/16/2021 01/16/2021 01/19/2021 02/23/2021 02/23/2021
02/23/2021

Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 [Proposed] Third Amended Scheduling Order).(North, Julie) (Entered: 01/15/2021)
518 ORDER granting 516 Letter Motion for Extension of Time. Granted. Because Plaintiffs have demonstrated good cause for a limited extension of the deadline to oppose City Defendant's Daubert motion, the request is granted. In addition, Plaintiffs' request to file up to five additional pages in opposition to the Daubert motion is granted. SO ORDERED. (Signed by Judge Kimba M. Wood on 1/16/2021) (va) (Entered: 01/19/2021)
Set/Reset Deadlines: Deposition due by 2/8/2021. Responses due by 2/22/2021. Replies due by 3/1/2021. (va) (Entered: 01/19/2021)
519 THIRD AMENDED SCHEDULING ORDER: Deposition of Dr. Jeane W. Anastas due 2/8/2021. Plaintiffs file Opposition to Daubert Motion 2/22/2021. Defendants file Reply in Support of Daubert Motion 3/1/2021. Expert Deposition due by 3/1/2021. Replies due by 3/22/2021. SO ORDERED. (Signed by Judge Kimba M. Wood on 1/16/2021) (va) (Entered: 01/19/2021)
517 LETTER addressed to Judge Kimba M. Wood from Jonathan Pines dated January 19, 2021 re: Plaintiffs' request for expert discovery. Document filed by The City of New York..(Pines, Jonathan) (Entered: 01/19/2021)
520 MEMORANDUM OF LAW in Opposition re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702. . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Statement of Technical Failure).(North, Julie) (Entered: 02/23/2021)
521 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE DOCUMENT #523) - DECLARATION of Julie A. North in Opposition re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (Part I), # 7 Exhibit 6 (Part II), # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12).(North, Julie) Modified on 2/24/2021 (ldi). (Entered: 02/23/2021)
522 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MOTION to Amend/Correct 521 Declaration in

02/24/2021 02/24/2021
02/26/2021 02/26/2021
03/03/2021 03/12/2021

Opposition to Motion,, Including Exhibit 11. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) Modified on 2/24/2021 (ldi). (Entered: 02/23/2021)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Julie A North: Document No. 522 Exhibit is not filed via ECF. Exhibits are only added as attachments. (ldi) (Entered: 02/24/2021)
523 DECLARATION of Julie A. North in Opposition re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (Part I), # 7 Exhibit 6 (Part II), # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12).(North, Julie) (Entered: 02/24/2021)
524 LETTER MOTION for Extension of Time to File Response/Reply as to 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702., 520 Memorandum of Law in Opposition to Motion, 523 Declaration in Opposition to Motion,, addressed to Judge Kimba M. Wood from Jonathan Pines dated February 26, 2021. Document filed by The City of New York..(Pines, Jonathan) (Entered: 02/26/2021)
525 ORDER granting 524 Letter Motion for Extension of Time to File Response/Reply re 524 LETTER MOTION for Extension of Time to File Response/Reply as to 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702., 520 Memorandum of Law in Opposition to Motion, 523 Declaration in Opposition to Motion,, addres, 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702. GRANTING. SO ORDERED. Replies due by 3/3/2021. (Signed by Judge Kimba M. Wood on 2/26/2021) (va) (Entered: 02/26/2021)
526 REPLY MEMORANDUM OF LAW in Support re: 511 MOTION to Disqualify pursuant to Fed. R. Evid. 702. . Document filed by The City of New York..(Pines, Jonathan) (Entered: 03/03/2021)
527 LETTER MOTION for Conference (Pre-Motion Conference) addressed to Judge Kimba M. Wood from Audra J. Soloway dated March 12, 2020. Document filed by Bronx Defenders, Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem. (Attachments: # 1 Amicus Brief).(Soloway, Audra) (Entered: 03/12/2021)

03/12/2021 03/16/2021 03/21/2021
03/21/2021 03/22/2021

528 LETTER MOTION for Extension of Time to file Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion for Class Certification from March 22, 2021 to April 1, 2021 addressed to Judge Kimba M. Wood from Julie A. North dated March 12, 2021. Document filed by Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 03/12/2021)
529 LETTER MOTION for Extension of Time to file Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion for Class Certification from March 22, 2021 to April 1, 2021 and in RESPONSE to D.E. 527 addressed to Judge Kimba M. Wood from Julie A. North dated March 16, 2021. Document filed by Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 03/16/2021)
530 ORDER granting 527 Letter Motion for Conference addressed to Judge Kimba M. Wood from Audra J. Soloway dated March 12, 2021; 528 LETTER MOTION for Extension of Time to file Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion for Class Certification from March 22, 2021 to April 1, 2021 addressed to Judge Kimba M. Wood from Julie A. North dated March 12; 529 LETTER MOTION for Extension of Time to file Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion for Class Certification from March 22, 2021 to April 1, 2021 and in RESPONSE to D.E. 527 addressed to Judge Kimba M. Wood from Ju ; granting 528 Letter Motion for Extension of Time; granting 529 Letter Motion for Extension of Time. It is hereby ORDERED that: 1. The Parent Advocates' request is GRANTED. The Parent Advocates shall submit the proposed amicus curiae brief by March 22, 2021. 2. Plaintiffs' request to modify the briefing schedule is GRANTED. On or before April 1, 2021, Plaintiffs shall submit the Reply in Support of Plaintiffs' Renewed Motion for Class Certification. Because Plaintiffs may wish to respond to the Parent Advocates' amicus curiae brief, Plaintiffs may submit up to five additional pages. 3. On or before April 8, 2021, the City and State Defendants may each file a five-page surreply to Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion for Class Certification. 4. The Clerk of Court is respectfully directed to terminate the letter motions at ECF Nos. 527, 528, and 529. SO ORDERED. (Signed by Judge Kimba M. Wood on 3/21/2021) (va) (Entered: 03/22/2021)
Set/Reset Deadlines: Replies due by 4/1/2021. Surreplies due by 4/8/2021. (va) (Entered: 03/22/2021)
531 BRIEF re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). . Document filed by Bronx Defenders,

04/01/2021 04/01/2021 04/01/2021
04/02/2021

Brooklyn Defender Service, Center for Family Representation, Neighborhood Defender Service of Harlem..(Soloway, Audra) (Entered: 03/22/2021)
532 LETTER MOTION to Seal confidential information contained in Reply Ex. 9 addressed to Judge Kimba M. Wood from Julie A. North dated April 1, 2021. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 04/01/2021)
533 REPLY MEMORANDUM OF LAW in Support re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification"). . Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W...(North, Julie) (Entered: 04/01/2021)
534 DECLARATION of Julie A. North in Support re: 439 MOTION to Certify Class ("Notice of Renewed Motion for Class Certification")., 532 LETTER MOTION to Seal confidential information contained in Reply Ex. 9 addressed to Judge Kimba M. Wood from Julie A. North dated April 1, 2021.. Document filed by Dameon C., Thierry E., Mikayla G., Ayanna J., Myls J., Malik M., Tyrone M., Xavion M., Alexandria R., Ana-Maria R., Olivia R., Emmanuel S., Lucas T., Ximena T., Jose T.C., Valentina T.C., Matthew V., Brittney W., Elisa W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9 (Redacted), # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15).(North, Julie) (Entered: 04/02/2021)
535 ***SELECTED PARTIES***REDACTION Exhibit 9 - sealed version by Olivia R., Myls J., Dameon C., Alexandria R., Emmanuel S., Elisa W., Valentina T.C., Matthew V., Lucas T., Malik M., Mikayla G., Xavion M., Thierry E., Brittney W., Tyrone M., Ayanna J., Ximena T., Jose T.C., Ana-Maria R., Sheila J. Poole, The City of New YorkMotion or Order to File Under Seal: 532 .(North, Julie) (Entered: 04/02/2021)

PACER Login:

PACER Service Center Transaction Receipt
04/03/2021 02:22:18 CRClearinghouse Client Code: Harrington

Description: Docket Report

Billable Pages:

30

Search Criteria:
Cost:

1:15-cv-05273KMW-SLC
3.00