UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------X

A.C. and H.C., by their next friend Barbara Weiner,

individually and on behalf of all others similarly situated,

Plaintiffs, 07 CV 3308 (TPG) (THK)

-againstJOHN MATTINGLY, in his official capacity as Commissioner of the New York City Administration for Children’s

Services; and JOHN JOHNSON, in his official capacity as

Commissioner of the New York State Office of Children 

and Family Services;

Defendants.

-----------------------------------------------------------------------X

STATE DEFENDANT’S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION

ANDREW M. CUOMO

Attorney General of the State of New York

Attorney for State defendant

120 Broadway, 24th Floor

New York, New York 10271

(212) 416-8632

ROBERT L. KRAFT

Assistant Attorney General

of Counsel

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 1 of 22
Table of Contents

PAGE

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

STATEMENT OF THE CASE ................................................... 2

STATUTORY AND REGULATORY FRAMEWORK ................................ 4

A. NEW YORK LAW PROTECTS THE RIGHT OF CHILDREN TO LIVE WITH

THEIR PARENTS AND THE RIGHT OF CHILDREN TO BE PROTECTED

FROM HARM BY THEIR PARENTS ................................ 34

B. FOSTER CARE IS A CONTRACTUAL RELATIONSHIP . . . . . . . . . . . . . . . . . 5

C. STATE LAW, REGULATIONS AND POLICY REGARDING THE 

REMOVAL OF FOSTER CHILDREN FROM THE CARE OF FOSTER

PARENTS ....................................................... 7

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

POINT I THE PROPOSED CLASS IS OVERBROAD AND DOES NOT LIMIT 

CLASS MEMBERSHIP TO THE ACTUAL INJURY SOUGHT TO BE

REMEDIED BY CLASSWIDE RELIEF ............................... 8

POINT II PLAINTIFFS DO NOT SATISFY THE PREREQUISITES TO A CLASS

ACTION........................................................ 10

(1) PLAINTIFFS HAVE NOT SHOWN THAT THE CLASS IS SO NUMEROUS THAT JOINDER OF ALL MEMBERS IS IMPRACTICABLE . . . 11

(2) PLAINTIFFS HAVE NOT SHOWN THERE ARE QUESTIONS OF LAW 

OR FACT COMMON TO THE CLASS ............................... 12

(3) PLAINTIFFS HAVE NOT SHOWN THAT THE CLAIMS OR DEFENSES 

OF THE REPRESENTATIVE PARTIES ARE TYPICAL OF THE CLAIMS 

OR DEFENSES OF THE CLASS .................................... 14

(4) THE REPRESENTATIVE PARTIES HAVE NOT DEMONSTRATED HOW

THEY WILL FAIRLY AND ADEQUATELY PROTECT THE INTERESTS 

OF THE ENTIRE CLASS .......................................... 16

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 2 of 22
Page

 POINT III PLAINTIFFS’ REQUEST FOR CERTIFICATION OF A Rule 23(b)(1)(A)

CLASS SHOULD BE DENIED ..................................... 17

POINT IV PLAINTIFFS’ REQUEST FOR CERTIFICATION OF A Rule 23(b)(2) 

CLASS SHOULD BE DENIED ..................................... 18

CONCLUSION .............................................................. 19

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 3 of 22
 John Johnson’s term in office as Commissioner of the new York State office of Children 1

and Family Services ended on December 31, 2006. Gladys Carri`n, Esq., is now Commissioner of

the New York State Office of Children and Family Services.

 By Order dated April 25, 2007 (Docket #1), this Court severed plaintiffs’ claims from those 2

raised in Balbuena v. Mattingly, 05 CV. 2986 (“Balbuena”), directed transfer of some pleadings and

documents from Balbuena to the instant action, and directed that the Court’s Orders and Opinions

made in Balbuena also be made part of the record of the instant action. References to docket

(continued...)

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------X

A.C. and H.C., by their next friend Barbara Weiner,

individually and on behalf of all others similarly situated,

Plaintiffs, 07 CV 3308 (TPG) (THK)

-againstJOHN MATTINGLY, in his official capacity as Commissioner of the New York City Administration for Children’s

Services; and JOHN JOHNSON, in his official capacity as

Commissioner of the New York State Office of Children 

and Family Services;

Defendants.

-----------------------------------------------------------------------X

STATE DEFENDANT’S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION

PRELIMINARY STATEMENT

This memorandum of law is respectfully submitted on behalf of defendant JOHN

JOHNSON (“State defendant”), as former Commissioner of the New York State Office of 1

Children and Family Services (“OCFS”), in opposition to plaintiffs’ motion for certification of a

class. As discussed further below, the Court should deny the motion for class certification 2

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 4 of 22
(...continued) 2

numbers are to those of the instant action unless otherwise indicated.

 Initials are used to ensure the anonymity of the infant plaintiffs. Docket #27.

2

because: (1) the proposed class improperly includes foster children with kinship foster parents

where no protected liberty interest between the foster parent and child exists under the balancing

test of Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982); (2) the potential class members cannot be

identified, as the Rivera v. Marcus balancing test for determining whether a protected liberty

interest exists applies on a case-by case basis at the time of removal; and (3) plaintiffs, as infants

who are incapable of comprehending and speaking about their removal, have not demonstrated

that they are typical of and can represent in the same manner other children in the proposed class,

including older foster children and teenagers.

STATEMENT OF THE CASE

Plaintiffs A.C. and H.C. filed a motion for class certification (Docket #2) along with 3

their complaint on or about June 17, 2005. The motion was held in abeyance (Docket #13)

pending resolution of State defendant’s motion to dismiss. By Order dated March 17, 2006

(Docket #28), this Court granted plaintiffs’ motion to interpose an Amended Complaint (Docket

#21) and By Opinion dated March 20, 2007 (Docket #24) (“Opinion”), this Court granted in part

and denied in part State defendant’s motion to dismiss the amended complaint. The Court

dismissed plaintiffs’ Fourth Amendment claim and plaintiffs’ claim for damages and denied

State defendant’s motion to dismiss plaintiffs’ due process claim. Id. at 13-14. The Opinion

describes the remaining claims as follows:

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 5 of 22
3

The second claim for relief alleges that State Defendant condones, acquiesces in,

permits and approves the City's failure to promulgate substantive standards governing

removals of children from kinship foster parents on a non-emergency basis. Infant

plaintiffs claim that this violates their substantive and procedural due process rights

under the Fourteenth Amendment.

The third claim for relief alleges that State Defendant condones, acquiesces in,

permits and approves the City's issuance of an Independent Review Protocol, and that

the Protocol violates infant plaintiffs' procedural due process rights under the

Fourteenth Amendment. Infant plaintiffs allege that the Protocol violates their

procedural due process rights under the Fourteenth Amendment in that it: (a)fails to

ensure that a timely pre-removal hearing is held in all non-emergency cases; (b)fails

to ensure that a prompt post-removal hearing is held when an emergency would make

a pre-removal hearing impracticable; (c) fails to ensure that a child or his or her

law guardian receives timely or adequate notice of the proposed or actual removal of

the child from a kinship foster parent, or of an Independent Review requested by a

kinship foster parent; (d) fails to ensure that Independent Reviews comport with

the basic elements of procedural due process, including the right to offer and

challenge evidence, to compel the production of documents and testimony, and to

confront adverse witnesses; and (e) excludes the child from the Independent

Review process except at the discretion of the Review Officer.

The fourth claim for relief alleges that 18 N.Y.C.R.R. § 443.5 violates the due

process clause of the Fourteenth Amendment.

The fifth claim for relief alleges that State Defendant condones, acquiesces in,

permits and approves the City's policy, pattern and practice of failing to schedule

timely Independent Review hearings and failing to issue timely Independent Review

decisions. Infant plaintiffs claim that this policy, pattern and practice violates their

procedural due process rights under the Fourteenth Amendment. 

Opinion at 4-5.

Plaintiffs’ motion requests that they be named class representatives of a class consisting

of “all children in New York City who are now, were on or after July 1, 2004, or will in the

future be, residing in foster care with relatives who are within the second or third degree of

consanguinity of their parents or stepparents.” Docket #2 at 1. This Court has heard four related

cases: Haynes v. Mattingly, 06 Cv. 1383 (TPG) (THK) involving foster child Ameena B.; 

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 6 of 22
 “When considering a motion for class certification, courts should consider the allegations 4

in the complaint as true. A court may not examine the merits of the case in a motion for class

certification. However, a court may consider material outside the pleadings in determining the

appropriateness of class certification.” Reynolds v. Giuliani, 118 F.Supp.2d 352, 387-88 (S.D.N.Y.

2000) (citations omitted).

4

Rivera v. Mattingly, 06 Cv. 7077 (TPG) (THK) involving foster children J.C., E.S. and B.C.;

Graham v. Mattingly, 05 Cv. 7413 (TPG) involving foster children Tyquill J., Taquan J. and

Tymeek j.; and Jones v. Mattingly, 04 Cv. 8331 (TPG) involving foster children Shamira S. and

Kasieam S. All of these foster children will be class members if the instant motion for class

certification is granted, and this Court may take judicial notice of facts in evidence before it

concerning these additional children when determining the suitability of class certification. The 4

facts of the putative class members pertinent to their inclusion in the above-defined class are set

out in the accompanying Declaration of Robert L. Kraft, with supporting exhibits, for

consideration of the appropriateness of class certification.

STATUTORY AND REGULATORY FRAMEWORK

A. NEW YORK LAW PROTECTS THE RIGHT OF CHILDREN TO LIVE WITH

THEIR PARENTS AND THE RIGHT OF CHILDREN TO BE PROTECTED

FROM HARM BY THEIR PARENTS

New York law protects the fundamental right of birth parents to have custody of and raise

their children with minimal interference from the State. See New York Social Services Law

(“NY SSL”) § 384 and New York Domestic Relations Law § 111, which provide procedures,

including notice, that must occur before a birth parent may give up custody of a child. The one

major exception to this principle is the State’s concomitant obligation to protect children from

abuse or maltreatment codified in NY SSL § 411 et seq.

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 7 of 22
5

To implement New York State’s obligation to protect children, local social services

districts are required to establish child protective services to investigate allegations of child abuse

and maltreatment. NY SSL §§ 411, 423. In the City of New York, the Administration for

Children’s Services (“ACS”) is the child protective services agency. Charter of the City of New

York § 617.

If a child protective service determines that a child must be removed from his or her birth

parent(s), the child protective service must follow procedures set out in New York Family Court

Act (“NY FCA”) article 10.

Law guardians are appointed to represent children in proceedings brought pursuant to

article 10 of the Family Court Act. NY FCA § 1016. The law guardian is appointed as soon as

the Family Court learns that a child has been removed from the custody of birth parents or that a

petition for removal is pending, and the appointment continues so long as the Family Court has

jurisdiction over the child. Id. The law guardian may commence a proceeding to review the

placement of a child. NY FCA § 1055(b)(ii). The law guardian may also participate in a number

of different Family Court proceedings where the foster care status of the child is reviewed. See,

NY SSL §§ 358-a; 383-c; 392(4)(g)).

B. THE FOSTER CARE RELATIONSHIP IS A CONTRACTUAL RELATIONSHIP

New York law provides that when a child is removed by a government actor from his or

her birth parents, custody is placed in an authorized agency, which term includes Commissioners

of local Departments of Social Services and other agencies approved by the OCFS to take

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 8 of 22
6

custody of children. NY SSL § 371(10). Authorized agencies board out children to be cared for

in individual homes by foster parents. NY SSL §§ 374(1), 371(19). 

Authorized agencies, in accordance with State regulations, accept applications from

individuals who would like to serve as foster parents, conduct investigations of the backgrounds

of such persons, determine which applicants are qualified to be foster parents, inspect potential

foster homes to determine whether they comply with regulatory requirements designed to provide

a safe residence for the foster child, and supervise the conduct of foster parents who have

received a child from the authorized agency. 18 N.Y.C.R.R. Part 443.

In 1989, without making other changes regarding the rights and responsibilities of foster

parents, the Legislature explicitly recognized the possibility that family members could be foster

parents to a removed child. See L. 1989, C. 744 § 1, adding NY FCA § 1017(a) to NY FCA

Article 10. See also, 18 N.Y.C.R.R. Part 443.7, OCFS regulations that provide an expedited

process for approval of relative foster parents (who will not have applied to be foster parents and

been investigated before commencement of the article 10 proceeding concerning their relative

child).

New York law does not provide that a removed child has the right to select his or her

foster parent. Instead, if a relative of a removed child is willing to be the foster parent of a

removed child, the Family Court determines what is in the best interest of the removed child.

If a relative becomes a foster parent, the Court grants custody of the child to an

authorized agency, not to the relative. NY SSL § 383(2). The foster parent is paid a stipend to

provide services to the related child. 18 N.Y.C.R.R. § 427.6. The custody of the removed

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 9 of 22
 The reference in NY SSL § 400 to “family home” was there long before biological relatives 5

were permitted to be foster parents. The phrase“family home” refers to a home with a family instead

of in a more institutional setting, and not to a home with the removed child’s biological family.

7

child remains with the authorized agency and any such authorized agency may in its discretion

remove such child from the home where placed or boarded. NY SSL § 383(2).

C. STATE LAW, REGULATIONS AND POLICY REGARDING THE REMOVAL

OF FOSTER CHILDREN FROM THE CARE OF FOSTER PARENTS

New York law provides that “[w]hen any child shall have been placed ... in a family

5

home by a social services official, the social services official may remove such child from such

... family home and make such disposition of such child as is provided by law.” NY SSL

§ 400(1). Regulations of the OCFS provide that, when an authorized agency removes a child

from a foster home, it must give the foster parent ten days notice except in emergency situations,

and the notice must inform the foster parent of her right to a conference before the local agency,

and an administrative hearing before the OCFS to challenge the decision to remove the child

from foster care. 18 N.Y.C.R.R. § 443.5. If the Decision After Hearing is adverse to the foster

parent, the foster parent may seek judicial review in New York Supreme Court pursuant to article

78 of New York Civil Practice Law and Rules. NY SSL § 22(9)(a).

New York law does not provide that a removed child who has been placed in foster care

by the Family Court has a right to stay with a particular foster parent. To the extent the law

guardian may express the child’s interests in Family Court proceedings, those interests may be

taken into account by the Court or the authorized agency in making foster home decisions.

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 10 of 22
8

ARGUMENT

POINT I

THE PROPOSED CLASS IS OVERBROAD AND DOES NOT LIMIT CLASS

MEMBERSHIP TO THE ACTUAL INJURY SOUGHT TO BE REMEDIED

BY CLASSWIDE RELIEF

Article III of the United States Constitution limits the jurisdiction of the federal courts to

actual cases and controversies. O’Shea v. Littlejohn, 414 U.S. 488, 493 (1974). As the Supreme

Court has stated:

[t]he actual-injury requirement [of Article III] would hardly serve the purpose ... of

preventing courts from undertaking tasks assigned to the political branches ... if once

a plaintiff demonstrated harm from one particular inadequacy in government

administration, the court were authorized to remedy all inadequacies in that

administration. The remedy must of course be limited to the inadequacy that

produced the injury in fact that the plaintiff has established.

Lewis v. Casey, 518 U.S. 343, 357 (1996)(emphasis in original).

The claims of A.C. and H.C., for which plaintiffs seek classwide relief, focus on the

City's failure to promulgate substantive standards governing removals of children from kinship

foster parents on a non-emergency basis, the City's issuance of an Independent Review Protocol

that allegedly violates plaintiffs' procedural due process rights and the City's alleged policy,

pattern and practice of failing to schedule timely Independent Review hearings and failing to

issue timely Independent Review decisions. A separate claim for relief alleges that State

defendant’s regulation codified at 18 N.Y.C.R.R. § 443.5 violates the due process clause of the

Fourteenth Amendment.

Plaintiffs’ motion requests that they be named class representatives of a class consisting

of “all children in New York City who are now, were on or after July 1, 2004, or will in the

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 11 of 22
9

future be, residing in foster care with relatives who are within the second or third degree of

consanguinity of their parents or stepparents.” Docket #2 at 1. In effect, plaintiffs’ proposed

class consists of all New York City children in kinship foster care from July, 2004, forward.

However, the Court may not certify a class with this overbroad definition because many

persons who are defined class members will not have the protected liberty interest which is

sought to be protected by the proposed class. The proposed class is overbroad in improperly

including kinship foster care arrangements that have no protected liberty interest under the

balancing test of Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982). In addition, there is no

purpose in extending the proposed class back to July 1, 2004 against the State defendant, since

declarations regarding past conduct of State defendant (i.e., going back to July 1, 2004) are

barred by the Eleventh Amendment. Puerto Rico Aqueduct and Sewer Authority v. Metcalf &

Eddy, Inc., 506 U.S. 139 (1993). As for any prospective relief, the sought-after relief against the

State defendant, e.g., modifications in hearing procedures for class members, cannot be applied

on a classwide bases as the class members would have to be identified on a case-by case basis

under the Rivera v. Marcus balancing test for determining whether a protected liberty interest

exists, before the proper hearing procedures for that liberty interest could be determined. 

The definition of a class must comport with the demonstrable claims of named

plaintiffs. This ensures that Rule 23 is employed only where it will result in the presentation of a

focused case, and also ensures that the rights of the class members are adequately protected since

they will be bound by a judgment against the plaintiffs in the case. See General Tel. Co. of the

Southwest v. Falcon (“Falcon”), 457 U.S. 147, at 161 (1982) (cautioning against “unfairness to

class members bound by the judgment if the framing of the class is overbroad”).

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 12 of 22
10

POINT II

PLAINTIFFS DO NOT SATISFY THE PREREQUISITES TO A CLASS

ACTION

Plaintiffs seek an order “certifying that [this] action shall be maintained as a class action

under Rules 23(b)(1)(A) and 23(b)(2) of the Federal Rules of Civil Procedure.” Docket #2. This

prayer for relief overlooks the need to satisfy the prerequisites to a class action found in Rule

23(a) before deciding whether certification pursuant to either Rule 23(b)(1)(A) or Rule 23(b)(2)

is appropriate. Rule 23(a) provides that “[o]ne or more members of a class may sue or be

sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of

all members is impracticable, (2) there are questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typical of the claims or defenses of the class,

and (4) the representative parties will fairly and adequately protect the interests of the class” 

(emphasis added).

It is the responsibility of a district court, faced with a motion for class certification, to

conduct “a rigorous inquiry” and to “evaluate carefully the legitimacy of the named plaintiff’s

plea that he is a proper class representative under Rule 23(a).” Falcon, 457 U.S. at 160-61. 

“[T]he district judge must receive enough evidence, by affidavits, documents, or testimony, to be

satisfied that each Rule 23 requirement has been met.” In re Initial Public Offering Securities

Litigation, 471 F.3d 24, 41 (2d Cir. 2006), Reh. Den., 483 F.3d 70 (2d Cir. 2007).

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 13 of 22
11

(1) PLAINTIFFS HAVE NOT SHOWN THAT THE CLASS IS SO NUMEROUS

THAT JOINDER OF ALL MEMBERS IS IMPRACTICABLE

[I]n considering whether the numerosity requirement is met, a judge might need to

resolve a factual dispute as to how many members are in a proposed class. Any

dispute about the size of the proposed class must be resolved, and a finding of the

size of the class, e.g., 50, 100, or more than 200, must be made. At that point, the

judge would apply the legal standard governing numerosity and make a ruling as to

whether that standard, applied to the facts as found, establishes numerosity.

Id. at 40. District courts must make factual findings as to the approximate size of the class based

on the parties' evidentiary proffers. Vengurlekar v. HSBC Bank, 03 Civ. 0243(LTS)(DFE), 2007

WL 1498326, at *4. 

While it is often assumed in proposed class actions against governmental agencies that

the Rule 23(a) numerosity prerequisite is met as a matter of course, recent case law has reaffirmed the requirement that a Rule 23 movant must make a factual showing of numerosity. 

Plaintiffs submit counsel’s declaration attaching Mayor’s Management Reports that describe

numbers of kinship foster children . However, these numbers cannot represent the size of an

appropriate class as they include kinship foster children who either: (1) are never removed from

kinship foster parents, (2) have no protected Rivera v. Marcus liberty interest; or (3) who

participate in challenged state administrative proceedings or Family Court proceedings or Federal

Court actions to address any concerns they may have about their removals from kinship foster

parents.

For the foregoing reasons, this Court should determine that plaintiffs have not satisfied

the Rule 23(a) numerosity prerequisite to certification of this action as a class action.

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 14 of 22
12

(2) PLAINTIFFS HAVE NOT SHOWN THERE ARE QUESTIONS OF LAW OR

FACT COMMON TO THE CLASS

Named plaintiffs A.C. and H.C. and other foster children known to the Court through

related cases do not present questions of law or fact common to the class. On the contrary, the

nature of the liberty interest of each foster child, and the relief he or she might be entitled to,

must be defined individually. In determining that A.C. and H.C. have a constitutionallyprotected liberty interest, this Court applied the three factors set forth in Rivera v. Marcus, 696

F.2d 1016 (2d Cir. 1982). Opinion at 9-10. While these factors may be applied to the

relationship between any individual foster child and kinship foster parent, they require individual

analysis that makes this case unsuitable to be a class action. It would not be appropriate to select

a foster child with a demonstrably strong Rivera v. Marcus liberty interest to a kinship foster

parent and tailor classwide relief toward that interest when other members of the class will have

more limited liberty interests and be entitled to narrower relief.

It might be argued that the remaining claims of A.C. and H.C., as described by the Court

in the Opinion and set out at page 3 above, would seem to satisfy the requirement of common

issues of law and fact to be addressed by the proposed class action. However, the facts about the

named plaintiffs and foster children known to the Court from related cases, described in the Kraft

Declaration and supporting exhibits, demonstrate that the children were affected differently by

the system of law that exists, resulting in different factual scenarios. The allegation that

government conduct violates the Constitution in and of itself does not constitute a question of

law or fact common to the class where the evidence demonstrates that the putative class members

received some process based on the circumstances. Kraft Decl. and Exhibits.

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 15 of 22
13

Regarding the City's alleged failure to promulgate substantive standards governing

removals of children from kinship foster parents on a non-emergency basis, only Ameena B. was

removed on a non-emergency bases, and that removal was hastened because Haynes was not

willing to live with the foster child pending the independent review that she would have been

offered had she accepted the ten day notice. All of the other foster children, except possibly

Shamira S. and Kasieam S. where the reasons for the removal are sealed, were removed on an

emergency basis. A.C. and H.C. were removed because investigators observed lit candles in the

house, no food, a lack of space for A.C.’s therapy and uncleared adults in the home. J.C., E.S.

and B.C. were removed because of an allegation of sexual conduct with one of the older sisters of

E.S. and B.C. Tyquill J., Taquan J. and Tymeek j. were removed from the Graham foster home,

along with Graham’s own children, after one of the other children living in that home was

observed with shoe prints on her face and alleged that they were inflicted by an adult in the

Graham foster home. Even if there is disagreement about whether all of these reasons constitute

grounds for emergency removal, New York law obligates foster care agencies to protect the

foster children in their custody and gives them discretion to remove foster children when they

deem it appropriate. the number and variety of reasons preclude classwide relief and all class

members will not have an actual injury to complain of.

Regarding the City's alleged issuance of an Independent Review Protocol that violates

plaintiffs' procedural due process rights, Shamira S. And Kasieam S. Are class members since

they were foster children after July 1, 2004, yet there cases were never reviewed by either the

City or the State defendants pursuant to the State administrative procedures being challenged. 

Kraft Decl. ¶ 45. Tyquill J., Taquan J. and Tymeek j. were returned to their kinship foster parent

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 16 of 22
14

after an independent review. Kraft Decl. ¶ 32. Their law guardian submitted a written statement

at the independent review. Kraft Decl. ¶ 33. They are not similarly situated to other foster

children who claim that their absence from the independent review without notice to the law

guardian and separate representation violated their rights.

Regarding the administrative hearing component of the current state administrative

procedure specified in challenged 18 N.Y.C.R.R. § 443.5, the decisions after hearing regarding

Ameena B. and J.C., E.S. and B.C. required the City to determine the proper placement of each

foster child using the best interest of the child standard applicable in Family Court proceedings

and that this Court made applicable in the proceeding before Magistrate Judge Katz regarding

Ameena B. The cases of foster children Tyquill J., Taquan J., Tymeek j., Shamira S. and

Kasieam S. did not get to an administrative hearing, so these children do not have standing to

challenge the constitutionality of hearing procedures. Yet, they are all within the proposed class

definition.

For the foregoing reasons, this Court should determine that plaintiffs have not satisfied

the Rule 23(a)(2) common question of law or fact prerequisite to certification of this action as a

class action.

(3) PLAINTIFFS HAVE NOT SHOWN THAT THE CLAIMS OR DEFENSES OF

THE REPRESENTATIVE PARTIES ARE TYPICAL OF THE CLAIMS OR

DEFENSES OF THE CLASS

The rationale for employing Rule 23 involves a threshold determination by the trial court

that the individual plaintiff or plaintiffs before the court possesses claims which are

representative of the proposed class. In Falcon, the Supreme Court held that it was error to allow

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 17 of 22
15

an employee, with only a claim of wrongful denial of a promotion by his employer, to represent a

class of individuals of the same nationality who claimed discrimination in hiring. The Court

reasoned that:

We have repeatedly held that “a class representative must be part of the class and

‘possess the same interest and suffer the same injury’ as the class members.” East

Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (quoting

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216). In East

Texas Motor Freight .... [w]e held that the Court of Appeals had “plainly erred in

declaring a class action.” 431 U.S., at 403.... Because at the time the class was

certified it was clear that the named plaintiffs were not qualified for line-driver

positions, “they could have suffered no injury as a result of the allegedly

discriminatory practices, and they were, therefore, simply not eligible to represent

a class of persons who did allegedly suffer injury.” Id., at 403-404.

Falcon, 457 U.S. at 156. The typicality requirement of Rule 23 must focus on the individual

plaintiffs. The class definition cannot include claims not typical of those of the individual

plaintiffs. In the instant case, the named plaintiffs, A.C. and H.C., are not typical class

representatives since they were not harmed by lack of access to the independent review and

administrative hearing sought and had by Balbuena. When their removal was brought to his

attention in the normal course of his duty as law guardian, the law guardian supported the

removal of A.C. and H.C. from Balbuena’s foster care, and acted in conformance with that view

in the appropriate forum, new York Family Court. Kraft Decl. ¶ 8-9. Tyquill J., Taquan J., and

Tymeek J. are not typical class representatives since, after their removal by child protective

workers, not foster care agency workers, their law guardian participated in the independent

review sought and had by Graham. Kraft Decl. ¶ 33. Ameena B. is not a typical class

representative since her removal from Haynes’s foster home was a non-emergency removal that

would have been made after notice and independent review except that Haynes could not bear to

Case 1:07-cv-03308-TPG Document 30 Filed 06/29/2007 Page 18 of 22
16

have the child with her pending the independent review. Kraft Decl. ¶ 16. Shamira S. and

Kasieam S. are not typical class members since they settled their case for damages without

making a claim that the State administrative remedies are inadequate. Kraft Decl. Exhibit 14. 

J.C., E.S. and B.C. are not typical class members since the relief they received after an

administrative hearing, an order directing the City to place them in a foster home based on a

determination of their best interest, is the same relief available in Family Court.

For the foregoing reasons, this Court should determine that plaintiffs have not satisfied

the Rule 23(a)(3) typicality prerequisite to certification of this action as a class action.

(4) THE REPRESENTATIVE PARTIES HAVE NOT DEMONSTRATED HOW

THEY WILL FAIRLY AND ADEQUATELY PROTECT THE INTERESTS OF

THE ENTIRE CLASS

It is not at all clear that the named plaintiffs can serve as adequate class representatives. 

The law guardian who represented them in New York Family Court supported their removal

from the Balbuena foster home. Kraft Decl. ¶ 8-9 and Exhibit 2. To this extent, A.C. and H.C.

are deprived of standing since they raise no Article III controversy; they would not have opposed

removal had they attended Balbuena’s administrative hearing so they were not harmed by their

absence therefrom. Yet in their Complaint, written by other lawyers within the law guardian’s

organization, A.C. and H.C. say that, on information and belief, there was no emergency

requiring their removal from the Balbuena foster home. The Complaint alleges that they should

have been at Balbuena’s administrative hearing. 

It is also noteworthy that neither the named plaintiffs nor the foster children in the

aforementioned related cases before this Court brought their own action through their law

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guardians. Instead, the law guardian was brought into existing actions commenced by the

kinship foster parents to prevent conflicts of interest. Such conflicts of interest do not exist at

administrative hearings because the foster parents and/or their counsel represent the foster

parents’ interest and the agency that did the removal represents the interests of the foster children

who are in its custody. In the two years since submission of the A.C. and H.C. instant motion,

the law guardians, who would act as class counsel, have not brought any other children to the

attention of defendants complaining about the state administrative procedures being challenged

in the instant class action complaint. Presumably this is because, if the law guardian becomes

aware of an improper foster care placement, he or she moves for redress in the proper forum, the

new York Family Court.

For the foregoing reasons, this Court should determine that plaintiffs have not satisfied

the Rule 23(a)(4) adequate representative prerequisite to certification of this action as a class

action.

POINT III

PLAINTIFFS’ REQUEST FOR CERTIFICATION OF A Rule 23(b)(1)(A)

CLASS SHOULD BE DENIED

Rule 23(b)(1)(A) provides that “[a]n action may be maintained as a class action if the

prerequisites of subdivision (a) are satisfied, and in addition the prosecution of separate actions

by or against individual members of the class would create a risk of inconsistent or varying

adjudications with respect to individual members of the class which would establish

incompatible standards of conduct for the party opposing the class” (emphasis added).

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As noted above, this Court determined that A.C. and H.C. have a liberty interest based on

the Court’s analysis of three factors set out in Rivera v. Marcus. These factors have to do with

the nature of the relationship between the foster children and the kinship foster parent, and

whether a biological parent has any conflicting interests. This is the sort of analysis that would

lead to inconsistent results based on the different case circumstances proffered in each kinship

foster care relationship.

For the foregoing reasons, plaintiffs’ request for certification of a Rule 23(b)(1)(A) class

should be denied

POINT IV

PLAINTIFFS’ REQUEST FOR CERTIFICATION OF A Rule 23(b)(2) CLASS

SHOULD BE DENIED

Rule 23(b)(2) provides that “[a]n action may be maintained as a class action if the

prerequisites of subdivision (a) are satisfied, and in addition the party opposing the class has

acted or refused to act on grounds generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief with respect to the class as a whole”

(emphasis added).

Under New York law and implementing regulations, no foster child has the right to

request either an independent review or an administrative hearing to challenge his or her removal

from the home of a foster parent. If this state of affairs is considered an act or refusal to act on

grounds generally applicable to the class, such a finding is insufficient for certification of a Rule

23(b)(2) class since it is not appropriate to grant final injunctive relief or corresponding

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declaratory relief with respect to the class as a whole. Under this Court’s prior analysis, whether

foster children have the right to request either an independent review or an administrative hearing

is based on their liberty interest, which, in turn, is individualized in nature. Classwide injunctive

relief under these circumstances is not appropriate.

For the foregoing reasons, plaintiffs’ request for certification of a Rule 23(b)(2) class

should be denied

CONCLUSION

For the foregoing reasons, since plaintiffs have not met the prerequisites of Rule 23, State

defendant respectfully requests the Court to deny plaintiffs’ motion to certify a class.

Dated: New York, New York

June 29, 2007

Respectfully submitted,

ANDREW M. CUOMO

Attorney General of the State of New York

Attorney for State defendant

By: S/ 

ROBERT L. KRAFT (RK5418)

Assistant Attorney General

120 Broadway, 24th Floor

New York, New York 10271

(212) 416-8632

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