John Johnson’s term in office as Commissioner of the New York State office of Children and 1

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.

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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A. C., and H. C., by their Next Friend 

BARBARA WEINER, individually and on behalf of 

all others similarly situated,

Plaintiffs, 05 Civ. 2986 (TPG)

-againstJOHN MATTINGLY, in his official capacity as 

Commissioner of the New York City Administration STATE DEFENDANT’S

for Children’s Services, and JOHN JOHNSON, in his ANSWER TO

official capacity as Commissioner of the New York SECOND AMENDED

State Office of Children and Family Services, COMPLAINT

Defendants.

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Defendant JOHN JOHNSON, as Commissioner of the New York State Office of Children

and Family Services (“State defendant”), by his attorney, ANDREW M. CUOMO, Attorney 1

General of the State of New York, answers the “Second Amended Class Action Complaint”

(Docket #80) in the above-captioned action, dated July 14, 2005 (“Complaint”), as follows:

1. No response to paragraph 1 of the Complaint is necessary as it sets forth the

putative nature of this proceeding, but to the extent the paragraph alleges wrongdoing by State

defendant and a response is deemed required, State defendant denies the allegations made therein.

2. Denies the allegations made in paragraph 2 of the Complaint.

3. To the extent either paragraph alleges wrongdoing by State defendant and a

response is deemed required, State defendant denies the allegations made in paragraphs 3 and 4 of

the Complaint.

4. With respect to paragraphs 5 and 6 of the Complaint, denies knowledge or

information sufficient to form a belief as to the truth or accuracy of the allegations, except insofar

Case 1:07-cv-03308-TPG Document 25 Filed 04/25/2007 Page 1 of 5
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as the substance of those allegations may have been incorporated into Decision After Hearing

FH #4295304J (Docket #48).

5. Admits the allegation made in the first sentence of paragraph 7 of the Complaint,

denies the allegations made in the remainder of paragraph 7 concerning the duties and operation

of ACS, and respectfully refers the Court to applicable provisions of the New York City Charter

and Administrative Code, the New York Social Services Law and New York Family Court Act

for a complete statement of the ACS’s responsibilities.

6. Denies the allegation made in the first sentence of paragraph 8 of the Complaint,

denies the allegations made in the remainder of paragraph 8 concerning the duties and operation

of the OCFS, and respectfully refers the Court to applicable provisions of the New York Social

Services Law and New York Executive Law for a complete statement of the OCFS’s

responsibilities.

7. With respect to paragraphs 9 and 10 of the Complaint, no response is necessary as

they set forth plaintiffs’ jurisdiction allegations, but to the extent a response is deemed required,

State defendant asserts that this action is not authorized by 42 U.S.C. § 1983, and is further

limited by the Eleventh Amendment to the Constitution of the United States. 

8. With respect to paragraph 11 of the Complaint, no response is necessary as it sets

forth plaintiffs’ venue allegations, but to the extent a response is deemed required, State defendant

admits the allegations made therein.

9. With respect to paragraphs 12 through 20, inclusive, of the Complaint, no

response is necessary as they set forth plaintiffs’ definition of the class they purport to represent

and their legal arguments concerning the appropriateness of class certification, but to the extent a

response is deemed required, State defendant denies the allegations made therein.

10. With respect to paragraphs 21 through 26, inclusive, of the Complaint, which refer

to statutes, State defendant denies the allegations made therein and respectfully refers the Court

to the text of those statutes for their full content, meaning and effect. 

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11. Denies the unsupported allegation made in paragraph 27 of the Complaint.

12. Admits the allegations made in paragraphs 28, 29 and 30 of the Complaint, except

denies that the New York State Department of Social Services continues to exist, having been

renamed the Department of Family Assistance and divided into two separate offices, including the

Office For Children and Family Services, in 1997. See, L. 1997 C. 436 § 122.

13. Denies the allegation made in paragraph 31 of the Complaint and respectfully

refers the Court to the text of the cited regulation for its content, meaning and effect.

14. Denies the allegations made in paragraphs 32 through 45, inclusive, of the

Complaint and respectfully refers the Court to the text of the cited document for its content,

meaning and effect.

15. Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations made in paragraphs 46 through 52, inclusive, of the Complaint except

insofar as those allegations may have been incorporated into Decision After Hearing

FH #4295304J (Docket #48).

16. With respect to paragraph 53 of the Complaint, State defendant admits the

allegations made in the first two sentences thereof, denies the allegations made in the third

sentence thereof, and affirmatively asserts that Decision After Hearing FH #4295304J dated

August 9, 2005 (Docket #48), was rendered by State defendant’s designee.

17. Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations made in paragraph 54 of the Complaint.

18. Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations made in the first sentence of paragraph 55 of the Complaint and denies

the allegations made in the second sentence of paragraph 55 of the Complaint .

19. Denies the allegations made in paragraphs 56 and 57 of the Complaint.

20. Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations made in paragraphs 58, 59, 60 and 61 of the Complaint.

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21. Denies the allegations made in paragraphs 62, 63, 64, 65 and 66 of the Complaint

to the extent they claim wrongdoing by State defendant.

22. No response is required to paragraph 67 of the Complaint, as it specifically states

that it is directed solely at City defendant.

23. Denies the allegations made in paragraph 68 of the Complaint to the extent they

allege wrongdoing by State defendant.

24. Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations made in paragraph 69 of the Complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

25. This Court is barred by the Eleventh Amendment to the United States Constitution

from making a declaration regarding past conduct of State defendant, from rendering a judgment

against State defendant regarding enforcement of State law, and from rendering a judgment for

damages against State defendant.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

26. The Complaint fails to demonstrate that the procedures used at fair hearings

regarding the review of local agency determinations to remove foster children from the homes of

foster parents violate the Constitution of the United States.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

27. The Complaint fails to state a claim upon which relief may be granted against State

defendant.

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

28. The Complaint fails to state the elements upon which a class may be certified

pursuant to F. R. Civ. P. Rule 23.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

29. Plaintiffs do not have standing to bring the instant action.

WHEREFORE, State defendant respectfully requests that the Complaint be dismissed in

its entirety, and that the Court award State defendant such further relief as the Court deems just

and proper.

Dated: New York, New York

April 3, 2007

ANDREW M. CUOMO

Attorney General of the State of New York

Attorney for State Defendant

 /s 

BY: Robert L. Kraft (RK-5418)

Assistant Attorney General

120 Broadway, 24th Floor

New York, New York 10271

(212) 416-8632

TO: Carolyn A. Kubitschek, Esq. Theresa B. Moser, Esq.

LANSNER & KUBITSCHEK The Legal Aid Society

Attorney for Norma Balbuena Attorney for A.C. and H.C.

325 Broadway, Suite 201 199 Water Street, 3 Floor rd

New York, New York 10007 New York, New York 10038

Jesse I. Levine, Esq. Dirk C. Haarhoff, Esq.

Office of Corporation Counsel Lewis, Brisbois, Bisgaard & Smith, LLP

Attorney for City defendant Attorney for Episcopal defendants

100 Church Street, 2 Floor 199 Water Street, 25th Floor nd

New York, New York 10007 New York, New York 10038

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