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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) 

:

:

- against - :

:

JOHN MATTINGLY, in his official capacity as Commissioner :

of the New York City Administration for Children’s Services, :

and JOHN JOHNSON, in his official : PLAINTIFF CHILDREN’S

capacity as Commissioner of the New York State : MEMORANDUM OF

Office of Children and Family Services, : LAW IN SUPPORT OF 

: THEIR MOTION

Defendants. : FOR LEAVE TO FILE

: SECOND AMENDED

: COMPLAINT 

:

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PRELIMINARY STATEMENT

 Plaintiffs A.C. and H.C. submit this memorandum of law in support of their motion for

permission to file a Second Amended Complaint. Plaintiffs satisfy the requirements for seeking

leave to file a Second Amended Complaint; accordingly, leave should be granted. 

BACKGROUND

This case concerns policies and procedures of the New York City Administration for

Children’s Services (ACS) with regard to the removal of children in the care of kinship foster

parents. The action was originally commenced by Norma Balbuena on her own behalf and on

behalf of A.C. and H.C. On consent of the parties, The Legal Aid Society was later substituted

as counsel for the minor children A.C. and H.C. Thereafter, on June 17, 2005, A.C. and H.C.,

Case 1:07-cv-03308-TPG Document 8 Filed 04/25/2007 Page 1 of 4
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by their next friend Barbara Weiner, filed an amended complaint (the “First Amended A.C.

Complaint”) on behalf of themselves and all similarly situated children against ACS and OCFS. 

For technical reasons, the First Amended Complaint was not deemed filed until June 20, 2005. 

Like the Balbuena complaint, the First Amended A.C. Complaint challenges the constitutionality of ACS’s so-called Independent Review Procedures. By the present motion, the

proposed class of children seeks to amend the First Amended A.C. complaint to correct the

following oversights: 

• The caption is changed to reflect that defendant Mattingly is the

Commissioner of the New York City Administration for Children’s

Services;

• In the first sentence of ¶2, the title of the agency is corrected to read “The

New York City Administration for Children’s Services (“ACS”)”; 

• ¶54 is changed to update the number of days the children have been

removed from their original placement with Ms. Balbuena from 167 to

194;

• The regulatory cites in ¶67 are corrected to read “ 18 N.Y.C.R.R. §§

443.5(b) and (c)”;

• Paragraph numbering and lettering beginning on page 19 is adjusted to

eliminate confusion; and

• The following language is added to newly renumbered ¶(3)(A) in the

Request for Relief on page 19, so that the paragraph now reads as follows

(new language underlined):

“(3) Issue preliminary and permanent injunctions against defendants

MATTINGLY and JOHNSON: 

(A) directing that class members who remain in foster care shall be

removed from their kinship foster home on an emergency basis only when there is

imminent risk to the child’s health or safety and with constitutionally adequate

notice at the time of the removal, and thereafter be provided with a

constitutionally adequate and meaningful opportunity to be heard on the removal

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on an expedited basis”.

 ARGUMENT

THE COURT SHOULD GRANT LEAVE FOR THE

PLAINTIFF FOSTER CHILDREN TO FILE A SECOND

AMENDED COMPLAINT.

After an initial amendment of a pleading as of right, a party may amend a pleading “only

by leave of court or by written consent of the adverse party.” Fed. R. Civ. P. 15(a). Leave “shall

be freely given when justice so requires.” Id. 

In determining whether to grant leave to amend, courts will consider whether there is “an

'apparent or declared reason--such as undue delay, bad faith or dilatory motive ..., repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by

virtue of the allowance of an amendment, [or] futility of amendment.’” Dluhos v. Floating and

Abandoned Vessel Known as "New York,” 162 F.3d 63, 69 (2d Cir.1998) (quoting Foman v.

Davis, 371 U.S. 178, 182 (1962)). None of those impermissible factors is present here.

The plaintiff foster children seek to amend the A.C. Complaint less than a month after it

was filed by the Legal Aid Society, less than four months since the commencement of the action

by prior counsel, and before either defendant has either Answered or moved to dismiss. 

Plaintiffs wish to amend the Complaint a second time to redress typographical errors and, in one

instance, to correct omissions from the request for relief which inadvertently confused the nature

of the relief sought and against whom it was specifically sought. See, Baum Decl. Dated July 13,

2005. Plaintiffs have plead legally cognizable claims (see, Ricciuti v. NYC Transit Authority,

941 F.2d 119 , 123 (2d Cir. 1991); Dougherty v. Town of North Hempstead Board of Zoning

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Appeals, 282 F.3d 83 (2d Cir. 2002) (reversing denial of leave to amend because plaintiff stated a

legally cognizable claim). Defendant Mattingly has consented in writing to the filing of a Second

Amended Complaint (see Exhibit B to the Baum Decl. Dated July 14, 2005). Plaintiff Norma

Balbuena’s consent is not required; nonetheless ------------ . Accordingly, there is no prejudice to

defendants, nor is there bad faith on the part of the plaintiffs, in seeking leave to file a Second

Amended Complaint. Leave should therefore be granted.

CONCLUSION

For all of the forgoing reasons, plaintiffs request that this Court grant plaintiffs’ motion

for leave to file a Second Amended Complaint. 

Dated: New York, New York

July 14, 2005

 Respectfully submitted,

 

THE LEGAL AID SOCIETY

STEVEN BANKS, Esq., Attorney-in-Chief

TAMARA STECKLER, Esq., Attorney-in-Charge, Juvenile

 Rights Division

NANCY ROSENBLOOM, Esq., (NR1275), Interim Director, 

 Special Litigation and Law Reform Unit

LOUIS SARTORI, Esq. (LSS0011), of Counsel

ADRIENE HOLDER, Esq., Attorney in Charge, Civil Division

SCOTT ROSENBERG, Esq., (SAR5579), Director of Litigation,

 Civil Division

JENNIFER BAUM, Esq. (JB4030), of Counsel

199 Water Street, 3d Floor

New York, New York 10038

212-577-3300

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