Case: Elisa W. v. City of New York

1:15-cv-05273 | U.S. District Court for the Southern District of New York

Filed Date: July 8, 2015

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Case Summary

On July 8, 2015, a group of ten children in the foster care system and the Public Advocate of New York filed this class-action lawsuit in the U.S. District Court for the Southern District of New York. Represented by private counsel, nonprofit advocacy organization A Better Childhood, and the office of the New York Public Advocate, the plaintiffs brought this action against New York City, the New York City Administration for Children Services (ACS), New York State, and the New York State Office …

The plaintiffs alleged violations of the First, Ninth and Fourteenth Amendments to the U.S. Constitution, the Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. § 670 et seq., common law contractual claims, and state social services laws on timely and adequate provision of adoption and foster case management services. Specifically, the complaint alleged that the defendants caused irreparable harm to the plaintiffs by their failure to protect the children in ACS custody from maltreatment, to provide the children with permanent homes and families within a reasonable time, and to provide foster placements and services that ensure the well-being of the children. The complaint also alleged that the defendants failed to remedy the systemic deficiencies plaguing NYC’s child welfare system by the city defendants’ failure to exercise adequate and meaningful oversight over contract agencies; the defendants’ failure to ensure an adequately staffed and appropriately trained child welfare workforce, to address deficiency in the processes to make improvements foster placements in NYC, to ensure meaningful case plans and service plans for foster children are developed and implemented, and to ensure timely adjudication of family court proceedings.

The plaintiffs also moved for class certification along with the complaint. The case proceeded with discovery under U.S. Magistrate Judge Henry B. Pitman.

On October 20, 2015, the state defendants filed a proposed settlement agreement with the court, requiring a more rigorous monitoring of the city foster care system. The proposed settlement required OFCS to hire a monitor and a research expert to review and assess the operations of NYC Foster Care system including the placement process, the cause of maltreatment of children, the availability and appropriateness of services, and the recruitment of an appropriate and sufficient array of placements for children in the foster care system.

The monitor would submit quarterly reports to the OCFS who, with ACS, would determine actions necessary to address any findings. The research expert would conduct annual reviews of case record samples of children in the custody of ACS to determine compliance with state and federal laws. If the expert found substantial non-compliance, the expert would write a written individual case report which will be shared with ACS and OCFS who would then be required to work with the voluntary agency in breach of the law to conduct a corrective action. For any corrective action plans, ACS would report to OCFS on a quarterly basis on the status and follow-up measures.

The settlement was not approved for several months due to procedural complications, including the required fairness hearing. Both the city defendants and various organizations that represent foster children in the family court objected to the settlement, although neither were parties to the action. The city attempted unsuccessfully to have the court stay all proceedings in the case, including the approval of the settlement agreement with the state.

On April 22, 2016, U.S. District Judge Laura Taylor Swain entered an order to preliminarily approve the consent decree subject to the rights of individual class members to challenge the settlement agreement and to show why a final judgment dismissing this case against State Defendants should not be entered following a fairness hearing. In the same opinion, the court conditionally certified the class for purposes of providing notice, but the formal class certification is pending.

On July 12, 2016, the court granted Parent Advocates and Children's Advocates motion to intervene. 2016 WL 3960558.

On August 12, 2016, the magistrate judge denied the plaintiffs' motion for final approval of the settlement and vacated the conditional certification of the class. 2016 WL 4367969. First, the judge held that the settlement lacked procedural fairness, because the settlement was drafted a week after the complaint was filed in the absence of any meaningful discovery into the merits of the claims. Second, the court held that the settlement would not save much expense of the litigation, because even if the settlement with the State defendants was approved, the plaintiffs had to continue the litigation with the City defendants. Third, the court heavily weighed on the intervenors' concerns that the consent decree had inadequate provisions. The intervenors expressed their concerns about the consent decree that the roles and objectives of the Research Expert and Monitor were vague, remedies did not address the alleged civil rights violations, and the seven-year covenant not to sue is unprecedented in its duration. Lastly, the judge held that the corrective actions defined in the Consent Decree were not specific enough and therefore the plaintiffs would be able to gain more robust remedies if they were to prevail at trial.

On September 12, 2016, the district court granted the city defendants' motion to dismiss plaintiffs' AACWA claims premised on 42 U.S.C. §§ 671(a)(10) and 671(a)(22), statutes regulating the state plan for foster care and adoption assistance. In the same opinion and order, the judge dismissed claims asserted against ACS and Commissioner Carrion, without prejudice to the litigation of those claims as against the Defendant City. 2016 WL 4750178.

On September 27, 2016, Judge Swain denied class certification without prejudice to renewal. She held that here, the request for class certification failed to meet commonality, typicality, and adequate representation. Namely, Judge Swain held that the consistency of plaintiffs’ broad assertions in the amended complaint were questionable in that problems (such as mental health issues, undue length of time in foster care, and lack of successful resolution of obstacles to family reunification) are attributable to faulty management and oversight of the foster care system. Therefore, she held that certification of a broad unitary class of children who are or will be in foster care was not appropriate.

On November 16, 2016, the defendants filed a motion for partial summary judgment, arguing that the case was moot as to six of the nineteen plaintiffs who had since left foster care since those six plaintiffs no longer had a basis to assert claims for equitable relief. On January 25, 2017, the plaintiffs voluntarily dismissed the State of New York and the New York State OCFS from the case.

On July 30, 2019, the plaintiffs filed a renewed motion for class certification. The motion has yet to be decided and the case remains pending as of April 15, 2021.

	Document
1:15-cv-05273	Docket [PACER] Elisa W. v. The City of New York	April 2, 2021	April 2, 2021 Docket
1 1:15-cv-05273	Class Action Complaint for Injunctive and Declaratory Relief	July 8, 2015	July 8, 2015 Complaint
50 1:15-cv-05273	[Proposed] Consent Decree	Oct. 20, 2015	Oct. 20, 2015 Settlement Agreement
91 1:15-cv-05273	Amended Complaint	Dec. 29, 2015	Dec. 29, 2015 Complaint
154 1:15-cv-05273	ORDER PRELIMINARILY APPROVING SETTLEMENT	April 22, 2016	April 22, 2016 Order/Opinion
216 1:15-cv-05273	Memorandum Order	July 12, 2016	July 12, 2016 Order/Opinion 2016 WL 3960558
259 1:15-cv-05273	Memorandum Opinion & Order	Aug. 12, 2016	Aug. 12, 2016 Order/Opinion 2016 WL 4367969
278 1:15-cv-05273	Opinion and Order	Sept. 12, 2016	Sept. 12, 2016 Order/Opinion 2016 WL 4750178
	Fact Sheet: Elisa W. v. City of New York No Court	None	None Other

Title	Description		External URL Date / External URL
Elisa W., et al. v. The City of New York, et al. Elisa W. NYC	This website lists the upcoming hearings and court conferences in Elisa W., et al. v. The City of New York, et al. All court proceedings are open to the public unless otherwise noted. This lawsuit …	July 30, 2019	July 30, 2019 https://www.elisawvnyc.com/...
Elisa W v. The City of New York A Better Childhood	New York State fails to exercise sufficient oversight over New York City’s child welfare system and to take necessary steps to ensure that the City complies with federal law. In addition, NYC fails t…	July 8, 2015	July 8, 2015 https://www.abetterchildhood.org/...

ECF Number	Description	Date	Link Date / Link
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 W, Letitia James, OLIVIA and ANA-MARIA R.. (Attachments: # 1 Appendix A, # 2 Exhibit 1)(North, Julie) (Entered: 07/08/2015) 1 Appendix A View on PACER 2 Exhibit 1 View on PACER	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 RECAP
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 ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 RECAP
8	CIVIL COVER SHEET filed. (North, Julie) (Entered: 07/08/2015)	July 8, 2015	July 8, 2015 RECAP
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)	July 8, 2015	July 8, 2015 PACER
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., ALEXANDRIA R, OLIVIA and ANA-MARIA R., ELISA W, BRITTNEY W.. (North, Julie) (Entered: 07/08/2015)	July 8, 2015	July 8, 2015 PACER
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)	July 8, 2015	July 8, 2015 PACER
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)	July 8, 2015	July 8, 2015 PACER
	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)	July 8, 2015	July 8, 2015 PACER
	***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)	July 9, 2015	July 9, 2015 PACER
	***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)	July 9, 2015	July 9, 2015 PACER
	CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled 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)	July 9, 2015	July 9, 2015 PACER
	Magistrate Judge Henry B. Pitman is so designated. (laq)	July 9, 2015	July 9, 2015 PACER
	Case Designated ECF. (laq)	July 9, 2015	July 9, 2015 PACER
13	ELECTRONIC SUMMONS ISSUED as to Gladys Carrion. (laq) (Entered: 07/09/2015)	July 9, 2015	July 9, 2015 PACER
14	ELECTRONIC SUMMONS ISSUED as to City of New York. (laq) (Entered: 07/09/2015)	July 9, 2015	July 9, 2015 PACER
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)	July 9, 2015	July 9, 2015 PACER
16	ELECTRONIC SUMMONS ISSUED as to Sheila J. Poole. (laq) (Entered: 07/09/2015)	July 9, 2015	July 9, 2015 PACER
17	ELECTRONIC SUMMONS ISSUED as to New York City Administration for Childrens Services. (laq) (Entered: 07/09/2015)	July 9, 2015	July 9, 2015 PACER
18	ELECTRONIC SUMMONS ISSUED as to State Of New York. (laq) (Entered: 07/09/2015)	July 9, 2015	July 9, 2015 PACER
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)	July 9, 2015	July 9, 2015 PACER
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)	July 9, 2015	July 9, 2015 RECAP
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)	July 9, 2015	July 9, 2015 PACER
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)	July 9, 2015	July 9, 2015 RECAP
23	SUMMONS RETURNED EXECUTED Summons and Complaint, served. New York State Office of Children and Family Services 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)	July 9, 2015	July 9, 2015 RECAP
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)	July 9, 2015	July 9, 2015 RECAP
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)	July 9, 2015	July 9, 2015 PACER
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)	July 9, 2015	July 9, 2015 PACER
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 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)	July 9, 2015	July 9, 2015 PACER
28	NOTICE OF APPEARANCE by Jennifer L. Levy on behalf of Letitia James. (Levy, Jennifer) (Entered: 07/15/2015)	July 15, 2015	July 15, 2015 RECAP
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)	July 15, 2015	July 15, 2015 PACER
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)	July 15, 2015	July 15, 2015 RECAP
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)	July 16, 2015	July 16, 2015 RECAP
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)	July 17, 2015	July 17, 2015 PACER
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)	July 21, 2015	July 21, 2015 PACER
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)	July 23, 2015	July 23, 2015 PACER

Case: Elisa W. v. City of New York

1:15-cv-05273 | U.S. District Court for the Southern District of New York

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