Filed Date: Nov. 10, 2021
Case Ongoing
Clearinghouse coding complete
This class action lawsuit challenged New York's practice of rejecting people who apply to be foster parents to relatives because of past convictions or only charges under state, federal, and city rules.
The complaint was filed on November 10, 2021 in the Eastern District of New York and assigned to Judge LaShann DeArcy Hall. The named plaintiffs were children who had been involuntarily removed from their parents or guardians by the New York City Administration for Children's Service (ACS) and who had been denied or were at risk of being denied a foster or adoptive placement with a family member as a result of the caregiver's criminal history or previous report of child abuse or neglect. ACS removes thousands of children from the care of their parents or guardians due to neglect or abuse. These children are then placed in ACS legal custody until the agency can place them with foster family. A disproportionate number of the children removed from their family homes are poor and people of color. Children often adjust better if they are placed with family members, otherwise known as Kin Caregivers.
However, current state, city, and federal rules bar categorically certain Kin Caregivers from applying to be foster or adoptive guardians. Under New York Social Services Law § 378-a(2)(e)(1), a Kin Caregiver is subject to mandatory disqualification if they have committed a disqualifying crime. There are almost 300 felonies under the New York penal code that mandate lifetime mandatory disqualification, including some attempted felonies. 40 other felonies require a five-year disqualification. Consequently, ACS will deny a child's placement with a Kin Caregiver even if the conviction is years old. No individualized assessment is provided. Additionally, under New York Social Services Law § 378-a(2)(e)(3), a child may also be denied a placement with a Kin Caregiver if the Kin Caregiver or any other adult household member was previously charged or convicted for any crime. As with the mandatory disqualification, no individualized disqualification is provided. Additionally, ACS may also deny a child a Kin Caregiver placement if that person or any adult household member was ever subject to an "indicated report" in the New York State Central Register of Child Abuse and Maltreatment. The standard for an indicating report is low; a report may be filed on the basis of "some credible evidence." Even when a report is indicated, ACS is not required to take any action; the matter may never be filed with Family Court. Again, denial is not subject to individualized review. As a result of these rules, plaintiffs allege that many children are denied foster or adoptive homes with Kin Caregivers.
In their complaint, Plaintiffs asserted that the Defendants' actions are in violation of the Plaintiff class's substantive due process rights under the Fourteenth Amendment, including the right to family association and integrity, the right to be free from unnecessary intrusions into the child's emotional well-being, and the right not to be placed in government custody longer than is necessary. Additionally, Plaintiffs asserted that the Defendants' actions deprived the Plaintiff class of these rights without offering the Plaintiff class notice or adequate opportunity to be heard. Consequently, the Plaintiff class has been and is at risk of being deprived of procedural due process rights under the Fourteenth Amendment.
Plaintiffs sought declaratory relief in the form of a declaration that New York Social Services Law § 378-a(2)(e)(1) and 18 N.Y.C.R.R. §§ 443.2(b); 443.8(e); 421.16(n) are unconstitutional and unlawful and that Defendants were violating the Plaintiff Class's substantive and procedural due process rights under the Fourteenth Amendment. The Plaintiffs also sought a permanent injunction requiring Defendants to create and implement guidance and oversight over the foster and adoptive approval process to ensure that a child's Kin Caregiver is being properly evaluated if that person or a household member has a criminal or SCR record and that the Plaintiff class has notice and a meaningful opportunity to respond to any denial of their foster or adoptive placement with a Kin Caregiver on the ground of the Kin Caregiver or other adult household member's criminal history or SCR record.
The case remains open.
Summary Authors
Gabrielle Simeck (11/27/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/60856270/parties/bb-v-hochul/
Freeman, Lisa (New York)
Goldstein, Linda C (New York)
Rosa, Samantha (New York)
Wood, Kathryn Anne (New York)
Freeman, Lisa (New York)
Goldstein, Linda C (New York)
Rosa, Samantha (New York)
Wood, Kathryn Anne (New York)
See docket on RECAP: https://www.courtlistener.com/docket/60856270/bb-v-hochul/
Last updated May 12, 2022, 8 p.m.
State / Territory: New York
Case Type(s):
Key Dates
Filing Date: Nov. 10, 2021
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Children in New York City who have been or will be removed from their parents or guardians by ACS and have been denied or are at risk of being denied a foster or adoptive placement with a Kin Caregiver based on the criminal history or SCR record of the caregiver or adult household member of the caregiver.
Plaintiff Type(s):
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Pending
Defendants
Defendant Type(s):
Case Details
Causes of Action:
Constitutional Clause(s):
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Availably Documents:
Outcome
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Issues
General: