Case: B.B. v. Hochul

1:21-cv-06229 | U.S. District Court for the Eastern District of New York

Filed Date: Nov. 10, 2021

Case Ongoing

Clearinghouse coding complete

Case Summary

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 w…

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)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/60856270/parties/bb-v-hochul/


Attorneys(s) for Plaintiff

Freeman, Lisa (New York)

Goldstein, Linda C (New York)

Rosa, Samantha (New York)

Wood, Kathryn Anne (New York)

Attorneys(s) for Plaintiff

Freeman, Lisa (New York)

Goldstein, Linda C (New York)

Rosa, Samantha (New York)

Wood, Kathryn Anne (New York)

Documents in the Clearinghouse

Document

B.B. v. Hochul [Docket]

Nov. 10, 2021 Docket
1

Class Action Complaint

Nov. 10, 2021 Complaint

Docket

See docket on RECAP: https://www.courtlistener.com/docket/60856270/bb-v-hochul/

Last updated May 12, 2022, 8 p.m.

ECF Number Description Date Link
1

COMPLAINT against All Defendants filing fee $ 402, receipt number ANYEDC-15016098 Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by J.R., a minor, by his Next Friend Anna Roberts, M.P., a minor, by his Next Friend Adira Hulkower, J.S. and S.S., minors, by their Next Friend Lisa Hoyes, C.C., a minor, by her Next Friend, Lisa Hoyes, T.R., a minor, by his Next Friend Cynthia Godsoe, C.P., a minor, by his Next Friend Cynthia Godsoe, B.B., a minor, by his Next Friend Joy Rosenthal, Z.W. and D.W., minors, by their Next Friend Jennifer Melnick, E.R., A.R. and M.R., minors, by their Next Friend Peggy Cooper Davis, C.W.C., a minor, by her Next Friend Joy Rosenthal. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons) (Goldstein, Linda) (Entered: 11/10/2021)

1 Civil Cover Sheet

View on PACER

2 Proposed Summons

View on PACER

3 Proposed Summons

View on PACER

4 Proposed Summons

View on PACER

Nov. 10, 2021 Clearinghouse

Case Assigned to Judge LaShann DeArcy Hall and Magistrate Judge Robert M. Levy. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Neptune, Pierre)

Nov. 10, 2021 PACER
2

Summons Issued as to Kathy Hochul, Sheila J. Poole. (Neptune, Pierre) (Entered: 11/10/2021)

Nov. 10, 2021 PACER

Your proposed summons was not issued for the following reasons: Defendant's name (City of New York) was not entered in the 'To' field on the summons; the name on the summons (New York City Law Department) does not match the name as it appears on the complaint. Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (Neptune, Pierre)

Nov. 10, 2021 PACER
3

In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Neptune, Pierre) (Entered: 11/10/2021)

Nov. 10, 2021 PACER
4

This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Neptune, Pierre) (Entered: 11/10/2021)

Nov. 10, 2021 PACER
5

Proposed Summons. by B.B., C.C., C.P., C.W.C., E.R., A.R. and M.R., J.R., J.S. and S.S., M.P., T.R., Z.W. and D.W. (Goldstein, Linda) (Entered: 11/10/2021)

Nov. 10, 2021 PACER
6

Summons Issued as to City of New York. (Layne, Monique) (Entered: 11/10/2021)

Nov. 10, 2021 PACER
7

NOTICE of Appearance by Lisa Freeman on behalf of All Plaintiffs (aty to be noticed) (Freeman, Lisa) (Entered: 11/10/2021)

Nov. 10, 2021 PACER
8

NOTICE of Appearance by Samantha Rosa on behalf of B.B., C.C., C.P., C.W.C., E.R., A.R. and M.R., J.R., J.S. and S.S., M.P., T.R., Z.W. and D.W. (aty to be noticed) (Rosa, Samantha) (Entered: 11/10/2021)

Nov. 10, 2021 PACER

Case Assigned/Reassigned

Nov. 10, 2021 PACER

Quality Control Check - Summons

Nov. 10, 2021 PACER
9

NOTICE of Appearance by Emily Van Tuyl on behalf of B.B., C.C., C.P., C.W.C., E.R., A.R. and M.R., J.R., J.S. and S.S., M.P., T.R., Z.W. and D.W. (aty to be noticed) (Van Tuyl, Emily) (Entered: 11/22/2021)

Nov. 22, 2021 PACER
10

Letter Unopposed Request for Extension of Time to Respond to Complaint by Kathy Hochul, Sheila J. Poole (Michael, Vivian) Modified on 11/29/2021 (Ramirez, Alexia). (Entered: 11/23/2021)

Nov. 23, 2021 PACER
11

NOTICE of Appearance by Vivian Costandy Michael on behalf of Kathy Hochul, Sheila J. Poole (aty to be noticed) (Michael, Vivian) (Entered: 11/23/2021)

Nov. 23, 2021 PACER
12

NOTICE of Appearance by Philip S. Frank on behalf of City of New York (aty to be noticed) (Frank, Philip) (Entered: 11/24/2021)

Nov. 24, 2021 PACER

ORDER granting 10 Motion for Extension of Time to File Response/Reply. The State Defendants and Defendant New York City shall file a pre-motion letter in response to the Complaint on or before December 14, 2021. Ordered by Magistrate Judge Robert M. Levy on 11/29/2021. (Ramirez, Alexia)

Nov. 29, 2021 PACER

Order on Motion for Extension of Time to File Response/Reply

Nov. 29, 2021 PACER
13

NOTICE of Appearance by Kathryn Anne Wood on behalf of All Plaintiffs (aty to be noticed) (Wood, Kathryn) (Entered: 12/03/2021)

Dec. 3, 2021 PACER
14

NOTICE of Appearance by Patrick Allen Baker on behalf of Kathy Hochul, Sheila J. Poole (aty to be noticed) (Baker, Patrick) (Entered: 12/13/2021)

Dec. 13, 2021 PACER
15

Letter Requesting Pre-Motion Conference by Kathy Hochul, Sheila J. Poole (Michael, Vivian) (Entered: 12/14/2021)

Dec. 14, 2021 PACER
16

MOTION for pre motion conference by City of New York. (Frank, Philip) (Entered: 12/14/2021)

Dec. 14, 2021 PACER
17

Letter dated December 21, 2021 to Honorable LaShann DeArcy Hall from Linda C. Goldstein re: Response to Defendants Pre-Motion Letters [ECF No. 15 &16] by B.B., C.C., C.P., C.W.C., E.R., A.R. and M.R., J.R., J.S. and S.S., M.P., T.R., Z.W. and D.W. (Goldstein, Linda) (Entered: 12/21/2021)

Dec. 21, 2021 PACER
17

Letter dated December 21, 2021 to Honorable LaShann DeArcy Hall from Linda C. Goldstein re: Response to Defendants Pre-Motion Letters [ECF No. 15 &16] by B.B., C.C., C.P., C.W.C., E.R., A.R. and M.R., J.R., J.S. and S.S., M.P., T.R., Z.W. and D.W. (Goldstein, Linda) (Entered: 12/21/2021)

Dec. 21, 2021 PACER

Order on Motion for Pre Motion Conference

Dec. 29, 2021 PACER

1 - Terminate Hearings AND ~Util - Set Hearings AND Order Setting Hearing on Motion

Jan. 20, 2022 PACER

Order(Other)

Jan. 26, 2022 PACER

Pre Motion Conference

Feb. 2, 2022 PACER
18

Proposed Scheduling Order

Feb. 3, 2022 PACER

Order(Other)

Feb. 8, 2022 PACER

State / Territory: New York

Case Type(s):

Child Welfare

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):

Private Plaintiff

Attorney Organizations:

Legal Services/Legal Aid

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Pending

Defendants

Governor of New York, State

Governor , State

City of New York, City

Commissioner , State

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Due Process

Due Process: Procedural Due Process

Due Process: Substantive Due Process

Availably Documents:

Trial Court Docket

Complaint (any)

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Foster care (benefits, training)

Parents (visitation, involvement)