Marcia Lowry, With New Secret Funding Source, Resumes Lawsuit Against New York City Foster Care

Lowry new York better childhood Letitia James
Foley Square in front of the Thurgood Marshall United States Courthouse in lower Manhattan. Credit: Ajay Suresh

A nonprofit law firm representing a group of New York City foster youth has resumed long-running litigation against the city’s Administration for Children’s Services (ACS) and the state agency that oversees it.

A Better Childhood (ABC), along with its white-shoe litigation partner Cravath, Swaine & Moore, has delivered a nearly 300-page filing to a federal courthouse in lower Manhattan, with new evidence and allegations of money grabbing by nonprofit foster care agencies, frequent protocol violations, and too-frequent abuse of children, many of whom are staying too long in foster care in violation of federal law.

Cravath and ABC, led by the high-profile child welfare litigator Marcia Lowry, are seeking class certification in the lawsuit Elisa W. v The City of New York, so that remedies they seek for the 19 children named in the case would apply to the more than 8,000 children in the city’s foster care system.

“This filing demonstrates — often in the actual words of city and state employees — just how wide the gap is between New York City’s policies and its practices for the treatment and protection of foster children,” read an ABC statement provided to The Chronicle of Social Change. “Furthermore, the filing demonstrates how Governor Cuomo’s Office of Children and Family Services (OCFS) fails to oversee ACS and keep the City’s children safe from harm while in care.”

A spokesperson for OCFS said the agency does not comment on pending litigation. ACS referred The Chronicle to the city’s Law Department, which has argued on behalf of the city in the case. [UPDATED Wednesday, July 31, 2019]*

“Looking to the court to manage the challenges of foster care is a simplistic approach to a complex system, particularly when ACS has proven itself fully capable of meeting those challenges.  In the face of foster care increases nationally, ACS has successfully reduced the number of youth in foster care to the lowest level in decades,” read a statement e-mailed by a Department spokesperson.

“Cherry picking facts from a relative handful of cases going back years, second-guessing decisions made by Family Court judges, and drawing comparisons between states that even the federal government recognizes are unwise, the plaintiffs seek to paint a picture of a system in crisis when a fair review of the facts tells a story of remarkable progress and achievement benefitting many thousands of families.”

Marcia Lowry New York City
Marcia Lowry in front of the Page Belcher Federal Building in Tulsa, Oklahoma. Lowry’s A Better Childhood filed lawsuits against Oregon and Indiana this summer.

Elisa W. was initially submitted in the summer of 2015, accompanied by a scathing report on the fate of kids in ACS’ care from the city’s then-public advocate Letitia James, who joined the plaintiffs in the litigation. The group quickly reached a settlement with Governor Cuomo’s office that October, over strong objections from the city, advocates for foster youth and birth parents, and, ultimately, the judge overseeing the case.

That judge, Laura Taylor Swain of the Southern District Court of New York, tossed out the settlement a year later. By then, James, who is now the state’s attorney general, had already quietly withdrawn from the contentious suit, as reported by Politico at the time. James’ office did not respond to a request for comment.

The city, and legal advocates for parents and foster youth — groups that face off in court over tens of thousands of child abuse and neglect cases each year — found rare agreement in opposition to the settlement. This reflected a divide in the field of child welfare nationally over the utility of landmark class actions on behalf of youth in foster care, a strategy Lowry pioneered decades ago with another pro bono New York firm she founded, Children’s Rights.

“The fact that we are united in opposing the state’s position in this proposed settlement is, I think, the headline in many ways today, and should be a significant message … about why it is that we feel that the proposed settlement and in fact the lawsuit is wrongheaded,” Sue Jacobs, the president of the legal aid firm Center for Family Representation, told Politico in 2015.

“We represent collectively over 90 percent of the cases of families in the child welfare system in the five boroughs, so that when the public advocates or plaintiffs in the lawsuit suggest that they in fact speak for those children and families, we are here to say, not so much,” she said.

Since that time, ABC said that it has had an opportunity to sift through more than a million pages of records. The class action renewal filed today focuses on an alleged disconnect between policy and practice when it comes to ACS’ management of more than two dozen contracted providers in the city.

“A core revelation of the brief is that the Improved Outcomes for Children (IOC) model, wherein ACS delegates day-to-day care of children to 27 Contract Agencies, is not working, and the city knows it,” the statement from ABC said. “ACS conducts only cursory case reviews, has no minimum requirements for agency performance, no minimum requirements for training of agency caseworkers, and fails to impose consequences when agencies have consistently poor performance outcomes.”

The motion leads with a quote from 2014 written by then-Commissioner of ACS Gladys Carrión, who appears to cop to a lack of oversight and accountability for the dozens of nonprofits that ACS contracts with to provide foster care services:

“Concern that agencies are in it for the $. ACS goes from initiative to initiative without paying attention to fundamentals or

Letitia james foster youth permanency issues
Letitia James was the New York City Public Advocate when A Better Childhood filed the Elisa W. lawsuit against the city’s child welfare agency. Now she serves as New York State attorney general.

deepening the work,” reads a brief excerpt presented without context from an unidentified document ABC says it acquired during discovery. ABC claims that the statement was shared with Sheila Poole, the head of the state’s Office of Children and Family Services, which oversees ACS’s work.

Julie Farber, ACS’ deputy commissioner for Family Permanency Services, supposedly confirmed the point in an internal communication sent after the suit was filed in 2015: “the capacity of ACS to provide truly robust support to the [Contract Agencies] in order to accelerate permanency for children in foster care” is “missing.”

ABC singled out six points in which it alleges failure by ACS and its contractors:

  • Matching children with appropriate foster care placements
  • Concurrent planning for both family reunification and contingency options for finding foster youth another permanent home
  • Ensuring permanency for foster youth in general
  • Providing the right services for at-risk birth parents and other caregivers
  • Providing special attention to children in foster care longer than two years
  • Maintaining timely and adequate case documentation

Oversights related to these elements were “present in each of the 19 children’s case files,” and “contributed to the children’s extended stay in foster care and increased their risk of harm while in care,” said ABC’s statement.

A city source pointed to ACS’ recent improvements on key metrics: The total number of children in foster care for two years or more dropped 38 percent from fiscal years 2014 through 2018, while the total number of days all children spent in foster care declined by 19 percent. Over the last two fiscal years, ACS also increased the number of newly certified foster parents by 32 percent, turning around a previous six-year decline in the number of new foster homes recruited.*

A Better Childhood also slammed New York’s state child welfare agency, OCFS, for failing to appropriately monitor the city.

“Long before this lawsuit was filed, OCFS had ample knowledge of ACS’s poor performance,” the motion states. ABC describes a “laissez-faire attitude towards ACS’s failings,” citing e-mails between OCFS leadership after it received a negative report on the city’s work with contracting agencies.

A Better Childhood has filed a series of major cases against foster care systems nationwide in recent months, including against the state-run systems in Oregon and Indiana. The Chronicle reported last July that the firm had received significant new financial support from a secret funder, allowing it to hire new attorneys and staff, open an office in Manhattan, and file new cases nationwide.

The firm was founded in 2014 after Lowry left another firm she started, Children’s Rights.

ACS is now led by David Hansell, who was appointed in early 2017, shortly after Carrión’s resignation. The foster care population in the city has shrunk dramatically in recent decades, from a high near 50,000 youth decades ago, to less than 8,500 today.

*Updated, 10:45pm Wednesday, July 31, 2019: This post has been updated to include responses to requests for comment sent to ACS, OCFS, and state Attorney General Letitia James’ office.

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Michael Fitzgerald
About Michael Fitzgerald 63 Articles
Northeast Editor for The Chronicle of Social Change. Follow me on Twitter: @mchlftzgrld