The State Has Surrendered the Due Process Rights of Vulnerable Foster Care Children and Put Family Re-unification at Risk in its Settlement of the ACS Lawsuit
WEDNESDAY, OCTOBER 21, 2015

As the seven legal services organizations that represent the overwhelming majority of children and parents in New York City’s child welfare system, we are disappointed to learn that New York State has announced a proposed settlement of the lawsuit of the claims against the State in Elsa W.

Our organizations are at the forefront every day of navigating the City's foster care system. We are gravely concerned that the lawsuit itself relies upon information and data that does not reflect the realities of child welfare practice in New York. The lawsuit is misguided in its myopic measures of success. Our organizations have been actively engaged in a collaboration with ACS Commissioner Carrion and her staff on ten specific areas of reform. We are addressing the issues that we believe accurately measure success in the City's child welfare system.

We are convinced that the proposed settlement, which adds redundant layers of oversight including the use of a Court-ordered monitor, will delay and distract from the focus necessary to achieve meaningful reform.

We are concerned that the State has surrendered the due rights of vulnerable foster care children by prohibiting foster children from suing the State to secure systemic reform regarding their treatment in foster care. It would preclude all attorneys for children from utilizing the tool of impact litigation against the State to protect our clients’ rights.

The seven organizations are The Legal Aid Society, Lawyers for Children, Children's Law Center, Bronx Defenders, Center for Family Representation, Neighborhood Defender Services, and Brooklyn Defender Services.

“As the attorneys for almost all the children in New York City's foster care system, we have serious concerns about the settlement between the State and the Plaintiffs in Elisa W. ," said Tamara Steckler, the Attorney-in-Charge of the Juvenile Rights Practice at The Legal Aid Society. "The lawsuit's measures of a successful system are not the measures we believe best judge success for our clients and their families. The additional oversight adds an unnecessary layer of bureaucracy, compounding the issues that exist and delaying real reform. We will take the legal action necessary to protect our clients as we continue to work with ACS and the 6 other legal service organizations in New York City that serve children and families towards meaningful reform that actually meets the needs of tens of thousands of children we represent."

“With 25 years of experience representing residents of Upper Manhattan, Neighborhood Defender Service of Harlem strenuously opposes the settlement reached with New York State defendants as part of the Elisa W. litigation,” stated Stacy E.

Charland, Managing Attorney of the Family Defense Team of the Neighborhood Defender Service of Harlem. “The issues that bring children and families into New York City's child welfare system are complex, often complicated by poverty, addiction, and struggles with mental health. Meaningful services to address these issues are sparse and often difficult to access. The Elisa W. litigation seeks to shift the focus of child welfare in New York City from reunification of families to decreasing stays in foster care through speeding up adoptions. As the primary provider of parent representation to families in Upper Manhattan, this position is simply untenable. The imposition of a Monitor and a Research Expert do little more than divert precious financial resources and attention away from reunification of families. It is time that New York State focuses on a strategy that keeps children at home with their families and in their communities, rather than structuring settlements that perpetuate the permanent dissolution of poor families of color.”

“Real reform to the child welfare system requires universal childcare, affordable housing, and meaningful social services. Adding additional layers of bureaucracy to our child welfare system in order to meet artificial time lines and quotas will not help families stay together or protect children,” said Emma S. Ketteringham and Scott A. Constantine, Managing Directors, The Bronx Defenders Family Defense Practice.

Karen Freedman, Executive Director of Lawyers for Children, said “Lawyers For Children is deeply troubled by the terms of the proposed State settlement in Elisa W. The settlement provides few, if any, concrete benefits to children in foster care, while requiring the children to abandon their right, indefinitely, to sue the State for failing to meet its legal obligations to care for them.”

“Brooklyn Defender Services is dismayed that the plaintiffs and the State are settling this lawsuit without sufficient input from the representatives of the parents and children who will be most affected by the outcome. Without a significant increase in resources to the Family Court, there is little chance of meaningful reform,” said Lauren Shapiro, Attorney-in-Charge of the Family Defense Practice of Brooklyn Defender Services.

“Children involved in the child welfare system are supposed to be with, or be reunited with, their biological families or, when reunification is impossible, be adopted. The checks and balances that we are all seeking must ensure safety, permanence and well-being. The proposed settlement does not take sufficient steps to achieve these goals,” Karen P. Simmons, Executive Director of The Children’s Law Center.

Susan Jacobs, Center for Family Representation's Founding Executive Director, comments that, "We are deeply disappointed that the State has chosen to settle the lawsuit in Elisa W. with conditions that in our view disregard best practices for child welfare reform and the recent history of child welfare reform in New York City. In the first instance, it is particularly concerning that the plaintiffs and their counsel did not consult many advocacy groups like ours who have represented more than 6000 parents in family court since 2007 and worked on reform at the city, state and national level. Ignoring the voice and perspective of parents and youth, and their advocates, can only result in a settlement that is ill-fitting for the city and state and not responsive to the very people it will impact.” Just as significant, the lawsuit is misguided in its focus on speed to trial and adoption as the most important measures of success. While certainly ACS can improve, we among others have been focusing on reform efforts that also improve a family's ability to reunify, and that strengthen preventive services focused on mental health, domestic violence and success. Additionally, the settlement, if approved, undercuts the meaningful reform efforts underway now in partnership with ACS, for instance, by adding an unnecessary layer of monitoring and oversight in a system which needs more communication not more bureaucracy.