A longstanding dispute over the city’s foster care system has morphed into a bitter dispute between Public Advocate Letitia James and Mayor Bill de Blasio’s Administration for Children’s Services—with the Public Advocate asserting that the city could have avoided the embarrassment of having the state order it to appoint an independent monitor to investigate the agency last month.
In July 2015, James and 10 foster children filed a class action lawsuit in federal court against ACS and the New York State Office of Children and Family Services, accusing them of “causing irreparable harm” to children in the city’s foster care system due to the failure of both to “properly address structural deficiencies” in the city’s child welfare system. The state agreed, over the city’s objections, to a settlement arrangement that would have allowed it to install an independent monitor to oversee the city’s foster care system—but, that August a federal judge sided with the de Blasio administration and rejected the expansion of the state’s powers.
The following month, that judge denied the motion for class certification in the lawsuit.
“So we filed a lawsuit. We began negotiations with both the city and the state. The state agreed to settle with us and the city did not,” James recalled in an appearance on NY1 last week. “What we had recommended is that there be a monitor appointed over ACS to prevent any more children from falling through the cracks and preventing children from dying.”
The final months of 2016 saw the deaths of several young children—none of them in foster care—at the hands of their caretakers, after ACS had investigated their situations and closed its probes. This culminated in the resignation of Children’s Services Commissioner Gladys Carrión, and the state demanding the city put in an OCFS-approved monitor to assess the deficiencies of the agency.
This, James insisted on television, could have been avoided had the city agreed to the settlement with the state.
“As a result of a number of fatalities, the state now is the monitor over the Administration for Children’s Services and that all could have been prevented if ACS, if the city would have come to the table and negotiated with the state as well as with our office,” James told NY1’s Errol Louis on January 5, denying that the settlement with the state was politically motivated.
The proposed settlement between James’ office and OCFS stated that the agreement would last for seven years from the date the court approved it, and no members of the class of children and their representatives could bring identical lawsuits against the state. It also stated that the city, ACS and the ACS commissioner are not part of the agreement and that the lawsuit against them remained open.
ACS said the state-mandated monitor will focus on ACS protective and preventive services. James has countered countered that foster care children had child preventative services cases so a monitor would oversee a lot of work in both divisions.
The agency also alleged James ignored its invitation to discuss a resolution with the agency, which would have allowed her to sit in on the various task forces that ACS convened with city advocates to discuss a wide variety of issues raised in the lawsuit. It further claimed that she subsequently voluntarily withdrew all of her claims in the lawsuit on January 25, 2016.
“The Public Advocate is welcome to join us as we enact real reform, but drawing unsupported conclusions surrounding tragic child fatalities does nothing to improve the safety of kids in NYC,” an ACS spokesman said in an emailed statement. “ACS looks forward to continuing to partner with advocates who are committed to improving the lives of children and families involved in the child welfare system.”
The agency added that the administration has invested more than $122 million that drove down foster care caseloads, improved case worker effectiveness and increased supports to vulnerable families.
The Public Advocate’s office provided the Observer with the February 9, 2016 amended declaration of Jonathan Pines, assistant corporation counsel in the Office of the Corporation Counsel and lead counsel for the city defendants, in opposition to a motion for preliminary approval of the settlement.
Pines said that during the seven months that the litigation had been pending, the state defendants never requested documents or information from ACS and that the assistant attorney general from the state attorney general’s office did not file a notice of appearance on their behalf. He added that the state defendants remained unrepresented, even though the plaintiffs filed a proposed amended consent decree “purporting to bind” OCFS.
In response one of the lawyers representing the foster children stated in a February 16, 2016 declaration in support of the motion for preliminary approval of the settlement (also provided to the Observer by the Public Advocate’s office) that on August 4, 2015, Gov. Andrew Cuomo’s office convened a telephone conference between representatives for state defendants, representatives for the plaintiffs and Zachary Carter, the city’s corporation counsel. The statement also says that the parties briefly discussed a potential settlement and the proposed amended consent decree, and that on August 17, 2015, James met in person with representatives for city defendants, including Carter and Pines.
The declaration includes a copy of the invitation for the conference call that lists 10 attendees, including Alphonso David, the governor’s counsel; Carter; Jennifer Levy of the public advocate’s office; North; Marcia Lowry, the other lawyer representing the foster children; two representatives from OCFS; and other members of Cuomo’s executive chamber.
“The Public Advocate has long fought for the safety and well-being of our children,” James’ spokeswoman said in an emailed statement. “We’d hope that ACS, the very agency charged with that responsibility, would be less concerned with winning political catfights and more concerned about our kids.”
That document also includes a declaration from Lee Dorrance Prochera, OCFS’ deputy general counsel, stating that there was a July 20, 2015 conversation between Carter and the counsel’s office. Prochera claimed to have participated in the August 2015 call.
As part of the settlement, the OCFS commissioner agreed to hire a monitor who will be employed for at least three years, require ACS to hire a research expert for at least two years and implement corrective action plans. OCFS did not admit any wrongdoing.
“Protecting children is our top priority and we will continue to work with stakeholders to address allegations of serious problems in New York City’s child welfare system,” the agency said in an emailed statement, noting that litigation is still pending.
The mayor’s office did not immediately respond to a request for comment.
Tamara Steckler, the Legal Aid Society’s attorney-in-charge of the Juvenile Rights Practice, asserted that the judge’s decision to reject the settlement “was good on behalf of the plaintiffs and made sense.” She noted the lawsuit called for a foster care monitor without discussing how to improve OCFS, which already has oversight over ACS.
She also said Carrión worked with many advocates on the ground to see how they could best support families and children.
“I always—having worked in this system for a long time—I always worry when reform decisions are made too quickly and without the proper sort of nuanced thinking,” Steckler continued.
Comptroller Scott Stringer and Mayor Bill de Blasio recently squabbled over initial findings by Stringer claiming that ACS violated its own protocols in about 2,360 high-priority investigations. The mayor accused the comptroller of teaming up with the New York Post—which broke the story—to create “fake news” and disputed the audit’s assessments