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PEOPLE UNITED FOR

CHILDREN CLASS

ACTION LAW SUIT

Transcript of 12/5/05

Hearing Before Judge

Kevin T Duffy

Tabulation of Issues in

Appeal

CUSTOM

CUSTOM

CUSTOM

Granting Of In Forma

Pauperis by the Courts

PEOPLE UNITED FOR CHILDREN CLASS ACTION L

Proposed settlement stipulation

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK-------------------------------------------------------------xPEOPLE UNITED FOR CHILDREN, INC., et al.

STIPULATION OF

SETTLEMENTPlaintiffs,

-against-99 Civ 0648(KTD)

THE CITY OF NEW YORK et al, Defendants

---------------------------------------------------------------x

WHEREAS, Plaintiffs People United for Children, Amanda Sherman, JoslinCantave, Cherry McClamy, Theresa Logan, Agatha Sibley, Khaliah Martin,Lesley Marguerite Adams-Simien, Conchita Jones, Denise Johnson-Burgess,James Burgess, Khatira Hikmah, Candia Richards-Cantave, Jose Pena andLucille Delapenacommenced this action on behalf of a proposed class, alleging that

Defendants City of New York and the New York City Administration forChildrens Services (Childrens Servicess) violated their rights underUnited States and New York State Constitutions; andWHEREAS, Plaintiffs sought declaratory and injunctive relief pursuant to 42U S C 1983 and state law to redress the alleged deprivation by Defendantsof rights secured under the New York State and United States Constitutions;andWHEREAS, the following Plaintiffs have withdrawn their claims or beendismissed from this action: Denise Johnson-Burgess and James Burgess(status denied as class representatives pursuant to Court Order dated April21, d2003), Khatira Hikmah (abated by death); Candia Richards-Cantave(claims dismissed with prejudice pursuant to Court Order dated March 12,2002): Jose Pena and Lucille Delapena (voluntary withdrawal); andWHEREAS, the Court certified the following class on April 21, 2003

African American or black parents or persons legally responsible for thecare of children within the City of New York, who are subject to theAdministration for Childrens Services policy of resolving any ambiguityregarding the safety of a child . . . in favor of removing the child fromharms way and returning children to their parents or guardians only whenfamilies demonstrate to the satisfaction of the Administration forChildrens Services that their children are safe and secure, and who haveor will be:

(i) threatened with the removal of their children following allegations ofchild neglect or abuse by the Administration for Childrens Services withouta proper investigation as to whether their children will be in danger ifthey remain in the custody of their parents;

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A critical partner for strengthening families and protecting children is thenetwork of community supports available to birth families, relativecaregivers, foster families, and adoptive families.

We at Childrens Services cannot protect children and strengthen familiesalone. Too succeed in our mission we need to build strong partnerships withfamilies, communities, and other agencies.

The needs of children and families should drive the support and help theyget; such services need to be family-centered, flexible and mobile; and

WHEREAS, Childrens Services recognizes that effective Service Plans arecreated in an environment of open communication, shared decisions and trustbetween families, Childrens Services and community service providers, andbegan to establish a program of Family Team Conferences which bring togetherChildrens Services staff, the family, its support system and any others whohave experience with the family to assess the familys strengths and needs,to coordinate services and supports involved in the childrens, and tocollaboratively develop a mutually agreed upon Service Plan; and

WHEREAS, Childrens Services has established a continuum of Family TeamConferences at critical points throughout a familys involvement withChildrens Services including: Critical Case Conference held in response to a parent or caretakersrequest to voluntarily place a child; the purpose of the Critical CaseConference is to: highlight strengths and needs of the child, parents, andfamily members, develop an effective community-based service plan for the

family and initiate service referrals to identify the most appropriate andavailable, least restrictive placement for the child. Elevated Risk Conference: a child safety conference held by the divisionof Child Protection within three days of a caseworkers assessment that riskto a child has increased; the purpose of this conference is to shareinformation, discuss the risk factors and if placement of the child infoster care is necessary, build relationships between attendees and identifyservices needed by the family to alleviate the risk factors; if consensus isreached a Child Safety Conference Plan Agreement is completed; Post Removal 72-Hour Child Safety Conference: held by the Division ofChild Protection three to five business days after a protective removal toshare information including the reasons why the child was removed from theparents home, discuss the safety issues and if continued placement of thechild in foster care is necessary, build relationships between attendees,discuss visiting and possible kinship resources and identify services neededby the family to alleviate the safety issues; if consensus is reached, a

Child Safety Conference Service Plan Agreement is completed; 30-day Family Permanence Conference held by the Division of ChildProtection thirty days after a protective removal to share information aboutwhat has happened over the last month discuss the need for additional or achange of services, discuss the childs foster care placement and visitswith birth family and if continued placement of the child in foster care isnecessary, build relationships between attendees and; if consensus isreached a Family Permanency Conference Service Plan Agreement is completed;and

WHEREAS,, other Family Team Conferences that may be held are ReunificationDischarge Conferences, Independent Living Conferences, and Pre-AdoptionConferences, andWHEREAS, Childrens Services is expanding the Family Team Conferenceinitiative to include a Pre-Placement Conference, which would occur at thepoint when a child is believed to be in imminent danger, to analyze the

safety situation and consider alternative interventions in order to make thebest placement decision in reference to safety, cultural sensitivity,strengths and needs of the family, andWHEREAS, Childrens Services has created the Office of Advocacy whosemission is to provide impartial resolutions to conflicts between clients andvoluntary agencies or Childrens Services offices; the Office of Advocacyalso provides information to the public about child welfare policies andprocedures in an effort to ensure that parents, foster parents and youth areaware of their rights and responsibilities; through its interaction withclients, the Office of Advocacy gathers feedback to assist ChildrensServices and the agencies that partner with it to improve services forchildren and families; and the Parents and Childrens Rights Unit, a unitwithin the Office of Advocacy, acts as an impartial body to resolve toresolve complaints made by parents, foster parents, and children; and the




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opportunity to be heard in Family Court, had their children removed withoutbeing provided with preventive services, procedures or programs to retain orregain their children, or failed to regain custody of their children eventhough they successfully completed the programs available to them. Suchcomplaints shall be made in writing and indicate that they are being madepursuant to this Stipulation. Complaints shall be addressed to theCommissioner of Childrens Service with copies directed to an identifiedattorney in the Office of the Corporation Counsel and to Plaintiffscounsel. The Commissioner or his designee shall forward the complaints tothe Ombudsmans Unit of the Office of Advocacy to promptly investigate and

respond. The Ombudsmans Unit shall acknowledge receipt of the complaintswithin five (5) business days and shall investigate the complaint andrespond in writing as promptly as possible depending on the specific natureof the complaint. Upon the expiration of this agreement, Plaintiffs maycontinue to bring complaints via any existing procedures at ChildrensServices or at law.

MEETINGS BETWEEN COUNSEL

4. Counsel for Childrens Services, together with appropriate ChildrensServices staff, shall, upon request from counsel for the Plaintiff class,meet quarterly with counsel for the Plaintiff class over the life of thisStipulation to discuss Childrens Services progress within respect to theinitiatives described above and other subsequent initiatives undertaken byChildrens Services to address the needs of the Plaintiff class. Plaintiffsshall propose dates for such meetings to the Defendants no less than twentyone (21) days prior to the anticipated date of the meetings.

FAMILY TEAM CONFERENCES

5. Childrens Services will seek to expand the Family Team conferenceprogram by piloting a pre-placement conference initiative, to occur at thepoint when a child is believed to be in imminent danger, to analyze thesafety situation and consider alternative interventions in order to make thebest placement decision in reference to safety, cultural sensitivity,strengths and needs of the family.

COMMUNICATION

6. Childrens Services, recognizing that protecting children andsuccessfully engaging families depends on effective communication, inaddition to the Family Team Conference program described above, has taken

and will continue to take the following steps: Preparing informationalbrochures describing the various types of Family Team Conferences; Creating a palm card that is carried by case workers to enable them todetermine what language the families speak so that appropriate translationservices can be secured if necessary; Distributing the Notice of Existence to families at the commencement ofany child protective investigation together with contact information for theappropriate caseworker and supervisor or, if this information is not yetknown, the appropriate Field Office; Distributing the Parent Guide to New York State Child Abuse and NeglectLaws as well as information on Family Team Conferences and PreventiveServices to families being investigated by Childrens Services; Ensuring that families who participate Family Team Conferences and agreeto a service plan receive a copy of the Conference Service Plan; Ensuring that families who participate in preventive services receive theappropriate preventive services letters relating to their specificcircumstances; Ensuring that when a protective removal is necessary, the parent isprovided with the Parent Handbook and the Childrens Rights Brochure,together with the form 701(b) containing information concerning the time,date and location of any court proceeding; Ensuring that visiting plans for parents with children in foster care areset up and reviewed at post removal conferences; and that visit plans willalso be discussed at pre-placement conferences.

7. In addition to the steps described in paragraph 7, that have alreadybeen taken, Childrens Services will prepare (1) a brochure for parentsdescribing the Voluntary Placement procedures, and (2) a parents guide tofamily visits with children in foster care.

GENERAL PROVISIONS




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(30) days before any such changes are implemented.13. Defendants acknowledge that Plaintiffs are prevailing parties in thisaction for purposes of entitlement to attorneys fees. The parties shallendeavor to agree upon the amount of attorney fees to which Plaintiffs areentitled. Plaintiffs may move for an award of attorneys fees, costs anddisbursements within one hundred and twenty (120) days of the date that aso-ordered copy of this Stipulation is docketed. The City Defendantsreserve all rights to contest the amount, including the reasonableness, ofsuch fees and costs.

PAYMENT PROVISIONS

14. As incentive awards to compensate the named plaintiffs for their role inthe litigation the City defendants agree: (1) to pay individually namedplaintiffs Lesley Adams, Joslin Cantave, and Theresa Logan the sum ofFifteen thousand dollars ($15,000), (2) to pay individually named plaintiffsAmanda Sherman, Agatha Sibley, Cherry McClamy, Khaliah Martin the sum of Tenthousand dollars ($10,000), (3) to pay plaintiff People United for Children,Inc the sum of $10,000 to be used to provide educational programs.15. The plaintiffs named in paragraph 14 shall execute and deliver to theCity Defendants attorney all documents necessary to effectuate thissettlement.

RELEASE

16. In further consider of this Stipulation, upon Court approval of thisStipulation, Plaintiffs, for themselves and for their heirs, executors,

administrators and assigns, release the City, the Administration forChildrens Services, Rudolph Giuliani, and Nicholas Scoppetta and theirsuccessors in interest, and any and all present and former officials,employees or agents of the City of New York and Childrens Services in theirindividual and official capacities, and their heirs, executors,administrators, successors and assigns, from all rights of action,proceedings, claims and liability, connected with, related to or arising outof claims and causes of action set forth in the complaint in theabove-captioned proceeding with the exception of any claims for attorneysfees described in paragraph 13.This Stipulation is final and binding upon the Parties, their successors andassigns and contains all of the terms and conditions agreed upon by theParties.

Dated: New York, New YorkSeptember , 2005

Center for Law and Social Justice MICHAEL A. CARDOZOMedgar Evers College, CUNY Corporation Counsel of theAttorney for the Plaintiff Class City of New York

1150 Carroll Street, Room CP-02 100 Church Street, Room2-113Brooklyn, New York 11225 New York, New York 10007(718) 270-6412 (212) 788-0923

By: ------------------------------By:-------------------------------

Esmeralda Simmons Martha ACalhoun

Joan P Gibbs (JG 4191) (MC5009)

SO ORDERED:

U S D J

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A space just for me to tell you about myself. Are you sure?

OBJECTION TO PROPOSED SETTLEMENT STIPULATION

To




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and causes of action set forth in the complaint in the above-captioned proceeding with the exception of any claims for attorneys fethat the Plaintiffs study and meditate upon the Complaint].

4. I object to the proposed Settlement Stipulation, and I object to any such Stipulation which does not call

. . .the City of New York, the Administration for Childrens Services, Rudolph Giuliani and Nicholas Scoppetta and their successopresent and former officials, employees and agents of the City of New York . . .

o account for the evil and wrong-doing they have indulged in over the years that I am personally aware of, particularly where foste

5. What evil and wrong-doing? I believe the Holy Bible was written by men divinely inspired

and is a perfect treasure of heavenly instruction, it has God for its Author, salvation for its end and the truth without any mixture of e

he principles by which God will judge us, and therefore is the true center of Christian union, and the supreme standard by which a

opinions shall be tried. It is by this standard, as a fruit inspector, that I decide what is evil and wrong-doing.

6. Perjury on the part of the New York City Corporation Counsel straight-out lying, in papers filed in court. For instance, Corporat

claimed not to have access and possession of records on representative Plaintiffs when in fact they did have. hen I called the C

few weeks ago to inquire about the status of this class action lawsuit, 2 different persons who answered the phone denied that this

simply lied about it. Wrong-doing.

7. Rape and murder that has occurred in New York City foster care over the years. Girls who have been remanded to foster care

evidence of rape in foster care when they were remanded there for safety - and children have died in New York foster care - some

8. The establishment of religion and blocking the free exercise thereof for parents and children involved in New York City foster c

part of the First Amendment to the United States Constitution and Article I 3 Freedom of worship; religious liberty of the Constitut

9. Judge Duffy, in particular, has a sworn duty as a judge to enforce the provisions of the Constitution of the United States Suprem

- infact, since he is entertaining the proposed Settlement Stipulation is evidence that he is not doing the job for which he is being p

robbing and defrauding the taxpayers.

10. In this connection, I particularly object to Joan Gibbs and Esmeralda Simmons and the Center for Law and Social Justice rec

anyone in connection with this action.

11. That they have placed the proposed Settlement Stipulation before the Court shows they are not entitled to any attorney fees in

action lawsuit.

12. That the Corporation Counsel Michael A Cardozo and Assistant Corporation Counsel Martha Calhoun are involved in the pro

proves they are not doing the job for which they are being paid Article VI Clause 3 of the United States Constitution (they have a s

Bar attorneys to enforce the provisions of the United States Constitution and the Constitution of the State of New York) and Article

Constitution of the State of New York.

13. Before I turn to the Representative Plaintiffs in this class action lawsuit, I describe what I mean by Plaintiffs and what I believe

the certifying order of 4/21/03: all Black parents in the City of New York.

14. Remember he said the Defendants complained the Plaintiffs proposed definition was overly broad including allparents in the

Judge Ward narrowed the definition - he restricted allto Black(he actually struggled betweenAfrican American and Black)

15. Getting back to evil and wrong-doing on the part of the Defendants, it was decided in Tennenbaum v Will iams that removing

parents either without (1) a prior court order or (2) the consent of the parents constitutes illegal search and seizure, a violation of th

States Constitution. The Defendants even now operate as though the 4

th

Amendment to the United States Constitution does notand wrong-doing.

16. Even if the Defendants force some Representative Plaintiffs in this class action lawsuit to sign a release absolving the Defen

the effect will be to make those Representative Plaintiffs liars, placing them in a position of committing perjury.

17. The Defendants will be still guilty of evil and wrong-doing as I have specified above, and they are to be called to account there

to account is required by justice. Justice is required by due process of law.

18. I expect justice and righteousness to prevail - As Abraham said in Genesis 18:25 Shall not the Judge of the whole earth do rig

ilbur McRe nolds




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THE CITY OF NEW YORK, et al., Defendants

APPEARANCES

CENTER FOR LAW AND SOCIAL JUSTICE

MEDGAR EVERS COLLEGE OF THE CITY UNIVERSITY OF NEW YORK

1150 Carroll Street Brooklyn, New York 11225

BY: JOAN P GIBBS, ESQ AAMA NAHUJA, ESQ ESMERALDA SIMMONS, ESQ

of Counsel

Attorney for P laintiffs

MICHAEL A CARDOZZO

CORPORATION COUNSEL OF THE CITY OF NEW YORK

100 Church Street New York, New York 10007

BY: DONALD C SULLIVAN, ESQ PAUL MARKS, ESQ

of Counsel

Attorneys for Defendants

Ward, District Judge

Plaintiffs have moved pursuant to Rule 23, Fed R Civ P, for an order certifying this action as a class action. For the reasons hereinafter stated, plaintiffs m

-1-

BACKGROUND

In this c ivil rights action, plaintiffs, on behalf of themselves and a class of similarly s ituated individuals, seek relief for alleged constitutional violations by de

Services ( ACS ). Plaintiff People United for Children, Inc ( People United ) is a non-profit organization that was founded in 1983. It conducts support groupcustody of their children to ACS. The named individual plaintiffs are African American or black parents# affiliated with People United. Defendants are the CRudolph W Giuliani. ACS and its predecessor agency, the Child Welfare Administration,# and Nicholas Scoppetta, former Commissioner of ACS. ACS is

prosecuting incidents of child abuse and neglect.

Plaintiffs allege a number of system-wide deficiencies in ACS administration of New York City s child welfare program. They contend that ACS fails t o fullneglect and abuse against parents and legal guardians before removing children from their custody. This failure to investigate allegedly results from ACS pambiguity regarding the safety of child . . . in favor of removing the child from harm s way, and returning children to their parents or guardians [o]nly when fsatisfaction of ACS that their homes are safe and secure. (Am. Comp. 37). Ac cording to plaintiffs, the overwhelming majority of the parents and childrenpolicy have been African Americans. (Pls Mem of Law at 6). As a consequence, plaintiffs allege that they have been deprived of their rights under the FirstFourteenth Amendments to the United States Constitution, and Articles I and XVII of the New York State Constitution.# They seek class certification unde

DISCUSSION

I. Standards for Class Certification

Plaintiffs bear the burden of establishing that the requirements of Fed R Civ P 23 are satisfied. Silby v Principal Mut Life Ins Co, 197 FRD 48, 54 (SDNY 20plaintiffs must show that the putative class meets all of t he requirements of Rule 23(a) ande qualifies under one of the three categories set forth in Rule 23

929 F Supp 662, 689 (SDNY 1995) ( Marisol I ), affd, 126 F 3d 372 (2d Cir 1997) ( Marisol II ). In the present case, plaintiffs seek certification under Rule 2

A court may grant certificati on only if it is s atisfied, after a rigorous analysis, that the prerequisites of Rule 23 have been met. General Tel Co of SouthwesAt the same time, plaintiffs allegations are accepted as true and the court will not consider the merits of plaintiffs claims when determining the propriety ofGlorious Food, Inc, 169 F R D 280, 284 (S D N Y 1996). Moreover, liberal consideration of the requirements of Rule 23 is allowed because courts have dislater in the litigation. Id; see also Sharif v New York State Educ Dept, 127 FDR 85, 87 (SDNY 1989) ( [I]f an error is to be made with respect to class certifagainst the maintenance of a class action. ). AS the Second Circuit indicated, [t]he rule s inherent flexibility, and the district court s ability to manage the against decertification. Marisol II, 126 F 3d at 377. Furthermore, a court may probe beyond the pleadings and consider the range of proof necessary t o suof New York, 198 FRD 409, 413 n 5 (SDNY 2001).

II. Class Definition

In this case, plaintiffs propose that the certified class consist of

All parents or other persons legally responsible for the care of children within the City of New York who, pursuant to the City of New York s Adminis tration

resolving any ambiguity regarding the safety of a child . . . in favor of removing the child from harm s way and only returning children only [sic] when familieACS that their children are safe and secure , have or will be

(i) subjected to the removal of their children from their custody following an allegation of child neglect or

abuse without an investigation as to whether the children are or will be in imminent danger if they

remained in the custody of their parents and without notice and opportunity to be heard for a Family

Court Order; and/or

(ii) subjected to the entry into and search of their homes by employees or agents of ACS following an

allegation of child neglect or abuse where there has [sic] determination that [sic] the children are in

imminent danger and without a Family Court Order; and/or

(iii) subjected to the removal of their children from their custody without being provided with the available

procedures, programs or services for retaining or regaining custody of their children; and/or

(iv) discriminated against on the basis of race or national origin in violation of the Equal Protection




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will be in danger if they remain in the c ustody of their parents;

(iii) subjected to t he removal of their children from their custody following allegations of child neglect or

abuse without notice and opportunity to be heard in Family Court;

(iv) subject to the removal of thier children and not provided with procedures, programs, or services

for retaining or regaining custody of their children; and/or

(v) subjected to the removal of their children and despite having successfully completed the available

programs or services for regaining the custody of their children, have not had their children, have not

had their children returned to them.

III. Fed R Civ P 23(a)

In order to be eligible for class certification, plaintiffs must first demonstrate that the putative class meets all four prerequisites of Rule 23(a). Once this reqshow that porposed class falls into one of the categories of maintainable actions under Rule 23(b). Marisol I, 292 F Supp at 690. Rule 23(a) provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the c lass i s so numerous that joinder of all memquestions of law of fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, anfairly and adequately protect the interests of the class.

A. Numerosity

Under Rule 23(a)(1), the class must be so numerous that joinder of all members is impracticable> Fed R Civ P 23(a)(1). In this act ion, defendants do not which is s atisfied by the proposed class of over 1,000 African American parents and legal guardians.

B. Commonality

The commonality requirement of Rule 23(a) is satis fied if plaintiffs grievances share a c ommon question of law or of fact. Marisol II, 126 F 3d at 372; see a

43 F ed 48, 57 (3d Cir 1994). Rule 23(a)(2) does not mandate that the named plaintiffs show that all class members claims are identical. Fox v Chemiova,

900901, at *10 (EDNY Feb 28, 2003). So long as the class shares at least one question of fact or law, the commonality requirement is met. Marisol I, 929welfare class actions, plaintiffs may satisfy this requirement if their injuries derive from a unitary course of conduct by a single system, even though the in

differ. Marisol II, 126 F3d at 377.

Here, the Court finds that plaintiffs meet the commonality requirment because common questions of law and fact exist among the class members. See AlFRD 27, 33 (EDNY 2002). Although plaintiffs in this act ion present numerous questions of law and fact, the primary question of law common to the entire policy of resolving any ambiguity regarding the safety of a child in favor of removing the child from harm s way, and returning children to their parents and gdemonstrate to the satisfaction of ACS that their homes are safe, violates the Constitution, particularly as that policy applies to black parents and guardia

appears to be: whether ACS has systemati cally failed to (1) fully investigate allegations of child neglect and abuse against black parents and guardians bcustody; and/or (2) provide black parents and guardians with programs and services for regaining custody of their

children or with proper family reunification plans? These questions are common to the entire class despite

#

the differences in the individual circumstances of each named plaintiff.#

Defendants, however, argue that plaintiffs cannot meet t he commonality requirement for the proposed class because the potential claims of the African AAmerican parents are contradictory. A ccording to defendants, the African-American subclass purports to believe that race discrimination led to t he remova

non-African American parents would necss arily argue that t heir children were removed for reasons other than discrimination against African-American pare

class definition as accepted by t his Court, however, is comprised specifically of A frican American or black parents and guardians, thereby eliminating anyAmerican and non-African American parents.

C. Typicality

The third requirement of Rule 23(a), is typicality. Typicality is established when each class member s claim arises from the same course of events, and e

arguments t o prove the defendant s liability. Marisol II, 126 F 3d at 376 (citations omit ted). Under this st andard, a c lass may be certified even though the cinjuries, so long as all of the injuries result from the same course of c onduct of defendants. Nicholson, 205 FRD at 99; Wilder v Berstein, 499 F Supp 980requirement that the factual basis for the claims of all members of a purported class be identical [to establish typicality], ). The requirements of commonalone another. Marisol II, 126 F 3d at 376.#

According to defendants, plaintiffs fail to establish that their c laims are typical of those of t he unnamed members of the putative class because (1) plaintifof African American parents exists; (2) individual plaintiffs cannot demonstrate typicality with the putative class; and (3) the association plaintiff lacks stancannot establish commonality or typicality with the proposed class.

I. Aggrieved Class of African American Parents

Defendants argue against c lass c ertification because they allege that plaintiffs fail to demonstrate the exis tence of an aggrieved class of African Americanplaintiffs do not proffer any support for their allegation that their children are more likely to be removed by ACS than the children of non-African American p

contend that there is no evidence regarding whether the parents race is even known at the time of removal of the children by ACS.

The Supreme Court addressed the issue of the aggrieved class in General Tel of Southwest v Falcon, 457, 157-58 (1982), a class action case involving an

Conceptually, there is a wide gap between (a) an individual s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unshas a policy of discrimination, and (b) the exist ence of a class of persons who have suffered the same injury as t hat individual, such t hat the individual s ccommon questions of law and fact and that the individual s claim will be typical of the class claims. For [the plaintiff] to bridge that gap, he must prove muclaims.

Thus, in order to represent the class, plaintiffs must show that there are aggrieved members of the purported class. Sheehan v Purolator, Inc, 839 F 2d 99establish this through statistical and anecdotal evidence, such as affidavits from named plaintiffs and potential members. Bis hop v NYC Dept of Housing P(SDNY 1992); Ross v Niio Securities Co Intl, Inc, 133 FRD 96, 98 (SDNY 1990).

At this stage of the litigation, the statistical reports and anecdotal evidence appear to support the inference that there is an aggrieved class of African Ame

he affidavit of Joslin Cantave supports the allegation of discrimination in the removal of the children. (Cantave Aff 4 ( I strongly believe that if I and/or my whave been treated differently by ACS . . . Because we were Black, however, we were forced to obtain an attorney and go to court before they dropped the cof the New York Department of Social Services and the Report of Suspected Child Abuse or Maltreatment indicate the ethnic background of the parent. (Jherefore be inferred, for purposes of this motion, that ACS is aware of the parent s race at the time the Intake Report or the Report of Suspected Child Ab




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Cantave and his then wife, Candia Richards-Cantave,# and filed an Article 10 petition against them, which contained charges of neglect. At a Family Courthowever, ACS withdrew the petition against them and did not remove the child from their custody. Even though the child was never removed, Cantave allegunconstitutional and discriminatory policies with [sic] respect to the removal from the return of children to the custody of their parents are not changed, [heremoval of [his] son. (Cantave Aff 6). Thus, the Court finds that Cantave may act a class representative because his claims are typical of those of subclawith the removal of their children by ACS.#

Furthermore, defendants argue that all the named plaintiffs cqannot represent the putative class because their claims are subject to unique defenses. SpeFamily Court upheld the removal of the children of every named plaintiff whose children were removed by ACS. The Family Court

Orders, therefore, expose plaintiffs to unique defenses, which may not be available against the unnamed class members, because they negate each plain

was improper.

A class representative s claims do not meet the typicality requirement if the representative is subject to unique defenses which threaten to become the fo

Packaging Corp v Merrill Lynch, Pierce, Fenner & Smith, Inc, 903 F 2d 176, 180 (2d Cir 1990). Thus, c lass c ertification may be denied if the named plainthat attack the heart of the plaintiff[s] case. Langner v Brown, No 95 Civ 1981 (LBS), 1996 WL 709757, at *3 (SDNY) Dec 10, 1996). It should be noted, ho

certification of representatives subject to unique defenses is not rigidly applied in this Circuit . . .Indeed, it is beyond reasonable dispute that a representarequirement even though that party may later be barred from recovery by a defense particular to him that would not impact other class members. Trief v Du(SDNY) 1992).

At this stage of the proceedings, the Court cannot conclude that the Family Court Orders issued with respect to the named plaintiffs whose children wereand Denise Johnson-Burgess, expose them to defenses so unique that they threaten to become a central focus of the litigation, to the detriment of the abWL 709757, at *3. These Family Court Orders were issued after the initial removal of the children by ACS. As such, the Orders may not necessarily addreconducted a proper investigation prior to the removal of the children. Thus, the Court cannot determine at this point in that these Family Court Orders will ddivert the trial from the main issues. Lawrence v Philip Morris Co, Inc, No 94 CV 1494, 1999 WL 51845, at *5 (EDNY Jan 9, 1997). If, however, at some lat

Court decisions become a central issue to the detriment of the absent class members, the Court reserves the right to reshape the class or to limit its scopunder this subdivision may be conditional, and may be altered or amended before the decision on the merits. ); Langner, 1996 WL, 709757, at *6.

With respect to plaintiffs James Burgess and Denise Johnson-Burgess, defendants assert that they cannot establish typicality with the putative class becpursuant to a Family Court Order. According to the Amended Complaint, On November 8, 1997, Burgess four daughters and granddaughter were removed

ACS and officers from the NYPD, following an allegation that had neglected t heir six-year old daughter. Johnson-Burgess was taken t o North Central Hosprecinct police s tation. After several hours at the s tation, she was released and the charges against her were dropped. Since then, it appears that Burgescustody of their children. (Aff Burgess 10 ( P rior to this Family Court case which lasted from November 7, 1997 with the removal of my daughters and gr

from November 2000 to May 2002, I never had any dealings with the Family Court. ) (emphasis added)).

Here the Court agrees with defendants and finds that the c laims of plaintiffs Johnson-Burgess and Burgess are aty pical of the claims of the putative classdefenses. Unlike the other class members, the Burgess children were removed pursuant to a Family Court Order dated November 7, 1997, which found re(Sullivan Decl Ex L). Moreover, Johnson-Burgess and Burgess appear to have regained custody of their children. Thus, their individual claims for injunctivemoot. See also Deshawn E v Safir, 156 F 3d 340, 344 (2d Cir 1998) ( A plaintiff seeking injunctive or declaratory relief cannot rely upon past injury to satisfshow a likelihood that he or she will be injured in the future. ). Accordingly, the Court denies Johnson-Burgess and Burgess status as class representative

Defendants also argue that other named plaintiffs are subject to unique defenses. For example, they c laim

#

that plaintiff Agatha Sibley lacks standing to pursue this action because she failed to provide documentation

supporting her claim that she was the legal guardian of her grandchildren, except her grandson Travis Hinton. After defendants made this claim, however, Order directing cus tody of the grandchildren to Sibley, thereby negating defendant s claim. (Gibbs Decl in Further support of Pls Mot Ex 2). Furthermore, vulnerable to unique defenses because t he Family Court Judge criticized her for the way she treated her grandson. At t his stage, however, the Court is no

will threaten to become the focus of the litigation. Gary Plastic Packaging Corp, 903 F 2d at 180. According to the transcript, it appears that the Family C2001. (Sullivan Decl Ex P). Sibley s grandchildren, however, were removed from her custody in July, 1997. As such, the alleged defense may even addresremoval of the granchildren by ACS was proper. Thus, the Court declines to deny Sibley status as a class representative at this certification stage.

3. Association Plaintiff Standing

Defendants contend that t he association plainfiff People United should be denied status as a c lass representative because it is s ubject to unique defenseeven if it had standing, defendants argue that People United cannot demonstrate commonality or typicality with the proposed class.

An organization may have standing to sue either on its own behalf to seek judicial relief from injury to itself, or it may assert the rights of its members undstanding. Irish Lesbian & Gay Org v Giuliani, 143 F 3d 638, 649 (2d Cir 1998) (internal quotations and citations omit ted). Here, People United claims t hat theories.

In order for an association to demonstrate that it is entitled to sue on its own behalf for injuries that it has sustained, it must satisfy the same standing tesdemonstrating actual or threatened injury in fact that is fairly t raceable to the alleged illegal action and likely to be redressed by a favorable court decision

hat an associat ion has standing to sue on its own behalf if defendants act ions reduce[ ] membership dues or other contributions the organization would oCorp, 210 FRD 446, 457 (EDNY 2002); see also Richards v NYS Dept of Corr Serv, 572 F Supp 1168, 1179 (SDNY 1983) (finding that association has stareductions in its financial support through the loss of dues from its members, resulting from the alleged unlawful employment practices of the defendants )

In the present action, People United asserts that its many members are unable to pay their dues because they have been rendered virtually impoverishedchildren from their custody by ACS. (Salaam Aff 9). Specifically, it alleges that some of the members lost their jobs as a result of their repeated absencelong court appearances and /or scheduled visits with their children during working hours. Id. Moreove, the members are unable to attend People United meparticipate in it other programs because they are preoccupied with regaining custody of their children. Id 8. The Court concludes that such allegations aPeople United to sue on its own behalf at this certification stage.#

Defendants claim that even if People United has standing, it cannot meet the commonality and ty picality requirements for the proposed class. They argue

has no children of its own and thus cannot assert that it lost custody of its children to ACS; (2) that twenty percent of the organization s members have nethat People United s membership include persons who are inappropriate class representatives.

In Norwalk Core v Norwalk Redevelopment Agency, the Second Circuit noted that the reasons for requiring an individual plaintiff in a class action to be a mpreclude an association from representing a class where its rasison d etre is to represent the interests of that class. # 395 F 2d 920, 037 (2d Cir 1968) (e

fo the Deaf of NYC, Inc v Giuliani, 915 F Supp 622, 633 (SDNY 1996) (finding that both the association and individual plaintiffs, who represent or are themssatisfy the typicality requirement).

Here, although not all of the members of People United may be named as individual plaintiffs in the instant action, the primary goal of the organization appobjective of the proposed class. People United alleges that the core of [its] mission is the protection of parents rights to raise their children free from unwainterference. (Salaam Aff 4). Moreover, People United states that the majority of its members are African American or black parents whose children have[ACS]. Id, at 4, 5. As such, the association plaintiff appears to sufficiently represent the interests of the proposed class. Accordingly, at this stage of threpresentative status t o People United. See also Eastern Paralyzed Veterans As sn, Inc v Veterans Adm, 762 F Supp 539, 547 (SDNY) (1991) (noting thaclass representatives).




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of her in 1997. Thus, the Court will not deny Logan status as a class representative at this certification stage.

Moreover, defendants argue that plaintiff Lesley Adams-Simien cannot adquately respresent the class due to her lack of credibility. For example, during hhat she never obtained an order of protection against anyone other than her daughter s father. Later, however, Adams-Simien admitted that she had obtai

own father. When defendants pointed out the discrepancy, Adams-Simien stated she chose not to remember. (Sullivan Decl Ex J at 63). The discrepancienot pertain to issues that are critical to the claims in the instant case. The Court, therefore, cannot conclude that the credibility problems are so significantplaintiffs entire case into question. See Harrison, 1997 U S Dis LEXIS 23267, at 17-18.

In addition, defendants claim that Adams-Simien is not fit t o be a class representative because of her lack of knowledge about the case. For example, whof the Complaint at her deposition, she stated, I never got this. I know I never got this. (Sullivan Decl Ex J at 52-53). Adams-Simien also testified that she

in this lawsuit, id Ex J at 89, even though this Court has held in People United, 108 F Supp 2d at 285 n 5, that it will not be sitting in direct review of the FaCourt is concerned about her lack of familiarity with

#

he case, it cannot conclude, at this stage of the proceedings, that a denial of her class representative status is warranted. The fact that she did not receimay not necessarily mean that she is not aware of other significant aspects of the litigation. Cf Langner, 1996 WL 709757, at *4 ( While defendants raiseadequacy that, if proven true, might impair his ability to represent the class, those questions at this point in time do not proclude certification of the class .Manhattan Corp, 89 FRD 87, 102 (SDNY 1981) ( There is no doubt that counsel are proceeding in this case without significant restraints from the named agree that this thereby renders a class action inappropriate. ) Adams-Simien, therefore, may act as a class representative.

Furthermore, defendants argue that plaintiff Concita Jones cannot adequately represent the putative class due to her lack of c redibility, refusal to answer qabout the case. According to the Amended Complaint, in November, 1997, Jones children were removed from her custody without a court order pursuant tprovide them with proper supervision and guardianship. She was accused of leaving her children alone on at least on occasion at a shelter. Jones alleges toffered any preventive services by ACS. Her children have not been returned to her custody.

Defendants provide various examples c oncerning Jones lack of credibility: Jones accepted child support payments through the New Jersey Supreme Couwere removed from her custody; she testified that she is married to her son s father even though she is not actually married to him; she testified that she

hat she had a conviction, which was affirmed by the Third Circuit Court of Appeals; she testified that she had only two children, but later testified that sheremoved by ACS; she testified that she could not recall ever hitting this third child, but records indicate that she was charged with abuse and using excesaddition, defendants argue that Jones unfamiliarity with the c ase makes her an inadequate representative. In particular, they c laim that Jones c ould not ex

could she identify her goals in the instant lawsuit.

The Court is troubled by these examples concerning Jones lack of credibility. Nevertheless, the Court is unable to conclude at this point in time that theseissues central to the claims in this case. As such, the Court is not prepared to rule that Jones credibility rise to the level required to undermine plaintiffs caS Dist LEXIS 23267, at *18.

Moreover, Jones alleged lack of knowledge about this law suit isnot severe enough to warrant denying her status as a class representative. With respect tnot identify her goals in the lawsuit, the Court notes that although Jones could not specifically articulate the damages sought, she explicitly stated that shof children and illegal detention of children. (Sullivan Decl Ex I at 65). Thus, her unfamiliarity with the case does not necessarily question the validity of placertification stage, Jones may remain as a class representative. The Court notes, however, that it is prepared to tailor or limit the scope of the class later appropriate to do so.

In sum, at this s tage of the proceedings, the following named plaintiffs satis fy the requirements under Rule 23(a): People United for Children, Inc; Amanda

McClamy; Theresa Logan; Agatha Sibley; Khaliah Martin; Lesley Marguerite Adams-Simien; and Concita Jones.#

# In their memorandum of law, plaintiffs use African American and black interchangeably. See e.g. Pls Mem of Law in Reply to Def opp at 5,11. The Courtboth African American and black, and will use the terms interchangeably.

# On February 1, 1996, then Mayor Giuliani removed the Child Welfare Administration from the Human Resources Administration and, in its place, establi

# In an Opinion dated July 18, 2000, this Court dismissed plaintiffs religious discrimination claim. People United for Children, Inc v City of New York, 108 F

#

# This represents plaintiffs revised definition of the proposed class. (Pls Am Mot for Class Certification 2, May 9, 2001). According to plaintiffs, this reviseconform[s] to the allegation in their complaint and Court s decision on the defendants motion to dismis s. (Gibbs Decl 5), the original definition of the pro

on March 9, 2001, was the following

African American [sic] parents or other persons legally responsible for the care of children subject to the jurisdiction of the defendant City of New York s Awho have or will be

(i) threatened with the removal of their children following allegations of child neglect or abuse by the

Administration for Children s Services without an investigation as to whether their children will be in

danger if they remained in the custody of their parents;

(ii) subjected to the removal of their children from their custody following allegations of child neglect an

[sic ] investigation as to whether their children will be in danger if they remained in the c ustody of their

parents or notice and opportunity to be heard; and/or

(iii) subjected to the removal of their children and not provided with the available procedures, programs or

services for retaining or regaining the cus tody of their children. (Pls . Notice of Mot for Class

Certification 2).

#

# Amanda Sherman is African American; Joslin Richard-Cantave is Haitian American; Khaliah Martin is African American; Theresa Logan is African AmerAmerican; Agatha Sibley is African American; Cherry McClamy is African American; Lesley Marguerite Adams-Simien is African American; Concita JonesJohnson-Burgess is African American; and James Burgess is African American. (Am Compl 17-28).

# The Court remains free to modify t he scope of the c lass l ater in the lit igation should subsequent developments require such action. Weigmann, 169 FRD

#

# The injunctive nature of the relief sought in this case also supports a finding of commonality under Rule 23(a)(2). See Nicholson, 205 FRD at 98; Baby Nby their very nature often present common questions satis fying Rule 23(a)(2), )(quoting 7A Charles A Wright &Arthur R Miller, Federal Practice and Proce




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Certification under Rule 23(b)(2) is appropriate where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury. Robinso267 F3d 147, 162 (2d Cir 2001). Here, plaintiffs allege system-wide deficiencies in ACS adeministration of the child welfare program, which are generally aMarisol II, 126 F 3d at 378 (affirming certification of a 23(b)(2) class because deficiencies in the child welfare system stemmed from central and systemic predominantly declaratory and injunctive relief. See Robinson 267 F3d at 164 (allowing Rule 23(b)(2) certification if the positive weight or value [to the plaintthough compensatory or punitive damages are also claimed ). Accordingly, plaintiffs have set forth claims maintainable pursuant to Rule 23(b)(2).

CONCLUSION

Plaintiffs motion for class certification is granted to the extent set forth above. Counsel are directed to confer and to file a proposed scheduling order on orcompletion of discovery and the filing of a pre-trial order.

It is so ordered.

Dated New York, New York

April 21, 2003

Robert J Ward

USDJ

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Transcript of 12/5/05 Hearing before Judge Kevin T Duffy

Judge Duffy issued a final order approving the proposed settlement stipulation. The text follows:

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PEOPLE UNITED FOR CHILDREN, INC, et al Pla intiffs

against 99 cv 648 (KTD)

THE CITY OF NEW YORK, et al Defendants MEMORANDUM & ORDER

KEVIN THOMAS DUFFY USDJ

I Background

This action, commenced in January of 1999, alleges that the Administration for Children'sw Services ("ACS") policy of resolving ambiguities

avor of removing the child from harm's way, and the practices adopted in furtherance of such policy, are in violation of the plaintiff's due p

law rights. See People United for Children v City of New York, 108 F Supp 2d 275, 302 (SDNY 2000). Plaintiffs are the People United for Chil

guardians who have been threatened with the removal of their children or whose children are or have been in the custody of the ACS.

On 4/21/03, the la te Robert J Ward of this court granted pla intiffs' motion for class certification. See People United for Children v City of New

2003). The court certified the following class and subclasses: African American or black parents or persons legally responsible for the care

York, who are subject to the Administration of Children's Services' policy of resolving 'any ambiguity regarding the safety of a child . . . in fa

harm's way' and returning children to their parents or guardians 'only when families demonstrate to the satisfaction of ACS that their childre

have or will be:

(i) threatened with the removal of their children following allegations of child neglect or abuse by the Administration of Children's Services

to whether their children will be in danger if they remain in the custody of their parents;

(ii) subjected to removal of their children following alle gations of child neglect or abuse by the Administration of Children's Services withou

whether their children will be in danger if they remain in the custody of their parents;

(iii) subjected to the removal of their children from their custody following allegations of child neglect or abuse without notice and opportun

(iv) subjected to the removal of their children a nd not provided the procedures, programs, or services for retaining or regaining custody of t

(v) subjected to the removal of their children a nd despite having successfully completed the available programs or services for regaining th

not had their children returned to them.

After Judge Ward granted the plaintiffs' motion for class certification, the parties negotiated the terms of the settlement at issue (the "Settle

two years.

II. The Settlement

In negotiating the Settlement, class counsel first agreed on the injunctive relie f for the class. The incentive aw ards for the named plaintiffs

erms of the injunctive re lief had been settled. Class counsel left the issue of a ttorney's fees and costs to be decided by the court in order to

a product of collusion.

As reflected in the settlement, ACS has established certain procedures to be held at critical points throughout a fami ly's involvehment wi th

procedures is predominantly to: (i) highlight the needs of the child, parents, and family members; (ii) discuss risk factors and the child's best

continued foster care placement is necessary. Such procedures include: (i) a Critical Case Conference to be held in response to a request f

(ii) an Elevated Risk Conference to be held by the Division of Child Protection within three days of a caseworker's assessment that the risk to

post-removal, 72-hour Child Safety Conference to be held by the Division of Child Protection three to five business days after a protective re

Permanency Conference to be he ld by the Division of Child Protection thirty days after a protective removal. See Settlement at 4-5. Other t




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The is no question that the Settlement is the product of arms-length, good faith negotiation. The parties engaged in protracted settlement d

Class members were givenj the opportunity to object to the terms of the Settlement, and of thousands of class members there were merely a

In negotiating the Settlement, the injunctive relief for the class was agreed upon before determining the incentive awards for individually na

class counsel left the issue of attorney's fees to the court. There is absolutely no indication that the Settlement was the product of bad faith

is a presumption that its terms are fair and adequate.

b) The Settlement is Fair, Adequate and Reasonable

Courts look tyo the nine factors articulated in City of Detroit v Grinnell Corp, 495 F 2d 448, 463 (2d Cir 1974), in determining whether a settlem

reasonable." In Grinnell, the court specifically considered:

(1) the complexity, expense and likely duration of the litigation; (2) the reaction to the class to the settlement; (3) the stage of the proceeding

completed; (4) the risks of establishing liability; (5) the risks of of establishing damages; (6) the risks of maintaining the class action through tdefendants to withstand a greater judgment; (8) the range of reasonableness of the settlement found in light of the best possible recovery; [a

reasonableness of the settlement fund to a possible recovery in light of all the a ttendant risks of litigation. See id (internal citations omitted

longer at i ssue in this case, it is not necessary for the court to analyze the 7th and 9th Grinnell factors.

There is not a single Grinnell factor that weighs against approving the Settlement. The pending action involves many complex legal issues

months. A trial would require the testimony of many witnesses and analysis of complex statistical models; there is no doubt that a trial wo

parties. Furthermore, there w as 2 1/2 years of discovery before the terms of the Settlement were reached, which insures that counsel we re

wea knesses of the case. There is no evidence that the terms of the Settleme nt are worse than the relie f that would have been granted afte

fact, th3e plaintiffs may still pursue their own damage actions against the de fendants.

IV. Conclusion

I find that the terms of the Settlement are clearly fair, adequate, reasonable, and the product of good-faith bargaining. The objections are

Settlement is hereby approved. Plaintiffs' counsel i sdirected to make application for attorney's fees within 45 days of the date hereof, and c

reply to such application within 30 days after the date the application is filed.

SO ORDERED

Dated New York, N Y

Februa ry 23, 2007 KEVIN THOMAS DUFFY, USDJ

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