Cravath and A Better Childhood Win Appellate Victory for Children in NYC Foster Care

On September 19, 2023, the U.S. Court of Appeals for the Second Circuit vacated a district court’s order denying class certification to all children who are or will be in the custody of New York City’s foster care system. Cravath, working on a pro bono basis, represents the putative class alongside co‑counsel at A Better Childhood (“ABC”).

In 2015, Cravath and ABC filed a class action lawsuit for injunctive relief on behalf of 19 named plaintiff children in the custody of New York City’s Administration for Children’s Services (“ACS”), seeking to remedy the ongoing violation of the children’s rights under the Due Process Clause as well as various state and federal statutory provisions. The original suit alleges that these violations cause children in foster care harm to their health, safety and well‑being, including long stays in foster care without a permanent home or family. After extensive discovery uncovering the systemic nature of these harmful practices, the plaintiff children moved for class certification under Federal Rule of Civil Procedure 23(b)(2). In 2021, the district court denied the motion, determining that both commonality and typicality were lacking. The court based that conclusion on its observation that each child’s negative experiences in the foster care system resulted from discrete departures from ACS policy, meaning that there was no unitary action, policy or practice that itself caused a common harm. The court also reasoned that the New York State Family Court played a significant role in the outcomes of each individual child, destroying commonality and typicality.

On interlocutory appeal, the children argued that their common injury is the unreasonable risk of harm every child faces because of ACS’s practices; not, as the district court understood it, the unique outcomes each child received once that risk materialized. The Second Circuit agreed with the children, holding that “whether an agency has a practice of departing from its stated policy in a manner that exhibits deliberate indifference to a known risk or specific duty may be a common question that can be answered on a class‑wide basis.” The panel further held that the district court erroneously “did not address the particular evidence relating to each of the proposed common practices” and that “the flaws in the district court’s commonality analysis also permeated its typicality assessment.” On remand, the district court is instructed to analyze the children’s motion for class certification under the proper legal framework and with due consideration of the relevant evidence.

This decision preserves the ability of civil rights plaintiffs to seek classwide injunctive relief in situations where government entities make decisions on an individualized basis pursuant to a practice that creates an unreasonable risk of harm to every person that is subject to the practice.

The Cravath team included partners Antony L. Ryan and Justin C. Clarke, practice area attorney Nicole M. Peles and associates Scott B. Cohen and Robert A. DeNunzio.

The case is Elisa W. et al. v. The City of New York et al., No. 22‑7 (2d Cir. Sept. 19, 2023).