REPORT AND RECOMMENDATION

HENRY PITMAN, Magistrate Judge.

TO THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge.

I. Introduction

By notice of motion dated March 23, 2017 (Docket Item ("D.I.") 357), plaintiffs move to substitute Yusuf El Ashmawy in place of Liza Camellerie as the next friend of plaintiff Brittney W. and amending the caption accordingly. The City of New York (the "City") opposes plaintiffs' motion and by notice of cross motion dated April 20, 2017 (D.I. 363), seeks to dismiss Amy Mulzer, Rachel Friedman, Dawn Cardi, Michael B. Mushlin, Reverend Doctor Gwendolyn Hadley-Hall, Bishop Lillian Robinson-Wiltshire, Liza Camellerie, Elizabeth Hendrix, Samuel Perry (collectively, the "Contested Next Friends") and Elizabeth Barricelli as next friends. For the reasons set forth below, I respectfully recommend that plaintiffs' motion be granted and that the City's cross-motion be denied.

II. Facts

The named plaintiff children ("Named Plaintiff Children") and New York City Public Advocate Letitia James (together with the Named Plaintiff Children, "Plaintiffs") commenced this action, on behalf of themselves and a purported class of plaintiffs, asserting claims under the First, Ninth and Fourteenth Amendments to the United States Constitution, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (the "AACWA"), New York State Social Services Law and the common law of contracts against the City, the New York City Administration for Children's Services ("ACS"), ACS Commissioner Gladys Carrion, the New York State Office of Children and Family Services ("OCFS") and OCFS Acting Commissioner Sheila J. Poole, arising out of alleged systemic deficiencies in New York City's foster care system. The plaintiffs do not seek to alter the custodial status of any of the Named Plaintiff Children. Rather plaintiffs seek systemic injunctive and declaratory relief only (Declaration of Marcia R. Lowry, Esq. in Opposition to Defendants' Cross-Motion, dated May 11, 2017 ("Lowry Decl.") ¶¶ 2-3).

The allegations made with respect to each of the Named Plaintiff Children, if true,1 tell a profoundly sad story of suffering endured by one of the most vulnerable populations in New York City.

Elisa W.

In addition, to the allegations in the Amended Complaint, the Named Plaintiff Child identified in the amended complaint as Elisa W. has submitted a sealed declaration in connection with the pending motions (Declaration of Elise W., dated May 3, 2017 (D.I. 371) ("W. Decl.")) in which she describes her experience with New York City's foster care system.

Elise W., who is now 19 years of age, entered New York City's foster care system at the age of four when she was removed from her birth mother's home due to allegations of physical abuse by her birth mother (Amended Complaint (D.I. 86) ("Am. Compl.") ¶ 11). Since that time, she has been placed in at least 14 different foster homes (W. Decl. ¶ 3). By the time she was seventeen, she had attended seven different schools (Am. Compl. ¶ 12).

At the age of six, Elise W. was sexually abused by a relative of her then foster mother (Am. Compl. ¶ 14). Elise W. was beaten by that same foster mother in retaliation for her telling her birth mother that she was being beaten in the foster home (Am. Compl. ¶ 14). At one foster home, her foster mother held Elise W. underwater while bathing her (W. Decl. ¶ 4). At other foster homes, she was subjected to beatings, and one foster parent bit her on the back and burned her on her am and back (W. Decl. ¶ 4). Other foster parents beat her (W. Decl. ¶ 4).

In one foster home, Elise W. had no bedroom or bed and had only a mattress on the floor (W. Decl. ¶ 4). In some of her foster homes, her foster parents used drugs, and there were infestations of mice and roaches (W. Decl. ¶ 5).

In other foster homes, the foster parents' biological children would tell Elise W. that no one cared about her and would steal Elise W.'s clothes, money and food (W. Decl. ¶ 6). In 2006, Elise W.'s teacher made multiple reports to Elise W.'s caseworker that she was being subjected to physical abuse by her foster parents; the caseworker, however, never took any action in response to these reports (Am. Compl. ¶ 15). Elise W. did not believe her caseworkers were interested in reuniting Elise W. with her birth mother or finding a permanent placement for her (W. Decl. ¶ 7). Elise W.'s caseworkers never pursued placements with family members who were willing to take Elise W. in (W. Decl. ¶ 7).

Elise W. has been diagnosed with depression, bi-polar disorder, and post-traumatic stress disorder (Am. Compl. ¶ 16). She has been prescribed anti-depressants and mood stabilizers since she was eleven years old (Am. Compl. ¶ 16). When she was 16 years old, Elise W. was placed in a mental health facility for two months at her own request (Am. Compl. ¶ 16). Elise W. believes that her academic performance has suffered as a result of both her mental health issues and the medication she has been prescribed (Am. Compl. ¶ 18).

Alexandria R.

Alexandria R. was removed from her birth mother's home in 2007, when she approximately four years old (Am. Compl. ¶ 20). She had originally been removed from her birth parents a few months after she was born, placed with a relative until she was three and one-half years old and then returned to her birth mother for a few months (Am. Compl. ¶ 23). Alexandria R. has six siblings, five of whom were in foster care as of December 2015 (Am. Compl. ¶ 23).

During her first four years in foster care, Alexandria R. was placed in eight different foster homes (Am. Compl. ¶ 25). When she was approximately eight years old, her foster parents dropped her off at a mental health facility and told her that she would only be there for one night. They never returned, and Alexandria R. ended up spending six months at the facility (Am. Compl. ¶ 25).

The longest foster placement Alexandria R. has ever had is four years (Am. Compl. ¶ 26). During her foster placements, Alexandria R. has reported a history of physical and suspected sexual abuse (Am. Compl. ¶ 27). Alexandria R. has developed a number of mental health issues, including adjustment disorder with mood and behavioral problems and post-traumatic stress disorder (Am. Compl. ¶ 28). She also suffers from learning disorders (Am. Compl. ¶ 28). She is distrustful of people, including her doctors and therapists and has difficulty controlling her emotions (Am. Compl. ¶ 29).

Thierry R.

Thierry R. was removed from his birth mother in 2013 when he was two years old as a result of acts of domestic violence by his biological father directed toward his mother (Am. Compl. ¶¶ 34, 36). There is no allegation of physical abuse directed toward Thierry R. or that his biological mother had failed to provide appropriate, loving care (Am. Compl. 36).

Thierry R. was placed in a foster home far from his mother's residence, making visits difficult (Am. Compl. ¶ 38). His foster mother speaks only Spanish, which has stunted Thierry R.'s language ability (Am. Compl. ¶ 38). When he was four years old, Thierry R. reported that one of his foster parents hit him (Am. Compl. ¶ 39). Thierry R. misses his birth mother greatly and cries uncontrollably at the end of their weekly visits (Am. Compl. ¶ 41). When Thierry R.'s birth mother expressed concern over this behavior to her son's therapist, he told her that Thierry R. has to "get used to it" because this was "his life now" (Am. Compl. ¶ 41). Thierry R.'s mother has expressed concern that the therapy ACS has provided to Thierry R. seems focused on normalizing his separation from her rather than preparing him to be returned to her care (Am. Compl. ¶ 42).

ACS's neglect petition against Thierry R.'s birth mother has been pending for an extended period of time, and hearings have been scheduled sporadically during its pendency (Am. Compl. ¶ 44-45). His birth mother continues to seek to have him returned to her care and has successfully completed parenting classes and mental health evaluations in an effort to accomplish that end (Am. Compl. ¶ 46).

Lucas T., Ximena T., Jose T.C. and Valentina T.C.

Lucas T., Ximena T., Jose T.C. and Valentina T.C. were born in approximately 2008, 2011, 2012 and 2014, respectively, to the same mother; they were removed from her custody in February 2015 (Am. Compl. ¶ 49).

Lucas T., Ximena T., Jose T.C. and Valentina T.C. were removed from their mother's custody due to her alleged inability to provide proper supervision based on her leaving the children unattended at home and her alleged failure to feed the children properly and to keep them clean (Am. Compl. ¶ 52).

Although Lucas T., Ximena T., Jose T.C. and Valentina T.C. spoke Spanish almost exclusively at the time they were removed from their birth mother, they were initially placed in a foster home in which the foster parents did not speak Spanish (Am. Compl. ¶ 53).

After their birth mother observed during a May 2015 visit that the children had bruising, the children were placed in two foster homes — Lucas T. and Jose T.C. were placed in one foster home while Ximena T. and Valentina T.C. were placed in a different foster home (Am. Compl. ¶ 54). The four would see each other only during visits with their birth mother at the contract agency (Am. Compl. ¶ 54).

Despite their being in foster care for more than ten months, as of December 2015, ACS had not developed a case plan for Lucas T., Ximena T., Jose T.C. and Valentina T.C. that would enable them to be returned to their birth mother or be placed with a permanent family (Am. Compl. ¶ 56). They have suffered emotional harm as a result of their uncertain future (Am. Compl. ¶ 57). Despite the passage of more than ten months, as of December 2015, there has been no fact-finding hearing concerning or disposition of ACS's neglect petition against the children's parents (Am. Compl. ¶ 58).

Although a lack of a stable residence was cited by ACS as an impediment to reunification of the family, neither ACS nor the contract agency has provided any assistance to the mother of Lucas T., Ximena T., Jose T.C. and Valentina T.C. to find permanent housing (Am. Compl. ¶¶ 60-61).

Ayanna J.

Ayanna J. was removed from her birth mother three days after she was born in 2012 and has been in ACS's custody since that time (Am. Compl. ¶ 63). She was placed in ACS's custody immediately after her birth because her birth mother's boyfriend had beaten Ayanna J.'s 19-month old sister to death and her birth mother had lied to the hospital about the source of that child's injuries, among other things (Am. Compl. ¶¶ 66-67).

Between 2012 and 2015, approximately thirteen different caseworkers have been assigned to Ayanna J.'s case (Am. Compl. ¶¶ 68).

The interactions between Ayanna J.'s biological parents and ACS have been turbulent. During one visit with Ayanna J. at the contract agency, her biological parents began screaming at each other in front of Ayanna J. (Am. Compl. ¶ 69). ACS home visits to the birth mother were discontinued after she threatened to assault the caseworker (Am. Compl. ¶ 69).

Between the time Ayanna J. was taken into ACS custody in 2012 and 2015, ACS did not develop a case plan to either return Ayanna J. to her birth mother or to place her with a permanent family (Am. Compl. ¶ 70).

Ayanna J. has developed emotional problems. She has cried hysterically during visits with her birth mother at the contract agency (Am. Compl. ¶ 71). She no longer desires to visit with her birth mother and will either ask for her baby-sitter halfway through such visits or will not leave her baby-sitter to visit with her birth mother (Am. Compl. ¶ 71). Legal proceedings to terminate the parental rights of Ayanna J.'s birth mother have languished for more than a year, leaving Ayanna J.'s case and her future unresolved (Am. Compl. ¶ 74).

Olivia R. and Ana-Maria R.

Olivia R. and Ana-Maria R. were born in approximately 2009 and 2010, respectively (Am. Compl. ¶ 77). They were removed from their birth mother's custody in June 2011 (Am. Compl. ¶ 77). This was the second time they had been removed their biological parents' custody (Am. Compl. ¶ 79). They had previously been removed due to acts of domestic violence between her parents and her birth mother's drug and alcohol use (Am. Compl. ¶ 79). After their removal in June 2011, they were placed in a non-kinship foster home, the third foster home in which they had been placed in six months (Am. Compl. ¶ 80).

In March 2012, Olivia R. and Ana-Maria R. were returned to their birth mother's custody, but three months later their birth mother returned them to the foster home in which they had been living (Am. Compl. ¶ 81). She did not return to pick them up for a month (Am. Compl. ¶ 81).

Olivia R. and Ana-Maria R. have been in foster care almost continuously from 2011 through 2015 (Am. Compl. ¶ 82). In October 2013, then four-year-old Olivia R. was sexually abused by a friend of her birth mother during an unsupervised visit (Am. Compl. ¶ 83). Neither the contract agency that had custody of Olivia R. nor ACS took any action in response (Am. Compl. ¶ 83). After Olivia R. reported the incident to her therapist, the police commenced an investigation (Am. Compl. ¶ 83). Olivia R. and Ana-Maria R.'s mother did not visit them at all between November 2014 and December 2015 (Am. Compl. ¶ 83).

Olivia R. and Ana-Maria R have developed several mental health problems (Am. Compl. ¶ 84). Olivia R. has been diagnosed with attention deficit hyperactivity disorder, developmental coordination disorder and disruptive behavior disorder (Am. Compl. ¶ 84). Ana-Maria R. has been diagnosed attention deficit hyperactivity disorder and anger management and conduct disorder (Am. Compl. ¶ 84). Both are in special education (Am. Compl. ¶ 84). In addition, Olivia R. has episodes of nocturnal enuresis before visits with her birth mother and exhibits severe hyperactivity and aggression (Am. Compl. ¶ 85). She has acted out in her kindergarten class, striking the teacher and destroying items in the classroom (Am. Compl. ¶ 85). Although medication has been prescribed for her to address these problems, the contract agency that has custody of her has not approved the medication and she has not taken it (Am. Compl. ¶ 85).

One of the caseworkers assigned to Olivia R. and Ana-Maria R. recommended that they enroll in a Medicaid program entitled Bridges to Health that addresses the problems of children who are medically fragile, have a developmental disability and are severely emotionally disturbed (Am. Compl. ¶ 86). Although their foster mother requested that they be enrolled in this program, the contract agency refused to do so, stating, in substance, that enrollment required substantial amount of paperwork (Am. Compl. ¶ 86).

Olivia R. and Ana-Maria R.'s permanency goal has been adoption since March 2014. Their foster parents have indicated a desire to adopt them and have submitted the necessary paperwork. However, as of December 2015, ACS has failed to provide clear instructions to the foster parents concerning the steps needed to complete the adoption process, despite a Family Court Order to ACS that it do so (Am. Compl. ¶ 88).

Xavion M.

Xavion M. was born in approximately 2009 and has been in ACS custody since he was 15 days old (Am. Compl. ¶ 90). Two of Xavion M.'s siblings were also removed from their biological mother in 2009 (Am. Compl. ¶ 92).

Xavion M. was initially placed in a foster home for two years; when he left it, he was anemic and malnourished (Am. Compl. ¶ 93). He was then placed in a second foster home for three years, after which he was returned to his birth mother on a trial basis (Am. Compl. ¶ 93).

Between 2009 and 2015, Xavion M. has had four different caseworkers (Am. Compl. ¶ 94).

Prior to July 2015, Xavion M. had weekly, supervised visits with his birth mother and older siblings (Am. Compl. ¶ 95). His brother physically attacked him during one of these visits (Am. Compl. ¶ 95). In July 2015, Xavion also began having overnight visits with his birth mother on weekends (Am. Compl. ¶ 95). During one of these visits, his birth mother took him to visit his biological father, in violation of an order of protection (Am. Compl. ¶ 95).

Xavion M.'s teacher has recommended that an Individualized Education Plan2 be prepared for him. The required evaluation, however, was delayed for several months because his birth mother refused to give the necessary consent (Am. Compl. ¶ 96).

Xavion M. suffers from several emotional problems. He is aggressive and violent at home and has problems concentrating at school (Am. Compl. ¶ 97). At the age of five, he insisted on sleeping in the same as bed as his foster mother (Am. Compl. ¶ 97).

In 2014, the Family Court Judge handling Xavion M.'s case instructed caseworkers at the contract agency overseeing Xavion M.'s care to file a petition to terminate the parental rights of his birth mother so that his foster mother could adopt him (Am. Compl. ¶ 99). The contract agency refused and, instead, pursued plans to return Xavion M. to his birth mother (Am. Compl. ¶ 100).

Dameon C.

Dameon C. was born in approximately 2011 and was removed from his birth mother's custody when he was nine days old; his mother was incarcerated at the time (Am. Compl. ¶ 104). The contract agency to which Dameon C.'s care was first delegated initially placed him in a non-kinship foster home (Am. Compl. ¶ 106).

Dameon C. was returned to his mother on a trial basis in December 2011 (Am. Compl. ¶ 107). They resided in a mother-child drug and alcohol rehabilitation facility (Am. Compl. ¶ 107). Dameon C.'s behavior deteriorated drastically when he was in his birth mother's custody and included head banging which persisted through at least 2015 (Am. Compl. ¶ 107). In July 2012, Dameon C.'s mother was expelled from the rehabilitation facility, and Dameon C. was sent back to the foster home in which he had previously resided (Am. Compl. ¶ 107).

During part of his time in foster care, Dameon C. had visits with his birth mother (Am. Compl. ¶ 108). During his first unsupervised visit with his birth mother at her drug treatment facility, she kicked him (Am. Compl. ¶ 108). Although Dameon C.'s birth mother was still allowed to have supervised visits with him, she failed to visit Dameon C. for approximately four months between 2014 and 2015, and in mid 2015, her visits became irregular (Am. Compl. ¶ 108).

Dameon C. has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder (Am. Compl. ¶ 109). As of December 2015, he was not receiving any treatment for these conditions (Am. Compl. ¶ 109). In addition, although Dameon C.'s permanency goal is adoption, ACS has not vigorously pursued a petition to terminate his birth mother's parental rights (Am. Compl. ¶ 110).

Tyrone M.

Tyrone M. was born in approximately 2008 and has special needs; he was removed from his birth mother's custody 12 days after he was born and has been in ACS custody until at least 2015 (Am. Compl. ¶ 112). He was removed from his birth mother's custody because she had been using cocaine immediately prior to Tyrone M.'s birth (Am. Compl. ¶ 114).

Tyrone M. was initially placed in a kinship foster home with an aunt (Am. Compl. ¶ 115). When he was approximately six years old, Tyrone Mm. was removed from the aunt's home because she failed a drug test (Am. Compl. ¶ 115). He was then placed in a non-kinship foster home (Am. Compl. ¶ 115). When he first arrived at the non-kinship foster home, there was evidence that his aunt had neglected his care; he suffered from dental problems and slept in his clothes because he had not been taught to undress and change into pajamas before bed (Am. Compl. ¶ 115).

Tyrone M. has been diagnosed with pervasive developmental disorder, developmental coordination disorder, communication disorder, attention deficit hyperactivity disorder; he also has behavioral issues and has become so violent at school that he is prohibited from eating in the school lunchroom and from attending school field trips (Am. Compl. ¶ 117). He has not received medical and psychological treatment for which he has been approved (Am. Compl. ¶ 118). Although his birth mother has voluntarily surrendered her parental rights, neither ACS nor his law guardian have vigorously pursued adoption possibilities for him (Am. Compl. ¶ 120).

Brittney W.

Brittney W. was born in approximately 2008 and has special needs; she was removed from her birth mother's custody in 2011 (Am. Compl. ¶ 122). She was removed from her birth mother's custody because her mother's own mental incapacity and developmental delays prevented her from providing appropriate care for Brittney W. (Am. Compl. ¶ 124). Brittney W. was initially placed into voluntary kinship care with a relative of her birth mother (Am. Compl. ¶ 124). ACS removed her from that home when she was two years of age and placed her in a non-kinship foster home (Am. Compl. ¶¶ 125-26).

Brittney W.'s permanency goal is to be returned to her birth mother. However, the lawyer assigned to represent her in Family Court believes that the mother's mental issues and limitations will prevent her from providing appropriate care for Brittney W. (Am. Compl. ¶ 127). The contract agency to which ACS has delegated Brittney W.'s care and case planning disagrees (Am. Compl. ¶ 127).

In September 2015, Brittney W. started having four-day overnight visits with her birth mother; during these visits, her birth mother was unable to ensure that Brittney W. got to and from school on time and on one occasion, permitted a stranger to return Brittney W. to her foster home (Am. Compl. ¶ 128). On another occasion, Brittney W.'s birth mother struck her in the face (Am. Compl. ¶ 128). Although the contract agency had terminated Brittney W.'s overnight visits with her birth mother as a result of the foregoing, it still intends to return Brittney W. to her birth mother on a trial basis (Am. Compl. ¶ 128). In addition, although Brittney W.'s foster mother has expressed a willingness to adopt her, ACS has not filed a petition to terminate the birth mother's parental rights (Am. Compl. ¶ 128).

Mikayla G.

Mikayla G. was born in 2013 and as of December 2015, had been in ACS custody virtually her entire life (Am. Compl. ¶ 130). She was removed from her birth mother's custody when she was approximately four months old (Am. Compl. ¶ 132). Mikayla G.'s birth mother apparently lacked the financial resources to support herself and Mikayla G. (Am. Compl. ¶ 132). Although Mikayla G.'s birth mother had been in contact with ACS prior Mikayla G.'s removal, ACS did not offer the birth mother any services that would have permitted the birth mother to retain custody (Am. Compl. ¶ 133).

Mikayla G. was initially placed in a non-kinship foster home, at which she was not provided with appropriate formula (Am. Compl. ¶ 134). After approximately one month, Mikayla G. was moved to a second foster home (Am. Compl. ¶ 134). Between 2013 and 2015, Mikayla G.'s case has been assigned to three different caseworkers and two different supervisors (Am. Compl. ¶ 135).

Mikayla G. appears to miss her birth mother and asks to go with her at the conclusion of their weekly visits (Am. Compl. ¶ 137). In March 2015, Mikayla's permanency goal was changed from return to parent to adoption; the Family Court Judge handling Mikayla G.'s case subsequently ordered that the permanency goal be changed back to return to parent (Am. Compl. ¶ 139). Nevertheless, the contract agency to which Mikayla G.'s care had been delegated elected to proceed with a petition to terminate the birth mother's parental rights (Am. Compl. ¶ 139).

Although Mikayla G.'s birth mother wants to be reunited with her daughter, neither ACS nor the contract agency has provided her with any assistance to achieve this goal (Am. Compl. ¶ 140). In addition, although Mikayla G.'s birth mother has indicated that she would like Mikayla G. placed with a relative if her custody cannot be restored, neither ACS nor the contract agency has pursued that option despite the fact that family members have presented themselves to ACS and the contract agency as potential foster parents (Am. Compl. ¶ 141).

Myls J. and Malik J.

Myls J. and Malik M. are brothers who were born in approximately 2010 and 2012, respectively; Malik M. was removed from his birth mother's custody just two days after he was born and Myls J. was removed from his birth mother in 2011 (Am. Compl. ¶ 143). As of 2015, Myls J. had been in ACS custody for virtually his entire life (Am. Compl. ¶ 143).

Shortly after his birth, Myls J.'s 15-year-old birth mother left him with Myls J.'s great grandmother who reported to the Statewide Central Register of Child Abuse and Maltreatment that Myls J. had been abandoned by his birth mother (Am. Compl. ¶ 145). Myls J. was initially placed in a non-kinship emergency foster placement (Am. Compl. ¶ 146). When Malik M. was born, he was placed in the same foster home as Myls J. (Am. Compl. ¶ 147). Malik M. was removed from his birth mother's custody because of her problems with drugs and alcohol (Am. Compl. ¶ 147).

Between 2011 and 2015, the contract agency to which Myls J. and Malik M.'s care has been delegated has assigned twelve different caseworkers to their case (Am. Compl. ¶ 148).

Myls J. and Malik M. had sporadic supervised visits with their birth mother in 2011 and 2012; she stopped attending the visits, however, in August 2012 (Am. Compl. ¶ 149). She had only one visit with Malik M. in 2013; she had no visits with Myls J. that year (Am. Compl. ¶ 149). Neither child had any visits with their mother in 2014 (Am. Compl. ¶ 149). The boys had a visit with their birth mother in July 2015, and in November 2015, the Family Court Judge overseeing their case suspended visits with their birth mother (Am. Compl. ¶ 149).

Myls J. and Malik M. have developed a number of mental health issues. Myls J. has been diagnosed with attention deficit hyperactivity disorder, autistic disorder and pervasive developmental disorder and is in a special education program (Am. Compl. ¶ 152). Although medication has been prescribed to address his attention deficit hyperactivity disorder, he was unable to start taking the medication because the contract agency to which his care had been delegated was not able to get consent from his birth mother (Am. Compl. ¶ 151). Malik M. is also in a special education program.

Although their foster parent has indicated a willingness to adopt them, ACS has not vigorously pursued an action to terminate their birth mother's parental rights, and Myls J. and Malik M. continue to languish in foster care (Am. Compl. ¶¶ 154-55).

Emmanuel S. and Matthew V.

Emmanuel S. and Matthew V. were born in approximately 2001 and 2002, respectively. They are brothers and, as of December 2015, had been in ACS custody since September 2011 (Am. Compl. ¶¶ 158, 160). They were removed from their birth parent's custody because their birth mother suffered from mental health and drug abuse problems, and their birth father suffered from Alzheimer's Disease (Am. Compl. ¶ 160). Upon their removal, a temporary order of protection was issued prohibiting their birth mother from contacting them (Am. Compl. ¶ 160).

Emmanuel S. and Matthew V. were initially placed in a kinship foster home with their cousin (Am. Compl. ¶ 161). Between 2011 and 2013 Emmanuel S. and Matthew V. had occasional visits with their birth mother; during one of these visits, she was accompanied by a male who was subject to a court order prohibiting him from having contact with children (Am. Compl. ¶ 162). Their visits with their birth mother subsequently became more sporadic (Am. Compl. ¶ 162).

In June 2012, Emmanuel S. was diagnosed with adjustment disorder with depressed mood and moderate psycho social stressors; in October 2013 the contract agency reported that Emmanuel S. had experienced "emotional turmoil" over the preceding year because of the problems with his birth mother (Am. Compl. ¶ 165). As result, Emmanuel S. began attending weekly mental health counseling sessions and was later diagnosed with adjustment disorder with a mood psycho social disorder (Am. Compl. ¶ 165). Emmanuel S. also suffers from an eating disorder (Am. Compl. ¶ 165).

In 2012, Matthew V. was exhibiting behavioral problems at school, and expressed being both angry and sad with respect to the relationship with his birth mother (Am. Compl. ¶ 166). He has been diagnosed with adjustment disorder with depressed mood and a psycho social stressor (Am. Compl. ¶ 166).

During their time in foster care, Emmanuel S. and Matthew V. have had at least five different caseworkers; the contract agency to which their care has been delegated did not approve an IEP evaluation, attend any of the IEP meetings or provide other educational support until compelled to do so (Am. Compl. ¶ 167).

Despite a determination by the contract agency in April 2013 that the permanence goal for Emmanuel S. and Matthew V. should be adoption, as of December 2015, the proceeding to terminate the parental rights of their biological parents was still pending and Emmanuel S. and Matthew V. still had not been freed for adoption (Am. Compl. ¶ 169).

The Next Friends

Because the Named Plaintiff Children were all infants at the time this action was commenced, it was brought by twelve adults as "next friends." Of these twelve next friends, only three allege any relationship with the infants they represent. Elisa W.'s next friend, Elizabeth Barricelli, was Elisa W.'s elementary school science teacher from 2006 through 2010 (Am. Compl. ¶ 10). Alexandria R.'s next friend, Alison Max Rothschild, knows Alexandria R. and her foster parents (Am. Compl. ¶ 21). Ayanna J.'s next friend, Meyghan McCrea, has known Ayanna J. since March 2013 and has had regular contact with her since that time; Ms. McCrea has also met Ayanna J.'s foster parent and babysitter (Am. Compl. ¶ 64).

The amended complaint, and plaintiffs' present motion to substitute Yusuf El Ashmawy as a next friend, make the following allegations containing the remaining next friends:

The City seeks the dismissal of all next friends other than Barricelli, Rothschild and McCrea, and opposes the substitution El Ashmawy on the ground that because these individuals have no relationship at all with the Named Plaintiff Children they claim to represent and have not even met the children or their Family Court attorneys, they have not demonstrated that they are "motivated by a sincere desire to advance the best interest of the child [the next friend] seeks to represent, as opposed to the next friends own ideological or political preferences" (Defendant City of New York's Reply Memorandum of Law in Further Support of Its Cross-Motion to Dismiss Certain Next Friends of Plaintiff Children, dated June 1, 2017 (D.I. 383) ("Reply Mem.") at 2).3 The City also seeks the dismissal of Barricelli on the ground that the individual she represents — Elisa W. — has now reached her majority and no longer needs a next friend to prosecute this action. Plaintiffs oppose the cross motion to the extent that it is directed at the Contested Next Friends and argue that the precedents in this District and other Circuits do not require a next friend to know the individual he or she represents. Plaintiffs also oppose the motion on procedural grounds.

III. Analysis

Because the disposition of the City's cross-motion resolves El Ashmawy's motion to intervene, I shall address it first.

A. Applicable Legal Principles and Precedents

Fed.R.Civ.P. 17(c) provides:

Federal courts look to state law to determine capacity to sue Fed.R.Civ.P. 17(b); Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 656-57 (2d Cir. 1999). An infant cannot commence an action in New York. See N.Y. C.P.L.R. § 1201. There is no dispute that the Named Plaintiff Children do not have a guardian appointed for them who could represent them in this action.

There is also no dispute that in order to sue as a next friend, an individual must demonstrate at least two requirements:

Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990).4 The sole issue here is whether, as a result of their lack of any contact with the Named Plaintiff Children, the Contested Next Friends are truly dedicated to the best interests of those children.

Only a small number of cases have addressed the qualifications of individuals seeking to serve as next friends of children in foster care in an action challenging the administration of a local or state foster care system and seeking systemic relief. The most pertinent precedents in this District support the standing of the Contested Next Friends.

In Marisol A. v. Giuliani, 95 Civ. 10533 (RJW), 1998 WL 265123 (S.D.N.Y. May 22, 1998), a number of infant plaintiffs brought an action against ACS and its predecessor agency alleging that, as a result of various acts of misfeasance and instances of non-feasance, the City violated the plaintiffs' rights under the federal and state constitutions and several state and federal statutes. The action was commenced by next friends of the infant children. Like the present motion, the City moved to dismiss the next friends in Marisol A. on the ground theat they "`kn[e]w next to nothing' about the named plaintiffs they represent[ed]" and could not "`demonstrate that they [were] intimately involved with the plaintiffs, [had] first-hand knowledge of the plaintiffs' needs, [had] genuine concern for the plaintiffs' individual situations or [were] the only individuals likely to be able to protect their rights.'" 1998 WL 265123 at *8.

The late Honorable Robert J. Ward, United States District Judge, rejected the City's argument, stating:

1998 WL 265123 at *9.

Similarly, in Child v. Beame, 412 F.Supp. 593 (S.D.N.Y. 1976), children who had been placed in public and private agencies commenced an action challenging the failure of those agencies to place them in adoptive homes. The action was brought by the dean of a local law school, Monroe Freedman, as the next friend of the infant plaintiffs. Unlike the Contested Next Friends here, Freedman had submitted an affidavit attesting that he had spoken with the children he sought to represent. Nevertheless, defendants sought to dismiss Freedman as a next friend, arguing that he was using the children solely to confer jurisdiction on the court to obtain constitutional rulings by individuals who otherwise would clearly lack standing.

The late Honorable Edward Weinfeld, United States District Judge, rejected defendants' argument, stating:

412 F. Supp. at 599.

Several courts outside the Second Circuit have reached similar results in cases arising under similar circumstances. In Sam M. ex rel. Elliott v. Carcieri, supra, 608 F.3d 77, the next friends of children in foster care commenced an action alleging systemic deficiencies in Rhode Island's welfare and foster care systems, resulting in the violation of the children's constitutional and statutory rights. After noting that the next friends had "minimal, to non-existent" relationships with the children, the District Court dismissed the action, finding that the next friends had failed to demonstrate a significant relationship with the children they sought to represent. Sam M. ex rel. Elliott v. Carcieri, 610 F.Supp.2d 171, 181, 183 (D.R.I. 2009).

The Court of Appeals for the First Circuit reversed. After acknowledging that being in foster care often makes it extremely difficult, if not impossible, for a child to form a significant relationship with an adult, the court noted that several decisions, including two from this Circuit "have rejected a rigid application of the significant relationship requirement, holding that the common-law concept of Next Friend is capacious enough to include individuals who pursue a suit in good faith on behalf of a minor or incompetent." 608 F.3d at 91, citing, inter alia, Ad Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free School Dist., 873 F.2d 25, 30 (2d Cir. 1989) and Child v. Beame, supra, 412 F. Supp. at 599. The Court then went on to conclude that while a significant relationship between a next friend and an infant in foster care is desirable, the absence of such a relationship should not preclude the infant's claim where the next friend is dedicated to pursuing the best interests of the infant plaintiff.

608 F.3d at 91-92. See also Tinsley v. Flanagan, CV-15-00185-PHX-ROS, 2016 WL 8200450 (D. Ariz. May 13, 2016) (approving next friends with minimal relationship with infant plaintiffs); M.D. v. Perry, 294 F.R.D. 7, 29 (S.D. Tex. 2013) (factors critical to the determination of whether a next friend is dedicated to a minor's best interests are the individual's familiarity with the litigation, the reasons that move her to pursue the litigation, and her ability to pursue the case on the child's behalf (quotations omitted)).

The leading case reaching a contrary result is T.W. ex rel. Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997). In that case, two African-American children sought damages against several Wisconsin state officials, alleging that they had conspired for racist reasons to remove the children from white foster parents and to place them instead with an African-American relative who had sexually abused the children. The action was brought by a next friend — Scott Enk — whom the court described as "self-described, and . . . self-appointed, children's advocate." 124 F.3d at 896. It appears that Enk had had minimal contact with the plaintiff children. 124 F.3d at 896. Although the Court ultimately affirmed the dismissal of the action pursuant to the Rooker-Feldman doctrine,5 124 F.3d at 898, it was critical of attempts by individuals to bring actions in which they had only an ideological interest. 124 F.3d at 896. However, despite the Court's antipathy to ideologues who seek to act as next friends, it stated that "in desperate circumstances, a stranger whom the court finds to be especially suitable to represent the child's interests in the litigation" could serve as the next friend. 124 F.3d at 897. The Court also stated that, but for the Rocker-Feldman issue in the case, it would consider staying the action and giving Enk the opportunity to seek appointment as a guardian in state court. 124 F.3d at 898.

Similarly, in Carson P. ex rel. Foreman v. Henieman, 240 F.R.D. 456 (D. Neb. 2007), several children in foster care and in the custody of the Nebraska Department of Health and Human Services sought declaratory and injunctive relief with respect to Nebraska's child welfare system. Five of the next friends who commenced the action had little or no contact or history with the children each sought to represent. Defendants moved to dismiss the claims of these next friends, arguing that they lacked standing to bring the action. Although the court in Forman expressed a number of doubts about the suitability of the challenged next friends, it recognized that

240 F.R.D. at 520-21.

Ultimately the Foreman court reserved decision on the suitability of the next friends pending a determination of whether the complaint stated any viable claims that were not precluded by an abstention doctrine. 240 F.R.D. at 521-22.

B. Application of the Foregoing Principles

The City's argument — that the next friends have not demonstrated that they are truly dedicated to the Named Plaintiff Children's best interests — has curb appeal. It seems counter-intuitive that one individual could bring an action on behalf of a second individual without ever having had any contact with the second individual and without any first-hand knowledge of the second individual's actual desires or sentiments. However, children in foster care, such as the Named Plaintiff Children, are subject to unique circumstances that make it unlikely that someone with a substantial relationship is willing to be their proxy in a federal action. "[D]ue to maltreatment, multiple placements, and social psychological issues, foster care children are often unable to forge significant relationships with the adults that are entrusted to protect the children's interests." Sam M. ex rel. Elliott v. Carcieri, supra, 608 F.3d at 89; see also Marisol A. v. Giuliani, supra, 1998 WL 265123 at *9.

The City also argues, correctly, that the Named Plaintiff Children are wards of the Court and that the Court has an obligation to protect their interests. (Defendant City of New York's Memorandum in Opposition to Plaintiff's Motion to Substitute Yusuf El Ashmawy as a Next Friend and in Support of Its Cross-Motion to Dismiss Next Friends of Additional Plaintiff Children, dated Apr. 20, 2017 (D.I. 365) at 17; Reply Mem. at 8). However, the practical consequence of accepting the City's argument that the Contested Next Friends are inadequate representatives does not result in the Named Plaintiff Children getting better, more dedicated champions; the practical consequence is the dismissal of the children's claims without any decision on the merits. It is difficult to understand how a summary dismissal on non-merits grounds protects the interests of the Named Plaintiff Children. The City does not attempt to explain this logical incongruity.

Given the unique circumstances of children in foster care with respect to an action challenging the administration of a foster care system, I conclude that the City's cross-motion should be denied. The City's objection to the Contested Next Friends is that they "have failed to show that they are truly dedicated to the best interests of the sixteen children they purport to represent" (Reply Mem. at 2). However, this action does not seek to change the placement of any plaintiff child. Rather, it seeks to compel compliance with pre-existing constitutional and statutory requirements. The City does not explain how compliance with these requirements could be contrary to the interests of the Named Plaintiff Children.

The City does not argue that there are any specific facts in the backgrounds of the Contested Next Friends impugning the allegation that each has made that he or she is truly dedicated to the best interests of the child each represents or suggesting that any of the Contested Next Friends lack a good faith desire to further the best interests of the Named Plaintiff Children. Nor is there any basis to infer that the Contested Next Friends have undertaken this action in the hope of burnishing their public persona; the names of the next friends in Marisol A. v. Giuliani, supra, 1998 WL 265123, and Child v. Beame, supra, 412 F.Supp. 593, have not become household names or political figures. The facts and circumstances of this case fit squarely within the First Circuit's observation that "the common-law concept of Next Friend is capacious enough to include individuals who pursue a suit in good faith on behalf of a minor or incompetent." Sam M. ex rel. Elliott v. Carcieri, supra, 608 F.3d 91.

In addition, there do not appear to be any other adults willing or able to represent the Named Plaintiff Children in this action. Prior to the commencement of this action, counsel for the Named Plaintiff Children met with the Named Plaintiff Children's biological parents, foster parents or other adult family members (Lowry Decl. ¶ 6). Each had conflicts of interest that would make it "problematic" to serve as a next friend, and apart from Alison M. Rothschild, Meyghan McCrea and Elizabeth Barricelli, counsel was unable to identify adults familiar with the Named Plaintiff Children who could serve as next friends (Lowry Decl. ¶¶ 7-8). See Ad Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free School Dist., supra, 873 F.2d at 30 (approving next friend status for "the only group of adults likely to seek vindication of the Children's constitutional rights").

The City's argument that the Contested Next Friend may not be dedicated to the Named Plaintiff Children's best interests is not persuasive. This action will be concluded with either a litigated resolution or a settlement. Counsel in this matter have appeared before me for several discovery disputes, and the knowledge, insights and thoughtfulness of all counsel has been exceptional. If the matter is resolved through litigation, I am confident that resolution will be the product of vigorous advocacy on behalf of all parties. Alternatively, if the matter is resolved through settlement, the requirement of judicial approval, see Fed.R.Civ.P. 23(e); Local Civil R. 83.2(a) (1), will ensure that any settlement is fair to the Named Plaintiff Children.

In support of its cross-motion, the City relies on a several cases in which next friend status has been denied to individuals seeking to represent inmates6 and the decisions in T.W. ex rel. Enk v. Brophy, supra, 124 F.3d 893, Carson P. ex rel. Foreman v. Heineman, supra, 240 F.R.D. 456. The inmate cases are distinguishable because the inmates in those cases were adults who, unlike the Named Plaintiff Children, had the opportunity to form meaningful relationships with other adults. The inmates were not in the same unique circumstances as children in foster care. See Carson P. ex rel. Foreman v. Henieman, supra, 240 F.R.D. at 521 ("[T]here is a discernable difference between filing a next friend habeas suit in behalf of a prisoner, and filing a next friend civil suit in behalf of a foster child.").

Neither Enk nor Foreman are as broad as the City suggests. Neither case held that individuals without a relationship with an infant plaintiff are categorically excluded from serving as a next friend. To the contrary, the Enk court expressly noted that "in desperate circumstances, a stranger whom the court finds to be especially suitable to represent the child's interests in the litigation" could serve as the next friend. 124 F.3d at 897. In addition, although the Enk court was critical of Enk assuming the role of next friend, it actually affirmed the dismissal on the basis of the Rocker-Feldman doctrine — not because Enk was an inappropriate next friend and not because he was not truly dedicated to the best interests of the children he sought to represent. Similarly, the court in Foreman expressly acknowledged that the challenged representatives might be appropriate next friends and actually decided to hold the suitability determination in abeyance pending a determination of whether the claims should be dismissed for unrelated reasons. 240 F.R.D. at 521-22.

As a number of the cases discussed above recognize, children in foster care constitute a unique group of plaintiffs and determining whether their rights have been violated gives rise to unique challenges. Given the seriousness and permanence of the consequences of exposure to adversity in childhood,7 the status of the Named Plaintiff Children as wards of the court and the unchallenged good faith of the Contested Next Friends, I conclude that the City's cross-motion should be denied as to all Contested Next Friends except Barricelli, that the City's motion should be granted as to Barricelli only8 and that plaintiffs' motion to substitute Yusuf El Ashmawy as next friend for Brittney W. be granted and that plaintiffs' motion to substitute Yusuf El Ashmawy in place of Liza Camellerie as the next friend of plaintiff Brittney W. be granted.9

IV. Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that City's motion to dismiss to dismiss Amy Mulzer, Rachel Friedman, Dawn Cardi, Michael B. Mushlin, Reverend Doctor Gwendolyn Hadley-Hall, Bishop Lillian Robinson-Wiltshire, Liza Camellerie, Elizabeth Hendrix, Samuel Perry as next friends be denied, that its motion to dismiss Elizabeth Barricelli as the next friend of Elisa W. be granted and that plaintiffs' motion to substitute Yusuf El Ashmawy in place of Liza Camellerie as the next friend of plaintiff Brittney W. be granted. If accepted, this Report and Recommendation closes Docket Items 357 and 363.

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b) (1) (c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Laura Taylor Swain, United States District Judge, Room 1440, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983).