Elisa W. v. City of New York

22-7-cv
Elisa W. v. City of New York


                  United States Court of Appeals
                               for the Second Circuit
                      _____________________________________

                                  August Term 2022

             (Argued: March 8, 2023      Decided: September 19, 2023)

                                      No. 22-7
                      _____________________________________
     ELISA W.; ALEXANDRIA R., by her next friend, ALISON MAX ROTHSCHILD;
     THIERRY E., by his next friend, MICHAEL B. MUSHLIN; LUCAS T., XIMENA
           T., JOSE T.C. and VALENTINA T.C., by their next friend, RACHEL
      FRIEDMAN; AYANNA J., by her next friend, MEYGHAN MCCREA; OLIVIA
      and ANA-MARIA R., by their next friend, DAWN CARDI; XAVION M., by
      his next friend, MICHAEL B. MUSHLIN; DAMEON C., by his next friend,
     REVEREND DOCTOR GWENDOLYN HADLEY-HALL; TYRONE M., by his next
     friend, BISHOP LILLIAN ROBINSON-WILTSHIRE; BRITTNEY W., by her next
       friend, SHAMARA MILLS; MIKAYLA G., by her next friend, MICHAEL B.
          MUSHLIN; MYLS J. and MALIK M., by their next friend, ELIZABETH
        HENDRIX; and EMMANUEL S. and MATTHEW V., by their next friend,
        SAMUEL D. PERRY, individually and on behalf of a class of all others
                                 similarly situated,

                                                              Plaintiffs-Appellants,

                                       — v. —

     THE CITY OF NEW YORK; SHEILA J. POOLE, COMMISSIONER OF THE NEW
 YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, in her official capacity,

                                                            Defendants-Appellees,
     NEW YORK CITY ADMINISTRATION FOR CHILDREN’S SERVICES; STATE OF
   NEW YORK; NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES;
and DAVID HANSEL, COMMISSIONER OF THE NEW YORK CITY ADMINISTRATION FOR
               CHILDREN’S SERVICES, in his official capacity,

                                                                           Defendants.*
                     _____________________________________

Before:      CABRANES, BIANCO, Circuit Judges.**

       Plaintiffs-appellants, nineteen children in New York City’s foster care
system, filed suit alleging “systemic deficiencies” in the administration of the
City’s foster care system in violation of federal and state law. The named plaintiffs
moved to represent a class of all children who are now or will be in the foster care
custody of the Commissioner of New York City’s Administration for Children’s
Services and two subclasses. As remedies, they sought injunctive and declaratory
relief to redress alleged class-wide injuries caused by deficiencies in the City’s
administration—and the New York State Office of Children and Family Services’
oversight—of foster care. The district court (Kimba M. Wood, J.) denied plaintiffs’
motion for class certification. Plaintiffs appealed, arguing that the district court
erred in its analysis of the commonality and typicality requirements under Federal
Rule of Civil Procedure 23(a) and that remand is required for reconsideration of
class certification under the correct legal standard. We agree. Accordingly, we
VACATE the district court’s order denying class certification and REMAND the
case to the district court for proceedings consistent with this opinion.

                                               MARCIA ROBINSON LOWRY, A Better
                                               Childhood, Inc., New York, NY;
                                               (Antony L. Ryan, Justin C. Clarke,
                                               Nicole M. Peles, on the brief, Cravath,



* The Clerk of the Court is instructed to amend the caption to conform with the above.

** Judge Rosemary S. Pooler, originally a member of the panel, died on August 10, 2023.
The two remaining members of the panel, who are in agreement, have determined the
matter. See 

(d); 2d Cir. IOP E(b); United States v. Desimone, 

,
458–59 (2d Cir. 1998).
                                           2
                                              Swaine & Moore LLP, New York,
                                              NY), for Plaintiffs-Appellants.

                                              JAMISON DAVIES (Claude S. Platton &
                                              Richard Dearing, on the brief),
                                              Corporation Counsel of the City of
                                              New York for Sylvia O. Hinds-Radix,
                                              Corporation Counsel of the City of
                                              New York, New York, NY, for
                                              Defendant-Appellee City of New York.

                                              ELIZABETH A. BRODY, Assistant
                                              Solicitor      General,          (Ester
                                              Murdukhayeva, Deputy Solicitor
                                              General, on the brief) for Barbara D.
                                              Underwood, Solicitor General, New
                                              York State Office of the Attorney
                                              General, New York, NY, for
                                              Defendant-Appellee Sheila J. Poole.

JOSEPH F. BIANCO, Circuit Judge:

      Plaintiffs-appellants are nineteen children in the foster care system of the

City of New York (the “City”). They filed suit in the United States District Court

for the Southern District of New York alleging “systemic deficiencies” in the

administration of the City’s foster care system in violation of federal and state law.

The named plaintiffs moved to represent a class of all children who are now or

will be in the foster care custody of the Commissioner of New York City’s

Administration for Children’s Services (“ACS”) and two subclasses. As remedies,

they sought injunctive and declaratory relief to redress alleged class-wide injuries
                                          3
caused by deficiencies in the City’s administration—and the New York State Office

of Children and Family Services’ (“OCFS”) oversight—of foster care.

        The district court (Kimba M. Wood, J.) denied plaintiffs’ motion for class

certification. Elisa W. v. City of New York, No. 15-cv-5273, 

(S.D.N.Y. Sept. 3, 2021). Plaintiffs appealed, arguing that the district court erred

in its analysis of the commonality and typicality requirements under Federal Rule

of Civil Procedure 23(a) and that remand is required for reconsideration of class

certification under the correct legal standard. We agree.

        Accordingly, we VACATE the district court’s order denying class

certification and REMAND the case to the district court for proceedings consistent

with this opinion.

                                 BACKGROUND

   I.      Overview of the City’s Foster Care System

        ACS is charged with protecting the safety and welfare of children in the

City. The City’s charter makes it responsible for ensuring that ACS complies with




                                         4
federal and state law. See 

(10)(a), 383-c, and 384; N.Y. City

Charter ch. 24-B, §§ 615–17.

      As part of its mandate, ACS is required to investigate reports of suspected

child abuse or maltreatment. See 

. Under certain conditions,

ACS may remove children, with pre- or post-removal review by the family court

system, from the custody of their parents or legal guardians. See 

, 1024. Once ACS moves a child into its custody, it seeks to provide the

child with a safe permanent home (i.e., “permanency”). New York law expresses

a preference for achieving permanency by reunifying children with their birth

parents, but permanency may also be accomplished through placement with a

relative, adoptive parents, legal guardian, or another planned permanent living

arrangement. See 

-b(1). Children in the City’s foster care

system are in the legal custody of the ACS Commissioner until a permanent home

is secured.

      Over a decade ago, ACS implemented an initiative called Improved

Outcomes for Children (“IOC”) that delegated the case management

responsibilities for children in its custody to numerous contracting foster care

agencies. Under IOC, ACS’s contracts with these agencies incorporate the 2011



                                          5
Foster Care Quality Assurance Standards, as well as federal, state, and city law.

The contracting agencies are responsible for, among other things, monitoring

children in their foster care settings, ensuring children receive necessary services,

recruiting and supporting foster parents, helping parents access services that

promote safe reunification, and developing and implementing permanency plans

for adoption or kinship guardianship when reunification cannot be achieved. ACS

is responsible for supporting and monitoring the contracting agencies to ensure

that sound and timely decisions are made with respect to the safety, permanency,

and well-being of the children.

      Like all local child welfare agencies in the state, ACS is overseen at the state

level by OCFS. As a condition of receiving federal funding, OCFS is required to

ensure ACS’s compliance with the state plan that New York submits pursuant to

federal law. See 

(a)(3); 

-k. In its oversight

role, OCFS:    publishes regulations and guidance documents; approves and

supervises the IOC; reviews and approves ACS’s individual policies, corrective

actions, and improvement plans; directly oversees ACS’s contracting agencies to

ensure compliance with statutory and regulatory standards; approves and




                                          6
supervises ACS’s initiatives; and collaborates with the United States Department

of Health and Human Services to assess conformity with federal child welfare law.

         In addition to overseeing ACS, OCFS also performs more targeted oversight

of the contracting agencies. For example, the New York Regional Office of OCFS

conducts Voluntary Agency Reviews to determine whether each agency is in

compliance with statutory and regulatory standards.           During these reviews,

personnel from the Regional Office make site-visits to the contracting agencies;

collect and review personnel records, agency policies, and child case records; and

interview children, family, and staff members. Because of the significant resources

these reviews require, they are conducted once every three years.

   II.      Procedural Background

         Named plaintiffs are nineteen children who were in the City’s foster care

system. They commenced this action in 2015, alleging “systemic deficiencies” in

the City’s foster care system and OCFS’s oversight of that system.

         In their amended complaint, plaintiffs assert five causes of action. The first

and second causes of action allege violations of plaintiffs’ rights under the First

Amendment’s freedom of association, the Ninth Amendment’s reservation of

rights to the people, and the Fourteenth Amendment’s substantive due process



                                            7
protections. The third cause of action asserts that defendants are violating the

Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption

and Safe Families Act of 1997. The fourth and fifth causes of action claim that the

City is depriving plaintiffs of their rights under New York State Social Services

Law and regulations adopted thereto, and breaching and failing to enforce the

City’s contracts with the contracting agencies.

      Plaintiffs’ initial motion for class certification was denied by the district

court in 2016, “without prejudice to renewal on an evidentiary record that

demonstrates satisfaction of the requirements of Rules 23(a) and 23(b)(2) as to both

the broad class and appropriate subclasses.” Dist. Ct. ECF No. 282 at 4 (Sept. 27,

2016). Subsequently, the parties engaged in extensive discovery, and plaintiffs

again moved for class certification. In their renewed motion, plaintiffs proposed

a general class of “children who are now or will be in the foster care custody of the

Commissioner of New York City’s Administration for Children’s Services,” and

two subclasses of (1) “all children who have been in ACS custody for more than

two years and whose cases require ‘special scrutiny’ pursuant to ACS policy,” and

(2) “all children for whom Contract Agencies failed to assess and document

compelling reasons every three months to justify the decision not to file a



                                         8
termination of parental rights petition after the children had been in care for 15 of

the prior 22 months . . . .” Joint App’x at 602–03. As part of that motion, plaintiffs

submitted    more    than   one-hundred       documentary    exhibits,   twenty-three

depositions transcripts, and two expert reports. Defendants opposed certification

and moved to exclude the report of plaintiffs’ expert, Dr. Caroline Long, under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 

 (1993).

      The district court denied defendants’ Daubert motion and plaintiffs’ motion

for class certification in an omnibus order. Addressing certification, the district

court concluded that plaintiffs failed to demonstrate questions of law or fact

common to the class and that the claims of the named plaintiffs were typical of the

class. Elisa W., 

, at *7–12. Thus, the court found certification to

be precluded by Federal Rule of Civil Procedure 23(a). 1

      Commonality was lacking, the district court determined, for three

somewhat overlapping reasons.        First, the common questions presented by

plaintiffs were “too broad and generalized.” Elisa W., 

, at *9.

Second, plaintiffs’ allegations did not “flow from unitary, non-discretionary

policies that violate the rights of all class members or cause them all injury.” 

1 Having found commonality and typicality lacking, the district court did not address
the remaining requirements for class certification under Rule 23.
                                          9
Third, the significant role of the New York State Family Court system created

“dissimilarities within the proposed class that impede[d] the generation of

common answers.” 

 (internal quotation marks and citation omitted).

         Typicality, the district court noted, tends to merge with commonality. Thus,

the district court conducted a typicality analysis that mirrored its commonality

inquiry and concluded that the “highly individualized nature of any child’s case”

also precluded a finding of typicality. 

 (pointing to differences in the

length of time children remain in the foster care system and the confluence of

factors that contribute to deficiencies in the foster care system).

         Plaintiffs filed this interlocutory appeal. 2

                                  LEGAL STANDARDS

    I.      Standard of Review

         We review a district court’s certification determination for abuse of

discretion. Barrows v. Becerra, 

 (2d Cir. 2022). “A court abuses its




2 Since this action was commenced, all of the named plaintiffs have left or aged out of
foster care. However, as the district court correctly concluded, class certification may
relate back to the filing of the complaint, where, as here, the putative class of children in
ACS’s custody are “so inherently transitory that the trial court will not have even enough
time to rule on a motion for class certification before the proposed representative’s
individual interest expires.” Comer v. Cisneros, 

 (2d Cir. 1994) (internal
quotation marks and citation omitted).
                                             10
discretion when it rests its decision on a clearly erroneous finding of fact or makes

an error of law.” 

 Thus, although “our review of the legal standards applied by

the district court and the court’s other legal conclusions is de novo,” we review

“the district court’s application of those standards to the facts of the case” for abuse

of discretion. Myers v. Hertz Corp., 

 (2d Cir. 2010). Our review of

district court decisions denying class certification is “noticeably less deferential”

than when a class has been certified. In re Nassau Cnty. Strip Search Cases, 

 (2d Cir. 2006) (internal quotation marks and citation omitted); accord

Barrows, 

.

   II.     Class Certification

         Class actions are governed by Federal Rule of Civil Procedure 23. To

maintain a class action, plaintiffs must demonstrate that “(1) the class is so

numerous that joinder of all members is impracticable; (2) there are questions of

law or fact common to the class; (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class; and (4) the representative

parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.

23(a). These requirements are known as numerosity, commonality, typicality, and

adequate representation. In addition to satisfying these requirements, plaintiffs



                                          11
must also show that one of the three conditions of Rule 23(b) is met. As relevant

here, Rule 23(b)(2) allows for class treatment if “the party opposing the class has

acted or refused to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate respecting the

class as a whole . . . .” Fed. R. Civ. P. 23(b)(2).

                                     DISCUSSION

        The district court erred in its analysis of commonality and typicality under

Rule 23. Therefore, we remand for the district court to reconsider the motion for

class certification, including the two subclasses, under the proper legal framework.

See, e.g., Dunnigan v. Metro. Life Ins., 

, 231–32 (2d Cir. 2002) (remanding

for reconsideration of denial of class certification because the district court’s

commonality and typicality determinations were “premised on an incorrect

assumption about the governing law”).

   I.      Commonality

        To satisfy commonality, plaintiffs must affirmatively demonstrate by a

preponderance of the evidence that there are questions of law or fact common to

the class. Johnson v. Nextel Commc’ns Inc., 

 (2d Cir. 2015). As the

Supreme Court clarified in Wal-Mart, commonality turns on the ability of the



                                            12
action to “generate common answers apt to drive the resolution of the litigation.”

Wal-Mart Stores, Inc. v. Dukes, 

 (2011) (internal quotation marks

and citation omitted). Thus, commonality exists if there is a question such that

“determination of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” 

 This is the “glue” that holds

class members’ claims together.        

.   Even after Wal-Mart, we have

emphasized:

      [C]laims for relief need not be identical for them to be common;
      rather, Rule 23(a)(2) simply requires that there be issues whose
      resolution will affect all or a significant number of the putative class
      members. Where the same conduct or practice by the same defendant
      gives rise to the same kind of claims from all class members, there is
      a common question.

Nextel, 780 F.3d at 137–38 (internal quotation marks and citations omitted).

      Conducting the commonality inquiry requires courts to engage in a

“rigorous analysis” that often “will entail some overlap with the merits of the

plaintiff’s underlying claim.” Wal-Mart, 

 (internal quotation marks

and citations omitted). Thus, “sometimes it may be necessary for the court to

probe behind the pleadings before coming to rest on the certification question.”

Gen. Tel. Co. of Sw. v. Falcon, 

 (1982); B.K. ex rel. Tinsley v. Snyder,

 (9th Cir. 2019) (explaining that post-Wal-Mart commonality

                                           13
inquiry requires “a precise understanding of the nature of the underlying claims”

(internal quotation marks and citation omitted)); Yates v. Collier, 

(5th Cir. 2017) (explaining that Wal-Mart requires courts to “look beyond the

pleadings to understand the claims, defenses, relevant facts, and applicable

substantive law in order to make a meaningful determination of the certification

issues” (internal quotation marks and citations omitted)).

      As explained below, the district court did not determine whether

commonality and typicality exist with respect to each of plaintiffs’ claims. Instead,

it concluded that commonality was lacking as to all alleged harms because

“Plaintiffs’ allegations do not flow from unitary, non-discretionary policies . . . .”

Elisa W., 

, at *9. This approach was legal error requiring remand. 3

          a. Alleged Departures from ACS Policy

      The district court held that, as a matter of law, commonality could not exist

because plaintiffs alleged “departures from ACS policy” that were “case-specific.”

Elisa W., 

, at *9. We conclude that, in making this determination,



3 The parties debate whether our decision in Marisol A. v. Guiliani, 

 (2d Cir.
1997), affirming the certification of a class where plaintiffs alleged abuse and neglect in
the New York City foster care system, survives the Supreme Court’s decision in Wal-Mart.
However, we need not reach this issue because we do not rely on the analysis in Marisol
A. Instead, our decision rests on the district court’s misapplication of Wal-Mart to the
claims in this case.
                                            14
the district court misconstrued both the nature of plaintiffs’ allegations and the

law governing municipal liability.

      In support of their class certification motion, plaintiffs alleged, with

supporting evidence, the existence of several practices by ACS that allegedly

violate their constitutional and statutory rights. These common practices include:

      (1) ACS’s lack of “a process for matching a child’s needs with a

         particular Contract Agency” and its failure to “ensure that its

         Contract Agencies have a process for matching children with

         appropriate families,” Joint App’x at 638;

      (2) ACS’s failure to establish “robust training requirements for

         Contract Agency caseworkers” and to monitor “whatever training

         a Contract Agency does provide,” 

 at 634–35;

      (3) ACS’s failure “to ensure adequate case plans are timely developed

         and implemented,” id. at 659; and

      (4) ACS’s failure “to ensure adequate steps were taken to ensure

         permanency,” id. at 620.

In addition, plaintiffs claimed that OCFS has a longstanding practice of failing “to

effectively exercise adequate and meaningful oversight over ACS and the Contract



                                        15
Agencies,” despite OCFS’s knowledge of the dysfunctions. Id. at 660. 4 Plaintiffs

contend that these practices have plagued the New York City foster care system

and, as a result, “thousands of foster children in the legal custody of [ACS] can

expect to spend over twice as long in care as the nationwide average; and, while

in care, they are all too often retraumatized due to the one of the highest rates of

maltreatment-in-care in the country.” Appellants’ Br. at 1.

      As the district court correctly noted, plaintiffs allege that many of ACS’s

practices are departures from its written policies. For instance, one of plaintiffs’

experts explained that ACS’s lack of a matching process violates its own quality

assurance standards, which require providers to “have specified procedures for

obtaining admission information on children/youth . . . and integrating it into the

immediate service plan, that demonstrates a direct relationship between the plan

goal and the needs of the child(ren)/youth.” Joint App’x at 705 (emphasis omitted)

(internal quotation marks and citations omitted).

      However, that ACS’s practices may be a departure from its stated policies

does not preclude a finding of commonality. We have explained in the foster care




4 Plaintiffs raised two other common questions before the district court, but did not re-
assert those questions on appeal. Thus, any arguments regarding those common
questions are waived. See, e.g., Norton v. Sam’s Club, 

 (2d Cir. 1998).
                                           16
context that city agencies “may be held liable under § 1983 if . . . its top supervisory

personnel, exhibited deliberate indifference to a known injury, a known risk, or a

specific duty, and their failure to perform the duty or act to ameliorate the risk or

injury was a proximate cause of plaintiff’s deprivation of rights under the

Constitution.” Doe v. N.Y.C. Dep’t of Soc. Servs., 

, 145 (2d Cir. 1981).

Thus, 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.

      In addition, to the extent the district court categorically concluded that none

of the class allegations “flow from unitary, non-discretionary policies” and that

they were “too broad and generalized,” as a matter of law to satisfy commonality,

this too was error. Elisa W., 

, at *9. The district court made these

determinations without conducting the “rigorous analysis” of plaintiffs’ particular

claims, including the alleged unitary policies underlying those claims, that Wal-

Mart demands. 

 (internal quotation marks and citations omitted).

For example, the District Court did not address plaintiffs’ argument that foster

children “begin their time in care by being matched with a foster family on an

essentially arbitrary basis.” Appellants’ Br. at 12; see Joint App’x at 304 (alleging



                                          17
that “ACS makes . . . blind placement decision[s]”). Each of the nineteen named

plaintiffs were, according to plaintiffs’ expert, placed in a foster home without

“any kind of ‘matching process’ that that would ensure even a minimal level of

compatibility conducive to a permanent, safe stay . . . .” Joint App’x at 705. For

instance, one of the named plaintiffs, Brittney, a child with special needs, was

placed with a foster family that was not trained to care for children with

developmental disabilities. Another two named plaintiffs, the T.C. siblings, who

are Spanish-speaking children, were placed with a family that did not speak

Spanish.

      Importantly, in their class certification motion, plaintiffs do not allege that

this lack of a matching process is based upon a breakdown of an established

procedure in a particular case, but rather that it is the result of the absence of a

matching procedure. In particular, plaintiffs contend:

      Once a child is placed in foster care, ACS assigns the child to one of
      its Contract Agencies, who is then responsible for placing the child in
      a foster home. Despite recognizing the importance of a child’s
      placement, ACS does not have a process for matching a child’s needs
      with a particular Contract Agency; nor does ACS ensure that its
      Contract Agencies have a process for matching children with
      appropriate families.

Id. at 638 (internal citation omitted).



                                          18
      Whether ACS indeed lacks effective criteria for placements may “generate

common answers apt to drive the resolution of the litigation.” Wal-Mart, 

 (internal quotation marks and citation omitted); see also Jamie S. v. Milwaukee

Pub. Schs., 

 (7th Cir. 2012) (“As the Supreme Court noted in Wal-

Mart, an illegal policy might provide the ‘glue’ necessary to litigate otherwise

highly individualized claims as a class.”). Put simply, ACS either has a practice of

ensuring that appropriate criteria inform placement decisions, or it does not.

Indeed, the State acknowledged at oral argument that a complete lack of matching

criteria would be a common policy. See Oral Argument at 22:53–23:14. 5

      Another alleged common question may be whether ACS has a practice of

delegating care and case planning authority to caseworkers without adequate

training standards. Again, in their class certification motion, plaintiffs asserted

that ACS does not impose “robust” training requirements and that ACS does not

maintain oversight over the Contract Agencies. See Joint App’x at 634. Answering

that question does not involve the circumstances of any individual foster child. If

ACS’s training requirements are so pervasively deficient as to be unlawful, there



5  Although the State conceded that plaintiffs’ claim regarding the lack of matching
criteria would be directed at a common policy, it maintained that plaintiffs failed to
adduce sufficient evidence to support this claim. We address this evidentiary point
below.
                                         19
would not appear to be any impediment to addressing that unlawful practice in

one stroke. See Baby Neal ex rel. Kanter v. Casey, 

 (3d Cir. 1994) (noting

that, in granting class-wide injunctive relief, “a court could, for example, order the

[agency] to develop training protocols for its prospective foster parents . . . . The

district court will thus not need to make individual, case-by-case determinations

in order to assess liability or order relief.”).

       As to the other alleged common practices—ACS’s failure “to ensure

adequate case plans are timely developed and implemented,” Joint App’x at 659,

and that “adequate steps [are] taken to ensure permanency,” id. at 620, and OCFS’s

failure “to effectively exercise adequate and meaningful oversight over ACS and

the Contract Agencies,” id. at 660—the district court likewise failed to explain why

these particular questions would not yield common answers. 6

       The Ninth Circuit’s decision in B.K. is instructive. In B.K., the Ninth Circuit

affirmed the district court’s certification of a class of “[a]ll children who are or will

be in the legal custody of [the state agency] due to a report or suspicion of abuse




6 To be sure, terms like “adequate,” “meaningful,” and “robust” are somewhat vague
and left undefined in plaintiffs’ renewed motion for class certification. We leave it to the
district court to consider on remand whether the vagueness of the plaintiffs’ allegations
constitutes a barrier to class certification.
                                            20
or neglect,” 

, where commonality was based on nine alleged

practices:

             (1) failure to provide timely access to health care, including
             comprehensive evaluations, timely annual visits, semi-annual
             preventative dental health care, adequate health assessments, and
             immunizations; (2) failure to coordinate physical and dental care
             service delivery; (3) ineffective coordination and monitoring of
             [agency] physical and dental services; (4) overuse of congregate
             care for children with unmet mental needs; (5) excessive
             caseworker caseloads; (6) failure to investigate reports of abuse
             timely; (7) failure to document “safety assessments”; (8) failure to
             close investigations timely; and (9) investigation delays,

. As the court explained, regardless of “whether any of these policies are

ultimately found unconstitutional such that the plaintiffs prevail on the merits,

their constitutionality can properly be litigated in a class setting.” 

 Similarly,

reviewing the certification of a 12,000-member class of foster children, where

commonality was predicated on Texas’s alleged policy of allowing caseworkers to

carry excessive caseloads, the Fifth Circuit too affirmed. M.D. ex rel. Stukenberg v.

Abbott, 

, 270–71 (5th Cir. 2018); 

 (holding that the

constitutionality of “the State’s policies with respect to caseload management,

monitoring, and oversight” was properly adjudicated “on a class-wide basis”).

      Finally, the district court’s suggestion that the New York State Family

Court’s role in each child’s case “creates ‘dissimilarities within the proposed class’

                                           21
that ‘impede the generation of common answers’” is grounded on the same

misunderstanding of plaintiffs’ claims that permeates the rest of its analysis. Elisa

W., 

, at *9 (quoting Wal-Mart, 

). In particular, the

district court’s overarching reliance on the family court’s contributions to delays

in permanency as a dispositive factor was misplaced given plaintiffs’ theory of

liability. We reiterate: plaintiffs’ claims turn not on the cause of permanency

delays for any particular child, but on whether ACS’s practices lead to permanency

delays thereby placing all foster children at an unreasonable risk of harm. To

prevail on their substantive due process claim, plaintiffs need not prove that ACS’s

policies are the sole cause of permanency delays but only that its policies are “a

proximate cause” of those delays. Doe, 649 F.2d at 145 (emphasis added). Thus,

answering the question of whether ACS’s policies cause permanency delays may

help drive the resolution of plaintiff’s substantive due process claim regardless of

whether other actors, such as the family court system, also contribute to those

delays.

      In any event, several of the alleged practices do not relate to delay at all. For

example, with respect to the alleged lack of a matching process, plaintiffs focus not

on any delay caused by that practice, but rather on the cognitive disruptions and



                                         22
mental health issues that inappropriate placements cause. See Joint App’x at 638–

40 (detailing the specific harms caused by inappropriate placements). It is unclear

how delays due to the family court system would impede a court’s ability to

generate a common answer to this particular question. In short, the district court

failed to anchor its analysis to each of the specific proposed common questions in

order to determine whether any one of them could generate a common answer.

See Wal-Mart, 

 (“We quite agree that for purposes of Rule 23(a)(2)

even a single common question will do.” (alterations adopted) (internal quotation

marks and citations omitted)).

       Therefore, on remand, the district court should determine whether each of

plaintiffs’ allegations support a finding of commonality given plaintiffs’ theories

of liability.

           b. Evidence Supporting Alleged Practices

       Defendants alternatively argue that, even if plaintiffs sufficiently alleged the

existence of a policy or practice that exposed all children in foster care to a

substantial risk of harm, they failed to submit sufficient evidence to support these

allegations. See City’s Br. at 37 (noting that allegations of “an actual policy that

facially violates the law” still require “evidence that the policy was implemented



                                          23
and injured the class” (alteration adopted) (internal quotation marks and citation

omitted)); State’s Br. at 27 (“[T]he proof presented by the plaintiffs below consisted

of only a handful of isolated statements—many from non-OCFS personnel—that

fell short of constituting proof of a particular and readily identifiable policy that

has class-wide effects” (internal quotation marks and citation omitted)).

      To be sure, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart,

. The party moving for class certification “must affirmatively

demonstrate his compliance with the Rule—that is, he must be prepared to prove

that there are in fact sufficiently numerous parties, common questions of law or

fact, etc.” Id.; see also Nextel, 

 (“The party seeking class certification

bears the burden of establishing by a preponderance of the evidence that each of

Rule 23’s requirements have been met.”).

      Here, although the district court made some reference to weaknesses in the

expert report submitted by plaintiffs, it did not examine the report’s relationship

to each of the plaintiffs’ alleged common practices. Nor did the district court

consider other evidence plaintiffs offered to support the existence and scope of

certain alleged practices. For example, plaintiffs submitted internal ACS talking

points, contracting agencies’ testimony, and other evidence supporting ACS’s



                                           24
alleged lack of a matching process. The district court, having erroneously found

other legal defects in the allegations, did not address the particular evidence

relating to each of the proposed common practices. We decline to do so here in

the first instance and leave that analysis to the district court on remand. See, e.g.,

Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 

, 103–04 (2d

Cir. 2007) (“In light of its categorical approach to Rule 23(a)(4)’s adequacy

requirement, the district court has not addressed these [remaining] questions

[about adequacy] . . . . But we are in no position, and therefore decline, to make

that determination in the first instance.”). 7

    II.   Typicality




7 To the extent the defendants attempt to recast their actual injury argument as an Article
III standing deficiency, we find that position similarly unpersuasive. Defendants first
maintain that plaintiffs have failed to satisfy the injury-in-fact requirement because their
theory of liability depends on a future risk of harm. However, the Supreme Court has
made clear that individuals “exposed to a risk of future harm may pursue forward-
looking, injunctive relief to prevent the harm from occurring, at least so long as the risk
of harm is sufficiently imminent and substantial.” TransUnion LLC v. Ramirez, 

 (2021). Here, not only have plaintiffs alleged a risk of harm that is imminent
and substantial but, in certain instances, they have alleged that the harm has occurred.
As to traceability, plaintiffs sufficiently allege that defendants’ conduct is one cause of
the substantial risk of harm to foster children. See Rothstein v. UBS AG, 

(2d Cir. 2013) (“The traceability requirement for Article III standing . . . is most easily
shown if there is a direct relationship between the plaintiff and the defendant with respect
to the conduct at issue.” (internal quotation marks and citations omitted)), superseded by
statute on other grounds as stated in Twitter, Inc. v. Taamneh, 

 (2023).
                                            25
      “Typicality requires that the claims of the class representatives be typical of

those of the class, and is satisfied when each member’s claim arises from the same

course of events, and each class member makes similar legal arguments to prove

the defendant’s liability.” Barrows, 

 (internal quotation marks and

citation omitted). Thus, where the claims of a class stem from a single course of

conduct, “the commonality and typicality requirements of Rule 23(a) tend to

merge.” Wal-Mart, 

 n.5 (alteration adopted) (quoting Falcon, 457

U.S. at 157–58, n.13).

      Here, the district court largely relied upon its commonality analysis to

support its finding that typicality was not satisfied. Thus, the deficiencies we have

identified in its commonality inquiry can also be found in its handling of typicality.

To provide one example, the district court concluded that “the named [p]laintiffs’

claims cannot be said to arise from the same course of events as those of other

children, because it is not possible to determine what caused a permanency delay,

a specific placement, an untimely or poorly-conceived case plan, or an instance of

maltreatment, without evaluating all of the other contributing facts and

influences.” Elisa W., 

, at *11 (alteration adopted) (internal

quotation marks omitted). As we have discussed above, that conclusion, among



                                         26
other things, fails to address certain allegations (e.g., the lack of a matching

process) that plaintiffs assert are typical across the class. In short, we conclude

that the flaws in the district court’s commonality analysis also permeated its

typicality assessment and, therefore, remand is also required for reexamination of

typicality.

                                           *   *   *

      In sum, on remand, the district court should reconsider whether plaintiffs

have demonstrated commonality and typicality as to the general class and

subclasses, and with respect to each of plaintiffs’ allegations.

                                  CONCLUSION

      For the foregoing reasons, we VACATE the district court’s order denying

class certification and REMAND the case to the district court for proceedings

consistent with this opinion.




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