Howard Talenfeld and Ted Babbitt
Howard Talenfeld and Ted Babbitt (Melanie Bell)

Details: From 1986 to 1996, 10 special-needs children were placed in foster care with Judity Leekin by New York’s Administration for Children’s Services. She adopted them and later moved to Florida.

The cases were either managed directly by ACS or St. Joseph Services for Children Inc., Heartshare Human Services and SCO Family of Services.

Case: S.W., et al v. City of New York, et al

Case no: 1:09-cv-01777

Description: Negligence, deprivation of rights

Filing date: April 29, 2009

Judge: U.S. District Judge Eric N. Vitaliano, Eastern District of New York

Plaintiffs attorney: Howard Talenfeld, Colodny Fass Talenfeld Kalinsky & Abate, Fort Lauderdale; Ted Babbitt, Babbitt Johnson Osborne Le Clainche, West Palm Beach

Defense attorney: Steven J. Ahmuty, Shaub Ahmuty Citrin & Spratt, Lake Success, N.Y.

Settlement amount: $17.5 million

Leekin tortured and starved the children. She kept the funds she was paid for their care and used it to live well beyond her means. In July 2007, Florida authorities searched the house, removed the victims and arrested Leekin.

The plaintiffs claimed New York and the affiliated child welfare agencies were recklessly negligent and violated the children’s civil rights. In 2012, the city agreed to settle for $9.7 million. The case proceeded against the three private agencies.

Plaintiffs case: From the late 1990s into the next decade, the city of New York was embroiled in a class action alleging systemic failures in its child welfare system. Talenfeld and Babbitt researched the class action to establish a foundation for their case.

Because Leekin’s children went through the system in the 1980s and 1990s, the plaintiffs attorneys also did considerable research into the children’s records, Talenfeld said.

“We reviewed millions of documents. We created a database of more than 200,000 relevant documents. We had to go back into historical archives. We had to identify critical witnesses, some of them were all over the country,” Babbitt said.

To prevail on the deprivation of civil rights claim, the attorneys had to prove four elements: a systemic failure in policy or practice to protect the children; deliberate indifference by the agencies; the “systemic failure” claim applied to the three private agencies, not just the city; and the statute of limitations had not expired on the lawsuit filed 13 years after the last child was adopted.

Defense case: Ahmuty did not respond to a request for comment.

The court record showed the defendants argued the case should be dismissed because the plaintiffs couldn’t prove the agencies acted “under color of state law” when placing the plaintiffs with Leekin, couldn’t demonstrate the agencies acted with “deliberate indifference,” their conduct was not a “substantial factor” leading to the harm suffered, and a state judicial doctrine deprived the court of jurisdiction.

On the statute of limitations, the agencies argued the children’s claims expired three years after they turned 18. Since three of them were 21, they should be excluded.

Outcome: The turning point came Jan. 17 when Vitaliano denied the agencies’ motions for summary judgment. He ruled two of the three eldest plaintiffs were within the statute of limitations because their case was not actionable until after they became aware the agencies caused them wrong. A third plaintiff suffered mental illnesses that impaired his ability to learn about his underlying claim, leaving issues that could not be addressed on summary judgment.

Vitaliano ruled the private agencies faced liability as state actors and found sufficient factual allegations for a jury to consider.

“It is uncontradicted that none of the agency defendants requested or obtained photo identification from Leekin. Further, none sought to verify the Social Security numbers Leekin gave them, which did not match the aliases she provided,” Vitaliano said.

The agencies were accused of failing to obtain required references, conduct mandatory in-person interviews of those references or verify employment references, he said.

When Leekin lived in Queens, the agencies did not conduct thorough home inspections, allowing her to hide imprisoned children in her basement. They failed to conduct unannounced visits or interview children outside her presence, he said.

The ruling motivated the agencies to seriously consider mediation, Talenfeld said.

Comments: “The city of New York settlement allowed us the confidence to know that our clients were no longer in harm’s way, and the agencies knew the plaintiffs were in a financial position to get to trial. The ruling made a trial date inevitable. We reached agreement in June,” Talenfeld said.

Post-settlement: The plaintiff attorneys filed a motion for court approval of the settlement Aug. 25.