Three children in silhouette

Special needs children suing placement agencies after enduring years of abuse from a con artist who adopted them have overcome timeliness barriers to some—but not all—of their claims, a federal judge ruled.

In a case that grabbed national headlines, Florida authorities removed the children in 2007 from their adoptive mother, Judith Leekin, after learning of beatings, imprisonment, neglect and other forms of mistreatment.

Leekin’s scheme stretched back more than 25 years and originated in New York City where she used fake identities and documents with city officials and private foster care agencies to gain custody of the children and then adopt them.

Ten of the 11 children Leekin adopted sued the agencies and the city in 2009 for failing to properly screen Leekin and uncover her inconsistencies. The plaintiffs are now between 22 and 33 years old.

The city settled its portion of the suit for $9.7 million in 2012.

On Jan. 17, Eastern District Judge Eric Vitaliano (See Profile) denied a request by placement agencies for summary judgment in part, allowing eight plaintiffs—including three over 21 years old before the complaint’s filing—to proceed with a federal civil rights claim.

He let five of the eight plaintiffs press their state common-law negligence claims but ruled that the claims of three were time-barred.

He also dismissed the civil rights claim of two plaintiffs placed by the city; the pair did not sue the private agencies for negligence.

Ruling in S.W. v. City of New York, 09-cv-01777, Vitaliano identified numerous factual issues, such as the sufficiency of the agencies’ supervision.

“While not all of the failures that plaintiffs raise would necessarily amount to gross negligence individually—and some may not have been negligent at all—taken together, they unquestionably present disputed issues of fact as to whether the agency defendants engaged in ‘repeated acts of negligence’ sufficient to constitute deliberate indifference,” he wrote.

Vitaliano noted the agencies’ arguments that their policies were reasonable for the time. Moreover, the defendants said Leekin “consistently presented as an excellent parent” with credentials that “would have fooled any reasonable investigator.”

“And, it may be so,” said Vitaliano. “This is a classic disputed issue of fact.”

From 1986 to 1994, the plaintiffs were removed from their homes and subsequently sent to Leekin.

Eight were sent via the agencies SCO Family of Services, HeartShare Human Services of New York and the now-shuttered St. Joseph Services for Children and Families.

Leekin and the children moved to Florida in 1998.

Southern District prosecutors said Leekin banked $1.68 million in subsidies for her foster care and adoption of the special needs children while subjecting them to abuse.

In 2008, Leekin was sentenced to almost 11 years for her scheme.

In 2009, a Florida state judge handed down a 20-year sentence for counts including aggravated child abuse, running concurrently with the federal sentence.

The agency defendants have argued that the federal civil rights claims and the state common law negligence claims were time-barred in the case of three plaintiffs over the age of 21.

In New York, the statute of limitations on both a §1983 claim and a negligence claim is three years, tolled until age 18 for minors. When those claims accrued was “hotly disputed,” said Vitaliano.

The judge noted that a federal §1983 claim accrues when a plaintiff “knows or has reason to know of the allegedly impermissible conduct and the resulting harm”—a concept of accrual dubbed the “discovery rule.”

Here, Vitaliano said the “pertinent question is when plaintiffs knew, or should have known, that the agency defendants had committed the conduct that plaintiffs allege led to their placement with Leekin.”

The children argued—and the agencies did not challenge— that they couldn’t have known they were “wrongfully placed” in foster care until Leekin was arrested in July 2007.

“Thus it is not necessary to determine when, exactly, accrual of each plaintiff’s §1983 claim occurred; it is sufficient to say that it could not have occurred while plaintiffs were in Leekin’s custody,” Vitaliano said.

The trio’s negligence claims were a “different matter,” the judge said. They argued the “discovery rule” for the civil rights claim also applied to the negligence claims, but Vitaliano said that was not the case for torts under New York law.

They also said equitable tolling should apply—a theory used in federal court when, according case law, “as a matter of fairness … a plaintiff has been prevented in some extraordinary way from exercising his rights.”

Vitaliano said though the case’s facts “might well merit such extraordinary intervention,” the negligence claim was “governed by state law, and New York law does not recognize the federal rule of equitable tolling.”

New York does recognize the doctrine of equitable estoppel, but the agencies were not alleged “to have deceived or misled plaintiffs regarding timely filing of their claims,” so they could not invoke equitable estoppel either.

“We think this is an excellent ruling. The judge recognized that the plaintiffs are entitled to their day in court” said William Kapell of Children’s Rights, who is a lead counsel at the organization.

Marcia Lowry and Melissa Cohen of Children’s Rights also appeared for the plaintiffs.

The plaintiffs are also represented by Thomas Moore of Kramer, Dillof, Livingston & Moore; Theodore Babbitt, Stephan Le Clainche and Ami Romanelli of Babbitt, Johnson, Osborne & Le Clainche in West Palm Beach, Fla.; Howard Talenfeld of Colodny, Fass, Talenfeld, Karlinsky & Abate in Fort Lauderdale and John Walsh, also of Fort Lauderdale.

Steven Ahmuty, Jr., Marc Citrin and William Spratt of Shaub, Ahmuty, Citrin & Spratt represent the agency defendants. The firm did not respond to a request for comment.

At Shaub Ahmuty, the agency defendants are also represented by Jeremy Rosof, Judd Cohen, Timothy Robert Capowski, Adam Covitt, Craig Garrett Bienstock, John Paterniti, Juan Gonzalez, Ralph Vincent Morales, Robert Boccio, Robert Ortiz and Steven Rubin.

A court conference is scheduled for Feb. 7, with the topics including settlement.

The litigation has sparked two third-party actions, where both the city and the agencies are suing Leekin and others. The third-party actions are pending and unaffected by Vitaliano’s ruling.