B. B. v. Hochul

23-7401-cv
B. B. v. Hochul
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST T ERM 2024
No. 23-7401-cv
B.B., a minor, by his Next Friend J OY ROSENTHAL, on behalf of
themselves and all other similarly situated youth, T.R., a minor, by
his Next Friend C YNTHIA G ODSOE, on behalf of themselves and all
other similarly situated youth, M.P., a minor, by his Next Friend
A DIRA H ULKOWER, on behalf of themselves and all other similarly
situated youth, Z.W. and D.W., minors, by their Next Friend J ENNIFER
MELNICK , on behalf of themselves and all other similarly situated
youth, C.W.C., a minor, by her Next Friend J OY ROSENTHAL, on
behalf of themselves and all other similarly situated youth, J.R., a
minor, by his Next Friend A NNA ROBERTS , on behalf of themselves
and all other similarly situated youth, J.S. and S.S., minors, by their
Next Friend LISA H OYES , on behalf of themselves and all other
similarly situated youth, C.P., a minor, by his Next Friend C YNTHIA
G ODSOE, on behalf of themselves and all other similarly situated
youth, C.C., a minor, by her Next Friend LISA H OYES , on behalf of
themselves and all other similarly situated youth, E.R., A.R., and
M.R., minors, by their Next Friend P EGGY COOPER DAVIS , on behalf
of themselves and all other similarly situated youth,
Plaintiffs-Appellants,
v.
KATHY H OCHUL, in her official capacity as Governor of the State of
New York, S HEILA J. P OOLE, in her official capacity as Commissioner
of the New York State Office of Children and Family Services, C ITY
OF N EW YORK ,
Defendants-Appellees.

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On Appeal from the U.S. District Court
for the Eastern District of New York
ARGUED: DECEMBER 13, 2024
D ECIDED: FEBRUARY 2, 2026
Before: PARK , MENASHI , and KAHN, Circuit Judges.
The plaintiffs are fourteen children who were removed from
their biological parents by New York City officials. Other relatives
sought certifications to foster or adopt the children but were denied
the certifications because of a criminal history or a report of child
abuse or mistreatment. The plaintiffs alleged that New York’s
certification scheme violates their substantive due process rights to
family integrity and to be free from harm. They also alleged that New
York violated their right to procedural due process by not affording
them notice or an opportunity to challenge the denial of a relative’s
application. The district court dismissed the complaint for lack of
standing and alternatively because the plaintiffs asserted only the
rights of third-party relatives.
We conclude that the plaintiffs have standing. The plaintiffs
have suffered a real-world harm: They have been denied a certified
placement with a relative foster parent. The plaintiffs who did not
receive any foster placement have also been denied the medical and
social services provided to children in foster care. The plaintiffs who
were placed in the foster care of non-relatives have also been exposed
to risks of psychological and emotional harms. These are real-world
injuries, traceable to the defendants, and redressable by a favorable

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ruling. The district court erred by ruling otherwise. The district court
further erred by holding that the plaintiffs lack prudential standing.
The plaintiffs are asserting their own rights rather than those of their
relatives. But some claims are moot: Two plaintiffs are now in the care
of a relative foster parent and another has aged out of the foster
system. Only one plaintiff has standing to challenge New York’s
certification scheme for adoption. For these reasons, we reverse in
part, affirm in part, and remand for further proceedings consistent
with this opinion.
LISA FREEMAN (Kathryn Wood and Kimberly R. Schertz,
on the brief), Legal Aid Society, New York, New York, for
Plaintiffs-Appellants.
PHILIP J. L EVITZ (Barbara D. Underwood, Judith N. Vale,
on the brief) for Letitia James, Attorney General of the
State of New York, New York, New York, for State
Defendants-Appellees.
J AMISON D AVIES (Richard Dearing, Claude S. Platton, on
the brief) for Sylvia O. Hinds-Radix, Corporation Counsel
of the City of New York, New York, New York, for
Defendant-Appellee the City of New York.
MENASHI , Circuit Judge:
When a child is removed from his or her biological parents,
New York law requires officials to notify any relatives of the child
who may be able to provide care. Those relatives must apply for
certification to serve as a foster or adoptive parent. A relative who
applies for certification may be disqualified on any of three grounds.

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First, if the relative has been convicted of certain crimes, New York
law requires that the application be denied. Second, if the relative has
been convicted of or charged with any other crime, officials may deny
the application after conducting an assessment. Third, if evidence
suggests that the relative abused or mistreated a child in the past,
officials similarly may deny the application.
The plaintiffs in this case are fourteen children who were
removed from their parents by New York City officials. After the
removals, relatives sought certifications to serve as foster or adoptive
parents but were denied because of their criminal history or reports
of child abuse or mistreatment. The plaintiffs filed this lawsuit,
alleging that New York’s certification scheme violates their
substantive due process rights to family integrity and to be free from
harm. They also allege that New York violated their rights to
procedural due process by not affording them notice or an
opportunity to challenge the denial of a relative’s application. The
district court dismissed the case for lack of standing and alternatively
because the plaintiffs asserted only the rights of third-party relatives
rather than their own rights.
We conclude that the plaintiffs have standing. The plaintiffs
have suffered a real-world harm: They have been denied a certified
placement with a relative foster parent. The plaintiffs who did not
receive any foster placement have also been denied the medical and
social services provided to children in foster care. The plaintiffs in the
foster care of non-relatives have also been exposed to the risks of
psychological and emotional harms. These are real-world injuries,
traceable to the defendants, and redressable by a favorable ruling. The
district court erred by ruling otherwise.

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The district court further erred by holding that the plaintiffs
lack prudential standing. The plaintiffs are asserting their own rights
rather than those of their relatives. But some claims are moot: Two
plaintiffs are now in the care of a relative foster parent and another
has aged out of the foster system. Only one plaintiff has standing to
challenge New York’s certification scheme for adoption. For these
reasons, we reverse in part, affirm in part, and remand for further
proceedings consistent with this opinion.
BACKGROUND
New York City’s Administration for Children’s Services
(“ACS”) removes thousands of children from their parents each year
because of abuse or neglect. After doing so, ACS must notify “any
relatives” of the child and inform the relatives of the opportunity to
care for the child. N.Y. Fam. Ct. Act § 1017(1)(a). The statute defines a
relative as “any person who is related to the child by blood, marriage
or adoption and who is not a parent, putative parent or relative of a
putative parent of the child.” Id. § 1012(m).1 The relative may seek
certification to become a foster or adoptive parent. See N.Y. Fam. Ct.
Act § 1017(1)(a); see also N.Y. Soc. Serv. Law § 376(1). As part of the
certification process, ACS gathers information for a criminal
background check of the applicant and any other adult who resides
in the same household. ACS will also request any records from the
New York State Central Register of Child Abuse and Maltreatment
(“SCR”). The SCR compiles information about reports of child abuse
and neglect. See N.Y. Soc. Serv. Law § 424(2).
1 A putative parent is an “alleged or reputed” but not established parent of
a child. Father, Black’s Law Dictionary (12th ed. 2024).

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Relatives who apply to foster or adopt a child may be
disqualified on any of three grounds. First, the relative’s application
“shall be denied” if the relative has “a felony conviction” involving
“(i) child abuse or neglect; (ii) spousal abuse; (iii) a crime against a
child, including child pornography; or (iv) a crime involving violence,
including rape, sexual assault, or homicide, other than a crime
involving physical assault or battery.” Id. § 378-a(2)(e)(1)(A).
Additionally, the application must be denied for a felony conviction
“within the past five years” for “physical assault, battery, or a drug-
related offense.” Id. § 378-a(2)(e)(1)(B). New York State’s Office of
Children and Family Services (“OCFS”) issues guidelines that
identify the specific offenses within these general categories. The
plaintiffs refer to these provisions as the “mandatory disqualification
system.” J. App’x 58. Federal law conditions federal funding for foster
care and adoption assistance on the implementation of this system.
See 42 U.S.C. § 671(a)(20)(A)(i)-(ii).
Second, the relative’s application “may be denied” if the
applicant or any adult residing in the household has “a charge or a
conviction of any crime.” N.Y. Soc. Serv. Law § 378-a(2)(e)(3)(B).
When the criminal history shows a criminal charge or conviction that
does not require mandatory disqualification, ACS must perform “a
safety assessment of the conditions in the household” and take “all
appropriate steps to protect the health and safety” of the child. Id.
§ 378-a(2)(h). OCFS publishes guidance about how ACS must conduct
the safety assessment, including a list of factors to consider. After
conducting the assessment, ACS has the discretion to approve or
deny the relative’s application for certification as a foster or adoptive
parent.
Third, the relative’s application may be denied if the relative “is
the subject of an indicated report” of child abuse or mistreatment in

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the SCR. Id. § 424-a(2)(a). Before 2022, a report was “indicated” if
“some credible evidence” supported an allegation of abuse or
mistreatment. Id. § 412(7). From 2022 onward, an “indicated” report
must include an allegation supported by “a fair preponderance of the
evidence.” Id. If a relative has an “indicated” report of child abuse or
mistreatment, OCFS’s guidelines direct ACS to consider the
“seriousness of the incident involved in the report; the relevant
circumstances surrounding the report; the time elapsed since the most
recent incident; and information regarding the applicant’s
rehabilitation.” J. App’x 62 (¶ 180). New York State must conduct
these assessments of potential foster or adoptive parents to receive
federal funding. See 42 U.S.C. § 671(a)(20)(A), (B)(i).
New York provides various services and support to foster
children and their foster parents. It issues monthly payments to foster
parents as reimbursement for care-related expenses, including funds
for “transportation, clothing allowance, school related expenses and
miscellaneous expenses.” J. App’x 56 (¶ 161); see N.Y. Soc. Serv. Law
§ 398-a. The benefits also “include coordination and provision of
services for the child’s medical, mental health, and scholastic needs.”
J. App’x 56 (¶ 161). Adoptive parents receive an “adoption subsidy”
and other “post-adoption services” such as “counseling, caregiver
training, clinical and consultative services, and coordinating access to
community supportive services.” Id. at 57 (¶ 163).
Apart from foster care and adoption, New York offers a
temporary route for a relative to care for a child removed from his or
her parents. While a child’s final placement is pending, the family
court may “temporarily place the child with a relative … during the
pendency of the proceeding or until further order of the court.” N.Y.
Fam. Ct. Act § 1017(2)(a)(ii). The plaintiffs refer to this as a “direct
placement.” J. App’x 19 (¶ 16). The plaintiffs allege that children may

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be directly placed with relatives even when those same relatives have
been denied certification to foster or adopt. According to the
plaintiffs, relatives who care for a child under a direct placement
receive more limited benefits than those who foster or adopt. And,
per the complaint, a direct placement may last for years.
ACS removed the plaintiff children from their parents. The
complaint alleges that eleven of the plaintiffs live with a relative
through a direct placement. Two others live in foster homes. The final
plaintiff is over eighteen years old and no longer in state care.2 Each
of the plaintiffs had a relative who sought certification as a foster
parent but was not approved.
The plaintiffs filed this lawsuit under 42 U.S.C. § 1983 on behalf
of themselves and other children who were or will be removed from
their parents and denied a foster or adoptive placement with a
relative. They allege that New York’s certification scheme for foster
and adoptive parents violates their substantive due process rights to
family integrity and to be free from harm. They also allege that the
scheme violates their rights to procedural due process. They named
as defendants the governor, the commissioner of the New York State
Office of Children and Family Services, and the City of New York.3
The plaintiffs seek declaratory and injunctive relief requiring New
York to modify its scheme to provide a more “individualized
evaluation” of prospective foster or adoptive parents. J. App’x 84.
2 Because this plaintiff, M.P., is an adult and has removed himself from
foster care, his claims are moot. See N.Y. Fam. Ct. Act § 1055(e) (“No
placement may be made or continued under this section beyond the child’s
eighteenth birthday without his or her consent.”).
3 The plaintiffs have not challenged the dismissal by the district court of all
claims against the governor.

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On a motion from the defendants, the district court dismissed
the case. See B.B. v. Hochul, No. 21-CV-6229, 2023 WL 5935803, at *13
(E.D.N.Y. Sept. 12, 2023). With respect to the right to family integrity,
the district court held that most of the plaintiffs have no cognizable
injury because they currently live with their relatives. See id. at *6. For
those not living with relatives, the district court held that they could
not trace their separation from relatives to the defendants. See id. at
*8-9. With respect to the right to be free from harm, the district court
again held that the plaintiffs living with relatives had no cognizable
injury because they were not in the care of the state. See id. at *10. For
the remaining plaintiffs, the district court held that they did not allege
constitutionally inadequate treatment but only suboptimal treatment,
which the district court concluded is not a cognizable injury. See id. at
*10-11. In the alternative, the district court held that the prudential
standing doctrine barred the plaintiffs’ claims. See id. at *11-12. The
plaintiffs now appeal.
DISCUSSION
In their complaint, the plaintiffs raise two primary claims. First,
they argue that New York’s certification scheme violates their
substantive due process rights to family association and to be free
from harm. Second, the plaintiffs argue that the Due Process Clause
affords them the right to receive notice of a denied certification and
to challenge the decision of ACS not to certify their relatives as foster
or adoptive parents. The district court dismissed the plaintiffs’
substantive due process claims because the plaintiffs lacked standing.
It did not address the procedural due process claims. In addition, the
district court held that the plaintiffs “do not qualify for prudential
standing” because they asserted the rights of their relatives rather
than their own rights. Id. at *11.

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Generally, “[w]e review a district court’s grant of a motion to
dismiss de novo, accepting as true all factual claims in the complaint
and drawing all reasonable inferences in the plaintiff’s favor.” Schiebel
v. Schoharie Cent. Sch. Dist., 120 F.4th 1082, 1092 (2d Cir. 2024) (quoting
Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)). But “[i]t is
well settled that ‘where a district court grants a defendant’s Rule
12(b)(1) motion to dismiss, an appellate court will review the district
court’s factual findings for clear error and its legal conclusions de
novo.’” Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022)
(alteration omitted) (quoting Aurecchione v. Schoolman Transp. Sys., 426
F.3d 635, 638 (2d Cir. 2005)). To the extent that the district court
“resolved disputed facts” in “aid of its decision as to standing,” we
“will accept the [district] court’s findings unless they are clearly
erroneous.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir.
2016) (internal quotation marks omitted).
We hold that the plaintiffs have standing to raise their
substantive and procedural due process claims. The complaint
plausibly alleges that New York’s certification scheme has deprived
each plaintiff of a relative foster parent and the psychological and
financial benefits that would result from that relationship. These are
real-world injuries that are traceable to the actions of ACS and OCFS
and that could be redressed by a judicial decision in the plaintiffs’
favor. In holding that the plaintiffs lack standing, the district court
erroneously conflated the standing requirements of Article III with
the merits of the plaintiffs’ claims. We further hold that the
“prudential standing doctrine” does not bar the plaintiffs’ claims. The
plaintiffs have suffered individualized harms, and their suit seeks to
vindicate their own rights rather than the rights of their relatives. We
reverse in part, affirm in part, and remand for further proceedings
consistent with this opinion.

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I
“Article III of the Constitution limits the jurisdiction of federal
courts to ‘Cases’ and ‘Controversies.’” Murthy v. Missouri, 603 U.S. 43,
56 (2024) (quoting U.S. Const. art. III, § 2). “For a legal dispute to
qualify as a genuine case or controversy, at least one plaintiff must
have standing to sue.” Dep’t of Commerce v. New York, 588 U.S. 752, 766
(2019). “To establish Article III standing,” a plaintiff must allege “an
injury [that is] concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable
ruling.” Clapper v. Amnesty Int’l, 568 U.S. 398, 409 (2013) (internal
quotation marks omitted). The plaintiff must have “a personal stake
in the outcome of the controversy.” Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
The plaintiff “must, in other words, be able to answer a basic question:
‘What’s it to you?’” Bost v. Ill. State Bd. of Elections, No. 24-568, 2026
WL 96707, at *3 (U.S. Jan. 14, 2026) (quoting Antonin Scalia, The
Doctrine of Standing as an Essential Element of the Separation of Powers,
17 Suffolk U. L. Rev. 881, 882 (1983)). By limiting the judicial power to
cases or controversies, Article III “confines the federal courts to a
properly judicial role.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
The plaintiffs “must demonstrate standing for each claim that they
press and for each form of relief that they seek.” TransUnion LLC v.
Ramirez, 594 U.S. 413, 431 (2021).
The plaintiffs’ substantive claims challenge three aspects of
New York’s certification scheme: (1) mandatory denials for
conviction of certain crimes, (2) discretionary denials for charges or
convictions of any crime, and (3) discretionary denials based on
indicated SCR reports. The plaintiffs allege that these policies violate
(1) the substantive due process right to family association and

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integrity and (2) the right to be free from harm. We consider each of
the three aspects of New York’s certification system in turn.
A
The plaintiffs allege that New York’s mandatory
disqualification rule for approving foster and adoptive parents
violates their substantive due process rights to family integrity and to
be free from harm. Under New York law, a relative’s application to
serve as a foster or adoptive parent must be denied if the relative has
been convicted of certain crimes. See N.Y. Soc. Serv. Law § 378-
a(2)(e)(1)(A)-(B). The complaint explains that the relatives of plaintiffs
B.B., J.R., E.R., A.R., and M.R. were denied certification at least in part
because of a criminal conviction that resulted in mandatory
disqualification. 4 These plaintiffs have standing to challenge New
York’s mandatory disqualification laws for foster parents.
1
First, they have suffered a “concrete injury”: the deprivation of
a relative foster parent and the benefits that would result from that
relationship. TransUnion, 594 U.S. at 425. That is “a factual showing
of perceptible harm.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 566 (1992).
The denial of a relative foster parent and the benefits associated with
that relationship are “tangible” harms, TransUnion, 594 U.S. at 425,
4 In its brief, the City of New York suggests that plaintiff C.C.’s relative was
also subject to mandatory disqualification. See City of New York Br. 30 n.5.
According to the complaint, however, C.C.’s relative was denied
certification because of an SCR report and a “drug related conviction” from
1996. J. App’x 44 (¶ 116). While the record is not entirely clear on this point,
a drug conviction over five years old is generally not a mandatory
disqualifier. See N.Y. Soc. Serv. Law § 378-a(2)(e)(1)(A)-(B). Accordingly, we
consider C.C.’s claims in relation to the discretionary criteria.

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that are “real, and not abstract,” id. at 424 (quoting Spokeo, 578 U.S. at
340). And the harms are “particularized” to these specific plaintiffs.
Id. at 423.
Even if we considered the harm to be “intangible,” the plaintiffs
still have established an Article III injury. “Various intangible harms
can also be concrete.” Id. at 425. Concrete intangible harms include
(1) “injuries with a close relationship to harms traditionally
recognized as providing a basis for lawsuits in American courts,” and
(2) “harms specified by the Constitution itself.” Id. The injuries
alleged here fall into both categories. The plaintiffs allege that
placements with non-relatives make children less likely to find
permanent placements and increase the risk of psychological and
other harms. Such harms have been “traditionally recognized as
providing a basis for lawsuits in American courts.” Id.; see Carey v.
Piphus, 435 U.S. 247, 263 (1978) (noting that “mental and emotional
distress” is “a personal injury familiar to the law”); Gerber v.
Herskovitz, 14 F.4th 500, 506 (6th Cir. 2021) (explaining that emotional
distress “carries a close relationship to a traditional harm” and “has
been part of our common-law tradition for centuries”) (internal
quotation marks omitted).5
The plaintiffs also allege that they have suffered a “harm[]
specified by the Constitution itself.” TransUnion, 594 U.S. at 425. We
have recognized that “the Constitution in at least some circumstances
protects familial relationships from unwarranted government
interference.” Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002); see also
5 The district court appeared to agree. See B.B., 2023 WL 5935803, at *9
(“[T]he Court joins its sister courts in taking a broad view of the concept of
harm attendant to the right to be free from unreasonable intrusions into a
child’s emotional harm.”).

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Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)
(“[T]he Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation’s
history and tradition.”). Because a person has an “interest in
preserving the integrity and stability of her family,” Rivera v. Marcus,
696 F.2d 1016, 1024-25 (2d Cir. 1982), interference with the
relationships that form a family is a “harm[] specified by the
Constitution,” TransUnion, 594 U.S. at 425.
Plaintiffs B.B., J.R., E.R., A.R., and M.R. have also alleged an
injury that implicates the right to be free from harm. The Supreme
Court has recognized that “the Constitution imposes” a “duty” on
states “to assume some responsibility” for an individual’s “safety and
general well-being” when the state takes the person into its custody.
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200
(1989). That responsibility includes appropriate medical care and
services necessary to maintain the individual’s safety. See id. at 198.
At least one court in this circuit has held that the right to be free from
harm includes the right “to appropriate conditions and duration of
foster care.” Marisol A. v. Giuliani, 929 F. Supp. 662, 676 (S.D.N.Y.
1996). In this case, the plaintiffs plausibly allege that the denied
certifications have forced them either to live with non-relatives or to
live with relatives who are not certified as foster parents, depriving
them of medical and social services and placing them at a higher risk
of never achieving a permanent placement. These are also “harms
specified by the Constitution.” TransUnion, 594 U.S. at 425.
In sum, the plaintiffs plausibly allege an Article III injury. The
plaintiffs want to live with relative foster parents but cannot do so.
That is a tangible harm. But even if it were intangible, these are harms
“traditionally recognized as providing a basis for lawsuits in
American courts” and “specified by the Constitution.” Id.

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2
Second, these plaintiffs’ injuries are fairly traceable to the
defendants. See Carter, 822 F.3d at 55. The City of New York, acting
through ACS, refused to certify the plaintiffs’ relatives as foster
parents. These denials followed the guidelines issued by OCFS that
identify which crimes require mandatory disqualification. OCFS also
“oversee[s] ACS and ensur[es] that ACS complies with all
applicable … state laws,” including the ones challenged here.
J. App’x 49 (¶ 134).
3
Third, a judicial decision in the plaintiffs’ favor could redress
their injuries. If New York’s rules requiring mandatory
disqualification of the plaintiffs’ relatives because of the criminal
convictions were held to be unlawful, the defendants could no longer
apply those rules to deny certification to the relatives seeking to foster
B.B., J.R., E.R., A.R., and M.R. That would remove the only alleged
barrier to certification with relative foster parents and would provide
the plaintiffs with the individualized evaluations they seek.6
6 Only B.B. alleges that his relatives seek to adopt him but are unable to do
so because of New York’s mandatory disqualification laws. See J. App’x 23
(¶ 36) (“Despite their hardship, Mr. and Mrs. R. would love to provide
further stability and express their love for B.B. through adoption. However,
based on the statute, Mr. and Mrs. R. are not eligible to be approved as
adoptive parents due to the same mandatory disqualifying conviction that
barred them from foster parent certification.”). For that reason, only B.B.
has standing to challenge the mandatory disqualification rules as applied
to adoption.

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4
The defendants argue that whatever harm these plaintiffs may
have suffered is not traceable to the state or the city because federal
law requires New York to impose mandatory disqualifications as a
condition of receiving federal funding for state adoption and foster
services. Moreover, the defendants insist that any injuries would not
be redressable because the funds the plaintiffs seek come from the
federal government, and if New York removed its mandatory
disqualification requirements, the federal government would no
longer provide those funds.
The federal government, however, does not require New York
to implement the mandatory disqualification laws. It incentivizes
states to do so. In response to that incentive, New York decided to
implement the federal requirements to receive the federal funds. And
that decision caused an injury to these plaintiffs. The plaintiffs’
injuries are thus “fairly traceable to the challenged action of the
defendant[s], and not the result of the independent action of some
third party not before the court.” Lujan, 504 U.S. at 560 (alterations
omitted) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42
(1976)).
The defendants argue that any injury to plaintiff J.R. is not
traceable to their actions because J.R.’s grandmother independently
chose to “relinquish[] custody” before ACS denied certification. State
Defendants Br. 37. According to a family assessment and service plan
dated February 14, 2020, at some point in February, J.R.’s
grandmother asked that J.R. be removed from her home because she
could not “financially provide for [J.R.] via medical insurance.”
Confidential App’x 17. A later assessment says that J.R. was removed
on February 21 because the “home was not approved to be cleared

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and certified by OCFS guidelines.” Id. at 29. The notes do not establish
when J.R.’s grandmother was denied certification and whether she
asked for J.R. to be removed before or after that denial. The district
court did not make a finding on this issue. See B.B., 2023 WL 5935803,
at *8-9.
At the motion-to-dismiss stage, we draw all reasonable
inferences in favor of the plaintiffs, including with respect to facts
relevant to standing. See Warth, 422 U.S. at 501 (“For purposes of
ruling on a motion to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
complaining party.”). Even when a defendant offers extrinsic
evidence to challenge standing, “plaintiffs are entitled to rely on the
allegations in the [p]leading if the evidence proffered by the
defendant is immaterial because it does not contradict plausible
allegations that are themselves sufficient to show standing.” Carter,
822 F.3d at 57.
In this case, it is reasonable to infer that J.R.’s grandmother was
denied certification and asked that J.R. not be directly placed with her
because of her inability to care for him with medical insurance. The
complaint alleges that foster children “are automatically eligible for
Medicaid” when certification is granted. J. App’x 57 (¶ 162). That
suggests that J.R.’s grandmother could have been able to care for him
if granted certification. The Supreme Court has recognized that a
plaintiff may establish standing by showing “that third parties will
likely react in predictable ways.” Dep’t of Commerce, 588 U.S. at 768.
While J.R.’s grandmother asked for him to be removed, the complaint
suggests that the request was a predictable effect of denying
certification. In that way, it was traceable to the actions of the
defendants. Further evidence may show that J.R.’s removal was not

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fairly traceable to the certification decision.7 Based on the record at
this stage, however, J.R. has standing to raise his substantive due
process claim.
B
The plaintiffs argue that the New York law authorizing ACS
and other agencies to deny certification based on any criminal history
violates their substantive due process rights. Under New York law, a
relative’s application to be a foster or adoptive parent “may be
denied” if the applicant or another adult in the household has “a
charge or a conviction” for any crime other than one requiring
mandatory disqualification. N.Y. Soc. Serv. Law § 378-a(2)(e)(3)(A)-
(B). The relatives of plaintiffs T.R., Z.W., D.W., J.S., S.S., C.P., and C.C.
were denied certification under this provision because of their
criminal histories.
With two exceptions, these plaintiffs have standing to raise
their substantive due process challenges. 8 They have suffered an
7 See Lujan, 504 U.S. at 561 (explaining that each element of standing “must
be supported in the same way as any other matter on which the plaintiff
bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation”).
8 Since filing suit, a relative of plaintiffs Z.W. and D.W. was certified as a
foster parent, rendering their claims moot. See Chafin v. Chafin, 568 U.S. 165,
172 (2013) (“It is not enough that a dispute was very much alive when [the]
suit was filed; the parties must continue to have a personal stake in the
ultimate disposition of the lawsuit.”) (internal quotation marks and
alteration omitted). The plaintiffs ask us to assess Z.W.’s and D.W.’s injuries
at the time of the filing of the complaint, arguing that their injuries “are
inherently transitory.” Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993);
see Appellants’ Reply Br. 36-37. But the complaint does not plausibly allege
that the plaintiffs are quickly put into foster placements with relatives such
that the allegedly illegal conduct of the defendants is “capable of repetition,

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injury: the deprivation of a relative foster parent and the associated
benefits that accompany that relationship. The injury is traceable to
the defendants: ACS denied certification to their relatives, and OCFS
oversees ACS’s decisions and publishes guidelines that affect how
ACS exercises its discretion to deny certification on the basis of
criminal history. And the injury is redressable: If a court agreed that
the law authorizing discretionary denials violates the plaintiffs’
substantive due process rights, the court could enjoin the legal
obstacle to the plaintiffs’ relationships with their relatives.
The defendants argue that C.P. has not suffered an injury
because he was never in the care of a relative. After ACS removed C.P.
from his mother, he was taken into ACS custody. C.P.’s uncle offered
to become C.P.’s foster parent, but ACS denied his application
because of a conviction for driving under the influence. C.P. then was
placed in the foster home of a non-relative, and he never spent any
time living with his uncle after being removed from his mother.
That is still a cognizable injury. C.P. seeks foster certification
with his uncle, and ACS prevented and continues to deny such
certification. C.P. claims that the state has thereby destabilized his
family relationship. See Rivera, 696 F.2d at 1024-25. That cognizable
harm is traceable to the defendants’ decision not to certify C.P.’s uncle
as a foster parent. It may be that the defendants are ultimately correct
that the right to family association and integrity does not require the
state to create new living arrangements and to afford those
arrangements legal protection. See State Defendants Br. 31-40. But that
yet evading review.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). The
direct placements may last for years, providing time for judicial review. See,
e.g., J. App’x 21 (¶ 26). We assess the injuries of the plaintiffs at the time of
the appeal; because Z.W. and D.W. live with a relative foster parent, their
claims are moot.

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question addresses whether C.P. will succeed on the merits of his
claim, not whether he has standing to raise it in the first place.9
C
The plaintiffs further argue that the New York law authorizing
ACS to deny certification based on an indicated SCR report violates
their substantive due process rights. Under New York law, a relative’s
application to be a foster or adoptive parent may be denied if the
applicant “is the subject of an indicated report” of child abuse or
mistreatment. N.Y. Soc. Serv. Law § 424-a(2)(a). The relatives of
plaintiffs T.R., C.W.C., J.S., S.S., C.C., E.R., A.R., and M.R. were denied
certification at least in part because of an SCR report.10
The plaintiffs have standing to challenge this aspect of the
certification scheme. All of the plaintiffs were denied a relative foster
parent at least in part because of an SCR report. That is a concrete
injury. It is traceable to the defendants: New York City, operating
through ACS, denied the certifications pursuant to guidelines issued
by OCFS. And if the court agreed with the plaintiffs that this law
9 The named plaintiffs whose relatives were denied certification under the
discretionary criminal history provision do not plausibly allege that their
relatives intend to adopt them. For that reason, the plaintiffs lack standing
to challenge these provisions as applied to adoption.
10 The plaintiffs do not specifically allege that the relative of C.W.C. was
denied because of an SCR report. But the plaintiffs do allege that “ACS
reported that [the relative] could not be certified due to an incident that
occurred in her home over five years earlier while she was serving as a
foster parent. ACS conducted an investigation when a child was injured in
the home, allegedly due to one young child hitting another with a toy. The
investigation was unfounded but [the relative’s] home was closed.”
J. App’x 33-34 (¶ 78).

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violates their substantive due process rights, it could enjoin the
barrier to a foster placement with their relatives.
The defendants argue that the plaintiffs lack standing because
of a recent change to New York law. Starting in 2022, OCFS will not
disclose an indicated SCR report about child mistreatment—as
opposed to abuse—if the report occurred more than eight years ago.
See N.Y. Soc. Servs. Law § 424-a(1)(e)(i)(B)(II). Under the statute,
indicated reports of child mistreatment that are over eight years old
“shall be deemed not relevant and reasonably related to
employment.” Id. § 424-a(1)(e)(iv)(B). And OCFS has issued an
administrative directive specifying that ACS “cannot consider the
existence of such report[s] in determining whether to … approve a
prospective foster home [or] adoptive home.” J. App’x 232 (emphasis
added). In other words, going forward, an indicated SCR report for
mistreatment that is more than eight years old cannot serve as the
basis for denying a relative’s application for certification.
While the SCR reports used to disqualify the relatives of these
plaintiffs are all more than eight years old, for many plaintiffs it is
unclear whether the SCR reports addressed mistreatment as opposed
to abuse. And it is unclear whether the changes will affect the
plaintiffs in any event. The new provisions, at least as presented on
appeal, do not describe a procedure for reconsideration of
applications that were already denied or specify whether the
provisions apply retroactively. The complaint suggests that ACS may
refuse to reconsider a previously denied application. In C.W.C.’s case,
ACS refused to alter its original decision despite learning from OCFS
that the underlying incident in the report was unfounded. See id. at 34
(¶ 79) (“ACS reported that … it had attempted to have [the relative’s]
previous foster care determination overturned [but] ACS’s efforts
were unsuccessful.”) (internal quotation marks and alteration

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omitted). On this record, we cannot say that ACS will reconsider its
prior denials based on the updated statutory scheme. The district
court may consider that issue on remand.11
D
In holding that the plaintiffs lack standing, the district court
decided that the plaintiffs have not suffered a cognizable injury
because the substantive due process rights to family integrity and to
be free from harm do not require the state to place the plaintiffs in
ideal foster settings or to promote specific types of family
arrangements. See B.B., 2023 WL 5935803, at *6-7, *10-11. That
approach conflates the merits of the plaintiffs’ claims with whether
the plaintiffs have standing to pursue the claims.
The district court held that some plaintiffs lack standing
because they currently reside with a relative in a direct placement.
“[I]n this context,” the district court reasoned, “the liberty interest in
the right to family association is implicated only where the
government seeks to remove a child from their familial association.”
Id. at *6. As a result, the district court held that the plaintiffs “failed to
plead an injury to their right to family association and integrity.” Id.
But the reasoning of the district court addressed the scope of the right
to family association and integrity rather than the existence of an
injury-in-fact to the plaintiffs. To the extent that it focused on real-
world harms, the district court acknowledged that the challenged
11 As with the discretionary criminal history provisions, none of the named
plaintiffs whose relatives were denied certification because of an SCR
report have alleged that their relatives intend to adopt them. For that
reason, none of these plaintiffs have standing to challenge these provisions
as applied to adoption.

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policies deprived the plaintiffs of the benefits associated with a foster
placement, “making [the] children worse off.” Id. at *13.
It might ultimately be true that the right to family association
and integrity does not require the government to provide legal
support for foster relationships between relatives. But a plaintiff’s
standing does not depend on the eventual success of his legal theory.
See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S.
787, 800 (2015). “Standing is about who may access the courthouse,
not about the merits of the claims to be heard once inside.” Soule v.
Conn. Ass’n of Schs., 90 F.4th 34, 45 (2d Cir. 2023). “The standing issue
must therefore be resolved ‘irrespective of the merits of the
substantive claims.’” United States v. Vazquez, 145 F.3d 74, 81 (2d Cir.
1998) (alteration omitted) (quoting Bordell v. Gen. Elec. Co., 922 F.2d
1057, 1060 (2d Cir. 1991)).
“For the purposes of the standing inquiry,” a court must
“assume” that the plaintiffs “are correct” on their legal theory. Soule,
90 F.4th at 41; see id. at 48 (“In this procedural posture, we must
assume Plaintiffs are correct [on the merits] and that [the plaintiffs]
are therefore impacted by an unlawful policy.”). The court then may
evaluate whether the legal theory would allow the plaintiffs to obtain
redress for a concrete injury that the defendants caused. See id. at 41
(evaluating standing “[w]ith these assumptions in mind”). The failure
to credit the legal theory when evaluating standing “confuses
weakness on the merits with absence of Article III standing.” Davis v.
United States, 564 U.S. 229, 249 n.10 (2011).
The decision of the district court reflected a similar confusion
with the merits when it considered the plaintiffs’ claims that New
York violated the right to be free from harm. The district court agreed
with the plaintiffs that there is a right to be free from harm and a right

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to “an appropriate duration of foster care.” B.B., 2023 WL 5935803, at
*9. The plaintiffs allege that placement with non-relatives makes
children less likely to find a permanent placement and increases the
risks of psychological and other harms. One plaintiff, while in the
foster care of non-relatives, was diagnosed with ADHD, a major
depressive disorder, a language disorder, and PTSD. J. App’x 37
(¶ 91). Another plaintiff, after placement in a non-relative foster
home, “regressed significantly—needing diapers, even though he has
long been potty-trained, and wetting the bed”—and was “referred for
individual therapy.” Id. at 43 (¶ 110). But the district court concluded
that these harms “do[] not constitute an injury to [the plaintiffs’] right
to be free from harm” because, “as a matter of law, the right to be free
from harm does not require that the government prov[ide] the least
restrictive, optimal placement, or optimal level of treatment.” B.B.,
2023 WL 5935803, at *10. The district court might be correct that the
right to be free from harm does not entitle the plaintiffs to the relief
they seek. But that would be a decision on the merits of their claims.
Whether the plaintiffs are legally entitled to relief does not affect
whether they have standing to seek it.
The plaintiffs allege that New York has denied them a relative
foster parent; has denied the financial, medical, and social services
associated with that relationship; or has exposed them to
psychological harm and instability. Those are actual injuries. The
plaintiffs might not succeed on the merits. In other words, the rights
to family integrity or to be free from harm might not require New
York to alter its certification scheme. But Article III of the Constitution
allows the plaintiffs to obtain an answer to that question from a court.

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II
In addition to their substantive claims, the plaintiffs allege that
the defendants violated their procedural due process rights. They
argue that New York’s certification scheme fails to provide them with
notice that a relative’s application was denied and with an
opportunity to challenge that denial. To be sure, their relatives often
receive notice and limited opportunities to challenge the denials. See,
e.g., J. App’x 38 (¶ 96). But the children do not. The district court did
not expressly address the plaintiffs’ procedural due process claims,
though we presume that it dismissed those claims because of its
decision that the plaintiffs lacked an injury-in-fact and therefore
standing to pursue any claims.
Because the plaintiffs have standing to pursue their substantive
claims, they may pursue their procedural claims as well.
III
After conducting its analysis under Article III, the district court
additionally held that the plaintiffs lacked “prudential standing.”
B.B., 2023 WL 5935803, at *12. According to the district court, the
plaintiffs “assert[] the legal rights and interests” of their relatives, so
the plaintiffs must show “that there is a hindrance or barrier for [their
relatives] to assert their rights in [c]ourt and to protect their own
interests.” Id.
Article III of the Constitution limits the jurisdiction of a federal
court to “Cases” or “Controversies.” In addition to this constitutional
requirement, the Supreme Court has “adverted to a ‘prudential’
branch of standing,” which includes “the general prohibition on a
litigant’s raising another person’s legal rights.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 126 (2014) (quoting Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)). This

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“prudential standing rule requires that an individual ‘assert his own
legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.’” United States v. Suarez, 791
F.3d 363, 367 (2d Cir. 2015) (quoting Rajamin v. Deutsche Bank Nat. Tr.
Co., 757 F.3d 79, 86 (2d Cir. 2014)).
The Supreme Court has recognized that a prudential standing
requirement that exceeds the requirements of Article III “is in some
tension” with the Court’s “reaffirmation of the principle that a federal
court’s obligation to hear and decide cases within its jurisdiction is
virtually unflagging.” Lexmark, 572 U.S. at 126 (internal quotation
marks omitted). But the Court has also suggested that “limitations on
third-party standing” might properly be classified as constitutional
rather than prudential. Id. at 127 n.3.12 We accordingly continue to
apply those limitations.
The plaintiffs in this case do not assert the rights of their
relatives. They assert their own rights to family association and to be
free from harm. The denial of relative foster placements—and the
associated benefits of those placements—harm the plaintiffs. The
complaint does not seek to redress harms to the relatives. The
relatives have not been denied a stable home that prevents them from
achieving a permanent placement. The relatives have not been denied
12 Justice Thomas has explained that “[t]he Court’s previous statements on
the rule against third-party standing have long suggested that the ‘proper
place’ for that rule is in Article III’s case-or-controversy requirement.” June
Med. Servs. L.L.C. v. Russo, 591 U.S. 299, 363 (2020) (Thomas, J., dissenting).
That is because “[w]hen a private plaintiff seeks to vindicate someone else’s
legal injury, he has no private right of his own genuinely at stake in the
litigation,” and a plaintiff cannot “establish a case or controversy by
asserting the constitutional rights of others.” Id. at 364-66.

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medical benefits or been exposed to the emotional and psychological
harms of placement with non-relatives.
The plaintiffs also seek to vindicate their own interests in
procedural due process. New York law requires that a relative who
applies for certification must receive notice when that application is
denied. See N.Y. Soc. Serv. Law § 378-a(2)(g); id. § 424-a(2)(b)(i). The
relative has a limited opportunity to challenge the denial. See id.
§ 378-a(2)(g); id. § 424-a(2)(c). But the plaintiffs did not receive notice
when their relatives’ applications were denied and were not given
opportunities to contest the denials. The plaintiffs claim that the
Constitution entitles not only the relatives but also the children to
notice and an opportunity to be heard. There is no prudential or
constitutional reason to prevent that claim from being considered.
IV
The defendants argue that we may affirm the judgment of the
district court on the alternative ground that, even though the
plaintiffs have standing, they fail to state a claim on the merits. But
“[w]e are ‘a court of review, not of first view.’” Havens v. James, 76
F.4th 103, 123 (2d Cir. 2023) (quoting Decker v. Nw. Env’t Def. Ctr., 568
U.S. 597, 610 (2013)). The district court dismissed the case for lack of
subject matter jurisdiction. While the district court effectively
addressed the merits of the plaintiffs’ claims in the course of that
dismissal, it did so “based on its erroneous conclusion that these
[merits] questions implicated the subject matter jurisdiction of the
federal courts. We therefore vacate the judgment and remand for
further proceedings not tainted by that conclusion.” Baroni v. Port
Auth. of N.Y. & N.J., 161 F.4th 48, 60 (2d Cir. 2025).

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CONCLUSION
The plaintiffs suffered concrete injuries-in-fact when they were
denied placements with relative foster parents. The plaintiffs directly
placed with relatives were denied the medical and social services
available to foster children and the stability of a foster relationship.
The plaintiffs in the care of non-relatives have been exposed to
psychological harm and the risk of being denied a permanent
placement. But the claims of three plaintiffs are moot, and only B.B.
has standing to challenge New York’s certification rules for adoptive
parents. We therefore reverse the judgment in part, affirm in part, and
remand for further proceedings consistent with this opinion.

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