18 F.3d 992 (2nd Cir. 1994), 169, Valmonte v. Bane

Docket Nº:169, Docket 93-7183.
Citation:18 F.3d 992
Party Name:Anna VALMONTE, Individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. Mary Jo BANE, As Commissioner of the NYS Dept. of Social Services, J. Daniel Bloomer, As acting Commissioner of the Orange County Dept. of Social Services, Defendants-Appellees.
Case Date:March 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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18 F.3d 992 (2nd Cir. 1994)

Anna VALMONTE, Individually, and on behalf of all others

similarly situated, Plaintiff-Appellant,


Mary Jo BANE, As Commissioner of the NYS Dept. of Social

Services, J. Daniel Bloomer, As acting

Commissioner of the Orange County Dept.

of Social Services,


No. 169, Docket 93-7183.

United States Court of Appeals, Second Circuit

March 3, 1994

Argued Sept. 2, 1993.

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[Copyrighted Material Omitted]

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Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY, for plaintiff-appellant.

Judy E. Nathan, Assistant Attorney General, New York, NY, (Robert Abrams, Attorney General of the State of New York, Albany, NY, of counsel), for defendant-appellee Mary Jo Bane.

Stephen Toole, Senior Assistant County Attorney, Orange County, NY (Stephen Hunter, County Attorney, Orange County, NY, of counsel), for defendant-appellee J. Daniel Bloomer.

Before FEINBERG, CARDAMONE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Plaintiff-appellant Anna Valmonte appeals from a judgment of the United States District Court for the Southern District of New York (Conboy, J.) dismissing under Fed.R.Civ.P. 12(b)(6) her claim brought under 42 U.S.C. Sec. 1983. Valmonte brought her claim against the Commissioner of the New York State Department of Social Services and the Commissioner of the Orange County Department of Social Services (collectively "the appellees" or "the state") alleging that their inclusion of her name on the New York State Central Register of Child Abuse and Maltreatment ("the Central Register" or "the list") violated her Fourteenth Amendment right of due process. Valmonte's amended complaint raised numerous challenges to the statutory scheme of the Central Register.

Following a motion to dismiss, the district court granted the motion in part and denied it in part, dismissing most of Valmonte's claims. Valmonte v. Perales, 788 F.Supp. 745, 755 (S.D.N.Y.1992) (summarizing holding) ("Valmonte I "). The district court denied the motion with respect principally to Valmonte's claim that she had stated a cause of action alleging that the state's publication of Valmonte's status on the Central Register to prospective employers violated her due process rights. See id. at 752-53. Subsequently, the district court sua sponte reconsidered the motion to dismiss, and dismissed all of the claims. See Valmonte v. Bane, 812 F.Supp. 423, 426 (S.D.N.Y.1993). Valmonte has now appealed.

The major issue presented in this appeal is whether the state's maintenance of a Central Register that identifies individuals accused of child abuse or neglect, and its communication of the names of those on the list to potential employers in the child care field, implicates a protectible liberty interest under the Fourteenth Amendment. If so, we must also determine whether the state's statutory procedures established to protect the liberty interest are constitutionally adequate.

For the reasons stated below, we hold that the dissemination of information from the Central Register to potential child care employers, coupled with the defamatory nature of inclusion on the list, does implicate a liberty interest. We also hold that the procedures established violate due process, primarily because the risk of error in evaluating the allegations against those included on the list is too great. Accordingly, we reverse the judgment of the district court, and remand for further proceedings not inconsistent with this opinion.


Valmonte is attempting to represent a class of individuals whose names are listed on

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the state's Central Register as a result of a finding by state or county Departments of Social Services ("DSS" or "the department") that they are in some way abusive or neglectful with regard to children. A full explanation of the nature of the statutory scheme establishing the Central Register is necessary for an understanding of the issues in this case.

I. Statutory Scheme

Valmonte is challenging the state's system for collecting and storing information about allegedly abusive and neglectful individuals. Article 6, Title 6 of the New York Social Services Law governs the recording and investigation of reports of suspected maltreatment of children, and the administrative review process by which substantiated reports may be reviewed. See N.Y. Soc.Serv. Law Sec. 411-428 (McKinney 1992) (as amended 1993) ("SSL"). The Central Register maintains reports of child abuse as part of a larger system to ensure the safety of children in New York, SSL Sec. 411, and is maintained by both the state and various county departments of social services. SSL Secs. 422(1), 423(1), 424(2).

  1. Reporting and Initial Placement on Register

    The Central Register procedures are triggered by reports to the Central Register of suspected child abuse. See generally SSL Sec. 415. The state DSS maintains a telephone hotline with a toll-free telephone number that is staffed full-time in order to receive complaints. SSL Sec. 422(2)(a). State law places an affirmative duty on designated individuals such as health care workers, social workers, law enforcement agents, judicial officers, and education employees to report to the Central Register whenever they have reasonable cause to suspect that a child is maltreated. SSL Sec. 413. Calls to the hotline can be made, however, by any individuals, not only those with affirmative duties of reporting.

    Upon receiving a complaint of suspected child abuse, hotline operators must determine whether the allegations, if true, would be legally sufficient to constitute child abuse. SSL Sec. 422(2)(a). If so, the operator records the complaint on paper and relays it to the appropriate county or local DSS. Id. The local DSS is responsible for investigating all complaints of suspected child maltreatment, SSL Sec. 423(1), and must investigate the truth of the charges and complete an investigation within 60 days. SSL Sec. 424(7).

    At the conclusion of the investigation, the local department must determine whether the complaint is "unfounded" or "indicated." Id. Unfounded reports are expunged from the Central Register and all records destroyed. SSL Sec. 422(5). If the local DSS finds that there is "some credible evidence" to support the complaint, the complaint is marked "indicated" and the individual who is the subject of the report is listed on the Central Register. Id.; SSL Sec. 412(12). The Central Register accepts the findings of the county department, without making an independent determination.

  2. Confidentiality of Central Register Determinations

    As noted earlier, the information in the Central Register is generally confidential. SSL Sec. 422(12). The names of individuals on the Central Register are not publicly available, although there are numerous exceptions for, among others, public agencies, law enforcement personnel, and judicial officers. SSL Sec. 422(4)(A).

    More significant, for purposes of this case, are the statutory provisions requiring certain employers in the child care field to make inquiries to the Central Register to determine whether potential employees are among those listed. The purpose of these provisions is to ensure that individuals on the Central Register do not become or stay employed or licensed in positions that allow substantial contact with children, unless the licensing or hiring agency or business is aware of the applicant's status. Numerous state agencies, private businesses, and licensing agencies related to child care, adoption, and foster care are required by law to inquire whether potential employees or applicants are on the Central Register. SSL Sec. 424-a(1). For purposes of simplicity, this group will be referred to as "employers," even though licensing

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    agencies are included within that designation.

    When such employers make an inquiry, the state DSS will inform the potential employer if the individual is the subject of an indicated report on the Central Register. SSL Sec. 424-a(1)(e). The state DSS will not inform the employer of the nature of the indicated report, but only that the report exists. If the potential employee is on the list, the employer can only hire the individual if the employer "maintain[s] a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate" for working in the child or health care field. SSL Sec. 424-a(2)(a).

  3. Procedures for Appealing Initial Listing

    There are certain procedures established by the statutory scheme to allow individuals included on the Central Register to appeal their designation. When a local DSS finds that a report is "indicated," the subject of the report is notified and has 90 days to request that the report be expunged. SSL Sec. 422(8)(a)(i). If a request is made, the state DSS is required to gather the material pertinent to the indicated report and conduct a two-step review. First, the state DSS must determine whether there is "some credible evidence" that the subject committed the acts charged. SSL Sec. 422(8)(a)(ii). In the second step of the review, the state DSS must also ascertain whether the acts alleged could be "relevant and reasonably related" to the subject's employment in any child care provider area. Id.

    If there is no credible evidence of child abuse or maltreatment, the state DSS must expunge the record and notify the subject. SSL Sec. 422(8)(a)(iii). If there is some credible evidence, and the department finds that the allegations are reasonably related to child care, the department must deny the expungement request. SSL Sec. 422(8)(a)(v). Finally, if there is some credible evidence of the act, but a finding by the department that the...

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