Valmonte v. Perales

Decision Date31 March 1992
Docket NumberNo. 91 Civ. 2156 (KC).,91 Civ. 2156 (KC).
Citation788 F. Supp. 745
PartiesAnna VALMONTE, individually and on behalf of all others similarly situated, Plaintiffs, v. Cesar PERALES, as Commissioner of the New York State Department of Social Services, and Shirley Harvey Cook, as Commissioner of the Orange County Department of Social Services, Defendants.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Carolyn A. Kubitschek, Lansner & Kubitschek, New York City, for plaintiffs.

Judy E. Nathan, Asst. Atty. Gen., New York City, Ellen Tuckman, Co. Atty. of Orange County, Goshen, N.Y., for defendants.

MEMORANDUM OPINION AND ORDER

CONBOY, District Judge:

Plaintiff Anna Valmonte, whose name is listed in the New York State Central Register of Child Abusers, brings this action pursuant to 42 U.S.C. § 1983 challenging the constitutionality of Central Register's procedures. Currently pending before this Court is defendants' motion to dismiss the complaint. For the reasons that follow, defendants' motion is granted in part and denied in part.

Background
The Central Register

Article 6, Title 6 of the New York Social Services Law ("SSL") governs the recording and investigation of reports of suspected maltreatment (abuse) of children, and the administrative review process by which substantiated reports may be reviewed and, where appropriate, expunged. The Central Register maintains reports of child abuse as one part of a larger system to ensure the safety of children in New York State.

The Central Register procedures are triggered when parties report to the Central Register cases of suspected child abuse or neglect. SSL § 413 places an affirmative duty on designated persons and officials to report to the Central Register when "they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child." Included as mandatory reporters are, inter alia, school officials and registered nurses. Id. Other persons who are not mandatory reporters may also report suspected abuse or maltreatment. The State Department of Social Services ("state DSS") must complete a written report about the suspected abuse or maltreatment and must give the report to the local child protective service within forty-eight hours of the receipt of the initial communication of abuse. SSL § 415.

Upon receipt of a report, the local child protective service must investigate the circumstances and "determine, within 60 days, whether the report is `indicated' or `unfounded.'" SSL § 424(7). A report is indicated "if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists." SSL § 412(11).1 All other reports are "unfounded." SSL 412(10). If a report is expunged, according to procedures outlined below, or is unfounded, state DSS deletes it from the Central Register and destroys all records related to the report. SSL §§ 422(5), 422(8)(c)(i). In any event, state DSS must expunge the report from the central register ten years after the youngest child referred to in the report turns eighteen years of age. SSL § 422(6).

When the subject of a report ("subject") is notified that the report is "indicated,"2 he or she has 90 days in which to request state DSS to expunge the report from the Central Register. SSL § 422(8)(a)(i). When State DSS receives a request that a report be expunged, it must obtain from the local child protective service all material pertinent to the report. SSL § 422(8)(a)(ii).

Following receipt of the material, State DSS conducts a two step review of the report. State DSS must determine first whether there is some credible evidence that the subject committed the acts charged. SSL § 422(8)(a)(ii). If State DSS concludes that there is some credible evidence that the subject committed the acts charged, state DSS must then ascertain whether the acts could be relevant and reasonably related to the subject's participation in child care. See SSL § 422(8)(a)(ii). State DSS must deny the expungement request if both parts of its review are answered in the affirmative. If State DSS finds only that there is some credible evidence that the acts occurred, but does not conclude that the acts are relevant and reasonably related to the subject's participation in child care, State DSS does not expunge the report, but will not disclose it to child care employers and licensing agencies (collectively "child care employers"), who are usually entitled to obtain information from the Central Register. SSL § 422(8)(a)(iv).

If state DSS does not expunge the report, it will schedule an administrative "fair hearing" to review the report. SSL § 422(8)(b)(i). At the hearing, the child protective service must prove that there is some credible evidence that the subject committed the acts constituting the abuse or neglect. SSL §§ 422(5), 422(8)(b)(ii), (8)(c). If the child protective service satisfies its burden, the Commissioner of state DSS must then determine whether the acts could be relevant and reasonably related to the subject's participation in child care. SSL § 422(8)(c)(ii).

If the Commissioner decides not to expunge the report, the subject can commence a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules to challenge the fair hearing decision. The standard of review used by the reviewing court is whether there is substantial evidence in the record to support the commissioner's decision. CPLR Article 78.

The information contained in the Central Register is generally confidential. SSL § 422(4). However, under carefully restricted circumstances, certain parties may inquire of state DSS whether the Central Register contains an indicated report on a specific person. See SSL §§ 422(4), 424-a(1)(a), (b), (c). If, for example, a person applies to a child care agency for a job, the agency must make an inquiry to the Central Register to determine whether an indicated report on the person exists. SSL § 424-a(1). If an indicated report does exist, the Central Register notifies the agency of this fact. See id.

The presence of an indicated report does not automatically bar employment in child care. The employer may approve the application or hire the subject so long as it indicates in the applicant's file its reasons for hiring the subject despite the report. SSL § 424-a(2)(a). If the employer determines not to hire the subject, it must advise the subject of its reasons. SSL 424-a(2)(b)(i). If the reasons include the existence of the indicated report, the subject can request another fair hearing to review the relevance of the report. SSL § 424-a(2)(c). At this fair hearing, the child protective service must show "by a fair preponderance of the evidence" that the subject committed the acts referred to in the report. SSL § 424-a(2)(d). If the child protective service is unable to satisfy its burden of proof, the report is not expunged, but is not revealed to certain parties, inter alia, child-care employers, upon future inquiries. In addition, the employer is notified about the results of the hearing and is requested to reconsider its earlier decision not to hire the subject of the indicated report. SSL § 424-a(2)(e).

Allegations in the Complaint

Defendant Cesar Perales is the Commissioner of state DSS, which oversees the Central Register. Defendant Shirley Harvey Cook is the Commissioner of the Orange County Department of Social Services ("county DSS"), which is the local child protective services agency involved in plaintiff Anna Valmonte's case.

Anna Valmonte is the mother of three children. Amended Complaint hereinafter Compl. ¶ 4. Her youngest child, Jasmine, was born in 1978, became Valmonte's foster child in 1980, and was adopted by Valmonte and her husband in 1988. Compl. ¶¶ 4, 12.

On November 30, 1989, Valmonte hit Jasmine in the face. Compl. ¶ 16. Valmonte alleges that she did not harm Jasmine and that Jasmine did not require medical treatment. Id. On December 1, 1989, a report of suspected abuse was made to the Central Register. Compl. ¶ 17. County DSS employees investigated the charges, and on or about February 8, 1990 "indicated" the report of excessive corporal punishment and inadequate guardianship by Valmonte. Compl. ¶¶ 19, 21. Valmonte then requested that defendant Perales expunge the report, but Perales denied the request. Compl. ¶ 24. Subsequently, on December 3, 1990, Perales held a fair hearing on Valmonte's request for expungement. Compl. ¶ 25. Following the hearing, defendant Perales issued a decision in which he determined not to expunge the report because he found that there was some credible evidence that Valmonte committed the acts charged, and that these acts were reasonably related to employment by a child care agency, to the adoption of a child, or to the provision of foster care. Compl. ¶¶ 26, 27.

On or about February 2, 1990, defendant Cook commenced a proceeding against Valmonte in Family Court, Orange County. Compl. ¶ 20. The Family Court petition alleged that Valmonte had abused Jasmine when Valmonte struck her, and that Valmonte neglected her other two children. Id. On April 3, 1990, the Family Court proceeding was adjourned in contemplation of dismissal, on the condition that the Valmonte family receive counseling. Compl. ¶ 23.

Valmonte alleges that the indicated report will remain in the Central Register until October, 2006. Compl. ¶ 28. She also claims that the report will be "subject to inspection and review by more than 20 different categories of individuals and organizations" and will preclude "plaintiff and members of the plaintiff class ... from working with children." Compl. ¶¶ 28, 31.

Valmonte commenced this action pursuant to 42 U.S.C. § 1983 on March 28, 1991. Her amended complaint contains eight causes of action which will be discussed below. As far as relief is concerned, Valmonte asks this Court to: "1. Declare that defendants' practices vis-a-vis the Central Register...

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5 cases
  • Valmonte v. Bane, 91 Civ. 2156 (AGS).
    • United States
    • U.S. District Court — Southern District of New York
    • August 3, 1995
    ...of this lawsuit have been comprehensively set forth in previous opinions of this Court and the Second Circuit. See Valmonte v. Perales, 788 F.Supp. 745 (S.D.N.Y.1992); Valmonte v. Bane, 812 F.Supp. 423 (S.D.N.Y.1993); Valmonte v. Bane, 18 F.3d 992 (2d Cir.1994). Familiarity with these decis......
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    ...of Child Abuse and Maltreatment ("SCR") supervisors that were sued in their official capacities enjoy same); Valmonte v. Peralesa, 788 F. Supp. 745, 755 (S.D.N.Y. 1992) (holding that the County Social Services Commissioners who supervise SCR enjoy same), rev'd on other grounds sub nom. Valm......
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    ...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 cla......
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