Covell ex rel. Johnson v. County of Oswego
| Decision Date | 05 September 2001 |
| Docket Number | No. 94CV0223(LEK)(RWS).,94CV0223(LEK)(RWS). |
| Parties | Joshua J. COVELL, Katrina M. Barr, Branden M. Barr, and Jonathan L. Johnson, Infants Under the Age of Eighteen Years by and Through Their Parent and Natural Guardian Deborah Barr JOHNSON; Deborah Barr Johnson; and Walter Johnson, Plaintiffs, v. COUNTY OF OSWEGO; Steven Rose; Colleen A. Kehoe; Mary Moe; Oswego County B.O.C.E.S.; Tonya Coe; Dawn Butler; Mary Winston Morton, aka Missy Morton; Douglas Biklen; and Syracuse University, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Alan S. Zwiebel, Zwiebel, Brody Law Firm, Kingston, NY, for plaintiffs.
Lori E. Petrone, Petrone, Petrone Law Firm, Utica, NY, Ellen S. Weinstein, Pinsky Skandalis Law Firm, Syracuse, NY, for County of Oswego, Steven Rose, Colleen A. Kehoe, defendants.
Ellen S. Weinstein, Pinsky Skandalis Law Firm, Syracuse, NY, for Mary Moe, Oswego County B.O.C.E.S., Tonya Coe, Dawn Butler, defendants.
Presently before this Court is a motion for summary judgment filed by defendants County of Oswego, Steven Rose and Colleen A. Kehoe ("Defendants"), the only remaining defendants in the action. For the reasons set forth below, the motion is GRANTED.
Plaintiffs filed the instant civil rights complaint, pursuant to 42 U.S.C. § 1983, alleging numerous violations of their constitutional rights arising from the investigation and prosecution of child abuse complaints against plaintiffs Deborah Barr Johnson, now Deborah Ramos, ("Deborah") and Walter Johnson ("Walter"). Plaintiff Joshua Covell ("Joshua") is an autistic child of Deborah. At the time of the alleged constitutional violations, Joshua was eleven and living with Deborah, Deborah's other children and Walter, her then fiancé. He was also attending school at the Oswego County B.O.C.E.S. program.
In 1992, staff members at the school began to use a technique called "facilitated communication" with Joshua in order to treat his autism. Facilitated communication is a method by which a "facilitator" provides physical assistance to an individual thereby allowing him or her to more easily spell out words using a variety of spelling devices. It is used to give the individual more control over the movements of his or her hands while typing or indicating a message by other means.
In October of 1992, faculty and staff at Joshua's school claimed that his facilitated communications indicated that Walter was sexually abusing him at home and that his mother, Deborah, was aware of it. Accordingly, the school filed a report of suspected abuse with the New York State Central Register for Child Abuse and Neglect ("Central Register"). This report was referred to the Oswego County Department of Social Services ("Social Services"), the Commissioner of which was defendant Steven Rose ("Rose"). Defendant Colleen Kehoe, now Colleen Kehoe Warner ("Kehoe"), was the caseworker assigned to investigate the matter.
During the course of her investigation, Kehoe interviewed some of the child plaintiffs at their schools, along with school faculty and staff. During the course of those interviews, she learned that Joshua had been acting aggressively towards other children and masturbating at school. Further, she learned that "there were rumors" surrounding the possible sexual abuse of plaintiff Katrina M. Barr ("Katrina"). On November 3, 1992, Kehoe received a call from Sheriff's Department Investigator Ling ("Ling"), who had been assigned to assist her with the case. Ling informed Kehoe of an earlier interview with Katrina in which Katrina alleged that a cousin had sexually abused her.
On November 3, after having received this information, Kehoe telephoned Deborah and informed her that she had received a report concerning child neglect in her home. Deborah informed her that there were no serious problems at home. On November 9, Kehoe received a call from Joshua's teacher, who told her that Joshua was making statements that his mother was in danger from Walter. Accordingly, Kehoe conducted a home visit to Plaintiffs' residence on November 10 and attempted facilitated communications with Joshua unsuccessfully.
Kehoe spoke with an employee of the children's family doctor on November 13. She learned that several of the children were suffering from behavioral and other problems, and that the children had missed numerous appointments. In fact, she was told that the doctor would no longer treat the children because they missed so many appointments. After speaking with Kehoe, an employee of the doctor's office transmitted a report of suspected child abuse to the New York State Department of Social Services.
Kehoe received another call from Joshua's teacher on November 16. In that conversation, she claimed that Joshua had indicated through facilitated communication that Walter had recently sexually assaulted him. That same day, Deborah visited Social Services. Kehoe explained to her what she had learned about the children's missed appointments and the reported sexual abuse of Katrina and told her that Social Services was concerned that someone was having sexual contact with Joshua. Deborah indicated that there was no one in the house the children could be having sexual contact with. Kehoe informed Deborah that there would be a criminal investigation of sexual abuse in her home and that she would continue to remain in contact with her.
On November 23, Kehoe's supervisor informed Kehoe that Joshua's teacher had called to inform her that Joshua was expressing through facilitated communication that he had been sexually abused the previous Saturday evening, November 21. Kehoe went to Joshua's school the next day and participated in facilitated communication with the assistance of Joshua's teacher. She claims that, when she asked what she could do to help, Joshua responded through facilitated communication "Stop Walter — quit sex." Plaintiffs dispute that Joshua responded to her question in any way.
The following day, over three weeks after receiving the initial report of suspected abuse, Kehoe went to the Plaintiffs' home, accompanied by a sheriff's deputy, in order to remove the children from the home. Rather than have the children removed, Walter asked if he could instead leave the home. After consultation with her supervisor, Kehoe granted Walter's request and informed him that he was required to stay away from the house and have no further contact with the children until the matter was resolved.
In a telephone conversation with Joshua's teacher on November 30, Kehoe informed her that Walter had been removed from the home. Joshua's teacher replied that Joshua had told her that "there was no sex" that weekend. Joshua's teacher also informed Kehoe that she was concerned by the fact that Deborah's brother Timothy Covell ("Timothy"), whom she believed to be a known sex abuser, was staying with the family. Kehoe also received a phone call on November 30 from a woman named Rita Vincent, who told her that Timothy was staying with Deborah and that he had been convicted of abusing Katrina the previous year. Finally, on December 4, Kehoe received a phone call from a woman claiming to be Deborah's sister, Becky Rawson. This woman allegedly stated that she knew that Timothy had sexually molested Katrina the previous year and that he was living in the home.
Upon further investigation, Kehoe discovered that Timothy had been arrested in September 1990 for unlawfully dealing with a child and in May 1991 for first degree sexual abuse. She also learned that he had pled guilty to endangering the welfare of a child and had been ordered not to have any unsupervised contact with Katrina. On December 11, 1992, Kehoe contacted Deborah to express her concerns about Timothy. Deborah responded by telling Kehoe that Timothy would be asked to leave the home, although she claimed that the situation was "no big deal" and that Timothy "wouldn't do anything to hurt the kids."
A physical examination of Joshua and Katrina was performed on December 1. The examination did not reveal any evidence of physical abuse. On December 22 Kehoe filed a petition in the Family Court of Oswego County seeking to remove the children from their home because of the risks that Kehoe believed existed to the children there. The following day, December 23, the Family Court Judge issue a Temporary Order of Protection prohibiting, among other things, Walter from having contact with the children.
Per Kehoe's request, a Social Services Caseworker, Michael J. Kanalley ("Kanalley"), was assigned to the case on December 14. Following the protective order's issuance, Social Services began providing services to the household. In addition, a Family Preservation Services Counselor at Oswego County Catholic Charities ("Catholic Charities") provided services to the family. On several occasions, Kanalley made unannounced visits to the home and found Walter there. Kanalley also received a report from Catholic Charities that Walter had been in the home, although the children were not present at the time.
During the Family Court proceedings, Kehoe's investigation continued. On January 4, 1993, she received a call from William Barr ("Barr"), father of plaintiffs Katrina and Brandon Barr. Barr informed her that he believed Deborah was able to manipulate Katrina to lie about things that were happening in the home.
In a conversation with Joshua's teacher on January 15, 1993, Kehoe was informed that Joshua had not stated anything, by way of facilitated communication, about the alleged abuse. However, she was told that he had expressed anxiety about going home and had made explicit reference to sexual activity when asked what he had done over the holiday break. Moreover, Kehoe was told that when Joshua was asked what was bothering him, he had stated, "Daddy today." On March 31, 1993, following several months of legal proceedings, which included discovery demands from...
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Czechorowski v. State
...position could not have relied on the report's conclusion that L.B.'s claims were credible. See, e.g., Covell ex rel. Johnson v. County of Oswego, 165 F. Supp. 2d 241, 249 (N.D.N.Y. 2001) (caseworker who relied on autistic child's allegations of sexual abuse through FC did not violate clear......