State statutory framework - in federal complaint

[Marina]

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V. STATE STATUTORY FRAMEWORK

30. Defendant State of New York has established a centralized system for the collection and storage of information on allegedly abusive and neglectful parents, which is operated by the New York State Office of Children and Family Services ("OCFS"). OCFS's information repository, called the Statewide Central Register of Child Abuse and Maltreatment ("Central Register"), N.Y. Soc. Serv. L. §422(1), is located in Albany, New York.

31. The Central Register maintains a telephone hotline with an "800" telephone number, staffed by telephone operators 24 hours a day, seven days a week, in order to receive complaints of child abuse, child neglect, or child maltreatment. N.Y. Soc. Serv. L. §422(2)(a). The state requires certain individuals to report to the Central Register whenever "they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child." N.Y. Soc. Serv. L. §413.

32. These individuals include "any physician; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official; social services worker; day care center worker; provider of family or group family day care; employee or volunteer in a residential care facility . . . or any other child care or foster care worker; mental health professional; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official." N. Y. Soc. Serv. L. §413(1).

33. The system encourages over-reporting of parents by penalizing the failure to report and protecting false reporting. A person who is required to report suspected child abuse, neglect, or maltreatment may be subject to criminal prosecution under N.Y. Soc. Serv. L. §420(1) or civil liability under N.Y. Soc. Serv. L. §420(2) for erroneously failing to do so.

34. Anyone who makes a report is entitled to immunity from all liability if the report turns out to be false, unless the wrongfully-reported parent proves that the reporter acted in bad faith. N.Y. Soc. Serv. L. §419.

35. In addition to persons required by law to do so, anyone who wants to report that a parent has abused or neglected a child has the right to call the hotline. N.Y. Soc. Serv. L. §414.

36. The report may even be made anonymously, and many reports are.

37. Whenever a person makes a report of suspected child abuse, neglect, or maltreatment to one of the local child abuse offices, that office must transmit the report to the Central Register. N.Y. Soc. Serv. L. §415.

38. Upon receiving a complaint of suspected child abuse, neglect, or maltreatment, the telephone operator who answers the hotline must determine whether to accept the complaint, i.e., whether the allegations, if true, would be legally sufficient to constitute child abuse, neglect, or maltreatment. N.Y. Soc. Serv. L. §422(2)(b).

39. Upon information and belief, the State Central Register has a policy of accepting allegations of domestic violence.

40. If the telephone operator accepts the complaint, the operator records the complaint on paper and relays it by telephone or facsimile machine to the office of the county Department of Social Services ("county department") in the county in which the child is living or staying. N.Y. Soc. Serv. L. §422(2)(b). In New York City (which is considered one county), the report is transmitted to the appropriate borough field office of the Administration for Children's Services.

41. ACS is responsible for investigating all complaints of suspected child abuse, neglect, and maltreatment that they receive from the Central Register. N.Y. Soc. Serv. L. §424(6).

42. ACS has no discretion to weed out complaints that ACS staff believe are legally insufficient, because the decision that a complaint is legally sufficient has already been made by the Office of Children and Family Services in Albany.

43. ACS must make a preliminary assessment within seven days of receiving each report. ACS must send a report, containing that assessment, along with information as to the progress of their investigation, to the Central Register. N. Y. Soc. Serv. L. §424(3).

44. ACS must complete each investigation within 60 days of receiving the report of suspected child abuse, neglect, or maltreatment. N.Y. Soc. Serv. L. §424(7).

45. At the end of the investigation, ACS must determine whether there is "some credible evidence" of the allegations in the complaint. N.Y. Soc. Serv. L. §412(6). If so, ACS determines that the report is "indicated." If not, ACS determines that the report is "unfounded." N. Y. Soc. Serv. L. §§424(7); 412(5). ACS transmits the determination, as well as the reasons for the determination, to the Central Register. N.Y. Soc. Serv. L. §424(3).

46. Both the Central Register and OFCS accept the conclusion of ACS and do not make independent assessments as to whether a complaint is "indicated" or "unfounded." If ACS determines that a complaint is unfounded, the Central Register expunges or seals all information regarding the family from its files.

47. If ACS determines that there is some credible evidence to support the charges in the complaint, or any additional charges that ACS staff may have discovered during the course of the investigation, the Central Register retains all information on the family in its database and in its library until the family's youngest child reaches the age of 28. N.Y. Soc. Serv. L. §422(6).

48. At any time during the 60 day investigation, ACS has discretion to commence child protective proceedings against the parents in the Family Court. N.Y. Fam. Ct. Act §1032(a); N.Y. Soc. Serv. L. §397(2)(b).

49. If ACS determines that a complaint is "indicated," ACS may commence child protective proceedings against the parents after the 60 day period has elapsed. N.Y. Soc. Serv. L. §424(11). ACS acts as the petitioner (prosecutor) in the Family Court. N.Y. Fam. Ct. Act §1032(a).

50. Child protective proceedings resemble criminal prosecutions in that they involve three types of hearing: first, a preliminary hearing, to determine who will have custody of the child while the case is pending, N.Y. Fam. Ct. Act §§1027, 1028; second a fact-finding hearing to determine whether the parents have abused or neglected the child; and, finally, a dispositional hearing to determine where the child should live. N.Y. Fam. Ct. Act §§1044, 1045, 1047(a).

51. In child protective proceedings in the Family Court, indigent adults who are charged with child abuse or neglect have a right to have counsel appointed to represent them. N.Y. Fam. Ct. Act §262(a)(i). The children who are the subjects of the proceeding have a right to have law guardians appointed for them. N.Y. Fam. Ct. Act §249.

52. New York law provides that the counties (including the City of New York) will pay the attorneys who represent parents in Family Court cases, and sets a maximum hourly rate for attorneys of $25.00 per hour for work performed out of court and $40.00 per hour for work performed in court. New York law sets the maximum compensation for attorneys at $800.00 per case. New York law provides that the state will pay law guardians for children in Family Court cases, and provides the same maximum rate of compensation for the law guardians.

53. The information contained in the Central Register is nominally confidential, but so many individuals and organizations are entitled to that information, or at least portions of the information, that confidentiality exists in name only. The following individuals and organizations have access to information in the Central Register: physicians; persons taking children into protective custody; child-caring (foster care) agencies; courts; grand juries; legislative committees; prospective employers of individuals who will have "the potential for regular and substantial contact with children"; agencies which license individuals who will have contact with children; the state commission on the quality of care of the mentally disabled; probation services; district attorneys; police departments; the New York City Department of Investigation; foster care agencies, day care centers, the department of education, and the State Division for Youth; preventive services programs; adoption investigators; and child abuse investigators from other states. N.Y. Soc. Serv. L. §422(4)(A).

54. When an individual applies for a job in which she will have the potential for regular and substantial contact with children, the prospective employer is required to check with the State Central Register to ascertain whether the applicant is listed on the State Central Register as an abusive or neglectful mother.

55. If the applicant is listed on the Register, the employer may not hire the applicant unless the employer explains in writing why the employer has decided to hire a person with a record as an abusive or neglectful parent.

56. As a practical matter, people whose names are on the list of abusive or neglectful parents in the State Central Register cannot obtain employment in the field of working with children, because no employer will hire an applicant whose name is on the list.