In a New York case set for a jury trial this month, defendants have settled out of court with a family for $250,000.
It started as most CPS cases do; with a call to the hotline. This particular call came in to New York State’s centralized hotline, where reports are “screened” to determine whether they are appropriate for a CPS referral.1
As the Times Herald-Record explains it, the state hotline “received a call from Pastor Robin J. Hogle of Hopewell Presbyterian Church in Thompson Ridge, who said parishioner Thresa Falletta had concerns the parents were sexually abusing their daughter. Hogle cited a photo of the child wearing a mermaid costume, seen by Falletta on the family’s refrigerator, according to the suit.”2
You read that right – a photo of a child wearing a mermaid’s costume on a refrigerator prompted a sexual abuse report to the hotline.
One may well imagine that the person on the receiving end of the call must have done all that she could have done to avoid laughing out aloud at the caller. But that apparently didn’t happen. Instead, the report was “screened in” and passed along for investigation by CPS.3
According to the Mid-Hudson News Network, the lawsuit stemmed “from a state hotline call from a pastor who said a parishioner/employee had “concerns” that the parents were abusing their daughter by posting a photo of her on the refrigerator wearing a mermaid costume bikini.”
The article continues on to explain: “The state agency reported it to the Orange County Child Abuse Investigation Unit, which went to the girl’s school and interviewed her without her parents’ knowledge or consent, said their attorney, Stephen Bergstein.”4
The parents were “shocked and stunned” when they found out that their five-year-old daughter had been brought into a room at her school and asked “intrusive questions” by the caseworker, Bergstein said.
United States District Court Judge Sidney Stein agreed that it was outrageous, and granted the parent’s motion for summary judgment against Orange County, finding that questioning the young girl on the sole basis of a second-hand report had violated the girl’s civil rights. As Judge Stein explained it in his ruling,
The narrative of the call to SCR states: “It is suspected father is sexually abusing [T.C.P.] and mother is aware and doing nothing. There have been ongoing concerns for about 3 months… close friends of the family have witnessed specifics and confronted the family.” You will see, as it turns out, of course, there is nothing to these anonymous allegations, but that’s down the road. Hogle admitted to the SCR that she had no firsthand knowledge whatsoever of these allegations.
Judge Stein detailed the chain of events, just as they occurred, starting with the call to the State Central Registry (“SCR”):
SCR accepted the anonymous report of Hogle. The SCR only accepts a report when a SCR hotline specialist determines that there is “reasonable cause to suspect that a child is an abused or maltreated child.” The SCR Manual defines “reasonable cause to suspect” as “what reasonable people, in similar circumstances, would conclude from such things as the nature of the injury(ies) to the child, statement and demeanor of the parents of the child, conditions of the home, etc.” In applying the “reasonable cause” standard, the SCR Manual instructs that the specialist “should accept the report regardless of whether the information is firsthand knowledge” and should assume that all callers are acting in good faith. Linda Joyce, Director of the SCR, testified that the SCR does not give reduced weight to allegations of child abuse when they are made anonymously. After making the determination that Hogle’s report constituted reasonable cause to suspect abuse, the SCR transmitted the report to the Orange County Department of Social Services, Child Protective Services (“CPS”) for investigation.
Up to this point, none of the facts as presented were in dispute by any party. What was the subject of some dispute was whether Orange County’s CPS – or its so-called “multidisciplinary team” – had the authority to reject the report.
As the ruling explains: “The parties dispute whether an SCR report can be rejected without an investigation if CPS determines that there is not reasonable cause to suspect abuse. The Village and the School District argue that all SCR reports must be investigated, while plaintiffs claim that CPS could decide not to investigate a SCR report should CPS find that the report does not meet the reasonable cause standard. The County admits that members of the MDT were not trained to reject reports that lacked reasonable cause to believe abuse occurred.”5
This is unusual, as the primary function of the team is to increase sexual abuse prosecutions, which are criminal matters, rather than civil. Hence, the multidisciplinary team has a police officer on board. Yet there would be little – if any – consideration having been given to whether or not probable cause existed to pursue a potentially criminal matter. No matter how you look at it, an accusation of child sexual abuse is indeed a serious one. Yet, as the court explains it: “Upon receiving the SCR report, no member of the MDT assessed whether the report met the ‘reasonable cause to suspect’ abuse standard.”6
The case was assigned to Jamie Scali-Decker, a CPS employee, and Officer Scolza, a Village police officer, who had been assigned by contract to the case.
Thereafter, as the court explains, “Scali-Decker contacted Scotchtown Avenue Elementary School and confirmed the child’s attendance there. Because their investigation had as the target both of the parents, the plaintiffs here, Scali-Decker and the police officer decided to interview the child at her school without parental consent or notice.”
THE SCHOOL’S POSITION
Judge Stein details the school’s response to the investigation:
Scali-Decker and the officer arrived at the child’s school and identified themselves. Daniel Connor, the school’s superintendent, allowed Scali-Decker and Officer Scolza to interview the child without parental notification or consent. The superintendant testified that it was the School District’s practice to permit CPS caseworkers or police officers to interview students without parental consent or notice. The School District believed that it was legally obligated to allow CPS to interview children in school without parental consent or notification, but it has not cited in its submission any statute or regulation or other legally enforceable obligation on which this belief was formed.
Once and again, individuals in this bizarre chain of events are acting in accordance with some vague notion of what they “believe” to be the law, without being able to point to “any statute or regulation or other legally enforceable obligation on which this belief was formed.” This is significant, because this is much as it is everywhere. To this day, in many jurisdictions police officers acting in concert with CPS believe that there is a “child welfare exception” that obviates the need for the inconveniences of probable cause and a warrant to either enter a home, or to seize a child for extended quentioning.7
THE SCHOOL INTERVIEW
After Superintendent Connor authorized the interview, Mary Kay Jankowski, the school social worker, removed the child from her kindergarten class — remember we are dealing with a five-year-old — and took her to the assistant principal’s office to be questioned by Scali-Decker and the police officer. The child had never been in that office prior to the interview, and children at the school knew that they were not allowed to walk alone in the hallways. The officer was not in uniform, but he was carrying a gun, which was under his suit jacket, and was carrying his shield, and handcuffs. For these purposes, I am prepared to assume they were not visible.
Scali-Decker and Officer Scolza interviewed the child with Jankowski present for approximately 15 to 20 minutes. The child did not know Scali-Decker or Scolza and didn’t, presumably, know the school social worker Jankowski. Jankowski told the child that “it was okay” to answer questions that Scali-Decker and Officer Scolza would ask her. Scali-Decker did not offer the girl an opportunity to call her parents, nor did she tell the girl she was free to leave and not answer the questions. The doors to the office she was in were closed. She was questioned about various topics, including: (1) whether she bathed alone and how she bathed; (2) whether either of her parents ever touched her inappropriately; (3) whether she had any secrets; (4) whether she could identify her body parts, including the private body parts; (5) whether she had seen anyone else’s private parts or whether she had ever shown her private parts to anyone; (6) whether she had ever been alone; (7) whether she slept with her mother or father; (8) whether her parents argue and, if so, what they argue about; (9) whether anyone was naked at home; (10) whether there were naked pictures of anyone at home; and (11) whether she ever saw magazines, movies, or TV programs with any naked people. She was quiet and compliant throughout the questioning. Not a single one of the child’s answers indicated that she had been abused or maltreated or that there was any cause for concern.
THE HOME VISIT
A social worker scheduled a home visit for the following day. The girl’s mother testified that “she agreed to the home visit after Scali-Decker told the parents that a home visit was ‘required.'” Scali-Decker admitted in her declaration that “she often tells parents that she is required to do a home visit.” This is of significance, as this is quite typical of the manner with which consent to home searches is obtained. As Judge Stein explains in his ruling:
Dudzik-Andrews, the MDT’s Senior Case Supervisor, testified at a deposition that caseworkers tell parents that a home visit is required and are not trained to tell parents that they can refuse to consent to the home visit. Smith, a MDT case supervisor, could not recall any parent ever refusing to consent to a home inspection.
By the time the home visit took place, the police determined that there was no evidence of wrongdoing. The parents, of course, were unaware of this determination. That, however, casts a new light on the events, as the ruling explains: “Plaintiffs aver that had they known that they could refuse the home visit and that the allegations against them had been made anonymously and were hearsay and that they had, in part, already been disproven, they would not have consented to the visit.”
Judge Stein details the undisputed account of the home visit by a CPS caseworker:
Joseph LaSusa, a senior CPS caseworker, conducted an inspection of plaintiffs’ home on November 6, 2009. He walked around the kitchen, living room, home office, and all the bedrooms. Plaintiffs state that LaSusa said, “With allegations like these, I need to see the bedrooms.” When LaSusa asked why the child and her younger sister sometimes did not sleep in their bedrooms by themselves, the parents responded, not surprisingly, that the children sometimes had trouble sleeping. On November 9, 2009, LaSusa told Scali-Decker and Smith that there was nothing unusual with the home and that he had no concerns about the parents. On that same day, Scali-Decker and Smith agreed to close the case as unfounded.
To any reasonable person, this family endured egregious violations of their rights. Their 5-year-old child was needlessly traumatized by being taken out of her classroom and questioned at length about the most intimate details of her family’s life. The questions concerning sexual abuse were indisputably of the variety that a typical kindergartner would hardly be expected to comprehend. And, as the judge noted in his ruling, she could not have reasonably felt free to end the encounter by leaving the room in which she was being interrogated.
The family thereafter endured a violation that is tantamount to that of a home invasion. If there are any lingering doubts concerning the impact of having police and social services caseworkers wandering throughout a home without the benefit of probable cause or a search warrant, consider this analysis by Elizabeth Hutchinson, writing in the professional journal Social Work:
Investigation of a report of child maltreatment is not an innocuous intrusion into family life. By the time an investigation is complete, the family has had to cope with anxieties in both their formal and informal support systems alerted to state suspicion of their parenting. Even if the report is expunged from the central registry due to lack of substantiation, it is seldom expunged from the mind of the family–or from the memories of persons in the support system.8
SEIZURE OF THE CHILD
Judge Stein concluded that the family’s rights were unquestionably violated, and he detailed his findings at some length in his ruling. The first question was whether the young child at the center of the case had been “seized” in violation of the Fourth Amendment. After collecting the relevant caselaw, he spelled out the facts that were not in dispute:
- The school social worker removed the child from her kindergarten class and brought her to the assistant principal’s office. She had never been to the assistant principal’s office before.
- The social worker told the child that it “was ok” to answer the questions of the two adults strangers.
- Behind closed doors and in front of three adults, she was subjected to 15 to 20 minutes of intimate questioning.
- She was not given the opportunity to call her parents, she was not told that she could leave, she was not told she could decline to answer questions and, as I stated, the parties agreed the school rules prohibited children from walking in the hallways by themselves.
“In those circumstances, this court concludes that a reasonable five-year-old child would not have thought she was free to leave or that she was free decline to answer the questions posed by the adults,” judge Stein ruled.
The next question was whether some set of “special circumstances” may have provided an exception to the Fourth Amendment. After examining all of the undisputed evidence, judge Stein ruled that the report that had set the whole thing into motion “did not provide probable cause to seize the child and that this interview was conducted in violation of the Fourth Amendment.”
THE HOME ENTRY
The County argued that there was no official policy or ordinance in effect that would sustain its liability. Judge Stein dismissed this argument, noting that a reasonable jury could conclude either that the parents’ consent was voluntary or that the parents’ consent was only granted “in submission to a claim of lawful authority,” and therefore involuntary.
In further clarifying his findings, Judge Stein wrote:
If a jury found that plaintiffs’ consent was not voluntarily given, it is certainly possible for a reasonable jury to find that the County’s policy of telling parents that a home visit was required and not informing them of the right to refuse to consent was the “moving force” behind the constitutional violation.
Therefore, the voluntariness of plaintiffs’ consent to the search of the home is a disputed issue of material fact and, accordingly, the Court denies summary judgment to both plaintiffs and the County here.9
Rather than take the matter before a jury – an event set for January of this year – the defendants instead settled out of court to the tune of $250,000. That may well have been a wise choice, as a sympathetic jury may well have found damages in excess of that amount.
This story is in many respects typical. A call came in – one that should have been filtered out right from the outset. But it was screened in, and passed along for investigation. The family was fortunate enough not to have had their child removed on the “better safe than sorry” approach taken by many other jurisdictions.
But they nonetheless endured a chain of events that no innocent family should have to endure. The traumatic and wholly inappropriate interrogation of their young child, and the violation of the sanctity of the home that we all take for granted, in these United States.
It is a series of events that plays out a hundred or more times every day, yet it is a series of events that few would believe could ever happen to them.
The family was fortunate enough to have found an attorney willing to take on such a case. That alone is a remarkable accomplishment. And, they were fortunate enough to have had their case heard by a fair and impartial judge – one who is a “true jurist” in the highest sense of the term. That is perhaps their greatest stroke of good fortune.
During his remarks before the Association of the Bar of the City of New York on April 3, 2014, Judge Stein said,
the test of an effective and just court is found not only in well known cases, but probably more importantly in the disputes little noted by the public at large: the stories that history books will never retell but that the parties and lawyers remember always. The humdrum contract dispute adjudicated wisely. The pro se litigant given an earnest and respectful forum for her legal grievances. The accused drug dealer who received a fair and speedy trial. The competing textile manufacturers seeking injunctions against each other, each receiving extensive process and a federal judge’s careful consideration.10
I find myself grateful to Judge Stein for reminding us that effective and just courts are still out there to be found.
1. New York State Office of Children and Family Services. “Child Protective Services,” describing the Statewide Central Register of Child Abuse and Maltreatment. Undated html document. (“The Statewide Central Register, also known as the ‘Hotline,’ receives telephone calls alleging child abuse or maltreatment within New York State. The Statewide Central Register relays information from the calls to the local Child Protective Service for investigation, monitors their prompt response, and identifies if there are prior child abuse or maltreatment reports”). See also New York State Senate. Sen. Timothy M. Kennedy. “Senator Kennedy’s Bill to Improve Statewide Child Abuse Hotline Passed Through State Legislature,” June 23, 2014. (“The State Central Register of Child Abuse and Maltreatment serves as a centralized, statewide take-in point for reports of suspected abuse or neglect. The state then relays allegations to local CPS agencies for investigation”).
Senator Kennedy’s interest in such matters followed a review of Erie County CPS reports that found 72 percent of hotline calls involved families with previous history of CPS investigations within the past four years, This, in turn, prompted Senator Kennedy to propose Senate Bill S5942 in June 2014, requiring the hotline to pass along the entire previous history of reports to CPS whenever a new one comes in.
2. Times Herald-Record, “Orange County, Family Reach $250K Settlement,” (December 30, 2015). As it turned out, Theresa Falletta, the former babysitter for the family, was the original source of the report, and wanted to remain anonymous. Although the identities of the intermediaries were known, it was for all intents and purposes still an “anonymous” call at this point.
3. It is worth mentioning that three people interpreted this as a credible reason to suspect child sexual abuse. Parishioner Thresa Falletta, Pastor Robin J. Hogle, and the unamed hotline operator. Three human “filters” along the way, and not one of them had the sense to dismiss the notion as patently ridiculous. Perhaps this is the kind of report that professor of social work Chris Mouzakitis had in mind when he wrote: “Much of what is reported is unworthy of follow-up.” Douglas J. Besharov, The Vulnerable Social Worker: Liability for Serving Children and Families, (Silver Spring, MD: National Association of Social Workers, 1985) p. 59; Citing Chris Mouzakitis, “Investigation and Initial Assessment in Child Protective Services,” in W. Holder and K. Hayes, eds., Malpractice and Liability in Child Protective Services (Longmont, Colo.: Bookmakers Guild, 1984) pp 71, 75. At least two others became involved; the person at the local CPS agency who accepted the report, and the caseworker who went out to investigate it. See generally my series “A Critical Look at Child Abuse Reporting,” at Lifting the Veil for an analysis of how abuse reporting works.
4. Mid-Hudson News Network, “Federal court finds Orange County liable for child protective services investigation,” (August 21, 2015). See also “Bergstein & Ullrich prevail in civil rights case against Orange County” on attorney Stephen Bergstein’s blog, Wait A Second! Bergstein & Ullrich, LLP, August 21, 2015.
5. In the face of such disagreement, apparently neither the local CPS agency nor its multidisciplinary team was aware of a policy manual or other legal source that they could have consulted with the definitive answer to this question.
6. According to the ruling, “Orange County established an MDT within its Child Abuse Investigation Unit which only investigates SCR reports involving sexual abuse, fatalities, or serious physical abuse. One of the stated objectives of the MDT is to ‘increase the number of child sexual abuse cases that are adjudicated in family court and/or result in a conviction in criminal court,’ and a New York State Police file is opened on all SCR reports investigated by the MDT.”
7. No one questions that children are seized under a Fourth Amendment analysis, but the standard rhetoric that excuses this is one of an “investigatory detention” in the context of a “child welfare check” being conducted. The Ninth Circuit was not fooled by similar rhetoric, noting that: “Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. See id. This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.” Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009). Unfortunately, when the case wound its way to the U.S. Supreme Court, family advocates were met by a hostile Court, which dismissed the case as moot. I would not have particularly enjoyed standing in attorney Carolyn Kubitschek’s shoes and being lambasted by one justice of the Supreme Court during oral arguments. The oral arguments may be replayed at Chicago-Kent College of Law at Illinois Tech. “Camreta v. Greene.” Oyez. https://www.oyez.org/cases/2010/09-1454.
8. Hutchison, Elizabeth D. “Mandatory reporting laws: Child protective case finding gone awry?.” Social work 38, no. 1 (1993): 56-63. To anyone who has experienced such an intrusion firsthand, this point is crystal clear. I provide a citation primarily to illustrate that this has long been documented in the core literature of social work.
9. The judge devoted considerable attention to apportioning blame. With so many defendants, who can fairly be said to have been to blame? The hingepin of the case against the municipalities is Monell v. Department of Social Services of N.Y.C., a case decided by the U.S. Supreme Court in 1978. Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (1978).