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March 31, 1992

ANNA VALMONTE, individually and on behalf of all others similarly situated, Plaintiffs, against 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.

The opinion of the court was delivered by: KENNETH CONBOY



 Plaintiff Anna Valmonte, whose name is listed on 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.


 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). All other reports are "unfounded." SSL 412(10). *fn1" 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," *fn2" 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).

 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)(b)(iii). 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.] P4. 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. PP4, 12.

 On or about February 2, 1989, defendant Cook commenced a proceeding against Valmonte in Family Court, Orange County. Compl. P20. 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, 1989, the Family Court proceeding was adjourned in contemplation of dismissal, on the condition that the Valmonte family receive counseling. Compl. P23.

 Valmonte alleges that the indicated report will remain in the Central Register until October, 2006. Compl. P28. 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. PP28, 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] violate the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution; and 2. Preliminarily and permanently enjoin defendants from maintaining and/or disseminating records which state that plaintiffs are abusive or neglectful parents; and 3. Direct defendants to expunge all their records on plaintiff and the members of the plaintiff class; or, in the alternative 4. Direct defendants to hold new administrative hearings, employing the proper legal standards for child abuse and neglect and permitting consideration of all relevant evidence; and 5. Preliminarily and permanently enjoining defendants from using lesser standards of conduct than those defined in the New York Family Court Act in determining whether reports of suspected child abuse and neglect are indicated or unfounded; and 6. Preliminarily and permanently enjoining defendants from refusing to consider evidence as to misapplication of legal standards and parental rehabilitation at ...

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