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ZAPPALA v. ALBICELLI

February 10, 1997

MICHAEL ZAPPALA and VERONICA ZAPPALA, individually and as parents and legal guardians of ANTHONY ZAPPALA and MICHA ZAPPALA, infants under the age of Eighteen Years, Plaintiffs,
v.
LINDA ALBICELLI, MARGARET COLLIGAN, RICHARD E. PARISI, JEROME F. MELVIN, LIVERPOOL CENTRAL SCHOOL DISTRICT, CATHERINE HAAS, CHRIS LARKIN, THOMAS ALBANI, BONNIE ENGLEBRECHT, ROBERT J. STONE, CARL W. DENGEL II, RENE ROBERTS, M.C. ROMAS, PETER VAN PATTEN, JOHN C. DILLON, JON A. GERBER, and ONONDAGA COUNTY, Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 This civil rights action brought pursuant to 42 U.S.C. § 1983 arises out of alleged improprieties surrounding the Defendants' investigation of possible sexual abuse of Plaintiff Micha Zappala by her father, Plaintiff Michael Zappala. Plaintiffs make a variety of claims, all of which are premised either on the temporary removal of Micha Zappala from her parents' custody based on a report of sexual abuse, or the subsequent child neglect and abuse petition brought against Michael and Veronica Zappala.

 The plaintiffs are Micha Zappala, her brother Anthony, and her parents, Veronica and Michael. The Defendants are: (1) the employees of the Liverpool School District who were involved in making the report of child abuse, and the Liverpool School District itself ("the Liverpool Defendants"), and (2) various employees of Onondaga County, including social workers, police officers, and county attorneys, who processed the child abuse report, took part in the temporary removal of Micha, and decided to pursue a child neglect petition against Micha's parents ("the County Defendants"). *fn1"

 Factual Background2

 The material facts of this case are not in dispute. In January 1992, Plaintiff Micha Zappala was a ten-year-old with Downs Syndrome. For three years prior to the incident in question, Micha's certified special education teacher was Defendant Linda Albicelli and her speech therapist was Defendant Margaret Colligan. Both of these Defendants were employed by the Liverpool School District

 Ms. Albicelli started using facilitated communication with Micha in October 1991. *fn3" Ms. Albicelli's technique for facilitating with Micha was to touch the underside of Micha's forearm or hold her sweater from the top of the forearm sleeve while Micha pointed to letters on an alphabet board, a Canon Communicator, *fn4" or a computer. Ms. Albicelli notified Micha's parents in October of 1991 that she intended to use facilitated communication, and some time in the beginning of December 1991 she provided them a demonstration of facilitated communication.

 On Monday, January 6, 1992, following Christmas vacation, Ms. Albicelli contends that she and Micha were utilizing facilitated communication when Micha communicated that her father "does nasty things to [her]." Ms. Albicelli further contends that on the next day while utilizing facilitated communication, Micha communicated the following: "I don't want to get Dad in trouble. I love him and he loves me. I don't want him to go to jail. He said keep our secret or I'll beat you. I don't want to be beaten. I'll tell Mom, she'll make him stop." On January 8, 1992, Ms. Albicelli asked Ms. Colligan to interview Micha. Again using facilitated communication, Micha allegedly expressed similar complaints to Ms. Colligan. Ms. Colligan and Ms. Albicelli brought the alleged disclosures to the attention of Defendant Principal Parisi. Mr. Parisi then telephoned the Onondaga County Child Abuse Hotline and reported the allegations. This report was relayed to the New York State Child Abuse Central Registry ("NYSCACR"). *fn5" NYSCACR forwarded the information reported to them to Onondaga County for investigation. *fn6" On January 9, 1992, Defendant Larkin, a supervisor at the DSS, directed Defendant Catherine Haas, a DSS caseworker, to commence an investigation of the Zappala matter. *fn7" Ms. Haas contacted Defendant Sergeant Peter Van Patten in the Sheriff's Department Abused Persons Unit ("APU") to begin investigative coordination. Sergeant Van Patten assigned Deputy Sheriff Carl Dengel to the investigation. Because it was late in the day on January 9 and Micha would be leaving school for home soon, Ms. Haas and Deputy Dengel agreed to interview Micha at 10:00 a.m. on Friday, January 10, 1992.

 When Ms. Haas and Deputy Dengel arrived at the school the next morning, they spoke to Ms. Albicelli, who reported that on January 9, Micha had again communicated by facilitation that she had been abused by her father on or about December 12, 1991. *fn8" Ms. Haas and Deputy Dengel then proceeded to interview Micha with Ms. Albicelli facilitating. Micha allegedly explicitly described abuse by her father including forced oral and vaginal contact with his genitals.

 Upon the arrival of Micha, Ms. Albicelli, and Ms. Colligan at the APU offices, Sergeant Van Patten directed Defendant Deputy Renee Roberts to interview Micha, and Deputy Romas to take a statement from Ms. Colligan and Ms. Albicelli. After Michael and Veronica Zappala arrived, Deputy Romas interviewed Veronica and Deputy Dengel interviewed Michael. The Zappalas contacted their attorney, Mr. Kimpel, who arrived during the interview process. Mr. Kimpel approved Michael and Veronica's sworn statements before they signed them.

 The interviews were completed at approximately 5:30 p.m. that evening on January 10. Veronica Zappala suggested that Micha be returned to the Zappala's custody on her promise that Michael Zappala would vacate the family premises. Haas telephoned her evening supervisor, Defendant Bonnie Engelbrecht, to advise her of the situation, and then informed the Zappalas that because Micha had been placed in protective custody by a police officer based upon abuse allegations, she could only be returned home upon a court order. Ms. Haas then delivered the child to a foster home.

 On Monday, January 13, 1992, Veronica and Michael Zappala filed an application for the return of Micha pursuant to section 1028 of the Family Court Act. *fn10" An "Imminent Danger Hearing" was held that afternoon before Family Court Judge Hedges. At the hearing, the parties entered a stipulated order of protection which provided for Micha to be returned to her mother's custody on the condition that her father not be allowed any contact with Micha and only supervised contact with her brother Anthony. *fn11" The parties also stipulated to a physical examination of Micha before her discharge from foster care. That same day, a Petition alleging sexual abuse of Micha and neglect of Anthony was filed in Onondaga County Family Court. Michael and Veronica Zappala were served with the summons and petition on January 14, 1992.

 The next day, January 14, 1992 Haas brought Micha to Dr. Ann Botash, a pediatrician to have her examined. *fn12" Dr. Botash observed that Micha's vaginal area was scarred and sensitive, so as to make examination difficult, and observed evidence of a chronic yeast infection. Veronica Zappala declined further testing to determine the source of Micha's repeat yeast infections.

 On January 15, the court appointed a law guardian for Anthony and Micha. At that time, the law guardian and the Zappalas stipulated to a further physical examination of Micha with a physician of Zappala's own choosing present. *fn13" This second examination was performed on January 21, 1992 by Dr. Botash. Again, Veronica Zappala was present during the entire exam and she declined further testing for Micha. *fn14" After this examination, Botash determined that the examination was inconclusive for sexual abuse, and no further medical testing took place.

 During the pendency of the neglect proceeding, the Zappalas challenged the legal admissibility of facilitated communication. The Family Court held a hearing on the matter, resulting in a decision rendered on September 16, 1992, granting the Zappalas' motion to preclude the use of evidence derived from facilitated communication in the neglect proceeding.

 On September 24, the County withdrew the neglect petition. The matter was dismissed, without prejudice. *fn15" No hearing on the merits was ever conducted.

 This matter is presently before the Court upon (1) the-County Defendants' motion for summary judgment; (2) the County Defendants' motion to stay all proceedings pending resolution of its summary judgment motion, (3) Plaintiffs' motion to strike the County Defendants' answer, (4) Plaintiffs' motion to compel discovery, and (5) both parties' motions for sanctions, ...


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