Eliot Spitzer, Attorney General, Mineola (Ralph Pernick of counsel), for David R. Peters and another, respondents.
Alfred F. Samenga, County Attorney, Mineola (Cheryl Schussheim of counsel), for Nassau County Department of Social Services, respondent.
Aliano, Aliano & Aliano, Westbury, for petitioner.
Leonard B. Austin, J.
This special proceeding, commenced by order to show cause granted on August 25, 2000, pursuant to article 78 of the CPLR, seeks a determination and declaration that Social Services Law § 422 (8) (a) (i) and (b) (i) and the regulations promulgated thereunder are unconstitutional on their face. In the alternative, petitioner seeks a declaration that said sections of the Social Services Law and regulations thereunder, as applied to petitioner, are violative of procedural due process upon the grounds that (1) the statutes and regulations fail to mandate a hearing prior to the submission of a name to the New York State Central Register of Child Abuse and Maltreatment (Register), and (2) that the statutes and regulations fail to mandate a time in which a hearing must be conducted. Petitioner also seeks to have his name expunged from the Register.
Notably, petitioner sought, as part of the order to show cause he submitted, and was granted, without opposition, to restrain the Department of Social Services (DSS) from conducting the hearing which he had previously requested and to which he is entitled under the challenged statutes and regulations.
In January 2000, petitioner was advised that a report of suspected child abuse or maltreatment involving his four children had been filed with the Nassau County Department of Social Services. Thereafter, petitioner was advised that there was some credible evidence that he had abused or maltreated
the children named in the report.A s a result, petitioner's name was added to the Register.
Thereafter, petitioner was advised of his right to apply to the Commissioner of the New York State Department of Social Services to have the report amended to correct any inaccuracies, including an amendment which would reflect that the report was unfounded. This procedure is essentially an application for an administrative review of the investigation of the allegations and conclusion of " indicated" abuse based thereon. (Social Services Law § 422  [a] [i].) Such request must be made within 90 days of advice of an " indicated" report being sent to plaintiff. Upon such a request, the agency making the " indicated" finding must be " immediately" requested to respond. Such response must be made " expeditiously" but not later then 20 working days. (Social Services Law § 422  [a] [ii].) If no credible evidence is presented upon such review the record is amended to reflect that the report of abuse is " unfounded" and the subject is promptly notified. (Social Services Law § 422  [a] [iii].)
However, in the event of a finding of the existence of some credible evidence of abuse in the record, the subject of the investigation must be immediately notified so that a fair hearing can be held. (Social Services Law § 422  [a] [iv], [v].) A fair hearing is thus automatically scheduled by the Department of Social Services in the event an " unfounded" result is not reached. The subject of such investigation need take no further steps to assure the scheduling of a fair hearing under Social Services Law § 422 (8) (b) (i). Plaintiff is correct that there is no time frame established in section 422 (8) (b) (i) for the scheduling of the fair hearing.
Here, petitioner sought amendment to the Register, to have his name expunged from the Register and to have a hearing. The application for full expungement was denied. It is noteworthy that the application for amendment of the report resulted in a partial amendment of the report to the extent that the inadequate guardianship allegations regarding three of his four children were changed from " indicated" to " unfounded." The inadequate guardianship allegation regarding the fourth child was left as " indicated." Since a determination not wholly favorable to petitioner was rendered, the matter was referred to the DSS Bureau of Special Hearings for a fair hearing. (Social Services Law § 422  [b] [i].) Before the fair hearing could be held, petitioner commenced the instant proceeding by order to show cause and secured a stay of the fair hearing.
Petitioner now seeks a declaration that the statutory scheme and regulations promulgated thereunder are unconstitutional and deprive him of his procedural due process rights. In essence, petitioner argues that the statutory scheme permits respondents to enter a name in the Register prior to conducting a fair hearing. Petitioner also challenges the scheme because it fails to provide a time limit within which the hearing must be commenced. Petitioner argues that this is a violation of the Due Process Clauses of the Federal Constitution (Fourteenth Amend) and New York Constitution (art I, § 6). In support of petitioner's contentions, counsel for petitioner argues that the liberty interest includes the freedom from a false determination disseminated by the government that stigmatizes a citizen and interferes with that person's ability to secure gainful employment, among other things. Without citing any authority, counsel for petitioner states that a person has a liberty interest in his/her good reputation, honor and integrity.
Petitioner further refines his argument and identifies the constitutional infirmity to be the fact that a name may be entered in the Register on the basis that some credible evidence exists to support the allegation prior to his having any opportunity to be heard. Significantly, the burden of proof at a fair hearing borne by the Department of Social Services is the far more stringent standard of a fair preponderance of the evidence than the credible evidence standard which initially causes one's name to be placed in the Register and to remain after initial administrative review. (Social Services Law § 422  [b] [ii].)
Respondents jointly oppose the petition and seek dismissal upon the ground that this proceeding was commenced beyond the four-month limitation period for article 78 proceedings. (CPLR 217 .) Respondents also argue that petitioner has not suffered the denial of a protected liberty or property interest and, as a result, lacks standing to maintain this proceeding.
A. Statute of ...