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Powell v. Johnson

United States District Court, Second Circuit

May 20, 2013

TAIRLA POWELL, Plaintiff,
v.
ARTHUR JOHNSON, Commissioner of Department of Social Services, in his official capacity, Defendant.

TAIRLA POWELL Johnson City, New York, Plaintiff pro se.

ROBERT G. BEHNKE BROOME COUNTY ATTORNEY'S OFFICE Binghamton, New York, Attorneys for Defendant Johnson.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

In her second amended complaint, Plaintiff states a cause of action against Defendant Arthur Johnson pursuant to 42 U.S.C. § 1983.[1] See Dkt. No. 22 at 1. Plaintiff alleges that Defendant Johnson is liable for negligent investigation, negligent misrepresentation, violating Plaintiff's right to due process, and subjecting Plaintiff to cruel and unusual punishment. See Dkt. No. 22-1 at 7. The basis for these claims are two separate instances in which the Broome County Department of Social Services investigated Plaintiff based on reports of suspected child abuse. As a result of these investigations, Plaintiff's name was entered into New York State's Central Register of Suspected Child Abusers ("Central Register"). See Dkt. No. 22 at 1. Currently before the Court is Defendant's motion to dismiss the second amended complaint. See Dkt. No. 23-2.

II. BACKGROUND

A. Statutory Scheme

Plaintiff challenges the constitutionality of the procedures followed by the Broome County Department of Social Services ("DSS"). The recording and investigation of reports of suspected maltreatment of children, as well as the administrative review process by which substantiated reports are reviewed is governed by Article 6, Title 6 of the New York State Social Services Law. See N.Y. Soc. Serv. Law §§ 411-428 (McKinney 1992) (as amended in 1993) ("SSL"). The Central Register is a database which maintains reports of child abuse as part of a larger system to ensure the safety of children in New York State. See id. at § 411.

The local DSS is responsible for investigating all complaints of suspected child abuse and must investigate the truth of the charges and complete an investigation within sixty days of the initial report. See id. at §§ 423(1), 424 (7). At the conclusion of an investigation, the local department must determine whether the complaint is "unfounded" or "indicated." Id. Unfounded reports are expunged from the Central Register and all records are destroyed. See id. at § 412(12). If the local DSS finds that there is "some credible evidence" to support the complaint, the complaint is marked as "indicated" and the individual who is the subject of the report will be listed on the Central Register. See id. While the information contained in the Central Register is generally confidential, certain employers in the child care field are required to ascertain whether potential employees are listed on the Central Register. See id. at § 424-a(1). Inquiring employers are only informed that a report exists, and DSS does not inform the employer of the nature of the indicated report. See id. at 424-a(1)(e).

Upon the completion of an investigation, the subject of any "indicated" report is notified and has ninety days to request that the report be expunged. See id. at § 422(8)(a)(i). If a request for expungement is made, DSS must first determine whether there is "some credible evidence" that the subject committed the acts charged. See id. at § 422(8)(a)(ii). Then, DSS must also ascertain whether the acts alleged could be "relevant and reasonably related" to the subject's employment in a field involving contact with children. See id. If there is no credible evidence of child abuse or maltreatment, DSS must expunge the record and notify the subject. See id. at § 422(8)(a)(iii). If there is some credible evidence, and DSS finds that the allegations are reasonably related to child care, the expungement request will be denied. See id. at § 422(8)(a)(v). If there is some credible evidence of child abuse or maltreatment, but the allegations are not reasonably related to child care, the report will not be expunged, but will not be disclosed to potential employers or licensing agencies. See id. at § 422(8)(a)(iv).

If an expungement request is denied, an administrative hearing before the state DSS commissioner's office will be held. See id. at § 422(8)(a)(v). If the report is not expunged after the hearing, the subject of the report can commence a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules to challenge the decision. Unless expunged earlier, an indicated report is removed from the Central Register ten years after the youngest child referred to in the report turns eighteen. See id. at § 422(6).

B. The 2011 Report

On August 2, 2011, Kristi Fitch reported that Plaintiff abused Fitch's child during the course of a domestic dispute Plaintiff had with the child's father, who at the time was Plaintiff's boyfriend. See Dkt. No. 22-2 at 3. Broome County investigator David Van Etten investigated the report and concluded that the child witnessed a physical and verbal dispute between Plaintiff and her boyfriend in which Plaintiff hit her boyfriend over the head with a glass bottle. See id. at 5. Van Etten determined that bruises and lacerations found on the child were not the result of the domestic dispute and, therefore, he found allegations of child abuse to be unsubstantiated. See id. He did, however, conclude that there was sufficient evidence to "indicate" Plaintiff for inadequate guardianship. See id.

Plaintiff was given the opportunity to challenge the record on file with the Central Register by submitting additional information to support the contention that the record was inaccurate. See id. at 55. On November 15, 2011, Plaintiff was informed that an administrative review concluded that Plaintiff's report should be amended and that she was no longer an "indicated subject."[2] See id. at 57. On December 20, 2011, Plaintiff received a notice from the New York State Office of Children and Family Services ("NYSOCFS"), which indicated that an administrative review of Plaintiff's record supported the retention of the report and that Plaintiff's request for expungement of the record was denied. See id. at 35. The NYSOCFS granted Plaintiff's request for a ...


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