EARL W. BRYDGES, JR.
THOMAS J. CULHANE
JOSEPH S. DOMINELLI
SALVATORE R. MARTOCHE
WILLIAM F. PASSANNANTE
Commissioners
HELENE B. GURIAN, Deputy Commissioner/Chief Counsel
WILLIAM F. FRIEDLIEB, Chief Investigator
JEROME LIGHTFOOT, Deputy Chief Investigator
STAFF FOR THIS INVESTIGATION
FRANCIS D. RAWDON, Senior Assistant Counsel
WILLIAM P. MURNANE, Special Agent
SHARON R. SCHINDEL, Assistant Counsel
ALLAN M. MOROFSKY, Supervising Senior Assistant Counsel
ANN MARIE BAYER, Special Agent
KENNETH CHRISTOPHERSEN, Special Agent
SHERIDA AZEEZ, Administrative Assistant
CHERYL COX, Secretary
Chapter One: Genesis of Children's Rights
Chapter Three: Confidentiality
Based upon a complaint received by the Commission, in February
1994, the Commission undertook a comprehensive examination of child
abuse investigations throughout New York State. The Commission
sought to identify common, systemic issues that impact on all child
abuse inquiries, and therefore focused on State law, State
Department of Social Services ("DSS") regulations and how various
localities, in practice, interpret these requirements.
The Commission did not attempt to investigate problems which are
unique to various localities, such as budget constraints and local
training and case management concerns. It is the Commission's hope
that this report will spur every county within the State to re-
examine its own practices and address the issues which are
particular to their jurisdictions.
What is clear from the Commission's inquiry, however, is that
without systemic change, local efforts will be largely ineffective.
The most fundamental aspects of child abuse investigations must be
re-evaluated at the State level if real progress is to be made.
Child abuse experts have concluded that current confidentiality and
expungement laws have contributed to the deaths of children. The
law must be changed to provide oversight and accountability to a
system that simply has not kept pace with the reality of child
abuse in New York State.
Currently, because State law requires that records of "unfounded"
cases be expunged, close to three quarters of the work product of
local child protective services offices are destroyed on a yearly
basis. Those records which do remain are, by statute,
"confidential" and shrouded in secrecy. Virtually all of the
social service and law enforcement professionals in the forefront
of investigating child abuse cases made clear to the Commission
that this system severely impedes their ability to work
effectively. More importantly, it is widely recognized that this
system does not serve the best interest of the child and often
withholds the basic protection of our criminal justice system from
those who are the most vulnerable and least able to protect
themselves.
Confidentiality laws mandate silence and expungement laws mandate
ignorance. This leaves a system of child protective services that
cannot monitor its own work, is insulated from outside scrutiny and
is unable to publicly account for its actions. Without immediate
legislative change, this system is doomed to fail.
The Commission's report provides an overview of child protective
services in New York State, and makes recommendations for much
needed change. It is hoped that this report, by exposing the flaws
in this system, will provide the impetus and guidelines for
immediate action.
Jurisdiction of the Commission(*)
With a broad statutory mandate to investigate "any matter
concerning the public peace, public safety and public justice," the
State Commission of Investigation undertakes investigations of
corruption, fraud and mismanagement in New York State and local
government. The Commission's purely investigative character
enables it to address problems, and suggest legislative and
administrative remedies, beyond the jurisdiction of other agencies.
At the conclusion of major investigations, the Commission informs
the Governor, the Legislature and the public of its significant
findings and recommendations in public reports.
Established by an act of the legislature in 1958, the Commission is
a politically bi-partisan agency, with six members selected equally
for fixed terms by the Governor, the Speaker of the Assembly and
the President Pro Tem of the Senate. No more than three members of
the Commission can belong to the same political party. Thus, the
Commission is truly non-partisan in operation, and is uniquely
situated to investigate and report on highly sensitive matters.
The Commission has been granted a variety of law enforcement tools
to carry out its Statewide function, including the power to
subpoena witnesses to testify under oath, to require the production
of records, and to confer immunity. All governmental bodies in the
State are statutorily required to cooperate with and assist the
Commission in the performance of its duties.
In light of these serious issues, the Commission undertook an
extensive examination of the child protective system in New York
State. The Commission interviewed well over one hundred
professionals in the field of child protection, including child
protective services ("CPS") caseworkers, police officers, social
workers, physicians and prosecutors. The Commission obtained
information from all sixty-two New York State counties, thirteen
other states, the federal government, and private research
institutions. The Commission also obtained information from
several sources in the United Kingdom, including Scotland Yard, on
child abuse investigative practices there. In addition, the
Commission conducted numerous private hearings at which child
welfare officials from Albany County, Erie County, Nassau County
and New York City testified. Past and present prosecutors and a
senior New York Police Department official also testified at these
hearings.
The Commission determined that the child protective system is in
desperate need of reform. The current system puts the children of
New York at risk through laws which prevent professionals from
working together for the benefit of abused children, mandate the
destruction of information which could identify child abusers, and
hamper effective oversight of the child protective system by
shielding that system from public accountability. In the
Commission's view, the children of New York would be better served
by a more open and flexible child protective system.
When there is an allegation that a child has been abused or
neglected by someone legally responsible for that child, that
allegation will usually be investigated by a local CPS agency
operating under the supervision of State DSS. When CPS caseworkers
investigate such allegations, the traditional practice is to offer
social services to help parents take better care of their children,
an approach which often requires CPS caseworkers to rely on parents
or guardians to voluntarily accept services. The services of a
family court or criminal court are only sought when cooperation is
refused or it appears that social services will prove inadequate to
protect the child.
The Commission's investigation revealed growing dissatisfaction
with the traditional social services approach to child abuse
investigations. It is widely recognized that law enforcement
intervention is needed at the earliest stages of some inquiries,
but such efforts are often stymied by a system which places the
goal of family preservation above the best interests of the
children it is designed to serve. Efforts by local communities in
New York State to develop a more effective response to child abuse
cases often clash with current statutory and regulatory standards,
compelling dedicated and well-intentioned caseworkers and law
enforcement officials to devise methods to circumvent restrictions
in information sharing. This has resulted in varied
interpretations of the same law in different counties throughout
the State, and has impeded efforts to design a comprehensive
Statewide approach to these investigations. Additionally, current
practices regarding expungement of records are viewed as
counterproductive, and often impede the work of the various
professionals who are required to make critical judgments in the
most difficult types of cases.
The shift to a multi-disciplinary approach is not unique to New
York State. There has been a growing movement throughout the
United States to enlist professionals from other disciplines in the
fight against child abuse. Multi-disciplinary teams can take
several different forms, including those which emphasize joint
investigations by a CPS caseworker and a police officer, and those
in which CPS caseworkers, police officers, prosecutors and other
concerned professionals meet periodically to discuss child abuse
cases or policy issues. The multi-disciplinary approach can also
include creation of a child advocacy center to provide a central,
child-friendly location for conducting interviews with child abuse
victims.
CPS and law enforcement officials told the Commission that early
intervention by the police is crucial to the effective
investigation of child abuse cases. A senior detective with the
New York City Police Department underscored this point in his
testimony to the Commission. He explained that one of the biggest
problems facing New York City police in conducting child abuse
investigations is that the Child Welfare Administration ("CWA"),
New York City's CPS, is not required by law to notify the police
directly in cases in which criminal child abuse is suspected. As
a result, in many cases the police do not learn that a crime may
have been committed against a child until weeks after the fact,
often too late to conduct a meaningful investigation.
A close working relationship between police officers and CPS
caseworkers is demonstrably the best method of ensuring that those
who abuse children are successfully prosecuted for their crimes.
The Center for Policy Research, based in Denver, Colorado,
conducted an empirical study which analyzed child abuse
investigative methods in five jurisdictions which represented
points on a continuum between Las Vegas, Nevada, where the police
and CPS operated relatively independently, and DuPage County,
Illinois, where they worked most closely together. A sample of
over 1,800 cases was selected and CPS records, police reports and
criminal court records were reviewed. Additionally, in-depth
interviews were conducted with law enforcement and CPS officials to
gain their insights into the effectiveness of joint investigations.
This study established that a close working relationship between
police departments and CPS agencies is critical to effective child
abuse prosecutions. In DuPage County, Illinois, which had the
closest working relationship between police officers and CPS
caseworkers, 75.3% of sexual abuse cases indicated by CPS were
referred for criminal prosecution, the highest referral rate among
the localities studied. The conviction rate for these prosecutions
was 94.6%.
Social Services Law Section 424 (4), under which information is
disclosed by CPS to multi-disciplinary team members, is narrowly
drawn with respect to the parties to whom disclosure is permitted.
This section permits CPS to disclose all cases in a selected
category, such as all sexual abuse cases, to a district attorney
upon the district attorney's request. According to State DSS, the
right to disclose CPS case records to a district attorney under
this section also enables CPS to disclose case records to other
members of a multi-disciplinary team. State DSS also takes the
position that this section permits a district attorney to designate
police departments as his or her agents so that CPS can provide
reports in the categories selected by the district attorney
directly to the police.
Although this appears to be a reasonable interpretation, it is
hardly self-evident, and the Commission's investigation disclosed
that not all localities share this view. CPS officials throughout
New York State told the Commission they were uncertain whether or
not there was statutory authority for the disclosure of CPS
information to other team members. One assistant county attorney
told the Commission that she advises CPS caseworkers to err on the
side of silence when confronting thorny confidentiality issues
within the multi-disciplinary team. In New York City, the law is
viewed as prohibiting CWA from directly providing the police with
copies of the abuse reports which CWA sends to district attorneys.
Virtually every CPS official, CPS caseworker, police officer and
prosecutor contacted by the Commission attested to the detrimental
impact of expungement laws on efforts to protect children.
Numerous reasons were cited by these professionals for retaining
some or all of the records which New York currently destroys. CPS
officials in all corners of the State told the Commission that the
law now requires that they unfound cases in which there is a
reasonable basis to suspect abuse or neglect, but insufficient
evidence to indicate a report. Several described these as cases in
which abuse or neglect had not been ruled out. Frequently cited
examples were cases involving babies born with cocaine in their
systems, cases in which pre-verbal children act out sexually, and
cases in which children have suspicious injuries. According to
these officials, despite a reasonable basis for concern over the
future well-being of these children, absent some other evidence of
abuse or neglect, these reports will be destroyed. As a result,
cases which require establishing a pattern of abuse or neglect can
go undetected because the evidence needed to see the pattern is
destroyed. Many CPS officials also recommended that records of
intentionally false reports be retained to protect the falsely
accused. Several proponents of retaining unfounded reports told
the Commission that keeping these reports would also help keep CPS
caseworkers and supervisors accountable for their decisions.
Since at least the mid-1980s, legislators, public agencies and
child advocacy groups have been pushing for legislation to permit
retention of some or all unfounded reports. These proposals have
been premised on the belief, shared by most professionals in the
field, that retaining some or all unfounded reports would help to
better protect the children of New York. This belief was confirmed
by officials in states where some or all unfounded reports are
retained who told the Commission that such reports are an
invaluable tool in the effort to better protect children.
Opponents of reforming the expungement laws have argued that
retaining unfounded reports raises serious constitutional issues
relating to personal and family privacy. This argument, however,
has recently been rejected by a court examining this issue. In
Hodge v. Jones, 31 F.3d 157, 166 (4th Cir. 1994), a federal appellate court
recognized that the State of Maryland had a
legitimate interest in retaining unfounded reports. According to
the Court, the retention of such reports could alert CPS
caseworkers to patterns of abuse which could otherwise go
undetected, could protect the unfairly accused by ensuring against
repeated investigations of the same accusation, and would enable
the state to defend itself in the event of a lawsuit alleging that
an inadequate investigation had been conducted.
These same points were echoed by numerous CPS officials and others
interviewed by the Commission, who also detailed other compelling
reasons for retaining some or all unfounded reports. Information
contained in prior unfounded reports, including names of treating
physicians, family members and school teachers, can assist
caseworkers investigating new allegations of abuse. Additionally,
retaining unfounded reports of abuse would force CPS officials to
remain accountable for their decisions to unfound cases. The
retention of unfounded reports would also enable CPS caseworkers to
rely on their records rather than their memories when investigating
new cases. A prosecutor testified to the Commission about a case
in which a young girl was sexually abused by a pedophile. Because
the child would not tell a CPS caseworker what had happened to her,
CPS unfounded the case. Years later, a new complaint was filed
with the SCR, again alleging that this pedophile was sexually
abusing the same girl. This time a search of the perpetrator's
belongings was conducted. Photographs of him having intercourse
with the girl at the time of the original complaint were
discovered. This prosecutor told the Commission that the only
reason he was able to determine what happened with the original
complaint was that he and CPS caseworkers remembered the case.
The Commission, in addition to examining the expungement provisions
in New York State, reviewed the record retention practices of other
states. In approximately thirty states, records of unfounded cases
are maintained for at least one year after the case is closed. In
Massachusetts, for example, records of cases in which allegations
of abuse or neglect were "unsupported" are retained for one year
during which caseworkers investigating subsequent related
complaints can review the "unsupported" files. One Massachusetts
official told the Commission that Massachusetts law was changed to
permit retaining such records after a two and one-half-year old
girl was murdered by her father's girlfriend. It was discovered
that before she was killed, Massachusetts DSS had received several
reports of abuse concerning this child, approximately one report
every four to five months. Each case was unsupported and the
records expunged. As a result, caseworkers assigned to investigate
subsequent reports of abuse did not know about the prior reports.
After the child was killed, Massachusetts DSS advocated legislative
change, arguing that if the records of these unsupported cases had
been retained, the agency would have more closely scrutinized
subsequent allegations of abuse and could have made efforts to
protect the child.
The Commission was told by a supervisor at a Massachusetts CPS
office that retaining these records is particularly helpful to
caseworkers in detecting patterns of abuse and neglect. She gave
an example of a case in which a young child is left alone in a car.
Absent other indications of abuse or neglect, that case would be
unsupported. If a number of such complaints are received
concerning the same parent or guardian, however, a more intensive
investigation would be initiated. Without records of the
unsupported cases, the need for an intensive examination would pass
unnoticed. This supervisor told the Commission that these closed
reports also help to identify witnesses and can assist in
evaluating the credibility of a complainant.
Oversight and accountability are critical to the effectiveness of
and public confidence in the child protective system.
Confidentiality and expungement laws, however, shield this system
from oversight and accountability. This becomes especially
apparent whenever the public attention is captured by the death of
a child. When child welfare officials are asked what steps they
took to ensure the safety of that child, the standard response is
that confidentiality laws forbid them from accounting for their
actions. As a result, in many cases no one outside the child
protective system can ever know whether the system failed, and no
one inside the system will be held publicly accountable for their
inability to protect the most vulnerable members of our society.
Even when limited oversight is possible, its impact is blunted by
confidentiality and expungement laws. For example, in 1993, the
State Central Registry ("SCR") received reports alleging that
ninety-three New York City children died as the result of abuse or
neglect. CWA was involved with thirty-seven of these children
prior to their deaths through an indicated report, an ongoing
investigation, or through provision of services to the child or
family. The New York City Child Fatality Review Panel (the
"Panel") conducted an intensive review of these thirty-seven deaths
and found that the parents or guardians of twenty-five of these
children were either responsible for the death of the child or
acted in a way which contributed to the death of the child.
Homicide was the cause of death for seventeen of these children.
Based on its review of these deaths, the Panel outlined
deficiencies in CWA and suggested steps to improve CWA's ability to
protect children. Although some or all of the other fifty-six dead
children may have been known to CWA through an unfounded report,
their deaths were not examined in detail by the Panel. Since
unfounded reports are expunged, the Panel could not assess the full
extent of CWA's failures.
The current system of oversight is also ineffective. According to
a recent report by a Suffolk County Grand Jury, the State DSS
Metropolitan Regional Office ("MRO") is responsible for supervising
casework in New York City, and in Dutchess, Nassau, Orange, Putnam,
Rockland, Suffolk, Sullivan, Ulster and Westchester Counties, areas
which contain 65% of the children in New York State. For each of
these areas, the MRO CPS division is responsible for conducting
random reviews of case records, for reviewing every child fatality
in which there had been local CPS involvement prior to the death of
the child, and for investigating all institutional abuse and
neglect cases. To perform these daunting tasks, the MRO CPS
division has a staff of two.
Outside New York City, there is no provision for independent
oversight by local officials of CPS investigations. Social
Services Law Section 422 provides the New York City Department of
Investigation ("DOI") with authority to examine the records of
child abuse and neglect investigations. DOI, however, is not
entitled to receive information which identifies individuals named
in a report unless the information is essential to its
investigation and State DSS gives prior approval to the disclosure.
Elsewhere, when local officials attempt to determine whether their
local CPS agency performed its job adequately, the attempt is
doomed to failure. The Commission heard from one County legislator
who described her unsuccessful effort to determine what actions
child welfare officials in her County had taken concerning
complaints filed before a disabled child starved to death.
Even if confidentiality did not preclude disseminating information
about child abuse investigations, the expungement of unfounded
cases often makes any subsequent review of those cases an exercise
in futility. One child welfare official told the Commission that
expungement creates "institutional amnesia." A prosecutor compared
the knowledge of unfounded cases to "Indian folklore," available on
a limited basis only to the select few who were present when the
prior case came to the attention of authorities.
Expungement also provides caseworkers with an opportunity to shred
their mistakes, shielding any acts of corruption or incompetence
from subsequent discovery. It must be emphasized that the
overwhelming majority of CPS cases are unfounded and expunged. In
1994, for example, only 27.2% of cases on which determinations were
made resulted in indicated reports. Thus, 72.8% of all CPS records
on which determinations were made were destroyed. An Albany County
prosecutor, in his testimony to the Commission, underscored the
impact expungement has on oversight when he noted that if a
caseworker were bribed to unfound a case, a criminal investigation
would be virtually impossible because the entire CPS case file
would have been destroyed.
What little opportunity exists for State DSS to monitor decisions
to unfound cases appears to be hopelessly squandered. Although CPS
offices have the statutory authority to determine whether a case
should be indicated or unfounded, CPS cannot expunge a report until
instructed to do so by the SCR. This provides State DSS with what
is often the only opportunity for anyone outside CPS to adequately
review this decision. It is apparent, however, that little if any
review is actually conducted. CPS officials from several counties
told the Commission that they could not recall a single instance in
recent years in which State DSS rejected a decision to unfound a
case. Legal research located only one reported case since the
creation of the SCR in which State DSS rejected a decision to
unfound a case.
The impact of expungement on the State DSS oversight system was
acknowledged by the director of a State DSS regional office. He
told the Commission that when his office receives a complaint
concerning an expunged report, the regional office has to rely on
the caseworker's memory to evaluate the complaint since there will
be no records to review. He said that this process is particularly
ineffective in urban areas where caseworkers handle a large number
of cases and are unlikely to remember the specific facts of a case.
Expungement also hampers efforts by local CPS offices to monitor
themselves. CPS officials in several counties told the Commission
that when they receive a complaint concerning a caseworker's
handling of an expunged case, their ability to review the
caseworker's investigation is severely limited. One CPS director
told the Commission that resolution of such complaints turns into
a contest between the word of the complainant and the word of a CPS
caseworker and supervisor.
New York State confidentiality laws also preclude any level of
public accountability by CPS agencies. For example, in the current
controversy over the death of Elisa Izquierdo in New York County,
officials have again asserted that they are precluded by federal
law from providing any details concerning CWA's handling of their
responsibilities regarding this child. Federal law, however, was
changed years ago to permit states greater latitude in providing
information to oversight agencies and to the public, and many
states have taken advantage of these changes to expand oversight
and accountability. New York State law, however, still prohibits
public disclosure of any information from child abuse and neglect
reports, and shields the child protective system from outside
oversight.
The Adam Mann Act, sponsored by New York Congresswoman Susan
Molinari and co-sponsored by New York Congressman Major Owens, was
passed by Congress and enacted into law in 1992. The Adam Mann Act
provides for expanded state and local oversight of child protective
efforts and permits an increased level of public accountability.
Congresswoman Molinari told the Commission that the oversight and
accountability sections of the Act were specifically intended to
ensure that CPS offices would be held strictly accountable for
their actions. In her view, there are instances in which it is
important for the public to know how caseworkers conducted child
abuse investigations. Since 1992, many states have taken advantage
of the Act's provisions and have greatly expanded oversight and
accountability.
Proposed federal regulations issued pursuant to the Adam Mann Act
clearly reinforce the Act's intent. The proposed regulations would
authorize states to permit state and local officials responsible
for the administration and oversight of CPS agencies to review CPS
records subject to the same confidentiality restrictions as apply
to CPS staff. The proposed regulations would also permit states to
authorize public disclosure of information from CPS records
concerning a child abuse investigation, including information about
the duration and outcome of the investigation and any prior related
investigations. Disclosure of information which would violate the
privacy rights of a child's parent or guardian would still be
prohibited.
In view of the significance of these proposed regulations, the
Commission formally endorsed their approval. In July 1994,
Commission Chairman Donald O. Chesworth, on behalf of the
Commission stated:
In the Commission's view, these proposals, if approved, would improve the effectiveness of child protective services by increasing their accountability to oversight agencies, the press and the public. The proposals, if approved, would also improve the quality of child abuse and neglect investigations by sanctioning the full and free exchange of information among members of multi-disciplinary investigative teams. Although the privacy rights of children and families must be protected, it is imperative that confidentiality rules not be used to insulate child protective services from accountability or to hinder legitimate efforts to aid and protect children.While the proposed regulations have not yet been approved, the law upon which they are based clearly permits states to tear down the wall of secrecy behind which the child protective system operates. As of today, New York has done nothing to take advantage of these opportunities for increased oversight and improved public accountability. Other states have been less timid. In Connecticut, for example, following the death of three children during eight days in the spring of 1995, Connecticut officials were shocked into reviewing their child protective system. One of the murdered children, Emily Hernandez, was just nine months old when she was raped and murdered by her mother's boyfriend. The Governor of Connecticut and his Commissioner for the Department of Children and Families authorized an independent panel of experts, including law enforcement officials, physicians and social workers, to investigate Emily's death and report its findings to the public. The panel was asked to answer one simple question, "Why did Emily die?" Within six weeks of the death of Emily Hernandez, a public report was issued by the panel which highlighted blunders by law enforcement and child welfare agencies, health care providers and others which contributed to the death of this little girl.
Within two days of Emily's death, Connecticut officials publicly
confirmed that caseworkers had known of the conditions in Emily's
home prior to her death and had wrongly accepted Emily's mother's
explanation for her infant's broken leg. A Connecticut official
told the Commission that since Emily's death, Connecticut has
instituted and continued a policy of providing the public with
information concerning child abuse cases. This official also told
the Commission that the federal authorities have raised absolutely
no objections to Connecticut's new policy.
In the final analysis, New York State's confidentiality laws mandate silence and its expungement laws mandate ignorance. By destroying the record of the bulk of its work, CPS caseworkers cannot be held fully accountable even to their own supervisors. Furthermore, even in the most egregious cases which come to the public's attention as the result of a child's death, there is often no record of the agency's action available for subsequent review.
One critical area in which change is long overdue is in State
confidentiality laws, particularly those restricting access to SCR
and CPS records. To clarify, amend and improve existing laws:
On February 24, 1994, the New York State Commission of
Investigation (the "Commission"), by unanimous resolution, approved
an investigation into the practices and procedures of the New York
State Department of Social Services ("State DSS") regarding
complaints of child abuse and maltreatment, and other related
matters. This investigation was initiated after the Commission
received a complaint from the Office of the Kings County District
Attorney. The District Attorney's Office wrote concerning their
review of a State DSS investigation into allegations that a seven-
year old mentally retarded girl had been repeatedly sexually abused
while living in a child care institution in Brooklyn, New York.
State DSS concluded the allegations were unfounded. The Kings
County District Attorney's Office determined that the State DSS
investigation which led to this conclusion had been woefully
inadequate. In the letter to the Commission, the District
Attorney's Office suggested that the inadequate investigation by
State DSS strongly suggested that there were deficiencies extending
beyond that one case, and beyond the boundaries of Kings County.
They also expressed concern that the confidentiality and
expungement laws under which this and all child abuse
investigations by State and local child protective agencies are
conducted shield caseworkers from accountability for their actions.
In light of these serious issues, the Commission undertook an extensive examination of child protective practices in New York State. During this investigation, the Commission interviewed well over one hundred professionals in the field of child protection, including child protective services caseworkers, law enforcement officials, social workers, physicians and prosecutors. The Commission obtained information from all sixty-two New York State counties, thirteen other states, the federal government, and private research institutions. The Commission also obtained information on child abuse investigative practices from several sources in the United Kingdom, including Scotland Yard. In addition, the Commission conducted numerous private hearings at which child welfare officials from Albany County, Erie County, Nassau County and New York City testified. Past and present prosecutors and a senior New York Police Department official also testified at these hearings. This report provides an overview of the Commission's investigation and identifies several key areas in which legislative action is urgently needed to better protect the children of this State.
Within a year, the New York State Legislature enacted laws
permitting the chartering of Societies for the Protection of
Children ("SPCC"). For almost a century, these societies were in
the forefront of child protective efforts in New York State.
Initially, these societies acted like law enforcement agencies --
their emphasis was on the arrest, prosecution and punishment of
abusive parents. Abused children were often removed from the home
and placed in foster care or institutions. This method of child
protection, which has been called the child rescue method, was
followed in New York into the 1930s. In other states, notably
Massachusetts, a different approach was taken. The charter for the
Massachusetts SPCC emphasized rebuilding families and preventing
conditions which lead to abuse. This approach, which emphasized
social services, has been called the family preservation method,
and gradually became the norm throughout the United States. By
1973, state and local government social service agencies had
largely supplanted the SPCCs as the primary providers of child
protection in New York State. See footnote 4
These government agencies continued what had become the traditional approach of
providing social services in an effort to preserve the family.
The current system of child protective services in New York State
can be traced to 1973, when the New York State Legislature enacted
the Child Protective Services Act (the "Act"), which is codified in
Title Six of the New York Social Services Law. This legislation
created a state central register ("SCR") for child abuse and
maltreatment reports,See footnote 5 and mandated
the creation of child protective services ("CPS") offices in every
county in New York
State. The law also set forth procedures for reporting and
investigating child abuse and maltreatment allegations.
Under the Act, the SCR operates a toll-free hotline which receives
reports of abuse or neglect from across the State twenty-four hours
a day, seven days a week. After these calls were screened to
eliminate duplicate complaints and complaints not within the
jurisdiction of the SCR, 128,111 reports were registered in 1994.
Abuse complaints accounted for 8.4% of these reports; the remainder
of the reports concerned maltreatment. Mandated reporters
submitted 60.1% of all registered reports. See
footnote 6
When a report is received by the SCR, it is screened to determine
whether or not it falls within the investigative jurisdiction of
State agencies, a local CPS office or law enforcement. Two State
agencies, State DSS and the Commission of Quality of Care for the
Mentally Disabled ("CQC"), investigate institutional abuse and
neglect cases. See footnote 7 Local CPS offices
have jurisdiction over all other abuse and neglect complaints in which
the alleged abuser is a
parent or other person legally responsible for a child's care. See footnote 8 The only cases about which the SCR notifies law
enforcement are those in which it is alleged that a child was mistreated by someone
who cannot be considered legally responsible for the child and the
allegation appears to constitute a crime. In such cases, the SCR
is required to take the information and transmit it by telecopier
to the appropriate law enforcement agency. See
footnote 9 This is known as a law enforcement referral.
Complaints within the jurisdiction of a CPS office are entered into
a computer database and transmitted electronically to the
appropriate CPS office. Additionally, the SCR notifies the local
CPS of the existence of any previous reports which were indicated
or are still under investigation. The local CPS office is then
mandated by law to commence an investigation of the report within
twenty-four hours. See footnote 10 CPS is also
required to file progress reports with the SCR documenting its investigation
and to make a
determination within sixty days as to whether the report should be
"indicated" or "unfounded."See footnote 11
CPS is required by law to take certain steps during an
investigation. CPS must evaluate the causes and nature of any
conditions mentioned in the report, and ascertain the risks faced
by each child in the home. After seeing to the safety of the
children, CPS must then notify the subjects and all other persons
named in the report of the existence of the report. See
footnote 12 A "subject" of a report is a parent, guardian, custodian or other
adult who is accused of abusing or neglecting the child and is legally
responsible for the child. See footnote 13 Other
required investigative steps include home visits, face-to-face interviews and
gathering information from sources such as hospitals, schools, police and
social service agencies. See footnote 14
At the completion of an investigation, a report of abuse or neglect
must be either unfounded or indicated. A case must be unfounded
unless it is determined that there is some credible evidence the
child was abused or neglected by a parent or other person legally
responsible for the child. See footnote 15 A
report will be indicated only if it is determined there is some credible evidence that the
child was
abused or neglected by a parent, custodian or other person legally
responsible for the child. See footnote 16 A
child can be considered abused or neglected if that child is "at-risk" of abuse
or neglect. See footnote 17 "Some
credible evidence" is defined as evidence worthy of being
believed. See footnote 18
If it is determined that a child was mistreated, but the individual responsible either cannot be identified or is identified as someone not legally responsible for the child, the case must be unfounded. See footnote 19
Pursuant to New York State law and State DSS regulations, all
unfounded reports must be expunged, a requirement which State DSS
interprets to require "...the physical erasure or
obliteration/destruction of information from local protective
services records and SCR records."See
footnote 20 Although one statutory section concerning expungement can be read to require
only redaction of
identifying information from unfounded case records, other sections
require expungement of the record itself. See
footnote 21 At least one court has concluded that the legislative intent was to require
destruction of the entire report. See footnote 22
When CPS caseworkers investigating a new abuse or neglect report
contact the SCR concerning prior reports, they will not be informed
of any prior unfounded reports concerning the same child or family.
Rather, they will be told that there is no record of a report with
the SCR. See footnote 23 If a report is
indicated, the subject of the report will be listed with the SCR, and records
concerning the report will be
retained until ten years after the 18th birthday of the youngest
child named in the report. See footnote 24
Reports involving children abused or neglected in institutional settings are retained until
ten years after the child's 18th birthday. See
footnote 25
Records maintained at the SCR and at CPS offices are confidential
and are available only to enumerated agencies and individuals,
including police officers when the records are needed to conduct a
criminal investigation. See footnote 26 The
statutory scheme also mandates that child care licensing agencies and employers check
with the SCR to
screen potential employees or licensees. State DSS is required to
inform such agencies if the applicant is listed as the subject of
an indicated report. See footnote 27
When CPS caseworkers investigate allegations of abuse or neglect,
the traditional practice is to offer social services to help
parents take better care of their children, an approach which often
requires CPS caseworkers to rely on parents or guardians to
voluntarily accept services. See footnote 28 The
services of a family court or criminal court are only sought when cooperation is
refused or it
appears that social services will prove inadequate to protect the
child. See footnote 29 This traditional practice
is reflected in New York State law which provides:
...in those cases in which an appropriate offer of service is refused... or if...[CPS] for any... appropriate reason determines that the best interests of the child require family court or criminal court action, [CPS shall] initiate the appropriate family court proceeding or make a referral to the appropriate district attorney, or both... . See footnote 30Reflecting the traditional approach, the only instance under New York law in which CPS offices are uniformly required to notify a district attorney of a criminal act committed against a child is after the child dies. See footnote 31
The Commission's investigation has revealed growing dissatisfaction
with the traditional social services approach to child abuse
investigations, particularly with respect to allegations of sexual
abuse. As described to the Commission by CPS caseworkers, police
officers and prosecutors, the traditional approach often results in
an abused child being subjected to numerous interviews by CPS
caseworkers, doctors, police officers, prosecutors and others, a
process which is detrimental to the victimized child and to the
case which must be analyzed. Additionally, current practices
regarding the expungement of records are widely recognized as
counterproductive to the child's best interest, and often impede
the work of the various professionals who are required to make
difficult judgments about pending cases. Efforts by local
communities in New York State to develop protocols for a more
effective response to child abuse cases often clash with current
regulatory standards, and compel caseworkers and law enforcement
officials to devise methods to circumvent restrictions pertaining
to information sharing. This has resulted in varied
interpretations of the same law in different counties throughout
the State, and has impeded efforts to design a comprehensive
Statewide approach to these investigations. These issues, and
suggestions for much needed change, will be discussed in detail in
the following chapters of this report.
The purpose of a multi-disciplinary team is to coordinate the
investigation and prosecution of child abuse cases and to reduce
the trauma faced by abused children. Where joint interviews by CPS
caseworkers and police officers are conducted at the outset of an
investigation, the police can begin investigating crimes against
children shortly after a complaint is received by CPS while the
social service needs of a family are addressed by CPS.
Many CPS and law enforcement officials, and others, told the
Commission that early intervention by the police is crucial to the
effective investigation of child abuse cases. A senior detective
with the New York City Police Department who has investigated child
abuse cases since 1985 underscored this point in his testimony
before the Commission. He explained that one of the biggest
problems facing New York City police in conducting child abuse
investigations is that the Child Welfare Administration ("CWA"),
New York City's CPS, is not required by law to notify the police
directly in cases in which criminal child abuse is suspected. See footnote 35 As a result, in many cases the police do not
learn that a crime may
have been committed against a child until weeks after the fact,
often too late to conduct a meaningful investigation. See footnote 36 It should be noted that, unlike New York,
many states require child
protective agencies to notify law enforcement of several categories
of child abuse and neglect complaints. See footnote
37
A close working relationship between police officers and CPS caseworkers is demonstrably the best method of ensuring that those who abuse children are successfully prosecuted for their crimes. See footnote 38
The Center for Policy Research, based in Denver, Colorado,
conducted an empirical study which analyzed child abuse
investigative methods in five jurisdictions: Las Vegas, Nevada;
Denver, Colorado; Colorado Springs, Colorado; Oahu, Hawaii; and
DuPage County, Illinois. These jurisdictions, respectively,
represented points on a continuum between Las Vegas, where the
police and CPS operated relatively independently, and DuPage
County, where they worked most closely together. See footnote 39 A sample of over 1800 cases
was selected and CPS records, police reports and
criminal court records were reviewed. Additionally, in-depth
interviews were conducted with law enforcement and CPS officials to
gain their insights into the effectiveness of joint
investigations. See footnote 40
Patricia G. Tjaden, Ph.D., who conducted this study, was
interviewed by the Commission. She explained that a close working
relationship between police departments and CPS offices is critical
to effective child abuse prosecutions. DuPage County, Illinois,
which Ms. Tjaden described as having the closest working
relationship between police officers and CPS caseworkers, reported
that 75.3% of sexual abuse cases indicated by CPS were referred for
criminal prosecution, the highest referral rate among the
localities studied. The conviction rate for these prosecutions was
94.6%. See footnote 41
The concept and practice of enhancing police involvement in child
abuse cases is not limited to the United States. In the United
Kingdom, many public inquiry reports since the 1970s have
recommended improvements in communication and cooperation among
professionals as a means of better protecting the children of
Britain. See footnote 42 A 1991 study of
arrangements between police and social services departments in England,
Scotland and Wales found that
joint investigations by police officers and social workers,
particularly of child sexual abuse allegations, were becoming
increasingly accepted as the best method for conducting such
inquiries. See footnote 43 Police
officers who participated in these investigations cited a number of advantages to the joint
approach, including "...better communication among professionals; combining
skills and experience; avoiding repetition of interviews; and
access to more information."See footnote
44 Social workers cited similar advantages. See
footnote 45
The Commission interviewed Detective Inspectors Andrew Sellers and
Andrew Gallagher of the London Metropolitan Police concerning child
abuse investigative practices in London. They told the Commission
that approximately seven years ago, in response to publicity
concerning several child abuse cases, the Metropolitan Police
established Child Protection Teams ("CPTs") staffed by police
officers. These teams work cooperatively with social services
agencies in investigating child abuse cases. The CPTs are
available twenty-four hours a day, seven days a week, and receive
cases in a number of ways, including directly from social services,
hospitals, schools and the police patrol force. According to the
Detective Inspectors, the Metropolitan Police also have direct
access, through their computer systems, to the at-risk register
maintained by the Social Services Department. This register is
analogous to New York State's SCR.
All multi-disciplinary teams in New York State examine sexual abuse
cases. Some also investigate serious physical abuse and neglect
cases. Teams can also involve themselves in cases not normally
seen by CPS caseworkers. For example, through the team, CPS
caseworkers can help coordinate social services to children abused
by strangers. Similarly, through the team, police officers can
assist in gathering evidence in cases which will be adjudicated in
a family court rather than in a criminal court. Although the
professions represented on any given team vary from county to
county, all teams in New York State include CPS staff members,
police officers and prosecutors.
State DSS officials advised the Commission that for a multi-
disciplinary team to exist, there must be an agreement between the
local district attorney and the local CPS. Police officials,
according to State DSS, can then receive child abuse complaints
directly as agents of the district attorney in the categories
selected by the district attorney. See footnote 46
As will be discussed in detail in this report, local officials, particularly New York City
officials, expressed serious reservations about interpreting the
law in this fashion. In their view, the Social Services Law
prohibits caseworkers from directly contacting the police
concerning crimes against children.
To develop an understanding of the benefits and problems of greater
cooperation between police officers and CPS caseworkers, the
Commission had detailed discussions with representatives of multi-
disciplinary teams in rural, suburban and urban settings throughout
New York State. In addition, representatives of the Albany, Erie
and Nassau County teams testified before the Commission. In
counties with child advocacy centers, the Commission also
interviewed the directors of the centers. The Commission also had
extensive discussions with and heard testimony from New York City
officials concerning their perception of the legal obstacles to
development of a closer working relationship between caseworkers
and police.
Where multi-disciplinary teams exist, they take many different
forms. Some operate from one location. For example, in Orange
County, a police child abuse task force shares office space with
Orange County CPS. Other teams operate in a more decentralized
fashion. On the basis of discussions with team members, it became
apparent that the structure and operation of a local multi-
disciplinary team depends on a number of factors, including the
number of police agencies in a county, and the availability and
personal dedication of caseworkers, physicians, police officers,
prosecutors and other professionals. Despite differences, however,
these multi-disciplinary teams shared many common points. Team
members all mentioned that the multi-disciplinary approach improves
the quality of child abuse investigations as the result of enhanced
communication and cooperation among professionals. Additionally,
a number of team members expressed hope that by pursuing a multi-
disciplinary approach, there would be a decrease in the number of
interviews child abuse victims faced, thereby reducing further
trauma to these children. Many team members also identified common
problems, including those arising from confidentiality and
expungement laws. Some also raised concerns about the quality of
available child abuse statistics, and the adequacy of child abuse
training for CPS caseworkers, police officers and others. Details
concerning this aspect of the Commission's investigation are
provided below.
Among those interviewed was Barbara Comithier who also testified
before the Commission. Ms. Comithier has been employed by Albany
County DSS since 1971 and is the Associate Director of that
agency's Office of Children and Family Services where she is
directly responsible for Albany County CPS. See
footnote 49 Ms. Comithier told the Commission that, based on
an agreement between her agency and
the Albany County District Attorney, whenever Albany County CPS
receives a report of child sexual abuse from the SCR, a copy of
that report is sent to the District Attorney's Office by courier.
In addition, the police are telephoned, told the nature of the
report and asked if an officer is available to participate in a
joint investigation. According to Ms. Comithier, the Social
Services Law prohibits CPS from providing a copy of the SCR report
to the police absent a written request by the police for that
specific report. See footnote 50 Physical abuse
reports are not forwarded to the District Attorney's Office unless CPS
concludes that the alleged
abuse may constitute a crime. In other words, child welfare
officials and caseworkers will review a complaint to determine if
a crime may have occurred. In such cases, CPS will provide a copy
of the report to the District Attorney along with a request that a
criminal investigation be initiated. See
footnote 51
Paul DerOhannesian was also interviewed by and testified before the
Commission. He has been an Albany County Assistant District
Attorney ("A.D.A.") since 1979 and has conducted approximately 100
felony trials, one-half to two-thirds of which involved children
who were the victims of a crime. See footnote
52 Soon after joining the District Attorney's Office, he was put in charge of that Office's
Special Assault Unit which prosecutes, among other crimes, physical and
sexual assaults against children, including homicides. A.D.A.
DerOhannesian has also lectured extensively on child abuse issues. See footnote 53 He recently had his book, Sexual Assault
Trials, published.
A.D.A. DerOhannesian told the Commission that the Albany County
District Attorney designated police departments in the County as
his agents so the police could receive information about sexual
abuse reports directly from CPS. See footnote
54 A.D.A. DerOhannesian said that due to police personnel constraints, joint investigations
cannot be conducted for every child sexual abuse complaint. He added that
the more egregious the case, the more likely it is that there will
be police involvement. See footnote 55
Confidentiality
Barbara Comithier told the Commission that during a joint
investigation, the police, upon written request, can obtain copies
of all relevant CPS documents concerning the case under
investigation. See footnote 56 If other CPS
documents are requested, however, confidentiality laws and regulations may
prevent CPS from
complying. For example, according to Ms. Comithier, if the police
request all prior indicated reports concerning the family on which
a joint investigation was focused, CPS would be required by State
DSS regulations to determine what documents were and were not
relevant to the police investigation. See footnote
57 Ms. Comithier also told the Commission that other Albany County multi-disciplinary
groups to
which CPS belongs, including the Task Force on Child Sexual Abuse
and the Child Fatality Review Committee, cannot, under current law,
have access to CPS reports. See footnote 58
A.D.A. DerOhannesian told the Commission that in conducting multi- disciplinary investigations, the members of the multi-disciplinary team have learned to live within the confidentiality rules. See footnote 59 Nevertheless, these confidentiality laws continue to have a stifling effect on multi-disciplinary efforts in Albany County. A.D.A. DerOhannesian told the Commission about a child homicide which occurred in July, 1995. At the autopsy, the pathologist requested background information concerning the child's family from the CPS caseworker. The caseworker could not provide any information to the pathologist because it was confidential.
Because A.D.A. DerOhannesian was present, the caseworker was able
to provide the answer to the A.D.A., who then relayed it to the
pathologist. If A.D.A. DerOhannesian had been unable to attend the
autopsy, the information would have remained unavailable to the
pathologist. See footnote 60
A similar problem arose at a meeting of the Albany County Child
Fatality Review Committee. The Committee, which includes
representatives from the Coroner's office, CPS and the District
Attorney's Office, was reviewing the death of a child who had
apparently died of sudden infant death syndrome. Although a
complaint concerning the child had been forwarded from the SCR to
Albany County CPS, CPS could not provide any information about the
report to the Committee because of confidentiality laws. See footnote 61
Expungement
Barbara Comithier was also questioned before the Commission about
the impact of expungement on child abuse investigations. According
to Ms. Comithier "...an unfounding, according to statute, is the
same as not existing."See footnote 62
Therefore, as a matter of law, if the police or the district attorney request information about
an unfounded case, CPS will have no records to give and will be
precluded from providing any information about the case. See footnote 63
Ms. Comithier told the Commission that among the cases which are
now destroyed are those in which abuse is strongly suspected but
cannot be proved. According to Ms. Comithier, if a child who could
not communicate with caseworkers, either because he or she was pre-
verbal or had developmental problems, was acting out sexually, the
child's behavior would provide an indication that this child may
have been sexually abused. Absent some credible evidence of abuse
or neglect, however, this report would have to be unfounded, and
consequently, destroyed. Ms. Comithier said that if there were a
new allegation, a new investigation would have to be conducted
without the benefit of earlier records which could help establish
patterns of behavior which often prove important in such cases. See footnote 64 Ms. Comithier also
cited cases in which a child is born with
cocaine in the bloodstream. These cases are also destroyed unless
there is other credible evidence of abuse or neglect. See footnote 65 If a new case came in alleging drug use by the parent,
information from the
prior report which could establish a pattern of drug abuse by the
parent would no longer exist. See footnote
66
Paul DerOhannesian also provided the Commission with examples of
the impact of expungement on child abuse investigations. One
involved a pedophile who was reported to the SCR for sexually
abusing a young girl. The girl did not tell CPS investigators what
had happened to her. As a result, the case was unfounded and the
records destroyed. Years later, a new complaint was filed with the
SCR, again alleging that the same individual was sexually abusing
the same girl. This time a search of the perpetrator's belongings
was conducted and photographs of him having intercourse with the
girl at the time of the original complaint were discovered. See footnote 67 According to A.D.A. DerOhannesian, because of the
expungement of the original complaint:
...the only way I know... [what happened] and CPS knows it is because there are enough of us who were around at the time originally. So its like Indian Folk [Lore], where you know who is doing what and what the great stories of the community are. But there's no record kept of that. And yet, it was significant to us from an investigative point of view that it had been reported before and we had to try and think back, who did she tell and how did this get reported originally, because that information isn't around. See footnote 68A.D.A. DerOhannesian also cited other difficulties caused by expungement. He noted that if a caseworker were bribed to unfound a case, a criminal investigation would be, at best, problematic, "... because everything is destroyed."See footnote 69
A.D.A. DerOhannesian told the Commission that another problem with
the current system of destroying all unfounded reports is that the
category of "unfounded" is too broad, including, for example, cases
in which a child was abused by someone who was not legally
responsible for the child. See footnote 70
Pursuant to Social Services Law Section 422, all these cases are expunged. A.D.A.
DerOhannesian
compared this to criminal investigations which do not lead to
criminal charges. In these cases, records are not destroyed. See footnote 71 When a criminal prosecution results in an acquittal or
dismissal, the records are sealed and can be unsealed when justice requires. See footnote 72
Ms. Comithier made a similar point. In her view, a case in which
abuse or neglect is ruled out should be destroyed. But cases in
which there are indications of physical and sexual abuse, and cases
in which children are born with illegal drugs in their bloodstream,
should not be destroyed. Ms. Comithier said that these are the
cases which "come back."See footnote
73
Members of the multi-disciplinary team explained to the Commission
that upon receipt of a report of sexual abuse from the SCR, CPS
reviews the allegation and attempts to contact the source of the
report to confirm the allegation. The caseworker then notifies the
police, usually within twenty-four hours of receipt of the report.
The State Police respond to all such calls except those falling
within the geographic jurisdiction of the city police departments
in the County. Cases in the cities are handled by the city police
departments. Police and CPS arrange to conduct a joint interview
of the victim as soon as possible.
With the exception of the initial interview of the child, which is
usually audiotaped, all subsequent interviews of the child are
videotaped if there appears to be sufficient evidence to proceed in
either criminal or family court. Dutchess County District Attorney
William Grady explained to the Commission that this is done because
family court judges in the County are extremely critical of CPS
investigations. By videotaping these interviews, the actions and
interviewing techniques of the CPS caseworker can be observed by
the court. After the interview of the child, the police officer
assigned to the case will interview the suspect; occasionally the
CPS caseworker participates in this interview. CPS and the police
then proceed with their respective investigations, but remain in
contact with each other concerning their efforts. Medical
examinations are conducted by Dr. Rita Jaeger, a physician and team
member, at her nearby medical office. Subsequently, the District
Attorney's Office and the County Attorney's Office may be consulted
to determine whether the case will proceed in criminal or family
court.
During weekly review meetings at the Center, team members discuss their cases and share ideas about how to proceed with investigations. According to all team members interviewed, this is a critical part of the multi-disciplinary approach. District Attorney Grady told the Commission that these meetings afford his staff a valuable opportunity to create better cases by providing an
open forum in which prosecutors can suggest further investigative
steps.
Case Study
Team members told the Commission that the greatest benefit of the
team is that it enables them to communicate more openly with each
other. Team members said open communication results in better
investigations. One case cited as an example of how effectively
the team works involved a ten-year old Pakistani girl who had been
sexually abused by her father. At a case review meeting, a
prosecutor suggested that the victim tape record a telephone
conversation with her father in an attempt to record any admission
by him. When the girl placed the call, the father made a partial
admission in his native language. He was arrested and his daughter
removed from the household.
Confidentiality
Team members explained to the Commission that to address various
concerns about violating confidentiality laws, victims and suspects
are referred to only by their first names during team meetings.
Evidently, other team members have no difficulty identifying the
individuals being discussed. With particular regard to the
confidentiality laws restricting access to CPS records, one team
member, Janet Tullo of the Dutchess County Attorney's Office, told
the Commission that she was concerned that CPS caseworkers might be
violating confidentiality laws by sharing information. She noted
that the Social Services Law's list of the individuals and agencies
that may have access to CPS records is extremely cumbersome. Ms.
Tullo said that as a result, it is often difficult to determine who
may have access to CPS reports. Ms. Tullo, therefore, often
advises CPS caseworkers to err on the side of nondisclosure.
Expungement
A number of team members expressed dissatisfaction with the current
practice of expunging unfounded reports. Margaret Shuhala, a
civilian employee of the New York State Police and a member of the
team, told the Commission that expungement of unfounded reports of
abuse and neglect hinders investigations of subsequent reports. In
her view, if records were not expunged, patterns of sexual abuse
could be established which would aid in the investigation of
subsequent allegations. Ms. Shuhala also stated that the term
unfounded is extremely misleading. Ms. Shuhala noted that even
cases in which abuse is strongly believed to have occurred may be
unfounded. As previously discussed, a case can be unfounded when
it is clear that a child was sexually abused, but it is not
possible to identify a responsible party. Ms. Shuhala also
believes that some cases are unfounded simply so CPS can close the
case within its statutory sixty day deadline. See
footnote 74
Dr. Rita Jaeger told the Commission that she also regards the
expungement of unfounded reports as unfortunate. Dr. Jaeger noted
that destruction of prior cases forces caseworkers to rely only on
their memory. Dr. Jaeger also told the Commission that it would be
helpful to her in examining a child abuse victim to have access to
unfounded reports which might indicate whether a previous medical
examination had been performed. Dr. Jaeger could then review the
findings of her examination in light of the previous medical
examination.
The SCR
According to Dr. Jaeger, SCR operators often terminate calls from
physicians without providing a sufficient explanation for rejecting
the report. She believes that when the SCR rejects reports from
doctors, this discourages these mandated reporters, who are crucial
to detecting abuse, from filing reports. Dr. Jaeger also
questioned the criteria used for rejecting a report. For example,
Dr. Jaeger stated that when she cannot provide the name and age of
the suspected abuser, she must convince the SCR operator to accept
the report, even when the situation described should make clear
that acceptance of the report is warranted. Another problem cited
by Dr. Jaeger is that SCR operators do not appear to have been
trained to recognize medical terminology, and therefore have
trouble understanding doctors' reports.
Statistics
According to District Attorney Grady, the Dutchess County multi-
disciplinary team has not determined whether the number of child
victim interviews has decreased as a result of their efforts, nor
have they measured whether police have secured more admissions from
defendants because of the team approach. District Attorney Grady
believes that the number of prosecutions has increased as a result
of the multi-disciplinary team, but he was unable to provide
statistical support for his belief.
Erie County has also established a Child Advocacy Center (the
"Center") in Buffalo which provides office space and meeting rooms
for members of the multi-disciplinary team, an examining room, and
an interview room with furniture built for children. The Center,
which is designed to be a child-friendly location, was established
to minimize the trauma experienced by child abuse victims as the
result of multiple interviews, to provide victims' families with
social services and to coordinate the work of the multi-
disciplinary team.
Cases referred to the Center from CPS originate at the SCR. Andrew
Huber, Supervisor of the Erie County CPS Sexual Abuse Team, was
interviewed by and testified before the Commission. Mr. Huber has
been employed by Erie County DSS since 1967 and has been assigned
to its CPS division since 1970. He has been a CPS Supervisor since
1982 and has supervised the agency's Sexual Abuse Team since its
formation in 1987. In recent years, the Sexual Abuse Unit has
investigated approximately 450 child sexual abuse cases a year. See footnote 75
Mr. Huber told the Commission that when Erie County CPS receives a sexual abuse complaint, a copy is faxed to the Erie County District Attorney and, in certain jurisdictions, a copy of the report is also sent directly to the police either by fax or by mail. These notifications are provided pursuant to an agreement between the
District Attorney and the Erie County DSS Commissioner. See footnote 76 In most cases, a CPS caseworker from the Sexual
Abuse Unit will conduct an
initial review of the case and take any necessary steps to ensure
the safety of the child. If the child makes a credible statement
to the caseworker, the Child Advocacy Center will be asked to
arrange for a multi-disciplinary interview. See
footnote 77 These interviews are done at the Center. Typically, one person interviews the
child while other team members observe from an adjoining room through a
one-way mirror. See footnote 78 Mr. Huber said
that conducting a multi- disciplinary interview at the Center helps the child
by providing a relaxed and friendly atmosphere in which the child can discuss
sensitive and difficult matters. See footnote
79
Team members told the Commission that progress and problems with
cases are discussed at case review meetings which are held at the
Center every other week. These meetings afford team members an
opportunity to discuss their cases, including those which are
proving difficult to investigate. Important decisions concerning,
for example, whether to make an arrest or proceed with a family
court petition, are discussed at these meetings. The power to
decide such matters, however, remains with the agency which has
appropriate authority.
Statistics obtained from the Child Advocacy Center indicate that
since May 1994, the majority of cases handled by the Center have
been referred by CPS and the Buffalo Police Department. A detailed
statistical analysis to gauge the success of the Child Advocacy
Center, however, has not been conducted. For example, the team has
not yet analyzed all the cases that have come through the Center to
determine how many arrests were made, how many suspects made
admissions, and how many misdemeanor and felony convictions were
obtained. Jen Henry, the Director of the Center, told the
Commission that she intends to gather this information in the
future. Ms. Henry is hopeful that the number of child victim
interviews conducted by different agencies has decreased. She
noted that in approximately 30% to 40% of the joint interviews of
child victims conducted at the Center, three or more team members
participated.
Case Study
The members of the Erie County multi-disciplinary team agree that
the multi-disciplinary team and the Child Advocacy Center have been
successful. Dr. Jack Coyne, a pediatrician and team member who
conducts medical examinations of child abuse victims at the Center,
gave a vivid example of a case which illustrated how the team works
together effectively. In this case, a teenage girl told police she
had been kidnapped, raped and held captive overnight. The police
alerted the team and a meeting was convened at the Center to plan
an interview of the girl. The team determined that the girl should
be interviewed by two police officers while an assistant district
attorney and other team members observed through a one-way mirror
at the Center. The interview lasted over an hour during which time
team members became suspicious that the girl had fabricated the
story.
When the interview was completed, Dr. Coyne was scheduled to
conduct the girl's medical examination. When the girl was brought
to the examination room, she told Dr. Coyne that she was upset
because the police and the assistant district attorney did not seem
to believe her. Dr. Coyne told her she should not worry about
proving her case to the police because DNA test results on the
sperm samples he had recovered from her would reveal the truth. At
that point, the girl said she would like to speak to the police
again. When the police re-interviewed the girl, she admitted she
had fabricated the story, and the truth was that she had engaged in
consensual sex with her boyfriend, not with the man she accused of
raping her. The investigation was promptly terminated. The team
members felt satisfied that they had completed the investigation
quickly and effectively, without arresting anyone on false rape
charges. Dr. Coyne told the Commission that without the team and
the Child Advocacy Center, this case might have taken weeks or
months to resolve.
Confidentiality
In his testimony before the Commission, Andrew Huber said that the
confidentiality provisions in the Social Services Law raise
concerns which the multi-disciplinary team has grappled with since
its inception. Mr. Huber advised the Commission that, currently,
a consultant has been retained to review this matter. One major
concern is that sharing confidential information with the Child
Advocacy Center may lead to litigation. See footnote
80 Jen Henry said that she was particularly concerned that
records she maintains to track case
progress may run afoul of confidentiality laws.
Others voiced concern over violating confidentiality laws
particular to their professions. For example, social workers who
work with the team do not attend case review meetings at which
investigative plans are discussed. They absent themselves to avoid
learning of matters which could create a conflict of interest for
them. See footnote 81 It should be noted,
however, that team guidelines provide that all clients served by the
Child Advocacy Center must be
informed that the multi-disciplinary team will discuss their cases.
Clients are also asked to sign a consent form permitting
information sharing among team members.
Expungement
Members of the Erie County multi-disciplinary team told the
Commission that the destruction of unfounded reports makes the
investigation of subsequent reports more difficult. Andrew Huber
advised the Commission that it would be helpful to caseworkers
investigating pending cases if records from cases in which abuse
was strongly suspected, but could not be proved, were retained. See footnote 82 Mr. Huber was also asked about cases of a different
nature:
By Commissioner Martoche:
Q. ...what is your opinion about a situation where there is a suspicion that a child has learned to use the system as a weapon...
If that happens and the case is unfounded, okay, [but] if that child comes back or moves to another location and brings the same kind of charges to the attention of CPS or some other agency and the people there don't have the history of the child's past conduct in this regard, would this be a problem which could be addressed, do you think, by some changes in the expungement policy?
A. Absolutely. I think it would be very, very helpful... any historical reference to the propensity of the child or an adult to either fabricate, enlarge or be particularly credible, is useful information because it will facilitate the current investigation.
And anything that will make an investigation easier on the child and easier to reach the truth...is beneficial. See footnote 83
The SCR
Dr. Jack Coyne told the Commission of his frustration in filing
reports with the SCR. He said that he has had to convince SCR
operators to accept reports of abuse, and that unless reports are
phrased in exactly the manner the SCR requires, the report will be
rejected. According to Dr. Coyne, it is not unusual for the same
report to be rejected by one SCR operator and then accepted by
another operator in a subsequent call.
See footnote 84
When a CPS caseworker receives a complaint alleging sexual abuse
from the SCR, a memorandum containing the relevant information is
sent by CPS to the District Attorney by inter-office mail within
twenty-four hours. If the source of the report is someone other
than the victim, the CPS caseworker speaks to the source in an
initial screening of the case within twenty-four hours. If the
report appears to be valid, the CPS caseworker then contacts the
police by telephone to make arrangements for a joint investigation.
A CPS caseworker and a detective interview the child together, with
the CPS caseworker usually taking the lead. Once this interview is
completed, the CPS caseworker interviews the child's siblings and
talks to the non-offending parent to develop a social services plan
for the child.
CPS is required by team guidelines to notify the police before
disclosing to the suspected abuser that a report has been made. See footnote 85 The police, without a CPS caseworker present, then
interview the suspected abuser. After the investigation is completed, the police
may arrest the suspect, if warranted, and CPS may petition Family
Court for any order they deem necessary in the case. CPS can also
refer the family and victim for any necessary services, such as
counseling. In addition, CPS will arrange for a medical
examination for the child, usually within twenty-four hours of the
report. The team conducts monthly meetings during which both cases
and policy issues are discussed.
District Attorney Giardino and other team members cited a number of
factors which have contributed to the success of the multi-
disciplinary team in Fulton County, including specialized training
of CPS caseworkers, prosecutors and police, and enhanced
communication between CPS and law enforcement. According to
District Attorney Giardino, before the creation of the team,
prosecutors rarely maintained contact with a child victim between
the time of arrest and the time of trial. As a result, prosecutors
were sometimes unaware that victims and their families had moved
out of the County or lost interest in prosecution of the case.
Since formation of the multi-disciplinary team, the child has
frequent contact with professionals in the community.
Additionally, the team helps victims and their families receive
counseling and other services, including assistance in filing
compensation claims.
According to CPS caseworkers Lauren Dybas and Cynthia Licciardi,
the team has been successful in other ways as well. They believe
that joint investigations have reduced the number of times a child
is interviewed. Ms. Dybas noted that before the team's joint
investigation strategy was initiated, a child might be interviewed
separately by CPS, the police, school teachers and other officials
before the case could proceed. Now the police and CPS conduct only
one interview of the child before the case is referred to the
District Attorney for prosecution. CPS supervisors told the
Commission that while the indication rate in the County for non-
sexual abuse cases has generally declined in recent years, the
indication rate for sexual abuse cases has increased. Ann Solar,
one of the CPS supervisors interviewed, attributed this increase,
in part, to the use of a validator, a child sexual abuse expert who
is consulted when CPS has difficulty making a determination of
sexual abuse. Additionally, Ms. Solar noted that CPS caseworkers
who investigate sexual abuse have received specialized training and
are, therefore, better equipped to evaluate cases.
Confidentiality
According to District Attorney Giardino, the primary problem facing
the team is concern that sharing information among the various
agencies on the team violates state confidentiality laws. He was
reluctant, however, to describe the specific problems encountered
by the team in this area.
Expungement
Team members also expressed dissatisfaction with current
expungement laws regarding unfounded reports. Most team members
agreed that expungement of unfounded reports made the investigation
of subsequent reports of abuse and neglect more difficult. Lauren
Dybas told the Commission that prior unfounded reports would be
useful in the investigation of a subsequent report to indicate
whether or not the parents would be cooperative, to identify any
collateral contacts who should also be interviewed, and to
establish the nature and extent of the investigation into earlier
allegations. Ms. Dybas also told the Commission that prior
unfounded reports would be useful for other reasons. She mentioned
a case in which she was subpoenaed to testify in Family Court
concerning a prior report which had been unfounded because the
perpetrator was not legally responsible for the child. Since the
record of the investigation had been expunged, Ms. Dybas had no
documents she could use to refresh her recollection of the case.
Ms. Dybas said she was uncomfortable testifying without being able
to review the case records.
Fulton County CPS caseworkers told the Commission that the
expungement of all unfounded reports results in the destruction of
cases in which there is evidence that a child was sexually abused.
For example, Ms. Dybas told the Commission that she has
investigated cases in which young children exhibited clear symptoms
of sexual abuse, such as acting out sexually, but the cases had to
be closed as unfounded because the children were non-verbal and the
parents denied culpability. As a matter of law, these reports were
subsequently destroyed.
Dr. John Glenn, the team physician who performs medical
examinations of child abuse victims, expressed concern over the
difficulties faced by mandated reporters when calling in suspected
abuse cases to the SCR. Dr. Glenn told the Commission of a case in
which an SCR operator refused, without an adequate explanation, to
accept a report of what he believed was a serious case of child
abuse by a baby-sitter. Moreover, the SCR operator did not suggest
any alternative action for Dr. Glenn to take, such as calling the
police.
Statistics
According to District Attorney Giardino, statistics regarding
increases in arrests and jail sentences for perpetrators of child
sexual abuse provide evidence of the success of the team. He told
the Commission that since the team's creation, the percentage of
arrests in child sexual abuse complaints has increased
approximately 20%, and the number of defendants receiving prison or
jail sentences has increased 30%. In 1991, for example, eighty
reports of child sexual abuse were made to CPS; thirty-seven of
these reports were indicated by CPS; eleven perpetrators were
arrested; and four received jail sentences. In 1993, seventy
reports of sexual abuse were reported to CPS, thirty of these reports
were indicated, thirteen abusers were arrested and nine received jail sentences.
Judy Van Patten, the Jefferson County CPS Director and a member of
the multi-disciplinary team, told the Commission that the team
includes CPS caseworkers, the Chief Assistant District Attorney,
officers from the City of Watertown Police Department and the State
Police, a doctor, social workers, probation officers and others.
The memorandum of understanding under which the team operates
provides that CPS is required to notify the District Attorney and
the appropriate police department of all child abuse cases
involving allegations of death, serious physical injury or sexual
abuse. In practice, when such complaints are received by CPS from
the SCR, the police are called by CPS and copies of the CPS records
are forwarded to Chief Assistant District Attorney Cindy Intschert
for review.
When CPS calls the police, efforts are made to use joint
investigative teams whenever possible. When a joint investigation
is conducted, a police officer and a CPS caseworker interview the
child together. Typically, the police officer will then attempt to
interview the alleged abuser without a CPS caseworker present.
Although CPS must begin its investigation within twenty-four hours
of receiving a complaint from the SCR, if the police ask CPS to
wait so an officer can be made available, CPS will comply. This is
done to facilitate police involvement. Police officers and CPS
caseworkers also told the Commission that even when it is clear in
the early stage of an investigation that the case will not result
in a criminal prosecution, but may be presented in Family Court,
the police will remain involved in the case to enhance the quality
of the Family Court case. Although they work together, police
officers retain authority with respect to law enforcement decisions
and CPS caseworkers retain decision-making authority regarding the
social service needs of the child and family.
The Commission also interviewed Robert Cooke, a Senior Investigator
with the New York State Police, who is a member of the team.
Senior Investigator Cooke believes that a police investigator
should be involved at the earliest possible point in the
investigation of a complaint of child sexual abuse to collect
evidence, give the child a sense that an authority figure is
concerned, and increase the possibility of obtaining a confession
from a perpetrator. He said that confessions are particularly
important in these cases because many victims are too young to
testify in criminal or family court.
According to Senior Investigator Cooke, the State Police act on
child sexual and physical abuse complaints from across the County.
These complaints come in directly from the SCR via law enforcement
referrals, through calls from CPS caseworkers, and through reports
made to the police by civilians. Due to caseload and personnel
constraints, the State Police in Jefferson County do not have a
single officer or unit designated to investigate child abuse
complaints. Instead, an investigator is assigned on a case-by-case
basis. Senior Investigator Cooke believes a designated
investigator or squad would be preferable.
Police officers and CPS caseworkers told the Commission that when
it appears that an immediate medical examination of a child would
be appropriate, for example when a child alleges having been raped
within the last forty-eight hours, either CPS or the police will
bring the child to Samaritan Medical Center in Watertown. Dr. Jane
Hylan, who is a staff physician at Samaritan Medical Center and a
team member, has created a protocol for use in the hospital's
Emergency Room. Under the protocol, an examination is conducted to
look for physical indicia of abuse, such as semen, which could be
useful in a subsequent prosecution. CPS caseworkers and police
officers told the Commission that they prefer to have Dr. Hylan
personally perform all medical examinations of child abuse victims.
Dr. Hylan told the Commission that she is able to serve on the team
and make herself available to testify in family or criminal court
proceedings because her hours at the hospital are flexible. In her
view, communities which have teaching hospitals should use these
hospitals for the examination of child abuse victims because
doctors at such hospitals often have more time available than other
physicians. For a variety of reasons, Dr. Hylan believes local
pediatricians are often ill-equipped to conduct the medical
examinations necessary in sexual and physical abuse cases.
The County's CPS Director described several advantages to using a
multi-disciplinary team. Before creation of the team, the response
of local agencies to child abuse cases was hampered by their lack
of coordination. Since then, communication among these agencies
has improved as team members have explained and defined their
respective roles to each other. Senior Investigator Cooke and
Assistant District Attorney Intschert both stated that the team has
been particularly effective in opening lines of communication among
the various agencies involved in child sexual and physical abuse
cases.
Confidentiality
CPS Director Judy Van Patten told the Commission that among the
problems which the team faces are those arising from
confidentiality laws. Ms. Van Patten stated that CPS caseworkers
are concerned about the dissemination of confidential CPS
information to police agencies. Senior Investigator Cooke also
cited problems with exchanging information. He mentioned
restrictions on police agencies in providing criminal history
information to CPS as one area of concern. Assistant District
Attorney Intschert also cited confidentiality laws as a problem for
the team. In her view, team members should be able to freely
exchange information needed to protect children.
Expungement
According, to Ms. Van Patten, expungement laws are also an
impediment to the investigation of child abuse cases. Ms. Van
Patten said that when past unfounded cases become relevant, CPS
caseworkers must rely on their memory or those of their co-workers
for important details from earlier complaints. Ms. Van Patten,
however, does not believe all unfounded cases should be retained.
In her view, the decision on whether or not to expunge an unfounded
case should be made by the county CPS where caseworkers have a
better sense of what might constitute a repetitive offender case
versus a case involving meritless, vindictive reporting. Assistant
District Attorney Intschert told the Commission that the
expungement of all unfounded reports hinders the effectiveness of
law enforcement efforts to combat child abuse.
The SCR
Dr. Hylan told the Commission that one problem doctors face
concerns the SCR. According to Dr. Hylan, it sometimes takes forty
minutes to an hour to reach SCR operators. Dr. Hylan also
complained that SCR operators sometimes refuse to accept complaints
from mandated reporters. Dr. Hylan believes additional phone lines
and a clear criteria describing acceptable complaints are needed.
Training
With respect to training, Ms. Van Patten noted that team members
share their education and training resources. For example, CPS
caseworkers were scheduled to attend a police drug awareness
seminar aimed at providing them with training on identifying the
presence and possible use of illegal drugs in homes they visit.
Police officers have attended CPS seminars to better prepare them
to identify indicia of child abuse. Senior Investigator Cooke
mentioned that the State Police provides in-service training
regarding child abuse cases. Assistant District Attorney Intschert
told the Commission that although she was not aware of anyone in
her office having recently attended formal training programs, she
had received training on prosecuting child abuse cases. Dr. Hylan
told the Commission that additional child abuse training of
physicians, police and judges is also needed.
Statistics
Senior Investigator Cooke told the Commission that the State Police
does not maintain separate statistics concerning child abuse cases
involving family members. He was, however, able to provide the
Commission with statistics concerning the number of cases involving
child victims handled by his Watertown unit. See footnote 86 Senior Investigator Cooke
thought that it would be a simple matter to code state police
arrest reports in child abuse cases to provide more detailed
statistics concerning child abuse in New York.
Maureen McLoughlin is the Director of Nassau County CPS. She has
a master's degree in social work from Fordham University and has
taught courses relating to child abuse in various forums since
1991, including Hofstra University where she has taught a course on
violence and its relationship to children, families and the
community. See footnote 90 Ms. McLoughlin
was interviewed by and testified before the Commission.
Ms. McLoughlin told the Commission that in a joint investigation,
once her office receives the SCR report, a caseworker will attempt
to contact the source of the report to request additional
information and assess the credibility of the source. See footnote 91 Then a caseworker and a police officer will interview
the child about whom
the report was made in as neutral a setting as possible. If there
are other children in the home, these children will be interviewed
as will the non-offending parent or guardian and, finally, the
alleged perpetrator. See footnote 92 Although
serious physical abuse cases are not specifically covered by the
multi-disciplinary team agreement,
Ms. McLoughlin informed the Commission that Nassau County CPS will
also contact the police when such cases are received. See footnote 93
Ms. McLoughlin told the Commission that when the police are
involved at the beginning of a child abuse investigation, it helps
put the child at ease by providing the child with an opportunity to
be interviewed once instead of many times. She also said that the
police in Nassau County want to be involved in a case at the
beginning, not weeks later after better explanations have been
invented and evidence has been eliminated. See
footnote 94
Ms. McLoughlin described another advantage to joint investigations:
Confidentiality Issues
Ms. McLoughlin told the Commission that CPS and the Police
Department freely share information without concern about violating
confidentiality laws. Ms. McLoughlin said that this free flow of
information is permitted because of the agreement which established
the multi-disciplinary team and because the Social Services Law
permits CPS to talk to individuals involved in the health or safety
of a child. See footnote 96 On the basis of this
cooperative relationship, CPS can obtain valuable information
concerning a suspected abuser's
criminal convictions from the police. Ms. McLoughlin gave an
example of a two-day old child born with a positive toxicology for
illicit drugs. Knowing that the mother has a history of criminal
convictions for sale and possession of drugs is very helpful
information to a CPS investigator. See footnote
97
In Nassau County, there are monthly meetings of a multi-
disciplinary review panel. These meetings are usually attended by
Ms. McLoughlin, the supervisor of either the CPS Sex Abuse Unit or
the CPS Positive Toxicology Unit, and representatives from the
Nassau County Medical Center, the District Attorney's Office, the
Police Department and the Nassau County Coalition on Child Abuse
and Neglect, which coordinates multi-disciplinary efforts in Nassau
County. See footnote 98 CPS cases are
discussed by name and information is shared among the various agencies
present. According to Ms. McLoughlin,
the members of the review team have concluded that they are allowed
to speak to each other. She also said that information sharing at
these meetings has a very positive impact on the effectiveness of
the multi-disciplinary review team and provides an opportunity for
its members to coordinate the best treatment plan for a child. See footnote 99
Ms. McLoughlin stated that information sharing is a problem with
regard to the probation department. Specifically, Ms. McLoughlin
stated that confidentiality laws prohibit the probation department
from sharing information with CPS relevant to a child abuse
investigation when both agencies are conducting investigations
simultaneously. Ms. McLoughlin believes that probation often has
information relevant to a CPS investigation which it cannot
lawfully provide to CPS. See footnote
100
Expungement
According to Ms. McLoughlin, 77.4% of all investigations conducted
by Nassau County CPS in 1994 resulted in an unfounded report. See footnote 101 Ms. McLoughlin told the Commission that among
these unfounded
reports are positive toxicology reports which would have been
indicated reports prior to 1991. That year, State DSS, based on
its interpretation of State law, began to require evidence beyond
the fact that the mother used illegal drugs during pregnancy to
establish abuse or neglect, a legal interpretation which has since
been adopted by the Court of Appeals. See
footnote 102 Also among the unfounded cases are those in which a non-verbal child acts out
sexually, but there is no evidence of abusive or negligent behavior by the
child's parents, and cases in which it is established that the
allegations of abuse were intentionally false. See
footnote 103
According to Ms. McLoughlin when there is evidence that a child is
acting out sexually, but insufficient evidence to indicate a
report, lingering concern over the welfare of that child remains.
When a similar complaint is made about the same child at a later
date, the new caseworker would have no background information,
making it far more difficult for the caseworker to look back and
see that this child acted out sexually six months or a year
earlier, and making it less likely that the caseworker will regard
the new allegation of sexual abuse as credible. See
footnote 104 Ms. McLoughlin also noted that the expungement of unfounded reports makes
it more difficult to hold caseworkers accountable. In some cases, because
the record has been destroyed, it is impossible for a CPS
supervisor to tell if a caseworker is doing a good job or not. See footnote 105
Case Study
When it appears that a report was intentionally false, another
concern arises. If a series of such reports were filed, the
constant re-investigation of baseless allegations would itself have
a negative effect on the child. See footnote
106 Ms. McLoughlin told the Commission of a case concerning grandparents in the County
who have
custody of their grandchildren. The children's father had died and
their mother, who was mentally ill, would often send in complaints
against the grandparents to the SCR, some written on restaurant
napkins, others on the backs of envelopes. Whenever the SCR
considers that there might be some credibility to the allegations,
a report is referred to Nassau CPS for investigation. In
responding to these referrals Nassau CPS has visited these children
over and over again. A psychiatrist, after seeing the youngest
child, told CPS that these investigations are causing the child to
get upset every time she is pulled out of school. When the law
came into effect to permit CPS to notify the District Attorney
about intentionally false reports, CPS notified the Nassau District
Attorney about this case. When the District Attorney asked to see
the prior unfounded cases, Ms. McLoughlin had to respond: "I don't
know this family."See footnote 107
Ms. McLoughlin believes that the problem with expungement is the
category of cases to which it is applied is too broad. She
believes that a middle category should be created. See footnote 108
As the Commission discovered in discussions with New York City
prosecutors, police officers, Child Welfare Agency ("CWA")
caseworkers, Human Resource Administration ("HRA")See footnote 109 officials and others, there is no shortage of
explanations for this state of
affairs. Chief among them, however, is the conclusion by many
within the New York City child protective system that the law
forbids such cooperation.
Confidentiality
Police Notification
The Commission's review of the relationship between CWA and the New
York City Police Department ("NYPD") focused primarily on Kings
County. Discussions with prosecutors in all New York City counties
and officials with city-wide responsibilities at the Mayor's
Office, HRA and elsewhere indicated that the practices in Brooklyn
were, in large measure, comparable to those in the other boroughs.
Kings County, with a population of approximately 2.3 million, is
the most populous county in the State. It also has the highest
number of child abuse and neglect reports. In 1994, the SCR
received 15,404 reports of child abuse and neglect concerning the
children of Brooklyn.
According to CWA supervisors interviewed by the Commission, there
are four CWA offices in Kings County which receive SCR reports.
Upon receipt, the established procedure is for a CWA supervisor to
review the report with a caseworker who is then required to
initiate an investigation within twenty-four hours of receipt of
the report. The first step in the CWA investigation is typically
a "field" visit to the child's home or school. The CWA caseworker
continues with the investigation, usually independent of the
police. For sexual abuse cases, CWA may also refer non-emergency
cases to the Special Victims Clinic at Kings County Hospital where
physicians specializing in child sexual abuse can examine the
victim. The Clinic, however, is only open one day a week.
Pursuant to a memorandum of understanding between CWA and the Kings
County District Attorney, CWA faxes the District Attorney all SCR
reports concerning allegations of sexual abuse and serious physical
injury. CWA does not, however, transmit these reports with any
degree of urgency. The Commission was advised that it often takes
two days before reports are transmitted. According to Louise
Cohen, Senior Assistant District Attorney in the Sex Crimes-Special
Victims Bureau of the Kings County District Attorney's Office, this
two day delay marks a significant improvement. Formerly, the
District Attorney's Office often had to wait at least two months
before CWA would provide a copy of an abuse report.
A.D.A. Cohen estimated that CWA refers approximately 3,000 abuse
reports a year to the District Attorney's Office. The District
Attorney's Office screens these reports to determine which cases it
will forward to the NYPD Special Victims Squad for investigation.
Cases which routinely would be referred to the police include
shaken baby syndrome reports and reports in which sexual abuse has
been confirmed and the victim is at least seven years old. The
Special Victims Squad, after reviewing the case again, initiates
investigations in cases in which the victim is under the age of
eleven or when any forcible sex crime is reported. All other
reports are referred by the Special Victims Squad to local precinct
detective squads for investigation.
Cases received by the District Attorney's Office which are not
referred to the police are assigned to a paralegal in the District
Attorney's Office. Typically, the paralegal will contact the CWA
caseworker, the source of the report and, if the child received
medical attention, the examining physician. Afterwards, the case
will be re-evaluated to determine if it should be referred to the
police for further investigation. If a child recants an allegation
of abuse or if the victim is under seven years old, See footnote 110 the District
Attorney's Office will interview the child and members of the
child's family in person before determining how to proceed with the
case.
NYPD Detective Frederick Raymond Layne has investigated child abuse
cases since 1985. When he was initially interviewed by the
Commission, he was assigned to the Brooklyn Special Victims
Squad. See footnote 111 He was
subsequently promoted to the position of Intelligence Officer at the Special
Victims Liaison Unit at police
headquarters and was serving in that capacity when he testified
before the Commission. See footnote 112
Det. Layne told the Commission that this system of police notification seriously hampers
the investigation
of child abuse reports. Det. Layne told the Commission that
detectives often do not receive child abuse reports until days or
weeks after abuse is first reported to the SCR. Det. Layne
underscored this point by telling of the results of a random survey
he conducted of six recent cases to determine how much time had
elapsed between the initial report to the SCR and his receipt of
the complaint; the best time was four days, the worst was twenty-
three. See footnote 113 Det. Layne added
that, by contrast, when a child is allegedly abused by a stranger, the
NYPD usually receives the law enforcement referral from the SCR within an hour of the initial
report. See footnote 114
Case Study
Detective Layne provided an example of the effect of this delay on
one New York City child. He recalled a case in which an eighteen-
month old child was brought to a hospital. Apparently hospital
personnel, after seeing the injuries to the child, filed an abuse
report with the SCR. The CWA caseworker who responded to the
hospital interviewed the child's mother and accepted her
explanation that the child was injured by bumping into things while
crawling. The mother was allowed to take the child home. Several
days later, the child was brought back to the hospital by the
Emergency Medical Services. The child, bearing numerous bruises
about the body, died at the hospital. This time the police were
called. The mother, under police questioning, admitted she had
beaten her child to death. See footnote 115
According to Det. Layne, if the police had been notified at the time of the first visit:
Also, the mere fact that...the police were involved might
have put the parents on guard and...[perhaps] the child
would not have been killed... . See footnote
116
A CWA supervisor interviewed by the Commission agreed that
referring reports to the district attorneys' offices exclusively,
rather than also referring these reports to the police, precludes
CWA and the police from conducting joint investigations. She
explained that in CWA's view, the current confidentiality law makes
it impossible to change this notification system because the law
only authorizes CWA to provide reports to the district attorney.
This view is, obviously, not shared in other jurisdictions
throughout New York State.
Charles Hollander was interviewed by and testified before the
Commission. Mr. Hollander is a Deputy General Counsel at HRA where
he is in charge of the Children and Family Services Division in
HRA's Office of Legal Affairs. The division he heads is
responsible for representing CWA in most legal proceedings. For
the last twenty-five years, Mr. Hollander's legal career has
focused on child welfare law. He has lectured and conducted
training seminars on child welfare law and is Chairman of the
Family Court and Child Welfare Committee at the New York County
Lawyers' Association. See footnote 117
Mr. Hollander told the Commission that under the Social Services
Law, only district attorneys are permitted to receive information
directly from CWA about cases in categories selected by that
district attorney. See footnote 118 According
to Mr. Hollander, there is no provision under current law to permit CWA to
provide the same
information to the police simultaneously. See
footnote 119 Similarly, according to Mr. Hollander, "...generally speaking, CWA
does not and cannot on its own initiative contact the police." Mr. Hollander further
explained that current law does not require CWA to notify the
police concerning any complaint of child abuse or neglect. See footnote 120
Mr. Hollander explained to the Commission that there are several
other legal impediments to CWA providing information to the police.
Assuming police officers were investigating a child abuse case and
requested to see CWA records relevant to the police investigation,
CWA would be permitted to provide the officers with information
only if the crime under investigation was reasonably related to the
allegation in the CWA report and the person the officers were
investigating was a subject of the CWA report. If these same
officers asked to see prior CWA reports concerning the same family,
however, CWA could only provide information which CWA determined
was reasonably related to the current police investigation. If the
police were investigating a case which did not involve child abuse
or neglect, CWA could not provide the police with any information.
Mr. Hollander told the Commission of two police investigations, one
involving an arson and the other involving a robbery, where CWA was
prevented from providing any information to the police. See footnote 121 Mr. Hollander also said that if the police requested
information about an unfounded report, the record itself could not be provided
because it would have been destroyed and any caseworkers who
remembered the case could tell the police nothing. See footnote 122
Case Study
Mr. Hollander also addressed the other side of the coin, the legal
prohibition against CWA receiving information from law enforcement.
Specifically, he pointed to the restrictions which prohibit CWA
from receiving criminal history information from the Division of
Criminal Justice Services. Mr. Hollander told the Commission about
a recent case in which a child was in protective custody. A man
who claimed to be the child's father petitioned the Family Court
for custody of the girl. Based on the information available, the
Court decided to grant the petition. At that time neither the
Court nor CWA knew that this man had an extensive criminal record
which included crimes of violence. His criminal history was not
discovered until after he beat the girl to death. See
footnote 123
The Prompt Response Protocol
Two programs have been developed in Kings County and elsewhere in
New York City to provide for earlier police involvement in child
abuse cases. One is the City-wide Prompt Response Protocol (the
"Protocol"). A.D.A. Louise Cohen told the Commission that this
Protocol was designed to get the police involved early in cases of
serious physical or sexual abuse of children. New York City
hospitals which participate in this Protocol call the police, in
addition to the SCR, when serious physical or sexual abuse is
suspected. Patricia Henry of the New York City Mayor's Office of
the Coordinator of Criminal Justice told the Commission that one
goal of this approach is to remove child abusers, rather than
abused children, from homes.
Although all city and voluntary hospitals in Kings County and the
other boroughs are targeted to participate in this Protocol, not
all do. Some hospitals are reluctant to call the police regarding
an abused child because they are not immune from civil and criminal
liability, as they are when they call the SCR. See
footnote 124 A.D.A. Cohen told
the Commission that although she firmly endorses the Protocol, she
fears it will not continue. She told the Commission that some
hospital personnel stopped participating after the Protocol was
implemented because they thought it was only a short-term pilot
program. Ms. Cohen also noted that due to staff turnover at
hospitals, without periodic training of medical personnel, the
Protocol will not be followed.
The Child Advocacy Center
In 1992, a pilot project was initiated in Brooklyn to improve the
response of New York City's CWA, law enforcement, medical and
mental health agencies to child sexual abuse through the
development of a multi-disciplinary team response protocol. The
pilot project was intended to reduce the trauma the investigative
process can cause to sexually abused children by coordinating the
efforts of the agencies charged with the investigation and
treatment of child sexual abuse. Creation of a Child Advocacy
Center (the "Center") would make it possible to coordinate services
in one location and make it logistically possible for CWA
caseworkers and police officers to conduct joint investigations.
Although several agencies are participating in the planning of the
Kings County Center, including NYPD, CWA, the Victim Services
Agency (a non-profit private agency), the Kings County District
Attorney's Office, and the New York City Health and Hospitals
Corporation, neither the Center nor a fully functioning multi-
disciplinary team has been established as yet. Investigations of
cases by CWA and the police are still not conducted jointly.
According to several individuals involved in the County's effort to
create the Center and multi-disciplinary team, lack of coordination
continues to seriously impede prompt investigation by the police of
child sexual abuse cases in the County. See
footnote 125
One goal for the Center is to reduce the number of interviews of
child abuse victims. Dr. Stephen J. Ajl, a physician who is the
Director of the Special Victims Clinic in the Pediatric Resources
Center at Kings County Hospital, told the Commission that under
current practice, if an abused child is brought to the Kings County
Hospital Emergency Room on a Saturday night, the child will first
be interviewed by a triage nurse, then a junior doctor, and then a
senior doctor who will call CWA. CWA will then send an emergency
worker to the hospital to interview the child. Eventually, the
police will also interview the child, as will another non-emergency
CWA caseworker, an attorney for CWA, a paralegal at the District
Attorney's Office, an assistant district attorney, and, if the
child suffered from sexual abuse, Dr. Ajl. A coordinated interview
of the victim, which allows professionals involved in the case to
observe or participate, should reduce the number and improve the
quality of these interviews.
Charles Hollander told the Commission that there are a number of
reasons to establish a Child Advocacy Center, including the benefit
of joining the parallel investigations of CWA and the police. By
creating a Center, the number of interviews and medical
examinations a sexually abused child can be required to undergo can
be reduced to a minimum. Additionally, evidence can be gathered
and preserved which would improve the quality of the investigations
and of any cases presented in court. Nevertheless, according to
Mr. Hollander, even with the police and CWA caseworkers in the same
building, the caseworkers would still not be permitted to volunteer
information to the police and it would still have to be routed
through the District Attorney. See footnote
126
Expungement
Dr. Ajl stated that having access to unfounded reports would be
extremely helpful to medical professionals because these reports
could provide details concerning any prior medical findings. Such
information could provide a basis for comparison with a new abuse
report, and provide relevant medical history to the doctor as well.
A.D.A. Cohen told the Commission that it was irresponsible for the
law to compel CWA to destroy records of unfounded reports. For
example, a subject of an abuse or neglect report might tell a CWA
caseworker that she has had no previous contacts with CWA when this
is not true. Without retention of unfounded reports to verify
these statements, CWA must accept the subject's false statement.
Rea Stein, who is the Director of a Brooklyn CWA Office, and Rhoda
Poblet, a high level supervisor in that Office, told the Commission
that they oppose retaining unfounded reports. They said that these
reports are sometimes made vindictively, and that false reports
should not be retained. When asked about cases which are unfounded
because of insufficient evidence, Ms. Poblet replied that her
office tries very hard to indicate cases whenever there is some
evidence of abuse.
Mr. Hollander, however, told the Commission that he knows of cases
in which the expungement of prior cases made the investigation of
new allegations more difficult, such as cases in which report after
report is filed against an individual as a form of harassment. He
also said there have been instances in which there was a
possibility that unfounded cases had been incompetently
investigated. See footnote 127
Training
Several Kings County professionals interviewed by the Commission
believed insufficient training in the area of child sexual abuse to
be a problem within CWA and the medical community. Rea Stein and
Rhoda Poblet both stated that although specialized training in the
area of sexual abuse is necessary, advanced training is not
available. See footnote 128 Moreover, the
available training is very difficult for caseworkers to attend. Ms. Stein
explained that caseworkers
continue to be assigned new cases requiring immediate investigation
while attending training classes. As a result, caseworkers avoid
additional training because it will cause them to fall behind in
their work. In the past, new CWA caseworkers were provided in-
service training and close supervision after being assigned to a
field office. Budget constraints have ended both practices.
Dr. Stephen Ajl told the Commission that CWA caseworkers are often
ill-equipped to investigate child abuse cases. For example, Dr.
Ajl recounted that a CWA caseworker once called him to ask that the
doctor categorize a fracture according to a form the caseworker had
been provided by CWA. The caseworker explained that although she
did not understand what the different categories meant, she was
obliged to fill out the form.
Both Dr. Ajl and A.D.A. Cohen agreed that doctors in hospitals
across New York City need specialized training in the recognition
of child sexual abuse. Ms. Cohen noted one example in which a
child was examined by a physician who concluded that the child's
hymen was intact, thus ruling out one indicia of sexual abuse.
Suspicious of this finding, Ms. Cohen had the child examined by
another doctor who found that the child's hymen was clearly not
intact. Another New York City prosecutor told the Commission of an
incident in which a gynecologist at a Queens hospital wanted to
perform a speculum examination on a young sexual abuse victim, a
procedure which could have injured the child. See footnote 129
Dr. Ajl stated there is a need for more instruction in medical
schools to train doctors to recognize the signs of child sexual
abuse, and properly interview victims. He also stated that the
State's two-hour mandated course for doctors should be expanded to
include more specific course material on sexual abuse. Dr. Ajl
stated that child sexual abuse often goes undetected because the
medical community is unwilling to look for it.
Chief Investigator John W. Cole of the Niagara County Sheriff's
Department told the Commission that before the multi-disciplinary
team was established, no police department in the County had a
child abuse investigative unit. He explained that the police
rarely investigated child abuse cases because the police were
usually not informed about such cases. The only child abuse cases
the police would learn about were those involving children seen at
hospital emergency rooms, law enforcement referrals received from
the SCR, and cases in which the police were asked to ensure the
personal safety of CPS caseworkers.
After the multi-disciplinary team was initiated, the team created
the Niagara County Child Abuse Strike Force (the "Strike Force").
The Strike Force includes approximately fifteen investigators from
the Sheriff's Department, the State Police, and three City Police
Departments. These officers, under the direction of Chief
Investigator Cole, work jointly with twenty-four CPS caseworkers in
the investigation of child abuse cases. Although the Strike Force
initially investigated only sexual abuse cases, it now investigates
some physical abuse cases. According to Chief Investigator Cole,
the use of the multi-disciplinary team approach results in fewer
interviews and less trauma for victims. He also said that as the
result of the team, cases presented to the District Attorney are of
better quality.
Strike Force investigators typically begin their work after CPS
notifies Chief Investigator Cole that a sexual abuse complaint has
been received from the SCR. Chief Investigator Cole then assigns
a Strike Force investigator. Local police departments can either
participate in the investigation or defer to the Strike Force.
According to Chief Investigator Cole, this decision often hinges on
the complexity of the case and the personnel constraints of the
local police department. Although child homicides are not covered
by the multi-disciplinary team protocol, the Strike Force also
assigns investigators to assist in homicide investigations.
Confidentiality
Ann Marie Tucker is an attorney, a former member of the Erie County
multi-disciplinary team, and the Director of the recently
established Niagara County Child Advocacy Center. Ms. Tucker told
the Commission that as the Director of the Center she does not
participate in investigations, but coordinates support services for
the family and child. Ms. Tucker also stated that the center
coordinates multi-disciplinary team case reviews.
Ms. Tucker told the Commission that the Niagara County multi-
disciplinary team has learned to work within current
confidentiality laws by, for example, asking adults who bring their
children to the Center to sign a form authorizing the disclosure of
information about the child to the Center and within the multi-
disciplinary team. Nevertheless, Ms. Tucker said that working
within these laws remains a difficult process. She believes
several legislative changes should be enacted to make this process
less difficult, including listing child advocacy centers and multi-
disciplinary teams among the entities to which CPS can disclose
information.
Expungement
Chief Investigator Cole stated that the expungement of CPS reports
often forces the multi-disciplinary team to rely on a caseworker's
memory concerning relevant unfounded cases. Chief Investigator
Cole told the Commission that to reduce the harm of expungement, he
is establishing a database to maintain information from police
reports concerning child abuse investigations.
Ms. Tucker stated that due to the complexity of child sexual abuse
investigations any prior information given to CPS should be kept
and made available to investigators. Ms. Tucker also stated that
the confidentiality of this information must still be maintained.
One problem Ms. Tucker sees with the term "unfounded" is that it
covers too broad a range of cases. In her view, children would be
better served by creation of a third category, where cases in which
there was a reasonable basis for suspicion but insufficient
evidence to indicate a report, could be maintained. She cited
cases in which a child contracts a sexually transmitted disease
from an unidentified individual as being among the cases she would
like to see retained. Ms. Tucker believes that there are cases
which should continue to be expunged, including those in which it
is determined the allegation was false.
Senior Investigator Sprague told the Commission that since the
formation of the Orange County Child Abuse Investigation Unit (the
"Unit") in 1993, he has been the Unit's law enforcement supervisor.
Mr. Sprague explained that the Unit was established to improve the
manner in which child sexual abuse cases are investigated in Orange
County. The Unit investigates all child sexual abuse cases
received by Orange County CPS. See footnote
130 The police officers assigned to the Unit come from the State Police, the Orange County
Sheriff, and
the Cities of Middletown and Newburgh. The city officers have been
deputized by the County Sheriff and have County-wide
jurisdiction. See footnote 131 Senior
Investigator Sprague explained that the officers in the Unit work exclusively on
child sex crimes cases.
When the Unit was first established, it was necessary to secure the
cooperation of the approximately thirty-six police departments in
the County. Senior Investigator Sprague said he was able to secure
this cooperation through his personal and professional
relationships with many of these departments, and by convincing
these departments that his Unit would be handling cases in which
these departments had neither expertise nor interest.
Senior Investigator Sprague said that since the Unit was
established, approximately 50% of the cases investigated resulted
in indicated reports and 65% of the indicated reports resulted in
criminal prosecutions. In a majority of these criminal cases, his
officers secured confessions from the abusers. Mr. Sprague said
that his officers have learned to understand the mental framework
of child abusers, knowledge which they use to obtain confessions.
As a general rule, no interviews are recorded. With respect to the
victimized child, Senior Investigator Sprague believes a recorded
interview would primarily benefit defense attorneys by enabling
them to use the tape to evaluate the ability of the victim to
testify. With respect to suspects, the Orange County District
Attorney has indicated that he prefers not to have interviews with
suspects audiotaped or videotaped. Occasionally, however, a
telephone conversation between a child and an abuser will be
audiotaped to record any admissions by the abuser.
Senior Investigator Sprague cited a number of advantages to law
enforcement agencies being more involved in child abuse cases. He
said that many cases cross jurisdictional boundaries and cited
several cases in which he was able to arrange for law enforcement
officials in other states to conduct interviews with potential
witnesses. According to Senior Investigator Sprague, if such a
request originated from an Orange County CPS caseworker, action
would be unlikely.
Case Study
Senior Investigator Sprague was asked to describe a case which
demonstrated the effectiveness of the team approach in Orange
County. He mentioned a case in which a man was alleged to have
sexually abused one of his daughters. While the police were
interrogating the suspect, who steadfastly denied these
allegations, other team members interviewed the man's other
daughter. The second daughter also alleged having been abused by
her father. This information was provided to the interrogators.
When confronted with the second allegation, the suspect confessed
to abusing both daughters.
Confidentiality
Within the Unit, information is shared freely. For example, Orange
County CPS caseworkers provide officers with prior indicated
reports concerning the same family. The Unit's officers are all
aware that criminal history information cannot be provided to CPS
caseworkers working on cases not being investigated by the Unit.
Senior Investigator Sprague said that all this information remains
confidential within the Unit.
Expungement
Senior Investigator Sprague said that for cases handled within the
Unit, expungement is not a serious problem. Although CPS must
destroy its files concerning unfounded cases, law enforcement has
no such obligation. See footnote 132 He
explained that he opens a state police file for every case referred to the Unit. This file
will contain
criminal history information and police interview reports. Senior
Investigator Sprague advised that unless he receives a sealing
order, the police files for unfounded child sexual abuse cases
remain available for investigative purposes.
Training
Each officer in the Child Abuse Unit has substantial experience and
training in investigating child abuse cases. This training has
included sessions on interviewing techniques and child development.
Senior Investigator Sprague emphasized the usefulness of this on-
going training for both officers and CPS caseworkers.
The SCR Hotline
With respect to the SCR hotline, Senior Investigator Sprague said
he has had no personal experience with delays. He explained that
CPS offices can file reports with the hotline by fax. Since his
unit is part of Orange County CPS, his reports are filed by fax.
He noted that the turn-around time for these cases seems
acceptable. Usually within a half-hour of a fax being sent to the
SCR, the SCR sends back a report which, among other things,
provides the authority for the investigation to begin. Senior
Investigator Sprague also said that in instances in which the SCR
notifies both CPS and a local police agency concerning a sexual
abuse complaint, the local police agency will generally receive
their notification from the SCR about a half-hour after CPS. See footnote 133 Senior Investigator Sprague said he has heard that
delays on the mandated reporter hotline to the SCR have been significantly
reduced recently.
Greg Osetek, the team's CPS coordinator, told the Commission that
the Oswego County multi-disciplinary team was modeled, in part,
after teams in counties which have child abuse squads staffed by
police officers. These squads work out of the same building as CPS
caseworkers, thus eliminating logistical problems in conducting
joint interviews. According to team members and documents provided
by the Oswego County CPS, when the Oswego County CPS receives a
complaint from the SCR alleging child sexual abuse, CPS contacts
the appropriate police agency to request assistance in conducting
an investigation. The police also respond to CPS requests for
assistance in some physical abuse and neglect cases if the
allegation indicates a crime may have occurred. Whenever possible,
a joint interview of the child is conducted by a police officer and
a CPS caseworker. According to team members, although the multi-
disciplinary task force was only recently established, police
officers and CPS caseworkers have jointly investigated child sexual
abuse cases in Oswego County for at least twenty years.
One problem with child abuse cases in Oswego County, according to
Mr. Osetek, is the lack of participation by the local medical
community. Mr. Osetek said that he is aware of Dr. Jane Hylan's
work in Jefferson County. Unfortunately, no one in the Oswego
County medical community has offered to assume a similar role.
Consequently, there is no doctor or medical facility designated to
examine sexual abuse victims in the County. When it is determined
that evidence, such as sperm samples, might be obtained, children
are brought to the SUNY Syracuse Medical Facility in Onondaga
County for examination. Other team members echoed Mr. Osetek's
concerns about the medical community and added that medical
personnel need to be better trained to properly diagnose children
who have been sexually abused.
Mr. Osetek cited a number of advantages to having law enforcement
officials assume an early and active role in child abuse
investigations. He said that early intervention by the police has
a beneficial impact on the abused child and on the non-culpable
parent, results in a reduced number of foster care referrals and
helps keep families together. He also said, however, that he
believes joint investigations are more easily done in less
populated counties, such as Oswego County, because most of the law
enforcement and social services personnel know each other both
professionally and socially.
Confidentiality
Team members felt that confidentiality laws restricting the ability
of team members to discuss cases should be reviewed and changed so
all team members could freely share information. The need to share
information between police, probation and CPS agencies was cited as
particularly important.
Expungement
Team members expressed dissatisfaction with current expungement
laws. No team member thought the current practice of expunging all
unfounded cases made any sense. Assistant District Attorney Donald
E. Todd of the Oswego County District Attorney's Office stated that
expungement policies should be changed so that information
concerning prior allegations of sexual abuse would be available to
those investigating child abuse reports. Several team members
contended, however, that there are some cases which should be
expunged, such as those arising from false allegations.
Training
Another problem addressed by team members was training. Assistant
District Attorney Todd told the Commission that police officers
need additional training to prepare them to investigate child
sexual abuse cases more effectively. Mr. Todd noted, however,
that he and the one other prosecutor who handles child abuse cases
in the County have been trained in the interviewing techniques of
John Yuille. See footnote 134 Greg Osetek
said that judges need better training regarding sexual abuse cases.See footnote 135
The Commission interviewed several members of the multi-
disciplinary team, including Veronica Purcell, the CPS Coordinator
for Rensselaer County. Ms. Purcell told the Commission that the
first attempt to initiate a multi-disciplinary team was made in
1987. The focus of that effort was on joint investigations by CPS
caseworkers and police officers of child sexual abuse cases. The
team fell apart within a year or two, due to an increase in the
number of sexual abuse cases and personnel changes within local
police departments. In 1992, the current multi-disciplinary team
was established. According to Ms. Purcell, several factors have
helped keep this effort moving forward, including the availability
of more dedicated police officers and the existence of a
specialized unit within CPS, the Sexual Abuse Team, which works
exclusively on child sexual abuse complaints.
Ms. Purcell explained that after a child sexual abuse complaint is
received from the SCR, CPS notifies the District Attorney's Office
and telephones the police department with appropriate jurisdiction.
If a police investigator is available, a joint interview will be
conducted. If no police investigator is available, the caseworker
will either conduct the interview while accompanied by a uniformed
officer or the caseworker will conduct the interview alone.
Elizabeth O'Connor, the Assistant District Attorney who prosecutes
all child sexual abuse cases in the County, told the Commission
that most child abuse cases in the County are still not jointly
investigated.
The Commission also interviewed Sergeant Stephen Weber, who heads
the Juvenile Bureau in the Troy Police Department. Sgt. Weber
stated that his Bureau is comprised of himself and one detective
who cover the office from 8:00 A.M. to 12:00 P.M. Due to budget
constraints, patrol officers respond to cases after midnight and
refer them to the Juvenile Bureau the next morning. The Juvenile
Bureau investigates all crimes where the victim or perpetrator is
sixteen years of age or under. In 1994, the unit handled
approximately one hundred sex crimes cases, including sexual abuse,
rape and sodomy. Sgt. Weber told the Commission that since 1992,
the working relationship between CPS and the police has improved
dramatically. For cases in the City of Troy, CPS now notifies the
police on all child sexual abuse complaints. The Troy Police and
CPS try to conduct joint investigations whenever possible. Many
investigations, however, are still conducted separately for varying
reasons, including lack of personnel. If an interview is done by
only one agency, the information is then shared with the other
agency. Sgt. Weber also stated that the police have learned a
great deal from working with CPS caseworkers, especially about
techniques for interviewing children. Sgt. Weber believes the
result of cooperation between the police and CPS is better quality
child abuse investigations.
Confidentiality
Ms. Purcell said that CPS has largely resolved its concerns over
providing information to the police. Currently, if the police
submit a written request for information, CPS will comply. A
problem continues, however, with CPS receiving information. Ms.
Purcell said that if CPS caseworkers could receive criminal history
information, it would help caseworkers in several ways, including
providing the physical attributes of an alleged abuser.
Sgt. Weber also told the Commission that obtaining information from
CPS was a problem in the past, but is no longer. The police will
also share some criminal history information with CPS, but this
information will be limited to what is in local police records.
The results of record checks conducted through the state police,
for example, will not be provided to CPS. In Sgt. Weber's view,
information sharing between the police and CPS is critical to
conducting effective child sexual abuse investigations. He
believes that confidentiality laws should be changed to allow this
to happen.
Expungement
Ms. Purcell stated that she is frustrated with the current
expungement policy. She believes that a new category should be
established to allow CPS to keep certain information on cases that
fall short of being indicated. Ms. Purcell believes, however, that
the majority of unfounded cases should continue to be expunged.
A.D.A. O'Connor told the Commission that she believes expungement
laws should be changed to retain information about prior
investigations. She described a case in which CPS investigated an
allegation of sexual abuse. CPS unfounded the case due to the
victim's failure to cooperate with the CPS caseworker. A year
later, the victim told a counselor that she had been sexually
abused. The counselor notified law enforcement and an arrest was
made. In the meantime, all CPS records from the original
investigation had been destroyed.
Sgt. Weber believes that reports which are determined to be false
should continue to be expunged. He told the Commission that he was
once the subject of just such a report. Nevertheless, Sgt. Weber
believes that reports in which abuse is suspected, but cannot be
proven, should be retained.
Training
A.D.A. O'Connor stated that each Police Department in the County
has specific officers assigned to the investigation of sex abuse
cases. All these officers have attended sexual abuse investigative
training provided by the New York State Police. Sgt. Weber
confirmed that members of the Troy Police Department have received
this training. A.D.A. O'Connor also told the Commission that
members of the District Attorney's staff, CPS caseworkers, and
others have attended a seminar given by John Yuille on the subject
of sexual abuse. A.D.A. O'Connor also told the Commission of an
upcoming training session for both assistant district attorneys and
CPS staff aimed at increasing mutual understanding between the
agencies.
The benefits of multi-disciplinary teams in child abuse
investigations are clear. Police and child welfare officials, who
formerly had non-existent or antagonistic relationships, work
together amicably. As a result, these agencies can better protect
children. Early law enforcement intervention can assure that
critical evidence will be gathered, and that interviews of victims
and suspects will be promptly and effectively conducted. A close
working relationship between police officers and CPS caseworkers
can also result in a measurable increase in the number and success
of criminal prosecutions for child abuse.
It is also clear that the precise form a multi-disciplinary team
should take is not something which can be mandated. Teams must
adapt themselves to local conditions, such as the number of police
agencies in a county, and the personal commitment and dedication of
team members and other local professionals. It is obvious from the
Commission's Statewide inquiry that, although the various counties
within New York State rely on the same social service laws, the
interpretation of these laws varies considerably from county to
county, resulting in vastly different approaches to the
investigation of child abuse. No matter what form a multi-
disciplinary team takes, however, it is likely to face the
impediments discussed in the two chapters which follow.
Even under existing law, it is clear that some disclosure by CPS is
permissible. Among those to whom CPS records can be disclosed,
subject to various restrictions, are district attorneys and police
officers. The section of the Social Services Law which permits
this disclosure is limited to instances in which:
This statutory section is of little assistance to multi-
disciplinary team members since it permits CPS to disclose
information about a case only upon a specific request, and
therefore would not permit CPS to volunteer information absent a
request for information about a specific case. Thus, this section
does not permit CPS caseworkers to directly forward abuse reports
in selected categories to the police.
The section of the Social Services Law under which information is
disclosed by CPS to multi-disciplinary team members is more
narrowly drawn with respect to the parties to whom disclosure is
permitted. This section provides:
In other words, this section permits CPS to disclose all cases in
a selected category, such as all sexual abuse cases, to a district
attorney if the district attorney has specifically requested such
reports. According to John E. Stupp, Assistant Deputy Counsel for
State DSS, the right to disclose CPS case records to district
attorneys under this section also enables CPS to disclose case
records to other members of a multi-disciplinary team. Mr. Stupp
explained to the Commission that since these teams can only exist
as a result of an agreement between a CPS and a district attorney,
all team members are entitled to receive CPS records as agents of
the district attorney. In Mr. Stupp's view, this section also
permits a district attorney to designate police departments as his
or her agents so that CPS can provide reports in the categories
selected by the district attorney directly to the police.
Although this appears to be a reasonable interpretation,
particularly in light of statutory encouragement of multi-
disciplinary teams,See footnote 140 it is
hardly self-evident. Moreover, CPS officials throughout New York State told the
Commission they were
uncertain whether or not there was statutory authority for the
disclosure of CPS information to other team members. One assistant
county attorney told the Commission that she advises CPS
caseworkers to err on the side of silence when confronting thorny
confidentiality issues within the multi-disciplinary team. CWA
caseworkers in New York City told the Commission that although they
are anxious to cooperate in efforts to establish a fully
functioning multi-disciplinary team, they believe that they are
prohibited by statute from releasing CWA case records directly to
a police officer. In order to circumvent these restrictions, one
attorney employed by CWA's parent agency, the Human Resources
Administration, told the Commission that he has considered
interpreting State law to allow designating police officers as
"service providers" which, under the same statute, would permit CWA
to provide case records directly to police officers. See footnote 141 These responses to the problems arising from the
confidentiality
provision are, at best, patchwork remedies for the law's failure to
recognize the existence of multi-disciplinary teams and the need
for its members to freely share information.
As will be discussed in detail in this chapter, changes have been
enacted in federal law, and have been proposed in federal
regulations, precisely to dissipate lingering uncertainty over the
authority of CPS caseworkers to freely disclose information to
other members of a multi-disciplinary team.
With respect to their role as mandated reporters, social workers
told the Commission they were uncertain as to how much information
they are legally permitted to provide to the SCR or to fellow
members of a multi-disciplinary team. For instance, although
several social workers told the Commission they were clear about
their responsibility to report direct evidence of child abuse, they
were uncertain about their responsibilities with respect to
corroborative evidence. One social worker described a potential
conflict in which a child abuse victim disclosed that there was a
witness to an abuse incident. The social worker was uncertain
whether his obligation was to treat this information as privileged
or disclose it to the team. The conflict becomes more severe when
the social worker's client is the suspected abuser. According to
N.Y. Civil Practice Laws and Rules, unless the abuser reveals that
he is contemplating a crime or harmful act, an abuser's statement
to his social worker remains privileged. According to the Social
Services Law, in some instances the same information must be
disclosed. See footnote 148
A review of New York case law does little to resolve this apparent
conflict between the rules of privilege and the requirements of
disclosure. In People v. Bass, a father admitted to his social worker that he and his
nine-year old daughter occasionally slept
together in the nude, both their bodies covered in oil, with the
child sleeping on top of the father. The social worker reported
this disclosure to the SCR, as he was required to do under law. In
the subsequent criminal prosecution, however, the social worker was
precluded from testifying either on direct or in rebuttal
concerning this statement because the Court concluded the statement
was privileged. See footnote 149
In People v. Gearhart, the Court specifically refused to follow Bass.See footnote 150 In Gearhart, a
physician had testified before a grand jury about statements a patient
made during a physical examination which
evidently concerned the patient's sexual relationship with his
daughter. See footnote 151 The defense,
asserting that this testimony should not have been presented to the grand jury
because it concerned a privileged communication between the patient and his physician,
sought dismissal of the indictment. The defense contended that the
Social Services Law did not create an exception to the privilege
rules for child abuse cases. See footnote 152
The Court concluded otherwise, finding that it was in the public interest to prevent
physician-patient privilege from attaching to evidence of child abuse. See footnote 153 Since the privilege did not attach, the
Gearhart Court denied the defense motion to
dismiss the indictment. See footnote 154
The inherent conflict between the rules of privilege and the
requirements of disclosure has also been addressed by courts in
other states. A California Court of Appeal resolved this conflict
by finding that the privilege, in that case physician-patient
privilege, was "...abrogated only to the extent that it would
permit evidentiary use of the information required to be obtained
in the maltreatment report... ."See footnote
155 In other words, communications between a patient and a doctor concerning matters the
doctor is not specifically required to disclose remain privileged.
Another confidentiality issue social workers raised with the
Commission concerned the potential conflict between their
responsibilities to their clients and their role as members of a
multi-disciplinary team. For instance, social workers told the
Commission they were uncertain as to the appropriate course of
conduct when they learn, as a team member, that an arrest is
imminent. If the client is the child or spouse of the target, the
issue for the social worker is whether or not he has a duty to
prepare the client for a potentially traumatic event. Conversely,
if the client is the target, the social worker's duty becomes even
more uncertain. One social worker told the Commission that he
believes that if he does not inform his client, he may risk civil
liability for his silence.
Unauthorized disclosure of the DCJS arrest records may constitute
a criminal act. Potential charges include official misconduct, a
class A misdemeanor, and computer trespass, a class E felony.
Absent a venal purpose, however, it is doubtful a prosecution would
succeed. See footnote 158 Police officers are
nevertheless likely to be concerned
about their potential criminal liability for disclosing this
material even to a CPS caseworker with whom a joint investigation
of a serious crime is being conducted.
There are also statutory constraints on the ability of probation
departments to provide information. Pursuant to the Family Court
Act:
Probation officers, however, are peace officers and are, therefore,
also mandated reporters. See footnote 161
How the potential conflict between the role of a probation officer as a
confidential advisor to the Family
Court and his or her role as a mandated reporter should be resolved
is an open question. If, however, an individal on probation shares
information with his or her probation officer, the probation
officer may disclose this information to CPS. See
footnote 162
Senator Goodman's staff told the Commission that the proposal to
allow probation departments access to CPS information was prompted
by the 1990 death of an eight-year old Brooklyn boy, Yaakov
Riegler. Approximately four years before his death, the child's
mother, Shulamis Riegler, had pleaded guilty to attempted assault
after physically abusing another one of her children. She was
sentenced to five years probation. In March 1990, the Department
of Probation requested CWA case records concerning the Riegler
family in order to make a determination concerning the termination
of Mrs. Reigler's probation. This request was denied because of
then existing state confidentiality laws. The Department of
Probation, unaware that there were several pending complaints
alleging that Mrs. Reigler had physically abused Yaakov, determined
that probation was no longer necessary for Mrs. Riegler and
terminated supervision. In October 1990, Shulamis Riegler beat
Yaakov to death. In October 1992, the "Riegler" bill became
effective and probation departments were granted limited access to
confidential child abuse and neglect records.
A number of other bills were proposed by Senator Goodman during the
last several years to expand access to child abuse and neglect
records, including a bill making certain records available to the
state comptroller for the limited purpose of conducting audits
under controlled circumstances. None of these bills were enacted.
Proposals for change have also come from other sources. Dr.
Vincent J. Fontana, former Chairman of the New York City Mayor's
Task Force on Child Abuse and Neglect, Medical Director of the New
York Foundling Hospital, and a nationally recognized expert on
child abuse, has long suggested a correlation between child abuse
deaths and a failure to share information among agencies which deal
with children. See footnote 164 According to
Dr. Fontana:
Dr. Fontana was interviewed by the Commission. He told the
Commission that based on his experience conducting child fatality
studies in New York City, the failure to share information often
has fatal consequences for the children of New York.
In 1992, Congresswoman Susan Molinari introduced the Adam Mann
Child Abuse and Neglect Protection Act "...to require States to
provide for interagency sharing of child abuse records to
facilitate a more comprehensive, coordinated approach by States in
protecting children against child abuse."See
footnote 169 The Congresswoman said that she was introducing the legislation "...to
honor the short and tragic life of Adam Mann... ."See footnote 170 Adam Mann was a five-year old Bronx boy who was
murdered by his mother and step-father on March
5, 1990. A television documentary concerning Adam Mann's tragic
death exposed gross negligence on the part of CWA in responding to
repeated allegations of abuse in the Mann household, negligence
which contributed to Adam's death. See footnote
171 The Congresswoman noted two major problems in the child protection system --
confidentiality laws and a lack of accountability. See footnote 172 During floor debates concerning this measure,
Congressman Major Owens provided an
interpretative summary of the Act to guide the administration in
drafting appropriate regulations. According to Congressman Owens,
the Act was intended to require states to promptly disclose all
relevant information concerning a child and the child's family to
appropriate federal, state or local governmental entities, such as
inter-agency child fatality review panels or multi-agency review
panels. See footnote 173 The Adam Mann
Child Abuse and Neglect Protection Act was approved by the House of
Representatives and the Senate in October
1992. See footnote 174 As codified, the Act
requires states which receive grants under the Child Abuse and Neglect
Prevention and Treatment Program to have programs in place which provide:
Congresswoman Molinari told Congress that child abuse was a problem
which required multi-disciplinary and inter-agency cooperation.
She emphasized that her legislation was intended to require states
to allow the free exchange of information among agencies which
respond to child abuse cases, including multi-disciplinary review
teams. See footnote 176
Congresswoman Molinari was interviewed by the Commission. She told
the Commission that the changes in federal confidentiality laws
were intended to provide for better communication among the various
professions involved in the protection of children, including
police officers, physicians, caseworkers, teachers, foster-care
parents and others. According to the Congresswoman, it made no
sense that information critical to a child's safety could not be
shared among professionals whose efforts were directed towards
ensuring the safety of that child.
Regulations to carry out the will of Congress as expressed in the
Adam Mann Child Abuse and Neglect Act have since been proposed.
David Lloyd, the Director of the National Center on Child Abuse and
Neglect, told the Commission that these proposed regulations were
intended to address the perception that existing confidentiality
rules were more of a hindrance than a help. Mr. Lloyd indicated
that the proposed regulations were intended to make clear that
members of multi-disciplinary teams are entitled to review CPS case
records. As will be discussed in section five of this report, the
proposed regulations were also intended to enhance the ability of
state and local oversight agencies to review CPS cases. The
Commission, after carefully reviewing the proposed regulations,
formally endorsed them in a letter to Olivia A. Golden, the
Commissioner of the Administration on Children, Youth and Families.
In this letter, the Commission stated that the proposed
regulations, if approved, would improve the effectiveness of child
protective services by increasing their accountability to oversight
agencies, and would improve the quality and effectiveness of child
abuse investigations by sanctioning the full and free exchange of
information among members of multi-disciplinary investigative
teams.
At least with respect to disclosing CPS records to members of a
multi-disciplinary team, the proposed federal regulations endorsed
by the Commission would require New York and other states to
authorize the disclosure of all relevant CPS records to any local
government entity, including a multi-disciplinary investigative
team, with a pre-determined need for such information. Although
these proposed federal regulations have not yet been finalized,See footnote 177 the law itself has been. There is now no legal
impediment to New
York State amending its laws to specifically provide for CPS
records to be provided to all members of a multi-disciplinary team,
thereby removing the uncertainty under which many teams operate.
Confidentiality laws, however, are not the only area in which
reform is clearly needed. As will be discussed in the next
chapter, expungement laws provide another example of an ineffective
and self-defeating approach to the protection of the children of
New York State.
The Community Service Society of New York, a non-profit, non-
sectarian social agency, criticized several of these provisions.
According to the Community Service Society:
The final version of the bill eliminated the categories "uncertain"
and "under investigation." The final bill retained the definition
of an unfounded report as one for which an investigation fails to
determine "some credible evidence." The final bill did not
specifically require the destruction of unfounded reports by CPS
offices. See footnote 183
The Commission discussed this legislation in particular and
expungement in general with Douglas Besharov, a resident scholar at
the American Enterprise Institute in Washington, D.C., a
longstanding member to the New York City Child Fatality Review
Panel, and a nationally recognized expert on child abuse and
neglect. See footnote 184 Mr. Besharov told
the Commission that he was chiefly responsible for preparing the
legislation which became the Act.
According to Mr. Besharov, the fact that the Act did not
specifically require CPS offices to expunge their records was the
result of a deliberate decision to not require expungement at the
local level. According to Mr. Besharov, the retention of unfounded
reports at the local level can be crucial to the investigation of
subsequent complaints. He also noted that retention of these
records would make it possible to discover past mistakes.
Among those supporting this legislation were State DSS, the State
of New York Council on Children and Families, Children and Family
Services of Buffalo, the Federation of Jewish Philanthropies of New
York, the Citizen's Committee for Children of New York, Inc., and
the New York Civil Liberties Union (the "NYCLU"). The NYCLU argued
that:
This expansion of the expungement requirement was opposed by Monroe
County DSS whose Deputy Director of Services wrote:
In 1988, the Legislature approved legislation which included a
technical change in the expungement law to require state agencies
which investigated child abuse and neglect cases to expunge
unfounded reports from their files. See footnote
190 The agencies affected by this change were those which investigated allegations of
institutional abuse and neglect, including State DSS and the
Commission on Quality of Care. See footnote
191
Since at least the mid-1980s, legislators, public agencies and
child advocacy groups have been pushing for legislation to permit
retention of some or all unfounded reports. These proposals have
been premised on the belief, shared by many professionals in the
field, that retaining some or all unfounded reports would help to
better protect the children of New York. This belief was confirmed
by officials in states where some or all unfounded reports are
retained. These officials told the Commission that such reports
are an invaluable tool in the effort to better protect children.
In December 1986, the New York City Public Child Fatality Review
Committee published a report on child fatality cases which called
for repeal of the expungement provisions of the Social Services
Law. See footnote 192 The report concluded
that expungement destroyed information which could be important to
the investigation of subsequent
complaints. See footnote 193 The report also
noted that child abuse reports were sometimes unfounded for reasons
unrelated to the accuracy of the
accusation under review. In one child fatality case reviewed by
the Committee, parents so tightly bound the hands of a ten-month
old boy to prevent him from thumb-sucking that his hands were
mutilated. Because the parents were upset by the result of their
actions, the report was unfounded. Four years later, the child was
still suffering from these injuries. See footnote
194 The Child Fatality Review Committee rejected the contention that unfounded reports
should be expunged because they protect parental privacy rights since there
was "...no possibility of conclusive, discriminatory use of
unfounded complaints..." since such information would only be
available to the SCR and to caseworkers. See
footnote 195
In 1989, the LISA Organization to Stop Child Abuse published a
report on child abuse and neglect in the wake of the murder of six-
year old Lisa Steinberg. See footnote 196
The report recommended, among other reforms, that unfounded reports be preserved rather
than expunged because "...New York's present statutory scheme for the expungement
of suspected child abuse and neglect reports does not adequately
protect its children from suffering further injury and
impairment."See footnote 197 The
report recommended that Section 422 of the Social Services Law "...be redrafted
to require the expungement of
reports...only if it is determined by clear and convincing evidence
that abuse or neglect did not take place."See
footnote 198
In his 1991 book, Save the Family, Save the Child, Dr. Vincent Fontana strongly
recommended that the expungement laws be changed
to provide for the retention of unfounded reports. According to
Dr. Fontana:
In 1993, the New York City Child Fatality Review Panel again called
for legislation to permit the retention of unfounded reports:
In a 1994 report issued by Suffolk County Legislator Allan Binder,
Chairman of the County Legislature's Health, Human Services and
Family Committee, it was again recommended that the expungement law
be changed. The report recommended "...legislation which would
enable the State Central Register to retain on file, for a
specified period of time, case materials relating to reports
which...were unfounded...would enable the Department [of Social
Services] to review these records, and perhaps establish a pattern
or history of abuse over time... ."See
footnote 201
In 1995, the Suffolk County District Attorney completed a grand
jury investigation into Suffolk County CPS. This investigation
resulted in a Grand Jury report entitled: The Conduct & Practices of Child Protective
Services & Related Agencies - An
Investigation. See footnote 202
According to the Grand Jury report, the expungement requirement creates a significant
impediment to the
ability of law enforcement to investigate allegations of
intentionally false reports, makes the detection of patterns of
abuse more difficult and severely limits the accountability of CPS
and CPS caseworkers. See footnote 203 The
report cited one case in which it was alleged that twenty-eight intentionally false
reports had been
filed against one individual. Although CPS was able to provide the
most recent report to the District Attorney's Office, there was no
longer any record of the twenty-seven earlier reports. The Grand
Jury concluded that "...the expungement requirement makes effective
prosecution of falsely reporting virtually nonexistent."See footnote 204 The report also noted that the expungement of prior
reports can destroy
any possibility of discovering patterns of abuse that often cannot
be determined from examining a single complaint. The Grand Jury
said that "...any investigation of cases of battered child
syndrome, Munchausen Syndrome by Proxy, or an unexplained infant
death may succeed or fail depending on the availability of prior
records and information regarding the family."See footnote 205 The Grand Jury also found that the expungement of
prior reports "...severely
limits the accountability of CPS and individual workers... ."See footnote 206 The Grand Jury recommended that unfounded
reports be sealed with a provision for a superior court to authorize unsealing the records
when justice required. See footnote 207
Numerous attempts have been made in the State legislature to reform
the expungement laws. All have failed. According to State
legislative staff members and children's advocates interviewed by
the Commission, these bills met with harsh criticism from civil
libertarians who argued that the retention of unfounded reports
would unfairly prejudice individuals falsely accused of child
abuse. In 1985 and 1986, bills calling for reform of the
expungement laws were proposed but never voted on by the State
legislature. See footnote 208 In 1989, 1990,
and 1991, then Senator Mary B. Goodhue unsuccessfully proposed
legislation to retain unfounded
reports made by mandated reporters for a five year period, during
which time these reports would only be available to CPS caseworkers
investigating a subsequent report regarding the same child or
suspect. These bills would have made re-disclosure of information
relating to an unfounded report a crime. See
footnote 209 The Memorandum in Support of the 1990 bill noted:
In 1992, Senator Goodhue again proposed retaining unfounded reports
for five years. The NYCLU "strongly" opposed this legislation,
which it characterized as posing a serious threat to the civil
liberties of the falsely accused:
The NYCLU expressed skepticism about the benefit of retaining
unfounded reports:
The NYCLU also expressed skepticism about the premise that
retaining unfounded reports could save children's lives:
In view of its historical opposition to reform, the Commission
contacted the NYCLU on numerous occasions to solicit its comments
concerning a proposal that unfounded reports be retained for a
limited period. The Commission is still awaiting a reply.
In 1994, legislation was introduced by Senator Franz S. Leichter
which proposed, among other things, that unfounded reports not be
expunged until two years after the report was initially received by
the SCR. See footnote 214 During this
two-year period, CPS caseworkers and law enforcement agencies could review
prior unfounded reports when
investigating subsequent related reports. This bill would also
have permitted law enforcement agencies involved in the prosecution
of persons for falsely reporting child abuse and neglect access to
these records. The Introducer's Memorandum in Support of the bill
stated that:
The Commission contacted Steve Forrester, Assistant Executive
Director of the New York Society for the Prevention of Cruelty to
Children (the "NYSPCC"), who helped draft this 1994 bill. Although
Mr. Forrester said he was not aware of any specific objections to
the portion of the bill regarding the retention of unfounded
reports, it was his understanding that parents' rights advocates
opposed the retention of unfounded reports based on their
perception that retention of these reports would further the
interests of CPS caseworkers at the expense of the rights of
families.
State DSS Assistant Deputy Counsel John E. Stupp told the
Commission that there was no reason to retain unfounded reports.
He explained that a case is unfounded only when, after a complete
investigation, a caseworker determines that there is no credible
evidence of abuse. Therefore, he argued, since there is no
credible evidence of abuse, there is no reason to keep these
reports. Mr. Stupp reasoned that the purpose of the SCR and local
CPS offices is to prevent future abuse of children, and if there is
no risk to a child, as evidenced by an unfounded report, then there
is no reason to maintain records of such reports. Mr. Stupp also
stated that if unfounded cases were retained, CPS caseworkers might
inappropriately rely on the report in formulating their
determinations of new reports of abuse. For example, a caseworker
might conclude from a history of unfounded reports that a new
report should also be unfounded without conducting an adequate
investigation. Conversely, a caseworker might erroneously conclude
that a report should be indicated merely because of the number of
prior unfounded reports.
The argument that because a case is unfounded, there is no risk to
the child, is not universally accepted. Several years ago, James
Garbarino, President of the Erikson Institute for Advanced Study in
Child Development in Chicago, noted:
This view is shared by the overwhelming majority of professionals
involved in child abuse investigations who were interviewed by the
Commission. These individuals told the Commission that the
category of unfounded cases is overbroad, and that it fails to
distinguish between cases in which abuse or neglect is ruled out
and those in which there is an reasonable basis for suspicion, but
abuse or neglect cannot be substantiated. For example, a case in
which a pre-verbal child is "acting out" in a way that suggests
sexual abuse will be unfounded and all records of the report
destroyed unless some credible evidence of abuse or neglect is
discovered. Similarly, caseworkers told the Commission that
reports in which there is evidence that a child was abused, but the
investigation fails to discover sufficient evidence to identify the
responsible party, will also be unfounded and destroyed. This is
true despite the fact that the child may have been abused, the
child may be in danger of future abuse, and keeping a record of
this report might help to establish a pattern of neglect or abuse.
Legislation proposed in 1989 and 1992 addressed this concern.
Assembly Bill A8563 of 1989, which was introduced at the request of
Assemblyman Albert Vann, sought to expand the definition of an
indicated report to include instances in which some credible
evidence of the abuse or maltreatment exists, "...even where the
credible evidence fails to establish the identity of the
perpetrator."See footnote 218 Similarly
in 1992, Assemblyman Vann sponsored a bill to create a third category, called
"confirmed," for reports in
which there was a "...determination that some credible evidence of
the alleged abuse or maltreatment exists but the identity of the
person responsible for such alleged abuse or maltreatment cannot be
established." Confirmed reports would not be subject to the
expungement requirements for unfounded cases. See footnote 219 Although neither of these bills was enacted into law,
they reflect the concern
voiced by many interviewed by the Commission that the unfounded
category is over-inclusive, and that the laws governing expungement
of such reports fail to protect the victims of child abuse.
An analysis of family privacy law indicates that retention of
unfounded reports would not violate any constitutionally protected
right to family privacy. It is well established that parents enjoy
a constitutionally protected right to raise their children as they
see fit. See footnote 220 The primary
responsibility for "...the custody, care and nurture of the child resides
first in the parents, whose
primary function and freedom include preparation for obligations
the state can neither supply nor hinder."See
footnote 221 Parents' rights are protected by the Due Process and Equal Protection Clauses
of the Constitution. See footnote 222
Family privacy rights, however, are not absolute. The right to
family privacy "...may be outweighed by a legitimate governmental
interest."See footnote 223 It has long
been recognized that the state, as parens patriae, has a legitimate interest
in protecting the welfare of children. Recently, the Second Circuit Court of Appeals took note
of "...the unfortunate reality that children are often victimized,
and that the state has a strong interest in protecting them from
the infliction of physical harm by those charged with their
care."See footnote 224 Parents do not
have a constitutional right to abuse their
children or to be shielded from child abuse investigations. See footnote 225
The government has the authority, in appropriate circumstances and
subject to appropriate safeguards, to interfere with family privacy
and the parent-child relationship. While respecting the due
process and family privacy rights of parents, child protective
caseworkers can temporarily remove a child from a dangerous home,
can monitor a family in which abuse has occurred, or can terminate
all parental rights when such action is necessary to protect the
welfare of a child. See footnote 226
Many states, including New York, have established state central
registries for reports of abuse and neglect. In New York, when a
report is indicated, the SCR maintains a record of the report. New
York clearly has a legitimate interest in maintaining these records
and in providing for the limited dissemination of its information
to prevent individuals who have abused children in the past from
committing abuse in the future. See footnote
227 New York attempts to achieve this, in part, by requiring government agencies,
employers
in the child care field, and licensing agencies for adoption, foster care
and day care to screen potential applicants or employees through
the SCR. Mandatory screening helps to ensure that child abusers
listed in the SCR are not hired, licensed, or otherwise permitted
to have substantial contact with children unless the inquiring
agency is aware of the individual's status on the SCR. The state
also has an interest in retaining the actual records of indicated
cases so that abused children can be monitored, and services
provided to the families can be tracked. Additionally, subsequent
reports involving the same child or family can be more thoroughly
investigated by retaining and reviewing prior indicated reports.
The Courts have recognized that the government also has a
compelling interest in maintaining unfounded reports since these
reports can be useful in future investigations and can protect the
unfairly accused from repeated intrusions into family life. The
Fourth Circuit Court of Appeals in Hodge v. Jones noted the state's legitimate interest in
retaining reports of abuse including reports
which were determined to be unfounded. See
footnote 228 In Hodge, the plaintiff- parents filed a civil rights action against
Maryland officials and
a county DSS for retaining records of the parents' suspected abuse
of their son after the case was classified as "unsubstantiated" and
"ruled out."See footnote 229 The
parents alleged that retention of the report could negatively affect their national
security clearances, which
were required by their employers. The Court rejected this claim
and held that the retention of such records did not violate the
Hodges' constitutional privacy rights. The Hodges failed to show
that the State's actions had or were devised to have a significant
impact on the family relationship, or that they had suffered any
injury in connection with the retention of the report which would
amount to the deprivation of a constitutionally protected liberty
interest. See footnote 230
Furthermore, the Court in Hodge found that retaining unfounded reports serves a number
of important purposes. The Court noted
that a series of unfounded reports, if retained, could alert CPS
caseworkers to patterns of abuse which might otherwise remain
undetected; could protect the unfairly accused by ensuring against
repeated investigations of the same accusation; and would enable
the state to defend itself in the event of a lawsuit alleging that
an inadequate investigation had been conducted. See footnote 231
The same points made by the Court in Hodge were echoed by numerous CPS officials
and others interviewed by the Commission who also
detailed other compelling reasons for retaining some or all
unfounded reports. Information contained in prior unfounded
reports, including names of treating physicians, family members and
school teachers familiar with the child or family can assist
caseworkers investigating current allegations of abuse. If
unfounded reports were kept at local CPS offices, caseworkers would
not have to rely on their memories to determine if a current
investigation of abuse involved a family previously known to CPS.
Additionally, retaining unfounded reports of abuse would force CPS
officials to remain accountable for their decisions to unfound
cases.
Opponents of retaining unfounded reports of child abuse also argue
that the maintenance of such reports would so stigmatize accused
child abusers that it would deprive them of their constitutionally
protected individual privacy rights. The United States Supreme
Court, in Whalen v. Roe, recognized that individual privacy rights include "...the
individual interest in avoiding disclosure of
personal matters, and...the interest in independence in making
certain kinds of important decisions."See
footnote 232 In Whalen, the Supreme Court upheld the constitutionality of a New
York statutory scheme
which required the State Health Department to record and maintain
the names and addresses of individuals who received drug
prescriptions for which an illegal black market had developed.
Information regarding these individuals and their prescriptions was
maintained by the State in a central computer database. Access to
the information was limited to certain Health Department employees
and investigators, and unauthorized disclosure of this information
carried criminal sanctions. In upholding the constitutionality of
the statute, the Court found that the legislation was a reasonable
exercise of New York State's police powers based on the
government's concern about a growing black market for dangerous
prescription drugs. The Court further held that the possible
impact of the retention of this information on the reputation of
listed individuals, given the statutory confidentiality safeguards,
did not violate any constitutional privacy rights. Finally, the
Court ruled that, in view of the State's legitimate interest, the
retention of this information did not violate any individual's
constitutionally protected liberty interest.
To protect family and individual privacy rights, any statutory
scheme providing for the retention of some or all unfounded reports
would have to include a strict mandate that these records be kept
confidential. Access to these reports could be strictly limited to
State DSS officials, CPS caseworkers and those who assist in the
investigation of child abuse cases, such as members of a multi-
disciplinary team. Public disclosure of any information pertaining
to these reports could be made a criminal offense. To provide
further assurance that these reports would not be accidentally
disclosed, the law could require that these reports be maintained
separately from indicated reports at the SCR. A separate SCR
database could ensure that child care employers and other licensing
agencies would not be advised inadvertently of the existence of
such reports when screening potential applicants.
Such a record retention system would be clearly distinguishable
from the procedure struck down as unconstitutional in the recent
Second Circuit Court of Appeals decision, Valmonte v. Bane, supra.See footnote 233 In Valmonte, the
plaintiff slapped her eleven-year old child on the face and, as a
result, was listed as the subject of an
indicated report with the SCR. Ms. Valmonte filed a suit against
State DSS under 42 U.S.C. §1983 alleging that her inclusion on a
list which was available to potential employers implicated a
constitutionally protected liberty interest. The Court found that
there was a high risk of error in compiling names on this list
because the threshold of proof used by DSS, "some credible
evidence," was too low. This, according to the Court, results in
people being placed on the list who do not belong there. The Court
agreed with Ms. Valmonte, finding that she was likely to be denied
a job in her chosen field of child care due to her inclusion on the
list. Therefore, the Court found Ms. Valmonte showed "...a
specific deprivation of her opportunity to seek employment caused
by a statutory impediment established by the state."See footnote 234 Ms. Valmonte's constitutional liberty interests were
implicated because the listing of her name was made available to potential employers.
A statutory scheme which provides for the retention of some or all
of the reports which are currently unfounded, however, could be
enacted without implicating the liberty interest discussed in
Valmonte. As noted, subjects of these reports could be listed in the SCR separately from
subjects of indicated reports, and
prospective employers and licensors would not be permitted access to information from these
reports. Given strict confidentiality
provisions, subjects of these reports would be neither stigmatized
nor defamed by retention of such reports. See
footnote 235 In the Commission's view, speculative claims that information related to one
of these reports might be publicly disclosed would be insufficient to
challenge the constitutionality of such a record retention policy.
"The tangential possibility of public disclosure of
the...investigation report..., through such theoretical means as
negligent or improperly-motivated state employees or fortuitous
computer hacks, cannot by itself implicate a constitutional privacy
right."See footnote 236
Illinois
Under the Illinois Abuse and Neglect Child Reporting Act, reports
of child abuse and neglect are classified as unfounded, indicated,
or undetermined. See footnote 238 A report
is unfounded if there is no credible
evidence of abuse or neglect. If there is credible evidence of
abuse or neglect, the report is indicated. If it is not possible
to initiate or complete an investigation, or if it is suspected
that abuse or neglect occurred, but insufficient evidence exists to
indicate the report, then the report will be categorized as
undetermined. See footnote 239
The Commission interviewed several officials at the Illinois
Department of Children and Family Services ("DCFS"). The
Commission learned that Illinois law was changed in 1994 to permit
the retention of some unfounded reports which had formerly been
destroyed. Illinois Governor Jim Edgar signed a bill on September
7, 1994 which, among other changes, mandated that DCFS maintain a
list in their central register of all unfounded reports made by
mandated reporters and all reports classified under DCFS
regulations as "priority one" or "priority two" reports.See footnote 240 DCFS officials advised the
Commission that priority one and two reports
include allegations of death, brain damage, internal injuries,
wounds, cuts, bruises, torture, sexual abuse, abandonment and
mental injury. This legislation was initially proposed by DCFS to
assist caseworkers investigating child abuse and neglect
allegations by providing them with access to a child or family's
history, so that caseworkers might discover patterns of abuse or
neglect which would otherwise remain undetected.
Illinois law contains other features alien to the laws in New York.
If a child is born in Illinois with illegal drugs in its blood or
urine, that child is, by statutory definition, a neglected child. See footnote 241 In Illinois, while conducting investigations into
allegations of
abuse or neglect, CPS caseworkers are permitted, by law, to receive
criminal history information relevant to an abuse or neglect
investigation. See footnote 242
Maryland
In Maryland, a report is "indicated" if there is credible evidence
of abuse or neglect and "ruled out" if it is determined that abuse
or neglect did not occur. A report is "unsubstantiated" if there
is insufficient evidence to either indicate or rule out the
report. See footnote 243 Ruled out reports are
retained for 120 days, unsubstantiated reports are retained for five
years. See footnote 244
The Commission interviewed Dee Reever, a Program Manager at the
Maryland Department of Human Resources ("DHR"). She informed the
Commission that over the last several years there have been several
legislative proposals to reduce the retention period for
unsubstantiated reports. According to Ms. Reever, the DHR opposed
any reduction in the retention period because the agency regards
these records as a valuable resource. Ms. Reever explained that in
approximately 50% of cases in which a report is unsubstantiated, a
subsequent report of abuse or neglect is filed.
Massachusetts
The Commission interviewed Jan Carey, Assistant to the Commissioner
of Massachusetts DSS. Ms. Carey explained to the Commission that
when a child abuse report is first received, it can be either
"screened in" or "screened out." According to material provided to
the Commission by Ms. Carey, the screening process is generally
completed within twenty-four hours of the initial complaint. If
the report is screened in, an investigation is conducted after
which the case will either be found "supported" or "unsupported."See footnote 245
Massachusetts law provides that "screened out" reports are retained
for one year unless there is a determination that the complaint was
frivolous or there was an "absolute determination that abuse or
neglect did not take place." Frivolous and baseless reports are
not entered into the records of the central registry or any other
computerized data base utilized by Massachusetts DSS. See footnote 246 Otherwise, all screened out cases and unsupported
cases are retained for one year. See footnote
247 During this one year period, these records are stored in the local office's closed record
files. Information regarding these reports is also maintained in a computerized information
system. Caseworkers investigating subsequent reports involving the
same parties have access to these records. See
footnote 248
James Connors, a Policy Development Specialist at Massachusetts
DSS, told the Commission that Massachusetts used to destroy all
screened out and unsupported reports ninety days after a
determination was made on the case. That practice ended after a
two and one-half-year old girl was murdered by her father's
girlfriend. Prior to the murder, Massachusetts DSS had received
several reports of abuse concerning this child, approximately one
report every four to five months. The cases were unsupported,
however, and the related records were expunged after ninety days.
As a result, caseworkers assigned to investigate subsequent reports
of abuse of this child had no indication that there had been any
prior reports of abuse. After this death, Massachusetts DSS
advocated legislative change, arguing that if records of the
unsupported cases involving the murdered child had been retained,
the agency would have more closely scrutinized subsequent
allegations of abuse and could have made efforts to protect the
child.
The Commission interviewed Linda Saucier, an Intake Supervisor at
a Massachusetts DSS CPS office, to learn how CPS caseworkers in her
office use prior screened out and unsupported cases in
investigations. Ms. Saucier told the Commission that these case
files are referred to frequently by both caseworkers and
supervisors assigned to the investigation of subsequent child abuse
and neglect complaints. Ms. Saucier stated that access to screened
out and unsupported cases is helpful to her and her staff when
reviewing a new complaint concerning the same household. According
to Ms. Saucier, more information leads to better informed
decisions. Ms. Saucier further advised the Commission that
retaining these records is particularly helpful to caseworkers in
detecting patterns of abuse and neglect which might otherwise
remain unnoticed. She gave an example by referring to cases in
which young children are left unattended in a car. According to
Ms. Saucier, these reports would be screened in and investigated,
but if there were no other indications of abuse or neglect of the
child, an individual case would be unsupported. Since these
reports are retained, if her office receives a number of such
complaints involving the same parent or guardian, a more intensive
investigation would be initiated. Ms. Saucier indicated that
without access to the prior unsupported case records, caseworkers
might not realize that a more vigorous effort is required. Ms.
Saucier told the Commission that since she reviews several hundred
cases each month, it would be impossible for her to remember prior
cases without records of such reports.
Ms. Saucier advised the Commission that unsupported reports also
provide an excellent source of information regarding collateral
contacts, such as teachers, doctors and neighbors, which can assist
in evaluating subsequent reports. Ms. Saucier said that these
prior unsupported or screened out cases are also helpful to
caseworkers in determining whether or not an allegation has already
been investigated and in evaluating the credibility of someone
reporting abuse or neglect. By reviewing prior screened out or
unsupported reports of abuse, caseworkers can identify reporters
who file complaints vindictively against their neighbors or ex-
spouses. Ms. Saucier recalled a case in which a father filed a
number of reports alleging that his ex-wife was abusing their
daughter. These reports were unsupported, but retained in the
local district office. A review of the prior unsupported
allegations led caseworkers to conclude that the father was filing
these meritless reports merely to harass his ex-wife, and therefore
detailed investigation of subsequent complaints by the father was
deemed unwarranted.
Ms. Saucier noted that there are safeguards in place to minimize
the danger that a caseworker might review prior unsupported reports
in a case and erroneously conclude that an individual is merely
being vindictive in filing a report. For example, Ms. Saucier
indicated that caseworkers always make collateral contacts during
investigations, thus reducing the risk of this type of mistake.
Texas
Texas officials advised the Commission that prior to 1993, records
for cases in which an allegation of child abuse or neglect was
"ruled out" were destroyed six months after the last action on the
case. During these six months, caseworkers investigating a
subsequent complaint were permitted access to these reports. Since
1993, such records are no longer destroyed but instead remain
available to caseworkers for a minimum of eighteen months after the
last action on the case. Texas also provides four categories of
determination: "reason to believe," "unable to determine," "ruled
out" and "family moved." With respect to the first three
categories, caseworkers are required to determine whether any child
in the household in question appears to be at risk. If a case is
"ruled out" and there appears to be "no risk" to a child, case
records remain available to caseworkers for eighteen months. If
the case is "ruled out" but any child in the household appears to
be "at risk" of future abuse or neglect, the records remain
available to caseworkers for three years. With respect to all
other possible determinations, the records remain available to
caseworkers for at least five years. See footnote
249
Even after records are no longer accessible to caseworkers, records
are not destroyed. Instead, access to case records is limited to
researchers in the Texas Department of Protective and Regulatory
Services (the "Department"). Homer Kern, the Director of the
Program Assessment Section in the Department told the Commission
that one reason Texas stopped destroying records was because
destruction made it difficult to assess the effectiveness of child
protective services. With a complete set of records, recidivism
rates can be studied more closely and quality control can be more
effectively enforced. To protect the confidentiality rights of
individuals mentioned in these records, after the initial period
during which caseworkers have access to these cases, access is
restricted to the Department's research staff. Mr. Kern also said
that, depending on the outcome of his research, legislation may be
proposed to permit CPS caseworkers in Texas to have access to all
prior reports of abuse and neglect while investigating new
complaints.
Other States
Illinois, Maryland, Massachusetts and Texas are not the only states
that retain some or all of the types of records which New York
routinely destroys. In Alabama, for example, records are retained
for at least five years after a determination is made that a case
was not indicated. After five years, the alleged perpetrator may
request that his name be expunged from the Central Registry
provided that no further reports concerning this same individual
were received in the interim. See footnote 250
In Arizona, if a report is determined to be invalid, identifying information is purged from
the Central Registry two years after the report is initially
received. If there is no investigation of the report, or if the
report is deemed undetermined after investigation, identifying
information is purged five years after the report is initially
received. The terms "invalid" and "undetermined" are not defined
in the statute. See footnote 251 In California,
records of unfounded complaints are expunged at the State Central Registry.
Nevertheless, California allows, but does not require, local CPS agencies to
retain copies of unfounded child abuse complaints. See footnote 252 In Iowa, if a case can neither be founded nor
unfounded by a preponderance of
the evidence, the file is sealed after one year and expunged five
years after sealing. If a case is unfounded by a preponderance of
the evidence, the records are immediately expunged. See footnote 253 In Missouri, if there is insufficient evidence to
establish that a child was
abused or neglected, reports are retained for five years. If the
child cannot be located, the report is retained for ten years. See footnote 254 In New Hampshire, founded reports are retained for
seven years.
Unfounded at-risk reports are retained for three years. A report
is founded if there is probable cause to believe a child was abused
or neglected. A report is unfounded if there is not such probable
cause. The term unfounded at-risk is not defined in the statute. See footnote 255
After Missy died, Lynne Wilson, who had once been Missy's foster-
mother, contacted Marilyn Douglas, who was then the majority leader
of the Rensselaer County Legislature and Chairwoman of its
Committee on Investigations. Ms. Wilson alleged that negligence by
County officials had contributed to the death of Missy Williams.
In response to Ms. Wilson's allegations, in May 1992, the
Rensselaer County Legislature's Committee on Investigations opened
a formal investigation into Missy's death. Marilyn Douglas, who
spearheaded this investigation, testified before the Commission
concerning her effort to find out why Missy died.
Ms. Douglas told the Commission that during Missy's short life,
numerous complaints were made to the SCR concerning this
handicapped child. In 1988 and 1989, for example, several reports
were filed, including one which alleged that when school aides were
changing Missy's diaper, they saw maggots in her vagina. See footnote 259
In 1989, Missy was removed from her parents and placed in the care
of a foster-mother, Lynne Wilson. Missy stayed in Ms. Wilson's
care for a year, during which time Missy thrived. See footnote 260 Meanwhile, Missy's mother
was struggling to regain custody of her child. The
mother explained that she wanted Missy back so the little girl
could die at home. See footnote 261 In
November 1990, Missy Williams was returned to the custody of her parents.See footnote 262 At that time, Missy was six
years old and weighed over forty pounds.See
footnote 263
Again complaints were filed with the SCR alleging that Missy was
not receiving proper care from her parents. Ms. Douglas told the
Commission that her investigation disclosed that at least nine
complaints concerning Missy were filed with the SCR in 1991. Among
these was a report dated December 17, 1991 which stated that
Missy's ribs looked like a bird cage, indicating a substantial
weight loss. On December 19, 1991, Missy, who also suffered from
asthma, experienced difficulties in breathing and was brought by
school officials to the hospital. See footnote
264 Missy was released by the hospital to her parents two days later. After her release,
Missy's weight plummeted. Eight days after her release from the hospital,
Missy was brought back to the hospital by emergency crews. She was
dead and weighed just twenty-five pounds. See
footnote 265
Ms. Douglas told the Commission that her Committee conducted
private hearings to determine what actions county agencies,
particularly Rensselaer County DSS and CPS, had taken in response
to complaints about Missy's condition. Ms. Douglas explained that
these hearings were conducted privately to prevent public
disclosure of confidential information. See
footnote
266 In its effort to find out why Missy died, the Committee issued subpoenas to secure
documents and testimony from Rensselaer County DSS and CPS
concerning Missy Williams. See footnote 267
The only response the Committee received was that confidentiality laws precluded these
agencies from providing any information. The Committee then brought a
lawsuit to enforce compliance with the subpoena. The Committee
lost. In a decision dated December 24, 1992, New York State
Supreme Court Justice Edward O. Spain held that since "...neither
county legislatures nor county legislative investigative
committees..." were authorized by the Social Services law to obtain
access to the subpoenaed information, the application to enforce
compliance with the subpoenas had to be denied. See footnote 268
Ms. Douglas told the Commission that since her Committee could not
find out what actions, if any, had been taken by Rensselaer County
DSS and CPS to protect Missy Williams, the Committee issued no
public report. Ms. Douglas explained that the Committee knew it
had "only half the story." A private report on Missy's death was
issued, however, by State DSS, a copy of which was provided to Ms.
Douglas in her capacity as chairwoman of the County Legislature. See footnote 269 According to Ms. Douglas, State DSS concluded that
the case of Missy Williams had been handled appropriately. Ms. Douglas told
the Commission:
According to Ms. Douglas, her Committee has often investigated
allegations that government agencies and officials acted
improperly. She cited an investigation into an escape by prisoners
from the County's public safety building shortly after it opened
and another into accusations of embezzlement in the County
Sheriff's Department. In these cases and others, her Committee
was able to obtain the information it needed from County agencies
without even issuing a subpoena. The only time her Committee was
thwarted was when it tried to investigate the actions of County
child welfare officials. See footnote 272
In August 1994, the Commission interviewed William Dorr, the Acting
Director of the DSS Albany Regional Office, to discuss the current
system of oversight for CPS offices. Mr. Dorr explained that State
DSS has five regional offices which monitor CPS agencies. As
described by Mr. Dorr, complaints received by the regional offices
provide the primary means through which CPS agencies are monitored.
According to Mr. Dorr, most of these complaints come from
disgruntled subjects of child abuse reports. Since a "subject" of
a CPS report is an individual who allegedly abused or neglected a
child, it is unlikely that many complaints would be filed by
subjects of unfounded reports. See footnote
273 Regional office staff act on complaints by telephoning the caseworker or supervisor
responsible for the investigation and, if questions remain, by visiting the
caseworker. In most instances, regional office staff do not re-
interview subjects or victims named in a report.
According to Mr. Dorr, when complaints are received from
individuals who filed child abuse reports, regional office staff
generally refer the complainant to the caseworker or supervisor
responsible for the case. If the regional office learns that the
reporter is still not satisfied, the regional office will then
review the complaint. When a report is filed by a mandated
reporter, such as a medical professional, a police officer, a
prosecutor or a school officials, the reporter is entitled, upon
request, to be informed of the investigative findings. See footnote 274 Since the majority of
child abuse and neglect reports are filed by mandated
reporters, keeping them apprised of the outcome of investigations
could provide some limited measure of accountability for the child
protective system. The Commission learned, however, that many
mandated reporters are unaware of their right to this information
and, consequently, do not routinely request it.
Mr. Dorr also indicated that pro-active reviews of CPS cases are
uncommon. They are conducted by regional office staff if a CPS
office has an unusually high or low case closing rate or by Mr.
Dorr personally when he conducts what he described as an annual
mini-review of files at each CPS agency in his region. Mr. Dorr
acknowledged that given the number of child abuse and neglect cases
in the Albany region, the number of cases reviewed is not
significant.
Downstate, according to a recent report by a Suffolk County Grand
Jury, oversight is apparently significantly more lax. The State
DSS Metropolitan Regional Office ("MRO") is responsible for
supervising casework in New York City, and in Dutchess, Nassau,
Orange, Putnam, Rockland, Suffolk, Sullivan, Ulster and Westchester
Counties, areas which contain 65% of the children in New York
State. For each of these areas, the MRO CPS division is
responsible for conducting random reviews of case records, for
reviewing every child fatality in which there had been local CPS
involvement prior to the death of the child, and for investigating
all institutional abuse and neglect cases. To perform these
daunting tasks, the MRO CPS division has a staff of two. See footnote 275
CPS records can also be reviewed by "...any appropriate state
legislative committee responsible for child protection."See footnote 276 In practice, such reviews appear to
be uncommon. For example, Barbara
Comithier, the Associate Director of Children and Family Services
at Albany County DSS, told the Commission that she could not recall
any review of CPS cases by any entity other than the DSS Albany
Regional office, although she noted that CPS cases can be reviewed
by a grand jury. See footnote 277
Confidentiality laws also limit the effectiveness of local child
fatality review committees. In Albany County, for example, CPS
believes that confidentiality laws prohibit it from discussing
individual cases with all members of the County's Child Fatality
Review Committee. See footnote 278
Although, the New York City Child Fatality Review Committee is provided with records
concerning CWA investigations, it has concluded that its public reports cannot
include identifying information concerning the cases it examines. See footnote 279
With the exception of New York City, there is no provision for
independent oversight by local officials of CPS investigations.
The New York City Department of Investigation ("DOI") has statutory
authority to examine CWA records. See footnote
280 DOI, however, is not entitled to receive information which identifies any individuals
named in a CWA report unless such information is essential to the DOI
investigation and State DSS gives prior approval to the
disclosure. See footnote 281
New York State's current confidentiality laws, by limiting
oversight and barring public accountability, undermine the very
purpose of the child protective system. In the Commission's view,
these laws create a barrier to ensuring that abused and neglected
children are being effectively served by the agencies created to
protect them.
What little opportunity exists for State DSS to monitor decisions
to unfound cases appears to be hopelessly squandered. Although CPS
offices have the statutory authority to determine whether a case
should be indicated or unfounded,See footnote
283 CPS cannot expunge a report until instructed to do so by the SCR. See footnote 284 This provides State DSS with what is often the only
opportunity for anyone outside CPS to
adequately review this decision. It is apparent, however, that
little, if any, review is actually conducted. Barbara Comithier of
Albany County CPS, which unfounded 1,984 reports in 1994, told the
Commission that she could not recall a single case in almost a
decade in which State DSS had even raised a question concerning a
decision to unfound a case during this process. See
footnote 285 Maureen McLoughlin of Nassau County CPS, which unfounded 3,266 reports
in 1994, told the Commission that she could not personally recall
State DSS ever rejecting a decision to unfound a case. See footnote 286 Legal research located only one reported case since
the creation of the
SCR in which State DSS rejected a decision to unfound a case. See footnote 287
The impact of expungement on State DSS oversight system was
acknowledged by Mr. Dorr of the DSS Albany Regional office. He
told the Commission that when his office receives a complaint
concerning an expunged report, the regional office has to rely on
the caseworker's memory to evaluate the complaint since there are
no records at CPS or at the SCR to review. Mr. Dorr conceded that
this process is particularly ineffective in urban areas where CPS
caseworkers handle a large number of cases and are unlikely to
remember the specific facts of a case.
Expungement also hampers efforts by local CPS offices to monitor
themselves. Barbara Comithier told the Commission that when she
receives a complaint concerning an expunged case, she cannot review
the activities of her caseworkers as effectively as she can when
she receives a complaint about an indicated report. See footnote 288 Similarly, Maureen McLoughlin told the
Commission that if she receives a complaint after a case is expunged, the fact that she has no
record to consult turns resolution of the complaint into a contest between
the word of the complainant and the word of a CPS caseworker and
supervisor. See footnote 289
In addition, expungement limits the ability to local child fatality
review committees to monitor local CPS agencies. The New York City
Child Fatality Review Panel (the "Panel), for example, recently
completed its review of ninety-three child dealths in New York City
in 1993. See footnote 290
This review focused on thirty-seven children who were known to CWA prior to their
deaths through an indicated report, a
pending investigation, or ongoing provision of services. See footnote 291 If any of the remaining fifty-six children had been
the subject of an unfounded report, the file would have been unavailable because of
expungement laws.
Thus, confidentiality laws mandate silence and expungement laws
mandate ignorance. By destroying the record of the bulk of its
work, CPS caseworkers cannot be held fully accountable even to
their own supervisors. Furthermore, even in the most egregious
cases which come to the public's attention as the result of a
child's death, there is often no record of the agency's action
available for subsequent review.
As noted earlier in this report, the Adam Mann Act, which was
sponsored by New York Congresswoman Susan Molinari and co-sponsored
by New York Congressman Major Owens, was instrumental in bringing
about change in federal confidentiality rules. This legislation
was passed by Congress and enacted into law in 1992. See footnote 296 Among the stated purposes of the Adam Mann Act is
to provide for expanded state and local oversight of child protective efforts, and to
permit an increased level of public accountability. A report by
the Education and Labor Committee of the House of Representatives
on the bill which became the Adam Mann Act noted that existing
state confidentiality laws sometimes prohibited "...child welfare
workers from sharing information about a child's case with other
government agencies."See footnote 297
The report stated that the legislation was intended to:
The second recurring complaint of child protection
services is the lack of accountability in the child
protective service. There is little public
accountability of these agencies, partly because of the
confidentiality laws, but also because there is little
government oversight of these large bureaucracies. See footnote 298
On August 3, 1992, Congresswoman Molinari explained to the House of
Representatives that her legislation was:
This language also would allow for the public disclosure,
through the media or otherwise, of specific cases of
child abuse and neglect as long as information which
could identify the individuals involved is redacted.
Public disclosure of child abuse cases where the
government has failed the child is often the best form of
accountability. Public accountability of CPS's is
unfortunately necessary sometimes to insure that they
adequately perform their jobs... . One method that States
may establish to provide for this type of release is to
authorize courts to release the appropriate
information. See footnote 299
Congresswoman Molinari advised the Commission that the oversight
and accountability sections of the Act were specifically intended
to ensure that CPS offices would be held strictly accountable for
their actions. The Congresswoman compared CPS caseworkers to
police officers whose every action seems to be scrutinized daily.
She asked why caseworkers should not be subject to the same level
of scrutiny. Congresswoman Molinari noted that she has no idea
what caseworkers did with respect to the Lisa Steinberg case or the
Adam Mann case. In her view, there are instances in which it is
important for the public to know how caseworkers conducted child
abuse investigations.
The ramifications of the oversight and accountability sections of
the Adam Mann Act are evident in the regulations proposed in 1994
by the United States Department of Health and Human Services. The
proposed regulations set forth revised standards, under the Adam
Mann Act, for states receiving federal grants."See footnote 301 With respect to state and local oversight, the
proposed regulations would permit
states to authorize the release of CPS records to state and local
officials responsible for the administration and oversight of CPS.
This provision was intended to permit state and local officials
"...responsible for the administration of the child protective
services system, or for oversight of the enabling or appropriating
legislation, or for compilation of statistical information on
abused and neglected children, their families or those who commit,
or allegedly commit child abuse and neglect, who need such
information in the course of carrying out their official duties..."
to review CPS records subject to the same confidentiality
restrictions as apply to CPS staff. See footnote
302
These proposed regulations would also permit states to authorize
limited public disclosure of information from CPS records through
the media.
Within two days of Emily's death, DCF officials publicly confirmed
that caseworkers had known of the conditions in Emily's home prior
to her death, and had investigated a complaint concerning Emily
during which a caseworker accepted Emily's mother's explanation for
her infant's broken leg. See footnote 310
James Carr, the Director of the Children Protective Services division at DCF, recently told
the Commission that the policy of openness which permitted the
disclosure of information regarding the case of Emily Hernandez
still prevails. Mr. Carr explained that since Emily's death, the
DCF has instituted and continued a policy of being more forthcoming
with information concerning its handling of child abuse cases. Mr.
Carr added that the agency has done so while, at the same time,
maintaining the privacy rights of the family. Mr. Carr also told
the Commission that federal authorities have raised absolutely no
objections to Connecticut's new policy.
This system is both ridiculous and unnecessary. Federal law has
long afforded the opportunity to provide disclosure of information
while still protecting the confidentiality rights of children and
families. Disingenuous assertions that secrecy requirements are
imposed on New York by the federal government can only further
undermine public confidence. It is now time for New York State to
recognize that it is our laws that are at fault and that the time
has come to change them.
The effectiveness of the response by State and local criminal
justice agencies to child abuse and neglect remains an area of
concern to the Commission. Statistical data providing detailed
information concerning arrests and prosecutions is obviously
critical to evaluating this response. On a Statewide level, such
data does not exist. Such information is only available on a
limited basis in some local communities.
Some county law enforcement agencies, however, have begun to better
track child abuse cases and measure the success of their multi-
disciplinary teams. For example, the Dutchess County Sheriff's
Department, due to an elaborate coding system for its computer
database of police reports, can analyze the types of sexual abuse
cases it has investigated and separate sex crimes committed against
adults from those committed against children.
Unfortunately, not all counties visited by the Commission maintain
information in this manner. This failure makes it difficult to
assess the nature and extent of child abuse in a particular county
and fashion an appropriate response by local officials. The
failure of multi-disciplinary teams to track cases precludes any
empirical measure of an individual team's success. The ability to
identify child abuse trends would be especially valuable to local
communities seeking to allocate limited resources to combat these
crimes. For example, statistical data concerning child abuse
occurring within the family or within educational or other
institutions could assist local authorities in formulating
appropriate responses.
The incident-based reporting system provides for the collection of
information which would be pertinent to a meaningful analysis of
child abuse statistics. For example, according to a NYSIBR Summary
Codebook, the system requires that the relationship between the
victim and offender be classified, and offers twenty-seven
classifications of the victim, including step-child, step-sibling,
child of boyfriend, and baby-sitter. This type of information, in
connection with other relevant classifications, would provide more
comprehensive statistics concerning child abuse cases in the State.
See footnote 316
Unfortunately, the NYSIBR is not even close to being implemented
Statewide. Mr. Brownstein explained to the Commission that many
police departments are reluctant to participate in this system
because the computer program and the necessary personnel training
are costly. Mr. Brownstein stated, however, that DCJS is currently
developing a free computer program for the implementation of the
NYSIBR in 200 police departments throughout the State. It should
also be noted that federal law will soon require New York and other
states to provide information on child abuse crimes to the national
criminal history background check system. See
footnote 317 In December 1995, the Commission re-contacted DCJS concerning this issue.
The Commission learned that there are now six police departments, including the
Dutchess County Sheriff's Department, using the new system; seven
other departments are testing it. DCJS hopes to have the new
system in use Statewide by the year 2005.
In the Commission's view, DCJS should move ahead more quickly with
its new tracking system. The detailed information this system
promises to make available would provide law enforcement agencies
with the means to better allocate their resources in the fight
against crime, including crimes against children. New Yorkers
should not have to until the next millennium for this information
to become available.
With respect to in-service training, although CPS officials and
caseworkers throughout the State stressed the importance of
continuous in-service training, particularly in the area of child
sexual abuse cases, such training is rarely provided to New York
City caseworkers. CWA supervisors told the Commission that
although specialized training in the area of sexual abuse is
necessary, it is generally not available. The in-service training
which is available, in areas such as substance abuse and domestic
violence, is avoided by caseworkers because they continue to
receive case assignments while attending training classes. As a
result, additional training causes caseworkers to fall behind in
their work. Budget constraints have also eliminated the in-service
training and close supervision formerly provided to new CWA
caseworkers.
The Commission discussed current medical school curricula with Dr.
Donald G. Kassebaum, M.D., Vice President for Educational Research
and Assessment at the Association of American Medical Colleges.
According to Dr. Kassebaum, medical schools have been training
students to recognize the indicia of child abuse since the early
1960s. In Dr. Kassebaum's opinion, the subject of child abuse is
already well covered in the medical schools' curricula. Although
he acknowledged that there are no courses devoted exclusively to
the topic, he said that the topic of child abuse is covered in
courses on Human Behavior and the Life Cycle, and Child Health. In
addition, during clinical training, particularly in pediatrics,
medical students are likely to be exposed to actual cases of child
abuse.
Medical schools must also take steps to ensure that their students
understand the significance of the child abuse training they
receive. It is critical that physicians be made to understand that
children are physically and sexually abused, and that physicians
have a unique opportunity to recognize and act upon signs of abuse.
At the same time, professionals in the field agreed that in certain
cases, where the CPS investigation disproves the child abuse
allegation, retention of records is not useful. The Commission
also recognizes that there are legitimate concerns about family and
personal privacy which must be addressed in confronting this issue.
The Commission therefore recommends a more balanced approach to
record retention, which takes into account the needs of CPS
caseworkers and law enforcement professionals while recognizing
privacy rights of the family. Currently, there are approximately
thirty states which retain some or all unfounded cases without
abrogating the constitutional liberties of their citizens.
Footnotes
Footnote: 1
These statistics were provided to the Commission by the New York State
Department of Social Services.
Footnote: 2
This estimate is based on findings by the New York City Child Fatality
Review Panel. See Child Fatality Review Panel: Annual Report for 1993, New York
City Human Resources Administration (1995). There is no Statewide Child Fatality
Review Panel.
Footnote: 3
See P. Stevens and M. Eide, The First Chapter of Children's Rights,
American Heritage, at 84-91 (Jul. - Aug. 1990). Mary Ellen, who was brought up by Etta
Wheeler's niece, later married, raised six children and lived to be ninety-two years old. Id at
89-90.
Footnote: 4
See Child Protective Services in New York State, The Temporary State
Commission on Child Welfare, at 3-13 (June 1980).
Footnote: 5
The terms "maltreatment" and "neglect" are
essentially synonymous. See N.Y. Soc. Serv. Law § 412(2) (McKinney 1992)
and N.Y. Fam. Ct. Act § 1012(f) (McKinney 1983).
Footnote: 6
These statistics were provided to the Commission by State DSS. Mandated
reporters include hospital personnel and physicians, school officials, police officers and social
service workers. N.Y. Soc. Serv. Law § 413 (McKinney 1992).
Footnote: 7
CQC investigates cases in facilities operated by the Office of Mental Health
and the Office of Mental Retardation and
Developmental Disabilities, except when these institutions are
located within facilities otherwise licensed by DSS. All other
institutional abuse investigations are the responsibility of DSS.
N.Y. Soc. Serv. Law § 424-c (McKinney 1992) and N.Y. Mental. Hyg.
Law §45.07 (McKinney 1988 and supp. 1995).
Footnote: 8
N.Y. Soc. Serv. § 412(3) (McKinney 1992) and N.Y. Fam. Ct. Act
§ 1012(g) (McKinney 1983).
Footnote: 9
N.Y. Soc. Serv. Law § 422(2)(c) (McKinney 1992). See also
SCR Program Manual, Law Enforcement Referrals, at 2 (Nov. 1989).
Footnote: 10
N.Y. Soc. Serv. Law § 424(6) (McKinney 1992).
Footnote: 11
N.Y. Soc. Serv. Law § 424(3) and (7) (McKinney 1992).
Footnote: 12
N.Y. Soc. Serv. Law § 424(6) (McKinney 1992).
Footnote: 13
N.Y. Soc. Serv. Law § 412 (4) (McKinney 1992).
Footnote: 14
N.Y. Admin. Code tit. 18 § 432.2 (b) (3) (Jul. 31, 1993).
Footnote: 15
N.Y. Soc. Serv. Law § 412 (3) (11) (McKinney 1992) and N.Y. Fam.
Ct. Act § 1012 (g) (McKinney 1983).
Footnote: 16
N.Y. Soc. Serv. Law § 412 (3) (12) (McKinney 1992) and N.Y. Fam.
Ct. Act § 1012 (g) (McKinney 1983).
Footnote: 17
N.Y. Fam. Ct. Act § 1012 (e) and (f) (McKinney 1983).
Footnote: 18
DSS, Child Protective Services Program Manual, Appendix, Section B, at 7
(Aug. 1989).
Footnote: 19
CPS caseworkers explained to the Commission that when it is not possible to
determine who abused a child, but it can be
established that the abuse would not have occurred but for
parental neglect, then a case can be indicated against the parent
for neglecting the child; however, if the parent cannot be deemed
responsible for either abuse or neglect, then the case must be
unfounded.
Footnote: 20
DSS, Child Protective Service Program Manual, Appendix, Section B, at 3
(Aug. 1989).
Footnote: 21
See N.Y. Soc. Serv. Law § 422 (5) (which requires expunging
identifying information), (8)(a)(iii) (which requires expunging the record) and (8)(c)(i) (which
require expunging the record of the report) (McKinney 1992). DSS regulations require
expungement of the record itself. See N.Y. Admin. Code tit. 18 § 432.9 (Jan. 31,
1988).
Footnote: 22
See K. v. K., 126 Misc.2d 624, 483 N.Y.S.2d 602 (N.Y. Co. Sup. Ct.,
1984).
Footnote: 23
N.Y. Soc. Serv. Law § 422(4)(A) (McKinney 1992).
Footnote: 24
N.Y. Soc. Serv. Law § 422(6) (McKinney 1992).
Footnote: 25
N.Y. Soc. Serv. Law § 422(6) (McKinney 1992).
Footnote: 26
N.Y. Soc. Serv. Law § 422 (4)(A) (McKinney 1992).
Footnote: 27
N.Y. Soc. Serv. Law § 424-a (McKinney 1992 and supp. 1995).
Footnote: 28
See Douglas Besharov, Combatting Child Abuse: Guidelines For
Cooperation Between Law Enforcement and Child Protective
Services, at 2-6 (American Enterprise Institute for Public Policy
Research, 1990).
Footnote: 29 Id at 3.
Footnote: 30
N.Y. Soc. Serv. Law § 424 (11) (McKinney 1992). It should be noted
that unless a child dies, if CPS concludes that a
child was mistreated by an individual who was not legally
responsible for the child, CPS is not legally required to notify
any law enforcement official.
Footnote: 31
N.Y. Soc. Serv. Law § 424 (4) (McKinney 1992). As will be
discussed, this subdivision also provides that a district
attorney can submit a written request to the local CPS for copies
of specific types of reports, such as a request for copies of all
sexual abuse reports.
Footnote: 32
DSS has oversight authority over local CPS offices and promulgates and
enforces regulations binding upon CPS offices. See N.Y. Soc. Serv. Law § 421
(McKinney 1992).
Footnote: 33
These interviews and hearings were conducted between October 1994 and
December 1995.
Footnote: 34
See The Impact of Joint Law Enforcement - Child Protective
Services Investigations in Child Maltreatment Cases
(hereinafter "The Impact of Joint Investigations"), at i (Center
for Policy Research, Sept. 1994).
Footnote: 35
There is no statutory requirement that any CPS agency notify the police
concerning crimes against children. As
discussed in the previous section, CPS is required to notify a
district attorney if a child dies or if the district attorney has
submitted a written request to receive copies of particular types
of complaints, such as all sexual abuse complaints.
Footnote: 36
See Commission testimony of Detective Frederick Raymond Layne
at 83-84.
Footnote: 37
See Douglas Besharov, Combatting Child Abuse: Guidelines For
Cooperation Between Law Enforcement and Child
Protective Services, supra, at 14.
Footnote: 38
See The Impact of Joint Investigations, supra, at iii.
Footnote: 39 Id at 2.
Footnote: 40 Id at i.
Footnote: 41 Id at 84.
Footnote: 42
See Corby, B., Social Services Departments and Child Protection
- An Evaluation, 11 Liverpool Law Review 9, 22 (1989).
Footnote: 43
See Investigation of Child Sexual Abuse - An Executive Summary,
at 1 (University of Surrey 1991).
Footnote: 44 Id at 28.
Footnote: 45 Id at 28.
Footnote: 46
N.Y. Soc. Serv. Law § 424 (4) (McKinney 1992). DSS Assistant
Deputy Counsel John Stupp told the Commission that when
district attorneys request to review certain types of reports,
they can either review the reports and refer those in which they
were interested to a local police department for further
investigation, or they can designate a local police department as
their agent so the police can receive the reports directly.
Footnote: 47
All census information cited in this report was obtained from the
MUNICIPAL REFERENCE GUIDE: NEW YORK, National Resource
Directories, Inc. (1994).
Footnote: 48
Unless otherwise indicated, all abuse and neglect statistics cited in this report
were provided to the Commission by State DSS.
Footnote: 49
See Commission testimony of Barbara Comithier at 10 and 14-16.
Footnote: 50
See Commission testimony of Barbara Comithier at 21-23.
Footnote: 51
See Commission testimony of Barbara Comithier at 25-26.
Footnote: 52
See Commission testimony of Paul DerOhannesian at 11.
Footnote: 53
See Commission testimony of Paul DerOhannesian at 22.
Footnote: 54
See Commission testimony of Paul DerOhannesian at 21-22.
Footnote: 55
See Commission testimony of Paul DerOhannesian at 29-30.
Footnote: 56
See Commission testimony of Barbara Comithier at 29-30.
Footnote: 57
See Commission testimony of Barbara Comithier at 31-33.
Footnote: 58
See Commission testimony of Barbara Comithier at 38-44.
Footnote: 59
See Commission testimony of Paul DerOhannesian at 34.
Footnote: 60
See Commission testimony of Paul DerOhannesian at 35-36.
Footnote: 61
See Commission testimony of Paul DerOhannesian at 38-39.
Footnote: 62
See Commission testimony of Barbara Comithier at 34.
Footnote: 63
See Commission testimony of Barbara Comithier at 34.
Footnote: 64
See Commission testimony of Barbara Comithier at 50-52.
Footnote: 65
See Commission testimony of Barbara Comithier at 52. CPS
caseworkers throughout the State were critical of the State
DSS policy which initially established this standard. The Court
of Appeals, however, recently held that, as a matter of law, the
fact that a child is born with illicit drugs in his system is not
prima facie evidence of abuse or neglect. See Nassau County Department of Social
Services v. Denise J., N.Y. Law Journal, Dec. 1, 1995, at 27.
Footnote: 66
See Commission testimony of Barbara Comithier at 51-53.
Footnote: 67
See Commission testimony of Paul DerOhannesian at 81-82.
Footnote: 68
See Commission testimony of Paul DerOhannesian at 82.
Footnote: 69
See Commission testimony of Paul DerOhannesian at 87.
Footnote: 70
See Commission testimony of Paul DerOhannesian at 81.
Footnote: 71
See Commission testimony of Paul DerOhannesian at 90.
Footnote: 72
N.Y. Crim. Proc. Law §160.50 (McKinney 1992).
Footnote: 73
See Commission testimony of Barbara Comithier at 58-61.
Footnote: 74
See N.Y. Soc. Serv. Law § 424(7) (McKinney 1992).
Footnote: 75
See Commission testimony of Andrew Huber at 9 and 14.
Footnote: 76
See Commission testimony of Andrew Huber at 25-27.
Footnote: 77
See Commission testimony of Andrew Huber at 28.
Footnote: 78
See Commission testimony of Andrew Huber at 34.
Footnote: 79
See Commission testimony of Andrew Huber at 40.
Footnote: 80
See Commission testimony of Andrew Huber at 36-37.
Footnote: 81
One social worker told the Commission he feared being sued by a client for
failing to disclose information to the
client relevant to the client's mental health or conversely, for
improper disclosure of information obtained from the client to
other team members.
Footnote: 82
See Commission testimony of Andrew Huber at 50-52.
Footnote: 83
See Commission testimony of Andrew Huber at 60-61.
Footnote: 84
In several counties, the Commission received complaints about it taking an
hour or more to file a report with the SCR.
The Commission learned that the SCR has recently taken
significant steps to substantially reduce the waiting time.
Footnote: 85
As previously noted, CPS is required to notify individuals that they have
been named as subjects of a child
abuse or neglect report. CPS caseworkers and police officers
told the Commission that after this notice is provided, the
chances of obtaining admissions from these subjects declines
dramatically.
Footnote: 86
In October 1994, Senior Investigator Cooke told the Commission that the
Watertown Unit had received thirty-one sexual
abuse cases, ten physical abuse cases, twenty-one endangering the
welfare of a child cases, three rapes and eighteen cases of
unlawfully dealing with a child. These statistics include all
child abuse cases from January until October 1994. There was no
separate category for familial abuse.
Footnote: 87
See Commission testimony of Maureen McLoughlin at 34.
Footnote: 88
See Commission testimony of Maureen McLoughlin at 31-33.
Footnote: 89
See Commission testimony of Maureen McLoughlin at 36.
Footnote: 90
See Commission testimony of Maureen McLoughlin at 11-12.
Footnote: 91
See Commission testimony of Maureen McLoughlin at 36-37.
Footnote: 92
See Commission testimony of Maureen McLoughlin at 37-39.
Footnote: 93
See Commission testimony of Maureen McLoughlin at 39.
Footnote: 94
See Commission testimony of Maureen McLoughlin at 33-34.
Footnote: 95
See Commission testimony of Maureen McLoughlin at 41.
Footnote: 96
See Commission testimony of Maureen McLoughlin at 35.
Footnote: 97
See Commission testimony of Maureen McLoughlin at 46.
Footnote: 98
See Commission testimony of Maureen McLoughlin at 44.
Footnote: 99
See Commission testimony of Maureen McLoughlin at 44-45.
Footnote: 100
See Commission testimony of Maureen McLoughlin at 47-48.
Footnote: 101
See Commission testimony of Maureen McLoughlin at 50-51.
Footnote: 102
See Commission testimony of Maureen McLoughlin at 52-53.
See also Nassau County Department of Social Services v. Denise J., N.Y. Law
Journal, Dec. 1, 1995, at 27.
Footnote: 103
See Commission testimony of Maureen McLoughlin at 55-56.
Footnote: 104
See Commission testimony of Maureen McLoughlin at 57-59 and
61-63.
Footnote: 105
See Commission testimony of Maureen McLoughlin at 80.
Footnote: 106
See Commission testimony of Maureen McLoughlin at 57-59.
Footnote: 107
See Commission testimony of Maureen McLoughlin at 70-71.
See also N.Y. Soc. Serv. Law §422(14) (McKinney 1992).
Footnote: 108
See Commission testimony of Maureen McLoughlin at 68.
Footnote: 109
The Human Resources Administration ("HRA") is the parent
agency for the Child Welfare Administration ("CWA"). HRA
administers many of New York City's social service programs,
including programs for AIDS victims, battered women and abused
children. CWA is the CPS agency for New York City.
Footnote: 110
Assistant District Attorney Louise Cohen explained that children under the
age of seven are often determined incapable, under New York law, of providing sworn testimony
against their abuser.
Footnote: 111
See Commission testimony of Detective Layne at 11.
Footnote: 112
See Commission testimony of Detective Layne at 11-12.
Footnote: 113
See Commission testimony of Detective Layne at 45.
Footnote: 114
See Commission testimony of Detective Layne at 45.
Footnote: 115
See Commission testimony of Detective Layne at 53-55.
Footnote: 116
See Commission testimony of Detective Layne at 54.
Footnote: 117
See Commission testimony of Charles Hollander at 11-13 and 16.
Footnote: 118
See Commission testimony of Charles Hollander at 29-30. Mr.
Hollander told the Commission that a City-wide protocol was
recently reached with all the New York City district attorneys
pursuant to which all allegations of sexual abuse and serious
physical injury will be referred to the appropriate district
attorney. See Commission testimony of Charles Hollander at 26.
Footnote: 119
See Commission testimony of Charles Hollander at 28-30.
Footnote: 120
See Commission testimony of Charles Hollander at 32.
Footnote: 121
See Commission testimony of Charles Hollander at 38-39 and
41-42.
Footnote: 122
See Commission testimony of Charles Hollander at 40.
Footnote: 123
See Commission testimony of Charles Hollander at 57-61.
Footnote: 124
See N.Y. Soc. Serv. Law § 419 (McKinney 1992).
Footnote: 125
As of December 31, 1995, there was still no child advocacy center in
Brooklyn. Two child advocacy centers were expected to begin operation in Manhattan early in
1996.
Footnote: 126
See Commission testimony of Charles Hollander at 51-57.
Footnote: 127
See Commission testimony of Charles Hollander at 90-92.
Footnote: 128
Advanced training courses are offered in such areas as substance abuse and
domestic violence.
Footnote: 129
A speculum is an instrument used in the examination of the vagina and
cervix. See Stedman's Medical Dictionary, 25th ed., at 1443-4 (1990).
Footnote: 130
Senior Investigator Sprague recalled the team investigating only a few
institutional abuse cases.
Footnote: 131
With the exception of one state trooper, the Orange County Department of
Social Services pays for the services of
these officers through contracts with the relevant police agencies.
Footnote: 132
When a CPS is told to expunge its files, it is required to notify, "...for
the same purpose, any other agency which received such records." N.Y. Soc. Serv. Law
§422(9) (McKinney 1992). Several prosecutors contacted by the Commission were unsure
how to interpret these notifications. One said that he has received such notifications on cases
awaiting trial and wondered whether he was expected to shred his file.
Footnote: 133
Mr. Sprague provided an example of a case in which a girl alleged that
when she told her mother of being sexually
abused by the child's non-custodial uncle, the mother refused to
believe the girl or act on the matter. In this instance, the
allegation against the mother was sent by the SCR to CPS as a
possible case of neglect at the same time as the SCR referred the
complaint against the uncle to the local police.
Footnote: 134
John Yuille is affiliated with the University of British Columbia. A
number of CPS caseworkers and law enforcement
officials across the State described Mr. Yuille as a well-
recognized expert on interviewing child abuse victims.
Footnote: 135
DSS officials told the Commission that they have requested federal funding
for a training program specifically for members of the judiciary.
Footnote: 136
N.Y. Soc. Serv. Law § 422 (4)(A) (McKinney 1992).
Footnote: 137
It should be noted that unauthorized disclosure of SCR records is a class A
misdemeanor, a sanction which appears to
extend to CPS records as well. See N.Y. Soc. Serv. Law § 422 (4)(A) and (12)
(McKinney
1992).
Footnote: 138
N.Y. Soc. Serv. Law § 422 (4) (A) (l) (McKinney 1992).
Footnote: 139
N.Y. Soc. Serv. Law § 424(4) (McKinney 1992).
Footnote: 140
See N.Y. Exec. Law § 642-a (1) (McKinney supp. 1995).
Footnote: 141
See N.Y. Soc. Serv. Law § 422(4)(A)(o) (McKinney 1992).
Footnote: 142
See N.Y. Civ. Prac. Law & R. § 4504 (McKinney 1992
and supp. 1995).
Footnote: 143
N.Y. Soc. Serv. Law §§ 413 (1) (McKinney supp. 1995).
Footnote: 144
N.Y. Soc. Serv. Law § 416 (McKinney 1992).
Footnote: 145
See N.Y. Civ. Prac. Law & R. § 4508 (McKinney 1992).
Footnote: 146
See N.Y. Civ. Prac. Law & R. § 4508 (a)(3) (McKinney
1992).
Footnote: 147
N.Y. Soc. Serv. Law § 413 (1) (McKinney supp. 1995). Social
workers are not specifically listed as mandated reporters,
but are required to file reports with the SCR if they are working
in any of the positions delineated in the statute. See also People v. Bass, infra.
Footnote: 148
See N.Y. Civ. Prac. Law & R. at § 4508 (a)(2)
(McKinney 1992) and N.Y. Soc. Serv. Law § 413 (1) (McKinney supp. 1995).
Footnote: 149
People v. Bass, 140 Misc. 2d 57, 529 N.Y.S.2d 961 (Bronx Co.
Sup. Ct. 1988).
Footnote: 150
148 Misc.2d 249, 560 N.Y.S.2d 247, 251 (Nassau Co. Court 1990).
Footnote: 151
The father's statements were not described in the opinion.
Footnote: 152
See Gearhart at 560 N.Y.S.2d 247.
Footnote: 153
Id at 560 N.Y.S.2d 252.
Footnote: 154
Id at 560 N.Y.S.2d 253.
Footnote: 155
People v. Younghanz, 156, Cal. App. 3d 811, 202 Cal. Rptr. 907
(Cal. Ct. App. 1984). See also State v. Andring, 342 N.W.2d 128, 133 (Minn.
1984).
Footnote: 156
N.Y. Exec. Law § 835 (9) (McKinney supp. 1995). See also
N.Y. Att'y Gen. Inf. Op. 87- 80 (1987).
Footnote: 157
See N.Y. Soc. Serv. Law § 378-a (McKinney 1992). See
also N.Y. Att'y Gen. Inf. Op. 87- 80 (1987).
Footnote: 158
People v. Esposito, 144 Misc.2d 919, 545 N.Y.S.2d 468 (Sup. Ct. N.Y. County 1989),
aff'd 160 A.D.2d 378, 554 N.Y.S.2d
16 (1st Dept.), appeal denied 76 N.Y.2d 787, 559 N.Y.S.2d 992 (1990).
Footnote: 159
N.Y. Soc. Serv. Law § 422 (4)(A)(k) (McKinney supp. 1995).
Footnote: 160
N.Y. Fam. Ct. Act § 1047 (b) (McKinney supp. 1995).
Footnote: 161 N.Y. Crim. Proc. Law
§ 2.10 (24) (McKinney 1992) and N.Y. Soc. Serv. Law § 413 (1) (McKinney 1992).
Footnote: 162
N.Y. Exec. Law § 256-a (McKinney 1993).
Footnote: 163
This information was supplied by Steven B. Kline, Senior Investigative Counsel to State Senator
Roy M. Goodman's Committee.
Footnote: 164
See Confidentiality in Child Abuse Cases, New York State Senate Committee on
Investigations, Taxation and Government
Operations, at 44 (Jul. 17, 1991).
Footnote: 165
Id at 44.
Footnote: 166
See 42 U.S.C.A. §5106 (a)(b)(4)(A) (West 1995) and 45 C.F.R. § 1340.14
(i) (1993).
Footnote: 167
See N.Y. Soc. Serv. Law § 422(4) (McKinney supp. 1995).
Footnote: 168
A federal spokesman recently explained that states are free to take advantage of the statutory
change even without new regulations. See Disclosure Laws At Issue After Girl's
Death, N.Y. Times, Nov. 29, 1995, at B-8.
Footnote: 169
138 Cong. Rec. E1434-5 (daily ed. May 19, 1992) (statement of Rep. Molinari).
Footnote: 170
Id at E1434.
Footnote: 171
See Frontline, Who Killed Adam Mann, FROL-008 (1992).
Footnote: 172
138 Cong. Rec. E1434 (daily ed. May 19, 1992) (statement of Rep. Molinari).
Footnote: 173
138 Cong. Rec. H7248 (daily ed. Aug. 3, 1992) (statement of Rep. Owens).
Footnote: 174
See 1992 U.S. Code Cong. and Admin. News, vol. 6, at 4229.
42 U.S.C.A. §5106a (b) (4) (B) (West 1995).
Footnote: 176
138 Cong. Rec. H7249-50 (daily ed. Aug. 3, 1992) (statement of Rep. Molinari).
Footnote: 177
David Lloyd, the Director of the National Center for Child Abuse and Neglect, advised the
Commission that the proposed
regulations will not be issued until a Congressional review is completed.
Footnote: 178
N.Y. Soc. Serv. Law § 412(3)(11) (McKinney 1992) and N.Y. Fam. Ct. Act
§1012(g) (McKinney 1983).
Footnote: 179
See DSS, Child Protective Service Program Manual, Appendix, Section B, at 3 (Aug.
1989). It should be noted that
one section of the statute seems to require only redaction of
identifying information from unfounded case records. Other
sections of the statute and State DSS regulations require
expungement of the entire record of the report. See N.Y. Soc. Serv. Law § 422
(5),
(8)(a)(iii) and (8)(c)(i) (McKinney 1992)
and N.Y. Admin. Code tit. 18 §432.9 (Jan. 31, 1988).
Footnote: 180
Assembly Bill A6514 at 11 (Mar. 1973).
Footnote: 181 Id at 11.
Footnote: 182
Legislative Bill Jacket for 1973 N.Y. Laws, ch. 1039, Legislative Memorandum from the
Community Service Society of New
York, at 1-3 (Apr. 26, 1973).
Footnote: 183
1973 N.Y. Laws, ch. 1039, §422(9). This section required expungement of unfounded
reports from the local child
abuse and maltreatment register, but was not understood to
require expungement of all local CPS records.
Footnote: 184
Abuse Panel Sees Encouraging Sign in Lower Child Death Figure, N.Y. Times, Feb. 12,
1995, sec.1 at 1.
Footnote: 185
1981 N.Y. Laws, ch. 585.
Footnote: 186
N.Y.S. Legislative Annual, at 308 (1981). (Memorandum of Assemblyman Vann).
Footnote: 187 Id.
Footnote: 188
NYCLU Legislative Memorandum (Jun. 17, 1981). This statement is included in the Legislative
Bill Jacket for 1981
N.Y. Laws, ch. 585.
Footnote: 189
Letter to Hon. John G. McGoldrick, Executive Chamber, from John C. Farie, Deputy Director of
Services, Monroe County DSS (Jul. 15, 1981). This statement is included in the
Legislative Bill Jacket for 1981 N.Y. Laws, ch. 585.
Footnote: 190
1988 N.Y. Laws, ch. 634.
Footnote: 191
1988 N.Y. Laws, ch. 634 (Memorandum of State Department of Social Services).
Footnote: 192
Report of the Public Child Fatality Review Committee on Fatality Cases for the Year 1985, New
York City Human Resources
Administration (Dec. 23, 1986).
Footnote: 193 Id at 58.
Footnote: 194 Id at 59-60.
Footnote: 195Id at 62.
Footnote: 196
See The Lisa Report: A Report in the Prevention and Treatment of Child Abuse and
Neglect in New York State, The LISA Organization to Stop Child Abuse, Inc. (March 1,
1989).
Footnote: 197 Id at 87.
Footnote: 198Id at 87.
Footnote: 199
See Dr. Vincent J. Fontana, Save the Family, Save the Child, at 199-200 (1992).
Footnote: 200
The 1992 New York City Child Fatality Review Panel Report, New York City Human Resources
Administration, at 61 (1993).
Footnote: 201
CPS Investigation Hearings, Final Report, Legislator Allan Binder, Chairman, Suffolk Co.
Legislature, Committee on
Human Services and Family, at SR2 (1994).
Footnote: 202
Suffolk County Grand Jury 1C, September/October 1994, Term X (1995).
Footnote: 203 Id at 47-50.
Footnote: 204 Id at 47-48.
Footnote: 205
Id at 49. Munchausen Syndrome by Proxy occurs when a child's illness is simulated or produced
by a parent or guardian. See R. Reece, Child Abuse - Medical Diagnosis and
Management, at 266 (Lea & Febiger 1993).
Footnote: 206
Suffolk County Grand Jury 1C, September/October 1994, Term X at 50 (1995).
Footnote: 207 Id at 58-59.
Footnote: 208
See Assembly Bill A5902 (1985), Assembly Bill A5902 (1986).
Footnote: 209
See Senate Bill S1723 (1989), Senate Bill S1723 (1990), Senate Bill S682 (1991).
When
the legislation was proposed in 1989 and 1990, it passed the Senate, but went no further. In
1991, the bill failed to make it out of the Senate Child Care Committee.
Footnote: 210
Senate Bill S1723 (1989, 1990) (Memorandum in Support).
Footnote: 211
Senate Bill S682 (1991) (Legislative Memorandum from the NYCLU).
Footnote: 212
It should be noted that it is possible to formulate a statutory scheme for the retention of
unfounded reports which
would ensure that such records are confidentially maintained for
investigative purposes only. Moreover, based on the Commission's
numerous interviews of professionals in the child protection
field, the usefulness of such records is more than a
"hypothetical possibility."
Footnote: 213
In 1993, the New York City Child Fatality Review Panel endorsed the retention of unfounded
reports, in part, on their conclusion that in many cases of serious abuse or child
fatalities, the family may have been the subject of prior unfounded reports.
Footnote: 214
See Senate Bill S.8563 (1994).
Footnote: 215
In the memorandum, the word that appears at this point is "indicated." According to
a member of the Senator's staff,
this is a typographical error and the word which should appear is
"unfounded."
Footnote: 216
Senate Bill S8536 (1994) (Introducer's Memorandum in Support).
Footnote: 217
Dr. Vincent J. Fontana, Save the Family, Save the Child, supra, at 199 (1991). (Quoting James
Garbarino).
Footnote: 218
Assembly Bill A8563 (1989).
Footnote: 219
Assembly Bill A6309 (1992).
Footnote: 220
See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982) which held that
due process requires that the state
support allegations of parental unfitness by clear and convincing
evidence before the state can terminate parental rights.
Footnote: 221
Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442 (1944).
Footnote: 222
See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1213 (1972) which
held that an unwed father was entitled to
a fitness hearing before his parental rights could be terminated.
Footnote: 223
Hodge v. Jones, 31 F.3d 157, 164 (4th Cir. 1994).
Footnote: 224
See Valmonte v. Bane, 18 F.3d 992, 1003 (2d Cir. 1994) in which the Court
found that New York State procedures for
removing names from the SCR violated due process.
Footnote: 225
See Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) in which it was determined
that a therapist's investigation of child
abuse allegations did not infringe upon the constitutional rights
of the child's mother and grandparent.
Footnote: 226
See e.g., Stanley v. Illinois, supra.
Footnote: 227
See Valmonte, supra, at 1003.
Footnote: 228
31 F.3d 157, 166 (4th Cir. 1994).
Footnote: 229
Under Maryland law, a ruled out report is one in which there is a finding
that abuse did not occur. An unsubstantiated
report is one in which there is insufficient evidence to support
a finding of indicated or ruled out. Hodge v. Jones, at 161, fn. 1, citing Md. Fam. Law
Code Ann. §5-701(s)(u) (1993 Cum. Supp.).
Footnote: 230
Hodge at 168.
Footnote: 231
Hodge at 166-167.
Footnote: 232
429 U.S. 589, 599-600, 97 S.Ct. 869, 876 (1977).
Footnote: 233
Although Valmonte does not address the constitutional issues regarding retaining
unfounded reports of abuse, it may
have a bearing on this issue given the Court's strong criticism
of how DSS runs the SCR. It is likely that opponents of any
change in the expungement laws will cite Valmonte for the proposition that the number
of individuals falsely accused is high, and that retention of these reports unfairly prejudices them.
Footnote: 234 Id at 1001.
Footnote: 235
See Hodge at 165.
Footnote: 236
Hodge at 166.
Footnote: 237
Central Registries for Child Abuse and Neglect: A National Review of Records Management,
Due Process Safeguards, and Data Utilization, National Center for State Courts, at 31
(July 29, 1988).
Footnote: 238
ILL. ANN. STAT., ch. 325, para. 5/3 (Smith-Hurd supp. 1995).
Footnote: 239 Id.
Footnote: 240
ILL. ANN. STAT., ch. 325, para. 5/7.7 (Smith-Hurd supp. 1995).
Footnote: 241
ILL. ANN. STAT., ch. 325, para. 5/3 (e) (Smith-Hurd supp. 1995).
Footnote: 242
ILL. ANN. STAT., ch. 325, para. 5/7.4 (e) (Smith-Hurd supp. 1995).
Footnote: 243
MD. CODE. ANN. § 5-701 (k)(t)(v) (supp. 1994).
Footnote: 244
Id at 5-707 (b). These retention periods are extended if any additional reports of abuse or neglect
are received during the retention period.
Footnote: 245
An "unsupported" report is equivalent to an unfounded report under New York State
law.
Footnote: 246
MASS. GEN. LAWS ANN., ch. 119, §§ 51B (6) (West 1994).
Footnote: 247
MASS. GEN. LAWS ANN., ch. 119, §§ 51E and 51F (West 1994).
Footnote: 248
Massachusetts DSS specifically requires that caseworkers check DSS files and the Central
Registry as part of their investigation of a child abuse report. See Massachusetts DSS
Reference Guide for Child Abuse and Neglect Investigations, at 3 (1988).
Footnote: 249
This information was provided by an official with the Texas Department of Protective Services
for Family and Children.
Footnote: 250
ALA. CODE § 26-14-8 (E) (Michie supp. 1994).
Footnote: 251
ARIZ. REV. STAT. ANN. § 8-546 (West 1994).
Footnote: 252
CAL. WELF. & INST. CODE § 10851(e) (West 1991).
Footnote: 253
IOWA CODE ANN. § 235A.18 (2) (West 1995).
Footnote: 254
MO. ANN. STAT. § 210.152 (West supp. 1995).
Footnote: 255
N.H. REV. STAT. ANN. §§ 169-C:3 and C:35 (Butterworth 1994).
Footnote: 256
See 2 Say County Warned About Missy's Neglect, The Times Union (Albany),
Apr. 24,
1992, at B-1 and B-4.
Footnote: 257
See Missy's Return To A Life Of Squalor, The Times Union (Albany), Apr. 22,
1992, at A-1 and A-6.
Footnote: 258
See Commission testimony of Marilyn Douglas at 14.
Footnote: 259
See Missy's Return to a Life of Squalor, supra, at A-1.
Footnote: 260
See Missy's Death Raises Questions, The Record, (Troy), Apr. 22, 1992, at A-1
and A-8.
Footnote: 261
See I Knew She Would Never Lead a Full Life, The Times Union (Albany),
Apr. 21, 1992, at A1 and A7.
Footnote: 262 Id.
Footnote: 263
Missy's Death Raises Questions, The Record (Troy), Apr. 22, 1992 at A1 and A8.
Footnote: 264
See Commission testimony of Marilyn Douglas at 23-24.
Footnote: 265
See I Knew She Would Never Lead a Full Life, supra, at
A-1 and A-7.
Footnote: 266
See Commission testimony of Marilyn Douglas at 30.
Footnote: 267
County Legislature To Hold Hearing On Missy's Death Next Week, The Times Union
(Albany) at 6 (May 21, 1992).
Footnote: 268
Order and Decision of Justice Edward O. Spain, RJI No. 41-606-92 (Sup. Ct., Rensselaer Co.)
Footnote: 269
See Commission testimony of Marilyn Douglas at 36. See also N.Y. Soc. Serv.
Law §20 (5) (McKinney 1992).
Footnote: 270
See Commission testimony of Marilyn Douglas at 35.
Footnote: 271
See Commission testimony of Marilyn Douglas at 36.
Footnote: 272
See Commission testimony of Marilyn Douglas at 32-34.
Footnote: 273
See N.Y. Soc. Serv. Law § 412(4) (McKinney 1992).
Footnote: 274
N.Y. Soc. Serv. Law §413 (1) (McKinney 1992).
Footnote: 275
See The Conduct & Practices of Child Protective Services & Related
Agencies
- An Investigation, Suffolk Co, Grand Jury 1C,
September/October 1994, Term X, Grand Jury Report, at 36-37 (June 1995).
Footnote: 276
N.Y. Soc. Serv. Law § 422 (4)(A)(g) (McKinney supp. 1995).
Footnote: 277
See Commission testimony of Barbara Comithier at 57. A grand jury can review CPS
records "... upon a finding that the
information in the record is necessary for the determination of
charges before the grand jury." N.Y. Soc. Serv. Law § 422
(4)(A)(f) (McKinney 1992).
Footnote: 278
See Commission testimony of Barbara Comithier at 43-44.
Footnote: 279
See Commission testimony of Charles Hollander at 70 and 75.
Footnote: 280
N.Y. Soc. Serv. Law § 422 (4)(A)(m) (McKinney 1995).
Footnote: 281
District Attorneys can only obtain CPS records needed to conduct a criminal investigation or
prosecution. Grand juries can obtain CPS records needed for the determination of charges
before the grand jury. Id at §422 (4)(A)(f) and (l).
Footnote: 282
See Commission testimony of Paul DerOhannesian at 81.
Footnote: 283
N.Y. Soc. Serv. Law § 424 (7) (McKinney 1992).
Footnote: 284
Child Protective Services: Program Manual, Ch. X, sec. C, at 1 (Aug. 1989).
Footnote: 285
See Commission testimony of Barbara Comithier at 45.
Footnote: 286
See Commission testimony of Maureen McLoughlin at 75.
Footnote: 287
See Monroe v. Blum, 90 A.D.2d 572, 456 N.Y.S.2d 1472 (3d Dept. 1982).
Footnote: 288
See Commission testimony of Barbara Comithier at 56.
Footnote: 289
See Commission testimony of Maureen McLoughlin at 76.
Footnote: 290
Child Fatality Review Panel: Annual Report for 1993, supra.
Footnote: 291 Id at 1.
Footnote: 292
See Senate Bill 1622-B, Cal. No. 304 (Feb. 4, 1993).
Footnote: 293
See Confidentiality in Child Abuse Cases: A Blessing or a Curse?, Senate Committee
on Investigations, Taxation and Government Operations, at 39-40 (Jul. 17, 1991).
Footnote: 294
See Disclosure Laws At Issue After Girl's Death, N.Y. Times, Nov. 29, 1992, at
B-8.
Footnote: 295
N.Y. Soc. Serv. Law §422(4)(A), (McKinney, 1992).
Footnote: 296
1992 U.S. Code Cong. and Admin. News, vol. 6, at 4229.
Footnote: 297
H.R. Rep. No. 756, 102d Cong., 2d Sess. (1992) as reprinted in 1992 U.S.
Code Cong. and Admin. News, 102d Cong., 2d Sess., Vol. 6 at 4252.
Footnote: 298
H.R. Rep. No. 756, 102d Cong., 2d Sess. (1992) as reprinted in U.S. Code
Cong. and Admin. News, 102d Cong., 2d Sess., Vol. 6 at 4253 (1992).
Footnote: 299
138 Cong. Rec. H7250 (daily ed. Aug. 3, 1992) (statement of Rep.
Molinari).
Footnote: 300
42 U.S.C.A. § 5106a (b)(4)(A) (West 1995).
Footnote: 301
Federal Register, Vol. 59, No. 95, at 26046 (May 18, 1994).
Footnote: 302
Federal Register, Vol. 59, No. 95, at 26048 (May 18, 1994).
Footnote: 303
Federal Register, Vol. 59, No. 95, at 26048 (May 18, 1994).
Footnote: 304
Commission letter to Olivia A. Golden (July 14, 1994).
Footnote: 305
Federal officials advised the Commission that one reason the regulations have not been finalized
was to provide Congressional leaders a chance to review these and other proposed
regulations.
Footnote: 306
See Slaying of Connecticut Infant Shifts Policy on Child Abuse, N.Y. Times,
July 30,
1995, at 1 and 34.
Footnote: 307
See Public Report of the Independent Panel to Investigate the Death of Emily, at 2
(April 26,
1995).
Footnote: 308 Id at 2.
Footnote: 309 Id at 3-4.
Footnote: 310
See Slaying of Connecticut Infant Shifts Policy on Child Abuse, supra, at 34.
Footnote: 311
World News Tonight, ABC News transcript 4033, at 4 (Feb. 16, 1994).
Footnote: 312
GA. CODE. ANN. § 49-5-41 (9) (Michie 1994).
Footnote: 313
Acts of Assembly, ch. 643(1) (VA. 1994).
Footnote: 314
The Investigation and Prosecution of Crimes Against Children in New York State, Executive
Summary, N.Y.S. Division of
Criminal Justice Services, Office of Justice Systems Analysis, at
4. (Apr. 1988).
Footnote: 315 Id at 8.
Footnote: 316
The need for more comprehensive data concerning child abuse reports received by police
agencies in New York State is clear. For example, DCJS's 1992 Annual Report indicates how
many trucks and buses were reported stolen from parking lots in New York State, but does not
include the number of reports of children who were physically assaulted in their homes.
Footnote: 317
42 U.S.C.A. §5119 (West 1995).
Footnote: 318
Letter from Comptroller Alan G. Hevesi to Marva L. Hammons, Commissioner, Human
Resources Administration, at 1 (Mar. 13, 1995).
Footnote: 319 K. McLarin,
Competency In Child Cases Is Questioned, N.Y. Times, May 27, 1995, at 23.
Footnote: 320
Letter from Comptroller Alan G. Hevesi to Marva L. Hammons, Commissioner, Human
Resources Administration, at 1 (Mar. 13, 1995).
Footnote: 321 E. Trotter and D.
Janison, Probe Ripped Incompetent Officials, N.Y. Post, Nov. 29, 1995, at 21.
Footnote: 322 Id.
Jefferson County
Jefferson County, which borders on Canada, has a population of
approximately 120,000. In 1994, the SCR registered 1,128 abuse and
neglect reports for Jefferson County. Jefferson County established
a multi-disciplinary team in 1991 which investigates sexual abuse
cases, and some physical abuse and neglect cases. Several team
members told the Commission that the team was established in the
wake of a dispute between local police and CPS officials concerning
a child who was beaten to death. CPS and police officials accused
each other of mishandling various aspects of the investigation into
this homicide. County officials concluded that having the police
and CPS work together, instead of pointing fingers at each other,
would provide a more effective response to child abuse cases.
Nassau County
Nassau County has a population of over 1.2 million. In 1994, the
SCR registered 4,447 reports of child abuse and neglect in the
County. Since 1985, Nassau has used a multi-disciplinary approach
for the investigation and review of child abuse cases. See footnote 87 As a result, when Nassau County CPS receives an
allegation that a child
was sexually abused or seriously physically abused, a copy of that
report will be forwarded to the Nassau County District Attorney and
the Nassau County Police. The reports for the police are sent to
Nassau County Police Headquarters every two weeks. The police are
also telephoned, sometimes within an hour after the report is
received, to request that they join with CPS in a joint
investigation. See footnote 88 The more serious
the allegation, the more likely that a joint investigation will be
conducted. See footnote 89
...when you work closely with the police, you start to
learn about other disciplines and you start to learn
about what they are looking for in terms of the [penal]
system and the crime and they start to learn from us that
sometimes you have to take some things into
consideration. ...We have been helping them on how to
interview children and they have been very helpful with
us learning how to interview perpetrators. See
footnote 95
New York City
There are over seven million people in the five counties of New
York City. In 1994, 76 of the 131 child fatalities and 48,358 of
the 128,111 abuse and neglect cases registered with the SCR
concerned New York City children. Despite this concentration of
cases in a city with one police department and one child welfare
agency, among the New York State counties about which the
Commission obtained detailed information, the level of cooperation
between police and child welfare officials in the five counties of
New York City was clearly the lowest in the State.
Based on our experience and training, we might have been
able to look at the first set of bruises in a different
light due to the fact that we're involved in investigations of this type...
Niagara County
Niagara County has a population of over 220,000. The SCR
registered 2,002 reports of child abuse and neglect in the County
in 1994. Niagara County established a multi-disciplinary team in
1990 to investigate and review child sexual abuse cases. In July
1995, the County also established a Child Advocacy Center. The
Commission met with several members of the multi-disciplinary team
and with the Director of the Child Advocacy Center.
Orange County
Orange County has a population in excess of 300,000. In 1994, the
SCR registered 2,228 reports of child abuse and neglect for Orange
County. In 1993, Orange County established a multi-disciplinary
team which investigates child sexual abuse cases. As part of that
team, the County established a police unit which shares office
space with Orange County CPS. William Sprague, a Senior
Investigator with the New York State Police who has been assigned
to Orange County and its environs for over twenty years, was
interviewed by the Commission. The Commission also interviewed
Kate Labuda, an Orange County CPS supervisor, and Maryellen
Albanese, an Orange County prosecutor.
In a typical Unit investigation, a police officer and an Orange
County CPS caseworker will jointly interview the victimized child
at either the child's school or the CPS office. Depending on
personnel constraints, some interviews, such as those with the
victim's siblings, may be conducted by the Orange County CPS
caseworker alone. The interview with the suspect is usually done
exclusively by the police, as is any gathering of physical
evidence. There have been instances, however, in which CPS
caseworkers have participated in interviews with suspects.
Oswego County
Oswego County borders on Lake Ontario and has a population of
approximately 122,000. In 1994, there were 1,437 child abuse and
neglect cases registered by the SCR for Oswego County. The Oswego
County multi-disciplinary team, formally known as the Oswego County
Children's Sexual Abuse Task Force Multi-Disciplinary Team, was
established in 1993.
Rensselaer County
Rensselaer County has a population of approximately 154,000. In
1994, the SCR registered 1,484 child abuse and neglect cases in the
County. Rensselaer County established a Sexual Trauma and Recovery
Team in 1992 to investigate child sexual abuse cases. This multi-
disciplinary team includes representatives from CPS, the District
Attorney's Office, police departments and the Probation Department.
CONCLUSIONS
In addition to conducting detailed interviews with members of
multi-disciplinary teams investigating child abuse in eleven New
York State counties, the Commission also conducted a survey of all
other counties in the State. This survey measured the number of
multi-disciplinary teams operating across the State, and sought
information concerning impediments to effective child abuse and
neglect investigations. The Commission found that various types of
multi-disciplinary teams are now in existence in forty-one
counties. In six other counties, multi-disciplinary teams are
being developed. In thirteen of the remaining fifteeen counties
some multi-disciplinary practices, such as joint interviews, are
occasionally utilized.
CHAPTER THREE: CONFIDENTIALITY
Multi-disciplinary team members from different professions and
parts of the State told the Commission of common obstacles to the
effective operation of their teams. These include obstacles
arising from confidentiality laws and practices which make team
members uncertain as to what information they can share with each
other. Particularly with respect to CPS caseworkers and police
officers, current confidentiality laws do not reflect the reality
of multi-disciplinary teams. The confidentiality issues which
confront individual team members are discussed below.
CPS Caseworkers
New York State confidentiality laws prohibit public disclosure of
CPS and SCR case records in all instances, and only permit
disclosure of these records in certain instances to specifically
enumerated agencies and individuals. See footnote
136 New York State law does not specifically provide for CPS records to be shared with
members of
a multi-disciplinary team or representatives of child advocacy
centers. See footnote 137 As a result, CPS
officials and caseworkers throughout New York State told the
Commission that they were uncertain as to
how much information they can legally disclose to fellow members of
a multi-disciplinary team. Reflecting this concern, several teams
resolve this and other confidentiality concerns by discussing cases
without mentioning names. It is apparent to the Commission,
however, that even where this stratagem is employed, other team
members are well aware of the identity of the individuals involved
in the cases discussed.
...such official requests such information stating that
such information is necessary to conduct a criminal
investigation or criminal prosecution of a person, that
there is reasonable cause to believe that such person is
the subject of the report, and that it is reasonable to
believe that due to the nature of the crime under
investigation or prosecution, such records may be related
to the criminal investigation or prosecution... . See
footnote 138
...telephone notice shall be given and a copy of any and
all reports made pursuant to this title shall be
forwarded immediately by the child protective service to
the appropriate district attorney if a prior request in
writing for such notice and copies has been made to the
service by the district attorney. Such request shall
specify the kinds of allegations concerning which the
district attorney requires such notice and shall provide
a copy of the relevant provisions of law... . See
footnote 139
Physicians
The confidentiality issues confronted by physicians arise from the
privileged nature of doctor-patient communications. See footnote 142 The privilege does not, however, prevent doctors,
who are mandated
reporters, from reporting cases of suspected abuse when doctors
"...have reasonable cause to suspect that a child coming before
them in their professional or official capacity is an abused or
maltreated child... ."See footnote 143
As with any mandated reporter, when a physician suspects a child has been abused, the
doctor may arrange
for the child's injuries to be photographed and x-rayed at public
expense. These records must then be made available to CPS. See footnote 144 One doctor told the Commission that once a case has
been reported to
the SCR, she regards the privilege issue as non-existent. Another
physician told the Commission that to resolve any potential
privilege issues, he routinely obtains the consent of the patient
or the patient's guardian before disclosing medical information to
his fellow multi-disciplinary team members. Although none of the
physicians interviewed by the Commission expressed any substantive
concern over a potential conflict between their roles as mandated
reporters and their responsibilities to protect the privileged
information of their patients, that issue did arise in interviews
with social workers.
Social Workers
Certified social workers face essentially the same statutory
privilege issues as those confronted by physicians. See footnote 145 The Commission spoke to social workers who had
both the abused and the
abuser among their clients. When the client is a child under the
age of sixteen, and the social worker acquires information that the
child has been the victim of a crime, the social worker may be
required to testify concerning that information. See
footnote 146 Additionally, whenever a child or anyone legally responsible for a child comes
before the social worker in his professional or official capacity
and gives the social worker reasonable cause to suspect that the
child has been the victim of abuse or neglect, a report to the SCR
may be required. See footnote 147
Police Officers
Police officers interviewed by the Commission expressed concern
about sharing arrest records received from the Division of Criminal
Justice Services ("DCJS") with other team members. Despite their
concern, several officers told the Commission that they were aware
of instances in which CPS caseworkers were provided with arrest
records during child abuse investigations. As a matter of law,
however, arrest records provided by DCJS are available only to
"qualified agencies" including police departments, but not
including CPS offices. See footnote 156 The
Commission was advised that several unsuccessful attempts have been made to amend
the law to permit CPS
officials access to arrest records when conducting child abuse
investigations. Under current law, the only criminal records
social services officials are entitled to receive from DCJS are
conviction records. Even then, such records can only be requested
concerning individuals seeking employment with adoption and child
placement agencies. Conviction records are not available to CPS
caseworkers conducting child abuse investigations. See footnote 157 Although arrest records are not publicly available,
conviction records are
a matter of public record. Therefore, the logic behind DCJS not
being permitted to provide conviction information to CPS
caseworkers conducting child abuse investigations is difficult to
discern.
Probation Officers
Probation officers are entitled to receive information from CPS in
specified instances. While conducting an investigation under the
Family Court Act, probation officers are entitled to obtain all
relevant indicated reports. See footnote 159
In a criminal context, probation officers, preparing pre-sentencing reports or conducting
post-conviction supervision are entitled to receive CPS indicated
reports concerning defendants convicted of or indicted for certain
felonies, including assaults, homicides and kidnapping offenses.
Probation officers are also entitled to receive CPS indicated
reports while supervising defendants convicted of certain other
felony and misdemeanor offenses, including sex crimes, obscenity,
public lewdness, child endangerment, child pornography, and
promoting the sexual performance of a child. The Commission was
advised by a State Assembly staff member that the original bill
permitting probation officers access to the CPS records of criminal
defendants would have permitted access to all CPS indicated
reports. The current restrictions are the result of legislative
compromise.
Reports prepared by the probation service...for use by
the court at any time for the making of an order of
disposition ...shall be deemed confidential information
furnished to the court... . The court may in its
discretion, withhold from disclosure, a part or parts of
the reports... . See footnote 160
STATE PROPOSALS FOR CHANGE
There have been a number of State legislative proposals to resolve
some of the confidentiality issues confronting members of multi-
disciplinary teams. Senator Roy M. Goodman, for example, has
sponsored several bills in recent years aimed at amending New York
State confidentiality laws with respect to child abuse and neglect
cases. See footnote 163 In 1991, the Senate
Committee on Investigations, Taxation, and Government Operations,
chaired by Senator Goodman,
issued a report entitled: Confidentiality in Child Abuse Cases: A Blessing or a
Curse?. The report recommended several amendments to the Social Services Law to
permit probation departments and child
welfare agencies to share information, to authorize the state
comptroller and local government fiscal officers to audit
confidential records to ensure efficiency in child protective
services, and to enable government agencies to issue public reports
on fatalities of children known to social service agencies.
As early as 1982, the Mayor's Task Force on Child Abuse
and Neglect made it perfectly clear that poor or no
cooperation, communication and coordination among human
service agencies was a constant factor in the child abuse
fatality cases that were known to the child protective
agency. In one of those cases of children that died,
there was absolutely no coordination, cooperation or
communication between various agencies and units of
support services that saw the child or the family or
siblings. They weren't speaking to each other. They
weren't sharing information and, as a result, there were
deaths of children. See footnote 165
FEDERAL PROPOSALS FOR CHANGE
New York State law regarding the confidentiality of child abuse and
neglect records is similar to that of other states because these
laws are, in effect, dictated by the federal government. To
receive funding through the federal Child Abuse and Neglect State
Grant Program, states must comply with federal laws and regulations
governing the confidentiality of child abuse and neglect case
records. See footnote 166 As a result, New
York State's confidentiality laws closely follow federal regulations.See footnote 167 The federal regulations have
not kept pace, however, with changes in federal law.See footnote 168
...for the prompt disclosure of all relevant information
to any Federal, State or local government entity, or any
agent of such entity, with a need for such information in
order to carry out its responsibilities under law to
protect children from abuse and neglect... . See
footnote 175
CHAPTER FOUR: EXPUNGEMENT
The destructive impact of expungement laws on efforts to protect
children was attested to by virtually every CPS official, CPS
caseworker, police officer and prosecutor contacted by the
Commission. To develop an understanding of the origin and
evolution of this practice, and to explore alternatives, the
Commission conducted an intensive examination of the expungement
provisions in the Social Services Law, their history and efforts to
change them, as well as a review of the laws and practices of
states which retain some or all of the types of reports destroyed
by New York.
Current Law
Upon completion of a CPS investigation, reports of abuse or neglect
in New York State are classified as either unfounded or indicated.
A report must be unfounded unless there is some credible evidence
of abuse or neglect by an individual who is legally responsible for
a child. See footnote 178 Pursuant to the
Social Services Law and State DSS regulations, unfounded reports must be
expunged, a requirement
which State DSS interprets as mandating the obliteration of all
information concerning that report from CPS and SCR records. See footnote 179
History of the Child Protective Services Act
The original bill which evolved into the 1973 Child Protective
Services Act differed significantly from its final form regarding
both the classification of reports and their expungement. The
original bill provided four categories of case determinations:
unfounded, uncertain, substantiated and under investigation. The
bill only required that identifying information concerning an
unfounded report be expunged from the SCR. If a report was
categorized as uncertain, the original bill required that it "...be
sealed no later than five years after the initial report." See footnote 180 The original bill also provided that in all other cases
"...the record
of the report to the central register shall be sealed no later than
ten years after the subject child's eighteenth birthday."See footnote 181
With respect to the provisions governing the central
register we believe that the description of the reports
resulting from an investigation of a reported child abuse
situation are unsatisfactory. We question under what
circumstances a report would be called "unfounded,"
"uncertain" or "under investigation." We see no need for
the term "uncertain" and request its deletion as we
believe an investigation of a complaint must result only
in an "unfounded" or "substantiated" report. However,
the definition given of "unfounded" is vague, and we
suggest it be changed so that this term will be used when
there is not substantial credible evidence of abuse. See footnote 182
Revisions of the Expungement Laws
The expungement provisions of the Social Services Law have been
broadened several times since 1973. In 1981, the Legislature added
the requirement that all identifying information concerning
subjects of unfounded reports be expunged not only from the SCR,
but also "...from the records of all local child protective
services."See footnote 185 The purpose
of the bill, as stated in the Assembly Committee Bill Memorandum, was
"...to protect the rights of
individuals who have been investigated and found to be innocent of
charges of child abuse and maltreatment."See footnote 186 This Memorandum included the following argument
in support of the bill:
It is clearly the intent of the original legislation, and
it is incorporated into the Rules and Regulations of
[State DSS], that when there is no credible evidence
supporting an accusation of child abuse or maltreatment,
all information regarding the matter should be expunged
from both the State central register and local
departmental records. However, a sizeable minority of
the local districts do not expunge the information from
their local records. This current procedure clearly
violates the rights of individuals who have been found to
have done nothing wrong. See
footnote 187
Accusations of child abuse are...very serious matters,
but they are only accusations. They may be utterly
groundless. Unless they are shown...to be supported by
meaningful evidence, all records of them should be
destroyed. Otherwise, the accused may encounter severe
and undeserved discrimination or humiliation at the hands
of others with access to the records. See footnote
188
I submit that it is important to retain such information
in the county records because we know from experience
that patterns of suspected abuse and neglect are
persistent as serious reports do come in even though
credible evidence is not found sufficient to indicate the
case. These reports may reveal a pattern which taken in
whole may be needed to protect a child suffering from
chronic abuse or neglect. See footnote
189
Proposals for Reform
In the Commission's Statewide survey, virtually every CPS official
and caseworker contacted favored retention of some or all unfounded
child abuse and neglect reports. These professionals complained
that current law requires that they destroy records even when there
is a reasonable basis to suspect abuse or neglect. Among the cases
recommended for retention were those in which there were objective
indications that a child either had been or would be abused or
neglected. Babies born with cocaine in their blood and pre-verbal
children who act out sexually were frequently cited as the types of
cases which should be retained even when there was insufficient
evidence to indicate a report. Several CPS officials described
these as cases in which abuse or neglect had not been ruled out.
Many also recommended that records of intentionally false reports
be retained to protect the falsely accused. Several proponents of
retaining unfounded reports told the Commission that keeping these
reports would also help keep CPS caseworkers and supervisors
accountable for their decisions.
Unfounded" complaints should not be expunged. More
often than not, they can be seen in hindsight as
signposts to future abuse. This is not to say that they
should be accessible to the general public; on the
contrary, they should be jealously guarded as
confidential documents and made available to the child
protective services to be used in the event of new
complaints that might otherwise be dismissed as
"unfounded." See footnote 199
The Panel suspected that in many cases of serious abuse
or child fatality, the family may have had prior
allegations that were unfounded... In some cases abuse is
suspected but could not be proven, so CWA has no
alternative but to unfound the allegation, which results
in the loss of case record information that may establish
a history of child maltreatment. Such information would
alert CPS staff...to an ongoing pattern of family
malfunction that creates a serious risk for children.
For this reason, the Panel strongly recommends that all case record material be retained
for the use of child protective caseworkers. See
footnote 200
...[r]etention of records of prior child abuse
investigations is an important tool in assisting
investigative bodies in preventing child abuse and saving
the lives of threatened children. Information regarding
investigations of prior allegations of abuse...within a
family focuses and prioritizes investigations of current
reports involving the same child or alleged perpetrators.
Experts in child welfare in New York State, have argued
that access to such data could have helped prevent recent
deaths of children from acts of abuse. See footnote
210
A balance between the rights of children and those who
may be wrongly accused of child abuse has been struck in
existing Social Services Law by requiring that records of
unfounded child abuse reports must be expunged... . This
bill would upset this careful balance by requiring the
State to retain...reports that have no credible evidence
to support them -- on the off-chance that the accused may
subsequently be subject to a founded report. See
footnote 211
Every day that unfounded personal information is
maintained in an official record -- particularly
information as damaging as an allegation of child abuse--
the risk is run that this information will be
inappropriately disclosed. This risk should be assessed
against the hypothetical possibility that the
accumulation of this information might actually provide
some benefit in the course of a future...investigation...
. [T]he risk that enormously damaging and unsupportable
information may be disclosed clearly outweighs the
unlikely benefit that the retention of the information
might theoretically offer. See footnote 212
The allegation...that the retention of this information
`could have helped prevent recent deaths of children from
acts of abuse' is made without any support or
documentation and is an outrageous overstatement of the
potential impact of this bill. Child abuse is a complex
phenomenon and the suggestion that the retention of
inaccurate information about potential child abusers will
save children's lives is not worthy of serious
consideration. See footnote 213
[K]nowledge of a pattern established over time resulting
from the investigator's access to prior ... See
footnote 215 reports can be a life-saving tool. If such access is strictly
limited to the purpose described...the lives, health and
safety of children will be better protected without
unduly impinging on the rights of parents to raise their
children free of state intervention. See footnote
216
Current practice requires the destruction of records
pertaining to 'unsubstantiated' allegations of child
abuse and neglect. That a case is unsubstantiated may
have nothing to do with the level of danger the child
experiences. Rather, it often indicates only that the
harm the child is experiencing has not yet reached the
agency's current standard for initiating intervention...
. See footnote 217
Constitutional Implications of Record Retention
Those who oppose reform of the expungement laws have argued that
retaining unfounded reports raises serious constitutional issues.
Several New York State Senate staff members told the Commission
that proposals to revise the expungement requirements have met
strong opposition from those who argue that such legislation
interferes with parents' constitutional rights to family privacy.
Legal Analysis
The Court's reasoning in Whalen demonstrates that the retention of unfounded reports of
child abuse would not violate the privacy
interests of individuals named in those reports. It would be an
appropriate exercise of New York State's police powers to more
effectively combat child abuse by retaining unfounded reports to
assist CPS caseworkers to discern patterns of abuse which, under
current practices, might remain undetected.
Expungement in Other States
The Commission, in addition to examining the expungement provisions
in New York State, also reviewed the record retention practices of
other states. In approximately thirty states, records of unfounded
cases are maintained for at least one year after the case is
closed. See footnote 237 The record retention
practices of four of these states are discussed in detail below.
CHAPTER FIVE: OVERSIGHT AND ACCOUNTABILITY
With unfortunate and recurring frequency, public attention is
captured for a time by the tragic death of a child. In recent
years, the deaths of Lisa Steinberg, Yaakov Riegler and Adam Mann
each caused a momentary focus on allegations that the child
protective system in this state could have saved these children,
but failed. More recently, the death of Elisa Izquierdo has seized
the spotlight. In case after case, however, when child welfare
officials are asked what steps they took to ensure the safety of
these children, their response is that confidentiality laws forbid
them from accounting for their actions. As a result, in many cases
no one outside the child protective system can ever know whether
the system failed, and no one inside the system will ever be held
publicly accountable for their inability to protect the most
vulnerable members of our society. One case in Rensselaer County
provides insight into this.
Case Study
The Death of Missy Williams
One child the system failed to protect was Melissa Sue Williams,
who was known as Missy. Missy, who lived in Rensselaer County,
suffered with cerebral palsy and had been seriously injured in a
1984 fire at her home. See footnote 256 Her
medical condition confined her to a wheelchair, unable to speak or control her arms
and legs. See footnote 257 She had to be fed
through a tube and wore diapers. See footnote 258 In December 1991, Missy starved to death. She was
eight years old and weighed just
twenty-five pounds. Following Missy's death, a Rensselaer County
Grand Jury indicted the child's mother for criminally negligent
homicide. The indictment was subsequently dismissed.
I doubt very much if they [State DSS] had any of the
reports of the teachers and what they said...you know,
this little girl died of malnutrition...if that report
had got out into the public, any of this information, I
think it would shatter people that this little girl...had
been abused and that no one, whether [its] due to the
failure of Social Services or the mother's neglect, has
been held accountable for it. See footnote 270
Ms. Douglas told the Commission that she was precluded from sharing
the contents of this report with anyone since doing so would
subject her to criminal prosecution. See footnote
271
Confidentiality Laws
As Ms. Douglas learned, New York State's confidentiality laws, in
large measure, prohibit public accountability by those inside the
child protective system and sharply limit the ability of any agency
outside that system to monitor the effectiveness of child abuse
investigations. This insular oversight system is exemplified by
the fact that the only state agency with authority to oversee local
CPS agencies is State DSS.
Expungement
Even if confidentiality did not preclude disseminating information
about child abuse investigations, the expungement of unfounded
cases often makes any subsequent review of those cases an exercise
in futility. One child welfare official told the Commission that
expungement creates institutional amnesia. Expungement also
provides caseworkers an opportunity to shred their mistakes,
shielding any acts of corruption or incompetence from subsequent
discovery. It should be emphasized that the overwhelming majority
of CPS cases are unfounded, and, therefore, expunged. In 1994, for
example, only 27.2% of cases on which determinations were made
resulted in indicated reports. Thus, 72.8% of all CPS records on
which determinations were made were destroyed. Albany County
A.D.A. Paul DerOhannesian, in his testimony before the Commission,
underscored the impact expungement has on oversight of CPS
caseworkers when he noted that if a caseworker were bribed to
unfound a case, a criminal investigation would be virtually
impossible because "...everything is destroyed."See footnote 282
Proposals for Reform
There have been several unsuccessful attempts in recent years to
provide increased oversight for child protective investigations.
For example, in 1993, a bill was introduced in the State Senate by
Senator Goodman to authorize the State Comptroller, the New York
City Comptroller and chief fiscal officers of counties outside New
York City to obtain access to child abuse records for the limited
purpose of conducting performance audits. See
footnote 292 Senator Goodman proposed this legislation after learning that under the
existing oversight system, the State Comptroller's staff could not identify
and interview individuals who received assistance through the
preventive services program, and, therefore, could not determine
whether or not services were actually provided. Similarly, under
the existing oversight system, an effort by then City Comptroller
Elizabeth Holtzman to determine whether employees of day care
centers had been properly screened through the SCR was doomed to
failure. See footnote 293
The bill was never enacted.
Federal Law
In the current controversy over the death of Elisa Izquierdo,
officials have again asserted that they are precluded by federal
law from providing any details concerning CWA's handling of their
responsibilities regarding this child. See footnote
294 Federal law, however, was changed years ago to permit states greater latitude in
providing information to oversight agencies and to the public. It is New York
State law, not federal law, which prohibits public disclosure of
any information from child abuse and neglect reports, and shields
the child protective system from outside oversight. See footnote 295
...emphasize that the confidentiality right in child
abuse records belongs to the child. This is important
because there have been several instances where a child
died possibly as a result of the negligence of child
welfare workers, yet the child protective services will
hide behind the cloak of confidentiality laws, even
though after the child dies there is no need to protect
the privacy of the child.
...designed to loosen the rigidity of the confidentiality
laws, while at the same time insur[ing] that harmful,
unsubstantiated family information is not released to the
public. My amendment establishes the premise that,
unless otherwise provided for, all records are to be kept
confidential... .
The Adam Mann Act, as codified, allows states to improve the
oversight of and accountability by CPS offices by permitting states
to authorize disclosure of CPS case records "...to persons and
entities the State determines have a need for such information
directly related to the purposes of this [Act]."See footnote 300
With respect to the news media, disclosure must be
limited to the confirmation of factual information
regarding how the case was handled that does not violate
the privacy rights of the child's parent or guardian.
Examples of disclosable information include: confirmation
that a report was made; confirmation that an
investigation had begun; information with respect to the
amount of time between the report and the investigation;
confirmation as to whether previous reports had been
made; and information on the outcome of the
investigation. See footnote 303
In view of the significance of these proposed regulations, the
Commission formally endorsed their approval. Commission Chairman
Donald O. Chesworth, on behalf of the Commission stated:
In the Commission's view, these proposals, if approved,
would improve the effectiveness of child protective
services by increasing their accountability to oversight
agencies, the press and the public. The proposals, if
approved, would also improve the quality of child abuse
and neglect investigations by sanctioning the full and
free exchange of information among members of multi-
disciplinary investigative teams. Although the privacy
rights of children and families must be protected, it is
imperative that confidentiality rules not be used to
insulate child protective services from accountability or
to hinder legitimate efforts to aid and protect
children. See footnote 304
As of December 31, 1995, these regulations have not yet been
finalized, but the law on which they are based was enacted over
three years ago. See footnote 305
During that time, New York has done nothing to
take advantage of the possibilities for increased oversight and
improved public accountability. Other states, including
Connecticut, Georgia and Virginia have been less timid.
Connecticut
During eight days in the spring of 1995, three children were
murdered in Connecticut by those responsible for their care. So
many deaths in so short a time shocked Connecticut officials into
reviewing their child protective system. One of the murdered
children was Emily Hernandez. She was just nine months old when she
was raped and murdered by her mother's boyfriend. See footnote 306 Following Emily's death, Connecticut Governor John
G. Rowland and Connecticut Department of Children and Families ("DCF")
Commissioner Linda D'Amario Rossi authorized an independent panel of experts,
including law enforcement officials, physicians and social workers,
to investigate Emily's death and report its findings to the public. See footnote 307 The panel was asked by Governor Rowland to
answer one simple question, "Why did Emily die?"See footnote 308 Within six weeks of the death of Emily Hernandez, a
public report was issued by the panel which highlighted blunders by law enforcement and child
welfare agencies, health care providers and others which contributed to the death of this little
girl. See footnote 309
Georgia
In October 1992, in Cobb County, Georgia, Craig Jackson punched his
live-in girlfriend's two-year old son, Dustin Shannon, so hard that
he ruptured the child's bowel and killed him. Craig Jackson was
later convicted of child cruelty. After the child's death, it was
revealed that Dustin Shannon had an active case with Georgia CPS.
In the months before his murder, the child's relatives and
neighbors made several reports that Dustin was being abused. When
Lieutenant Governor Pierre Howard of Georgia demanded to know why
the system failed this little boy, he was told, in essence, that
"it was none of [his] business." The Lt. Governor then began a
campaign to allow him and three other state officials to look
behind the veil of secrecy which shrouds CPS cases from review. See footnote 311 The legislation which was ultimately passed
authorizes the
"...Governor, the Attorney-General, the Lieutenant Governor, or the
Speaker of the House of Representatives..." to have access to CPS
records "...to determine whether the laws of this state are being
complied with to protect children from abuse and neglect... ."See footnote 312
Virginia
Virginia went further still in enacting legislation which
authorized local social services departments to "...disclose the
contents of records and reports and information learned during the
course of a child protective services investigation...without a
court order and without the consent of the family, to a person
having a legitimate interest when...such disclosure is in the best
interests of the child."See footnote 313
Rita Katzman, a CPS Manager at Virginia DSS, told the Commission that federal
authorities regard as over-broad the provision that anyone with a "legitimate interest"
can review CPS records.
Conclusion
The children of New York are not protected by a child protective
system insulated from oversight and immune to public
accountability. This veil of secrecy only perpetuates
ineffectiveness and undermines whatever confidence the public has
left in the system. The lives of the children of New York are put
at risk by laws which protect the incompetent and corrupt, which
preclude outside oversight agencies from examining the child
protective system, and which mandate destruction of almost 75% of
the records generated by the agency on a yearly basis.
Statistical Data
Oversight of the child protective system requires more than just
expanded access to individual case records, and public
accountability requires more than the right of the public to know
how an individual case was investigated. To provide a sound basis
for policy makers and citizens to evaluate the effectiveness of the
child protective system, it is also vitally important that the
scope of the problem be accurately defined. As with the laws which
govern the child protective system, the means by which we measure
the system's success or failure have not caught up with the
emergence of a multi-disciplinary approach to child abuse
investigations. As a result, although State DSS can provide
detailed statistics concerning the number and types of reports it
receives for every county in the State, the criminal justice system
can provide only the sketchiest details about criminal prosecutions
for child abuse. In addition, local counties often have little if
any statistical information available with which to measure the
success or failure of multi-disciplinary efforts.
Local Data
All law enforcement officials interviewed by the Commission were
asked to provide statistical data concerning the number of child
abuse and neglect cases which resulted in arrests and prosecutions.
In counties with multi-disciplinary teams, the Commission also
requested data concerning the number of cases the team handled
which led to arrests and prosecutions. In several counties, the
requested information was essentially impossible to obtain. Many
police departments and district attorney offices do not maintain
specific statistics related to children who have been sexually or
physically abused. Often, the available statistics fail to
distinguish between child and adult victims, or between children
victimized by strangers and those victimized by family members.
State Data
The issue of tracking the criminal justice system's response to
child abuse cases was raised in a 1988 Division of Criminal Justice
Services ("DCJS") report which noted that "...New York State child
victimization data are inadequate to provide a full description of
the nature and extent of crimes committed against children."See footnote 314 DCJS proposed the implementation of a crime
reporting system which would provide more definitive information on crime in New York State,
including crimes against children. The report promised that:
The lack of systematic victimization data in New York
State will be addressed through the implementation of the
redesigned incident-based Uniform Crime Reporting System.
With this system, incidents involving child victims will
be identified clearly and, as a result, more accurate
counts of these cases will be possible. In addition, the
redesigned system's ability to link incidents with case
outcomes presents the potential for future evaluation of
the effectiveness of law enforcement's response to crimes
committed against children. See footnote 315
The Commission interviewed Henry Brownstein, the Chief of the
Bureau of Statistical Services at DCJS, to determine what progress
had been made since this 1988 proposal. Mr. Brownstein told the
Commission about the New York State Incident-Based Uniform Crime
Reporting System ("NYSIBR"). NYSIBR had been devised as an
improved method for collecting and maintaining detailed information
concerning crime reports in the State. The system provides more
specific information concerning crimes of all kinds, including
child abuse. Mr. Brownstein explained that the NYSIBR was intended
to expand upon the current F.B.I. system for collecting crime
statistics, called the Uniform Crime Reporting System ("UCRS").
The UCRS, created over sixty years ago, reports on just seven
categories of offenses, called index offenses. These include the
violent crimes of murder, rape, robbery and aggravated assault, and
the property crimes of burglary, larceny and motor vehicle theft.
Under the UCRS, each police department in the State submits
information on these crimes to DCJS on a monthly basis. The UCRS,
although effective in gathering information on an aggregate basis,
provides very little incident-based information. For example, the
UCRS is unable to generate statistics concerning drug-related
violence. In response to this gap, the F.B.I. developed an
incident-based reporting system and has offered states, including
New York, funding to develop their own incident-based reporting
systems.
Conclusion
Every multi-disciplinary team in New York State is different. A
handful use Child Advocacy Centers which provide a central location
to conduct interviews and medical examinations; some rely on police
squads located in the same building as CPS caseworkers; others
operate in a more decentralized fashion. Clearly, some team
arrangements will prove more effective than others. At present,
however, because so little detailed statistical information is
available about individual teams, it is impossible to identify
which arrangements work best. As a result, local officials must
guess about the best means to protect the children of their
community. This is clearly not good enough. In the Commission's
view, State DSS and local CPS agencies should work together to
develop detailed statistics concerning multi-disciplinary teams.
These statistics should include information which track cases as
they move through the system. Information about arrest charges and
the results of criminal prosecutions should be included as well as
detailed information about the outcome of cases presented in Family
Court.
Training
A number of professionals interviewed by the Commission asserted
that inadequate training impedes the success of child protective
efforts. Deficiencies were said to be particularly acute in the
training of CPS caseworkers and physicians. Although the
Commission did not attempt to assess the content of the available
training for these professionals, the Commission was told by CPS
caseworkers, doctors, police officers, prosecutors and others that
current training is inadequate to prepare CPS caseworkers and
physicians to recognize that a child has been abused.
CPS Caseworkers
As described to the Commission by caseworkers throughout the State,
the training they receive has two components: initial training and
in-service training. With respect to their initial training, there
is no state requirement that caseworkers establish a minimal level
of proficiency before graduating from a training program.
According to New York City Comptroller Alan G. Hevesi, "[s]tate law
requires that child-abuse-investigator trainees receive
instruction, yet the law does not require that trainees prove they
have absorbed the training."See footnote 318
In New York City, where caseworkers receive their initial training during a twenty-day
program at the James Satterwhite Academy, there was, until recently, no
requirement that caseworkers pass the final examination
administered by the Academy. On one recent final examination, the
average score was 66%, an average achieved only after the removal
of several difficult questions. See footnote
319
One third of the class scored 60% or lower on the examination. See footnote 320 The entire class was hired by CWA.See footnote 321
For prospective caseworkers who took the final examination in October 1995, however,
CWA declined to hire anyone who scored
below 60% and made all those who scored between 60% and 70% retake
the examination. See footnote 322
Physicians
Physicians who specialize in child abuse cases told the Commission
that many doctors are ill-prepared to recognize child abuse. For
example, Dr. Jane Hylan, who is a member of the Jefferson County
multi-disciplinary team, told the Commission that pediatricians are
often ill-equipped to conduct the medical examinations necessary in
sexual and physical abuse cases. Dr. Rita Jaeger, who is a member
of the Dutchess County multi-disciplinary team, told the Commission
that members of the medical profession are often reluctant to
become involved in child sexual abuse cases. She said that there
are a number of reasons for this. First and foremost, doctors often
do not know what to look for or what they are looking at when they
examine a sexually abused child. Dr. Jaeger also said that most
doctors do not want to accept that some children are sexually
abused, and therefore do not question their patients appropriately.
Conclusion
Child abuse investigations are among the most difficult and
sensitive cases any investigator can confront. CPS caseworkers, in
particular, must often make life or death decisions on behalf of
the children they are duty bound to protect. Because there are no
standardized criteria to evaluate caseworkers' competency to assume
their duties, they make these decisions without any evidence that
they have the skills to do the job. Clearly, due to the enormous
responsibility of making child welfare decisions, caseworkers must
be required to demonstrate their skills before being sent out in
the field. New caseworkers must be provided with close supervision
to ensure that they have the ability to protect children and all
caseworkers must be provided with continual in-service training to
sharpen their skills and provide them with new information
concerning investigative techniques and procedures.
RECOMMENDATIONS
It is beyond the power of government to prevent this from being a
world in which children suffer and die, but it is the
responsibility of government to protect children and bring those
responsible for mistreating them to justice. The children of this
State are not protected, however, by laws which keep professionals
from working together for the benefit of abused children, which
destroy information which could be used to identify child abusers
and which hamper effective oversight of the child protective system
by shielding that system from public accountability. In the
Commission's view, the children of New York would be better served
by a more open and flexible child protective system. To achieve
that goal, a number of reforms are urgently needed.
Confidentiality
One critical area in which change is long overdue is in State
confidentiality laws, particularly those restricting access to SCR
and CPS records. Local officials throughout the State consistently
described these laws as a major impediment to effective child abuse
investigations. The Commission also observed that ambiguities in
the law lead to interpretations which vary from county to county.
In New York City, for example, the prevailing interpretation is
that CWA is forbidden from notifying the police upon receipt of a
complaint that a child may have been the victim of a crime. Across
the City line, in Nassau County, this same law is interpreted as
permitting the free flow of information from CPS to the police. To
clarify, amend and improve existing law:
Expungement
The Commission recommends that the expungement laws be changed.
Almost without exception, CPS caseworkers, police officers and
prosecutors contacted by the Commission believe that destruction of
all prior unfounded reports is not in the best interests of
children. Additionally, the destruction of close to 75% of the
work record of any agency cannot be an effective way to monitor its
efforts.
Oversight and Accountability
In the Commission's view, New York State must expand the oversight
to which child abuse investigations are subject, open up the child
protective system to public accountability, provide more
comprehensive statistical information about child abuse, and ensure
that caseworkers and physicians are trained to recognize and
respond to child abuse cases.