The responsibility of the Administration for Children’s Services (ACS) is to protect children in the state of New York from emotional or physical harm. This is the agency charged with stepping in to ensure that the home lives of children in the state of New York are safe. There are several laws that give authority to the ACS to conduct home examinations, require drug and alcohol testing, and even authorize the removal of children from their natural parents if it is necessary. However, because people are only human, the fact remains that sometimes mistakes happen. Unfortunately, when an employee of social services or children’s services makes a mistake, there are dire consequences. A New York Criminal Lawyer said in one case from August 2007, an infant girl child was killed at the hands of her mother’s companion. The case alleges that ACS employees were aware of the danger that the infant was in and did not take action to protect her.
The case states that because Brooklyn Family court had charged ACS with supervising the child’s home; and because ACS was familiar with many incidents of domestic violence in the home, the estate of the deceased child is due compensation for her death. The attorneys for ACS claim that since the child was killed by her mother’s companion, who is an outside party, that they are not responsible. The issue involved is whether the infant’s death was due to the gross negligence of ACS or was an unforeseeable event caused by an outsider.
In order to determine who is at fault for the infant’s murder, one must understand the laws that apply in this case. There are two arguments that affect the decision in this case. The first argument is that the representative for the little girl’s estate wants to serve interrogatories to determine who the estate will depose in this action. Under CPLR 3130, a party in a negligence action is not allowed to serve interrogatories and conduct depositions of the same party.
The estate for the little girl, claims that because his claim is based on a wrongful death action under 42 USC§ 1983, he should be permitted to conduct depositions. Interrogatories provide the identities of witnesses to be able to narrow down the list of people who need to be deposed. ACS claims that because the infant was murdered by someone who was not in the employ of ACS, and that she was not physically in ACS custody, that the claim based on a violation of her constitutional rights cannot be valid. ACS further claims the immunity that is promised to government agencies absent a special relationship that would constitute a predicate for liability.
A Brooklyn Criminal Lawyer representing the estate of the child maintains that a special relationship did exist because ACS voluntarily created an assumption of duty when they accepted the supervision order issued by the Family Court. Under these circumstances, the estate attorney says that a viable claim exists for negligent supervision and wrongful death. The estate attorney further contends that ACS is not entitled to the judicial immunity that they claim because the obligations involved were not an integral part of the judicial process. The estate recognizes that it is not reasonable to expect the Bronx court to recognize the federal rights violation of due process at that court level. Therefore, the third cause of action under 42 USC § 1983, the absence of due process rights under the 14th Amendment of the US, is dismissed.
Under the governmental immunity doctrine, a municipality and its agents cannot be held liable for any act of negligence that occurs in the exercise of a governmental function unless a special relationship exists or is established between the governmental agency and the person filing the complaint. Under this doctrine, there are three ways to establish a special relationship. A Nassau County Criminal Lawyer said the first is that the municipality violates a statutory duty enacted for the benefit of a particular class of persons. The second is when a municipality voluntarily assumes a duty that generates justifiable reliance by the person who would benefit from the duty. The third is when the municipality assumes positive direction and control in the face of a known, blatant, and dangerous safety violation.
In this case, the elements to create a special relationship existed because the Family Court’s supervision order triggered specific, mandatory duties on the part of ACS which the employees neglected to perform. It is alleged that the ACS employees were well aware of the dysfunctional and potentially dangerous environment of the home where the infant lived. The court ruled that because ACS had contact with the infant and the family situation in which the infant lived, it is reasonable to imply that a special relationship existed under the law.
The court also found that the doctrine of judicial immunity is not applicable in this case. The court cited Mosher-Simons v County of Allegany (99 NY2d 214, 2002) in which the social services employee was not given judicial immunity because of a lack of appropriate action taken. In this case, the supervision of the infant’s environment was not a judicial function. It was a prerogative of the Family Court Act that enabled it to direct ACS to protect the child from harm, ACS (not the Family Court) was bound by the obligations that were presented to supervise the home environment. In this case, there was no immunity affordable to ACS or it’s representatives because discretionary municipal acts are not a basis for tort liability, but ministerial acts are libelous when a special duty is found. ACS was required to perform very specific actions to make sure that the child would be safe. These actions were not discretionary by nature. That is why immunity does not attach to them.
As far as the CPLR 3130(1) which states the earlier mentioned requirements that a party is not permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of the court. In a personal injury or wrongful death action to recover damages, the court was concerned that wealthy litigants might use their greater resources to bury poorer adversaries in interrogatories and other paperwork in order to avoid responsibility for monetary damages. In this case, the court determined that there is no intent to misuse the court and leave given by the court to authorize this type of investigation under CPLR 3130 would be reasonable. Basically the court determined that although the estate has the right to conduct all of the interrogatories that it wants, the ACS management has the right to determine which of its representatives are the most knowledgeable about the incident. Those employees are the one who will appear in court, so they are the ones who need to be deposed.
Domestic violence can certainly affect everyone in the home. Many women, who think that they cannot escape, find the strength to get out when the fight is for the lives of their children. This mother let her child die rather than get away from her abuser. At Stephen Bilkis & Associates our Domestic Violence Lawyers, have convenient offices throughout New York and Metropolitan area. Do not risk the life of your child! Our Family lawyers will help you protect your family from domestic violence.