McGovern v Nassau County Dept. of Social Servs.

[*1] McGovern v Nassau County Dept. of Social Servs. 2007 NY Slip Op 51422(U) [16 Misc 3d 1114(A)] Decided on June 6, 2007 Supreme Court, Nassau County Murphy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 6, 2007
Supreme Court, Nassau County

Marguerite McGovern, Plaintiff,

against

Nassau County Department of Social Services and Board of Education of Long Beach School District, Defendants.



6959/06



MARGUERITE McGOVERN,

PLAINTIFF, PRO SE

68 Indiana Avenue

Long Beach, NY 11561

INGERMAN SMITH, LLP

150 Motor Parkway, Suite 400

Hauppauge, NY 11788

(631) 261 - 8834

LORNA GOODMAN, ESQ.

1 West Street

Mineola, NY 11501

(516) 571 - 3056

Karen Veronica Murphy, J.

Motion by defendant Board of Education of the Long Beach School District to dismiss the complaint for failure to state a cause of action is granted. Cross-motion by plaintiff for "leave to appeal" from an order of the Hon. Steven M. Jaeger denying leave to reargue is denied.

This is a pro se action for educational malpractice and the wrongful bringing of a neglect proceeding in the Family Court. Plaintiff Marguerite McGovern and her husband, Michael, have a 14 year old daughter, Maeghan, who attends public school in Long Beach. Defendants are the Board of Education of the Long Beach School District and the Nassau

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County Department of Social Services ("DSS") . By order dated September 22, 2006, Hon. Steven M. Jaeger granted DSS' motion to dismiss the complaint on the ground of qualified immunity. By order dated January 2, 2007, Judge Jaeger denied Plaintiff's motion for leave to reargue DSS' motion to dismiss the complaint. The following facts concerning the initial report by the School District, DSS' investigation, and the proceedings in Family Court, are taken from Judge Jaeger's decision.

In early 2003, the Long Beach School District submitted a report to DSS concerning chronic absenteeism by Maeghan. DSS investigated the report and on August 1, 2003 filed a neglect petition against Maeghan's parents with the Nassau County Family Court. The petition alleged that respondents had failed to supply their daughter with adequate education although they were financially able, or had been offered reasonable means, to do so. The petition further alleged that respondents had failed to provide their daughter with proper supervision or guardianship, and their failure to exercise a minimum degree of care impaired the child's physical, mental and emotional health.

Family Court Act § 1012(f)(i)(A) defines "neglected child" as a child less than 18 years of age whose physical, mental, or emotional condition has been impaired as a result of the failure of his parent to exercise a minimum of care in supplying the child with adequate education, in accordance with part 1 of Article 65 of the Education Law, though financially able or offered financial or other reasonable means to do so. Part 1 of Article 65 of the Education Law refers to compulsory education (Education Law § 3201 et seq). In particular, Education Law § 3205(1)(a) provides that a minor from 6 to 16 years of age shall attend upon [*2]full time instruction.

Specifically, the petition alleged that Maeghan was absent without excuse 59 times during the period October, 2002 to March, 2003 and did not attend school at all from April to June, 2003. The petition further alleged that as a result of these absences, Maeghan's academic performance had suffered and she was failing several of her courses. According to the petition, when confronted with her daughter's absences, Marguerite claimed that Maeghan had been "verbally abused" by school personnel. The petition also stated that Marguerite had told school officials that she planned to transfer her daughter to another school district but had not done so. The petition noted that Maeghan was being treated by Dr. Zieger, a child psychologist. The petition alleged that Marguerite had not "cooperated" with the school in that she had failed to provide the school with an evaluation prepared by another psychologist, Dr. Goldberg. Finally, the petition alleged that Michael McGovern was aware of his daughter's absences but had not taken any action to address the problem.

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The Family Court, Hon. Ruth Balkin, held a fact finding hearing on the neglect petition and on April 21, 2004 issued its decision and order. The court found that beginning in the second grade, the School District had become concerned with Maeghan's academic progress and her reading scores. In third grade, Maeghan had been screened by the School District's committee on special education. However, Maeghan was not at that time classified as learning disabled, or otherwise subject to a handicapping condition which would have entitled her to a program of special education. (See Education Law § 4401 et seq). Although Maeghan was promoted through 8th grade, she continued to have difficulty with reading and to test below grade level. Additionally, Maeghan failed several major academic subjects in 6th and 7th grade and was required to attend summer school in 2001.

Maeghan's serious attendance problems began in the middle of 8th grade. She had 14 unexcused absences from the Long Beach Middle School in December, 2002 and 19 unexcused absences in January, 2003. Vice Principal Margaret Ronai, who is also a social worker and a guidance counselor, visited Maeghan's home in January in an unsuccessful attempt to speak with her parents. On January 28, 2003, a school superintendent spoke to Marguerite and offered to help bring Maeghan back to school, but Marguerite refused any type of assistance. Judge Balkin found that Maeghan did not return to school between January and June of 2003, and during that time there was no academic or social program in place that could be considered home schooling in any proper sense. The court further found [*3]that because of Maeghan's poor academic performance, the school had decided not to promote her.

At the hearing, Marguerite claimed that Maeghan's absences were caused by

harassment, which she had received from her teachers and the School District's failure to place her in an appropriate learning environment. Marguerite also presented the testimony of Dr. Richard Zieger, a clinical psychologist to whom she had taken Maeghan in December, 2002. Dr. Zieger diagnosed Maeghan as having a panic or anxiety disorder and treated her during the period of absence. Dr. Zieger considered Maeghan to be "very sensitive," and Judge Balkin found that Maeghan may have misinterpreted certain "well meaning" comments by her teachers. For example, one of Maeghan's teachers told her that if her academic performance did not improve she would "fail high school and college and [her] life [would] come out to nothing." Dr. Zieger recommended to Maeghan's parents that she get a "fresh start" in a different school with a "more positive" educational environment. While Dr. Zieger believed that Maeghan was happy to return to school in December, 2003, he did not believe that her absence from school had a negative effect on her. Moreover, Dr. Zieger did not believe that Maeghan's parents had encouraged her to stay home from school. Nonetheless, Marguerite's explanation for why her daughter had so many absences from school was not credited by the Family Court.

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The Law Guardian whom Family Court had appointed to represent Maeghan's interests recommended that she be adjudicated a neglected child. The Law Guardian argued that Maeghan's parents had not made any attempt to find an alternative school and had permitted their daughter to remain absent. The Law Guardian also believed that Maeghan's parents had reacted in a "legally unacceptable manner" by adopting an adversarial attitude with the School District. Judge Balkin found that after Maeghan returned to school, her attendance remained regular.

Based upon these findings, Judge Balkin concluded that Maeghan had been educationally neglected by her parents. On May 11, 2004, Judge Balkin issued an order of disposition, releasing Maeghan to the custody of her parents and placing them under the supervision of DSS for a period of one year. Maeghan's parents appealed from the Family Court fact finding and dispositional orders, and those orders were affirmed by the Appellate Division, Second Department on November 7, 2005.

In the interim, on November 29, 2004, DSS filed a petition in the Family Court [*4]charging Maeghan's parents with a violation of the dispositional order. The violation petition alleged that Maeghan's parents had continually obstructed DSS' attempts to ensure that the acts and omissions that led to the finding of neglect were remedied. Specifically, Marguerite had refused to permit home visits by a DSS caseworker unless the caseworker allowed the visits to be video taped. The caseworker had attempted to gain access to the home on May 14, August 3, September 24, and October 19, 2004. On October 19, when the caseworker attempted to visit Maeghan at Long Beach High School, she was told that Maeghan had been directed by her parents not to speak to the caseworker. The petition further alleged that Maeghan continued to struggle academically, had missed 66 individual classes, and was failing two subjects. On May 12, 2005, on consent of the parties, Family Court temporarily extended supervision to June 27, 2005, thereby resolving the violation petition.

On or about May 1, 2006, Marguerite commenced this action against the School District and DSS. The complaint does not separately state individual causes of action against either of the defendants (See CPLR 3014). However, reading the complaint liberally, it alleges a claim against DSS for wrongful bringing of the neglect petition and claims against the School District for educational malpractice, intentional infliction of emotional distress, and aiding and abetting DSS in the wrongful bringing of the neglect petition. The claims based upon the bringing of the neglect petition are asserted by Marguerite individually. The claims for educational malpractice and intentional infliction of emotional distress are brought by Marguerite on behalf of her daughter.

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Marguerite alleges that the School District "neglected" Maeghan's educational well-being. More specifically, Marguerite alleges that the District ignored her concerns about Maeghan's reading skills, inappropriately placed her in an 8th grade behavior modification program, and generally created a "hostile learning environment." Marguerite further alleges that on December 18, 2002, one of Maeghan's teachers, Mrs. Raber, "badgered" her in the hallway, and Maeghan had also been mistreated by other teachers. Marguerite alleges that Maeghan refused to return to school because she feared Mrs. Raber.

The complaint further alleges that the DSS investigation, conducted in March, 2003, was biased and aimed at protecting the School District rather than determining whether Maeghan had been neglected by her parents. As evidence of bias, the complaint alleges that on March 25, 2003, Ms. Faure, the caseworker assigned to conduct the investigation, took [*5]a statement from Maeghan. The complaint alleges that although Maeghan told Ms. Faure about the incidents with Mrs. Raber and the other teachers, Maeghan's "full statement" was not included in Ms. Faure's investigative report.

The complaint alleges that defendants conspired or "worked together to defraud the court" in the neglect proceeding. More specifically, the complaint alleges that DSS defrauded the court through the testimony of Ms. Ronai, the Vice Principal who had attempted to visit Maeghan's home in January, 2003.[FN1] While the full transcript of the Family Court fact finding hearing has not been submitted, Ms. Ronai appears to have been a main witness for DSS at the hearing. From Judge Balkin's order, it appears that Ms. Ronai testified as to Maeghan's absences, their effect on her academic performance, and the discussions relating thereto between Marguerite and representatives of the School District.

The complaint further alleges that on February 22, 2005, Jeffrey Pam, Esq., respondents' attorney in the neglect proceeding, obtained DSS' file concerning the investigation of the case.Marguerite asserts that upon reviewing the file, she determined that it contained numerous "forged" and "falsified" documents that were used to "defraud the court" in the neglect proceeding. Among the allegedly forged documents was an authorization for DSS to obtain the results of a "psycho-diagnostic learning disability test" administered to Maeghan by Dr. Goldberg. Dr. Goldberg had been retained by Marguerite

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to evaluate whether Meaghan had a learning disability. While the complaint does not allege whether Dr. Goldberg found a learning disability, it does make clear that Marguerite disagreed with Dr. Goldberg's finding. The complaint further alleges that although Marguerite did not authorize Ms. Faure to "gain access to Dr. Goldberg's report," the caseworker obtained the report, and DSS offered it into evidence in the neglect proceeding. Marguerite requests compensatory and punitive damages for denying Maeghan the "opportunity to receive a sound basic education" and for the mental distress and damage to her reputation as a parent, arising from the wrongful bringing of the neglect petition.

Judge Jaeger granted DSS' motion to dismiss the complaint on the ground of qualified immunity. Judge Jaeger found that although Dr. Goldberg's report was covered by the psychologist-patient privilege, Ms. Faure conducted the investigation in good faith and there was no evidence of gross negligence or wilful misconduct on her part. Judge Jaeger found [*6]that the allegation that Ms. Faure had included only information damaging to the child's parents in Maeghan's statement suggested a degree of bias on her part. However, because there is no cause of action for educational malpractice, Judge Jaeger found that defendants had little motive to "cover up" for the School District's inadequacy in responding to Maeghan's educational needs. Thus, Judge Jaeger concluded that plaintiff had not shown how a biased investigation might have resulted in the bringing of the neglect petition.

Finally, Judge Jaeger ruled that plaintiff was collaterally estopped from asserting that Ms. Ronai's testimony was false by the unfavorable judgment in the neglect proceeding. Judge Jaeger noted that Dr. Goldberg's report should not have been admitted because it was confidential. Judge Jaeger further noted that Judge Balkin may have misconstrued Marguerite's claim that the District failed to address Maeghan's educational needs by placing her in special education as opposed to a mainstream program. Nonetheless, he concluded that plaintiff had a full and fair opportunity to litigate the truthfulness of Ms. Ronai's testimony. For the purpose of the motion to dismiss, Judge Jaeger assumed that the testimony related to discussions with Marguerite concerning her dissatisfaction with Maeghan's educational placement and the alleged mistreatment that she had received from her teachers. Finding that Marguerite was collaterally estopped from asserting that Ms. Ronai's testimony was false, Judge Jaeger granted DSS' motion to dismiss the complaint.

The District now moves to dismiss the complaint on the ground of failure to state a cause of action. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction....[The court must] accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"(Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303, 751 NE2d 936, 727 NYS2d 688 [2001]).

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Educational Malpractice

As a matter of public policy, the courts will not second-guess the professional judgments of public school educators and administrators in selecting programs for particular students (Torres v. Little Flower Children's Servs., 64 NY2d 119, 123, 474 NE2d 223, 485 NYS2d 15 [1984]). In Torres, the Court of Appeals noted that education of children is a "complex and often delicate process" (64 NY2d at 125). Moreover, schools offer a variety of educational programs, and the placement of particular students must be left to the educators and government officials who are professionally trained to carry out this function. Thus, there is no cause of action for educational malpractice, and a school district will not [*7]be held liable to a student for malpractice even if its educational placement of the student was totally inappropriate. (See Helbig v. City of New York, 212 AD2d 506, 622 NYS2d 316 [2d Dept., 1995]). Accordingly, the District's motion to dismiss plaintiff's claim for educational malpractice for failure to state a cause of action is granted.

Qualified immunity

Because plaintiff's claim is based upon a report of child abuse or neglect, the court will begin by considering the broad immunity granted to reporters of such misconduct rather than the elements of any particular tort or legal theory (See Mark G. v. Sabol, 93 NY2d 710, 717 NE2d 1067, 695 NYS2d 730 [1999]).Section 419 of the Social Services Law provides that,

Any person, official, or institution participating in good faith in the providing of a service[concerning reports of child abuse or maltreatment], the making of a report, the taking of photographs, the removal or keeping of a child pursuant to the [child protective services act], or the disclosure of child protective services information...shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. [T]he good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a service [concerning child abuse or maltreatment reports] shall be presumed, provided such person, official, or institution was acting in discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official, or institution.

This section provides a qualified immunity for child protective services officials who investigate charges of abuse or neglect and also mandatory reporters who in good faith report

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such misconduct (Forrest v. Berlin Cent. School Dist., 29 AD3d 1230, 815 NYS2d 774 [3rd Dept., 2006]). Moreover, the good faith of those required to report or provide services is presumed provided the officials are acting in discharge of their duties and within the scope of their employment, and they do not engage in gross negligence or willful misconduct. In enacting this statute, the Legislature determined that a qualified immunity from civil and criminal liability would remove "the fear of an unjust lawsuit for attempting to help protect a child" (Mark G. v. Sabol, supra at 721). The Legislature deemed qualified immunity for officials required to report or investigate "indispensable" to further the strong public policy of protecting children.(Id). [*8]

Social Services Law § 413(1) sets forth an extensive list of persons and officials who are required to report cases of suspected child abuse or maltreatment (See Matter of Grand Jury Investigation in NY County, 98 NY2d 525, 779 NE2d 173, 749 NYS2d 462 [2002]). Because school officials are listed among the group of mandatory reporters, they are included within the group of officials protected by qualified immunity. There is no question that the School District officials who submitted the report of Maeghan's chronic absenteeism were acting within the scope of their employment. The only facts which plaintiff has alleged suggesting the School District's lack of good faith concerns the District's alleged failure to address Maeghan's educational needs. However, as noted by Judge Jaeger, because there is no cause of action for educational malpractice, there is no basis for inferring bad faith on the part of the District. Based upon the doctrine of qualified immunity, the School District's motion to dismiss plaintiff's claim for aiding DSS in the wrongful bringing of a neglect petition is granted.

Emotional distress

Under the doctrine of respondeat superior, an employer may be vicariously liable for a tort committed by an employee while acting within the scope of employment. If the conduct of the employee is generally foreseeable, even an intentional tort may fall within the scope of employment (Riviello v. Waldron, 47 NY2d 297, 391 NE2d 1278, 418 NYS2d 300 [1979]). Thus, a school district will be liable if a teacher commits an intentional tort against a student in the course of the teacher's employment (See, Rossetti v. Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668, 716 NYS2d 460 [3rd Dept., 2000]).

The tort of intentional infliction of emotional distress requires: 1) extreme and outrageous conduct, 2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress, 3) a causal connection between the conduct and injury; and 4) severe emotional distress (Howell v. New York Post Co., 81 NY2d 115, 612 NE2d

699, 596 NYS2d 350 [1993]). The first element, outrageous conduct, serves the dual

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function of filtering out petty and trivial complaints and assuring that plaintiff's claim of severe emotional distress is genuine (Id at 121). The element of outrageous conduct is particularly susceptible to determination as a matter of law (Id at 122). Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct but imposes liability based on after-the-fact- judgments about the actor's behavior (Id). The element of extreme and outrageous conduct may also be described as "utterly reprehensible behavior" (Id). Because the standard is so broadly defined, the actor may not have notice of the precise conduct which the tort proscribes (Id). However, the advantage of the tort's broad reach is "flexibility" in redressing utterly reprehensible conduct. Thus, [*9]"the tort is as limitless as the human capacity for cruelty" (Id.)

As to the fourth element, that the emotional distress be severe, an objective standard applies (Richard L. v. Armon, 144 AD2d 1, 4, 536 NYS2d 1014 [2d Dept., 1989]). Thus, the emotional distress must be so severe that no reasonable person could be expected to endure it. (Id).

In determining the contours of proper conduct by a teacher, the court may be guided by the teacher's duty of supervision towards her students. A teacher must exercise the same degree of care toward the students in the teacher's custody as a reasonably prudent parent would exercise under comparable circumstances (Sprecher v. Port Washington Union Free School Dist.,166 AD2d 700, 561 NYS2d 284 [2d Dept., 1990]). Thus, a persistent pattern of verbal abuse by a teacher against a student may constitute utterly reprehensible conduct. However, under the reasonably prudent parent standard, a teacher must be free to chastise a student whose academic achievement falls short of expected levels of performance.

Giving plaintiff the benefit of every possible inference, the complaint does not allege extreme and outrageous conduct by Mrs. Raber or any other teacher in the Long Beach School District. While Maeghan may indeed be a sensitive child, the comment, even if characterized as a criticism, by her teacher was not so severe that she could not be expected to endure it. The District's motion to dismiss plaintiff's claim for intentional infliction of emotional distress is granted. Plaintiff's motion for leave to appeal from Judge Jaeger's order of January 2, 2007 is denied since no appeal lies from an order denying reargument (Cangro v. Cangro, 288 AD2d 417, 733 N.Y.S. 899 [2d Dept., 2001]).

The foregoing constitutes the Order of this Court.

Dated:June 6, 2007

Mineola, NY



J. S. C.

X X X Footnotes

Footnote 1:The Family Court fact finding decision identifies the Vice Principal as "Margaret Ronai." Although the complaint refers to "Mrs. Ronia," the court assumes for the purposes of this motion to dismiss that plaintiff is referring to the Vice Principal.