The trial court's nonsuit ruling does not expressly address the negligence per se, negligent hiring, or <mask> and Neglect Reporting Act (CANRA) causes of action. Doe does not assert this is error or a basis for reversal. (See Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12, 125 Cal.Rptr.3d 522 ["issues and arguments not addressed in the briefs on appeal are deemed forfeited"].) At oral argument, the parties agreed it was unnecessary to specifically address these causes of action (or, in the case of negligence per se, a theory) in this opinion because the issues of foreseeability and causation applied to all of the negligence-based causes of action. Additionally, the CANRA claim was encompassed within the negligence cause of action because the failure to report was alleged to be a breach of duty underlying that cause of action.


Petitioners are parents of children enrolled in the City School District of the City of New York and a teacher in such District. They have brought these proceedings challenging the November 29, 2010 determination (Decision) of the Commissioner of respondent New York State Department of Education in which *560the Commissioner granted the November 17, 2010 letter request of the Mayor, that a Certificate be issued to Ms. Cathleen Black upon completion of training in <mask> and school violence prevention. In that letter, the Mayor detailed Ms. Black’s lifetime achievements, which achievements included little experience in the educational field. The Mayor stated, however, that Ms. Black, the former president and then chairperson of Hearst Magazines, is an exceptionally qualified candidate for the position of Chancellor of the New York City public schools, noting accomplishments and experience attained over the course of a long career commencing in 1972. Said accomplishments and achievements included: (i) becoming president and publisher of USA Today in 1983; (ii) assuming the presidency of the American Newspaper Publishers Association in 1991; (iii) service as a Trustee of the University of Notre Dame, Trinity University and The Kent School; (iv) service on the boards of IBM, the United Way and the Coca-Cola Company; and (v) service as a board member of the Advertising Council and a member of the Council on Foreign Relations. The Mayor further noted that in the public and nonprofit arena Ms. Black has, inter alia, served on the New York Forum, recently traveled to Detroit with First Lady Michelle Obama to promote youth leadership and mentoring and received the New Orleans Citizenship award for her leadership in helping New Orleans recover and rebuild in the aftermath of Hurricane Katrina.


1 Mother is not a party to this appeal. The officer also interviewed Mother and both children, and took photos of R.M.’s injuries. Mother brought R.M. to the hospital the following day, where doctors diagnosed him with “ ‘injury due to physical assault, bruising, contusion of right chest wall, [and] closed fracture of one rib of right side.’ ” A <mask> pediatrician opined that punches and kicks to R.M.’s chest and abdomen area could have been deadly or led to internal injuries, liver laceration or bruising, bruising to the intestine and other organs, or a pulmonary hemorrhage. Further, it was unlikely the injuries were caused by another child. D.M. was also examined by a child abuse pediatrician. Although his exam was normal, D.M. expressed during the exam that he felt unsafe with Father. On March 8, 2021, Mother filed a restraining order to prevent Father from contacting her or the children. In addition to the most recent incident of physical abuse against R.M., Mother described two prior incidents when Father physically abused the children. Specifically, in October 2018, Mother observed Father punch D.M. in the head twice and call him a “ ‘momma’s boy.’ ” The children had also disclosed to her in December 2020 that Father had punched D.M. in the head and called him “ ‘stupid,’ ” and that their stepmother picked up R.M. and threw him down. The application further indicated that Father had a history of physically and verbally abusing Mother during their prior relationship. She alleged that Father had thrown things at her, dislocated her thumb, and caused bruising all over her body. She also reported that she suffered a miscarriage in 2014 after Father repeatedly hit and kicked her. Based on the information Mother provided in the application, a temporary restraining order was granted and a hearing was set for mid-March.


The police officers knew that claimant, who was 10 years older than his live-in girlfriend, the mother of the deceased child, had been living with her at the rented cabin since before Kenneth’s birth. The officers were also aware that claimant was not the child’s father but had contributed $105 per month to the household and had fed and cared for the children since moving in with their mother. Certainly, the officers had obtained enough information to deduce that although claimant had not taken on an official imprimatur of fatherhood, his past activities, which were closely connected to the deceased child’s welfare, constituted a reasonable basis for them to conclude *95that claimant had accepted responsibility for the child’s general welfare. In fact, Investigator Kovac testified that as a result of his investigation, he believed that claimant was acting as the child’s guardian. Although these activities did not equate to a legal finding of acting in loco parentis—the necessary ingredient required for conviction for <mask> based on acts of omission—it does relate to the arresting officers’ belief or state of mind in evaluating probable cause. It is also well to note that although this claim was filed on August 11, 1993, claimant, on March 9, 1994, admitted in Family Court, Ulster County, that he was a person legally responsible for all three of the Manon children and, in that same proceeding, he consented to the entry of a finding of neglect in the case of Kenneth Manon. Although these admissions were made after his arrest and acquittal, at this stage of this proceeding, they do constitute some evidence of justification for the arresting officers’ belief at the time of the arrest that claimant’s relationship to Kenneth amounted to an acceptance of responsibility for the child’s welfare. At this junction of claimant’s quest for justice it appears that had the truth of claimant’s relationship to Kenneth, as admitted to in the Family Court proceedings, been known at the time of the criminal proceedings, claimant would be elsewhere and definitely not prosecuting this claim. Suffice it to say that if an arraignment or indictment which occurs subsequent to an arrest without a warrant constitutes some proof of the presence of probable cause in deciding the issue of justification for the arrest without a warrant (Broughton v State of New York, 37 NY2d, supra, at 458), more persuasive evidence of the presence of probable cause emanates from subsequent in-court admissions made by the offending party to essential elements of the charges upon which the initial arrest was made.


Lastly, because the proceedings regarding the mother remain ongoing, this Court reminds the circuit court of its duty to establish permanency for the children. Rule 39(b) of the Rules of Procedure for <mask> and Neglect Proceedings requires: At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent placement of the child.


“Notwithstanding section four hundred fifteen of this title,[2] section one thousand forty-six of the family court act,[3] or, except as set forth herein, any other provision of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action; provided, however, an unfounded report may be introduced into evidence: (A) by the subject of the report where such subject is a respondent in a proceeding [brought] under article ten of the family court act or is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of <mask> or maltreatment; or (B) in a criminal court for the purpose of prosecuting a violation of subdivision three of section 240.55 of the penal law. Legally sealed unfounded reports shall be expunged ten years after the receipt of the report.”


In the instant case, three children said to have been the victims of physical and sexual abuse at the hands of their father with whom they lived were referred from the emergency room to a pediatrician who specialized in <mask>. The doctor, who testified at trial, performed thorough individual examinations to determine the state of the children’s health and prescribe any necessary treatment. During the examination, as she noted physical injuries to each of their bodies, she asked with respect to that injury, “What happened, how did this mark get there?”3 Such queries were necessary because the physician treating child abuse not only attends to physical injury, but must also evaluate the need for additional treatment, including mental health referrals. (103 Pediatrics No. 1 [Jan. 1999].) In other words, the treating physician, “must be attentive to treating the emotional and psychological injuries which accompany this crime. * * * The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser.” (United States v Renville, 779d 430, 437 [8th Cir 1985]; see also, People v Moten, 2001 WL 985815, 2001 Mich App LEXIS 2641 [Mich Ct App, Aug. 28, 2001] [child victim’s statements to doctor advising of the assault and identifying the defendant as the assailant were for purposes of medical treatment and diagnosis and necessary to develop a comprehensive treatment plan for the child].)


“Two-thirds of reported nonfamily abductions involve sexual assault. Of the 2.4 million reported cases of <mask> in 1989, 380,000 involved sexual abuse . . . The Justice Department has reported that over 85 percent of nonfamily abductions involved force and over 75 percent involved a weapon. Of the homicides that occur from stranger abductions, almost 40 percent involved rape or another sexual offense, and those are only the cases in which the circumstances were known . . . Under the Jacob Wetterling bill, the type of crimes that would trigger the registration requirement include the kidnaping or false imprisonment of a minor . . . .” *847Representative Ramstad of Minnesota similarly commented that JWA was needed to establish a national registration system for child abductors and child molesters. (140 Cong Rec H2510-06 [Apr. 20, 1994]; see also Report by Comm on Judiciary, HR Rep No. 103-392, 103rd Cong, 1st Sess [1993] [referring to a 1990 study by the Department of Justice finding that two thirds of reported nonfamily abductions involved sexual assault].)


Subsequent to Brown (supra), two appellate courts of this State have determined that the holding in Brown applies in the context of Family Court <mask> proceedings and criminal proceedings (see, People v Roselle, 193 AD2d 56 [2d Dept 1993]; Nelson v Dufficy, 104 AD2d 234 [2d Dept 1984], lv denied 64 NY2d 610; People v Bosilkofski, 134 AD2d 869 [4th Dept 1987]).


In June of 2020, the DHHR filed a <mask> and neglect petition against petitioner and the mother based upon allegations of drug abuse. Specifically, the DHHR alleged that then nine- year-old C.D. reported the parents abused drugs. According to C.D., the parents “w[ould] stay awake for days at a time and then sleep for long periods of time,” would not feed the children or change the youngest child’s diaper, and frequently invited guests into their home to smoke things out of pipes. Other family members also reported that the parents abused drugs. The DHHR alleged that petitioner sold the family’s food stamps for drugs and tested positive for methamphetamine earlier that month. As such, the DHHR concluded that the parents failed to provide the children with necessary food, clothing, supervision, and housing, and that the parents were not sufficiently motivated to provide for the needs of the children on an ongoing basis.


It is clear that Social Services Law §§ 419 and 420 are complementary. To “encourage” reporting of suspected <mask> or neglect immunity is granted in section 419 when a party, in good faith, reports suspected abuse or neglect because there are criminal and civil penalties for the failure to report suspected abuse or neglect under section 420. It is also clear that with the exception of Social Services Law § 420, the Legislature has declined to grant any other private right of action for money damages. This court refuses to find an “implicit” private right of action, as asserted by the plaintiff, which the Legislature has not granted.


case from September 2019 to the time of the termination hearing, except during her maternity leave, which lasted from November 2020 until March 1, 2021. Housh testified that the family had two prior court-involved cases which Candice was able to resolve. She provided that when the current case began in September 2019, DHHS offered family support services, visitation services, referrals to treatment facilities, structured decisionmaking assessments (which are a tool that DHHS uses to determine children’s safety), and a substance abuse evaluation. Housh testified that Candice posed a safety risk to the children because, when Candice was intoxicated, she was unable to provide them with adequate supervision, parenting, and care. The month after the January 2020 dispositional hearing, Candice was arrested for child neglect after she, while vis- ibly intoxicated, attempted to contact Serenity at a recreation center. Candice’s visitations were temporarily suspended with the provision that visitations could take place in a therapeutic setting while Candice was sober. Following a hearing in early March, the court ordered that Candice “shall have a minimum of once weekly supervised parenting time with the minor chil- dren [and that Candice] shall not use or be under the influence of alcohol or controlled substances during her parenting time and may be required to undergo testing prior to any visit tak- ing place.” After Candice’s February 2020 arrest for <mask>, she entered a short-term residential treatment program. While in short-term residential treatment, Candice suffered a relapse, but she was able to successfully complete the program. She then transitioned to the residential “Project Mother Child” program. In June, the court permitted Candice to move from supervised visitation to monitored visitation, which allowed Candice and the children to walk from Candice’s inpatient residential facility to nearby stores. While in the residential program, Candice relapsed and was intoxicated during at least two of her monitored visitations with her children. One of - 607 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports IN RE INTEREST OF SERENITY A. & CANJERRICA D. Cite as 30 Neb. App. 602


Accordingly, a government agency can be held liable for negligent acts and omissions involving a protected class of individuals, in this case children in registered family day-care facilities, regardless of whether the alleged acts or omissions are ministerial or discretionary in character, as there is a special duty owed to such children. In the instant case, there was a special relationship between the DOH (the city agency responsible for registering family day-care providers), the ACS (the city agency responsible for both investigating complaints of <mask> and maltreatment and for furnishing lists of registered day-care providers to parents), and the “protected class” of children, including Briana, whose working parents rely on the registration requirements to locate safe day-care providers.


In order to establish a prima facie case of <mask> or neglect, ACS had only to present evidence of an injury to a child that would not ordinarily occur absent an act or omission of the parent or other person responsible for the care of the child, and that the parent or other such person was the child’s caretaker when the injury occurred (see Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 NY2d 238, 243 [1993]). “Upon presentation of such proof, the burden of going forward shifts to the parent or other person responsible for care of the child to offer a reasonable and adequate explanation of how the child sustained the injury” (Matter of Commissioner of Social Servs. of City of N.Y. v Hyacinth L., 210 AD2d 329, 330-331 [1994]).


The testimony of the teachers was that in late January, 1982 the child came to them and said “she was having problems at home. Her father was touching her and making her do things.” About three weeks later, she came to *835the teacher again crying that the “same things are going on.” The school counselor then called the child’s mother and filed the <mask> complaint.


In December of 2020, the DHHR filed a <mask> and neglect petition alleging that petitioner committed acts of domestic violence against the mother in the presence of the children, then two-year-old K.E. and five-year-old B.E. The DHHR alleged that the mother stated petitioner “frequently physically abuse[d] her” and that petitioner was serving parole for a “fleeing with reckless indifference” conviction. A Child Protective Services (“CPS”) worker interviewed petitioner, who denied physical violence with the mother. Petitioner asserted that the


The CPS investigators in both People v Wilhelm (34 AD3d 40, 46-47 [2006]) and People v Greene (306 AD2d 639, 641 [2003]) were part of countywide teams, that included police officers, assigned to investigate allegations of <mask>. Ms. *341Kurlander was not a part of any such joint venture. The use of formal teams made up of police, CPS investigators and prosecutors was undoubtedly ended by decisions like Wilhelm and Greene — decisions that ordered the suppression of statements given to team members. The obvious alignment of interests between these parties, however, remains unchanged. Ms. Kurlander was subpoenaed by the District Attorney’s office to testify in criminal proceedings against the defendant. She had not sought to interview the defendant at the time she responded to the subpoena. Ms. Kurlander spoke to an Assistant District Attorney and learned that the prosecution of the defendant had stalled because of the mother’s recantation of allegations previously made against the defendant. Ms. Kurlander told the prosecutor that she would see the defendant the next day and advise his office of the results of the interview. The defendant’s admissions were immediately reported to the District Attorney’s office. The investigator’s jailhouse interview with the defendant fulfilled her statutory obligation to investigate the reported child abuse; I find that she also went intending to aid the prosecution if she could.


However, in a May 24, 1973 letter from the Hospital Association of New York State in support of Assembly Bill 6514A, the Association expressed reservations concerning “imposing civil liability for the damages proximately caused by failure to report suspected cases of <mask>.” The Association stated, “We are fearful lest frivolous and unnecessary litigation be initiated against hospitals and their personnel.” (Bill Jacket, L 1973, ch 1039, at 38.)


The record details the extensive services provided to respondent and the children, born in January 1983 and July 1984, by petitioner from as early as September 1987. Child Protective Services subsequently became involved with this family as a result of a report from the State Central Register for <mask> and Maltreatment on February 2, 1988. The report was indicated for inadequate guardianship in March 1988. Other reports were subsequently made and indicated against respondent for lack of supervision and inadequate guardianship.


Multiple witnesses testified regarding the LAUSD policies, code of conduct, and training on sexual harassment and <mask>. Garcia testified that administrators and teachers received semi-annual training on the policies and reporting requirements. She also discussed training on the code of conduct, including that employees should avoid touching or having physical contact with students that is not age appropriate or within the scope of their employment. As mandated reporters, the teachers and administrators were required to report any suspected abuse by filing a Suspected Child Abuse Report (SCAR) with the child abuse unit of the Los Angeles Police Department (LAPD), as well as an LAUSD incident report.


"Aaron is seen at least twice per month w/ facial bruises. [Mother] gives varying excuses. Today Aaron had a couple [of] fading bruises on his forehead, as well as fading bruises around his mouth & cheek appearing to be fingerprints. "[Mother’s] explanation of these bruises is that [child] was choking & fell out of a chair. Bruises are inconsistent w/ [mother’s] explanation. Source concerned because [child] too frequently has facial bruises of [unknown] origin. "[Mother] often said that Aaron is bad & he has the devil in him. Source feels Aaron doesn’t misbehave. Aaron appears nervous & withdrawn. Jennifer is also seen w/ bruises but not frequently.” After receiving the call and deciding that the information could reasonably constitute a report of <mask>, the SCR worker filled out the report form and immediately took steps to convey the information to the CPU in the county where the suspected abuse was occurring (Social Services Law § 422 [2]). Unfortunately, she apparently thought that Canandaigua was located in Oneida County, rather than Ontario County, and either did not refer to the reference guides available to assist workers in verifying locations around the State or misread the information contained therein. The report of suspected abuse was therefore relayed to Joseph A. Cantar ana, a CPU worker in Oneida County. In a tragic coincidence, Mr. Cantar ana was *1023also unfamiliar with the location of Canandaigua and apparently did not consult any of the maps or other resources that were available to him. The mistake was not discovered until the following morning, January 24, when Mr. Cantar ono’s report was given to his supervisor; he was directed to immediately notify SCR that the report had been sent to the wrong county.


Significantly, the Legislature provided that unfounded reports of <mask> be expunged, not sealed. The two words are not synonymous. “The word ‘expunge’ is described as a term expressive of cancellation or deletion, implying not a legal act, but a physical annihilation”. (35 CJS, Expunge, at 343.) On the other hand, when a record is sealed it is merely segregated to ensure its confidentiality to the extent specified in the controlling statute. Thus, in considering the intent of the Legislature when it used the word “expunged” in Social Services Law § 422 (5), the court is obliged to follow one of the primary rules of statutory construction, which is to ascertain intent from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning without resorting to an artificial construction (McKinney’s Cons Laws of NY, Book 1, Statutes § 94).


As stated above, the contested jurisdictional and dispositional hearing finally began *878on February 6, 2015. During the extended hearing, the juvenile court heard testimony from three medical experts: Dr. Barnes, Dr. Hyman, and Dr. Albin. Dr. Barnes-a Stanford-based pediatric radiologist and pediatric neuroradiologist-testified at mother's request that there could be a *314number of explanations for Andrew's injuries other than abuse, including birth trauma, vitamin D deficiency, or vascular or bone fragility disorders such as Ehlers Danlos syndrome (EDS).4 Based on the imaging, Dr. Barnes found birth injury to be the most likely explanation, along with some type of vascular or bone fragility disorder, but he could not rule out <mask> as a possible cause. He explained the different ages of bleeding found in Andrew's brain by hypothesizing that there could be rehemorrhage on top of an older injury. However, Dr. Barnes testified without reviewing the minor's medical records, other than certain select radiology reports, without viewing images of the infant's external injuries (in particular the bruising that could be used to help date the skull fracture ), and without access to any follow-up testing, including the second skeletal survey of the minor. In addition, Dr. Barnes indicated that it is rare to make a determination of child abuse based on review of imaging alone. Rather, a finding of child abuse is a "more holistic determination" made by all of the relevant experts coming together, including those involved in the social aspects of a case.


. A provisional certificate (the more junior of the two certificates) is valid for five years and requires a Bachelor’s degree with credits in the teacher’s content area, professional education credits, passage of the State’s liberal arts and science test, passage of the State’s assessment of teaching skills, graduation from an approved teaching program (or satisfaction of an alternative transcript review) and completion of a <mask> and prevention course. Requirements for a permanent certificate (which is valid for life) are satisfaction of the requirements for a provisional certificate, a Master’s degree, two years of teaching or a one-year internship, passage of a test in a subject area if applicable to their teaching, and passage of the performance portion of the assessment of teaching skills in which the individual is videotaped teaching. To teach without certification under a temporary license, an individual need only have a Bachelor’s degree and be nominated by a district that has exhausted its supply of certified teachers.


VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, <mask> OR NEGLECT, SEXUAL ASSAULT OR ABUSE, STALKING, OR TRAFFICKING CASE (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Chapter 7A, Code of Criminal Procedure,6 an order issued under Article 17.292, Code of Criminal Procedure,7 an order issued under Section 6.504, Family Code,8 Chapter 83, Family Code, if the temporary ex parte order has been served on the person,9 or Chapter 85, *308Family Code,10 or an order issued by another jurisdiction as provided by Chapter 88, Family Code,11 the person knowingly or intentionally: ... (2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner[.] Id. § 25.07(a)(2)(A).12 By its terms, the statute applies only in the very limited context of situations where, at the time of the challenged conduct, a defendant was actively subject to one of these seven types of judicial conditions or orders in a family violence, sexual abuse, stalking, or trafficking case that expressly prohibited him from communicating in threatening or harassing manner with a protected person.


In Biondo v Ossining Union Free School Dist. (66 AD3d 725 [2d Dept 2009]), the Appellate Division affirmed the denial of defendants’ motion to dismiss the complaint based upon the immunity granted pursuant to Social Services Law § 419, finding that there were issues of fact regarding whether defendants had reasonable cause to report suspected <mask>, ultimately deemed unfounded by Child Protective Services. In Biondo, a school district employee reported suspected abuse when she observed the mother slap her son’s hand so hard it left a red mark. Further, the employee claimed that the mother seemed irritable and angry and was physically aggressive with her son during the class. Although the procedural posture of Biondo is different than this case, it is relevant that the employee in Biondo actually observed the behavior which formed the basis for suspecting abuse and filing the report. Here, the defendants did not observe anything that caused them to suspect that Diana G-D was being abused.


An action was commenced against, inter alia, the appellants City of Glen Cove (hereinafter the City) and the City of Glen Cove Police Department (hereinafter the Police Department) alleging that the Police Department was negligent in its handling of a report of <mask>. Prior to commencement of the action, a notice of claim had been served on the City which, in turn, was forwarded to its insurer, the plaintiff in this action. The plaintiff denied coverage based on an exclusionary clause in the insurance policy, stating that "This insurance does not apply to activities of any law enforcement personnel and/or agency.” After the summons and complaint *703in the underlying action were forwarded to the plaintiff, it reserved its right to deny coverage, although it retained counsel to defend the action. The plaintiff then commenced this action seeking a declaration, inter alia, that it had no duty to defend or indemnify the City or the Police Department in the underlying negligence action. Thereafter, the plaintiff moved for summary judgment and the appellants cross-moved for the same relief. The Supreme Court granted the motion and denied the cross motion.


Section 1112 of the Family Court Act provides that “An appeal from an intermediate or final order or decision in a <mask> proceeding may be taken as of right to the appellate division of the supreme court and shall have preference over all other matters. Pending the determination of such appeal, such order or decision shall be stayed where the effect of such order or decision would be to discharge the child ”. CPLR 7002 (subd. [a]) on the other hand provides that ‘ ‘ a party in a child abuse proceeding subsequent to an order of the family court, may petition without notice for a writ of habeas corpus to inquire into the cause of * * * detention and for deliverance ”, and CPLR 7009 (subd. [a], par. 2) provides for service of notice, before a hearing is held on the writ, 1 ‘ where a person is detained by order of the family court * * * upon the judge who made the order ”, Evidence from consideration of those provisions together is the fact that habeas corpus is not intended and cannot be used as a means of appeal from the Family Court order. Since article 10 of the Family Court Act places jurisdiction in child abuse proceedings in the Family Court, that court rather than this is the proper forum to determine whether a child is “ abused” within the meaning of section 1012 of the Family Court Act. Moreover, both the wording of section 1112 and the rule against improper co-ordinate review (see People ex rel. Klein v. Krueger, 25 N Y 2d 497, 502) require that any error in the Family Court’s determination of that question be corrected by the Appellate Division. It is, then, only when and *140to the extent that the Family Court acts without or in excess of its statutory authority or in violation of constitutional rights that the habeas corpus court can review and modify or undo the Family Court’s act (see People ex rel. Klein v. Krueger, supra, pp. 502-503 and Thrasher v. United States Liab. Ins. Co., 19 NY 2d 159, 165-166).


Before we address Charlotte's contentions minor's counsel may receive or inspect RFA information under sections 317 and 827, we examine her arguments that minor's counsel is entitled to such information as a member of a <mask> multidisciplinary personal team under section 10850.1 and that minor's counsel may obtain such information pursuant to subpoena, court order, or other judicial process pursuant to Civil Code section 1798.24, subdivision (k).


New York State, in particular, went beyond the language proposed by the NCCUSL drafters of the UCCJEA, enacting additional provisions that confer special protection for victims of domestic violence. In a statement of legislative intent that introduces the UCCJEA, the Legislature mandated that issuance and enforcement of child custody and visitation should be accomplished “in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and <mask> are protected.” (Domestic Relations Law § 75 [2]; see also Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law art 5-A, 2004 Pocket Part, at 41.) New York’s statutory scheme requires a moving party to indicate, for example, whether “any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence . . . and, if *811so, identify the court, the case number, and the nature of the proceeding.” (Domestic Relations Law § 77-g [2] [e].) By implication, therefore, enforcement of a valid out-of-state decree may be affected by a new domestic violence proceeding.


Guy P. De Phillips, J. The Commissioner of Social Services of the City of New York instituted <mask> proceedings against Gina C., the sole named respondent, with respect to two children — Travis S., born April 18, 1984, and Jessica C., born December 7, 1985. It is alleged that the child Travis sustained a spiral fracture of the right femur on or about March 3, 1986 while in the care of the respondent who at that time was his regular babysitter. Additionally, it is claimed that respondent’s explanation of the injury is "inconsistent with the nature of the injury”. Respondent is the mother of the child Jessica. It is undisputed that respondent is no longer the baby-sitter for Travis and that apart from the aforementioned injury to Travis, there is no allegation of respondent’s abusing or neglecting her child, Jessica, or Travis. It is also stipulated that respondent is unrelated to Travis and performed her baby-sitting services in her own home, not in Travis’ home, on a weekly basis consisting of two days per week for some 15 months for varying daily periods of up to eight hours per day. The parents of Travis have not been named as respondents. After issue was joined and prior to fact finding, respondent orally moved to dismiss these two child abuse petitions on the ground that under these circumstances she is not a properly named respondent within the contemplation of Family Court Act article 10. Petitioner contends that the court has and should retain jurisdiction over Gina C., the baby-sitter, as a properly named respondent because she was the "person responsible for [Travis’] care at the relevant time” (Family Ct Act § 1012 [g]) and a finding of abuse or neglect as to Travis would justify a derivative finding of abuse or neglect as to respondent’s own child, Jessica (Family Ct Act § 1046 [a] [i]).


DHS took emergency custody of Easter's four children on December 8, 2015, because there was suspected <mask> in connection with the broken leg of one of the children. The accompanying affidavit explained in part that the child stated his father hurt him, and that Easter corrected the child stating that the father had tried to help him. The children were subsequently adjudicated dependent-neglected. The trial court found the explanations concerning the child's broken leg were unsatisfactory. In addition, Easter tested positive for THC. The goal of the case was reunification, but after nineteen months, DHS filed its petition to terminate Easter's rights. Following a hearing, the trial court granted the petition, finding it was in the children's best interest and that DHS had proved three statutory grounds ("failure to remedy," "subsequent factors," and "aggravated circumstances"). The father's *435parental rights were also terminated, but he is not involved in this appeal.


Once a petitioner in a <mask> case has established a prima facie case, the burden shifts to the respondent to rebut the presumption of parental culpability (see, Matter of Philip M., 82 NY2d 238). The mother’s failure to come forward at the fact-finding hearing with any explanation to rebut the presumption of parental culpability justified the Family Court in "draw[ing] the strongest inference against [her] that the op*788posing evidence in the record permitted]” (Matter of Commissioner of Social Servs, v Philip De G., 59 NY2d 137, 141). Mangano, P. J., Altman, Hart and Florio, JJ., concur.


By twice expressly declining the offer of the administrative law judge (hereinafter ALJ) to adjourn the hearing in order to call a Orange County Department of Social Services caseworker to testify, the petitioner waived judicial review of her claim that she was denied the opportunity to examine the caseworker (see Matter of Gray v Adduci, 73 NY2d 741 [1988]; Matter of McMoore v Bezio, 67 AD3d 1218 [2009]; Matter of Davis v Brack, 63 AD3d 1457, 1458 [2009]; Matter of Frederick G. v New York State Cent. Register of <mask> & Maltreatment, 53 AD3d 1075, 1077 [2008]; Matter of Butler v McCall, 221 AD2d 892, 893 [1995]).


*529In 1989, in case number MCR97449, appellant was placed on probation after being convicted of one misdemeanor count of evading a peace officer under Vehicle Code section 2800.1. In 1996, in case number *93SCR22536, appellant was convicted after a jury trial of one felony count of criminal threats under section 422 and three misdemeanor counts: <mask> under section 273a, subdivision (b), vandalism under section 594, subdivision (a), and being under the influence of a controlled substance under Health and Safety Code section 11550, subdivision (a). He was denied probation and sentenced to prison.


has suffered an incident of <mask>, shall as soon as possible make a report of the suspected abuse to the agency designated under subsection (d) of this section.” On its face, this is a broad provision: It applies to covered professionals on all federal lands and in all federal facilities and requires a report as soon as possible no matter where the suspected child victim resides, is cared for, or may have been abused. The express incor- poration of subsection (d), however, gives rise to doubt about the scope of subsection (a)’s reporting requirement, because subsection (d) appears to require the Attorney General to designate an agency to receive reports only “[f]or all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside.” The central question, then, is whether the cross-reference to subsection (d) limits subsection (a)’s otherwise broad language, and if so, in what way. 3 You suggest that it would be reasonable to read the reporting require- ment as applying “only with regard to suspected abuse of children resid- ing or cared for on Federal lands and in federally operated and contracted facilities,” because “42 U.S.C. § 13031(a) requires reporting only to agencies as designated under subsection (d), and subsection (d) provides for designation only of agencies to receive and investigate reports for Federal reservations in which children are cared for or reside.” VA Letter at 2. In other words, you maintain that, because subsection (d) specifies agencies to receive reports only for “Federal lands and . . . facilities in which children are cared for or reside,” Congress intended to require reports only for suspected abuse of children who reside or are cared for on federal lands or in federal facilities. Moreover, it might be argued that when the Attorney General designates an agency to receive reports for federal lands and facilities in which children are not cared for and do not reside, he is not making designations “under” subsection (d), because that provision expressly addresses designations only for federal lands and facilities “in which children are cared for or reside.” This construction of section 13031, in your view, would appropriately align the location of the


Father Father testified that Mother called the doctor around 10:00 to 11:00 a.m. on April 6, 2020 when they realized E.S. was not moving his arm normally. Father never asked Mother if something happened the night before because nothing seemed out of ordinary and there were no issues. He recalled Mother gave E.S. a bath on the evening of April 5, 2020, and that he swaddled him before E.S. fell asleep. He never questioned Mother about how E.S. was injured. Father had not heard E.S. wake up during the night. Dr. Janet Arnold-Clark Dr. Janet Arnold-Clark, a board-certified general pediatrician and board-certified <mask> pediatrician, was found by the court to be an expert in the area of general and child abuse pediatrics as well as an expert in the diagnosis and treatment of suspected child abuse. She testified the type of force required to cause this type of injury is “abusive force [or] at least more force than would be seen in normal handling.” She explained how clavicle fractures are one of the most common accidental injuries in children who are able to move on their own; but for a three-month-old child who is not mobile, the two causes for such an injury are “a direct blow to a shoulder” or “squeezing.” Dr. Arnold-Clark opined that “an injury with enough force to cause a fracture would be a very significant event. And after that significant event, the child would immediately cry, would immediately show distress; and from that point on would be in pain whenever the arm is manipulated or the area was touched.” She said that “every time you change a onesie in a three-month- old if they have a fracture, the baby will cry and be fussy. And that will let the family know that they need to seek care.” She


According to a June 4, 1973 memorandum from the Department of Social Services in support of Assembly Bill 6514A, which includes enactment of Social Services Law § 413, the Department of Social Services believed that the law is intended to address the issue of “the difficulty in obtaining an accurate measure of the [child abuse] problem.” It believed there were more instances of <mask> than reported. The objective of the new legislation was to accurately report such abuse. (Bill Jacket, L 1973, ch 1039, at 8.)


At the fact-finding hearing, the stepmother testified that on or about January 10, 1993, the victim revealed that during visitation respondent touched her rectum and vagina. As a result thereof, a call was placed to the <mask> "hotline” *751on January 14, 1993 which commenced an investigation. The caseworker assigned as a result of that investigation testified that the victim told her that her mother had touched her in the vaginal and anal areas and had inserted her finger inside of her vagina. The victim further told the caseworker that when respondent did such acts to her, it hurt.


In this case, even in the absence of the specific provisions of the Social Services Law requiring limited disclosure by the hospital and the EMT of what they reasonably believed was evidence of <mask> or maltreatment, there was a common-law obligation recognized by the Tarasoff exception for both the hospital and the EMT to make whatever disclosures would be necessary to determine if the life of the defendant’s newborn baby was in danger.


About three hours after the infant was brought to the emergency room, he was air lifted to Sutter Medical Center in Sacramento, where he would die 10 days later. The coroner's report lists the cause of death as "[n]on-accidental trauma in a child" and notes the infant "was possibly shaken." The Stockton Police Department investigated the death as a homicide and the San Joaquin District Attorney's Office charged the infant's father, one of the plaintiffs herein, with four felony counts, including <mask> resulting in death. Eventually, in May 2012, the father entered a plea of no contest to felony child abuse.


“Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly *483hears divorce, <mask> and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask is for the state to make them able . . . “There is no worthwhile institution that they would dishonor, much less destroy.” (Andersen v King County, 2004 WL 1738447, *8, 12 [Wash Super Ct, Aug. 4, 2004].) Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.


However, in a May 24, 1973 letter from the Hospital Association of New York State in support of Assembly Bill 6514A, the Association expressed reservations concerning “imposing civil liability for the damages proximately caused by failure to report suspected cases of <mask>.” The Association stated, “We are fearful lest frivolous and unnecessary litigation be initiated against hospitals and their personnel.” (Bill Jacket, L 1973, ch 1039, at 38.)


*830In support of the adoption petition, the petitioner submitted reports from the New York State Central Register of <mask> and Maltreatment and the New York State Division of Criminal Justice Services (see, Domestic Relations Law § 112 [2], [7]; 22 NYCRR 205.58), which indicated that there were no reports in New York of any criminal activity, child abuse, or child maltreatment by the petitioner. However, the petitioner could not obtain similar reports from New Jersey, since New Jersey refused to release this information to anyone except its own State agencies. In view of the petitioner’s failure to submit these reports from the State of New Jersey, the Family Court denied the adoption petition and dismissed the proceeding.


Shortly after the children were returned to mother, the Department received two <mask> emergency referrals. On June 12, 2017, it was reported that mother had disclosed that she made D.D. consume chili peppers or drink chili juice as a form of punishment for negative behavior. It was also reported that mother had reached into F.V.'s shirt to retrieve a phone and bus passes during a heated dispute. When the case carrying social worker and the emergency response social worker attempted to investigate the reported incidents, mother refused to allow the emergency response social worker in her home and did not allow them access to the children. She refused to speak to the emergency response social worker without her attorney present.


“Section 390 [of the Social Services Law] is a detailed statute, with 13 subdivisions and many more subparts, occupying 10 pages of McKinney’s Consolidated Laws. It specifies which child care providers shall be licensed and which only registered (Social Services Law § 390 [2] [a]-[c]); sets out some prerequisites for registration (id. § 390 [2] [d] [ii] [B]); requires OCFS [Office of Children and Family Services] to establish, by regulation, requirements for licensed and registered providers (id. § 390 [2-a]); provides for inspections and investigations (id. § 390 [3] [a], [d], [e] [iii]; [4] [a]); requires certain information to be available to the public (id. § 390 [8]); authorizes OCFS to prevent noncompliant providers from caring for children (id. § 390 [3] [e] [ii]); provides for denial, suspension and revocation of licenses and registrations for violations of law (id. § 390 [10]); and requires OCFS to establish civil penalties for such violations (id. § 390 [11]). Social Services Law § 389 (1) imposes criminal liability for willful violations of the provisions of the Social Services Law, including section 390. But there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of Social Services Law § 390, and would have created a private right of action against erring government agencies if it found it wise to do so. This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts (see e.g. Negrin v Norwest Mtge., 263 AD2d 39, 47-48 [2d Dept 1999]). “We addressed a similar issue in Mark G. v Sabol (93 NY2d 710 [1999]). The plaintiffs there, children alleging that they had suffered abuse or neglect in the foster homes where they had been placed by New York City child welfare officials, sought recov*993ery from the City, relying on provisions of the Social Services Law designed to protect foster children and to prevent <mask> generally. Emphasizing the detailed, comprehensive nature of the statutes the plaintiffs relied on, we rejected their claim that those statutes implied a private right of action. ‘[I]t would be inappropriate,’ we said, ‘for us to find another enforcement mechanism beyond the statute’s already “comprehensive” scheme. . . . Considering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers’ (93 NY2d at 720-721). We reach a like conclusion here.” (McLean, 12 NY3d at 200-201 [emphasis supplied].) In McLean the Court of Appeals acknowledged that this rule of law can have seemingly unfair results, by stating in relevant part: “[This] well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government’s protection.” (Id. at 204.)


In each case, the trial court must determine whether the physical or psychological well-being of the <mask> victim or witness before it is sufficiently threatened, and is thus sufficiently important, to outweigh the defendant's right to face the child abuse victim in court. ( Craig , supra , 497 U.S. at pp. 852-853, 110 S.Ct. 3157 ; Lujan , supra , 211 Cal.App.4th at pp. 1505-1506, 150 Cal.Rptr.3d 727.) A criminal defendant's constitutional right to face-to-face confrontation can never be lightly dismissed or overridden, given that it is at " 'the core of the values furthered by the Confrontation Clause.' " ( Coy , supra , 487 U.S. at p. 1017, 108 S.Ct. 2798.)


Social Services Law § 424 requires that "all” reports of suspected <mask> receive an investigation within 24 hours after receipt of the report. The city recognizes this obligation as its papers show that it is seeking to obtain 100% compliance. However, it appears from the latest report referred to above, that the city still fails to comply in a significant number of cases. Although these cases may well constitute reports showing the least risk of danger to a child, the Legislature has not given the city the option of deciding which cases to investigate though, of course, prudence would dictate that the reports that appear most serious be given priority.


Cantrell sought to impeach Ms. Claeys's video-recorded direct examination in two ways. First, Cantrell wanted to introduce the testimony of Pastor Greg Mills, who would have testified about the events that ensued after Ms. Claeys told him that her new husband was selling drugs and abusing her children. According to Pastor Mills, Ms. Claeys was hostile toward Cantrell's family after her first husband died, and she had the mistaken impression that Cantrell, rather than Pastor Mills, called the Department of Humans Services (DHS) to report the alleged <mask> and drug use. Second, Cantrell sought to introduce portions of the deposition in which she cross-examined Ms. Claeys about the contents of the report and her mistaken belief that Cantrell made the report to DHS. Applying Arkansas Rule of Evidence 608(b), the circuit court granted Toyota's motion in limine regarding Pastor Mills's testimony and denied Cantrell's request to cross-examine Ms. Claeys about the details of the report. Cantrell now argues that the circuit court abused its discretion because Pastor Mills's testimony about the events underlying the DHS report, as well as Ms. Claeys's misplaced hostility toward Cantrell, was admissible evidence of Ms. Claeys's bias against her.


“Two-thirds of reported nonfamily abductions involve sexual assault. Of the 2.4 million reported cases of <mask> in 1989, 380,000 involved sexual abuse . . . The Justice Department has reported that over 85 percent of nonfamily abductions involved force and over 75 percent involved a weapon. Of the homicides that occur from stranger abductions, almost 40 percent involved rape or another sexual offense, and those are only the cases in which the circumstances were known . . . Under the Jacob Wetterling bill, the type of crimes that would trigger the registration requirement include the kidnaping or false imprisonment of a minor . . . .” *847Representative Ramstad of Minnesota similarly commented that JWA was needed to establish a national registration system for child abductors and child molesters. (140 Cong Rec H2510-06 [Apr. 20, 1994]; see also Report by Comm on Judiciary, HR Rep No. 103-392, 103rd Cong, 1st Sess [1993] [referring to a 1990 study by the Department of Justice finding that two thirds of reported nonfamily abductions involved sexual assault].)


Deborah and Israel were the subjects of a report of suspected <mask> or maltreatment against their son. Following an investigation, it was determined that "some credible evidence of alleged abuse or maltreatment exist[ed]” and the report was marked "indicated” (Social Services Law § 412 [12]). After a lengthy fair hearing held at the Getmans’ request pursuant to section 422 (8) of the Social Services Law, the Administrative Law Judge determined that the charges of alleged abuse or maltreatment were not supported by some credible evidence as to either parent, and directed that the records be expunged from the central registry and otherwise (Social Services Law § 422 [8] [c]). Petitioner thereafter instituted this CPLR article 78 proceeding seeking to restore the indication of child abuse as against her estranged husband, Israel Getman.


A motion to dismiss one of these proceedings (“John”) is expressly based upon failure to allege that the parent “has been adjudicated” a narcotic addict in a proceeding prior to the one at bar, and that therefore the petition fails to state a 'cause of action. This motion is denied. We hold that the Legislature intended by the words “ has been adjudicated a narcotic addict ”, that the Family Court can so adjudicate in the proceeding before us. (§ 1012.) The phrase “has been adjudicated ’ ’ means adjudicated prior to our finding of <mask>, not prior to the filing of the child abuse petition herein, and therefore this petition is not premature. Preferably, section 1012 should be amended, to conform with this construction, to read “ is a narcotic addict ’ ’. This intent is evidenced, even as the article now reads, by the cognate section 1019 which provides that “ upon the filing of a petition under this article which contains an allegation that” the child’s custodian “is addicted to the use of narcotic drugs, the court shall hold a preliminary hearing to determine the sufficiency of such allegation and if the court, at the conclusion of such hearing, determines that the temporary removal of such child from his home is in the best interest of the child, an order shall be entered providing for the temporary placement of the child.” If thereafter this court must await a jury’s verdict and judgment of narcotic addiction from another court, our further proceedings would be virtually unnecessary and meaningless because under Mental Hygiene Law such persons are required to be removed from the community until they are no longer addicted. Indeed, *351section 206-b of the Mental Hygiene Law forbids that ‘ ‘ facts or proceedings relating to * * * certification or treatment of any snch narcotic addict be used against him in any proceeding in any court ’ Consequently, if Family Court cannot adjudicate the issue of narcotic addiction, no court can for purposes of child abuse. (Mental Hygiene Law, §§ 207, 208 et seq.) Moreover, a substantial number of our drug addiction petitions proceed to admissions of such allegations in open court, after appropriate warnings; surely these are cases further illustrating that Family Court final adjudications of narcotic addiction are intended to be appropriate. Several such parents asked this court for help and are now required to remain at Stuyvesant Square Residential Center of the Salvation Army for a period not to exceed 18 months; others can be considered for intake by Odyssey House, by Phoenix Centers, and other licensed establishments for residential care for this malady.


*965Regarding the state's interest in protecting child witnesses, Craig reasoned that a state's interest in " 'the protection of minor victims of sex crimes from further trauma and embarrassment,' " or in " 'safeguarding the physical and psychological well-being of a minor' " is not just an important state interest, but a " 'compelling' " one, and such interest, "may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court." ( Craig , supra , 497 U.S. at pp. 852-853, 110 S.Ct. 3157.) Craig thus held that "if the State makes an adequate showing of necessity , the state interest in protecting child witnesses from the trauma of testifying in a <mask> case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant." ( Id . at p. 855, 110 S.Ct. 3157, italics added.)


John R. LaCava, J. This is a CPLR article 78 proceeding in which petitioner seeks to have <mask> investigation records expunged from the offices of the New York State Central Register (Central Register) and the Westchester County Department of Social Services, Child Protective Services (CPS) which relate to an investigation into alleged child abuse by the petitioner against his daughter and son. Incidental to that relief, he also seeks an order prohibiting all respondents from interfering with contact and visitation between himself and his children. In relation to a prior expungement of his records, he also seeks to compel the Central Register to fully explain the circumstances surrounding that prior expungement. Lastly, petitioner seeks counsel fees.


“[defendant’s private interest, his liberty interest in not being stigmatized as a sexually violent predator, is substantial (see, E.B. v Verniero, 119d 1077, 1107 [3d Cir]; Doe v Pataki, 3 F Supp 2d 456, 469 [SD NY]). The ramifications of being classified and having that information disseminated fall squarely within those cases that recognize a liberty interest where there is some stigma to one’s good name, reputation or integrity, cóupled with some more ‘tangible’ interest that is affected or a legal right that is altered. (Matter of Lee T.T. v Dowling, 87 NY2d 699, 708 [1996] [placing petitioners’ names on Central Register of <mask> and Maltreatment foreclosed future child care employment, and. satisfied ‘stigma plus’ test] . . .).” Indeed, as our High Court had noted in Matter of Lee T.T. v Dowling,


A petition for <mask> was initiated in Family Court as to defendant’s two older children on January 17, 1995 and subsequently as to defendant’s newborn child. Understandably, a hearing on that petition, which is based solely on allegations arising out of Lucesita’s death, has been adjourned. The outcome of this case may have a significant impact on the Family Court proceeding. In any hearing pursuant to article 10 of the Family Court Act "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of * * * the respondent.” (Family Ct Act § 1046 [a] [i].) The preponderance of the evidence required for a finding that Lucesita was abused would of course be supplied by a conviction herein (see, Family Ct Act § 1046 [b]). Accordingly, the risk of a conviction here impacts not only on defendant but on her young children as well.


The possible harm to a child from a professional misdiagnosis in such circumstances has already been noted. The potential harm to the alleged abuser is equally great. In Rossignol v Silvernail (185 AD2d 497, 499), the Appellate Division, Third *572Department, referred to being labeled a child abuser as "one of the most loathsome labels in society”, and pointed out the "physical and psychological ramifications” that may be "attendant to * * * addressing, defending and dealing with” such accusations. Rossignol also noted that, once made, "such charges are difficult to escape” (supra, at 500). More recently, the Second Circuit Court of Appeals has stated that the inclusion of one’s name on the New York State Register of <mask> and Maltreatment, which identifies those reported to be suspected of child abuse or neglect, is potentially damaging to one’s reputation. By "branding [one] as a child abuser”, such listing "certainly calls into question [one’s] 'good name, reputation, honor, or integrity.’ [Board of Regents v] Roth, 408 U.S. [564], at 573 [1972].” (Valmonte v Bane, 18d 992, 1000.)


In order to seek judicial review of an administrative determination, the individual must demonstrate some direct, harmful effect and a personal interest worthy of judicial protection. As stated by the Court of Appeals in Matter of Dairylea Coop. v Walkley (38 NY2d 6, 9 [1975]): "A petitioner need only show that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute.” The main thrust of the petition herein is in the nature of mandamus seeking to compel the CPS to employ certain techniques to ascertain and "indicate” <mask>. Of course, this relief is based upon the broad assertion that CPS failed to fully comply with the statutorily imposed duty to thoroughly investigate reports of child abuse and to take any necessary action to protect the child subjected to such abuse. To a certain degree, the petition also seeks relief in the nature of certiorari, petitioner believing that the "unfounded” determination is arbitrary and capricious and not supported by substantial evidence.


A fair reading of the relevant statutes, as amended since first enacted in 1973, supports such a conclusion. This court had previously noted, "The legislative policy of precluding the physician-patient privilege in instances of alleged <mask> is so strong that a person who willfully fails to report a case of suspected child abuse shall be guilty of a Class A Misdemeanor. [Social Services Law, Section 420 (1).]” (People v Gearhart, slip opn, supra, at 5.) To that, the following indicators must also be added. First, the report required to be made by the physician must contain, among other things, the name of the suspected abuser and any statements he or she may have made. Further, the report is specifically made admissible in evidence "in any proceedings relating to child abuse or maltreatment.” (Social Services Law § 415 [emphasis added]; Agatstein, op. cit., at 124-125.) The statute also contains an immunity provision to insulate the reporter from any civil or criminal liability which might otherwise be a result of his or her report. (Social Services Law § 419.) This indicates that "reports concerning statements made by the perpetrator are contemplated, even though they would otherwise be privileged.” (State v Fagalde, 85 Wash 2d, at 736, 539 P2d, at 90, supra; see also, People v Stritzinger, supra, at 752.) Finally, access to these reports (and thus to statements, if any) is given to both Grand Juries, and District Attorneys (Social Services Law § 422 [4] [A] [f], (l] [as amended by L 1985, ch 677, § 10]). The purpose for that amendment was unmistakably stated by Governor Cuomo upon approving the Child Abuse Prevention Act of 1985: "[to] improve the ability of law enforcement officials to investigate and prosecute child abuse cases” (1985 McKinney’s Session Laws of NY, at 3315).


In addition, the letters cannot be viewed as correcting a “minor breach of school policy.” (Holt, 52 NY2d at 633.) New York City Board of Education Chancellor’s Regulation A-750 (Sept. 5, 2000) concerns reports of suspected <mask>. The regulation makes every school employee a mandated reporter and requires the employee to report suspected child abuse to the principal immediately. (Answer, exhibit 4, § 1.1.1.a.) The regulation also requires every employee to report suspected sexual abuse to the SCI, and states that: “[t]he knowing failure of an employee ... to report said misconduct is cause for removal from office or employment.” (Answer, exhibit 4, § 1.4.) Moreover, section 3.2 of the regulation states: “[u]nder Social Service[s] Law, the willful and knowing failure to report child abuse may result in criminal action or civil liability if the employee has reasonable cause to suspect it. It may also result in Board disciplinary action against the employee.” Here, both the principal’s and the SCI’s accusations that the petitioners endangered the welfare of children by failing to report alleged inappropriate touching could not only be detrimental to their careers, but also expose them to criminal and civil liability. Such serious allegations require that petitioners be afforded the due process protections available under Education Law § 3020-a. (See Civil Serv. Empls. Assn., 204 AD2d at 446 [letter that alleged sexual harassment without due process protections must *616be expunged]; see also Myers v Chester Union Free School Dist., 300 AD2d 287 [2d Dept 2002]; Jones-Hardwick v Board of Educ. of City School Dist. of City of N.Y., 2007 NY Slip Op 33768[U] [Sup Ct, NY County 2007, Acosta, J.].)


We affirm Kipple’s convictions for child enticement and for witness tampering, and we also affirm Kipple’s sentences for child enticement. We vacate Kipple’s sentence for witness tam- pering and remand the cause for further proceedings. BACKGROUND Kipple’s convictions were based on allegations that he invited two girls under the age of 14 into his home, specifically his bedroom, and took photographs of them wearing swimsuits provided by him. The girls testified that they did odd jobs around Kipple’s home and were paid in cash and gifts and that eventually, the performance of these odd jobs also included posing for photographs. These accounts were corroborated by the testimony of a third girl that said the same thing had hap- pened to her. Kipple was originally charged with four counts of pos- session of a visual depiction of sexually explicit conduct, 1 one count of <mask>, 2 and one count of tampering with a witness. 3 Kipple’s motion to suppress the photographs and videos that provided the basis for the charges against him was granted. Thereafter, Kipple was charged with two counts of crimi- nal child enticement 4 and one count of witness tampering. Following a jury trial, Kipple was convicted. He was sentenced to 12 to 12 months’ imprisonment for each child enticement conviction and 12 to 60 months’ imprisonment for the wit- ness tampering conviction, with the sentences to be served consecutively. No direct appeal was filed. Kipple then retained counsel that filed a motion for postconviction relief, alleging the inef- fectiveness of counsel in failing to file an appeal, as well as Neb. Rev. Stat. § 28-813.01 (Supp. 2015). Neb. Rev. Stat. § 28-707 (Reissue 2016). Neb. Rev. Stat. § 28-919 (Reissue 2016). Neb. Rev. Stat. § 28-311(1)(b) (Reissue 2016). - 658 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654


Based on their investigation and review of these findings with the District Attorney, the arresting officers could not be said to have acted without reasonable cause simply because the legal requirement of a finding of in loco parentis was required to support a conviction for the crime charged. In analyzing the facts on this issue, we must remember, based on the autopsy report, that the arresting officers had information indicating that the deceased child had also been physically injured. The report stated that "[r]eactive new bone of left humerus and 4th and 5th left ribs signifies response to previous bony injury” (see, exhibit B). No explanation of these injuries was provided either by the mother or by claimant. Certainly, reasonable cause is heightened by these facts especially when claimant refused to answer questions in order to protect himself. If these injuries were caused by claimant, it follows that in loco parentis would not be a necessary element in establishing the crime of <mask> (see, People v Stanley, 135 AD2d 910, 911; Penal Law § 260.10 [1]). There is no question but that claimant held himself out as the deceased child’s mother’s "significant other”, which could also lead a reasonable person to believe that such commitment also caused to exist some duty to the mother’s children who shared with claimant a common household, at least for being aware of the starving child’s plight and take some action to avoid the inevitable consequences from nonaction. In analyzing reasonable cause, can we not, as reasonable people, say that nonaction, under the present circumstances, arises to a finding of behavior which would likely be injurious "to the physical * * * welfare of a child” (Penal Law § 260.10 [1]). In loco parentis need not be established for a conviction based on violation of said provision (see, People v Stanley, 135 AD2d, supra, at 911).


The respondent contends that the petitioner, as a person reporting an allegation of <mask>, is not a person that the statutes seek to protect and, thus, has no standing to pursue any judicial review of the CPS determination. Petitioner argues that as the mother of a child suspected of being the subject of child abuse and a person directly concerned with the welfare of the child, she has an inherent interest in the determination of the report and may be an aggrieved person due to the result of the determination.


The record evidence, which included the hearing testimony and the progress notes of the investigating caseworker, established that, on October 25, 2018, a report was made to the Central Register of <mask> and Maltreatment stating that petitioner was refusing [*2]to allow the child — who was then 16 years old — into the home. The next day, a DSS caseworker spoke by phone with petitioner, the child's older sister and the sister's next door neighbor. At that point, it was disclosed that the child left petitioner's home in the summer of 2017, when she was 15 years old, and moved in with the sister. The sister and the child relocated to Fair Haven, Vermont in early 2018. The sister explained that the child left her home the week before, after she confronted the child over concerns of promiscuous behavior and the use of marihuana. The child then stayed with a friend for a few days but, after an argument, moved in with the neighbor.


Furthermore, during summation the prosecutor made remarks which included vouching for the credibility of the People’s medical expert (see, People v LaDolce, 196 AD2d 49, 57) by characterizing him as a "responsible expert”, reference to defendant’s failure to offer any medical evidence, which impermissibly tended to shift the burden of proof to defendant (see, People v Poladian, 189 AD2d 911, 912, lv denied 81 NY2d 891), and appeals to the jury "to send a message [to the community]” and "to do their duty for <mask> victims”, comments which tended to lead the jury away from the issues (see, People v Ashwal, 9 NY2d 105, 110).


such reports are received by social services or health care agencies, and involve allegations of sexual abuse, serious physical injury, or life-threatening neglect of a child, there shall be an immediate refer- ral of the report to a law enforcement agency with authority to take emergency action to protect the child. All reports received shall be promptly investigated, and whenever appropriate, investigations shall be conducted jointly by social services and law enforcement personnel, with a view toward avoiding unnecessary multiple inter- views with the child. Consistent with this directive, the Attorney General has issued a regula- tion designating the agencies authorized to receive and investigate reports of <mask> submitted under section 13031(a). That rule, which appears as 28 C.F.R. § 81.2 (2010), provides: Reports of child abuse required by 42 U.S.C. 13031 shall be made to the local law enforcement agency or local child protective ser- vices agency that has jurisdiction to investigate reports of child abuse or to protect child abuse victims in the land area or facility in question. Such agencies are hereby respectively designated as the agencies to receive and investigate such reports, pursuant to 42 U.S.C. 13031(d), with respect to federal lands and federally operated or contracted facilities within their respective jurisdictions, provided that such agencies, if non-federal, enter into formal written agree- ments to do so with the Attorney General, her delegate, or a federal agency with jurisdiction for the area or facility in question. If the child abuse reported by the covered professional pursuant to 42 U.S.C. 13031 occurred outside the federal area or facility in ques- tion, the designated local law enforcement agency or local child pro- tective services agency receiving the report shall immediately for- ward the matter to the appropriate authority with jurisdiction outside the federal area in question. Att’y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996). Under section 13031, “the term ‘child abuse’ means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1). Section 13031 further explains that “the term “sexual abuse” includes the employment, use, persuasion, induce- ment, enticement, or coercion of a child to engage in, or assist another


In child protective proceedings, by logical extension of the doctrine, it is also the function of the trial court to determine not only whether neglect or far more serious <mask> exists but that it is likely to exist. The court sitting as parens patriae cannot be limited in these types of proceedings to conditions *698already existing or which has happened in the past. Indeed this court could not be fulfilling its proper function if it limited its necessarily broad sweeping horizon of child health, safety and welfare to the past and present situation only when the warning flags from the storms of abuse and neglect are still flying, and to borrow and paraphrase a familiar saying from another branch of the law, there is abundant evidence of a “ clear and present danger ” to children. (Schenck v. United States, 249 U. S. 47, 52.)


“During the investigation it was discovered that since Ms. Theroulde had two prior indicated cases in 1997 and 1998, she shouldn’t have been licensed as a Day Care Provider in 1999. Also, in this current case, Ms. Theroulde used a lack of judgment by placing Briana on a bed instead of a crib, where she would have been more secured. Also, her shaking the baby cause [sic] further damages in addition to the fall off the bed. Ms. Theroulde’s lack of supervision and inadequate guardianship caused Briana to sustain serious internal head injuries. OCI recommends that Ms. Theroulde’s Day Care Center be closed down to prevent any more children from being abused or maltreated.” (Appell aff in opp, exhibit 6.) Plaintiffs commenced the instant action in or about September 2000, asserting, among other things, that the City was negligent by issuing a registration certificate to defendant Theroulde’s day-care facility despite prior incidents of <mask> and maltreatment, and by including the day-care facility on a list provided by ACS to Ms. McLean (Shakeri aff in support, exhibit B).3


federally operated (or contracted) facility” who are engaged in certain activities—individuals the statute calls “[c]overed professionals”—to report suspected incidents of <mask>. 42 U.S.C. § 13031(a)–(b) (2006). Specifically, section 13031(a) provides that [a] person who, while engaged in a professional capacity or activity described in subsection (b) of this section on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, shall as soon as possible make a report of the suspected abuse to the agency designated under subsection (d) of this section. 1 Section 13031(d) directs the Attorney General to designate the agency or agencies to which the reports described in subsection (a) should be made. It states: For all Federal lands and all federally operated (or contracted) fa- cilities in which children are cared for or reside, the Attorney Gen- eral shall designate an agency to receive and investigate the reports described in subsection (a) of this section. By formal written agree- ment, the designated agency may be a non-Federal agency. When


Likewise, in State v. Snow , 437 S.W.3d 396 (Mo. App. S.D. 2014), the court found evidence sufficient to support a defendant's conviction of first-degree <mask> where a child suffered a head injury which a physician testified was not the result of accident or rough play, and the defendant told law enforcement that "the only persons present in the home when [the child] was injured were Defendant, Mother, and Mother's two [infant] children." Id. at 401. In Snow , as in Ashcraft , the Court concluded that the evidence was sufficient to support a conviction for abuse of a child, despite a lack of direct evidence connecting the defendant with the crime. Id. at 402.


The statutory language in the relevant sections of the Social Services Law, together with the legislative history and intent behind their enactment and subsequent amendments, make it abundantly clear that the main thrust , of these laws has been to increase the awareness and remediation of <mask> and neglect, a problem which inexorably alters the lives of innocents and debases our society as a whole. However, it is also clear that, in our attempt to increase vigilance and decrease the incidence of child abuse, some individuals and families have been made to suffer anguish, humiliation and loss of respect and even jobs in some instances, by baseless complaints lodged by individuals with personal agendas totally unrelated to their concern for a child’s safety or welfare.


The word “expunge” does indeed have a plain and ordinary meaning. Although described above, if a further definition is needed, it may be found in Black’s Law Dictionary 522 (5th ed 1979), where it defines “expunge” as follows: “To destroy; blot out; obliterate * * * efface designedly; strike out wholly. The act *627of physically destroying information — including criminal records — in files, computers, or other depositories”. Accordingly, the court holds that when the Society expunged the unfounded reports of suspected <mask> they were in effect destroyed. Therefore, since the records now sought are considered to have been destroyed, they are no longer available to the parties for their use in the instant action. Nor may the defendant father attempt to recreate the records by deposing the Society’s investigator, inasmuch as that would constitute an impermissible circumvention of the express purpose of the statute (see, Memorandum of Assemblyman Albert Vann, 1981 NY Legis Ann, at 308).


More persuasive is the People’s reliance on Social Services Law § 415 which requires immediate “[r]eports of suspected <mask> or maltreatment” from persons or officials required to make such reports (i.e., “mandated reporters” such as physicians, registered nurses, emergency medical technicians, and hospital personnel engaged in the admission, examination, care or treatment of persons [Social Services Law § 413 (1)]). Social Services Law § 415 also states that


HDWC is authorized to operate, supervise, assist and provide foster care services in the City of New York. Defendant Administration for Children’s Services (ACS) is responsible for the child welfare divisions of the Human Resources Administration/Department of Social Services in the City of New York. The agency was previously known as the Child Welfare Administration. It is responsible for the investigation of <mask> complaints and for the removal of children and placement in protective custody. A foster care placement and temporary discharge of custody to a parent was monitored by *896HDWC (or another foster care agency under contract with the City), and a child permanently placed back into the custody of a parent, post-foster care, was monitored by ACS.


Section 419 does, however, apply to the City’s investigation of <mask> complaints against plaintiff’s mother. Regardless, there are issues of material fact regarding whether the City’s caseworkers committed gross negligence or willful misconduct in their handling or mishandling of plaintiffs case, which would override the claim of statutory immunity. (See Van Emrik v Chemung, 220 AD2d at 953.) Starting with the fact that one of the City’s caseworkers was disciplined for his failure to remove the children, the record submitted by the City, scanty as it is, paints the picture of an overburdened and disorganized agency that failed to protect plaintiff and her siblings. The court cannot decide as a matter of law, based on the record submitted by the movant, that the City’s failure did not result from gross negligence or willful misconduct.


In August of 2019, the DHHR filed a <mask> and neglect petition alleging that the mother abused and neglected then-one-year-old twins, M.M.-1 and T.M. The DHHR alleged that the mother abused controlled substances during her pregnancy with the twins and then left the children in the care of an inappropriate guardian. The DHHR made no allegations that petitioner had abused or neglected the children. In December of 2019, the mother gave birth to S.M. That child remained with the parents until the DHHR amended the petition in March of 2020. In the


The respondents hereunder are not therefore criminal defendants as would require the reasonable doubt standard of proof applicable in criminal cases or in juvenile delinquency cases in the Family Court. By definition, under the Family Court Act, an act of juvenile delinquency is one which would constitute a crime if committed by an adult. A finding of neglect or <mask> is not a crime under article 10 of the Family Court Act. If and when the respondents become criminal defendants by operation of section 1014 of the Family Court Act, which allows the Family Court to transfer any proceedings originated under this article to an appropriate criminal court or to the appropriate District Attorney if it concludes, upon a hearing, that the processes of the Family Court are inappropriate or insufficient, the respondents will be entitled to the constitutional guarantee applicable to a criminal proceeding including the standard of proof beyond a reasonable doubt. The respondents’ contention that the mere possibility of referral from the Family Court to the criminal court requires the application of reasonable doubt standard, is legally untenable.


Here, it was within the jury's purview to resolve credibility issues and the issue of whether Greg's injuries were the result of <mask> or a medical condition. "A child's unexplained, non-accidental fractures of various ages support a reasonable inference that the child's caregivers knew of the injuries and their cause." In re L.M.M. , 522 S.W.3d 34, 45 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (quoting In re J.D. , 436 S.W.3d 105, 114 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ). According to Reeder, Greg had suffered, at a minimum, three different incidents of abuse while in the care of Mother and Father. Further, while there was conflicting testimony on the issue of nutritional neglect, Reeder testified that Greg gained weight soon after his removal, which indicated that he was failing to thrive as a result of nutritional neglect. We conclude that the evidence referenced above was sufficient for a jury to form a firm belief or conviction that Father engaged in conduct or knowingly placed Greg with persons who engaged in conduct which endangered his physical well-being. See In re J.D. , 436 S.W.3d 105, 114, 116 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (finding evidence sufficient under Ground E where (1) the child sustained two fractures at different times when in the parent's care, (2) the injuries were not accidental, but were caused by extreme force, (3) bone disease was ruled out, and (4) the parent was the primary caretaker, because the child would have screamed in pain so that the caretaker should have been aware of the injury); see also In re J.P.B. , 180 S.W.3d 570, 573-74 (Tex. 2005) (per curiam) (discussing Ground D).


L.B. contends the section 300, subdivision (j) finding is not supported by substantial evidence because: (1) the parents' past use of corporal punishment on Jordan does not support a reasonable inference D.B. was at substantial risk of serious physical harm; (2) there is no evidence to show the parents had ever inappropriately disciplined or physically harmed D.B.; (3) the parents admitted error, were remorseful, and had learned effective parenting techniques and addressed <mask> issues through services; (4) the parents did not begin using corporal punishment on Jordan until he was five years old and they hit him only a total of 10 times; (5) D.B. was not at risk because he would not be the same age as Jordan was when the abuse started for more than three years; and (6) there were no other risk factors in the home.


The text of section 13031(a) imposes a reporting duty on a covered professional “who, while engaged in a professional capacity or activity described in subsection (b) . . . , learns of facts that give reason to sus- pect that a child has suffered an incident of <mask>.” “[C]hild abuse,” in turn, is defined as “the physical or mental injury, sexual abuse or ex- ploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1). The statute further provides that “the term ‘sexual abuse’ includes the employment [or] use . . . of a child to engage in . . . sexual exploitation of children,” and that “the term ‘exploitation’ means child pornography or child prostitution.” Id. § 13031(c)(4), (6). Under these definitions, cov- ered professionals must report suspected abuse if they learn of facts giving reason to suspect that a child “has suffered an incident of [em- ployment or use to engage in child pornography],” 7 or “has suffered an incident of [child pornography].” Although section 13031 does not define the term “child pornography,” it is defined elsewhere in the U.S. Code as any visual depiction, . . . whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—


The defendant father subsequently made another report of <mask> allegedly committed by the mother. Specifically, the father alleged that the mother left one of the children alone for two hours. This report was also investigated by the Society, but it, too, was held to be unfounded. The Assistant Attorney-General appearing for the Department of Social Services has submitted an affidavit averring that the litigants will receive a similar letter from the Department advising them that the second investigatory report will also be expunged, if it has not already been done.


Due to the prior <mask> and neglect proceeding in J.L., the circuit court heard respondent father’s appeal from the DVPO’s denial. At a February 10, 2021, hearing, J.L.-1 testified that, on January 25, 2021, petitioner mother “threatened to either kill herself or just kill me” and that petitioner mother “threaten[ed] to use a gun.” J.L.-1 further stated that she was afraid to be at petitioner mother’s home. The circuit court offered petitioner mother the opportunity to cross-examine J.L.-1, but she declined to do so. The circuit court asked J.L.-1 if she believed that it was also unsafe for J.L.-2 to live with petitioner mother. J.L.-1 indicated that it was unsafe for both herself and her brother.


Both sentences of Social Services Law § 419 must be read in pari materia with Social Services Law § 420 and in context as component parts of Social Services Law, article 6, title 6 (Child Protective Services). Title 6 is a comprehensive framework providing for the reporting and investigation of <mask> and placement, care and treatment of children. Section 419 is a general immunity provision. Section 420 is the only section specifying conduct to which immunity does not attach. Social Services Law § 420 imposes civil and criminal liability for knowing and willful failures to report child abuse or maltreatment.7 Social Services Law § 420 uses the same “[a]ny person, official or institution” language as Social Services Law § 419. This parallelism confirms that Social Services Law § 420 is a specific statutory exception to Social Services Law § 419, and demonstrates the breadth of immunity granted by Social Services Law § 419. Social Services Law § 420 evinces a legislative recognition that, absent a distinct, specific, limited enactment, no private right of action for money damages exists from the good faith job performance of anyone involved in statutory child care activities.8 The good faith requirement means that Social Services Law § 419 immunity is qualified, not absolute; the presumption effectively frees the subject person, official or institution from having to prove good faith.


On July 11, 2017, the Department filed separate supplemental petitions under section 387 to remove the children from mother's custody. The *989petitions alleged the above-described <mask> referrals, and also alleged that mother refused the Department access to the children to investigate, prevented the Department from completing face-to-face intensive supervision visitation with the children, and terminated court-ordered case plan services for the children. The petitions further alleged that mother failed to report her arrest for driving under the influence and that she transported F.V. without proof of a valid driver's license.


*852The CPS records at issue herein might or might not contain information regarding the crime with which the defendant is charged. However, to rule that their use for purposes of investigating or prosecuting is precluded would render the Penal Law useless. For example, it would be ludicrous to maintain that even though an investigation revealed no <mask> occurred and, therefore, the report was categorized as unfounded, if the subject of the investigation was found to have committed another crime, he or she would be immune from legal consequences because the evidence in those records could not be accessed. To come to such a conclusion would be tantamount to holding that the Legislature enacted laws and then proceeded to create impediments to their enforcement, thus rendering them a nullity.


Dr. Sandra Murray, a pediatrician specializing in <mask> pediatrics, also opined that Savannah's injuries were not accidental. She testified that Savannah weighed 9 pounds, 12 ounces at the time of the autopsy and that Savannah had lost weight during the six weeks before her death. Dr. Murray opined that the failure to take Savannah to a doctor to address her weight loss contributed to her death.


Due process further requires a review procedure should the child’s representative wish to request a review. The procedure would have to provide the opportunity to be heard in person and to present evidence to a neutral hearing body or officer with a written statement of determination to be provided in a timely manner by the hearing body or officer indicating the basis of the decision rendered (see, Morrissey v Brewer, 408 US 471 [1972]). There is no reason alleged victims of <mask> should not have rights similar to those accorded alleged perpetrators of child abuse or alleged parole violators.


Significantly, after the plaintiff child was seriously injured, when ACS investigated defendant Theroulde’s maltreatment of Briana, ACS concluded that DOH should not have renewed the registration of defendant Theroulde’s day-care facility in February 1999, given that two prior “indicated” incidents of <mask> and maltreatment had been reported against her in 1997 and 1998 (Appell aff in opp, exhibit 6). It is undisputed that DOH had received written notice from ACS of the September 1998 incident of child maltreatment by defendant Theroulde prior to renewing her registration as a family day-care provider.


As further illustration, we note that the Maryland Pattern Jury Instructions omit alternative elements for misconduct in office. MPJI-CR 4:23 (2021). While not binding on this Court, the Pattern Jury Instructions seek “to make [jury] instructions as accurate statements of the law as possible[.] . . .” MPJI-CR intro. (2021). When this Court recognizes alternative elements of a crime, the Pattern Jury Instructions generally place these alternative elements in brackets. MPJI-CR intro. (2021). For example, this Court in Twigg v. State, 447 Md. 1, 13, 133 A.3d 1125, 1133 (2016), recognized that the <mask> statute has alternative elements. Accordingly, the Pattern Jury Instruction for the crime of child sexual abuse lists the alternative elements in brackets: “that the defendant sexually abused (name) by acts or attempted acts including [rape] [incest] [sodomy] [other sexual offense] [unnatural or perverted sexual practices] [sexual exploitation] [sexual molestation][.]” MPJI-CR 4:07.2 (2021). misconduct in office] have been used, such as, official misconduct, misbehavior in office,


In support of his contention that sections 413 and 415 of the Social Services Law do not, and were never intended to, carve into the privileged communications statutes an exception for <mask> cases, the defendant has submitted an affirmation and memorandum of law by his attorney, Michael G. Dowd, Esq., and an amicus curiae brief from the New York State Association of Criminal Defense Lawyers1 (by Jonathan C. Scott, Esq.). Through those submissions, the defendant argues: (1) that, in People v Bass (140 Misc 2d 57 [Sup Ct, Bronx County 1988]), Justice Irene J. Duffy specifically ruled that Social Services Law § 413 does not limit the physician-patient privilege in criminal cases (whereas, in People v Gwaltney [140 Misc 2d 74 (Sup Ct, Queens County 1988)], a case cited by this court in its prior decision herein, "the issue of privilege was never raised”); (2) that, exceptions to the long-standing and wide-ranging physician-patient privilege in New York must be specifically created by the Legislature, and not by the courts through radical statutory interpretation or judicial fiat; (3) that, the admission of a physician’s testimony in a criminal case involving child abuse is against public policy in that it would prevent treatment by health care professionals of persons who could be prevented by that intervention from again *251committing an act of abusing a child. It is asserted that, the ultimate effect of this court’s prior holding will be to transform those best able to prevent further acts of child abuse (physicians, psychiatrists, psychologists, and social workers) into key prosecution witnesses, and thereby prevent those child abusers who are "aware of the law” from seeking psychiatric or other help, and will force attorneys representing clients accused of child abuse to advise those clients "to not seek medical or psychiatric help”; (4) that, a statutory duty to report suspected child abuse to some social services agency is, and was intended by the Legislature to be, distinct from the evidentiary privilege applicable in a judicial proceed- ' ing. It is argued that the Legislature intended that the privilege would not be applicable only to child protective proceedings under the provisions of the Family Court Act (see, Family Ct Act § 1046 [a] [vii]). This interpretation, it is contended, is the proper one because, inter alia, the true purpose for the enactment of the Child Protective Services title of the Social Services Law was to provide a method of interdiction through which an allegedly abused or maltreated child can be quickly removed from harm’s way; it was not meant to provide a vehicle for the criminal prosecution of the alleged abuser (see, Social Services Law § 411; mem of Attorney-General, May 3, 1979, re: L 1979, ch 81); and (5) that, constitutional due process is violated by suspension of the physician-patient privilege, in that "unsuspecting targets of the State” will be seeking medical or psychiatric help from "a health care professional turned quasi-police agent”.


"At the time Assembly Bill 2124 was drafted, multiple diversion programs and one deferred entry of judgment program already existed. The best known of these programs are deferred entry of judgment and pretrial diversion programs for defendants accused of specified narcotics-related offenses. (§§ 1000-1000.[6].) Other programs include: (1) diversion for individuals suspected of physical <mask> or neglect (§ 1000.12); (2) diversion of defendants with cognitive developmental disabilities (§§ 1001.20-1001.34); (3) diversion of suspected traffic violators, commonly referred to as 'traffic school' (§ 1001.40); (4) diversion for individuals suspected of writing bad checks (§§ 1001.60-1001.67); diversion for parents suspected of contributing to the delinquency of a minor in violation of section 272 (§§ 1001.70-1001.75); and (5) diversion for members of the United States military who might be suffering from service-related mental health issues (§ 1001.80). In addition, the Legislature authorized counties to create a general misdemeanor diversion program. (§§ 1001.50-1001.55.)" ( People v. Superior Court (Sanchez-Flores) (2015) 242 Cal.App.4th 692, 696, 195 Cal.Rptr.3d 414.)