Suffolk grand jury could bring criminal charges against CPS workers in Thomas Valva child-abuse case

The special Suffolk County grand jury investigating why Thomas Valva was killed could bring criminal charges against or recommend terminations of county employees who received dozens of reports that the 8-year-old was suffering severe abuse yet allowed him to continue living with the couple later convicted of murdering him.

Besides investigating how Suffolk Child Protective Services employees handled the case, the grand jury also might look at the overall functioning and practices of CPS, and recommend improvements or reforms to the agency, said Janet Albertson, former chief of the homicide bureau of the Suffolk District Attorney’s Office.

Thomas froze to death on Jan. 17, 2020, after his father, then-NYPD Officer Michael Valva, and the father’s fiancee, Angela Pollina, forced him and his 10-year-old brother, Anthony, to spend the night in their Center Moriches garage, which was unheated, when temperatures outside had plunged to 19 degrees.

After Thomas' death, the county promoted three of the CPS employees who played key roles in investigating abuse allegations, and the union representing CPS employees said it was unaware of any agency workers being disciplined.

Suffolk County District Attorney Ray Tierney, whose office requested the grand jury and is guiding the investigation, would determine whether indictments against CPS employees are warranted and, if prosecutors believe they are, ask the grand jury to vote whether to indict, said Fred Klein, former chief of the major offense bureau of the Nassau County District Attorney’s Office and a visiting assistant professor of law at Hofstra University in Hempstead. Grand jurors also could ask prosecutors whether indictments are appropriate, he said.

Tierney, through his spokeswoman, Tania Lopez, declined to comment.

Klein said if prosecutors show that CPS workers "knew there was a substantial risk that that kid was going to be killed, and they just disregarded that risk, that could be a crime. It's a very high standard. Reasonable people could differ as to risks, and the substantial nature of the risk.”

Charges could be as serious as criminally negligent homicide or, if CPS employees' actions were deemed reckless and "a gross deviation from what a reasonable person would do," second-degree manslaughter, he said.

"It's a very high bar," Klein said.

In a grand jury, the votes of 12 of the 23 members are needed for indictment.

Albertson believes indictments are unlikely, because “if they had enough to charge any of these people criminally, they would have done that a long time ago.”

Klein said the grand jury also could stop short of indictments but recommend employees’ terminations or other discipline “for conduct amounting to misconduct, malfeasance or neglect in their duties, even if this does not amount to a crime.”

DA: 'A comprehensive investigation'

Retired Suffolk County Judge William Condon, who presided over Michael Valva's trial, said it’s up to Tierney and the grand jury whether to single out individual CPS employees’ actions, but, he said, “Something like this does not happen unless either there was malfeasance or there was just lack of professionalism.”

Anyone criticized in the report has the right to review and respond to the criticism before the report's release, he said.

Tierney has said little about the probe, other than it would be “a comprehensive investigation into how this happened and maybe ways in which we can ensure that something like this never happens again,” and that “we’re going to make recommendations from those findings.”

His office obtained the convictions of Valva and Pollina for second-degree murder and endangering the welfare of a child. Condon in December sentenced Valva to 25 years to life in prison. Pollina received an identical sentence in a separate trial.

The grand jury investigation is one of several that were promised into Thomas' death.

The state completed its probe in early 2021 but won’t release results to the public, and other investigations, by the county legislature and the state court system, either stalled or never began.

The grand jury, as “an arm of the court,” has key advantages other investigative entities do not, including the ability to subpoena witnesses, who are required by law to appear before a grand jury, Albertson said.

“You can’t compel somebody to come to your office to talk to you,” she said. “But you can compel them by virtue of a subpoena to produce documents or property, or to offer testimony.”

Condon said the grand jury would want to hear testimony from CPS employees who received and reviewed reports that Thomas was being abused, from attorneys appointed by courts to represent the interests of Thomas and his two brothers, and perhaps from Thomas’ brothers and mother, and Pollina’s daughters, and from judges in custody and visitation cases. 

Condon said calling as witnesses Anthony or Thomas’ other brother, Andrew, or one or more of Pollina’s three daughters, who lived with Thomas, could be “tricky.”

“If they’re still minors, you don’t want to do further harm,” he said.

But, said Condon, who as a Suffolk sex-crimes prosecutor had child victims testify before grand juries, “If it’s important to the investigation, if it’s crucial, then you may decide” that the benefit of the children’s testimony outweighs the potential for a negative impact on them.

Condon said there may be no need to go into graphic detail of Thomas’ suffering.

“I don't think that DA Tierney is looking to retry the Valva and Pollina cases,” he said. “So, for instance, what the kids may have seen and heard on the day Thomas died, or even the days leading up to it, I don't know what value that may add to the investigation. However, they met with members of Child Protective Services. Their testimony, their observations about what questions were asked to them by CPS, and what answers they gave, might very well be germane to the investigation.”

Jurors cannot discuss testimony publicly

Unlike a criminal trial, which is public, grand jury proceedings are secret, and jurors and prosecutors cannot publicly discuss testimony and other matters, said Ian Weinstein, a professor in the Fordham University law school in Manhattan.

In New York, people subpoenaed to appear before a grand jury have immunity from prosecution for anything they say, unless they waive immunity, Klein said.

But, he said, although it’s not a crime to lie to a police officer or prosecutor outside the grand jury room, witnesses who lie before a grand jury can be prosecuted for perjury.

A witness who waives immunity can decline to answer questions by asserting a Fifth Amendment right against self-incrimination, Weinstein said. But someone with immunity must answer questions or risk being charged with contempt of court, the same charge for not showing up before a grand jury when subpoenaed, he said.

In addition to subpoenaing witnesses, the district attorney’s office can subpoena documents from CPS, the family court system — which in 2017 transferred custody of Thomas and his brothers from their mother, Justyna Zubko-Valva, to Valva — and other government agencies, Albertson said.

CPS and other agencies may seek to quash a subpoena, arguing that records should not be released because of privacy or other concerns, she said. The judge assigned to the grand jury would then rule whether to compel the release of the documents, Albertson said.

Documents presented to grand juries are sealed and not released publicly.

Suffolk spokeswoman Marykate Guilfoyle said in an email that the county “would comply with any requests and subpoenas to the extent permitted by law,” but declined to say whether it has turned over documents or planned to do so, or whether it would challenge any subpoena. The county in the past has argued that state law makes CPS documents confidential.

The New York Office of Children and Family Services, which conducted the state investigation into Thomas’ death and has access to other records in the case, also would comply “to the extent required by law,” spokesman Solomon Syed said.

Grand jury reports highly detailed

Special grand jury reports typically are highly detailed, and “there’s a sense of greater legitimacy” to their findings because they are conclusions of random citizens who “bring a different perspective from the insiders,” such as prosecutors, Weinstein said.

The Valva grand jury is the second in six years to investigate how CPS and its parent agency, the Suffolk Department of Social Services, protect children.

An 83-page Suffolk grand jury report released in 2017 said lack of coordination among Suffolk, New York City and state child-welfare agencies helped lead to the sexual and other physical abuse of dozens of foster children.

Other previous Long Island special grand jury reports include a 180-page 2003 document that concluded that local Catholic Church officials concealed priest sexual abuse of Long Island children, a 156-page 2016 report on limousine safety following a crash that killed four women, and a 55-page 2019 document on illegal dumping. All the reports included recommendations for new laws or rules.

The district attorney requests a judge impanel a special grand jury, and prosecutors write the final report. But the grand jury must approve the findings, Condon said. Grand juries can meet for months, usually a few days a week, he said.

Tierney declined through his spokeswoman to say when the grand jury first convened and how long it is scheduled to meet.

Condon believes it will be a lengthy process.

Albertson said the grand jury may take “a very critical, very in-depth look at exactly how that agency [CPS] functions, and how they functioned with respect to this incident.”

One result, she said, may be to recommend changes “in order to make the agency better, and to ensure that a death like this doesn't happen again.”