CPS role in Thomas Valva case prompting some rethinking of confidentiality laws

ALBANY — Long ago, state confidentiality laws were put in place for good reasons to shield some child-abuse investigative materials from public disclosure because of a disturbing trend of phony allegations.

Too often, vicious divorce and child custody battles, or even neighborhood disputes, triggered someone to phone in a fabricated child abuse claim that could damage a parent’s legal rights, job prospects or public reputation.

But the horrific death of 8-year-old Thomas Valva has some family law experts and state legislators rethinking confidentiality in some circumstances.

The Valva case, they told Newsday, triggers questions about whether statutes meant to protect parents’ privacy go too far in shielding social service agencies from accountability.

“This is the epitome of a case where you see how (the law) backfires,” said Dale Margolin Cecka, director of the Family Violence Litigation Clinic at Albany Law School.

Thomas Valva died of hypothermia in 2020 after his father and his father’s fiancee forced him to sleep in the Center Moriches garage in subfreezing temperatures. The adults were subsequently convicted of murder.

Long before Thomas Valva’s death, school officials had filed multiple suspected abuse reports with Child Protective Services — which failed to step in, even after he told a teacher he was sleeping in the garage.

Instead, Child Protective Services deemed the reports unfounded, a designation which kept them sealed and unavailable for review by a grand jury empaneled to look at CPS actions in the case.

Last week, the grand jury recommended no charges but said caseworkers shielded themselves from public review of “their own inaction” — and potential criminal charges — because of confidentiality laws.

Experts told Newsday the protections for sealing “unfounded” reports have been in place for a long time because of the disturbing trend of fabricated allegations.

Even if deemed unfounded, public disclosure of an allegation could be damaging to a parent.

“There are huge ramifications on people’s lives if the reports are phony,” said Melissa Cavagnaro, a Buffalo attorney who sits on the New York Bar Association’s Family Law Section executive committee.

History shows there’s been an abundance of “overreporting” of allegations, Cavagnaro said. Further, the volume of “indicated” — which is the opposite of unfounded — appeared to disproportionately impact minorities and families who earn below the poverty line, she said.

If anything, the recent trend has been to add privacy protections. In 2021, for example, the State Legislature changed the standard of evidence for CPS to designate a report as “indicated” from merely “some credible evidence” to a “fair preponderance of evidence.”

This means an “allegation will be indicated only when it is determined that the evidence indicates it is more likely than not true. Unless that happens, the report will be unfounded and automatically sealed,” according to a New York University School of Law study.

“New York is rather the exception in the very strict sealing of records in these cases,” Cecka said. “The reasoning, which I generally support, is there is a lot of overreporting. People don’t realize how often CPS is used as a tool, especially in child custody cases and domestic violence” cases.

There are some exceptions to sealing unfounded reports, but those generally apply to investigations of the alleged abusers, not of CPS itself, Cecka said.

Suffolk County District Attorney Ray Tierney said sealing prevented the grand jury from examining how CPS handled the Valva case. Cecka agreed.

“There’s hardly a time when I agree with a DA, but in this case the law really left him with nothing he could do,” Cecka said. “The law is written to protect the privacy of parents, which I really believe in, but I also believe there has to be accountability for CPS. This (law) is written so you can’t penetrate (CPS) and it makes them completely opaque.”

Michael Belsky, a veteran family law attorney in Albany, said a review of the unfounded reports could determine if CPS visited a scene every time it was supposed to, wrote up a risk assessment and reviewed it with a supervisor — as required. But in his experience, he said, determinations of “indicated” or “unfounded” seem to vary by locale — as does caseworker training.

“It’s county by county, workers apply different standards to how they’re going to determine founded or unfounded,” Belsky said.

Building on a Tierney suggestion, Sen. Dean Murray (R-East Patchogue) told Newsday he’s drafting legislation to carve out some exception to allow a grand jury or law enforcement access to all reports in a child abuse investigation.

“I understand the concept on not wanting to shame someone for something in an unfounded report,” said Murray, the ranking Republican on the Social Services Committee. “But there has to be some common-sense middle ground. Investigators should have access to all the materials. When things are sealed, it’s too easy to hide things. And I’m not saying that’s what happened in this case because we don’t know, but it’s too easy to hide.”

Cavagnaro countered that a broad opening of reports would be an error. The Valva case was “terrible,” but an “anomaly,” she said.

“I don’t think that just opening unfounded reports is the answer,” she said. “The workers have more cases than they should. They may or may not have enough training or supervision. So if anything changes in Albany, it should be more investment in caseworkers.”

By Yancey Roy

yancey.roy@newsday.com@yanceyroy