A Critical Examination of State Agency Investigations into ...

esult in a finding of neglect. Also, failure to meet a personal duty that results in physicalinjury, excluding minor injury, or serious emotional injury or the risk thereof to the childmay result in a finding of neglect.CQC officials explained to the Inspector General’s Office that it has interpretedthese two subdivisions of Social Services Law to mean that two factors must be met forCQC to substantiate a case: (1) an individual must breach a duty arising in law, regulationor facility policy that was owed to a child; and (2) that breach must result in a seriousphysical injury or a substantial risk of the same. Regarding the breach of an owed duty,CQC General Counsel Robert Boehlert stated that examples of this included: fallingasleep while on duty, ignoring a child, or hitting a child during the course of supervisingthat child. As to the result of “physical injury,” or risk thereof, Boehlert stated that §412(8), which defines abuse, contains “Draconian terms” which speak of “very, verysignificant, serious injuries,” while § 412(9), which defines neglect, “lowers the bar alittle bit.”As described above, the abuse and neglect sections applicable to CQC’s childabuse investigations also provide for indication of a complaint based on “a seriousemotional injury” or “a substantial risk of…serious emotional injury.” 42However, CQCofficials reported their belief that the emotional injury standard is difficult to meet and is42 Although Social Services Law § 412 does not provide a definition of “serious emotional injury,” arelevant and related section of the Family Court Act defining abuse and neglect in the familial setting doessupply a definition of “Impairment of emotional health”/“impairment of mental or emotional condition”which is useful in clarifying the meaning of the term in the Social Services Law, particularly in regard tothe allegations concerning Jonathan Carey. Under the Family Court Act, impairment of emotional andmental health “includes a state of substantially diminished psychological or intellectual functioning inrelation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructiveimpulses, ability to think and reason, or acting out or misbehavior, including incorrigibility,ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributableto the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.”157