A Critical Examination of State Agency Investigations into ...

facility employee and CQC recommended to the State Central Register that the facilityemployee be indicated. Luhn stated that CQC established “clear breach of duty” and “weused something that we’ve never had to go to hearing on which was presumed emotionaltrauma of having a staff person torment you.” Although there was no “discerniblepsychiatric injury [or] emotional injury,” CQC reportedly decided to indicate(substantiate) because of the “cruelty” and the “outrageous behavior” exhibited by thisstaff member. Luhn added, “We put ourselves in the shoes of the kid and presume that,even though he can’t speak for himself, that it was traumatizing and did some injury.We’ll argue that at hearing and see where it goes.”The Inspector General notes that while there is scant case law in regard to CQC’sapplication of Social Services Law § 412 (8)-(9), there is ample case law applying relatedprovisions of the Family Court Act. Under the Family Court Act, which has similardefinitions to the Social Services Law, albeit applicable to children living in a familysetting rather than an institutional setting, it is well established that actual injury to a childis not required to sustain a finding of abuse or neglect. Additionally, the New York Courtof Appeals has expressly ruled that expert testimony, while critical in some cases, is notrequired to prove emotional injury or the risk of emotional injury. In rejecting a rulerequiring expert testimony, the Court of Appeals found that requiring such testimonywould undermine the societal purposes of the statute: “while older children cancommunicate with a psychological expert about the effects of domestic violence on theiremotional state, much younger children often cannot. . . . To require expert testimony ofthis type in the latter situation would be tantamount to refusing to protect the mostvulnerable and impressionable children.” CQC’s narrow interpretation of § 412 results in208