Court Denies Immunity To Child Protection Workers Who Allowed An NYPD Officer To Abuse His Son To Death

The public expects cops to be better people than they are. Maybe they have the same weaknesses but having the training and experience to overcome them. But when you're a cop, you're encouraged to turn interactions into altercations and solve most problems with violence. And when all else fails, you can always just lock someone up. Is it any wonder law enforcement is home to an alarming number of domestic abusers?

One more data point: this horrifying legal decision [PDF] recently handed down by a New York federal court. It's not horrifying because of the conclusions it reaches. It's the events leading up to this lawsuit that threaten to destroy what little faith anyone has in humanity.

On January 17, 2020, eight-year-old Thomas Valva (Tommy") froze to death in his father's garage. Tommy's father Michael Valva and his father's girlfriend Angela Pollina had locked him in the garage overnight as a form of punishment. Indeed, Mr. Valva, who was a police officer, subjected Tommy, along with his brothers Anthony and Andrew, to a slew of sadistic punishment[s]" in the years leading up to Tommy's death, such as forcing the children to eat hot pepper powder, denying them access to the bathroom, and leaving them home alone without any food or water.

Horrifying enough? Just keep reading.

Tommy and Anthony suffered the worst of Mr. Valva and Ms. Pollina's punishments, likely because both Tommy and Anthony were autistic.

Just absolutely gut-wrenching. And it still gets worse.

Forcing Tommy and Anthony to sleep in subfreezing temperatures on a cold, cement slab in the garage was so common in Mr. Valva and Ms. Pollina's household that they referred to the garage as the kid's room."

I'll give you a minute.

If it makes you feel any better, Michael Valva - a 15-year veteran of the NYPD - is facing murder charges for this prolonged act of brutality. So is his girlfriend, who was apparently complicit in the acts of violence perpetrated by this cop against his own offspring.

But this cop and his fiancee were not the only perpetrators. As the decision points out, another government entity contributed to this tragic chain of events, allowing the officer to continue abusing his children until he finally managed to kill one of them.

While the barbaric acts of Mr. Valva and Ms. Pollina are directly responsible for Tommy's death, there is an institutional actor that is almost as culpable. The facts describing that culpability, which I proceed to discuss below, are detailed in the complaint filed by Mrs. Valva against Mr. Valva, Ms. Pollina, CPS officials, and numerous other private and government defendants.

After their divorce, Michael Valva managed to wrest custody away from the children's mother by making a bunch of unsubstantiated abuse claims.

After Mr. Valva was awarded temporary custody of the children, he began to file child abuse allegations against Mrs. Valva with CPS. Mr. Valva alleged that Mrs. Valva was hitting the children and poisoning them with a toxic brown medicine." He also accused Mrs. Valva of suffering from a deteriorating mental illness that rendered her incapable of caring for children. A day after Mr. Valva filed his child abuse report, defendant Michele Clark, a CPS investigator, visited Tommy and Anthony at their school. The children denied Mr. Valva's allegations. They told CPS investigator Clark that they had no concerns about visiting their mother, that their mother did not use physical punishment, and that they were not afraid of her.

The children's mother Justyna Valva, raised her own concerns with CPS - ones backed with a bit more evidence than vague claims about mental illness and brown medicine."

Mrs. Valva informed CPS that her children were starving and suffering severe weight loss while living at their father's house. Mrs. Valva noted that in one month (i) Anthony, who was eight years old at the time, had lost 13.2 pounds; (ii) Tommy, who was six, had lost 4.4 pounds; and (iii) Andrew, who was four, had lost 3.7 pounds. Mrs. Valva also reported that Mr. Valva and Ms. Pollina were beating the children on their heads, hands and backs, putting them in extremely long time-outs without food or drink, and making them stay outside in the backyard with no shoes.

Their mother also provided CPS investigators with other evidence: a flash drive full of photos and documents, including letters from the children's physician stating there were no signs Justyna was abusing her children. It also included a letter from one of the children's psychologist stating that removing the children from her care would result in development regression for one of her autistic children, as well as psychological and emotional distress" for all three of her kids. She also provided certified transcripts of recordings of Officer Valva and his girlfriend forcing the children to repeat phrases like I don't love mommy."

Her first complaint was closed by the CPS two days after she filed it, with no apparent investigation taking place. Her second, backed with the flash drive full of evidence, was also closed, one day after it was filed. Her third complaint, alleging physical abuse and backed with evidence of injuries sustained by the children managed to result in the CPS filing a neglect petition against Michael Valva. The petition alleged excessive corporal punishment." His case went before a judge, where it was adjourned in contemplation of a dismissal. The court ordered NYPD officer Michael Valva to refrain from domestic violence" and (hollowest of lols) take classes at a local library."

Following this chain of events, the children's mother filed a complaint with the CPS, alleging it was acting in a biased manner by shutting her complaints down and focusing its attention on Officer Valva's wild allegations. In apparent retaliation, the CPS opened an investigation into Justyna, claiming she was suffering from mental health problems, was violent, uncooperative with investigators, and had a drinking problem. The investigators assigned to her case also stated Officer Valva's home was safe, that he was affectionate towards his children, and was working towards handling the problematic aspects of his parenting.

The CPS moved forward with prosecution of the children's mother, but the judge handling the case dismissed the case due to a complete lack of evidence. The court ordered the CPS to actually investigate the mother's claims. When it did, it was able to secure statements from the children's teachers that supported Justyna's abuse claims. Teachers and the school psychologist noted the children were emaciated, were constantly asking for food, had been observed eating food out of school trash cans. The youngest had been sent to school in a wet pull-up diaper.

It didn't matter.

Meanwhile, the children remained in Mr. Valva and Ms. Pollina's custody. On January 8, 2020, CPS investigator Lydia Sabosto and her supervisor, Jean Montague, closed out the last report that had been filed on the CPS hotline. Mrs. Valva spoke to CPS supervisor Montague on the phone twice and begged her not to close the investigation. Less than 10 days after CPS closed out its final investigation into Mr. Valva and Ms. Pollina's abuse, Tommy died.

And the CPS employees almost got away with it. Deliberate indifference is tough to prove. It's even harder to get sustained by a federal court. Citing precedent, the court notes this definitely appears to be deliberate indifference. But it wonders whether or not it's actionable, even as it makes it clear it finds the CPS's actions to be abhorrent.

Mrs. Valva made multiple reports detailing abuse her children were suffering at Mr. Valva's home. She also provided CPS defendants Clark, Heepe, and Leto with photographic evidence of this abuse. Nonetheless, the CPS Defendants did very little to intervene. In response to many of the reports, the CPS Defendants took no action marking the reports as closed without conducting any investigations. On one occasion a CPS employee attempted to visit the children at Mr. Valva's home but declined to pursue the matter any further once Mr. Valva denied him entry. CPS eventually filed a neglect petition against Mr. Valva, but that petition focused on only one incident of alleged abuse and did not seek to remove the children from Mr. Valva's care or impose any supervision on him. Moreover, CPS agreed with Mr. Valva to an adjournment in contemplation of dismissal after less than two months. And even when CPS later conducted a more thorough investigation into Mr. Valva and uncovered evidence of abuse, CPS did not step in to protect the children.

And here's the most devastating citation of the relevant precedent:

CPS, it seems, adopted the same strategy as DSS in DeShaney; it waited for the phone [to] ring some day" when one of the Valva children would be dead."

Doing nothing and waiting to see if kids die somehow isn't actionable on its own. That's the ultimate takeaway from this heartbreaking citation, as the court explains.

Sickening as it is, DeShaney establishes that such a course of action does not violate the Due Process Clause.

But, if this can even be called a silver lining considering this chain of events, the actions taken by the CPS in this specific case - one that involves a police officer - manages to push this past the abysmal precedent that says the government can allow children to die without facing repercussions.

The difference is the bias. The record shows CPS routinely blew off Mrs. Valva's complaints and only went into action (until prompted by a court order) after the children's mother filed a complaint against the agency. And that action targeted the person filing the complaint, rather than the person actually abusing the children.

The CPS acted to protect its own, i.e., Michael Valva, NYPD officer and fellow government employee. And that's what makes the due process claim stick: the fact that the CPS made it clear through actions and/or lack of action that Officer Valva had nothing to fear from his fellow government employees.

To be clear, what distinguishes this case from DeShaney is not Mr. Valva's knowledge that CPS was not moving against him despite the evidence of his abuse they possessed. Joshua's father must have also possessed such knowledge in DeShaney.

Rather, what is different here is that Mrs. Valva's allegations plausibly demonstrate that CPS took affirmative actions that demonstrated to Mr. Valva, not only that they had information implicating him that they were not acting on, but also that, even with the evidence they possessed, they had effectively concluded that Mrs. Valva, not him, was the guilty party in this ordeal. Knowing this, Mr. Valva could logically conclude that he did not risk serious repercussions from his and Ms. Pollina's continued and intensifying abuse of his children. Thus, Mrs. Valva plausibly alleges that state officials communicate[d] to a private person that he or she [would] not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others."

The deliberate indifference claim survives. So do other claims, including abuse of process, malicious prosecution, and denial of fair trial. The CPS defendants are unable to sidestep any of these. The court says they're not entitled to either absolute or qualified immunity. Absolute immunity fails because, as alleged, the CPS employees violated the mother's rights while active as investigators, rather than prosecutors. Qualified immunity fails because it's unclear at this point whether the CPS had any legitimate basis for initiating neglect proceedings against the children's mother. More facts are needed and the CPS cannot expect to be excused before more facts are in.

The government protected its own. And that's what ultimately hurts it. With any luck, the mother who was not just ignored, but investigated, until one of her children was killed by her cop ex-husband, will be able to find some sort of closure by holding these CPS employees responsible for participation, however disconnected, in this murder. It will ultimately be taxpayers footing the bill, but the information gleaned from this case will highlight just how little the government cares when bad cops do bad things.