July 7, 2011: Finkelstein & Partners Counters Defense Motion to Dismiss a Civil Lawsuit Against Failure to Report Sexual Abuse Allegations of a Child

The Bedford Record-Review — The Bedford Central School District recently filed a motion to dismiss a civil lawsuit that claims the former principal and other staff members at Bedford Hills Elementary School failed to report allegations that a nine-year-old student was being sexually abused by her mother’s live-in boyfriend starting in 2005.

While an attorney for the district argued in court papers that the case should be thrown out of New York State Supreme Court for several reasons, the lawyer for the girl and her mother countered in her own filing that Victoria Graboski, the principal of Bedford Hills Elementary School at the time, other school staffers and the district caused emotional and psychological harm to the girl by failing to alert the police or other authorities about the abuse, which took place in the girl’s home, not at school.

The girl’s mother, who at the time lived with Cesar Joel Sagastume-Morales, notified police in August 2006 that she discovered lewd photographs of her daughter on Mr. Sagastume-Morales’s cell phone. The investigation revealed that over an 11-month period, from approximately Sept. 1, 2005 until Aug. 17, 2006, Mr. Sagastume-Morales engaged in a course of sexual conduct with the child, authorities said.

After Bedford police and other agencies tracked him to his native Guatemala, where he fled to in 2006, Mr. Sagastume-Morales was extradited and pleaded guilty two years ago to sexual abuse charges. He is currently serving eight years in state prison.

The lawsuit filed against the school district, the former principal and the school’s guidance counselor at the time claims school officials failed to report the allegations that the girl was sexually abused in her home, allowing her to be molested for eight more months. The litigation, which seeks unspecified damages for the mother and the girl, charges that the child suffered “severe and serious personal injuries,” both physically and mentally, because school officials failed to report the allegations of sexual abuse to authorities when they learned of them in December 2005, according to the suit.

But Dennis O’Connor, the attorney representing the Bedford Central School District and the two staff members named in the litigation, outlined five legal arguments in his motion as to why the court should dismiss the case entirely.

The attorney for the district contends that the principal and other school staff where not obligated to report what they had been told about possible sexual abuse involving the third-grader, since the allegations were “double hearsay” passed on to them from another student’s parent.

That woman informed Ms. Graboski that her daughter overhead a conversation at a slumber party in which a group of students heard the victim, on a different occasion, tell another third-grader in the school’s playground that she was “having sex with her stepfather,” according to court papers. 

The principal asked two female teachers not named in the civil suit to privately speak to the third-grader to determine if she was at the slumber party. The girl told them she was not at the party, and “seemed happy and she said that everything was fine.” After those teachers relayed that information to Ms. Graboski, no further action was taken, the court papers state.

In addition to arguing that the school and district were not obligated to report “hearsay,” Bedford Central’s attorney claims that since the abuse did not occur on school property or while the victim was “under the control of school officials,” they weren’t legally required to notify Child Protective Services, police or other authorities. “The staff at Bedford Hills Elementary School never learned directly from (the victim) that there was even a possibility that she was being abused at home,” the 16-page motion to dismiss states. “Furthermore, (the victim) never exhibited any physical signs of maltreatment and (her mother) never told her daughter’s teachers that she suspected her child was suffering abuse at home.”

The law requires that school officials or others designated as “mandated reporters” of abuse have reasonable cause to suspect abuse or are contacted by the victim, a parent of another adult responsible for the child, according to the motion. Also, any failure to report what they had been told by another parent was not, “knowing and willful,” Bedford Central’s attorney said, and the claim that reporting the allegations allowed the abuse to continue for eight more months encourages “guess, speculation and conjecture.”

Mr. O’Connor, a partner in the White Plains firm O’Connor, McGuiness, Conte, Doyle and Oleson, did not return a call for comment this week.

Nancy Morgan, the attorney representing the young girl and her mother, said the district’s attempt to dismiss the case is without merit.

“Public officials are required to report suspected child abuse, and parents should be able to rely on the public officials at their child’s school to follow the rules,” said Ms. Morgan an attorney with the law firm of Finkelstein and Partners in Newburgh. “In this case, the school failed to follow the rules that are in place to protect young children. They failed to notify anyone about the information that they alone had, and this young child was significantly harmed by their failure.” 

In countering the motion to dismiss, the mother’s attorney pointed out that during a parent-teacher conference, the mother told two third grade teachers that her daughter was depressed, withdrawn, not eating, losing weight and being disobedient at home. The mother claims that those teachers informed her they would look into the concerns she raised about her daughter’s behavior. Even when Ms. Graboski informed the third grade teachers what another parent had told her, those teachers “merely responded that (the victim) was happy and developing,” the 85-page opposing motion states.

School officials not only failed to report the allegations of sexual abuse occurring in the child’s home, but also conducted “the most perfunctory and inadequate investigation” into what the other parent reported to them. Bedford Hills Elementary School staff simply asked whether the victim was at the slumber party, rather than look into the more significant information as to whether she was being sexually abused by her mother’s live-in boyfriend, according to the papers filed by Ms. Morgan’s law firm.

The school officials were legally obligated to immediately report the allegations and let Child Protective Services or other authorities determine whether or not the charges were founded, according to the plaintiff’s filing.

Hearing that the victim herself reportedly told another third-grader that she was having sex with Mr. Sagastume-Morales, just a few weeks after the victim’s mother directly told her teachers that she was displaying troubling behavior at home, amounted to “reasonable cause” to file a report with Child Protective Services, according to the opposing motion filed.

Another issue raised in those court papers is whether Ms. Graboski and other Bedford Hills Elementary School officials decided not to report the information to any authority outside the school because of previous report of abuse involving another family that proved to be unfounded.

The court papers also raise the possibility that school officials were looking to avoid “possible tension among Hispanic and non-Hispanic families.” It is alleged that the principle and others questioned whether the conversation among the white children at the slumber party regarding a Hispanic classmate might have been “motivated by parental prejudice,” leading school officials to discount the story.

The case resulted in a major shake-up at Bedford Hills Elementary. It also led to the district creating a new policy regarding child abuse reporting.

Ms. Graboski, and Kelly Cieslinski-Schluter, who at the time was the school’s psychologist, were among six educators placed on paid leave while the district investigated. Bedford Central officials probed whether proper actions were taken to report abuse if faculty members were in fact aware of them, as well as if measures were taken to protect the student. While some of the teachers were reassigned within the district in the wake of the investigation, Ms. Cieslinski-Schluter, along with another educator, eventually resigned from her position. Ms. Graboski, who was arrested in September 2006 by Bedford police on a misdemeanor charge of failing to report suspected child abuse, was fired from her job as principal. According to the criminal complaint against Ms. Graboski, as principal, she was a school official and a mandated reporter pursuant to Social Services Law. The complaint stated that Ms. Graboski had information that the mother of the victim had reported to the school “that her daughter was sad and acting differently at home. The defendant, in receipt of the information, willfully failed to call the New York State Central Register to report this information, did not contact law enforcement, and conducted her own investigation with school personnel.”

Ms. Graboski agreed to take part in an outreach program to educate the public about reporting suspected child abuse as part of a deal to have the criminal charge against her dropped. She also agreed to participate in educational seminars about reporting child abuse, and the criminal case against her was dropped. Ms. Graboski was later rehired by the district as a special education teacher at Fox Land High School.

The child abuse reporting policy adopted by the Bedford Central board of education three years ago has two main components, one about the reporting of suspected child abuse in a domestic setting, and one about reporting abuse in an educational setting. Reporting suspected abuse in the home is governed by social services law, and reporting suspected abuse in a school setting is governed by educational law. It also distinguishes between the district requirements for reporting under each law.

Dear Friends and Clients,

In furtherance of our firm’s culture of commitment to always act with compassion, concern and commitment to our clients, community and colleagues, we have been taking precautions to ensure that we are still fulfilling our ethical and moral obligations while prioritizing health, wellness and safety of all we can.

As you know, the COVID-19 pandemic has introduced changes to many lives and businesses in our communities, and around the world. We, much like our neighbors and friends, have been taking precautions to ensure that we are still fulfilling our ethical and moral obligation to our clients, while also prioritizing the health, wellness and safety of our employees.

Until further notice, our offices will be closed to the public to encourage social distancing and to help prevent the spread of COVID-19. Our team is still hard at work, many from home, and you may still call, email, live chat or video conference us if you or a loved one is seeking legal assistance. As the first law firm to offer our clients secure online access to their case file more than a decade ago, we have always been believers in using technology to make life easier and information more accessible. In these present times it has been a smooth transition for us to continue to offer our clients the same seamless and thorough service that you deserve and are accustomed to.

This pandemic is unlike anything any of us have faced in our lifetimes, and while we can continue to emotionally support one another through it all, staying home and keeping your distance is vital to the health and wellness of our communities. It does not feel good to break routines, cancel events and retreat from our normal, day-to-day socializing, but let us remember that, in times of strife, prior generations were asked to go to war and we are simply being asked to stay home. Your isolation equals more lives saved, and more time for medical providers to prepare for the treatment of patients battling COVID-19.

When the dust settles, we will join together with a greater appreciation for our lives, local businesses, loved ones and health. Until then, we will continue to offer guidance from a safe distance.

Very truly yours,

Andrew G. Finkelstein and the staff of Finkelstein & Partners, LLP