Legal Document: Michael P Mcwilliams v. Children'S Home Of Jefferson County

On June 08, 2023 a MEMORANDUM OF LAW IN OPPOSITION (Motion #1) - Supplemental Memorandum of Law in Opposition (per Court's request) was filed involving a dispute between Michael P Mcwilliams, and Children'S Home Of Jefferson County, for Torts - Other (Neg, Def, Prima Facie Tor) in the District Court of Jefferson County.

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FILED: JEFFERSON COUNTY CLERK 10/19/2023 09:49 PM INDEX NO. EF2023-00002318
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/19/2023

SUPREME COURT OF THE STATE OF NEW
YORK COUNTY OF JEFFERSON

In the Matter of the Application of: MEMORANDUM OF LAW IN OPPOSITION
AND INPUT INTO 18 NYCRR
MICHAEL PAUL MCWILLIAMS, 358.3-1(f)(10)

Plaintiff-Petitioner, Index No.: EF2023-00002318
Judge: James P. McClusky, S.C.J.
- against -

CHILDREN’S HOME OF JEFFERSON
COUNTY;

Defendant-Respondent.

SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION (PER COURT REQUEST) AND
INPUT INTO 18 NYCRR 358.3-1(f)(10).

Michael P. McWilliams, Ph.D.
98 Flandreau Avenue,
New Rochelle, NY, 10804
Ph: (914) 424-5541
Em: mpmcwilliams314@gmail.com

To: His Honorable, James P McClusky, S.C.J.
Supreme & County Court of Jefferson County,
State Office Building,
317 Washington St.,
Watertown, NY, 13601

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PRELIMINARY STATEMENT

His Honorable, Judge James P. McClusky, J.S.C., gave both the Plaintiff and the Defendant an

opportunity to provide input as it pertains to the issue of whether the Defendant retains a “sponsoring

[social services] agency” status and/or otherwise held the “authority of the applicable ‘sponsoring

[social services] agency’ within the meaning of 18 NYCRR 358-1.1(f)(10)”. The Plaintiff’s response

forthwith intends to provide insight into the aforementioned issue pursuant to his Honor’s request for

input.

PROCEDURAL HISTORY

For a recitation of the procedural history, Your Honor is kindly referred to the Defense’s

Preliminary Statement in the Defense’s MEMORANDUM OF LAW IN SUPPORT (NYSEF Doc. #32);

specifically, pages 2 and 3, respectively.

ARGUMENTS

POINT I: THE DEFENSE ADMITS THE DEFENDANT CANNOT BE CONSIDERED A

“SPONSORING [SOCIAL SERVICES] AGENCY” WITHIN THE MEANING OF 18 NYCRR

358.3-1(f)(10).

In the Defense’s MEMORANDUM OF LAW IN SUPPORT (NYSCEF Doc. #32), Defense

states, in the relevant part to this Court’s question, the following: “[i]n response to the Court's specific

question, Defendant is not a ‘sponsoring agency’ as…is defined in 18 NYCRR 505.29(a)(5)”

(NYSCEF Doc. #32, Weber, Conclusion, page #6).

Therefore, the Plaintiff and the Defendant concur: the answer to this Court’s question on

whether the Defendant retains a “sponsoring [social services] agency” status–and/or otherwise held

the “authority of the applicable ‘sponsoring [social services] agency’ within the meaning of 18 NYCRR

358-1.1(f)(10)”--is an unequivocal no.

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POINT II: THE SAME REGULATIONS AND STATUTORY LAWS THE DEFENSE REFERENCES

ARE THE SAME LAWS AND REGULATIONS THE DEFENSE VIOLATED.

The issue of revocation of certificates and licenses by agencies is found in Social Services

Law §379. See:

1. A certificate or license to receive, board or keep any child and/or minor under
the age of eighteen years may be revoked for cause by the authorized agency or
the commissioner of social services by which it was issued and any such
certificate or license to receive, board or keep any child may be revoked for
cause by the commissioner.
2. An agency revoking any such certificate and a commissioner of social
services revoking any such license shall notify the department of such revocation
at once.

The Defense spends a considerable amount of time arguing that the Plaintiff was not entitled

to a Fair Hearing in regards to his home being closed. However, the Defense only selectively shares

why the Plaintiff demanded a Fair Hearing.

(1) The Defendant provided no statutory or regulatory “cause” for the Defendant’s decision

to revoke the Plaintiff’s “certificate or license” by closing the Plaintiff’s home. This is a

clear violation of SSL §379(1).

(2) The Defendant did not follow the steps set forth in 18 NYCRR 443.11. The Plaintiff and

the Defense concur: 18 NYCRR 443.11 is “the applicable regulation” and covers

‘[n]onrenewal or revocation of a certificate or letter of approval’ (see generally 18

NYCRR 443.11 )” (NYSCEF Doc. #32, Weber, Argument, page #5).

In the first relevant part, 18 NYCRR 443.11 states the following:

(a) Agency practice and procedure for nonrenewal or revocation of a foster home's
certificate or approval, or for involuntary decertification must include:

(1) advising the foster parents before the expiration date of the certificate or letter of
approval that the agency does not plan to renew the certificate or approval;

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(2) nonrenewal or revocation of a certified or approved foster parent may be based
upon such factors as failure to meet one or more of the criteria for certification or
approval set forth in this Part or upon lack of need for a foster home with its particular
characteristics;

(3) the reasons for nonrenewal or revocation must be specified in a letter postmarked at
least 20 days before the expiration date or the decertification date of the certificate or
approval.

The Defense provided EXHIBIT C with Defense’s Motion #1 on NYSCEF (NYSCEF Doc. #8).

In NYSCEF Doc. #8, the Defense provided this Court the Defendant’s letter notifying the Plaintiff his

home was going to be closed and nonrenewed; see page 22. The Plaintiff directs your Honor’s

attention to the date of said letter; see: July 28th, 2021. The Plaintiff’s home was going to be closed,

according to the Defendant’s letter, on August 1st, 2021. Therefore, the Defendant violated 18 NYCRR

443.11(a)(3), which requires the Defendant to provide the Plaintiff “a letter postmarked at least 20 days

before the expiration date or the decertification date of the certificate or approval”. This is the

Defendant’s first violation of 18 NYCRR 443.11(a).

The Defendant concurrently violated 18 NYCRR 443.11(a)(2). The Defendant’s stated reason

in the aforementioned letter dated July 28th, 2021 was the following:

According to CHJC's certification and clearance policies and procedures, we
require full disclosure from all Foster Parent applicants. As you are aware, to
obtain information formerly withheld from CHJC, we submitted newly signed
releases to the St. Lawrence County Department of Social Services, where you
previously sought certification. Upon this request, the information available to
CHJC was limited, partially due to a nondisclosure agreement. Due to this
limitation, CHJC does not have the necessary information required to maintain
your Foster Home certification.

However, the Defendant never provided the Defendant’s internal written “clearance policies and

procedures” despite the Plaintiff’s request. Moreover, the regulations set forth for foster parent

certification in 18 CRR-NY 443.3 do not require the information requested by the Defendant.

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Incidentally, the Defendant violated 18 NYCRR 443.11(a)(2) by not renewing and revoking the

Plaintiff’s certified home by failing to identify and provide written clearance policies and procedures

(external or internal) of “such factors as failure to meet one or more of the criteria for certification or

approval set forth in this Part or upon lack of need for a foster home with its particular characteristics”.

In the second relevant part, 18 NYCRR 443.11(b) states the following: “[a]rranging for the

foster parent or relative foster parent to meet with an official of the agency to review the decision and

the reasons for the agency decision”. Despite the Defendant’s aforementioned July 28th, 2021 letter

providing the Plaintiff contact information of a specific representative for the Defendant–Megan

Badour, Program Manager for the Watertown Foster Care Program–the Defendant never actually set

up a meeting with the Plaintiff despite numerous requests. The Plaintiff, upon receiving the July 28th,

2021 letter, emailed Ms. Badour per the letter’s instructions. The Plaintiff stated:

Dear Ms. Badour:
I received your letter dated July 28th, 2021. I hate to be a bother, but I felt some
items in said letter were inaccurate. I never "withheld" any information. And, I'm
concerned, because Amanda Murray stated my home was closed "voluntarily" a
few months ago. Are you now changing the aforesaid to "involuntarily closed"?
(Email, Tuesday, August 10, 2021, 4:56 PM)

Ms. Badour responded with the following:

Mr. Colon,
My apologies. Amanda indicated that she had called and had a follow up
conversation with you in regards to the inability for us to move forward at this
time. As Amanda is no longer with CHJC, I am unable to include her in this
conversation for accuracy. As stated in the letter your home was closed earlier
this month. (Email, Wednesday, August 11, 2021, 12:29 PM)

The Plaintiff replied.

May we speak briefly, because there are some questions? 1) Was it closed
voluntarily or involuntarily on connections? 2) I don't know if you've read, but SLC
DSS is being investigated and sued by several foster parents.
https://www.nny360.com/artsandlife/familyandrelations/alleged-misconduct-piling-
up-at-st-lawrence-county-department-of-social-services/article_20ae30da-3a2c-5

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211-8e59-927f5f907a94.html By you punishing me for what they have done and
are doing to foster parents: you are acting as an accessory of their retaliation
against foster parents like myself. I would love to close my home (as I've moved),
but so long as it is in the right way on Connections. If you and I can decide a
good way where I'm not hindered in the future: that's all I'm asking. 3) I have the
phone call between I and Amanda recorded so there is no question on what she
said. I didn't trust her especially her connection with Heidi Soucis. 4) I'm not
trying to cause a problem, but as you know: every agency checks Connections
and if we don't do this properly, it'll hurt me. Thus, why I'm trying to work with you.
(Email, Wednesday, August 11, 2021, 12:36 PM)

Ms. Badour never responded to this email. However, the Plaintiff followed up.

Hi, Megan:
I have a right to appeal this decision according to Social Services law. Your
organization provided no information on my rights....(Email, Thursday, August 12,
2021, 7:33 AM)

Therefore, it is disingenuous to state the Plaintiff never intended to appeal the decision of the

Defendant despite the Defense’s claims; see: “it is undisputed that Plaintiff did not pursue a fair

hearing through the proper channels, i.e., the Office of Administrative Hearings” (NYSCEF Doc. #32,

Weber, Argument, pages 5 and 6). The Plaintiff “did not pursue a fair hearing through the proper

channels, i.e., the Office of Administrative Hearings”, because the Plaintiff tried to mitigate the

disagreement pursuant to 18 NYCRR 443.11(b) via his email exchange with Ms. Badour.

When such attempts to mitigate the disagreement became fruitless, due to the absence of Ms.

Badour’s response, the Plaintiff filed a New York State Division of Human Rights Complaint (see:

Defense’s EXHIBIT B, NYSCEF Doc. #7); see August 17th, 2021 NYS DHR Complaint.

It is therefore ironic that the Defense wishes this Court to uphold 18 NYCRR 443.11 by arguing

“18 NYCRR 443.11 affords Plaintiff only the opportunity to discuss the revocation ‘with an official of the

agency’” and that “the regulation does not afford Plaintiff the right to a fair hearing (18 NYCRR 443.11

[b])” when the Defendant ignored that very same legal citation. In fact, the Defendant did everything

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plausible to violate said citation in its entirety, while also, allegedly, violating SSL §379. This is an

example of trying to have your cake and eat it too.

POINT III: THE PLAINTIFF HAS A RIGHT TO DUE PROCESS.

The Plaintiff has a right to due process constitutionally. Despite the Defense’s claim–see: “[a]s

a preliminary matter, the Complaint does not assert a procedural due process claim as there is no

allegation in the Complaint that Defendant denied Plaintiff a ‘right’ to a fair hearing”–the Plaintiff did

argue the Defendant denied the Plaintiff’s due process rights. ¶12 of the Plaintiff’s Complaint states:

When the Plaintiff requested to speak with Murray's supervisor, and suggested
an Administrative Hearing to challenge the Defendant, Murray claimed someone
would get back to the Plaintiff. No one ever did despite the Plaintiff following up.

¶23 of the Plaintiff’s Complaint states:

As stated herein, and by the Defendants counsel, the Plaintiffs home was closed
on August 1st, 2021. This closure was an exact closure as Murray had once said
to the Plaintiff she would carry out; see: ¶16. Murray stated, to the Plaintiff, that
the Defendant could keep the Plaintiffs home open-for one (1) year-without giving
the Plaintiff any foster children and subsequently close the Plaintiffs home
without the Plaintiff being able to appeal. This was different then closing the
Plaintiffs home via revocation and having the Plaintiff appeal. In essence, by
closing the PlaintifFs home in the aforementioned methodology.

¶¶s 12 and 23 of the Plaintiff’s Complaint clearly “assert a procedural due process claim” as the

Plaintiff is speaking to his due process rights being violated by (1) the Defendant not following

statutory law and/or regulations; (2) the Defendant stating one thing and doing the opposite; and (3) by

the Defendant allegedly acting against the Plaintiff with a nefarious motive. The Defense admits, in

NYSCEF Doc. #32, the following: there exists a recording and the Defendant’s counsel reviewed said

recording. In this recording, Amanda Murray (a former employee for the Defendant), spoke with the

Plaintiff regarding an administrative hearing. Therefore, given the Plaintiff’s conversations with Murray

in February 2021–and his follow-up emails with Badour in August of 2021–there can exist no question

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the Plaintiff intended to appeal the Defendant’s decision through any and all legal processes including

through an administrative (fair) hearing.

The Defense’s assertions–[i]t is undisputed that Plaintiff did not pursue a fair hearing through

the proper channels–is as presumptuous as the Defense’s original assertion that the Plaintiff never

intended to close his home voluntarily prior to the July 28th, 2021 letter; see: “[s]uch allegation

underscores that Plaintiff did not act to voluntarily close his foster home prior to the August 1, 2021

involuntary closure implemented by Defendant” (NYSCEF Doc. #25). The Defense corrected this

statement during the Defense’s oral argument held on August 23, 2023–to the appreciation of the

Plaintiff–however, again, the Defense is making presumptuous statements without fact or a basis in

reality.

18 NYCRR 358.3-1(f)(10) does not apply to the Defendant. 18 NYCRR 358.3-1(f)(10) states:

you are a foster family care services recipient, a foster family caregiver, or a
respite caregiver pursuant to section 505.29 of this Title, and a sponsoring
agency terminates the foster family caregiver's or the respite caregiver's authority
to provide foster family care services or a social services district or the Office of
Children and Family Services or the Department of Health terminates its contract
with a sponsoring agency;

As stated in Point I of this document–and in NYSCEF Doc. #32–the Defendant is not a

“sponsoring agency”. Therefore, this statute does not apply to the Defendant and cannot be utilized to

justify denying the Plaintiff a fair hearing. Moreover, the Plaintiff and Defendant agree the Plaintiff was

not a “foster family care services recipient, a foster family caregiver, or a respite caregiver pursuant to

section 505.29 of this Title”. Incidentally, further arguing why 18 NYCRR 358.3-1(f)(10) does not apply.

Accordingly, what justifies the Plaintiff’s rights to an administrative hearing is three-fold: (i) the

Defendant, allegedly, violated SSL §379 and 18 NYCRR 443.11(a)(2&3) and (b); (ii) the Plaintiff’s Vth

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and XIVth Constitutional Amendment Rights to due process; and (iii) the severity of the consequences

of the Defendant’s actions on the Plaintiff’s life, liberty, and property.

CONCLUSION

The legal reference cited by the Defense–i.e., 18 NYCRR 443.11–is undisputed. It is for the

Defendant’s alleged violations of this very citation–in addition to SSL §379–that the Plaintiff argues the

Plaintiff is entitled to due process. It is true that the right to due process is not specified in either SSL

§379 and/or 18 NYCRR 443.11. However, the right to due process is specified in our Constitution;

specifically, in both Amendment V and XIV. A right so profoundly important it is specified in two (2)

amendments and was also in the minds of our founding fathers; Thomas Jefferson made mention of it

in our Declaration of Independence. See: “We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator with certain unalienable Rights, that among

these are Life, Liberty and the pursuit of Happiness”. The consequences of the Defendant’s actions

should not be taken flippantly. NYS has laws against “blacklists” as it relates to tenants and/or

employees. One could argue, being on a tenant “blacklist” is less damaging than being on the child

services’ system and it impacting everything from: (i) adopting in the future; (ii) fostering in the future;

(iii) CPS referrals; (iv) law enforcement investigations; and/or (v) being able to work with children in the

future. It is even more disturbing that a tax-exempt organization under §501(c)(3), i.e., the Defendant,

can have such power over volunteers who sign up with the agency without notifying said volunteers of

this potential and/or that the volunteers have no recourse should such a decision be executed.

Given the substantial impact this tax-exempt organization under §501(c)(3) has on volunteers’

lives–potentially placing volunteers on blacklists–due process is implied. WHEREFORE, for the

foregoing reasons and legal authorities set forth herein, the Plaintiff requests (1) that the Defense’s

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Motion to Dismiss be DENIED and (2) for such other, further and different relief the Court deems just

and proper.

Dated: October 19th, 2023

Westchester, NY

_________________________
From: Michael Paul McWilliams
98 Flandreau Ave,
New Rochelle, NY, 10804
Ph: (914) 424-5541
Em: mpmcwilliams314@gmail.com

To: Richard L. Weber,
Litigator,
Bond, Schoeneck & King,
Attorneys for Defendant,
One Lincoln Center,
Syracuse, NY, 13202-1355
(BY ELECTRONIC FILING)

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WORD COUNT CERTIFICATION

Pursuant to Rule 202.8-b of the Uniform Rules for the Supreme Court and County Courts, I certify
that this sur-reply, which was prepared using Times 12- point typeface, contains 2885 words,
excluding the parts of the document that are exempted by rule 202.8-b(b). This certificate was
prepared in reliance on the word-count function of the word processing system (Google Docs) used to
prepare this document. I declare under penalty of perjury that the foregoing is true and correct.

_________________________
From: Michael Paul McWilliams
98 Flandreau Ave,
New Rochelle, NY, 10804
Ph: (914) 424-5541
Em: mpmcwilliams314@gmail.com

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Document for Michael P Mcwilliams v. Children'S Home Of Jefferson County

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