Supreme Court, Cortland County

Decided on June 4, 2026

Index No. EF25-646

Mark G. Masler, J.

[*1]

This action arises from the tragic death of a child at the hands of his father on May 29, 2024, just days after his fourth birthday. In July 2021, when the child was approximately 13 months old, the Cortland County Department of Social Services (DSS) commenced a neglect proceeding pursuant to Family Court Act article 10 against the child's biological mother (the article 10 proceeding) and Citizens Concerned for Children, Inc. (CCFC) was appointed attorney for the child. As a result of the article 10 proceeding, DSS was granted custody of the child and placed him with foster parent Samantha Adams. On January 1, 2022, Lenore LeFevre became employed as an attorney with CCFC and was assigned to represent the child. Custody of the child was restored to the mother in September 2022. On November 10, 2022, the child was removed from the custody of the mother and returned to foster care. On January 10, 2023, an order was entered in Family Court placing the child under the supervision of DSS. On August 16, 2023, the results of a DNA test confirmed that Joshua Emmons is the child's biological father. On October 12, 2023, while the article 10 proceeding was still pending, Emmons filed a petition for custody pursuant to Family Court Act article 6 seeking sole custody and placement of the child (the article 6 proceeding). CCFC was appointed as attorney for the child in the article 6 proceeding and assigned LeFevre to represent the child therein. In December 2023, the foster mother filed a motion to intervene in the article 6 proceeding.

The father had unsupervised visitation with the child at the father's home in Syracuse on several occasions during the pendency of the article 6 and 10 proceedings. On February 25, 2024, the foster mother reported to DSS employees that upon returning from visits with the biological father, the child had told her that " 'Daddy Josh hit me, and I don't like it,' that he had been struck on both his head and buttocks, and that he did not want to go back to his biological father's residence" (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint, ¶ 68). On March 4, 2024, the foster mother met with DSS employees to express her concern that the child was being abused by the biological father and did not want to return to the father's residence (complaint ¶ 75). Plaintiff alleges that the foster mother withdrew her motion to intervene in the custody proceeding in reliance upon the recommendations and advice of DSS personnel, who represented that withdrawal of the motion would enable DSS to continue to supervise and monitor the child's safety while he was in the custody of the biological father.

At a settlement conference that was held in Family Court on March 13, 2024 — in which LeFevre and counsel for DSS participated — it was agreed that the biological parents would have joint legal custody, the father would have primary placement, and that the permanency hearing in the article 10 proceeding still pending against the mother would be canceled. On March 26, 2024, the child began living with the biological father in Syracuse in accordance with the agreement made at the settlement conference. An order implementing the agreement regarding custody of the child was entered in Family Court on April 4, 2024. On May 26, 2024, the child was transported to Upstate University Hospital with injuries that included blunt force trauma to his head. The child died from his injuries on May 29, 2024. In 2025, the biological father pled guilty to first-degree manslaughter and was sentenced to a 25-year prison term.

The foster mother commenced this action as administrator of the child's estate contending, in summary, that defendants were negligent in failing to properly investigate the father's fitness as a parent, including the failure to discover that he had been previously convicted of violating Penal Law § 260.10 (1) for endangering the welfare of a child, and that [*2]DSS was additionally negligent in failing to investigate the foster mother's reports that the child had been abused by the biological father. LeFevre and CCFC made a pre-answer motion to dismiss based on the assertion they have judicial immunity from all claims asserted in the action (NYSCEF motion number one). Cortland County made a pre-answer motion to dismiss based on the arguments that it is entitled to governmental and judicial immunity and, further, that it owed R.B. no duty for the allegedly negligent acts (NYSCEF motion number two). Oral argument was heard, in person, on April 8, 2026.

MOTION TO DISMISS BY THE ATTORNEY FOR THE CHILD

The complaint alleges, in summary, that R.B. suffered damages as a result of LeFevre having breached the duty she owed to R.B. as his attorney by, among other things, failing to: properly investigate the biological father's parental fitness, speak with R.B. about his experiences with the biological father and the child's wishes during the proceedings, and gain a thorough knowledge of the child's circumstances (see complaint ¶¶ 2, 12-19, 47-52, 56-60, 62-66, 73-74, 80, 82-83, 85-91, 103-116). On a motion to dismiss, these allegations must be accepted as true and plaintiff must be accorded every possible favorable inference. Accordingly, the complaint sufficiently pleads claims against the AFC for legal malpractice (see Miazga v Assaf, 136 AD3d 1131, 1133 [3d Dept 2016]; lv dismissed 27 NY3d 1078 [2016]; Bixby v Somerville, 62 AD3d 1137, 1139 [3d Dept 2009]), and for wrongful death arising therefrom, for which CCFC would be liable as her employer. LeFevre and CCFC do not move to dismiss based on a failure to state a cause of action, but rather based solely on the contention that the AFC is entitled to absolute quasi-judicial immunity in this action that was commenced on behalf of the child for claims arising from a custody proceeding, citing Bluntt v O'Connor (291 AD2d 106, 116-119 [4th Dept 2002], lv denied 98 NY2d 605 [2002]).

Bluntt does not establish that the AFC is entitled to immunity in this action. In Bluntt, the court held that an action brought by a parent asserting a claim for professional negligence against a law guardian appointed for the child in a custody proceeding should have been dismissed for lack of standing. The parent lacked standing to bring a claim as a representative of the child, pursuant to CPLR 1201, because the parent's interests were adverse to those of the child (see id. at 113-114). The parent also lacked standing to bring an action individually because the parent was not in privity with the law guardian (see id. at 114-115). The Appellate Division, Fourth Department, noted that the motion to dismiss the action based on the parent's lack of standing should have been granted (see id. at 113, 119-120). This determination should have ended the inquiry. However, no doubt due to the important policy considerations at stake, the court noted in dicta that, were it to address the merits, it would have found that a law guardian acting primarily as an aid to the court in determining the best interests of a young child, rather than as an advocate for the child's wishes, has absolute quasi-judicial immunity from claims made by "disgruntled parents" for acts within the scope of his or her appointment (id. at 116; see id. at 115-119). Thus, the Bluntt dicta stands, if at all, for the proposition that a law guardian is entitled to immunity against claims made by a parent, in his or her individual [*3]capacity, when the law guardian was acting as an aid to the court.^FN1

This action is not brought by a parent of R.B. who had an independent interest in the underlying custody proceeding. Rather, it is brought directly on behalf of the child by the administrator of his estate. This alone makes Bluntt inapplicable. Bluntt is further distinguishable because it was decided based on the policy consideration that law guardians should be entitled to quasi-judicial immunity to the extent they acted as an arm of the court in providing independent judgment to aid the court in determining the best interests of the affected child. This is not the role of an attorney for the child, who is required to act as an advocate for the child and not as an independent investigator or advisor to the court.

When Bluntt was decided in 2002, attorneys were appointed to represent children in custody proceedings as law guardians. There was traditionally long-standing ambiguity about the proper role of law guardians.

"First and foremost, the Law Guardian is the attorney for the child and must take an active role in the proceedings. In that role as attorney, the Law Guardian has the statutorily directed responsibility to represent the child's wishes as well as to advocate the child's best interest. Because the result desired by the child and the result that is in the child's best interest may diverge, Law Guardians sometimes face a conflict in such advocacy" (Matter of Carballeira v Shumway, 273 AD2d 753, 755 [3d Dept 2000], lv denied 95 NY2d 764 [2000] [internal quotation marks and citations omitted]; see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 241).

Nonetheless, "a Law Guardian may properly attempt to persuade the court to adopt a position which, in the Law Guardian's independent judgment, would best promote the child's interest, even if that position is contrary to the wishes of the child" (id. [internal quotation marks and citations omitted]). Thus, as can also be gleaned by reviewing the court's analysis in Bluntt, law guardians were often seen as exercising their independent judgment to aid the court in determining the best interests of the child rather than acting as advocates for the child (see Bluntt v O'Connor, 291 AD2d at 116-118 [noting the conflict between the roles of law guardian as advocate of the child and as representative of the court and concluding that the court benefits in determining the best interests of the child when the law guardian acts as a representative of the court by exercising his or her impartial judgment]). It was this role as an independent aid to the court that the Appellate Division, Fourth Department, opined justified extending quasi-judicial immunity to law guardians.

The role of a law guardian was later substantially clarified in October 2007, when section 7.2 of the Rules of the Chief Judge (22 NYCRR) was promulgated designating law guardians [*4]appointed pursuant to Family Court Act § 249 as attorneys for the child.^FN2 This rule also provides, in relevant part,

"In [custody proceedings], where the child is the subject, the attorney for the child must zealously advocate the child's position.

"(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.

"(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.

"(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position" (22 NYCRR 7.2 [d]).

Any former ambiguity in the role of attorneys for the child has been conclusively resolved by rule 7.2 and the recognition that an attorney for the child "is an advocate and neither an investigative arm of the court nor an advisor to the court" (Matter of VanDee v Bean, 66 AD3d 1253, 1255 [3d Dept 2009] [internal quotation marks, brackets, and citations omitted]). Indeed, an attorney for the child is permitted to adopt a position that does not reflect the child's wishes in only two circumstances: "specifically, when he or she 'is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child' " (Matter of Jennifer VV. v Lawrence WW., 182 AD3d 652, 653-654 [3d Dept 2020], quoting 22 NYCRR 7.2 [d] [3] [additional citation omitted]). In this regard, an attorney for the child may [*5]conclude that a child lacks the capacity for knowing judgment only when the attorney has "a thorough knowledge of the child's circumstances" and consults with, and advises, the child in a manner consistent with the child's capacities (22 NYCRR 7.2 [d] [1]; see Matter of Jennifer VV. v Lawrence WW., 182 AD3d at 654-655; Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 168 AD3d 1244, 1245 [3d Dept 2019]).^FN3 Indeed, the attorney for the child has a duty to advise the court of the child's wishes even in circumstances when the attorney for the child concludes that he or she is justified in advocating a contrary position (see 22 NYCRR 7.2 [d] [3]; Matter of K.G. v C.H., 163 AD3d 67, 81 n 5 [1st Dept 2018]). These provisions emphasize the role of an attorney as an advocate rather than an arm of the court (see Venecia V. v August V., 113 AD3d 122, 125-126 [1st Dept 2013]; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [3d Dept 2009]).

Thus, when LeFevre was appointed to represent R.B. in the custody proceeding commenced by the biological father, she was required to obtain a thorough knowledge of the child's circumstances, to consult with and advise him in accordance with his capacities, and to advocate on his behalf. In other words, she was required to act as his advocate and not as an independent aid to the court in determining R.B.'s best interests. Accordingly, even if the principle that was discussed in Bluntt was extended to cover claims brought directly on behalf of a child, rather than being limited to those brought by a parent, she was not acting as in a capacity that would have potentially entitled her to immunity under Bluntt.

The question thus becomes whether an attorney for the child has immunity against claims of legal malpractice asserted by a child the attorney represented in a custody proceeding. This issue does not appear to have previously been squarely addressed by a New York State court. However, the United States District Court for the Eastern District of New York, relying on an opinion of the Appellate Division, Third Department, which set forth the standards for effective representation of children in custody proceedings, has recognized that a cause of action for legal malpractice against an attorney for the child exists under facts similar to those alleged in this action (see Zubko-Valva v County of Suffolk, 2022 WL 2197137, *6, 2022 US Dist LEXIS 108489, *18-21 [ED NY June 17, 2022, No. 220-cv-2663, Korman, J.], citing Matter of Mark T. v Joyanna U., 64 AD3d at 1094-1095). Further, the Appellate Division, First Department, noted that an attorney for the child "no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards" in holding that a parent may assert legal malpractice as an affirmative defense to a fee claim of an attorney for the child (Venecia V. v August V., 113 AD3d at 126). If a parent may assert legal malpractice as a defense to a purely financial harm, then certainly a child who bears actual harm from a failure to meet professional standards should be permitted to assert claims of legal malpractice against an attorney for the child. Based on the foregoing, the motion to dismiss made by Lefevre and CCFC must be denied.

MOTION TO DISMISS BY CORTLAND COUNTY

The complaint alleges, in summary, that R.B. suffered damages as a result of defendant Cortland County, acting through the Department of Social Services by its employees and representatives, breaching the duties it owed to R.B., a child in its custody, by, among other things, failing to: investigate the foster mother's credible reports to DSS personnel that the child had been abused by the biological father, who was seeking custody; determine if placement with the biological father was appropriate; conduct a background check of the biological father's criminal history, which would have shown his previous conviction for endangering the welfare of a child; investigate the father's home or perform a safety assessment prior to the child's placement with the father; and monitor the child's health and wellbeing after the father was granted primary physical custody, or contact the Onondaga County Department of Social Services to do so (see complaint ¶¶ 1, 6-10, 25-46, 55, 57-61, 63-72, 75-79, 81, 83-102; see also NYSCEF Doc No. 47, plaintiff's mem in opp to motion number two, at 2-6).^FN4 On a motion to dismiss, these allegations must be accepted as true and plaintiff must be accorded every possible favorable inference. Accordingly, the complaint sufficiently pleads claims against Cortland County for negligence and wrongful death arising therefrom.^FN5 Cortland County seeks dismissal based on the arguments that it is entitled to governmental and judicial immunity and, further, that it owed R.B. no duty for the allegedly negligent acts.

Cortland County argues that it is entitled to governmental immunity because it owed no special duty to R.B. In this regard, it implicitly acknowledges that it owed R.B. a special duty while he was in the custody of DSS, but asserts that any such special duty was extinguished when Family Court granted joint legal custody to the child's biological parents and primary physical custody to the biological father. Cortland County also asserts that DSS had no ability to intervene in the proceedings incident to the father's petition for custody pursuant to Family Court Act article 6 which resulted in placement with the father. These arguments (1) obscure the fact that the primary alleged acts of negligence on the part of DSS occurred before the biological father was granted primary physical custody, when it is alleged that DSS failed, as more fully set forth above, to properly investigate his fitness as a parent, including the foster mother's report that the biological father had abused the child, and to advise the AFC and Family Court of the [*6]foster mother's report; (2) fail to acknowledge that when placement of the child was under consideration by Family Court, the child was in custody of DSS pending completion of the pending proceedings under articles 6 and 10 of the Family Court Act; and (3) ignore the fact that DSS, by its attorney, actively participated in the discussion regarding the father's article 6 custody petition and, indeed, consented to placement of the child with the father and recommended that the father be designated to supervise any visitation granted to the mother (see NYSCEF Doc No. 30, at 3, line 20, through 4, line 4).

Cortland County correctly concedes it owed R.B. a special duty while DSS had legal custody of him and placed him in foster care. The Court of Appeals has expressly held "that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child's placement with the municipality's choice of foster parent" (Weisbrod-Moore v Cayuga County, 44 NY3d 187, 194 [2025] [internal quotation marks and citation omitted]; accord Lemorrocco v Westchester County, 242 AD3d 1078, 1079 [2d Dept 2025]; see also Grant v Temple, 216 AD3d 1351, 1352 [3d Dept 2023]).

Cortland County's argument that its duty to R.B. ceased when Family Court placed the child with the biological father is unavailing for two reasons. First, its argument that placement by the Family Court broke any chain of causation is unavailing because R.B. was in the custody of DSS during the pendency of the article 6 custody petition when it is alleged the negligence occurred. The gravamen of the negligence claim is that (1) DSS had a duty to investigate the foster mother's reports of abuse by the biological father and disclose the foster mother's report and the results of its investigation to the AFC and Family Court so these factors could properly be considered in making a custody determination for a child who was then in custody of DSS; and (2) violation of that duty resulted to foreseeable harm to R.B., indeed, his death. Plaintiff specifically alleges that DSS was negligent in failing to investigate the foster mother's reports — made on February 25, 2024 and March 4, 2024 — that the father had abused the child, or to disclose her reports to the AFC and Family Court prior to Family Court approving a settlement that resulted in the parents sharing joint legal custody, with the father having primary physical placement.^FN6 Thus, the alleged negligence of DSS deprived Family Court of information that was [*7]highly relevant to its determination of whether awarding joint legal custody to the parents and primary physical custody to the biological father was in R.B.'s best interests.

Second, Cortland County's argument that DSS had no ability to participate in the article 6 custody proceeding is belied by the facts that show that its attorney advocated for a result in the article 6 proceeding. Indeed, the DSS attorney — whom it must be inferred had knowledge of the foster mother's reports of abuse by the biological father to DSS personnel — affirmatively proposed during the Family Court settlement conference that was held on March 13, 2024 — when the child remained in custody of DSS — that the mother have visitation supervised by the biological father or a person approved by him.^FN7 Accordingly, the allegations of the complaint, when accepted as true and construed to accord plaintiff every possible favorable inference, establish that Cortland County owed R.B. a special duty when DSS allegedly acted negligently. Cortland County's motion to dismiss on the basis of governmental immunity must, therefore, be denied.

Cortland County also seeks dismissal of the complaint based on the contention that DSS personnel are entitled to judicial immunity for any actions they may have taken in connection with Family Court's grant of primary physical custody of the child to the biological father.

"Courts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing. Judicial immunity discourages inappropriate collateral attacks on court rulings and fosters judicial independence by protecting courts and judges from vexatious litigation. . . .

"Recognizing the distinct nature of the judicial process, judicial immunity protects Judges only in the performance of their judicial functions. A logical extension of this premise is that other neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts. The common law provides absolute immunity from subsequent damages liability for all persons — governmental or otherwise — who are integral parts of the judicial process. Notably, this extension of judicial immunity to those [*8]whose actions are an integral part of the judicial process is limited. It is circumscribed to claims arising from the performance of the specific judicially delegated function" (Mosher-Simons v County of Alleghany, 99 NY2d 214, 219-220 [2002] [internal quotation marks, ellipsis, brackets, and citations omitted; second emphasis added]).^FN8

Thus, to attain dismissal of a complaint based on judicial immunity, a party must establish that the acts attributed to the party in the complaint constituted an integral part of the judicial process as delegated to the party by the court (see id.; Gotlin v City of New York, 90 AD3d 605, 607 [2d Dept 2011], affg 26 Misc 3d 514 [Sup Ct, Kings County 2009]). Agencies which actively assisted the court by performing investigations or otherwise gathering facts the court relied upon in making a custody determination have been granted judicial immunity (see e.g. Mosher-Simons v County of Alleghany, 99 NY2d at 217, 219-220 [DSS was granted judicial immunity after having completed home studies of all parties seeking custody as ordered by the court that were considered by the court]; Sean M. v City of New York, 20 AD3d 146, 157 [1st Dept 2005] [Child Protective Services was entitled to judicial immunity because it had responded to, and investigated, every allegation of abuse and generated detailed reports based upon home visits and extensive interviews that were used to assist the court in effecting placement]).

Cortland County failed to meet its burden of establishing that the acts attributed to it in the complaint were performed at the direction of the court or otherwise constituted an integral part of the judicial process. There is no allegation that Family Court ordered DSS to undertake any action or that Family Court relied upon any investigation undertaken by DSS. Rather, as noted above, the primary allegations asserted in the complaint against Cortland County are that DSS breached the duty it owed to R.B. as a child in its custody by failing to properly investigate the biological father's fitness to serve as a custodial parent while a Family Court article 10 proceeding was then pending — particularly in light of the disclosure made to DSS personnel by the foster mother that the child had reported the father had abused him during visits — and by failing to notify the AFC and the court in the context of the father's article 6 custody proceeding of the troubling allegations that were made by the foster mother. On the record presently before the court, DSS's role in the article 6 proceeding appears to have been limited to advancing conclusory proposals regarding custody and visitation without having provided any evidence or information for consideration by Family Court.

Indeed, the allegations made against Cortland County are strikingly similar to the allegations made against the New York City Administration for Children's Services (ACS) in Gotlin, namely, that the agency failed to investigate the circumstances of a 21-month-old child's placement before her death from a severe beating by the mother's boyfriend who allegedly had a prior conviction for assaulting a child. The court in Gotlin determined that ACS was not entitled [*9]to judicial immunity because it did not conduct an investigation as a delegated judicial function or provide any information that was relied upon by a court; in other words, the agency was not entitled to judicial immunity because it was acting in accordance with its regulatory obligations and had not become an integral part of the judicial process by performing a specific judicially delegated function (see Gotlin v City of New York, 90 AD3d at 607; Gotlin v City of New York, 26 Misc 3d at 521). Accordingly, Cortland County is not entitled to dismissal of the complaint based on judicial immunity. The court has considered the remaining arguments made by Cortland County and concludes that they are either academic or lack merit.

Based on the foregoing, the motion to dismiss made by LeFevre and CCFC (NYSCEF motion number one) and the motion to dismiss made by Cortland County (NYSCEF motion number two) are denied.

This decision constitutes the order of the court. The filing of this decision and order, or the transmittal of copies hereof, by the court shall not constitute notice of entry (see e.g. CPLR 2221 [d] [3]; 5513). The prevailing party shall serve notice of entry hereof as required by CPLR 2220 (b) and Uniform Rules for Trial Courts (22 NYCRR) § 202.5-b (h) (2).

Dated: June 4, 2026

Cortland, New York

ENTER

HON. MARK G. MASLER

Supreme Court Justice

The following documents filed with the Clerk of the County of Cortland via the New York State Courts Electronic Filing System were considered herein (see CPLR 2219 [a]):

Document Numbers 6-15; 19-23; 25-42; 44-47; 48-49; 51-55.