How to Challenge an Indicated Report of Neglect or Abuse
By Joe Nichols February 1, 2020
Luke Babbie has an extensive amount of experience in Family Law. He wanted to share the following article with you:
Reports of abuse or neglect are made to the New York State Central Register (SCR), which is overseen by The Office of Children and Family Services (OCFS). The purpose of the SCR is to encourage reporting of suspected child abuse or neglect, which reporting is to be quickly investigated, and, if necessary, acted upon.
Reports of abuse or neglect are mostly made anonymously by the public or by mandated reporters (ie, teachers and doctors). Upon receiving a report, the SCR will determine if the report is one that should be investigated. If so, SCR will then forward the report to the local Child Protective Services (CPS) to investigate. CPS then has sixty days to investigate. They may interview the child(ren), make home visits, speak with family, friends, neighbors, teachers, doctors, etc.
A very important thing to understand is that at the investigation phase the standard of proof that CPS is basing their decision on is there “some credible evidence” of abuse or neglect. Put another way, is their some proof of abuse or neglect that is worthy and capable of being believed. This is a relatively low standard of proof.
At the conclusion of the investigation CPS may decide that the report was “unfounded”. IF CPS determines that the report was “unfounded” the report will be legally sealed.
CPS may alternatively decide that the report is “indicated”. In this event, a neglect or abuse petition may be filed and the subject of the report will have to go to Court to address the petition that has been filed. In this scenario, if the subject of the report wishes to challenge the report, they will still have to follow the below steps, but will have to likely wait until Court resolves the neglect/abuse petition before the indicated report will be changed. However, a report could be indicated without a petition being filed. Below addresses what to do in this situation.
Before addressing what to do if you are the subject of an indicated report, it is important that you understand the consequences of a report being indicated. If indicated, the report is maintained by SCR until the youngest child named in the report is 28 years old. Childcare employers, foster and adoption agencies may be notified of the report. Therefore, an indicated report will affect an individual’s ability to work with kids. In addition, Courts will be able to access this information and therefore this information could influence future custody proceedings.
The first thing you should do if you are the subject of an indicated report is, within ninety days of being indicated, send a letter requesting to be provided with the records in which the determination was made, that the determination be changed and if it is not to be changed then request a fair hearing. (It is wise to maintain a copy of this letter and send it return receipt requested.) For example:
N.Y.S. Office of Children and Family Services
Child Abuse and Maltreatment Register
P.O. Box 4480
Albany, New York 12204-0480
RE: Case ID: _____
Stage ID: _______
Date of Intake: ________
To Whom It May Concern:
My name is _____ (born, _____). I am in receipt of a letter dated ____ indicating that a Report of Suspected Child Abuse or Maltreatment against me has been “indicated”. I request that pursuant to Social Services Law § 422 (7), you provide me a copy of all records in your file regarding my family and I. Further, I also request, pursuant to Social Services Law § 422 (8), that you expunge, or amend and seal all records of this report. If you decide not to expunge, or amend and seal the report, I request that you provide me with a fair hearing to clear my name and to expunge or amend and seal the report.
It is very important to me that the above referenced “indicated” report be expunged or amended to indicate “unfounded” with said report sealed, as __(can include information to be considered upon review)___.
Very truly yours,
Once the subject of an indicated report sends the above it will trigger an administrative review by OCFS. OCFS will then review the investigative file as well as any information provided by the subject parent. At this point the standard of proof is now raised to the “preponderance of evidence” standard. Or, in other words, does the evidence that is being reviewed more likely than not support abuse or neglect.
After the administrative review the OCFS will notify the subject of the initial report that they have decided to change the report to unfounded and seal the records or they will schedule the matter for a fair hearing.
The fair hearing is much like a trial. CPS will present their witnesses and offer other evidence and the subject of the report will have the right to cross-examine the witnesses. The subject of the report may also call their own witnesses and offer their own additional evidence. The Administrative Law Judge (ALJ) will then determine, by “preponderance of the evidence”, if 1) the evidence supports that the subject of the report committed abuse/neglect, and 2) whether the neglect/abuse is “relevant and reasonably related” to working with children or caring for children. For this second issue, the ALJ may consider evidence of rehabilitation.
At the conclusion of the fair hearing the ALJ will issue a written decision. The decision could be to change the indicated report to unfounded and seal the records. Alternatively, the indicated report could be reaffirmed. Lastly, the decision could determine that the evidence proves that the subject of the report committed abuse/neglect but that the act(s) of neglect/abuse is not “relevant and reasonably related” to working with children. Under this scenario the ALJ could reaffirm the indicated finding but the subject’s name will not be released to potential employers and licensing agencies. (If you are unhappy with the outcome of a fair hearing you can then appeal under article 78 of the CPLR)
Please call us if you need help. We regularly deal with the Franklin County, St. Lawrence County and Clinton County Departments of Social Services.