Challenging an Indicated Finding by Child Protective Services
If you ever discover yourself within a situation wherein you have been made the subject of a report made to the New York Child Protective Services or Administration of Children’s Services (CPS/ACS), it is important to ensure you know your rights. Although an experienced lawyer can be your first line of attack when challenging an indicated finding, it can be useful to learn as much as possible at the process of dealing with such situations. This information is primarily based on the New York Social Services Law.
First of all, it is worth noting that the subject of a report to ACS/CPS retains the right to avoid cooperating in their investigation. The subject is not required to allow the caseworker into their home, and they are not under any requirement to speak with the caseworker, either. If the subject in question refuses to cooperate in these circumstances, then the protective services do not have the ability to force their way into a home. Instead, caseworkers must approach the Family Court and request a judge to evaluate the situation and decide whether there is sufficient evidence to order that the subject allow child protective services into their home. Please do not take this entry as advice not to cooperate when Child Protective Service is trying to make an investigation as not cooperating with the investigators might have its own negative consequences. Also, many, if not most investigations, result in an “unfounded” determination. The information that one does not have to cooperate without a court order is simply to inform about rights that a lot of people do not know about.
What’s more, unless the report is indicated by CPS or the investigation of a report determines that there has been some credible evidence of the alleged maltreatment or abuse, any information that is contained within the report must be sealed. For reports issued before February 12th, 1996, the data much be expunged from the local district offices and State Central register. The State Central Register is a format used to screen adoptive parents, foster parents and current or prospective employees who have had, or may have frequent and significant contact with children. Applicants who are screened for employment purposes will be given due process protection as specified by New York Law.
The Central Register is reviewed to consider whether a person applying for particular positions has been the subject of indicated maltreatment or child abuse reports. Such positions in need of investigation may include: A foster parent, adoptive parent, child care worker, child care facility, employee of a daycare center, family support, teacher and so on. People who are being considered for employment in a residential or public child care facility will be prohibited from unsupervised contact with children until they have successfully been screened through the Central Register. Any individual over the age of eighteen who resides in the same home of a person who has applied to become an adoptive parent foster parent, or a person operating a group day care home or family day care group must also be screened.
When you are made the subject of a CPS/ACS investigation, you have the right to be notified of the findings in writing within sixty days. If the letter you receive states that the report is unfounded, then the matter will be closed and no further action will need to be taken on your behalf. However, if CPS/ACS determines that report that has been made against a subject is founded, you will receive a letter saying the report has been indicated against you. In other words, this simply means that there was some credible evidence to establish neglect or abuse against children. If a report is indicated against a subject, then they will only be given ninety days to challenge those findings and request that the report given be amended to read unfounded. An administrative review will be done based on this request. Sometimes an indicated finding is reversed right away. If , however the report is not amended right away, you will be given an opportunity to have a “fair hearing” which offers you the chance to clear your name, with the assistance of an attorney if you choose to retain one (this is advisable), at a hearing to take place before an administrative law judge.
If the report against a subject has been indicated, then ACS/CPS may act in one of two ways. The first option is to indicate the report and take no further action against the subject except for the fact that their name will remain on the child abuse register until ten years after the eighteenth birthday of the youngest child on the report. The second option is if a report is indicated against you, and CPS/ACS determines that the conduct is serious enough to warrant intervention from the family court, the county attorney can file a petition for neglect or abuse against you under an “N” docket, which will require a court appearance if not many court appearances.
When a reported child turns eighteen years old, access to that child’s record will only be permitted if the offspring of the reported child, or a sibling of that child is suspected to be a victim of maltreatment or abuse. The record of the report must be expunged ten years following the eighteenth birthday of the youngest child that has been mentioned within the report.
At any time, the subject of an indicated report may receive a copy of all the information that has been contained within that report, upon request. However, the State commissioner for family services and children should redact data that could identify the person who initially made the report in certain cases. What’s more, the office of children and family services could choose to prohibit the release of any information that identifies a person cooperating within the investigation of a report, if they believe that information to be detrimental to the safety of the person. Regardless of the circumstances, the commissioner may, at any time, expunge, seal or amend any record as a result of good cause shown, and will give notice to the subject and the persons who have been named in the report.
If a person decides to make a report alleging maltreatment or child abuse with the knowledge that the report has no basis, the office of family services and children, or the local service for child protection is required to refer those (suspected) cases to an appropriate law enforcement official or district attorney’s office. Baseless, or false allegations of maltreatment and child abuse that have been reported to the State Central Register turn the children and the falsely accused into victims. Unfortunately, the ultimate tragedy is that the life another child could be at stake while the protective services wastes their time investigating a false report.
As always, please feel free to explore our other blog entries and web pages for further information about family law, child protection and other matters. If you need further help, call us today about your free initial consultation; it would be our pleasure to speak with you.