Always, Always, Challenge an “Indicated” Report of Abuse or Neglect

Posted in Uncategorized on November 16, 2020

Always, Always, Always, Challenge an “Indicated” SCR Report of Abuse or Neglect: The standards are higher for a neglect finding at the administrative review or fair hearing

 

New York State has three independent, though interconnected, systems of dealing with parents accused of abusing or neglecting their children.

First, there’s the Criminal Court, in which the parents can be prosecuted under New York’s Penal Law for any crimes endangering the welfare of a child.1

Second, there’s the Family Court, which can remove children from the parents’ home, place the children in foster care, require the parents to be supervised by New York City’s Administration for Children’s Services (“ACS”), require the parents to take parenting classes, terminate the parents’ parental rights to make the children available for adoption, or impose other conditions to ensure the health and welfare of the children.2

These two are judicial bodies, and the proof of abuse must be proven, in a criminal case, beyond a reasonable doubt,3 and generally in Family Court, by a “preponderance of the evidence.”4  Preponderance of the evidence means that the judge is left with the feeling that it is “more likely than not” that the abuse or neglect (called “maltreatment” in the Social Services Law) was in fact committed.

In addition to these two judicial bodies, New York State has an administrative office, the Office of Child and Family Services (“OCFS”)5 that maintains a Statewide Central Register of Child Abuse and Maltreatment (“SCR”).6 Before a person can get a job caring for, or teaching, children, the employer must obtain a report about them from the SCR.7 If a person seeks to adopt a child or is embroiled in a custody or visitation dispute,8 information provided by the SCR can be used against them. Thus, being listed on the SCR can have life-changing consequences.

In order to protect children, New York requires, mandates in fact, that many categories of professionals report any case in which they suspect a child might be abused or neglected.9 Doctors, teachers, police officers, therapists and camp directors, among many others, are all “mandated reporters.”10

After a report of suspected abuse or neglect is made, the OCFS or its designated agencies (in NYC it’s ACS) has 60 days to investigate.11 If the agency determines that there’s no credible evidence of abuse or neglect, then the report is marked “unfounded,” and the record is sealed or expunged–unavailable to employers.12 If the agency determines that there’s some credible evidence that the abuse or neglect occurred, than the report is marked “indicated” and will show up every time a report is run, until 10 years after the youngest child named in the report turns 18.13
For a report to be classified “indicated,” the agency need only determine that there was “some
credible evidence” that abuse or neglect happened. The agency doesn’t have to determine that it
actually happened. It doesn’t have to determine whether the allegation is true. It only has to find
that there is “some” credible evidence that it happened.
If a report is indicated, the subject of the report has 90 days to ask for an administrative review of
the determination.14 If the review doesn’t reverse the determination, the person can request a “fair
1. See, generally, NY Penal Law articles 260 & 263.
2. See, generally, NY Family Court Act (“FCA”) articles 10 & 6.
3. NY Criminal Procedure Law § 70.20.
4. FCA § 1046(b)(i).
5. http://ocfs.ny.gov/main/.
6. http://ocfs.ny.gov/main/cps/; Social Services Law (“SSL”) § 422.
7. SSL § 424-a.
8. See, e.g., SSL § 422(4)(A)(e) (permitting disclosure to a court in a proceeding in which the
information is necessary).
9. SSL § 413(1)(a).
10. Id.
11. SSL § 424(7).
hearing” before an administrative-law judge (“ALJ”).15 If the determination is still not reversed, the
only recourse is to commence an Article 78 proceeding in Supreme Court to compel the agency to
reverse its determination and expunge or seal the report.
In several cases in the 1990s, the United States Second Circuit Court of Appeals16 and later New
York’s highest court, the New York State Court of Appeals,17 held that applying a “some credible
evidence” standard deprived people of their constitutionally-protected liberty interests without the
due process of law. As a result, the Social Services law was amended in 2008, to require evidence
sufficient to prove, by at least a fair preponderance standard, that abuse or neglect actually
occurred.18 The standard, however, was changed only for the administrative review and ALJ
hearing. The standard of “some credible evidence” still remains for the initial agency
determination.19
As a result, every report will be “indicated” even if there is only “some” credible evidence, and even
if the evidence, viewed as a whole, is not deemed credible. You must initiate an administrative
review in order to trigger the higher standard of “proof by a preponderance of the evidence” and to
get the report marked unfounded if the evidence doesn’t meet that standard.
So always make sure to demand an administrative review within 90 days of receiving notice that a
report is “indicated.” If you don’t make a demand within 90 days, you forfeit your chance to
challenge it, and you lose the benefit of the higher standard of proof that the law requires at such a
review.20
ENDNOTES
12. SSL § 422(8)(e).
13. SSL § 422(6); SSL § 412(6) & (7).
14. SSL § 422(8)(a)(i).
15. SSL § 422(8)(a)(i). At such a hearing, the burden of proof is on the agency to demonstrate, by a
fair preponderance of the evidence that the acts were committed and are reasonably related to
employment with, or access to, children. SSL § 422(8)(b)(ii). Of course, if a Family Court
determined that abuse or neglect exists, the matter is conclusively established by an “irrebuttable
presumption.” Id.
16. Valmonte v. Bane, 18 F3d 992 (2nd Cir., 1994).
17. Matter of Lee TT v. Dowling, 87 NY2d 699 (1996).
18. SSL § 422(8)(a)(ii) (requiring OCFS to determine “whether there is a fair preponderance of the
evidence to find that the subject committed the act or acts of child abuse or maltreatment giving rise
to the indicated report and whether . . . such act or acts could be relevant . . . to employment . . . by
a provider agency . . . allowed to have regular and substantial contact with children . . . or . . . related
to the approval . . . of an application . . . to a licensing agency” (emphasis added)). But see SSL §
422(5)(c)(ii) (allowing, but not requiring, OCFS to expunge a report upon presentation of “clear and
convincing evidence that affirmatively refutes the allegation of abuse or maltreatment,” seeming to
impose, instead of a preponderance burden on the agency to prove the allegations, a higher burden
(“clear and convincing”) on the subject of the report to disprove its allegations).
19. SSL § 422(5)(a) (allowing an indicated report to stand if “there is some credible evidence of the
alleged abuse or maltreatment” (emphasis added));
20. Natasha W. v. New York State Office of Children and Family Services, — AD3d —, — NYS3d —,
2016 WL 6999574 at *4 (1st Dept., 12/1/2016).