Appealing a CPS Finding Of Abuse Or Maltreatment In New York

If you have been reported to the New York State Office of Children and Family Services (OCFS) by a teacher, nurse, day care worker, or family member, Child Protective Services (CPS) (outside of New York City) or the Administration for Children Services (ACS) (within the five boroughs of NYC) will investigate the accusations.

My name is Rob Singer, and I am a criminal defense attorney based in Buffalo, New York, but I practice throughout New York State defending people indicated by CPS/ACS of child abuse and maltreatment. I founded my firm, Singer Legal PLLC, because I believe everyone who is accused of a crime or wrongdoing deserves a powerful advocate. If you have been accused of abuse or maltreatment, have an active CPS/ACS case, or would like to appeal a CPS/ACS “indicated” finding and remove your name from the State Central Registry, I can help.

Understanding An ”Indicated” Finding and Its Consequences

After CPS/ACS investigates an accusation of abuse or maltreatment, the investigating caseworker and the caseworker’s supervisor decide whether to “unsubstantiate” or “indicate” the accusation. The standard of proof that CPS/ACS uses to make this decision is a “fair preponderance of the evidence” – is it “more likely than not” that the evidence supports/does not support an indicated finding of child abuse or maltreatment. CPS/ACS makes this determination using the evidence they collect during their investigation. Often, the CPS/ACS investigation is inadequate, so the information the caseworker and supervisor use to make this determination is incomplete or incorrect.

When a fair preponderance of the evidence does not support a basis to indicate a report, the report is “unsubstantiated.” This is the best outcome because “unsubstantiated” reports do not resulted in your name being added to the State Central Registry. When a fair preponderance of the evidence supports a basis to indicate a report, the report is “indicated.” This is the worst outcome. An “indicated” finding means that CPS/ACS found credible evidence to conclude that you committed an act of child abuse or maltreatment. This does not necessarily mean that criminal charges of child abuse will be filed against you or that an abuse or maltreatment case will be filed against you in Family Court. However, having your name attached to an indicated report on the State Central Registry has consequences that can negatively impact your employment, your ability to parent, and your reputation.

The State Central Register for Child Abuse and Maltreatment

In New York, the State Central Register (SCR) for Child Abuse and Maltreatment is a registry designed to document and report incidents of abuse and maltreatment. If a CPS/ACS investigation concludes that a report against you is indicated, your name is added to this list. Being added to the SCR can have serious consequences.

Inclusion on the SCR can directly affect your ability to get or keep jobs working with children in schools, day care facilities, and youth organizations (i.e. Boy Scouts, Girl Scouts, and Youth Sports). If you work in a field that requires you to interact with children or perform child care responsibilities, an indicated SCR report could be used by an employer to terminate you for cause. If you foster or plan to adopt children, an indicated SCR report can be used by the Department of Social Services (DSS) or the foster agency to deny placement of foster children into your care and cause your adoption to be terminated. If you own a day care facility, an indicated SCR report against you or one of your employees can be used by your OCFS licensor to revoke or suspend your license, resulting in the closure of your facility. If you mentor or coach children, an indicated SCR report can be used to bar you from participating as a mentor, scout leader, coach, or volunteer.

In addition, SCR findings are frequently used by ex-spouses and others as proof of your unfitness as a parent in child custody proceedings. In other words, if you are a parent or a person who works with children, having your name added to the SCR can ruin your career and your relationship with your children.

How Long Does Your Name Stay On The SCR?

When child abuse is indicated, your name can stay on the registry until the youngest child listed in the report turns 28 years old. When maltreatment is indicated, your name remains on the registry for at least eight (8) years. After the conclusion of eight (8) years, your indicated report for maltreatment (not abuse) is eligible for “conditional sealing.” When an indicated report for maltreatment is conditionally sealed, your name still remains on the registry for at least four (4) more years, but disclosure of the indicated report is “limited” to certain entities. However, these entities include CPS/ACS, law enforcement, family courts, foster care agencies, childcare licensors, and childcare employers (i.e., day care centers and schools), so “conditional sealing” does little to protect you and your job. After twelve (12) years, so long as you have not been the subject of a new indicated report for abuse or maltreatment, the SCR seals your maltreatment report from disclosure. In other words, only after twelve (12) years does your name finally not get disclosed. But if you are indicated a second time, then the conditionally sealed report is immediately unsealed and you are not eligible for conditional sealing ever again. In other words, you have to wait until the youngest child mentioned in the report turns 28 years old.

The lengthy duration period that a report may remain on the SCR – in some cases for more than 30 years – makes it critical to appeal a CPS finding of indicated abuse or maltreatment. As a defense attorney with experience in appealing these unfair findings, I can help you file an appeal to challenge an indicated report and fight to clear your name from this long-lasting registry.

Appealing a CPS/ACS Report

If CPS/ACS determines that a report against you is indicated, you must follow a strict legal process to appeal the finding. Importantly, you only have 90 days to file your appeal.

The first step in the appeals process involves an administrative review by the OCFS. An administrative review is conducted by OCFS in Albany. You have the right to submit written materials and evidence for purpose of the review. The review typically concludes in 30 days. Most administrative reviews result in the indicated report being maintained on the SCR and unsealed, but Singer Legal PLLC has had success with getting reports “unsubstantiated” or sealed at the administrative review stage of the appeals process.

The second step of the appeals process is a fair hearing. If OCFS upholds the indicated finding after an administrative review, you have the right to request a fair hearing. A fair hearing is similar to a trial in criminal, civil, or family court. An Administrative Law Judge hears testimony, reviews evidence, and determines whether or not CPS/ACS has met its burden of proof and shown, by a fair preponderance of the evidence, that a report should be indicated and unsealed. You have the right to cross-examine the witnesses against you and call witnesses on your behalf. You have the right to discovery and to review the evidence CPS/ACS plans to present at the hearing. You also can present evidence and witnesses at the hearing, to include testifying on your own behalf.

CPS/ACS is represented at the fair hearing by a CPS/ACS attorney or paralegal who specializes in child abuse and maltreatment cases. These CPS/ACS attorneys and paralegals prepare their evidence and witnesses to beat your appeal and keep your name on the SCR. Representing yourself at a fair hearing without an attorney is not impossible, but it can be intimidating.

Because these deadlines are nonnegotiable and the stakes are so high, you should not try to navigate this complex system alone. As your CPS appeal attorney, I can step in to prepare the arguments, present the evidence, and fight vigorously to overturn the finding and clear your name.

Answering Your Frequently Asked Questions About CPS Findings and Appeals

As a domestic violence defense lawyer and a criminal defense attorney, I understand the sensitive nature of CPS proceedings. In addition, I know that you probably have a lot of questions about the process. Here, I have compiled answers to questions that I am often asked. If you have questions about your specific case, I offer an initial consultation appointment where I can answer your questions.

How can I fight false CPS allegations?

I have seen many good, caring individuals face false accusations, which can have grave consequences in relation to their employment. Fighting a false allegation requires an immediate and aggressive legal response.

When advocating for a client, I start by demanding a copy of the CPS/ACS report that initiated the investigation as well as a summary of the reasons for the indicated finding. Importantly, when you receive a letter from CPS/ACS that you were “indicated” as the subject of a report of abuse or maltreatment, the letter does not provide the reason why you were indicated and what was the basis for the indicating finding. So we know exactly what we are fighting, I request this information prior to filing your appeal.

Next, I gather and organize counterevidence. This includes:

• Witness statements from neighbors or teachers
• Medical records
• Phone records
• Video surveillance
• Photos

I use this information to aggressively challenge the allegations at every stage, from the initial investigation through the fair hearing. By attacking the credibility and accuracy of the report early, I work to ensure the case is “unfounded” and dismissed, protecting your reputation, career and your future.

Can an Administrative Law Judge overrule CPS/ACS at a Fair Hearing?

Absolutely. The ALJ holds the ultimate authority at a fair hearing, not Child Protective Services (CPS) or Administration for Children Services (ACS). Although caseworkers have the initial power to conduct an investigation and indicate a report, their decisions are always subject to judicial review. At a fair hearing, CPS/ACS is put to its burden of proof by me as well as the ALJ. If the ALJ finds that the evidence is insufficient, then the SCR report is “unfounded.” My role as your defense lawyer is to challenge the evidence CPS presents to the judge, ensuring that all facts are thoroughly scrutinized and that the court makes a decision based solely on admissible and relevant evidence.

What are the Two Question decided by a Judge at a Fair Hearing?

At a fair hearing, the ALJ decides two questions:

1. Does a fair preponderance of the evidence prove a basis for child abuse or maltreatment to substantiate the SCR report?
2. If a basis is proven, should the SCR report be disclosed to employers and other because the conduct is relevant and reasonably related to employment or licensure in fields working with children or vulnerable individuals?

Regarding the first question, there are twenty-two (22) separate reasons that can form a “basis” for child abuse or maltreatment. These 22 different “bases” for child abuse or maltreatment are defined by OCFS in its CPS Program Manual and include: Inadequate Guardianship, Excessive Corporal Punishment, Parental Drug/Alcohol Misuse, Educational Neglect, Medical Neglect, Sexual & Physical Abuse, and Lack of Supervision. Each basis contains legal elements/factors that must be proven by a fair preponderance of the evidence for a report to be indicated. At a hearing, the ALJ decides whether the facts presented by CPS/ACS meet the elements/factors defined as a “basis.” If the elements are not proven and do not meet the definition of the “basis” in the CPS Program Manual, then the SCR report is amended to “unfounded.” If the facts prove the elements, then the report is “substantiated” and the indicated report remains on the SCR.

Just because an ALJ does not find in your favor on the first question and “unsubstantiates” an SCR report does not always mean that you lose. The second question concerns whether the report should be sealed from disclosure. Sometimes, you may have done something that forms a “basis” for abuse or maltreatment, but this may be the first report filed against you or the conduct may be minor, dated, or involve private conduct with your own children rather than a student, player, or scout. In such cases, another way to win is to get the report sealed.

Regarding the second question, the ALJ evaluates whether the report is relevant and reasonably related to working with children. When evaluating this question, the ALJ considers:

• Extent or nature of the injury to the child
• Harmful effect on the child
• Events or circumstances surrounding what the subject did or did not do
• Subject’s and child’s age when the incident happened
• How much time has passed since the subject’s last CPS report
• Number of indicated reports the subject has
• If the allegations are related to a very serious injury or sexual abuse
• The act only occurred once
• Subject would respond differently if the same incident happened again
• Subject successfully participated in counseling, treatment, or a self-help group
• Since the report was indicated, the subject demonstrated success working in childcare

If a fair preponderance of the evidence shows that this is a one-time incident, that was not serious, you attended treatment, counseling, or training to address the incident, and the report is remote in time, then it is possible the ALJ will order the report “sealed.” When an SCR Report is “sealed,” the indicated report is not disclosed to an employer, youth sports league, or the scouts during an SCR database check. As a result, you can continue to work with children, for purposes of your employment or on a volunteer basis, without interruption.

What if I missed the 90-day deadline to file an appeal or I receive notice from the SCR that an employer made an SCR database inquiry about me. Can I still file an appeal?

Yes. If you missed the 90-day deadline, you can still file an appeal. OCFS will evaluate the reason for the missed deadline when deciding whether to allow you file late. Often, my clients file late because their prior attorney did not file in time or CPS did not mail the indication letter to the correct address, so my clients are not even aware of the indicated SCR report. If that is what happened to you, I can argue that your appeal should be reopened.

Additionally, when a current or prospective employer performs an SCR database check on you and this inquiry would require OCFS to notify your employer about an indicated SCR report, the law provides you an opportunity to challenge the indicated report before disclosure. In other words, generally, you still can appeal your case even if 90-days have elapsed.

What if I lost my fair hearing? Can I file a new appeal based on changed circumstances?

Yes. Under the law, if an indicated SCR report affects your employment or your custody, then you can ask to appeal your indicated report once every two (2) years (also known as biennial review). When you file an appeal under this provision of the law, your appeal goes through the same administrative review process and, if necessary, your appeal is assigned to an ALJ for a fair hearing. Usually, I argue that the incident that led to the indicated report now is remote in time, you attended (or continue to attend) treatment, counseling, or training to address the incident, and you have demonstrated the ability to be trusted again. After the passage of time and if you made efforts to address any problems or failures that may have contributed to the indicated report, then it is possible the ALJ will order the report “sealed.” OCFS and the ALJ use the same criteria discussed above to determine if a report should get “sealed.” You can file a biennial appeal once every two years until the report is officially sealed (after 12 years for maltreatment reports or after 28 years for abuse reports).

Talk To A New York CPS Appeal Attorney Today

If you are under investigation by CPS or have received a finding that requires your name to be added to the SCR, time is of the essence. In my role as your CPS appeal attorney, I provide clear, compassionate, and knowledgeable advice and answers during this stressful time. To schedule an appointment with me, you can send me a message through my website. You can also call Singer Legal PLLC at 716-222-3288. Let me help you get through this difficult and stressful process.