The Fair Hearing to Challenge an Indicated Child Protective Services Matter

Fair Hearing when Challenging “Indicated Findings” by Child Protective Services or the

Middle aged advocate prosecution with juror and judge sitting in the background

Administration For Children’s Services (CPS and ACS)

No matter what the reason behind a hearing may be, one thing that all of my clients should have access to is a fair hearing if they want it. The right to a fair trial is fundamental to the rule of law, and it applies to civil and criminal cases alike. The right to a fair trial or hearing requires a fair public hearing within a reasonable time by an impartial tribunal established by the law. This blog will cover exactly how a fair hearing should go when it is for the purpose of challenging an “indicated” finding by Child Protective Services.

So, if the case has proceeded to the scheduling of a hearing, that means a caseworker has investigated the case and made an initial determination that the case was “founded” or “indicated”. This means that they believed there was some credible evidence to believe that the allegations involving child neglect or abuse occurred. It also means that the person that was “indicated” or who the case was “founded” against made a timely request to challenge the finding. An administrative review happened after the timely challenge and the review did not overturn the initial indicated finding. Therefore the fair hearing is now scheduled.

Rather than the investigating caseworker making all the decision in the case, when the hearing or an initial conference is set to take place, it’s important to ensure that a hearing officer is present (an administrative law judge), that makes all procedural rulings. That hearing officer may choose to make an opening statement before processes begin simply to describe the nature of what is about to happen, which issues need to be determined, and how the hearing is going to be conducted. Each party involved in the hearing will have the right to be represented by a fair hearing lawyer or legal representative of their choice, to have witnesses give testimony or have material and relevant evidence provided on her or his behalf, or cross examine opposing witnesses. At this hearing the burden of proof is entirely on the presenting agency to prove their allegations by a fair preponderance of evidence (that it is more probably true than not). Conclusory statements are not enough, there needs to be proof. So, the fair hearing has a higher burden of proof than the initial investigation (fair preponderance of evidence v. some credible evidence). Also, the appellant has the right to challenge whether the indicated finding, if it stands after the hearing, is reasonably relevant to employment to make it searchable for certain jobs in which people have contact with children. Therefore it is possible to have the finding not be visibly searchable, even if the indicated finding remains.

Although the technical rules of evidence typically followed within a court of law will not apply during these hearings, any evidence that is introduced must be both material, and relevant. What’s more, the officer will be responsible for excluding any irrelevant evidence or testimony that is unduly repetitious. All testimony that is given during a hearing to challenge indicated findings must be given under affirmation or oath – unless the testimony being given comes from a child that is too young to fully understand the meaning of an affirmation or oath. If requested, copies of the documentary evidence issued by the social service official, or State Central Register of Child Abuse and Maltreatment must be provided to the person launching the appeal at a time that is deemed reasonable in connection with the hearing.

Evidence in a case such as this one can come in many forms. For instance, evidence may be supplied in proof that the individual appealing the case abused or maltreated any other child through documentation of proof of injuries that a child sustained. Other evidence could include photographs, writing, or records made on an act, occurrence, or event relating to a child abuse or maltreatment situation by a public or private agency or hospital. Similarly, the court may regard any private statements made by the child in question relating to allegations of maltreatment and abuse as admissible in evidence. However, it’s important to note that the testimony of the child is not necessary during the hearing to support a finding of maltreatment or abuse. The appealing party may also supply their own evidence as a way of rebutting any presumptions made and evidence presented.

If the “indicated findings” suggest that a child has suffered emotional or mental health impacts as a result of the appealing party’s inability or unwillingness to exercise a reasonable degree of care towards a child, then evidence may come in the form of an expert testimony or competent opinion. This testimony may include proof that such impairment was lessened, or remained the same during a time when the child was in custody or the care of someone other than the appellant.

The record of the hearing to challenge “indicated findings”, including the recommendations that are given during the process by the hearing office – will remain confidential. However, it is possible for either party or their representatives to examine that record at a reasonable time, in a place that is regarded accessible to them. The record is expected to include:

  1. All intermediate rulings, records, and notices maintained in the State Central Register for Child Maltreatment and Abuse
  2. The recording or transcript of the hearing and any exhibits received as evidence
  3. Matters that have been “officially” noticed
  4. Offers of Proof and Questions, rulings thereon, and objections thereto
  5. Any proposed exceptions or findings
  6. Any report that was rendered by the hearing officer present
  7. Any request made for the hearing officer to be disqualified
  8. The decision of the hearing

Hearing decisions that are made by the court must be issued and delivered by the commissioner or by a member of their staff who have been specifically designated to consider the hearing record. The decision should be solely based on the record of the hearing, and it must be in writing that describes the issues involved in the case, and recites the relevant facts, department regulations, and pertinent provisions of the law. The decision that is found must also make appropriate findings, state the reasons for the determination, determine the issues, and when necessary direct specific actions that must be taken by parties involved within the hearing. If the hearing does not go the appellant’s way, then they have the right to bring the matter into a New York Supreme Court via a process called an Article 78 proceeding in order to further challenge the finding.

For hearings that are held according to section 424-a of the law of Social services, the decision must be copied, and a copy sent to the appellant and their attorney, or any other designated representative within 60 days of the record being closed. The same applies for hearings held pursuant to section 422 of the law of social services, however a 90-day time period is permitted.

As always, if you would like to learn more about hearings, issues regarding “indicated findings”, or anything else to do with family law, please check out our other Web pages and blog entries for further information. Please also feel free to contact us about your free initial consultation too – it would be our pleasure to speak with you.