Long Island Family Law and Mediation Blog
Law is an ever dynamic and changing field, which responds to evolutions in our society and the way we live. When changes occur to laws which may influence my clients, I attempt to offer an overview in the form of these blogs and articles, to assist in developing a deeper understanding.
Recently, changes occurred within the standards used to “indicate” a case in Social Services law. These changes were introduced within “Part R” of chapter 56 of the laws of 2020 – sometimes referred to as the “SCR reform legislation”. Among other alterations, the new law changes the standard of evidence which must be implemented when determining whether to indicate a report of child abuse or maltreatment.
The new standard adapts the rule from providing “some credible evidence” to providing “a fair preponderance” for evidence. Let’s take a closer look at the changes.
Introducing the Recent Changes
In social services law, an “indicated CPS report” of child abuse or maltreatment has potential consequences, including the potential for an individual’s actions to be disclosed in a database check which may be produced by the SCR for continued or potential employment, licensure, or opportunities to work with vulnerable people or children.
Additionally, an “indication” may also be disclosed in future legal actions taken in family court regarding visitation and child custody. Plus, it may be considered by the CPS when an individual is undergoing investigation for child abuse or maltreatment. The indication may also be the basis of filing petitions within family court pursuant to FCA article 10 alleging neglect or child abuse. It may be the basis for removing a child from a home in these proceedings.
Clearly, the outcomes of an indication can be extremely significant, which is why it’s so important for the right standard of evidence to be in place. The latest reform legislation is now officially in action since January 2022, influencing the level of “proof” required to initially indicated a case. This law raises the legal standard for proof to “some credible evidence” to the term “a fair preponderance” for evidence.
It used to be that while the standard of some credible evidence was used to determine whether or not to initially indicate a case, when people challenged that indication then the standard of fair preponderance of evidence was applied to determine whether or not the indicated finding should remain. The fair preponderance standard was used at the first level of review of the challenge, the “Administrative Review” which happens just on reviewing documents made by the CPS investigator and anything that the appellant or appellant’s attorney provides. Then, if the challenge did not overturn the indicated finding at the administrative review level (sometimes it gets overturned there, sometimes it does not), then a Fair Hearing is scheduled in front of an Administrative Law Judge and the Fair Preponderance standard is applied again. It seems to make sense for the same standard to be applied to initially indicate a case as that which will be applied to review whether or not the indicated finding is proper.
What Does a Fair Preponderance Mean?
According to guidelines provided by the New York State Office for Children and Family Services, “some credible evidence” is defined as something worthy of being believed. Alternatively, a fair preponderance requires the evidence to outweigh other evidence which is intended to oppose it. I was always taught that this means “more probably true than not” or, if we want to put a percentage on it, great than 50% likely, so, 50.0001% would qualify.
In other words, this would mean under “some credible evidence”, the CPS would only be required to find some evidence credible enough to substantiate a specific allegation of potential child abuse or maltreatment. Alternatively, to establish a “fair preponderance” of evidence, the CPS must weigh the information available comprehensively, and determine whether the evidence which supports the allegation is stronger than the evidence fighting against it.
Using this standard, CPS needs to remain mindful certain pieces of evidence are often more compelling than others. Additionally, when determining whether a report of abuse or maltreatment should be indicated, the CPS must determine whether the evidence supports the idea that the child in question is either a “maltreated” or “abused” child as these terms are defined by the law.
Notably, the enacted SCR reform legislation does not alter the legal definitions of a maltreated or abused child. The new law also makes no changes to the criteria otherwise utilized by the SCR when determining whether a report of suspected abuse or maltreatment should be registered.
Using a “fair preponderance of the evidence” as the legal standard for these cases requires the CPS to take a more comprehensive view of all the evidence, to determine whether more evidence may be available to indicate abuse or maltreatment was not an issue, than evidence available to suggest otherwise. The CPS must also consider the credibility of all evidence collected from various sources.
To indicate a report of child abuse or maltreatment accepted by the SCR after January 1st, 2022, the CPS must now determine and document that the fair preponderance of evidence does exist to demonstrate the child is either “abused” or maltreated.
Indicating a Case in Social Services Law
Crucially, when a case is being indicated for abuse or maltreatment, the case record presented must demonstrate how the subject of the report failed when required to exercise the “minimum degree of care”. This can be showing how someone failed to act within the best interests of the child and it caused imminent danger or impairment to the physical, mental, or emotional state of the child.
The ability to demonstrate the subject of any report’s failure to show a minimum degree of care without showing impairment or danger of impairment to the child’s condition isn’t sufficient on its own to indicate a report of maltreatment, however. Conversely, demonstrating the child’s mental, physical, or emotional condition was in danger, or was impaired without showing how an impairment was caused by a failure to exercise a minimum degree of care cannot be sufficient to indicate a report.
Clearly, there are a number of complex factors in place when it comes to determining whether a report of maltreatment or abuse can successfully be indicated or not. Considering these concepts carefully is often essential for anyone involved in these cases.
Speaking to a legal professional with experience working to challenge indicated findings or to try to block the indicated finding for employment and licensure purposes for working with children, even if the indicated finding stays, might be helpful to fighting your case effectively. If you would like to discuss a case related to this new update to the law, contact our office today to arrange a time for your initial consultation. Up to the first 30 minutes is free.