Should I Admit Neglect When Challenging a CPS or ACS Indicated Case?

Lawyeratdesk-300x200In this blog we’re going to be talking about the administrative process that occurs when someone challenges an indicated finding of neglect or abuse.

If there is a complaint made to Child Protective Services (the agency responsible if it is on Long Island or outside of New York City) or the Administration of Children’s Services (the agency responsible for New York City), a process begins. The agency has 60 days to either indicate the case (aka determine that the case is founded) or decide that the case is unfounded (aka not indicated).

There is a low standard applied in the initial indicated determination of “some credible evidence” in order to decide whether to indicate the case or not. Because of this low initial standard, some cases that are relatively minor or there is weak evidence get indicated initially despite the low amount of evidence of neglect.

If the person is indicated, then they, or their family law attorney, have 90 days to submit a written request to ask that the case be reviewed and amended to unfounded. The indicated person can also ask for the report to be amended to correct any mistakes. You can also request that the case be found unrelated to working with children, so you can continue in your career.

This process is separate and apart from any proceeding brought in family court against someone for abuse and neglect. The indicated finding and challenge process is an administrative determination and process. An abuse or neglect process in family court doesn’t always take place if someone is indicated.

What Happens When An Indication of Neglect is Challenged?

If someone wants to challenge the indication of neglect, then we usually begin with a letter to the Office of Children and Family Services (OCFS) for that client. We request a copy of the report of the incident, that the case be amended to unfounded, and that a determination be made that it is not relevant and reasonably related to employment and licensure for the client to work with children. This triggers an administrative review in Albany. The administrative review is done solely on papers where the administrator is in Albany at OCFS. The review consists of a review of the report made by the local CPS or ACS worker and any information submitted by the person that was indicated or on his or her behalf by their lawyers.

When I’m working on an indicated case, I begin gathering information that needs to be considered as quickly as possible. This can happen before I even send an initial letter, provided that there is time before the clock expires. This allows us to try and convince the OCFS to change the determination at the administrative review. I can prepare arguments on why a case needs to be amended to unfounded. However, even if the case remains indicated it might still be possible for a determination to be made that the case is not relevant and reasonably related to employment and licensure to work with children. This can be very important for people who work with children.

Information collected can include:

  • Seriousness of the incident;
  • Effect on the child(ren);
  • Rehabilitation of the applicant;
  • Number of past incidents;
  • Character letters from people that know the indicated person;
  • Evidence of a successful history working with children

During the administrative review, the agency will look at whether there’s enough evidence for the case to stay indicated or not, and if it’s relevant to licensure or employment. This evidence standard has a higher burden than some of the credible evidence standards applied in other cases.

If the challenge isn’t successful at the administrative review stage, a fair hearing can be scheduled in the county where the investigation started. At this hearing, the person challenging the finding will attend, along with their attorney (if any). This is sometimes where people have a better opportunity of getting cases blocked for licensure and employment purposes. Most judges will allow someone to make a case that an indication should be amended to unfounded and in the alternative, if it remains indicated that it should still be blocked for employment and licensure purposes.

Protecting Employment and Licensure

In my opinion, it’s crucial to try to know your judge’s stance on the hearing when you’re trying to fight for an unfounded definition in your case. If you aren’t successful in convincing the courts to amend your case status, then the most important thing you can do is make sure that the indicated case doesn’t affect your livelihood. You may even decide that you need to stipulate on Prong 1 and admit that a case should or will stay indicated. If this happens you can move right ahead to prong 2 where you will be presenting the facts that would allow a court to decide that it is not relevant and reasonably related to employment and licensure and should therefore be sealed for that purpose.

In my experience, most judges will allow a presentation via both prongs. However, there are times when a person may decide that they want to consider stipulation on prong 1 anyway. For instance, this may be the case if it seems obvious that the case will continue to be indicated against the client. This can help to avoid ugly testimony about abuse or neglect which may convince the judge that a case is relevant to licensure and employment. Also, in these more obvious cases, a client acknowledging incorrect conduct can show that they are taking steps to accept responsibility and ensure that what happened doesn’t occur again in the future. But, there are some judges (I met at least one) that will not consider blocking the case for employment and licensure if the person fights the indicated finding and is not successful. If that is the view of the judge someone is in front of then a serious consideration about whether or not to stipulate to prong 1 needs to be made. Of course, if the case is amended to unfounded then whether it is relevant to employment or license becomes a moot point.

There are cases wherein a person who might not have made exactly the right decision in an instance concerning a child will not be guilty of abuse or neglect. In this case, challenging the whole situation may still make sense. Each case, as is usually found in family law needs to be analyzed carefully. To discuss your case, please contact us for your free initial consultation. Up to the first thirty minutes is free.

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