Inadequate Guardianship Unfounded and Records Sealed – Dec. 2013

Martin Colin, P.C. announces an absolutely perfect outcome for a young teacher who had received an “indicated” report of child abuse or neglect from the New York City Administration for Children’s Services, the local child abuse agency for New York City.

(Previously, we posted an overview of Child Abuse and Neglect investigations, including procedures and timetables.  Find it here…)    Court-House-NY-County

The young teacher had received an “indicated” report of inadequate guardianship for failing to prevent a pre-school aged child from walking out of the school, across the sidewalk and into the street, directly into a lane of moving vehicles one afternoon in 2013.  

The teacher had been working at a pre-school facility in The Bronx, New York for over a year.  During his employment, he had already received one promotion from classroom teacher to administrator/program coordinator prior to this incident.

As soon as our office was retained:

  • We requested that the State Central Registry report be amended to be “unfounded.” We requested the immediate production of the entire investigation file of the local Child Protective Services office.
  • We requested that the New York State Office of Children and Family Services conduct its own investigation and, following its investigation, that NYS OCFS have the report amended, unfounded and sealed.
  • We demanded a “fair hearing.”

 State Central Registry reportAlthough all reports generated by the office of the Administrator for Childrens Services were provided to us, all of our other requests were summarily denied.

We promptly followed up with a demand that additional documentation be turned over to us, including: 

  • Intake Report.
  • Individual Report of Involvement.
  • Notification Letter.
  • Proof of Mailing of the Notification Letter.
  • Child Protective Record Summary.
  • Investigation Progress Notes.
  • Individual Progress Notes.
  • Criminal Justice Search.
  • Family Assessment and Service Plan. 

gavel-600x235A2Once again,  our request was ignored.  Even worse, we were notified that the child protective agency had conducted a review of the file and once again determined that the “indicated” report was the proper outcome to its investigation.

We continued the battle.  Next, we sought an Expedited Review from the New York State Office of Children and Family Services (expedited because our client’s job was on the line).  We alleged that the child had been placed in danger, not because of any act or omission by our client, but because the agency was chronically understaffed.

We alleged that just about every visit from the NYC Board of Education Universal Pre-Kindergarten instructional coordinator raised concerns that the site was understaffed and had inadequate staff to student ratios. We alleged that this understaffing had put the young child at risk and that the agency was unfairly “scapegoating” our client to cover up its own deficiencies.  Thus, this education site was willing to ruin a young teacher’s career to save its own reputation.  How disgusting.

Business Woman 2012 - Business AttorneysThis time, however, we struck a nerve.  A few weeks later, the New York State Office of Children and Family Services announced that a hearing had been held, that the record would be amended to “unfounded” that the file would be sealed and that the file would be closed forever.  

This resolution was a complete success for the client and a huge win for our firm.

 

Overview of Child Abuse and Neglect Investigations in New York – Nov. 2013

A Detailed Outline of the Procedures Followed in New York State in Child Abuse and Neglect Investigations was created by South Brooklyn Legal Services.  Some of the more important provisions are set forth below.  In our next post, we will discuss our recent success in overturning an “indicated” report.

State Central Register

iStock_000001983354_ExtraSmallChild abuse and maltreatment reports are made to the New York State Central Registry (SCR).  The SCR determines whether a report should be investigated.  If so, the SCR forwards it to the local child welfare agency.  In New York City, it is the Administration for Children’s Services (ACS).  In the remainder of New York State, it is Child Protective Services (CPS).  CPS (or ACS in NYC) must complete an investigation in sixty days which may include interviewing the children at home, making home visits, and speaking with family, friends, doctors and teachers.  The result of the investigation will be that a report is either “indicated” (some credible evidence of child abuse or neglect) or a report is “unfounded” (not able to verify it is true).

Indicated Reports

When a report is “indicated”, the local agency finds that there is some believable evidence that the report is true.  Indicated reports are kept at the SCR until the youngest child named is 28 years old.  Child care employers, foster care and adoption agencies may be notified of indicated reports.  Indicated reports can also keep an individual from employment in child care or with children, becoming a foster parent or adopting a child.  Child and law enforcement agencies and the courts will also have access to this information (i.e.: when custody issues are decided).

Unfounded Reports

A report is marked “unfounded” when the local agency is unable to verify that the report is true.  The report will be maintained at the SCR, but will be sealed.  This report is only available to the police or ACS when there is another investigation of child abuse or neglect involving the same family.  A sealed report is not available to employers or licensing agencies involved with the care of children.  Sealed cases will be expunged (removed from SCR records) when the youngest child named turns 28.  Unfounded reports can also be expunged if: 1) the source of the report was convicted for making a false report; or 2) the subject presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment.  The agency does not have to hold an expungement hearing.  You can request the report be expunged by making a written request to the NYS Office of Children and Family Services, Child Abuse and Maltreatment Register, 40 North Pearl Street, Albany, New York 12243.

Getting Information About your Case

Within 60 days of the start of the investigation the subject should receive a letter informing whether the report is unfounded or indicated.  You can request a copy of the report and any other reports the SCR has on you by making a written request to the address above. 

Challenging an Indicated Report

You can challenge an indicated report and have it sealed.  To do so, you must have been notified within the past ninety days, or if you never received the notification or if you were refused a job or a license less than ninety days ago as a result of the report.  A report cannot be challenged if there has been a court finding of abuse or neglect, or if you have admitted to abuse or neglect. 

How to Request a Fair Hearing

A written request must be sent to NYS Office of Children and Family Services, P.O. Box 4480, Albany, New York 12204.

If You Never Received Notice

If you never received notice of the result of the investigation you can still request a fair hearing even if the report was filed more than ninety days ago.  Your ninety days period starts when either ACS or the SCR notifies you.  The local agency has to prove that they notified you. 

If You Were Notified Within the Past Ninety Days

You should request the contents of the report and any other reports the SCR has on you by writing to the OCFS.  (Address is on the first page).  Also, request that the report be changed to unfounded and sealed.  Indicate your name, the report State Register number, and the names of any children that the report may have mentioned.  Send the letter return receipt requested so you have a record.

The Office of Children and Family Services (OCFS) has ninety days to conduct an internal review.  You may submit documents to be reviewed during this process.   If you do not submit any documents OCFS will only review the materials the ACS sends them.  OCFS may decide a report should be unfounded. 

A fair hearing should be scheduled automatically if the OCFS finds that it is more likely than not that you committed the acts described in the report, or if the review is not completed in ninety days.  (If a fair hearing is not scheduled, then you should request one).  You will receive a notice with the time and place of the fair hearing.  At the hearing you will have the opportunity to present your side of the story and any proof or evidence you have.  There will be two questions:

    • Did the abuse or neglect occur; and
    • If so, is it relevant and reasonably related to a job in childcare or licensing?

Any efforts at rehabilitation should be considered by the administrative judge.  If your report is found to be unfounded than it will be sealed (if the report was made on or after 2/12/96) or expunged (before 2/12/96).

If you lose the fair hearing, you can challenge this decision by filing a petition in Supreme court on the grounds that the determination was capricious, arbitrary, or not in compliance with the law.  You will need an attorney to file this petition. 

If You Received Notification that a Report was Indicated More than 90 Days Ago and are Now Being Denied a Job Based on the Report

Certain agencies and employers must check the SCR to see if an applicant has an indicated report.  There must be an SCR clearance if you apply for a license to be a foster parent, to adopt a child, or for a job involving “regular and substantial contact” with children.  If an agency or employer still decided to hire you, they must have their reasons in writing.  If your application is denied, the agency or employer must tell you if the denial was based on the indicated SCR report. 

If you have not had a hearing and an employer or agency submits a clearance request, the SCR should send you letter that there is an indicated report.  An internal review will be held by OCFS and you may submit evidence or documentation.  If you lose, you may request a fair hearing.  The only issue discussed will be whether the report is relevant and reasonably related to a job or a childcare license. 

Complex Estate Litigation Finally Resolved

Martin Colin, P.C. recently announced the settlement of a very complex lawsuit with overlapping estate litigation and family law issues.  The lawsuit was commenced in 2008 and finally settled in 2013.   This post is the second and final segment discussing this case.  The first segment, posted last week, outlined the relevant facts.  This final post discusses the court’s ruling on the summary judgment motions that brought about the settlement.iStock_000007007990_ExtraSmall

I refer you to last week’s post (click here) for the material facts.

You will recall that the second wife had divorced the decedent in 2001.  When he suddenly and unexpectedly dropped dead during his marriage to the third wife, in 2008, his body was not even cold yet when the second wife signed up an estate litigation lawyer and rushed to the Westchester County courthouse, armed with her Separation Agreement as well as her Judgment of Divorce, and demanded every last dime she was entitled to pursuant to their divorce agreement.Marriage Break Up

Elevating aggressive lawyering over common decency, while the third wife was making funeral arrangements and mourning her loss, the second wife charged into the Supreme Court seeking injunctive relief and a freezing of assets.  (Note that the second wife’s first move was not to Surrogate’s Court, against the estate, but to Supreme Court, seeking to enforce her contractual rights contained in the Separation Agreement against the third wife directly.)  Fortunately, the judge of the Supreme Court, Westchester County, refused to freeze assets.  Thankfully, the judge let the third wife grieve and bury her husband, in peace, while the judge contemplated the best course of action to resolve the case.

When the parties finally arrived in Supreme Court, the third wife sought to compromise the case, so that she could put this conflict behind her and she could return to grieving.  But the second wife wouldn’t have any part of it.  The second wife demanded $160,000 to settle a $60,000 claim.  When the third wife refused to negotiate against such a ridiculous demand, the second wife once again returned to her favorite activity, aggressive lawyering, and filed a second lawsuit: this time estate litigation in Surrogate’s Court, seeking the entirety of the estate.

The legal grounds beneath all the second wife’s lawsuits?  The second wife made an unusual legal claim in each lawsuit.  In the first action, filed in Supreme Court directly against the third wife, the second wife claimed that the New York State Court of Appeals, the highest court in our state court system, had ruled in 1984, in Rogers v. Rogers, that if the dead husband had promised life insurance to a prior wife, but contrary to his promise, changed the beneficiary to his current wife, and died, then the court could take those assets away from the current wife and give them to the past wife, pursuant to their divorce agreement.  In the second action, filed in Surrogate’s Court against the decedent’s estate, the second wife claimed that the Separation Agreement made her a creditor against the estate with special priority that would ensure that her claim against the estate would get paid first. 

Obviously, by now you have figured out why these two unusual legal claims were so important to the second wife: because the decedent husband had died with a very small estate.  Not enough assets to pay everybody he owed.  So in order to be made whole, the second wife either had to move to the front of the line, in terms of being paid out of the estate funds, or she had to be able to reach assets that were not part of the estate, such as the life insurance proceeds paid to the third wife directly, which passed to the third wife ‘outside of the estate.’ 

Before long, these two estate litigation cases, i.e., the Supreme Court case and the Surrogate’s Court case, were combined into one consolidated case before one judge in the Supreme Court, Westchester County.  However, the combined case was passed along a series of three or four judges between 2008 and 2013.  Finally, in 2013, the fifth and final judge to be assigned to this case reviewed and decided cross-motions for summary judgment.gavel-600x235A2

After having reviewed all the facts, and after having carefully considered all the legal arguments submitted by both sides, the Supreme Court, Westchester County, rendered a decision.  The Court ruled:

  • The deceased husband did owe the full amount of the life insurance to the second wife.  But this debt was to be paid by the estate, not by the third wife, because the second wife failed to demonstrate that the estate did not have sufficient assets to pay this debt.
  • The deceased husband did owe his share of unreimbursed medical expenses and summer camp expenses for the children (incurred during his lifetime), even though the second wife did not establish that she ever submitted the bills to the deceased before his death.
  • The deceased husband would be required to contribute toward the youngest child’s college expenses even though the Separation Agreement stated that the two parents would mediate the issue.
  • Thus, in making the rulings set forth above, the court agreed with the third wife that the husband was not required to contribute to any expenses incurred after his death, but the court rejected the third wife’s arguments:  that the second wife’s claims were barred by the statute of limitations; and that the second wife could obtain contribution only if she had submitted the expenses to the husband while he was still alive.
  •  Finally, and most importantly, the court denied the third wife’s claim that the estate and/or the third wife had to reimburse her for allegedly incurring approximately $100,000 in attorney’s fees.  (Our fees were less than 1/2 of this amount.)  The court ruled that, under divorce law, the second wife was not entitled to an award of attorney’s fees because she was not a “non-monied spouse” under DRL 238, and because she had not demonstrated that the deceased husband had “willfully” refused to pay a court-ordered obligation under DRL 237.

Upon review of this decision and order, the second wife immediately took steps to appeal.  However, with this ruling, it also became abundantly clear to the second wife that she would never recover anywhere near the $160,000 which she was demanding to settle this claim.   Based on the court’s ruling, set forth above, this claim was worth, at best, $60,000.  And a huge portion of that amount would have to be paid over to the second wife’s lawyers.  For all these reasons, the claim finally settled for an amount far less than $60,000.iStock_000001983354_ExtraSmall

As this case demonstrates, our attorneys have been successful in estate litigation.  In addition, we are experienced matrimonial lawyers. Resolving this case involved a complex interplay between estate law, domestic relations law and contract law.  The attorneys at Martin Colin, P.C. can be contacted by telephone at (914) 771 7711.  Let us help you successfully resolve your legal matters.

Divorce or Separation – Dec 2012

The New York State Bar Association has published a brochure demonstrating the requirements for marriage and divorce in New York State. These are some of the New York State Bar Association’s findings:

  • The necessary elements for a contested divorce are:imprisonment for 3+ years; or
    adultery; or
    cruel or inhuman treatment; or
    abandonment for 1+ year; or
    1 year living apart under a separation agreement; or
    1 year living apart under a separation decree granted by a court; or
    irretrievable breakdown of the marriage.

Although many people do not contest the reason for a divorce or separation, in New York the following circumstances alone are not grounds for a divorce: incompatibility, irreconcilable differences and/or a “dead” marriage. In addition, New York courts have also made the following rulings:

  • Condonation after the discovery of adultery by a spouse is a defense to the divorce action based on adultery.
  • A court may declare a marriage void when a spouse has been incurably mentally ill for a period of 5+ years.
  • Abandonment means that your spouse has intentionally left without your justification, consent, and of his/her own accord.
  • Divorce will not be granted if both spouses have committed adultery.
  • If one spouse actively encouraged the other to commit adultery, the court will deny the divorce.
  • A man and woman must be legally capable of entering a valid marriage.
  • An annulled marriage is also known a void.
  • A spouse is granted five years from the discovery of the first unforgiven act of adultery for them to bring the divorce action.
  • Both parties must be over the age of 18 years unless a party is between 16 and 18 years old and has parental consent to marry or is under 16 years and has both parental and court approval to marry.
  • No person under the age of 14 years may marry under any circumstances.
  • A marriage can be dissolved with proof that a spouse has been absent for five years without being known to be alive; believed to be dead; and that efforts were made to discover if he/she was alive and no evidence was found.
  • After dissolution becomes final, the reappearance of the absent spouse does not revive the marriage.
  • Spousal maintenance may be awarded to either party based on a number of factors (including but not limited to: prior standard of living, the present and future earning capacity or the parties, and the ability of the spouse seeking spousal maintenance to become self-supporting.)
  • Spousal maintenance may be waved by written agreement.
  • Child support is no longer an obligation once the child reaches the age of 21.
  • The basic child support obligation to be paid by the non-custodial parent is based upon a percentage of the combined parental income.

Call us now at (914) 771 7711 and let us apply our expertise to your case.

Appeal Victory Upholds Mother’s Right to Child Support

Martin & Colin, P.C. announces that it has won an appeals court victory in favor of a divorced, working mother receiving child support from the child’s father, who is now her ex-husband.

The father had returned to court to obtain a reduction in his child support obligation based upon his claimed reduction in earnings. The trial court denied the father’s request for a downward modification of his child support obligation. The father appealed.

In a memorandum decision dated March 15, 2011, the Appellate Division, Second Department, affirmed the order of the trial court. The amount of child support the father is required to pay to the mother remains unchanged. In its decision, the appellate court made two points: 1) that a parent’s child support obligation is not necessarily determined by his or her current financial condition, but rather by his ability to provide support as well as his or her assets and earning powers; and 2) that the father in this case had the necessary skills and ability to obtain higher paying employment.

A portion of the appellate court’s decision is below:

Here, the Supreme Court found, in effect, that the appellant’s financial documentation provided an incomplete account of his finances. It further found that the appellant, a former law firm partner who specialized in corporate transactional work, had the necessary skills and ability to obtain employment in a different legal practice area. Thus, the Supreme Court found that the appellant failed to establish the requisite change of circumstances warranting a downward modification of his child support obligation (see Family Ct Act § 413 [1] [a]). Upon our review of the record, we find no basis to disturb that determination.

The lawyers at Martin & Colin, P.C. successfully represented this working mom on the appeal. The decision is published at: http://www.nycourts.gov/reporter/3dseries/2011/2011_01964.htm

Call Us Now – (914) 771 7711

The experienced family court lawyers at Martin + Colin, P.C., headquartered in White Plains, handle child support, child custody, child neglect, juvenile delinquency and other family court matters.  If you are in need of a family court attorney, Martin + Colin, P.C. may be able to help. Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.