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. 

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