How to Fight a Child Services “Indicated” Report

On Behalf of The Law Offices of Joseph H. Nivin, P.C.

Your next steps to fighting an “Indicated” report from Child Protective Services are critical. Child protective services investigations are frightening and humiliating. It adds insult to injury when, after an investigation, you get a letter saying that the report was “indicated.” This means that child protective services, whether it was the Administration for Children’s Services (ACS) in New York City, or the Department of Social Services in another county, found “some credible evidence” that you abused or neglected a child in your care. To make an “indicated” finding, the caseworker does not even have to find that the abuse or neglect probably happened, only that there was “some credible evidence” that it did.

Even with this low standard, the consequences are high. The report will remain on file with the New York State Office of Children and Family Services (OCFS) until the youngest child in the report turns twenty-eight (28) years old. If you apply for a job in the child care field (teacher, teacher’s aide, paraprofessional, day care worker), or to become a foster or adoptive parent, then the “indicated” report will hurt your application. If you are engaged in custody litigation, there is a good chance that the other party will find out, and that he or she will use it against you in court.

You can fight the report. You have ninety (90) days to request that the report be amended to “unfounded,” meaning that there is no credible evidence of abuse or neglect. That request must be made in writing. Your letter must include your name, address, and the case number, which can be found on the letter that you received from the agency. The letter should state that you were the subject of the indicated report, and request that the report be amended to unfounded, or in the alternative, that it be referred to the Bureau of Special Hearings. You will send it to the Office of Children and Family Services, PO Box 4480, Albany, NY 12204.

Everybody requesting that amendment has to sign the letter. Therefore, if report was indicated against you and your spouse, you and your significant other, you and your parent(s), etc., then all of you need to sign the letter seeking an amendment. In the meantime, get into services. What this means is that you need to address whatever alleged behavior led to the “indicated” finding. It is not an admission of guilt. If the allegations were of excessive corporal punishment, then take parenting skills and anger management classes. If you were accused of drug or alcohol abuse, then get into a

treatment program. If the allegation was of mental illness, then get into mental health treatment. Make sure to give your treatment your best effort, get good reports from your providers, and keep those reports in a safe place.

You will get a response from the State. In most cases, the letter will state that the Office of Children and Family Services decided to uphold the indicated report, and that the report was reasonably related to an application to become a foster or adoptive parent or to employment in the child care field. That means that the State decided to keep everything the same. Your case will be sent to the Bureau of Special Hearings, where you can continue to fight the report.

You will then get a letter from the State telling you the date, time, and location of your first appearance. As the letter will state, the first appearance will be for a conference only, which is a nice way of saying, “Nothing will really happen.” While the letter will tell you that you will find out who the agency’s witnesses will be, and what evidence it will present, at the hearing, you should not count on that actually happening.

At the conference, you will receive the case record, which contains detailed notes about everything that the agency did during its investigation. The record will include the reason why the agency concluded the investigation as indicated. You will also meet the judge and the agency attorney. You will get a new date for a hearing.

At this point, the reports from your service providers will be important. You should send copies to the agency attorney, which may, or may not, convince the agency to agree to unfound the report without a hearing.

If the agency decides not to agree to unfound the report, then you will have a hearing. It will be important to get updated reports from your service providers beforehand.

The hearing is very informal. The case record will go into evidence. The agency will usually call the caseworker as a witness, who will testify to his or her investigation. You (or your attorney) will get to cross-examine the caseworker. Hearsay is admissible, meaning that the caseworker can testify to what other people said. In some cases, the agency will call more than one witness. The agency may also submit documents, photographs, etc. into evidence.

After the agency presents its case, then you will get to present your own. At this stage, you will present evidence to show that the allegations were not true. You will testify, meaning that either you will simply state your side of the story, or if you have an attorney, he or she will ask you questions about what happened.

After you present your side of the story, the agency attorney will get to ask you questions, designed to show either that what you are saying is untrue, or that there is more to your story than what you presented.

You can also present documents, photographs, etc. that support your side of the story. If you want, you can also call other witnesses, who the agency attorney will also get to cross-examine.

After you present your case, the judge will ask whether you want to present anything with respect to “R & R.” That stands for “reasonably related,” and means, “Let’s say that I find that you did the things that the agency says you did. Why shouldn’t it hurt you if you want to become a foster or adoptive parent, or get a job in the child care field?” You should present updated reports from your providers. You can tell the Court about what led to the allegations (a toxic relationship, death/illness in the family, mental or physical health issues), what changed, your remorse, what you’ve learned from the service providers, etc.

You will then get a letter in the mail, stating whether the judge decided to overturn the report and make it unfounded, or whether to keep the report as indicated. If the report remains indicated, and you wish to challenge it, you will have to file for an Article 78 hearing. You will need an attorney for this.

If you win the hearing, and the report is unfounded, then you are in good shape. If you apply for a job in the child care field, or to become a foster or adoptive parent, then the employer or the foster care/adoption agency will not find out about the report. Also, if you have a custody case in Family or Supreme Court, then the report should not be considered. (However, your ex can still testify to his or her version of events, even if they overlapped with CPS’ findings. Your ex simply cannot use the fact that the agency indicated the report based upon those events.)

If the judge finds that the allegations in the report were true, but that they were not reasonably related to becoming a foster or adoptive parent or getting a job in the child care field (in other words, but you’re better now), then that has the same effect as if the judge found that the report was not true. In other words, while it would be more of a moral victory if the judge found that the report was based upon lives, your life will be exactly the same if the judge instead finds that you did what you had to do to become a better person.

An attorney who is familiar with OCFS fair hearings can help you if you end up on the wrong side of a CPS investigation. The Law Offices of Joseph H. Nivin, P.C. has significant experience representing people in fair hearings challenging indicated reports. Call (347) 642-0376 for a consultation at a reasonable rate.

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