Child Protective Services (CPS) is a New York State governmental agency which was created by the Child Protective Services Act of 1973 in order to promote a more thorough reporting of child abuse and maltreatment. The agency investigates reports and provides rehabilitative services. CPS maintains a 24 hour hotline to assist in the reporting of any alleged child abuse and maltreatment.
If an alleged mistreatment is reported, a case worker is assigned to investigate. This includes interviewing the reporter, visiting the home, and the case worker will reach out to third parties in order to gather more accurate information. If the case worker feels immediate action is necessary, the child may be removed from the home. If you are implicated in a CPS case, you could lose custody of your child or face criminal charges.
If the case worker finds evidence supporting the alleged abuse, the report is termed to be “indicated.” The worker will create a plan to help the child and family remedy the situation. The case worker can petition the Family Court to mandate remedies as well.
If you are “indicated” in a CPS case, you will receive a letter from the New York State Office of Children and Family Services Bureau. You have the right to seek to have the finding overturned. Further, you have the right to a hearing. You have the right to hire a family law attorney in Suffolk County and Nassau County to represent you at the hearing. At the hearing, both sides will present evidence, and an administrative law judge will decide which side has evidence that outweighs the other. If you lose in the hearing, you have the right under Article 78 of the Civil Practice Law and Rules to file a lawsuit against the investigating agency within four months of the decision. If you receive any communication from CPS, contact the Law Office of Robert H. Montefusco, P.C. to see how one of their attorneys can assist you.
FREQUENTLY ASKED QUESTION REGARDING CHILD PROTECTIVE SERVICES & CHILD NEGLECT HEARINGS AFTER A FINDING OF “INDICATED.”
Why did I get a letter asking me to show up for an initial appearance or hearing?
You are considered to be the Appellant( s) in this matter and have been scheduled for either an initial appearance or a full hearing pursuant to section 422 and/or 424-a of the Social Services Law (SSL). If the letter you receive from the New York State Office of Children and Family Services Bureau of Special Hearings (BSH) tells you that you are to appear for an initial appearance, it means you are not having your full hearing that day. You will meet with the Administrative Law Judge (ALJ) and the other side to discuss what will happen at the hearing and how you can prepare for the hearing. At this initial appearance, you will be given a date by the ALJ to come back for a full hearing. If the letter that you received from BSH tells you that you are to appear for a full hearing, see the answer to next question.
What should I bring to the Hearing?
If the letter you receive from BSH tells you to appear for a hearing, you must bring with you to the hearing, a copy of the letter, as well as three copies of all documents you want the ALJ to consider as evidence. You should also bring any witnesses you want to have testify for you at the hearing.
May I be represented by an attorney at the hearing?
What if I need to adjourn my hearing?
Adjournment requests must be made, in writing to the assigned ALJ at least five days prior to the scheduled hearing date. Requests made by phone and/or in less than five days prior MAY be granted under extraordinary circumstances. The adjournment reason must be stated and, where possible, supported by documentation.
What happens if l fail to appear at my initial appearance and/or hearing?
You will be deemed to be in default. The report will be retained by the State Central Register until ten years after the 18th birthday of the youngest child named in the report; whether or not that child was considered abused or maltreated. The existence of the report will be disclosed to licensing and provider agencies authorized to inquire pursuant to SSL § 424-a.
What is the evidence standard at the hearing?
The investigating agency must show that the indicated findings are supported by a “fair preponderance of the evidence” defined as “evidence which outweighs other evidence offered to oppose it.” 18 NYCRR 424.10.
What issues are decided at the hearing?
If your hearing is held pursuant to SSL §§ 422 or 424-a, the investigating agency has the burden of proving by a fair preponderance of the evidence that the abuse or maltreatment alleged occurred. If your hearing is held pursuant to SSL § 422, you have the burden of proving whether the abuse or maltreatment, if proven, is no longer relevant and reasonably related to child care issues.
How will the investigating agency present its evidence?
The investigating agency may present evidence in the form of witness testimony or documents they prepared or obtained during the course of its investigation.
When can I review what will be offered into evidence by the investigating agency?
Pursuant to OCFS regulations regarding your hearing, you are entitled to a copy of all documentary evidence the investigating agency intends to introduce as exhibits at the hearing. These documents should be provided to you at the initial appearance or mailed to you provided to the start of your hearing.
Can I challenge the evidence offered by the investigating agency?
Yes. You may object to the documents being introduced at the hearing and the ALJ will decide if the documents are allowed into evidence. You will also be given the opportunity to question any witnesses who testify for the investigating agency: this is known as cross-examination. The investigating agency will also have an opportunity to challenge the evidence offered by you and to ask questions of you and any witnesses you call to testify.
What is the State Central Register (SCR) Packet?
Prior to your first appearance, you should receive a packet of information from the New York State Central Register of Child Abuse and Maltreatment. This will be referred to as the SCR packet. The SCR Packet is entered into evidence at the hearing. It is not, however, entered into evidence to prove the allegations against you. It is presented to establish what information is on file at the State Central Register that you are seeking to have amended.
How can I present my evidence?
First, you can testify. Your own testimony is considered to be “evidence.” You have the right to not testify, but unlike criminal proceedings, your silence may be held against you. Second, you can submit any evidentiary documentation that directly relates to the findings contained in the indicated report(s). You should bring to the hearing an original and two copies of any document or photograph that you wish to present. Audio or video recordings will be retained by the ALJ.
May I present witnesses to testify on my behalf?
Yes. Your witness testimony should directly relate to the findings contained in the indicated reports(s) or to the issue of whether the report is still relevant and reasonably related to child care.
What should I do if my witness is unable to appear in person?
You may present statements, sworn affidavits or letters from witnesses who cannot appear in person. Letters should be dated, signed and, if possible, acknowledged before a Notary Public. Please be advised that the ALJ can give less weight to such statements, affidavits, or letters because they are not subject to cross-examination.
Is the hearing recorded?
Yes. Speak loudly and clearly. Avoid gestures as they will not be picked up by the recording device.
How will the outcome of my hearing be communicated to me?
Once the hearing is over, a written decision will be mailed to you and to your attorney.
What happens if the decision says I won my hearing?
The decision will explain that the indicated report or reports will be amended to reflect that you did not do the acts of abuse or maltreatment. The report or reports will not be disclosed to agencies who ask about them.
What happens if the decision says I lost my hearing?
If the decision states that the report or reports will remain indicated against you because the investigating agency proved the abuse or maltreatment, you may bring a lawsuit in accordance with Article 78 of the Civil Practice Law and Rules. You must start such a lawsuit within four months after the date of the decision.