What to Expect from a Child Protective Service (CPS) Investigation and How to Appeal

              Investigations conducted by Child Protective Services (CPS), or, in some counties, known as Department for Children, Youth and Families, or Department of Social Services, are often a difficult issue for any parent or custodian to deal with and process.  Often, parents who  believe they are doing the right thing can find themselves at the center of an investigation when they did nothing wrong.  When neglect, abuse, or maltreatment is alleged, CPS is obligated to conduct an investigation as to the allegations and will issue a determination on whether or not the report is “indicated” or “unfounded.” These investigations are at the discretion of an assigned caseworker who may not have an adequate understanding of all of the facts and circumstances. Often times, conflict can arise between the parents or custodians and the caseworker during the investigation and it is important to speak with an attorney about how to protect yourself during this process.

              At the conclusion of the investigation, CPS will issue a decision on the investigation as a whole.  If the report is unfounded, then the case is closed. In the alternative, if the report is “founded” or “indicated,” it means that CPS found a preponderance of evidence to support the claim that a child has been abused, neglected, or maltreated. If the CPS report is founded, it is critical to engage an attorney who is knowledgeable as soon as possible, and before the sixty (60) day deadline to review or appeal the decision, due to the lasting implications that having an indicated report may have, including but not limited to, in both the realm of Family Court as well as barring you from obtaining employment in certain fields.  Further, indicated reports of abuse are reported to the New York State Central Register (SCR), and are kept until the youngest child in the family at the time of the investigation turns twenty-eight (28) years old.  However, indicated reports of maltreatment cannot be disclosed in an SCR clearance after eight (8) years. 

              If you believe your report was wrongfully indicated, and may negatively impact your child custody or employment, it is critical to begin an appeal through the Office of Children and Family Services immediately as you have a limited window to do so, or as mentioned above, within sixty (60) days from the date that you receive “Notice of Indication.” Once you begin the appeal process, you will undergo an Administrative Appeal with OCFS, where you will receive the CPS investigation file to review, and you will be able to submit any documentary evidence and statements you may have relative to the accusations.

              After Administrative Review, if your report is still indicated, you will be able to proceed to what is called a “Fair Hearing” through the Office of Children and Family Services under Social Services Law (SSL) §§ 422 and 424-A.  This Administrative Hearing is similar to a Court case, where the DSS will have the burden of proof to show that the neglect, abuse, or maltreatment alleged in the report is substantiated by a preponderance of the evidence.  Having an attorney who can guide you on the nuances of the Hearing will be paramount in helping you achieve a successful result at the Hearing.

              The issues to be decided at the Hearing are two-fold:

(1) Whether the neglect/ abuse/ maltreatment actually occurred; and

(2) If the neglect/ abuse/ maltreatment did occur, is it reasonably related to your employment?

Often, if you are unsuccessful on the issue of whether the neglect/ abuse/ maltreatment occurred pursuant to SSL § 422, but you are able to show the presiding Administrative Judge how this is not reasonably related to your employment through introduction of evidence and statements on your behalf, the indicated report can be sealed for purposes of your employment. For some cases, this is the best possible result at the Hearing and is critical to saving the parent’s or custodian’s employment.

              CPS investigations and the corresponding Fair Hearings are some of the most difficult experiences that a parent or guardian can go through and it is highly recommended to seek the advice of legal counsel to advocate for you throughout the process.