If a report of child abuse or neglect has ever been made against you to the New York Administration for Children's Services - even if your child was never taken away and the case was closed - there may still be a report against you on file in the New York State Central Register.
Brooklyn ACS attorneys know that it is important to seek sealing or expungement of any old ACS records. These files could be accessed by a future employer if you ever decide to apply for a job working with children. They may also be dredged up if you ever want to foster or adopt a child or even if you try to seek custody of your own children.
No one from the state is going to contact you to inform you that these records exist, or to let you know that you have the right to seek expungement. But chances are, if there has ever been an allegation of abuse or neglect made against you - no matter how erroneous - a file exists.
ACS cases in New York generally follow this track: Reports of neglect and abuse of children are made to the SCR. Officials with that agency make the determination of whether a report should be investigated. If a positive determination is made, the case is then forwarded to ACS (formerly the Bureau of Child Welfare). From the time that report is forwarded, ACS personnel have two months in which to complete an investigation.
These investigations can involve social workers conducting home visits, interviewing the children at the home and talking with teachers, doctors, relatives or clergy.
At the close of the investigation, a social worker will make the determination that the allegation was either "unfounded," meaning there is not enough evidence to suggest the allegation was true, or "indicated," meaning there is some believable evidence that child neglect or abuse has occurred.
In cases that are "indicated," the file is kept on file until the youngest child named in the report turns 28 years of age. An "indicated" report is available not only to potential employers and family courts, but also to police, district attorneys and child welfare agencies.
Cases that are "unfounded" will still be kept on file until the youngest child turns 28, but they will be automatically expunged at that time. Prior to that, they will still be available to police or ACS officials if they launch another investigation into the welfare of children in your care.
The first thing to do is to find out if the SCR has a report on you. If so, you can request to have the report sealed or expunged. However, it's possible the agency could deny your request. In this case, you have the right to request a hearing.
In some cases, it can also be valuable to request records from any clinics, hospitals or doctors from whom you or your children received treatment in the course of your case. Some agencies can take a long time filling these requests, and if you don't make them to the proper party, they can take even longer. Here again is a good reason why having an attorney with experience.
Be mindful that you have 90 days from the time you receive notice that your name is on an SCR file in which to initiate the process to have the case sealed or expunged. That's why a lot of times, people who make the request are told their request was not filed timely. An attorney can help you in this matter by reminding the agency of a 1988 policy memo indicating that denial of a late notice requires ACS to prove they did in fact send the notice to you of the expungement process within 90 months. In many cases, this is enough to convince the agency to reconsider your request.
Unfounded reports are often - but not always - expunged on the first request.
Those with indicated reports can request an administrative review to have an administrative law judge consider expungement or sealing. At this review, the court will consider your request and may even come to the conclusion that the original report was unfounded. In this case, your records can be sealed right away. If not, however, you can request an administrative hearing.
At the hearing, the two issues to be decided will be:
- Did neglect or abuse occur?
- Whether that neglect or abuse is relevant and reasonably-related to your working with or caring for children?
You can have witnesses testify on your behalf at the hearing. You can present medical evidence. Educational evidence. Employment evidence. Reports on therapy or rehabilitation. Anything that would show that whatever led to the maltreatment has been addressed.
At that point, the administrative law judge overseeing the proceedings will make a decision. Even if the judge decides against you, you have the right to an appeal. An appeal in these cases can be brought on the grounds that the decision was arbitrary, capricious or not in line with the law.
If you need help expunging a Brooklyn ACS case, call our offices at (718) 864-2011.