Experienced and Trusted Legal Representation for Indicated ACS Cases
The Gilmer Law Firm, PLLC, has been representing parents, educators, physicians, psychologists, law enforcement officers, childcare providers, and others who have been indicated in an ACS (Administration for Children’s Services) or CPS (Child Protective Services) case for the past twenty years. As a defense attorney for CPS/ACS cases, I will utilize my extensive experience to help clear your name from the State Central Register.
The main difference between ACS and CPS is that ACS is the Child Protective Services agency responsible for handling abuse and neglect cases in New York City.
ACS Or CPS Case: The Investigation Process
An ACS or CPS case begins when an anonymous call is made to the New York State Central Register (SCR). If the call is about you, you become the “subject” of the report, and the agency may conduct an investigation for up to sixty days to determine if you are guilty of abuse or neglect.
If you are the subject of the report, CPS will most likely show up at your door within 24 hours of the call. Shortly after the report is made, the assigned caseworker will provide you with a letter notifying you that an investigation against you has commenced. During the early stages of the investigation, CPS will decide whether to bring the case to court. This stage is known as an Article 10 case, which requires court intervention to protect the child. Even if your case doesn’t go to court, the investigation will continue. Under most circumstances, ACS will visit you twice a month for sixty days. They will interview the children under your care and request medical and other service provider authorizations to speak to providers or obtain records. Before you agree to disclose any information to CPS, it is wise to consult with an investigation attorney like myself. I have witnessed many subjects of reports making mistakes during the investigation process. Subjects often provide too much information or say things that are detrimental to their case.
Indicated vs. Unfounded Cases
After 60 days, ACS or CPS will send you a letter stating the findings of the investigation. If the finding is indicated, it means the agency has found you guilty of abuse or neglect. If the finding is unfounded, it means you are not guilty. If you do not receive the letter with the investigation results after sixty days, you should request it from the caseworker handling your case.
In some cases, individuals are unaware that they have been indicated in an ACS/CPS case. It is common for people to discover this when they apply for jobs involving the care of children or developmentally disabled adults. Upon discovery, you will receive a notice of the indicated case and information about your appeal rights.
Timelines And Deadlines For Filing An Appeal
If your case is indicated, it is advisable to seek the assistance of a knowledgeable ACS/CPS defense attorney to appeal your indicated case. You have 90 days to file an appeal after receiving notification of the indication. An indicated CPS/ACS case can prevent individuals from working with children or the disabled.
After submitting the appeal, an administrative review will be conducted to determine whether the decision will be upheld. If you lose during the review, your case will be referred to an administrative law judge (ALJ) who works for the Office of Children and Family Services (OCFS), and a hearing will take place. The presenting agency, either ACS or CPS, will be required to prove their case by a preponderance of the evidence, meaning they only need to establish a 51% likelihood of their case being valid.
During the hearing, CPS or ACS will present their evidence, typically consisting of case notes. It is rare for ACS to call in witnesses to testify. This places individuals appealing the case at a disadvantage since hearsay is allowed in child abuse and neglect cases. Your attorney will review the case notes and identify gaps in the investigation. You will likely have to testify and present evidence in your defense, with the right to cross-examine any witnesses.
Social Services Law Section 422 Hearing
In a Social Services Law section 422 hearing, two prongs are considered. The first prong determines whether the abuse or neglect occurred. Social Service Law § 412(2) states that, for the purposes of placing a responsible adult on the Child Abuse Register, a “maltreated child” includes a child under eighteen years of age defined as a neglected child by the family court act.
The first inquiry is to determine whether a parent or guardian failed to exercise a minimum degree of care under the circumstances. The relevant question is whether a reasonable and prudent parent would have acted or failed to act in the same manner under those circumstances. Case law clarifies that a child may be adjudicated as neglected under Family Ct. Act § 1012(f)(i) when a parent knew or should have known of circumstances requiring action to avoid actual or potential harm to the child but failed to act accordingly. Once it is established that a minimum degree of care was not exercised, the judge will consider whether the child’s physical, mental, or emotional condition has been impaired or was in imminent danger of impairment due to the parent’s failure to exercise a minimum degree of care. Undesirable behavior by a parent does not automatically lead to a judge upholding the agency’s finding without the requisite harm or imminent harm to the child. If you succeed in the first prong, your record will be sealed. If you lose in the first prong, you proceed to the second prong.
The second prong is known as the relevant and reasonably related standard. If the ALJ determines that the abuse or neglect occurred under section 422 of the Social Services Law, you can demonstrate that despite the abuse or neglect, it is not relevant and reasonably related to your employment or ability to care for children. The second prong is crucial because a finding that the abuse or neglect was not relevant or reasonably related will result in your name being sealed.
Factors Considered In Determining Relevance and Reasonable Relation
To determine the relevance and reasonable relation of the abuse or neglect finding to employment, the ALJ will consider various factors. These include the severity of the incident, the nature and extent of the child’s injury, the harmful effect on the child, the circumstances surrounding the incident, the age of the subject and child when the abuse or neglect occurred, the time elapsed since the subject’s last CPS report, whether you would respond differently if the same event happened again, and many other factors. During the prong two hearing, you can also present character letters from individuals who have observed you working with children.
It is important to note that an ACS or CPS case can be appealed under section 422 or 424 of the Social Services Law. However, appealing under section 424 is not advisable as you will not be allowed to prove the second prong. Under section 424, if a finding is made against you, you will be listed on the SCR as having committed abuse or neglect without the ability to clear your name using the relevant and reasonably related standard.
The Importance of Legal Representation
I have seen many clients make this mistake by appealing under section 424 instead of 422, and I have had to request OCFS to convert the case to a 422 case. OCFS does not always grant this request, which is why it is wise to hire an attorney before submitting appeal papers.
With twenty years of experience as a defense attorney and investigation attorney for ACS/CPS cases, I have successfully defended hundreds of individuals accused of abuse or neglect in administrative proceedings. I have achieved a success rate of over 90% in these proceedings. Please contact me for a free phone consultation.