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Saturday, December 25, 2021

How do you expunge an ACS case?

As an ACS Defense Attorney at the Gilmer Law Firm, PLLC, I have for twenty years represented people indicated by ACS (CPS) and have helped many expunge their cases. My clients ask me how do I expunge a finding against me?  I tell them expunging a case is a two step process, first you must get it sealed. This can either happen after an Administrative review of your case by OCFS or after a fair hearing that you win.  After that you must write a letter to OCFS stating that you want the case expunged. The Administrative Law Judge (ALJ) in a fair hearing case can only seal a case, the ALG has no authority to expunge a case. People, lawyers and Courts often confuse the terms, seal and expunge. The difference between sealing an indicated case and expunging a sealed case is that a sealed case still remains in the OCFS database and can be reopened by CPS under limited circumstances. An expunged case is removed from the database completely. The benefit of expunging a case is that no one can see that you once had a case. If another case is brought against you by ACS involving the same child or that child’ siblings, they will see that you had a prior case. The fact that you had a case may subject you to more scrutiny by ACS.

 

Sealing an ACS (CPS) case

 

A case starts with someone making a call to the State Central Registry (SCR) accusing you of abusing or neglecting you child. Next the child protective agency knocks on your door demanding to see your child. Without a Court Order you do not have to let them in, but you not letting them in may lead to ACS going to Court seeking a Court Order to see your child. Whether or not you should cooperate with ACS depends on a number of factors that are discussed in other blogs on my website. An ACS case can result in the agency filing an Article 10 Petition in Court accusing you of abuse or neglect.  Your children can be removed from you if this happens. It wise to call a New York ACS Defense Attorney to get a consultation of what you should do if CPS starts to investigate you.

 

After the case is opened they are required to give you a letter notifying you that you are a subject of an investigation and that they will investigate you for sixty days.  After the sixty day period is up, CPS is required to make a determination about wether you will be indicated or if the report is unfounded. If ACS takes you to Court, you will most likely be indicated.  If they don’t take you to Court you still can be indicated. If this happens your name will be put on the New York State Child Abuse and Maltreatment Register. You are entitled to request a copy of all information pertaining to your case. The person that made the report is confidential. 

 

If you have been indicated you have the right to request the Office of Children and Family Services (OCFS) amend the record of the report if you believe the information in the report is inaccurate. You can request that the reported be amended to unfounded. This request must be made within 90 days of the notice you receive after the sixty day investigation period is up. Oftentimes ACS doesn’t send out the letter notifying you that you have been indicated. This can cause you to miss the deadline to appeal. Therefore after the 60 day investigation period is up, you must demand the letter, and put it in writing if you don’t receive it. 

 

As a result of your request to amend the record, a complete Administrative Review of the record and evidence upon which indicated finding was made will be done.  You will be notified of OCFS’s determination regarding your request to seal the report.  If your request to amend the record is denied, meaning that OCFS found that there was some credible evidence to retain the report, you will be notified of a date when a fair hearing will occur. If you haven’t hired a New York ACS Defense Attorney when you get this letter denying your request you should do so promptly.  Hearings can be complicated so it’s best to have an Attorney.

 

If you fail to make the request within 90 days the report will remain in the Register until your youngest child’s 28 birthday, after this point the case will be expunged. If you lose at the hearing, OCFS will retain the report, and you will be indicated in the Central Register. A licensing or provider agency involving children is required to inquire about you to the register if you are applying for a job. If you are a social worker or doctor they will also check the register to see if you are indicated.  If the indicated report is determined to be relevant and reasonably related to employment or licensure in the child care area you will not be able be able to work in that area.

 

The Agency at the fair  hearing must prove by the preponderance of the evidence that the abuse or neglect occurred. If the report is retained as indicated, the person appealing the decision must show that the finding, is not relevant not reasonably related to your ability to care for children.

 

The finding of whether the indicated report is relevant and reasonably related to your ability to care for children is a very important finding to have in your favor. It means that despite the indicated finding, your report will be sealed and you will be able to work with children.  What the ALJ wants to see at the hearing is that you are unlikely to commit the behavior again. Therefore if you do not take responsibility for your actions or appreciate the seriousness of the conduct, the ALJ may conclude that you are likely to commit maltreatment again. The ALJ will want to see proof you are rehabilitated. For example, if you are accused of substance abuse, then proof of your participation in a rehabilitation program is important. If the indicated report is based upon mental illness, then proof that you are in therapy and if necessary, taking medication would be helpful. If you are accused of corporal punishment, proof of therapy, parenting classes and anger management is important. These remedial measures that you take ideally should be done when the investigation starts or immediately after ACS decides to indicate you. 

If you win the hearing or at the administrative review the case will be amended to unfounded. This means there is no credible evidence  of abuse or maltreatment.  Your case will be sealed. This means that the report will be confidential. It can only be unsealed under limited circumstances. For instance it will be reopened if another case is opened against you and the case involves the same child or the child’s sibling. The fact that the case can be reopened is one reason people seek to expunge their case.

 

How do I expunge an ACS case?

 

Expunging an ACS case is much more complicated.  Under Section 422(5) of the Social Services Law you may request that OCFS expunge your report if the report against you is unfounded.  You have to prove clear and convincing written evidence that the allegation of abuse or maltreatment is not true. Clear and convincing evidence is a very high legal standard to prove, so it is wise to hire a New York ACS Defense Attorney to help you through the process. Clear and convincing evidence is evidence that is unmistakable and free from doubt. 

You will have to present proof the allegations have no basis to get the case expunged. It is not merely enough to show that the report was unfounded, you must present evidence that there was no abuse or maltreatment. 

 

The case will also be expunged if the source of the report was convicted of making an intentional false report to the Register. In order to show this you must present a Certificate of Disposition showing that this person was convicted. The problem with this is you often don’t know who made the report and even if you do, the police generally will not file a complaint and the  district attorney will very rarely prosecute a false ACS Report. This is not to discourage you from attempting to make a police report, just to tell you that you may have difficulty in doing so. 

 

How do you prove the case should be expunged by clear and convincing written evidence?

 

It can be difficult because if your case was sealed it is unlikely that you received the investigation progress notes that document the allegations against you. Therefore you need to know when the investigation starts, specifically what the allegations against you are. You will have to prove the allegations against you were absolutely false. For instance if ACS conducts an investigation and tells you they are investigating you because someone accused you of beating your 5 year old daughter with a stick and you don’t have a five year old daughter, you have a 2 year old son, then you need to present written evidence to prove this fact to get the case expunged. If you are charged with educational neglect and you have proof that your child had good attendance in school, or medical neglect and you have proof that your child attended all of his or her doctor appointments this needs to be submitted. If you know who the source of the report is, maybe because the sent you a text that they were going to file a report against you, submission of this text would be necessary to prove that the allegations were false. Finally, if someone accused you of drug abuse and you immediately took a test and came out negative, submission of these test results to OCFS is necessary. 

 

What can I do if OCFS refuses to seal or expunge my case?

 

If you lose your  case at a fair hearing or OCFS refuses to expunge you will have to file an Article 78 in the New York Supreme Court. Filing an OCFS case can be complicated so it is wise to hire an attorney that is familiar with fighting against OCFS. 

 

I hope this article was informative in helping you understand the process of sealing and expunging a case. As an ACS Defense Attorney at the Gilmer Law Firm, PLLC I can help you seal and expunge your case so it is no longer in ACS records.  Please call me at 718-864-2011 for a free phone consultation.



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