If you are the subject of an indicated SCR report, you are usually told (directly or indirectly) that there are only two outcomes: win the hearing and clear your name, or lose and live with the consequences. That framing is wrong.
In many cases, the “relevant and reasonably related” decision-often shortened to R&R-is its own battleground, with its own rules, and it can be won even when the hearing officer finds the report is supported by a fair preponderance of the evidence.
This post explains how the R&R determination works under New York law, how courts review it in an Article 78, and what the Fourth Department’s decision in Matter of Sarah Hastings v. New York State Office of Children and Family Services teaches about forcing a real, factor-by-factor analysis.
If you want background on the overall process, start here: How to appeal an indicated ACS/CPS case in New York.
Step 1 vs. Step 2: “Did it happen?” is not the same question as “Does it have to follow you?”
At an OCFS/SCR fair hearing, the analysis is often (but not always) two-step:
- Step 1: Fair preponderance. Did the local agency (often ACS in NYC) prove by a fair preponderance of the evidence that the subject committed the act(s) that led to the indicated report?
- Step 2: R&R (Relevant and Reasonably Related). If the report is sustained, must OCFS continue to disclose the existence of that indicated report for childcare-related clearances (employment, licensing, foster care, adoption)?
The R&R step matters because it is the disclosure that creates the day-to-day harm: job denials, licensing obstacles, foster/adopt delays, and background-check anxiety.
The R&R requirement is grounded in Social Services Law § 422, which requires a hearing officer to determine-based on OCFS guidelines-whether the conduct is relevant and reasonably related to the childcare field. See Social Services Law § 422.
For a deeper explanation of how the burdens differ between Family Court and administrative hearings, see: Family Court vs. OCFS administrative hearings.
What Hastings v. OCFS changed (or, more accurately, enforced)
In Hastings, the hearing officer sustained the indicated report and then made an R&R finding with little more than a checklist-style statement-without a meaningful explanation of how the guideline factors were applied to the evidence.
The Fourth Department annulled the R&R determination and directed that OCFS be precluded from informing providers or licensing agencies that the petitioner was the subject of an indicated report. Read the decision here: Hastings (4th Dept May 3, 2024).
The practical lesson: demand a reasoned R&R determination
The biggest “authority” move you can make in an R&R case is to force the analysis onto the record. Hastings is a roadmap for how to do that.
The decision emphasizes that OCFS guidelines include 10 factors the hearing officer may consider in making an R&R determination. Certain factors are explicitly described in reported decisions, including:
- The seriousness of the incident (often discussed as “factor 1”).
- The seriousness and extent of any injury (often discussed as “factor 2”).
- The harmful effect on the child of the subject’s actions or inactions (often discussed as “factor 3”).
- The age of the child at the time of the incident (often discussed as “factor 4”).
- The length of time since the most recent incident (often discussed as “factor 5”).
- The number of indicated incidents (often discussed as “factor 6”).
- The subject’s rehabilitation evidence (often discussed as “factor 8”).
- Whether the behavior involved serious injury or death (often discussed as “factor 10”).
In Hastings, the court also highlighted how OCFS defines “rehabilitation” in this context, including: no repeat behavior, actions taken to deal positively with the underlying problem, and success with relevant professional treatment. That detail matters because it tells you what evidence actually moves the needle.
A factor-by-factor R&R evidence checklist (what to submit, and why it matters)
If you want to be seen as an authority in an R&R case, don’t just argue “I’m a good parent” or “this was a one-time mistake.” Build an R&R binder that tracks the guideline factors and makes it easy for the ALJ to write a defensible decision.
1) Seriousness of the incident and risk to children
- Pin down what the agency is actually claiming happened. Compare the hotline narrative to later ACS case notes for drift or escalation.
- If there was no injury, make that a documented fact (medical records, photographs, witness testimony).
- If the allegation was judgment-based (e.g., supervision, discipline, domestic conflict), frame it as a “then vs. now” problem with concrete change.
2) Harmful effect and the child’s age
- Submit school letters, pediatric records, and therapy notes (when appropriate) that speak to functioning and safety-not just character.
- If the child was older and independent, contextualize the supervision expectations; if the child was very young, address what safeguards exist today.
3) Time elapsed and whether anything was repeated
- Create a clean chronology. In many cases, the passage of time is your friend-especially with no repeat allegations.
- If there was a second report, be upfront; the goal is to show a trend line toward safety, not pretend there was never a problem.
4) Rehabilitation: turn “I learned my lesson” into admissible proof
Hastings shows that “rehabilitation” is not a vague moral concept-it is an evidentiary category. Consider submitting:
- Certificates for parenting skills, anger management, domestic violence survivor counseling, or substance-use treatment (as relevant).
- A clinician letter explaining progress and risk (careful: keep it focused; avoid over-disclosing irrelevant details).
- Employment evaluations from child-facing work (if any), or training records showing successful completion of safety-related trainings.
5) The job or clearance you actually need
One overlooked move: define the actual role you are trying to obtain or keep. A daycare “floating teacher,” a foster parent applicant, and a licensed clinician in a pediatric setting can involve very different levels of supervision and child contact.
If you are building toward an Article 78, an ALJ’s decision should explain how the guideline factors connect to the work at issue-not just recite the word “childcare.” For post-hearing litigation strategy, see: OCFS Article 78 appeals.
How to use Hastings in the hearing room (and in an Article 78)
- In your closing, walk through the R&R factors you want the ALJ to address.
- If the decision comes back as a checklist, that is often a litigation issue-not a “bad luck” outcome.
- Ask: if the ALJ found “no rehabilitative evidence,” what evidence did they ignore and why?
For a related (and common) problem-trying to seal an indicated SCR report when there has already been a Family Court finding-see: Sealing strategy after a Family Court neglect finding.
FAQ
- Can I win R&R even if the report is sustained? In many cases, yes. The R&R determination is a separate analysis that focuses on disclosure risk in the childcare field.
- Does the indicated report stay forever? Indicated reports are often retained for long periods, even when disclosure rules change over time. See Social Services Law § 424-a.
- Where do I start if I just got an indicated notice? Start with the process overview here: Appealing an indicated ACS/CPS case.
Talk to a lawyer about your specific record
Every R&R case is fact-driven. If you need help preparing evidence for a fair hearing or reviewing an R&R determination for an Article 78 challenge, read about our OCFS/SCR practice here: OCFS defense and SCR hearings.
