Delays administrative fair hearings of child abuse or maltreatment until family court proceedings have been concluded

Two parallel systems, one judicial and one administrative, coexist to determine the validity of reports of suspected child abuse or maltreatment contained in the statewide central registry. Because these systems operate on different tracks with different time-frames, they sometimes produce disparate results that can be extremely harmful to the children and families involved. Because fair hearings are being held in increasing numbers and with greater dispatch than in the past, the problem of harmful, disparate results has escalated. We now propose this measure to ensure that, in cases in which parallel Family Court and administrative proceedings are in progress, the administrative fair hearing process would not precipitously advance without awaiting the outcome of the Family Court matter.

Under existing law, a report of suspected child abuse or maltreatment that is found to be supported by credible evidence may form the basis for a child protective petition in Family Court pursuant to Article 10 of the Family Court Act.

In accordance with the Act's due process protections, Family Court judges may make findings of child abuse or neglect by a preponderance of the evidence or, in particularly serious cases, may make findings of severe or repeated child abuse by clear and convincing evidence. Once findings are made, cases proceed to disposition, which finally determines whether children are in need of protection. See Family Court Act §§1047, 1051, 1052. Alternatively, on consent of the parties, cases may be adjourned in contemplation of dismissal for a period of up to one year upon designated terms and conditions which, if complied with, result in dismissal of the proceedings. See Family Court Act §§1039, 1039-a.

Existing law permits individuals who are the subjects of reports of suspected child abuse or maltreatment to challenge those reports administratively by requesting that the findings be amended, even while Family Court proceedings are pending. When this occurs the investigating child protective agency must send the relevant records to the State Office of Children and Family Services (OCFS) within 20 days of a request by OCFS and OCFS must make its determination regarding the request to amend within 15 days of receiving the

records. See social Services Law §422(8). Report determined by OCFS not to meet the credible evidence test must be amended to be "unfounded," which would preclude their use in court or for any purpose other than limited use by child protective agencies in subsequent investigations. See Social Services Law §422(5). If OCFS declines to amend the report within 90 days, or if the report is found upon the agency's review to be supported by credible evidence, the report may be the subject of a fair hearing at which the agency has the burden of sustaining it by a preponderance of the evidence. See Matter of Lee T.T. v. Dowling, 87 N.Y.2d 699 (1996).

In many, if not most, cases, the Family Court proceeding has concluded prior to resolution of the administrative review and fair hearing process. Indeed, the Legislature clearly contemplated that the administrative process would be informed by and, in cases in which a judicial adjudication has been made, bound by the results of the judicial proceeding. Section 422(8)(b) of the Social Services Law provides that the fact that Family Court has made a finding of child abuse or neglect regarding an allegation forming the basis of a report of child abuse or maltreatment creates an "irrebuttable presumption" that credible evidence supports the allegation. A Family Court finding is thus conclusive proof that a report is "indicated" and, as noted, is dispositive as well on the issue whether an allegation of abuse or neglect against the subject of the report (the "Respondent" in the Family Court proceeding) has been proven by a preponderance of the evidence or, in cases of severe or repeated child abuse, by the higher level of clear and convincing evidence. The conclusive effect of a Family Court finding was recognized by the Supreme Court, Appellate Division, First Department in the recent case of McReynolds v. City of New York, 18 A.D.3d 316 (pt Dept., 2005), Ive. app. denied, 5 N.Y.3d 707 (2005), cert. dismissed sub nom McReynolds v. Office of Children and Family Services, 546 U.S. 1027 (2005). (Family Court abuse finding supports retention of maltreatment reports on State Central Register.)

However, in some cases, the Family Court proceeding is still pending when the statutory deadline looms for resolution of the administrative process. Unfortunately, the statute now is silent on the significance of an unresolved Family Court case on the administrative process. - This has led to anomalous results, including cases in which the administrative review or fair hearing resulted in a determination that the report had been "unfounded," although Family Court ultimately determined the case to be fully proven under Article 10 of the Family Court Act. One disturbing example was an adoption case in which the prospective adoptive parent received a clearance from the child abuse registry, even though she had been adjudicated in Family Court for child abuse. In some instances in which the administrative amendment of the report as "unfounded" has occurred prior to the adjudication of the Family Court proceeding, the conversion of the report to "unfounded" has precluded its admissibility in the Family

Court proceeding, notwithstanding its clear admissibility pursuant to Family Court Act §1046(a)(v). In other cases, the administrative process has operated entirely without reference to the Family Court process, with administrative law judges unaware that Family Court judges have made adjudications that should, in fact, trigger the irrebuttable presumption that such reports are substantiated ("indicated").

We propose a simple means by which to harmonize the administrative and judicial processes. This measure would amend sections 22(4),422(8) and 424-a(1) of the Social Services Law to provide that where a proceeding pursuant to Article 10 of the Family Court Act is pending in Family Court with respect to a child named in a child abuse or maltreatment report, the time periods for amendments and for requesting and resolving fair hearings should not begin to run until the Family Court matter has been concluded. The administrative process must, therefore, await disposition of the Family Court proceeding or conclusion of a period of an adjournment in contemplation of dismissal of the Family Court case, whichever occurs later. Further, where a Family Court proceeding is pending, the local child protection agency (the Petitioner in the Family Court matter) must provide the OCFS with copies of pleadings and court orders and must report the status of the action. OCFS then must defer its administrative review and determination until the conclusion.of the Family Court case.

This measure, which would have no fiscal impact on the State, would take effect immediately and shall apply to requests for appeals and fair hearings pending as of such effective date.

2007 LEGISLATIVE HISTORY:

OCA 2007-71

2010 LEGISLATIVE HISTORY:

None. New proposal.