What's happening
This bill raises the standard of evidence for indicated child abuse or maltreatment reports from "some credible evidence" to "a fair preponderance of evidence" and revises procedures for the sealing, expungement, and use of such reports in New York.
Why it matters
Raises the burden of proof for "indicated" child abuse/maltreatment reports, which means it will be harder for authorities to label someone as having abused or maltreated a child, reducing the risk of wrongful placement on the state registry. This change can have significant effects on employment, custody, and reputation, since being listed as the subject of an indicated report can impact people's lives for years.
Alters the process for sealing and expunging records, creating specific timelines and conditional sealing for certain reports, particularly for cases of maltreatment (not abuse). After eight years (if there are no additional reports), maltreatment reports will be conditionally sealed—restricting access except for specific child-related employment or custody checks—which creates a clearer path for people to move on from past allegations.
Expands the rights of individuals named in indicated reports, allowing for more frequent reviews and appeals regarding whether records should remain accessible and relevant to employers or licensing agencies. This means individuals have greater opportunity to clear their names if circumstances change, or if the original finding is no longer relevant to child safety.
Clarifies and tightens the circumstances under which records of unfounded or amended reports are admissible in court or accessible to employers, ensuring that only substantiated, relevant findings are used in critical decisions about employment, licensure, and custody. This reduces the chance that old, unproven, or irrelevant allegations will unfairly block someone from jobs or parental rights.
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Who cares
Parents and other subjects of abuse or maltreatment reports
The bill would raise the proof required for an indicated report from some credible evidence to a fair preponderance of evidence and remove the 90-day deadline for an initial request to amend a report.
Office of Children and Family Services and local child protective services
They would have to apply the higher evidence standard and implement new review, hearing and conditional-sealing requirements.
Child care providers, Head Start programs and preschool programs
Their access to certain maltreatment reports for employment screening would end four years after those reports are conditionally sealed.
Parents in custody or visitation proceedings
The bill would require a fair preponderance of evidence, rather than some credible evidence, before a central-register report could qualify for admission under the specified evidentiary rules.
Headline styles
Raise Child Abuse Proof Standard
Plain English, a few words. Used as the page title.
Sponsors
2 Co-sponsors
History
- Vetoed memo.232
- Delivered to governor
- Returned to senate
- Passed assembly
- Ordered to third reading rules cal.608
- Substituted for A8060A
- Referred to ways and means
- Delivered to assembly
- Passed senateVote 44–18
- Ordered to third reading cal.1531
- Print number 6427a
- Amend and recommit to rules
Show 1 earlier action
- Referred to rules
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Raise Evidence Bar for Abuse
Assembly Floor Calendar · Sponsor Ellen C. Jaffee
Full text
10 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6427--A
2019-2020 Regular Sessions
IN SENATE
June 10, 2019
Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and to amend the social services law and the family court act, in relation to the administration of the statewide central register of child abuse and maltreatment
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivisions 6 and 7 of section 412 of the social services law, as added by chapter 1039 of the laws of 1973 and as renumbered by chapter 323 of the laws of 2008, are amended to read as follows:
6. An "unfounded report" means any report made pursuant to this title unless an investigation determines that [some credible evidence] a fair preponderance of evidence of the alleged abuse or maltreatment exists;
7. An "indicated report" means a report made pursuant to this title if an investigation determines that [some credible evidence] a fair preponderance of evidence of the alleged abuse or maltreatment exists.
§ 2. Section 651-a of the family court act, as amended by chapter 12 of the laws of 1996, is amended to read as follows:
§ 651-a. Reports of child abuse and maltreatment; admissibility. In any proceeding brought pursuant to this section to determine the custody or visitation of minors, a report made to the statewide central register of child abuse and maltreatment, pursuant to title six of article six of the social services law, or a portion thereof, which is otherwise admissible as a business record pursuant to rule forty-five hundred eighteen of the civil practice law and rules shall not be admissible in evidence, notwithstanding such rule, unless an investigation of such report
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13104-04-9
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conducted pursuant to title six of article six of the social services law has determined that there is [some credible] a fair preponderance of evidence of the alleged abuse or maltreatment, that the subject of the report has been notified that the report is indicated. In addition, if such report has been reviewed by the state commissioner of social services or his designee and has been determined to be unfounded, it shall not be admissible in evidence. If such report has been so reviewed and has been amended to delete any finding, each such deleted finding shall not be admissible. If the state commissioner of social services or his designee has amended the report to add any new finding, each such new finding, together with any portion of the original report not deleted by the commissioner or his designee, shall be admissible if it meets the other requirements of this section and is otherwise admissible as a business record. If such a report, or portion thereof, is admissible in evidence but is uncorroborated, it shall not be sufficient to make a fact finding of abuse or maltreatment in such proceeding. Any other evidence tending to support the reliability of such report shall be sufficient corroboration.
§ 3. Paragraph (c) of subdivision 2 of section 421 of the social services law, as amended by chapter 718 of the laws of 1986, is amended to read as follows:
(c) issue guidelines to assist local child protective services in the interpretation and assessment of reports of abuse and maltreatment made to the statewide central register described in section four hundred twenty-two of this article. Such guidelines shall include information, standards and criteria for [the identification of credible] assessing whether a fair preponderance of evidence of alleged abuse and maltreatment exists as required to determine whether a report may be indicated.
§ 4. The opening paragraph of paragraph (a) of subdivision 5 of section 422 of the social services law, as amended by section 7 of part D of chapter 501 of the laws of 2012, is amended to read as follows:
Unless an investigation of a report conducted pursuant to this title determines that there is [some credible] a fair preponderance of evidence of the alleged abuse or maltreatment, all information identifying the subjects of the report and other persons named in the report shall be legally sealed forthwith by the central register and any local child protective services or the state agency which investigated the report. Such unfounded reports may only be unsealed and made available:
§ 5. Paragraph (c) of subdivision 5 of section 422 of the social services law, as added by chapter 555 of the laws of 2000, is amended to read as follows:
(c) Notwithstanding any other provision of law, the office of children and family services may, in its discretion, grant a request to expunge an unfounded report where: (i) the source of the report was convicted of a violation of subdivision three of section 240.55 of the penal law in regard to such report; or (ii) the subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment; provided however, that the absence of [credible] a fair preponderance of evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report. Nothing in this paragraph shall require the office of children and family services to hold an administrative hearing in deciding whether to expunge a report. Such office shall make its determination upon reviewing the written evidence submitted by the subject of the report and any records or information obtained from the state or local agency which investigated the allegations of abuse or maltreatment.
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§ 6. Subdivision 6 of section 422 of the social services law, as amended by section 7 of part D of chapter 501 of the laws of 2012, is amended to read as follows:
6. In all other cases, the record of the report to the statewide central register shall be expunged ten years after the eighteenth birthday of the youngest child named in the report. Provided however, in cases where the report was indicated for maltreatment, the record of the report to the statewide central register shall be conditionally sealed eight years after the report is received by the statewide central register, so long as there are no other indicated reports of abuse or maltreatment with such individual named as the subject of the report. Provided, further, that if such individual is named as the subject of a report in any subsequent indicated abuse or maltreatment reports, such record shall be immediately unsealed and the subsequent indicated report shall be ineligible for conditional sealing. Reports conditionally sealed pursuant to this subdivision shall be maintained in the statewide central register, however such reports shall not be made available except to: (a) entities included in paragraph (a) of subdivision five of this section; (b) authorized agencies that are considering licensing the subject of the report to become a foster or adoptive parent; (c) child protective services that are considering recommending the subject of the report as a custodial or visitation resource; (d) head start programs which are funded pursuant to title V of the federal economic opportunity act of 1964, early intervention services established pursuant to section twenty-five hundred forty of the public health law, preschool services established pursuant to section forty-four hundred ten of the education law and child day care providers as defined in section three hundred ninety of this article for the purposes of determining employment, but only for an additional four years after such record is conditionally sealed; and (e) the court, upon receiving a recommendation regarding a potential foster or adoptive parent or a custodial or visitation resource from a child protective service if such recommendation was based in any part on the indicated report. In the case of a child in residential care the record of the report to the statewide central register shall be expunged ten years after the reported child's eighteenth birthday. In any case and at any time, the commissioner of the office of children and family services may amend any record upon good cause shown and notice to the subjects of the report and other persons named in the report.
§ 7. Paragraph (a) of subdivision 8 of section 422 of the social services law, as amended by chapter 12 of the laws of 1996, and subparagraph (ii) as amended by chapter 323 of the laws of 2008, is amended to read as follows:
(a) (i) At any time subsequent to the completion of the investigation [but in no event later than ninety days after the subject of the report is notified that the report is indicated] the subject may request the commissioner to amend the record of the report. [If] After an initial request, subsequent requests may be made for the purpose of determining whether, due to a change in the subject's circumstances, the indicated case continues to be relevant and reasonably related pursuant to subparagraph (ii) of paragraph (c) of this subdivision. Such evaluation shall take place no more than biennially. Where a proceeding pursuant to article ten of the family court act based on the same allegations that were indicated is pending, the request to amend shall be stayed until the disposition of such family court proceeding or, if the petition is dismissed at the conclusion of an adjournment in contemplation of
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dismissal or suspended judgment, at such time of the dismissal, whichever is later. Unless such request has been stayed, if the commissioner does not amend the report in accordance with such request within ninety days of receiving the request, the subject shall have the right to a fair hearing, held in accordance with paragraph (b) of this subdivision, to determine whether the record of the report in the central register should be amended on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this title.
(ii) Upon receipt of a request to amend the record of a child abuse and maltreatment report the office of children and family services shall immediately send a written request to the child protective service or the state agency which was responsible for investigating the allegations of abuse or maltreatment for all records, reports and other information maintained by the service or state agency pertaining to such indicated report. The service or state agency shall as expeditiously as possible but within no more than twenty working days of receiving such request, forward all records, reports and other information it maintains on such indicated report to the office of children and family services, including a copy of any petition or court order based on the allegations that were indicated. [The] Unless such request to amend has been stayed, the office of children and family services shall as expeditiously as possible but within no more than fifteen working days of receiving such materials from the child protective service or state agency, review all such materials in its possession concerning the indicated report and determine, after affording such service or state agency a reasonable opportunity to present its views, whether there is a fair preponderance of the evidence to find that the subject committed the act or acts of child abuse or maltreatment giving rise to the indicated report and whether, based on guidelines developed by the office of children and family services pursuant to subdivision five of section four hundred twentyfour-a of this title, such act or acts could be relevant and reasonably related to employment of the subject of the report by a provider agency, as defined by subdivision three of section four hundred twenty-four-a of this title, or relevant and reasonably related to the subject of the report being allowed to have regular and substantial contact with children who are cared for by a provider agency, or relevant and reasonably related to the approval or disapproval of an application submitted by the subject of the report to a licensing agency, as defined by subdivision four of section four hundred twenty-four-a of this title.
(iii) If it is determined at the review held pursuant to this paragraph [(a)] that there is [no credible] not a fair preponderance of evidence in the record to find that the subject committed an act or acts of child abuse or maltreatment, the [department] office of children and family services shall amend the record to indicate that the report is "unfounded" and notify the subject forthwith.
(iv) If it is determined at the review held pursuant to this paragraph [(a)] that there is [some credible] a fair preponderance of evidence in the record to find that the subject committed such act or acts but that such act or acts could not be relevant and reasonably related to the employment of the subject by a provider agency or to the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency or the approval or disapproval of an application which could be submitted by the subject to a licensing agency, the [department] office of children and family services shall be precluded from informing a provider or licensing agency which makes an inquiry to [the department] such office pursuant to the provisions of
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Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and to amend the social services law and the family court act, in relation to the administration of the statewide central register of child abuse and maltreatment
Purpose
This bill would make certain changes to State Central Registry as it relates to sealing of maltreatment records and standard of proof to determine indicated and unfounded reports of abuse or maltreatment. This bill also updates fair hearing rights as it relates to employment for subjects of maltreatment reports.
Summary of provisions
Section 1 of the bill updates definitions of unfounded and indicated reports, changing the investigative standard of review from "some credi- ble evidence" to "fair preponderance of evidence."
Read the full memo (931 words)
Section 2 amends section 651-a of the family court act requiring a fair preponderance of the evidence standard to determine a finding of abuse or neglect.
Sections 3, 4, and 5 make conforming changes to of Social Services Law changing the standard of review from "some credible evidence" to "fair preponderance of the evidence."
Section 6 allows SCR reports of indicated maltreatment cases be condi- tionally sealed after eight years so long as there are no subsequent indicated reports of abuse or maltreatment. Reports may be immediately unsealed if there is a subsequent finding of abuse or maltreatment. Reports will be maintained by the SCR but will not be disclosed to employers with certain exceptions for employment requiring significant and substantial contact with children.
Section 7 eliminates specified timeframe for amending report; if pending CPS proceeding on same allegations, request to amend stayed until Family Court disposition of the proceeding or if petition dismissed at conclu- sion of ACD or suspended judgment, whichever is later.
Section 8 requires OCFS to amend allegation as unfounded when CPS with- draws with prejudice an allegation in a petition, Family Court finds allegation does not constitute abuse or maltreatment, or petition dismissed at conclusion of ACD or suspended judgment, or not supported by a fair preponderance of evidence.
Section 9 makes conforming changes updating the standard of evidence.
Section 10 makes conforming changes updating the language of "depart- ment" to "Office of Children and Family Services."
Section 11 makes changes to the fair hearing rights relating to denial of employment based SCR reports. Conforming changes are made to update the standard of review for SCR fair hearings to comport with modern constitutional requirements.
Section 12 requires the petitioner to notify OCFS regarding the outcome of an adjournment in contemplation of dismissal.
Section 13 requires the petitioner to notify OCFS of any findings of abuse or neglect or orders of dismissal.
Section 14 requires maltreatment reports to be conditionally sealed after eight years.
Section 15 requires the petitioner to notify OCFS regarding the outcome of a suspended judgement.
Section 16 provides an effective date.
Justification
The vast majority of allegations made to the SCR involve poverty-related neglect and not child abuse. Common allegations of neglect include lack of adequate housing, failure to provide adequate childcare, failure to provide adequate education, and parental substance abuse. Under current law, there is no distinction in the employment consequences imposed for poverty-related neglect from the employment consequences for caregivers who have committed the most egregious types of physical and sexual abuse.
This legislation 'makes necessary conforming changes in line with constitutional requirements regarding the standard of review from "some credible evidence" to "preponderance of the evidence." Doyle v. Camelot Care Ctrs., Inc., 160 F. Supp. 2d 891: Similarly, the New York statutory scheme at issue in Valmonte v. Bane, 18 F.3d 992, 1004 (2nd Cir. 1994), directed that the names of persons indicated of abuse under merely a "credible evidence" standard be placed on the State Central Register. The Second Circuit concluded that practice a violated those individuals' right to due process. Instead, the court found that individuals should be placed on such a list only after they had been found guilty of abuse by a "preponderance of the evidence." Id. In Lee TT, 87 N.Y.2d at 700, the Court of Appeals of New York, following the Second Circuit, found that, while there is no constitutional prohibition against the State maintaining a list of suspected abusers, the use of the "credible evidence" standard to substantiate reports that are put on the State Central Register violates the protected liberty interest plaintiffs had in their present and future employment in the child care field. The court therefore held that the credible evidence standard is permissible at the investigative stage, but a report of abuse must be substantiated by a preponderance of the evidence before information concerning the subject may be disseminated to employers in child care agencies. Id. at 703, 711.
New York is overdue to update antiquated Social Services Law to limit collateral consequences for parents, streamline court processes to make the system more efficient and fair. Many employers are required to do SCR background checks before hiring. These include not only childcare and educational providers, but a variety of entities providing services such as healthcare and transportation if they serve children as well as adults. Consequently, an indicated report on the SCR severely limits a person's ability to secure employment. This bill supports increased access to employment for thousands of New York families every year at limited cost to the state.
Legislative history
This is new legislation.
Fiscal implications
To be determined.
Effective date
This act shall take effect immediately.
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