Muldoon, Getz & Reston

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CPS Investigation and Hearing in New York State
by Gary Muldoon
Muldoon & Getz
Rochester, NY

An investigation of child abuse or maltreatment in New York State may involve three quite different areas of law: administrative, criminal, and Family Court. Each of these is separate, but related. Each has different protections and standards.


A criminal charge may be the most serious: the crime charged may be a misdemeanor or felony, resulting in a criminal record and the possibility of incarceration. A person charged with a crime has a panoply of rights, including the right to counsel and to a jury trial. In a criminal case, the burden of proof, of course, is beyond a reasonable doubt. A variety of penal statutes might be involved, with Endangering the Welfare of a Child being a kind of catchall.


A proceeding for abuse or neglect may be filed in Family Court. Again, the person alleged to have committed the act is entitled to counsel, but not to a jury trial. The burden of proof is a preponderance of the evidence.


The third possible proceeding is administrative in nature: a filed report by Child Protective Services of abuse or maltreatment. CPS can find a report to be “unfounded” or “indicated.” An indicated report can be challenged by a person named in the report. The person named in the report may have an attorney as representative, but is not entitled to assigned counsel if the person cannot afford an attorney. The burden in this proceeding varies, depending on the stage of the proceeding.


Initially, all that is needed for a filed report to be "indicated" is "some credible evidence," a low standard, indeed. If the finding is challenged, an administrative review by New York State is conducted. At this stage, there must be a "preponderance" of the evidence. The ability to challenge the report at this stage is quite limited.


More important is the next stage, which involves a hearing before an administrative law judge. The county agency must establish, again by a preponderance of the evidence. Typically, the agency calls the CPS worker who investigated the case. Before the hearing, the agency must turn over to the person (or the person's attorney) the documents relied upon. The person may (and should) attend the hearing, may testify, and call witnesses to dispute the evidence presented. This can include fact witnesses or character witnesses.


Hearsay is admissible at the administrative hearing: both sides may utilize this, such as by introducing letters of reference rather than live testimony.


If the hearing decision is against the person, the next possible step that may be taken is to go to court: a petition under CPLR article 78, filed in State Supreme Court. Typically the standard at this stage will be lower: what is reviewed is the legal issue of whether the administrative law judge's decision is "arbitrary and capricious."


An indicated CPS report can have significant, and long-term, consequences for the person so named. It may directly affect employment and custody, among other important effects.


The three areas are also related in that discovery and disclosure in one proceeding may affect the other proceedings, and even whether another proceeding is to be brought. If the county does not prevail at a CPS proceeding, that may dissuade the prosecution from filing criminal charges. But the result of a CPS proceeding does not have binding effect on the other areas: no "collateral estoppel" results from the CPS proceeding in criminal court or Family Court.


© 2013 by Gary Muldoon