Challenging Indicated ACS Cases In NY (And How To Win)

ACS worker making Home Vist In Nyc  case

Indicated acs cases can have severe consequences for a person including their  ability to obtain employment in many fields, and can even be brought up in future custody or visitation cases. 

In 2013, there were 5,837 indicated ACS cases in New York and the number of indicated cases had been increasing at an alarming rate since 2009. Most indicated cases in New York State are in the New York City boroughs of Brooklyn and Queens. Statistics show that ACS cases are much more likely to be indicated if the subject child is black or Hispanic. Most experts believe that just being poor is a risk factor for ACS involvement.

Unfortunately, statistics also reveal that ACS involvement is associated with a number of negative outcomes for children, including poor school performance, appalling mental health issues, and being arrested and caught up in the juvenile justice system.

Parents have also been severely impacted by having one or more indicated cases from ACS on their record. Having an indicated case can affect a parent’s ability to work in any capacity involving children, including working as a nurse, teacher, or even school bus driver. Indicated cases can also be cited in evidence in custody and visitation cases, even if they involve different children. Indicated reports stay on the Central Registry until the youngest child named in the report turns 28. Indicated reports, in addition to being available to many potential employers, are also available to family courts, police, district attorneys, and child welfare agencies.

Having one or more indicated cases can also affect the ability of a person to adopt a child. 

How ACS Cases Are Started

The phrase “acs case” is somewhat ambiguous. It can refer to an actual child neglect or abuse case filed in the Family Court, or it can refer to a case which ACS is just investigating. Most ACS cases start with a report to the Child Neglect and Abuse Hotline. In some situations, as for example, where someone has foster children in the home, the ACS case can be opened by the assigned ACS caseworker who monitors the home and makes periodic home visits.

Once an acs case has been opened there is an investigation. The assigned case worker or an investigating worker will speak with the parent or parents, any witnesses, and oftentimes the subject child or other children who are in the home, before making a decision as to whether to indicate or unfound the case. Sometimes these cases escalate into full blown neglect or abuse cases filed in court.

The parent will typically be confronted with the allegations of maltreatment of a child, although they will typically not be told the source of the report. mj

ACS has 60 days to make its determination. If the case is unfounded, it will be dismissed and sealed. If the case is indicated, it will remain on record in Albany until the youngest child who is the subject of the case turns 28. If the Family Court makes a finding of neglect or abuse, it will not be possible to expunge the indicated case, but if there is no court finding of neglect or abuse, the subject of the report can challenge the report by filing papers within 90 days of the indicated filing being sent to him or her.

The ACS Administrative Review

If the subject of the report files a timely challenge, the case will proceed to an administrative review. These are largely determined based upon the documents submitted by ACS and by the subject of the case. The subject of the case can pretty much submit any documents or evidence he or she wishes, however the documents or evidence will have  be relevant to the specific issues charged in the indicated case to be considered. 

The administrative review is very hard to win, however if you lose, the next step is something called a Fair Hearing.

Preparing For The Fair Hearing

Fair hearings are scheduled months in advance so there is time to prepare, and also ample time to retain a lawyer. If you have gotten this far, you have already “lost” twice, and have probably figured out that you would be well served by retaining an attorney who is familiar with fair hearings and has done a decent number of them before. You or your lawyer (if you have one) should make discovery demands for the entire case record as well as any other relevant documents which ACS may have in its possession, such as police reports, photographs, medical records, videos, etc.

There have been times in the past when the agency was so busy with cases that were filed in court that they were unable to work on discovery demands for investigation cases, and actually withdrew the less serious cases instead of providing the  documents demanded.  However, you still have to prepare a defense, which will focus on witnesses and documentary or other physical evidence. Some cases require legal research, because ACS sometimes indicates cases with little or no legal authority for doing so. 

The Acs Fair Hearing 

Fair hearings are administrative proceedings and the rules of evidence are relaxed, including the hearsay rule. It is sometimes possible to exclude so-called “double hearsay”. Cases are heard by Administrative Law Judges,  who are experienced attorneys, most of whom have a background of working for ACS. Despite having worked for ACS, many are fair, and if the case against you is bogus and you have a good lawyer and a good judge you may be able to win. The hearing can go on for multiple court appearances and for many months, with long adjournments between hearing dates due to the large volume of cases.

Article 78 Cases And Appeals

If you lose the fair hearing, you can challenge the decision of the ALJ through an article 78 proceeding in Supreme Court, and if you lose that, by an appeal to the appellate division. Your case will become much more difficult to do on your own without an attorney, and if you hire one, it will become increasingly expensive.