HoganWillig

We Practice Law for Your Peace of Mind

Understanding CPS & Family Court Neglect Proceedings

August 14th, 2012

Getting a knock on the door from a CPS caseworker or receiving a “notification letter” in the mail that you’ve been named as a subject in a report of suspected child abuse or maltreatment is a scary experience. Clients who find themselves in that situation usually have many questions: What is a CPS report? Can CPS take my children? What happens when a neglect petition is filed in Family Court? What are my rights?

This post covers some of the basics, to help explain what a CPS report is and isn’t, how and under what circumstances a CPS report may lead to a Family Court filing, and what you should know in the event you find yourself on the receiving end of a CPS report or neglect petition.

Where does a CPS Report come from?
In New York State, individuals report suspected abuse or maltreatment to the Statewide Central Register (SCR) by calling a toll-free hotline, 1-800-342-3720. Some individuals, such as teachers, social workers, doctors, etc., are mandated reporters; meaning they are required by law to “hotline” cases of suspected abuse or maltreatment. However, the hotline is not reserved for mandated reporters. Anyone – neighbors, family members, even complete strangers – can make a report.

When someone contacts the SCR about a case of suspected abuse or maltreatment, a report is generated and sent to Child Protective Services (CPS). CPS then begins an investigation, which it has 60 days to complete. At the end of the investigation, CPS determines whether the report is “indicated” or “unfounded.”

By law, CPS is required to send written notification of the report to the “subject” (i.e. the person alleged to have committed the abuse or neglect) and any “other person” entitled to notice.

Generally, the “other person” is the child’s parent, when another person is alleged to have committed the abuse or neglect (i.e. the other parent, his or her spouse, your spouse or another family member). If you receive notification as an “other person” you are not being investigated yourself, you are simply being advised that CPS is investigating a report against someone else, but involving your child.

What happens once the CPS investigation starts?
When CPS receives a report from the SCR, it is required to begin an investigation within 24 hours. The investigation usually begins with a visit to your home by a CPS caseworker, who will be assessing the safety of the child named in the report and any other children living in your household. If the caseworker feels that the children are in immediate danger, he or she may remove the children from your care. However, whenever CPS removes your children and does not return them to your care that same day, it is required by law to immediately file a neglect petition against you in Family Court. Once a neglect petition is filed, the matter is overseen by a judge, who determines where the children should be placed until the neglect petition is resolved.

If you feel that your children have been wrongly removed, you may petition the Family Court for an immediate return. Unless the court determines that the children would be in “imminent risk” of harm if returned, it must order a return (even if the judge orders a return, that does not mean that the neglect petition is dismissed, only that the children will remain in your care while the neglect petition is pending). However, before filing for a return of child, you should weigh your options carefully with your attorney, since you may only have one opportunity to seek an immediate return while the neglect petition is pending, and you may not want to waste it if the odds of return are unlikely at that stage of the proceeding.
In the course of its investigation, CPS may offer you or your child referrals for services, such as counseling, therapy, training courses for parents and guardians, etc. CPS has no legal authority to force you or your child to receive any services, and by law must advise you of that fact. However, if it feels that services are necessary and you are unwilling to cooperate voluntarily, it may file a neglect petition in Family Court for a determination that your child is in need of care and protection.

Regardless of whether a petition is filed in Family Court, CPS must still determine whether the initial allegations of suspected abuse or maltreatment as reported to the SCR should be indicated or unfounded. This determination occurs regardless of the status of any Family Court filings. If the report is “indicated” that means there was “some credible evidence” of abuse or neglect. If the report is “unfounded” that means there was no credible evidence of abuse or neglect.

What happens if the CPS Report is indicated?
If you are named as a subject in a CPS report and it is ultimately “indicated,” all that means is that your name will appear on the Statewide Central Register of Child Abuse and Maltreatment until the youngest child named in the report turns 28. Just because a CPS report is indicated does not mean that a neglect petition will be filed in Family Court, that you will be charged with anything criminal or that your children will be taken away. And, if a neglect proceeding is already pending, an indicated report will not automatically lead to a finding of neglect, since the applicable standard in Family Court (“preponderance of the evidence”) requires more proof than the standard for indicating a CPS report (“some credible evidence”).

The registry is not a public database, so unlike other databases like the sex offender registry, it cannot be accessed by friends, neighbors, family members, etc. The registry is only accessible by certain authorized individuals and agencies. Most commonly, registry checks are performed when someone applies for a job seeking to work with children. And, in child custody proceedings, the courts are required to perform registry checks. Simply being on the registry does not automatically preclude you from being around children. It most likely means you will be required to explain the circumstances of the indicated report to either your prospective employer or the court, as the case may be.

Whether the report is indicated or unfounded, you will receive a “determination letter” informing you of the outcome of the investigation. If you are unhappy with the outcome, you may appeal the determination. You should keep the determination letter in a safe place, in case you ever need it at a later date to show that the investigation was unfounded.

What happens if a neglect petition is filed?
Most CPS reports are investigated and closed without anything ever being filed in Family Court. Generally, the local Department of Social Services (the agency in which CPS is housed) will only file a neglect petition against you in Family Court if CPS has removed your children or determines that your children need to be temporarily removed from your care, or if you are being uncooperative with CPS.

It is important to note that a neglect proceeding in Family Court is not a criminal proceeding. If the abuse or neglect you are alleged to have committed is severe enough to warrant criminal charges (e.g. child endangerment), you will be prosecuted separately in a criminal court. There is no such thing as being “charged” with neglect in Family Court or pleading “guilty” to neglect in Family Court.

So what does happen in Family Court? The overriding purpose of a neglect proceeding in Family Court is not to punish, but to mandate services and assistance to families to correct whatever problems may have led to the neglect filing in the first place. However, before the court can mandate services, there must first be a finding of neglect. Sometimes, parents simply admit to neglect or “consent” to a finding of neglect, which is consenting to a finding of neglect without admitting to any of the allegations in the underlying petition (similar to pleading “no contest” in a criminal matter). If you refuse to admit or consent, the Department of Social Services has to prove at trial that you did or didn’t do something that meets the legal definition of neglect. If you go to trial, there is no jury. The Family Court Judge is the ultimate finder of fact.

If the Department is able to prove its case, the court will make a “dispositional order” directing you to do (or not do) certain things. If your children have been removed from your care, the court will also decide if and under what circumstances they can be returned to you. Normally, you will need to complete the items on your “menu” before the children will be returned. If your children remain in care, you will need to attend “permanency hearings” to keep the court informed of the placement status of the children and your efforts to regain custody.

The main goal of Family Court is reunification. So even if there is a finding of neglect, and your children are not immediately returned, the initial permanency goal is almost always “reunification.” However, if you refuse to comply with your menu and/or cooperate with services, after a certain amount of time, the Department may be required to file a termination of parental rights petition (TPR) to free your children for adoption. If that happens, you will lose all of your parental rights.

Do I need an attorney?
If you receive a visit from a CPS caseworker while you are already being represented in a separate divorce or custody matter, you should contact your attorney immediately. If you are not represented, you may want to consider at least consulting with an attorney depending upon the severity of the allegations.

If CPS removes your children and/or files a neglect petition, you should immediately consult with an attorney, if possible. An attorney can advise whether your children were properly removed and what you will need to do to get them back.

The best advice is to cooperate fully with CPS, and the Department, in the event a neglect petition is filed, and to make sure you are represented by an attorney who fully understands your rights and options in an Article 10 neglect proceeding.

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HoganWillig

We Practice Law for Your Peace of Mind