By Keyna Franklin, Assistant Editor and Shakira Paige, Peer Trainer
At the start of 2022, legislation went into effect that changes how New York State’s Statewide Central Registry (SCR) operates. The legislation was developed and pushed forward by parent activists and allies to reduce the harm and scope of the SCR, which particularly impacts Black and Latinx families and communities.
Here, Chris Gottlieb, Co-Director of NYU Law School’s Family Defense Clinic, details what has changed, how the legislation will be implemented, parents’ rights related to the SCR and how to prepare for a fair hearing. NYU Law School’s Family Defense Clinic partners with parent activists and legal defense organizations on legislative advocacy to push the family defense movement forward.
Q. What did the new SCR legislation change when it went into effect on January 1, 2022?
A. The bill changed four things:
- It raised the standard of evidence required for the system to list a person on the registry with an indicated case.
- SCR records for indicated cases of neglect or maltreatment now will be sealed after eight years, instead of up to 28 years.
- If you win at trial in family court or your case is dismissed, you no longer have to go through a separate process to clear your SCR record—it will be amended and sealed automatically.
- Now, when you challenge your SCR record in a fair hearing, you always can present evidence that the allegation is not relevant to employment.
The changes lessen the extreme harm that the SCR inflicts on families. Being listed on the SCR limits parents’ employment options, affecting access to a wide range of jobs, including some positions as daycare providers, home health aides and nurses. Activists advocating for this legislation pointed out that it is illogical that the system—which says it tries to help kids—harms parents financially, making it harder for parents to support their children.
Q. What is the new standard of evidence required for a person to be listed on the SCR?
A. When someone calls the SCR hotline and reports a parent, if the report is accepted, a record on that parent is created in the SCR. At the end of 60 days, the state agency, Office of Children and Family Services (OCFS), decides if the allegations are indicated or unfounded.
Previously, in New York State, you would get an indicated case if there was “some credible evidence of abuse or neglect.” That is an incredibly low legal standard—lower than in most other parts of the country. The new legislation raised the legal standard. Now, the system has to show a “fair preponderance of evidence” before giving a parent an SCR record.
“Preponderance” means that it is probably true—more likely true than not. Under the old law, the system didn’t even have to prove that an allegation was probably true for you to get an indicated case. “A fair preponderance of evidence” is the standard most states use in family court. It is still a lower standard of evidence than what is required on the criminal legal side, where an allegation has to be proven “beyond a reasonable doubt.”
Q. Which cases will be affected by the new timeline? Will those records automatically be removed from or sealed in the registry?
A. Now all neglect cases—which are the vast majority of cases—will be sealed at the end of eight years. (The records will not be removed or expunged, which is unfortunate, as being listed at all can still cause harm.) Previously the record stayed in the SCR until the youngest child named in the report turned 28 years old—so the record remained for up to 28 years.
This change does not apply to abuse cases. All indicated cases—even before the new law that went into effect this year, are removed after the youngest child in the report turns 28. Unfounded cases are removed after 10 years.
Once your record is sealed, information about it will not be given to employers. Additionally, once your record is sealed, foster and adoptive agencies won’t be given this information, so it won’t affect your ability to become a kinship resource or to foster or adopt. Indicated cases often make it difficult to become a kinship resource when another family member has a case. I want to note that you can still become a kinship resource or foster parent if you have an indicated case. Agencies sometimes say they’re not allowed to certify you as a foster parent if you have an indicated case—that is not true. They are required to consider the information, but can and in many, many cases should accept parents with indicated cases.
Q. Is there anything eligible parents need to do to get their records sealed?
A. A person does not need to do anything in order to benefit from some aspects of the new legislation. The sealing of records based on court dismissals and at the end of eight years for neglect cases should happen automatically, but it didn’t happen all at once on January 1st. OCFS is not going to proactively seal all the records that are over eight years old. When they get a background check inquiry any time after January 1, 2022, they will check whether there is an indicated case and if so, whether it was over eight years ago. If it is, they’ll seal it. Similarly, if they see the case was dismissed, it will be sealed.
It remains important for people to act when they get a letter saying they have an indicated case and a right to a fair hearing. You should ask for a fair hearing if there is not sufficient evidence to support the indicated report or when you want that opportunity to show the allegation is not relevant to employment with children. If you do not know whether it is the best time to request a hearing, you should consult with a lawyer.
Q. Will parents be notified when their record is sealed?
A. They will not be notified; however, they should have no issues when applying to jobs because the record should be sealed after eight years and/or if their case was dismissed. If they want to check, they can request a copy of their records or talk to a lawyer. To request your records, send a letter in the mail to OCFS saying you are requesting your records and providing your name and date of birth.
Q. If you win in family court, what does the new legislation mean for your SCR record?
A. Previously, you could go to trial and win your case—but you still had that record in the registry. You had to go through a separate fair hearing process to challenge your record.
Now, if you win your trial in family court or the case is dismissed (meaning the court decides that there isn’t a reason to find you committed neglect or abuse), you don’t have to separately challenge your record in the SCR. It will be automatically amended and sealed and won’t be available to employers.
This applies to both abuse and neglect. That is important because often, in abuse cases, a lot of evidence is presented during trial. Maybe a child has an injury nobody can explain and NYC’s Administration for Children’s Services (ACS) alleges that the parent inflicted the injury. Testimony from medical experts might convince the judge that the injury was not inflicted by the parent, or that it’s not an injury caused by abuse, but a medical issue instead. If the judge dismisses the case, the parent’s record will be sealed.
Q. When do you have a right to a fair hearing?
A. Most people on the registry never challenge their case—they may not even know they are on the registry. It is important to spread the word about the right to a fair hearing to help limit the harm of the system.
Each person can have one fair hearing to challenge their SCR record. There are two points when you have a right to a fair hearing:
- You have a right to a fair hearing when you are notified that you have an indicated case. You are supposed to get a letter notifying you that you have an indicated case and that you have 90 days to request a fair hearing. Many parents don’t get these letters. If you didn’t get the letter, your 90 days haven’t started.
- When an employer or foster/adoptive agency makes an inquiry to find out if you have an SCR record, if you haven’t had a hearing yet, OCFS is supposed to send you a letter explaining that someone made an inquiry, you have an indicated case and you have a right to a fair hearing.
If you never received a notice and have an indicated case, you can write to OCFS and request a fair hearing. Sometimes people are told that it’s too late, but if you didn’t get your notice, you still have a right to a hearing. To request a fair hearing, send a letter stating, “I’m asking to amend and seal my record. If you don’t amend and seal my record, I want a fair hearing.”
Q. How does the new law benefit parents challenging their SCR record through a fair hearing?
A. Every fair hearing looks at whether there is evidence to support the allegation of abuse or neglect. If there isn’t evidence, they amend and seal the record.
Starting January 1, if there is evidence to support the allegation, all fair hearings will also consider whether the allegation is relevant to working with children. If it is not relevant, an employer doesn’t need to know about it and the record can be sealed. Previously, even if a parent did everything ACS required, at some fair hearings they weren’t allowed to present that information.
There are a lot of ways to argue that an indicated case is not relevant to employment. You can present evidence of “rehabilitation” showing that something has changed. For example, if a parent had a drug issue that interfered with their ability to parent, did a drug program and is now drug free, there is no reason that history should now prevent them from working with kids.
Another example could be a parent of a teenager who is not going to school. I don’t think that should be considered neglect, but the system might give that parent an indicated educational neglect case. Having trouble getting your teenager to go to school certainly doesn’t make you unsafe to work with children in a daycare center or as a school bus driver—you could argue that your record should be sealed because the case is not relevant to employment with children.
Q. How can parents prepare for a fair hearing?
A. First, consider, “What evidence do I have that the allegations are not true?” This may include documents. If it’s an educational neglect case and you have school records showing your child didn’t miss school, that can be evidence. Your own testimony can be evidence, too.
Second, ask, “What evidence do I have that the allegations are not relevant to working with children?” You can bring letters from people who know how you are with kids. Your child’s teacher could write a letter saying they’ve seen what a wonderful parent you are. Your pastor could write, “She teaches Sunday school and is great with kids.” A therapist or drug counselor could write a letter, or you can present certificates of parenting classes. Anything showing that you should have a job involving contact with kids is relevant.
Third, prepare your testimony in advance, focusing on issues the judge will care about. You may have had bad experiences with a caseworker, but if you spend your time focusing on what the caseworker did wrong, you’re less likely to win your case. It’s critical to think, “I have limited time, what points are most important to make?” If it’s a medical neglect case, the points might be: “I’m the one who took my child to the doctor. They didn’t give me a follow-up appointment.” Or, “I didn’t use this medication because another doctor told me there was a better treatment.”
You can contact one of the legal defense offices to request a lawyer who can support you in focusing on the most relevant points. I encourage parents to connect with a lawyer—though I recognize that there aren’t enough lawyers right now. Don’t be discouraged if you can’t find a lawyer—a lot of parents win on their own.
Q. Has the pandemic affected fair hearing processes?
A. The process was disrupted and there were no fair hearings for a while. It is operating again, but there are lengthy delays and most fair hearings are still virtual. Sometimes virtual hearings work well; sometimes they don’t work smoothly. It’s not clear when in-person hearings will resume.
As long as you send your letter within 90 days of notification, you’ve done your part. If the hearing is delayed, OCFS isn’t allowed to send out information about the indicated case until you’ve had your fair hearing.
Q. How can parents prepare for a virtual hearing?
A. If you prefer to have the hearing in person, you have that right, but it will be delayed. If you’d rather get it done virtually, be planful about where you’re going to be and your technology. The hearing is a critical chance for the judge to see and hear from the parent. If possible, find a way to have video access. It’s important to be in a place where you have good streaming and are not going to be distracted, for example, by having children around. It’s hard to give your best testimony with distractions.
If you can’t count on your WiFi and video access at home, consider whether there is somewhere else you can do the hearing. If you have a lawyer from one of the family defender organizations, you can ask to go to their office for the hearing.
If you don’t want to wait for an in-person hearing and don’t have good video access, you can ask for the hearing to be by phone. OCFS is supposed to do what the parent decides is best for them.
Q. What will the legislation mean for a parent with an indicated neglect case from 2021?
A. If their case was decided in 2021, it was decided using the old standard of evidence, but they will benefit from the other changes in the new law. Let’s say their case was indicated in 2021, they went to court and their case was dismissed, but they did not do a fair hearing to clear their record. If an employer does a background check in 2022, OCFS will see that they won in court and won’t give the employer information about it. If a parent has an indicated case from 2021 and their fair hearing will be in 2022, they can discuss relevancy and present evidence of rehabilitation at the hearing to advocate for their record to be sealed. If a parent got an indicated neglect case in 2021 that was not dismissed or sealed, it will be sealed after eight years, in 2029.
That is how it is supposed to work under the new law, but the system doesn’t always follow the laws. We are going to have a transition period when affected parents and advocates are going to have to work to bring the new law to life. Lawyers and administrative judges may not understand it yet. We need to educate parents about their rights and when to reach out to a lawyer.
Q. What else should parents know about the new SCR legislation?
A. This new bill came from parent activists and is a sign of the concrete change that impacted parents in communities targeted by ACS can achieve. Lawyers contributed from a legal angle, but it was not conceived of by lawyers. P.L.A.N. (Parent Legislative Action Network) Founder Joyce McMillan told lawyers that the SCR process needed to change and got a whole group of parents and advocate partners to convince people of that. It was called for, pushed and able to pass because of the level of activism that NYC now has in this field. It is a lesson about saying out loud, often and clearly what is broken and what would make it better.
- Sample letter requesting amend and seal
- Sample letter requesting records
- Clearing Your Name After An Investigation: How to Seal and Amend Your Record (December 2020)
- New Law Reforming NY State Central Registry Will Provide Justice and Relief to Families (April 2020)
- An Unavoidable System: The Harms of Family Policing and Parents’ Vision for Collective Care (Fall 2021): Rise supports eliminating the SCR. In this report (p. 27), we provide recommendations to continue shrinking the SCR and reducing its economic harm.