New York Family Law Blog
2017 New York Slip Op. 01020
February 9, 2017
Facts
The State Office of Children and Family Services in Westchester County (OCSF) received information that the petitioners were engaged in educational neglect. The case proceeded via Family Assessment Response Track (FAR Track). The case was closed a month after it was opened and no further action was recommended. After that, the petitioners asked that the case be expunged. The court said that the case could not be expunged because it was a FAR Track case. The petitioner brought this action pursuant to NY C.P.L.R. 78, challenging the decision of the OCFS for the denial of the expungement.
The Appellate Court confirmed, stating that the expungement is not available where there is no formal investigation.
Opinion
In February of 2013, the OCSF received a report via the phone, that the petitioners were possibly guilty of educational neglect.
It was reported that the Westchester County Department of Social Services law 422 (2)(a). This section states that any allegations made via a phone call can amount to a valid complaint of neglect.
Pursuant to a Social Services law 427 a [4][c]. CPA decided that the case was eligible for FAR Track, under Social Services 427(a). This was rule was created to address the needs of families without the need to hold a formal investigation (Social Services 427-a[4][d][i]). The case was closed within a month from when it was opened, and no further action was taken.
The petitioners contacted the OCFS seeking to have their name cleared. The Director responded, thinking that the petitioners were seeking an administrative review-said that OCFS couldn’t comply because the plaintiffs were on FAR Track, rather than being on a standard administrative track (Social Services Law 412 [7], 422 [8]. Petitioner retained a lawyer, who said that statute doesn’t afford the ability to seek an expungement.
The petitioner brought a hearing challenging that the rule was arbitrary and capricious. Petitioner contends that the expungement is available to parents being investigated by OCFS (Social Services Law 422[5][c]). The petition did not seek to challenge the statute. The Supreme Court granted the motion based on the argument that there is no statutory authority for an early expungement of a FAR Track report.
The Appellate Court affirmed (129 AD3d 1073[2d Dept. 2015] arguing that the Legislature’s failure to include Social Services law 427 “where it had, prior to Social Services Law 427 included in the statute within the same statutory scheme should indicated that the inclusion was intentional.”
The Appellate Division said that the Legislature didn’t consider it proper to include expungement because the stated purpose in enacting a differential was to avoid any consideration of the truth or falsity of the allegations of maltreatment of abuse.
The Appellate Court affirms.
The court stated that the FAR Track was created as an alternative means for investigating certain allegations regarding the mistreatment of children (Social Services Law 427-a[1]). The Legislature introduced the process in 2007. They reasoned that the FAR Track removed the stigma and created less of a hostile environment. Under this approach the local child protection agencies avoid any formal determinations that allege that an abuse occurred, and provides a family centered approach, which ultimately creates a safer environment for kids.
This appeal revolves around the inherent differences between a case dealing with FAR Track and the pre-existing investigative track that is used when dealing with allegations of child abuse, which is governed by Social Services Law 422.
This law enforces the concept that investigative records must be maintained for a minimum of 10 years after the report is made. This rule also states that 10 years after the report as elapsed, it can then be expunged.
Parents are only allowed to pursue an expungement of sealed reports (Social Services Law 422 [5][b][6].
The petitioner contends that the right to seek expungement is present because Social Services Law 427 is silent on the issue. The court disagrees with this rationale.
The failure of Legislature to mention or include a solution is a strong indication that the solution was left out on purpose (People v Finnegan 85 NY2d 53,58 [1995], also see Pajah v Pajah 56 NY2d 394,397 [1982].
FAR Track was created in an entirely new way to address child abuse allegations geared towards social services rather than opening a formal investigation.
If you are involved in a family law matter, including allegations of child neglect, or have an issue related to divorce, custody or alimony, contact our firm for advice and a free consultation at 1-800-NYNYLAW.