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In re Corrigan

New York Court of Appeals

February 9, 2017

In the Matter of Mariah Corrigan, et al., Appellants,
v.
New York State Office of Children and Family Services, et al., Respondents.

          Peter D. Hoffman, for appellants.

          Valerie Figueredo, for respondents.

          FAHEY, J.

         Here we address whether a statutory procedure allowing for early expungement of reports relating to alleged child abuse applies when the parents are not formally investigated but are instead assigned to the Family Assessment Response track pursuant to Social Services Law § 427-a.

         I.

         In February 2013, the Statewide Central Register maintained by the State Office of Children and Family Services (OCFS) received a telephone call alleging educational neglect by petitioners. OCFS referred the report to the Westchester County Department of Social Services, Office of Child Protective Services (CPS), pursuant to Social Services Law § 422 (2) (a) (providing that allegations in a telephone call to the Statewide Central Register that could reasonably constitute a report of child abuse or maltreatment must be transmitted by OCFS "to the appropriate local child protective service for investigation"). Based on an initial safety assessment (see Social Services Law § 427-a [4] [c]), CPS decided that the case was eligible to proceed under the Family Assessment Response track (FAR track) pursuant to Social Services Law § 427-a. Under this statutory framework, a social services district may establish a program designed to "meet the needs of [families] without engaging in a traditional child protective services investigation" (Social Services Law § 427-a [4][d] [i]). The caseworker submitted the case for closure in the month after the report was received, without recommending any services.

         Petitioners, seeking to have their names formally cleared, wrote to OCFS to request expungement of the FAR records and report. The Director of the Statewide Central Register, believing petitioners to be seeking administrative review, replied that OCFS could not comply with their request because petitioners had been placed on the FAR track, rather than the standard investigative track in which parents may challenge what is known as an "indicated report, " i.e. a finding that credible evidence of alleged abuse or maltreatment exists (see Social Services Law §§ 412 [7], 422 [8]). Petitioners then retained counsel, to whom an OCFS attorney explained that "[t]he statute does not afford the subject of a FAR report the ability to seek expungement of the report, " while emphasizing that the record of a FAR track case is sealed.

         Petitioners commenced this CPLR article 78 proceeding against OCFS and the Director of its Central Register, challenging, as "arbitrary and capricious" and "an abuse of discretion, " OCFS's determination to deny them the opportunity to seek early expungement of the educational neglect report. Petitioners noted that a process for seeking early expungement of a report is available to parents who have been investigated by OCFS (see Social Services Law § 422 [5] [c]), and contended that the statute governing the FAR track must be interpreted to include the same. The petition contained no challenge to the FAR statute on constitutional grounds. Respondents moved to dismiss, and Supreme Court granted the motion, on the ground that no statutory authority exists for early expungement of a FAR report.

         The Appellate Division affirmed (129 A.D.3d 1073');">129 A.D.3d 1073 [2d Dept 2015]), reasoning that the Legislature's failure to include in Social Services Law § 427-a any provision for early expungement, "when it had, prior to the enactment of Social Services Law § 427-a, included such a provision in a statute within the same statutory scheme, should be construed as indicating that the exclusion was intentional" (id. at 1075-1076 [internal quotation marks omitted]). The Appellate Division added that in its view the Legislature would not have deemed it appropriate to include a process for requesting early expungement of a FAR track report because "the stated purpose in enacting the differential response approach implemented by section 427-a was to avoid any consideration of the truth or falsity of the allegations of abuse or maltreatment in appropriate cases" (id. at 1076).

         We granted petitioners leave to appeal to this Court and now affirm.

         II.

         The FAR track created by Social Services Law § 427-a is "an alternative means of addressing certain matters otherwise investigated as allegations of child abuse or maltreatment" (Social Services Law § 427-a [1]). The Legislature, which introduced the FAR process in 2007 (see L 2007, ch 452), believed that where there are no immediate or high-risk safety concerns the needs of families can often be better served by a "non-investigative, non-adversarial, service-oriented approach" (Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 452 at 13), and that by "[r]emoving the stigma often associated with being reported to [the Statewide Central Register] and creating a less hostile and suspicious environment where the involvement of community resources rather than government agencies is encouraged, families will be more likely to cooperate with case workers and accept offers of support services, ultimately resulting in safer children at home" (Letter from Assembly Member Amy R. Paulin to David Nocenti, Counsel to the Governor, in Bill Jacket, L 2007, ch 452 at 9). Under the FAR approach, the local child protective service avoids "a formal determination that abuse or maltreatment has occurred" and instead employs a "family-centered approach" to "strengthen families... without jeopardizing the safety of children" (Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 452 at 12, 13; see also 18 NYCRR 432.1 [ad]; 432.13 [a] [1]). Introduced as a pilot program, the FAR track was made permanent in 2011 (see L 2011, ch 45).

         This appeal centers on disparities between the FAR track and the pre-existing investigative track governing allegations of child abuse or maltreatment, and the significance of those differences. Social Services Law § 422 is the statute governing the investigative track. It requires that records of reports to the Statewide Central Register be preserved by OCFS for "ten years after the receipt of the report" if the report is determined to be unfounded (Social Services Law § 422 [5] [b]; see L 1996, ch 12) and for "ten years after the eighteenth birthday of the youngest child named in the report" if the report is determined to be "indicated" (Social Services Law § 422 [6]). At the same time, the statute expressly provides that after the ten years have elapsed the reports "shall be expunged" (Social Services Law § 422 [5] [b], [6]).

         Social Services Law § 422 further established, by amendment adopted in 2000, a means whereby parents could seek early expungement of sealed unfounded reports, if either "(i) the source of the report was convicted of a violation of [Penal Law § 240.55 (3) (falsely reporting an incident in the second degree)] in regard to such report; or (ii) the subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment; provided however, that the absence of credible evidence supporting the ...


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