General Questions for All Hearings

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The below Questions and Answers are applicable in all Bureau of Special Hearings hearings. They are a starting point to provide information for what you can expect in participating in a hearing before OCFS. Please also refer to the specific Questions and Answers Document(s) that pertain to the particular hearing you have before OCFS (see below).

During initial appearance calendars and/or during opening statements by the Presiding Administrative Law Judge (ALJ) the ALJ will explain the rules, procedures and answer questions you may have so that you will be aware of what will happen during the hearing.

Acronyms and Abbreviations

• ALJ - Administrative Law Judge
• BSH - Bureau of Special Hearings
• OCFS - Office of Children and Family Services
• OTDA - Office of Temporary and Disability Assistance

Questions

What types of hearings are held by OCFS?

OCFS hearings can be of the following types:

• Adoption Eligibility
• Adoption Subsidy
• Amendment to/Sealing of Child Abuse or Maltreatment Reports
• Commission for the Blind and Visually Handicapped
• Day Care Licensing
• Employment Data Base Checks
• Family-Type Homes for Adults
• Foster Care Removal
• Kinship Guardianship Assistance
• Education and Training Voucher (ETV) Program
• Criminal History (De Novo) Hearings
• Operating Certificates
• Release Revocations
• Fenner Hearings

See the Types of Hearings page for descriptions of the types of hearings. The following FAQs specific to different hearing types are also available:

• Adoption Eligibility FAQ
• Adoption Subsidy FAQ
• Commission for the Blind FAQ
• Day Care Enforcement FAQ
• Foster Care Removal FAQ
• FTHA FAQ
• KinGAP FAQ
• State Central Registry FAQ

There are also OCFS hearings that are conducted for OCFS by the New York State Office of Temporary and Disability Assistance under a Memorandum of Understanding. These hearings include the following:

• Boarder Babies
• Day Care Subsidy
• Foster Care Payments
• Homemaker Services
• Protective/Preventive Services
• Transitional Child Care

How do I request a hearing before OCFS and what should I include in that request?

You can request an Administrative Hearing by sending a letter or written request to:

Office of Children and Family Services
Special Hearings Bureau
52 Washington St., Room 228N
Rensselaer, NY 12144

Any written request for an Administrative Hearing should include:

• Your name, current address, email address and phone number (indicating if the number is a home, office or cell number).
• The reason you are requesting a hearing.
• Attachments of any correspondence sent to you telling you of your right to a hearing.
• Let BSH know if you need an interpreter/translator at the hearing and specify your primary language.

Please refer to the FAQ specific to the type of hearing you are having for any additional information you should include in your request letter.

How has the current pandemic impacted the manner in which my hearing will be held?

The New York State Office of Children and Family Services (OCFS) Bureau of Special Hearings (BSH) is providing the parties with various options for the hearings. These include holding the hearing by 1) telephone; 2) by video; or 3) in person if the other two options are deemed not acceptable.

BSH uses the WebEx platform so that the Judge, parties and witnesses can be in different locations. The Judge will work with the parties to explain how the WebEx works and walk them through the process to get them comfortable with the technology.

BSH also works on providing safe in-person hearings by implementing health and safety protocols at BSH locations and by staying in communication with county facilities on their health and safety protocols at county hearing locations.

Why did I get a letter asking me to appear for an initial appearance or hearing?

When you ask OCFS for a hearing, you are considered the “Appellant(s)”. If the letter you receive from the BSH tells you that you are to appear for an initial appearance, it means you are not having your full hearing that day but having a conference with the Judge to discuss how the hearing will be conducted, and to pick a date/time and way the hearing will be held that works for all parties.

What is an Initial Appearance Calendar and how is it different than my hearing?

You will meet with an independent Administrative Law Judge (ALJ) designated by the Commissioner of OCFS and a representative of the county department of social services (the opposing party, also called the Agency) to discuss what will happen at the hearing and how you can prepare for the hearing. At this initial appearance, you will be given a date to come back for a full hearing.

You should not bring any witnesses to the initial appearance because the hearing will not begin on that date.

If the letter that you received from the BSH tells you that you are to appear for a full hearing, see the answer to next question.

How will I be notified about the Initial Appearance and/or hearing?

Notice of the Initial Appearance or scheduled hearing will be mailed to all parties by the BSH at least six working days before the hearing. The notice will include the time, date, place and nature of the hearing.

What is a hearing via video conference?

Any hearing conducted by the BSH may be held using video-conference equipment. The proceedings will be conducted in a manner that is similar to when all parties are in the same room.

If the video conference is occurring at the county department of social services (or Agency), participants will be required to sit at their respective tables in front of a television monitor and will be able to view the ALJ at the other location. The ALJ will be able to see, hear and speak with everyone in the room.

If the video conference is occurring with each party using their electronic devise (using video conferencing software such as WebEx, Zoom or Microsoft Teams), the parties will be provided with the information by the ALJ before the date of the hearing or Initial Appearance.

Documents may be submitted at the hearing and sent to the ALJ by email, mail or fax. If the hearing is taking place at the county location, documents may also be submitted using the scanner in the hearing room.

What is a hearing held by telephone conference?

In some cases, hearings may be held by telephone only. This may be necessary during periods of emergency such as during the COVID-19 pandemic where assembly of participants is not advisable and use of video connections is not feasible. If your hearing will proceed by telephone you will receive instructions for connecting to the conference from the ALJ.

What happens at the hearing?

The ALJ is in charge of the hearing and oversees all the proceedings. The county or Agency representative presents its case first, which commonly includes presenting witness testimony and submitting documentary evidence. You will be given an opportunity to cross-examine any witnesses for the office or challenge their documents. When the county or Agency representative has completes its case, you will have the opportunity to present witnesses and documentary evidence on your behalf. All witnesses will be sworn in and testimony will be taken like it is in a courtroom proceeding. Only one person at a time shall talk as directed by the ALJ. The entire proceeding will be recorded using an audio recorder.

What should I bring to the hearing?

You must bring with you to the hearing:

• a copy of the hearing letter,
• three copies of all documents you want the ALJ to consider as evidence.

You should also bring any witnesses you want to have testify for you at the hearing.

You must not bring young children or infants to the hearing as they will not be permitted in the hearing room, and there is no one at the location to watch the children while you are in the hearing.

May I be represented by an attorney at the hearing?

Yes. You may hire an attorney, but this office will not appoint or provide an attorney to represent you, nor pay for any attorney you may choose to hire. If you desire legal assistance and cannot afford an attorney, you may be able to obtain free legal assistance by contacting your local legal aid organization. BSH does not provide attorneys to Appellants.

May I represent myself at the hearing?

Yes. This is known as “Pro se” representation.

May I have someone who is not an attorney assist me at the hearing?

Yes. However, that person cannot also be a witness on your behalf.

Will I be provided an interpreter (sometime referred to as translator) at my hearing if I have difficulty understanding English?

Yes. You or someone on your behalf will need to call the phone number on your scheduling notice and advise what language you speak. An interpreter for that language will be present at the hearing at no cost to you. Requests for other assistance that you deem necessary for the hearing will be considered.

What if I need to adjourn (moving to another date) my hearing?

Adjournment requests must be made in writing to the assigned ALJ at least five days prior to the scheduled hearing date. Requests made by phone and/or in less than five days prior may be granted under extraordinary circumstances. The adjournment reason must be stated and, where possible, supported by documentation.

What happens if I fail to appear at my hearing and have not asked for and been approved by the Judge to move my hearing date to a new date and time)?

You will be deemed to be in default and the Agency’s determination, or action will be sustained.

How formal are the hearings?

These hearings are not as formal as those in a courtroom. However, each party will have an opportunity to present its case, with testimony and documentary evidence. You will have a chance to review any documents submitted at the hearing, as well as to question any witnesses.

Are in-person hearings taking place at OCFS and if so, how are they being offered?

OCFS is working to provide safe in person hearings by implementing protocols that incorporate and are in compliance with state and local health guidelines. Current scheduling of hearings for in person are generally significantly farther out on the calendar to permit the implementation of such protocols.

What issues are decided at the hearing?

The issues that will be decided in the hearing depends on the type of hearing you are having. Please refer to the hearing specific FAQs for the hearing type you have for information regarding the issues to be decided. Also, the scheduling notice you will receive as well as information provided by the ALJ at the hearing will identify the issue(s) to be decided at the hearing.

What is the evidence standard at the hearing?

The evidence standard for administrative hearings is generally a preponderance of the evidence (51% or higher). To the extent there are other evidentiary standards applied in a particular type of hearing, you should refer to the hearing specific FAQs for that hearing type.

With state administrative hearings, the rules of evidence are generally relaxed. Hearsay is admissible and may be relied upon for crucial factual determinations. Admissibility does not equate to reliability/credibility.

At the hearing you will have the right to:

• present and establish all relevant facts by oral testimony and documentary evidence;
• advance any pertinent arguments without undue interference;
• question or refute any evidence or testimony, including an opportunity to confront and cross-examine adverse witnesses;
• examine and introduce pertinent evidence from the record of services;
• examine and introduce any other pertinent Agency documents as determined by the ALJ assigned to conduct the administrative hearing.

Can I get access to information from the agency?

You may request a copy of your case record from the authorized agency that made the determination you are seeking to review. The request must be signed by you or your authorized representative and should be submitted in writing to the authorized agency. The first 20 pages of information will be provided free of charge. Any additional pages will be provided at a cost of 25 cents per page.

Can I request that the ALJ issue subpoenas?

At the request of any party to the proceeding, the ALJ assigned to conduct the administrative hearing may, in limited circumstances, issue subpoenas in the name of the party requesting the subpoena to require the:

• attendance and testimony of witnesses, and/or
• production of documents and other evidence.

How will the investigating agency present its evidence?

The investigating agency may present evidence in the form of witness testimony or documents they prepared or obtained during the course of its investigation.

Can I challenge the evidence offered by the investigating agency?

Yes. You may object to the documents being introduced at the hearing and the ALJ will decide if the documents are allowed into evidence. You will also be given the opportunity to question any witnesses who testify for the agency: this is known as cross-examination. The agency will also have an opportunity to challenge the evidence offered by you and to ask questions of you and any witnesses you call to testify.

How can I present my evidence?

First, you can testify. Your own testimony is considered to be “evidence.” You have the right to not testify, but unlike criminal proceedings, your silence may be held against you.

Second, you can submit any evidentiary documentation that directly relates to the findings contained in the indicated report(s). Please bring to the hearing an original and two copies of any document or photograph that you wish to present. Audio or video recordings will be retained by the ALJ. If your hearing is being held pursuant to SSL § 422, you should also be prepared to present evidence regarding any efforts at rehabilitation since the time the report was made.

For example, in an SCR hearing, if you and/or your child or children have completed counseling, treatment, educational or training programs you should bring documentation to establish successful completion. This evidence will be considered in determining if the report is no longer relevant and reasonably related to child care issues. For a more detailed description of guidelines regarding this issue you can review the SCR Stip Packet which has that information.

May I present witnesses to testify on my behalf?

Yes. Your witness testimony should directly relate to the findings contained in the indicated reports(s) or to the issue of whether the report is still relevant. Minor children may not testify.

What should I do if my witness is unable to appear in person or by video/phone?

You may present statements, sworn affidavits or letters from witnesses who cannot appear in person. Letters should be dated, signed and, if possible, acknowledged before a Notary Public. Please be advised that the ALJ can give less weight to such statements, affidavits, or letters because they are not subject to cross-examination.

Is the hearing recorded?

Yes. Speak loudly and clearly. Do not shake or nod your head to answer, and avoid gesturing, because that will not be picked up by the recording device. It is important that people participating in the hearing not talk over one another or at the same time as it will make it difficult to have a full and complete hearing recording transcript.

How will the outcome of my hearing be communicated to me?

Once the hearing is over, a written decision will be mailed to you and to your attorney or other representative if you have one. It is your responsibility to keep our office informed of any change of address.

What happens if the decision I receive says that I won my hearing?

The decision will explain why you won and what the agency action must be to accomplish the outcome of the hearing. It could direct the Agency to take specific action or send the matter back to the Agency to reevaluate its determination, taking into account additional factors raised by you at the hearing.

What happens if the decision says I lost my hearing?

The Agency’s determination will remain in effect. If you still disagree with the determination, you may bring a lawsuit in accordance with Article 78 of the Civil Practice Law and Rules. If you wish to do so and no not know how, you may contact the legal resources available to you such as County Bar Association, Legal Aid, Legal Services, etc. You must start such a lawsuit within four months after the date of the decision.