CPS or ACS Contacted Me After a Platform Report: What to Do.

If you receive a call or visit from an ACS representative, do not give them any information or allow them into your home until you can independently verify who they are and how they are connected to the case against you. A good way to verify the person’s identity and connection to the case is to call the appropriate ACS office for your neighborhood. If the person is indeed with the office, he or she should be able to provide you with a case number.

Q: Do I need to speak to an ACS investigator?

A: No, you don’t.

You have the right to consult your lawyer before you say anything to an ACS investigator. Once you consult with your lawyer, he or she can make an informed decision about whether it makes sense for you to speak to the investigator or cooperate with the agency in any other way.

Q: Do I have to let an ACS investigator into my house?

A: No, not ordinarily.

An ACS investigator needs either your consent or legal authority (such as a warrant) to enter your home. If the investigator does not have your consent or legal authority to be there, you can turn him or her away.

Q: Do I have to let an ACS investigator see my children?

A: No.

Parents generally do not have to allow investigators to see their children, and they can refuse to answer any questions the investigators ask.

Q: What can I do to help preserve evidence related to ACS investigations?

A: Parents can do plenty of things to help preserve evidence.

• Keep any notices, suspension emails, or other communications from social media platforms (or other online platforms)
• Copy the URLs of your posts or the posts of others, if any
• Take screenshots of your posts or the posts of others, if any
• Take screenshots of any relevant messages, including those containing images
• Do not use your computer, phone, tablet, or other devices that could contain evidence of wrong or right
• Copy logs of recent internet activity on your computer, phone, tablet, or other devices
• Gather all relevant medical, school, or other records
• Gather all other relevant documentation and communicate with your lawyer immediately

What does a platform report to ACS actually mean?

A “platform report” to the Child Protective Services (CPS) or Administration for Children's Services (ACS) agency generally means that an online service provider detected content on its servers that it identified as child pornography, CSAM, child endangerment, or some other form of child abuse or neglect. The online service provider then shared that content (and information about the user and their identity) with a law enforcement agency, or with the National Center for Missing & Exploited Children (NCMEC), and the child protection agency is now in possession of the content and the user’s identifying information.

In most cases, the process of reporting content to child protective services will begin with a review by an online service provider that detected the content on its servers. When an online service provider determines that content may show child sexual exploitation material, child endangerment, or some form of child abuse or neglect, the following steps are typically taken:

• Under 18 U.S.C. § 2258A, covered providers are required to make reports of apparent violations involving child sexual exploitation material to NCMEC. If the provider did not have any other options to report, it will submit a CyberTipline report to NCMEC.
• NCMEC will then review the CyberTipline report. If appropriate, NCMEC will transfer the report to one or more law enforcement agencies, such as a federal law enforcement agency or a state, local, or county law enforcement agency.
• If an investigator with one of these law enforcement agencies believes that there may be child safety issues, they can transfer online evidence (as well as information about the user and their identity) to a child protective agency such as ACS or CPS.

Can online evidence trigger both a criminal investigation and a child-protection investigation?

Yes. One or more pieces of online evidence can trigger a child-protection investigation and a criminal investigation. These two investigations are separate. Each will be conducted under different procedures and laws, with the goal of achieving different outcomes.

Q: Are the following entities all the same?

A: No, they are separate.

• ACS is a civil agency whose purpose is child protection.
• The NYPD, U.S. Attorneys, and state and federal prosecutors are entities in the criminal justice system.
• Family Court is a New York civil court that adjudicates matters involving children and their parents.
• The New York County District Attorney’s Office is one of several agencies in New York’s criminal justice system.

Why is the online platform reporting me?

An online platform may report you for several reasons:

• Automated hash matching: Online platforms can automatically detect content that contains child sexual exploitation material by comparing image or video files to hash databases.
• User complaints: A user may have reported content that appeared on the platform as evidence of abuse or neglect.
• Provider review: A provider employee or contractor who is reviewing content may have flagged evidence of abuse or neglect.

Does a platform report mean that I have abused or neglected my children or the children in my care?

No. A platform report only triggers an investigation. It may be based on a mistake by the online service provider or its AI. It may also be based on content that, while it may violate platform rules or warrant investigative scrutiny, does not constitute child abuse or neglect. It may even be based on content that is clearly legal in nature, or that does not meet the legal definition of CSAM or child endangerment. This does not mean that an ACS investigation is not warranted, but it does not establish that the user has committed a civil or criminal offense.

Should I answer ACS questions or hand over my devices?

If ACS is investigating allegations of abuse, neglect, or endangerment involving online evidence, the investigation’s scope could potentially include questions about your activity online. Additionally, the investigation may include requests for access to your phone, computer, or other devices. There are several considerations that parents and other caregivers need to keep in mind when considering whether to answer these questions or hand over their devices:

In general, parents do not have a right to appointed counsel during ACS’s pre-petition investigation process. Once proceedings begin in Family Court, however, indigent parents will be entitled to appointed counsel if they are in danger of losing their children if they lose the case.

Because many of the issues that can lead to child protection investigations in New York (e.g. CSAM, child endangerment) can also lead to criminal prosecution, it is especially important to be mindful of criminal exposure when answering questions. If the online evidence that triggers an ACS investigation does not meet the definition of abuse or neglect, it may still meet the definition of a state or federal crime.

ACS may share statements with law enforcement and other entities if it considers it necessary. Statements made during a child welfare investigation could potentially be used against a parent in criminal prosecution if they are shared with law enforcement.

When deciding whether to consent to an investigator’s access to your device or your records, it is important to understand what you are consenting to. Consent to inspect a device is different from consent to inspect records from a child’s school or the child’s medical records. Parents should be extremely careful not to provide consent for things that may go beyond what is necessary.

You will have different rights if you receive a search warrant, a subpoena, or a request for voluntary consent. Knowing your rights under each type of legal instrument is essential for making an informed decision. You should never assume that your rights under a search warrant or subpoena are the same as your rights when facing a request for voluntary consent.

Q: Can ACS force me to agree to a safety plan?

A: ACS may ask you to agree to a safety plan.

Yes, under New York law, ACS investigators can use a safety plan to limit a parent’s rights (e.g. regarding access to a device or the internet) in the interests of the child’s safety. While this is a civil rather than a criminal matter, there may still be serious consequences to any findings under the investigation. A safety plan may restrict a parent’s:

• Devices: You could be required to stop using certain devices or give up your device for inspection.
• Internet access: You could be prohibited from accessing certain websites or the internet in general.
• Supervision: You could be required to allow the investigator to supervise your interactions with the child (or children).
• Contact: You could be prohibited from contacting the child (or children) or other individuals.
• Residence: You could be required to move out of the family residence or to have someone else move in.

Q: Can ACS take my child away?

A: Yes, if warranted.

Yes, New York allows ACS to remove a child or children from the home if warranted. This can be done through the emergency removal process, where a child (or children) can be removed without first going to Family Court. Alternatively, it could be done through a petition, where the child (or children) are removed after a Family Court judge makes a decision to remove.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

How should I preserve digital evidence after a platform report?

If your computer, smartphone, or another device has triggered an ACS report, it could be imperative to preserve relevant evidence. While this is true in the sense that you do not want to accidentally delete a file that could serve as evidence of your compliance, deleting files that are likely to be part of ACS’s case against you could also lead to serious consequences. The last is one that requires a case-by-case approach, and it is one in which you need your lawyer’s advice. That said, your lawyer will also want to make sure that all relevant evidence from your device, and from other devices and cloud accounts, if necessary, is fully preserved.

When deciding how to preserve digital evidence, some considerations include:

• Social Media Posts: Parents and other caregivers should make sure that they make a full copy of their social media posts, and that they make a full copy of the social media posts that they were notified of. This may be in their best interest, given that those posts may have been captured for the agency’s file or could serve as critical evidence at trial or in Family Court or at a juvenile justice proceeding.
• Deletion of Digital Content: In some cases, deleting content could help to prevent a potential criminal prosecution. However, in others, deleting content could support allegations of obstruction, spoliation, or “consciousness of guilt.”
• Other Digital Devices: Your computer, smartphone, tablet, game consoles, shared devices, cloud accounts, school devices, or any other device could contain evidence of wrong or right. If relevant evidence exists outside of your phone, this should be properly identified and preserved.
• Hacking, Sharing, and Attribution: Being the owner of a hacked account, using a shared device, or allowing a child or teenager to use your device for online access are not always enough to prevent attribution, but these are important considerations. Even if ACS has sufficient evidence to identify an account owner, that does not always establish who created, uploaded, or had possessory interest in the content. This may provide the basis for challenging the investigator’s conclusions.

What other aspects of the case might complicate attribution?

In addition to the factors noted above, attribution could be complicated by:

• Synchronization with a Cloud Account: A child or teenager may have uploaded content to their cloud account that then synced to a parent’s account, or vice versa.
• Family and Individual Accounts: A parent or other adult may have accessed a child’s device or account, or vice versa, and it may not be clear which individual is responsible for the content in question.
• Use of an Unrecognized Account or Device: It may not be clear whose account or device was used to access, download, upload, or communicate the content in question.
• Teen Sexting and Self-Created Images: These types of online activity can lead to cases in which a child or teenager is the victim, witness, and suspect all at once. They can also lead to cases involving sextortion, as well as cases involving self-created child sexual exploitation material.
• Apparent Content: A digital photograph of a child during a bath or a photograph of a child taken for medical purposes can appear to be child sexual exploitation material. Determining whether the photograph in question is truly CSAM can also be a significant challenge.

Can ACS enter my home or interview my child?

Q: Does ACS have a fixed time to visit?

A: No.

ACS investigators typically conduct their visit during school hours. However, the time of visit varies widely, and there is no specific cutoff hour. If needed, they can conduct their visit during the evening or early morning hours.

Q: Can ACS interview my child at school?

A: Yes.

ACS investigators may interview a child or children at their school. This may be done without the parent being present, provided the investigator obtained the school’s permission to see the child. If the parent is not present, the investigator may review relevant school documentation, interview teachers or other staff, and interview the child or children. In some cases, the ACS investigator may also have access to a child’s school records without the child’s consent.

Q: Does ACS speak to other people as well?

A: Yes.

Investigators also frequently reach out to collateral witnesses. This includes teachers, counselors, doctors, social workers, judges, and probation officers. These collateral witnesses can provide insight into the home environment or the child’s physical and emotional health. When they talk to these witnesses, investigators take notes. The notes may later support an emergency removal request or a petition for removal in Family Court.

Q: If I refuse voluntary entry, does that mean that my case is over?

A: No, not necessarily.

If an ACS investigator has not obtained legal authority to enter your home, then he or she cannot enter without your consent. Refusing to give your consent does not end the child welfare investigation. If you tell the investigator that he or she cannot enter your home, they may call the agency’s office or ask for authorization from an ACS supervisor. If the ACS supervisor also denies authorization, the ACS investigator may attempt to obtain a search warrant from a court. If the court issues a search warrant, then the investigator will have legal authority to enter your home and conduct an inspection without your consent. Also, if the search warrant is a request for voluntary consent, you may still be able to avoid a search if you continue to refuse voluntary consent. Your lawyer can help you understand what you are entitled to refuse.

Q: Will letting the investigator inside help protect my child (or children)?

A: Not necessarily.

Remember, voluntarily letting the investigator inside does not guarantee that your children or other property will stay in the home. Opening the door and stepping aside may be construed as voluntary consent, allowing the investigator to enter the home without anyone stopping them. Even if you give your consent to let the investigator into your home, your lawyer can help you determine whether consent will help you end the child welfare investigation or whether the investigator is more likely to seek emergency removal or other action.

Q: Can ACS enter my home in an emergency?

A: Yes.

In emergency situations, particularly when there are allegations of physical abuse or child endangerment, ACS investigators have the authority to enter your home without the authority of a judge. They may also be able to enter without the authority of a judge in cases where they believe their removal is critical to preventing immediate harm. If they are able to obtain a court order, this court order may then permit an investigator to enter your home even if a parent does not consent to their entry. The court order may also allow an investigator to remove the child (or children) from the home even over the parents’ objections. In these circumstances, the child’s safety or the urgency of the situation (or both) takes precedence over the parent’s right to exclude others from his or her property.

How does ACS investigate and decide a platform report?

If you have been contacted by an ACS or CPS investigator in connection with a platform report, then you may be wondering how the investigation proceeds. Here are some common questions about the ACS and CPS investigation processes in New York:

How long are the investigators’ deadlines to investigate?

If the investigator comes to your home or calls you or shows up at the hospital or your children’s school, he or she has already been assigned to the case and has presumably contacted the platform (or the social media agency) that provided the evidence.

After the report is made to the relevant child-protective agency, an intake officer reviews the allegations to determine if investigation is warranted. If the allegation meets the agency’s threshold for investigation, an investigator is assigned to the case. If this is a matter involving a child’s physical safety, the investigator will go to the child’s location as soon as possible. The investigator will review online evidence, contact the platform from which it came, check if it is possible to verify the evidence through other sources, contact the family (if possible), and otherwise determine the truth behind the allegations.

Q: Do I have the right to appeal or challenge an ACS finding against me?

A: Yes.

In New York, parents and other caregivers have an appeal or administrative hearing process. After the investigation concludes, if the ACS findings establish a child-maltreatment or child-endangerment offense, parents will need to challenge the investigator’s findings or the determination of abuse or neglect. If an appeal is taken with OCFS, it will be a paper review by OCFS. If a fair hearing is held, a law judge will hear the agency’s evidence and determine if the evidence meets the child-maltreatment or child-endangerment threshold by the “preponderance of the evidence” standard.

Q: When do I need to appeal?

A: Within 90 days of the date on the letter you receive.

If an ACS finding of child maltreatment or neglect is issued, the findings are “indicated.” The date on the letter you receive from the agency will mark the start of the 90-day window in which you need to request a review with OCFS or at a fair hearing.

Q: What can a finding of child maltreatment or neglect lead to?

A: A finding of child maltreatment can have lifelong consequences.

If ACS finds that child maltreatment or neglect has been indicated (even if this is in regard to a platform report involving only a minor offense), the finding can affect your ability to work or volunteer in certain positions. It could potentially affect professional licensing, and it could certainly affect your ability to obtain child custody, visitation rights, or custody in a foster-care or adoption proceeding.

With the time it takes for the CPS and ACS investigator to make their assessments, the CPS and ACS investigation can last for months. With a deadline to conduct an assessment before a determination is issued, the case could also be protracted. New York has a 60-day deadline for investigations, but requests for extensions are common and usually granted by ACS supervisors. Parents and other caregivers must be patient during the investigation and work with their lawyers to avoid unnecessary and unjustified removal of the child (or children) involved.

Q: How long do I have to get back out of an indicated finding in New York?

A: As soon as possible.

With a 90-day deadline for appeals, parents and other caregivers must get on their lawyer’s radar soon. An indicated finding is a serious label that may lead to a variety of different outcomes depending on the nature of the alleged offense. If the finding is unfounded, then the child will remain in the home and no other action will be necessary.

However, a finding of child maltreatment or neglect could serve to justify emergency removal or support a request for removal in Family Court. A finding could lead to the temporary removal of your children, or even a permanent removal resulting in loss of custody rights. With this outcome in mind, obtaining your children or protecting the children in your care requires understanding the full scope of the platform’s report, the evidence in ACS’s file, and the relevant laws. If you are interested in fighting an indicated finding, you should engage an experienced child-protection lawyer promptly.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.