Opinion
7005 Index 101578/17
06-28-2018
In re ANONYMOUS, etc., Petitioner, v. Sheila J. POOLE, etc., et al., Respondents.
Patterson Belknap Webb & Tyler, LLP, New York (Isaac J. Weingram of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York (Judith Vale of counsel), for Sheila J. Poole, respondent.
Patterson Belknap Webb & Tyler, LLP, New York (Isaac J. Weingram of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York (Judith Vale of counsel), for Sheila J. Poole, respondent.
Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.
Determination of respondent Office of Children and Family Services (OCFS), dated July 12, 2017, insofar as it found, based on a fair preponderance of the evidence following a hearing, that petitioner mother had maltreated her one-year-old son, and denied her request to amend a report in the Statewide Central Register for Child Abuse (SCR) from "indicated" to "unfounded," unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Carol R. Edmead, J.], entered February 1, 2018), dismissed, without costs.
Substantial evidence supports OCFS's determination that the mother maltreated her one-year-old son when during a domestic dispute she drove down the street with the child, who was being held by the father, on top of her vehicle's hood (see Family Court Act § 1012[f][i][B] ; 18 NYCRR § 432.1 [b][1][ii]; Whitten v. Martinez, 24 A.D.3d 285, 286, 808 N.Y.S.2d 600 [1st Dept. 2005] ). Generally, an evaluation of the reasonableness of a defendant driver's reaction to an emergency situation will be left to the trier of fact ( Maisonet v. Roman, 139 A.D.3d 121, 125, 30 N.Y.S.3d 24 [1st Dept. 2016], appeal dismissed 27 N.Y.3d 1062, 35 N.Y.S.3d 295, 54 N.E.3d 1166 [2016] ). Taking all the facts and circumstances into account, OCFS properly determined that the mother's conduct and judgment fell short of objectively acceptable standards ( Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ).
Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 (2004) has limited applicability here, and the mother's reliance on this case does not change the result. In Nicholson, the Court explained that whether a domestic violence victim has failed to exercise a minimum degree of care will always turn on "whether she has met the standard of [a] reasonable and prudent person in similar circumstances" ( id. at 370–371, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). OCFS engaged in this analysis, taking into account "the severity and frequency of the violence, and the resources and options available to [the mother]" ( Nicholson, 3 N.Y.3d at 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). OCFS rationally concluded that the mother had not acted reasonably in this situation.
We have considered the mother's remaining contentions, and find them unavailing.