Opinion
2014-07-11
In the Matter of Joy ARBOGAST, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, SPECIAL HEARING BUREAU, Respondent.
Murphy Meyers LLP, Orchard Park (Margaret A. Murphy of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of Counsel), for Respondent.
Murphy Meyers LLP, Orchard Park (Margaret A. Murphy of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding to review a determination, made after a fair hearing, denying her request to amend an indicated report of maltreatment with respect to her four-year-old granddaughter to an unfounded report, and to seal it ( seeSocial Services Law § 422[8][a][v]; [c][ii] ). “At an administrative expungement hearing, a report of child ... maltreatment must be established by a fair preponderance of the evidence” (Matter of Reynolds v. New York State Off. of Children & Family Servs., 101 A.D.3d 1738, 1738, 955 N.Y.S.2d 909 [internal quotation marks omitted] ), and “[o]ur review ... is limited to whether the determination was supported by substantial evidence in the record on the petitioner['s] application for expungement” (Matter of Mangus v. Niagara County Dept. of Social Servs., 68 A.D.3d 1774, 1774, 893 N.Y.S.2d 410,lv. denied15 N.Y.3d 705, 2010 WL 3430855 [internal quotation marks omitted]; see Matter of Hattie G. v. Monroe County Dept. of Social Servs., Children's Servs. Unit, 48 A.D.3d 1292, 1293, 851 N.Y.S.2d 324). Here, we conclude that, contrary to petitioner's contention, the hearsay evidence of maltreatment—including but not limited to testimony that the subject child told a nurse and a child protective services caseworker that petitioner caused her injury, i.e., a ripped right earlobe—constituted substantial evidence supporting the determination ( see Matter of Jeannette LL. v. Johnson, 2 A.D.3d 1261, 1263–1264, 770 N.Y.S.2d 209;see generally Matter of Draman v. New York State Off. of Children & Family Servs., 78 A.D.3d 1603, 1603–1604, 910 N.Y.S.2d 708). Although the testimony of petitioner and her sister conflicted with the evidence presented by respondent, “it is not within this Court's discretion to weigh conflicting testimony or substitute its own judgment for that of the administrative finder of fact” (Matter of Ribya BB. v. Wing, 243 A.D.2d 1013, 1014, 663 N.Y.S.2d 417;see Matter of Crandall v. New York State Off. of Children & Family Servs., Special Hearings Bur., 104 A.D.3d 1199, 1199, 960 N.Y.S.2d 673). We therefore confirm the determination.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.