Opinion
2014-08-6
In the Matter of Lisa IRVING, petitioner, v. Gladys CARRION, etc., et al., respondents.
Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jerold C. Rotbard of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Bethany Davis Noll of counsel), for respondents.
Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jerold C. Rotbard of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Bethany Davis Noll of counsel), for respondents.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Children and Family Servicesdated June 22, 2012, which, after a hearing, denied the petitioner's application to amend and seal an indicated report maintained by the New York State Register of Child Abuse and Maltreatment.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
At an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a preponderance of the evidence ( see Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 703, 642 N.Y.S.2d 181, 664 N.E.2d 1243; Matter of Esteva v. New York State Cent. Register of Child Abuse & Maltreatment, 82 A.D.3d 978, 979, 919 N.Y.S.2d 93; Matter of Blythe v. Carrion, 63 A.D.3d 1059, 1059, 880 N.Y.S.2d 555). “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” (Matter of Bullock v. State of N.Y. Dept. of Social Servs., 248 A.D.2d 380, 382, 669 N.Y.S.2d 618).
Judicial review of a determination that a report of maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record ( see Matter of Reed v. Carrion, 84 A.D.3d 1094, 1094, 924 N.Y.S.2d 797; Matter of Benjamin v. Carrion, 79 A.D.3d 744, 744, 915 N.Y.S.2d 81). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).
To establish that maltreatment occurred, the agency must show that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the person legally responsible for his or her care to exercise a minimum degree of care ( see18 NYCRR 432.1[b][1] ). Here, the Commissioner of the New York State Office of Children and Family Services determined that a fair preponderance of the evidence established that the subject children's physical, mental, or emotional condition was in imminent danger of becoming impaired, as a result of the petitioner's failure to exercise a minimum degree of care in providing proper guardianship by allowing them to be exposed to an ongoing pattern of domestic violence. That determination is supported by substantial evidence ( see18 NYCRR 432.1[b][1][ii]; Matter of Martin MM. v. New York State Off. of Children & Family Servs., 110 A.D.3d 1285, 1286, 974 N.Y.S.2d 160; Matter of Anthony S. [Dawn N.], 98 A.D.3d 519, 520, 949 N.Y.S.2d 194; Matter of Armani KK. [Deborah KK.], 81 A.D.3d 1001, 1002, 915 N.Y.S.2d 422; Matter of Angelique L., 42 A.D.3d 569, 572, 840 N.Y.S.2d 811).
Accordingly, the determination denying the petitioner's application to amend and seal the report maintained by the New York State Office of Children and Family Services must be confirmed, the petition denied, and the proceeding dismissed on the merits.