Opinion
436 TP 18–02163
07-31-2019
In the Matter of Sunanda KERN, Petitioner, v. NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT and Erie County Department of Social Services CPS Unit, Respondents.
SUNANDA KERN, PETITIONER PRO SE. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT.
SUNANDA KERN, PETITIONER PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [John F. O'Donnell, J.], entered November 20, 2018) to review a determination of New York State Office of Children and Family Services. The determination denied petitioner's request that a report maintained in the New York State Central Register of Child Abuse and Maltreatment, indicating petitioner for maltreatment, be amended to unfounded.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination made after a fair hearing that denied her request to amend an indicated report of maltreatment with respect to the subject child to an unfounded report, and to seal it. She contends that the determination that she committed acts of maltreatment, and that such maltreatment was relevant and reasonably related to childcare, is not supported by substantial evidence. We reject that contention. "It is well established that our review is limited to whether the determination to deny the request to amend and seal the [indicated] report is supported by substantial evidence in the record" ( Matter of Lauren v. New York State Off. of Children & Family Servs., 147 A.D.3d 1322, 1322, 47 N.Y.S.3d 537 [4th Dept. 2017] [internal quotation marks omitted] ). "Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact ... [,][and] hearsay evidence ... [,] if it is sufficiently reliable and probative, may constitute sufficient evidence to support a determination" ( Matter of Dawn M. v. New York State Cent. Register of Child Abuse & Maltreatment, 138 A.D.3d 1492, 1493, 30 N.Y.S.3d 471 [4th Dept. 2016] [internal quotation marks omitted] ). "To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child[ ] had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child[ ] with appropriate supervision or guardianship" ( id. [internal quotation marks omitted] ).
The evidence at the hearing, including petitioner's own admission and the records of caseworkers, established that she repeatedly and falsely accused the child's father of sexual abuse, which caused the child to be subjected to repeated unnecessary professional examinations and interviews, harming the child's physical, mental, or emotional well-being. We thus conclude that, on the record before us, substantial evidence supports the determination of the Administrative Law Judge (ALJ) that it was established by a preponderance of the evidence that petitioner maltreated the child (see Matter of Daniel D., 57 A.D.3d 444, 444, 870 N.Y.S.2d 287 [1st Dept. 2008], lv dismissed 12 N.Y.3d 906, 884 N.Y.S.2d 684, 912 N.E.2d 1064 [2009] ; see generally Matter of Salvatore M. [Nicole M.], 104 A.D.3d 769, 769, 961 N.Y.S.2d 292 [2d Dept. 2013], lv denied 21 N.Y.3d 858, 2013 WL 2476544 [2013] ; Matter of Morgan P., 60 A.D.3d 1362, 1362, 875 N.Y.S.2d 401 [4th Dept. 2009] ).
Moreover, the evidence at the hearing established that petitioner failed to acknowledge that her false reports of child sexual abuse were harmful to the child and failed to appreciate the seriousness of her conduct, and we therefore conclude that substantial evidence supports the ALJ's determination that petitioner's maltreatment of the subject child was likely to recur (see Matter of Warren v. New York State Cent. Register of Child Abuse & Maltreatment, 164 A.D.3d 1615, 1617, 85 N.Y.S.3d 296 [4th Dept. 2018] ) and was reasonably related to employment in childcare (see id. ; Matter of Garzon v. New York State Off. of Children & Family Servs., 85 A.D.3d 1603, 1604, 924 N.Y.S.2d 904 [4th Dept. 2011] ; Matter of Castilloux v. New York State Off. of Children & Family Servs., 16 A.D.3d 1061, 1062, 791 N.Y.S.2d 755 [4th Dept. 2005], lv denied 5 N.Y.3d 702, 800 N.Y.S.2d 373, 833 N.E.2d 708 [2005] ).
Finally, we do not consider those arguments made or materials submitted by petitioner for the first time in this proceeding, inasmuch as she did not present such arguments or submit such materials to the ALJ (see Matter of Levine v. New York State Liq. Auth., 23 N.Y.2d 863, 864, 298 N.Y.S.2d 71, 245 N.E.2d 804 [1969] ; Matter of Kahn v. Planning Bd. of City of Buffalo, 60 A.D.3d 1451, 1451–1452, 875 N.Y.S.2d 421 [4th Dept. 2009], lv denied 13 N.Y.3d 711, 2009 WL 3853172 [2009] ).