Opinion
2011-12-15
In re Shirley PARKER, Petitioner, v. Gladys CARRION, etc., et al., Respondents.
Stephen M. Hudspeth, New York, for petitioner. Eric T. Schneiderman, Attorney General, New York (Laura R. Johnson of counsel), for State respondents.
Stephen M. Hudspeth, New York, for petitioner. Eric T. Schneiderman, Attorney General, New York (Laura R. Johnson of counsel), for State respondents. Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for City respondent.SAXE, J.P., SWEENY, ACOSTA, DeGRASSE, ABDUS–SALAAM, JJ.
Determination of respondent New York State Office of Children and Family Services (OCFS), dated December 5, 2008, which, after a fair hearing, denied petitioner's request to have sealed and marked unfounded, a report to respondent New York State Central Register of Child Abuse and Maltreatment that she had maltreated two of her former foster children, 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 [Marylin G. Diamond, J.], entered November 30, 2010), dismissed, without costs.
“A report of child abuse or maltreatment must be established, at an administrative expungement hearing, by a fair preponderance of the evidence ( Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 703, 642 N.Y.S.2d 181, 664 N.E.2d 1243 [1996] ). Upon judicial review, the inquiry is limited to whether the administrative determination is supported by substantial evidence in the record” ( Matter of Valentine v. New York State Cent. Register of Child Abusers & Maltreatment, 37 A.D.3d 249, 249–250, 830 N.Y.S.2d 83 [2007] ).
Here, OCFS' determination that respondent New York City Administration for Children's Services (ACS) proved by a fair preponderance of the evidence that petitioner had maltreated two of her former foster children, is supported by substantial evidence. The record demonstrates that one child's account was corroborated by the other child ( see id. at 250, 830 N.Y.S.2d 83). The fact that ACS' case consisted entirely of hearsay, whereas petitioner testified, does not preclude OCFS' determination from being supported by substantial evidence ( see id.; see also Matter of Khalil v. New York State Cent. Register of Child Abuse & Mistreatment, 292 A.D.2d 208, 738 N.Y.S.2d 563 [2002] ).
Petitioner testified at the fair hearing that she had no interest in being a foster parent again. Furthermore, the foster children at issue have been adopted by someone other than petitioner, the adoptions have been finalized by a court, and petitioner is not challenging them. Therefore, she has not satisfied the “stigma plus” test set forth in Matter of Lee TT. v. Dowling ( see 87 N.Y.2d at 708–709, 642 N.Y.S.2d 181, 664 N.E.2d 1243). Even assuming that petitioner had an interest of constitutional magnitude, reliance on hearsay—even double hearsay—does not violate due process ( see Matter of Bauer v. New York State Off. of Children & Family Servs., Bur. of Early Childhood Servs., 55 A.D.3d 421, 422, 866 N.Y.S.2d 626 [2008]; Matter of Pluta v. New York State Off. of Children & Family Servs., 17 A.D.3d 1126, 1127, 794 N.Y.S.2d 261 [2005], lv. denied 5 N.Y.3d 715, 806 N.Y.S.2d 166, 840 N.E.2d 135 [2005] ).