Opinion
918 TP 18–00143
09-28-2018
In the Matter of Kristen WARREN, Petitioner, v. NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT, OFFICE OF CHILDREN & FAMILY SERVICES, Respondent.
WILLIAM R. HITES, BUFFALO, FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT.
WILLIAM R. HITES, BUFFALO, FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 the determination, made after a fair hearing, denying her request to amend to unfounded an indicated report of maltreatment with respect to children at petitioner's daycare center and to seal the amended report (see Social Services Law § 422[8][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 [4th Dept. 2012] [internal quotation marks omitted] ), and "[o]ur review ... is limited to whether the determination [is] 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 [4th Dept. 2009], lv denied 15 N.Y.3d 705, 2010 WL 3430855 [2010] [internal quotation marks omitted]; see Matter of Arbogast v. New York State Off. of Children & Family Servs., Special Hearing Bur., 119 A.D.3d 1454, 1454, 990 N.Y.S.2d 399 [4th Dept. 2014] ). Here, contrary to petitioner's contention, we conclude that the evidence of maltreatment, including testimony that petitioner left two infants and a toddler upstairs in her home without supervision while she took the older children in her care for a 25–minute walk around the cul-de-sac and thereafter remained outside with the older children for an additional 25 to 30 minutes while the three babies were inside the house without supervision, constitutes substantial evidence to support the determination (see Matter of Stead v. Joyce, 147 A.D.3d 1317, 1318, 47 N.Y.S.3d 526 [4th Dept. 2017] ; see generally 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] ). Although the testimony of petitioner that she asked a neighbor to listen to the baby monitor while she was away 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 [3d Dept. 1997] ; see Matter of Emerson v. New York State Off. of Children & Family Servs., 148 A.D.3d 1627, 1628, 49 N.Y.S.3d 597 [4th Dept. 2017] ).
We further conclude that substantial evidence supports the determination that petitioner's maltreatment of the children is "relevant and reasonably related" to her employment as a childcare provider ( Matter of Velez v. New York State Off. of Children, 157 A.D.3d 575, 576, 69 N.Y.S.3d 612 [1st Dept. 2018] ). "Petitioner's refusal to take responsibility for [her] actions, acknowledge that [she] endangered the child[ren], or appreciate the seriousness of [her] conduct, demonstrated that [she] is likely to commit maltreatment again—a factor reasonably related to [her] potential employment in the childcare field" ( id. ).
Finally, even assuming, arguendo, that the delay between the commencement of the investigation into the allegations that petitioner maltreated children in her care and the date of respondent's determination violated the reporting requirements set forth in 18 NYCRR 432.2(b)(3)(iv), we reject petitioner's contention that the expungement of petitioner's indicated record is an appropriate remedy for that procedural irregularity.