Gerald HH. v. Carrion

• Decision Date: 09 July 2015
• Docket Number: 518494
• Citation: 130 A.D.3d 1174,2015 N.Y. Slip Op. 05982,14 N.Y.S.3d 185
• Parties: In the Matter of GERALD HH., Petitioner, v. Gladys CARRION, as Commissioner of Children and Family Services, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1174
14 N.Y.S.3d 185
2015 N.Y. Slip Op. 05982

In the Matter of GERALD HH., Petitioner
v.
Gladys CARRION, as Commissioner of Children and Family Services, et al., Respondents.

518494

Supreme Court, Appellate Division, Third Department, New York.

July 9, 2015.

14 N.Y.S.3d 186

Gerald HH., Binghamton, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

DEVINE, J.

130 A.D.3d 1174

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Broome County) to review a determination of respondent Commissioner of Children and Family Services which denied petitioner's application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged.

A report was made to the Central Register of Child Abuse and Maltreatment alleging that, in January 2012, petitioner

14 N.Y.S.3d 187

physically mistreated his 11–year–old son. An investigation by respondent Broome County Department of Social Services ensued, which uncovered evidence that petitioner had grabbed the child by the neck and lifted him off the ground, yanked him out of bed by the arm, and caused him to stumble on a flight of stairs by pushing him. The report was accordingly marked as “indicated” for maltreatment. Petitioner requested that the Office of Children and Family Services amend the report from indicated to unfounded, and his request was denied. Thereafter, following an administrative hearing conducted pursuant to Social Services Law § 422(8)(b), an Administrative Law Judge determined that maltreatment had been established by a fair preponderance of the evidence and that the indicated report may be disclosed to inquiring agencies pursuant to Social Services Law § 424–a. Petitioner commenced

130 A.D.3d 1175

this CPLR article 78 proceeding to challenge the determination.

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 (see Matter of Theresa WW. v. New York State Off. of Children & Family Servs., 123 A.D.3d 1174, 1175, 998 N.Y.S.2d 488 [2014] ; Matter of Cheryl Z. v. Carrion, 119 A.D.3d 1109, 1110, 990 N.Y.S.2d 138 [2014] ). Our review is limited to assessing whether the determination is supported by substantial evidence, meaning “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011] ; see Matter of Maurizio XX. v. New York State Off. of Children & Family Servs., 125 A.D.3d 1174, 1175, 3 N.Y.S.3d 782 [2015] ; Matter of Theresa WW. v. New York State Off. of Children & Family Servs., 123 A.D.3d at 1175–1176, 998 N.Y.S.2d 488 ).

Here, the proof introduced against petitioner consisted solely of the investigation progress notes and a Family Court order from 1998 that adjudicated...