In the Matter of Picon v. Johnson

• Decision Date: 22 June 2006
• Docket Number: 8885.
• Citation: 30 A.D.3d 301,818 N.Y.S.2d 198,2006 NY Slip Op 05110
• Parties: In the Matter of MARIA PICON, Petitioner, v. JOHN A. JOHNSON, as Commissioner of the New York State Office of Children and Family Services, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 301

818 N.Y.S.2d 198

2006 NY Slip Op 05110

In the Matter of MARIA PICON, Petitioner, v. JOHN A. JOHNSON, as Commissioner of the New York State Office of Children and Family Services, et al., Respondents.

8885.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 22, 2006.

Determination of respondent Office of Children and Family Services, dated October 26, 2004, which, after a fair hearing, affirmed the determination of respondent New York City Administration for Children's Services denying petitioner's application for special foster care benefits pursuant to 18 NYCRR 427.6, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Lewis Bart Stone, J.], entered June 3, 2005) dismissed, without costs.

The determination that petitioner was not eligible to be reimbursed at the rate for special needs children is rationally supported by substantial evidence (see Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239-240 [1997]). The record supports the view that the child had some minor developmental delays that had improved with time and some health problems that were controlled with medication, and there is an absence of evidence that the child had been certified by a physician as suffering from a "pronounced physical condition" requiring a "high degree of physical care" or diagnosed by a psychiatrist or psychologist as being "moderately developmentally disabled, emotionally disturbed or having a behavioral disorder" to such extent as to require a "high degree of supervision" (18 NYCRR 427.6 [c] [2]; [4]). We note that petitioner improperly relies on records that were not before the hearing officer (see Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110 [2005], affg 16 AD3d 72 [2005]). We have considered and rejected petitioner's other claims, including that she did not receive due process at the hearing.

Concur — Tom, J.P., Friedman, Sullivan, Catterson and Malone, JJ.