Parker v. Carrion

• Decision Date: 15 December 2011
• Citation: 90 A.D.3d 512,2011 N.Y. Slip Op. 09010,935 N.Y.S.2d 14
• Parties: In re Shirley PARKER, Petitioner, v. Gladys CARRION, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09010

90 A.D.3d 512

935 N.Y.S.2d 14

In re Shirley PARKER, Petitioner,

v.Gladys CARRION, etc., et al., Respondents.

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

Dec. 15, 2011.

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...