                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      518494
________________________________

In the Matter of GERALD HH.,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

GLADYS CARRION, as Commissioner
   of Children and Family
   Services, et al.,
                    Respondents.
________________________________


Calendar Date:   May 29, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Gerald HH., Binghamton, petitioner pro se.

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

                             __________


Devine, J.

      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
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
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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 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 AD3d 1174, 1175 [2014]; Matter of Cheryl Z. v Carrion, 119
AD3d 1109, 1110 [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 NY3d 494, 499 [2011]; see
Matter of Maurizio XX. v New York State Off. of Children & Family
Servs., 125 AD3d 1174, 1175 [2015]; Matter of Theresa WW. v New
York State Off. of Children & Family Servs., 123 AD3d at 1175-
1176).

      Here, the proof introduced against petitioner consisted
solely of the investigation progress notes and a Family Court
order from 1998 that adjudicated petitioner to have neglected
another son. The progress notes were prepared by a child
protective services caseworker and include her accounts of
interviews with numerous individuals, including the child and his
therapist, that led her to the conclusion that maltreatment had
occurred. Neither the caseworker nor her interview subjects
testified before the Administrative Law Judge, however, and the
progress notes reflect that the child bore no marks or evident
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injuries as a result of the maltreatment. In contrast to this
meager evidentiary showing, petitioner and his wife both
testified and denied that any maltreatment had occurred.
Petitioner also asserted, without contradiction, that he was
physically incapable of engaging in some of the claimed
maltreatment, such as lifting the 110-pound child with one hand.
His wife further stated that the child admitted to her that he
was lying about the alleged maltreatment. The record suggests a
reason why the child might be prompted to lie, as a bitter
custody dispute between petitioner and the child's mother has led
to numerous unfounded reports of mistreatment regarding
petitioner.

      Like any administrative determination, one made after an
expungement hearing may be based solely upon hearsay evidence –
or even double hearsay evidence – in the appropriate case (see
Matter of Theresa WW. v New York State Off. of Children & Family
Servs., 123 AD3d at 1176; Matter of Pluta v New York State Off.
of Children & Family Servs., 17 AD3d 1126, 1127 [2005], lv denied
5 NY3d 715 [2005]). As such, "our concern is not the hearsay
nature of the evidence, but whether it is sufficiently relevant
and probative to constitute substantial evidence" (Matter of King
v New York State Dept. of Health, 295 AD2d 743, 744 [2002]; see
Matter of Theresa WW. v New York State Off. of Children & Family
Servs., 123 AD3d at 1176). Hearsay evidence will not satisfy
that standard if the facts it purportedly establishes are
"seriously controverted" (Matter of JMH, Inc. v New York State
Liq. Auth., 61 AD3d 1260, 1261 [2009]; see Matter of Doctor v New
York State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d
1020, 1022-1023 [2013]). Serious controversy is precisely what
surrounds the hearsay evidence here, given the hearing testimony
that the maltreatment had not occurred and that the child had
recanted his claims, the proof that motivations may have existed
for the child to fabricate the maltreatment, and the total lack
of physical evidence suggesting that it occurred. We accordingly
agree with petitioner that substantial evidence does not support
the challenged determination, which must be annulled as a result
(see Matter of Theresa WW. v New York State Off. of Children &
Family Servs., 123 AD3d at 1176; Matter of Doctor v New York
State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d at
1022-1023).
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      Petitioner's remaining arguments, to the extent that they
are properly before us by virtue of him having raised them before
the Administrative Law Judge and in his subsequent CPLR article
78 petition, are rendered academic in light of the foregoing.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



      ADJUDGED that the determination is annulled, without costs,
and petition granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
