                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   518217
________________________________

In the Matter of GWEN Y.,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE OFFICE OF
   CHILDREN AND FAMILY
   SERVICES,
                    Respondent.
________________________________


Calendar Date:   September 8, 2015

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

                             __________


      Arroyo Copland & Associates, PLLC, Albany (Amy C. Kendall
of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Julie
Sheridan of counsel), for respondent.

                             __________


Egan Jr., J.

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

      On the afternoon of May 3, 2012, petitioner put her three
young children down for a nap. Shortly thereafter, petitioner's
youngest daughter (hereinafter the child), who then was 2½ years
old, called out and indicated that she had "pooped." Petitioner
did not immediately respond, as the child previously had made
                              -2-                518217

similar claims in an effort to avoid nap time. When the child
called out again, petitioner went into the children's bedroom and
found her son and the child standing in the middle of the room.
Petitioner confirmed that the child indeed needed a diaper change
and bent over to pick up the child and lay her down on the floor.
As petitioner was doing so, her son, who apparently had taken it
upon himself to check his sister's diaper, announced that he had
"poopy on [his] hands." Petitioner turned to look at her son
and, in the process, "let go" of the child, whose feet were
estimated by petitioner to be 4 to 12 inches from the floor, with
the intention that the child would land on her bottom. The
child, however, apparently landed on some portion of her lower
extremities and began to whimper. Petitioner initially concluded
that the child had sprained her ankle and applied an ice pack,
but when the child continued to complain, petitioner took the
child to a local urgent care center where an X ray revealed a
fracture of the child's right tibia.

      As a result of this incident, a report was made to the
Central Register of Child Abuse and Maltreatment and, following
an investigation, the report was marked as indicated.1 After
respondent denied petitioner's request to amend the report from
indicated to unfounded, an administrative hearing was held
pursuant to Social Services Law § 422 (8). At the conclusion of
that hearing, the finding of maltreatment as to the child was
upheld and petitioner's request to amend the subject report was
denied.2 Petitioner thereafter commenced this CPLR article 78
proceeding seeking to challenge the underlying determination.



    1
        Petitioner was removed from the home for approximately
three months. Although a related neglect proceeding was
commenced against petitioner, that proceeding was adjourned in
contemplation of dismissal without a finding of wrongdoing; a
separate criminal proceeding against petitioner stemming from
this incident also was adjourned in contemplation of dismissal.
    2
        The allegations of excessive corporal punishment as to
petitioner's son were not sustained and are not at issue in this
proceeding.
                              -3-                518217

      "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" (Matter of
Gerald HH. v Carrion, 130 AD3d 1174, 1175 [2015] [citations
omitted]; see Matter of Maurizio XX. v New York State Off. of
Children & Family Servs., 125 AD3d 1174, 1174-1175 [2015]). As
there is no dispute that the child suffered a broken leg, there
can be no question that her physical condition was in fact
impaired. Accordingly, our inquiry distills to whether the
record supports a finding that such impairment was the result of
petitioner's failure to provide appropriate supervision and
guardianship.

      In this regard, the evidence against petitioner consisted
primarily of the investigation progress notes, which summarized
the caseworker's interviews with, among others, petitioner's son,
the child's treating orthopedic surgeon and the child's
geneticist.3 "[T]here is no question that hearsay is admissible
in expungement hearings and, if sufficiently relevant and
probative, may constitute substantial evidence to support the
underlying determination" (Matter of Theresa WW. v New York State
Off. of Children & Family Servs., 123 AD3d 1174, 1176 [2014]
[internal quotation marks and citations omitted]; see Matter of
Gerald HH. v Carrion, 130 AD3d at 1175-1176). That said, the
substantial evidence standard is not satisfied where, as here,
the hearsay evidence at issue is "seriously controverted" (Matter
of Gerald HH. v Carrion, 130 AD3d at 1176 [internal quotation
marks and citation omitted]).

      According to the progress notes, the treating orthopedic
surgeon, who "[did] not believe that [petitioner] should have
[custody of] the child," advised the caseworker that the child's
injury could not have occurred in the manner described by


    3
        Neither the caseworker nor the child's treating
orthopedist testified at the hearing, and the child's geneticist
was unavailable to testify due to declining health.
                               -4-                518217

petitioner because "more force would be needed to cause" what he
regarded as "a spiral fracture of the [t]ibia." The orthopedist,
however, was unaware that the child had been diagnosed with hemi-
hypertrophy – a condition that caused the left side of the
child's body to grow faster than the right side. As explained by
the child's geneticist, this condition could cause the bones on
the right side of the child's body to be "more susceptible to
pressure."4 Indeed, the caseworker's notes reflect that,
according to the geneticist, a drop "even from [two] inches above
the ground" could have caused the child's weight to shift to her
more sensitive right foot. Further, with respect to the
resulting fracture, the geneticist, who reviewed the initial X
rays, was not convinced that the child actually had sustained a
spiral fracture, noting that the fracture "look[ed] to be going
through the bone" rather than "circling the bone the way it would
in a spiral fracture."

      Although the agency also relied upon the caseworker's
interview of petitioner's then 4½-year-old son, his teacher, who
was present for the interview and testified at the administrative
hearing, expressed misgivings as to the manner in which that
interview was conducted. In conjunction with the earlier neglect
proceeding, the teacher submitted an affidavit – entered into
evidence at the subsequent administrative hearing without
objection – wherein she averred that, during the course of the
interview, the caseworker "press[ed]" petitioner's son and
"[made] suggestions to him about [petitioner's] conduct on the
day of the incident, including suggestions about the way
[petitioner] was standing . . . and how she was holding [the
child]." According to the teacher, by the time the interview
concluded, the caseworker succeeded in "provok[ing the child],
who was clearly frustrated, to throw the doll he was holding on
the floor in accordance with [the agency's] theory of how his
sister was injured." The teacher, who testified that she had not


     4
        Petitioner testified that she was unaware of the child's
increased susceptibility to bone fractures, and the geneticist
confirmed that he had not discussed this possibility with
petitioner or her husband prior to the child's injury.
                              -5-                518217

observed any indications of abuse, averred that, in her opinion,
petitioner's son would not have thrown the doll in the fashion
that he did "but for the suggestive and insistent conduct of
[the] caseworker[]."

      Finally, petitioner submitted affidavits from the child's
pediatrician and a family friend, neither of whom had ever seen
any indications of abuse or neglect, as well as the report
prepared by the psychologist who performed a mental health
evaluation of her. According to the psychologist, her evaluation
of petitioner disclosed no mental health or substance abuse
disorders and revealed no prior history of violent behavior or
impulse control problems. The psychologist deemed petitioner's
account of the underlying incident to be "detailed and credible,"
concluded that petitioner was not a "candidate for anger
management" counseling and advocated for petitioner's "return to
her home as soon as possible" in order to "reduce the likelihood
of further emotional damage to her children and the integrity of
the family unit." In conclusion, the psychologist found that the
child's injury "appear[ed] to be an isolated and aberrant
incident . . . [that was] not reflective of [petitioner's]
typical pattern and practice of parenting."

      Upon due consideration of the record as a whole, we find
that the evidence relied upon by the agency was significantly
undermined by the proof tendered by petitioner. As such, we are
unable to conclude that respondent's determination is supported
by substantial evidence. Accordingly, the underlying
determination is annulled.

     McCarthy, J.P., Rose and Clark, JJ., concur.
                              -6-                  518217

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
