                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   518066
________________________________

In the Matter of THERESA WW.
   et al.,
                    Petitioners,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


      Scoppetta Seiff Kretz & Abercrombie, New York City (Roland
R. Acevedo of counsel), for petitioners.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine 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 Albany County) to
review a determination of respondent which partially denied
petitioners' application to have a report maintained by the
Central Register of Child Abuse and Maltreatment amended to be
unfounded and sealed.

      Petitioner Theresa WW. (hereinafter the foster mother) has
been a certified foster parent for 10 years and her husband,
petitioner Walter WW. (hereinafter the foster father), has been a
certified foster parent for nine years. In August 2011,
                              -2-                518066

petitioners had six foster children placed in their care,
including – insofar as is relevant here – a six-year-old girl and
her nine-year-old brother. In October 2011, a report was filed
with the Central Register of Child Abuse and Maltreatment
alleging, among other things, that the foster mother pulled the
arm of the six-year-old girl when the child was reluctant to exit
the foster mother's vehicle. An investigation ensued, during the
course of which a child protective services caseworker spoke with
five of the six foster children residing in petitioners' home.
As a result of those interviews, certain of the allegations of
maltreatment against petitioners were deemed to be substantiated.
Specifically, the allegation of inadequate guardianship against
the foster mother was indicated based upon her conduct in pulling
the arm of the six-year-old girl and failing to provide adequate
supervision to all six foster children. Additionally, the
allegation of inadequate guardianship against the foster father
was indicated based upon his conduct in slapping the girl's nine-
year-old brother on the head on more than one occasion.1

      Petitioners thereafter requested that the indicated report
against them be amended to be unfounded. Upon administrative
review, that request was denied, and the matter proceeded to a
hearing. At the conclusion of that hearing, at which petitioners
and their character witnesses were the sole witnesses to appear
and testify, respondent found insufficient evidence to sustain
the finding of inadequate guardianship based upon the foster
mother's failure to properly supervise all six foster children.
Respondent did, however, find that the remaining allegations
against petitioners were established by a fair preponderance of
the evidence and, hence, denied the balance of the requested
relief. Petitioners then commenced this proceeding pursuant to
CPLR article 78 to challenge respondent's determination.

      Although we find no merit to petitioners' various due
process claims, we nonetheless are persuaded that the underlying
determination must be annulled. In order to establish


    1
        As foster parents, petitioners were prohibited from
utilizing corporal punishment as a method of disciplining their
foster children (see 18 NYCRR 441.9 [c]).
                                -3-                518066

maltreatment, the agency must demonstrate – by a fair
preponderance of the evidence – that the child's "physical,
mental or emotional condition has been impaired or is in imminent
danger of becoming impaired as a result of the failure of his [or
her caregiver] . . . to exercise a minimum degree of care . . .
in providing [him or her] with proper supervision or
guardianship" (Matter of Christine Y. v Carrion, 75 AD3d 831, 831
[2010] [internal quotation marks and citation omitted]; see 18
NYCRR 432.1 [b] [1] [ii]; Matter of Cheryl Z. v Carrion, 119 AD3d
1109, 1110 [2014]). Upon review, this Court's inquiry is limited
to ascertaining whether the agency's determination is supported
by substantial evidence, i.e., "whether reasonable minds could
adequately accept the conclusion based on the relevant proof"
(Matter of John R. v State of N.Y. Off. of Children & Family
Servs., 97 AD3d 958, 959 [2012] [internal quotation marks and
citations omitted]; see Matter of Cheryl Z. v Carrion, 119 AD3d
at 1110).

      Here, the evidence against petitioners consisted entirely
of the investigation summary and progress notes, the latter of
which were prepared – in relevant part – by the child protective
services caseworker based upon interviews with five of the six
foster children, who ranged in age from 6 to 12 years old.2 The
authoring caseworker did not testify. Petitioners denied the
allegations of maltreatment and offered into evidence the results
of medical evaluations conducted with respect to each of the
foster children shortly after the allegations of maltreatment
surfaced. Those medical records, in turn, revealed that "[t]he
children's exams [were] all normal," that the examining physician
had "no independent concerns of maltreatment" and, notably, that
the six-year-old girl who purportedly accused the foster mother
of grabbing her by the arm and pulling her from a vehicle
"denie[d] maltreatment" when questioned by the examining
physician outside of the presence of the foster mother.

        To be sure, an administrative determination may, under


    2
        The remaining foster child was three years old at the
time of the investigation and did not respond to the caseworker's
attempt to speak with her.
                              -4-                518066

appropriate circumstances, "be based entirely upon hearsay
evidence" (Matter of Doctor v New York State Off. of Alcoholism &
Substance Abuse Servs., 112 AD3d 1020, 1022 [2013]), and there 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 Ribya BB. v Wing, 243 AD2d 1013, 1014 [1997] [internal
quotation marks and citation omitted]; accord Matter of Nils TT.
v New York State Dept. of Social Servs., 251 AD2d 779, 780
[1998], lv denied 92 NY2d 810 [1998]; see Matter of Markman v
Carrion, 120 AD3d 1580, 1581 [2014]). Under the particular facts
of this case, however, we do not find the investigation summary
and progress notes admitted into evidence at the hearing to be
"sufficiently reliable" (Matter of Doctor v New York State Off.
of Alcoholism & Substance Abuse Servs., 112 AD3d at 1022
[internal quotation marks and citations omitted]) to constitute
substantial evidence of maltreatment – especially in view of the
six-year-old girl's contradictory statements in this regard.
Accordingly, respondent's determination is annulled.

     Lahtinen, J.P., Garry and Devine, JJ., concur.


Lynch, J. (dissenting).

      I respectfully dissent. The standards governing
expungement hearings are correctly stated by the majority. I
disagree in that it is my view that the evidence is sufficiently
reliable to support the underlying determination. Respondent
presented the Central Register of Child Abuse and Maltreatment
report that was called in by one caseworker and the progress
notes from the ensuing investigation, in which another caseworker
separately interviewed the six children and other relevant
parties regarding the reported maltreatment. It is significant
that five of the six children corroborated the arm pulling
incident with the six-year-old girl, and three of the children
corroborated the head slap incident involving her nine-year-old
brother. That the six year old denied any mistreatment when
examined by a physician at the behest of petitioner Theresa WW.
(hereinafter the foster mother) the day after the caseworker
interviews does not diminish the corroborative statements of the
                              -5-                  518066

other children. Nor is the absence of any actual physical injury
dispositive (compare Matter of Peters v McCaffrey, 173 AD2d 934,
935 [1993]). Not to be overlooked is that petitioners each
testified and denied using any corporal punishment on the
children. In so doing, however, the foster mother attributed the
allegations to a vindictive caseworker and, upon being informed
by the Administrative Law Judge that the investigation was
actually performed by another caseworker, the foster mother
responded that that caseworker also fabricated the story. In an
instance, as here, "where there are two conflicting accounts of
events, it is not within this Court's discretion to weigh
conflicting testimony or substitute its own judgment for that of
the administrative finder of fact, even if a contrary result is
viable" (Matter of Ribya BB. v Wing, 243 AD2d 1013, 1014 [1997];
see Matter of Kenneth VV. v Wing, 235 AD2d 1007, 1009-1010
[1997]; see also Matter of Berenhaus v Ward, 70 NY2d 436, 443-444
[1987]). Given the caseworker's detailed investigation,
juxtaposed against the foster mother's accusatory explanation, a
reasoned basis exists for the Administrative Law Judge's finding
that neither petitioner was credible. In my view, the
determination is supported by substantial evidence and should be
confirmed and the petition dismissed (see Matter of Cheryl Z. v
Carrion, 119 AD3d 1109, 1111-1112 [2014]).



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
