                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   522833
________________________________

In the Matter of ELIZABETH B.,
                    Petitioner,
      v
                                            OPINION AND JUDGMENT
NEW YORK STATE OFFICE OF
   CHILDREN AND FAMILY
   SERVICES,
                    Respondent.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


      Christy Lay-Mumin, The Legal Project, Albany, for
petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.

      Patterson Belknap Webb Tyler, LLP, New York City (William
F. Cavanaugh of counsel), for Empire Justice Center and others,
amici curiae.

                             __________


Garry, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Rensselaer
County) to review a determination of respondent partially denying
petitioner's application to have a report maintained by the
Central Register of Child Abuse and Maltreatment amended to be
unfounded and expunged.
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      Petitioner is the mother of three children (born in 2002,
2011 and 2014). In June 2014, petitioner's paramour, the father
of the youngest child, physically assaulted her on two occasions.
During the first incident, the paramour, while driving on a high
speed road, punched her in the arm and leg. Their three-week-old
child was in the backseat at this time. The following day, the
paramour struck petitioner in the back as she held the youngest
child, causing her to fall, and then choked and threatened her.
This incident was observed by the eldest child. Petitioner
reported both incidents to police three days later, and the
paramour was taken into custody. The Ontario County Department
of Social Services (hereinafter DSS) conducted an investigation
and filed a report with respondent thereafter, indicating
petitioner for maltreatment by inadequate guardianship, as
pertinent here. Following a hearing pursuant to Social Services
Law § 422 (8) (b), petitioner's request for amendment and sealing
of the report was granted in part but denied as to inadequate
guardianship. Petitioner then commenced this CPLR article 78
proceeding seeking review of that determination.

      This Court's review of the determination is "limited to
whether the decision is rational and supported by substantial
evidence" (Matter of Kenneth VV. v Wing, 235 AD2d 1007, 1008
[1997]; see Matter of Cheryl Z. v Carrion, 119 AD3d 1109, 1110
[2014]). Maltreatment is established where it is shown "by a
fair preponderance of the evidence that the physical, mental or
emotional condition of the child [was] impaired or was in
imminent danger of becoming impaired because of a failure by
[the] petitioner to exercise a minimum degree of care in
providing the child with appropriate supervision or guardianship”
(Matter of Gwen Y. v New York State Off. of Children & Family
Servs., 132 AD3d 1091, 1092 [2015] [internal quotation marks and
citations omitted]; see Nicholson v Scoppetta, 3 NY3d 357, 370
[2004]; see generally Matter of Natasha W. v New York State Off.
of Children & Family Servs., 145 AD3d 401, 406 [2016]; Matter of
Batchateu v Peters, 77 AD3d 1366, 1366 [2010]). The minimum
degree of care standard acts as a "baseline of proper care for
children that all parents, regardless of lifestyle or social or
economic position, must meet" and a failure thereof must be
"actual, not threatened" (Nicholson v Scoppetta, 3 NY3d at 370
[internal quotations marks and citations omitted]; see Matter of
                               -3-                522833

Natasha W. v New York State Off. of Children & Family Servs., 145
AD3d at 406). "When the sole allegation is that the [subject
parent] has been abused and the child has witnessed the abuse,
such a showing has not been made" (Nicholson v Scoppetta, 3 NY3d
at 371 [internal quotation marks omitted]). Where the parent is
the victim of domestic violence, "the focus must be on whether
[he or] she has met the standard of the reasonable and prudent
person in similar circumstances" (id. at 370-371). Respondent
misconstrues this standard as one that cannot be "modified or
excused because a parent is under stress or fear." It has
instead been clearly established that in the context of domestic
violence, whether a parent has exercised a minimum degree of care
requires consideration of such factors as the "risks attendant to
leaving, if the batterer has threatened to kill [him or] her if
[he or] she does; risks attendant to staying and suffering
continued abuse; . . . and risks attendant to relocation" as well
as "the severity and frequency of the violence, and the resources
and options available to [him or] her" (id. at 371).

      Here, the evidence consisted of a caseworker's testimony
and notes regarding her investigation, including interviews with
petitioner and the eldest son, and petitioner's testimony.1
Respondent's finding that petitioner failed to exercise a minimum
degree of care was based upon petitioner's delay in reporting the
incidents, the fact that she declined counseling services
suggested by DSS, her subsequent request to modify the order of
protection to permit communication with her paramour, and the
possibility of their future reunification. Initially, addressing
petitioner's brief delay in reporting the abuse, it is well
recognized that the most dangerous time in an abusive
relationship occurs when the victim attempts to separate from the
abuser (see Dana Harrington Conner, To Protect or to Serve:
Confidentiality, Client Protection, and Domestic Violence, 79
Temp L Rev 877, 887 [2006]; Susan L. Pollet, Mediating Domestic


     1
        Hearsay is admissible in expungement hearings, unless the
underlying facts are "seriously controverted" (Matter of Gerald
HH. v Carrion, 130 AD3d 1174, 1176 [2015] [internal quotation
marks and citation omitted]; see Matter of Gwen Y. v New York
State Off. of Children & Family Servs., 132 AD3d at 1092-1093).
                              -4-                522833

Violence: A Potentially Dangerous Tool, 77 NY St BJ 42, 43 [Sept.
2005]). Here, petitioner testified that upon being told that he
should leave the home, her paramour choked her and threatened
that "if [she] ended it that he would end it." There was no
history of violence prior to the attacks, which occurred on two
consecutive days. Petitioner was the primary caregiver for the
three children – one of whom was three weeks old – and
critically, she did not have access to a vehicle until the day
that she made the report. Petitioner testified that, immediately
following the attacks, "[she] did not have enough resources at
that time in [her] mind to . . . go, but [she] had a plan."
After discussing her plan with family members, and as soon as she
had a vehicle, petitioner took her two older children to the
homes of relatives and brought the youngest child with her to
report the incidents to the police. A finding that petitioner
failed to exercise a minimum degree of care cannot be supported
where the record reveals that she acted reasonably under the
circumstances and thoughtfully planned a strategy to report her
paramour's abuse in such a way as to protect her own safety and
that of her children (see Nicholson v Scoppetta, 3 NY3d at 370-
371).

      As to the counseling services suggested by DSS, the record
reveals that petitioner and the eldest child instead sought
counseling and advice from their priest, who had some experience
assisting families in similar circumstances. Notably, there was
no requirement that petitioner or the child engage in counseling
services. In these circumstances, it would be improvident to
suggest that a victim of domestic violence fails to exercise a
minimum degree of care by seeking counseling services for his or
her children from a resource other than that suggested by DSS.

      Respondent's finding that petitioner's request to modify
the order of protection to permit discussion of finances and
child care with her paramour amounts to no more than "undesirable
parental behavior," as the paramour was incarcerated and
petitioner had not brought the children to visit him (id. at 369;
see Matter of John O., 42 AD3d 687, 687-688 [2007]). With regard
to the possible future reunification of petitioner and her
paramour, substantial evidence does not arise from mere
conjecture about events that may never come to pass (see 300
                              -5-                522833

Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
180 [1978]; Matter of Reed v Carrion, 84 AD3d 1094, 1094 [2011]).
Further, petitioner testified that she would require the
paramour's completion of all court-ordered requirements such as
anger management and domestic violence awareness classes.

      Finally, we find no basis in the record to support
respondent's finding that petitioner's actions resulted in
impairment or immediate danger to the children. A finding of
impairment "requires proof of actual (or imminent danger of)
physical, emotional or mental impairment to the child" (Nicholson
v Scoppetta, 3 NY3d at 369; see Matter of Nassau County Dept. of
Social Servs. v Denise J., 87 NY2d 73, 78-79 [1995]). An
immediate danger must be "near or impending" and more than
"merely possible" (Nicholson v Scoppetta, 3 NY3d at 369; Matter
of Nichols v New York State Cent. Register of Child Abuse &
Maltreatment, 137 AD3d 790, 791 [2016]; Matter of Sasha B. [Erica
B.], 73 AD3d 587, 588 [2010], appeal dismissed 16 NY3d 755
[2011]). Although the record supports a finding that the
youngest child was placed in immediate danger during both
incidents and that the eldest child suffered emotional impairment
after witnessing the second incident, neither the danger nor the
impairment were the consequence of petitioner's actions. As a
result of petitioner's actions shortly thereafter, the paramour
was incarcerated and an order of protection was issued; these
circumstances continued through the time of the hearing. This
determination renders petitioner's remaining contentions
academic.

     McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.
                              -6-                  522833

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as partially denied petitioner's
application to have the subject indicated report be amended to be
unfounded; petitioner's application granted in its entirety, said
report expunged and the record sealed; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
