        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

383
TP 15-01552
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF DAWN M., PETITIONER,

                    V                              MEMORANDUM AND ORDER

NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE
AND MALTREATMENT, RESPONDENT.


WILLIAM D. BRODERICK, JR., ELMA, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [John A.
Michalek, J.], entered July 31, 2015) to review a determination of
respondent. The determination, inter alia, denied petitioner’s
request to amend an indicated report of maltreatment with respect to
her granddaughters to an unfounded report, and to seal it.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
to review a determination made after a fair hearing that, inter alia,
denied her request to amend an indicated report of maltreatment with
respect to her granddaughters to an unfounded report, and to seal it
(see Social Services Law § 422 [8] [a] [v]; [c] [ii]). Contrary to
petitioner’s contention, we have repeatedly held that it is not
“ ‘improper for the fact-finding determination to be made by a person
who did not preside at the . . . hearing’ . . . [,] and petitioner was
not deprived of due process thereby” (Matter of Pluta v New York State
Off. of Children & Family Servs., 17 AD3d 1126, 1127, lv denied 5 NY3d
715; see e.g. Matter of Sarkis v Monroe County Dept. of Human Servs.,
133 AD3d 1344, 1344).

     We reject petitioner’s further contention that the Erie County
Department of Social Services, CPS Unit (DSS) failed to sustain its
burden at the fair hearing of establishing that petitioner committed
an act of maltreatment and that such maltreatment was relevant and
reasonably related to childcare employment. “It is well established
that our review is limited to whether the determination to deny the
request to amend and seal the [indicated] report is supported by
substantial evidence in the record” (Matter of Kordasiewicz v Erie
                                 -2-                           383
                                                         TP 15-01552

County Dept. of Social Servs., 119 AD3d 1425, 1426; see Matter of
Mangus v Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774, lv
denied 15 NY3d 705). Substantial evidence is “ ‘such relevant proof
as a reasonable mind may accept as adequate to support a conclusion or
ultimate fact’ . . . [, and] hearsay evidence alone, if it is
sufficiently reliable and probative, may constitute sufficient
evidence to support a determination” (Kordasiewicz, 119 AD3d at 1426,
quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d
176, 180; see Matter of Hattie G. v Monroe County Dept. of Social
Servs., Children’s Servs. Unit, 48 AD3d 1292, 1293). “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[ren] 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[ren] with appropriate
supervision or guardianship” (Matter of Gerald HH. v Carrion, 130 AD3d
1174, 1175; see Social Services Law § 412 [2] [a]; Family Ct Act
§ 1012 [f] [i] [B]; 18 NYCRR 432.1 [b] [1] [ii]; Matter of Brian M. v
New York State Off. of Children & Family Servs., 98 AD3d 743, 743).

     The evidence at the hearing established that petitioner’s
granddaughters had been sexually abused by the son of petitioner’s
boyfriend. “[B]ecause the girls were so uncomfortable with
[petitioner’s boyfriend] being in the home or being around,” it was
part of the girls’ treatment plan that petitioner’s boyfriend reside
in a “separate houshold[].” Nevertheless, it was undisputed at the
hearing that petitioner allowed her boyfriend to perform a “technique”
that the family called “Cloud 9.” That “technique” involved
petitioner’s boyfriend running his hands up and down the sides of the
girls’ bodies, and there was evidence at the hearing that the girls
told petitioner that it made them “uncomfortable” and did not want it
to continue. The fact that the girls may have recanted other
allegations made against petitioner and her boyfriend raised issues of
credibility for the factfinder (see Matter of Mary P. v Helfer, 17
AD3d 1013, 1014, amended on rearg on other grounds 20 AD3d 943), and
the factfinder’s assessment of credibility will not be disturbed
where, as here, “it is supported by substantial evidence” (Matter of
Jeannette LL. v Johnson, 2 AD3d 1261, 1263; see Mary P., 17 AD3d at
1014). We thus conclude on the record before us that the
determination that DSS established by a fair preponderance of the
evidence at the fair hearing that petitioner maltreated the subject
children and that such maltreatment was relevant and reasonably
related to childcare employment is supported by substantial evidence.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
