Jeffrey O. v. N.Y.S. Office of Children & Family Servs.

207 A.D.3d 900

171 N.Y.S.3d 644

In the Matter of JEFFREY O., Petitioner,

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

531988

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 23, 2022

Decided and Entered: July 14, 2022

Jeffrey O., Cortland, petitioner pro se.

Letitia James, Attorney General, Albany (Jennifer L. Clark of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Lynch, J.

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

Petitioner is the father of a child (born in 2017). The child's mother (hereinafter the mother) also has two older children from a prior relationship. In September 2017, petitioner and the mother got into a verbal dispute while driving to a birthday party with the three children. The dispute quickly escalated and petitioner allegedly choked the mother in the children's presence and threw her car keys across the street, prompting one of the older children to retrieve them. The subject child was two months old at the time, and the mother's older children were approximately five and six years old. Police were called and criminal charges were brought against petitioner. The case was ultimately dismissed and the criminal record was sealed in January 2018.

A report was made to the Statewide Central Register of Child Abuse and Maltreatment regarding the incident and, following an investigation by the Cortland County Department of Social Services (hereinafter DSS), the report was marked as indicated against petitioner for maltreatment of the children (see Social Services Law § 412[7] ). The indicated report was forwarded to respondent and petitioner sought to have the report amended to be unfounded and sealed. Following an administrative review, respondent denied the request. An administrative hearing was held before an Administrative Law Judge (hereinafter ALJ), who upheld the denial of petitioner's request, determining that the fair preponderance of the evidence supported the indicated finding of maltreatment and that the report was relevant and reasonably related to childcare issues. Petitioner commenced this CPLR article 78 proceeding challenging that determination, which was transferred to this Court pursuant to CPLR 7804(g).

We confirm. Contrary to petitioner's contention, the finding of maltreatment is supported by a sound and substantial basis in the record. " ‘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 Tammy OO. v. New York State Off. of Children & Family Servs., 202 A.D.3d 1181, 1182, 161 N.Y.S.3d 515 [2022], quoting Matter of Gerald HH. v. Carrion, 130 A.D.3d 1174, 1175, 14 N.Y.S.3d 185 [2015] ). This Court's review "is limited to whether the determination to deny the request to amend and seal the indicated report is supported by substantial evidence" ( Matter of Sleiman v. New York State Cent. Register of Child Abuse & Maltreatment, 193 A.D.3d 1323, 1323, 147 N.Y.S.3d 755 [2021] [internal quotation marks, brackets and citation omitted], lv denied 38 N.Y.3d 905, 2022 WL 1222702 [2022] ; accord Matter of Tammy OO. v. New York State Off. of Children & Family Servs., 202 A.D.3d at 1182, 161 N.Y.S.3d 515 ) – "a minimal standard that requires ‘such relevant proof as a reasonable mind, may accept as adequate to support a conclusion or ultimate fact’ " ( Matter of Tammy OO. v. New York State Off. of Children & Family Servs., 202 A.D.3d at 1182, 161 N.Y.S.3d 515, quoting Matter of Sleiman v. New York State Cent. Register of Child Abuse & Maltreatment, 193 A.D.3d at 1323, 147 N.Y.S.3d 755 ). " ‘[H]earsay is admissible in expungement hearings and, if sufficiently relevant and probative, may constitute substantial evidence in support of the underlying determination’ " ( Matter of Tammy OO. v. New York State Off. of Children & Family Servs., 202 A.D.3d at 1182, 161 N.Y.S.3d 515 [citation omitted], quoting Matter of Ribya BB. v. Wing, 243 A.D.2d 1013, 1014, 663 N.Y.S.2d 417 [1997] ).

During the hearing, DSS presented testimony from two caseworkers who investigated the underlying incident. Both caseworkers testified that, when they interviewed the mother, she confirmed that she and petitioner got into a verbal altercation, which turned physical. In particular, when they arrived at the party, the mother told petitioner that she was going to drive back home with the children, prompting him to take her keys. When she tried to grab the keys back, she "accidentally ripped [petitioner's] shirt." The caseworkers recounted the mother's statement that petitioner then threw her phone and keys out of the car, walked around to her side of the car and choked her.

When the two older children were interviewed the next day, they confirmed the mother's recounting of the incident, stating that petitioner threw the mother's keys and phone out of the car, prompting the six-year-old child to go into the street to retrieve the keys. One of the children relayed to the caseworker that he saw petitioner choke the mother and confirmed that the children were crying and screaming at the time.

Petitioner's testimony regarding the incident differed in certain respects. According to petitioner, the couple got into a verbal dispute on the way to the birthday party and one of the mother's older children asked them to stop bickering. Once they arrived, the mother started screaming at him to get out of the car. She then got out of the car, went to the baby and started changing his diaper. According to petitioner, when he took the mother's keys out of the ignition, the mother leaned over the baby's car seat, grabbed him by the beard and ripped his shirt. Petitioner then got out of the car, walked over to the mother and asked, "what are you doing?" The mother told him that she was leaving and he responded, "you can leave after I take [the baby] out of the car." The mother then began lunging at him and grabbing at the keys, prompting petitioner to push her away "at her chest." Petitioner admitted that he continued pushing the mother while he was trying to get the baby out of the car, and also threw her keys and phone so she would go get them and leave him alone. Petitioner denied choking the mother during the altercation, stating that it may have appeared that way to the children when he was pushing her away and acknowledging that the incident was "scary" for them. When questioned on cross-examination about why he simply did not walk away from the vehicle when he had the keys in order to de-escalate the situation, petitioner stated that he wanted to take the baby into the party.

Petitioner entered into evidence a February 2019 certificate of completion for an anger management course, as well as various letters submitted by friends and family on his behalf. In one of those letters, a friend who was at the party and present for the altercation confirmed that she "saw [the mother] yelling at [petitioner] and putting her hands on him." She also saw petitioner "pushing [the mother] off of him." A letter from petitioner's sister made a similar representation as it pertained to the mother's conduct. Petitioner also submitted a letter that the mother wrote on his behalf, which stated that he "goes above and beyond for [her] and [the baby], as well as [the two older children]." Although the mother's letter stated that there were no ongoing concerns about domestic violence between the two of them, the letter did not specifically refute the allegations against petitioner pertaining to the September 2017 incident.

In denying petitioner's request to amend and seal the indicated report, the ALJ emphasized that petitioner admitted engaging in a physical altercation with the mother in the children's presence while he was attempting to get the baby out of the car seat and found that his "willingness to engage in violent disagreements over physical possession of an infant constitutes a clear failure to exercise a minimum degree of care." Although the ALJ found that the mother also bore some responsibility, she noted that such "mutual participation does not eliminate the causal connection between [petitioner's] conduct and the risk of harm to the children," as he "chose to exit the vehicle and to re-engage in the physical altercation in the presence of the children, despite having possession of the mother's car keys and telephone."

We conclude that these findings are supported by a sound and substantial basis in the record. Regardless of whether petition...