State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 518494 

________________________________

In the Matter of GERALD HH.,

Petitioner,

v MEMORANDUM AND JUDGMENT

GLADYS CARRION, as Commissioner

of Children and Family 

Services, et al.,

Respondents.

________________________________

Calendar Date: May 29, 2015

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

__________

Gerald HH., Binghamton, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.

Hitsous of counsel), for respondents.

__________

Devine, J.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Broome County) to

review a determination of respondent Commissioner of Children and

Family Services which denied petitioner's application to have a

report maintained by the Central Register of Child Abuse and

Maltreatment amended to be unfounded and expunged.

A report was made to the Central Register of Child Abuse

and Maltreatment alleging that, in January 2012, petitioner

physically mistreated his 11-year-old son. An investigation by

respondent Broome County Department of Social Services ensued,

which uncovered evidence that petitioner had grabbed the child by

the neck and lifted him off the ground, yanked him out of bed by
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the arm, and caused him to stumble on a flight of stairs by

pushing him. The report was accordingly marked as "indicated"

for maltreatment. Petitioner requested that the Office of

Children and Family Services amend the report from indicated to

unfounded, and his request was denied. Thereafter, following an

administrative hearing conducted pursuant to Social Services Law

§ 422 (8) (b), an Administrative Law Judge determined that

maltreatment had been established by a fair preponderance of the

evidence and that the indicated report may be disclosed to

inquiring agencies pursuant to Social Services Law § 424–a. 

Petitioner commenced this CPLR article 78 proceeding to challenge

the determination.

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 (see Matter of

Theresa WW. v New York State Off. of Children & Family Servs.,

123 AD3d 1174, 1175 [2014]; Matter of Cheryl Z. v Carrion, 119

AD3d 1109, 1110 [2014]). Our review is limited to assessing

whether the determination is supported by substantial evidence,

meaning "such relevant proof as a reasonable mind may accept as

adequate to support a conclusion or ultimate fact" (Matter of

Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]; see

Matter of Maurizio XX. v New York State Off. of Children & Family

Servs., 125 AD3d 1174, 1175 [2015]; Matter of Theresa WW. v New

York State Off. of Children & Family Servs., 123 AD3d at 1175-

1176).

Here, the proof introduced against petitioner consisted

solely of the investigation progress notes and a Family Court

order from 1998 that adjudicated petitioner to have neglected

another son. The progress notes were prepared by a child

protective services caseworker and include her accounts of

interviews with numerous individuals, including the child and his

therapist, that led her to the conclusion that maltreatment had

occurred. Neither the caseworker nor her interview subjects

testified before the Administrative Law Judge, however, and the

progress notes reflect that the child bore no marks or evident
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injuries as a result of the maltreatment. In contrast to this

meager evidentiary showing, petitioner and his wife both

testified and denied that any maltreatment had occurred. 

Petitioner also asserted, without contradiction, that he was

physically incapable of engaging in some of the claimed

maltreatment, such as lifting the 110-pound child with one hand. 

His wife further stated that the child admitted to her that he

was lying about the alleged maltreatment. The record suggests a

reason why the child might be prompted to lie, as a bitter

custody dispute between petitioner and the child's mother has led

to numerous unfounded reports of mistreatment regarding

petitioner.

Like any administrative determination, one made after an

expungement hearing may be based solely upon hearsay evidence –

or even double hearsay evidence – in the appropriate case (see

Matter of Theresa WW. v New York State Off. of Children & Family

Servs., 123 AD3d at 1176; Matter of Pluta v New York State Off.

of Children & Family Servs., 17 AD3d 1126, 1127 [2005], lv denied

5 NY3d 715 [2005]). As such, "our concern is not the hearsay

nature of the evidence, but whether it is sufficiently relevant

and probative to constitute substantial evidence" (Matter of King

v New York State Dept. of Health, 295 AD2d 743, 744 [2002]; see

Matter of Theresa WW. v New York State Off. of Children & Family

Servs., 123 AD3d at 1176). Hearsay evidence will not satisfy

that standard if the facts it purportedly establishes are

"seriously controverted" (Matter of JMH, Inc. v New York State

Liq. Auth., 61 AD3d 1260, 1261 [2009]; see Matter of Doctor v New

York State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d

1020, 1022-1023 [2013]). Serious controversy is precisely what

surrounds the hearsay evidence here, given the hearing testimony

that the maltreatment had not occurred and that the child had

recanted his claims, the proof that motivations may have existed

for the child to fabricate the maltreatment, and the total lack

of physical evidence suggesting that it occurred. We accordingly

agree with petitioner that substantial evidence does not support

the challenged determination, which must be annulled as a result

(see Matter of Theresa WW. v New York State Off. of Children &

Family Servs., 123 AD3d at 1176; Matter of Doctor v New York

State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d at

1022-1023). 
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Petitioner's remaining arguments, to the extent that they

are properly before us by virtue of him having raised them before

the Administrative Law Judge and in his subsequent CPLR article

78 petition, are rendered academic in light of the foregoing. 

McCarthy, J.P., Egan Jr. and Clark, JJ., concur.

ADJUDGED that the determination is annulled, without costs,

and petition granted.

ENTER:

Robert D. Mayberger

Clerk of the Court