State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2015 518217 

________________________________

In the Matter of GWEN Y.,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE OFFICE OF

CHILDREN AND FAMILY 

SERVICES,

Respondent.

________________________________

Calendar Date: September 8, 2015

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

__________

Arroyo Copland & Associates, PLLC, Albany (Amy C. Kendall

of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Julie

Sheridan 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 Greene County) to

review a determination of respondent denying petitioner's

application to have a report maintained by the Central Register

of Child Abuse and Maltreatment amended to be unfounded and

expunged.

On the afternoon of May 3, 2012, petitioner put her three

young children down for a nap. Shortly thereafter, petitioner's

youngest daughter (hereinafter the child), who then was 21⁄2 years

old, called out and indicated that she had "pooped." Petitioner

did not immediately respond, as the child previously had made
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similar claims in an effort to avoid nap time. When the child

called out again, petitioner went into the children's bedroom and

found her son and the child standing in the middle of the room. 

Petitioner confirmed that the child indeed needed a diaper change

and bent over to pick up the child and lay her down on the floor. 

As petitioner was doing so, her son, who apparently had taken it

upon himself to check his sister's diaper, announced that he had

"poopy on [his] hands." Petitioner turned to look at her son

and, in the process, "let go" of the child, whose feet were

estimated by petitioner to be 4 to 12 inches from the floor, with

the intention that the child would land on her bottom. The

child, however, apparently landed on some portion of her lower

extremities and began to whimper. Petitioner initially concluded

that the child had sprained her ankle and applied an ice pack,

but when the child continued to complain, petitioner took the

child to a local urgent care center where an X ray revealed a

fracture of the child's right tibia.

As a result of this incident, a report was made to the

Central Register of Child Abuse and Maltreatment and, following

an investigation, the report was marked as indicated.1 After

respondent denied petitioner's request to amend the report from

indicated to unfounded, an administrative hearing was held

pursuant to Social Services Law § 422 (8). At the conclusion of

that hearing, the finding of maltreatment as to the child was

upheld and petitioner's request to amend the subject report was

denied.2 Petitioner thereafter commenced this CPLR article 78

proceeding seeking to challenge the underlying determination.

1 Petitioner was removed from the home for approximately

three months. Although a related neglect proceeding was

commenced against petitioner, that proceeding was adjourned in

contemplation of dismissal without a finding of wrongdoing; a

separate criminal proceeding against petitioner stemming from

this incident also was adjourned in contemplation of dismissal.

2 The allegations of excessive corporal punishment as to

petitioner's son were not sustained and are not at issue in this

proceeding.
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"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" (Matter of

Gerald HH. v Carrion, 130 AD3d 1174, 1175 [2015] [citations

omitted]; see Matter of Maurizio XX. v New York State Off. of

Children & Family Servs., 125 AD3d 1174, 1174-1175 [2015]). As

there is no dispute that the child suffered a broken leg, there

can be no question that her physical condition was in fact

impaired. Accordingly, our inquiry distills to whether the

record supports a finding that such impairment was the result of

petitioner's failure to provide appropriate supervision and

guardianship.

In this regard, the evidence against petitioner consisted

primarily of the investigation progress notes, which summarized

the caseworker's interviews with, among others, petitioner's son,

the child's treating orthopedic surgeon and the child's

geneticist.3 "[T]here 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 Theresa WW. v New York State

Off. of Children & Family Servs., 123 AD3d 1174, 1176 [2014]

[internal quotation marks and citations omitted]; see Matter of

Gerald HH. v Carrion, 130 AD3d at 1175-1176). That said, the

substantial evidence standard is not satisfied where, as here,

the hearsay evidence at issue is "seriously controverted" (Matter

of Gerald HH. v Carrion, 130 AD3d at 1176 [internal quotation

marks and citation omitted]).

According to the progress notes, the treating orthopedic

surgeon, who "[did] not believe that [petitioner] should have

[custody of] the child," advised the caseworker that the child's

injury could not have occurred in the manner described by

3 Neither the caseworker nor the child's treating

orthopedist testified at the hearing, and the child's geneticist

was unavailable to testify due to declining health.
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petitioner because "more force would be needed to cause" what he

regarded as "a spiral fracture of the [t]ibia." The orthopedist,

however, was unaware that the child had been diagnosed with hemihypertrophy – a condition that caused the left side of the

child's body to grow faster than the right side. As explained by

the child's geneticist, this condition could cause the bones on

the right side of the child's body to be "more susceptible to

pressure."4 Indeed, the caseworker's notes reflect that,

according to the geneticist, a drop "even from [two] inches above

the ground" could have caused the child's weight to shift to her

more sensitive right foot. Further, with respect to the

resulting fracture, the geneticist, who reviewed the initial X

rays, was not convinced that the child actually had sustained a

spiral fracture, noting that the fracture "look[ed] to be going

through the bone" rather than "circling the bone the way it would

in a spiral fracture."

Although the agency also relied upon the caseworker's

interview of petitioner's then 41⁄2-year-old son, his teacher, who

was present for the interview and testified at the administrative

hearing, expressed misgivings as to the manner in which that

interview was conducted. In conjunction with the earlier neglect

proceeding, the teacher submitted an affidavit – entered into

evidence at the subsequent administrative hearing without

objection – wherein she averred that, during the course of the

interview, the caseworker "press[ed]" petitioner's son and

"[made] suggestions to him about [petitioner's] conduct on the

day of the incident, including suggestions about the way

[petitioner] was standing . . . and how she was holding [the

child]." According to the teacher, by the time the interview

concluded, the caseworker succeeded in "provok[ing the child],

who was clearly frustrated, to throw the doll he was holding on

the floor in accordance with [the agency's] theory of how his

sister was injured." The teacher, who testified that she had not

4 Petitioner testified that she was unaware of the child's

increased susceptibility to bone fractures, and the geneticist

confirmed that he had not discussed this possibility with

petitioner or her husband prior to the child's injury.
-5- 518217 

observed any indications of abuse, averred that, in her opinion,

petitioner's son would not have thrown the doll in the fashion

that he did "but for the suggestive and insistent conduct of

[the] caseworker[]."

Finally, petitioner submitted affidavits from the child's

pediatrician and a family friend, neither of whom had ever seen

any indications of abuse or neglect, as well as the report

prepared by the psychologist who performed a mental health

evaluation of her. According to the psychologist, her evaluation

of petitioner disclosed no mental health or substance abuse

disorders and revealed no prior history of violent behavior or

impulse control problems. The psychologist deemed petitioner's

account of the underlying incident to be "detailed and credible,"

concluded that petitioner was not a "candidate for anger

management" counseling and advocated for petitioner's "return to

her home as soon as possible" in order to "reduce the likelihood

of further emotional damage to her children and the integrity of

the family unit." In conclusion, the psychologist found that the

child's injury "appear[ed] to be an isolated and aberrant

incident . . . [that was] not reflective of [petitioner's]

typical pattern and practice of parenting."

Upon due consideration of the record as a whole, we find

that the evidence relied upon by the agency was significantly

undermined by the proof tendered by petitioner. As such, we are

unable to conclude that respondent's determination is supported

by substantial evidence. Accordingly, the underlying

determination is annulled.

McCarthy, J.P., Rose and Clark, JJ., concur.
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ADJUDGED that the determination is annulled, without costs,

and petition granted.

ENTER:

Robert D. Mayberger

Clerk of the Court