State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 10, 2014 517183 

________________________________

In the Matter of CHERYL Z.,

Petitioner,

v

GLADYS CARRION, as MEMORANDUM AND JUDGMENT

Commissioner of Children

and Family Services, 

Respondent,

et al.,

Respondent.

________________________________

Calendar Date: May 30, 2014

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

__________

William E. Montgomery III, Glens Falls, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Laura

Etlinger of counsel), for Gladys Carrion, respondent.

__________

McCarthy, J.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany 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. 

After petitioner called law enforcement because her

grandchild, who was two years and four months old, had wandered

away from her front yard, police officers responded to the

vicinity of petitioner's home and, shortly thereafter, found the
-2- 517183 

child unharmed and by himself near a parking lot approximately

200 yards from the home. Following an investigation, a report

was indicated against petitioner for maltreatment of the child. 

Petitioner thereafter requested that the Office of Children and

Family Services amend the report to unfounded and, upon a denial

of her request, an administrative hearing was held pursuant to

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

hearing, the Administrative Law Judge (hereinafter ALJ) sustained

the finding of maltreatment and denied petitioner's request to

amend and expunge the indicated report. Petitioner then

commenced this proceeding. 

Substantial evidence supports the finding of maltreatment. 

In order to establish maltreatment, the agency was required "to

demonstrate by a fair preponderance of the evidence that 'the

child's physical, mental or emotional condition ha[d] been

impaired or [was] in imminent danger of becoming impaired as a

result of the [caregiver's] failure to exercise a minimum degree

of care'" in providing the child with appropriate supervision

(Matter of Anne FF. v New York State Off. of Children & Family

Servs., 85 AD3d 1289, 1290-1291 [2011], quoting Matter of Tonette

E. v New York State Off. of Children & Family Servs., 25 AD3d

994, 995 [2006]; see 18 NYCRR 432.1 [b] [1] [ii]). Upon review

of such an administrative determination, "this Court's inquiry 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 Gerald G. v State of N.Y. Dept.

of Social Servs., 248 AD2d 918, 919 [1998]). A determination is

supported by substantial evidence "when reasonable minds could

adequately accept the conclusion or ultimate fact based on the

relevant proof" (Matter of Kenneth VV. v Wing, 235 AD2d at 1008;

accord Matter of Steven A. v New York State Off. of Children &

Family Servs., 307 AD2d 434, 435 [2003]).

 The parties do not dispute that, on the day in question,

the child left the front yard while under petitioner's care. 

Although petitioner's home is at the end of a dead-end street,

testimony by respondent Michelle Kelley, a caseworker for the

Saratoga County Department of Social Services, and photographs

introduced into evidence established that the home also faces a

four-lane divided highway with a speed limit ranging from 45 to
-3- 517183 

55 miles per hour. Notably, the same evidence showed that there

is no fence, or any similar physical barrier, directly between

petitioner's front yard and this highway. Further, according to

Kelley's testimony, a police officer who responded to

petitioner's request for assistance in locating the child

reported that petitioner stated that the child left the front

yard during a time when petitioner had briefly gone inside the

home, leaving the child alone in the front yard. Although

petitioner testified that she did not tell the police officer

that she went inside the home and further testified that she did

not in fact do so, the ALJ explicitly credited Kelley's testimony

and discredited petitioner's testimony, and there is no reason in

the record to reject that credibility determination (see Matter

of Stephen C. v Johnson, 39 AD3d 932, 933-934 [2007], lv denied 9

NY3d 804 [2007]; Matter of Jeannette LL. v Johnson, 2 AD3d 1261,

1263 [2003]). Finally, petitioner's own testimony established

that, at the time of the incident, she had known of a previous

occasion upon which the child had wandered away from a

supervising adult, also prompting law enforcement involvement. 

Given the child's young age, his known history of wandering away

from supervising adults and the close proximity and accessability

of a dangerous roadway, and crediting the testimony that

petitioner left the child unattended while she went indoors for a

period of time long enough for him to wander from sight,

substantial evidence exists to support the determination (see

Matter of Archer v Carrion, 117 AD3d 733, 734 [2014]; Matter of

Susan XX. v Tioga County Dept. of Social Servs., 74 AD3d 1543,

1544-1545 [2010]; Matter of Stephen C. v Johnson, 39 AD3d at 933-

934; Matter of Ribya BB. v Wing, 243 AD2d 1013, 1013-1014 [1997];

cf. Matter of Antonio NN., 28 AD3d 826, 827-828 [2006]; compare

Matter of Anne FF. v New York State Off. of Children & Family

Servs., 85 AD3d at 1290-1291; Matter of Matthew WW. v Johnson, 20

AD3d 669, 671 [2005]).

Petitioner's contentions regarding certain evidentiary

admissions and the ALJ's questioning of her are also without

merit. Generally, this Court will annul an administrative

determination based on an erroneous evidentiary ruling "[o]nly in

the event that [such a] ruling renders the entire proceeding

fundamentally unfair" (Matter of Sunnen v Administrative Rev. Bd.

for Professional Med. Conduct, 244 AD2d 790, 792 [1997], lv
-4- 517183 

denied 92 NY2d 802 [1998]; see Matter of Gonzalez v New York

State Dept. of Health, 232 AD2d 886, 889 [1996], lv denied 90

NY2d 801 [1997]). Petitioner's various claims that the ALJ

should not have admitted hearsay evidence are unavailing because

the record reveals that the hearsay admitted was sufficiently

relevant and probative to the maltreatment inquiry and was not

unduly prejudicial (see Matter of Bullock v State of N.Y. Dept.

of Social Servs., 248 AD2d 380, 382 [1998]; Matter of Ribya BB. v

Wing, 243 AD2d at 1014). In addition, contrary to petitioner's

arguments regarding the admission of police reports that postdated the incident at issue, the ALJ determined that such reports

were inadmissible. Finally, any error in regard to the admission

of a map that may have inaccurately represented the path that the

child traveled was not so egregious as to render the entire

proceeding unfair, especially given the ample cross-examination

on that point by petitioner's counsel (see Matter of Rigle v

Daines, 78 AD3d 1249, 1251 [2010], lv dismissed 16 NY3d 825

[2011]). Further, the ALJ's clarifying questions and

instructions directed at petitioner during her testimony do not

support the argument that the ALJ was biased (see Matter of

Taylor v Selsky, 242 AD2d 772, 772-773 [1997]) or that the

administrative decision flowed from any alleged bias (see Matter

of Harvey v Bradt, 81 AD3d 1003, 1004 [2011]; Matter of Parra v

Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]).

Stein, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court