The Plaintiff [Petitioner] in this CPLR Article 78 action was accused of leaving a 22-month-old child alone and unsupervised, outside on a playground while acting in her capacity as a day care worker at a community family development day care center. The Dutchess County Department of Community and Family Services investigated the report and thereafter determined that the report of "maltreatment" was appropriate.
Petitioner made an application to the New York State Office of Children and Family Services [OCFS] to amend the indicated report of the State Central Register from "indicated" to "unfounded" and to seal the report. OCFS denied Petitioner's application. Petitioner then commenced an Article 78 CPLR proceeding seeking judicial review OCFS' determination.
Citing Matter of Brown v Velez, 153 AD3d 517, the Appellate Division observed that at an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established "by a preponderance of the evidence"*.
Further, opined the court, "Judicial review of a determination that a report of child maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record" noting that where substantial evidence exists, "the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."
Concluding that the Petitioner was one of the individuals responsible for the child at the time of the incident is supported by substantial evidence in the record, the Appellate Division opined contrary to Petitioner's contention, "the fact that the [OCFS] determination was based, in large part, on hearsay evidence, does not require a different conclusion. Hearsay is admissible in an administrative hearing and, in this case, was sufficiently relevant and probative to support the determination".
* The preponderance of the evidence test requires that each element of the proof advanced by the charging party's "is more likely true than not."
Click HERE to access the Appellate Division's decision posted on the Internet.