Matter of Ciccarelli v New York State Off. of Children & Family Servs., 2024 NY Slip Op 02911 [227 AD3d 1066]

May 29, 2024

Appellate Division, Second Department

[*1]

In the Matter of Danielle Ciccarelli, Petitioner,

v

New York State Office of Children and Family Services et al., Respondents.

The Sharova Law Firm, Brooklyn, NY (Charles W. Marino of counsel), for petitioner.

Letitia James, Attorney General, New York, NY (Matthew W. Grieco and David Lawrence III of counsel), for respondent New York State Office of Children and Family Services.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis of counsel), for respondent New York City Administration for Children’s Services (no brief filed).

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Office of Children and Family Services dated June 21, 2021. The determination, after a fair hearing pursuant to Social Services Law § 422 (8), denied the petitioner’s application to amend and seal an indicated report maintained by the New York State Central Register of Child Abuse and Maltreatment.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs to the respondent New York State Office of Children and Family Services.

In February 2020, the petitioner was the subject of a report made to the New York State Central Register of Child Abuse and Maltreatment after her child had been absent from school for 43 days and late for school 23 times during the 2019-2020 school year. The Kings County Child Protective Service investigated the report and thereafter determined that the report was indicated. In a determination dated June 21, 2021, made after a fair hearing pursuant to Social Services Law § 422 (8), the respondent New York State Office of Children and Family Services (hereinafter OCFS) denied the petitioner’s application to amend and seal the indicated report maintained by the New York State Central Register of Child Abuse and Maltreatment. The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to review OCFS’s determination. By order dated March 22, 2022, the Supreme Court, inter alia, transferred the proceeding to this Court pursuant to CPLR 7804 (g).

“Social Services Law § 422 (8) (a) (ii) provides that when the subject of an indicated report petitions for an amendment of the report, OCFS must review the evidence and determine [*2] whether the report is supported by a fair preponderance of the evidence” ( Matter of Robles v New York State Off. of Children & Family Servs. , 220 AD3d 798 , 798 [2023] [internal quotation marks omitted]; see Matter of Podell v New York State Cent. Register of Child Abuse & Maltreatment , 215 AD3d 751 , 752 [2023]). “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” ( Matter of Robles v New York State Off. of Children & Family Servs. , 220 AD3d at 799 [internal quotation marks omitted]; see Matter of Podell v New York State Cent. Register of Child Abuse & Maltreatment , 215 AD3d at 752). “Substantial evidence is ‘less than a preponderance of the evidence’ and ‘demands only that a given inference is reasonable and plausible, not necessarily the most probable’ ” ( Matter of Doe v New York State Off. of Children & Family Servs. , 173 AD3d 1020 , 1022 [2019], quoting Matter of Haug v State Univ. of N.Y. at Potsdam , 32 NY3d 1044 , 1045-1046 [2018]). “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” ( Matter of Robles v New York State Off. of Children & Family Servs. , 220 AD3d at 799 [internal quotation marks omitted]; see Matter of Podell v New York State Cent. Register of Child Abuse & Maltreatment , 215 AD3d at 752). “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” ( Matter of Robles v New York State Off. of Children & Family Servs. , 220 AD3d at 799 [internal quotation marks omitted]; see Matter of Podell v New York State Cent. Register of Child Abuse & Maltreatment , 215 AD3d at 752-753).

Here, the determination that a fair preponderance of the evidence established that the child’s physical, mental, or emotional condition was impaired or in imminent danger of being impaired as a result of her excessive school absences and tardiness was supported by substantial evidence in the record, including the agency records admitted into evidence at the hearing ( see Matter of Nevetia M. [Tiara M.] , 184 AD3d 836 , 837 [2020]; Matter of Madison G. [Lynn T.] , 181 AD3d 597 , 599 [2020]). Moreover, contrary to the petitioner’s contention, “hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds” ( Matter of Conklin v New York State Off. of Children & Family Servs. , 204 AD3d 668 , 670 [2022] [internal quotation marks omitted]; see Matter of Haug v State Univ. of N.Y. at Potsdam , 32 NY3d at 1046).

Substantial evidence also supported the determination that the petitioner’s maltreatment of the child was relevant and reasonably related to childcare employment ( see Social Services Law § 422 [8] [c] [ii]; Matter of Conklin v New York State Off. of Children & Family Servs. , 204 AD3d at 670). Dillon, J.P., Iannacci, Wan and Taylor, JJ., concur..