Matter of Parker v Carrion

Matter of Matter of Parker v Carrion 2011 NY Slip Op 09010 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Saxe, J.P., Sweeny, Acosta, DeGrasse, Abdus-Salaam, JJ.
6333 104406/09

[*1]In re Shirley Parker, Petitioner,

v

Gladys Carrion, etc., et al., Respondents.




Stephen M. Hudspeth, New York, for petitioner.
Eric T. Schneiderman, Attorney General, New York (Laura R.
Johnson of counsel), for State respondents.
Michael A. Cardozo, Corporation Counsel, New York (Susan
Paulson of counsel), for City respondent.

Determination of respondent New York State Office of Children and Family Services (OCFS), dated December 5, 2008, which, after a fair hearing, denied petitioner's request to have sealed and marked unfounded, a report to respondent New York State Central Register of Child Abuse and Maltreatment that she had maltreated two of her former foster children, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Marylin G. Diamond, J.], entered November 30, 2010), dismissed, without costs.

"A report of child abuse or maltreatment must be established, at an administrative expungement hearing, by a fair
preponderance of the evidence (Matter of Lee TT. v Dowling, 87 NY2d 699, 703 [1996]). Upon judicial review, the inquiry is limited to whether the administrative determination is supported by substantial evidence in the record" (Matter of Valentine v New York State Cent. Register of Child Abusers & Maltreatment, 37 AD3d 249, 249-250 [2007]).

Here, OCFS' determination that respondent New York City Administration for Children's Services (ACS) proved by a fair preponderance of the evidence that petitioner had maltreated two of her former foster children, is supported by substantial evidence. The record demonstrates that one child's account was corroborated by the other child (see id. at 250). The fact that ACS' case consisted entirely of hearsay, whereas petitioner testified, does not preclude OCFS' determination from being supported by substantial evidence (see id.; see also Matter of Khalil v New York State Cent. Register of Child Abuse & Mistreatment, 292 AD2d 208 [2002]).

Petitioner testified at the fair hearing that she had no interest in being a foster parent again. Furthermore, the foster children at issue have been adopted by someone other than petitioner, the adoptions have been finalized by a court, and petitioner is not challenging them. Therefore, she has not
satisfied the "stigma plus" test set forth in Matter of Lee TT. v Dowling (see 87 NY2d at 708-[*2]709). Even assuming that petitioner had an interest of constitutional magnitude, reliance on hearsay —- even double hearsay -— does not violate due process (see Matter of Bauer v New York State Off. of Children & Family Servs., Bur. of Early Childhood Servs., 55 AD3d 421, 422 [2008]; Matter of Pluta v New York State Off. of Children & Family
Servs., 17 AD3d 1126, 1127 [2005], lv denied 5 NY3d 715 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK