Matter of Arbogast v New York State Off. of Children & Family Servs.

Matter of Matter of Arbogast v New York State Off. of Children & Family Servs. 2014 NY Slip Op 05283 Decided on July 11, 2014 Appellate Division, Fourth 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 July 11, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.
823 TP 14-00205

[*1]IN THE MATTER OF JOY ARBOGAST, PETITIONER,

v

NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, SPECIAL HEARING BUREAU, RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Christopher J. Burns, J.], entered January 29, 2014) to review a determination of respondent. The determination denied petitioner's application to amend the indicated report of maltreatment to an unfounded report.

MURPHY MEYERS LLP, ORCHARD PARK (MARGARET A. MURPHY OF COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding to review a determination, made after a fair hearing, denying her request to amend an indicated report of maltreatment with respect to her four-year-old granddaughter to an unfounded report, and to seal it (see Social Services Law § 422 [8] [a] [v]; [c] [ii]). "At an administrative expungement hearing, a report of child . . . maltreatment must be established by a fair preponderance of the evidence" (Matter of Reynolds v New York State Off. of Children & Family Servs., 101 AD3d 1738, 1738 [internal quotation marks omitted]), and "[o]ur review . . . is limited to whether the determination was supported by substantial evidence in the record on the petitioner['s] application for expungement" (Matter of Mangus v Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774, lv denied 15 NY3d 705 [internal quotation marks omitted]; see Matter of Hattie G. v Monroe County Dept. of Social Servs., Children's Servs. Unit, 48 AD3d 1292, 1293). Here, we conclude that, contrary to petitioner's contention, the hearsay evidence of maltreatment—including but not limited to testimony that the subject child told a nurse and a child protective services caseworker that petitioner caused her injury, i.e., a ripped right earlobe—constituted substantial evidence supporting the determination (see Matter of Jeannette LL. v Johnson, 2 AD3d 1261, 1263-1264; see generally Matter of Draman v New York State Off. of Children & Family Servs., 78 AD3d 1603, 1603-1604). Although the testimony of petitioner and her sister conflicted with the evidence presented by respondent, "it is not within this Court's discretion to weigh conflicting testimony or substitute its own judgment for that of the administrative finder of fact" (Matter of Ribya BB. v Wing, 243 AD2d 1013, 1014; see Matter of Crandall v New York State Off. of Children & Family Servs., Special Hearings Bur., 104 AD3d [*2]1199, 1199). We therefore confirm the determination.

Entered: July 11, 2014

Frances E. Cafarell

Clerk of the Court