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

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Matter of Andrews v New York State Off. of Children & Family Servs. 2018 NY Slip Op 30418(U) March 12, 2018 Supreme Court, New York County Docket Number: 452409/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 1] NYSCEF DOC. NO. 33 INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 32 ------------------------------------------------------------------------ )( In the Matter of the Application of ·. Index No. 452409/2017 Motion Seq: 001 CHERVANTES ANDREWS, Petitioner, DECISION & ORDER -againstHON. ARLENE P. BLUTH NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALT~EATMENT, ·and NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, Respondents. For a Judgment Pursuant to Article 78 ~f the Civil Practice Law and Rules -------------------------~---------------------------------------------- )( The petition to inter alia annul a determination by respondent the New York State Office ·of Children and Family Services ("OCFS") and to amend and seal an indicated report against pe~itioner is respectfully transferred to the Appellate Division, First Department for disposition pursuant to CPLR 7408(g). Background This proceeding arises out of an incident that occurred while petitioner was walking her te~-year old son to school on the morning of November 17, 2015. During this walk, petitioner was involved in an altercation with another woman. Allegedly, this woman was the close friend of another woman who was romantically involved with petitioner's husband. OCFS argues that .Pagel of 8 2 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 2] INDEX NO. 452409/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/13/2018 a p~titioner was upset after viewing pictures ~n social media of cake b"aked for her husband by th~ woman involved in the altercation. Petitioner clain\s "the woman attacked her and petitioner was merely defending herself. OCFS, relying ori statements fr~mwit~esses, insists that it was petitioner who initiated the fight. It is undisputedthat the fight oq:urred right in front of petitioner's son.. ·As a result of th~ altercation, petitioner was arrested and ·eventually pleaded guilty to . . disorderly conduct- a·non~crimirial vfolation. A few hl~nthslater, ~espbndent the New York . A?ministration of Chiidren's Services ("ACS") investigated the -incident arid concluded that petitioner exhibited inad~guate guardiansqip. Inresponse to.petitioner's challenge.of that . - .· ' - ,- . finding,· in ~fay 2017, an Administrative Law fodge ('ALr) conciuded, after a hearing, that the report was correctly indicated and denied petitioner:s requesn() ha've-the case sealed as not '• • - .-, I relevant or reasonably relat~d to her_ w_orkwith c?ilclren in ':school settin&. (Petitioner had worked as a classroom aide). Petitioner seeks to annul this determination. ; ,.. ·. -~ ·"'·. OCFS claims that this proceeding mu~t be transferred to ·the Appellate Division, First Department because it rais~s a question of substantial evidence, OCFS also insists thatthe J ~- ' ' ' ' - decision was rational. Discussion -"A report of child.abuse or maltreatment mli~t" be established, at an administrative . ~ ;; , , : ... - - - ,. expungement hearing, by a fair preponderance of the evidence~ Upon judicial review, the inqui1!' is ~imited to whether the ad~ninistrative determination i.s supported by substantial evidence.in the ;.. ~ . . . '. reeord" (Parker v Carrion·, 90 ADJd si2,.935 NYS2d 14 [lsi Dept 2011] [denying a petition, previously transferred to the Appellate Division by the Supreme.Court, that·soughtto have sealed ~~ .' Page 2of 8 3 of 9 . [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 3] NYSCEF DOC. NO. 33 INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 and marked unfounded an OCFS decision]). As an initial matter, the Court must first de2ide whether the proceeding must be transferred to the First Department. Where the issue of substantial evidence is raised "the court shall_first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the ' . proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division" (CPLR 7804[g]). Where a petition "raises an issue of substantial evidence, in the abse1.1ce of other objections as could terminate the proceeding, the proceeding should [be] transferred to [the Appellate Division]" (Dillin v Waterfront Commn. ofNew York Harbor, 119 AD3d 429,428, 990 NYS2d 170 [1st Dept 2014 ]). The Court observes that petitioner usedthe term "substantial evidence" five times in the petition. For instance, petitioner alleged that "this-[OCFS'] decision lacked substantial evidence and was arbitrary, capricious, contrary to law and an abuse of discretion" (NYSCEF Doc. No. I, ~ 4). Petitioner's memorandum of law in support explicitly states that "the ultimate finding of maltreatment lacks substantial evidence as a result of the ALJ' s reliance dn this erroneous finding of 'premeditated assault'" (NYSCEF Doc. No. 19 at 6). Petitioner, in reply, attempts to distance herself from the statements in her moving papers and claims that the proceeding should not be transferred to the FirstDepartment. Petitioner , claims that there are legal errors which this Court must address before reaching the issue of substantial evidence, including the ALJ's failure to utilize the ten-factor test to determine Page 3 of 8 · 4 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 4] NYSCEF DOC. NO. 33 ~hether INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 the maltreatment is relevant and reasonably related to employment. Petitioner also claims that the ALJ's decision improperly concluded that there was maltreatment by failing to consider whether petitioner's behavior fell below a minimum degree of care and caused harm to her son. Maltreatment Petitioner claims that ALJ's decision was arbitrary because it did not follow the statutory elements of a finding of maltreatment. In her decision; the ALJ identified the three~prong test applicable to maltreatment, which includes "(l) the child's physical, mental or emotional condition was impaired, or was in imminent danger of becoming impaired; (2) the parent or custodian failed to .exercise a minimum degree of care under the circumstances in question; and . . (3) the parent's or custodian's failure to exercise the requisite degree of care caused, or threatened, the impairment in the child's condition" (NYSCEF Doc. No. 3 at 4). With respect to this issue, the ALJ found that: During the investigation, the Appellant admitted to having her son with her, handing him her pocketbook and defending herself. The notes record several times the Appellant was loud, or belligerent with workers and refused to allow anyone to talk to her son about the incident. The Appellant pled guilty to disorderly conduct and has a two-year order of protection. It is not disputed that Appellant's son was present and next to her (sic] mother when the altercation started. It is also clear from the evidence that the victim sustained injuries and the Appellant [sic] self-serving testimony denying she did nothing more than hold the woman at arm's length is not credited. Appellant was involved in a physical altercation outside with her son observing the incident and in close proximity of the physical altercation. · Accordingly, it is determined that the Agency has met its burden of proving by a fair preponderance of the evidence that the Appellant committed the maltreatment alleged (NYSCEF Doc. No; 3 at 7). P~titioner does not dispute that the ALJ identified the correct elements for maltreatment. Instead, petitioner claims that the ALJ did not analyze the three elements. But the paragraph Page 4 of 8 5 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 5] NYSCEF DOC. NO. 33 INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 cited above implicitly anal~zes all ofihe elements,of maltreatment. Petitioner's son was in imminent danger by standing right next to his mother while she was in a fight. The fact that the ~LJ discredited petitioner's testimony and.found that she was much more than a passive participant (i.e., that petitioner did more thanjusthold the woman at arm's length) directly al?plies to the second and third elements. Whether these findings are eno{igh to support a claim for maltreatment is a question of substantial evidence. It is not an error of law or an abuse of discretion simply because petitioner disagrees with the ALJ' s conclusions. Ten-Factor Test Petitioner also argues that the ALJ did not properly utilize the ten-factor test to consider whether petitioner's maltreatment was relevant and reasonably related to employment by a child care agency. However, this issue cannot be divorced from the substantial evidence analysis and, therefore, it is not a basi~ to terminate· the proceeding. The ALJ' s finding. on this issue concluded . . that: The Appellant's testimony that her actions were a matter of a momentary loss of composure are inconsistent with the record. Her actions during the incident were premeditated. She handed off her pocket book and attacked the other woman. Further, her anger continued during the investigation. Only a short period of time has passed since the incident. One anger management class, learning breathing skills, hardly seems significant when compared to a premeditated assault, which the Appellant seems to.have stewed over for an extended period. Appellant's testimony on this issue is not found to be credible. Accordingly, it is determined that the indicated report is still relevant and reasonably related to childcare issues and may be disclosed to licensing agencies and prospective employers. (NYSCEF Doc. No. 3 at 8-9) Petitioner's memorandum oflaw admits that some factors were addressed and does not · argue that all factors mu_st be analyzed (see NYSCEF Doc. No. 19 at 7-8). In~tead, petitioner identifies three factors that the ALJ e~aluated and contends that the analysis of two of the factors Pages of 8 6 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 6] INDEX NO. 452409/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/13/2018 is '.unconvincing and that other .factors should have. ,been considered. This C~urt is unable to find that the ALJ erred in applying the law because the ALfd.id.n~taddress certainfactors, especially '< - - , ' . ' ·: - .f· - . ·, - ~ - . t . . - where the ALJ was not :required to address alU 0 fact6rs. The factthatthis Co,urt may have : . ~ -~ ,,: drafted the deci.sion d_ifferently does n6t r6quire this Court to,rever.se.the ALJ's determination. This is not a case where the ALJ appliecl the :Wrong l~"". or' failed to cite any facts in . . ' .· support of her conclusion: Tlie ALJ, according to petitioner, addressed the seriousness of the . . . incident, the amount of time that has pass'ed .since:the.incident and :petitioner's purported rehabilitation.· That is the essence of a .substantial ·evidence q~estion.....:whether the ALJ's ;;: . .. . : ·:, . ,. : d~~ision relating to the ten-factor test .was supported by.enough fads. This CoUrt does not corisider the ALJ's decision to. be arbitrary or capri~io.us 'simply because petitioner thinks that other factors should have be~ri addressed and that. these factors are favorable to petitioner. - - i' . • Petitioner's relianc~ on Natasha W .v New York State.Office of Child~en and Famil")J ~ ~' . . -·"'.,_ . . - . -.-.... . .'' . .. ~- .• ·. .. . . Services (145 AD3d 401; :12NYS3d126 [1st Dept 20l6]) does'ilot compel a different outcome. . • -.,. • . ' • T InWatasha W, the underlying facts ·w~re undisputed- petitioner used her five ·year oid son to help . . . her shoplift (id. at402). :Her~, tlJ.e facts are disputed- petitione(claims she was not the aggressor inthe fight and that she merely held the.other woman offwqile the ALlc'oncluded that it was a .... ·" . . :.,. pr~meditated·assa!-llt. 1 ·Accordingly,it does no! matter thatthe Supreme Court in Natasha W did ndttransfer the proceeding to the First Department'based oll'tlie issue .of substantial;evidence- in . . . Although petiti~'ner insists thaf the 'ALJ' s conclusio~ thafitwas a premeditated assault was irrational given that petitioner pleaded gui_lty to disorderly conduct, the Court notes that petitioner also claims' that this finding was.not supported by substantial evidehce(NYSCEF Doc. N0. 19 at 14). And pleading to a lesser charge anci'undergoing anger_rilanagementdoes not prevent the ALJ from finding that the fight was premeditated. It.~an cerlainlyfactor into whether there was substantial evidence for that conclusion; but the ALJ was entitled to discredit petitioner's acco~nt of the illcident and find that she had.a motive to attack the other woman. 1 ·Page 6 Of 8 7 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 7] NYSCEF DOC. NO. 33 INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 · Natasha W, there were only legal issues to consider because the facts of the case were not in dispute. Summary This Court cannot reverse the ALJ's decision because the ALJ did not explicitly apply the elements of maltreatment to the facts or address the applicability of every factor included in the ten-factor test. Of course, adding that analysis would have provided more clarity with respect to the basis for the ALJ's findings. Nevertheless, the Court cannot specifically instruct the ALJ how to draft ·decisions. At oral argument, petitioner stressed that the ALJ's decision was baseless because the ALJ' s ."finding of facts" section only found that petitioner was in a physical altercation and does not mention that it was premeditated (see NYSCEF Doc. No. 3 at 2-3). But the ALJ's findings are not limited to that section; the ALJ found petitioner's testimony not credible and found that the fight was premeditated later in the decision (id. ·at 8). Simply because those findings were not included it the ALJ's self-titled "finding of facts" section does not render the conclusion . . meritless. And the conclusion itself- that the attack was premeditated- is a question of substantial evidence. The ALJ clearly thought it was premeditated based on her evaluation of petitioner's testimony and reports about witnesses' statements concerning the fight. To the extent that petitioner claims that the ALJ's determination was supported by unreliable hearsay, that asserti9n does not prevent this Court from transferring this proceeding to the First Department. Petitioner raised the hearsay issue for the iirst time in reply and the AL.T was entitled to rely on hearsay evidence and to make cre<;fibility determinations {including whether the evidence was corroborated) at the hearing. For instance, petitioner contends that no . . Page 7 of 8 8 of 9 [*FILED: NEW YORK COUNTY CLERK 03/13/2018 10:28 AM 8] NYSCEF DOC. NO. 33 INDEX NO. 452409/2017 RECEIVED NYSCEF: 03/13/2018 photographs of the injuries suffered by. the other woman in the fight or Facebook messages allegedly revealing petitioner's motive were produced at the hearing. Those are substantial evidence issues. To be clear, this decision only.considers whether this Court can terminate the instant proceeding separate and apart from the issue of substantial evidence. The Court finds that the issue of substantial evidence is inextricably intertwined with the objections raised by petitioner especially where, as here, the facts are in dispute, petitioner does not raise procedural objections and there is no claim that the ALJ applied the wrong standards: Instead, petitioner claims that ALJ should have used the same variable, ten-factor test and analyzed the same elements of. maltreatment to reach a different conclusion based on petitioner's version of the facts. That is a question of substantial evidence. Accordingly, it is hereby ORDERED that the application by petitioner seeking to vacate and annul a determination by OCFS is respectfully transferred to the Appellate Division, First Department for disposition pursuant to CPLR 7408(g). This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law, is, on the entire record, is supported by substantial evidence (CPLR 7803[4]). Petitioner is directed to serve a copy·of this order with notice of entry upon the County Clerk (Room 141 B), who is directed to transfer the file to the ellate Division, First Department. Dated: March 12, 2018 New York, New York ARLENE P. LUTH, JSC HON. ARLENE :J?. BLU'f!! Page 8 of 8 9 of 9

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