STATE OF NEW YORK
OFFICE OF CHILDREN & FAMILY SERVICES
______________________________________________________ In the Matter of Appeal of
pursuant to Section 422 of the Social Services Law ______________________________________________________ :
Before: Held At:
Parties:
::DECISION : AFTER
: HEARING : FH# 110781
Sue Novick Wasko Administrative Law Judge
New York State Office
of Children and Family Services 163 West 125th Street
New York, New York 10027 March 17 & April 11, 2022
New York State Central Register of Child Abuse and Maltreatment P.O. Box 4480
Albany, New York 12204 Documents submitted in lieu
of appearance
New York City Administration for Children’s Services
150 William Street, Room 50-D New York, New York 10038
By: Camaker Thomas-Heyward, Esq. (By Video)
Michael Disciorro, LLC
11 Broadway, Suite 615
New York, New York 10004 (By Video)
JURISDICTION
The New York State Central Register of Child Abuse and Maltreatment (the Central Register) maintains a report indicating Joseph Morello, (the Appellant) for maltreatment. The Appellant requested that the Central Register amend to unfounded and seal the indicated report. The Central Register did not do so, and a hearing was then scheduled in accordance with the requirements of Social Services Law (SSL) § 422(8)(b).
Pursuant to SSL § 422(8)(c), Valmonte v. Bane, 18 F.3d 992 (1994), Lee "TT" v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181 (1996), Walter W. v. New York State Department of Social Services, 235 A.D.2d 592, 651 N.Y.S.2d 726 (3rd Dept., 1997), mot. for lv. to app. den. 89 N.Y.2d 813, 658 N.Y.S.2d 243 (1997), and Local Commissioners Memorandum 97 LCM-58, this hearing decision will determine: (a) whether there is a fair preponderance of the evidence that the Appellant committed the maltreatment alleged, and (b) if so, whether such maltreatment is currently relevant and reasonably related to employment by a child care agency, to the adoption of a child or to the provision of foster care.
FINDINGS OF FACT
An opportunity to be heard having been afforded the parties and evidence having been considered, it is hereby found:
1. The Central Register contains an "indicated"" report (SCR Case Id #: 27378121, Intake Stage Id #: 32774452, dated 10/4/2019)) of maltreatment by the Appellant of his children, Gianni, born May 21, 2007 and Scarlett, born November 21, 2008.
2. The initial report alleged as follows: Narrative:
2
.
See Agency Exhibit 1
3. The initial report was investigated by the New York City Administration for
Children's Services (the Agency).
4. On December 3, 2019, the Agency determined to indicate the report against the
Appellant for “Inadequate Guardianship” of Gianni, and Scarlett. The Agency’s determination stated in as follows:
The allegation of Inadequate Guardianship against father for subject children are Substantiated. Throughout the investigation there was evidence found to substantiate the reported concerns. It appears reported concerns were raised from the issues surrounded [sic] the marital discord in the home. Verbal abuse took place in the presence of the subject children.
See Agency Exhibit 2
5. The Agency’s determination relied upon the claims of the Appellant’s estranged wif the mother ofl report was filed at asked Scarlett’s therapist to call in the report. (See Agency Exhibit 3, p.3)
6. The Agency’s caseworkers, upon whose casenotes the Agency relied, did not testify at the hearing.
7. The Appellant and his wife have had a very acrimonious relationship.
3
8. Both the Appellant and his wife argued with each other in the presence of the children.
The Agency determined to indicate the report against the Appellant, only.
In a phone call on October 25, 2019, therapist advised the Agency’s
caseworker as follows:
Source stated that parents have been in a strained marriage for over 20 years. At this point he feels the parents should divorce each other and start a new life without each other.
The children are exposed to the emotional abuse that both parents put each other through.
See Agency Exhibit 3, p. 48
11. The Agency presented no medical or other tangible evidence to support its argument that the Appellant specifically caused harm to , or placed them at risk of harm.
ISSUES
Is the finding that the Appellant maltreated and supported by a fair preponderance of the evidence?
If maltreatment is established, is such maltreatment relevant and reasonably related to employment by a child care agency, the adoption of a child or the provision of foster care?
DISCUSSION
The Agency did not present a fair preponderance of the evidence in support of the Central Register report regarding the Appellant. As the report of maltreatment will be amended to unfounded from the Central Register records, the question of whether the maltreatment alleged is relevant and reasonably related to child care issues needs not be
4
addressed.
Pursuant to SSL § 424, the Agency determined that the initial report of
maltreatment and abuse was "indicated." An "indicated report" means a report made "...if an investigation determines that some credible evidence of alleged abuse or maltreatment exists." SSL 412(12). A maltreated child is defined by 432.1(b) of the New York Code of Rules and Regulations (18 NYCRR 432.1[b]) as one who is less than eighteen years of age and, in pertinent part:
(1) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care:
(i) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part 1 of article 65 of the Education Law, or medical, dental, optometric or surgical care, though financially able to do so or offered financial or other reasonable means to do so; or
(ii) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the parent or other person legally responsible is voluntarily and regularly participating in a rehabilitative program, evidence that the parent or other person legally responsible has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not alone establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (1) of this subdivision; or
(2) who has been abandoned by his parents or other person legally responsible for his care; or
(3) who has had serious physical injury inflicted upon him by other than accidental means.
5
The Agency has the burden of proving the maltreatment cited in the indicated report by a fair preponderance of evidence. See 97 LCM-58, supra. To meet this burden, it is required to prove that: (1) 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 of the child's condition.
If the Agency meets its burden, the indicated report will not be expunged or amended to unfounded. It is subject to disclosure to licensing and provider agencies making inquiries concerning the Appellant pursuant to SSL § 424-a.
Pursuant to SSL § 422 (8)(c)(ii) it must then be determined at the hearing whether the acts of maltreatment cited in the report are relevant and reasonably related to Appellant’s employment in childcare and to her provision of foster or adoptive care. If they are so relevant and reasonably related, the Central Register will inform inquiring licensing and provider agencies that the Appellant is the subject of an indicated child abuse or maltreatment report. If they are found not to be relevant or reasonably related, the Central Register is precluded from making such a disclosure.
If the Agency fails to meet its burden of proving the alleged maltreatment or abuse by a fair preponderance of evidence, the indicated report must be or amended to unfounded. Its existence will not be disclosed to licensing and provider agencies.
It is established that hearsay is admissible in administrative proceedings and that an administrative determination can be based solely upon hearsay evidence under the appropriate circumstances. People ex rel Vega v. Smith, 66 N.Y. 2d 130 (1985); Eagle v.
6
Patterson, 57 N.Y.2d 831 (1982); 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176 (1978). Such evidence must be carefully scrutinized and weight attributed to it depending upon its degree of apparent reliability. Factors to be considered in evaluating the reliability of hearsay include the circumstances under which the statements were initially made, information bearing upon the credibility of the utterer and his or her motive to fabricate, and the consistency and degree of inherent believability of the statements.
The evidentiary standard of “some credible evidence” is defined in by the applicable regulations as “evidence that is worthy and capable of being believed.” 18 NYCRR 434.10(h). This evidentiary standard is lower than the “fair preponderance of the evidence” standard applicable in this decision, and in many legal proceedings, including many Family Court proceedings. The evidentiary standard of “fair preponderance of the evidence” is defined in the OCFS regulations as “evidence which outweighs other evidence which is offered to oppose it.” 18 NYCRR 434.10(i).
Under the “fair preponderance of evidence” standard, review of the hearsay evidence presented led the Administrative Law Judge to conclude that the hearsay evidence presented by the Agency was insufficient to meet the fair preponderance standard.
The Agency’s determination relied upon of claims of the Appellant’s estranged wife, , the mother of , that the Appellant acts in a threatening manner in the presence of their children. The Agency also argued that statements of Scarlett’s therapist support the determination to indicate the case against the Appellant.
The therapist described the Appellant’s and his wife’s marriage as a “strained marriage for over 20 years”, recommending that they end it. The therapist also commented that “the
7
children are exposed to the emotional abuse that both parents put each other through”. (See Fact-Finding # 10, above) However, noticeably absent was any specific evidence of a dimunition in either child’s functioning, as a result of the Appellant’s conduct, alone.
Section 1012 of the Family Court Act which is the basis for the definitions of abuse and maltreatment found in Section 432 of the Department’s regulations, provides in subdivision (h) that:
“Impairment of emotional health” and “impairment of mental or emotional condition” includes a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.”
Thus, to establish emotional neglect, the Agency must present more than “mere speculation” to support its conclusion that the Appellant’s behavior emotionally impaired or created imminent risk that the child’s condition would be emotionally impaired. (See Besharov, “Practice Commentary to Section 1012 of the Family Court Act, 1985 Supplementary Practice Commentaries”, McKinney’s Consolidated Laws of New York.)
As noted in the Child Protective Services Program Manual, (NYDSS Division of Family and Children Services, 1995, Appendix Section C, page 21) assessment of the child's emotional health should be conducted by a "qualified professional" and the "psychological or psychiatric evaluation" should specify the level of the child's dysfunction, and "to a reasonable medical certainty" whether the dysfunction is causally linked to the acts or omissions of the parent. No such evidence was presented in this case.
In sum, the record lacks reliable evidence to show tha were
harmed or placed at risk of harm as a result of the Appellant’s conduct. The Agency has 8
failed to establish that the conduct described herein, rises to the level of maltreatment contemplated by the applicable regulations. Under the circumstances of this case, the Appellant has not been shown by a fair preponderance of the evidence to have caused or threatened impairment to Gianni’s or Scarlett’s physical or emotional conditions or deprived them of the minimum degree of care to which they were entitled.
Maltreatment has not been established by a preponderance of the evidence, and consequently, the record of the report should be amended from indicated to unfounded and sealed.
DECISION:
The request that the indicated report (SCR Case Id #: 27378121, Intake Stage Id #: 32774452, dated 10/4/2019) be amended to unfounded and sealed is granted. The Central Register and the Agency are directed to so amend the report and to take the actions required by SSL § 422(9).
This decision is made by Sue Novick Wasko, Bureau of Special Hearings, who has been designated by the Commissioner to make such decisions.
DATED: New York, New York April 12, 2022
9
Comments
Post a Comment