| Matter of Veronica C. v Carri�n |
| 2008 NY Slip Op 07973 [55 AD3d 411] |
| October 21, 2008 |
| Appellate Division, First Department |
| In the Matter of Veronica C., Petitioner, v Gladys Carri�n,as Commissioner of the New York State Office of Children and Family Services, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York (David Lawrence III of counsel), forrespondents.
Decision after hearing on behalf of respondent Commissioner, dated October 4, 2007,finding petitioner to have committed maltreatment of a child, unanimously annulled, on the lawand the facts, the petition in this CPLR article 78 proceeding (transferred to this Court by order ofSupreme Court, New York County [Walter B. Tolub, J.], entered May 12, 2008), granted,without costs, and the report of maltreatment amended to "unfounded" and sealed.
The administrative determination was not supported by substantial evidence. While there wassufficient evidence that the child suffered an injury that would not ordinarily occur without afailure to supervise him (see Family Ct Act § 1046 [a] [ii]), there was no evidenceto demonstrate how or when the injury occurred, and it could not be determined on this recordwho the child's caretaker was at the time of the injury. Since the evidence at the hearingestablished that both the child's parents and petitioner acted as the caretakers within the 24 hourspreceding the diagnosis of multiple lacerations to his hands, Administration for Children'sServices (ACS) failed to establish a prima facie case against anyone in particular (Matter ofTony B., 41 AD3d 1242, 1243 [2007]).
The only evidence submitted at the hearing to support the conclusion that the injury occurredwhile the child was in petitioner's care was hearsay. Specifically, the evidence consisted of casenotes provided by Administration for Children's Services, which contained an unsworn accountfrom the child's father. Notably, neither the ACS caseworker nor the father testified at thehearing.
While it was proper for respondents to rely on hearsay evidence that is relevant andprobative, on this record, such hearsay did not constitute substantial evidence of childmaltreatment (see Matter of Hattie G. v Monroe County Dept. of Social Servs., Children'sServs. Unit, 48 AD3d 1292, 1294 [2008]). Indeed, since ACS's hearsay evidence wasseriously controverted by petitioner's sworn testimony, which was subject to cross-examination,it did not amount to the substantial evidence necessary to support respondents' determination(see Matter of Ridge, Inc. v New York State Liq. Auth., 257 AD2d 625, 626 [1999];Matter of Diotte v Fahey, 97 AD2d 653 [1983]). Furthermore, the Administrative LawJudge's (ALJ) decision to credit the father's account was [*2]improper because there was no basis for assessing his credibility.
By contrast, petitioner's hearing testimony established that she never noticed any injury to thechild's hands, and stated that when she released him to his father he was uninjured. There was nodiscernible basis for finding her account incredible, and the ALJ inexplicably gave no weight tothe evidence of her impeccable record as a well-trained, dedicated and highly regarded childcareprovider (see Matter of Jacqueline G. v Peters, 292 AD2d 785, 786 [2002]).Concur—Tom, J.P., Gonzalez, Williams, Moskowitz and Freedman, JJ.