| Matter of Washington v New York State Off. of Children & FamilyServs. |
| 2008 NY Slip Op 08064 [55 AD3d 1117] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of Anthony Washington et al., Petitioners, v New YorkState Office of Children and Family Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which deniedpetitioners' request to amend and seal an indicated report of child maltreatment.
Petitioners Anthony Washington and Joanne Washington (hereinafter collectively referred to aspetitioners) were the foster parents of three siblings (hereinafter the Doe children). In December 2004,the New York State Central Register of Child Abuse and Maltreatment received a report that theWashingtons' adult daughter, petitioner Janelle Washington (hereinafter Washington), had abused theDoe children in her parents' home in Albany County. The report was initially indicated, but, following achallenge, it was amended as unfounded and sealed based on a jurisdictional determination thatWashington, who apparently did not reside with her parents, was not a "[p]erson legally responsiblefor [the children]" (18 NYCRR 432.1 [c]).
In February 2005, another report was made regarding possible maltreatment of the Doe [*2]children, which, among other things, alleged inadequate guardianship bypetitioners and Washington, and accused Washington of striking the Doe children. After aninvestigation, the 2005 report was indicated against petitioners and Washington for inadequateguardianship. Subsequently, these parties requested that the 2005 report be amended as unfounded andsealed, which request was denied, prompting petitioners and Washington to commence this CPLRarticle 78 proceeding.
Petitioners and Washington maintain that respondent was precluded by the doctrines of collateralestoppel or res judicata from proceeding against them based upon the contents of the 2004 reportwhich was determined to be unfounded. Prefatorily, we note that inasmuch as respondent indicates thatit will amend the 2005 report to reflect that Washington is not an indicated subject thereof, thedetermination will be modified to that extent, leaving only the issues concerning petitioners to beresolved herein.
Petitioners cannot prevail on their collateral estoppel or res judicata arguments since they failed toraise these claims during the administrative process, therefore, they are "not preserved for our review"(Matter of Fleming v Goord, 28 AD3d972, 973 [2006]; see Matter of Khan v New York State Dept. of Health, 96 NY2d 879,880 [2001]). In any event, even if the issues were properly before us, we would find themunpersuasive. Notably, both doctrines require identity of parties and, inasmuch as petitioners in thiscase were not the subjects of the 2004 report and no findings were made against them, neithercollateral estoppel nor res judicata applies (see generally Parker v Blauvelt Volunteer Fire Co.,93 NY2d 343, 347, 349 [1999]).
Turning to the merits, we conclude that there is substantial evidence to support the determinationbased on the 2005 report that the Doe children's "physical, mental or emotional condition [was]impaired or [was] in imminent danger of becoming impaired as a result of the failure of [petitioners] toexercise a minimum degree of care . . . in providing the[m] . . . with propersupervision or guardianship" (18 NYCRR 432.1 [b] [1] [ii]; see Matter of Tonette E. v New York State Off. of Children & FamilyServs., 25 AD3d 994, 995 [2006]; Matter of Brauch v Johnson, 19 AD3d 799, 800 [2005]). Here, therecord indicates that prior complaints regarding Washington's alleged improper conduct towards thechildren in her parents' care resulted in an agreement by petitioners that they would not allowWashington to be left alone with them. Nevertheless, evidence was produced that, following thisagreement, Washington was often alone with the Doe children while petitioners were at work or indifferent parts of the house. There was also proof that Washington repeatedly struck those children.While petitioners and Washington testified to the contrary, their testimonies were found not credible.Under the circumstances, we find no basis to disturb those credibility determinations (see Matter of Stephen C. v Johnson, 39AD3d 932, 933-934 [2007], lv denied 9 NY3d 804 [2007]).
The remaining issues set forth by petitioners have been examined and found to be without merit.
Mercure, Peters, Carpinello and Kavanagh, JJ., concur. Adjudged that the determination ismodified, on the law, without costs, by amending the subject indicated report to show that it wasunfounded as against petitioner Janelle Washington; record sealed to that extent; and, as so modified,confirmed.