| Matter of Corrigan v New York State Off. of Children &Family Servs. |
| 2015 NY Slip Op 05473 [129 AD3d 1073] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Mariah Corrigan et al.,Appellants, v New York State Office of Children and Family Services et al.,Respondents. |
Law Office of Peter D. Hoffman, P.C., Katonah, N.Y. (Catherine Laney of counsel),for appellants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Claude S. Platton andValerie Figueredo of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Officeof Children and Family Services dated August 27, 2013, denying the petitioners' requestthat certain records be expunged, the petitioners appeal from so much of an order andjudgment (one paper) of the Supreme Court, Westchester County (Warhit, J.), enteredApril 3, 2014, as denied the petition and dismissed the proceeding.
Ordered that the order and judgment is affirmed insofar as appealed from, withcosts.
In February 2013, the petitioners were the subject of a report made to the StatewideCentral Register of Child Abuse and Maltreatment (hereinafter the SCR). The report wastransmitted by the Office of Children and Family Services (hereinafter OCFS) to theWestchester County Department of Social Services, Office of Child Protective Services(hereinafter CPS) (see Social Services Law §§ 422 [2] [a];427-a [4] [a]). CPS thereafter determined to assign the report to the Family AssessmentResponse (hereinafter FAR) track, a differential response program implemented by CPS,rather than to engage "in a traditional child protective services investigation" (SocialServices Law § 427-a [4] [d] [i]; see 18 NYCRR 431.13). After theFAR case was closed in March 2013, the petitioners requested that OCFS expunge thereport and records created as part of the FAR case. OCFS determined that there was nostatutory authority permitting it to grant the petitioner's request to expunge the report orrecords created under the FAR case.
The petitioners subsequently commenced the instant proceeding pursuant to CPLRarticle 78 to review that determination, contending that OCFS's denial of their request forexpunction was affected by an error of law, arbitrary and capricious, or an abuse ofdiscretion. OCFS moved to dismiss the proceeding pursuant to CPLR 7804 (f) and 3211(a) (7). The Supreme Court denied the motion but, reaching the merits of the petition,denied the petition and dismissed the proceeding.
Initially, since "it is clear that no dispute as to the facts exists and no prejudice willresult from the failure to require an answer," under the circumstances of this case, it isappropriate [*2]to reach the merits of the petition(Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs.of Nassau County, 63 NY2d 100, 102 [1984]; see Matter of Kickertz v New York Univ., 25 NY3d 942[2015]; Matter of S & RDev. Estates, LLC v Feiner, 112 AD3d 945, 947 [2013]; Matter of Shellfish, Inc. v NewYork State Dept. of Envtl. Conservation, 76 AD3d 975, 978 [2010]), even in theabsence of an answer or the full administrative record.
Prior to 2007, all reports transmitted by the SCR to a local child protective agencywere investigated by the agency to determine whether they were "indicated" (SocialServices Law § 412 [7])—i.e., supported by "some credibleevidence" (id.) that child abuse or maltreatment occurred—or "unfounded"(Social Services Law § 412 [6]; see Social Services§ 424 [7]; Matter of Lee TT. v Dowling, 87 NY2d 699, 704 [1996];see also Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 452 at 10-13).Where a report is subject to such an investigation, and is determined to be "unfounded,"the report must be "legally sealed" (Social Services Law § 422 [5] [a])."Legally sealed unfounded reports shall be expunged ten years after [their] receipt"(Social Services Law § 422 [5] [b]). However, pursuant to Social ServicesLaw § 422 (5) (c): "[OCFS] may, in its discretion, grant a request toexpunge an unfounded report where: (i) the source of the report was convicted of aviolation of [Penal Law § 240.55 (3)] in regard to such report; or (ii) thesubject of the report presents clear and convincing evidence that affirmatively refutes theallegation of abuse or maltreatment."
In 2007, the legislature amended the Social Services Law to permit local socialservices districts authorized by OCFS to implement "differential responses to reports ofchild abuse and maltreatment" by creating a FAR track, also referred to as a familyassessment services track, "as an alternative means of addressing certain mattersotherwise investigated as allegations of child abuse or maltreatment" (Social ServicesLaw § 427-a; see L 2007, ch 452; L 2011, ch 45). Where such aprogram has been implemented, and the local child protective agency deems itappropriate to assign a particular SCR report to the FAR track, the agency does notinvestigate the validity of the allegations of abuse or maltreatment; rather, it, inter alia,assesses the family's "strengths, concerns and needs," and provides services, wherenecessary (Social Services Law § 427-a [4] [d] [ii]; see SocialServices Law § 427-a [4] [c], [d] [iv]; see also Senate IntroducerMem in Support, Bill Jacket, L 2007, ch 452 at 10-13).
As relevant here, where a report has been assigned to the FAR track, the local childprotective agency is required to so inform the SCR and request that the report beclassified as a FAR case and "legally sealed" (Social Services Law § 427-a[4] [c] [i]; see Social Services Law § 422 [5-a]). Pursuant to SocialServices Law § 427-a, "[s]uch sealed reports shall be maintained at the[SCR] for ten years after the report was made" (Social Services Law§ 427-a [4] [c] [i]). Similarly, that statute requires that "[r]ecords createdunder the [FAR track] shall be maintained for ten years after the report initiating the caseat the [SCR] was made" (Social Services Law § 427-a [5] [c]).
The petitioners argue, first, that OCFS's determination that it was not authorized togrant the petitioner's request to expunge the FAR report and records upon the closing oftheir FAR case was arbitrary and capricious because Social Services Law§ 427-a is "silent" as to whether such early expunction is permitted.Contrary to the petitioners' contention, Social Services Law § 427-a is not"silent" on the matter of expunction of FAR reports and records. Rather, it expresslyrequires that FAR reports and records be maintained for 10 years after the initial report ismade (see Social Services Law § 427-a [4] [c] [i]; [5] [c]). Thus, asOCFS correctly determined, pursuant to Social Services Law § 427-a, FARreports and records are only subject to expunction 10 years after the initial report is madeto the SCR, and not before.
Further, contrary to the petitioners' suggestion, the existence of an early expunctionprovision in Social Services Law § 422 supports, rather than detracts from,this interpretation. In this respect, the failure of the legislature to include an early expunction provision in Social Services Law§ 427-a, when it had, prior to the enactment of Social Services Law§ 427-a, included such a provision in a statute within the same statutoryscheme, "should be construed as indicating that the [*3]exclusion was intentional" (Matter of Matthew L., 65AD3d 315, 321 [2009]; see McKinney's Cons Laws of NY, Book 1, Statutes§ 74; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank ofCommerce, 21 NY3d 55, 62 [2013]; People v Tychanski, 78 NY2d 909,911 [1991]; Pajak v Pajak, 56 NY2d 394, 397 [1982]).
Contrary to the petitioners' further contention, the interpretation of Social ServicesLaw § 427-a as not incorporating the early expunction process set forth inSocial Services Law § 422 (5) (c) does not conflict with the legislativeintent of section 427-a. As explained in the relevant legislative history, "[t]raditionally,CPS is required to respond to reports of child abuse and maltreatment with a standardinvestigation that is narrowly focused on determining whether a specific incident ofabuse actually occurred and if the child is at risk" (Senate Introducer Mem in Support,Bill Jacket, L 2007, ch 452 at 11). "The focus of the CPS system on investigation ofabuse and maltreatment has created an environment that, for many families, castssuspicion over any offer of services or service referrals" (id.). Implementation ofa differential response, in the form of a FAR track, "permits a social service district toconduct an assessment of the family's needs and strengths rather than investigate thevalidity of the allegations in a child abuse and maltreatment report" (Assembly IntroducerMem in Support, Bill Jacket, L 2011, ch 45 at 6). "The expectation of FAR is thatfamilies will be more likely to seek necessary help when a less adversarial, lessthreatening, approach is taken" (id.).
The early expunction provision in Social Services Law § 422 permitssuch relief where the source of an SCR report was convicted of falsely reporting anincident in the second degree (see Penal Law § 240.55 [3]) or where"the subject of the report presents clear and convincing evidence that affirmativelyrefutes the allegation of abuse or maltreatment" (Social Services Law § 422[5] [c]). Thus, the early expunction provision of Social Services Law § 422is focused on the falsity of the report of abuse or maltreatment. Since the stated purposein enacting the differential response approach implemented by section 427-a was toavoid any consideration of the truth or falsity of the allegations of abuse or maltreatmentin appropriate cases, it stands to reason that the legislature would not have deemed it necessary or appropriate to provide an avenue forearly expunction of reports and records in those cases assigned to the FAR track basedupon a showing of the probable falsity of the allegations underlying a SCR report.Moreover, the petitioners have not identified any criteria other than those set forth inSocial Services Law § 422 (5) (c) relating to the falsity of the allegationsfor determining when a FAR report and FAR records should be expunged prior to thestatutory 10-year time frame.
Accordingly, as the Supreme Court correctly concluded, OCFS's determination that itwas not authorized by statute to grant the petitioners' request for early expunction wasnot affected by an error of law, arbitrary and capricious, or an abuse of discretion.
The petitioners' contentions regarding the notice they received from CPS withrespect to the FAR track and regarding certain alleged violations of the Penal Lawcommitted by a nonparty relate to matters that were not the subject of the challengeddetermination.
The petitioners' remaining contentions are either without merit or improperly raisedfor the first time on appeal.
Accordingly, the Supreme Court properly denied the petition and dismissed theproceeding. Rivera, J.P., Skelos, Roman and LaSalle, JJ., concur.