IN RE: Angelina VAZQUEZ (2025)

Determination of respondent New York State Office of Children and Family Services (OCFS), dated June 1, 2020, which, after a hearing, found that petitioner committed maltreatment of her child, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Arlene P. Bluth, J.], entered on or about April 17, 2024), dismissed, without costs.

Respondent OCFS's determination that petitioner educationally neglected her child, H., is supported by substantial evidence (see CPLR 7803[4]).  H.’s attendance records demonstrate that he was absent 37 days and late to school 27 days in the first term of the 2017–2018 school year (see Matter of Olivia J.R. [Marianette R.], 168 A.D.3d 433, 434, 91 N.Y.S.3d 397 [1st Dept. 2019];  Matter of Annalize P. [Angie D.], 78 A.D.3d 413, 414, 911 N.Y.S.2d 291 [1st Dept. 2010]).  Moreover, H.’s promotion was in doubt, as his absences and tardiness interfered with his ability to receive the in-school services that were in place to address his developmental delays (see Matter of Kyeley V. [Antoinette V.], 160 A.D.3d 468, 468, 71 N.Y.S.3d 510 [1st Dept. 2018];  Matter of Jonathan M. [Gilda L.], 139 A.D.3d 438, 438–439, 29 N.Y.S.3d 182 [1st Dept. 2016]).  There is no basis to disturb the ALJ's finding that petitioner's justification for these absences – H.’s myriad health problems – was not credible (see Matter of Jaquan F. [Alexis F.], 120 A.D.3d 1113, 1114, 993 N.Y.S.2d 18 [1st Dept. 2014]).

Contrary to petitioner's contentions, judicial estoppel based on the article 10 petition respondent New York City Administration for Children's Services (ACS) brought against her is inapplicable because ACS did not obtain a judgment in its favor in that proceeding;  rather, it voluntarily withdrew its petition without prejudice (see e.g. Nationstar Mtge. LLC v. Cogen, 159 A.D.3d 428, 428–429, 72 N.Y.S.3d 48 [1st Dept. 2018]).  Finally, the amendments to Social Services Law §§ 422(8)(b)(ii) and 424–a(1)(e) do not apply retroactively to OCFS's determinations, such as this one, that were rendered prior to 2022 (see Matter of Jeter v. Poole, 43 N.Y.3d 241, 250–253, 232 N.Y.S.3d 776, 259 N.E.3d 454 [2024]).