IN RE: VERONICA C. (2008)

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 law and the facts, the petition in this CPLR article 78 proceeding (transferred to this Court by order of Supreme 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 was sufficient evidence that the child suffered an injury that would not ordinarily occur without a failure to supervise him (see Family Court Act § 1046[a][ii] ), there was no evidence to demonstrate how or when the injury occurred, and it could not be determined on this record who the child's caretaker was at the time of the injury.   Since the evidence at the hearing established that both the child's parents and petitioner acted as the caretakers within the 24 hours preceding the diagnosis of multiple lacerations to his hands, ACS failed to establish a prima facie case against anyone in particular (Matter of Tony B., 41 A.D.3d 1242, 1243, 841 N.Y.S.2d 419 [2007] ).

The only evidence submitted at the hearing to support the conclusion that the injury occurred while the child was in petitioner's care was hearsay.   Specifically, the evidence consisted of case notes provided by the Administration for Children's Services, which contained an unsworn account from the child's father. Notably, neither the ACS caseworker nor the father testified at the hearing.

While it was proper for respondents to rely on hearsay evidence that is relevant and probative, on this record, such hearsay did not constitute substantial evidence of child maltreatment (see Matter of Hattie G. v. Monroe County Dept. of Social Servs., 48 A.D.3d 1292, 1294, 851 N.Y.S.2d 324 [2008] ).   Indeed, since ACS's hearsay evidence was seriously 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 A.D.2d 625, 626, 684 N.Y.S.2d 251 [1999];  Matter of Diotte v. Fahey, 97 A.D.2d 653, 469 N.Y.S.2d 191 [1983] ).   Furthermore, the Administrative Law Judge's decision to credit the father's account was improper because there was no basis for assessing his credibility.

By contrast, petitioner's hearing testimony established that she never noticed any injury to the child's hands, and stated that when she released him to his father he was uninjured.   There was no discernible basis for finding her account incredible, and the ALJ inexplicably gave no weight to the evidence of her impeccable record as a well-trained, dedicated and highly regarded childcare provider (see Jacqueline G. v. Peters, 292 A.D.2d 785, 786, 740 N.Y.S.2d 541 [2002] ).