IN RE: Sabrina BARNES (2009)

Proceeding pursuant to CPLR article 78 to review a determination of David Molik, designee of the Commissioner of the New York State Office of Children and Family Services, dated September 13, 2007, which, after a hearing, denied the petitioner's application to amend a report maintained by the respondent New York State Central Register of Child Abuse and Maltreatment as unfounded and to seal the report.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence (see Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181, 664 N.E.2d 1243;  Matter of Blythe v. Carrion, 63 A.D.3d 1059, 880 N.Y.S.2d 555).   Judicial review of a determination that such a report has been substantiated is limited to whether the determination is supported by substantial evidence in the record (see Matter of Blythe v. Carrion, 63 A.D.3d at 1060, 880 N.Y.S.2d 555;  Matter of Valentine v. New York State Cent. Register of Child Abusers & Maltreatment, 37 A.D.3d 249, 250, 830 N.Y.S.2d 83).  “Substantial evidence has been defined as ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Joseph v. Johnson, 27 A.D.3d 563, 563, 810 N.Y.S.2d 346, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).  “It has also been held that substantial evidence is ․ more than mere speculation or conjecture, but less than a preponderance of the evidence” (Matter of Joseph v. Johnson, 27 A.D.3d at 563, 810 N.Y.S.2d 346, citing 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d at 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   In this case, there is substantial evidence in the record to support the determination of David Molik, designee of the Commissioner of the New York State Office of Children and Family Services (hereinafter the OCFS), that the subject children's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, as a result of the petitioner's failure to exercise a minimum degree of care in providing proper supervision or guardianship (see Matter of Joseph v. Johnson, 27 A.D.3d 563, 810 N.Y.S.2d 346;  Matter of Fernald v. Johnson, 305 A.D.2d 503, 759 N.Y.S.2d 529;  see also Matter of Karyn D., 282 A.D.2d 746, 746-747, 724 N.Y.S.2d 335;  Matter of Jesse DD., 223 A.D.2d 929, 931-932, 636 N.Y.S.2d 925;  Matter of Moises D., 128 A.D.2d 775, 778, 513 N.Y.S.2d 476;  Social Services Law § 412[2][a][i];  Family Ct. Act § 1012[f][i][B] ).  Accordingly, we dismiss the proceeding on the merits insofar as asserted against the OCFS and the New York State Central Register of Child Abuse and Maltreatment.

 Additionally, the proceeding must be dismissed insofar as asserted against the respondent Westchester County Department of Social Services, as it is not a proper party to this proceeding (see Matter of Wittie v. State of N.Y. Off. of Children & Family Servs., 55 A.D.3d 842, 843, 866 N.Y.S.2d 692).