IN RE: Karen FEBLES (2009)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Office of Children and Family Services dated February 12, 2008, which, after a hearing, denied the petitioner's request to amend and seal a report maintained in the New York State Central Register of Child Abuse and Maltreatment.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

At an administrative expungement hearing, a report of child abuse or maltreatment must be established by a fair preponderance of the evidence (see Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 703, 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; Matter of Valentine v. New York State Cent. Register of Child Abusers & Maltreatment, 37 A.D.3d 249, 830 N.Y.S.2d 83). To establish that maltreatment occurred, the agency must show that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent's failure to exercise a minimum degree of care (see 18 NYCRR 432.1[b][1]; Matter of Tonette E. v. New York State Off. of Children & Family Servs., 25 A.D.3d 994, 807 N.Y.S.2d 694; Matter of Matthew WW. v. Johnson, 20 A.D.3d 669, 671, 799 N.Y.S.2d 594).

The record contains a fair preponderance of the evidence that the petitioner's failure to provide her seven-year-old son with proper supervision placed the physical condition of her son in imminent danger of becoming impaired (see 18 NYCRR 432.1[b][1][ii] ). This evidence consists of the investigation progress notes and investigation summary submitted by the respondent Dutchess County Department of Social Services Child Protective Services (hereinafter CPS) which indicated that the child, a Dutchess County sheriff, and a witness all reported that the child was left alone in a running vehicle for approximately 20 minutes while the petitioner went into a store. Although the petitioner denied that the vehicle was running and testified that she checked on her son twice during the 10 to 15 minutes her son was alone in the vehicle, the petitioner's testimony created a credibility issue which, when considered in the context of the entire record, was properly resolved against her (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193; Matter of Jeremias v. Sander, 177 A.D.2d 488, 489, 575 N.Y.S.2d 1019; see also Matter of Jeannette LL. v. Johnson, 2 A.D.3d 1261, 1263, 770 N.Y.S.2d 209; Matter of D'Ambrosio v. Suffolk County Dept. of Social Servs., 286 A.D.2d 387, 728 N.Y.S.2d 725). Moreover, while the proof submitted by CPS constituted hearsay, it was sufficient to serve as the basis for the determination that the petitioner committed an act of maltreatment (see Matter of Gonzalez v. Suffolk County Dept. of Social Servs. Child Protective Servs., 54 A.D.3d 341, 861 N.Y.S.2d 595; Matter of Frederick G. v. New York State Cent. Register of Child Abuse & Maltreatment, 53 A.D.3d 1075, 861 N.Y.S.2d 554; Matter of Scaccia v. Martinez, 9 A.D.3d 882, 883-884, 779 N.Y.S.2d 680).

The petitioner's remaining contention is without merit.