Opinion
5216 Index 100618/16
01-18-2018
In re Luis VELEZ, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN, et al., Respondents.
Law Offices of Frank J. Livoti, P.C., Garden City (Frank J. Livoti of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York (Mark S. Grube of counsel), for respondents.
Law Offices of Frank J. Livoti, P.C., Garden City (Frank J. Livoti of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York (Mark S. Grube of counsel), for respondents.
Friedman, J.P., Kahn, Gesmer, Kern, Moulton, JJ.
Amended decision after hearing, of respondent New York State Office of Children and Family Services (OCFS), dated June 3, 2016, which found petitioner to have committed maltreatment of a child, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR 7804(g) (transferred to this Court by order of the Supreme Court, New York County [Lucy Billings, J.], entered November 21, 2016), dismissed, without costs.
The determination of OCFS is supported by substantial evidence (see Matter of Consolidated Edison Co. of N.Y. v. New York State Div. of Human Rights , 77 N.Y.2d 411, 417, 568 N.Y.S.2d 569, 570 N.E.2d 217 [1991] ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights , 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ) which included the statements of the subject child and the child's mother, reflected in the investigating caseworker's progress notes, indicating that petitioner had struck the mother and pulled her hair while he was driving and the child was riding in the back seat. The incident caused the child to become afraid and cry (see Matter of Brown v. Velez , 153 A.D.3d 517, 60 N.Y.S.3d 218 (2d Dept. 2017] ), and petitioner admittedly had swerved the car and feared an accident ( 18 NYCRR § 432.1 [b][1] ).
OCFS properly credited the agency's investigatory records containing the mother's and the child's statements, which were consistent with each other, as well as with the mother's statements to emergency room personnel and the police (see Matter of Parker v. Carrion , 90 A.D.3d 512, 935 N.Y.S.2d 14 [1st Dept. 2011] ). OCFS was not required to credit petitioner's version of events over that of the mother's and the child's (see Matter of Berenhaus v. Ward , 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ; compare e.g. Matter of Veronica C. v. Carrion , 55 A.D.3d 411, 866 N.Y.S.2d 49 [1st Dept. 2008] ; Matter of Gerald HH. v. Carrion , 130 A.D.3d 1174 [3d Dept. 2015] ). Further, contrary to petitioner's argument, OCFS was entitled to find maltreatment even where the evidence presented at the criminal trial did not result in conviction (see Matter of Kordasiewicz v. Erie County Dept. of Social Servs. , 119 A.D.3d 1425, 1426, 990 N.Y.S.2d 750 [4th Dept. 2014] ).
Finally, substantial evidence supports OCFS's determination that petitioner's maltreatment of the child is "relevant and reasonably related" to his employment at a childcare agency, or his potential adoption of a child or his provision of foster care (see Social Services Law § 422[8][c][ii] ). Petitioner's refusal to take responsibility for his actions, acknowledge that he endangered the child, or appreciate the seriousness of his conduct, demonstrated that he is likely to commit maltreatment again—a factor reasonably related to his potential employment in the childcare field (see Matter of Garzon v. New York State Off. of Children & Family Servs. , 85 A.D.3d 1603, 1604, 924 N.Y.S.2d 904 [4th Dept. 2011] ; see also Matter of Boyd v. Perales , 170 A.D.2d 245, 565 N.Y.S.2d 518 [1st Dept. 1991], l v denied 78 N.Y.2d 851, 573 N.Y.S.2d 69, 577 N.E.2d 60 [1991] ). Such information is provided to social workers investigating or treating child abuse or maltreatment, and to prospective employers, licensing agencies and adoption and foster-care agencies (see Matter of Lee TT. v. Dowling , 87 N.Y.2d 699, 703, 642 N.Y.S.2d 181, 664 N.E.2d 1243 [1996] ).
We have considered petitioner's remaining arguments and find them unavailing.