Opinion
July 12, 1996
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Pine, J.P., Lawton, Wesley, Balio and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: In its determination following a fair hearing, respondent New York State Department of Social Services upheld the removal of two children from petitioners' foster care by the Onondaga County Department of Social Services. That determination is supported by substantial evidence and is neither arbitrary nor capricious ( see, Matter of O'Rourke v. Kirby, 54 N.Y.2d 8, 14; Matter of Theel v. Erie County Dept. of Social Servs., 209 A.D.2d 1039; Matter of Jane D. v. Bane, 192 A.D.2d 530, 531, appeal dismissed and lv denied 82 N.Y.2d 702). Medical proof was adduced at the fair hearing that one of the children had been sexually abused. Although petitioners were not accused of having committed the abuse or even having knowledge of it, there was proof at the fair hearing that petitioners may have left both children in the care of either an older foster child or their recently adopted 13-year-old son, in violation of agency rules and regulations.
Contrary to the contention of petitioners, the removal of the children from their foster care does not constitute a "penalty" assessed against them. Additionally, the propriety of the decertification and closing of petitioners' foster care home was not an issue in the instant proceeding and is, therefore, not properly before us. We have reviewed the remaining contentions of petitioners and conclude that they are lacking in merit.