THE FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE.

The First Department, over a two-justice dissent, determined the administrative law judge’s (ALJ’s) finding that petitioner’s (mother’s) child was in imminent danger of harm was not supported by the evidence. Petitioner was caught shoplifting (wearing clothes under her clothes). At the time her five-year-old son was with her, and he too was wearing clothes under his clothes. The shoplifting charges were reduced to a violation and the record was sealed. Petitioner had no other contact with the criminal justice system. The child was deemed well cared for and happy. The issue was whether the petitioner’s name should be maintained on a list (“indicated” child abuse) which will make it difficult for her to continue her career in child care:

Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agency determines after investigation that there is “some credible evidence of the alleged abuse or maltreatment” (Social Services Law § 412[7]). All childcare agencies and other agencies licensed by the state to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports (Social Services Law § 424-a). An agency may choose to hire or approve persons on the list of those with indicated reports, but if it does, the agency must “maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate” for approval (Social Services Law § 424-a[2][a]). The names of subjects of indicated reports remain on the list until 10 years after the youngest child referred to in the report turns 18, unless earlier expunged (Social Services Law § 422[6]). * * *

… [T]he ALJ’s determination that petitioner’s actions were reasonably related to a position in childcare, the field of study petitioner is pursuing, was not rational. The legal standards for determining whether a child is maltreated … are repeated in the Guidelines. The ALJ failed to set forth his consideration of the relevant Guidelines for making such a determination, many of which, as the motion court pointed out, weighed in petitioner’s favor, including factors 2 (the seriousness and extent of any injury to child), 3 (harmful effect on the child of the subject’s actions or inactions), 5 (time since most recent incident of maltreatment), 6 (number of indicated incidents of abuse or maltreatment), 8(a) (whether the acts have been repeated), and 10 (whether reported behavior involved serious injury to, or death of, a child). The single factor the ALJ discussed, factor 8(b), “any information produced . . . in regard to . . . rehabilitation,” failed to consider that all of the evidence at the hearing indicated that petitioner has never been convicted of any crime…; no further [shoplifting] incidents had occurred; petitioner had no prior history with ACS (NYC Administration for Children’s Services); all of her family members interviewed expressed surprise at her behavior on the occasion leading to the report; and she told the caseworker she had “learned her lesson.” Matter of Natasha W. v New York State Off. of Children & Family Servs., 2016 NY Slip Op 08099, 1st Dept 12-1-16

FAMILY LAW (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/SOCIAL SERVICES LAW (CHILD ABUSE, FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD ABUSE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD CARE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)