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PETITIONER-MOTHER’S APPLICATION TO HAVE THE MALTREATMENT FINDING DEEMED UNFOUNDED AND EXPUNGED PROPERLY DENIED; MOTHER WOULD NOT ALLOW HER 16-YEAR-OLD DAUGHTER INTO THE HOME; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, affirmed the NYS Office of Children and Family Services’ (OCFS’s) denial of petitioner-mother’s application to have reports by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged. Petitioner allegedly refused to allow her 16-year-old daughter into the home, which caused her daughter to find other places to stay. The dissent agreed with the majority’s conclusion that mother’s failure to exercise adequate care and supervision constituted maltreatment, but disagreed with the majority’s finding that the daughter was placed in imminent risk of danger:

From the dissent:

OCFS’s decision recited a plethora of facts relative to petitioner’s failure to exercise the requisite degree of care or supervision. The same cannot be said regarding whether such failure harmed the child or imminently harmed the child. Rather, only in a conclusory fashion did OCFS find that petitioner’s failure to exercise a minimum degree of care caused the child’s physical, mental or emotional condition to be impaired or to be in imminent danger of being impaired. Indeed, OCFS’s decision noted, and the record confirms, that, when the child stayed with the neighbor, the neighbor’s residence was “safe” and posed “no concerns.” OCFS also noted that the neighbor was approached about potentially obtaining custody of the child. Based on what OCFS found, substantial evidence, in our view, does not support the determination that the child was harmed or was in imminent risk of harm … . Matter of Tammy OO. v New York State Off. of Children & Family Servs., 2022 NY Slip Op 00706, Third Dept 2-3-22

 

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