Calendar Date: January 18, 2017
Christy Lay-Mumin, The Legal Project, Albany, for petitioner.
T. Schneiderman, Attorney General, Albany (Allyson B. Levine
of counsel), for respondent.
Patterson Belknap Webb Tyler, LLP, New York City (William F.
Cavanaugh of counsel), for Empire Justice Center and others,
Before: McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Rensselaer County) to
review a determination of respondent partially denying
petitioner's application to have a report maintained by
the Central Register of Child Abuse and Maltreatment amended
to be unfounded and expunged.
is the mother of three children (born in 2002, 2011 and
2014). In June 2014, petitioner's paramour, the father of
the youngest child, physically assaulted her on two
occasions. During the first incident, the paramour, while
driving on a high speed road, punched her in the arm and leg.
Their three-week-old child was in the backseat at this time.
The following day, the paramour struck petitioner in the back
as she held the youngest child, causing her to fall, and then
choked and threatened her. This incident was observed by the
eldest child. Petitioner reported both incidents to police
three days later, and the paramour was taken into custody.
The Ontario County Department of Social Services (hereinafter
DSS) conducted an investigation and filed a report with
respondent thereafter, indicating petitioner for maltreatment
by inadequate guardianship, as pertinent here. Following a
hearing pursuant to Social Services Law § 422 (8) (b),
petitioner's request for amendment and sealing of the
report was granted in part but denied as to inadequate
guardianship. Petitioner then commenced this CPLR article 78
proceeding seeking review of that determination.
Court's review of the determination is "limited to
whether the decision is rational and supported by substantial
evidence" (Matter of Kenneth VV. v Wing, 235
A.D.2d 1007, 1008 ; see Matter of Cheryl Z. v
Carrion, 119 A.D.3d 1109, 1110 ). Maltreatment is
established where it is shown "by a fair preponderance
of the evidence that the physical, mental or emotional
condition of the child [was] impaired or was in imminent
danger of becoming impaired because of a failure by [the]
petitioner to exercise a minimum degree of care in providing
the child with appropriate supervision or guardianship"
(Matter of Gwen Y. v New York State Off. of Children
& Family Servs., 132 A.D.3d 1091, 1092 
[internal quotation marks and citations omitted]; see
Nicholson v Scoppetta, 3 N.Y.3d 357, 370 ; see
generally Matter of Natasha W. v New York State Off. of
Children & Family Servs., 145 A.D.3d 401, 406
; Matter of Batchateu v Peters, 77 A.D.3d
1366, 1366 ). The minimum degree of care standard acts
as a "baseline of proper care for children that all
parents, regardless of lifestyle or social or economic
position, must meet" and a failure thereof must be
"actual, not threatened" (Nicholson v
Scoppetta, 3 N.Y.3d at 370 [internal quotations marks
and citations omitted]; see Matter of Natasha W. v New
York State Off. of Children & Family Servs., 145
A.D.3d at 406). "When the sole allegation is that the
[subject parent] has been abused and the child has witnessed
the abuse, such a showing has not been made"
(Nicholson v Scoppetta, 3 N.Y.3d at 371 [internal
quotation marks omitted]). Where the parent is the victim of
domestic violence, "the focus must be on whether [he or]
she has met the standard of the reasonable and prudent person
in similar circumstances" (id. at 370-371).
Respondent misconstrues this standard as one that cannot be
"modified or excused because a parent is under stress or
fear." It has instead been clearly established that in
the context of domestic violence, whether a parent has
exercised a minimum degree of care requires consideration of
such factors as the "risks attendant to leaving, if the
batterer has threatened to kill [him or] her if [he or] she
does; risks attendant to staying and suffering continued
abuse;... and risks attendant to relocation" as well as
"the severity and frequency of the violence, and the
resources and options available to [him or] her"
(id. at 371).
the evidence consisted of a caseworker's testimony and
notes regarding her investigation, including interviews with
petitioner and the eldest son, and petitioner's testimony
. Respondent's finding that
petitioner failed to exercise a minimum degree of care was
based upon petitioner's delay in reporting the incidents,
the fact that she declined counseling services suggested by
DSS, her subsequent request to modify the order of protection
to permit communication with her paramour, and the
possibility of their future reunification. Initially,
addressing petitioner's brief delay in reporting the
abuse, it is well recognized that the most dangerous time in
an abusive relationship occurs when the victim attempts to
separate from the abuser (see Dana Harrington
Conner, To Protect or to Serve: Confidentiality, Client
Protection, and Domestic Violence, 79 Temp L Rev 877,
887 ; Susan L. Pollet, Mediating Domestic Violence:
A Potentially Dangerous Tool, 77 NY St BJ 42, 43 [Sept.
2005]). Here, petitioner testified that upon being told that
he should leave the home, her paramour choked her and
threatened that "if [she] ended it that he would end
it." There was no history of violence prior to the
attacks, which occurred on two consecutive days. Petitioner
was the primary caregiver for the three children - one of
whom was three weeks old - and critically, she did not have
access to a vehicle until the day that she made the report.
Petitioner testified that, immediately following the attacks,
"[she] did not have enough resources at that time in
[her] mind to... go, but [she] had a plan." After
discussing her plan with family members, and as soon as she
had a vehicle, petitioner took her two older children to the
homes of relatives and brought the youngest child with her to
report the incidents to the police. A finding that petitioner
failed to exercise a minimum degree of care cannot be
supported where the record reveals that she acted reasonably
under the circumstances and thoughtfully planned a strategy
to report her paramour's abuse in such a way as to
protect her own safety and that of her children (see
Nicholson v Scoppetta, 3 N.Y.3d at 370-371).
the counseling services suggested by DSS, the record reveals
that petitioner and the eldest child instead sought
counseling and advice from their priest, who had some
experience assisting families in similar circumstances.
Notably, there was no requirement that petitioner or the
child engage in counseling services. In these circumstances,
it would be improvident to suggest that a victim of domestic
violence fails to exercise a minimum degree of care by
seeking counseling services for his or her children from a
resource other than that suggested by DSS.
finding that petitioner's request to modify the order of
protection to permit discussion of finances and child care
with her paramour amounts to no more than "undesirable
parental behavior, " as the paramour was incarcerated
and petitioner had not brought the children to visit him
(id. at 369; see Matter of John O., 42
A.D.3d 687, 687-688 ). With regard to the possible
future reunification of petitioner and her paramour,
substantial evidence does not arise from mere conjecture
about events that may never come to pass (see 300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45
N.Y.2d 176, 180 ; Matter of Reed v Carrion, 84
A.D.3d 1094, 1094 ). Further, petitioner testified that
she would require the paramour's completion of all
court-ordered requirements such as anger management and
domestic violence awareness classes.
we find no basis in the record to support respondent's
finding that petitioner's actions resulted in impairment
or immediate danger to the children. A finding of impairment
"requires proof of actual (or imminent danger of)
physical, emotional or mental impairment to the child"
(Nicholson v Scoppetta, 3 N.Y.3d at 369; see
Matter of Nassau County Dept. of Social Servs. v Denise
J., 87 N.Y.2d 73, 78-79 ). An immediate danger
must be "near or impending" and more than
"merely possible" (Nicholson v Scoppetta,
3 N.Y.3d at 369; Matter of Nichols v New York State Cent.
Register of Child Abuse & Maltreatment, 137 A.D.3d
790, 791 ; Matter of Sasha B. [Erica B.], 73
A.D.3d 587, 588 , appeal dismissed 16 N.Y.3d
755 ). Although the record supports a finding that the
youngest child was placed in immediate danger during both
incidents and that the eldest child suffered emotional
impairment after witnessing the second incident, neither the
danger nor the impairment were the consequence of
petitioner's actions. As a result of petitioner's
actions shortly thereafter, the paramour was incarcerated and
an order of protection was issued; these circumstances
continued through the time of the hearing. This determination
renders petitioner's remaining contentions academic.
McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.
that the determination is modified, without costs, by
annulling so much thereof as partially denied
petitioner's application to have the subject indicated
report be amended to be unfounded; petitioner's
application granted in its entirety, ...