CHILD CARE - CPS FOUNDED REPORT COULD NOT BE SEALED

MATTER OF JEFFREY O. v. NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES, 2022 NY Slip Op 4593 - NY: Appellate Div., 3rd Dept. 2022:

"Petitioner is the father of a child (born in 2017). The child's mother (hereinafter the mother) also has two older children from a prior relationship. In September 2017, petitioner and the mother got into a verbal dispute while driving to a birthday party with the three children. The dispute quickly escalated and petitioner allegedly choked the mother in the children's presence and threw her car keys across the street, prompting one of the older children to retrieve them. The subject child was two months old at the time, and the mother's older children were approximately five and six years old. Police were called and criminal charges were brought against petitioner. The case was ultimately dismissed and the criminal record was sealed in January 2018.

A report was made to the Statewide Central Register of Child Abuse and Maltreatment regarding the incident and, following an investigation by the Cortland County Department of Social Services (hereinafter DSS), the report was marked as indicated against petitioner for maltreatment of the children (see Social Services Law § 412 [7]). The indicated report was forwarded to respondent and petitioner sought to have the report amended to be unfounded and sealed. Following an administrative review, respondent denied the request. An administrative hearing was held before an Administrative Law Judge (hereinafter ALJ), who upheld the denial of petitioner's request, determining that the fair preponderance of the evidence supported the indicated finding of maltreatment and that the report was relevant and reasonably related to childcare issues. Petitioner commenced this CPLR article 78 proceeding challenging that determination, which was transferred to this Court pursuant to CPLR 7804(g).

We confirm. Contrary to petitioner's contention, the finding of maltreatment is supported by a sound and substantial basis in the record. "`To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child[ren] had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child[ren] with appropriate supervision or guardianship'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d 1181, 1182 [2022], quoting Matter of Gerald HH. v Carrion, 130 AD3d 1174, 1175 [2015]). This Court's review "is limited to whether the determination to deny the request to amend and seal the indicated report is supported by substantial evidence" (Matter of Sleiman v New York State Cent. Register of Child Abuse & Maltreatment, 193 AD3d 1323, 1323 [2021] [internal quotation marks, brackets and citation omitted], lv denied 38 NY3d 905 [2022]; accord Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182) — "a minimal standard that requires `such relevant proof as a reasonable mind, may accept as adequate to support a conclusion or ultimate fact'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182, quoting Matter of Sleiman v New York State Cent. Register of Child Abuse & Maltreatment, 193 AD3d at 1323). "`[H]earsay is admissible in expungement hearings and, if sufficiently relevant and probative, may constitute substantial evidence in support of the underlying determination'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182 [citation omitted], quoting Matter of Ribya BB. v Wing, 243 AD2d 1013, 1014 [1997]).

During the hearing, DSS presented testimony from two caseworkers who investigated the underlying incident. Both caseworkers testified that, when they interviewed the mother, she confirmed that she and petitioner got into a verbal altercation, which turned physical. In particular, when they arrived at the party, the mother told petitioner that she was going to drive back home with the children, prompting him to take her keys. When she tried to grab the keys back, she "accidentally ripped [petitioner's] shirt." The caseworkers recounted the mother's statement that petitioner then threw her phone and keys out of the car, walked around to her side of the car and choked her.

When the two older children were interviewed the next day, they confirmed the mother's recounting of the incident, stating that petitioner threw the mother's keys and phone out of the car, prompting the six-year-old child to go into the street to retrieve the keys. One of the children relayed to the caseworker that he saw petitioner choke the mother and confirmed that the children were crying and screaming at the time.

Petitioner's testimony regarding the incident differed in certain respects. According to petitioner, the couple got into a verbal dispute on the way to the birthday party and one of the mother's older children asked them to stop bickering. Once they arrived, the mother started screaming at him to get out of the car. She then got out of the car, went to the baby and started changing his diaper. According to petitioner, when he took the mother's keys out of the ignition, the mother leaned over the baby's car seat, grabbed him by the beard and ripped his shirt. Petitioner then got out of the car, walked over to the mother and asked, "what are you doing?" The mother told him that she was leaving and he responded, "you can leave after I take [the baby] out of the car." The mother then began lunging at him and grabbing at the keys, prompting petitioner to push her away "at her chest." Petitioner admitted that he continued pushing the mother while he was trying to get the baby out of the car, and also threw her keys and phone so she would go get them and leave him alone. Petitioner denied choking the mother during the altercation, stating that it may have appeared that way to the children when he was pushing her away and acknowledging that the incident was "scary" for them. When questioned on cross-examination about why he simply did not walk away from the vehicle when he had the keys in order to de-escalate the situation, petitioner stated that he wanted to take the baby into the party.

Petitioner entered into evidence a February 2019 certificate of completion for an anger management course, as well as various letters submitted by friends and family on his behalf. In one of those letters, a friend who was at the party and present for the altercation confirmed that she "saw [the mother] yelling at [petitioner] and putting her hands on him." She also saw petitioner "pushing [the mother] off of him." A letter from petitioner's sister made a similar representation as it pertained to the mother's conduct. Petitioner also submitted a letter that the mother wrote on his behalf, which stated that he "goes above and beyond for [her] and [the baby], as well as [the two older children]." Although the mother's letter stated that there were no ongoing concerns about domestic violence between the two of them, the letter did not specifically refute the allegations against petitioner pertaining to the September 2017 incident.

In denying petitioner's request to amend and seal the indicated report, the ALJ emphasized that petitioner admitted engaging in a physical altercation with the mother in the children's presence while he was attempting to get the baby out of the car seat and found that his "willingness to engage in violent disagreements over physical possession of an infant constitutes a clear failure to exercise a minimum degree of care." Although the ALJ found that the mother also bore some responsibility, she noted that such "mutual participation does not eliminate the causal connection between [petitioner's] conduct and the risk of harm to the children," as he "chose to exit the vehicle and to re-engage in the physical altercation in the presence of the children, despite having possession of the mother's car keys and telephone."

We conclude that these findings are supported by a sound and substantial basis in the record. Regardless of whether petitioner actually choked the mother, he admitted that he engaged in a physical altercation with her in front of the children while he was attempting to get the baby out of the car seat. He also threw her keys across the street, prompting the mother's six-year-old child to cross the street, unsupervised, to retrieve them. His explanation for persisting in the altercation — that he wanted to take the baby to the party — reveals extraordinarily poor judgment on his part. Notwithstanding the letters submitted by friends and family attesting to petitioner's character, petitioner's conduct amounted to a failure to exercise a minimum degree of care in providing the children with appropriate supervision or guardianship (see Social Services Law § 412 [2] [a]; Family Ct Act § 1012 [f] [i] [B]; Matter of Brown v Velez, 153 AD3d 517, 518 [2017], appeal dismissed 30 NY3d 1028 [2017]). Given that the children witnessed and were in close proximity to the altercation, the two older children were "screaming and crying" during it, and the six-year-old child had to cross the street by himself to retrieve the mother's keys, there is substantial evidence in the record to support the finding that the children's "`physical, mental or emotional condition'" was impaired or was in imminent danger of becoming impaired as a result of petitioner's conduct (Matter of Christopher JJ. v Spencer, 204 AD3d 1193, 1194 [2022], quoting 18 NYCRR 432.1 [b] [1] [ii]). Moreover, the ALJ's finding that petitioner's conduct was "`relevant and reasonably related' to [his] potential involvement in child care, adoption and foster care" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1184, quoting Social Services Law § 422 [8] [c] [ii]), is supported by the evidence that petitioner studied elementary education, had completed internships in the field and had previously worked at a home for wayward boys. Accordingly, the ALJ's determination will not be disturbed.^[1]

Equally without merit is petitioner's assertion that his due process rights were violated by the ALJ's consideration of "charges that were sealed." Pursuant to CPL 160.50, "[u]pon termination of a criminal action in favor of an accused . . . the record of such action `shall be sealed' . . . and . . . all official records and papers relating to the arrest or prosecution `on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency'" (Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 132 [1993], quoting CPL 160.50 [1] [c] [emphasis omitted]). First, we note that the sealed criminal records at issue were not actually offered into evidence in this case and, contrary to petitioner's suggestion, the ALJ did not rely on these records in her determination. Rather, one of DSS's caseworkers referred to the content of the police report during her testimony and relied on a progress note containing statements therefrom to refresh her recollection as to what the report said. In any event, a party who "affirmatively places the underlying conduct at issue by bringing a civil suit" waives the statutory protection afforded by CPL 160.50, which "may not be used as a sword to gain an advantage in a civil action" (Green v Montgomery, 95 NY2d 693, 701 [2001] [internal quotation marks and citation omitted]). In his petition, petitioner emphasized that the criminal charges had been dropped. Inasmuch as petitioner placed the underlying conduct at issue by bringing a civil expungement proceeding and attempted to circumvent liability by relying on the fact that the criminal charges were dismissed, he waived any protections afforded by CPL 160.50 to this matter.

Nor are we persuaded by petitioner's argument that his due process rights were violated by the six-month delay in finalizing the indicated report. Under Social Services Law § 424(7), a child protective services agency has 60 days to determine whether a report of abuse or maltreatment is indicated or unfounded. However, "[t]he time limit imposed is . . . directory, not mandatory, . . . and [a] petitioner is not entitled to have [the agency's] determination vacated on this basis absent a showing of substantial prejudice" (Matter of Maria PP. v Commissioner of NYS Off. of Children & Family Servs., 162 AD3d 1297, 1298 [2018] [internal quotation marks and citation omitted]). A caseworker indicated that the delay here was attributable to high caseloads and petitioner has not established any prejudice flowing therefrom. In these circumstances, the failure to comply with the 60-day deadline does not warrant vacatur (see id.; see generally Matter of Meyers v Maul, 249 AD2d 796, 797 [1998], lv denied 92 NY2d 807 [1998]). Petitioner's remaining contentions, to the extent not expressly addressed, have been considered and found lacking in merit.

Egan Jr., J.P., Pritzker, Ceresia and Fisher, JJ., concur.

ADJUDGED that the determination is confirmed, without costs.

[1] Contrary to petitioner's assertion, the children's statements to one of the caseworkers regarding the incident were generally corroborated by petitioner's own admission that he and the mother engaged in a physical altercation in front of them, regardless of whether any choking was involved. Moreover, petitioner himself testified that the children were scared during the altercation."

SEALING MENTAL HEALTH RECORDS OF INVOLUNTARY COMMITMENT

Generally, pursuant to an application made under Mental Hygiene Law 33.14, a court may order that the petitioner's involuntary mental illness records be sealed, subject to such limitations or exceptions as the court may impose, upon a finding that:

"a. the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention; or

b. the petitioner has demonstrated by competent medical evidence that he is not currently suffering from a mental illness, has not for a period of three years received inpatient services for the treatment of a mental illness, and the interests of the petitioner and society would best be served by sealing the petitioner's records.  It shall be presumed that it would be in the best interests of the petitioner and society to seal any record of a petitioner's receipt of services for the treatment of mental illness prior to his sixteenth birthday."

 But this may not always be a simple application. The most recent case I could find on this was MATTER OF GARDNER v. BASSETT MEDICAL CTR., 148 AD 3d 1331 - NY: Appellate Div., 3rd Dept. 2017:

"At all times relevant, petitioner was a student at the State University of New York at Cobleskill in Schoharie County. In early 2013, petitioner sent a text of an apparently concerning nature to one of his professors; although the precise nature of the text is not disclosed in the record,^[1] this incident — according to petitioner — resulted in the involvement of law enforcement and appears to have marked the beginning of a deteriorating relationship between petitioner and the university. At the beginning of the summer of 2013, petitioner moved into a hotel because he "didn't feel safe on the campus" and, in August 2013, suffered an alcohol-induced blackout — during the course of which he sent a text expressing suicidal thoughts.

As a result of his personal experiences on campus, petitioner began to lobby university officials "to insure that when the school police question a student with possible mental health issues that a mental health advocate is present to act as an advocate for the student." To that end, petitioner met with the university's president on November 21, 2013 to discuss this and other issues; also in attendance at that meeting was one of the university's therapists, with whom petitioner previously had spoken "about various personal issues in [his] life." Although the meeting apparently ended without incident, petitioner and the therapist continued to speak in the hallway afterwards, during the course of which — the therapist subsequently reported — petitioner became "agitated, hostile and angry" and "blam[ed] the school for his current problems, depression, poor grades and [the] suicidal episode in August of [that] year." As the conversation continued, petitioner made 1332*1332 reference to "violent acts" — invoking the 1999 shooting incident at Columbine High School in Colorado — and the connection between such violent episodes and "those who snap," stating, "[P]eople wonder why these people snap[;] it's because of the situations like I am going through that cause them to snap and do what they did." Petitioner also made reference to New York's Secure Ammunition and Firearms Enforcement Act, more commonly known as the SAFE Act (L 2013, ch 1), which he previously had characterized as a "new law [that] was aimed to take his weapons away," theorizing that the law "cause[d] people to disengage in therapy, leading to an increase in murder/suicides." Shortly after making that statement, petitioner terminated his counseling relationship with the therapist.

Concerned that petitioner "may have underlying plans for violence," the therapist arranged for an emergency psychiatric admission pursuant to Mental Hygiene Law § 9.39. As a result, petitioner was involuntarily committed to respondent Bassett Medical Center from late in the evening on November 21, 2013 to early in the morning on November 24, 2013.^[2] The stated basis for the emergency admission was paranoid delusions and threats to harm others. During the course of his stay, petitioner was evaluated by a number of medical professionals, including two psychiatrists, and petitioner variously reported and then denied a prior diagnosis of bipolar disorder. According to the psychiatrist who evaluated petitioner upon his admission, although petitioner did not exhibit evidence of any delusions or obsessions and denied "frank suicidal ideation," petitioner expressed "clearly helpless[,] hopeless and depressed thinking." In addition, petitioner's demeanor was described as "tense" ("with paranoid flavor somewhat cryptic at times"), his thought processes were characterized as "overinclusive" and possessing a "more obsessional style," his insight was assessed as "[p]oor with marked use of denial," his judgment was deemed to be "diminished" and his capacity was described as "limited, impacted on by his perceptions with a paranoid flavor." Against the backdrop of petitioner's stated (and then denied) bipolar disorder, concerns that he may also be suffering from an "affective disorder" or "isolated paranoid disorder," the statements made to the university's therapist and petitioner's prior history, the admitting psychiatrist determined that petitioner was in need of involuntary hospitalization "for acute stabilization of [his] psychiatric symptoms" and to safeguard petitioner's safety and the safety of others. Although another psychiatrist 1333*1333 subsequently concluded that she could not extend petitioner's emergency admission beyond the initial 48-hour period (see Mental Hygiene Law § 9.39 [a] [2]), petitioner elected, as noted previously, to voluntarily admit himself for an additional two days.

Thereafter, in March 2015, petitioner commenced this proceeding pursuant to Mental Hygiene Law § 33.14 (a) (1) against the hospital and respondent New York State Office of Mental Health seeking to seal his psychiatric records. Respondents opposed the application. Following a hearing, Supreme Court, relying upon petitioner's hospital records and the affidavits tendered in support of and in opposition to petitioner's application, denied petitioner's sealing request, finding, among other things, that petitioner failed to demonstrate that he was illegally detained. This appeal by petitioner ensued.

We affirm. Pursuant to the provisions of Mental Hygiene Law § 33.14 (a) (1), "[a]ny person who has been admitted to receive inpatient or outpatient services for mental illness may commence a special proceeding ... for an order directing the sealing of those records ... upon a finding that ... the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention." Here, petitioner was admitted under the emergency admission procedures set forth in Mental Hygiene Law § 9.39 (a), which permits a hospital director to "retain... as a patient for a period of [15] days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself [or herself] or others." For purposes of the statute, the required likelihood of harm means either a "substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or ... a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [1], [2]; see Matter of Rueda v Charmaine D., 17 NY3d 522, 529-530 [2011]). An individual may be admitted under the statute "only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements" of the statute and, as alluded to previously, a person so admitted cannot "be retained for a period of more than [48] hours unless within such period such finding is confirmed after examination by another physician who shall be 1334*1334 a member of the psychiatric staff of the hospital" (Mental Hygiene Law § 9.39 [a] [2]; see Matter of Rueda v Charmaine D., 17 NY3d at 530).

As petitioner does not contend that his involuntary admission was procured by fraud or falsified documents, his application for sealing may succeed only if he can demonstrate that such admission was erroneous. To that end, petitioner tendered his hospital records and the affidavit of John Tanquary, a licensed psychiatrist, who opined that, based upon his October 2014 evaluation of petitioner and a review of petitioner's hospital records, petitioner "did not meet the criteria for involuntary hospitalization ... and should never have been hospitalized against his will." To our analysis, this conclusory and hindsight assessment of petitioner's mental status at the time of his involuntary admission in November 2013 — an assessment that is both predicated in large measure upon petitioner's self-reporting of that event and otherwise minimizes the documented psychiatric symptoms displayed by petitioner upon his admission — falls short of demonstrating that petitioner's hospitalization was in error within the meaning of Mental Hygiene Law § 33.14 (a) (1). At best, Tanquary's affidavit reflects a difference of opinion between the psychiatrist who evaluated petitioner upon his admission and the psychiatrist who evaluated him nearly one year later, and this conflicting medical opinion does not demonstrate that petitioner's involuntary admission was erroneous.

In reaching this result, we acknowledge that petitioner and his expert focus on the propriety of petitioner's initial, involuntary admission — claiming that respondents failed to satisfy the criteria set forth in Mental Hygiene Law § 9.39 (a). It is important to note, however, that it is petitioner, and not respondents, who bears the burden of proof here. Notably, petitioner did not commence a proceeding to challenge his initial admission to the hospital and, at the end of the 48-hour period, consented to a voluntary admission. Hence, even assuming, without deciding, that an emergency admission pursuant to Mental Hygiene Law § 9.39 (a) — once challenged — compels the admitting facility to present clear and convincing evidence to justify its retention of the affected patient (compare Rodriguez v City of New York, 72 F3d 1051 [1995], with Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340 [1987], appeal dismissed 70 NY2d 972 [1988]), that simply is not the nature of this proceeding, and nothing in the case law imposes either that burden or that evidentiary standard upon respondents in the context of the instant sealing application. 1335*1335 Accordingly, we agree with Supreme Court's dismissal of petitioner's application.

Ordered that the judgment is affirmed, without costs.

[1] The record does reflect, however, that petitioner reported to the professor that he suffered from bipolar disorder.

[2] On November 24, 2013, petitioner executed a voluntary request for hospitalization, which extended his stay until November 26, 2013."

FEDERAL EXPUNGEMENT LIMITED SAYS SECOND CIRCUIT

In Doe v. United States (Second Circuit, August 11, 2016, Docket Number: 15-1967), at issue was whether the district court acted within its authority when it expunged the conviction of a woman sentenced some 14 years earlier, based on the court's finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  The judge directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”

The Second Circuit reversed stating that expungement is available in limited cases where Congress has specifically authorized it. Recognizing the harshness of its decision, the court added that its opinion “says nothing about Congress’ ability to provide for jurisdiction in similar cases in the future” and also quoted a speech by Attorney General Loretta Lynch in which she stated that society’s treatment of former offenders “turns too many terms of incarceration into what is effectively a life sentence.”

The full decision can be viewed here:  http://law.justia.com/cases/federal/appellate-courts/ca2/15-1967/15-1967-2016-08-11.html