Corroborated Hearsay and Forensic Findings Suffice as “Substantial Evidence” in SCR Expungement Challenges; Absolute Ban on Foster-Parent Corporal Punishment Reaffirmed

Introduction

This commentary analyzes the Appellate Division, Third Department’s decision in Matter of Kania J. v. Miles-Gustave (2025 NY Slip Op 06113), a CPLR article 78 proceeding challenging the Office of Children and Family Services’ (OCFS) denial of a request to amend and expunge an “indicated” report of child maltreatment from the Statewide Central Register of Child Abuse and Maltreatment (SCR). The petitioner, a foster parent, contested the agency’s finding of maltreatment arising from allegations that she used a spatula and belt to strike a five-year-old child in her care, resulting in bruising and swelling.

Presented with a record comprised of child disclosures, corroboration by a sibling, a forensic nurse examiner’s observations, photographs, and urgent care findings of soft-tissue injury, the court affirmed OCFS’s determination. The opinion clarifies several important principles:

• In SCR expungement hearings, relevant and probative hearsay, when corroborated by objective evidence such as medical observations and photographs, may constitute substantial evidence.
• Actual injury is not necessary to sustain a maltreatment finding; imminent danger of impairment suffices.
• On article 78 review, the court defers to the Administrative Law Judge’s (ALJ) credibility determinations and applies the “substantial evidence” standard, which is “minimal” and does not involve reweighing conflicting proof.
• Although not the formal ground of decision, the court underscores the absolute regulatory prohibition on any corporal punishment by foster parents (18 NYCRR 441.9[c]).

Summary of the Opinion

The Third Department confirmed OCFS’s denial of the petitioner’s application to amend the indicated report as unfounded and to expunge it. The court held that substantial evidence supported the agency’s determination that the child was maltreated via excessive corporal punishment. The evidence included:

• Child disclosures that she was “beat” with a spatula and belt for poor school performance.
• Sibling corroboration describing strikes to the mouth, eyes, forehead, cheek, and nose, continuing until the child ceased “screaming.”
• A forensic nurse examiner’s testimony and photographs documenting bruising and marks on the child’s hand, arm, back, and buttocks, with the exam “consistent with the history.”
• Urgent care findings of soft-tissue injury (no fractures).

The ALJ rejected as not credible the petitioner’s explanations (including a claimed bunk-bed fall and her asserted physical incapacity post-surgery), and the Appellate Division deferred to those credibility determinations. The court reiterated that:

• Hearsay may constitute substantial evidence if relevant and probative.
• Actual impairment is unnecessary; imminent danger suffices.
• “Substantial evidence” is a minimal standard satisfied where inferences drawn are reasonable and plausible.

A notable footnote highlights (though does not decide on) a distinct regulatory rule: as a matter of foster care regulation, any form of corporal punishment by a foster parent is forbidden, irrespective of “excessiveness” or demonstrable impairment (18 NYCRR 441.9[c]).

Case Background and Posture

• Parties: Petitioner foster parent (Kania J.); Respondents include the Acting Commissioner of OCFS (Suzanne Miles-Gustave) and Saratoga County DSS.
• Allegations: In September 2021, DSS received a hotline report that petitioner struck a five-year-old with a spatula and threw the child against a wall, causing bruising and swelling. An investigation ensued; the children were removed; the report was indicated in November 2021 for inadequate guardianship through excessive corporal punishment and the infliction of welts, bruises, lacerations, and swelling.
• Administrative History: Petitioner sought amendment to “unfounded.” After administrative review and a hearing (with petitioner, her sister, and multiple DSS witnesses), OCFS denied the request.
• Judicial Review: Petitioner commenced a CPLR article 78 proceeding; because the challenge turned on substantial evidence, the matter was transferred to the Third Department (CPLR 7804[g]).

Analysis

Precedents Cited and Their Influence

• Matter of Raymond I. v New York State Office of Children & Family Services, 214 AD3d 1147 (3d Dept 2023): Articulates the maltreatment standard as whether the child’s physical, mental, or emotional condition “has been impaired or is in imminent danger of becoming impaired” due to a caregiver’s failure to exercise a minimum degree of care in supervision or guardianship. This frames the substantive threshold OCFS must meet at the administrative hearing.
• 18 NYCRR 432.1(b)(1)(ii): Recognizes excessive corporal punishment as a basis for finding maltreatment. This regulation ties the factual theory (use of a spatula/belt) to a recognized legal category of maltreatment.
• Matter of Vincent KK. v State of N.Y. Off. of Children & Family Servs., 284 AD2d 777 (3d Dept 2001): Supports using corroborated hearsay with medical/photographic evidence in maltreatment cases, aligning with the record’s forensic photographs corroborating the child’s statements.
• Matter of Jeter v Poole, 43 NY3d 241 (2024): Central to the court’s articulation of the “substantial evidence” standard as “minimal,” requiring only that the agency’s inference is reasonable and plausible. The court also cites Jeter to emphasize that an inability to account for injuries can corroborate agency proof.
• Matter of Christopher JJ. v Spencer, 204 AD3d 1193 (3d Dept 2022) and Matter of Kristen DD. v New York State Cent. Register of Child Abuse & Maltreatment, 220 AD3d 1129 (3d Dept 2023): Reiterate that reviewing courts do not reweigh evidence or substitute judgments for the administrative fact-finder when substantial evidence supports the outcome.
• Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d 1181 (3d Dept 2022): Confirms that hearsay is admissible in expungement hearings and, when relevant and probative, may constitute substantial evidence. This legitimizes reliance on child and sibling statements in this record, especially given the corroborating photographs and medical testimony.
• Matter of Johnathan Q. [James Q.], 166 AD3d 1417 (3d Dept 2018): Clarifies that actual injury is not required; imminent danger suffices to establish maltreatment. This addresses petitioner’s argument regarding lack of actual impairment.
• Matter of Johnny S. v New York State Off. of Children & Family Servs., 236 AD3d 1281 (3d Dept 2025): The court cites it to reiterate deference to the ALJ’s credibility determinations when accounts conflict.
• Matter of Naomi NN. v New York State Off. of Children & Family Servs., 233 AD3d 1399 (3d Dept 2024); Matter of Jeffrey O. v New York State Off. of Children & Family Servs., 207 AD3d 900 (3d Dept 2022): Recent, factually akin affirmances sustaining indicated reports on the substantial evidence standard—used here to reinforce consistency and continuity in the Third Department.
• 18 NYCRR 441.9(c); Matter of Theresa WW. v New York State Off. of Children & Family Servs., 123 AD3d 1174, 1175 n 1 (3d Dept 2001): Cited in a footnote to emphasize the categorical prohibition of corporal punishment by foster parents—underscoring that for foster parents, the threshold for regulatory violation is lower than the maltreatment standard, although the court did not rest its holding on this rule.

Legal Reasoning

The court’s reasoning unfolds in three steps: defining the applicable substantive and review standards; assessing the sufficiency and quality of the proof; and addressing credibility and alternative explanations.

1. Substantive and Review Standards:
   • At the administrative hearing, OCFS had to establish maltreatment by a “fair preponderance of the evidence.”
   • On judicial review, however, the Appellate Division applies the “substantial evidence” standard, a deferential threshold met if the agency’s inferences are reasonable and plausible (Jeter).
   • Excessive corporal punishment is a recognized basis for maltreatment (18 NYCRR 432.1[b][1][ii]).
   • Actual injury is not a prerequisite; imminent danger of impairment suffices (Johnathan Q.).
2. Evidentiary Sufficiency:
   • Hearsay, while ordinarily limited in judicial trials, is admissible in these administrative expungement hearings and can be substantial evidence when relevant and probative (Tammy OO.).
   • Multiple child disclosures about being “beat” with a spatula and belt were corroborated by sibling statements and objective medical documentation (forensic nurse examiner’s testimony and photographs), lending reliability and probative force (Vincent KK.).
   • The forensic nurse’s finding that the exam was “consistent with the history” directly tied the physical findings to the child’s account.
   • Urgent care confirmation of soft-tissue injury, even absent fractures, further supported the agency’s theory of injury and potential impairment or imminent danger thereof.
3. Credibility and Alternative Explanations:
   • Petitioner’s explanations (playful tapping with a spatula, bunk-bed fall, physical incapacity post-surgery) did not account for all injuries, including buttocks marks and some soft-tissue injuries, a factor the court treated as corroborative of the agency’s case (Jeter).
   • The ALJ expressly found petitioner’s and her sister’s testimony to be incredible and self-serving. Because credibility assessments belong to the administrative fact-finder, the Appellate Division deferred (Kristen DD.; Johnny S.).
   • Given the minimal nature of the substantial evidence standard, the existence of a contrary viable result did not warrant reversal.

Impact and Implications

This decision, while doctrinally consistent, has practical bite in future SCR expungement litigation and foster-care practice:

• Substantial Evidence Threshold: The reaffirmed “minimal” standard, as recently articulated by the Court of Appeals in Jeter, solidifies that expungement challenges face an uphill battle where the record contains consistent child disclosures corroborated by medical observations and photographs.
• Role of Forensic Medical Evidence: The court treats a forensic nurse examiner’s “consistent with history” conclusion and photographic documentation as powerful corroboration transforming hearsay into substantial evidence. Agencies are incentivized to timely secure forensic examinations and preserve photographic records.
• Hearsay’s Centrality: Provided it is relevant, probative, and corroborated, hearsay (e.g., child and sibling statements) can carry the agency’s burden. Petitioners must therefore marshal objective counter-evidence (e.g., medical records, expert testimony) that accounts for all observed injuries.
• Credibility Deference: Because credibility is central and appellate review is deferential, petitioners should focus on building consistent narratives corroborated by independent evidence at the administrative level—late-stage credibility attacks are unlikely to succeed in an article 78 posture.
• Foster-Parent Corporal Punishment: The footnote’s emphasis on 18 NYCRR 441.9(c) signals that, for foster parents, any corporal punishment may independently violate regulatory duties, potentially supporting indicated reports on narrower grounds without extensive proof of impairment. While not the holding, the court’s spotlight hints at how future cases could be resolved even more summarily where any corporal punishment is established.

Complex Concepts Simplified

• Indicated Report: A finding by child protective authorities that, after investigation, there is credible evidence of abuse or maltreatment.
• SCR (Statewide Central Register): A state database recording indicated reports; listing can affect employment and caregiving opportunities.
• Expungement/Amendment: The administrative process by which a subject of an indicated report seeks to change the report to “unfounded” and remove it from the SCR.
• CPLR Article 78: A New York procedural mechanism to challenge administrative determinations; cases that turn on substantial evidence are transferred to the Appellate Division for direct review of the administrative record.
• Fair Preponderance vs. Substantial Evidence:
  • Fair preponderance (administrative hearing burden): More likely than not.
  • Substantial evidence (judicial review standard): A minimal threshold asking only whether the agency’s inference is reasonable and plausible—not whether it is more likely than not.
• Hearsay in Administrative Proceedings: Unlike in typical courtroom trials, certain administrative hearings may admit hearsay; if corroborated and probative, it can be sufficient to sustain an agency determination.
• Imminent Danger: The law does not require proof that a child was actually injured; it is enough that the caregiver’s conduct placed the child in imminent risk of impairment.
• Excessive Corporal Punishment: Force used to discipline a child that either causes injury or creates an imminent risk of impairment; in the foster-care context, any corporal punishment is categorically prohibited by regulation (18 NYCRR 441.9[c]).
• ALJ Credibility Findings: The ALJ observes witnesses firsthand; their credibility determinations are entitled to deference on review and are rarely disturbed if supported by the record.

What This Case Does—and Does Not—Decide

• Does decide: Corroborated hearsay plus forensic medical findings and photographs can constitute substantial evidence to uphold an indicated report; actual impairment is unnecessary; appellate courts defer to ALJ credibility findings.
• Does not decide: That any corporal punishment by a foster parent automatically compels an indicated report as a matter of law. The absolute ban is flagged in a footnote but was not the formal ground of decision. Future cases may test how that regulatory prohibition interacts with the statutory/regulatory definitions of maltreatment for SCR purposes.

Practice Pointers

• For Agencies (DSS/OCFS):
  • Obtain prompt forensic examinations and photographs; document child disclosures in detail; secure corroboration from siblings or other witnesses.
  • Ensure the record links medical findings to the reported history (“consistent with history” language is potent).
• For Petitioners (Subjects of Indicated Reports):
  • Present comprehensive, consistent alternative medical explanations, ideally supported by independent medical records or expert testimony that accounts for all injuries.
  • Address credibility proactively at the hearing stage; late challenges face steep deference on review.
  • Foster parents should avoid any corporal punishment in light of 18 NYCRR 441.9(c); even “playful” or “unforceful” contact may be problematic.
• For Counsel:
  • Frame arguments with the dual standards in mind: the agency’s hearing burden (preponderance) versus the court’s review (substantial evidence).
  • Challenge the reliability of hearsay by attacking consistency, specificity, and corroboration—but anticipate that minimally corroborated hearsay may still suffice.

Conclusion

Matter of Kania J. v. Miles-Gustave reinforces the prevailing architecture of SCR expungement review: corroborated hearsay, bolstered by forensic medical testimony and photographic evidence, can constitute substantial evidence sufficient to sustain an indicated report; appellate courts will not reweigh evidence or disturb ALJ credibility determinations; and actual impairment is unnecessary where imminent danger is shown. The decision also underscores—albeit in a footnote—the categorical prohibition on corporal punishment by foster parents, spotlighting a separate regulatory route by which such conduct can trigger consequences irrespective of excessiveness or demonstrated harm.

Collectively, the opinion signals that petitioners must meet agency proofs with robust, objective, and comprehensive counter-evidence at the administrative stage. For the child-protection system, it validates the evidentiary value of forensic exams and photographs in corroborating child disclosures. As such, the case is a significant, practice-oriented clarification of standards governing indicated reports and their judicial review in New York.