Opinion
October 17, 1994
Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the petitioner's name is expunged from the Statewide Central Register of Child Abuse and Maltreatment.
Upon determining that there was "some credible evidence" supporting a report of child abuse against the petitioner, the respondent Commissioner upheld the petitioner's inclusion on the Statewide Central Register of Child Abuse and Maltreatment (hereinafter Central Register) (see, Social Services Law § 422[c][ii]). We conclude that the respondent's determination must be annulled and the petitioner's name expunged from the Central Register.
The respondent's determination upholding the petitioner's placement on the Central Register was based upon a legal standard of review — whether the abuse is supported by "some credible evidence" — that is no longer viable in light of the holding of the United States Court of Appeals for the Second Circuit in Valmonte v. Bane ( 18 F.3d 992). In that case, the court held, inter alia, that the constitutionally mandated standard to be applied in such a case is whether the alleged abuse is supported by a fair preponderance of the evidence (see, Valmonte v. Bane, supra, at 1002-1003; cf., Social Services Law § 424-a [d]). The proof adduced at the hearing was insufficient to meet this standard. Thompson, J.P., Sullivan, Altman and Goldstein, JJ., concur.