NEW YORK, NY, July 16, 2013 /24-7PressRelease/
-- North Tonawanda woman finds Appellate Division, Fourth Department Judicial ruling in the Matter of Eric Fechter against New York State Office of Children and Family Services and Niagara County Department of Social Services both a social injustice and one of statewide public importance.
Rhonda Mangus, of the City of North Tonawanda, New York, was stunned to learn that the New York State Supreme Court, Appellate Division, Fourth Judicial Department, had relied on her case ~ Matter of Mangus v Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774, lv denied 15 NY3d 705 ~ to support its decision of substantial evidence in the Matter of Fechter against NYS OCFS, et al.
Holding personal knowledge of the facts surrounding Fechter's case, Mangus believes that Fechter suffered a social injustice and that the matter is one of statewide public importance.
According to Court documents, Fechter commenced a CPLR article 78 proceeding to review a determination, made after an alleged fair hearing, denying his request to amend an indicated report of maltreatment with respect to his daughter to an unfounded report, and to seal it ~ the matter was transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Niagara County [Ralph A. Boniello, III, J.] entered August 13, 2012 to review the determination of New York State Office of Children and Family Services.
The Court's review was " . . . limited to whether the determination was supported by substantial evidence in the record on the petitioner['s] application for expungement". The Court claims that "Upon conducting such a review, we conclude that the agency's determination is supported by substantial evidence...".
In 2009, Mangus also proceeded pursuant to CPLR Article 78, after a determination by Niagara County Department of Social Services allegedly established by a fair preponderance of the evidence at an alleged fair hearing that Mangus maltreated her child and that the determination was supported by substantial evidence.
In this case, Niagara County Department of Social Services alleged supporting evidence clearly established that Mangus did not maltreat her child. However, Justices' Hurlbutt, Smith, Fahey, and Carni unanimously and completely not only ignored the questions presented in the original Petition, they also ignored supporting evidence that established there was no basis for an indicated report of 'Educational Neglect' against Mangus, including supporting evidence"...that there was, not one but two, doctor's orders to keep the child out of school." The record is complete with medical references to keep the child from attending school." "At no time was the child kept out of school by the Appellant where there was no doctor's directive or instruction to do so. Simply, there is no evidence introduced by NDSS that either Doctor removed their demand for home schooling and cleared or certified the child to return to school."
According to the Adjunct Law Prof Blog, in 2011 the NYS Court of Appeals Defined Substantial Evidence "...as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and "is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt"...". The standard "demands only that 'a given inference is reasonable and plausible, not necessarily the most probable'"...".
"Standard Not Met'
Mangus believes that in both cases, the 'standard' was not met. Mangus said, "A fair contextual reading of both cases and review of supporting evidence would compel contrary conclusions. The apparent rationale of the Appellate Court is that NYS OCFS and NCDSS need not comply with the Court of Appeals defined standard of substantial evidence."
Help from Jay Paul Deratany
In 2010, Mangus moved the New York State Supreme Court for an order granting Notice of Motion for Re-Argument or Leave to Appeal to the Court of Appeals. Proceeding pro se, she was advised pro bono by Chicago Lawyer and Gay Rights Activist, Jay Paul Deratany. The Supreme Court denied her Motion. She then moved to the Court of Appeals with a Notice of Motion for Leave to the Court of Appeals; that motion was also denied.
It is not known whether or not Fechter, who is represented by Hogan & Willig, PLLC, Amherst (Kevin S. Mahoney, of Counsel), will pursue either avenue for redress for such social injustice. What is known is that the Courts, New York State Office of Children and Family Services, and Niagara County Department of Social Services have apparently, and once again, failed to legally support its determination/review of substantial evidence in matters of neglect/maltreatment allegations.
Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous, of Counsel) represented respondents New York State Office of Children and Family Services (2013 NY Slip Op 04506, Released on June 14, 2013, Appellate Division, Fourth Department).*Court: Niagara Civil Supreme
Index Number: 147201/2012
Upstate Index Number: 147201
Case Name: FECHTER vs. NYS
Case Type: Article 78
RJI Filed: 06/07/2012
Upstate RJI Number:
Date NOI Due:
Disposition Date: 08/01/2012
Jury Status: Unknown
Justice Name: RALPH A. BONIELLO, III
Attorney/Firm For Plaintiff:
HOGAN & WILLIG Attorney Type: Attorney Of Record Atty. Status: Active
2410 NORTH FOREST RD. STE 301
GETZVILLE, NY 14068
Attorney/Firm For Defendant:
FILE Attorney Type: Attorney Of Record Atty. Status: Active
Susan Marie Kovalinsky
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