Kelly v. New York State Department of Social Services

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: In its determination following a fair hearing, respondent New York State Department of Social Services upheld the removal of two children from petitioners’ foster care by the Onondaga County *985Department of Social Services. That determination is supported by substantial evidence and is neither arbitrary nor capricious (see, Matter of O’Rourke v Kirby, 54 NY2d 8, 14; Matter of Theel v Erie County Dept. of Social Servs., 209 AD2d 1039; Matter of Jane D. v Bane, 192 AD2d 530, 531, appeal dismissed and lv denied 82 N Y2d 702). Medical proof was adduced at the fair hearing that one of the children had been sexually abused. Although petitioners were not accused of having committed the abuse or even having knowledge of it, there was proof at the fair hearing that petitioners may have left both children in the care of either an older foster child or their recently adopted 13-year-old son, in violation of agency rules and regulations.

Contrary to the contention of petitioners, the removal of the children from their foster care does not constitute a "penalty” assessed against them. Additionally, the propriety of the decertification and closing of petitioners’ foster care home was not an issue in the instant proceeding and is, therefore, not properly before us. We have reviewed the remaining contentions of petitioners and conclude that they are lacking in merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Onondaga County, Mor due, J.) Present—Pine, J. P., Lawton, Wesley, Balio and Davis, JJ.