Opinion
Civil Action 15-02143-C
05-17-2016
EP v. DEPARTMENT OF CHILDREN AND FAMILIES
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
Robert B. Gordon, Justice
This case is an administrative appeal, taken pursuant to G.L. c. 30A, § 14, of the Department of Children and Families' (" DCF") decision to " support" allegations of physical abuse against EP (" EP" or " the plaintiff"). See 110 Code Mass. Regs. § 10.30. The charges against EP arise in connection with her foster care of B, a nine-year old boy. EP brings a motion for judgment on the pleadings, by which she seeks a reversal of DCF's decision on the grounds that the Hearing Officer (1) improperly relied on inadmissible evidence derived from reports filed pursuant to G.L. c. 119, § § 51A, 51B; and (2) erred by adopting findings of fact from a prior hearing concerning EP. For the following reasons, EP's motion for judgment on the pleadings is DENIED.
To protect the identities of the parties, this Court granted an emergency motion to proceed under pseudonyms on July 16, 2015. See Docket (" Dkt.") # 3.
BACKGROUND
The following facts derive from the Fair Hearing decision dated June 17, 2015, the transcript of the Fair Hearing held on February 20, 2015, and the documents submitted by the parties over the course of the Fair Hearing.
Statutory Framework
Certain professionals are statutorily mandated to write reports (" 51A reports") regarding instances of physical and sexual abuse of minors by a caretaker. G.L. c. 119, § 51A. Upon a determination that an investigation of the allegations is warranted, DCF will, inter alia, visit the child, consult the reporter, speak with the caretaker, and interview third parties who may possess relevant information. 110 Code Mass. Regs. § 4.27. Based on all the information so collected, DCF decides whether the 51A report should be " supported" or " unsupported" in a report issued pursuant to G.L. c. 119, § 51B (" 51B report"). Id. § 4.32.
DCF will deem allegations supported if there is " reasonable cause to believe" that a caretaker inflicted abuse upon or neglected a child. Id. § 4.32(2). " Reasonable cause to believe" means " a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected." Id. DCF will consider " direct disclosure by the child(ren) or caretaker; physical evidence of injury or harm; observable behavioral indicators; corroboration by collaterals (e.g., professionals, credible family members); and the social worker and supervisor's clinical base of knowledge." Id. In the context of allegations of physical abuse, DCF must find " soft tissue swelling or skin bruising" relative to " such factors as the child's age, circumstances under which the injury occurred, and the number and location of bruises." Id. § 2.00.
When DCF " supports" allegations of abuse or neglect, the aggrieved caretaker may request a " Fair Hearing" to appeal the 51B report. Id. § § 10.06(8), 10.08. An impartial officer presides over a formal Fair Hearing, which is recorded. Id. § § 10.01, 10.03, 10.19, 10.26. The " Hearing Officer" may affirm, reverse, or remand the challenged decision in a written decision issued no later than 60 days following the close of the record. Id. § 10.29. Although the Fair Hearing decision is considered the final decision of DCF, an aggrieved party has the right to seek judicial review of the decision pursuant to G.L. c. 30A. Id. § 10.30.
Procedural and Factual Background
In 2012, DCF placed B and his two younger sisters (collectively, " the children") with EP and her husband AP. At all relevant times, B was 9 years old, and his sisters were 3 and 5 years old, respectively. EP and AP operated an approved foster home. As EP and AP provided foster care and pre-adoptive care to B and his sisters, they were considered " caretakers" for purposes of the DCF's regulations. See 110 Code Mass. Regs. § 2.00.
As part of becoming a licensed foster home, EP and AP signed two written agreements with DCF that conferred upon them the responsibility of, inter alia, maintaining a safe home, ensuring that the placed child receives adequate supervision and protection, and refraining from using any physical punishment upon any child in DCF custody or care.
B took medication to assist him with attention deficit/hyperactive disorder and sleeping. B also suffered from Von Willebrand's disease, a blood-clotting disorder that increases proneness to bruising.
The first 51A report regarding the children was filed in June of 2012. The reporter charged EP and AP with neglect, because they allegedly permitted B to take a night-time medication in the morning. A subsequent 51B report concluded that these allegations were unsupported.
All identifying information of the reporter has been redacted. For the sake of clarity, the Court will refer to the reporter using masculine pronouns.
On October 18, 2014, two 51A reports concerning one of B's sisters were filed, both alleging neglect. While assisting B's sister in the restroom at daycare, the reporter observed a yellowish, oval, one-inch bruise on the girl's hip, and a smaller, half-inch, brown bruise above her vaginal area. After investigation, DCF determined these claims to be " unsupported." The collateral interviewees in the investigation, however, noted that EP would often " fly off the handle" when daycare staff confronted her about issues regarding B's sister.
On April 10, 2014, DCF received a new 51A report, alleging that EP had physically abused and neglected B during the events of the prior evening (" the April 2014 incident"). During that evening, EP had called the reporter because she became extremely upset after she came to believe that B had stolen her cellphone and given it to one of his classmates. (In point of fact, B had hidden the phone under his sister's bed.) When the reporter suggested to EP that she try to get some sleep and to de-escalate the situation, EP said, " I can't sleep so B can't sleep." The reporter indicated that when he went to the family's home, he discovered that everything in B's bedroom had been strewn about the room.
When DCF interviewed B about the events of the night of April 9, B expressed anxiety that he was not " supposed" to tell what had happened. B also communicated his desire to " make the placement work" for the sake of remaining with his sisters, with whom B is tightly bonded. B ultimately disclosed that EP had squeezed his face, hit him on his side, and grazed his face with a stick-like object. B also described EP grabbing him by the arm and guiding him from room to room to search for the phone.
DCF also interviewed B's sisters regarding the events of April 9. The sisters both reported that EP had hit B's back, and told him that she was going to kill him. One sister additionally disclosed that EP has grabbed B by the neck more than 20 times.
EP explained that the night at issue was the culmination of a week-long search for her cellphone, and that she had consistently asked B about its location because she suspected him of taking it. EP described her and AP's behavior on the evening of April 9 as follows: " We lost our temper, we were raising our voices, we were yelling at B. We told B we are so angry with you, we are pissed off with you right now." She fully admitted to telling B that she " could kill him, " grabbing his face and pointing at his stomach. EP, however, denied striking B.
The 51A reporter stated that EP " lost her mind" during the phone call on April 9. He described EP as inconsolable and unable to separate herself from B because she was " too angry."
During the investigation, the 51A reporter informed EP that B felt unsafe at home. EP responded that " B didn't have the right to feel unsafe because she felt unsafe with B." EP went on to ask, " What happens when B turns 19 and he tries to kill us?" The reporter felt that this statement took the situation to an extreme hypothetical, as B had not exhibited any sort of homicidal ideation.
Both DCF's investigator and family resource worker noted in the investigative report that EP had a history of making complaints against collateral interviewees who had reported concerns with her parenting. DCF staff further noted the 51A reporter's concern that EP might terminate his services because of the report, despite B's apparent comfort dealing with him. The record also discloses that EP and AP terminated in-home therapeutic services in May of 2014.
In a 51B report dated May 21, 2014, the allegations of neglect concerning the incident of April 9 were found to be supported. The abuse allegations were not supported. The report specifically found that: there was a physical incident between EP and B that included EP squeezing B's face, pointing to his stomach and grabbing his arm; B's sisters' reports confirmed the physical incident; EP was very emotional and proceeded to act inappropriately toward B, including packing all of B's belongings and telling him that she could kill him; and that EP failed to provide B with minimally adequate care and emotional stability.
The April, 2014 finding of neglect resulted in a Fair Hearing decision that was issued on February 12, 2015, upholding the allegations of neglect and ordering the revocation of AP and EP's license to provide foster care. AP and EP sought judicial review of that decision pursuant to G.L. c. 30A, and that appeal, Civil Action No. 15-0733-H, remains pending in Suffolk County Superior Court.
On June 3, 2014, B was taken to the hospital for evaluation following an incident in which he was playing with matches and set fire to two locations in the home while under EP's supervision. A nurse noticed bruises all over B's body, abrasions on his right hip and back, and a scratch on his neck. Bruises on B's arm appeared to be purplish-blue, and were consistent with the size and shape of fingerprints. The other injuries appeared to be in more advanced stages of healing. When the nurse asked B about the bruises, B reported that the marks on his right arm resulted from having been " dragged from room to room." The other bruises and injuries, he noted, were from other causes: falling off his bike; falling onto his bedframe and a metal pole in his room (later determined to be part of his brass bedframe); bumping into his dresser; and the family cat scratching his neck.
Upon further questioning, B asked, " If I tell you this, will I still be able to stay with my sisters?" and stated, " Wait, if I tell then I am going to be separated from my sisters and I don't want to be so I am done talking."
On June 4, 2014, a DCF adoption social worker, Beth Tetreault (" Ms. Tetreault"), and a family social worker, Kimberly Nadeau (" Ms. Nadeau"), met with EP and B at the hospital. At that time, both social workers observed bruises all over B's body. They were also present when B reported to the nurse the origin of all the bruises, including that the bruises on his arm were caused by EP dragging him.
Ms. Tetreault and Ms. Nadeau purportedly exchanged e-mails regarding B's allegations against EP. As the Hearing Officer did not rely on these unverified e-mails, however, neither will the undersigned.
That same day, DCF received another 51A report (" the 51A Report"), alleging that EP had physically abused B based on B's reports to the nurse. In light of the previous supported allegations against EP, DCF determined that these allegations warranted investigation.
On June 9, 2014, while he was still in the hospital, B met with a DCF investigator, Doreen Gwozdz (" Ms. Gwozdz"). On this occasion, B denied that EP had caused the bruises on his arm, and claimed that the bruises occurred during the events of April 9. B also blamed the injuries on the fact that he falls a lot. He refused to show Ms. Gwozdz any of his injuries, however, because he said that he did not need to do so as EP had not harmed him. Despite such lack of cooperation, Ms. Gwozdz observed a yellow bruise on B's arm. B also stated that AP and EP " are the only nice family I know, I would like to stay with them, they are a good family." According to Ms. Gwozdz, who had interviewed B in connection with the investigation of the April, 2014 incident, B appeared noticeably more " guarded" and not as " open and talkative" as he had been during their prior interactions.
The April 9 incident involved EP " directing" B from room to room, but there were no allegations of bruising arising from those events.
Ms. Gwozdz also met with B's case manager, Kim Cross (" Ms. Cross"), while at the hospital. Ms. Cross indicated that, when she informed B that Ms. Gwozdz would be coming to interview him, B became quiet. Ms. Cross additionally expressed her surprise to the investigator regarding B's most recent comments, as B had previously told her that he did not want to return to the care of EP and AP.
EP and AP were also interviewed. AP stated that he did not see any bruises on 13's arm prior to his visit to the hospital. AP alternatively attributed the marks on 13's arm to an incident where AP had to grab B's arm in order to prevent B from falling off his bed. EP and AP both consistently denied the allegations of physical abuse. They reported that everything had been going well with B prior to June 3, and that B had been helping around the house.
In a 51B report dated July 28, 2014 (" the 51B Report"), Ms. Gwozdz found that the June 3 allegations of physical abuse against EP were supported. DCF subsequently removed B and his sisters from the home, and revoked EP and AP's license to provide foster care.
The removal of the children and revocation of the foster care licence were due, in part, to the April, 2014 charge of neglect, in addition to the 51B Report at issue in this case. The revocation is part of the pending appeal discussed supra n.4.
A Fair Hearing was held on February 20, 2015. The Hearing Officer received 11 exhibits from the parties, and heard from 3 witnesses: EP, AP, and Ms. Gwozdz. EP was represented by counsel during the hearing. The parties presented the issue to be decided as follows:
[W]hether, based on upon the evidence and the hearing record as a whole, and on the information available at the time of and subsequent to the investigation, the Department's decision or procedural action, in support of the 51A report of neglect and physical abuse violated applicable statutory or regulatory requirements, or the Department's policies or procedures, and resulted in substantial prejudice to [EP]; if there is no applicable statute, policy, regulation or procedure, whether the Department failed to act with a reasonable basis or in a reasonable manner which resulted in substantial prejudice to [EP]; for a decision to support a report of abuse or neglect, giving due weight to the clinical judgments of the Department social workers, whether there was reasonable cause to believe that a child had been abused or neglected. 110 Code Mass. Regs. § 10.05.
At the hearing, AP testified that he and EP would lead B around to " direct" him, or if he was in trouble, by placing one hand on B's back to guide him and by placing another hand on his arm. EP would then lead B to where she wanted to show him something that he had done wrong. AP, however, consistently denied that either he or EP had ever used any force to drag or pull B. AP described EP as calm throughout the incident in June of 2014, and stated that she had relied on the DCF crisis center to advise the two of them on how to proceed in the difficult circumstances presented.
EP also testified at the hearing. EP stated that when B did something wrong, she placed the palm of her hand on the back of B's upper arm and led him so that she could show him what he had done. EP justified this action based on B's history of making himself fall when he found himself in trouble. She also denied ever physically dragging B. In comparing her reaction to B lighting fires within the house to her reaction to the cellphone incident in April of 2014, EP testified that she had made a promise to herself that she would never act that way again, and that she had made a conscious effort following the former incident only to " touch B with love." EP denied disciplining B in any way after the fire of June of 2014, and further denied even being angry with B for what had transpired.
The Hearing Officer issued her opinion on June 17, 2015 (" the Administrative Decision"), upholding DCF's determination that the evidence supported a finding of physical abuse against EP. In so ruling, the Hearing Officer determined that the testimony of EP and AP was not credible, because their statements were mutually incompatible and inconsistent (e.g., they need to lead B around when he was resistant, but they used absolutely no force to do so; EP has " never" dragged B, yet she decided after the April, 2014 incident only to " touch him with love"). The Hearing Officer further found that both AP and EP were noticeably hesitant in their responses. The Hearing Officer did not credit the testimony that EP was calm and not angry when B lit fires in the house, particularly in light of EP's documented history of losing control (in reaction to less serious matters, such as a missing cellphone) when she is upset.
The Administrative Decision rested upon several grounds. First, the evident lack of credibility of the foster parents' testimony weighed in favor of DCF's decision. Second, EP's reported history of " losing control" or " flying off the handle" and her " inability to de-escalate" in situations less provocative than B starting fires in the home militated strongly toward the conclusion that EP had reacted in like fashion on this occasion. Third, despite AP's testimony that B did not have bruises prior to going to the hospital, DCF and hospital staff observed bruises all over B's body that were consistent with fingerprint marks and that remained visible several days later. Finally, the Hearing Officer credited B's initial report that EP's dragging him from room to room was the primary cause of his bruises, and credited Ms. Gwozdz' observation that B became guarded to the point of shutting down when he realized that further comments might cause him to be separated from his sisters. Under a reasonable cause to believe standard, the Hearing Officer upheld DCF's determination.
On July 16, 2015, EP filed the instant action against DCF, seeking judicial review of the Administrative Decision in accordance with G.L. c. 30A, § 14. EP now moves for judgment on the pleadings in favor of her claim. Having heard oral argument on May 11, 2016, and considered the parties' filed submissions, the Court rules as follows.
DISCUSSION
STANDARD OF REVIEW
In light of the " the experience, technical competence, and specialized knowledge of the agency . . . [and] [its] discretionary authority, " courts " will not disturb the [agency's] decision unless it was made in excess of the board's statutory authority; is unsupported by substantial evidence; or is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." G. L. c. 30A, § 14; J.M. Hollister, LLC v. Architectural Access Bd., 469 Mass. 49, 55 (2014). Where the Court reviews a DCF determination in support of an allegation of abuse or neglect, " there need only be substantial evidence supporting the conclusion that there was reasonable cause to believe" the allegations in light of all the information that was before the investigator. Lindsay v. Department of Soc. Servs., 439 Mass. 789, 798 (2003). " Substantial evidence" is defined as " such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1(6). Plaintiff bears the burden of demonstrating the invalidity of an agency decision. Merisme v. Board of Apps. on Motor Vehicle Liab. Policies and Bonds, 27 Mass.App.Ct. 470, 474 (1989).
" Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge." Pilon, Jr.'s Case, 69 Mass.App.Ct. 167, 169 (2007). " Under the substantial evidence test, a reviewing court is not empowered to determine the facts anew, or to judge credibility, or to draw different inferences from the facts found by the [agency]. Gnerre v. Massachusetts Comm'n Against Discrimination, 402 Mass. 502, 509 (1988). See also Stone-Ashe v. Department of Envtl. Protect., 86 Mass.App.Ct. 16, 24 (2014) (" [I]t is true that when the subsidiary findings of an administrative magistrate rest on a resolution of credibility questions (i.e., that a fact is true because a witness testified to it and that witness is believable), they should be entitled to substantial deference.") (internal modifications and quotations omitted). Courts, however, " must consider anything in the record that fairly detracts from the weight of the evidence supporting the [agency's] determination." Salem v. Massachusetts Comm'n Against Discrimination, 44 Mass.App.Ct. 627, 641 (1998). Nonetheless, " [t]his does not permit a court to treat the proceeding as a trial de novo on the record which was before the administrative board." Southern Worcester Cnty. Reg'l Vocational Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 420 (1982).
ADMISSIBILITY OF 51A AND 51B REPORTS
EP's principal point of challenge to the Administrative Decision is that the Hearing Officer unlawfully relied on information contained in the 51A Report and 51B Report as substantive evidence. Generally, 51A reports are admissible only for the limited purpose of providing background information, or to " set the stage." Mass. G. Evid. § 1115(b)(2)(A); Custody of Michel, 28 Mass.App.Ct. 260, 267 (1990). Likewise, while " [p]rimary facts contained in Section 51B investigations are admissible[, ] [s]tatements of opinion, conclusions, and judgments contained in these reports are not admissible." Mass. G. Evid. § 1115(b)(2)(B). " Primary fact ... connotes facts which can be recorded without recourse to discretion and judgment, e.g., the fire alarm sounded at 10:30 PM; it was raining lightly at the time of the accident; the child placed with Mr. and Mrs. Doe for foster care on January 29, 1989." Custody of Michel, 28 Mass.App.Ct. at 274. Compare Minnehan v. Department of Soc. Servs., 10 Mass.L.Rep. 364, 369 (Mass. Super. 1999) (McHugh, J.) (finding that adverse testimony that child was " relieved" or child's statements were " credible, " without other supporting or corroborating evidence, went beyond permissible primary facts and constituted impermissible opinion and judgment).
" Competent evidence regarding an incident that was the subject of an unsubstantiated Section 51A report may be admitted at trial against a parent as long as the evidence is 'sufficient to convey to a high degree of probability that the proposition is true.'" Note to Mass. G. Evid. § 1115(b)(2) (quoting Adoption of Iris, 43 Mass.App.Ct. 95, 105 (1997)). Where a hearing officer relies on hearsay contained in a 51A report, such statements are inadmissible against the parents unless they " have a fair opportunity to rebut the statements through cross-examination of the investigator and his sources, and by other means." Care and Protection of Inga, 36 Mass.App.Ct. 660, 664 (1994). The fact-finder may also base a determination of substantial evidence on hearsay alone if the statement bears sufficient indicia of reliability, such as the " detail and consistent nature of ... reports, [] resistance to the suggestiveness of leading questions, and the absence of any motive or reason for [the declarant] to make false allegations." Covell v. Department of Soc. Servs., 439 Mass. 766, 786 (2003).
EP asserts that the Hearing Officer improperly relied on B's assertion to an unnamed nurse that EP had " dragged him from room to room" (an assertion contained in the 51A and 51B Reports) because EP did not have the opportunity to test B's statements by cross-examining the nurse, Ms. Tetreault, or Ms. Nadeau, all of whom were present when B is purported to have made this allegation. The Court disagrees. For one, EP cross-examined Ms. Gwozdz at length regarding her investigation and interviews with the nurse, Ms. Tetreault, Ms. Nadeau, and B. This represents a substantial check on the hearsay concern. See Care and Protection of Inga, 36 Mass.App.Ct. at 664 (hearsay statements in 51 A reports may be substantiated through cross-examination of the investigator's sources, or " other means"). See also Adoption of George, 27 Mass.App.Ct. 265, 272 (1989) (" It would ill serve the interests of the parties or the court if each contributor to the case record were required to present testimony from her or his own mouth."). Additionally, EP had sufficient information to identify the nurse (viz., the name of the nurse's supervisor, the hospital, the time-frame when B made his allegations, and a description of the nurse from Ms. Tetreault and Ms. Nadeau), as well as the opportunity to question her, but simply elected not to do so. Moreover, EP chose not to interview Ms. Tetreault and Ms. Nadeau, who were also present when B spoke with the nurse. These first-hand witnesses could have corroborated or contradicted the statements contained in the 51 Reports, and thereby either buttressed or undermined the reliability of such hearsay evidence. In these circumstances, the Court declines to find error in the Hearing Officer's reliance on B's statements in the 51A Report. EP vigorously cross-examined the investigator who made the report of such statements, and elected not to exercise her right to question other percipient witnesses to the statements who were fully available to her. No reversal-worthy unfairness attaches to the Hearing Officer's reliance on the 51A and 51B Reports. See Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm., 401 Mass. 526, 531 (1988) (" The right to confront and cross-examine adverse witnesses is not self-executing. Having failed to invoke their right to call ... a witness, they cannot be heard to complain of the consequences.").
61 pages of a 107-page hearing transcript are devoted to questioning Ms. Gwozdz; and of those 61 pages, 47 consist of EP's cross-examination of Ms. Gwozdz. EP asked Ms. Gwozdz, inter alia, whether B ever told her directly that EP had dragged him; whether Ms. Gwozdz had spoken with EP prior to speaking with Ms. Tetreault and Ms. Nadeau; and about her observations of the bruise on B's arm when she saw B several days after the 51A Report was filed.
The Court further endorses the view that the 51A and 51B Reports bear sufficient indicia of reliability to overcome any hearsay concern. The statements attributed to B were detailed, consistent with other evidence, and came from a person whose only discernible motive for mendacity -- his repeatedly declared desire to remain in foster care with his sistersenhanced rather than undermined the credibility of the abuse allegations directed toward EP.
Additionally, EP characterizes the information concerning the timing and cause of B's bruising in the 51A Report and the 51B Report as amounting to inadmissible opinions, conclusions, and judgments. Generally, opinions regarding the ultimate issue of a 51A investigation constitute inadmissible evidence. See Adoption of George, 27 Mass.App.Ct. at 273 (" What complicates the use of case files ... is [when] they are laced with judgmental observations and opinion ...."); Minnehan, 10 Mass.L.Rep. at 369 (finding that hearing officer improperly relied on reporter's judgment that child was " relieved" to avoid trip with foster parent charged with sexual abuse of child). This limitation, however, is subject to practical considerations. See Adoption of George, 27 Mass.App.Ct. at 272-73. Here, without other evidence, these descriptions in the 51 Reports provided important circumstantial evidence of the timing and potential causes of B's injuries. But while these observations factored into the Hearing Officer's ultimate determination, they were not conclusions on the ultimate issue of whether there was reasonable cause to believe that EP inflicted these injuries on B, thereby rendering them admissible as evidence.
The Reports contained statements that the bruising were " fresh" because of its purple and blue color, and because AP had stated that he did not observe any bruises on B before B was admitted to the emergency room. Additionally, the unnamed nurse reported that the shape of the bruises was consistent with the mark of fingerprints.
EP also claims that these opinions are inadmissible because DCF failed to lay a foundation for such evidence (viz., a foundation that either the receiving nurse or Ms. Gwozdz were competent to render an opinion on the cause of B's bruises; or corroborating medical records or photographic evidence). EP's argument fails, however, as it plainly goes to the weight rather than admissibility of the subject evidence. No special qualification of either the nurse or Ms. Gwozdz was required in this case, because their testimonies were based on everyday observation and were, in all events, subject to cross-examination through Ms. Gwozdz during the Fair Hearing. See Partelow v. Newton & B. S. R. Co., 196 Mass. 24, 31 (1907) (witness may describe observations of everyday experience, although it involves in some measure his opinion or judgment). Cf. Commonwealth v. Canty, 466 Mass. 535, 542 (2013) (" [A] lay opinion is admissible only where it lies within the realm of common experience, because a lay opinion is relevant only where ... the principal objective symptoms are so well known that we consider the lay opinion to have probative value.") (internal quotation marks omitted). In the present case, the observation that B's bruising was consistent in appearance with human fingerprints fell comfortably within the purview of what a trained nurse and/or DCF operative, or indeed most any layperson, might know from ordinary experience.
In light of the foregoing, the Hearing Officer did not err in relying on B's allegations and the supporting observations by the nurse and Ms. Gwozdz in the reports at issue, as there were more than sufficient indicia of reliability attached to them. See Covell, 439 Mass. at 786; Adoption of Iris, 43 Mass.App.Ct. at 105. Evidence of B's demeanor of being " guarded" and " essentially shut down" when he realized that his allegations might result in separation from his sisters, with whom he is deeply bonded, supported the Hearing Officer's decision to credit his earlier allegations. There is likewise no suggestion that the nurse asked B leading questions to provoke such an allegation. Covell, 439 Mass. at 786 (suggestiveness of leading questions bears on reliability of hearsay evidence in 51A reports). In point of fact, B ascribed different causes to his many other injuries, but specifically attributed the bruise on his arm to EP, suggesting that B could have denied the fact of abuse had this been the truth. That he did not do so in this instance clearly reinforces the reliability of his statement. Moreover, the color of B's bruise and its shape were found to be consistent with a recent injury, and appeared to mirror the shape of human fingerprints. These facts further corroborate B's statement in important ways. In these circumstances, and in the absence of legal error, the Court will not disturb the Hearing Officer's subsidiary findings of fact and inferences drawn therefrom in determining the credibility of B's report. See Pilon, Jr.'s Case, 69 Mass.App.Ct. at 169; Gnerre, 402 Mass. at 509.
PRIOR FAIR HEARING DECISION
EP also avers that the Hearing Officer erred in adopting findings of fact from the Fair Hearing decision rendered in connection with the events of April of 2014 (viz., EP's history of grabbing B, losing control, " flying off the handle, " and inability to control her anger and emotions), because the elements of collateral estoppel were not met. To the extent that EP contends that the prior Fair Hearing decision could not be accorded preclusive res judicata effect, the Court agrees. There is no binding adjudication as concerns the April 2014 charge of neglect and related revocation of EP and AP's foster care license, as the pending appeal of that decision forecloses the finality necessary for preclusion. See Alba v. Raytheon Co., 441 Mass. 836, 841 (2004) (collateral estoppel provides preclusive effect only for valid and final judgments; judgment became final when plaintiff failed to perfect her appeal to the department's reviewing board).
Res judicata, however, is not the issue presented in this case; for the Hearing Officer merely gave factual credit to -- rather than declare herself bound by -- the findings reflected in the earlier Fair Hearing decision. In this regard, EP has failed to persuade the Court that the Hearing Officer was not even permitted to consider such findings. " Generally, recent findings from a prior care and protection decision are admissible in a later care and protection or termination proceeding when such findings are relevant and material and made during a proceeding in which the parents had a compelling incentive to litigate." Adoption of Darla, 56 Mass.App.Ct. 519, 520-21 (2002). See also 110 Code Mass. Regs. § 10.26(6) (" When reviewing a support decision ..., the hearing officer may consider information available during the investigation ... that would either support or detract from the Departments decision."). Massachusetts courts have admitted into evidence findings of fact from prior care and protection decisions despite the fact that the prior decision had not yet been heard on appeal. Id. at 521 (citing Adoption of Paula, 420 Mass. 716, 721-22 (1995); Adoption of Simone, 427 Mass. 34, 44 (1998)). In situations where " the same parents had a compelling incentive to litigate at the prior termination proceeding, and the findings from that earlier termination decision are relevant and material and not stale, those findings, while not dispositive, may be considered by the judge in a subsequent termination proceeding." Adoption of Darla, 56 Mass.App.Ct. at 521.
EP argues that Darla is inapposite because it was a care and protection case rather than an abuse or neglect case. The Court sees no materiality to the distinction. The evidentiary issue presented in both Darla and the case at bar is whether a Hearing Officer's prior findings of fact may be considered. They can.
In the instant case, EP faced allegations of physical abuse arising from the April, 2014 incident that are similar to those presented in the Administrative Decision here at issue. DCF threatened EP with the revocation of her status as a foster parent during the investigations of both April, 2014 and June, 2014. Significantly, only a few months lapsed between the supported allegations of neglect from April, 2014 and the allegations of physical abuse now under review. Based on EP's compelling incentive to litigate in the prior Fair Hearing, together with the temporal proximity of that proceeding, the Hearing Officer did not err when considering evidence of EP's history of abusive and aggressive behavior in the Fair Hearing conducted below. Id. The prior findings of fact were merely evidence that the Hearing Officer chose to consider along with all of the other evidence in the case when making her decision, a practice permissible as a matter of common sense and in accordance with Darla.
SUBSTANTIAL EVIDENCE
Finally, EP challenges the Administrative Decision on the ground that the Hearing Officer placed insufficient emphasis on evidence suggesting alternative causes for B's injuries, to wit, his high risk of bruising due to Von Willebrand's disease and his rambunctious 9-year-old-boy type behavior. It is well established that, when applying the substantial evidence test, courts " examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight." Cobble v. Commissioner of Dep't of Soc. Servs., 430 Mass. 385, 390 (1999). Courts must defer to administrative agencies' determinations of close questions of fact, unless " the cumulative weight of the evidence tends substantially toward opposite inferences." Id. at 391. Here, the Court determines that the cumulative weight of the evidence does not warrant reversal of the Administrative Decision. Even acknowledging B's diagnosis of Von Willebrand's disease and his proneness to bruising due to a hyperactive nature, B's reported allegations, the visible bruising on his arm, EP's demonstrated lack of credibility, and her history of instability and aggression (including an eerily similar description by EP of her practice of " directing" B around the house while she " held" his arm), supply abundantly reasonable grounds to believe that EP caused B's injuries in this case.
EP also challenges the Hearing Officer's finding that it was " not difficult to imagine" how a foster mother could lose control when a foster child starts fires at home as improperly substituting her own theories of human nature for actual testimony and " substantial evidence." EP, however, through an overly fine parsing of the Hearing Officer's vocabulary, mischaracterizes the essential substance of her statement. The Hearing Officer simply considered the plausibility ( vel non ) of EP having a calm and measured reaction to B's setting fire to her home in light of EP's history of losing control with foster children and an inability to restrain her temper in situations far less provocative than the circumstances at issue. Such weighing of the evidence to determine whether there was reasonable cause to believe that abuse occurred was the proper province of the Hearing Officer. See 110 Code Mass. Regs. § 10.05(c) (" A Fair Hearing shall address whether, based upon the evidence and the hearing record as a whole ... and giving due weight to the clinical judgments of the Department social workers, there is reasonable cause to believe that a child has been abused or neglected ....").
Even if the findings of fact from the April, 2014 Fair Hearing decision are ultimately determined to be unsubstantiated in the pending appeal, the decision at issue in this case would still satisfy the standard of substantial evidence to support reasonable cause to believe that EP abused B. The Supreme Judicial Court has expounded the lesser demand posed by the " reasonable cause" standard as follows:
As constructed by the regulations, the [DCF's] registry of alleged perpetrators is not limited to those cases of abuse that have been proved by some greater quantum of evidence than a mere 'supported' report. Rather, the registry includes all cases where the underlying abuse has been established by 'reasonable cause to believe' and the identification of the perpetrator is sufficiently clear that it meets the 'substantial evidence' test as to the identification itself.Covell, 439 Mass. at 780. See also 110 Code Mass. Regs. § 4.32(2) (defining " reasonable cause to believe" as " a collection of facts, knowledge or observations which tend to support or are consistent with the allegations....") (emphasis added). In light of the modest burdens of this standard, B's statements implicating EP, the observation of physical evidence of abuse, B's perceived credibility when making his first disclosure, and the overall implausibility of AP and EP's testimony provided more than reasonable cause for the Hearing Officer to believe the charge of abuse against EP.
Finally, even if the evidence did present a close question of fact, the Court would in all events be constrained to defer to the Hearing Officer's fact-finding. Cobble, 430 Mass. at 390; Pilon, Jr.'s Case, 69 Mass.App.Ct. at 169 (quoting Chapman's Case, 321 Mass. 705, 707 (1947)) (Courts " will not disturb the judge's findings that are 'reasonably deduced from the evidence and the rational inferences of which it was susceptible"); Flint v. Commission of Pub. Welfare, 412 Mass. 416, 420 (1992) (" The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.... This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom.") (citations and quotations omitted); Southern Worcester Cnty. Reg'l Vocational Sch. Dist., 386 Mass. at 420 (" A court may not displace an administrative board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo."); Massachusetts Gen. Hosp. v. Waldman, 19 Mass.L.Rep. 712, 714 (Mass. Super. 2005) (Troy, J.) (" [I]t is not the court's role to decide questions of credibility and weigh conflicting evidence; rather, the court must defer to the agency's expertise in judging credibility and drawing inferences"); Carusi v. Department of Soc. Servs., 2004 WL 3091643 (Mass. Super. 2004) (Fecteau, J.) (deferring to hearing officer's determination of credibility of wife's adverse testimony against husband in neglect case, owing to hearing officer's knowledge, experience and opportunity to observe witnesses).
In sum, in light of the substantial deference that courts owe to administrative agencies' expertise, experience and first-hand fact-finding, and noting the substantial evidence supporting the Administrative Decision summarized ante, the Court sees no grounds for disturbing the determination of the DCF in this case. That determination shall be affirmed in accordance with the principles of review prescribed by G.L. c. 30A, § 14.
ORDER
In accordance with the foregoing discussion, Plaintiff's Motion for Judgment on the Pleadings (Dkt. # 5) is DENIED.
JUDGMENT SHALL ENTER in favor of Defendant Department of Children and Families.
SO ORDERED.
Robert B. Gordon
Justice of the Superior Court
Dated: May 17, 2016