Opinion
No. HHB CV 07 4012612S
January 29, 2008
MEMORANDUM OF DECISION
The plaintiff appeals from a final decision of a hearing officer for the Department of Children and Families (DCF) dated November 8, 2006, substantiating DCF's finding of the emotional neglect of her children under General Statutes § 17a-101g(b) and DCF policy manual § 34-2-7. The DCF had issued a Notification (Return of Record (ROR), Exhibit 1) substantiating both physical and emotional neglect. The plaintiff then asked for a hearing before a DCF hearing officer.
The DCF hearing officer made the following findings of fact:
1. In February of 2006 the [plaintiff], her husband, their fourteen (14) year old daughter and eleven (11) year old son were living together.
2. On February 5, 2006, the [plaintiff] took their daughter back to the hair salon because the daughter did not like the results of the earlier coloring. The daughter wanted her mother [the plaintiff] to indicate that the [plaintiff] did not like the color. Later that evening, the [plaintiff] and her daughter started to argue about the [plaintiff's] telling the stylist that the girl did not like the color. The [plaintiff's] husband started to defend their daughter and engaged his wife in a disagreement. The disagreement escalated verbally and the father decided he was going to leave.
3. Their son and daughter wanted to go with [the plaintiff's] husband. The three of them went to the garage and got in the car. The [plaintiff] went after them and physically hit her husband. The husband exited the vehicle. The [plaintiff] got in the car and tried to damage the inside of the vehicle. Her husband convinced the [plaintiff] to get out. He got in the car and left with children. He went to their pastor's home.
4. While at the pastor's home, the daughter did not want to return home. Her therapist was called and they went to her house. The [plaintiff's] family stayed with the therapist's husband while the therapist went to see the [plaintiff] at her house. The [plaintiff] assured the therapist that all would be well if her family returned. Her husband and children returned home that evening.
The hearing officer concluded that the DCF had failed to establish that the plaintiff's conduct constituted physical neglect under DCF regulation § 34-2-7, because "the evidence does not show that the children's safety was in jeopardy." He therefore reversed the substantiation of physical neglect that the DCF staff had made prior to the hearing.
As to emotional neglect under regulation § 34-2-7, the hearing officer stated that DCF was required to prove that the plaintiff was responsible for the care of the children, that she denied the children proper care and attention, and that there was a negative emotional impact on a child or interfered with a child's positive emotional development.
He concluded: "[T]he [plaintiff] is a person responsible for her children's care. And she did deny them proper care and attention. She and her husband engaged in a verbal dispute to the extent that her husband wanted to leave and the children wanted to go with him and not return home. It was proper for the [plaintiff] to discuss her daughter's embarrassment that the stylist knew she did not like the new hair color. It was not proper that the matter escalated to the point that the [plaintiff] went after her husband and was so out of control that she was trying to damage the inside of the car. The children were adversely impacted from the [plaintiff's] conduct. They were frightened and afraid to return home. The [DCF] has proven the three elements of emotional neglect. The decision to substantiate the [plaintiff] as a perpetrator of emotional neglect of her two children is upheld."
The DCF did not seek to place the plaintiff on the central registry maintained by DCF under General Statutes § 17a-101k(a).
This appeal followed from the final decision of the hearing officer. § 17a-101k(e). The plaintiff makes three claims on appeal. She first argues that the hearing officer erred in not allowing her daughter to testify, misapplying a DCF regulation. Secondly, the plaintiff claims that the DCF investigation was flawed and there is no substantial evidence in the record to support the conclusions of the hearing officer. Finally, the plaintiff disagrees with the conclusion of the hearing officer that a necessary element for substantiation of emotional neglect — an adverse impact on the children — may be found in the record.
Aggrievement is found in the hearing officer's affirming DCF's substantiation of emotional neglect. Moore v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. HHB CV 054010204 (December 10, 2007, Cohn, J.).
The standard of court review of the plaintiff's issues on appeal has been summarized as follows: "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted.) Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603, 893 A.2d 431 (2006); "Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7(2001); "[O]n the basis of [the court's] review of the record . . . there is substantial evidence in the record to support the DCF decision. The fact that there is contrary evidence in the record and that the plaintiffs disagree with the weight accorded to the evidence, does not affect the validity of the DCF decision." Dailey v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 98 0492670 (January 11, 2000, Hartmere, J.).
Turning to the plaintiff's first issue, she contends that the hearing officer improperly removed her daughter from her witness list under § 22-12-7 of the DCF policy manual that provides: "[T]he abused or neglected child who is the subject of the substantiation shall not testify in a substantiation hearing." The plaintiff points to Exhibit 8, the DCF investigation protocol, that lists the daughter as "Birth Sibling" to argue that the daughter was not the subject of the substantiation. On the other hand, subsequent documents, issued before the hearing, indicate that the DCF also considered the emotional neglect of the daughter in its decision to substantiate. See ROR, Exhibit 1, June 5, 2006, "Notification of Investigation Review Results," and Exhibit 2, "LINK II Internal Review Investigation Appeal Screen."
In general there is no right to cross-examine or confront the child that is the subject of the substantiation. See Doe v. DCF, Superior Court Juvenile Matters, judicial district of Tolland, Docket No. CV T11 CPO 4011883 (October 12, 2004, Taylor J.).
In addition, even if the daughter were not the direct subject of the substantiation, the court notes that analogously that the calling of a child witness in a juvenile court proceeding is a discretionary matter with the court. Practice Book § 32a-4(b). Here the hearing officer accepted into evidence a statement by the daughter. (ROR, Exhibit 13.) The court finds no abuse of discretion in not allowing the daughter to testify.
Next, the plaintiff contends that the investigation was incomplete and defective, conducted by an inexperienced investigator. She relies on Exhibit 13, the statement from the daughter given six months later, to show that the investigator induced the daughter to give a damaging report during a February 6, 2006 interview of family members. She also contends that her daughter has basically a good relationship with her and has been doing well in school. Her husband testified at the hearing and submitted statements of others to indicate that he has a tendency to exaggerate situations, and therefore the incident was not as violent as described by the investigator. The plaintiff was only trying to discipline her daughter and felt her husband was interfering. He had a panic attack and had to be restrained, resulting in the torn shirt. Little of their argument took place in front of the children. Finally the plaintiff attempts to undercut the daughter's therapist's evidence, given only to the DCF hotline and to the investigator, and not at the hearing. The therapist was only involved with the daughter over school issues and not treating psychological problems. The therapist knew nothing about the son's situation. In any case she could make no judgment on whether the children were afraid of returning home.
On the other hand, the record contains the following: On February 6, when the investigator made an unannounced visit to the plaintiff's home, he observed scratch marks on the father's forehead. (ROR, Exhibit 8, p. 6.) He was told by the father that there had been past incidents where the plaintiff had become "physical" with him. The children were in the vehicle when some of the argument took place. (ROR, Exhibit 8, p. 7), and this was admitted by the plaintiff (ROR, Exhibit 8, p. 8). The daughter told the investigator that the plaintiff had slapped her at the start of the episode. The investigator met the daughter and the father before the mother returned home from work; when she arrived, the investigator noticed a change in the father's demeanor as he became less assertive. (ROR, Exhibit 8, p. 7.) When she met the daughter's therapist on the night of February 5, the plaintiff agreed to arrange family and couples counseling. (ROR, Exhibit 8, p. 8.) When the investigator met with the plaintiff on March 16, she had not arranged for this counseling and did not feel it necessary. (ROR, Exhibit 8, p. 10.) Finally, at the hearing, the plaintiff gave indication of her state of mind at the time of the incident: "When I heard that my husband had blamed me for the whole . . . I was angry. I do get outraged." (ROR, transcript, p. 13.) This evidence is sufficient to support the findings of the hearing officer regarding the February 5 incident.
The final contention of the plaintiff is that under DCF policy manual § 34-2-7, the alleged emotional neglect must have "an adverse impact on the child." She contends that the hearing officer was incorrect in finding an impact. There was evidence that the eleven-year old was autistic and showing great improvement. The February 5 events did not have any negative effect on him. The daughter's therapist could not be the source of information on the younger child. The daughter was "shaken up" by the incident, but her real concern was for the plaintiff's welfare. Therefore the therapist's statement of impact on the daughter should be discounted.
The record shows, however, that the daughter told the investigator that she was "constantly afraid" of the plaintiff. (ROR, Exhibit 8, p. 7.) There had been several incidents beyond the February 5 incident. (ROR, Exhibit 8, pp. 7-9.) The daughter told the investigator that the son is "scared" during the incidents. (ROR, Exhibit 8, p. 7.) The therapist concluded that there was violence in the home that required family counseling. (ROR, Exhibit 8, p. 9.) The investigator interviewed the daughter on February 6 and March 15, 2006. He concluded that the daughter had been coached in some of her responses between the first and second interviews. (ROR, Exhibit 8, p. 9.) This would explain the daughter's statement of September 6 (Exhibit 13) in which she retracted her statements about violence in the home. Based on the above, the hearing officer had sufficient evidence to conclude that the incident had an adverse impact on the children.
The plaintiff raises the issue of whether this incident between a teenage daughter and her mother warranted DCF attention. The record supports the conclusion that there was a pattern of domestic incidents here that the family needed to address. (ROR, Exhibit 8, pp. 6-10.) Having concluded that the hearing officer appropriately ruled on the substantiation of emotional neglect, the court dismisses the appeal.