Opinion
No. HHB-CV-06 4012364
January 11, 2008
MEMORANDUM OF DECISION
The plaintiff, Robin Handleman ("Appellant" or "Plaintiff"), appeals from two final decisions dated September 5, 2003 and October 3, 2006, of the Department of Children and Families (DCF) substantiating emotional abuse by the appellant and placing her name on the central registry. General Statutes §§ 17a-101g(b); 17a-101k.
This is also known as the "child abuse and neglect registry." See Teresa T. v. Ragaglia, 272 Conn. 734, 752 (2005).
Section 17a-101g(b) requires DCF to determine whether a child has been abused, whether an identifiable person was responsible for such abuse, and whether such identifiable person should be placed on the child abuse and neglect registry. Section 17a-101k mandates the establishment of the registry, allows for the alleged abuser to receive notice of his or her potential placement on the registry and to request a hearing before placement. If the hearing officer finds that the person's name should be added to the registry, the person may take an administrative appeal. General Statutes § 17a-101k(e).
Pursuant to General Statutes § 4-183, the appellant has taken an administrative appeal from final decisions and, because of the substantiation of emotional abuse and the appellant's placement on the central registry, she is aggrieved. Rucci v. Dept. of Children Families, Superior Court, judicial district of New Britain, Docket No. CV 02 0516990 (November 5, 2003, Peck J.) (36 Conn. L. Rptr. 7) (noting serious consequences to appellant's reputation and employment possibilities that result from the placement of appellant's name on child abuse registry).
PROCEDURAL BACKGROUND
After completing an investigation relating to an anonymous complaint alleging appellant, a teacher at Vance Elementary School, had physically and emotionally abused one of her students, DCF substantiated the allegation of emotional abuse but not physical abuse. An administrative hearing was held on June 12 and August 14, 2003. On September 8, 2003, the hearing officer upheld DCF's substantiation of emotional abuse and the appellant appealed that decision. Appellant filed a brief on May 31, 2005 and supplemental brief on July 26, 2005.
During the pendency of the initial appeal, Public Act 05-207 was passed which set forth procedures for challenging abuse and neglect substantiation and placement on the State of Connecticut Child Abuse Registry. An administrative hearing, pursuant to § 17a-101k(c)(4), was held on August 3, 2006 on the issue of placement of appellant's name on the Central Registry. On October 3, 2006, the hearing officer upheld the decision to place the appellant's name on the Child Registry. A second appeal was filed by the appellant on November 2, 2006. The parties then agreed that both appeals should be merged. Appellant filed a supplemental brief on May 14, 2007 and defendant filed its brief on July 5, 2007. Oral argument on the combined appeals was scheduled for October 5, 2007. On October 4, 2007, the defendant filed a supplemental brief. After oral argument, the court gave the parties additional time, until November 8, 2007, to file any supplemental briefs.
FACTUAL BACKGROUND
On September 5, 2003, the hearing officer made findings of fact that may be summarized as follows:
1. J.J., date of birth February of 1993, was a special education student at Vance School during the 2000-2002 academic school years.
2. The appellant has been a teacher since 1979 with the New Britain Public Schools. During the academic school years of 2000-2002 she taught a special education class for second and third graders. J.J. was a student in her second and third grade classes. J.J. has some behavior problems.
3. Appellant worked closely with J.J. and his family and provided after school assistance to J.J. on a weekly basis from November 2001 to February 2002. J.J. was mainstreamed for part of the day.
4. On May 6, 2002, DCF received a Hotline referral from Vance School alleging suspected abuse and neglect by appellant regarding her treatment of J.J. According to the caller, J.J.'s parents complained that appellant squeezed J.J.'s hand and poked him with her fingernail. Another incident was reported that claimed that appellant put her hands on J.J.'s shoulders, pushed him out of the door, and yelled at him to "get out of my room."
5. Carrie Cassidy, DCF worker, was assigned to investigate the referral. She interviewed J.J.'s parents who indicated he had been complaining about the appellant since March or April of 2002. J.J. felt that the appellant did not like him any more. J.J. also reported that he had complained to Dr. Frenkel the appellant was mean to him. He reported being pushed by her. He also said that she dug her nail into his hand trying to get a paper away from him, and had closed his pencil box on his finger. J.J. said that the appellant grabs him on the hand and yells at him a lot.
6. Dr. Frenkel reported to Cassidy that there had been concerns expressed by teachers and parents regarding appellant yelling at some students. She reported an incident that occurred on April 18, during a school marketplace, where witnesses saw appellant screaming at J.J. for forgetting his "fins" (school earned "money") and J.J. was crying and upset. Dr. Frenkel intervened and loaned J.J. some fins and took him around the marketplace herself. Dr. Frenkel also reported that Ms. Rivera, appellant's assigned paraprofessional, expressed concerns about an incident that occurred on April 30, 2002.
7. Ms. Rivera had been appellant's paraprofessional for four years and they have a professional relationship. Ms. Rivera reported that things began "falling apart" in appellant's class around March of 2002. Appellant had been yelling at the children and made them cry. She can become easily frustrated and can be intimidating. On April 30, 2002, Ms. Rivera observed J.J. kick a chair when he was upset and appellant began to speak with the child but became upset. Ms. Rivera observed appellant put one hand on each of J.J.'s shoulders, while the two were face to face, and started to shove J.J. toward the door, yelling "get out of my room." The following day Ms. Rivera observed J.J. become upset and starting to rip a paper, appellant told him not to rip the paper and attempted to pry the paper out of the child's hands. Ms. Rivera then heard J.J. say "ouch." Ms. Rivera checked the child for marks after this incident because J.J. told her appellant had poked him with her finger.
8. Ms. Egress, another teacher at the school, also heard appellant scream "get out of my class" and observed appellant pushing the child out of her room with both hands on his shoulders and the child "staggered backwards" and nearly fell.
9. Ms. McGuiness, another Vance teacher, observed the appellant "almost nose to nose" with J.J. in the marketplace and was screaming at him while he sobbed.
10. Ms. Westerberg worked with appellant and has seen her work with children on an extracurricular play put on in the school each spring. Ms. Westberg has never observed appellant scream at any child. The last time she observed appellant in the classroom was in 1999.
11. Ms. Jasniewicz, a teacher at Vance, has never seen appellant yell at any student and believes appellant is an excellent teacher. She reported that there is a clique among teachers at Vance and that these teachers are difficult. She reported she had her own difficulties with these teachers and that some of these teachers are the ones who complained about appellant. Ms. Rivera is not in the clique that Ms. Jasniewicz described.
12. In January of 2002, appellant held a class meeting with her students regarding several incidents of misbehavior that occurred on the playground. During this meeting, the children complained to appellant that she had been in a bad mood and had been yelling at J.J. a lot. Appellant denied she had been yelling at J.J. At the hearing, appellant testified that when she discussed this matter with the children, they realized J.J. had been bad and that he had thrown a chair and his pencil box. These two incidents did not happen until three months after this class meeting.
13. Appellant admitted putting her hands on J.J.'s shoulder on April 30, 2002 but denied she pushed him or screamed at him. She denied yelling at her students but testified she had a "firm" teaching voice. She said she spoke loudly face to face with J.J. in the marketplace but said there were approximately 100 people present, and she did so he could hear her.
14. Appellant was placed on administrative leave on May 5, 2002. She returned to her classroom on August 15 and taught without incident for the entire 2002-2003 academic school year.
15. Appellant believes she has an adversarial relationship with mainstream teachers because she strongly advocates for students to be in the least restrictive classroom setting. She also testified she has an excellent working relationship with Ms. McGuiness, whose classroom was next to appellant's.
Based on these findings, the hearing officer concluded that DCF had substantiated the emotional abuse by the appellant. The hearing officer found appellant's testimony regarding her demeanor and persecution by other teachers to be self-serving and not credible in light of all the evidence presented.
On October 3, 2006, the hearing officer, reviewing the substantiation for purposes of placement of appellant's name on the central registry list, adopted the prior factual findings and made the additional following findings:
1. As a teacher, the appellant was a person responsible for the health welfare and care of children, in accordance with the department's operational definitions.
2. As a certified and experienced special education teacher, appellant knew or should have known that repeated intimidating and threatening gestures directed at a young child might have a serious impact on the child.
CT Page 680
3. The appellant emotionally abused J.J. during several interactions with the child in the 2001-2002 academic year by berating, intimidating and threatening him.
4. The appellant's witness, Pat Jasniewicz, made statements during her August 2006 testimony that directly contradicted testimony she presented in 2003. Her 2006 testimony that J.J.'s behavior changed following appellant's administrative leave is not credible.
The hearing officer also approved DCF's recommendation that the appellant be placed on the central registry.
DISCUSSION
In this appeal, the appellant argues that the hearing officer's decision to uphold the agency's substantiation of emotional abuse was made in error of law, arbitrary and not supported by substantial evidence. The appellant further contends that the hearing officer's decision to uphold the agency's decision to place the appellant's name on the central registry was in violation of DCF regulations and policies and not supported by the substantial evidence.
I. STANDARD OF REVIEW
The proper standard of review of an administrative agency's decision is set forth under the Uniform Administrative Procedures Act ("UAPA"). "The scope of that review is very restricted . . . With regard to questions of fact, it is . . . [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency . . . The substantial evidence rule governs judicial review of administrative fact-finding under UAPA . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . 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 . . . Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001); see also Office of Consumer Counsel v. Dept. of Public Utility Control, 279 Conn. 584, 592-93, 905 A.2d 1 (2006).
Courts have consistently applied the MacDermid standards to administrative appeals from final decisions of DCF. See Dailey v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 98 0492670S (January 11, 2000, Hartmere, J.) ("[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."); see also Adams v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 06 4011617 (February 26, 2007, Cohn, J.)
II. HEARING OFFICER'S DECISION TO UPHOLD THE SUBSTANTIATION OF EMOTIONAL ABUSE
Appellant argues that this court should reverse the hearing officer's decision to uphold the substantiation of emotional abuse on the following grounds: (1) the agency's decision does not specifically find "emotional abuse" as defined in DCF regulations and policies; (2) DCF's decision fails to find that appellant's actions were intentional or willful; (3) DCF's finding of emotional abuse was not based on expert testimony; (4) DCF's decision was based on allegations of physical abuse despite the agency's prior failure to substantiate physical abuse; and (5) the hearing officer's decision to uphold the agency's substantiation is not supported by the substantial evidence.
A. Finding of Emotional Abuse
DCF Policy Manual § 34-2-7 defines emotional abuse or maltreatment as "the result of cruel or unconscionable acts and/or statements made, threatened to be made, or allowed to be made by the person responsible for the child's care which have a direct impact on the child." The policy provides examples of emotional abuse as "negative acts or statements directed at the child . . . [and] cruel or unusual actions used in an attempt to gain submission, enforce maximum control, or to modify the child's behavior . . . [or] rejection of the child." The policy definition is consistent with the definition of emotional abuse in both DCF regulations, DCF Reg. § 17a-101(e)-2(c), and Conn. Gen. Stat. § 46b-120(4). Appellant does not challenge the application of the policies and regulations but rather claims that the hearing officer failed to make findings.
A review of the Memorandum of Decision of September 5, 2003 ("MOD of 9/5/03") establishes that the hearing officer, relying on the definition and examples of emotional abuse contained in Policy § 34-2-7, specifically found that "[a]s a teacher, [appellant] is a person responsible for [the child's] care [and] the overwhelming evidence suggests that she repeatedly berated, intimidated and physically mistreated this child during the course of the spring 2002 year. Numerous witnesses repeated identical stories that [appellant] shoved the sobbing child out of her classroom, while screaming at him to get out of her room . . . seeing her yell at the child, who was again in tears at the school market place." See MOD 9/5/03 at pg. 5. The hearing officer also found that other students in the class confronted appellant about her yelling a lot at the child. Id. Finally, the hearing officer concluded that the appellant's actions towards the child had a negative impact on the child's behavior who "was frequently crying, sobbing and complaining about no longer wish[ing] to attend school." Id. The hearing officer's decision was based on the testimony and reports of numerous witnesses, including the appellant, other teachers, the child and appellant's own witness. This court will not substitute its judgment for that of the hearing officer.
As noted by the hearing officer, even appellant's own witness admitted that the child's behavior had changed to the point that "he was `different, resentful' and `hostile.'" Appellant's colleague testified that the child changed from a "perky and happy child" to a child who "snarled" in response to a greeting and "there was something really wrong with the kid." Transcript of June 12, 2003 at pp. 136 and 142 ("Tr. of 6/12/03 at pp. 136 and 142").
B. Expert Testimony
Appellant claims that DCF's substantiation and hearing officer's decision upholding that substantiation of emotional abuse was erroneous because it was not based on expert testimony about the medical, psychiatric or psychological evidence of the adverse impact on the child. Appellant cites no authority for the proposition that such a finding could only be based on expert testimony. There is no requirement that testimony of impact on a person's appearance or behavior can be admitted only through expert testimony. See State v. McGinnis, 158 Conn. 124, 130-31, 256 A.2d 241 (1969); Atwood v. Atwood, 84 Conn. 169, 86 A.29 (1911) (testimony about the appearance of a person's condition such as "a man healthy or sick, strong or fragile, well or poorly, changed in health for better or worse, composed or nervous, excited or despondent, tired or exhilarated . . . suffering or happy . . . is fact" not opinion testimony requiring expert testimony). The hearing officer relied on the testimony and reports of educational professionals, including appellant's own witness, who were familiar with the child's behavior prior to and after the events in question. The appellant was free to challenge by cross-examination the opinion testimony that both DCF and the hearing officer relied upon. See State v. McGinnis, 158 Conn. at 131 (upholding use of lay witness opinion testimony about a person's appearance and noting that "the foundation upon which such an opinion rests can be tested by cross-examination"). The hearing officer did not err in relying on the testimony of non-medical experts to uphold the substantiation of emotional abuse.
A review of the transcript reveals that appellant did not raise objections relating to the qualification of the various witnesses to testify either directly or by report of others about the impact of appellant's actions on the child. Tr. of 6/12/03 at pp. 15, 33 and 43-45.
C. Allegations of Physical Abuse
Appellant argues that because DCF did not substantiate the allegation of physical abuse, it violated her due process and constitutional rights when it introduced evidence of physical abuse allegations at the administrative hearing regarding the substantiation of the emotional abuse. Other than conclusorily alleging a violation of her rights, appellant failed to articulate the legal or factual basis for her claim of lack of notice and infringement of her rights. The evidence relating to the physical incidents was intertwined with the non-physical conduct (such as verbal incidents) introduced in support of the substantiation of emotional abuse. For example, the incident involving appellant shoving the child out of the classroom was introduced as part of the description of an incident where appellant screamed and intimidated the child. Having participated in a DCF hearing involving both allegations of physical and emotional abuse, appellant was aware of the nature of the claims relating to both types of abuse. Appellant was provided with a copy of the investigation report prior to the hearing which included allegations of various incidents of maltreatment, including verbal, physical, and intimidating conduct.
More importantly, the agency's definition of emotional abuse and maltreatment, which the appellant cites to and is noted above, includes "acts and/or statements." Policy Manual § 34-2-7. Appellant was on notice of the actions and statements that DCF was relying on to substantiate emotional abuse and the hearing officer's reliance on evidence of physical incidents, along with verbal statements, was not inappropriate or in error.
D. Substantial Evidence of Intentional Emotional Abuse
Appellant argues that the substantial evidence does not support a substantiation of emotional abuse or, citing Rucci v. Dept. of Children and Families, supra, Superior Court, Docket No. CV020516990, support a finding that the appellant acted intentionally or willfully. Appellant also claims that "shouting or yelling at a student" should not be the basis of emotional abuse but rather teachers should be permitted to engage in reasonable and necessary physical discipline in their classrooms.
The hearing officer heard evidence that four school professionals, with experience in the treatment of children in an educational setting, gave similar descriptions of incidents they observed of mistreatment of the child. Among the incidents was an incident where the child was yelled at and shoved out of the classroom, which was observed by at least two professionals. The evidence during the hearing included testimony from appellant's teaching assistant who reported that, when confronted about this incident, appellant "denied it and stated that no one would believe [the child] because he had a low IQ." Transcript of June 12, 2003 at pp. 16-7 ("Tr. of 6/12/03 at pp. 16-7"). During her testimony, appellant denied using the term "low IQ" but acknowledged that she said "sometimes children with special needs will exaggerate stories." Tr. of 8/14/03 at pg. 28. Another incident occurred at a market where the school marketplace where the school principal had to intervene. A teacher in an adjacent classroom testified that appellant on more than one occasion yelled at the child causing her to jump in the next room. Tr. of 6/12/03 at pg. 33.
While appellant questioned her co-workers' complaints claiming they were biased against her, she conceded that she had a good relationship with the paraprofessional in her class and could not give reasons as to why she would make false reports about her. Tr. of 6/12/03 at pp. 204-05 and Tr. of 8/12/03 at pg. 14.
The substantial evidence established that there were repeated incidents and a pattern of behavior that negatively impacted the child. Unlike the Rucci v. Dept. of Children and Families case, which involved a single incident by a patient care assistant, the hearing officer heard testimony of repeated incidents which resulted in the other children asking appellant why she was mean to J.J. In Rucci, the court reversed the substantiation because "the hearing officer's conclusion that the plaintiff's action was `reflexive' contradict[ed] his finding that the plaintiff's action was intentional." Rucci v. Dept of Children and Families, supra, Superior Court, Docket No. CV020516990. As the court in Rucci noted intentional means the actions were voluntary, "rather than accidental or inadvertent." Id. There was no evidence that the actions of appellant were accidental or inadvertent. Based on the evidence of repeated incidents, the hearing officer properly concluded that "[a]s a certified and experienced special education teacher, the [a]ppellant knew or should have known that repeated intimidating and threatening gestures directed at a young child might have a serious impact on the child." MOD of 2006 at pg. 4.
Similarly, appellant's reliance on Lovan C. v. Department of Children and Families, 86 Conn.App. 292-93 (2004) and Conn. Gen. Stat. § 53a-18 is misplaced. Lovan involved a one-time incident of discipline by a parent and there was no substantial evidence that the discipline was unreasonable. The Appellate Court reversed the substantiation finding that "this was a one time occurrence, not part of a pattern of physical punishment [and] the hearing officer found that the plaintiff posed no risk to . . . her children." Lovan, 86 Conn.App. at 301. While Conn. Gen. Stat. § 53a-18 permits a teacher to use reasonable physical force when necessary to "restrain such minor to remove such minor to another area, to maintain order," this case involved repeated incidents which other professionals complained about. There was no evidence that the actions were needed to maintain order. Rather, the evidence revealed that other professionals were able to intervene to calm the child. Based on the evidence in the record, the hearing officer concluded that appellant's conduct was not reasonable.
In sum, the hearing officer's substantiation of emotional abuse by the appellant and her findings of fact are supported by substantial evidence in the record. The court finds that the hearing officer did not act unreasonably, arbitrarily, or in abuse of discretion. Under the circumstances, this court is not allowed to substitute its judgment for that of the hearing officer.
III. HEARING OFFICER'S DECISION TO UPHOLD THE PLACEMENT OF-APPELLANT'S NAME ON THE CENTRAL REGISTRY
Appellant argues that the hearing officer's decision to uphold the placement of appellant's name on the Central Registry should be reversed because there was no finding of a second substantiation as required by Section 17a-101k-3(c)(2) and no other criteria for inclusion in the registry as set forth in Section 17a-101k-3(e) applies to appellant. She further claims that there was no determination that "the impact on the child is likely to be of lasting duration" as required for emotional abuse cases under Section 17a-101k-3(f)(3).
Appellant also alleged that her due process rights were violated because DCF "has or is in the process of adopting a new regulations" which would afford appellant an additional opportunity to have DCF's decision reviewed prior to filing an administrative appeal to the Superior Court. (Appellant's Brief at pg. 5.) However, at oral argument, appellant's counsel could not cite to the proposed regulations, whether they had been approved or establish how appellant's due process rights were negatively affected. Given that appellant was provided with an administrative hearing and subsequent appeal, she was not deprived of her due process. To the extent appellant had any additional evidence to present, she could have sought to introduce the same at the administrative hearing. As conceded by appellant in her Supplemental Brief, filed on July 26, 2005, appellant was provided with the procedural remedies afforded under Public Act 05-207.
While the regulations the appellant cites were not in effect at the time of hearings, the factors referenced therein were the same as those contained in DCF Policy Manual § 34-2-8, which the hearing officer considered and relied on in reaching her decision. The court has reviewed the reasons given by the hearing officer for approving the placement of the appellant's name on the registry list and there is no question that the record supports the hearing officer's decision.
Policy Manual 34-2-8 contains a notice provision indicating that the policy is based on draft regulations, under review pursuant to C.G.S. § 17a-101k(i), and that the manual may be updated when the regulations are finalized.
Policy Manual § 34-2-8 contains mandatory factors (similar to those cited by appellant under § 17a-101k-3) as follows:
Child abuse or neglect has occurred; there is an identifiable person responsible for abuse or neglect (substantiated perpetrator); the person poses a risk to the health and safety or well-being of children, and the person should be recommended for placement on the Central registry . . . [if] [1]the substantiation is for sexual abuse and the perpetrator is over sixteen (16) years of age; [2] there is a second substantiation for physical or emotional abuse; [3] the perpetrator of physical or emotional abuse is likely to have ongoing parent/guardian/caretaker or person entrusted responsibility for the victim and an assessment of risk indicates a moderate to high risk of recurrence of child maltreatment of the victim; [4] the perpetrator of physical or emotional abuse is a person entrusted with the care of the child as defined in the operational definitions; [5] the perpetrator is arrested for the act of abuse or neglect that is substantiated; and [6] the department files a petition for neglect or termination of parental rights pursuant to C.G.S. §§ 46b-129 or 17a-112, respectively.
The same policy also contains non-mandatory factors by providing that:
[i]n all other cases in which the department substantiates abuse or neglect by an identified perpetrator, the investigator, and the Hearings Officer in cases which proceed to administrative hearing, shall review the case for a determination of whether the perpetrator poses a risk to the health, safety and well-being of children and should be recommended for placement on the Central Registry. The investigator and the Hearing Officer, shall look at factors including the intent of the perpetrator, the severity of the impact and the chronicity of the perpetrator's conduct in making the determination.
Policy Manual § 34-2-8.
The hearing officer, relying on the non-mandatory criteria set forth in Section 34-2-8, correctly concluded that the agency established, by a preponderance of the evidence, that the appellant was capable of emotionally abusing children in her classroom. See MOD of 10/3/06 at pg. 5. In view of appellant's thirty years of teaching experience, the hearing officer concluded that she "should have known that grabbing a child and screaming at him in front of his peers might have a serious detrimental effect on the child." Id. at pg. 4. Intent was further established by appellant's own admission that other children in the class believed she had been treating the child unkindly and raised it at a class meeting. Id. The hearing officer also properly considered the chronicity and severity of the acts by noting that the evidence established a pattern of behavior which had an adverse impact on the child that " lasted over several months, and everyone, with the possible exception of the Appellant, was aware of it." Id. (Emphasis Added). Thus, the hearing officer properly concluded that the Department had established, by a preponderance of the evidence, that the appellant posed a risk to children and her name was properly placed on the Central Registry. Id.