Opinion
HHBCV166034252S
07-13-2017
Natasha B. v. Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Natasha B., appeals the final decision of the defendant, the Department of Children and Families (department), which substantiated findings of physical abuse, physical neglect, and emotional neglect and upheld the placement of the plaintiff's name on the department's abuse and neglect registry. The incident giving rise to the substantiation and placement on the registry was an altercation that occurred on July 13, 2007. The department found that the plaintiff, who was serving as a " one-to-one" worker with C., a thirteen-year-old girl at a residential treatment facility, repeatedly struck C.'s face with a closed fist in an incident in which C. had been physically aggressive and out of control. The department further found that the plaintiff did not spontaneously stop striking the child, but had to be pulled off her by staff members of the facility. The plaintiff's principal claims on appeal are that: (1) the child sustained no injuries that could support a finding of abuse; (2) the findings of neglect cannot be substantiated on the basis of a single incident when the plaintiff was removed from her position immediately after the incident; (3) the definition of neglect is unconstitutionally vague; (4) the plaintiff was not afforded a hearing as to whether her actions constituted self-defense or " reasonable physical force"; and (5) the " intent" and " chronicity" criteria for placement of the plaintiff's name on the central registry were not met. At oral argument, the plaintiff's counsel additionally claimed that (1) the plaintiff's name should be removed from the central registry because she was not given the opportunity to exhaust her administrative remedies before being placed on the registry, and (2) the department shifted the burden of proof to her to establish that her name should be removed from the registry.
Natasha B. is entitled to confidential treatment of her identity pursuant to General Statutes § 17a-101k(a). She is referred to as the " Appellant" throughout the department's final decision but as the " plaintiff" throughout this decision.
In accordance with the spirit and intent of General Statutes § 17a-28, which protects the confidentiality of information relating to children in the department's care, the identities of children mentioned in this decision are not disclosed.
For the reasons stated below, the department's decision substantiating allegations of physical abuse, physical neglect, and emotional neglect is affirmed, and the plaintiff's appeal is dismissed as to those issues. The court declines to consider the late-raised issue concerning the plaintiff's placement on the registry before her administrative remedies were exhausted. The court requires further briefing to address whether it should remand the case to the hearing officer for articulation of the burden of proof applied.
I
PROCEDURAL HISTORY
The incident giving rise to this appeal occurred on July 13, 2007, and was reported to the department on the same date. Both the department and the New Britain police investigated the incident. The police investigation resulted in the plaintiff's arrest on charges of risk of injury and assault in the third degree. On August 28, 2007, after being advised that the police were applying for a warrant for the plaintiff's arrest, the department substantiated the plaintiff for physical abuse of C., physical neglect of C., emotional neglect of C., and physical neglect of E., another child at the facility where the incident occurred. Because the incident was so egregious, the department recommended placement of the plaintiff's name on the central registry, even though the incident in question was the only known incident involving the plaintiff. There is no evidence that the plaintiff was notified of the department's substantiation or the recommendation that she be placed on the registry.
On January 26, 2015, the plaintiff wrote to the department, representing that she had just learned from a prospective employer that her name was on the registry. She requested that her name be removed from the registry because she had no criminal record as a result of the incident; she had paid her dues by giving back to the community and receiving counseling; and the incident was not premeditated or malicious. She further represented that she was currently pursuing a career that could require her to work with children, and having her name on the registry would prevent her from pursuing that goal. She included three character reference letters and a copy of dismissal of the criminal case that had been brought against her as a result of the incident.
The department treated her letter as a request for a substantiation hearing, which it scheduled for February 17, 2015. The plaintiff represented herself at that hearing. On February 23, 2015, the hearing officer issued a notice that further evidence was required regarding whether the plaintiff's name should be on the central registry. In the notice, the hearing officer advised the plaintiff and the department to " be prepared to present evidence regarding whether the Appellant has demonstrated changed circumstances since the time of the substantiation." Record (R.), p. 33. More particularly, the hearing officer wanted " specific documentation about the services that the Appellant participated in including length of time and successful completion of any services, as well as documentation as to where the Appellant has worked since she was terminated from Alliance Staffing, including confirmation that she has had no further incidents in the workplace." R., p. 33. The second day of the hearing was scheduled for May 5, 2015, but was continued several times. The second day of the hearing was eventually held on May 17, 2016. The plaintiff was represented by counsel on that day of the hearing.
Although the transcript of the first day of the hearing bears the date of February 17, 2016, the hearing officer stated the date as February 17, 2015, in both her opening remarks during the hearing and in her final decision. All other evidence in the record indicates that the first day of the hearing was February 17, 2015.
The hearing officer issued her final decision on May 20, 2016. She reversed the department's decision to substantiate the plaintiff for physical neglect of E., but upheld the department's findings of physical abuse, physical neglect, and emotional neglect of C., and upheld its decision to place the plaintiff's name on the central registry. This appeal followed.
II
FACTS
The facts as found by the hearing officer are as follows: On the day of the incident, C. and E. were both thirteen-year-old girls who were residents at the Klingberg Family Center. Through Alliance Staffing, the plaintiff was assigned as a one-to-one worker with C. On July 13, 2007, the department received a report that the plaintiff had engaged in an altercation with C., who sustained lumps on the left side of her forehead and had been transported to the hospital as a result of the altercation.
On that day, three girls were in the unit, and all of the girls had been given an early bedtime for being out of bounds during the day. C. and another girl wanted a snack and became agitated when the snack was denied. C. and the other girl began throwing chairs, and the staff decided that C. should be placed in her room. The plaintiff and another staff member walked C. to her room, and the plaintiff then held the door shut with all her strength for ten to fifteen minutes while C. attempted to overpower the plaintiff and leave the room.
The plaintiff was unable to hold the door shut any longer and let go. She then pushed C. back into her room and the situation escalated. C. kicked the plaintiff, who was seen charging back at C. The plaintiff punched C. in the face multiple times. C. was heard yelling, " mom get off me" during the struggle. When C. hit the plaintiff back, the plaintiff and C. each began pulling each other's hair. A Klingberg staff member interceded and removed the plaintiff from the room.
C. sustained head injuries, including lumps to her head as well as bruises and scratches. The swelling on her head as well as the marks were visible the next day but were gone by three days later.
During the fight, C., who had been diagnosed with reactive attachment disorder, had a flashback to prior abuse. Although C. had felt safe and comfortable at the Klingberg facility before the incident, her therapist noted that after the incident C. did not feel safe and had some anxiety about remaining there. The plaintiff, who had been C.'s one-to-one worker for more than five months, would have been aware that C. had significant emotional issues.
The incident occurred near the room where E. was present. As the plaintiff left the facility that day, E. yelled out to her that she shouldn't hit kids. The plaintiff told E. that she should " shut the fuck up" or the plaintiff would do to E. what she had done to C. R., p. 61.
The plaintiff was terminated from her position because of the incident and was subsequently arrested for risk of injury and assault in the third degree. In 2009, the criminal charges were dismissed after the plaintiff completed the conditions required for accelerated rehabilitation.
The conditions of the plaintiff's accelerated rehabilitation included completion of community service and counseling. The plaintiff completed the required hours of community service at a church by running errands, cleaning, and doing other tasks. She was also required to engage in eight hours of counseling, including anger management, which she completed with the minister. At the conclusion of the plaintiff's court-ordered counseling, the plaintiff's minister did not recommend further counseling. At the hearing, the plaintiff was unable to articulate the type of anger management counseling she received, but testified that it met the court's requirements. She was unable to provide documentary evidence of the counseling or community service because neither the court nor the church had retained any records.
At the hearing, the plaintiff admitted that she panicked and used inappropriate strategies during the incident, but denied intent to harm C. She testified that she would have been unable to close her fist to strike C. because her fingers were numb from holding the door so long. She admitted that she might have accidentally struck C., but claimed she did not do it with intent to harm her. She explained that if she had intended to harm C., the child would have gone to the hospital with more injuries than she sustained because the plaintiff was large in size compared to C. The hearing officer found that the plaintiff's testimony was unpersuasive and not believable. R., p. 61.
The hearing officer further found that the plaintiff did not demonstrate that she gained insight into how her violent physical altercation with C. was a wholly inappropriate response to the situation. The plaintiff continued to minimize the impact of the incident by sharing the story of running into one of the children (the child E.) at a local diner, where the child appeared not to remember her and had a courteous interaction with her.
The hearing officer also found that the plaintiff had no prior substantiations and no other criminal incidents or department investigations since the July 13, 2007 incident. At the hearing, the plaintiff testified that she was no longer working with children because, due to the department's substantiation, she was " turned off with working under the umbrella of DCF." R., p. 62. She testified that since the incident, she has worked for two different companies as a patient care assistant, serving the elderly, mentally ill, and disabled. She further testified that she has had no complaints at work and has always received positive feedback. She did not provide any documentation from her employers about her work history since this incident.
III
DISCUSSION
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § § 4-166 et seq., and in particular, General Statutes § 4-183. " At the outset, it is important to underscore that the scope of judicial review of an administrative agency's decision under § 4-183 is very restricted." (Internal quotation marks omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009). " [R]eview 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." (Internal quotation marks omitted.) Id., 561. " An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Id. This court may not " retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact." (Internal quotation marks omitted.) Id. The court's " ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id., 561.
General Statutes § 4-183(j) provides: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
" In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses." (Internal quotation marks omitted.) Frank v. Dept. of Children & Families, 312 Conn. 393, 411, 94 A.3d 588 (2014). " The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Id., 411-12.
" [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative." (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991).
A
Physical Abuse
General Statutes § 17a-101g(b) governs the investigation of reports of suspected child abuse or neglect. It incorporates the definitions of abuse and neglect found in General Statutes § 46b-120. General Statutes § 46b-120(7)(A) provides that a child may be found to be " abused" who " has been inflicted with physical injury or injuries other than by accidental means . . ." The department's policy manual states that evidence of physical abuse includes " excessive physical punishment, " " bruises, scratches, lacerations, " and " head injuries, " among other things. Department of Children and Families Policy Manual (DCF Policy Manual) § 34-2-7, " Physical Abuse." The policy manual also notes: " Evidence must be ruled in after accounting for the child's misbehavior, surrounding circumstances including the parent's motive; the type of punishment administered; the amount of force utilized; the child's age, size, and ability to understand the punishment." DCF Policy Manual § 34-2-7, " Physical Abuse."
The court may rely on the department's policy manual insofar as it is consistent with the statutes and regulations and fills gaps not otherwise addressed by statutes or regulations. See Hogan v. Dept. of Children & Families, supra, 290 Conn. at 576 and n.16; see also Frank v. Dept. of Children & Families, supra, 312 Conn. at 420-21.
In this case, the hearing officer found that the department had proven, by a fair preponderance of the evidence, that its substantiation of the plaintiff for physical abuse of C. should be upheld. The hearing officer found that the plaintiff " inflicted injuries to the child by other than accidental means in engaging in the altercation while the child was acting out." R., p. 63. The plaintiff challenges this finding, claiming that " [m]arks left on a child that are not visible after twenty-four hours are considered temporary and do not meet the definition of 'physical injury' for purposes of finding physical abuse." Pl. Br., p. 5.
The plaintiff's factual assertion is not supported by the record. The hearing officer specifically found that the lumps on C.'s head and bruises and scratches were visible the day after the incident and up to three days later.
The record supports the hearing officer's finding. The department's investigation protocol indicates that the incident occurred on Friday, July 13, 2007, around 7:55 p.m. R., pp. 11-12. After the incident, two quarter-sized lumps were visible on the left side of C.'s forehead, and several scratches were seen on her arm. R., pp. 18, 20. The department's investigator did not contact the Klingberg employee who had reported the incident until the afternoon of Monday, July 16, 2007. R., pp. 12-13. At that time, the reporter indicated that C.'s " swelling has gone down since Friday and there was only a slight mark on her forehead yesterday." R., p. 13. On July 16, 2015, " yesterday" would have been Sunday, July 15, two days after the incident. The reporter thought the mark would probably be gone by Monday but had not yet seen C. that day. R., p. 13. The marks were not visible five days after the incident, when the investigator interviewed C. on July 18, 2007. R., pp. 13, 95.
In arguing that the injuries to C. were too minor to be considered physical abuse, the plaintiff cites two trial court decisions, Medina v. Dept. of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV 07-4013879-S, (November 14, 2007, Cohn, J.), and Rucci v. Dept. of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV 02-0516990-S (November 5, 2003, Peck, J.) [36 Conn.L.Rptr. 7, ]. Both cases are distinguishable. In Medina, the court did not have occasion to address a substantiation for physical abuse, which the department had reversed after a hearing; the court reviewed and upheld substantiations of physical and emotional neglect and placement on the registry. In Rucci, the court concluded that a temporary red mark, visible fifteen minutes later but not resulting in any discoloration of the skin the next day, was not a " bruise" and therefore was not a " physical injury" as defined in chapter 34-2-7 of the policy manual.
In this case, unlike Medina and Rucci, the record indicates that C. sustained two lumps on her forehead as well as bruises and scratches that were still visible at least two days later. This evidence indicates that C.'s injuries were not as minor or transient as those in Medina or Rucci . The hearing officer's finding of physical abuse is supported by substantial evidence.
B
Physical and Emotional Neglect
General Statutes § 46b-120(6) provides in relevant part that a child may be found to be " neglected" who " is being denied proper care and attention, physically, educationally, emotionally or morally, " or " is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth." The department's policy manual elaborates on the statutory phrase " is being permitted to live under conditions, circumstances or associations injurious to his well-being, " indicating that such conditions and circumstances include, but are not limited to, " exposure to violent events . . ." DCF Policy Manual § 34-2-7, " Physical Neglect." Evidence of physical neglect includes, but is not limited to, " erratic, deviant or impaired behavior by . . . a person entrusted with the child's care which adversely impacts the child." Id. The policy manual further notes that " adverse impact may not be required if the action/inaction is a single incident that demonstrates a serious disregard for the child's welfare." Id.
In this case, the department substantiated findings of physical neglect based on " conditions & circumstances injurious" and " erratic behavior with adverse impact." R., p. 21. The hearing officer upheld the substantiation of physical neglect, concluding that (1) C. was a child entrusted to the plaintiff's care; (2) the plaintiff punched the child in the face multiple times in response to the child's behavioral outburst; (3) the plaintiff's response to the child's outburst was erratic behavior that subjected the child to conditions and circumstances injurious to the child's well-being; (4) the child sustained an adverse physical impact, including swelling to her head and bruises and scratches; and (5) the severity of the plaintiff's actions in punching the child in the face demonstrated a serious disregard for her welfare. R., pp. 64-65.
The department's policy manual provides in relevant part that " emotional neglect" is the " denial of proper care and attention, or failure to respond, to a child's affective needs by . . . the person entrusted with the child's care which has an adverse impact on the child." DCF Policy Manual § 34-2-7, " Emotional Neglect." Evidence of emotional neglect includes, but is not limited to, " failure to provide the child with appropriate support, attention, and affection" and " permitting the child to live under conditions, circumstances or associations injurious to his well-being." Id. " Circumstances . . . injurious" include, but are not limited to, " exposure to family violence which adversely impacts the child emotionally." Id. As with physical neglect, proof of adverse impact " is not required if the action/inaction is a single incident which demonstrates a serious disregard for the child's welfare." Id.
The department substantiated emotional neglect based on " conditions & circumstances injurious." R., p. 21. The hearing officer sustained the substantiation of emotional neglect based upon the plaintiff's violent altercation with C. and its emotional impact on C. As the hearing officer found, C. was a child with reactive attachment disorder who had previously been abused by her mother. Before the incident with the plaintiff, C. had felt safe at the Klingberg facility. During the incident, the child experienced a flashback to prior abuse by her mother. After the incident, C. felt unsafe and anxious about remaining at Klingberg. The hearing officer concluded that the plaintiff's violent response to C.'s behavioral outburst was, for a one-to-one worker assigned to help a child with a reactive attachment disorder, " egregious behavior that demonstrates a serious disregard for the child's welfare." R., p. 64. The hearing officer also found that the plaintiff was a person entrusted with the care of a child who denied the child proper care and attention emotionally. R., p. 64.
The plaintiff argues that the findings of neglect, including both physical and emotional neglect, cannot be sustained based on a single isolated incident when she was terminated from her position immediately following the incident. She argues that because General Statutes § 46b-120(6) describes neglect in the present progressive tense--" is being denied proper care and attention" and " is being permitted to live under conditions . . . injurious" --the statute must be read to require ongoing conditions to support a finding of neglect. In support of this argument, she cites Misthopoulos v. Dunbar, Superior Court, judicial district of New Britain, Docket No. CV-06-4010990, (August 23, 2007, Owens, J.T.R.) . Misthopoulos, however, does not support the plaintiff's interpretation of General Statutes § 46b-120(6). At issue in Misthopoulos was the department's decision upholding a substantiation of emotional neglect. The department, not the court, had reversed a substantiation of physical neglect, and the court did not discuss the department's reason for the reversal. Absent any discussion of the department's reason, this court cannot assume that the reversal was based on the fact that there was only one physical incident.
This court is not persuaded that the use of the present progressive tense in General Statutes § 46b-120(6)(B) and (C) requires a finding of ongoing neglectful conduct to support a finding of neglect. Contrary to the plaintiff's claim, there are cases in which a finding of neglect is based on a single incident. In one case, for instance, a plaintiff was substantiated for physical neglect when, during an altercation with his wife, he grabbed his four-year-old daughter, took her out of the safety of the house and into the driveway where his wife was wielding a baseball bat and had just smashed the window of his car, and put the child on the center console in his wife's truck and sped away without first securing the child in a car seat. Matthew M. v. Dept. of Children & Families, 143 Conn.App. 813, 817, 827, 71 A.3d 603 (2013). The hearing officer substantiated a finding of physical neglect because (1) the father had put his daughter in a zone of danger for physical injury by taking her with him into the front yard to continue the altercation with his wife, who had just smashed the window of his car with a baseball bat, and (2) his actions in taking his daughter into a zone of danger, and then speeding off with her without securing her in a car seat, demonstrated a serious disregard for her welfare. Id., 827-29. The Appellate Court agreed that such conduct justified a finding of neglect. Id., 829-31.
Numerous trial court decisions have upheld substantiations of neglect based on a single incident. For example, in Randall v. Dunbar, Superior Court, judicial district of New Britain, Docket No. CV-04-0525159-S (December 29, 2004, Murray, J.) (38 Conn.L.Rptr. 468, ), a mother of a three-month-old infant forgot that he was in her van when she took an older child to the orthodontist. A passerby heard the infant crying and notified the police, who extracted him, uninjured, from the van. Although the mother's act was unintentional and an isolated incident, and although the child was uninjured, the department's substantiation of neglect was. upheld. The trial court concluded that the substantiation was consistent with the statutory definitions of neglect, including a child who is " being denied proper care and attention, physically, emotionally or morally, or . . . is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth." See also Asbill v. Connecticut Dept. of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV-10-6008084S, (September 8, 2011, Cohn, J.) (upholding substantiation of physical and emotional neglect, and placement on central registry, based on single incident in which mentally ill plaintiff stabbed his wife in the presence of his child); Broughton v. Dept. of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV-09-5014834S, (December 28, 2010, Cohn, J.) (upholding substantiation of physical and emotional neglect based on single incident in which plaintiff engaged in a " stand-off" with police, refusing to leave his truck, while his children were with him, despite threats by the police to break the truck's window to extract him).
The authorities discussed above, including but not limited to departmental guidance and a well developed body of case law, support the conclusion that a finding of neglect can properly be based on a single incident that demonstrates a serious disregard for a child's welfare. The facts found in this case, and the substantial evidence on which those findings are based, support the conclusion that the plaintiff's actions demonstrated a serious disregard for C.'s physical and emotional well-being.
C
Vagueness
The plaintiff also argues that if the definition of neglect in General Statutes § 46b-120 is construed to encompass " a single isolated violent altercation" after which the perpetrator is removed from contact with the child, then the statute is unconstitutionally vague because its phrasing, in the present progressive tense, fails to give fair warning to the innocent and impermissibly delegates resolution of neglect cases to hearing officers for decision on an ad hoc basis.
A plaintiff challenging the constitutionality of a statute on the ground of vagueness bears a heavy burden. Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 281, 25 A.3d 632 (2011). " The vagueness doctrine derives from two interrelated constitutional concerns . . . First, statutes must provide fair warning by ensuring that the person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly . . . Second, in order to avoid arbitrary and discriminatory enforcement, statutes must establish minimum guidelines governing their application." (Citations omitted; internal quotation marks omitted.) Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 458, 984 A.2d 748 (2010). " In examining a void for vagueness claim, we determine the constitutionality of the challenged statute by considering its applicability to the particular facts of the case . . . Because legislative enactments carry with them a strong presumption of constitutionality, any party challenging the statute on vagueness grounds bears the burden of demonstrating beyond a reasonable doubt that he or she had inadequate notice of what was prohibited or that he or she has been the victim of arbitrary and discriminatory enforcement . . . Moreover, we are mindful that, [b]ecause perfect precision is neither possible nor required . . . the [vagueness] doctrine does not mandate the invalidation of all imprecisely drafted statutes . . . A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited." Id., 458-59.
In Hogan v. Dept. of Children & Families, supra, 290 Conn. 545, our Supreme Court rejected a plaintiff's claim that the statutory scheme governing the child abuse and neglect registry failed to provide fair notice of what conduct would expose a person to placement on the registry. In so doing, the court considered not only statutory language, but also policy guidance provided by the department and " a well developed body of case law addressing parameters for findings of abuse and neglect, as well as cases addressing circumstances when the defendant may act prophylactically." Id., 576-77. The court held that a statute is not void for vagueness if its meaning can be ascertained by reference to judicial opinions involving the statute, the common law, legal dictionaries, or treatises. Id., 575. " The degree of vagueness that the [c]onstitution tolerates . . . depends in part on the nature of the enactment." Id. As the Hogan court observed, the United States Supreme Court has expressed " greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." (Internal quotation marks omitted.) Id.
In this case, as in Hogan, any ambiguity in the statutory definition of neglect is rendered clear by the department's policy manual, which expressly indicates that both physical and emotional neglect may be based on a single incident that demonstrates a serious disregard for the child's welfare, and by a well developed body of case law that has upheld substantiations of neglect based on a single incident demonstrating such a serious disregard of the child's welfare. Based on the guidance provided by such sources, the court concludes that neglect under General Statutes § 46b-120(6) may properly be established by proof of a single incident that demonstrates a serious disregard for a child's welfare. The court further concludes that any reasonable adult would have fair warning that repeatedly punching a child's forehead with a closed fist shows a serious disregard for the child's welfare. The court accordingly rejects the plaintiff's argument that § 46b-120(6) is impermissibly vague and cannot reasonably be applied to the circumstances of this case.
D
Neglect Based Upon Abuse
The plaintiff's next argument is that although the department's policy manual permits a finding of neglect based upon abuse, the hearing officer here did not analyze whether neglect was based on abuse, and to uphold the department's decision on neglect on the ground of abuse would be arbitrary and capricious. The plaintiff's arguments are without merit. The hearing officer did not find neglect " based upon abuse." Although the hearing officer found that the violent conduct that supported a finding of abuse also supported findings of physical and emotional neglect, she analyzed physical and emotional neglect under their separate and appropriate standards. She found physical neglect because the plaintiff failed to provide C. with proper care and attention and permitted her to live under circumstances injurious to her well-being, resulting in an adverse physical impact and demonstrating a serious disregard for the child's welfare. She found emotional neglect because the plaintiff failed to provide C. with proper care and attention and permitted her to live under circumstances injurious to her well being, resulting in an adverse emotional impact to C., including a flashback to prior abuse and continued feelings of anxiety after the incident. As discussed above, the findings are supported by substantial evidence in the record.
E
Defense of Justification
The plaintiff next argues that the hearing officer's decision must be reversed because the department did not give her a separate hearing to determine whether her actions were justified as self-defense. She further claims that the hearing officer's decision is devoid of any analysis, or even any mention, of justification for the use of force. She directs the court to her testimony that her actions were an attempt to get the plaintiff to let go of her hair when no one came to her assistance during the altercation; that C. used a weapon to attack her at the start of the altercation; and that C. kicked her across the room.
The plaintiff's claim of self-defense, or more generally, justification, relies on three authorities. First, General Statutes § 53a-19 provides in relevant part that " a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purposes . . ." Second, in Lovan C. v. Dept. of Children & Families, 86 Conn.App. 290, 296, 860 A.2d 1283 (2004), the Appellate Court held that a hearing officer must consider whether a parent's use of force against a child is justifiable under General Statutes § 53a-18, which provides in relevant part that " [a] parent, guardian or other person entrusted with the care and supervision of a minor . . . may use reasonable physical force upon such minor . . . when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor." Third, the department's regulations provide in relevant part that " (a) A staff member is prohibited from the use of physical force against a child or youth except that reasonable force may be used as necessary: (1) in self defense." Regs., Conn. State Agencies § 17a-16-12. The same regulation provides, however, that " [n]o more force should be used than is necessary to achieve the legitimate purpose for which it is used." Regs., Conn. State Agencies § 17a-16-12. All three of these authorities provide that the use of force is justified only so far as it is reasonably necessary, whether it is used to protect oneself, to maintain discipline, or to promote the child's welfare.
In response to the plaintiff's justification argument, the department argues that the plaintiff did not present a claim of self-defense at the hearing, and, nonetheless, the issue of justification was addressed by the hearing officer as part of her analysis of physical abuse. The department asserts that the hearing officer properly applied the standard articulated in Lovan C., supra, in finding that the plaintiff's use of force was excessive and unreasonable.
This court concludes that the plaintiff, who was self-represented when she testified about the altercation, did present an undifferentiated claim of justification when she testified that her actions were intended only to get C. to let go of her hair and when she claimed that C. came at her with a wooden stick as a weapon. This court further concludes that the hearing officer appropriately considered whether the plaintiff's actions were a justifiable response to C.'s aggressive behavior. The hearing officer's conclusion that the plaintiff responded with excessive and unreasonable force is supported by substantial evidence in the record.
Relative to the analysis of physical abuse, because the plaintiff was acting in loco parentis at the time of the incident, the hearing officer properly analyzed the plaintiff's conduct under Lovan C. v. Dept. of Children & Families, supra, 86 Conn.App. 290, to determine whether the plaintiff used " appropriate and permissible discipline." R., p. 63. Applying the Lovan C. standard, the hearing officer assessed " the reasonableness of the punishment in light of the child's misbehavior and the surrounding circumstances, including the [plaintiff's] motive, the type of punishment administered, the amount of force used and the child's age, size and ability to understand the punishment." R., p. 63. The hearing officer explained that " [i]f it is determined that the [plaintiff] used reasonable force on the child to maintain discipline or to promote the child's welfare, a substantiation of physical abuse cannot stand." R., p. 63. Under that standard, the hearing officer concluded that the plaintiff " used unreasonable, aggressive and violent force in responding to the child's behavioral outburst . . . The [plaintiff] reacted in an unruly, vicious and inappropriate manner to the child's behavior. Her actions do not constitute reasonable force on the child in order to maintain discipline or promote the child's welfare." R., pp. 63-64.
The hearing officer's conclusions are supported by substantial evidence in the record, including the eyewitness accounts of Klingberg staff and the assessments of the investigative social worker and the police detective who investigated the case. Celina Cardenas was the first Klingberg staff person to see the plaintiff's altercation with C. R., p. 14. Cardenas was heading toward C.'s room to assist the plaintiff in keeping C. in her room when she saw the door to C.'s room open and saw the plaintiff push C. back into the room and onto her bed. The plaintiff was standing over C., with her back to Cardenas, when Cardenas heard C. scream " you are not supposed to choke me" and saw C. kick the plaintiff off her. Cardenas said that the plaintiff came " charging back across the room and punched [C.] in the face multiple times." She said that C. pulled the plaintiff's hair in an attempt to get her off. Cardenas attempted to separate them but could not get the plaintiff off C. R., p. 14.
The second Klingberg staff member to intervene was Todd Hill, who was returning to the building when he heard " rumbling like a scuffle" coming from C.'s room. He went to C.'s room and saw the plaintiff standing over C. while C. was on her back on her bed. He said that C. was pulling the plaintiff's hair in an attempt to get the plaintiff off her. He grabbed the plaintiff and threw her to the other side of the room, but she " continued to press back toward C. and he had to take her out of the room entirely." R., p. 15. He said that while the fight was going on, C. was yelling " mom get off me, " and he believed she was having a flashback to earlier abuse by her mother. After he separated the plaintiff from C., he spoke with the plaintiff. He felt that the plaintiff was " relieved that she could finally hit [C.] as if [C.] deserved this." The plaintiff did not express any remorse to Hill, but seemed concerned about what he would say about the incident when questioned. She did not ask if C. was okay. As the plaintiff was leaving the facility, Hill heard the plaintiff's exchange with E. He said the plaintiff said to E. that " I'll fuck you up like I fucked up [C.]." R., p. 15.
After interviewing all the witnesses to the incident--C., the plaintiff, Cardenas, and Hill--and speaking with C.'s therapist, the investigative social worker concluded that the plaintiff's actions could not be considered self-defense or use of reasonable force to maintain discipline or promote the welfare of the child because the plaintiff was " excessively forceful" in " going back into the room, getting on top of the child, and punching her repeatedly, and had to be pulled off of her." R., p. 22. She also noted that C., who was thirteen, was much smaller than the plaintiff.
The police officer who investigated the incident similarly concluded that the plaintiff's actions could not be considered self-defense. The police officer noted that C. was small in size and stature while the plaintiff was much larger, and that it was not " self defense" when the plaintiff was on top of and hitting the much smaller C. R., p. 19.
In light of the hearing officer's findings under the Lovan C. standard, which are supported by substantial evidence in the record, the plaintiff's claim that the department failed to hold a hearing on the reasonableness of her conduct must fail. Whether a justification is based on self-defense, the right to use reasonable physical discipline with a child, or department policy, all justification defenses require a finding that the force used was reasonable under the circumstances. Here, the hearing officer here expressly found that the plaintiff's use of force was unreasonable and excessive under the circumstances, including the fact that she was much larger than the child.
F
The Central Registry
The plaintiff's final ground for appeal in her brief was that her placement on the central registry is not supported by sufficient evidence of intent or chronicity. The department argued, to the contrary, that there was a finding of intent based on substantial evidence and that a finding of chronicity is not mandatory, but is only one factor that the hearing officer must consider.
At oral argument before this court, the plaintiff's counsel raised two additional arguments that were not previously asserted before the hearing officer or in the plaintiff's appeal briefs. First, the plaintiff's counsel asserted that the plaintiff's name should not have been placed on the registry before she was given notice and an opportunity for a substantiation hearing. Second, the plaintiff's counsel asserted that the hearing officer improperly shifted the burden of proof on the issue of placement on the registry when she scheduled a second day for the hearing to take additional evidence about the services the plaintiff had received and whether she had any incidents in subsequent employment. The department objected to the plaintiff's untimely assertion of new issues.
Ordinarily, a court will decline to consider a claim not asserted to the agency. See Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992); see also Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). When circumstances warrant it, however, the court may consider late-raised claims. See generally Practice Book § 60-5.
The court declines to address the first late-raised issue except to note that, under certain circumstances, the department may place a person's name on the registry prior to the exhaustion or waiver of administrative appeals. See General Statutes § 17a-101g(d).
As to the second late-raised issue, however, the court requires further briefing. In a hearing to determine whether a person should be placed on the registry of child abuse and neglect, " [t]he burden of proof shall be on the commissioner to prove that the finding is supported by a fair preponderance of the evidence submitted at the hearing." General Statutes § 17a-101k(d)(2). In this case, however, the record is ambiguous as to the burden of proof applied by the hearing officer on the issue of the plaintiff's placement on the registry.
The hearing officer scheduled a second day of the administrative hearing specifically to address the issue of the registry. R., p. 33. In the notice of that hearing, she directed the plaintiff to " be prepared to present evidence regarding whether the [plaintiff] has demonstrated changed circumstances since the time of the substantiation." R., p. 33. More particularly, she stated that " evidence is needed as to specific documentation about the services that the [plaintiff] participated in including length of time and successful completion of any services, as well as documentation as to where the [plaintiff] has worked since she was terminated from Alliance Staffing, including confirmation that she has had no further incidents in the workplace." R., p. 33.
In the first six paragraphs in the final decision's discussion of the registry, the hearing officer first set out the legal standard that the department must examine when considering placement on the registry and then discussed, in turn, intent, severity, chronicity, substance abuse, and domestic violence. R., pp. 65-66. In the seventh, eighth, and ninth paragraphs, however, she discussed the plaintiff's anger management counseling, lack of insight, and failure to produce any documentary support for her testimony that her work history since the incident had been positive. The decision is therefore ambiguous as to whether the hearing officer held the department to its burden of proof. The first six paragraphs could be read as a finding that the department met its burden of proof, but the seventh, eighth, and ninth could be read as shifting the burden to the plaintiff.
In light of the ambiguity as to the burden of proof applied in the registry determination, the court is considering a remand to the hearing officer for clarification. See Commission on Human Rights & Opportunities v. Hartford, 138 Conn.App. 141, 150-54, 50 A.3d 917 (2012). Because the issue was first raised in oral argument, however, the parties should have an opportunity to present their positions, with supporting authority, as to whether a remand for clarification is appropriate.
IV
CONCLUSION
There is substantial evidence in the administrative record to support the department's findings of basic fact, and the conclusions drawn from those facts are reasonable and are not otherwise affected by error of law. The department's decision to substantiate the findings of physical abuse, physical neglect, and emotional neglect is affirmed, and the plaintiff's appeal is dismissed as to those claims.
With respect to the issue of the central registry, the parties are directed to submit supplemental briefs, not to exceed ten pages, to address whether a remand for clarification of the burden of proof is appropriate. The plaintiff shall file her brief by August 14, 2017, and the department shall file its brief by September 14, 2017. If either party requests further argument on the issue, the court will schedule it; if not, the court will issue a decision or other order on the registry issue based on the briefs.