Opinion
HHBCV165017452S
08-04-2017
Nick W. [1] v. Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff appeals the final decision of the defendant, the Department of Children and Families (department), upholding findings of emotional abuse and physical neglect and the plaintiff's placement on the department's abuse and neglect registry. The plaintiff claims that the department failed to produce substantial evidence to support its findings. He further claims that, in placing his name on the registry, the department improperly relied on his arrest for risk of injury and assault arising out of the incident that led to the substantiation, without waiting to learn the disposition of the criminal charges. The plaintiff also claims that the hearing officer erroneously found that the plaintiff had a previous conviction for risk of injury.
For the reasons stated below, the court is not persuaded by the plaintiff's claims. His appeal is therefore dismissed.
I
FACTS
The following facts were found by the department's hearing officer in her final decision, issued on March 22, 2016. The plaintiff is the father of M., who was born in December 2009. Record (R.), Final Decision, p. 1. On May 27, 2015, the department received a report that the plaintiff was involved in an altercation with M.'s mother. The plaintiff allegedly was upset that M., who was five years old at the time, had lost in a fight with a younger child. The plaintiff allegedly told M.'s mother that M. was a " pussy" and then punched M.'s mother in the face, all in M.'s presence. R., Final Decision, p. 2. The plaintiff then allegedly slammed M. against the mother's car three times. R., Final Decision, p. 2.
When interviewed by a department investigator, M.'s mother reiterated the details of the report and agreed they were accurate. She said the plaintiff was angry because M. was in a fight with another child and did not fight back. The plaintiff punched the mother in the face and then banged M. against the car. The mother's face was swollen but M. did not sustain any injuries. R., Final Decision, p. 2.
A police report indicates that the plaintiff was verbally abusive during the incident, calling the mother a " bitch" and calling M. a " fagot" [sic] in M.'s presence. R., Final Decision, p. 2. M. was distressed and cried on the day of the incident, but after that he continued to ask to see the plaintiff and looked up to the plaintiff as a role model. R., Final Decision, p. 2.
When a department investigator interviewed M., M. reported that the plaintiff had slapped him on the back of his head and bumped his head by the car, which made him feel sad. M. told the investigator that the plaintiff did these things because he wanted M. to hit a four-year-old back when the four-year-old slapped M. M. discussed the incident twice with investigators and was consistent in his description that the altercation related to his not fighting back with the other child. He also reported that he had seen his mother and father use their hands to fight and that he saw " daddy hit mommy." He said it made him sad when " daddy hit mommy." R., Final Decision, p. 2.
The police records indicated that the mother's face was slightly swollen after the incident. R., Final Decision, p. 2.
During the hearing and when interviewed by the investigator, the plaintiff alleged that nothing in the report was true. The hearing officer found that he did not present as a credible, reliable, or persuasive reporter of the facts. R., Final Decision, p. 2.
The plaintiff had a history of domestic violence and a long history of arrests and convictions. The hearing officer found that the plaintiff had a prior risk of injury arrest that resulted in a conviction with a fine. The plaintiff admitted that exposure to domestic violence causes stress to a child. R., Final Decision, p. 2.
II
PROCEDURAL HISTORY
Based on its investigation, the department substantiated the plaintiff for emotional maltreatment/abuse and physical neglect and recommended his placement on the registry. The plaintiff requested a substantiation hearing, which was held on March 17, 2016. The hearing officer received into evidence, among other items, the investigation protocol and the arrest warrant affidavit based on the incident that precipitated the investigation. The plaintiff, who was incarcerated at the time of the hearing, participated in the hearing and testified by telephone. The hearing officer issued her decision on March 22, 2016, upholding the department's findings and recommendation. This appeal followed.
The plaintiff, who is self-represented, filed a brief on February 28, 2017. The department filed its brief on May 19, 2017. The appeal hearing was held on July 27, 2017. Although notice of the hearing was mailed to the plaintiff at the address on record, the plaintiff did not appear and is therefore deemed to have waived his right to oral argument.
III
SCOPE OF REVIEW
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. Dep't 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. Dep't 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).
IV
DISCUSSION
Sufficiency of the Evidence
The plaintiff's principal claim on appeal is that there was insufficient evidence to support the hearing officer's decision substantiating emotional abuse and physical neglect. At the hearing, the plaintiff claimed he did not have M. in his care on the date of the alleged incident in 2015. On appeal, he claims that the department's investigation was inadequate, that M. and M.'s mother gave contradictory statements, and that M.'s mother was telling M. what to say because she was trying to get the plaintiff arrested. None of these claims are persuasive.
As to the adequacy of the investigation, the police and two department investigative social workers investigated the incident. One of the department's social workers testified at the substantiation hearing and was cross-examined by the plaintiff. Both the investigation protocol and the warrant affidavit for the plaintiff's arrest were submitted into evidence. The investigation protocol includes narrative reports of both social workers' interviews with M.'s mother and M., and of the second social worker's interview of the plaintiff.
The first investigative social worker interviewed M.'s mother and M. on June 4, 2015. When M. began to disclose details about his mother's current boyfriend and about his father's smoking " brown cigarettes, " M.'s mother terminated the interview. R., Ex. 5, Investigation Protocol, p. 6. A new social worker was assigned to the case and reinterviewed M. and M.'s mother on July 17, 2015, at which time they repeated the accounts they had given to the first social worker in substantially similar detail. R., Ex. 5, pp. 8-9.
" Evidence in written form is not, as a matter of law, inadmissible in an administrative hearing unless it substantially prejudices a party . . . Moreover, hearsay evidence is not prohibited in administrative proceedings by the Uniform Administrative Procedure Act, which permits the introduction of oral or documentary evidence . . . Hearsay testimony generally is admissible in administrative hearings as long as it is sufficiently trustworthy." (Citations omitted; internal quotation marks omitted.) F.M. v. Commissioner of Children & Families, 143 Conn.App. 454, 477, 72 A.3d 1095 (2013). The department's regulations specifically provide in relevant part that " [t]he department's investigative record including protocol, medical records and other materials used to substantiate abuse or neglect or to make the registry finding . . . shall be admitted as part of the hearing record." Regs., Conn. State Agencies § 17a-101k-8(f). The notice of the substantiation hearing specifically advised the plaintiff that he would be provided with a copy of the investigation protocol before the hearing and that it would be admitted into evidence at the hearing. The transcript of the hearing establishes that the plaintiff was familiar with the investigation protocol. The investigation protocol contains indicia of reliability, including the fact that two social workers independently interviewed both M.'s mother and M. and received substantially the same information in each interview. Both M.'s mother and M. told the social workers that the plaintiff hit M.'s mother, hit M., and pushed M.'s head against the car because M. did not hit a younger child who had hit him. R., Ex. 5, Investigation Protocol, pp. 4-6, 8-9. M.'s mother consistently described the altercation to the investigating police officer and to the two investigative social workers on at least three occasions. Her account was corroborated, at least in part, by the fact that the investigating police officer observed that her face was swollen shortly after the incident occurred. The documentary evidence had sufficient indicia of reliability to serve as substantial evidence for the hearing officer's findings.
The plaintiff testified and denied all the allegations of abuse and neglect, claiming that he was not with M. on the day of the alleged incident. When he had previously spoken with the investigator, however, he had merely denied that the reports of his conduct were true; he did not deny that he was with his son on the day of the incident. The hearing officer expressly found that the plaintiff did not present as a " credible, reliable or persuasive reporter of the facts." R., Final Decision, p. 2, paragraph 9. The plaintiff essentially asks the court to reject the hearing officer's credibility determination and retry the facts of the case, which the court may not do. See F.M. v. Commissioner of Children & Families, supra, 143 Conn.App. 480.
In an administrative appeal, " [t]he 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.) Frank v. Dep't. of Children & Families, supra, 312 Conn. 411-12. In this case, substantial evidence supported the hearing officer's decision, even though the record contains contradictory evidence as well. It is the agency's province to make determinations of credibility. Id., 412.
More specifically, there was substantial evidence supporting a finding of emotional abuse/maltreatment as those terms are defined by statutes, regulations, and departmental policy. 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)(C) provides in relevant part that a child may be found to be " abused" who " is in a condition that is the result of maltreatment, including, but not limited to, . . . emotional maltreatment . . ." The department's policy manual defines " emotional maltreatment--abuse" as acts, statements, or threats which have, or are likely to have, " an adverse impact on the child" and/or " which interferes with a child's positive emotional development." Department of Children and Families Policy Manual (DCF Policy Manual) § 34-2-7, " Emotional Maltreatment--Abuse." The policy manual states that evidence of emotional maltreatment includes, among other things, behavior that is " rejecting" or " degrading." DCF Policy Manual § 34-2-7, " Emotional Maltreatment--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. Dep't. of Children & Families, supra, 290 Conn. 576 and n.16; see also Frank v. Dep't. of Children & Families, supra, 312 Conn. 420-21.
Here, M.'s mother told the department investigators and the police that the plaintiff called her a " bitch" and their son a " fagot" [sic] because five-year-old M. did not fight back when struck by a younger child. R., Ex. 5, Investigation Protocol, p. 5. The department concluded, and the hearing officer agreed, that the plaintiff encouraged the child to engage in a physical altercation with another child and then degraded him when he did not prevail in the dispute with the younger child. The department reasonably concluded that such conduct had an adverse impact on M., who was young and impressionable and looked up to his father as a role model. The department also reasonably concluded, and the hearing officer agreed, that the plaintiff showed a serious disregard for his son when he repeatedly slammed him against the door of a car. These conclusions are reasonably drawn from the facts as found and provide substantial evidence of the plaintiff's emotional abuse of his young son.
There is also substantial evidence to support the department's finding of physical neglect, which the hearing officer upheld. 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." 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 because the plaintiff encouraged M., a five-year-old child, to engage in a physical altercation, degraded him when he did not prevail, assaulted M.'s mother in front of M., and then struck M. himself. The department's investigator testified that M. was very distressed by seeing the plaintiff hit M.'s mother. She also testified that the plaintiff's encouragement to participate in a physical altercation had a detrimental impact on M. because he held his father in high regard. She also expressed concern that the plaintiff expressed no remorse over the incident. She believed that he knew that his behavior would have a detrimental impact on his son.
The hearing officer upheld the finding of physical neglect. She found that the plaintiff, who was a person responsible for M.'s welfare, put M. in a zone of danger by assaulting M.'s mother and then striking M. and pushing his head against the car. She found that these actions demonstrated the plaintiff's serious disregard for M.'s welfare and could have resulted in a serious injury to him. She concluded that the plaintiff's actions constituted physical neglect as interpreted by the department's policy manual. Despite the plaintiff's testimony and arguments to the contrary, the hearing officer's conclusions were reasonably drawn from the facts found and were supported by substantial evidence.
Consideration of Arrests Without Conviction
The plaintiff also argues that the department improperly considered his two arrests for risk of injury. First, he claims that the department improperly placed him on the registry based on the arrest that arose out of the incident at issue, without waiting for the disposition of those charges. Second, he claims that the hearing officer erroneously found that he had a previous conviction for risk of injury, when in fact that earlier charge of risk of injury had also been dismissed. With respect to the first claim, the court is not persuaded that the agency erred in placing him on the registry based in part on his arrest. Nor is the court persuaded that the hearing officer improperly upheld the placement on the registry based on other factors, despite the plaintiff's testimony that the charges resulting from the incident were dismissed. With respect to his second claim, the court concludes that if the hearing officer's finding regarding a prior risk of injury conviction was erroneous, any such error was harmless in light of the plaintiff's admitted history of domestic violence and his undisputed history of criminal convictions for assaults and other charges.
As to the first claim--that the department improperly placed him on the registry based on his arrest without consideration that the charges were dismissed--the law is against the plaintiff, because the statutes governing the registry permit the department to put a person on the registry, prior to the exhaustion of any administrative appeals, if the person is arrested for conduct that is substantiated as abuse or neglect.
If an arrest is the sole basis for placing a person on the registry, the department's policy manual notes that the registry recommendation should be reversed upon a showing that case was finally disposed of without a finding by a court that the identified person committed the act of abuse or neglect. DCF Policy Manual § 34-2-8. In this case, however, the department placed the plaintiff on the registry not only because of the arrest, but also because of the conduct that led to his arrest, including an analysis of intent, severity, and chronicity. See R., Ex. 5, Investigation Protocol, pp. 14-15, and R., Hearing Transcript, pp. 12-13.
Two statutes govern the child abuse and neglect registry. First, General Statutes § 17a-101g requires the department to investigate allegations of child abuse and neglect. If the department determines that such abuse or neglect has occurred, it must further determine whether: " (1) There is an identifiable person responsible for such abuse or neglect; and (2) such identifiable person poses a risk to the health, safety or well-being of children and should be recommended by the commissioner for placement on the child abuse and neglect registry established pursuant to section 17a-101k." General Statutes § 17a-101g(b). A subsequent subsection provides in relevant part that: " If the child abuse or neglect resulted in or involves . . . the arrest of a person due to abuse or neglect of a child . . . entry of the recommended finding may be made on the child abuse or neglect registry and information concerning the finding may be disclosed by the commissioner pursuant to a check of the child abuse or neglect registry . . . prior to the exhaustion or waiver of all administrative appeals available to the person suspected to be responsible for the abuse or neglect as provided in section 17a-101k." General Statutes § 17a-101g(d). By this provision, the department is expressly authorized to place a person's name on the registry based on arrest for abuse or neglect that the department has substantiated, before the disposition of the criminal case.
General Statutes § 17a-101k directs the department to maintain a registry of the commissioner's findings of abuse or neglect and establishes the procedures governing placement on the registry and appeals from registry determinations. It provides, among other things, that the information maintained in the registry is confidential and may be disclosed only as specifically authorized by statute. General Statutes § 17a-101k(a). The information in the registry is statutorily disclosable generally for purposes of employment or licensure involving the care of children. See General Statutes § § 17a-101g(c) and (d); see also General Statutes § § 10-221d.
The department's regulations set out a number of additional criteria the department considers in determining whether a person should be placed on the registry because he or she poses a risk to the health, safety, or well-being of children. These include, but are not limited to, considerations of intent, severity, and chronicity of abuse and neglect, and the involvement of substance abuse or domestic violence. Regs., Conn. State Agencies § 17a-101k-3; Department of Children and Families Policy Manual § 34-2-8. In determining intent, the department considers whether " there was reason to believe that the individual responsible had sufficient knowledge and resources, the ability to utilize them and an understanding of the implications for failing to provide appropriate care, but made a conscious decision not to do so . . ." Regs., Conn. State Agencies § 17a-101k-3(e)(1). In considering severity, the department considers whether " there was an adverse impact to the victim, or a serious disregard for the victim's welfare . . ." Regs., Conn. State Agencies § 17a-101k-3(e)(2). In considering chronicity, the department considers whether " there is a pattern or chronic nature to the neglect regardless of the measurable impact to the victim . . ." Regs., Conn. State Agencies § 17a-101k-3(e)(3).
In this case, the department initially substantiated the plaintiff for emotional abuse/maltreatment and physical neglect, and recommended placement of his name on the registry, as a result of the incident on May 27, 2015, after concluding that the plaintiff had struck M.'s mother in the face in M.'s presence, slapped M.'s head and slammed M. into the side of a car three times, and called M.'s mother and M. degrading names, all because M. would not hit a younger child who had hit M. The department's investigator summarized the reasons for recommending placement on the registry, which included the findings that physical neglect and emotional abuse were substantiated, that the plaintiff's conduct showed a serious disregard for M.'s welfare and could easily have caused him harm, that the plaintiff showed no concern for M.'s safety or well-being, and that there was a warrant for the plaintiff's arrest for the charges of risk of injury and assault in the third degree. R., Ex. 5, Investigation Protocol, pp. 14-15, and R., Hearing Transcript, pp. 12-13. She also testified that he showed no remorse for his actions. R., Hearing Transcript, p. 13. These were proper considerations in determining that the plaintiff posed a risk to the health, safety, or well-being of children.
In upholding the placement on the registry after receiving the plaintiff's testimony that both the earlier and the later risk of injury charges against him had been dismissed, the hearing officer did not rely on the plaintiff's arrests for risk of injury. She engaged in an analysis of intent, severity, chronicity, and the involvement of substance abuse or domestic violence. R., Final Decision, pp. 3-4. In considering intent, the hearing officer found that the plaintiff had the knowledge and resources to provide appropriate care, but chose not to do so when he engaged in a violent altercation with M.'s mother. In considering severity, the hearing officer found that assaulting M. by striking his head and pushing him into the car could have resulted in serious injury to M. and demonstrated a serious disregard for M.'s welfare. In considering chronicity, the hearing officer found that the plaintiff had a pattern of criminal allegations and convictions involving a history of physical violence. The hearing officer noted that there was no evidence of substance abuse in this case, but that domestic violence figured prominently in the case. She also found that the plaintiff was attempting to teach the five-year-old M. to be physically violent with others. She noted that the plaintiff had confirmed in his testimony that domestic violence causes stress for a child.
The hearing officer's findings are supported by substantial evidence in the record. More specifically, with regard to the plaintiff's conviction history, the criminal record check by the department disclosed that the plaintiff had an arrest history dating back to 1996, with convictions for assault in the third degree committed in 2006, 2011, and 2013. R., Ex. 5, Investigation Protocol, p. 12. The plaintiff had numerous other convictions as well, including but not limited to convictions for possession and sale of drugs in 2001, criminal possession of a gun in 2010, separate convictions resulting in separate periods of incarceration for criminal contempt of court and contempt of court in 2010, and several convictions for violation of probation. When he testified at the substantiation hearing, the plaintiff admitted that he was in jail most of the time and that he had been involved in domestic violence incidents both with M.'s mother and with the mother of his other child, who had obtained a protective order against him. R., Hearing Transcript, pp. 20, 22, 23, and 26. He did not dispute most of the information in the criminal history recited in the investigation protocol. He did claim, however, that he had no convictions for risk of injury and that the charges related to the May 27, 2015 incident were dismissed.
The hearing officer did not clearly err in finding that the plaintiff's conviction history supported the chronicity criterion. She did not rely on the charge of risk of injury arising out of the May 27, 2015 incident, but relied instead on his admitted history of convictions involving violence, including domestic violence. R., Final Decision, p. 4.
The plaintiff also claims that the hearing officer improperly found that he had been convicted of risk of injury on an earlier occasion. This claim has two aspects: first, that no copy of his criminal history was introduced into evidence, and second, that contrary to the hearing officer's finding, he was never convicted of risk of injury.
With respect to the first aspect of this claim, it is true that the department did not introduce as an exhibit a copy of the plaintiff's criminal history. The department did introduce the investigation protocol, however, which included a narrative summary of the plaintiff's criminal history. R., Ex. 5, Investigation Protocol, p. 12. Although this was hearsay, there is no rule that prohibits a hearing officer from considering hearsay evidence in an administrative appeal. See F.M. v. Commissioner of Children & Families, supra, 143 Conn.App. 477 (administrative tribunals may admit hearsay testimony as long as it is sufficiently trustworthy). Moreover, except with respect to the prior risk of injury charge, the plaintiff did not dispute the arrests and convictions summarized in the criminal history.
With respect to the second aspect of this claim, the hearing officer did state, in her initial findings, that " [t]he Appellant had a history of domestic violence and long history of arrests and convictions. He had a prior risk of injury arrest, which resulted in a conviction with a fine." R., Final Decision, p. 2, paragraph 10. This finding appears to be based on a statement, in the criminal history section of the investigation protocol, which stated that " [o]n 11/17/06, Mr. W. was arrested for Risk of Injury and Assault 3d for which he received a $100 fine." R., Ex. 5, Investigation Protocol, p. 12. The statement in the investigative protocol is ambiguous as to whether the fine, and therefore the conviction, related to the risk of injury charge or the assault charge. The hearing officer appears to have assumed that the fine related to the risk of injury charge. Even if she was mistaken, however, any such error is harmless. In considering the chronicity criterion, the hearing officer did not rely on the risk of injury charges, but on the plaintiff's general criminal history, including a " history of physical violence." R., Final Decision, p. 4. The plaintiff had an undisputedly extensive criminal history involving convictions for crimes of violence. Moreover, the plaintiff admitted engaging in domestic violence incidents at least twice--once on an earlier occasion with M's mother and once with the mother of his other child. The hearing officer did not err in concluding that the plaintiff's placement on the registry should be upheld because the plaintiff posed a risk to the safety, health and well-being of children.
V
CONCLUSION
The department's findings of fact are supported by substantial evidence and its conclusions of law are reasonably drawn from those findings. The department did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in substantiating the plaintiff for emotional abuse/maltreatment and physical neglect of his son. Nor did it act unreasonably, arbitrarily, illegally, or in abuse of its discretion in placing the plaintiff on the registry. The plaintiff's appeal is accordingly dismissed.