Opinion
No. CV 04 0525159 S
December 29, 2004
MEMORANDUM OF DECISION
I.
Victoria Randall appeals the final decision of the administrative hearing officer of the Department of Children and Families (DCF). The officer affirmed the department's substantiation of physical neglect of the appellant's son, Kory Randall. For the reasons given below, the appeal is dismissed.
The record reveals the following facts. On the afternoon of August 20, 2002, Victoria Randall prepared to take her daughter, Alexis Randall, to an orthodontic appointment in Enfield.
Kory Randall, who was less than three months old, was to remain at home with his father. As Mrs. Randall was about to leave with her daughter, Kory Randall became upset and the mother ultimately decided to take him along with her to the appointment.
When Victoria Randall arrived at the orthodontist's office, she took her daughter inside, but left Kory in the family van. Mrs. Randall later returned to the van with her daughter to retrieve an insurance card. She and her daughter then went back to the orthodontist's office. Kory remained alone in the back seat of the van.
When the appellant and her daughter were in the orthodontist's office, a woman named Donna Barsanti walked by the van and heard a baby crying. Barsanti and a colleague tried to open the van, but the doors were locked and the windows were rolled up, except for one, which was partly rolled down. Barsanti and her colleague called the Enfield police, who arrived on the scene and retrieved Kory from inside the van, which was described as hot by the police.
A police officer entered the orthodontist's office to ask whether anyone had left a child in a van, and Victoria Randall then ran outside to the van. She is a nurse and examined Kory, as did paramedics who were called to the scene. It was determined that Kory had not suffered any injuries requiring further treatment. Mrs. Randall was charged with a violation of § 53-21a(a) of the General Statutes, leaving a child unsupervised in a motor vehicle. The charge was later nolled after Randall completed thirty hours of community service.
§ 53-21a(a) provides: "Any parent, guardian or person having custody or control, or providing supervision, of any child under the age of twelve years who knowingly leaves such child unsupervised in a place of public accommodation or a motor vehicle for a period of time that presents a substantial risk to the child's health or safety, shall be guilty of a class A misdemeanor."
The police notified DCF of the incident in accordance with § 17a-101b(a). Following an investigation, the department substantiated a finding that Victoria Randall physically neglected Kory. She requested a hearing, which was held on April 16, 2003. Thereafter, the hearing officer affirmed the substantiation of physical neglect in a decision dated November 12, 2003. This appeal followed.
§ 17a-101b(a) provides: "An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm, by telephone or in person to the Commissioner of Children and Families or a law enforcement agency. If a law enforcement agency receives an oral report, it shall immediately notify the Commissioner of Children and Families."
II.
Victoria Randall argues that the hearing officer abused his discretion in affirming the substantiation because the mother did not intend to neglect Kory. The mother maintains that she forgot that Kory was in the van, and that the hearing officer found that her conduct was unintentional. According to the appellant, the hearing officer should have based his decision on cases involving unintentional conduct, but instead the hearing officer cited cases dealing only with intentional conduct. Mrs. Randall further argues that the hearing officer should have considered the totality of the circumstances, particularly the fact that this episode was an isolated incident.
DCF counters that the hearing officer properly applied the provisions in the department's policy manual, and that these provisions follow statutory requirements. The department's position is that intent is irrelevant in determining whether a child is neglected.
The standard of review in administrative appeals is well established. "With regard to questions of fact . . . [the court may not] retry the case or . . . substitute its judgment for that of the administrative agency . . . Judicial review of the conclusions of law reached administratively is also limited. The 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 its discretion . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . 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." (Internal quotation marks omitted.) Lovan C. v. Dept. of Children Families, 86 Conn.App. 290, 293-94, 860 A.2d 1283 (2004).
The parties in the present case do not dispute the hearing officer's factual findings. Victoria Randall's chief contention is that the hearing officer misapplied the law regarding neglect. That law, however, has long been settled that neglect does not require intent. "Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes." (Internal quotation marks omitted.) The Honorable Thomas D. Gill, "The Legal Nature of Neglect," 6 Nat'l Probation Parole Assn. J. 1, 6 (1960), quoting People v. LaBrenz, 411 Ill. 618, 624, 104 N.E.2d 769 (1952).
Judge Gill also explained in his article: "The court must always look to and be bound by the statutory definitions of neglect. Its right to respond to the needs of the neglected child is dependent upon the sufficiency of the evidence to prove and establish neglect." (Internal quotation marks omitted.) T. Gill, supra, 6 Nat'l Probation Parole Assn. J. 4.
This court accordingly examines the applicable statute, § 46b-120(9), which defines a neglected child: "[A] child or youth may be found neglected who . . . (B) is being denied proper care and attention, physically, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . ." The statute does not refer at all to parental intent to neglect. "[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault." In re David L., 54 Conn.App. 185, CT Page 19709 191, 733 A.2d 897 (1999).
Parts (A) and (D) of the statute provide that abandoned and abused children are also neglected.
An examination of the legislative history of this statute reveals no legislative purpose to include intent as an element of neglect.
Victoria Randall nevertheless argues that an intent element should be read into § 46b-120(9) because another potion of § 46b-120 concerning child abuse distinguishes between accidental and nonaccidental injuries to children. Child abuse and child neglect are, however, distinct concepts and need not require the same elements of proof. Randall's heavy reliance on Rucci v. State 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) is misplaced since that case dealt with child abuse. Cases involving child neglect hold that parental intent is not a requirement in substantiating neglect. See, e.g., Moirez v. Dept. of Children Families, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0392780 (September 17, 2004, Owens, J.).
Mrs. Randall even suggests that the lack of a distinction between intentional and unintentional child neglect violates the constitution of Connecticut, but she fails to specify which portion of the constitution of Connecticut might be violated and fails to brief the issue. As the Appellate Court observed in a case in which a plaintiff raised but failed to argue a constitutional issue, "[w]e deem that claim to be abandoned . . . because the plaintiff has failed to adequately brief and argue that assertion." Terese B. v. Commissioner of Children Families, 68 Conn.App. 223, 227 n. 8, 789 A.2d 1114 (2002).
Finally, Randall claims that her name will appear on the department's registry of persons who have neglected children. See General Statutes § 17a-101k(a). This registry is not available to the public, but is available to employers hiring for jobs involving children. The appellant works as a nurse and fears that her employment prospects could be impacted because her name will be listed on the registry.
§ 17a-101k(a) provides: "The Commissioner of Children and Families shall maintain a registry of the reports received pursuant to sections 17a-101a to 17a-101d . . . and shall adopt regulations to implement the provisions of this section, including the use of the registry on a twenty-four-hour daily basis to prevent or discover abuse of children and the establishment of a hearing process for any appeal by a person of the commissioner's determination that such person is responsible for the abuse or neglect of a child . . . The information contained in the reports . . . shall be confidential subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations."
Victoria Randall contends that the hearing officer should have considered the registry as a factor when reviewing the substantiation of neglect. This argument is inapposite because the hearing officer's task was to examine the evidence of physical neglect of Kory Randall. The hearing officer determined that a fair preponderance of the evidence revealed that Kory was physically neglected by being left alone inside a van on a summer afternoon. The issue of the registry is not before this court.
The record supports the hearing officer's decision, and further, upon our independent review of the record, we conclude that this appeal ought to be dismissed.
So ordered.
William P. Murray, J. A Judge of the Superior Court