Opinion
19-P-618
10-27-2020
TALIA T. & another v. DEPARTMENT OF CHILDREN & FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Talia T. and Amy T., appeal from a judgment entered in the Superior Court affirming the decision of the Department of Children and Families (department) to revoke their license to provide preadoptive foster care (license). The plaintiffs argue that the department's decision to revoke the license was not supported by substantial evidence, and that they were prejudiced by the department's failure to follow its own regulations and policies in revoking their license. Because we conclude that the hearing officer's affirmance of the department's decision to revoke the plaintiffs' license was not supported by substantial evidence, we vacate the judgment and order the entry of a new judgment remanding the matter to the department for further proceedings consistent with our decision.
Background. We summarize the facts found by the hearing officer, adding some additional facts from elsewhere in the record and reserving other details for later discussion.
The plaintiffs are the married parents of a daughter, Carole, whom they adopted in 2013 when she was three years old. In 2015, Rachel Carvalho, an adoption social worker with Children & Family Services, Inc. (CFS), oversaw the placement of Alan, age three, and his brother, Bruce, age two, in the plaintiffs' home. Both boys had significant emotional and physical needs and developmental delays. The plaintiffs planned to adopt both boys.
A pseudonym.
We understand CFS to be a provider of contract services to the department.
The boys' names are pseudonyms.
On her initial visits with the boys after their placement, Carvalho found that they were doing well. They were receiving early intervention and other services, including physical therapy for Bruce, who was born with a lower limb deficiency. Soon, however, Carvalho's relations with the plaintiffs became strained. The plaintiffs told Carvalho they planned to have Bruce evaluated for autism, and that he had been diagnosed with autism by three of his providers. Carvalho determined none of the providers had diagnosed Bruce with autism, although two of the three providers indicated they had seen behaviors that might indicate autistic features or that the plaintiffs' concerns about autism were "appropriate." Carvalho, however, thought that the plaintiffs' ongoing advocacy for an autism evaluation was inappropriate.
On subsequent visits to the home, Carvalho noted bruises on the children. The plaintiffs complied with Carvalho's request to have the boys evaluated by their pediatrician, who opined that the bruises were a result of the boys being active. Carvalho felt that the plaintiffs' expectations for the children were unreasonable, given their ages and developmental issues.
The relationship between Carvalho and the plaintiffs deteriorated further over the course of Carvalho's visits between August and December 2015. Carvalho continued to believe that the plaintiffs' expectations for the children were unreasonable. The plaintiffs asserted that Carvalho was biased against them and that she did not demonstrate competence in their parenting style, in child development, or in lesbian, gay, bisexual, and transgender family structures. After a meeting in December 2015, Carvalho and the plaintiffs reached an agreement that accommodated some of Carvalho's concerns and permitted the plaintiffs to have Bruce evaluated for autism by a specialist whom the plaintiffs chose.
The department initiated a scheduled license renewal study of the plaintiffs' home in January 2016. During the same month, and while the study was pending, a G. L. c. 119, § 51A, report (51A report), was filed, based on a report that one of the plaintiffs had pushed Carole. Following an investigation, the department determined that the plaintiffs had not pushed Carole, and the report was not supported.
A preadoptive care license is effective for two years, and is subject to annual reassessments and license renewal studies governed by the department's regulations and policies. See 110 Code Mass. Regs. § 7.107(8) (2011).
Bruce was evaluated for autism by a specialist at Boston Children's Hospital selected by the plaintiffs. The specialist did not diagnose Bruce with autism. The plaintiffs were unhappy with the evaluation, but complied with Carvalho's directive that further conversation about autism was "off the table."
The evidence was undisputed that the plaintiffs met with the department whenever they were requested to do so, arranged for prompt medical evaluation of the boys at Carvalho's request, were responsive to the department's calls, and participated in efforts to identify and resolve areas of disagreement between themselves and various professionals, including Carvalho.
On February 3, 2016, the plaintiffs were informed that the department intended to conduct a "limited reassessment" of their home "due to a 51A report having been filed in January, 2016."
On February 15, 2016, a 51A report was filed regarding "bruises" observed on Alan. The discolorations in question were immediately identified as birthmarks, not bruises, and no abuse or neglect was found. Based on the fact that Alan and Bruce were in preadoptive care with the plaintiffs, however, the remaining investigation was transferred to the department's special investigations unit. The investigation addressed "many concerns," including reports that Bruce was loud at dinner and was not able to eat with the family, and that Alan had been placed in a time out for over an hour. The plaintiffs explained to Carvalho and to Marsha Donovan, the department's regional adoption development licensing supervisor, that they did not withhold food from the children; as Donovan confirmed in her hearing testimony, the department ultimately had no proof that the plaintiffs had done so. Donovan testified that Amy denied that Alan had been put in time out, and said that from time to time Alan spontaneously took himself to his room, sometimes staying there "for a long time."
All aspects of the investigation into the February 15, 2016 report, too, ultimately were unsupported, although the investigation generated additional concerns within the department about the plaintiffs' parenting style and their interactions with the boys. Carvalho discussed at least some of these new concerns with the plaintiffs, who offered to allow her access to a number of people who could speak to their parenting of the boys, including community members and providers who were familiar with the family. Carvalho did not attempt to contact any of these sources.
Carvalho testified that it was the department's position that "it would be better to have other professionals observing the children who did not already have an established relationship with the family."
The plaintiffs met with Carvalho again on February 16, 2016. At the time of this meeting, according to Carvalho, "[t]he children were ... responding very well to the structure in the home," and she told the plaintiffs that the boys seemed very happy and well adjusted.
On February 18, 2016, Carvalho spoke with a supervisor of an in-home provider for the plaintiffs' daughter, Carole. The supervisor recounted for Carvalho the provider's concerns about the plaintiffs' "expectations for the children not being age appropriate"; the plaintiffs' plans to seek additional evaluation of Bruce for autism once the adoption was finalized; and Talia's report some weeks earlier about having been reported to the police based on her interaction with the children in a park.
Carvalho contacted the police about the alleged incident in the park, but found no police record of it.
On February 19, 2016, without prior notice, Carvalho advised the plaintiffs that the boys were being "placed in respite" pending the outcome of an inquiry by the department's special investigation unit of the 51A report filed on February 15; Carvalho took Alan and Bruce out of the plaintiffs' home the same day. The plaintiffs filed a timely request for a fair hearing on the department's removal of Alan and Bruce. See 110 Code Mass. Regs. § 10.00 (2014).
Carvalho reported being informed by the foster parents with whom the boys had been placed upon removal from the plaintiffs' home that, for several weeks after the removal, Alan "displayed behaviors consistent with having food withheld from him." Carvalho did not provide any detail about those behaviors, or the basis for the opinion -- either that of the reporting foster parents or her own -- that the behaviors were "consistent with" the withholding of food. Carvalho also testified that after removal from the plaintiffs' home, Alan was very active, but "he's not getting any bruising," and that after removal, none of Bruce's providers expressed concerns about autism. On April 20, 2016, the February 15, 2016, 51A report was unsupported.
In connection with those concerns, however, Carvalho did describe her own experience with Alan on the day that the boys were removed from the home. On that day, while waiting with Carvalho for service at a coffee shop drive-through, Carvalho offered Alan a doughnut. After making his choice, and while waiting for the order, Alan "became upset, and was ... somewhat defiant" of Carvalho, then turned to her and said, "now you won't let me have it," referring to the doughnut she had promised him. Carvalho testified that she reassured Alan that he would still be able to have the treat.
Following an internal department clinical review team (CRT) meeting on May 17, 2016, the CRT recommended that the plaintiffs' license to provide preadoptive care be revoked. However, it was not until June 29, 2016 -- the first day of the fair hearing on the removal of the boys from the plaintiffs' home -- that the department informed the plaintiffs that it had decided to revoke their preadoptive care license. The plaintiffs timely requested a fair hearing as to this decision as well; the fair hearings on the boys' removal and the revocation of the plaintiffs' license were consolidated.
In doing so, the department cited violations of standards 1, 2, 5, 12, and 15 contained within 110 Code Mass. Regs. § 7.104(1) that had not been met.
Following the completion of the combined fair hearing, the hearing officer concluded that the department's removal of Alan and Bruce from the plaintiffs' home was improper, but because she affirmed the revocation of the plaintiffs' license to provide preadoptive care, she further concluded that the issue of the boys' removal was moot. The plaintiffs appealed the hearing officer's decision affirming the revocation of their license to the Superior Court pursuant to G. L. c. 30A, § 14. A judge of that court affirmed the hearing officer's decision.
Discussion. The plaintiffs argue that the department's decision to revoke their license was unsupported by substantial evidence and must be set aside pursuant to G. L. c. 30A, § 14 (7) (e ) ; they also argue that the decision was fatally flawed based on the department's failure to adhere to its own regulations. Ultimately, they seek reinstatement of their license.
The plaintiffs represent that they do not feel that it would be in Alan's or Bruce's best interests to disrupt their placement "yet again," and thus do not seek to have the boys returned to their care. The plaintiffs took the same position in the Superior Court.
1. Standard of review. We review the hearing officer's decision in accordance with G. L. c. 30A, § 14. See Magazu v. Department of Children & Families, 473 Mass. 430, 436–437 (2016) ; McGuiness v. Department of Correction, 465 Mass. 660, 668 (2013). In doing so, we defer to the agency's "experience, technical competence, and specialized knowledge ... as well as to the discretionary authority conferred upon it." Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010), quoting Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836 (2006). We also defer to the agency's factual findings. See Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). In making our assessment, however, we "must take into account not only the evidence that supports the [agency's] decision but ‘whatever in the record fairly detracts from its weight’ " (citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020) (Doe No. 11204).
2. Plaintiffs' compliance with licensing standards. The plaintiffs challenge the sufficiency of the evidence of their failure to meet the department's licensing standards 1, 2, 5, 12, and 15. See G. L. c. 30A, § 14 (7) (e ). We agree with the plaintiffs that the hearing officer's conclusion was not supported by sufficient evidence, but determine that the appropriate remedy is to vacate the judgment and order the entry of a new judgment remanding the matter to the department for further hearing, and not an order reinstating the plaintiffs' license.
These standards, cited by the hearing officer, are taken from Standards for DCF Foster/Pre-Adoptive Families, Standards for Approval/Licensing (2006) (standards). The standards require the plaintiffs to "demonstrate skill in parenting and providing substitute care," including:
"1. The physical and emotional stability and well-being to assure that a child placed in her/his care will experience a safe, supportive and stable family environment which is free from abuse and neglect.
"2. The ability to assure that a child placed in her/his care will be provided with adequate food, clothing, shelter, supervision and other essential care at all times.
"...
"5. The ability to promote the physical, mental and emotional well-being of a child in her/his care.
"...
"12. The ability to have reasonable expectations of foster/pre-adoptive children's behavior and potential growth.
"...
"15. The ability to work with the Department and the foster/pre-adoptive child's parents in implementing the child's service plan in order to meet developmental goals and outcomes."
a. Hearing officer's reliance on "clinical basis" for revocation. As an initial matter, we address the hearing officer's finding that the department had a "sound, reasonable clinical basis" for the department's decision to revoke the plaintiffs' license. We do not discern a proper foundation for the hearing officer's determination that the department had any "clinical basis" for its decision, nor that the staff involved were qualified to make "clinical judgment[s]." Here, beyond the witnesses' job titles and agency affiliations, there was little or no evidence about their professional credentials or experience. Any "clinical basis" for the department's decision has to be grounded in fact. See, e.g., Anderson v. Paulo, 74 Mass. App. Ct. 635, 640 (2009) (opinion "adequately grounded in facts" admissible); Johnstone, petitioner, 72 Mass. App. Ct. 123, 135 (2008), quoting Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 589 (2004) (requiring "clinical basis for linking past sexual misconduct with present behavior to produce a diagnosis of a currently sexually dangerous person"); Commonwealth v. Blanchette, 54 Mass. App. Ct. 165, 177 (2002) (discussing failure of expert to explain clinical basis for diagnosis). On this record, we discern no evidence of a "clinical basis" on which the hearing officer properly could have relied in affirming the revocation of the plaintiffs' license.
The hearing officer also noted that she had "no reason to doubt the clinical experience and judgment of the Department/CFS staff involved" in the revocation decision.
b. Lack of factual support. Putting the issue of witness qualifications aside, there is no factual support, much less the support of "substantial evidence," for the hearing officer's affirmance of the department's determination that the plaintiffs failed to meet standards two and five -- "[Alan] displaying behaviors consistent with having food withheld from him once he left the care of the [plaintiffs]," and the plaintiffs' "quest to have [Bruce] receive certain diagnoses." See G. L. c. 30A, § 14 (7) (e ).
Alleging that the plaintiffs failed to meet standard two, which requires the preadoptive parent to demonstrate "[t]he ability to assure that a child placed in her/his care will be provided with adequate food, clothing, shelter, supervision and other essential care at all times," the department cited to concerns that the plaintiffs were withholding food from the boys as a sanction for misbehavior.
Claiming that the plaintiffs failed to meet standard five, which requires a preadoptive parent to demonstrate "[t]he ability to promote the physical, mental and emotional well-being of a child in her/his care," the department relied on its conclusion that "[t]he [plaintiffs'] singular focus and pursuit of an autism diagnosis for [Bruce] was a direct violation of his well-being, especially in the face of more than one licensed provider who clearly did not support that diagnosis."
Apart from the nonspecific reports made by the boys' subsequent foster parents, the only evidence supporting the claim that, following removal from the plaintiffs' home, the boys demonstrated signs of having had food withheld from them was Carvalho's account of Alan's concern about the potential loss of a treat (a doughnut) following an incident of misbehavior on the day of his removal. See note 9, supra. In fact, according to Donovan, the issue was not, as the department alleged, the withholding of food, but "how mealtimes were managed." These concerns appear rooted in the fact that the plaintiffs expected the children to eat the meal being served, and not act in a way that unsettled the other children during mealtimes.
Similarly, we discern no evidence indicating that the plaintiffs' focus on having Bruce comprehensively evaluated for autism had any negative impact on Bruce's wellbeing. Nor, contrary to the department's suggestion in its briefing, does the record reflect that the plaintiffs' efforts to have Bruce evaluated were made at the expense of any other therapy or treatment Bruce required.
As the hearing officer's affirmance of the department's decision to revoke the plaintiffs' license relied on the considerations in standards two and five, we conclude that without them, the hearing officer's decision was not supported by substantial evidence. See Cobble v. Commissioner of Dep't of Social Servs., 430 Mass. 385, 390 (1999), quoting G. L. c. 30A, § 1 (6) (" ‘Substantial evidence,' as defined by statute, is 'such evidence as a reasonable mind might accept as adequate to support a conclusion’ "). Accordingly, we vacate the judgment affirming the revocation of the plaintiffs' license, and order entry of a new judgment remanding the matter to the department for further proceedings consistent with this decision.
c. Failure to consider troublesome facts. Our concerns are different as to the remaining bases for the revocation, i.e., the plaintiffs' alleged failure to meet standards 1, 12, and 15. As to these standards, the question is not whether the evidence was sufficient to allow the hearing officer to find that the plaintiffs failed to meet each one, but whether the hearing officer fairly considered all of the evidence as to each alleged failure, including the evidence opposed to the department's case. See 110 Code Mass. Regs. § 10.23 (hearing officer required to decide case "based upon all of the evidence presented at the hearing"). See also Cobble, 430 Mass. at 390 (in reviewing sufficiency of evidence supporting agency's decision, "we examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight"). Almost all of the hearing officer's findings were based on evidence that was either uncontested or favorable to the department. While the hearing officer was free to make her own assessments of the weight and credibility of the evidence presented by each of the parties -- indeed, she was required to do so -- where presented with conflicting information, "it was incumbent on the hearing officer ... to provide a thorough and reasoned explanation for the decision to credit [the prevailing party's evidence]." Herridge v. Board of Registration in Med., 420 Mass. 154, 156 (1995). This, she did not do.
Recognizing that the plaintiffs have not argued that the hearing officer abdicated her obligation to make any assessments of weight or credibility, we do not consider whether the hearing officer's decision must be vacated as arbitrary and capricious. It goes without saying, however, that the purpose of the fair hearing would be frustrated if the hearing officer were permitted simply to defer to one party's evidence.
In considering the department's allegations as to standard fifteen, the hearing officer found, as the department claimed, that the plaintiffs were "[unable] to work with professional providers and social workers," and her analysis endorsed the department's negative impression of "the relationship between the children, their social worker and the pre-adoptive family." While some evidence at the hearing, if credited, supported this view, other evidence opposed it. Regardless of any friction between themselves and Carvalho, each time the department insisted on a change in the plaintiffs' care of the children, the plaintiffs complied, and Carvalho acknowledged that there was not a single service or change that she requested that the plaintiffs did not make or do. The hearing officer's decision does not reflect her assessments of the credibility of the evidence nor her weighing of it. See Doe No. 11204 , 97 Mass. App. Ct. at 575, quoting Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995) (hearing examiner may not simply ignore "troublesome facts").
This standard requires the preadoptive parents to have the ability "to work with the [d]epartment ... in implementing the child's service plan in order to meet developmental goals and outcomes."
The license renewal study also collected, under this standard, concerns that we have addressed elsewhere in our discussion, supra, including the "age-appropriate[ness]" of the plaintiffs' expectations, a report that the plaintiffs had withheld food from Alan as a behavioral sanction, the bruising observed on the boys, and a report that one of the boys was placed in an hour-long time out.
In the same vein, as to standard one, the department pointed to "concerning bruising, questionable verbal interactions with the children, inappropriate expectations of their physical, emotional and developmental functioning, needs and abilities, and the absence of affection at times," along with the plaintiffs' inability "to provide a nurturing environment"; with respect to standard twelve, the department relied on its understanding that "[m]ore than one professional/provider made observations and/or voiced concerns regarding the [plaintiffs'] lack of appropriate developmental, physical and emotional expectations, for [Alan] and [Bruce]." In her decision, the hearing officer did not indicate whether she considered evidence showing that the plaintiffs' expectations were calibrated using recommendations made and strategies developed by Bruce's physical therapist or the children's own pediatrician's benign assessment of the marks. See Doe No. 11204 , 97 Mass. App. Ct. at 575.
This standard requires that preadoptive parents provide for "physical and emotional stability" to ensure that a child placed with them "will experience a safe, supportive and stable family environment which is free from abuse and neglect."
This standard provides that preadoptive parents must "have reasonable expectations of foster/pre-adoptive children's behavior and potential growth."
As to the department's reliance on "questionable verbal interactions" with the children, the hearing officer's decision does not reflect whether she considered the reliability of these statements, including evidence that, as to the incident at the park, the police had no record of any such report having been made. See Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 484 (1997) (reliability of hearsay statements admitted at fair hearing must be determined by looking at circumstances under which they were made).
The department's concerns that the plaintiffs expected too much of Alan and Bruce given their ages and their respective developmental and physical challenges pervaded its explanation for its decision to revoke the plaintiffs' license. We cannot tell, however, whether the hearing examiner considered the plaintiffs' multifaceted evidence to the effect that their expectations were appropriate for the children and, if the hearing officer did so, why she rejected it. See Herridge, 420 Mass. at 164–165, citing Morris v. Board of Registration in Med., 405 Mass. 103, 107 (1989). While the hearing officer determined that the plaintiffs' "numerous character references," "cannot negate the concerns of the clinical staff working with [the boys]," apparently referring to the department's witnesses, she did not address the fact that the plaintiffs presented evidence from witnesses with training in social work, clinical psychology, and early intervention indicating that the plaintiffs' expectations were appropriate to the boys' abilities. Appreciating that it is neither required nor practicable for a hearing officer to identify every detail they consider, or to identify every credibility assessment made at a fair hearing, we nonetheless underscore the importance of the hearing officer documenting an even-handed assessment of the evidence presented, see Adoption of Imelda, 72 Mass. App. Ct. 354, 365 (2008), particularly in light of the deferential standard of review accorded to the department in this case. See Ten Local Citizen Group, 457 Mass. at 228 (according deference to agency's experience); Flint, 412 Mass. at 420 (according deference to agency's factual findings). She cannot simply defer to the department's witnesses.
In addition to the testimony of Sharon Keleher, the early intervention service coordinator for the family, and Kathleen Neilsen, an independent provider of in-home services to the children, to the effect that the plaintiffs were loving and supportive parents to the boys, the evidence at the hearing included more than a dozen letters in support of the plaintiffs. The letters were authored by people who described contact with the family in a variety of contexts, including early intervention staff, Bruce's physical therapist, the boys' dentist, clinicians working with the plaintiffs, professionals who had participated in the plaintiffs' adoption of Carole, members of the plaintiffs' religious community, Alan's speech therapist, a physician familiar with Carole, a children's librarian, teachers in the children's extracurricular programs, parents of the children's peers, and others who observed firsthand the plaintiffs' parenting.
3. Department's failure to follow its regulations. The plaintiffs argue that the department's decision to revoke the license should be reversed because it was based on unlawful procedure and not consistent with department policy. See G. L. c. 30A, § 14 (7) (d ). We agree with the department that, as the plaintiffs did not raise the issue of unfair procedure at the fair hearing, they have waived it. See Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 336 (2013) ; Secretary of Admin. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass. App. Ct. 91, 95 (2009). Although we recognize the very significant impact on the plaintiffs of a failure by the department to follow its own regulations in this case, we conclude that the plaintiffs have not demonstrated that this case presents the sort of broad public policy issue that permits us to overlook a clear waiver. Cf. Rivas, supra (considering issue raised for first time on appeal where plaintiff denied benefits they may have been entitled to and department would not be prejudiced by plaintiff's failure to raise issue below); Cruz v. Commissioner of Pub. Welfare, 395 Mass. 107, 111 (1985) (justice weighed in favor of considering waived issue).
We do not suggest that the plaintiffs are precluded from making their regulatory argument on remand.
Conclusion. We vacate the judgment affirming the department's decision revoking the plaintiffs' license to provide preadoptive foster care. A new judgment shall enter vacating the decision of the department and remanding this matter to the department for further proceedings consistent with this decision.
The remaining arguments raised by the plaintiffs do not require extended discussion. See Passatempo v. McMenimen, 461 Mass. 279, 300 (2012).
So ordered.
Vacated and remanded.