Opinion
No. 11–P–787.
2012-05-29
Henry HAROIAN v. DEPARTMENT OF CHILDREN AND FAMILIES.
By the Court (GRAHAM, GRAINGER & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Superior Court denied the plaintiff's motion for judgment on the pleadings, and affirmed the defendant's, Department of Children and Families (DCF), fair hearing finding that the plaintiff neglected a child who was a student at his childcare program. The plaintiff appeals, contending that DCF's decision was neither supported by substantial evidence nor in accordance with its policies. We affirm, essentially for the reasons stated in the judge's thoughtful memorandum.
The plaintiff is the director of Prevention Now, a school-aged childcare program for at-risk children licensed by the Department of Early Education and Care (DEEC). He has more than thirty years of teaching experience and is certified both as a principal and director. It is undisputed that the plaintiff is a “caretaker” as defined in DCF's regulations. 110 Code Mass. Regs. § 2.00 (1996). The student, Oscar,
was twelve years old at the time of the incident; he was in DCF custody and was placed with his maternal aunt. Oscar had a history of behavioral and anger problems that included violence toward others; although Oscar had had some issues while in the Prevention Now program he “had not exhibited physically aggressive behavior that required physical intervention by staff.”
A pseudonym.
On August 17, 2007, a mandated reporter employed by Prevention Now witnessed an incident between the plaintiff and Oscar and later filed a G.L. c. 119, § 51A, report (§ 51A report). The report was “screened in” and an abuse and neglect investigation ensued. G.L. c. 119, § 51B. The DCF investigator interviewed the reporter, Oscar, the plaintiff, Cristina Haroian (the plaintiff's wife and assistant director of the program), and four additional staff members who were involved in or who had witnessed the incident. Oscar and the reporter related details of the incident that were corroborated by staff members.
Oscar told the DCF investigator that, earlier in the day on August 17, he was upset during class because he had been promised a snack that he did not receive; he “got heated” and knocked over two chairs in his classroom; this was confirmed by a staff member. Oscar was taken to the office where two teachers helped him calm down before he got in the line for the bus to go home. The reporter stated that as Oscar was lining up he was “crying and mumbling to himself” because he realized he was going to be suspended for throwing the chairs. The plaintiff told Oscar that “he did not want him near any of the other children or staff” and “forced [Oscar] (without touching him) to the back of the line”; thereafter, Oscar “kicked the wall and began to yell and curse.” The plaintiff then “got in [Oscar's] face,” telling him that he could not behave that way; the plaintiff instructed nearby staff to move the other children from the bus line and out to the hallway. When Oscar attempted to move with the other children he “bumped into” the plaintiff. Witnesses stated that Oscar “was not being ... aggressive toward [the plaintiff].” The plaintiff responded to the contact by stating “you pushed me”; he then “used one hand to push [Oscar] backward.” Oscar reported that the push caused him to stumble back a “few steps.” He reacted by balling up his fists, and the plaintiff responded, “if you hit me, I'm going to bury you.” Several of the staff members confirmed that they heard the plaintiff make this statement. Only the plaintiff and his wife provided a different version of the plaintiff's actions during the incident.
In addition, Cristina Haroian suggested that the report of neglect “was the result of insubordination by disgruntled employees and nothing to do with the [plaintiff]'s actions.” The plaintiff stated that “he and his staff were in the midst of turmoil that summer.”
As a result of the investigation, a report was issued supporting the allegation of neglect against the plaintiff based on eyewitness corroboration. G.L. c. 119, § 51B. DCF concluded that the plaintiff acted in a “provocative, antagonistic and threatening manner toward [Oscar] ... [and] failed to provide [Oscar] with ‘minimally adequate ... emotional growth and stability.’ “ The plaintiff then petitioned for a fair hearing review. 110 Code Mass. Regs. § 10.00 (1993).
The hearing officer found that DCF's decision to support the § 51A report was based on reasonable cause,
based on the credible and reliable information provided by the witnesses who corroborated Oscar's version of events.
In her findings, the examiner stated, “The Appellant was not properly trained to de-escalate/restrain [Oscar] and yet accepted him into the program, even though he was aware of his aggressive tendencies. The Appellant's suggestion that he had no role in that decision was as concerning, as were the actions he took in response to [Oscar's] acting out behavior. [Oscar] was a twelve year old child, with known emotional and behavioral needs. As the Director of Prevention Now, it was incumbent upon the Appellant to assure, to the best of his ability, that the program provided [Oscar] with adequate care; the nature of the program, the lack of proper training in de-escalation/restraint techniques and the Appellant's actions, did not do so.”
See 110 Code Mass. Regs. § 4.32(2) (2001). In addition, she noted that the plaintiff “was not equipped to respond to [Oscar's] needs and failed to do so.... He [thus] failed to provide [Oscar] with the ‘minimally adequate care’ “ required under DCF regulations.
The hearing examiner noted that the witnesses' credibility was further supported by the fact that “statements [and] interviews came close in time to the reported incident and the discussions with the Investigator were private.” In contrast, she did not credit the statements by the plaintiff and his wife, in part because they were “motivated by their preferred investigation outcome, as it directly affected the status of their program and their livelihood.”
The plaintiff timely sought judicial review in the Superior Court by way of a motion for judgment on the pleadings. Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The judge affirmed DCF's finding of neglect stating that “the record provides substantial evidence” to support the allegation, and that the plaintiff “failed to provide [Oscar] with minimally adequate care.” The judge declined to address two of the plaintiff's claims—that DEEC restraint policies authorized his actions and that DCF had a conflict of interest—as neither had been raised before the fair hearing officer.
On appeal, this court must “give due weight to the experience, technical competence, and specialized knowledge of the agency.” G.L. c. 30A, § 14(7), inserted by St.1973, c. 1114, § 3. Herrick v. Essex Regional Retirement Bd., 77 Mass.App.Ct. 645, 647 (2010). An agency decision will not be upheld if it is unsupported by substantial evidence or arbitrary or capricious. G.L. c. 30A, § 14(7). Based on the record before us, we are satisfied that there was sufficient evidence to support the allegation of neglect through eyewitness corroboration and credible testimony; the decision conformed to DCF policies and regulations. 110 Code Mass. Regs. § 10.06(8)(c) (1998). See Covell v. Department of Social Servs., 439 Mass. 766, 773–775 (2003).
The plaintiff argues that he was prejudiced by the fact that the hearing officer relied on hearsay in making credibility determinations and finding facts. Hearsay evidence is admissible at administrative hearings and may be relied upon if it is reliable and probative. Id. at 786.Shrewsbury v. Commissioner of Entl. Protection, 38 Mass.App.Ct. 946, 948 (1995). In this case, the hearing officer gave a reasoned explanation for crediting the hearsay reports. In addition, having heard the plaintiff testify, she was permitted to find that neither he nor his wife were credible witnesses. See Covell v. Department of Social Servs., supra at 786–787; Costa v. Fall River Hous. Authy., 453 Mass. 614, 627 (2009); Shrewsbury v. Commissioner of Dept. of Envtl. Protection, supra.
Finally, the plaintiff complains that he was not given an opportunity to cross-examine the various staff members who cooperated with the investigation and “establish their biases and/or deficiencies.” As the court observed in Embers of Salisbury, Inc., 401 Mass. 526, 531 (1988), “The right to confront and cross-examine adverse witnesses is not self-executing. Having failed to invoke [his] right to call [the staff members] as [witnesses, he] cannot be heard to complain of the consequences. Cf. School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 402–403 (1979) (no unfairness where witness failed to appear at administrative proceeding, where aggrieved party failed to pursue right to enforce subpoena compelling attendance and testimony).”
Judgment affirmed.