Opinion
11-P-34
12-07-2011
K.M. v. DEPARTMENT OF CHILDREN AND FAMILIES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
K.M. appeals, pursuant to G. L. c. 30A, § 14, from a Superior Court judgment affirming the decision of the Department of Children and Families (DCF) to support a finding under G. L. c. 119, § 51B, that she neglected a child by inadvertently leaving her in a classroom at a day care facility while she, the other teachers, and the rest of the children went to a music class. K.M. contends that the hearing officer's decision was based on an error of law and unsupported by substantial evidence. Because there was substantial evidence to support the hearing officer's ruling and it was consistent with applicable law, we affirm.
K.M. also asserts that DCF's decision was arbitrary and capricious because it found this allegation supported, but determined that an allegation relating to another child who wandered out of the day care area unnoticed several days later was unsupported. This issue was not presented below and so is waived.
K.M. argues that the definition of 'neglect' used by DCF conflicts with Federal law. As relevant here, 'neglect' can include a failure to provide 'minimally adequate . . . supervision' under DCF regulations. 110 Code Mass. Regs. § 2.00 (2008). K.M. contends that this impermissibly expands the Federal definition of 'child abuse and neglect,' which requires either actual harm to the child or 'a substantial risk of harm to the child's health or welfare.' 45 C.F.R. § 1340.2(d) (1990). In order to receive Federal funds under the Child Abuse Prevention and Treatment and Adoption Reform Act, 42 U.S.C. §§ 5101 et seq. (2006 ed.), the Commonwealth must apply definitions 'the same in substance' as those specified by Federal regulations. 45 C.F.R. § 1340.14(b) (1990). The Supreme Judicial Court has interpreted the State regulations, consistent with the Federal regulations, to require actual harm or a substantial risk of harm. See Lindsay v. Department of Social Servs., 439 Mass. 789, 796 n.5 (2003). In any case, the hearing officer expressly found that the child, then two years old, 'was alone for at least fifteen minutes, and possibly for as long as twenty-five minutes. At that young age, the risk of injury to an unsupervised child is always present.' The hearing officer also emphasized that the child's 'absence went unnoticed by the Appellant, despite the on-going opportunity to observe that she was missing . . . .' We do not discern an error of law in the hearing officer's decision.
K.M. claims that this finding is based on Edye Fine's hearsay. The department, however, 'need not strictly follow the rules of evidence' in its hearings, 110 Code Mass. Regs. § 10.21(1) (2008), and may rely on § 51B reports so long as the sources of the information were available for cross-examination, as they were here. See Wilson v. Department of Social Servs., 65 Mass. App. Ct. 739, 746-747 (2006), citing Covell v. Department of Social Servs., 439 Mass. 766, 786-787 (2003). Moreover, the hearing officer's determination was expressly not dependent on the child being alone in the room for twenty-five minutes, as Fine reported. K.M.'s own testimony supported the lower end of the range of time found to be neglect by the hearing officer.
K.M. also suggests that the hearing officer applied an incorrect standard because she stated at the fair hearing that a substantial risk of harm is not required. In light of the hearing officer's express reliance in her written decision on Lindsay v. Department of Social Servs., supra, and her determination that a risk of harm was present, we believe she applied the DCF regulations correctly.
K.M. further contends that the hearing officer's decision was not supported by substantial evidence. Under the limited standard of review applicable, 'there need only be 'substantial evidence' supporting the conclusion that there was ' reasonable cause to believe" that K.M. neglected the child. Lindsay v. Department of Social Servs., supra at 798 (citations omitted). K.M. admitted that she did not perform a head count and did not notice the missing child from the time when they left the classroom around 9:30 A. M. until another teacher brought her to the music class around 9:56 A. M. She also testified that she would not normally have returned to the classroom before noon; thus, if the other teacher had not happened upon the child, she might have been alone for hours. K.M. was one of three licensed teachers overseeing the group of children, and so was a joint caretaker responsible for this child. We defer to the hearing officer's conclusion that, in this context, K.M. failed to provide minimally adequate supervision. See Lindsay v. Department of Social Servs., supra at 799 (deference given to the department's assessment whether the particular circumstances surrounding a given incident are sufficiently threatening to child's well-being to qualify as 'neglect'). Substantial evidence supported the hearing officer's findings of reasonable cause to believe that K.M. inadvertently left the child unsupervised, thus failing to provide adequate supervision.
We also conclude that the hearing officer's interpretation of the day care's 'Counting of Children Policy' was reasonable and entitled to deference. See G. L. c. 30A, § 14(7).
Finally, K.M. claims that her search for new employment is being unfairly prejudiced by the potential release of the § 51B report, especially as it includes a reference to the other unsupported allegation referenced in note 1, supra. On appeal, she characterizes this as a due process violation. The due process argument was not, however, presented to the Superior Court, and is therefore waived. Furthermore, for the reasons stated in the defendant's brief at 32-36, this argument has no merit.
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Judgment affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),