Opinion
11-P-319
12-14-2011
P.B. v. COMMISSIONER OF THE 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
The plaintiff, P.B., a teaching fellow supervising an after school teen program operated by Citizen Teamwork Incorporated at the Robinson Middle School in Lowell, appeals from a judgment affirming the Commissioner's conclusion that a neglect charge against P.B. was supported. On November 15, 2005, a student appeared at the program P.B. was supervising about twenty minutes before the program ended. The student's head was partially shaved, and she was wearing all red garments and a glove on one hand. She had also been absent from the program for one week. Upon P.B.'s questioning, including asking her to remove the glove, the student stated that her father had held her hand out over a stove, burning her, when she interrupted him at a party, that her father threatened to break her legs if she returned home, and that she wanted a ride after the program ended to an address other than her home. Apparently not believing her, P.B. did not insist on examining the student's hand or otherwise seek medical care for her, allowed the student to help out cleaning up around the area for a few minutes, and then, with his supervisor's permission, took the student to the address she requested.
The next morning, P.B. spoke to the student's guidance counselor and related the student's story. The guidance counselor told P.B. to file a G. L. c. 119, § 51A, report, which P.B. did. A member of the abuse and neglect committee from Citizen Teamwork Incorporated, also a mandated reporter, filed a neglect charge against P.B. The ensuing investigations revealed that the student had lied about the burned hand and various other abuse and was a gang member (something already known to P.B.). The neglect charge against P.B. was, nonetheless, deemed supported. At the fair hearing, the examiner found that P.B. neglected the student in various ways, by, for example: (i) failing immediately to report the allegations to his supervisor; (ii) failing to make an immediate 51A report; (iii) failing to demand that the student remove the glove; and (iv) transporting the student to a place not on file with the program as an approved location. A Superior Court judge, in a thorough opinion, affirmed. The judge wrote:
'The court finds that there is substantial evidence in the Record supporting the decision that there was reasonable cause to believe that [P.B.], as a caretaker, neglected [the student] when he failed to immediately notify his supervisor of [the student's] abuse allegations . . . and failed to take any immediate actions to ensure [her] safety that evening. Evidence supporting the hearing officer's decision that [P.B.] should have reported suspected child abuse includes [the student's] direction and detailed disclosure to [P.B.] regarding the alleged burn, her refusal to remove her glove, and her expressed desire not to return to her father's residence and instead be driven to a friend's house. The Record shows that [P.B.] was aware that [the student] had been absent from the Program for at least a week, which, in light of her direct disclosures, should have prompted him to take action. [P.B.] also did not insist on [the student's] removal of the glove in order to determine whether she needed medical attention or whether the glove was instead potentially gang-related attire.
'Although [P.B.] argues that he never suspected abuse due to [the student's] previous unrelated fabrications and ability to assist with clean up, a mandated reporter is not permitted to make this credibility assessment. See Matter of a Grand Jury Investigation, 437 Mass. 340, 353 (2002). Furthermore, the hearing officer found credible Program administrator Jenny Clark's . . . statement to the 51B investigator that [P.B.] told her that he chose not to notify Fendell that evening because he did not want to bother her before she left to pick up her parents at the airport. After [the student] disclosed that her father burned her hand, the Record shows that [P.B.] took no actions whatsoever. He waited until an unrelated meeting the next morning to take action to ensure [the student's] safety. Thus, there is substantial evidence supporting the conclusion that there was reasonable cause to believe that [P.B.] neglected [the student] when he failed to immediately report alleged abuse.
'. . .
'In addition to his assertion that he never suspected abuse, [P.B.] argues that the Program did not provide proper training regarding mandated reporting . . . . The hearing officer did not find [P.B.'s] argument regarding insufficient training credible and instead found credible Clark's statement to the 51B investigator that [P.B.] was fully trained as a mandated reporter. Additionally, even accepting that the yearly training on mandated reporting was brief oral instruction, [P.B.] admitted that he knew he was a mandated reporter and required to report suspected abuse because of the training. When choosing between two fairly conflicting views, the court must defer to the agency's credibility determinations, expertise and findings of fact regarding [P.B.'s] training. . . . Furthermore, common sense and reasonable judgment should have guided [P.B.] to take immediate action after [the student] disclosed alleged abuse, rather than to wait until the next day. Thus, the court will not disturb the decision that [P.B.] received sufficient training and that he, as a caretaker, neglected [the student] when he failed to report the alleged abuse immediately to CTI and failed to take any immediate action to ensure [the student's] safety.' (Footnotes omitted.)
For substantially the reasons stated by the Superior Court judge, we affirm.
Judgment affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),