Opinion
16-P-796
03-21-2017
BENJAMIN S. v. DEPARTMENT OF CHILDREN & FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the Department of Children and Families (DCF) received reports that the plaintiff had sexually abused his daughter, it found those allegations "supported" based on a Sexual Abuse Intervention Network (SAIN) interview of the daughter. DCF therefore placed the plaintiff's name in its "registry of alleged perpetrators." See 110 Code Mass. Regs. § 4.36 (2009). The plaintiff requested, and was provided, a "fair hearing" before a DCF hearing officer to contest the agency's actions. See 110 Code Mass. Regs. § 10.06(11) (2014). The hearing officer upheld DCF's actions in a thoughtful and comprehensive written decision. After the plaintiff appealed the hearing officer's decision pursuant to G. L. c. 30A, § 14, a Superior Court judge affirmed that decision on cross motions for judgment on the pleadings. On the plaintiff's appeal from that judgment, we affirm.
The hearing officer's decision was based on allegations made by the plaintiff's daughter that—as summarized by the hearing officer—the plaintiff "on at least two occasions, entered [her] bed and pressed and/or rubbed his body against hers to the point of ejaculation." The daughter was nine as of the date the allegations were first reported and as of the date of the hearing; the incidents allegedly took place close in time to her ninth birthday. She did not testify at the hearing, but her statements were admitted, without objection, through documentary evidence (e.g., the investigatory report that DCF prepared pursuant to G. L. c. 119, § 51B, which included the statements that the daughter made during her SAIN interview). The DCF investigator who attended the SAIN interview also testified at the hearing.
The substantive question that DCF faced was a limited one: whether it had a "reasonable cause" to believe that the plaintiff had abused his daughter. "Reasonable cause" is "a collection of facts, knowledge, or observations which tend to support or are consistent with the allegations," which would lead to a conclusion "that a child has been abused or neglected" when "viewed in light of the surrounding circumstances and credibility of persons providing information." Lindsay v. Department of Social Servs ., 439 Mass. 789, 798 (2003), quoting from 110 Code Mass. Regs. § 4.32(2) (2000). The question before a reviewing court is even more limited: whether there was "substantial evidence" to support DCF's decision that it had reasonable cause to believe that the plaintiff had abused his daughter. Wilson v. Department of Social Servs ., 65 Mass. App. Ct. 739, 744-745 (2006)"Substantial evidence" is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1(6).
The only argument properly presented by this appeal is the plaintiff's claim that the daughter's hearsay statements did not present sufficient indicia of reliability to constitute "substantial evidence." Compare Edward E . v. Department of Social Servs ., 42 Mass. App. Ct. 478, 484-487 (1997), with Covell v. Department of Social Servs ., 439 Mass. 766, 783-787 (2003). We disagree. As the hearing officer found, the daughter's "disclosures at the SAIN interview were graphic and specific and [they] detailed events beyond the scope of knowledge of a typical nine year old child." In addition, such statements were in material part consistent with those that the daughter separately had made to her mother (even if the two sets of statements varied in certain specific details, such as whether there were two incidents or three). See Covell v. Department of Social Servs ., supra at 783 (ruling that hearsay allegations of sexual abuse amounted to substantial evidence where they "were specific, detailed, and consistent"). Finally, the use of the SAIN process lends confidence that the daughter's statements were not the product of suggestion.
The plaintiff also argues that G. L. c. 233, § 82, applies to administrative proceedings, and on this basis further argues that the hearing officer erroneously admitted the daughter's hearsay statements in evidence without first finding that she was "unavailable" to testify. However, such evidence came in without objection. Any argument based on G. L. c. 233, § 82, has been waived. See Weinberg v. Board of Registration in Med ., 443 Mass. 679, 691 (2005).
In addition, the plaintiff argues that a remand is necessary because, although the Superior Court judge accurately acknowledged in his decision that "[t]he plaintiff has consistently denied the child's allegations of sexual abuse," he erroneously stated that the plaintiff did not testify at the administrative hearing. Given the procedural posture of the current appeal (de novo review based on an administrative record), the judge's misstatement is of no consequence.
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The plaintiff points to various factors that he claims called into question the reliability of the daughter's statements. For example, he points out that he and the mother (who had custody of the daughter) were going through a contentious divorce at the time of the disclosures, suggesting that the mother might have put the daughter up to making them. The hearing officer carefully considered each such factor. For example, she observed that the daughter's "being embarrassed and upset with her mother for telling others about the disclosures goes against any argument that [the mother] was responsible for the disclosures." As the judge accurately noted, quoting from Cobble v. Commissioner of Social Servs ., 430 Mass. 385, 390 (1999), the hearing officer "carefully weighed all the evidence, including the evidence that ‘fairly detracts from the supporting evidence's weight.’ "
Nothing in Edward E ., supra , the case on which the plaintiff principally relies, requires a different result. That case involved a three year old victim whose statements themselves, and the context in which they were given, suggested significant doubt about their reliability. See ibid . For example, when the victim there was pressed with follow up questions, she became "silly and spoke in gibberish." Id . at 485. There were also unresolved questions raised regarding whether her allegations had been the product of suggestion. Id . at 485-486.
Because we conclude that there was substantial evidence supporting the hearing officer's decision, we affirm the judgment of the Superior Court.
So ordered .
Judgment affirmed .