Opinion
No. HHB-CV-09 4020172S
December 16, 2010
MEMORANDUM OF DECISION
The plaintiff, Yuri Westry, appeals from a November 16, 2010 final decision of a hearing officer for the Department of Children and Families (DCF) upholding the DCF's placement of the plaintiff on its central registry. See General Statutes §§ 17a-101g(b); 17a-101.
The plaintiff is aggrieved for purposes of this administrative appeal under § 4-183(a) due to the final decision upholding his placement on the DCF central registry.
Section 17a-101g(b) requires the DCF to determine whether a child has been abused or neglected, whether an identifiable person was responsible for such abuse or neglect, and whether such identifiable person should be placed on the child abuse and neglect central registry. Section 17a-101k mandates the establishment of the registry, allows for the alleged actor to receive notice of his potential placement on the registry, and to request a hearing before placement. If the hearing officer finds that the DCF substantiation should be upheld, and determines that this substantiation warrants placement on the central registry, the person may take an administrative appeal § 17a-101k(e). In this appeal, the plaintiff does not question substantiation, and is only contesting his placement on the central registry.
The record shows as follows. The DCF involvement with the plaintiff arose initially in 1991. The plaintiff, due to a referral, was automatically placed on the DCF central registry, as it then existed, for slapping his son, W. The plaintiff asked for a substantiation hearing when he was subsequently accused by DCF of physical neglect of his daughter, A in 2006. In 2005, by P.A.05-207, the legislature granted a substantiation hearing to anyone who had been placed on the central registry prior to 2000. Therefore, the DCF hearing officer, in proceedings in 2007 and 2008, heard evidence both as to W and A. The hearing officer in his final decision of February 3, 2009 made the following findings as regards to W:
1. The Appellant [plaintiff] is the father of [W] (d.o.b. 7/30/90) . . .
2. On or about April 27, 1991, the mother of [W], a baby, contacted the Manchester Police Department after finding him with a large hand print bruise on his face. The Appellant babysat while mother went out for the evening.
3. Patrol Officer Rivard interviewed the Appellant as part of an investigation. The Appellant admitted slapping the boy across the face. The Appellant signed a written statement that he slapped his infant son and realized it was wrong. Officer Rivard also observed finger prints on the left side of [W]'s face. As a result, the Appellant was arrested and charged with Risk of Injury to a Child and Assault in the 3rd degree.
4. An investigator from [DCF] observed the mark on [W]'s face, still visible ten days after the incident.
5. At that time, the Appellant had a history of domestic violence and the Appellant was recommended to undergo anger management. (Return of Record, ROR, Final Decision, p. 3.)
The hearing officer, in this same final decision, also made separate findings of fact as to A, upholding the DCF substantiation. After upholding the DCF's substantiation as to both W and A, the hearing officer concluded in a further analysis that the DCF's substantiations warranted placement of the plaintiff on central registry. As to W, the hearing officer stated that this placement was necessary because the DCF had met several factors, required by the DCF policy manual. First, the plaintiff had intentionally, as opposed to accidentally, injured W. The element of severity was met as W was nine months old in 1991, and the mark to the face was visible ten days after the incident. This was also a sign of excessive force. While the 1991 incident was the only indication of abuse towards W, there was a pattern of domestic violence in 1991, including a recommendation for anger management. The hearing officer also concluded in the final decision that the plaintiff should be placed on the central registry due to his findings regarding A in 2006. (ROR, pp. 16-17.)
The plaintiff took an administrative appeal from the final decision of February 3, 2009. After a pre-trial in this court, it was agreed by the parties that the matter of W would be remanded and the appeal of A would be put in abeyance. The sole issue to be determined by the remand to a DCF hearing officer was whether the plaintiff should have been placed on the central registry. Were the plaintiff to succeed either before the agency or in the courts regarding W, then the A appeal would continue; were he to be unsuccessful, then he would also withdraw the A appeal.
After remand, a second DCF hearing officer was assigned to conduct the hearing regarding W. The plaintiff's attorney represented to this court on December 3, 2010, that she stated at a hearing on September 16, 2009, where the parties discussed the procedure for the remanded hearing, that she objected to any evidence of the 2006 incidents involving A being introduced at this hearing concerning the 1991 incident. The majority of this transcript of this hearing has been lost. At the hearing on the merits, conducted on November 4, 2009, the final decision of February 3, 2009, containing findings of fact as to A in 2006, was admitted without objection by the plaintiff. At no time during the remand hearing did the plaintiff argue that the final decision with its references to facts involving A in 2006 should be redacted.
While the transcript is not available, the hearing officer wrote to the plaintiff's attorney and a representative of DCF on September 16, 2009, (ROR, Exhibit 9) stating that she intended to admit without any limitation the prior hearing officer's February 3, 2009 final decision, as Exhibit 1. The prior final decision clearly included findings about A and 2006. Most of the evidence at the November 4, 2009, hearing on remand was provided by the hearing officer's accepting, with the agreement of the parties, portions of the record before the prior hearing officer.
The hearing officer, in issuing the November 16, 2009 final decision, made the following findings of facts:
1. The Appellant is the father of [W], date of birth July 30, 1990. The Appellant was never married to [W]'s mother, and the couple maintained separate residences.
2. The Appellant was the subject of a full protective order, issued on January 30, 1991, ordering him to keep away from [W]'s mother.
3. On April 17, 1991, the Appellant agreed to watch his son while the child's mother was out of the home. The Appellant was experiencing severe pain from a toothache. The nine-month-old baby was crying, and the Appellant was unable to console him. The Appellant struck the baby in the face. When the mother returned home, she noticed a mark on the child's face, and questioned the Appellant, who reported that the child fell in the bathroom. The next day, the mark appeared to be a handprint. The mother wanted medical treatment for the child, and the Appellant pretended to make an appointment with the child's doctor. When the mother realized that there was no appointment scheduled, she brought the baby to the emergency room. The police were notified. The baby had a handprint shaped mark on his face that lasted for several days. The Appellant ultimately admitted that he hit his son and that he was sorry for what he had done.
4. The Appellant was arrested, but not convicted, of risk of injury.
5. The Appellant was the subject of a family violence referral to the Family Relations Division of the Superior Court on April 24, 1991, as the result of his arrest for risk of injury to his son. The Appellant had two prior referrals to this unit for matters involving the child's mother, one of which resulted in the protective order of January 30, 1991. (ROR, Final Decision, p. 2.)
The hearing officer analyzed the placement on the central registry under DCF regulation § 17a-101k-3. Because of the facts as found, the hearing officer concluded that striking the infant son with enough force to leave a handprint bruise constituted a serious risk of lasting physical injuries. Therefore, placement on the central registry was mandatory under § 17a-101k-3(1)(B). ( Id., p. 3.)
Alternatively, the hearing officer used the permissive factors set forth in § 17a-101k-3 and DCF policy manual § 34-2-8. These factors are intent, severity, level of force, and chronicity. On intent, the hearing officer stated that the record showed that the plaintiff had hit the child in the head; on severity, that the force was unreasonable given the child's age, and on chronicity, that "[a]t the time of the incident he was the subject of a full restraining order, and had two prior referrals to the Family Relations Division due to violence between [him] and his child's mother." ( Id., p. 4.)
The hearing officer also concluded that it was appropriate to consider the 2006 events involving A in deciding the issue on remand. According to the hearing officer, it was in keeping with the intent of the legislature, in revamping the central registry in 2005, to allow for a second look at the plaintiff's then automatic placement in 1991, but also to require that the DCF consider at the post-2005 review subsequent events, such as the allegations of neglect of A. The protection of children would be frustrated should subsequent allegations of violence be disregarded.
The plaintiff has now appealed to the court from the final decision. In this appeal, the court follows recent appellate cases setting forth the standard of review. See Hogan v. Dept. of Children and Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009) (upholding the hearing officer's findings and conclusions): "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted.)
In addition, Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833, 955 A.2d 15 (2008), provides: "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) The fact that the hearing officer discounted contrary evidence in the record does not affect the validity of the DCF decision. See Papic v. Burke, 113 Conn.App. 198, 211, 965 A.2d 633 (2009): "In making this determination, we must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness . . . in whole or in part." (Internal quotation marks omitted.)
The first issue raised by the plaintiff is that of the lack of substantial evidence. The court will assume for this appeal that placement on the central registry was not mandatory under DCF regulation § 17a-101k-3. There is, however, substantial evidence to support the hearing officer in concluding that the plaintiff failed the factors of intent and severity. (ROR, Exhibit 4, pp. 1, 6.)
The plaintiff argues that the hearing officer termed the blow to be to the "head," while the better term would have been "face." He also argues that the hearing officer assumed that he was of "athletic build" when he struck the child, without proof in the record. These are minor discrepancies that should not overturn the conclusion that the child had a handprint on his face that lasted for several days. See Fraenza v. Keeney, 43 Conn.Sup. 386, 655 A.2d 1113 (1994), aff'd per curiam, 232 Conn. 401, 655 A.2d 1112 (1995). The hearing officer has appropriately engaged in weighing these factors.
At the child's age, nine months, there is not much difference between the face and the head. In addition a grown man with any "build" will cause injury if he strikes a child with force.
The hearing officer had to take into account the factor of chronicity and found that the plaintiff's actions were not an isolated incident. The hearing officer relied on the protective order in place as well as two other incidents of domestic violence. The record also shows that the 1991 criminal case against the plaintiff for striking his son was resolved by an order of anger management. This is sufficient to support the hearing officer's decision regarding chronicity.
Regulation § 17a-101k-3(e) permits taking domestic violence into account where the DCF finds the child neglected, and should impliedly be allowed to be considered where abuse is at issue.
The plaintiff argues that the hearing officer prejudiced the remanded hearing by raising the 2006 incidents with A. The court need not consider whether the hearing officer was correct as a matter of law regarding use of the 2006 incidents. Allowing admission of this evidence did not amount to prejudice, where the burden of proof of its occurrence before an administrative agency is on the plaintiff. See Papic v. Burke, supra, 113 Conn.App. 221. Here, there is substantial evidence that the plaintiff had domestic violence issues during 1991. This is determinative of the chronicity issue, in and of itself. (ROR, Exhibit 4, letter of Bell.) Further, the plaintiff inadequately objected to the introduction of the February 3, 2009 final decision. While the plaintiff's attorney in September 2009, apparently called to the hearing officer's attention that there was an objection to the evidence, the attorney did not respond to the hearing officer's subsequent letter containing a list of exhibits, nor did the attorney object during the November 4, 2009 hearing itself.
Therefore the appeal is dismissed.