Opinion
No. HHB-CV-10 6008084S
September 8, 2011
MEMORANDUM OF DECISION
The plaintiff, Jeffrey Asbill, appeals from an October 19, 2010 final decision of a hearing officer for the defendant 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-101k.
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 17-101k 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 per § 17a-101k(e). In the present appeal, the plaintiff does not challenge substantiation, and is only contesting his placement on the central registry.
The record shows that the plaintiff received notice that he was to be placed on the central registry and requested a hearing; the hearing took place on October 13, 2010, and on October 19, 2010, the hearing officer made the following findings:
1. The Appellant lost his job in February of 2009. He checked into a psychiatric facility for an evaluation. The Appellant was hospitalized in July of 2009 at a psychiatric facility. In September of 2009 he was readmitted for about five weeks. In early November of 2009, the Appellant was re-hospitalized.
2. In November of 2009, the Appellant was residing with his wife and their four-year-old son [N.] The Appellant's mother and father-in-law were staying with the Appellant and their daughter for a few months.
3. On November 16, 2009 the Appellant and his wife engaged in a verbal disagreement. The Appellant became upset and retrieved a hunting knife. He put the knife in the front pocket of his pants and approached his wife in the upstairs playroom. His wife asked him why he had the knife and to give it to her. The Appellant took the knife from his pocket and stabbed her torso multiple times in the presence of his son.
CT Page 19690
4. N. was crying out his mother's name. The Appellant's wife told Nicolas to go downstairs to get his maternal grandparents. The maternal grandmother was downstairs. She heard her daughter's scream. She went upstairs and tried to get the knife away from the Appellant. She was not successful. N. was crying. The maternal grandfather was outside. He heard his wife screaming for him to come into the house and he heard his daughter crying. He went upstairs and assisted his daughter. His wife went to summon the police.
5. The Appellant was arrested for Criminal Attempt to Commit Murder and Assault in the First Degree. The Appellant was found not guilty by reason of insanity. (Return of Record, ROR, final decision, pp. 2-13.)
Based on these factual findings, the hearing officer first upheld the DCF substantiation of emotional neglect, due to the plaintiff's serious disregard for his son's welfare. (ROR, final decision, p. 4.) He also upheld the substantiation of physical neglect as his son was placed in a "zone of danger from a physical altercation that jeopardize[d] the child's safety." Id.
The hearing officer then concluded that the plaintiff should be placed on the central registry. In this case, both DCF Policy 34-2-8 and DCF Regulation § 17a-101k-3 required the hearing officer to evaluate such factors as intent, severity of impact on the child, the chronicity of neglectful conduct, and the involvement of domestic violence in the neglect.
Here, the hearing officer found, regarding intent, that the plaintiff had sufficient knowledge to know that stabbing his wife would affect the child. He also found, however, that due to mental illness, the plaintiff did not have the ability to use or not use this knowledge appropriately. The hearing officer found severity of injury. The hearing officer found that the stabbing was not part of chronic neglect. With regard to the domestic violence, the hearing officer credited the plaintiff with admitting to his wrongful conduct and taking responsibility for it. (ROR, final decision, p. 5.)
The hearing officer was not satisfied, however, that the plaintiff's significant mental health issues "that played a major role in the incident" had been sufficiently addressed. At the time of the final decision, the plaintiff's treatment at Whiting Forensic did not constitute "a viable plan that gives reassurance that the Appellant's mental health issues have been sufficiently addressed to ensure appropriate conduct in the future." This justified upholding the DCF's placement of the plaintiff on the central registry. The DCF had proven by the preponderance of evidence that the plaintiff posed a risk to children. (ROR, final decision, p. 6.)
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 plaintiff on appeal makes three arguments. The first is that the hearing officer erroneously found certain facts. For example, the plaintiff contends that his son was not entirely at the scene of the incident with his wife. According to the plaintiff, he may have been present at one point. The hearing officer credited the wife's evidence that the son was in her presence during the attack. The court, based on the substantial evidence rule summarized above, rejects the plaintiff's argument as the record supports the hearing officer's findings.
The plaintiff first argues with regard to his placement on the central registry that the hearing officer failed to apply correctly the DCF policy and regulation. He argues that the hearing officer found that he could not make use of appropriate thinking skills, due to mental illness. Further the hearing officer found that the stabbing did not constitute a pattern of abuse.
On the other hand, these factors are to assist the hearing officer in evaluating the circumstances as a whole. See Westry v. Department of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 09 4020172 (December 16, 2010, Cohn, J.). He was concerned that the plaintiff at the time of the hearing had only recently become a resident at Whiting Forensic and had no formal plan in place for treating his mental illness. Thus, the court agrees with the hearing officer's upholding, at the time of the hearing, the placement on the central registry under the DCF policy and regulation.
Finally, the plaintiff points to the subsequent development of his treatment plan through the assistance of the medical personnel at Whiting. There is some limited contact between the son and the plaintiff, he is making progress with his treatment. This good progress, coming after the date of the hearing, is insufficient to overturn the placement on the central registry. As the DCF attorney suggested at the oral argument in this court, when the plaintiff has evidence of his recovery, it may be submitted to DCF for its reconsideration pursuant to § 4-181a(b) of the Administrative Procedure Act. This is the correct procedure to institute the removal of one's name from the central registry.
The plaintiff has not demonstrated that the DCF acted illegally, arbitrarily, unreasonably or in abuse of its discretion. Therefore the appeal is dismissed.