Opinion
14-P-1664
01-05-2016
EDOUARD BERGERON v. DEPARTMENT OF CHILDREN AND FAMILIES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Edouard Bergeron, filed a complaint in the Superior Court for judicial review, pursuant to G. L. c. 30A, § 14, of the decision of the Department of Children and Families (DCF) supporting allegations of sexual abuse against him. After a hearing, the judge denied his motion for judgment on the pleadings brought pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), and affirmed the decision of DCF. We affirm.
Background. These facts are taken from the hearing officer's findings that established the administrative record. See G. L. c. 30A, § 14(5) (judicial review limited to administrative record). At the time of the filing of the G. L. c. 119, § 51A, report by the district attorney's office in 2012, the child was seven years old. From 2007 to 2009, the child's mother lived with the plaintiff. The child, who lived with his father, visited the mother at the plaintiff's home. The mother occasionally left the child with the plaintiff while she ran errands.
During the summer of 2012, the child returned from a visit with his mother and told his father that he liked the mother's new boy friend more than her old boy friend (the plaintiff). The child stated that at least his mother's new boy friend was not like the plaintiff, who was "mean" to him. When the father inquired further, the child stated that the plaintiff touched and groped him. The father contacted the police. The district attorney's office did not file criminal charges against the plaintiff, but filed a 51A report with DCF. The DCF investigator subsequently met with the father, the mother, and the child; watched the district attorney's office's sexual assault intervention network (SAIN) interview tape; and spoke with the SAIN interviewer, the child's psychiatrist's assistant, and the plaintiff.
On August 15, 2012, the child reported to his psychiatrist that the plaintiff touched him on his private area five to ten times and told him, "I am your boss." The child was then interviewed by the SAIN team. The child stated that the plaintiff touched him, pointed to his genitals, and said that the touching was on the skin. He also stated that the plaintiff "touched a bad spot" that was private, that he did it with his hand in the living room of his house, and that the touching occurred on more than one occasion with the plaintiff unbuttoning the child's pants and touching him under his clothes.
The DCF investigator observed, while watching the recorded SAIN interview, that during the interview the child was embarrassed talking about private parts but appeared to provide natural answers. After observing the entire SAIN interview, the DCF investigator concluded that the child was credible, that the child had no reason to harm the plaintiff, and that the child did not later recant his statements. The parents reported that the child had experienced night terrors and bedwetting for the previous four years and that after he disclosed the abuse these issues subsided.
After DCF determined that the allegations of sexual abuse were substantiated, see G. L. c. 119, § 51B, the plaintiff requested a fair hearing. The hearing officer found that DCF's decision to support the allegations of sexual abuse was made in conformity with its regulations and had a reasonable basis. On the plaintiff's G. L. c. 30A appeal, the judge found that there was substantial evidence to support the hearing officer's decision.
Discussion. We review the decision of the hearing officer in accordance with the standard of review expressed in G. L. c. 30A, § 14. See Smith College v. Massachusetts Commn. against Discrimination, 376 Mass. 221, 224 (1978). Pursuant to G. L. c. 30A, § 14, "[w]e shall uphold an agency's decision unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. As a general rule, we must accept the factual determinations made by the agency if [we] find[] they are supported by substantial evidence." McGuiness v. Department of Correction, 465 Mass. 660, 668 (2013) (quotations and citations omitted).
The plaintiff argues that there was insufficient evidence to support a finding of abuse. First, he asserts that the child made the disclosures after his mother had an argument with the plaintiff and broke off the relationship. This assertion is not supported by the record, which shows that the child reported the abuse in 2012, approximately three years after the relationship between the mother and the plaintiff ended around 2009. Further, the mother did not have any subsequent contact with the plaintiff after the relationship ended except at a wake in 2011, and there is nothing in the record that indicates the child was aware of this encounter. The hearing officer determined, and we agree, that there was no reason for the child to lie in order to harm the plaintiff. See Covell v. Department of Social Servs., 439 Mass. 766, 784 (2003) ("[I]f there is no plausible reason for fabrication, the very absence of such a reason tends to support the child's credibility").
Second, the plaintiff emphasizes that he was not criminally charged. However, because the standard of proof for a DCF finding of sexual abuse is substantially lower than a standard of proof in a criminal case, the failure to charge the plaintiff criminally does not invalidate the DCF determination. See Care & Protection of Robert, 408 Mass. 52, 63-64 (1990); Covell, 439 Mass. at 779.
Third, the plaintiff claims the child's psychiatrist's failure to file a 51A report renders DCF's decision unsupported by the evidence. We disagree. There was a 51A report filed by the district attorney's office. The psychiatrist's failure to file a 51A report does not invalidate DCF's determination, especially where the psychiatrist noted that the child was relieved to be talking about the abuse, and the hearing officer found that the child's statements about the abuse were fairly consistent.
Fourth, the plaintiff argues that there were no witnesses to the abuse and it is therefore unsupported. The hearing officer noted that this is not unusual and that this does not intrinsically discredit the disclosure. The absence of witnesses is not determinative of the outcome of the review. There were other indicia of reliability present even without an independent eyewitness. This includes the child having no motive to lie, the child's behavior during his SAIN interview, the child's psychiatrist (obtained by information from the psychiatrist's assistant) stating that the child seemed relieved talking about what happened, and the child suffering from night terrors and bedwetting.
On the record before us, the hearing officer had a sound basis for determining that there was substantial evidence to support the child's allegations of sexual abuse by the plaintiff.
Judgment affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2016.