Opinion
No. HHB-CV-09 5014834S
December 28, 2010
MEMORANDUM OF DECISION
The plaintiff, Robert Broughton, appeals from an October 21, 2009 final decision of a hearing officer for the department of children and families (DCF) substantiating neglect and placing him on the central registry.
The plaintiff is aggrieved for purposes of this administrative appeal under § 4-183(a) due to the final decision upholding the substantiation of neglect and his placement on the DCF 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, or places the person on the central registry, the person may take an administrative appeal. § 17a-101k(e).
On February 11, 2007, the DCF sent a notice to the plaintiff that neglect had been substantiated against him with regard to his two sons. (Return of Record, ROR, Exhibit 1). The plaintiff asked for a hearing and the hearing occurred on August 31, 2009. (ROR, Exhibit 4.) The final decision was rendered on October 21, 2009.
The hearing officer made the following findings of fact in the final decision:
1. The Appellant [plaintiff] and his ex-wife were married on August 25, 1991. The couple had two sons, P, date of birth May 1, 1998; and D, date of birth August 10, 2001. The marriage ended in divorce on November 7, 2003.
2. The Appellant was the subject of a family violence protective order that was entered on April 28, 2005. The order expired on July 26, 2007, without any modification. It included the following conditions:
[The Appellant refrain from imposing any restraint upon the person or liberty of the [ex-wife].
[The Appellant] refrain from threatening, harassing, stalking, assaulting, molesting or sexually assaulting the [ex-wife].
[The Appellant] refrain from entering the family dwelling, the [ex-wife's] dwelling, or wherever the [ex-wife] shall reside.
3. On November 15, 2006, the Appellant and William J. drove past D's and P's school bus stop at approximately 7:45 a.m. The Appellant's ex-wife was at the bus stop with the children. The Appellant stopped his truck and approached his ex-wife. Words were exchanged between the two, and the ex-wife fled with the children, spilling the Appellant's coffee on him as she left the area. The ex-wife filed a report with the Stamford Police Department.
4. The Stamford Police Department reported the incident to the Department of Children and Families, and an investigation commenced.
5. On December 6, 2006, Stamford Police Officers went to the Appellant's home to serve him with an arrest warrant for violation of a protective order in connection with the November 15, 2006 incident. The Appellant was not home when the officers arrived, however, he pulled into the driveway with his sons while the police were on the premises. The officers asked the Appellant to exit his vehicle and he refused to do so. The officers informed the Appellant that they had the authority to break the windows. The Appellant continued to refuse to exit the vehicle. The Appellant had his two sons come into the front seat of the truck from the rear seat where they had been seated. The Appellant had picked up a pizza on the way to his home. He and the boys ate the pizza in the truck and offered some to the police officers. While still in the truck, the Appellant called 911 and requested emergency services, reporting that he was suffering symptoms of a heart attack. An ambulance responded, and the police officers would not allow the EMTs to approach the Appellant's car. After 30-45 minutes, the officers vacated the premises. They returned the following day and arrested the Appellant. He was charged with two counts of Risk of Injury, Interfering with an officer and Falsely Reporting an incident.
6. The risk of injury charges were dropped.
7. The Appellant believed that the police would not smash the windows of the vehicle while there were children in the car.
8. D was interviewed on December 26, 2006. He told the investigator that he was in the car with his father and brother, and that his dad was yelling at the police and they were "going to shoot my dad." He said it was "really scary." He said that his dad told him and his brother to stand next to the windows.
9. P was interviewed on December 26, 2006. P said that his father told him and D to sit next to the windows. He said that his father told him that if the police broke the windows, and they were hurt by the glass, that he (the Appellant) would sue the police. P further reported that his father taunted the police, asking them if they wanted pizza, and faked a heart attack and called the fire department to send an ambulance.
10. William J. witnessed the incident between the Appellant and his ex-wife on November 15, 2006. He did not witness the Appellant behave in a threatening manner, and has never known the Appellant to be violent or aggressive. (ROR, final decision, pp. 3-4.)
The hearing officer then proceeded to consider whether the DCF was correct in its substantiation of neglect. The hearing officer rejected substantiation of the November 2006 incident at the bus stop as lacking sufficient evidence. ( Id., p. 5.) The hearing officer upheld substantiation as to physical and emotional neglect of D and physical neglect of P arising from the December 2006 incident in the truck. The children, in the care of their father, believed that, as a result of the plaintiff's conduct and the police officer's demeanor, that they were in danger. Id.
Having upheld the 2006 substantiation, the hearing officer next considered the plaintiff's placement on the central registry. The hearing officer stated that the factors to evaluate the DCF's placement were intent, severity, chronicity, and involvement with domestic violence. Department Policy Manual 34-2-8. Each factor was found, thereby justifying the DCF's decision to place the plaintiff on the central registry: (1) with regard to intent, he wilfully engaged in a standoff with the police in the presence of his children, (2) with regard to severity, his children were frightened and confused, (3) with regard to chronicity, there were two incidents, November and December, and finally (4) with regard to domestic violence, he had a pattern of violating protective orders. ( Id., p. 6.)
Even though the incident of November was not substantiated, the hearing officer counted it towards chronicity.
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 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 claims that the children were not in any danger during the December truck incident and that he was protecting them from overly aggressive arresting officers. In his view of the record, the hearing officer erred in upholding DCF's substantiations. On the other hand, there is substantial evidence in the record to support the findings of the hearing officer. Exhibits 11 (p. 11) and 13 (pp. 12-13), the DCF protocol, establish that the plaintiff failed to ensure the safety of his sons while in his care. The children's statements indicate that they suffered adverse impacts.
With regard to the central registry, these exhibits also show that the plaintiff intended to act inappropriately when confronted with the police and that this was a serious childcare matter. Exhibit 38 indicates that the plaintiff had been subject to court orders relating to family violence. Finally, with regard to chronicity, there were two incidents under consideration before the DCF. The hearing officer rightly concluded that the November incident, although not substantiated, may be utilized in considering chronicity. See Vines v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 08 4016779 (November 24, 2008, Cohn, J.) [ 46 Conn. L. Rptr. 703].
The plaintiff further argues that he did not receive sufficient time to make his presentation before the hearing officer, who stated that the hearing would end at noon. To succeed in an appeal due to a procedural irregularity at an administrative hearing, the plaintiff must make a showing of prejudice. See Papic v. Burke, supra, 113 Conn.App. 221. Here, the plaintiff was able to call his witness, J., concerning the November incident. He was allowed to testify fully on his own behalf at the administrative hearing. After the hearing closed, the hearing officer allowed him to submit additional exhibits. (ROR, Exhibits 39-47.) These exhibits consisted of letters and an annotation, prepared by the plaintiff, to the DCF narratives. The plaintiff has not met his burden to show prejudice.
The plaintiff also claims that the hearing officer was misled, and that the DCF investigation was unduly influenced, by his ex-wife who manipulated the children's interviews with DCF. Here again the burden to show bias at the administrative hearing is on the plaintiff. See Petrowski v. Norwich Free Academy, 199 Conn. 231, 238, (1986). While he believes that his former wife led DCF astray, there is no evidence in the record to support this view.
Therefore the appeal is dismissed.