Opinion
No. HHB-CV-07 4015542
September 24, 2008
MEMORANDUM OF DECISION
The plaintiff has brought this administrative appeal from a July 2, 2007 final decision of the Department of Children and Families (DCF) placing her on the central registry maintained by DCF pursuant to General Statutes § 17a-101k.
The plaintiff in this case is Kimberly L. The court granted the DCF's motion to dismiss another purported plaintiff, Anthony L. on November 5, 2007, because as he had prevailed in the final decision, he was not aggrieved as required by General Statutes § 4-183(a). Based on the decision to place the plaintiff on the DCF central registry, the plaintiff is aggrieved. Rucci v. Dept. Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 02 0516990 (November 5, 2003, Peck, J.) [36 Conn. L. Rptr. 7].
The record shows that a DCF hearing officer made the following findings of fact in the final decision:
1. Kimberly L. and Anthony L. met in 2001. In September 2001, Kimberly L. and her four-year-old son, Justin, moved to Anthony's residence that was owned and occupied by Anthony's father, Arthur.
2. On January 29, 2003, Justin told his mother that his step-grandfather, Arthur, was sexually abusing him. Kimberly took the child to the police and then to the hospital for assessment. The Department investigated the allegations. The child was credible. Kimberly, Anthony and Justin moved out of Arthur's house and into a motel. The hospital recommended that Kimberly take Justin to counseling for sexual abuse issues. She did not take him to counseling. The boy did not experience behavior problems, night terrors, or sexual behaviors. The child appeared to be a normal, content and stable child. The Department closed its file on March 14, 2003. On July 30, 2003, Arthur was arrested for first degree sexual assault and risk of injury to a minor.
3. [Kimberly and Anthony's] daughter Hailee was born on October 27, 2003.
4. On March 17, 2004 the Department received a referral from Justin's Guardian Ad Litem (from criminal court). The report said that the motel manager believes there is constant fighting between [Kimberly and Anthony], that the child is not attending school, and the child and baby are constantly crying.
5. On March 19, 2004, the investigative worker talked to [Kimberly and Anthony]. They became angry and indicated that they refused to talk to the investigator.
6. On March 30, 2004, [Kimberly and Anthony] denied any domestic violence.
7. On or about May 25, 2004, the Department closed its investigation and substantiated Kimberly for physical neglect of Justin and Hailee and emotional neglect of Justin. It also substantiated Anthony for physical neglect of Hailee. It opined that neither [Kimberly nor Anthony] had secured a stable residence, having stayed in motels until the beginning of May 2004; that Justin was a sexual abuse victim and his mother failed to take him to counseling for the abuse; and that mother had failed to enroll Justin in school.
8. After a three-day trial on November 28, 29 and 30, 2005, the Superior Court for Juvenile Matters found, by a fair preponderance of the evidence, that the Department had proven those allegations. The Court adjudicated both children as neglected and Hailee as an uncared for child. Besides the allegations of residential instability, not obtaining sexual abuse counseling, and failure to send the child to school, the court based the adjudications on an incident that occurred on September 23, 2004 at the Bristol Hospital Emergency Department.
9. On or about September 23, 2004, [Kimberly and Anthony] took Justin to the Bristol Hospital Emergency Department because the boy said that, the month before, he had once again been sexually abused by Arthur. [Kimberly and Anthony] thought that the DCF worker and child's Guardian Ad Litem were conspiring with members of mother's family to expose Justin to Arthur. They were agitated and would not accept the physician's assurance that he saw no abnormalities or injuries to the child's anal area. The mother wanted an invasive, penetrating examination. The hospital was concerned that the boy would continue to be examined by the mother or other medical personal elsewhere that could lead to repetitive injury or accidental trauma. The on-duty crisis worker found the mother very unreasonable and made a report to the Department. [Kimberly Anthony] told Justin to resist and kick the police officers who were summoned to serve the ninety-six hour hold order invoked by the hospital. The child was upset and disturbed at being removed from [Kimberly and Anthony's] care.
10. Through the neglect petition action, the Superior Court for Juvenile Matters ordered psychological and psychiatric evaluations. At the neglect trial, the psychologist testified that [Kimberly and Anthony] had a well-organized belief about a system-wide threat to the integrity of their children. Neither believed their children needed services and both believed that the problems were caused by the system. [Kimberly and Anthony] did not accept any responsibility. The psychologist recommended that the children not be returned to the parents' care as it would neither be safe nor appropriate as the shared belief in a conspiracy put the children at risk. The psychiatrist, who had seen the family in 2004, also found that [Kimberly and Anthony] believed in an elaborate conspiracy theory that officials intended to further abuse Justin and discredit [them]. The psychiatrist determined that [Kimberly and Anthony] suffered from a delusional disorder sharing an elaborate, delusional belief of incredible proportions. Justin was diagnosed with post traumatic stress disorder, reading disorder, disorder of written expression, and developmental coordination disorder. In addition, the psychiatrist noted the need to rule out psychotic disorder not otherwise specified. The psychiatrist also found Justin presenting with noticeable levels of anxiety and developmental delays, endorsing a history of bizarre perpetual phenomenon. The doctor found that neither parent could be considered as a placement resource for the children at that time.
11. A psychiatric examination of Justin was conducted in September 2005. It determined that Justin was not delusional, homicidal or suicidal, and had no thought disorders.
12. On May 3, 2006, the Department filed petitions to terminate the parental rights (TPR) of both children. At trial, the Department presented sixteen witnesses and thirty-six exhibits. The child's attorney entered one exhibit. [Kimberly and Anthony], acting pro se, produced twenty-nine witnesses and one hundred twenty-nine exhibits. The trial commenced on February 5, 2007 and continued for twenty-two days. The Court rendered a written decision on April 18, 2007 that denied the termination of the parents' parental rights indicating the Department had not proven that [Kimberly and Anthony] had failed to rehabilitate.
13. The TPR Court found that on July 30, 2004, Justin's mother started Justin in therapy to address sexual abuse issues. The counselor found Justin to be a happy, normal child who was uncomfortable and anxious when asked to talk about the sexual abuse. On August 20, 2004 Kimberly took her son to a pediatrician for a physical examination that was necessary to enroll him in school. The pediatrician found Justin to be normal and healthy, exhibiting excellent speech and language. Justin was cooperative with the exam and his activity was appropriate for a six-year-old. Kimberly enrolled Justin in school the same day.
14. The TPR Court indicated that the Department had not produced any evidence of an incident of domestic violence by either [Kimberly or Anthony] from March 2004 until the filing of the TPR petitions. It did not find that [Kimberly or Anthony] were transient as alleged by the Department. The Court did find that the children were removed on September 23, 2004 because the parents were agitated, emotional, unaware of the effect of their agitation on their children, displaying poor judgment, and expressing that they . . . would repeat these behaviors at other medical offices or police stations to prove that they were right. Kimberly's therapist testified that her client's beliefs were not so much delusional, but a lack of judgment and insight. Anthony's therapist indicated that he saw no bizarre behaviors or delusional thinking.
15. The Department has appealed the court denial of the TPR petitions, which appeal is currently pending. (Return of Record, ROR, final decision, pp. 2-6.)
The test to terminate parental rights is not the same; a higher burden, that of "clear and convincing evidence" governs. In Re Davonta V., 285 Conn. 483 (2008). That the test is different distinguishes Judge Winslow's decision (ROR, Exhibit 16) from this appeal.
Based on these findings of fact, the hearing officer made the following conclusions. The DCF at the agency level had substantiated the following: (1) emotional neglect as to the plaintiff as regard Justin; and, (2) physical neglect as to the plaintiff as regards Justin and Hailee and as to Anthony as regards Hailee.
The hearing officer substantiated emotional neglect as to the plaintiff as regards Justin as follows: "Kimberly L. is a person responsible for her son's care. The boy was living with her at the time of the incidents that led to his removal from her care. The Department has proven that she denied him proper emotional care and attention which resulted in an adverse emotional impact and a serious disregard for his emotional welfare. The events occurring in the first half of 2004 culminated in the incident on September 23, 2004 at the Bristol Hospital Emergency Department, in which Kimberly L. was acting very inappropriately. She would not accept that the physician could not find any abnormalities or injuries to the child from being sexually abused. She was insisting that the boy undergo an invasive procedure. She claimed there was a conspiracy that included the Department, to allow Arthur to sexually abuse the child again. Her bizarre behavior led the hospital to invoke a 96-hour hold and call the police and the Department. She then instructed Justin to resist and kick the police. Justin was removed from her care. He was distraught at being removed. [Kimberly's] ongoing conduct regarding the sexual abuse allegations that eventually led to his removal, denied Justin proper care and attention, resulted in an adverse impact to the child, and was a serious disregard for his emotional welfare. The decision to substantiate emotional neglect is upheld." (ROR, final decision, p. 9.)
On the other hand, the hearing examiner rejected the physical neglect charges against both the plaintiff and Anthony L. for several reasons. There was no proof from the DCF that either Kimberly or Anthony had denied the children proper shelter nor was the family homeless. The domestic violence in this instance did not rise to physical neglect. The lack of attendance at public school by Justin was answered by Kimberly's notice to the local school authorities that she would home-school her son. The September 23rd incident at Bristol Hospital did not constitute physical neglect. Finally, the lack of sexual abuse counseling "even if true" would be a basis for an emotional neglect finding, not a physical neglect finding. (ROR, final decision, pp. 10-11.)
The hearing officer then proceeded to determine whether placement of the plaintiff's name on the central registry was appropriate. The hearing officer stated: "The Department has developed criteria to assist this assessment of the perpetrator's potential for risk to children in the future. They include the intent of the perpetrator, the severity of the impact, and the chronicity of the perpetrator's conduct."
He continued: "On September 23, 2004, Kimberly L. was adamant that her six-(almost seven)-year-old son should be re-examined by a physician using a highly invasive procedure. She thought it would establish that the boy's step-grandfather, Arthur, had once again, about one month earlier, sexually abused the child. Her intent was solely focused on proving that Arthur had re-offended with the help of many others, including Department personnel and the boy's Guardian Ad Litem. She intended to pursue her medical evidentiary mission even though she had the knowledge that the passage of time made it more difficult for medical evidence to establish the fact. She had an understanding of the implications of her demand, and disregarded those implications. That single-minded insistence led to a serious adverse impact to both children: the removal from and loss of their mother and father to whom they were extremely bonded. Further, Kimberly's behavior at the hospital was not a temporary reaction to a stressed incident. She was still adamant, during later psychiatric evaluations ordered by the juvenile court, that a conspiracy to harm her child existed — a conspiracy which now included attorneys, police, hospital staff and DCF working in concert with the abuser. This demonstrates both a chronicity and a pattern to the emotional neglect. The psychiatrist evaluating Kimberly assessed the conspiracy theory as "preposterous" and opined strongly that the children should not be returned to her care. The juvenile court agreed, and committed the children. [Kimberly L.] poses a risk to the health, safety, and well-being of children. Kimberly L. is placed on the Department's Central Registry." (ROR, final decision, p. 11.) This appeal followed.
The court reviews the final decision under the following standard: "Judicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act . . . Review of an administrative agency decision requires the 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 . . . [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . [The trial court's] ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted, internal quotation marks omitted, brackets omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803-04 (2008).
The identical test applies to appeals from § 17a-101k decisions of DCF. Giordano-Little v. State of Connecticut Department of Children And Families, Superior Court, judicial district of New Britain, Docket No. CV 07 4012612 (January 29, 2008, Cohn, J.). As Judge Hartmere stated in Dailey v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 98 0492670 (January 11, 2000, Hartmere, J.): "[O]n the basis of [the court's] review of the record . . . there is substantial evidence in the record to support the DCF decision. The fact that there is contrary evidence in the record and that the plaintiffs disagree with the weight accorded to the evidence, does not affect the validity of the DCF decision."
The court reviewed the transcript against the tape of the April 23, 2007 hearing on January 25 and March 28, 2008. The DCF filed a revised transcript. Contrary to the claim of the plaintiff, the revised transcript accurately records the dialogue of the April 23rd hearing.
The plaintiff's first claim is that the final decision is procedurally defective because the DCF took too long to investigate and to review internally and that the hearing officer exceeded the time to decide. (Plaintiff's brief at pages 24, 25, 30, relying in part on § 17a-101k(c)(3) and (d)(3).) Witness Garden states that she took 45 days to investigate, not 30. (ROR, April 23, 2007 transcript, p. 45). DCF states at page 15 of its brief that the hearing officer had the case under submission from May 9, 2007. The thirty-day deadline was therefore June 9, 2007 and the decision was actually issued on July 2, 2007.
At the hearing the hearing officer stated the decision would "probably" be rendered in the beginning of June. (ROR, transcript, p. 133.)
The hearing officer properly made use of the facts as found by the two Superior Court judges in his decision.
The plaintiff has not presented to this court, however, any evidence of prejudice due to the few weeks delay. In addition, the plaintiff did not follow § 4-180(b) that allows a party to "apply to the superior court for the judicial district of Hartford for an order requiring the agency to render a final decision forthwith." The plaintiff's claim must fail due to the lack of prejudice. "[W]e note that not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citation omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 828 (2008); CT Page 15254 Goldberg v. Insurance Department, 207 Conn. 77, 83 (1988) ("challenge requires a showing of some type of personal harm or injury or proof that an individual's rights have been prejudiced or violated . . .").
The second claim raised by the plaintiff is that the hearing officer stated at the hearing that he would confine his review of the record to the testimony of one DCF employee, Melissa Garden, and would not consider the September 23, 2004 Bristol Hospital incident. On the other hand, the plaintiff supported her position on the September incident by filing a copy of a prior brief attacking the DCF allegations, and also supported her case with Judge Winslow's decision in the TPR proceeding. (ROR, Exhibit 15, p. 3, transcript, pp. 81, 109.) The hearing officer did not act improperly in considering the September 23rd incident and not limiting his decision to the earlier period. He correctly stated that he would read all the documents in the record in order to resolve the matter. (ROR, transcript, pp. 82-83.)
The plaintiff next claims that the hearing officer erred in accepting the testimony of Melissa Garden as she testified falsely that she spoke to the plaintiff about Justin attending counseling. The record shows, however, that the plaintiff and Garden did speak. (ROR, transcript, p. 48.) The plaintiff had not initiated counseling at the time they spoke, but subsequently did. (ROR, transcript, p. 46.) In addition, there is no automatic exclusion of hearsay evidence in an administrative proceeding. § 4-178(1); Mastronunzio v. Commissioner of Public Health, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 97 0567302 (October 24, 1997, DiPentima, J.) (hearsay allowed in placing name on registry list.)
The plaintiff raises the constitutionality of the central registry list. This court has held however that the creation of a registry list by DCF is constitutional and not violative of due process. Hogan v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 06 4012223 (August 3, 2007, Cohn, J.) (currently on appeal). The court adheres to that ruling in this case as well.
The plaintiff claims that the hearing officer did not allow her to present evidence at her hearing. Anthony L. stated that he would cross-examine social worker Garden (Transcript, page 59). The plaintiff did not seek to ask any questions. Further the plaintiff states in her brief that she was not allowed to bring to the hearing officer's attention that the children were in good health at their pediatrician visit of 2004. On the contrary, this evidence was noted by the hearing officer. (ROR, transcript, p. 71; Exhibit 17.) In addition, the hearing officer left the record open two weeks for offers of proof. (ROR, transcript, p. 129.)
The plaintiff claims that the DCF central registry list determination should have been made by disregarding the findings made by Judge Bear (ROR, Exhibit 13) on neglect and crediting the findings made by Judge Winslow in the TPR proceeding. (ROR, Exhibit 16.) The result in these cases do not govern the decision to place a person on the central registry list, however. The central registry decision is one made by DCF after substantiating neglect and separately making use of the factors as set forth in the DCF regulations to place a name on the registry list. See Giordano-Little v. Dept. Children and Families, supra, substantiating abuse, but denying placement of the central registry.
See ROR, transcript, pp. 49-50 describes the plaintiff's mind set of conspiracy.
The plaintiff claims that the hearing officer did not have substantial evidence in the record to support his conclusion of emotional neglect. The hearing officer relied on the September 23rd incident and the subsequent actions taken by the plaintiff as the "culmination" of the emotional pressures that she had placed upon Justin. The record included evidence from medical and psychological experts on the plaintiff's delusional beliefs that emotionally harmed her child. (ROR, Exhibits 12, 13, 14.) Under the case law as quoted above, this was substantial evidence of emotional neglect.fn8
The plaintiff claims that the hearing officer was incorrect in relying on the lack of counseling for Justin to find emotional neglect. She claims that such counseling took place. Whether it did or not, the hearing officer clearly relied on the September 23rd incident and not the lack of counseling in his placement decision. (ROR, Final Decision, Conclusion, p. 11.)
The final issue raised by the plaintiff is that the defendant did not file the record in keeping with § 4-183(g), within thirty days. The appeal was transferred from New Haven to New Britain. In addition, the plaintiff filed several motions that the court had to consider before the record might be filed. Under § 4-183(g), the time for filing the record was modified by the court. Therefore there was no violation of the statute.
The court concludes that the plaintiff has failed to demonstrate that the DCF erred in placing her name on the central registry. Therefore the administrative appeal is dismissed.
Although the plaintiff argues otherwise, an administrative appeal from a decision under § 17a-101k is not the appropriate forum to seek to set aside the determination of neglect made in the child protection session of the Superior Court.