Opinion
15-P-489
02-16-2016
L.H. 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 Department of Children and Families (department) determined that L.H. (father) had abused his six year old son and had neglected his four year old son. The father requested a fair hearing and the hearing officer concluded that the department had reasonable cause to believe that the children were neglected. The father sought judicial review in the Superior Court under G. L. c. 30A, § 14. The father appeals from the judgment entered denying his motion for judgment on the pleadings and affirming the department's final decision.
The allegation of physical abuse was initially supported but was reversed by agreement of the department and is not before us.
The father argues that the judge erred in affirming the decision of the hearing officer because: (1)there is an insufficient basis for the determination; (2) the department's failure to refer the matter to the district attorney should be dispositive; and (3) delays in the conduct of the fair hearing and in issuance of the decision were unconscionable and violated the father's right to due process. In conducting our review, we "'give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it,' G. L. c. 30A, § 14(7), . . . [and in] determin[ing] whether an agency's decision is supported by substantial evidence, we examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight." Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999).
1. Substantial evidence of neglect. Review of the record establishes that substantial evidence supported the hearing officer's conclusion that there was reasonable cause to believe that the father had neglected children. In an effort to further his argument, the father challenges the underlying regulations concerning abused and neglected children, arguing that the regulation governing the basic standard for parenting, set forth in 110 Code Mass. Regs. § 2.00 (2008), is defective in that it does not provide specific guidance beyond amorphous definitions. According to the father, without a "checklist" or specific protocols to guide the inquiry, the department's employees have too much individual discretion. A challenge to the validity of a general regulation "cannot be resolved by requesting declaratory relief in an appeal from an administrative agency decision because judicial review is confined to the administrative record." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014) (quotation omitted). See G. L. c. 30A, § 14(5).
2. Failure to refer the matter to the district attorney. The father did not raise this issue during the hearing and has, therefore, waived his opportunity to raise it on appeal. See Albert v. Municipal Ct. of the City of Boston, 388 Mass. 491, 493 (1983). Nevertheless, as the issue has been briefed by both parties, we will briefly address it. The father appears to believe that he is listed on the department's registry of alleged perpetrators. However, there is no evidence that he is on the registry, and the department did not refer the matter to the district attorney, which is a triggering event for placement on the registry. The father argues that the department's failure to refer the matter to the district attorney demonstrates "subliminal misgivings about the severity of the case." The father misapprehends the criteria for placement of a name on the registry. The department must report a case to the district attorney and local law enforcement under certain, specified circumstances, none of which exists in this case. G. L. c. 119, § 51B(k). The department may also refer a case to the district attorney at its own discretion. The fact that it did not do so here is not relevant to whether there was substantial evidence to support a conclusion that there was reasonable cause to find that the father neglected the children.
The judge concluded that "[e]ven assuming that the plaintiff's name has been included in the registry of alleged perpetrators, for which there is no direct evidence in the record, the plaintiff has received all the process to which he is entitled."
3. Due process. The father argues that the delay in the conduct of the hearing and the issuance of the decision violated his right to due process. The judge agreed that the delay was egregious but found that the father had not demonstrated prejudice. The father states that the matter has troubled him, and that he has had to endure the stigma attached to the case, its oppressive issues, and as a teacher he has been fearful that he would lose his professional standing. He also suggests that the conduct of the department's personnel and the delay contributed to his divorce. To set aside the department's decision, the father must show not only that the department violated its own regulations, but also that his substantial rights were prejudiced by its action. G. L. c. 30A, § 14(7). See Cella, Administrative Law and Practice § 1563 (1986). See also Amherst-Pelham Regional Sch. Comm. v. Department of Educ., 376 Mass. 480, 497 (1978); Boston v. Massachusetts Commn. Against Discrimination, 47 Mass. App. Ct. 816, 819 n.6 (1999) ("A court should not reverse an agency decision unless the errors alleged have prejudiced the substantial rights of a party"). This he has not done.
The father also argues that his due process rights were violated because the hearing officer was an employee of the department and he took into consideration unreliable evidence. The father made no claim at the hearing that the hearing officer was biased, and he did not argue that the procedures at the hearing were defective. He cannot, therefore, raise these issues on appeal. Metro Equip. Corp. v. Commonwealth, 74 Mass. App. Ct. 63, 73 n.9 (2008). In any event, even if we were to consider the father's arguments, the department's fair hearing procedures have been found adequate. Covell v. Department of Social Servs., 439 Mass. 766, 786 (2003). The father does not point to any specific facts suggesting bias by the hearing officer. See Civil Serv. Commn. v. Boston Mun. Ct. Dept., 27 Mass. App. Ct. 343, 347-349 (1989). Further, hearsay contained in the G. L. c. 119, § 51B, report has been determined to have an indicia of reliability. Covell, supra.
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 16, 2016.