Opinion
21-P-316
04-15-2022
Maureen NEWTON v. DEPARTMENT OF CHILDREN AND FAMILIES & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming a decision of the Department of Children and Families (DCF) to support an allegation of child abuse against her under G. L. c. 119, §§ 51A and 51B. She contends that DCF's decision, which concluded that she physically abused a resident while employed as a part-time staff member at Wayside Youth and Family Support Network, Inc. (Wayside), was unsupported by substantial evidence, was made on unlawful procedure, and deprived her of due process. We discern no cause to disturb the judgment, and we affirm.
1. Standard of review. A court may set aside or modify an agency's decision only if it is determined that the substantial rights of a party were prejudiced because the contested agency decision was (1) in violation of constitutional provisions, (2) in excess of its statutory authority or jurisdiction, (3) based on an error of law, (4) made on unlawful procedure, (5) unsupported by substantial evidence, or (6) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. See G. L. c. 30A § 14 (7). See also McGovern v. State Ethics Comm'n, 96 Mass. App. Ct. 221, 226-227 (2019). "In determining whether there was substantial evidence to support the hearing officer's decision, there need only be ‘substantial evidence’ supporting [his] conclusion that there was ‘reasonable cause to believe’ that the plaintiff had abused the child" (quotation and citation omitted). Wilson v. Department of Social Servs., 65 Mass. App. Ct. 739, 744-745 (2006). "Substantial evidence" is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).
2. Substantial evidence. The plaintiff claims that DCF's decision was not supported by substantial evidence because the hearing officer gave inadequate weight to the impacts of the plaintiff's concussion, her physical inability to institute a "yoke restraint," and her prior work history.
As a part-time staff member at Wayside, the plaintiff was trained to follow the therapeutic crisis intervention manual, which required her to institute a "yoke restraint" in deescalating a physical confrontation with a client. She claims that she was unable to initiate the "yoke restraint," as it required two people and no one was available to help her.
In rendering his decision, the hearing officer heard testimony from the plaintiff, who was represented by an attorney, and the DCF investigator. He considered the investigator's report, which included interviews with multiple individuals and a detailed description of the relevant surveillance video footage. Those who witnessed the incident consistently described the plaintiff as having reacted inappropriately. The incident left the victim with a bruise, chest pain, and freckle-sized blood spots on her head.
The investigator spoke with Wayside's assistant director, risk management coordinator, two staff members, and a resident who was present during the incident, as well as the victim.
The hearing officer also considered the plaintiff's testimony, in which she claimed that she suffered a mild concussion after the victim hit her head with a remote control. However, the hearing officer was unpersuaded that the plaintiff's concussion explained or justified her actions. The hearing officer also did not credit the plaintiff's claim that she was physically unable to institute a "yoke restraint," as a witness and the investigator, in describing the video footage, stated that another staff member was ready and available to assist the plaintiff. Finally, while the hearing officer found that the plaintiff had no "history of disciplinary issues at the program," he nonetheless concluded that the plaintiff abused the victim during this specific incident. As it is for DCF to "weigh the credibility of witnesses and resolve factual disputes involving contradictory testimony," Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 393 n.8 (1999), and as several witnesses corroborated the aggression by the plaintiff, there was substantial evidence on which the hearing officer could have concluded that the plaintiff abused the victim.
3. Unlawful procedure and due process. The plaintiff also claims that DCF's decision was made on unlawful procedure because (1) the hearing officer did not subpoena the videotape of the incident from Wayside in deciding the case, and (2) the investigator failed to interview the plaintiff before completing his investigation.
As an initial matter, nothing in DCF's regulations required the hearing officer to subpoena the videotape. See generally 110 Code Mass. Regs. §§ 4.20 - 4.48 (2009). Thus, the decision not to subpoena did not render the procedure unlawful. The thrust of the plaintiff's argument seems to be, however, that the process was nevertheless fundamentally unfair, because the investigator saw the video footage and discussed it in his report, but the plaintiff was not able to review the video footage. In the circumstances, we are not persuaded. The hearing officer's decision did not rely on the investigator's description of the video footage, but instead was based on the live testimony of the plaintiff and the statements of multiple eyewitnesses. Moreover, based on the investigator's description, the video footage failed to show critical parts of the incident because a table blocked the camera's view. We accordingly disagree that the plaintiff was materially prejudiced at the hearing by the unavailability of the videotape.
While the investigator requested a copy of the videotape from Wayside, he was only allowed to watch it onsite. He watched the video footage in slow motion and included a detailed description of it in his report. The videotape was no longer available for viewing by the time of the hearing, as it had been overwritten as a matter of policy.
Additionally, while the investigator concluded his investigation without interviewing the plaintiff due to incorrect contact information, the plaintiff received a fair hearing to contest the investigator's findings. The record shows that she received a full opportunity to testify and present evidence with representation by counsel. As the hearing officer engaged in independent fact finding and analysis based on the cumulative evidence presented to him at the hearing, DCF's decision was made on lawful procedure and the plaintiff was not deprived of due process. See Care & Protection of Orazio, 68 Mass. App. Ct. 213, 220 (2007) (no due process violation where party "participate[s] in the hearing or receive[s] a future meaningful opportunity to litigate").
Judgment affirmed.