Opinion
CV156030088S
03-01-2016
Newady Rodriguez v. Department of Children & Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Henry S. Cohn, Judge Trial Referee.
The plaintiff appeals from a final decision of a hearing officer for the Department of Children and Families (DCF) dated April 1, 2015, upholding the substantiation of sexual abuse/exploitation of a child, and placing of the plaintiff's name on the DCF's central registry. See General Statutes § § 17a-101g(b); 17a-101k.
Aggrievement for purposes of an appeal under § 4-183(a) is found on the hearing officer's upholding of the DCF substantiation and placement on the registry list.
Section 17a-101g(b) requires DCF to determine whether a child has been abused, whether an identifiable person was responsible for such abuse, and whether such identifiable person should be placed on the child abuse and neglect registry. Section 17a-101k mandates the establishment of the central registry, allows for the alleged abuser to receive notice of his potential placement on the registry and to request a hearing before placement. If the hearing officer finds that the person's name should be added, as here, to the registry, he may take an administrative appeal. General Statutes § 17a-101k(e).
After DCF staff completed an investigation in this matter and concluded that a substantiation should be made, the plaintiff, pursuant to § 17a-101k(c)(3), requested a substantiation hearing. (Return of Record, ROR, Exhibit 1.) The hearing was held on December 18, 2014 and March 19, 2015. The hearing officer subsequently issued the final decision on April 1, 2015, making the following findings of fact:
1. At the time of the incident and subsequent disclosure, [the plaintiff] was the former boyfriend of the maternal aunt [of the child N.] and was in a relationship with Rosalie G. At the time of the disclosure, [the plaintiff] and Rosalie had been together for two years. [The plaintiff] would reside at Rosalie's home one or two times per week and on the weekends.
2. [N. was] approximately age 14 at the time of the incident and age 15 at the time of disclosure, was more familiar with [the plaintiff] as she had known him when he was her aunt's boyfriend. Rosalie acknowledged in testimony that on the night of sleepover, she and [the plaintiff] were put in charge of N. by her mother. The child was placed in the care of [the plaintiff] and Rosalie, and they had control and authority over the child during the time she was at Rosalie's home for the sleepover.
3. On February 3, 2014, The Department [DCF] received a report from Yale New Haven Hospital that the child had disclosed on January 28, 2014 that [the plaintiff] had sexually assaulted the child [N.].
4. The child had been referred for an evaluation after she had been interviewed by the New Haven Police Department's detective on January 30.
5. During the interview with the detective, the child described a couple of incidents in 2012 in which she felt uncomfortable with [the plaintiff's] actions when he touched her on the butt and shoulders on two different occasions. On both of these occasions, the child was cautioned by [the plaintiff] to stay quiet about the incidents.
6. During the interview with the detective, the child also described an incident in or about February 2013 which occurred the night she was at a sleepover at Rosalie's house when [the plaintiff] was also present.
7. On that day, the child was staying over at Rosalie's home for a sleepover with [M.], age 12 at that time. The child had fallen asleep in [M.]'s room. At 3 a.m., [the plaintiff] came into the room where she, [M.], and [M.]'s younger brother were sleeping, shook the child and told her to get up. The child recalls the time of the incident because she remembers viewing the time on a clock.
8. [The plaintiff] led her downstairs to the living room, forcibly pushed her onto the large brown sofa, placed [his] hand over her mouth and started taking her clothes off. He removed his pajama pants and [had vaginal intercourse with N.]. The child screamed but he covered her mouth. The child was lying down on her back and [the plaintiff] was on top of her. The child reported that she felt pain and was nervous . . . The assault lasted about a half hour. When he was done, the child was crying and he told her to shut up and don't tell anybody. He grabbed his belongings and went upstairs, and the child grabbed her stuff and went upstairs to go to sleep in [M.]'s room.
9. The child did not disclose this incident until about a year later when she disclosed to her stepmother and then to her father and her mother. She hadn't revealed the assault previously as she was frightened and felt that people wouldn't believe her. She decided to disclose as she said she had found inner peace at her church.
10. The child disclosed to her mother that [the plaintiff] had brought her into the living room at [his] home and raped her.
11. When the child was evaluated at the Family Advocacy Center at Yale New Haven Hospital, she provided the history of the incident to the clinician. Consistent with her prior disclosure to the detective and the mother, the child disclosed that " his down there" touched her body and that it felt like pain, a lot of pain. She noted again that it happened about 3 in the morning on the night of the sleepover.
12. [M.], now age 14, testified regarding the night of the sleepover. While it is understandable that the child had some difficulty in presenting coherent testimony as she is a child in middle school, it cannot be found that her testimony is persuasive on whether or not [N.] left the bedroom and could have been a victim of the assault. [M.] was inconsistent in her testimony on when or if she and [N.] fell asleep on the night of the sleepover, providing [N.] three possible scenarios. She testified that no one came into the room as everyone was sound asleep. She also testified that she was up all night, breaking dawn or " vamping." And she testified that they stayed up most of the night, but slept for two or three hours after staying up most of the night.
13. [M.] denies that she had a clock in her room so the child would not know it was 3 a.m. when the incident occurred. She also claims that she always locks the door from the inside of the room. Rosalie did not confirm in the morning that [M.]'s room was locked. With [M.]'s demonstrated confusion about when or whether they slept that night, it cannot be concluded that [M.]'s testimony about recalling that she locked her door and that there was no clock present is believable.
14. One reason [M.] concluded that the assault didn't occur was because she didn't hear any struggle in the middle of the night. [N.] never testified that there was a struggle in the hallway, and when she did attempt to scream when she was on the couch, [the plaintiff] covered [N.'s] mouth with his hand.
15. [M.] ultimately concluded that the assault did not occur because [M.] saw no change in behavior the next day which would indicate that the child was a victim of an assault. The perceptions of a then 12-year-old that she was skeptical of the story because she thinks she would have acted differently under the circumstances is not persuasive as to the credibility of [N.'s] disclosure. According to the experienced investigation social worker, the child's reaction of returning to normal day to day activity and not exhibiting changed behavior the next day is not atypical for a victim of sexual assault.
16. Rosalie, who remains in a relationship with [the plaintiff], expressed her skepticism about the child's disclosure. Rosalie has a vested interest in supporting [the plaintiff] as she continues to be in a relationship with him. While she attempted to propound that [the plaintiff] had no opportunity to be with the child in the middle of the night, her testimony was unpersuasive. She testified that she and [the plaintiff] went up to bed immediately after dinner and that the two of them were behind the locked closed door for the remainder of the night until morning. She claimed that she sleeps light and with parts of her body draped over [the plaintiff], so she would have known if he left the room that night. She also testified that the sound travels in the premises and she would have heard a disturbance if the incident had occurred as reported by the child. The children were not asleep when Rosalie and [the plaintiff] retired to the bedroom, and Rosalie had no idea when they went to sleep or where her son was sleeping. They were not upstairs when Rosalie and [the plaintiff] went upstairs for the night, and so the claims that she was a light sleeper and would always be aware of noises in the home is unpersuasive and not credible. She was unaware that her son was not in his room that night, a room close to hers. She was unaware when the children came upstairs and went to [M.]'s room. Rosalie failed to be persuasive in her claim that she would have heard some disturbance in the house on the night of the incident, as she was unaware of other movement around the home that night.
17. [The plaintiff] was unpersuasive in his denial about the sexual assault. While he had reported to the detective that he had admitted to kissing the child, he now says the detective misunderstood him and he claims he told the detective he " greeted" the child. The change to a term of " greeted" the girl makes no sense, and it appears that [the plaintiff] felt he needed to cover up his previous disclosure that he kissed the child. While [the plaintiff] suggested that the child might have some reason to make up a story because of his previous relationship with the child's aunt, he was unable to articulate why the child would be motivated to do so. The child was at the sleepover at Rosalie's home because she knew [the plaintiff], the person she knew longer than anyone else in the home.(ROR, Final Decision, pp. 2-4.)
Based on these findings of fact, the hearing officer first addressed the DCF staff's substantiation for sexual abuse. The hearing officer upheld the substantiation under DCF Policy 34-2-7, which requires a finding (1) that the plaintiff was a " person given access to the child by a person responsible" and (2) the plaintiff " had an incident of non-accidental exposure to sexual behavior with the child." According to the hearing officer, the facts established that the plaintiff was given access to the child by her mother and engaged in inappropriate sexual behavior. The plaintiff, along with Rosalie, was " put in charge, " by N.'s mother, of N. on the night of the sleepover, thus giving him access to the child by the person responsible for N.'s care.
Under the revised procedure of P.A. 05-207, the hearing officer was obliged first to consider whether the DCF had concluded correctly that a substantiation of sexual abuse should be made, and then determine whether the individual against which the substantiation was made was properly placed on the registry list. § 17a-101k(a).
According to the hearing officer, DCF had met its burden of showing inappropriate sexual behavior toward N. by the plaintiff. In making this determination, the hearing officer concluded that N.'s oral statements to the police, her stepmother, her father, her mother and the Yale Advocacy Center did not constitute hearsay. " In reviewing cases of this nature, the Administrative Hearings Unit applies the analysis set out in State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003). In Merriam, the Court set out several factors to establish reliability of the hearsay statement, including the spontaneity of the statement, the consistency of the statement, the terminology used, the child's mental state and whether or not the child had any motive to fabricate the allegations." (ROR, p. 5.)
The hearing officer noted that N. had initially kept the assault incident to herself, but had eventually disclosed it to her stepmother, after a church religious experience. Then she shared the details with other family members, the Yale APRN and the police. " The child did not deviate from her report that the [plaintiff] forcibly assaulted her on the couch in Rosalie's home in the middle of the night. She has been consistent in her disclosure. The child, who was 14 at the time of the report, used terminology consistent with her age when disclosing the abuse, saying that he 'put his thing into me' . . . She said he put it 'in my thing, ' referring to her vagina. She also said that 'his down there' touched her body and it felt like a lot of pain. The child was experiencing no mental health issues at the time of the disclosure and the incident. The child had no motive to fabricate the allegations, and was motivated to disclose the allegations after she found peace in church." (Id. ) Finally, the hearing officer rejected the testimony of the plaintiff, Rosalie and [M.] as not credible for the reasons stated in the findings of fact. (Id. )
Turning to the DCF's placing of the plaintiff on the central registry, the hearing officer upheld the DCF's determination. The hearing officer made use of the DCF regulation § 17a-101lk-3 and policy manual § 34-2-8 in the required review.
While the policy manual and the regulation are organized differently, they both provide for the exact same criteria in determining placement on the central registry. The hearing officer did not discuss the following text found in both the policy manual and the regulation, § 19a-101k-3(b)(2): " (b) A person shall be deemed to pose a risk to the health, safety, or well-being of children, and listed on central registry, when . . . (2) the substantiation is for sexual abuse and the individual responsible is over sixteen (16) years of age."
The hearing officer continued: " To be included on the registry the Department must consider certain criteria including the intent, severity, chronicity of abuse and neglect and involvement of substance abuse or domestic violence to determine if the person poses a risk to the health, safety or well-being of children. Regulations of Conn. Agencies § 17a-101k-3, DCF Policy Manual § 34-2-8. In this case, the Central Registry listing shall be upheld. In addressing intent, the Department examines whether there is reason to believe the Appellant has sufficient knowledge and resources, the ability to utilize them and an understanding of the implications of his actions, but made a conscious decision not to do so. The Appellant should know that he should not engage in this sexual assault of the child and that this behavior would have a severe impact on the child. The Appellant had the knowledge and resources available to refrain from the abuse of the child, but did not do so. When considering the severity of the Appellant's actions, the Department must determine if there was a serious adverse impact to the victim, or a serious disregard for the child's welfare. The Appellant's actions demonstrated a serious impact to the child. The child was a victim of sexual assault at the hands of the Appellant, which had a serious adverse impact on the child, and demonstrated a serious disregard for the child's welfare. In determining the chronicity of the Appellant's behavior, it must be determined if there is a pattern or chronic nature to the abuse and neglect regardless of the measurable impact to the victim. The Department demonstrated that the Appellant had a pattern of touching the child on the shoulders and the butt prior to the escalation of the behavior to the sexual assault of the child. The Department has shown that there is a pattern to the behavior. Substance abuse and domestic violence were not at issue in this case." (Id., p. 6.) Therefore, the hearing officer concluded that the substantiation of sexual abuse and placement of the plaintiff's name on the registry list was appropriate.
The court concludes that the hearing officer had before her a full record of the incident and the surrounding circumstances, and that the DCF investigation was thorough. It is true that the investigator did not interview N., but she had the video to review. Cf. Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 673 A.2d 101 (1996).
This appeal followed. Our Supreme Court, in Hogan v. Dep't of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009), has set forth the applicable standard of court review when a DCF hearing officer upholds a placement under § 17a-101k: " At the outset, it is important to underscore that the scope of judicial review of an administrative agency's decision under § 4-183 is very restricted . . . [R]eview 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 . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . 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 of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citations omitted; internal quotation marks omitted.) See also Adams v. State, Dep't of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV 06 4011617, (February 26, 2007); LB v. DCF, Superior Court, judicial district of New Britain, Docket No. CV 14 6027427 (September 10, 2015), dismissing administrative appeals from DCF placement-on-registry decisions where sexual assaults occurred.
As our Supreme Court stated in Frank v. Dep't of Children & Families, 312 Conn. 393, 402, 94 A.3d 588 (2014): " We begin with the standard of review. [J]udicial review of the commissioner's action is governed by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. (UAPA)] . . . and the scope of that review is very restricted . . . [R]eview 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 . . . 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 of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . .'The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j)(5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonabl[y] inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion . . . The law is also well established that if the decision of the commissioner is reasonably supported by the evidence, it must be sustained." (Citations omitted; internal quotation marks omitted.)
Regarding the determination of the credibility of witnesses as made in the final decision by the hearing officer, our Supreme Court has stated in Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008): " It is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all or none of a given witness' testimony . . . Additionally, [a]n administrative agency is not required to believe any witness, even an expert . . . We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Citations omitted, internal quotation marks omitted.) See also Matthew M. v. DCF, 143 Conn.App. 813, 831, 71 A.3d 603 (2013) (similar holding in a DCF case).
The first contention of the plaintiff is based on his disagreement with the hearing officer's findings of fact. He contends that M.'s evidence was never contested by the DCF social worker. M. testified that she had locked her room from the inside and did not have a clock in her room. She and Rosalie heard no noise at the time when the assault on N. was supposed to be occurring. N. also slept without complaint in the hours after the alleged assault and continued with normal activities during the next day. Perhaps, argues the plaintiff, N. targeted him because he had left N.'s aunt for Rosalie.
On the other hand, the precedent quoted above strongly supports the hearing officer's findings of fact and opinions regarding credibility of the witnesses. The video of N. (ROR, Exhibit 8) clearly shows that the hearing officer was within her discretion in finding N. credible. She presented as a rational person during her interview with the New Haven detective. She related the same factual account given in the video to her step-mother, father, mother and the Yale Center clinician.
In addition, the hearing officer was justified in finding that M. did not present a consistent account with some evidence that she and N. were asleep through the night, or a good part of the night, and other evidence that they were awake throughout the time period. (ROR, Trans. 3/19/15, pp. 106-07.) M. testified that she always locked her door, but Rosalie, who said that was M.'s practice, never checked for that night. (Id., pp. 162, 177.) Also Rosalie did not know where her son was sleeping during the night. She knew nothing from early evening until the next morning as she was in her bedroom with the door locked. (Id., pp. 159, 162.)
It is known that, because of the effect of trauma, victims often do not reveal in the days following an attack what had happened to them. See. e.g., State v. George J., 280 Conn. 551, 567, 910 A.2d 931 (2006) (Supreme Court notes " well documented problems of shame and repressed memories that often preclude child victims of sexual abuse from timely reporting the crime"). Similarly, as noted by the experienced DCF social worker in this case, the year's wait to disclose is a common reaction. The Yale Center's study did not find physical evidence of an attack, but this is a common outcome. (ROR, Trans. 12/18/14, p. 46, witness from Yale Center.) The record is silent on the reasons that the plaintiff broke off his relationship with N.'s aunt, so that it is mere speculation to conclude that N. has made this accusation as revenge.
The plaintiff next contends that the police and prosecutor, after consideration of the record that they developed declined to seek an arrest warrant against him. Further he points out that Rosalie was also considered by the DCF as a person responsible for the N. incident, but DCF chose not to pursue a finding of culpability against her. This leads the plaintiff to contend that these state officials did not credit the facts as N. related them. The answer here is that the DCF had a statutory duty to consider its own record as developed and bring the case as it thought appropriate, regardless of what the criminal enforcement officials concluded. Lucarelli v. Commission on Human Rights and Opportunities, 136 Conn.App. 278, 283, 46 A.3d 933 (2012). With regard to Rosalie, the incident occurred without warning in the middle of the night. DCF concluded that blame could not be extended to her.
The third contention raised by the plaintiff is that the DCF failed to establish that he had control over N. during the sleep-over. DCF Policy 34-2-7 requires that the plaintiff be given access to the child by her mother. The plaintiff first contends that the hearing officer improperly coerced the DCF social worker to give evidence on this topic. A review of the transcript demonstrates, however, that the hearing officer merely related the text of the DCF Policy to the social worker and did not interfere with her testimony.
The plaintiff did not raise this claim at the DCF hearing by objecting to statements of the hearing officer. He was given the opportunity to respond to the questions posed by the hearing officer, but declined to do so. (ROR, Trans. 12/18/13, p. 70.) The claim of the plaintiff was first raised at oral argument and was not briefed.
Secondly the plaintiff again relies on a factual claim that only Rosalie was given access to N. The hearing officer found other facts, however, based upon the record, to demonstrate that Rosalie and the plaintiff had joint access. Rosalie stated that both she and the plaintiff were to care that night for N. (ROR, Trans. 12/18/14, p. 70, Trans. 3/19/2015, pp. 75-76.) The plaintiff was entirely familiar with N. as she was the niece of his former girlfriend.
The plaintiff's final contention relates to the hearing officer's application of State v. Merriam, supra, a case that DCF uses to weigh whether to accept hearsay statements made by a victim about an assault. The hearing officer applied the factors set forth in Merriam: spontaneity, consistency, terminology used, the child's mental state, and motive, if any.
The court concludes that the hearing officer correctly found that the DCF had met the preponderance of evidence standard in applying the factors. The court, as stated above, makes this conclusion after reviewing the video of N. being interviewed by the police detective. The hearing officer correctly noted that N. had used terminology consisted with her age in disclosing the abuse, was not experiencing mental health issues, had no motive to fabricate the incident, and came to reveal the incident after a church " peace experience."
For the foregoing reasons, the appeal is dismissed.
SO ORDERED.