Opinion
CV165017765S
04-05-2017
Roy C.W. v. Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Henry S. Cohn, Judge Trial Referee.
The plaintiff, Roy C.W., appeals from a July 13, 2016, final decision of a hearing officer for the department of children and families (DCF), upholding a substantiation of the plaintiff for physical neglect of his children C. and A. and emotional neglect of C.
The plaintiff is aggrieved by the final decision for purposes of General Statutes § 4-183(a).
General Statutes § 17a-101g(b) requires 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 registry. This section also requires the commissioner to notify the alleged responsible person. If the alleged responsible person files a request for appeal, the commissioner must conduct an internal review of the recommendation. If the internal review concludes against the person, finding substantiation appropriate, he may ask for an administrative hearing. § 17a-101k(c).
In addition a hearing on the finding of substantiation, certain persons also may have a Section 17a-101k hearing on their placement on the DCF registry, if they receive notice of potential placement. The plaintiff in this appeal, however, was notified that DCF did not consider him appropriate for the registry list. If the hearing officer finds that the DCF substantiation should be upheld (whether or not the recommendation for placement on the registry is affirmed), the person may take an administrative appeal. § 17a-101k(e). In this instance, there is jurisdiction for an administrative appeal, therefore, from the substantiation determination, but the appeal only concerns the plaintiff's contention that the hearing officer improperly upheld the DCF substantiations.
As opposed to plaintiff's situation, had he been placed on the DCF registry, his status would have been available to prospective employers, licensing authorities, and public agencies. Reg. § 17a-101k-15(c). The substantiation itself, in contrast, is confidential.
In this appeal, the plaintiff in 2012 was given notice by DCF that he was substantiated for physical neglect of children A. and C. There was an additional charge brought by DCF in 2014 on the ground of emotional neglect, but this was not substantiated. On the plaintiff's request, a hearing on the DCF's substantiation from 2012 was first opened on October 15, 2015, for the submission of exhibits. On October 29, 2015, the DCF added a charge of emotional neglect of child C that was also considered by the hearing officer. The hearing dates for evidence in this case were January 21, 2016, and July 7, 2016.
The hearing officer then issued a final decision on July 13, 2016 and made the following findings of fact:
1. The plaintiff, Roy C.W., is the father of A. and C.
2. The Department received a report that the mother informed the police that the plaintiff father had strangled her. The children were not home during the incident, but the prior night the plaintiff had struck C on his back when he failed to get a word correct while doing homework.
3. The investigator met with the mother, who confirmed that the prior night the plaintiff was helping the child with homework, the child stumbled over the words and the father hit him with a closed fist on his back. No visible marks or bruises were observed on the child.
4. The mother disclosed that the following morning the plaintiff confronted her about what happened the night before, claiming that the mother undermined him as parent in front of the child. During the course of this discussion, the plaintiff became enraged and grabbed the mother by the neck and pushed her down. The mother fell back. The mother sustained red marks on her neck from the incident that were observed by both police and DCF.
5. The mother reported that there was a history of domestic violence in which she was the victim. The plaintiff controlled the finances and did not allow the mother to have friends outside the home. She said that there was a history of physical and verbal abuse.
6. During the meeting with the investigator, the mother presented as having low self-esteem, minimizing the incidents of domestic violence and blaming herself, saying she needed to do better to please the plaintiff.
7. When the investigator met with the plaintiff, he indicated that his relationship with the mother was unhealthy because she undermines his parenting. He acknowledged that he was angry with the mother on the date of the incident and that he reacted physically. He said he used poor judgment when he engaged physically with the mother. He also said that he responded physically to the child the prior night when he wasn't trying hard enough with his homework, but he claimed it was just a poke.
8. The plaintiff was arrested and charged with strangulation of the mother. When the police spoke with the plaintiff regarding any weapons or firearms he possessed at the residence, the plaintiff said he would voluntarily surrender his weapons and provided the location in the residence where he stored the weapons. The Woodbridge police officers went to the residence and found a fully loaded Taurus Revolver and a loaded Glock 17 hanging in the bedroom closet. Outside of the closet the officer found three long guns, one of which had four rounds in the tube.
9. The DCF domestic violence consultant made an assessment and concluded that the mother was a victim of domestic violence and that the plaintiff displayed a pattern of coercive control that included physical violence, emotional/verbal/psychological abuse, financial control and threatening and intimidating behavior.
10. The DCF domestic violence consultant found that the plaintiff's behavior had an adverse impact on the children in that they are routinely exposed to the plaintiff's controlling, demeaning, and seemingly contemptuous treatment of their mother. The consultant also described the emotional impact on C. in that he was visibly upset and crying after the plaintiff punched him, he wet his bed during the night and also urinated on himself the following day, he expressed to a friend that he was afraid of his father and the child also had difficulty interacting with the father when he was reading, but was able to read without difficulty to his father.
11. When interviewed, C. acknowledged that something had happened when he was pronouncing words incorrectly and the plaintiff had hit him. A. also confirmed that the plaintiff had hit C. when he did not pronounce a word correctly, " even though he was trying really hard."
12. Both children reported that they were not afraid of the plaintiff and the mother when they were subsequently interviewed by the investigator.
13. Initially, the investigative social worker sent out a notice that the case was unsubstantiated. After the program manager reviewed the case, the investigator's decision was overturned and the case was substantiated.
14. It is consistent with the program manager's authority to review a case and make a decision which is contrary to the investigator's initial assessment.(Return of Record, ROR, Final Decision, pp.2-4).
The hearing officer uses the word " appellant" in the final decision.
The hearing officer applied DCF Policy Manual § 34-2-7 to uphold the DCF substantiations. With regard to both C. and A., they were under the care of their father, Roy C.W., a person responsible for their welfare. The father had denied the children proper care and attention by failing to secure the loaded firearms in a safe manner. He also denied C. proper care and attention by striking C. for a simple homework error. This constituted physical neglect. Finally, the hearing officer upheld the substantiation for emotional neglect of C. The father had " denied C. proper care and attention emotionally and failed to respond to the child's affective needs which had an adverse impact on the child and seriously interfered with positive emotional development, and was behavior so egregious that it demonstrated a serious disregard for the child's welfare." This striking of C. had an adverse emotional impact on C., caused him to be visibly upset and crying and wetting his bed and at school the following day. (Id., pp. 4-6.)
The plaintiff's appeal followed. In this appeal, the court relies on recent appellate cases setting forth the standard of review. See Hogan v. Dep't. 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 its 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.)
Also, as the Appellate Court has stated in setting the applicable standard of review: " Judicial 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 . . . 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 . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . [A]s to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn.App. 714, 720-21, 20 A.3d 1272 (2011).
In the similar case of Matthew M. v. Dep't. of Children & Families, 143 Conn.App. 813, 824, 71 A.3d 603 (2013) where only substantiation was at issue, the Appellate Court applied this same standard of review.
The plaintiff makes several arguments in his contention that the hearing officer erred in upholding the DCF substantiations. The first is that the finding of physical neglect was based in part on his failure to store his guns properly. He argues that the DCF cannot impose a rule on gun safety for young children in light of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that an individual had a right to possess and carry weapons under the Second Amendment. This case does not preclude, however, the state or a state agency from imposing reasonable controls on firearms, including storage. See Shew v. Malloy, 994 F.Supp.2d 234 (D.Conn. 2014), aff'd, 804 F.3d 242 (2015), cert. denied, 136 S.Ct. 2486, 195 L.Ed.2d 822 (2016). As Judge Cabranes stated: " Recognizing, however, that 'the right secured by the Second Amendment is not unlimited, ' Heller emphasized that 'the right was not a right to keep and carry any weapon whatsoever and for whatever purpose." 804 F.3d 253, quoting Heller, 554 U.S. at 626. Our General Statutes § 29-37i requires that guns be stored in a locked box or other container reasonably secure. Here the facts found, with children under ten years, justify the conclusion that the plaintiff did not properly store his guns and that the hearing officer properly upheld the substantiation of physical neglect on these facts.
The plaintiff's second contention is that he was disciplined and his wife was not, in violation of the equal protection clause of the fourteenth amendment, prohibiting selective enforcement. The plaintiff's claim is that the improper storage of guns in the bedroom was equally his wife's fault. The law is clear, however, that the plaintiff, the party substantiated, has no standing to question the DCF's decision to prosecute his actions over the actions of his wife. Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).
As the Appellate Court has stated: " The trial court upheld the commission's decision, concluding that, even if a crime had been committed, prosecutors have " a wide range of discretion" in how to proceed in a criminal prosecution. We agree. " Prosecutors . . . have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review." (Citations omitted; internal quotation marks omitted.) Lucarelli v. Comm'n on Human Rights & Opportunities, 136 Conn.App. 278, 283, 46 A.3d 933 (2012).
The decision by DCF to bring a case for substantiation is legally equivalent to a criminal prosecution, for the purposes of the discretion to choose a responsible person.
This doctrine applies especially here where there is no record that the plaintiff's wife had ownership of the guns. In addition, the record demonstrates that the wife was the victim of domestic abuse. The DCF legitimately could decide that it was inappropriate to proceed against her for physical neglect of the children.
The plaintiff's third argument is that the hearing officer admitted documents that were created before and during a criminal case in which the plaintiff successfully received a dismissal under the accelerated rehabilitation program. But the erasure statute prohibits the record keeper at the court or the police department from disclosing documents subject to erasure. § 54-142a(a). It does not prohibit the DCF staff, who had obtained the documents lawfully during the AR period, from introducing them at the hearing required by § 17a-101k. See OO'Neil v. LT of Stamford, LLC, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 1166028203 (August 10, 2016) [62 Conn.L.Rptr. 848, ].
The plaintiff's fourth argument is that an unsubstantiated charge from 2014 was introduced as Exhibit 24 at the hearing. The hearing officer, however, made no reference to this incident in the final decision. In addition, there was no error in the introduction of the evidence as unsubstantiated charges have been held possibly relevant in a subsequent substantiation hearing. See Vines v. Dep't of Children & Families, Superior Court, judicial district of New Britain, Docket No. 084016779 (November 24, 2008) [46 Conn.L.Rptr. 703, ].
The plaintiff's fifth argument is that the case of Lovan C. v. Department of Children and Families, 86 Conn.App. 290, 860 A.2d 1283 (2004), was not given proper credit by hearing officer. Lovan C. recognizes that the rights of a parent to use physical force to discipline his or her child. The reasonableness of this discipline is a question of fact for the hearing officer. Under the test of substantial evidence discussed above, the court approves of the conclusion of the hearing officer that the striking of C. with a closed fist did not satisfy the Lovan C. exception for physical neglect. See also ROR, Ex. 13, pp. 5, 6; Trans. 1/21/16, p. 9.
The plaintiff's sixth argument is that the hearing officer incorrectly upheld his substantiation for emotional neglect of C. Again under the substantial evidence test, the court concludes that the hearing officer could correctly uphold this portion of the substantiation. The record supports the finding of substantial evidence. (ROR, Exhibit 13, p. 5.)
The plf's seventh and eighth arguments are that the DCF policy manual § 34-2-7 regarding physical and emotional neglect are unconstitutionally vague. This argument was rejected in the Hogan case above, as well as Frank v. Department of Children and Families, 312 Conn. 393, 422, 94 A.3d 588 (2014).
The plaintiff's ninth argument is that the plaintiff did not receive adequate notice of the charges. The plaintiff received notice in 2012 that physical neglect of A. and C. were the basis of the substantiation. On October 29, 2015, after the hearing had opened on October 15, 2015, but no evidence had been introduced, the plaintiff received notice of a new charge, emotional neglect of C. The amendment was appropriately approved by the hearing officer under Regulation § 17a-101k-8(e). The hearing with evidence commenced on January 21, 2016. The plaintiff therefore had sufficient notice of the claims being made by DCF against him. See Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 74, 912 A.2d 1008 (2007) (purpose of notice is to " fairly and sufficiently . . . apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing").
The plaintiff does not claim that the steps to amend under § 17a-101k-8(e) were not followed here.
The plaintiff's tenth argument is that the hearing officer admitted hearsay evidence at the hearing. Hearsay is not automatically disallowed in administrative proceedings. Section 4-178(1) provides that " [a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitive evidence . . ." See Paquette v. Hadley, 45 Conn.App. 577, 697 A.2d 691 (1997); Family Garage, Inc. v. Commissioner of Motor Vehicles, 130 Conn.App. 353, 360, 23 A.3d 752 (2011). (Objection to hearsay only appropriate where witness is untrustworthy and there is no other admissible evidence in point.)
The plaintiff's eleventh argument is that the hearing officer was biased as his objections to evidence were uniformly rejected by the hearing officer. The plaintiff's argument fails for two reasons. First, there is a presumption against a finding of bias by a hearing officer that the plaintiff must overcome. Mere disappointment with the rulings of the hearing officer does not satisfy the plaintiff's burden. Secondly our Supreme Court has held that a claim of bias must be made early in the commencement of the administrative hearing itself. The plaintiff did not make a timely claim of bias. Both these principles were thoroughly discussed in Moraski v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 262-63, 967 A.2d 1199 (2009).
The court has reviewed the arguments raised by the plaintiff and concludes that the hearing officer properly upheld the DCF substantiation, and that the plaintiff is not entitled to a judgment sustaining his appeal. Therefore the appeal is dismissed.
SO ORDERED.