Opinion
CV02-0516990S
November 5, 2003
MEMORANDUM OF DECISION
The plaintiff, Concettina Rucci, appeals from a final decision of a hearing officer of the defendant Department of Children and Families (DCF) affirming the substantiation of the plaintiff as a perpetrator of physical abuse upon a child and placing her name on a registry of reports of child abuse or neglect maintained by DCF. The DCF underlying investigation of the incident at issue and the substantiation process were conducted pursuant to General Statutes § 17a-101a et seq. and provisions in Chapters 34 and 22 of the DCF Policy Manual. The plaintiff filed a timely appeal from the hearing officer's decision pursuant to General Statutes § 4-183.
The hearing officer found the following facts. (See Return of Record (ROR), Item 24, pp. 2-3). On September 30, 2001, the plaintiff was a patient care assistant at Connecticut Children's Medical Center (CCMC). She had been employed in that position at CCMC for five and a half years. On September 30, 2001, DCF social worker Nicole Christie and the plaintiff were in the same hospital room with Heriberto J., a seven-year old boy who was hospitalized at CCMC while awaiting a bed opening at a psychiatric hospital. Christie, a DCF social worker, was present as a representative of DCF, the child's legal guardian. The plaintiff was present as an employee of CCMC engaged in a child caring role. Heriberto was particularly defiant that afternoon, was not listening to the adults present, and wanted to leave the hospital room. Heriberto became particularly agitated when Christie arrived to relieve another DCF worker shortly before the incident in question. The plaintiff became agitated with Heriberto's behaviors and her voice escalated. She was standing in front of Heriberto as he sat on the hospital bed. Christie was sitting in the doorway behind the plaintiff, looking toward Heriberto but blocked from a view of him by the plaintiff's back. Christie observed the plaintiff raise her right hand into the air and then heard a slapping sound. Heriberto then became quiet and his behavior calmed. Christie spoke to the plaintiff about the incident, who said that Heriberto was going to bit her so she acted in self defense. A few minutes later after the plaintiff left the room, Heriberto asked Christie why the plaintiff had hit him. Christie also observed redness to the left side of Heriberto's face and she could detect the faint mark of a hand print. Approximately fifteen minutes after the incident a CCMC doctor came to examine Heriberto. The doctor would not allow Christie to be present for the examination but did note the redness on Heriberto's face. The plaintiff claimed that she was in a struggle with Heriberto over the television remote control, which Heriberto was using to turn the television on and off and to press the emergency assistance button. During the struggle, Heriberto turned his body away from the plaintiff and in so doing hit her with his arm, which was wrapped in a hard cast, causing pain and a bruise to the plaintiff. She reacted by reflexively striking Heriberto. Christie did not observe a physical struggle between the plaintiff and Heriberto prior to the slap nor did she observe Heriberto swinging his casted arm. Christie made a referral to the DCF Hotline that afternoon. An investigation ensued the next day. The plaintiff was sent home from work after the incident and was terminated from her position the next day. No marks on Heriberto were observable to the DCF investigator on October 1, 2001.
After its investigation, DCF substantiated physical abuse due to the existence of an injury to Heriberto caused by non-accidental means. DCF also substantiated physical neglect, claiming that the plaintiff's actions were erratic and the result of impaired behavior. The plaintiff timely requested a substantiation hearing, which was held before a DCF hearing officer on June 17, 2002. At the hearing, the plaintiff, Christie and Kevin Cranford, a DCF investigator, all testified.
In his July 17, 2002 decision, the hearing officer affirmed the substantiation of physical abuse, but reversed the substantiation of neglect. The hearing officer affirmed the substantiation of physical abuse based upon the following rationale. "Ms. Rucci admitted to hitting the child, causing a red mark that was observable 15 minutes later by a treating physician. The DCF worker noticed the mark of a hand print on the child's face shortly after the slap. The mark does constitute an injury under the definition of physical abuse . . . and has been consistently held so in prior hearing decisions. Further, it does not appear that the slap was accidental. Ms. Rucci reflexively hit Heriberto after engaging him in a struggle for the television remote control during which his casted arm hit Ms. Rucci in the elbow, causing her pain and her own bruise. It does appear that Heriberto accidentally hit Ms. Rucci, however. The evidence would indicate that the child was maneuvering and twisting so as to keep Ms. Rucci from taking the remote control from him. A reflexive action is not an accidental one. [The plaintiff] intended to hit the child either to calm him down or because he had struck her (even if accidentally). Neither reason is acceptable. Ms. Rucci could have attempted other techniques to calm Heriberto, and her focused desire to get the remote control from him probably escalated the situation. Likewise, because the child had struck her, even if non-accidentally, does not justify Ms. Rucci retaliating by striking him back. She could have simply retreated and sought the assistance of others." (ROR, Item 24, p. 4.) As a result of the substantiation of abuse, the plaintiff's name appears on a registry of persons responsible for the abuse or neglect of a child. See General Statutes § 17a-101k.
The plaintiff argues that DCF did not prove a specific injury to the child. The plaintiff contends that a momentary redness of the face from the slap of the hand is not a bruise and is not sufficient to meet the definition of physical injury within the meaning of Sections 17a-101a and 17a-103. The plaintiff further argues that there was no evidence in the record that the plaintiff intended to hit the child, and the hearing officer's finding that the plaintiff acted reflexively supports a finding that the action was unintentional or accidental. The plaintiff concludes that a finding of physical abuse requires both a physical injury and an intention to inflict it, and neither of these requirements were present in this case.
Judicial review of an administrative agency's decision is governed by the Uniform Administrative Procedure Act; General Statutes §§ 4-166 et seq. (UAPA); and the scope of that review is very restricted. MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. With regard to questions of fact, it is not the function of the court to retry the case or to substitute its judgment for that of the administrative agency. Id. "The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA; General Statutes §§ 4-183(j)(5) and (6). `Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record.' (Citations omitted; internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 118, 717 A.2d 1276 (1998)." Id., 136-37.
"`Even as 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 reached by the administrative agency 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.' (Internal quotation marks omitted.) Cannata v. Dept of Environmental Protection, 239 Conn. 124, 139-40, 680 A.2d 1329 (1996). `Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny the agency is not entitled to special deference.' (Internal quotation marks omitted.) Connecticut Light Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642, 708 A.2d 202 (1998)." MacDermid, Inc. v. Department of Environmental Protection, supra, 257 Conn. 137.
General Statutes (Rev. to 2001) § 17a-101a provides in relevant part: "Any mandated reporter, as defined in section 17a-101, who in his professional capacity has reasonable cause to suspect or believe that any child under the age of eighteen years has been abused, as defined in section 46b-120, or has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon him by a person responsible for such child's health, welfare or care . . . or is placed at imminent risk of harm by an act or failure to act on the part of such responsible person . . . shall report or cause a report to be made in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive . . ." General Statutes (Rev. to 2001) 17a-103 also refers to the definition of abuse in § 46b-120 with respect to reports of child abuse by mandated reporters acting outside their professional capacity and any other persons having reasonable cause to suspect or believe abuse. General Statutes (Rev. to 2001) § 46b-120 provides: "The terms used in this chapter shall, in its interpretation and in the interpretation of other statutes, be defined as follows: . . . (4) `abused' means that a child or youth (A) has been inflicted with physical injury or injuries other than by accidental means, or (B) has injuries that are at variance with the history given of them, or (C) is in a condition that is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment."
The DCF Policy Manual § 34-2-7 provides operational definitions of child abuse and neglect. Section 34-2-7 provides that "abuse" is "a non-accidental injury to a child which, regardless of motive, is inflicted or allowed to be inflicted by the person responsible for the child's health, welfare or care; by the person given access to the child; or by the person entrusted with the child's care. Section 34-2-7 further provides that physical abuse is "any physical injury inflicted other than by accidental means . . . including, but not limited to the following examples: — death[;] — head injuries[;] — bruises, scratches, laccrations[;] — internal injuries[;] — burns, scalds . . . — injuries to bone, muscle, cartilage, ligaments . . . — misuse of medical treatments or therapies."
Although mandated by statute to do so, DCF has promulgated no regulations defining the terms "physical abuse" or "physical injury." The parties have cited no caselaw interpreting the meaning of these terms in the context of the reporting and registry provisions of General Statutes §§ 17a-101a through 17a-101k. The only published guidelines for determining what constitutes an injury is the examples provided in § 34-2-7 of the DCF Policy Manual.
The plaintiff first argues that the hearing officer erred in finding that a momentary redness on the child's face constituted a physical injury within the meaning of General Statutes § 17a-101a and 17a-103. As noted above, in his decision, the hearing officer found that the child had a red mark on his face, which was observable fifteen minutes after the incident, and that the DCF worker detected the faint mark of a hand print. The hearing officer further found that no marks on Heriberto were observable to the DCF investigator the next day.
The closest description of the mark on the child under the examples of physical injury listed in § 34-2-7 of the DCF Policy Manual would be a "bruise." The hearing officer, however, did not specifically find that the child was bruised, and indeed, a red mark that does not result in any discoloration of the skin the following day does not meet the common description of a bruise. According to the dictionary, a "bruise" is "[a]n injury to underlying tissues or bone in which the skin is not broken, often characterized by ruptured blood vessels and discolorations." American Heritage College Dictionary (3d Ed. 1997), p. 180. Since the only guidance provided by DCF in its own policy manual does not encompass temporary redness of the skin, the finding by the hearing officer that the plaintiff had inflicted a "physical injury" upon the child so as to have committed "physical abuse" cannot stand The evidence in the record is insufficient as a matter of law to support a finding of "physical abuse" in the context of the description and examples of "physical injury" in DCF's own policy manual.
The plaintiff also argues that there is no evidence in the record that she intended to hit the child, and that the hearing officer's finding that her action was reflexive supports a finding that her action was not intentional. In an administrative appeal regarding the reporting and registry statutes regarding abuse of a resident in a nursing home facility, the Supreme Court concluded that in order for one to have perpetrated "resident abuse" under General Statutes § 20a-102cc(a), he or she must have acted wilfully. Salmon v. Department of Public Health Addiction Services, 259 Conn. 288, 788 A.2d 1199 (2002). The court stated: "Although it is not determinative, the term `abuse' in this context, namely, the abuse of a resident in a nursing home facility, strongly suggests that the infliction of harm be intentional or wilful, as opposed to inadvertent. This interpretation is buttressed by the serious consequences to the caregiver that result from a finding of resident abuse." Id., 306. The court further concluded that "the wilfulness element of `resident abuse' requires that the conduct of a caregiver be voluntary, rather than accidental or inadvertent." Id., 309.
The use of the terms "accidental" and "nonaccidental" in General Statutes §§ 46b-120 and 17a-101a in the context of the reporting and registry requirements with respect to child abuse similarly invokes an element of wilfulness or intent. Construing this wilfulness element of "child abuse" in this case as the Supreme Court construed it in Salmon requires a finding that the plaintiff's conduct be "voluntary, rather than accidental or inadvertent." Salmon v. Department of Public Health Addiction Services, supra, 259 Conn. 309. In this case, the hearing officer found that the plaintiff's action was "reflexive." The hearing officer, however, also found that the plaintiff intended to hit Heriberto either to calm him down or because he had struck her, and that a reflexive action is not an accidental one. According to the dictionary, a "reflexive" action is one that is "[e]licited automatically; spontaneous." American Heritage College Dictionary (3d Ed. 1997), p. 1147. An "accidental" action is one "[o]ccurring unexpectedly, unintentionally or by chance." American Heritage College Dictionary (3d Ed. 1997), p. 8. The hearing officer's conclusion that the plaintiff's action was "reflexive" contradicts his finding that the plaintiff's action was intentional. In light of the conflicting evidence presented and the serious consequences to the plaintiff's reputation and employment possibilities that result from the placement of her name on the child abuse registry, it is especially important that the hearing officer's findings be clear and consistent. Because the hearing officer has made inconsistent findings with respect to the plaintiff's intent and cast no doubt on her credibility, the court cannot conclude that he was correct in his application of the law to the facts of the case in affirming a substantiation of abuse based upon a fair preponderance of the evidence.
The court finds that the substantial rights of the plaintiff have been prejudiced because the hearing officer's conclusions were not supported by the substantial evidence in the record and did not result from a correct application of the law. Pursuant to General Statutes § 4-183(k), judgment is entered sustaining the plaintiff's appeal, and the defendant is ordered to reverse the substantiation of child abuse and remove the plaintiff's name from the registry.
PECK JUDGE.