Opinion
HHBCV166032270S
03-22-2017
Robert Schmitt v. Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Robert Schmitt, appeals from the final decision of the Department of Children and Families (department or DCF), substantiating allegations of sexual abuse, physical neglect, and emotional neglect, and upholding his placement on the department's central registry as a person who poses a risk to children. The plaintiff argues that (1) the hearing officer's decision is clearly erroneous in view of the entire evidentiary record and is arbitrary, capricious, and characterized by an abuse of discretion; (2) the hearing officer misapplied the standards in State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003), for evaluating the reliability of a child's hearsay statements; and (3) the plaintiff's inability to confront and cross examine his accuser pursuant to the Sixth Amendment of the federal constitution violated his due process rights. For the reasons stated below, the court concludes that the hearing officer's findings and conclusions are supported by substantial evidence in the record; the hearing officer correctly applied the Merriam factors; and the plaintiff's Sixth Amendment right to due process is not implicated by the administrative proceeding. Consequently, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
The record discloses the following facts. The plaintiff was a special education teacher at the MicroSociety Magnet School in New Haven, Connecticut, in the 2011-2012 and 2012-2013 school years. Return of Record (ROR), Final Decision, p. 4. The complainant, A, was a special education student who was taught by the plaintiff in the 2011-2012 school year and part of the 2012-2013 school year. She was eleven years old and in sixth grade in the 2011-2012 school year. ROR, Final Decision, p. 4. During the 2011-2012 school year, there were times when the plaintiff was delivering special education services to A when he was alone with her in his office with the door closed. ROR, Final Decision, p. 7.
The plaintiff is described as the " Appellant" in the final decision.
In accordance with the spirit and intent of General Statutes § 17a-28, the identities of the children allegedly abused by the plaintiff are not disclosed in this decision.
In December 2012, the department investigated a claim that the plaintiff had been physically and verbally aggressive with a special education student. He was placed on administrative leave during the investigation. The allegations were not substantiated and the plaintiff returned to work in the spring of 2013. ROR, Final Decision, p. 4.
On April 29, 2013, A was engaged in a therapeutic counseling group with a school social worker and two other children. There were no discussions about " good touching, " " bad touching, " or anything else that would steer the conversation toward inappropriate touching. The children were engaged in a therapeutic game called " Feel, Reveal . . . and Heal, " a board game designed to help children learn to express their feelings. ROR, Final Decision, p. 4.
When it was A's turn, she landed on a spot on that read, " I'm ashamed of." A shared that she was ashamed and she was having nightmares. The social worker excused the other children from the room and then asked A what she was ashamed of. A said that she was ashamed because she had been touched inappropriately by an aunt's friend and by a student who was no longer at the school. She then said that the plaintiff had touched her breasts about five times during the previous school year (2011-2012). She also said that he had rubbed her arms and legs on some occasions. She said the question on the board game made her think about it, and she just wanted to tell the social worker. She did not care about earning " chips" in the game or winning the game. ROR, Final Decision, pp. 4-5.
After A's disclosure, the social worker took her to the principal's office. A told the principal and the social worker that she felt scared all the time at school and that the plaintiff had touched her in her privates in her shirt. ROR, Final Decision, p. 5. The principal called A's mother, who came to the school, and A told her mother that the plaintiff had touched her breasts several times the previous year and had rubbed her arms and legs. ROR, Final Decision, p. 5; see also ROR, Exhibit 15, pp. 30-32. The social worker notified the department. ROR, Exhibit 9, pp. 4-5 (investigation protocol). The principal placed the plaintiff on administrative leave and escorted him from the school premises. ROR, Exhibit 9, pp. 4-5 (investigation protocol); see also ROR, Exhibit 11, p. 4 (New Haven Police Department case incident report, narrative).
At the time of her disclosure to the school social worker, A was also seeing a private counselor. After her disclosure to the school social worker, A also told her private counselor that the plaintiff had touched her breasts and legs, but did not share any further details with her. A told the private counselor that she was afraid to go to school as long as the plaintiff was there. ROR, Final Decision, p. 5; see also ROR, Exhibit 61, p. 16.
The department assigned an investigative social worker to the case. A told the investigator that the plaintiff had touched her breasts with his hands multiple times in the previous school year in his office at school when no one else was present. ROR, Final Decision, p. 5.
On May 7, 2013, A participated in a forensic interview at the Yale Child Sexual Abuse Clinic. ROR, Final Decision, p. 5; see also ROR, Exhibit 16 (forensic interview report), 18 (DVD of A's forensic interview). During the forensic interview, A reported that the plaintiff had touched her breasts and arms and that she was scared of him. She described one incident when he touched her when she was sitting down. He said it was an accident while holding her breast. She said that he touched her breasts over her clothes. He was standing behind her while she was sitting down. She also said that she slapped at his hand and ran. She said he touched her breasts four or five times over her clothes and that he rubbed her legs on top of her clothes twice. She demonstrated the plaintiff's alleged actions on dolls during the forensic interview, showing that the plaintiff grabbed her breasts from behind while she was sitting. ROR, Final Decision, pp. 5-6.
After A reported the plaintiff's actions to the school social worker and the principal, three other students came forward with allegations that the plaintiff had also touched them inappropriately. These included L, a fourteen-year-old intellectually disabled girl whom adults described as a " people pleaser" who could be easily led; and two male students, R and J. ROR, Exhibits 9, 10. L's initial disclosure was to a special education teacher. The teacher said that she had seen A talking with L, apparently shaking her head " no, " just before A and L approached the teacher to say that the plaintiff had touched L inappropriately. ROR, Exhibit p. 8. L said that he had touched her vagina under her clothes on one occasion. ROR, Exhibit 9, p. 8. R's disclosure occurred when his mother took him to the police station with his sister and asked the police to determine whether the plaintiff had touched either of them inappropriately. ROR, Exhibit 9, p. 8. J's report of inappropriate touching first occurred after news of the plaintiff's arrest for sexual assault of A, L, and R became public. ROR, Exhibit 10, p. 4.
After investigating the allegations by the students, the department substantiated allegations of sexual abuse or exploitation, physical neglect, emotional neglect, and emotional abuse of the students by the plaintiff. ROR, Exhibits 1, 8, 9, and 10. The plaintiff sought a substantiation hearing on all charges. ROR, Exhibit 3. He initially asked to defer the hearing until after his criminal charges were resolved, but subsequently decided to proceed with the administrative process. ROR, Exhibits 5, 7. The administrative hearing began on May 5, 2014, and continued on May 23, June 17, July 14, and July 25, 2014. ROR, Final Decision, p. 1. On August 5, 2014, before the administrative hearing had concluded, the plaintiff requested another deferral until the disposition of his criminal charges. ROR, Final Decision, p. 1. The final day of the hearing was November 20, 2015. ROR, Tr. 11/30/15.
The audio recording system malfunctioned on July 14 and July 25, 2014, with the result that no transcript was produced for the administrative hearing on those dates. The parties agreed to accept the hearing officer's notes of the July 14, 2014, hearing, in lieu of recalling the witnesses to testify again. ROR, Tr. 11/30/15, p. 7; ROR, Exhibit 68. There is no similar stipulation regarding the hearing of July 25, 2014, but it appears that no testimony was heard on that date. See ROR, Tr. 11/30/15, pp. 10-11.
While the criminal charges and the administrative proceeding both were pending, a hearing was held pursuant to General Statutes § 10-151 to determine whether to recommend termination of the plaintiff's employment. A tripartite panel heard testimony from several witnesses, including but not limited to the plaintiff himself, the school principal and social worker, other teachers, and the two male students who had accused the plaintiff of sexual misconduct. One child recanted his accusation, and the panel found that the other was not credible. Neither A nor L appeared to testify at the termination hearing, despite subpoenas that had been issued for their testimony. On January 30, 2015, based on the evidence it heard and its inability to obtain testimony from A and L, the tripartite panel recommended against termination of the plaintiff's employment but recommended that he remain on administrative leave without pay during the pendency of the criminal and administrative proceedings. The panel's opinion was highly critical of the Supreme Court's decision in State v. Merriam, supra, 264 Conn. 617. The panel observed that Merriam relied on Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was subsequently overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The panel emphasized the importance of cross examination in reaching its conclusion that the two children who did testify proved not to be credible. ROR, Exhibit 75, pp. 27-38.
In March and April 2015, the plaintiff was tried in New Haven Superior Court on the criminal charges of sexual assault and risk of injury based on A's allegations. ROR, Exhibits 12, 61, 62, 67. On March 30, 2015, A testified at the plaintiff's criminal trial. In court, she testified that the plaintiff touched her breasts both over and under her clothes more than ten times, but said that some of the times occurred on the same day. She testified that he would touch her when he was standing behind her or sitting beside her, beginning by massaging her neck and working his way down to her chest. She testified that she felt uncomfortable and unsafe when he did this. She was disgusted with herself that she let someone do this to her and she felt afraid. When asked why she continued to return to his room even though she felt afraid, A said she couldn't go anywhere else and the plaintiff was her special education teacher. A's trial testimony about the details of the extent of the touching--the number of times it occurred, and whether it was over or under her clothes--varied somewhat from her initial disclosures, including the forensic interview. ROR, Final Decision, pp. 6-7; see also ROR, Exhibit 62.
A testified that she felt " more safe" when she returned to school after disclosing the touching to the school social worker and the principal. She explained that she chose to share the report of the touching with the school social worker because she trusted her. She did not share it with her private counselor before her disclosure to the school social worker because she did not trust the private counselor. ROR, Final Decision, p. 7.
A had no issues with grades, detention, or suspension with the plaintiff. She did have mental health issues. In September 2012, she reported to her private counselor that she was hearing voices, especially a boy's voice telling her to go to the basement in her home. None of the incidents in which she heard voices occurred at school, and the auditory hallucinations did not include sexual content. ROR, Final Decision, p. 7; sec also ROR, Exhibits 61, 62.
On April 9, 2015, a jury acquitted the plaintiff of the criminal charges involving his alleged sexual contact with A. ROR, Final Decision, p. 6; see also ROR, Exhibit 67. The charges involving other students were subsequently nolled. ROR, Exhibit 67.
Based on the plaintiff's acquittal on the charges involving A and on the opinion of the tripartite panel from the termination hearing, the plaintiff then asked the department to conduct a further internal review of its substantiation of the allegations involving all four children. ROR, Exhibit 71. On October 29, 2015, as a result of that internal review, the department reversed the substantiations relating to L, R, and J, and also reversed the substantiation of emotional abuse of A. ROR, Exhibit 72. The last day of the administrative hearing was then held on November 30, 2015. The hearing officer noted that the revised issue for the hearing was whether the substantiation for sexual abuse/exploitation, physical neglect, and emotional neglect of A should be upheld, and whether the plaintiff's name should remain on the child abuse registry. ROR, Tr. 11/30/15, pp. 5-6. The plaintiff was the only witness on that day. ROR, Tr. 11/30/15, pp. 17-90.
On January 5, 2016, the administrative hearing officer issued a decision upholding the substantiations for sexual abuse/exploitation, physical neglect, and emotional neglect of A. ROR, Final Decision, p. 2. The hearing officer also upheld the placement of the plaintiff's name on the central registry. ROR, Final Decision, p. 2. This appeal followed.
DISCUSSION
The plaintiff raises three claims on appeal. First, he claims that the hearing officer's decision and conclusions are clearly erroneous in view of the entire evidentiary record and are arbitrary, capricious, and characterized by an abuse of discretion. Second, he claims that the hearing officer misapplied the factors set out in State v. Merriam, supra, 264 Conn. 617, to determine the reliability of A's hearsay statements. Third, he claims that a department regulation which prevented him from calling A as a witness denied him his Sixth Amendment right of confrontation and his right to due process. See Regs., Conn. State Agencies, § 17a-101k-8(h).
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § § 4-166 et seq., and in particular, General Statutes § 4-183. " 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." (Citation omitted; internal quotation marks omitted.) Hogan v. Dep't of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009). This court may not " 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." (Internal quotation marks omitted.) Id., 561.
General Statutes § 4-183(j) provides: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
" In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dep't of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014).
" [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative." (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991). There is no prohibition against hearsay evidence in the UAPA. Id.
General Statutes § 17a-101g(b) governs the investigation of reports of suspected child abuse or neglect. It incorporates the definitions of abuse and neglect found in General Statutes § 46b-120. Section 46b-120(6) provides, in relevant part, that a child may be found to be " neglected" who " (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth." Section 46b-120(6)(C) provides, in relevant part, that a child may be found to be " abused" when that child is " in a condition that is the result of maltreatment, including, but not limited to, . . . sexual molestation or exploitation . . ." General Statutes § 17a-101k requires the commissioner of children and families to maintain a registry of individuals who have been substantiated for abuse or neglect and who pose a risk to children. Section 17a-101k works " in tandem" with § 17a-101g, which establishes the department's responsibilities upon receiving a report of abuse or neglect of a child. See Hogan v. Dep't of Children & Families, supra, 290 Conn. at 568-70. Section 17a-101g requires the commissioner to classify, evaluate, investigate, and determine whether such reported abuse or neglect has occurred. Id., 569. " If the commissioner determines that abuse or neglect has occurred, the commissioner shall also determine whether: (1) [t]here is an identifiable person responsible for such abuse or neglect; and (2) such identifiable person poses a risk to the health, safety or well-being of children and should be recommended by the commissioner for placement on the child abuse and neglect registry established pursuant to section 17a-101k." General Statutes § 17a-101g(b). The plaintiff does not argue that the facts found by the hearing officer are insufficient to establish sexual abuse, physical neglect, or emotional neglect. Nor does he dispute that the facts found warrant his placement on the child abuse registry. His claims relate to the reliability of the evidence and the procedures employed in the hearing.
I
EVIDENTIARY CLAIMS
The plaintiff first claims that the hearing officer substantiated allegations of inappropriate or sexual contact with A based primarily on A's " inconsistent, uncorroborated and unreliable hearsay statements." Pl. Br. 6. He argues that the weight of the evidence shows that the hearing officer failed to consider parts of the record that " conclusively" show that A's allegations were " fabricated, inconsistent, refuted by the absence of allegations made during previous therapeutic sessions, and in stark contrast to the entire record." Pl. Br. 6. He then takes issue with certain specific findings in the final decision. The department rebuts these arguments with specific citations to evidence in the record that support the hearing officer's decision as well as each of the specific contested findings.
The plaintiff's claim that the weight of the evidence " conclusively" establishes that A's claims were fabricated is not persuasive. The administrative hearing spanned several days. The hearing officer heard from numerous witnesses and received more than seventy exhibits, including transcripts of testimony from the criminal trial and the termination hearing. Throughout the hearing, and generally without objection, various witnesses offered their opinions as to the credibility or truthfulness of A as well as of the other students who made allegations against the plaintiff, and even of other adult witnesses who testified at the hearing. Some of this evidence suggested that A was not always truthful, but more of it supported her truthfulness and credibility. See, e.g., ROR, Tr. 5/5/14, pp. 11-12, 17 (police officer testified that school principal and social worker thought A was truthful); ROR, Tr. 5/5/14, p. 22 (police officer testified that A was credible in forensic interview); ROR, Tr. 5/5/14, pp. 26-32 (police officer found L credible); ROR, Tr. 5/5/14, p. 44 (police officer concluded that R was truthful); ROR, Tr. 5/5/14, p. 150 (substitute teacher testified that A would " fabricate a little bit"); ROR, Tr. 5/5/14, p. 162 (substitute teacher testified that A would " tell me a story just to get out of class so she can go to [the plaintiff's] office"); ROR, Tr. 5/23/14, p. 90 (plaintiff's colleague testified that A would lie " at first" to get out of trouble but would " usually be honest" when she calmed down); ROR, Tr. 5/23/14, pp. 93-96 (plaintiff's colleague described initial disclosure by L as having been prompted by A's questioning of her on the playground); ROR, Tr. 5/23/14, p. 164 (A's former teacher testified that, when A was in third grade, she would not have been a child who would create allegations of sexual abuse); ROR, Tr. 5/23/14, p. 167 (A's third-grade teacher did not believe the allegations against the plaintiff to be true); ROR, Tr. 5/23/14, p. 173 (A's sixth grade home room teacher testified that A would be untruthful to get out of trouble); ROR, Tr. 5/23/14, pp. 198-99 (A's sixth grade home room teacher testified that A is the type of child who would fabricate allegations of sexual abuse, based on the fact that A was " inappropriate physically in terms of space"); ROR, Tr. 6/17/14, p. 11 (department social worker testified that school social worker thought A could make a credible report); ROR, Tr. 6/17/14, p. 28 (department social worker testified that there was no evidence to suggest that A was fabricating claims); ROR, Tr. 6/17/14, pp. 30-31 (department social worker testified that the department found L's disclosures to be credible and consistent); ROR, Tr. 6/17/14, p. 142 (school principal testified that she found A's disclosure " very credible"); ROR, Tr. 6/17/14, p. 143 (principal testified that A is believed when she makes a statement); ROR, Tr. 6/17/14, p. 157 (principal testified that one of the teachers who had testified on behalf of the plaintiff " would lie for one of her colleagues" and had in fact lied to the principal).
As the foregoing examples show, the evidence before the hearing officer unquestionably provided a basis for questioning A's truthfulness. Some of her former teachers testified that she had at times lied to get herself out of trouble, and they disbelieved her allegations against the plaintiff. Most of the adults who knew A, however, testified that A was generally truthful and had never been known to make a false allegation of sexual abuse. Even the teacher who was most negative about A admitted that " If she's in a situation where she's in trouble she might lie at first but usually when she calms down she'll usually be honest with what she did wrong." ROR, Tr. 5/23/15, p. 90. Although this teacher believed that A had persuaded L to make allegations against the plaintiff, she admitted that she did not think A had " intentionally made a lie." ROR, Tr. 5/23/15, p. 96.
In an administrative appeal, " [t]he reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dep't of Children & Families, supra, 312 Conn. at 411-12. In this case, substantial evidence supported the hearing officer's decision, even though the record contains contradictory evidence as well. It is the agency's province to make determinations of credibility. Id., 412. The court 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." (Internal quotation marks omitted.) Id. The hearing officer did not have an opportunity to make a " firsthand observation" of A's conduct, demeanor and attitude because of the agency's regulation prohibiting testimony by a victim of abuse while that victim is a minor. See Regs., Conn. State Agencies § 17a-101k-8(h). She did, however, have the opportunity to observe the video of A's forensic interview, to read A's testimony from the criminal trial, and to hear direct testimony from the school social worker, the principal, teachers, and a private social worker, all of whom knew A and had formed opinions of her credibility. The hearing officer also heard testimony from a department social worker who had interviewed A and had observed her forensic interview. Most of those witnesses unequivocally testified to A's credibility. The few witnesses who testified that A sometimes lied were colleagues of the plaintiff. The school principal testified that there were a number of staff members in the school, including some of the teachers who testified at the hearing, who believed that the principal should not have reported A's allegations to the department because " [s]omeone shouldn't lose their job because of what a kid says." ROR, Tr. 6/17/14, p. 160. The hearing officer was entitled to weigh all of this conflicting testimony and to make her own assessment of the credibility of these witnesses. She was also entitled to consider the voluminous documentary evidence submitted, which contained, among other things, testimony from the criminal trial and from the termination hearing. Having reviewed the evidence that was before the hearing officer, the court cannot conclude that the weight of the evidence contradicts the hearing officer's factual findings. While there was evidence supporting the plaintiff's assertion that he never touched A inappropriately, there was also evidence supporting the credibility of A's allegations. In these circumstances, the court must defer to the department's assessments of credibility.
See Section III below.
In addition to asserting that the weight of the evidence established A's lack of credibility, the plaintiff also attacks certain specific factual findings. The court concludes that, with one exception, all of the attacked findings were supported by evidence in the record.
First, the plaintiff takes issue with the hearing officer's finding that A first disclosed the alleged sexual contact to the school social worker while playing " a therapeutic game used by the social worker to help kids express themselves about their feelings." See ROR, Final Decision, p. 4, ¶ 5. The plaintiff argues that nothing in the record suggests that the game had any therapeutic value or was endorsed by any professional mental health care provider or professional association. This argument is unpersuasive. The social worker was a licensed clinical social worker with twelve years experience counseling students with special needs. She testified that she used the game as a tool to help students learn to express their feelings. ROR, Exhibit 15, pp. 83-86, 95. Moreover, a copy of the game's objectives and a copy of the game board were admitted as Exhibit 14. This is adequate support for the hearing officer's description of the game as a " therapeutic game."
The game's express objectives are " [t]o help children become aware of their feelings, " " [t]o help children express their feelings, " and " [t]o help children feel less vulnerable and afraid." ROR, Exhibit 14, p. 1.
The plaintiff next claims that there was no foundation for the hearing officer's finding that before this disclosure, " the social worker was aware that the [plaintiff] had made some kind of comments to the child and bothered her, but was unaware that he touched her inappropriately." ROR, Final Decision, p. 5, ¶ 9. The testimony cited by the department to support this finding is not entirely clear. The hearing officer construed a comment of the social worker as referring to the plaintiff, but the context of the comment indicates that the social worker was likely referring to another student who had touched A inappropriately in the previous year. See ROR, Exhibit 15, p. 92 (" She talked about a peer who had touched her the year before that was no longer at the school, and we were aware of his inappropriate behavior and he actually had some discipline action against him for sexual harassment."), and pp. 97-98 (testimony reproduced below). This finding, however, was not essential to the hearing officer's ultimate conclusion, and even if mistaken, would not require reversal.
The department cites the following testimony by the school social worker at the plaintiff's employment termination hearing as the source of the contested finding:
The plaintiff also takes issue with the hearing officer's finding that a child may delay for as long as a year or even three years before the child feels comfortable enough to reveal sexual molestation. See ROR, Final Decision, p. 5, ¶ 10. He claims that there is nothing in the record to suggest that her opinion is valid or in accordance with any medical standards. The department responds that the social worker was a licensed clinician who was qualified to offer that opinion; that the plaintiff did not object to the social worker's testimony; and that our courts and legislature have recognized that a delay in reporting childhood sexual abuse is not unusual. The court agrees with the department.
A first disclosed the plaintiff's alleged abuse to her school social worker after being in counseling with this social worker for more than a year. The plaintiff contends that it would not have taken A so long to disclose the abuse to the social worker if it had really occurred. The social worker testified, however, that delays in disclosure of sexual abuse are not uncommon. During the plaintiff's employment termination hearing, she was asked whether a child would bring sexual abuse to her attention " within a relatively short period of time after it occurred." ROR, Exhibit 15, Tr. 3/14/14, pp. 83-132, 126 (termination hearing). She replied: " Not necessarily. It takes--it could take a while before a child feels comfortable enough revealing a sexual molestation." When asked if it might take " as long as a year, " she replied: " Yes, it could take as long as a year. It could take three years." ROR, Exhibit 15, Tr. 3/14/14, p. 126 (termination hearing). This testimony was based on her years of clinical experience, in which she had previously received disclosures of sexual abuse by children and had been required to report those disclosures to the department. See ROR, Exhibit 15, Tr. 3/14/14, pp. 99, 126 (termination hearing). The plaintiff did not object to this testimony when it was offered.
As the department commented, moreover, our courts have repeatedly recognized that experts say it is not unusual for child victims of sexual abuse to delay in reporting the abuse. See, e.g., State v. Taylor G., 315 Conn. 734, 752-65, 110 A.3d 338 (2015) (discussing admissibility of expert testimony regarding general characteristics of child victims of sexual abuse, including delays in reporting); State v. George J., 280 Conn. 551, 567, 910 A.2d 931 (2006) (commenting on " well documented problems of shame and repressed memories that often preclude child victims of sexual abuse from timely reporting the crime"); State v. Christiano, 228 Conn. 456, 461-63, 637 A.2d 382 (1994) (expert testimony allowed to explain why child victims of sexual abuse may delay in reporting abuse); State v. James W., 87 Conn.App. 494, 498-503, 866 A.2d 719 (2005) (same). The scientific research on delays in reporting child sexual abuse is extensive. See, e.g., Margaret-Ellen Pipe et al., Child Sexual Abuse: Disclosure, Delay, and Denial (Routledge 2007) (assessing recent research). In Connecticut, experts have testified that shame is one of the factors that may cause a child to delay in reporting abuse. See State v. George J., supra, 280 Conn. 567. In that respect, it is significant that A's first disclosure of sexual abuse occurred when she landed on a space on a therapeutic board game that called for her to finish the sentence " I'm ashamed of . . ." ROR, Exhibit 14, p. 3. Finally, as the department points out, our legislature has recognized that it may take years for victims of sexual abuse to report what happened to them. See General Statutes § 52-577d (thirty-year statute of limitations for actions by minor victims of sexual abuse against their abusers, commencing on the date the victim attains majority); Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 441, 119 A.3d 462 (2015) (upholding retroactive application of § 52-577d in light of " unique psychological and social factors that often result in delayed reporting of childhood sexual abuse"). In this case, the school social worker's testimony was consistent with expert testimony frequently admitted in Connecticut cases involving child sexual abuse. In light of the social worker's testimony, the court rejects the plaintiff's argument that the hearing officer's finding is not supported by the record.
The plaintiff next takes issue with the hearing officer's finding, in paragraph 29 of the final decision, that " [t]he details of some of the extent of the touching, in that it was over and under the clothes, were in some manner changed from the forensic interview to the time the child testified in the criminal trial because she began to remember more details of the incident." The plaintiff argues that the details changed because " none of them are true" and " a jury agreed." Pl. Br. 9.
The plaintiff repeatedly argues that the hearing officer should have rejected A's allegations because a jury acquitted the plaintiff. As the hearing officer properly noted, however, an acquittal in a criminal case is not dispositive of an administrative proceeding brought on a similar factual record. ROR, Final Decision, p. 6 n.2. " Evidence of a judgment of acquittal in a prior criminal case may not be used as proof in a subsequent civil case that the act comprising the crime was not committed." In re Noel M., 23 Conn.App. 410, 425, 580 A.2d 996 (1990). The standard of proof in a criminal case requires a jury to be free of all " reasonable doubt" to convict. See State v. Reynolds, 264 Conn. 1, 105, 836 A.2d 224 (2003). In a civil case, the offense must be proved only by a fair preponderance of the evidence. See Stuart v. Stuart, 297 Conn. 26, 38, 996 A.2d 259 (2010).
Nor is the state's decision to nolle the charges based on allegations by other children, or the department's reversal of the substantiation as to those children, dispositive of A's allegations against the plaintiff. " 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." Rodriguez v. Dept. of Children & Families, Superior Court, judicial district of New Britain, Docket No. CV-15-6030088-S, (March 1, 2016, Cohn, J.T.R.). The hearing officer had a duty to evaluate the credibility of A's allegations based on the entire record before her and not to defer to conclusions of earlier proceedings. As discussed further in Section II below, the hearing officer's conclusions are supported by the record.
The court has reviewed the entire record before the hearing officer. Based on that record, it is clear that there are substantial differences in the apparent credibility of A's allegations as compared with those of the other children. A's was first in time, and from the time of her disclosure through the criminal trial, A consistently maintained that the plaintiff had touched her breasts on several occasions when he was alone with her in his office. In contrast, L was, by all accounts, a " people pleaser" with significant intellectual disabilities who could well have been influenced, however unintentionally, to make an allegation. The video of R's interview at the New Haven police station, in which his disclosure first occurred, reveals that, after he initially denied that anything had happened to him, he was aggressively questioned by a department social worker and a police officer until he finally " disclosed" that the plaintiff had touched his leg. See ROR, Exhibit 19. He later recanted the allegation altogether. ROR, Exhibit 45, p. 85; see also ROR, Exhibit 75. The fourth child, J, made his disclosure only after he had heard that the plaintiff had been arrested, and his testimony at the plaintiff's employment termination hearing was inconsistent with his initial report and his forensic interview in several respects. See ROR, Exhibit 75, pp. 31-32.
II
RELIABILITY OF A'S HEARSAY STATEMENTS
The plaintiff next argues that the hearing officer improperly applied the Merriam factors in determining that A's hearsay statements were sufficiently reliable to be admissible. In State v. Merriam, supra, 264 Conn. 617, our Supreme Court considered the constitutional requirements for the admission of hearsay evidence in a criminal trial. Under Merriam, " hearsay statements are admissible if (1) the declarant is unavailable to testify, and (2) the statement bears adequate indicia of reliability." (Internal quotation marks omitted.) Id., 634, quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Analyzing the United States Supreme Court's decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), our Supreme Court identified a number of nonexclusive factors that properly relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable. State v. Merriam, supra, 264 Conn. 639. These include: " (1) the degree of spontaneity inherent in the making of the statements; (2) consistent repetition by the declarant; (3) the declarant's mental state; (4) use of terminology not within the average ken of a child of similar age; and (5) the existence of a motive to fabricate or lack thereof." Id.
As discussed in Section III below, Ohio v. Roberts was overruled as to the use of testimonial hearsay statements against criminal defendants in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). " Outside of criminal proceedings, courts apply the pre- Crawford rule, under which an unavailable declarant's statements may be admitted as long as there is adequate indicia of reliability or other particularized guarantees of trustworthiness." In re Tayler F., 296 Conn. 524, 554, 995 A.2d 611(2010).
The plaintiff challenges the spontaneity of A's allegations on the ground that the alleged incidents occurred when she was in the fifth grade but were not disclosed until she was in the sixth grade. He argues that A was involved in counseling with the school social worker, as well as with a private counselor, throughout the 2011-2012 school year, when the abuse was allegedly occurring, but did not disclose it then. Evidence of delay in reporting, however, is not dispositive of the Merriam consideration of " spontaneity." As the hearing officer properly stated, the primary consideration in evaluating the spontaneity of a child's disclosure is whether there is evidence that a child has been manipulated by an adult to make an allegation. ROR, Final Decision, pp. 8-9. See State v. Merriam, supra, 264 Conn. 643 (" A primary consideration in ascertaining the spontaneity of a statement by a child victim of sexual abuse is whether there is evidence of prior interrogation, prompting, or manipulation by adults . . . such that one cannot confidently characterize the response as the product of the child's own perception or experience" [citation omitted; internal quotation marks omitted]).
The evidence in this case is that A's initial report was entirely spontaneous. She made her initial disclosure in a counseling setting designed to help her feel comfortable in expressing whatever feelings she experienced. There had been no discussion of " good touching" or " bad touching" or anything else that would prompt a disclosure of sexually inappropriate touching. The game prompt that elicited her statement was neutral; a child could reasonably feel ashamed of many things having nothing to do with sexual contact. In her forensic interview, A explained her own delay, in part, as resulting from her fear of the plaintiff, saying she finally " got up enough courage" to tell the school social worker about it. ROR, Exhibit 9, p. 7. The hearing officer did not clearly err in applying Merriam 's " spontaneity" factor.
The plaintiff also challenges the hearing officer's application of the " consistency" factor in Merriam . The plaintiff argues that at some times A stated that the plaintiff touched her breasts only over her clothes, but at other times, she stated that he touched her under her shirt and her bra as well. The hearing officer acknowledged these inconsistencies and reconciled them by concluding that A remembered more details as time went on. This does not entirely explain the " over/under" inconsistency. The department's investigation protocol reports that the school social worker initially reported that A told her that the plaintiff touched her " above and below her clothing." ROR, Exhibit 9, p. 5. The school principal's contemporaneous notes of A's disclosure indicate that A said that the plaintiff touched her " inside clothes and outside clothes." ROR, Exhibit 36, p. 2. At her forensic interview, however, A stated that the plaintiff touched her above her clothing. ROR, Exhibit 36, pp. 6-7. At the plaintiff's criminal trial, A testified--consistently with her first disclosures to the social worker and principal--that the plaintiff had touched her above and below her clothing. ROR, Exhibit 62, pp. 49-53.
Notwithstanding this inconsistency, the court concludes that the hearing officer did not clearly err in finding that A's statements were " sufficiently consistent to meet the Merriam standard." ROR, Final Decision, p. 9. A consistently alleged that the plaintiff touched her breasts four or five different times while she was in the fifth grade. She testified that he would do this when he was alone with her in an office with the door closed. She consistently described the manner in which he would touch her breasts. It was undisputed that the plaintiff had a private office during the 2011-2012 school year and that he sometimes met with A alone in that office with the door closed. A's statements, while not perfectly consistent in all details, are consistent in alleging at least four or five separate incidents in which the plaintiff touched her breasts over her clothes. This is, as the hearing officer concluded, sufficiently consistent to meet the Merriam standard.
The plaintiff next challenges the hearing officer's conclusion that A's " mental state was not an impediment to her ability to provide a credible report about the [plaintiff]." See ROR, Final Decision, p. 9. His analysis again focuses on A's delay in reporting the abuse, which this court has previously addressed. The hearing officer acknowledged that A had experienced auditory hallucinations. ROR, Final Decision, pp. 7, 9. The record amply supports her finding, however, that A's mental health issues did not prevent her from giving a reliable report. A had described her auditory hallucinations to her private counselor and to a psychiatrist. None of the reported hallucinations had any sexual content. The school social worker, A's private counselor, and the school principal all stated that A was articulate despite her learning disabilities and was able to report events accurately. ROR, Exhibit 9, p. 5 (school social worker); Exhibit 61, pp. 33-39 (private counselor); Exhibit 15, p. 33 (principal). The plaintiff has not shown that the hearing officer's application of Merriam 's " mental state" factor was clearly erroneous.
A first described the auditory hallucinations to her private counselor, who referred her to a psychiatrist for medication to address them. The hallucinations first occurred after a death in A's family and other traumatic events. A said she heard a boy's voice telling her to go to the basement of her house or something terrible would happen to her family. These hallucinations were fully explored in A's testimony and in her private counselor's testimony in the plaintiff's criminal trial. ROR, Exhibit 62, pp. 123-26 (A's testimony); ROR, Exhibit 61, pp. 66-71 (counselor's testimony).
Finally, the plaintiff challenges the hearing officer's finding on Merriam 's " motive" factor. The hearing officer found that " [A] had no reason to fabricate the story about the abuse . . . The child had no motivation to concoct a story as any vendetta due to poor grades or disciplinary issues with the [plaintiff], as there were no such issues." ROR, Final Decision, p. 9. The plaintiff points to evidence that A had disciplinary issues in school during the time she was the plaintiff's student. The record does reflect that A had behavioral issues, especially in the earlier grades, when she would be physically aggressive with other children or when she would attempt to run out of the school. See ROR, Exhibit 15, pp. 33-34. None of these disciplinary issues, however, were shown to be related to the plaintiff. A testified that she made As and Bs in the plaintiff's class; she said she never got bad grades, detentions, or suspensions in his class. ROR, Exhibit 62, pp. 81-82. The plaintiff has not pointed to any evidence in the record to contradict A's testimony or to show that A had any disciplinary issues with him . The hearing officer did not clearly err in finding that A lacked any motive to fabricate an allegation against the plaintiff.
In sum, the hearing officer found that A's statements met the Merriam criteria for reliability and admissibility. Her findings were not clearly erroneous. This basis for the plaintiff's appeal therefore fails.
III
DUE PROCESS CHALLENGE
The plaintiff finally challenges the final decision on due process grounds because A was prohibited by department regulation from testifying at the substantiation hearing. He asserts that he has a property interest at stake because placement on the child abuse registry will likely cost him his certification as a teacher and his ability to earn a living in his chosen profession. He claims that the inability to cross examine A in the hearing officer's presence deprived him of his right to confrontation under the Sixth Amendment of the federal constitution. He next claims that Merriam itself is based on law that the United States Supreme Court overruled in Crawford v. Washington, supra, 541 U.S. 36. Finally, he argues that cross examination of A was essential to the fair determination of the case.
The department argues, to the contrary, that litigants in administrative proceedings have a right to fundamental fairness rather than a right of due process of constitutional dimension. It contends that the Sixth Amendment right to confrontation is expressly limited to a defendant in a criminal action and that Crawford does not apply in a civil or administrative context. It next argues that the state has a compelling interest in protecting traumatized children, warranting the regulation at issue. It argues that the proceeding below met the standards of fundamental fairness. Finally, it argues that the plaintiff himself introduced hearsay evidence when he introduced the transcript of A's testimony from his criminal trial, and that he cannot offer the exhibit into evidence and then claim that the hearing officer's reliance on it was error. For the reasons stated below, the court finds these issues for the department.
First, the plaintiff claims that the administrative proceeding violated his Sixth Amendment right to confront and cross examine his accuser, A. It is well established, however, that the Sixth Amendment to the United States Constitution applies only in criminal cases. See In re Noel M., 23 Conn.App. 410, 420-21, 580 A.2d 996 (1990); Doe v. Thames Valley Council for Community Action, Inc., 69 Conn.App. 850, 854, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). An administrative proceeding is a civil action. See Frank v. Dep't of Children & Families, supra, 312 Conn. at 417-27 (analyzing vagueness challenge to the child abuse registry statute as a civil statute). The Sixth Amendment does not apply here.
The plaintiff's argument may be construed, more generally, as a claimed right to procedural due process. The court accepts, solely for the purpose of this analysis, the plaintiff's claim that as a tenured school teacher, he has a property interest in his employment that will probably be affected by his placement on the registry. See Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980) (" A teacher who is given by statute the right to continued employment except upon a showing of cause . . . acquires a property right that is entitled to protection under the due process clause" [citation omitted]). The same teacher termination panel that declined to recommend termination of the plaintiff's employment before his criminal trial expressly stated that its recommendation took into consideration the fact that two other proceedings were pending against the plaintiff: the criminal trial and the substantiation hearing. The panel observed: " Should either and/or both be found against him, it would constitute 'other due and sufficient cause' and 'moral misconduct' [under General Statutes § 10-151]. His future as a teacher is in the hands of DCF and the criminal courts. If he loses in either proceeding, he would be most likely to lose his license and be unable to teach." ROR, Exhibit 75, p. 40; see also General Statutes § 10-151(d). The department, relying on Isabella D. v. Dep't of Children & Families, 320 Conn. 215, 236, 128 A.3d 916 (2016), argues that the plaintiff's employment was not directly at issue in the substantiation hearing and that its effect on a collateral proceeding should not be considered here. Isabella D., however, did not involve the rights of a teacher accused of sexual abuse. While the plaintiff's teaching license was not directly at issue in the department's administrative proceeding, the likelihood that an adverse outcome of that proceeding would end his teaching career was substantial and, indeed, was recognized by the hearing officer. See ROR, Tr. 5/23/14, p. 213.
General Statutes § 10-151(d) provides in relevant part: " The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: . . . (3) moral misconduct; . . . or (6) other due and sufficient cause."
To the extent that the plaintiff has asserted a procedural due process challenge to the department's regulation prohibiting a child complainant from testifying in a substantiation proceeding, the court agrees that the regulation is problematic. It provides as follows: " The abused or neglected child who is the subject of the substantiation shall not testify in an administrative hearing while that child is still a minor." (Emphasis added.) Regs., Conn. State Agencies § 17a-101k-8(h). There are, in this court's view, several problems with this regulation.
First, it is based on the implicit assumption that all minors who have made allegations of abuse are in fact " abused." As a matter of logic, this is untenable. The very purpose of the hearing is to determine whether a particular allegation is more likely than not to be true.
Second, it prohibits the testimony of any child or youth under the age of eighteen. General Statutes § 54-86h, however, provides that " [n]o witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact." Children of A's age often testify about sexual abuse in criminal proceedings, as A herself did.
Third, its laudable policy objective--to prevent revictimization of an abused child--is based on the premise that testifying is inherently harmful to a child. Our Supreme Court has rejected that premise in the context of juvenile neglect proceedings. In In re Tayler F., supra, 296 Conn. 524, the court considered whether a child who was the subject of a juvenile neglect proceeding in Superior Court should be considered " unavailable" for purposes of the residual exception to the hearsay rule if testifying would cause psychological harm to the child. The court recognized that " protecting the physical and psychological well-being of children is a compelling state interest, " but it also observed that " it is by no means clear that sexually abused children are harmed, psychologically or otherwise, by the experience of testifying in the presence of their alleged abusers. To date, there is no empirical data that unequivocally supports the state's sweeping generalization that minor victims are inevitably traumatized by that experience. To the contrary, experts in child psychology who have studied sexually abused children are divided on the issue of whether they suffer undue trauma and further harm in facing the accused at trial . . . Moreover, recent studies indicate that some minor victims actually benefit from their participation in proceedings that give them a sense of power over those who have violated them and afford them a long awaited opportunity to achieve vindication." (Internal quotation marks omitted.) Id., 540. In Tayler F., the court concluded that a child is unavailable, for purposes of the residual hearsay exception, " if there is competent evidence that the child will suffer psychological harm from testifying. The court's determination must be based, however, on evidence specific to the child and the circumstances, not a generalized presumption that testifying is per se harmful." Id., 544. Contrary to the analysis in Tayler F., the department's regulation is based on a generalized presumption and does not permit any individualized analysis of the benefit or detriment to the particular child who is the subject of the proceeding.
Fourth, the department's regulation generally deprives the administrative hearing officer of the opportunity to observe the child complainant's demeanor. Courts are required to defer to the credibility determinations of administrative hearing officers in part because such officers have had an opportunity to observe the demeanor of the witnesses. See, e.g., Frank v. Dep't of Children & Families, supra, 312 Conn. at 412 (" 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" [internal quotation marks omitted]). A hearing officer in a substantiation hearing is prohibited from having that firsthand observation of the person who is arguably the most important " witness." As a result, the hearing may be replete, as this one was, with assessments of the child complainant's credibility made by others.
In the Sixth Amendment context, the Supreme Court construed " witness" to include not only those who testified in court but those who made " testimonial" out-of-court statements as well. See Crawford v. Washington, supra, 541 U.S. 36. The court recognizes that Crawford does not apply here and that A's statements to the school social worker and principal probably would not be considered " testimonial" even under Crawford . See Ohio v. Clark, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) (child's statement to preschool teachers as to source of marks on his face were not " testimonial" under Crawford because its primary purpose was not to create an out-of-court substitute for trial testimony). Nevertheless, Crawford 's conclusion that a person need not be physically present at trial to be considered a " witness" is worth noting.
See Section I, pp. 12-13.
Finally, the regulation prevents cross examination of the complainant by the accused. The court recognizes the " common-law right to due process in administrative hearings" is not " coextensive with constitutional due process." Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997). Rather, there is a right to " fundamental fairness in administrative proceedings." Id. But that right to fundamental fairness has been described as encompassing, at a minimum, " due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . ." (Internal quotation marks omitted.) Lawrence v. Kozlowski, 171 Conn. 705, 716 n.8, 372 A.2d 110 (1976); see also Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949) (" [c]ross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses" [internal quotation marks omitted]). The UAPA itself provides a conditional right of cross-examination. Section 4-178(5) provides that in contested cases, " a party . . . may conduct cross-examinations required for a full and true disclosure of the facts . . ." At least one court has held that a child abuse registry statute that entirely prohibited an alleged abuser from compelling the testimony of a child under the age of fourteen was unconstitutional. See State v. Jackson, 269 Ga. 308, 310, 496 S.E.2d 912 (1998) (recognizing protected liberty interest of " exonerated criminal defendant" whose status was affected by continued listing on child abuse registry; holding that an absolute prohibition on cross examination did not comport with due process). Whether it is viewed as an issue of fundamental fairness or as an issue of due process, the absolute and unconditional prohibition on calling a minor complainant to testify in a substantiation hearing raises considerable concerns for this court.
But the plaintiff's challenge to the regulation, in this appeal, must be considered in the context of the administrative record of this case and in the context of administrative law as developed by our appellate courts. The record reveals that the plaintiff raised this issue below only in oblique ways. He did not attempt to subpoena A, or move for permission to call her as a witness, or seek to enjoin the hearing on due process or fundamental fairness grounds. He generally did not object to the voluminous hearsay evidence introduced by the department, including, for instance, the investigation protocols, police reports, forensic interview reports, and video recordings of the forensic interviews and police interviews. He did introduce the decision from the teacher termination hearing; ROR, Exhibit 75; which strongly criticized Merriam 's reliance on hearsay evidence and stressed the importance of cross examination in finding the truth. In his post-hearing brief at the end of the administrative hearing, he mentioned the regulation that prohibited him from calling A as a witness only in a single sentence, and he did not make a due process argument at all. His strategy throughout the hearing and in his post-hearing brief was to point out the inconsistencies in A's statements and to stress her mental health issues. He himself introduced transcripts from his criminal trial. These included all of A's testimony, with extensive cross examination by his attorney, and the testimony of A's private counselor, who testified about A's mental health issues, including her auditory hallucinations. He sought to persuade the department and the hearing officer that his acquittal and his success in the teacher termination hearing conclusively established that A's statements were unreliable and should not be credited.
Our appellate courts have frequently held that the rules of evidence do not strictly apply in administrative proceedings and that hearsay is admissible if it is sufficiently reliable and probative. " [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider exhibits which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative . . . Hearsay testimony generally is admissible in administrative hearings as long as it is sufficiently trustworthy." (Citations omitted; internal quotation marks omitted.) F.M. v. Commissioner of Children & Families, 143 Conn.App. 454, 477, 72 A.3d 1095 (2013). Moreover, even in juvenile neglect or termination of parental rights proceedings, which involve fundamental liberty interests in family integrity, our appellate courts have held that there is no absolute right to confrontation or cross examination. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983) (discussing constitutional right to family integrity); In re Lauren R., 49 Conn.App. 763, 778-79, 715 A.2d 822 (1998) (stating, in termination of parental rights proceeding, that the " United States Supreme Court has recognized that competing interests may warrant dispensing with confrontation at trial" [internal quotation marks omitted]).
Applying the analysis set out in State v. Merriam, supra, 264 Conn. 617, the hearing officer determined that A's hearsay statements contained sufficient indicia of reliability. This court has concluded, above, that the hearing officer's Merriam analysis was supported by the record. In addition to challenging the hearing officer's Merriam analysis, however, the plaintiff challenges Merriam itself, arguing that it relied on Ohio v. Roberts, supra, 448 U.S. 56, which was overruled by Crawford v. Washington, supra, 541 U.S. at 68-69. Our Supreme Court and other courts have rejected an application of Crawford to non-criminal cases. See In re Tayler F., supra, 296 Conn. 554-55, citing, inter alia, Cabinet for Health & Family Services v. A.G.G., 190 S.W.3d 338, 346 (Ky. 2006).
In the case cited by our Supreme Court, the Kentucky Supreme Court presented the following persuasive analysis:
Moreover, the Merriam analysis applies only when hearsay does not fall within one of the " firmly rooted" exceptions to the rule against hearsay. See State v. Merriam, supra, 264 Conn. 634. In this case, some of A's statements could have been properly admitted under the rules of evidence--if the plaintiff had objected to their admission, which he did not--under the exception for statements made for the purpose of medical diagnosis or treatment. See Conn. Code Evid. § 8-3(5). Our Supreme Court has held that the medical treatment exception applies to statements made by a sexual assault victim to a social worker acting within the chain of medical care. State v. Cruz, 260 Conn. 1, 6, 792 A.2d 823 (2002). In this case, A's statements in the forensic interview were made at least in part to determine what additional treatment she might need. See ROR, Exhibit 16 (forensic interview report); see also State v. Donald M., 113 Conn.App. 63, 67-71, 966 A.2d 266, cert. denied, 291 Conn. 910, 969 A.2d 174 (2009).
Finally, in light of all the evidence in the record, the court cannot conclude that the defendant was deprived of fundamental fairness. The plaintiff did not assert a challenge to the regulation during the administrative proceeding. The video recording of A's forensic examination was introduced without objection. ROR, Tr. 5/5/14, pp. 2-7; ROR, Exhibit 18. That recording afforded the hearing officer at least some opportunity to assess A's demeanor and attitude. The plaintiff introduced A's testimony from his criminal trial into evidence. ROR, Exhibits 60, 62. At that trial, A was subjected to extensive cross examination by the plaintiff's criminal defense attorney. ROR, Exhibit 62, pp. 94-180. The plaintiff also introduced, over the department's objection, the criminal trial testimony of A's private counselor. See ROR, Tr. 11/30/15, pp. 4-7; ROR, Exhibit 61. Even if these exhibits had been the only evidence in the administrative hearing, they would have provided a substantial basis for the hearing officer's finding that A's statements were credible. The voluminous record demonstrates that the hearing officer recognized the significance of the substantiation to the plaintiff. See, e.g., ROR, Tr. 5/23/14, p. 213. The record reveals that she reviewed the evidence carefully, thoroughly, and thoughtfully. The hearing was conducted in a manner that was fundamentally fair. The plaintiff has not met his burden of showing that his substantial rights have been prejudiced by the administrative proceeding.
CONCLUSION
There is substantial evidence in the administrative record to support the department's findings of basic fact, and the conclusions drawn from those facts are reasonable. The plaintiff has not shown that the department acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Accordingly, the appeal is dismissed.
Q: Okay, and then when you were back with [A], just again if you could, how the conversation unfolded? [Social worker] A: So I asked her what she was ashamed of and she said people have touched her. She talked about the aunt's friend and then she talked about the peer that was there the year before, touching her inappropriately, and then she said, someone else in the building had touched me, and when asked who, she said, Mr. Schmitt. Q: Okay. Now first of all, the peer the year before I think you said there were some issues with him the prior year? A: Yes. Q: And did those issues involve just [A] or involve other children? A: Other children. Q: Okay. A: Yes. Q: Prior to that time were you aware that he may have touched her? A: No. I knew that he made comments to her and bothered her. I was not aware that he touched her inappropriately.ROR, Exhibit 15, pp. 97-98; Department's Brief, p. 15.
A civil litigant's right of confrontation and cross-examination is grounded in the Due Process Clauses of the Fifth and Fourteenth Amendments. Willner v. Comm. on Character and Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963) (" [P]rocedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood"); Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir. 1981). However, confrontation and cross-examination are not rights universally applicable to civil proceedings. Vitek v. Jones, 445 U.S. 480, 494-96, 100 S.Ct. 1254, 1264-65, 63 L.Ed.2d 552 (1980) (prisoner being transferred to mental hospital for involuntary psychiatric treatment may be denied right to confront and cross-examine witnesses upon finding of good cause); Wolff v. McDonnell, 418 U.S. 539, 567, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974) (right to confront and cross-examine witnesses may be denied in inmate civil rights proceeding challenging constitutionality of prison disciplinary proceedings); United States v. Alisal Water Corp., 431 F.3d 643, 658 (9th Cir. 2005) (" [I]n the context of a civil suit, cross-examination is not, in every instance, a sine qua non of due process. It all depends on the situation") (quotations omitted). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). Due process requires only that the evidence be " reliable, " and " reliability can be inferred without more in a case where evidence falls within a firmly rooted exception to the hearsay rule." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), overruled as applied to criminal cases by Crawford. See also United States v. Medico, 557 F.2d 309, 314 n.4 (2d Cir. 1977) (Admission of hearsay statements " turns on due process considerations of fairness, reliability and trustworthiness. Experience has taught that the stated exceptions now codified in the Federal Rules of Evidence meet these conditions"); Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193, 1198 (1990) (" Evidence which would be admissible under standard evidentiary rules is presumptively reliable"). Prior to Crawford, it was almost universally held that the right to personally confront and cross-examine witnesses was not required in a civil action to terminate parental rights. The jurisdictions that have considered the issue after Crawford was decided have held that Crawford has no application to those or similar cases.(Footnotes omitted.) Cabinet for Health & Family Services v. A.G.G., supra, 190 S.W.3d 345-46.