Opinion
No. HHB CV 03-0524108 S
April 4, 2006
MEMORANDUM OF DECISION
Plaintiffs Therese B. ("Therese") and Catherine R. ("Catherine") appeal from final decisions of a hearing officer of the defendant Commissioner of the Department of Children and Families ("DCF") affirming the substantiation of Therese and Catherine as the perpetrators of emotional negligence upon four minor children, Sarah B. and Susan B. (the children of Therese) and Caitlin R. and Hannah R. (the children of Catherine). By agreement of the parties the substantiation hearings were held at the same time and the hearing officer rendered decisions in each case affirming findings of emotional neglect but reversing findings of physical neglect. The plaintiffs filed a timely appeal from the hearing officers decision pursuant to General Statutes § 4-183.
In these matters, the hearing officer found the following facts: In 2003, Therese and Catherine were "partners" for approximately three years, living in the same household with their children. Each of them have two daughters, issue of prior relationships which terminated in dissolutions of their respective marriages. The four children are Therese's children, Sarah B., then fourteen years old, and Susan B. then eleven years old, and Catherine's children, Caitlin R., then eleven years old, and Hannah R., then seven years old. On April 27, 2003 the local police were called to the family home in response to a call claiming that a dispute over a credit card and a purse between Therese and Catherine had turned physical. None of the children were in the home at the time of the dispute. The police department arrested both Therese and Catherine on charges of disorderly conduct. Lieutenant Nancy Gillon notified the Department of Children and Families ("DCF") of the arrests and included the information that Therese and Catherine were trying to become foster parents.
P.A. 05-10 authorizing civil unions between persons of the same sex did not take effect until October 1, 2005. At the relevant time, 2003, Connecticut law did not provide for a method for same sex partners to legally confirm their relationship.
THE INVESTIGATION PROTOCOLS
The substantive exhibits accepted into evidence at the hearing included an Investigation Protocols prepared and offered by DCF (ex. 5). The protocols for both plaintiffs found the risk assessment for their children to be "moderate" based on the following safety factors — "E. Adult caretaker(s) is (are) in a relationship characterized by some level of threat or violence"; and "J. Adult caretaker(s) does (do) not take responsibility for protection and care of child(ren) and minimization of child abuse/neglect." The report for Catherine also found the an additional risk factor — "I. Primary adult caretaker permits adults who engage in behavior harmful to the child(ren) access to the home."
The protocols based these conclusions on the following investigation. In response to a call from Catherine, the local police went to the family home on Sunday, April 27, 2003 to investigate her report that a verbal argument had turned physical. The police found that Catherine had "some little redness on her hand from a struggle over a pocket book." The police reported that three of the four children living in the household were playing in the yard while the fourth was at a friend's house. The police reported that the "Children were not involved and none of them hurt." However, the police report also stated "Perpetrator has direct access to children. Past emotional abuse reported. Fathers (sic) are involved in children's lives." The police placed both Catherine and Therese under arrest for disorderly conduct.
On the day of the incident Catherine informed Gary R. ("Gary"), the father of Caitlin and Hannah, of the incident and her arrest. On the next day, Monday, April 28, 2003, the cases were assigned to Patricia Donnelly, a social work investigator by her supervisor at DCF, Leslie Roy. On the same day Gary called DCF and was able to establish contact with Donnelly. A meeting between Donnelly and Gary was arranged for later the same day. Gary told Donnelly that his daughter, Caitlin, had told him that she no longer wished to reside with her mother and Therese because they fight all the time. He also reported that Hannah had told him of an incident a few months earlier when Therese reportedly hit Catherine on the hand. Gary gave Donnelly permission to interview Caitlin at her school. Donnelly proceeded to Caitlin's school where she interviewed Caitlin in the presence of the school principal.
A. CAITLIN'S INTERVIEW
Caitlin reported to the investigator that she did not witness the altercation between her mother and Therese, but that her mother told her it occurred because Therese took personal property belonging to her. Caitlin stated that her mother and Therese "fight, yell and scream all the time." and call each other "bad names." Caitlin told the investigator she was afraid that Therese will injure her mother. Caitlin also reported that Susan and Sarah had told her that in January 2003 Therese and Catherine were fighting in their room while Caitlin and Hannah were away. Susan and Sarah told Caitlin that they had heard "banging and fighting." Susan told Caitlin that Catherine asked her to call the police, but she did not do so because she was afraid to leave the door. When Therese and Catherine realized that children were outside the door the altercation came to an end. Caitlin reported that everything was "fine" at her father's home. She had spoken with him concerning her fears for her mother's safety. Caitlin described Therese as often being in a "bad mood" and reported that fighting between her mother and Therese "has gotten worse now and is almost daily." The investigator reported that Caitlin was crying during the interview. Donnelly attributed the crying to Caitlin's fear for her mother's safety.
B. FOLLOW UP WITH CAITLIN'S SOCIAL WORKER
After Caitlin's interview, Donnelly discussed the situation with the principal who agreed to refer Caitlin to the school social worker to determine whether counseling might be helpful.
C. TELEPHONE CONFERENCE WITH CATHERINE
Later that day, Donnelly established contact with Catherine who informed her that Therese was employed by DCF at a resident facility. Donnelly discussed Therese's employment with Leslie Roy. The matter was also discussed with program supervisor Antonio Donis. DCF "secured" the files, but took no action to comply with DCF Policy Manual 33-16-20 which requires that investigation involving DCF personnel be referred to the Special Review Unit.
D. THE HOME VISIT OF APRIL 30, 2003
The investigator visited the family home on April 30, 2003 and interviewed Therese and Catherine separately. They both reported that things had "settled down" since the incident of April 28, 2003. The couple was interviewed separately. Catherine reportedly views herself as a victim of Therese's attempts to control their relationship. She stated that she does not believe that the children have been affected by her difficult relationship with Therese. She reported that she had been verbally and physically abused by Therese on several occasions, involving pushing, kicking, punching and slapping. She stated that although she fears for her well being, she had no concerns regarding the children's safety.
In her separate interview Therese claimed that the disagreements between her and Catherine had arisen because of Catherine's lack of honesty regarding financial issues and other matters of trust. She claims that on at least two occasions, Catherine had used physical force on her. She stated that she did not believe that her relationship with Catherine probably had a future.
E. SUSAN B.'S INTERVIEW
On April 30, during the course of the home visit, the investigator met with Susan alone. Susan reported that she did not witness the recent incident involving the pocket book, but that Catherine had told her about it. Susan also confirmed the January incident involving "banging, yelling and screaming" beyond a locked bedroom door. She stated that her mother and Catherine fight and argue often and are always yelling at each other. When they fight she feels bad and is afraid that one of them will hurt the other. Susan reported that she has a strong relationship with Catherine and is afraid that she will lose that relationship if her mother and Catherine break up. The investigator reported that Susan cried during a portion of the interview.
F. SARAH B.'S INTERVIEW CT Page 6207
During the same home visit, the investigator interviewed Sarah alone who confirmed her sister's report of the January incident and stated that she was scared at the time. She states that her mother and Catherine fight a lot and that it is usually her mother who starts the fights. She feels that her mother is often in a bad mood because she frequently works double shifts and does not get enough sleep.G. HANNAH R.'S INTERVIEW
The investigator also met with Hannah alone on April 30, 2003. Hannah was not present at either the April 28, incident or the January incident. She is sad when there is fighting and sometimes thinks it is because of her. Caitlin and Hannah were not at home during the January 2003, incident by learned of it from Therese's children. Hannah reportedly fears for her mother's safety when Therese is in a bad mood.
H. FOLLOW-UP WITH FAMILY RELATIONS
Following their arrests on charges of disorderly conduct, Catherine and Therese were referred to the family relations officer at the Superior Court in Rockville. Thereafter, they met several times with a counselor for anger management discussions. At the same time Catherine was also seeing a therapist, but she did not attend all the sessions recommended by the therapist. During this time, both Catherine and Therese were dissatisfied with the treatment they received from family relations officers and claimed that such treatment and the arrests by the local police were the result of bias because of their sexual preference. The investigator reported to DCF that both Catherine and Therese were uncooperative with their counselors.
In their brief the plaintiffs claim that the criminal charges against them were "rolled and since dismissed by the state's attorneys in Rockville." In the brief filed on behalf of the defendant Commissioner, the Attorney General correctly points out that the record does not contain such evidence.
I. OTHER EVIDENCE
The investigator confirmed that the children attended school regularly and that there were no reports of any problems with respect to their behavior. She had contacted the children's physician who had nothing negative to report. It does not appear that the investigator had more than a single interview with any of the children. Nor does it appear that any other person acting on behalf of DCF interviewed, examined or evaluated any of the children. CT Page 6208
J. CONCLUSIONS IN PROTOCOLS
The Investigation Protocols concluded without any further investigation regarding the children, that charges of emotional and physical neglect of the children by Therese and Catherine "will be substantiated." The Protocols found that Catherine had: "failed, whether intentionally or not, to maintain a safe living environment for her children;" "exposed her children to acts of family violence that have adversely impacted the children emotionally and physically." The Protocols further found that Therese had exposed her children to "acts of family violence that have adversely impacted the children emotionally and physically." The protocols do not address the failure of DCF to follow its policy manual with respect to Policies 34-3-5 (requiring that children be interviewed in the presence of a disinterested adult) and 33-16-20 (requiring referral to Special Review Unit of matters involving DCF employees) or set forth any facts justifying such failures.THE TRANSCRIPT OF HEARING
The record contains a transcript of the substantiation hearing held on August 11, 2003 in Willimantic before hearing officer, Dale H. King. The plaintiffs appeared pro se while the defendant was represented by counsel. The transcript of that hearing is very spotty and often completely garbled.
See, for example the following extracts from page 28 involving Donnelly's testimony regarding her interview with Caitlin at her school.
Q. During your interview with Caitlin, did you say anything to her that you believe (unintelligible) some harm had occurred to Ms. R . . . or Ms. B . . . and that's why you were talking to her?
A. I had asked her if she knew why the police (unintelligible). She knew (unintelligible), and that's when she informed me of what she knew to be true of what had taken place —
Q. I see.
A. (unintelligible)
A. DONNELLY'S TESTIMONY
The transcript includes the testimony of investigative social worker, Patricia Donnelly. According to her testimony, on the morning of April 28 after she was assigned the case but before she had commenced her investigation she received a phone call from Gary, the father of Caitlin and Hannah. She invited Gary to come to her office where she met with him. Gary suggested to her that Caitlin be interviewed at her school rather than at home because she "wouldn't get the same kind of response if I met with her at home." Gary also told Donnelly that he had lived with Catherine and Therese before moving to his own apartment. After finishing her meeting with Gary, Donnelly went to Caitlin's school where she conducted the first of the interviews with the children reported in the Protocols. She reported that before interviewing Caitlin she told her that she had spoken to her father that morning and that he had given her permission to speak with her.
In addition to the evidence in the protocols, Donnelly testified that she had spoken with Mr. B, Therese's former spouse. Mr. B. informed her that Therese had an "explosive or violent nature." Donnelly also testified that the children fear that their home was going to be ripped apart as a result of the disagreements between Catherine and Therese and the DCF investigation. Finally, Donnelly testified that she had no basis for her conclusions with respect to neglect other than those contained in the protocols.
When Catherine attempted to cross examine Donnelly on the failure to refer the investigation to the Special Review Unit as required by DCF Policy Manual 33-16-20 the transcript shows hearing officer intervening sui sponte to stop that line of inquiry. The hearing officer stated:
All right. And even if it did, they did the investigation, and somebody else did, I would still — I would still be doing the hearing. So as to whether — from my perspective, it's not relevant as to whether you neglected the children or not. I mean, I do know — I would have expected an employee to — for the Special Investigations Unit to have done that, but for whatsoever reason, I (unintelligible)
These remarks foreclosed any opportunity to for the plaintiffs to explore the existence of any reasons which might justify the failure to follow the requirements of the Policy Manual.
Later in her cross examination of Donnelly, Catherine attempted to explore why, if as a result of her conversations with Gary and Caitlin, Donnelly had come to believe that domestic violence was involved in the household, Donnelly had not abided by DCF Policy Manual 34-3-5.2. The policy requires that a social worker have a co-worker accompany them on a home visit when domestic violence indicators were present. Again the hearing officer intervened sui sponte. Before Donnelly could answer he stated: "Be that as it may, its not going to affect my decision one way or the other."
Catherine also attempted to cross examine Donnelly regarding the more than thirty-day delay between the completion of the investigation and the filing of the Protocols. Catherine asked:
Q. On the 3rd of June, you stated both you and your supervisor, Leslie Roy, agreed to open the case due to emotional and physical neglect of the children.
What factual evidence, besides a child's statement and your independent recollection did you have to substantiate the allegations?
The defendant's attorney objected on the ground that Ms. Roy was present and would be the best person to answer that question. The hearing officer sustained the objection agreeing completely with defendant's counsel: "Okay, I'll sustain the objection in that I think Ms. Roy is here to testify as to why they substantiated and is probably the person that's really made the decision, or was more involved with making the decision."
When Catherine attempted to examine Donnelly concerning a meeting with Therese on June 2 in which domestic violence and its effect on the children was discussed, the hearing officer again intervened:
Let me offer some guidance, if I can, in that you may be very interested in that and unclear as to what happened there, or the Department's interpretation of the interaction at that juncture. I don't really care, because I care about what happened in January. I care about what happened in January. I care how it's impacted your children. And, that's what I'm going to really base the decision on.
B. ROY'S TESTIMONY
The transcript also includes the testimony of Donnelly's supervisor Leslie Roy. She testified that she approved of the substantiation based solely on the information contained in the protocols. She stated that the interviews with the children were "the primary focus for our rationale [in finding an emotional impact on the children]." She justified the determination that there had been a negative impact on the children on the concerns they expressed over Catherine's safety. She also speculated that the children's physical safety could have been at risk, if they have attempted to break up a physical fight between Catherine and Therese. Neither the defendant nor the plaintiffs questioned Roy concerning the noncompliance with provisions of the DCF Policy Manual. CT Page 6211
C. CATHERINE'S TESTIMONY
Catherine testified that the children told her that the questions asked by Donnelly during their interviews upset each of them individually. On cross-examination she stated that her ex-spouse was very bitter over their divorce and the fact that he had been unsuccessful in obtaining sole custody of the children. She believed that he might exaggerate statements made to him by his daughters. Therese chose not to testify.THE HEARING OFFICER'S DECISIONS
On September 11, 2003, the hearing officer issued his decisions. In both cases he found that the allegations of physical neglect were not substantiated, but upheld the allegations of emotional neglect of the four children. Certain findings of fact set forth in the separate decisions of the hearing officer are, for all intents and purposes, identical. The hearing officer found that: "The Appellant and her partner engaged in frequent loud verbal disputes heard by all of the children. They also engaged in two physical altercations. The Appellant contends that their altercations and disputes were not domestic violence because neither she nor her partner was trying to establish control over the other person. But irrespective of what it is called, the Appellant participated in the creation of an atmosphere where the children were afraid for [her safety]/[the safety of her partner]. (The children did not express fear for their own safety.) The verbal fighting was loud and frequent. While the two physical altercations did not result in serious injuries being sustained (according to police — a little redness on the hand of the Appellant) the Appellant told all of the children her version of the fighting and disputes and instilled a fear in the children that she could get hurt." In the case of Catherine the hearing officer added a footnote to his decision stating: "Little is known of the extent of the physical altercations between the Appellant and her partner. But it is quite likely that the fear for the safety of the Appellant by the children is unwarranted. The only known injury from the two physical altercations was redness on the hand of the Appellant from a tussle over the pocket book that contained the credit card."
Although the hearing officer referred to redness on the hand of the "Appellant" in both decisions, the record is clear that only Catherine experienced such redness.
With respect to Therese, the hearing officer concluded that: "The Appellant had a responsibility to the children not to engage in conduct that produced fear in the children that family members might get hurt. And when disputes do arise, the children need to be given emotional support, nurturance, (sic) and solace by both of the adults to alleviate their fears of physical harm. Because (1) the Appellant did not engage in such activity, (2) there was a pattern of frequent verbal disputes highlighted by two physical altercations, and (3) the children were fearful for the safety of the Appellant's partner, the Appellant denied all four children proper care and attention. And the Department has proven an adverse impact of the children with their tears and stated concerns for the partner's safety. The Department has met its burden and shown by a preponderance of the evidence that the Appellant has denied Caitlyn (sic) Hannah, Susan, and Sarah proper emotional care and attention resulting in an adverse impact on them. Therefore, the decision by the Department to substantiate the Appellant as a perpetrator of emotional neglect of the four children is upheld." (Emphasis in original.)
With respect to Catherine, the hearing officer concluded that "The Appellant denied all four children proper care and attention because there was a pattern of frequent verbal disputes highlighted by two physical altercations and then telling the children about the fighting in such a manner that she created a fear in the children that should not exist. And it is that fear that is the adverse impact of the children that is the final element to be proven by the Department. The Department has met its burden and shown by a preponderance of the evidence that the Appellant has denied Caitlyn (sic) Hannah, Susan, and Sarah proper emotional care and attention resulting in an adverse impact on them. Therefore the decision by the Department to substantiate the Appellant as a perpetrator of emotional neglect of the four children is upheld." (Emphasis in original.)
THE PLAINTIFF'S APPEAL
Together the plaintiffs filed a pro se appeal of the decision of the hearing officer to the Superior Court in accordance with the provisions of General Statutes § 4-183, alleging: that "the defendants have failed to make an objective decision regarding the . . . plaintiffs"; that "the defendants have acted in an abusive manner toward the plaintiffs, including, but not limited to, malicious intent, sexual discrimination, biased and preconceived prejudice"; that "the defendants have acted in a negligent manner toward the plaintiffs by failing to follow DCF policy, failure to render objective decision making process, failure to obtain and utilize fact-finding process"; that "the defendants have wilfully presented inaccurate information, both in the reported record as well as under oath during testimony"; and that "the defendants maliciously sought to invent, manipulate and misrepresent facts to pursue an erroneous, prejudicial, pre-conceived conclusion as opposed to following proper DCF protocol and gathering data to form a fact-finding, objective, unbiased conclusion."
Counsel later appeared for the plaintiff and filed a memorandum of law in support of the appeal. Unfortunately, the memorandum of law repeatedly and consistently misstated the holdings of virtually every case cited and proved of little value to the court.
The plaintiffs did not request a hearing to offer evidence outside of the record to support the allegations of their complaint that the defendant's employees acted with actual malice and prejudice against them as they might have under General Statutes § 4-183(i). The trial of these cases was delayed by the frequent unavailability of the plaintiff's counsel or his clients.
An October 7, 2004 court hearing on the plaintiffs' appeal was delayed under the provisions of the Service members Civil Relief Act 50 U.S.C. app. §§ 521 et seq., when evidence was presented showing that Therese, a nurse in the Army Reserve, was then serving on active duty in Iraq.
Eventually, on March 3, 2006 plaintiffs' counsel appeared for a hearing on the issue of aggrievement without his clients. Counsel for the defendant and the plaintiffs agreed that the record supported the plaintiffs' claims of aggrievement and stipulated that the plaintiffs were, in fact, the mothers of the minor children referred to in the decision. Based upon this stipulation and the undisputed facts set forth in the record, the court found that the plaintiffs were aggrieved and the case was submitted to the court for decision.
STANDARD FOR JUDICIAL REVIEW
Judicial review of administrative decisions is governed by General Statutes § 4-166 et seq., the Uniform Administrative Procedures Act. The scope of that review is very limited. MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). With respect to issues of fact the substantial evidence rule governs judicial review. 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 it finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions or decisions are: . . . (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 . . ."
"Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." New England Cable Television Ass'n, Inc. v. Dept of Public Utility Control, 247 Conn. 95, 118, 717 A.2d 1276 (1998).
EMOTIONAL NEGLECT
In making his decision upholding the substantiations of emotional neglect, the hearing officer considered and included in his decisions the following operational definitions set forth in the DCF Policy Manual 34-2-7.
A child may be found neglected who:
— Has been abandoned
— Is being denied proper care and attention physically, educationally, emotionally or morally
— Is being permitted to live under conditions, circumstances or associations injuries to his well-being
— Has been abused.
" Emotional neglect is the denial of proper care and attention or failure to respond to a child's affective needs by the person responsible for the child's health, welfare or care which has an adverse impact on the child or seriously interferes with a child's positive emotional development. Examples of emotional neglect include, but are not limited to, the following:
— having inappropriate expectations of the child given the child's developmental level
CT Page 6215
— failure to provide the child with appropriate support, attention and affection
— permitting the child to live under conditions, circumstances or associations injurious to his well-being including, but not limited to the following:
— substance abuse by the person responsible for the child's health, welfare or care; or by a person entrusted with the child's care which adversely impacts the child emotionally
— psychiatric problems of the person responsible for the child's health, welfare or care; or of a person given access to the child; or a person entrusted with a child's care which adversely impacts the child emotionally
— exposure to family violence which adversely impacts the child emotionally.Possible indicators of adverse emotional impact may include, but are not limited to, the following:
— failure to thrive
— depression
— withdrawal
— low self-esteem
— severe anxiety
— fearfulness
— aggression
— overly passive/compliant
— emotional instability
— sleep disturbances CT Page 6216
— physical complaints with no medical basis
— inappropriate behavior for age or development
— suicide attempts or discussions
— extreme dependence
— underachievement
— inability to trust
— stealing
— other forms of abuse present or suspected
Whether or not the adverse impact has to be demonstrated is a function of the child's age, cognitive abilities, verbal ability and developmental level. Adverse impact may not be required if the action/inaction is a single incident which demonstrates a serious disregard for the child's welfare."
In his decisions, the hearing officer stated that he also considered the following statutes:
— General Statutes § 46b-120(9) "a child or youth may be found `neglected,' who (A) has been abandoned, or (B) is being denied proper care and attention, physical, 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, or (D) has been abused"
— General Statutes § 17a-106b "(a) The state of Connecticut finds that family violence can result in abuse and neglect of the children living in the household where such violence occurs and that the prevention of child abuse and neglect depends on coordination of domestic violence and child protective services.
(b) The Commissioner of Children and Families may consider the existence and the impact of family violence in any child abuse investigation and may assist family members in obtaining protection from family violence.
FAILURE TO COMPLY WITH DCF POLICY MANUAL REQUIREMENTS
The hearing officer's findings of emotional neglect of the children, within the foregoing statutory and regulatory provisions, are based entirely upon the investigation conducted by Patricia Donnelly. In turn her findings of neglect are founded entirely upon her interviews with the children. The protocols do not record any evidence from the children's school or healthcare providers corroborating such emotional neglect. The contents of the children's interviews are called into question because of Donnelly's failure to follow the requirements of the DCF Manual with respect to the presence of a disinterested adult at the interviews and the failure of DCF to follow the requirements of the DCF Manual by referring the investigation to the Special Review Unit.
Policy 34-3-5 entitled "Field Response" provides in relevant part:
The investigator shall conduct an interview with the child victim as follows: . . .
If consent is not required to conduct the interview, such interview shall be conducted in the presence of a disinterested adult unless immediate access to the child is necessary to protect the child from imminent risk of physical harm and a disinterested adult is not available after a reasonable search.
IN ALL SITUATIONS, THE CHILD SHALL BE INTERVIEWED APART FROM THE PARENT OR PERSON RESPONSIBLE FOR THE CHILD. (Emphasis in original.)
In its brief, the defendant acknowledges non-compliance with this policy, but claims, "No disinterested third party was available. If the Investigative Social Worker had waited until a disinterested party was available, further delay would have ensued and much of the freshness of the children's statements would have been lost."
There is no evidence in the record that a search was conducted for a disinterested adult or that such an adult was unavailable. The record shows that some of the time which Donnelly might have been spent finding a disinterested adult was instead devoted to meeting at her office with Catherine's former spouse who, although was not a witness to the April 27 incident, had injected himself into the investigation. Three of the children were interviewed on April 30, fully two days after the case was assigned to Donnelly. From her initial investigation Donnelly was aware that the events of April 27 did not directly involve the children or suggest that they were in danger of imminent harm. If the court were to ignore the disregard of the Policy 34-3-5 under the non-exigent circumstances of this case, it would be rendering the policy meaningless under practically all conceivable circumstances.
Policy 33-16-20 entitled "Reports of Abuse or Neglect Concerning a Departmental Employee" promulgates the following policy:
Reports of abuse, neglect or in danger of abuse which are received at Hotline during the hours when regional offices are closed and which involve a Department employee as the suspected perpetrator shall be investigated by the Hotline investigator if circumstances and response time criteria so indicate.
Such situations involve the Department employee and
his/her own children
or
a child receiving services from the Department, including clients residing in a Department operated facility.
At the beginning of the next working day, the Hotline investigator shall forward all documentation and other data obtained during his/her investigation to the Special Review Unit for re-assignment to a regional office investigator or Special Review investigator.
In its brief, the defendant acknowledges non-compliance with this policy, but claims, "The purpose of the Special Review Unit is to prevent the investigation from being completed by someone who has a personal or business relationship with the Suspected perpetrator." The record does not contain any evidence supporting this claim, nor has the defendant submitted any other substantiation for it.
Not all errors in the administrative processes require reversal of the decisions reached. Under General Statutes § 4-183(j) it is only when the court finds that substantial rights have been prejudiced by administrative proceedings, that the court can sustain an appeal.
The hearing officer's findings of emotional neglect of the children have potentially far-reaching prejudicial consequences for the plaintiffs. A number of our statutes and regulations impose restrictions or disabilities on individuals who have had allegations of child neglect substantiated against them. These include General Statutes § 17a-28(f) (requiring the disclosure of otherwise confidential DCF records [including substantiations of child abuse or child neglect] to many government agencies without first obtaining the consent of the persons named in such records): Connecticut Regulations § 17a-145-521(a)(6) and § 17a-150-110(a)(6) (prohibition against license or approval as a foster family or prospective adoptive family); Connecticut Regulations § 17a-145-152(b)(6) and § 17a-150-110(b)(6) (prohibition against renewal of license or approval as a foster family or prospective adoptive family); Connecticut Regulations § 17a-126-3(e)(1)(F) (automatic denial of approval as a subsidized guardian); Connecticut Regulations § 17a-150-71(b)(6) and (c)(6) (prohibition of employment or work as a volunteer for child placement agency). Consideration of the potential impact of such collateral consequences may well be the reason for the regulatory requirement that abuse/neglect allegations involving DCF employees be referred to the Special Review Unit of DCF.
Our Supreme Court has held that the "reasonable possibility" such collateral consequences constitute sufficient interest to defeat a claim of mootness. Williams v. Ragaglia, 261 Conn. 219, 802 A.2d 778 (2002). In that case the court also noted that a revocation of a license for foster child care implicated the mandatory reporting provisions of General Statutes § 17a-28, 261 Conn. at 229.
HARMLESS ERROR ANALYSIS
"Harmless error analysis is available in the administrative context. The [UAPA] provides that if an individual's substantial rights have been prejudiced, the case should be remanded unless but one conclusion is required by law. General Statutes § 4-183(j) and (k) . . . [If the evidence supports only one conclusion as a matter of law, then despite the hearing officer's error the result should be affirmed . . ."] Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 110-11 (1996).
When an agency violates its own regulations the court is faced with two issues. The first issue, is which party bears the burden of proving or disproving whether an individual's substantial rights have been prejudiced by the violation. Secondly, the court must determine the issue of prejudice. In Henderson v. Department of Motor Vehicles, 202 Conn. 453, 521 A.2d 1040 (1987) the court determined that when an administrative hearing officer violated rules against ex-parte communications a presumption of prejudice would arise and the burden of rebutting that presumption would fall on the agency. See also Martone v. Lensink, 207 Conn. 296, 305, 574 A.2d 803 (1988) in which the court noted that a party before an administrative agency is entitled to both substantive correctness and procedural fairness. With respect to procedural irregularities the court stated: ". . . the appropriate inquiry regarding a prejudice to the appellant's right must focus on whether the agency's decision making process was irrevocably tainted so as to make the ultimate judgment of the agency unfair." (Internal quotation marks omitted.) 207 Conn. at 306.
The issues in this case are different from those arising in Henderson and Matrone both of which involved the statutory prohibition against ex-parte communications by the hearing officer under General Statutes § 4-181. In this case the violations are those of policies, not of statutes. The record in this case does not contain any evidence explaining the circumstances which led the defendant to disregard its own policies and procedures in two important respects. However, this court need not determine whether the defendant had the burden of showing that the violations of its own policies did not prejudice the substantial rights of the plaintiffs or if the plaintiffs had the burden of demonstrating such prejudice.
The record contains no evidence showing that the defendant addressed the policy violations or presented evidence of any justification for such violations which may have existed. However, the transcript demonstrates that when the plaintiff sought to question the defendant's witnesses with respect to those polices, the hearing officer repeatedly intervened to prevent or discourage the inquiry. If the defendant had the burden of showing lack of prejudice, the defendant failed to sustain it. If the plaintiffs had the burden of demonstrating prejudice, then the hearing officer denied them a fundamentally fair hearing by preventing any inquiries into the policy violations. In either event, the court cannot conclude that the record is sufficient to allow the court to engage in a "harmless error" analysis.
CONCLUSION
The court concludes that the defendant denied the plaintiffs the fair and just investigation and hearing to which they were entitled under the General Statutes and the defendant's regulations. The court further finds that substantial rights of both plaintiffs have been substantially prejudiced by the defendant's action. These findings require that the court sustain the appeal and remand the case for further proceedings.