Opinion
No. CAO10129
November 28, 2001
INTRODUCTION
Pursuant to G.L.c. 90, § 34M, the plaintiffs, Thanh T. Tran ("Tranh"), Nancy Nguyen ("Nancy"), ppa Hoang Nguyen ("Hoang") and Loan T. Pham ("Pham"), bring this action to recover personal injury protection ("PIP") benefits, costs and attorneys fees for injuries arising out of an automobile accident alleged to have occurred on January 6, 1998, on Dorchester Street in Worcester, Massachusetts. At the time of the collision, the 1994 Nissan Altima ("insured vehicle"), which bore plaintiffs, was owned by Cuc Thi Pham ("insured") and insured by the defendant, Commerce Insurance Company ("Commerce").
The plaintiff, Nancy Nguyen, is a minor who brings this action by and through her mother and next friend, Hoang Nguyen, of Worcester, Massachusetts.
Commerce now moves for summary judgment on the grounds that plaintiffs Tranh, Nancy and Pham, are precluded from recovering because they breached the conditions precedent to recovery under the Policy by refusing to appear for scheduled Independent Medical Examinations ("IME") and scheduled examinations under oath. For the reasons stated below, Commerce Insurance Company's motion for summary judgment is ALLOWED.
FACTS
The plaintiffs Tranh, Nancy and Pham claim that they were injured on January 6, 1998, when a City of Worcester police cruiser, operated by Officer Frances Assad, struck the insured vehicle. Tranh was operating the insured vehicle and Nancy and Pham were passengers at the time of the accident. According to the report of Officer Logan, a witness to the accident, the Insured vehicle struck Officer Assad's police cruiser while the police cruiser was stopped.
On January, 7, 1998, Commerce received its first notice of the accident from the insured. At that time, Commerce was aware of Officer Logan's report indicating that Tranh was the operator, and only occupant, of the insured vehicle. On January 14, 1998, and March 2, 1998, PIP forms were sent by Commerce to Tranh. Neither of the PIP forms were, however, returned to Commerce. On January 14, 1998, and March 2, 1998, Commerce also made requests for an accident description. Again, Tranh did not respond to either of those requests.
In a letter dated April 8, 1998, Commerce received notice from plaintiffs' counsel that there had in fact, been three individuals in the insured vehicle and that all three occupants were injured in the collision. On April 9, 1998, the plaintiffs' attorney forwarded correspondence to Commerce, reciting that he represented Pham and that the loss occurred due to the negligence of his client Tranh. On April 29, 1998, Commerce received PIP applications for Tranh, Nancy and Pham, indicating that all three had been injured and were seeking chiropractic treatment as a result of the January 6, 1998 collision.
Plaintiffs' counsel claims that this was a form letter sent by mistake, a fact subsequently conveyed to Commerce. Plaintiffs' attorney also represents Hoang and Tranh in this loss.
Following notice of the incident, Commerce commenced an investigation. As part of its investigation and pursuant to the Massachusetts Automobile Insurance Policy (6th ed.) ("Policy") It had issued to the insured, Commerce sought an IME and an examination under oath of Tranh, Nancy and Pham. The Policy provided that, when there is an accident or loss, the insurer may "require you and any person seeking payment under any part of this policy to submit to an examination under oath at a place designated by us, within a reasonable time after we are notified of the claim." Massachusetts Automobile Insurance Policy (6th ed.). The Policy also recited that "failure to cooperate with [the insurer] may result in the denial of your claim." Id.
Commerce issued, on May 1, 1998, a reservation of rights letter to plaintiffs' counsel. On May 5, 1998, in response to the reservation of rights letter, plaintiffs' counsel made a demand, pursuant to G.L.c. 175, § 112, G.L.c. 93A, and G.L.c. 176D, for a detailing of the facts supporting Commerce's determination to handle the claims under a reservation of rights. Plaintiffs' counsel also informed Commerce that its reservation of rights constituted a material breach of contract and relieved the plaintiffs from any corre- sponding duties under the contract. The plaintiffs added that, if Commerce withdrew its reservation of rights, plaintiffs would fully cooperate under the contract. Rejecting plaintiffs' demands, Commerce neither withdrew its reservation of rights nor provided a description of facts upon which it relied to justify its reservation.
Commerce scheduled IMEs for Pham, Nancy and Tranh on, respectively, May 19, 1998, and June 2, 1998, on May 19, 1998, and June 2, 1998, and on May 22, 1998 and June 4, 1998. Each plaintiff was appropriately notified, but each failed to appear.
In a letter dated June 24, 1998, Commerce responded to plaintiffs' May 5, 1998, request for the reasoning behind the reservation of rights letter. Commerce informed plaintiffs' counsel that, upon review of the facts gathered in relation to this claim, Commerce was apprised of circumstances inconsistent with the information that had been originally received. And, on July, 8 1998, Commerce, as part of its continuing investigation into the matter and pursuant to the terms of the Policy, advised Pham, Nancy and Tranh, through their counsel, that their examinations under oath had been scheduled; they were to appear on August 4, 1998, at the Catuogno Court Reporting office in Worcester. Pham, Nancy and Tranh all failed to appear for their examinations.
For purposes of the instant motion, plaintiffs do not contest that they failed to appear, as requested by Commerce, for either their IMEs or their examinations under oath.
On August 21, 1998, Commerce forwarded correspondence to the plaintiffs' attorney denying the claims at bar for failure to appear for IMEs and examinations under oath. On November 24, 1998, Commerce was served with this plaintiffs' complaint in which Tranh claims to have incurred $4,672.00 in medical bills; Nancy claims to have incurred $4,574.00 in medical bills; and Pham claims to have incurred $4,796.00 in medical bills as a result of the collision.
The complaint was tried in Leominster District Court. There, on November 11, 2000, the court, (Locke, J.), allowed defendant's motion for involuntary dismissal at close of plaintiffs case. The plaintiffs then brought this matter before the Superior Court and the instant motion has been presented for disposition.
DISCUSSION
Summary judgment will be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). In assessing a Rule 56 motion, "The evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoted with approval in G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991). Of course, "the nonmoving party may not simply rest on pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Correllas v. Viveiros, 410 Mass. 314, 317 (1991). Application of those principles compels the conclusion that, at bar, there remain no genuine issues of material fact deserving of trial and defendant is entitled to judgment as a matter of law.
A. Breach of Contract Issues / Violation of G.L.c. 90, § 34M
The plaintiffs' complaint against Commerce alleges that Commerce breached the insurance contract when, in violation of G.L.c. 90, § 34M, it failed to pay PIP benefits to the plaintiffs. In addition, plaintiffs state that Commerce breached the insurance contract by issuing a reservation of rights letter. Commerce responds that it did not breach the Policy because: (1) the information discovered in Commerce's investigation of plaintiffs' claims supported issuing a reservation of rights letter; and (2) the Policy provides that a condition precedent to recovery under the Policy is the plaintiffs' submission to IMEs and examinations under oath upon request, both of which conditions plaintiffs failed to satisfy.
(1) Breach of Contract — Issuance of "Reservation of Rights" Letter
A reservation of rights letter is a device that allows an insurer to give notice to its insured of some policy concerns while, at the same time, continuing to satisfy its legal duties. See Thach et al v. Safety Insurance Co., Civil No. 98-2300A, 10 Mass. L. Rptr. 500 (Worcester Super. Ct. August 25, 1999), citing Sarnafil, Inc. v. Peerless Ins. Co., 418 Mass. 295, 309 (1994) (citations omitted). A reservation of rights is an acceptable method for an insurer to preserve its rights later to disclaim coverage should information, subsequently obtained, warrant such disclaimer. Additionally, a reservation contemporaneously provides its insured with notice of the insurer's concerns in order that the insured is not lulled into failing to act to protect herself or himself. Id. See also Salonen v. Paanenen, 320 Mass. 568, 574 (1947).
Here, the plaintiffs have not demonstrated that the mere issuance of the reservation of rights letter breached the motor vehicle insurance Policy, thus excusing plaintiffs' refusal to appear for examination. Commerce's reservation of rights letter was not a disclaimer of coverage under the Policy, but merely served to put the plaintiffs on notice that no PIP payments would be made until an investigation was complete. Such notice is, in appropriate cases, wholly consistent with Massachusetts law.
Within months of the collision, Commerce received conflicting reports regarding several key issues involved in its assessment of the claims, viz, what was the role each driver played in the accident, how many persons were occupants of the insured vehicle, and whether any persons were in fact injured in the accident. Commerce initially received a report that only Tranh had been involved in the car accident and that the insured vehicle had caused the collision. The police report, generated by Officer Logan, a witness to the accident, reflected that the insured vehicle struck the cruiser as the cruiser awaited the passing of a third vehicle. The police report did not record that anyone was injured in the collision. At the time of its receipt of the police report, therefore, Commerce had no knowledge of injury to any occupant(s) of the insured vehicle and nothing in the police report indicated that anyone other than Tranh occupied the insured vehicle.
In a letter dated April 8, 1998, plaintiffs' counsel informed Commerce that there were in fact three individuals in the insured vehicle, that all were injured and that the police cruiser caused the accident. The letter was, of course, in fundamental conflict with the police report. Adding further confusion to the matter, plaintiffs' counsel, in a letter dated April 9, 1998, forwarded correspondence to Commerce stating that he represented Pham and the accident occurred due to the plaintiff Tranh's negligence. The inconsistencies embodied in those documents warranted Commerce in sending the reservation of rights letter. See Salonen, 320 Mass. at 572 ("reservation of rights" letter warranted where two different accident versions submitted).
The reservation of rights letter was sent on May 1, 1998. In that correspondence, Commerce stated, "we reserve all of our rights and defenses available under the insurance policy contract . . . we are reserving our right to later disclaim any obligation under the policy and assert a defense of no coverage under the policy." (Emphasis added.)
Commerce therefore did not breach the insurance contract, but acted in accordance with Massachusetts law, issuing its reservation based on a justifiable concern that coverage might not attach.
(2) Breach of Contract — IME's and Examinations Under Oath as Conditions Precedent to Payment
As part of Commerce's post-reservation investigation and pursuant to the Policy, Commerce sought an IME and examination under oath from Tranh, Nancy and Pham. The plaintiffs failed, however, to appear for the IMEs and examinations under oath when duly requested by Commerce's counsel. Plaintiffs contend that they were not bound to appear for the IMEs or the examinations under oath because Commerce had issued a reservation of rights letter instead of PIP payments, thus breaching the contract of insurance. The plaintiffs further contend that Commerce is not entitled to judgment in its favor because Commerce failed to prove it suffered actual prejudice from any conduct of the plaintiffs.
As stated, above, the Policy provided that, when there is an accident or loss, the insurer may "require [the insured] and any person seeking payment under any part of this policy to submit to an examination under oath, at a place designated by [the insurer], within a reasonable period of time [that the insured is] notified of the claim . . ." The policy further provided that "failure to cooperate with the [the insurer] may result in the denial of [the insured's] claim." An examination under oath, demanded by the insurer, is a condition precedent to recovery under an insurance policy, and failure to submit to such an examination constitutes a material breach of the insurance contract. Mello v. Hingham Mutual Fire Ins. Co., 421 Mass. 333, 337 (1995) (citations omitted). If the condition is not satisfied, the contract, or obligations attached to the condition, may not be enforced. Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers, 411 Mass. 39, 45 (1991) (citations omitted).
Although plaintiffs may not have had a duty to cooperate with a demand for a recorded statement, they were required under Massachusetts law and the Policy to comply with an insurer's request for IMEs and examinations under oath. See Mello, 421 Mass. at 337. Commerce corresponded on several occasions with plaintiffs' counsel clearly requesting IMEs and examinations under oath. The plaintiffs were obligated by the Policy and the statutory language of G.L.c. 90, § 34M to comply with Commerce's requests, but they failed to do so.
Any contention by plaintiffs that Commerce is not entitled to judgment in its favor because it has not demonstrated any actual prejudice from plaintiffs' refusal to appear for examinations under oath is without merit. The court's review of the record leads it to conclude that plaintiffs prejudiced Commerce by refusing to attend the reasonably requested IMEs and examinations under oath. The plaintiffs' refusal to submit to IMEs and examinations under oath left Commerce in the position of deciding whether or not to pay suspect claims without any means to determine their legitimacy. See Hodnett v. Arbella Mutual Ins. Co., 1996 Mass. App.Dec.District Court Dept.: 131 (1996) (injured party's refusal to submit to an IME clearly frustrates the obvious purpose of the policy and statutory requirements which allows the insurer to determine the reasonableness of the medical expenses for which compensation is sought). See Ganias v. Arbella Mutual Ins. Co., 1999 Mass. App.Dec.District Court Dept.: 190 (1999). See also G.L.c. 90, § 34M. Commerce's dilemma was created by its reasonable concerns with respect to the number of injured persons, the magnitude of injuries and the quantum of Tranh's negligence. To require Commerce to decide whether or not to pay, without giving it the opportunity to resolve its reasonable concerns as to its obligation to pay, is to prejudice Commerce.
Assuming arguendo, however, that Commerce has failed to show that it was prejudiced by plaintiffs' refusal to submit to IMEs and examinations under oath, plaintiffs still cannot prevail. They rely upon Darcy v. Harford Ins. Co., 407 Mass. 481 (1990), but their reliance is misplaced. In Darcy, the Supreme Judicial Court held that an insurer must show prejudice in order to disclaim liability for an insured's delay in notice of a claim or failure to cooperate in the defense in the event of a lawsuit. Id. at 489. See also Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282 (1980). At bar, however, the undisputed facts do not present a delay in notice of a claim or a failure to cooperate in the defense of another lawsuit; the instant case, in contrast, involves a breach of a condition precedent to plaintiffs' recovery. In the more pertinent case of Mello v. Hingham Mutual Fire Insurance, Co., 421 Mass. 433 (1995), the Supreme Judicial Court held that a clause requiring submission to an examination under oath is to be construed as a condition precedent to recovery under the policy. A condition precedent is not rendered nugatory merely because the beneficiary of the condition is not harmed by non-performance of the condition.
This court is aware of no Massachusetts law en-grafting a requirement of prejudice onto the breach of a condition precedent in order to relieve from liability under the contract one in whose favor the condition precedent runs. Accordingly, Darcy ought not be read to compel the conclusion that in an action seeking PIP benefits, an insurer needs to prove actual prejudice to justify its refusal, grounded on a failed condition precedent, to provide PIP benefits. See G.L.c. 90, § 34M. See also Barbosa v. Metropolitan Property and Casualty Ins. Co., Civil No. 98-02021, 9 Mass. L. Rptr. 315 (Suffolk Super. Ct. November 16, 1998). Rather, Mello's view that the failure to submit to an examination is the breach of a condition precedent, as to which no prejudice is required to relieve the insurer of liability, is dispositive of the issue at bar.
Therefore, plaintiffs breached conditions precedent to their recovery under the Policy by refusing to submit to IMEs and examinations under oath. Commerce's action of reserving its rights and requesting IMEs and examinations under oath, did not amount to a breach of contract, but constituted a justifiable response to plaintiffs' refusal to cooperate. See Appleman, Insurance Law and Practice, § 4694 (1979 and 1999 Supp.) (delineating the legal effect of a reservation of rights letter). The plaintiffs have presented no assertions sufficient to demonstrate a genuine issue of material fact regarding their claims that Commerce breached the insurance contract. Accordingly, Commerce is entitled to summary judgment on all counts alleging breach of contract.
(3) Violation of G.L.c. 90, § 34M
The plaintiffs allege that Commerce failed to pay plaintiffs, pursuant to G.L.c. 90, § 34M, the benefits owed under the PIP provision of the insured's Policy and, consequently, also request an award of attorneys fees and costs. Commerce contends that it was entitled to deny plaintiffs' claims because the plaintiffs failed to appear for their IMEs and their examinations under oath, thereby eviscerating Commerce's attempts to gather information regarding amounts due under the Policy.
General Laws Chapter 90, § 34M, mandates the recovery of PIP benefits "upon receipt of reasonable proof of the fact and amount of expenses and loss occurred." A party is required to "do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due." G.L.c. 90, § 34M. An insurer with reason to doubt its liability is not required to pay medical bills merely because the claimant alleges them to be reasonable and necessary expenses for treatment. Brito v. Liberty Mutual Insurance Co., 44 Mass. App. Ct. 34, 37 (1997).
In the instant matter, Commerce's requests for examinations were reasonable, and plaintiffs' refusal to submit to the IMEs and examinations under oath obstructed Commerce's ability to investigate the accident and assure itself that plaintiffs were in fact injured. By way of correspondence with plaintiffs' counsel, Commerce discovered several contradictions touching upon the number of plaintiffs in the insured's vehicle, the extent of plaintiffs' injuries, and the question of Tranh's negligence. Commerce's request for IMEs and examinations under oath in order to further its investigation and ascertain the extent of plaintiffs' injuries was demonstrably appropriate given the "facts" advanced by plaintiffs. Each plaintiff failed, however, twice to appear for scheduled IMEs and twice for examinations under oath. Those failures did nothing to ease Commerce's concerns with respect to the contradictions.
The plaintiffs did not cooperate with the reasonable and legitimate requests of Commerce to aid its investigation; that failure of cooperation constitutes a clear violation of c. 90, § 34M. Therefore, Commerce was not required by the statute to pay the claimants' medical bills. Because the claimants have offered no evidence suggesting a genuine issue of material fact as to whether Commerce violated G.L.c. 90, § 34M, Commerce is entitled to summary judgment as a matter of law on the alleged violation of G.L.c. 90, 34M.
B. Violations of G.L.c. 93A and c. 176D
Finally, the plaintiffs contend that Commerce violated G.L.c. 93A and G.L.c. 176D by issuing a reservation of rights letter and by failing to affirm or deny coverage within a reasonable time. There remains no genuine issue of material fact that, based on the information discovered during Commerce's investigation, Commerce engaged in no statutorily violative conduct when it opted to reserve its rights and to seek IMEs and examinations under oath. Commerce's conduct, discussed in detail supra, presents no likelihood that plaintiffs can prevail upon a G.L.c. 93A or G.L.c. 176D cause of action. See Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 343 (1994) (citations omitted). Commerce is entitled to summary judgment on all counts alleging violations of G.L.c. 93A and/or G.L.c. 176D.
Commerce has demonstrated the absence of a triable issue and, further, has established that it is entitled to judgment as a matter of law upon all counts of the complaint.
ORDER
For the foregoing reasons, it is ORDERED that the Commerce Insurance Company's motion for summary judgment be and hereby is ALLOWED.
FERREIRA v. DEPARTMENT OF SOCIAL SERVICES, No. 0000304 (SEP 21, 2001) John Ferreira v. Department of Social Services No. 0000304 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT Middlesex, SS. September 21, 2001
KOTTMYER, J.
Pursuant to G.L.c. 30A, § 14(7), the plaintiff John Ferreira ("Mr. Ferreira"), seeks judicial review of a Fair Hearing Decision of the defendant, Department of Social Services ("DSS"). The Hearing Officer upheld a decision of DSS to "support" a report accusing the plaintiff of sexually abusing his daughter and to place his name on DSS's "Registry of Alleged Perpetrators" ("the Registry"). See G.L.c. 119, §§ 51A and 51B; 110 CMR §§ 4.36, 4.37(2) (1996). The matter is before the Court on the parties' crossmotions for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c) and Standing Order 1-96(4). For the following reasons, the plaintiffs motion for judgment is ALLOWED and the defendant's motion is DENIED.
See 110 Code Mass. Regs. § 4.32. Section 4.32 requires that following the completion of an investigation under G.L.c. 119, § 51B. DSS must determine whether the allegations of the G.L.c. 119, § 51A report are "supported" or "unsupported." 110 Code Mass. Regs. § 4.32(1). To "support" a report means that DSS "has reasonable cause to believe that an incident . . . of abuse or neglect . . . did occur." Id. § 4.32(2).
110 CMR § 4.36 provides that DSS shall create and maintain a Registry of Alleged Perpetrators as a component of the Central Registry maintained pursuant to G.L.c. 119, § 51F. The name of the alleged perpetrator remains on the Registry of Alleged Perpetrators for 75 years or until the decision is reversed. Section 4.38 governs access to the Registry and in subsection 4 permits access to anyone who obtains the written authorization of the commissioner. There is no provision that an alleged perpetrator be given notice of requested access. Edward B., supra, 42 Mass. App. Ct. at 487, n. 11.
ADMINISTRATIVE RECORD
The administrative record filed on April 5, 2000 does not contain a transcript of the proceedings. Consequently, the testimony of witnesses at the Fair Hearing is not part of the record before this Court. See Arnone v. Commission, 43 Mass. App. Ct. 33, 34 n. 2 (1997), where the Court stated that it was the responsibility of the agency to file a complete record.
On January 9, 1997, DSS received a report, filed by a mandated reporter pursuant to G.L.c. 119, § 51A, alleging that Mr. Ferreira had sexually abused his then three-year-old daughter, Gia Ferreira ("Gia"). Admin. R. 43. The report was prompted by a January 2, 1997 telephone call from Gia's mother, Jayne Ferreira ("Mrs. Ferreira"), to a sexual abuse clinic in which Mrs. Ferreira stated that on December 29, 1996, Gia had told Mrs. Ferreira that her "peepee" was sore and that Mr. Ferreira had scratched her "peepee." Admin. R. 46. Mrs. Ferreira had then asked Gia how Mr. Ferreira had done this and whether his fingers went anywhere. Id. Gia had responded that Mr. Ferreira's fingers went inside her "like this" (motioning to her vagina and twisting her fingers). Id. The subject was next raised when Gia asked Mrs. Ferreira whether Mr. Ferreira scratched her "peepee." Id. Mrs. Ferreira responded: "[S]ometimes if I am itchy." Id. Mrs. Ferreira then asked Gia whether Mr. Ferreira had asked her to scratch him in the same way, Gia responded: "No[,] I don't scratch his pee pee or bum." Id.
Gia was born April 19, 1993. Admin. R. 43.
On January 3, 1997, Mrs. Ferreira met with an employee of the sexual abuse clinic. Admin. R. 47. During this meeting, Mrs. Ferreira expressed doubt about Gia's allegations of abuse and downplayed previous statements concerning the frequency of Gia's masturbation and her increasing aggression. Id. Mrs. Ferreira stated that she did not want Gia's allegations to destroy Mr. Ferreira's career. Id. Mrs. Ferreira also revealed that Mr. Ferreira continued to spend time alone with Gia at bedtime. Id.
Three clinicians spoke with Mrs. Ferreira. Adimin. R. 52. Each felt that Mrs. Ferreira did not believe Gia's allegations of abuse and that Mrs. Ferreira was resistant to intervention. Id.
On January 9, 1997, DSS assigned an investigator to conduct an investigation in accordance with G.L.c. 119, § 51B. Admin. R. 49. The investigator spoke on the telephone with Mrs. Ferreira and informed her of the G.L.c. 119, § 51A report. Id. Mrs. Ferreira told the investigator that she would confront Mr. Ferreira that evening and ask him to leave the marital home. Id. Mrs. Ferreira also agreed to ask Mr. Ferreira to call DSS. Id.
On January 13, 1997, Mr. Ferreira called DSS. Id. He confirmed that he had moved out of the home and that he had made an appointment to meet with a DSS social worker later that day. Id. At the meeting, a social worker reviewed the allegations set forth in the § 51A report with Mr. Ferreira. Admin. R. 51. Mr. Ferreira denied ever touching his daughter sexually. Id. He did, however, confirm that once or twice a week he would, at Gia's behest, scratch her "bum cheeks" both above and beneath her clothing. Id. 51-52. Mr. Ferreira explained that he had been brought up believing scratching to be a nurturing activity. Id. 51. Mr. Ferreira also stated that he and Mrs. Ferreira had had an unstable relationship for most of their marriage and that Mrs. Ferreira would often misconstrue information. Id.
Mr. and Mrs. Ferreira had been in therapy since their 1992 marriage. Admin. R. 47, 1-38.
Also in January, Gia was interviewed by a DSS social worker and physically examined and interviewed at Children's Hospital in Boston. Id. 59. Neither yielded evidence of abuse. Id. On January 17, 1997, DSS "unsupported" the G.L.c. 119, § 51A report of abuse, concluding that there was not reasonable cause to believe that the abuse had occurred. Admin. R. 54. DSS cited Gia's failure to disclose the abuse to the DSS social worker and the lack of any medical evidence of sexual trauma. Admin. R. 54. The DSS supervisor concurred in the decision noting that "the father's scratching behavior appears to have been playful and inappropriate, rather than abusive." Admin. R. 55.
Although a finding of abuse was unsupported, a finding of neglect based on "inappropriate boundaries" was supported. Admin. R. 54-55.
On January 24, 1997, Mrs. Ferreira requested an evaluation of Gia at the Boston Regional Medical Center ("BRMC") and Gia was seen by a BRMC counsellor on a regular basis from January 27, 1997 until August 13, 1998. On February 8, 1997, Gia told the therapist that her father "scratches" her vagina. Admin. R. 149.
The record contains notes from thirty-six therapy sessions between January 24, 1997 and August 13, 1998. (Admin. R. 147-66.) Plaintiff subpoenaed the notes to the Fair Hearing, but the records had not been produced at the time of the hearing. ( Id. 167-72.) The hearing was held on May 6, 1999, and the record was closed on June 3, 1999. On June 28, plaintiffs counsel submitted the records. On September 29, 1999, the record was reopened and DSS was ordered to complete a clinical review pursuant to 110 CMR § 10.08 and to consider the additional materials submitted by Mr. Ferreira. (Admin. R. 42.) The review was completed and the decision issued on December 15, 1999.
On February 28, 1997, DSS received a second report of abuse pursuant to G.L.c. 119, § 51A. Admin. R. 56. The report cited additional disclosures of abuse by Gia that Mrs. Ferreira believed merited further investigation. Id. 59. According to Mrs. Ferreira, Gia had told her that Mr. Ferreira would take Gia to "the big bed" and would manipulate her genitals with his fingers. Id. Mrs. Ferreira also mentioned an incident from February 25, 1997 when she had reached into the back seat of her car to comfort Gia, and Gia had stated "you can touch my arms but you can't . . . touch my peeps." Id. Gia added that she touched herself. Id. Mrs. Ferreira asked Gia whether anyone else had touched her "there." Id. Gia responded, "Daddy." Id.
Pursuant to G.L.c. 119, § 51B, a second investigation was initiated. Admin. R. 56. On March 10, 1997, a DSS social worker interviewed Mr. Ferreira. Id. 62-63. Mr. Ferreira again denied ever touching Gia sexually. Id. 62. He added that although he saw Gia and her sister Jayci Ferreira ("Jayci") every day, he had not been alone with them since December 1996. Id. Mr. Ferreira stated his belief that the allegations of abuse had been manufactured by Mrs. Ferreira. Id. Mr. Ferreira described Mrs. Ferreira as jealous and unstable. On one occasion when he did not come directly home from work, Mr. Ferreira stated that Mrs. Ferreira had set fire to his clothes. Id. 62, 126. In concluding the interview, Mr. Ferreira stated that Mrs. Ferreira was doing nothing to prevent the bullying of Gia and Jayci by her two other children, Teneyke Smith and Tyler Smith. Id. 63. He also expressed concern that Mrs. Ferreira had discouraged Gia and Jayci from visiting him at the YMCA where he worked by telling them that there were germs in the building. Id.
Jayci was born November 23, 1994.
At the hearing, plaintiff provided evidence, a police department report, substantiating this fact. (Admin.R. 126-27.)
Teneyke Smith was born December 7, 1981 and Tyler Smith was born June 30, 1983.
The investigator also spoke by telephone with Gia's BRMC therapist. Id. 59, 148. The therapist expressed concern over an incident that occurred on February 28, 1997, while the therapist and Gia were working through a book called "It's My Body." Admin. R. 63, 150. The book addressed the subject of touching, and Gia stated that a long time ago her father had touched the inside of her "bum," making it sore. Id. 63, 67-68, 150. Gia added, "I don't want to tell him to stop because he'll be sad and I'll hurt his feelings." Id. 150. Gia also stated that Mr. Ferreira "didn't realize it hurts my bum." Id.
On March 10, 1997, DSS "unsupported" the second G.L.c. 119, § 51A report. Admin. R. 66. DSS concluded that the allegations of abuse were unreliable by dint of the alleged instability of their principal declarant, Mrs. Ferreira, and the confused concept of touching that had developed from the family practice of scratching. Id. DSS also cited the confusion arising from the Ferreira children's ignorance of the proper names for their body parts. Id. 67-68. According to the investigator's notes, the BMRC therapist questioned whether Gia could differentiate between her "anus and "vagina" and did not think that Gia knew exactly what part of her body she was referring to when she said "inside." Admin. R. 67-68. Accordingly, it was unclear what Gia meant when she said that her father had touched her "inside [her] bum." Id.
In June 1997 Mr. Ferreira filed for divorce. Id. 78. At this time, Mrs. Ferreira told Gia's therapist that Mr. Ferreira was starting to date other women. Id. 153. According to the therapist, Mrs. Ferreira was very angry with Mr. Ferreira for dating another woman. Id. The therapist also noted that Mrs. Ferreira appeared upset and depressed. Admin R. 153. In July 1997, Mrs. Ferreira entered a one-week outpatient psychiatric program. Id. 154.
Mrs. Ferreira, Gia, and Jayci continued to visit the BRMC therapist. On July 14, 1997, Mrs. Ferreira reported the exploration by Gia of Jayci's "private parts" to the therapist. Id. 154. On September 5, 1997, Gia reported that Mr. Ferreira had put his hand on Jayci's thigh and his thumb on her "peeps" when he was helping Jayci to pull up her pants. Id. 156. Gia stated that there was no penetration and that "Dad had told her about it." Id. At the same session, the therapist told Mrs. Ferreira that Gia couldn't remember what she told mother about what happened in the backseat of father's car. When questioned by the therapist, Gia talked about playing hide and seek and tag in the car and denied physical touching by her father. According to the therapist, Mrs. Ferreira "appeared disappointed that there was no confirmation of inappropriate sexual touching" of Gia by Mr. Ferreira. Id. The therapist noted that Mrs. Ferreira said that she felt that Mr. Ferreira had instructed Gia and Jayci not to talk about the incidents of abuse. Admin. R. 156.
Mr. Ferreira was not alone with the girls after December of 1996. He did not see the girls between October of 1997 and June of 1998.
On September 9, 1997, the therapist asked Gia why she was unable to tell the therapist the same "stories" that she told Mrs. Ferreira. Id. 157. Gia responded that she was scared "about Daddy getting mad at her." Id. Gia told the therapist that Daddy told her he would be mad if she told the stories. She stated she would tell the therapist when she was ready. The therapist noted that it appeared that Gia was being manipulative and it is "unclear what the accurate story is." She posited that Gia "could be making up [the] stories to [increase Mrs. Ferreira's] interest" in her. Id. Mrs. Ferreira was frustrated and wanted to know how long this would go on. The therapist said that Gia might never be able to tell her and agreed with Mrs. Ferreira that this was unfair.
At the next session (Admin. R. 158), the therapist inquired about statements made by Gia to Mrs. Ferreira about "games" played with Mr. Ferreira involving their bodies. Gia was unable or unwilling to discuss the stories. She told benign stories. The therapist noted that "Gia's refusal to talk at more length about them makes me wonder if the stories are exaggerated and made up of a sexual nature to impress mother." She discussed the difference between "made up and "true" with Gia and Mrs. Ferreira. Id. 158. According to the therapy notes, Gia stated that the stories were "made up." Id. The notes from the session conclude by stating that Gia appeared angered by Mrs. Ferreira's insistence that she talk about the stories. Admin. R. 158. The notes from the next two therapy sessions cite Gia's recalcitrance. Id. 159. In the latter of these sessions, the therapist noted Mrs. Ferreira's concern that Mr. Ferreira had told Gia and Jayci "not to talk." Id. The therapist remarked that Gia "[a]ppears wary of talking about anything for fear of saying something she should not." Id. Notes from the December 19, 1997 therapy session state that a sexual abuse evaluation at CFD Beverly was completed, Gia reporting that she was "afraid that if she "told the truth' her daddy would not be her father any more," but also that all of her previous stories were lies. Id. 161.
On March 10, 1998, DSS received a third report of abuse mandated by G.L.c. 119, § 51A. Admin. R. 23, 77. The report stated that during a sexual abuse evaluation of Gia and Jayci (presumably the evaluation described in the BRMC's December 19, 1997 notes), Gia had disclosed that "Dad peeps touched my peeps" and that he had tried to stick his finger in Jayci's "peeps." Id. 23. Pursuant to G.L.c. 119, § 51B, DSS initiated another investigation. Admin. R. 77. On March 18, 1998, a representative of the independent Sexual Assault Investigation Network ("SAIN") conducted interviews of Gia and Jayci. Id. 79. At her interview, Gia stated that a long time ago Mr. Ferreira had scratched her on her "peeps" and on her "butt" while she and Mr. Ferreira were "playing monster" on Mrs. Ferreira's bed and her mother was working in the kitchen. Id. Gia identified her vaginal area as her "peeps." Id. Gia stated that she thought that Mr. Ferreira's hand had gone under her clothes. Id. According to the report Gia stated that she "was wearing the same thing she has on now." She stated that Mr. Ferreira had unbuttoned her clothes and taken off her shirt, leaving her naked. Id. Gia stated that Mr. Ferreira moved his hand inside her "peeps" and that when he touched her "butt" his hand moved. Admin. R. 79-80. Gia stated that Mr. Ferreira stopped when she said "mom, dad has been touching my butt again." Id. 80. Gia also said that Mr. Ferreira had touched her "butt" earlier the same day on the couch. He used his hands and nails and she was crying. Id. "Now she thinks about it, it did happen." She said that after she told Mrs. Ferreira about this incident, Mr. Ferreira had had to leave. Id. The SAIN interviewer concluded that Gia seemed "very sincere" and seemed to have conflicting feelings regarding [her father's] abuse and her love for him. Id. The SAN interview with Jayci yielded no evidence of abuse. Id.
On March 3, 1998, DSS had received an anonymous report of neglect. Admin. R. 84. The report alleged that Mr. Ferreira's neighbors had stated that Mr. Ferreira smoked marijuana in front of Gia and Jayci when he lived in the home. Id. The reporter further stated that she was calling "because she just heard from neighbors that the father is close to getting visitation with the children." The circumstances of the report, details (especially dates) provided by the reporter and similarities between this report and anonymous allegations of marijuana use by co-workers of Mr. Ferreira (Admin. R. at 119-25) would support an inference that Mrs. Ferreira made this report.
The record reveals that Jayci was interviewed a total of seven times. Admin. R. 80. On the two occasions that she spoke, Jayci disclosed only that "dad scratched my peeps. Id.
On March 24, 1998, at a DSS interview, Mr. Ferreira denied the allegations repeated in the G.L.c. 119, § 51A report. Admin. R. 78. He stated that he had not seen Gia or Jayci in six months and posited that Mrs. Ferreira had persuaded Gia to make the aforementioned allegations of abuse. Id. Mr. Ferreira added that Mrs. Ferreira was violent towards him, was suicidal, on psychotropic medication, and that she was being treated for depression. Id.
On April 3, 1998, DSS received a fourth report of abuse mandated by G.L.c. 119, § 51A. Admin. R. 70. The report stated that during a sexual abuse evaluation, Jayci disclosed that "a long time ago" Mr. Ferreira had "touched [her] in the peeps and the butt." Id. Therapy notes from April 7, 1998 state that although Gia and Jayci missed Mr. Ferreira, Gia did not appear to feel guilty about her disclosures of abuse. Id. 162.
On April 13, 1998, DSS "unsupported" the fourth G.L.c. 119, § 51A report of abuse, citing the incomplete nature of Jayci's sexual abuse evaluation. Admin. R. 81. On the same date, however, citing Gia's disclosure to an independent evaluator of digital penetration by Mr. Ferreira, DSS "supported" the allegations of the third G.L.c. 119, § 51A report. Admin. R. 81. DSS listed Mr. Ferreira's name on the Registry and, pursuant to G.L.c. 119, § 51B(4), referred the case to the Middlesex District Attorney's office. Admin. R. 22, 41, 81.
On June 1, 1998, DSS sent a letter notifying Mr. Ferreira of his listing on the Registry and of his right to appeal that listing at a "Fair Hearing" pursuant to 110 Code Mass. Regs. § 10.06(8) and (9)(a). Id. 41. Mr. Ferreira exercised that right, and on May 6, 1999, a Fair Hearing was conducted at the Malden Area Office of DSS. Admin. R. 6, 182.
At the Fair Hearing, DSS relied primarily on the evidence of abuse contained in its "supported" G.L.c. 119, §§ 51A and 51B reports from March 1998. Admin. R. 6-14. Mr. Ferreira challenged this evidence by introducing the G.L.c. 119, §§ 51A and 51B reports from January and February of 1997 that DSS had "unsupported." Id. 7. Also introduced were a psycho-sexual evaluation of Mr. Ferreira and numerous letters of support. Id. Plaintiff also introduced evidence substantiating his allegations that in 1993, Mrs. Ferreira had made false allegations of marijuana use by his coworkers when she suspected he was having an affair, had set fire to his clothes after a dispute on May 15, 1993, and in 1997 made threatening calls to him and his landlord. (Admin. R. 119-27, 144-45.)
DSS also introduced a report from the Metro Regional Clinical Review Team and a letter from Boston Regional Medical Center to Mr. Ferreira's attorney. Admin. R. 7.
On September 29, 1999, the record was reopened and DSS was ordered to complete a clinical review pursuant to 110 CMR § 10.08. Admin. R. 42. A Clinical Review Team consists of at least five individuals, each of whom must have extensive social work experience, which is convened by DSS' Regional Director for the purpose of reviewing a DSS decision. 110 Code Mass. Regs. §§ 10.02 and 10.08. The Fair Hearing officer may not reverse a clinical decision of the Clinical Review Team if the decision has a reasonable basis. Id. § 10.05 The review was conducted by the Metro Regional Clinical Team which upheld the decision to support the report and list plaintiff on the registry.
By a decision dated December 15, 1999, the Fair Hearing officer found that there was reasonable cause to "support" the G.L.c. 119, § 51A report of sexual abuse by Mr. Ferreira and substantial evidence of sexual abuse. Id. 11-13. The officer thus affirmed the DSS decision to "support" the third G.L.c. 119, § 51A report and its decision to list Mr. Ferreira's name on the Registry. Admin. R. 13-14. Pursuant to G.L.c. 30A, § 14(7)(e), Mr. Ferreira seeks judicial review of the Fair Hearing decision.
APPLICABLE LAW
DSS "supports" a § 51A report if it is persuaded that there is reasonable cause to believe that an incident of sexual abuse by a "caretaker" occurred. 110 CMR § 4.32(2). The regulations define "reasonable cause to believe" as a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected. 110 CMR § 4.32(2).
An "alleged perpetrator" of child abuse is listed in the Registry only if (1) the allegations in the 51A report are, after investigation, "supported" and referred to the District Attorney pursuant to G.L.c. 119, § 51B(4), and (2) there is substantial evidence that the alleded perpetrator was responsible for a child's abuse or neglect. 110 CMR § 4.37. "Substantial evidence" is defined, as it is in G.L.c. 30A, as "such evidence as a reasonable mind might accept as adequate to support a conclusion."
Abuse is defined as the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual. 110 CMR § 2.00.
There is an administrative appeal from a decision to "support" a report of "abuse" or to place an individual's name on the Registry. 110 CMR § 10.06(8). Appellate proceedings take place before hearing officers employed by the DSS. 110 CMR § 10.03. At the hearing, the burden is on the appellant to show by a preponderance of the evidence that the DSS decision or procedural actions were not in conformity with DSS policies or regulations or that DSS acted without a reasonable basis or in an unreasonable manner which resulted in substantial prejudice to the appealing party.
If the hearing officer affirms the DSS decision, the listed individual has the right to an appeal to the Superior Court pursuant to G.L.c. 30A. After a hearing on such an appeal, "[t]he court may affirm the decision of the [DSS], or remand the matter for further proceedings before the [DSS]; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced."
The Court may set aside a decision only upon a determination that the decision of the agency is (a) in violation of constitutional provisions; (b) in excess of the statutory authority or jurisdiction of the agency; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the court on the record as submitted or as amplified . . . in those instances where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. G.L.c. 30A, § 14(7).
In reviewing a DSS decision pursuant to G.L.c. 30A, the Court is confined to the administrative record unless procedural irregularities are alleged. G.L.c. 30A, § 14(5). The Court shall set aside the decision of an administrative agency if it is not supported by substantial evidence. G.L.c. 30A, § 14(7)(e); Cobble v. Commissioner of Dept. of Soc. Servs., 430 Mass. 385, 390 (1999). "An agency conclusion need not be based upon the clear weight of the evidence . . . or even a preponderance of the evidence, but rather upon 'reasonable evidence' i.e., 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 696 (1998) (citation omitted); see G.L.c. 30A, § 1(6); 110 Code Mass. Regs. § 4.37. In making this determination, the court must examine the record in its entirety and must take into account whatever fairly detracts from the weight of evidence supporting the administrative decision. Cobble v. Commissioner of Dept. of Soc. Servs., 430 Mass. at 390. The court must, however, "give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it[,]" G.L.c. 30A, § 14(7), and should defer to the agency on questions of fact and on reasonable inferences from the record. Cobble v. Commissioner of Dept. of Soc. Servs., 430 Mass. at 390. The party appealing an administrative decision bears the burden of demonstrating its invalidity. Merisme v. Board of App. on Motor Vehicle Liab. Policies Bds., 27 Mass. App. Ct. 470, 474 (1989).
The court may not substitute its own judgment for that of the agency, "even though the court would justifiably have made a different choice had the matter been before it de novo." South Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n., 386 Mass. 414, 420, 436 N.E.2d 380 (1982). Nor may the court disturb the credibility determinations of the hearing officer or her weighing of the evidence. Guarino v. Director of the Division of Employment Security, 393 Mass. 89, 92, 469 N.E.2d 802 (1984). Nevertheless, in determining whether the DSS decision rests upon substantial evidence, the court is not required to affirm the [DSS] merely on a finding that the record contains evidence from which a rational mind might draw the desired inference. The court's determination must be made "upon consideration of the entire record." "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Edward E. v. Department of Social Services, 42 Mass. App. Ct. 478, 480-81, 678 N.E.2d 163 (1997). While hearsay can form a permissible basis for an agency's decision, that hearsay must be "reliable." Id. at 480, 678 N.E.2d 163.
DISCUSSION
Placing the burden of proof before the agency on the appellant has due process implications given that the decision is "one of more than ordinary gravity which places a permanent mark on the record." Edward E., supra, 42 Mass. App. Ct. at 487. Judge McHugh discussed this issue in Minnehan v. Department of Soc. Servs., Civil No. 98-4687 (Middlesex Super Ct. Aug. 14, 1999) (10 Mass. L. Rptr. 364). In that case, he concluded: "In the last analysis, it may well be that the due process clauses of the state and federal constitutions place on the DSS the burden of proving the correctness of their conclusions at the administrative level. Whether or not that is so, the Appeals Court has suggested that the concept of "substantial evidence' is sufficiently flexible to take account of the impact of the finding or judgment the evidence is offered to support." He relied on Edward E. v. Department of Social Services, supra, 42 Mass. App. Ct. at 487, where the Appeals Court stated:
[W]e think the evidence upon which the department relied was so persistently encumbered by unreliability that it fails to have the character of substantiality which would support the department's decision to place the father's name on its registry of alleged perpetrators for a period of seventy-five years.
The due process implications are exacerbated by the provisions of 110 CMR § 10.05. Although Section 4.37 of the regulations makes express reference to G.L.c. 30A, § 1(6) and adopts the same definition of "substantial evidence," under § 10.05 the Hearing Officer may not reverse the challenged decision without the Commissioner's approval, and may not recommend reversal of the clinical decision made by a Clinical Review Team if there is "a reasonable basis" for the decision. 110 CMR §§ 10.05 and 10.29. The regulations thereby effectively impose the burden of establishing that there was no reasonable basis for the clinical decision on the appellant challenging a decision that he be listed. Section 10.05 also distorts the substantial evidence analysis by requiring the Hearing Officer to accept a clinical decision which has "a reasonable basis," notwithstanding the existence of other evidence in the record which detracts from the decision.
The Hearing Officer in the present case noted that "[t]he reasonable cause standard [applicable to decisions to support allegations under 51B] is a relatively low standard of proof . . ." (Admin. R. 11.) She also noted, in connection with her finding that DSS had substantial evidence to list plaintiff on the Registry, Section 10.05's prohibition against reversal of a clinical decision made by Clinical Review where there is "a reasonable basis" for the decision. She concluded that "[i]n light of the applicable standard of review and evidence presented the Department's decision to list [Mr. Ferreira] on the Registry of Alleged Perpetrators complies with the Department's Regulations."
Gia did not testify at the May 6, 1999 Fair Hearing. Her statements from the reports and investigations mandated by G.L.c. 119, §§ 51A and 51B were, however, offered as evidence of Mr. Ferreira's abuse. Admin. R. 7. Though hearsay, this evidence was admissible at the Fair Hearing to the extent of its reliability. See G.L.c. 30A, § 11(2); 110 Code Mass. Regs. § 10.21(1); Edward E. v. Department of Soc. Servs., supra, 42 Mass. App. Ct. at 480. The Fair Hearing Officer found that the increased clarity and specificity of Gia's statements at the SAIN interview and to an independent evaluation provided reasonable cause to support the allegations. Admin. R. 11-12. As support for this conclusion, the Fair Hearing officer relied upon the following: (1) the DSS investigators' testimony that Gia was credible and not coached; (2) Gia's prior consistent disclosure of abuse to her therapist while reading the "It's My Body" book; (3) Mr. Ferreira's admission to scratching Gia on her "bum" and under her clothes; and (4) the decision of a Clinical Review Team to uphold the actions of DSS in this case. Id. 10-13. The Hearing Officer concluded that substantial evidence exists that Appellant was responsible for the abuse because (1) Gia has consistently named her father as the perpetrator and "has not named anyone else; and (2) she has not recanted." Admin. R. 13.
Compare G.L.c. 233, § 82(c)(i)-(iv) which provides that hearsay statements of a child describing sexual contact are admissible in civil proceedings if a judge finds that they are reliable. Section 82 details factors which a judge must consider in determining reliability, including the child's capacity to observe, remember and express what he/she has experienced as established by expert testimony and the extent of corroborative evidence.
The Fair Hearing Officer also addressed the arguments advanced by Mr. Ferreira. Mr. Ferreira argued that Gia's SAIN interview statements merely restated that which DSS had on two previous occasions held insufficient to "support" a mandated report of abuse under G.L.c. 119, § 51A. Admin. R. 19. The Fair Hearing officer disagreed, stating that the evidence of abuse given by Gia in the SAIN interview was more detailed than anything previously offered. Id. 11-12. Second, Mr. Ferreira argued that Mrs. Ferreira had initiated the allegations of abuse out of spite because the couple were in the process of divorcing. Id. 19. The Fair Hearing officer pointed to Mrs. Ferreira's initial reluctance to believe Gia's allegations and the fact that Mr. Ferreira was not asked to leave the marital home and divorce proceedings did not commence until after the allegations of abuse were made. Id. 12, 47. Third, Mr. Ferreira argued the absence of any physical evidence of abuse. Id. 17. The Fair Hearing officer, however, determined that this argument was inconclusive, as the type of abuse that Gia had alleged would not necessarily result in physical injury. Id. 12. Finally, Mr. Ferreira offered in evidence a psychosexual evaluation of his personality type and letters of support, both of which he argued demonstrated that he would not have been likely to abuse Gin. Admin. R. 19-20. The Fair Hearing officer, however, noted that this evidence was not dispositive of the issue whether the DSS decision complied with the regulations. Id.12.
There is no indication that in reaching these conclusions the Fair Hearing Officer considered evidence in the record which detracted from her conclusion. She stated that Gia had not recanted. Yet, the record reflects that on at least two occasions Gia stated that the stories she had told were "made up" or "lies." Admin. R. 158, 161. The Fair Hearing Officer relied upon the fact that the DSS Investigator described Gia as very sincere and as credible and not coached. The SAIN interview took place on March 18, 1998. On September 9 and September 16, 1997, Gia's BRMC therapist, who saw Gia and Mrs. Ferreira on a regular basis, questioned whether Gia was making up stories and/or sexualizing them to impress her mother and increase her mother's interest in her. Admin. R. 157, 158. The Fair Hearing Officer relied on the fact that Gia's description of the abuse had become more specific and detailed and attributed the increase in clarity to the fact that Gia's vocabulary and awareness of body parts had developed from that of a 3.9 year old to a 4.11 year old. This is one explanation for the limited additional detail provided by Gia during the — SAIN interview. But the Hearing Officer did not address in this context, perhaps because of the constraints imposed by § 10.05, compelling evidence that the increased specificity and detail may have been a product of coaching by Mrs. Ferreira and of a desire on the part of Gia to please her mother. In particular, the Hearing Officer did not consider (1) that Gia frequently refused to repeat stories of abuse she allegedly had told Mrs. Ferreira and that when she did not repeat them, Mrs. Ferreira manifested disappointment; and (2) that Mrs. Ferreira had a history of instability and vindictive conduct toward Mr. Ferreira, which included fabricating allegations of marijuana use by a co-worker with whom she suspected he was having an affair. Moreover, the Hearing Officer did not address the fundamental issue recognized when the first and second 51A reports of abuse were received and unsupported namely, the inability to determine with any degree of reliability whether the scratching activity which indisputably had taken place and was the source of the allegation constituted playful, albeit inappropriate, behavior or abusive behavior. At that time of the first and second reports, the Department found the allegations "unreliable" given the instability of the principal declarant, Mrs. Ferreira, and the confused concept of touching that had developed from the family practice of touching, and Gia's inability to identify and differentiate her body parts. Considered in the context of evidence that Mrs. Ferreira had become invested in proving the allegations, had pressured Gia to make disclosures and manifested disappointment when Gia did not repeat stories she had allegedly told Mrs. Ferreira to the BRMC therapist, that Mrs. Ferreira was angry with Mr. Ferreira and had a history of fabrication, and in view of Gia's prior descriptions of the stories as "made up" and "lies," the increased specificity and detail in the statements to the independent evaluator and in the SAIN interview do not render Gia's statements reliable and do not satisfy the substantial evidence standard.
ORDER
For the foregoing reasons, the motion of the plaintiff, Mr. Ferreira, for judgment on the pleadings pur- suant to Mass.R.Civ.P. 12(c) and Super. Ct. Standing Order 1-96(4) is ALLOWED. The motion of the defendant, DSS, for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c) and Super. Ct. Standing Order 1-96(4) is DENIED. Judgment shall enter REVERSING the decision of the Department and ordering that plaintiff John Ferreira's name be removed from DSS's Registry of Alleged Perpetrators.