Opinion
20-P-859
03-10-2021
RIAN WATERS v. DEPARTMENT OF CHILDREN AND FAMILIES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Rian Waters (father), filed an amended complaint in the Superior Court for judicial review, pursuant to G. L. c. 30A, § 14, of the decision of the Department of Children and Families (department) supporting a finding under G. L. c. 119, § 51B, that he neglected his toddler by head butting the child's mother and kicking the family dog while the child was in the home. The father now appeals from the denial of his motion for judgment on the pleadings and the entry of judgment in favor of the department. We affirm.
As an initial matter, the father has not provided us with transcripts of the hearing before the department, nor has he provided a copy of the hearing officer's decision. "It is the appellant's burden to provide us with a complete record." G.B. v. C.A., 94 Mass. App. Ct. 389, 397 n.13 (2018). See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). Without transcripts we cannot review the department's decision under the appropriate standard. See McGuiness v. Department of Correction, 465 Mass. 660, 668 (2013), quoting Fitchburg Gas & Elec. Light Co. v. Department of Telecomms. & Energy, 440 Mass. 625, 631 (2004) ("We shall uphold an agency's decision unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law"). Compare Covell v. Department of Social Servs., 439 Mass. 766, 786 (2003).
The department provided a copy of the hearing officer's decision.
Even considering the father's argument, he fares no better. The father properly concedes that use of hearsay in a fair hearing is permissible under existing law. "Substantial evidence may be based on hearsay alone if that hearsay has 'indicia of reliability.'" Covell, 439 Mass. at 786, quoting Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 526, 530 (1988).
The father nonetheless argues that relying on hearsay violates his right to due process. He maintains that the department should record all interviews. This argument, too, was waived by not raising it with the department or before the Superior Court. In any event, the father received due process. "He was given notice of the department's investigation and an opportunity to be heard during the course of that investigation, and when the investigation concluded in a manner adverse to his interests, he was given notice and an opportunity to be heard through the department's appeal procedures." Covell, 439 Mass. at 787-788. Moreover, the father was represented by counsel at the fair hearing, the father was permitted to testify, and he had the opportunity to call witnesses. He subpoenaed the mother to the first day of the hearing and released her without questioning her, and when she did not return for the second day of hearing he did not enforce the subpoena, though he was advised of the option. The father concedes that the mother "did receive an ugly black eye" that "likely came from [his] head." The black eye was visible nine days later. On this record, we cannot say it was an abuse of discretion for the hearing officer to credit the department's evidence over the father's account. See B.K. v. Department of Children & Families, 79 Mass. App. Ct. 777, 781 n.4 (2011), quoting Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 393 n.8 (2010) ("we will not review credibility determinations where, as here, the record fully supports [the department]'s conclusion").
Judgment affirmed.
By the Court (Kinder, Henry & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 10, 2021.