Opinion
No. CV 106008418
October 5, 2011
MEMORANDUM OF DECISION
The plaintiffs, Virginia and George Dunnack, appeal from an October 8, 2010 final decision of a hearing officer for the defendant department of children and families (DCF) upholding the DCF's placement of the plaintiff on its central registry. See General Statutes §§ 17a-101g(b); 17a-101k.
The plaintiffs are aggrieved for purposes of this administrative appeal under § 4-183(a) due to the final decision upholding their placement on the DCF central registry.
Section 17a-101g(b) requires DCF to determine whether a child has been abused or neglected, whether an identifiable person was responsible for such abuse or neglect, and whether such identifiable person should be placed on the child abuse and neglect central registry. Section 17a-101k mandates the establishment of the registry, allows for the alleged actor to receive notice of his potential placement on the registry, and to request a hearing before placement. If the hearing officer finds that the DCF substantiation should be upheld, and determines that this substantiation warrants placement on the central registry, the person may take an administrative appeal per § 17-101k(e).
The record shows that the plaintiffs received notice on July 7, 2010 that the DCF had substantiated emotional abuse and physical and emotional neglect involving one child residing with them and physical and emotional neglect against another child. The DCF informed the plaintiffs that they were to be placed on the central registry, and they requested a hearing. The hearing took place on September 23, 2010 and on October 8, 2010, the hearing officer made the following findings:
1. In November of 2000, seven-year-old S. and five-year-old H. were placed with the Appellants, their maternal aunt and uncle. In June of 2003, the Appellants became the legal guardians for S. and H.
In this opinion, the children's names have been given only by initial.
2. On January 14, 2004, the Department received a referral regarding H. and Appellant Virginia. The allegation of physical abuse was not substantiated. On January 1, 2009, a referral was received regarding S. and both Appellants. The allegations of emotional abuse were not substantiated. On February 3, 2009, the Department received a referral regarding S. and both Appellants. The allegations of emotional abuse and emotional neglect were not substantiated. On March 8, 2010, a referral was received regarding S. and both Appellants. Allegations of physical neglect, emotional abuse, and emotional neglect were not substantiated. A voluntary service referral was made.
3. In February of 2009, S. was hospitalized in Natchaug Hospital. S. was hospitalized again in March of 2010. The boy was diagnosed as bipolar and oppositional defiant. The hospital staff found that the Appellants were verbally inappropriate with S.
4. On April 1, 2010, Appellant Virginia took S.'s backpack from him.
5. In the evening of Sunday, April 4, 2010, the Appellants learned that S. had not put his dirty clothes in the laundry. They told S. to sleep on the floor on top of the dirty clothes. The Appellants then went to the casino. S. slept on the clothes on the floor until around 2:00 a.m. when the Appellants returned and went to bed.
6. On Monday, April 5, 2010, the school gave S. a backpack to take home. When S. arrived home from school, Appellant Virginia accused him of stealing the backpack and to return it. S. left the home and threw the backpack on the side of the road. When he returned to the home, Appellant Virginia did not allow him in the home and told S. that he had to wait on Main Street until Appellant George returned home from work at midnight. Around 12:30 a.m., S. saw Appellant George pull into their driveway. S. knocked on the door and both Appellants told him that he could not enter the home. They shut the door on him. S. walked to his grandmother's home where he stayed the night.
7. On April 5, 2010, the Department received a referral regarding S. sleeping on the floor on top of dirty clothes. At the time of the referral, S. was sixteen-years-old and H. was fourteen-years-old. The Appellants' twenty-six-year-old daughter was also living with them.
8. The next day, Tuesday, April 6, 2010, S. went to school from his grandmother's house. The boy went home after school. He saw a blue book bag on the front step. Appellant Virginia came to the door and told S. his medications were in the bag, that he was to leave, and not return until Appellant George came home from work around midnight. S. walked to a friend's house and asked if he could stay the night. S. stayed at his friend's house.
9. Appellant Virginia had previously directed S. to wait outside until Appellant George returned home from work around midnight. In March of 2010, the Appellants took away all reading materials from S.
10. On April 7, 2010 the Department mediated a respite plan for S. to stay at his paternal aunt and uncle's home. The Appellants represented that they did not want to be guardians for S. S. went to stay with his paternal aunt and uncle.
11. On April 14, 2010, the Appellants took S. to see his probation officer. Appellant Virginia started talking about S's mental health and medical issues with a complete stranger. S. became very emotional about her disclosures. Appellant George, in S.'s presence, told the probation officer that S. had been a financial obligation and they did not want him to return to their care. S. indicated that he did not want to return to their home and that he did not feel safe there. On the drive back to paternal aunt and uncle's, the Appellants told S. that he had caused all of this stress.
12. On April 9, 2010, the Appellants, their adult daughter, and H. went out to dinner. Appellant Virginia started to disrespect H.'s friend and state that H. was becoming the same way. H. and the Appellant's daughter tried to stand up to Appellant Virginia. Appellant Virginia told H. and her daughter that they were kicked out and could not come back home. The daughter and H. drove around for approximately three hours until the Appellant Virginia was in bed. They entered the residence and went to bed. The following morning, Appellant Virginia told H. to leave the home. The girl walked to her grandmother's house. H. returned home a few hours later.
13. H. had been talking to her school guidance counselor every week or so. They talked about the issues in her home and how to manage the stress. H. did not want the Appellants to know that she was talking to the guidance counselor.
14. On April 19, 2010 the Appellants told the Department's investigator that they were done with both H. and S. They agreed to go to probate with the paternal uncle to transfer guardianship of S. Temporary guardianship of S. was awarded to the paternal uncle.
15. While living with his paternal aunt and uncle, S. talked with his sister on several occasions. He did not tell the Appellants about his conversations with H. because he was fearful that she would receive repercussions.
16. At a Probate Court hearing on May 4, 2010 to permanently transfer guardianship of S. to the paternal aunt and uncle, Appellant Virginia represented that visits between H. and S. would need to be in her presence.
17. While living with the Appellants, S. was attending a technical high school. He was doing well academically. He was suspended for five school days after punching another student in the face on October 30, 2009.
(Return of Record, ROR, Final Decision, pp. 2-4.)
Based on these factual findings, the hearing officer first upheld the DCF substantiation of physical neglect by the plaintiffs as to S., as they were his guardians and responsible for his physical safety. The hearing officer relied on the backpack incident, Finding 6 above, to conclude that S. had been wrongly denied access to his home. ( Id., p. 4.)
The hearing officer next upheld the DCF substantiation of emotional abuse by the plaintiffs as to S. Here, the hearing officer relied upon the backpack incident as well as statements made by the plaintiffs to third parties. These actions and statements were "harsh and cold," and inappropriate for a child who had mental health needs. ( Id., pp. 4-5.)
The hearing officer next upheld the DCF substantiation of emotional neglect by the plaintiffs as to S. and H. The hearing officer relied on the same findings as above for S. to show that he was not receiving proper emotional care. As to H., the facts found showed that she had been excluded from home and was punished for speaking out for herself and S. She was not being given proper emotional care. ( Id., pp. 6-7.)
The hearing officer then separately concluded that the plaintiffs should be placed on the central registry. In this case, the hearing officer used the criteria of DCF Policy 34-2-8 to determine the ultimate issue of whether the plaintiffs posed a risk to children. The factors taken into account were the person's intent, the severity of the impact to the child, the chronicity of the conduct, and the existence of substance abuse or domestic violence. (ROR, Final Decision, p. 7.)
With regard to intent, the hearing officer found that the plaintiffs had sufficient knowledge of the appropriate standard of care, but made a conscious decision not to meet the standard for S. and H. "They should have had knowledge and understanding of the implications of their strict and excessive discipline on [S.] and chose again to repeat this pattern with [H.]." ( Id.).
With regard to severity, the plaintiffs' treatment of S. led to serious adverse impact. The treatment of H. was beginning to mirror S.' treatment and demonstrated a serious disregard for her welfare. ( Id.)
With regard to chronicity, the DCF proved that the incidents of April 2010 were not isolated, but chronic. There were several incidents in April. ( Id.) The hearing officer did find that neither substance abuse nor domestic violence played a role. ( Id., pp. 7-8.) The hearing officer concluded that the plaintiffs were a risk to the health, safety, and well-being of children and placed them on the central registry. ( Id., p. 8.) This appeal followed.
Finding 2 indicates that there were other unsubstantiated incidents. The court has ruled that such incidents may be considered when determining whether a person may be placed on the central registry. Vines v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 08-4016779 (November 24, 2008, Cohn, J.) [ 46 Conn. L. Rptr. 703].
In this appeal, the court follows recent appellate cases setting forth the standard of review. See Hogan v. Dept. of Children and Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009) (upholding the hearing officer's findings and conclusions): "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted.)
The Supreme court in Hogan reversed this court, finding substantial evidence of abuse in the record.
In addition, Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833, 955 A.2d 15 (2008) provides: "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) The fact that the hearing officer discounted contrary evidence in the record does not affect the validity of the DCF decision. See Papic v. Burke, 113 Conn.App. 198, 211, 965 A.2d 633 (2009): "In making this determination, we must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness . . . in whole or in part." (Internal quotation marks omitted.)
Also, as the Appellate Court has stated in setting the applicable standard of review: "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . [A]s to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." Blinkoff v. Commission on Human Rights Opportunities, 129 Conn.App. 714, 720-21, 20 A.3d 1272 (2011).
In this case, the plaintiffs acknowledge the standard of review, but question whether the hearing officer applied the standard correctly. Both with regard to the upholding of the substantiations and the placement on the central registry, the plaintiffs contend that the hearing officer favored the DCF investigative worker's testimony over the testimony of Virginia Dunnack. They also make the following argument. The DCF investigative protocol, Exhibit 8, shows that the DCF investigator relied extensively on her discussions with S. and H. The information on prior incidents came from S., and the DCF had not substantiated the prior incidents. The DCF had not looked at S.' school records or considered the plaintiff's efforts to obtain voluntary services from DCF. Finally, the DCF did not consider S.' mental health diagnosis as defiant and someone who would cast blame on others. H.'s information was biased by her support for S.
On the other hand, the testimony and documents produced at the hearing convinced the hearing officer to uphold DCF's determination. The "book bag incident," the "sleeping on dirty clothes event," the plaintiffs' insults of S., given at the hospital and probation office, and the barring from the house for both S. and H. were in the record. (ROR, Exhibit 8.) As indicated above, the court must defer to the hearing officer on credibility issues. See Spitz v. Board of Examiners, 127 Conn.App. 108, 119, 12 A.3d 1080 (2011).
The court is not prepared to hold that the hearing officer erred in the factual findings. Under the substantial evidence rule, there is no ground to reverse the DCF substantiations that show disregard for the children's welfare, or the placement on the central registry because the plaintiffs posed a risk for children.
As the DCF did not act unreasonably, illegally, arbitrarily or in abuse of discretion, the appeal is dismissed.