Franklin Rodriguez v. Department of Children and Families (2009)

MEMORANDUM OF DECISION

The plaintiff appeals from a final decision of a hearing officer for the department of children and families (DCF) dated November 27, 2007, upholding the substantiation of sexual abuse and moral neglect and the placing of the plaintiff's name on the DCF's central registry.¹  General Statutes §§ 17a-101g(b);  17a-101k.²

After the DCF completed an investigation in this matter and concluded that a substantiation should be made (Return of Record, ROR, Exhibit 1), the plaintiff, pursuant to § 17a-101k(c)(3), requested a substantiation hearing.  (ROR, Exhibit 2.) The hearing was held on October 3, 2007.   The hearing officer subsequently issued the final decision on November 27, 2007, making the following findings of fact:

1.  The Appellant 3 was born in 1976.   He became romantically involved with Yomaire A., date of birth August 2, 1984, in 1997, when the Appellant was twenty-one, and Yomaire was thirteen.   Yomaire was twice treated for Chlamydia in 1998, and had a miscarriage five months into a pregnancy that same year.   Yomaire denied having sexual relations with anyone other than the Appellant.   The couple is still together, and they have four children together.   The oldest was born in 2000, and the youngest was born in 2005.   This family lives with Yomaire's mother in East Hartford.

2. The Appellant was born in the Dominican Republic.   His family and Yomaire's family have known each other since the two were children.

3. Yomaire's niece, Yasmine E., was born on May 4, 1995.

4. Yasmine lives in Hartford and attends school in East Hartford.   After school, the child goes to the Appellant's home until her mother can pick her up.

5. When Yasmine was approximately nine years old, she told her mother that the Appellant “bothered her.”   Yasmine also told a family friend, Merta O., that the Appellant “bothered her.”   The child did not provide any details, and neither of the women questioned her further.

6. In 2006, Yasmine told Merta that Franklin had propositioned her.   Merta encouraged Yasmine to tell her mother.   Yasmine told her mother that Franklin offered her money and or a cell phone if Yasmine would “do it” with him.   Yasmine's mother contacted the authorities.

7. After Yasmine told her mother about the proposition, Yasmine reminded her mother and Merta of her earlier complaints.   Yasmine informed the women that the Appellant had touched her “everywhere.”

8. The report was assigned to Camilla St. Andrew to investigate.

9. Yasmine told the investigator that the Appellant offered her money for sex on two occasions, and that each time, the child declined.   She also reported that he had touched her breast, over her clothes.   She said that she was standing at the refrigerator in his home, and that he came up from behind her and hit her butt with his hand.   She told him not to be fresh.   He then proceeded to touch her breast.   She described another incident when she was lying on her grandmother's bed playing Play Station, and the Appellant came in and asked if he could kiss her.   She said no, but reported that he forced her to kiss him.   She said that he grabbed her and touched her between the legs and everywhere.   She said the she had her clothes on, but that he attempted to remove them.   She said that she kept telling him stop and pushed him away.   She said that her aunt and grandmother were downstairs, and that he stopped when he believed someone was coming up the stairs.

10. The Appellant denied the child's allegations.

11. The Appellant is a bus driver.  (ROR, Modified Final Decision, p. 2.)

Based on these findings of fact, the hearing officer first addressed the DCF substantiation for sexual abuse.⁴  The hearing officer upheld the substantiation.   DCF had met its first burden by showing that the plaintiff was a person given access to the child as part of her mother's after-school pick-up plans.   Secondly, the DCF's claims that the child had been exposed to sexual contact by the plaintiff had been proven by a preponderance of the evidence.   The plaintiff's claim that the child had invented the accusation only after he had rebuked her for having a sexual relationship with his cousin “Rudy” was not credible.   The hearing officer also upheld the DCF's substantiation of moral neglect, because his request for sexual contact was “encouraging the child to engage in illegal behaviors.”  (Id., pp. 4-5.)

The hearing officer, as required by § 17a-101k, next considered whether to uphold the placement of the plaintiff on the registry list.   Under DCF Policy, § 34-2-8, the placement on the registry list was mandatory as sexual abuse was substantiated and the person responsible was over sixteen years of age.   In addition the hearing officer applied the discretionary criteria of § 34-2-8, concluding that the plaintiff intended to have sex with his wife's niece, threatened the child's physical and emotional well being, and had a history of such behavior.  (Id., pp. 5-6.)

This appeal followed.   Our Supreme Court in Hogan v. Dept. of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009) has set forth the applicable standard of court review when a DCF hearing officer upholds a placement under § 17a-101k:  “At the outset, it is important to underscore that the scope of judicial review of an administrative agency's decision under § 4-183 is very restricted ․ [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ 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 of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Citations omitted;  internal quotation marks omitted.)   See also Adams v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 06 4011617 (February 26, 2007, Cohn, J.);   D'Oleo v. Hamilton, Superior Court, judicial district of New Britain, Docket No. CV 08 4016160 (December 3, 2008, Cohn, J.) (dismissing administrative appeals from DCF placement decisions).

The plaintiff first contends that the hearing officer erred in setting forth in finding of fact # 1 that the plaintiff had “become romantically involved” with Yomaire A. when Yomaire was thirteen and the plaintiff was twenty-one.   The hearing officer apparently made use of this finding when concluding on page 6 that the plaintiff had a pattern of conduct with young children.   The plaintiff argues that the hearing officer was making an unwarranted link between the Yomaire relationship and the alleged incident with the child.

The court must, however, rely on the state of the record in deciding whether the hearing officer erred.  Hogan v. Dept. of Children & Families, supra, 290 Conn. 561.   The record shows in Exhibit 6 at pages 8-9 and the hearing transcript at page 18 that there were other young children that had experiences with the plaintiff, involving sexual improprieties.   In addition, the link to Yomaire and the other young people was part of the hearing officer's efforts to analyze “chronicity,” or repetitive behavior, as part of the registry list placement.   The incidents with Yomaire played no part in the hearing officer's upholding the DCF substantiation.   Based on the record, the hearing officer's factual finding was not illegal or an abuse of discretion.⁵

The plaintiff claims secondly that there was a lack of substantial evidence of his sexual advances.   It is his contention that the child was at the plaintiff's home waiting for her mother to fetch her after school, and numerous people were in the house who would have seen the plaintiff's alleged activities.   The answer here is that this was a credibility determination for the hearing officer.   See, e.g., Adams v. Department of Children and Families, supra, where the child alleged that she had been subject to sexual abuse, the plaintiff denied the child's allegations and the hearing officer concluded that the abuse had taken place.   The hearing officer here similarly found that the child was credible (ROR, final decision, p. 5), relying on her statement in the record (ROR, Exhibit 6, pp. 8-9).

Finally, the plaintiff argues that the child made up evidence of the plaintiff's sexual advances as a defensive maneuver, after the plaintiff confronted her about her conduct with Rudy.⁶ The record supports the hearing officer's disbelief that the “Rudy confrontation” would have led to the child's invention of sexual assaults by the plaintiff.   The child's mother was aware of the child's relationship with Rudy. (ROR, Exhibit 6, p. 10.)   The child stated that the plaintiff had been “bothering her” for two years, well before the Rudy confrontation.  (ROR, transcript, pp. 11, 27.)

Therefore the court concludes that the DCF hearing officer did not act illegally or in abuse of discretion in substantiating the plaintiff for sexual abuse and the placement of the plaintiff's name on the DCF central registry.   The administrative appeal is therefore dismissed.⁷

Henry S. Cohn, Judge

FOOTNOTES

FN1. Aggrievement for purposes of an appeal under § 4-183(a) is found on the hearing officer's upholding of the DCF substantiation and placement on the registry list..  FN1. Aggrievement for purposes of an appeal under § 4-183(a) is found on the hearing officer's upholding of the DCF substantiation and placement on the registry list.

FN2. Section 17a-101g(b) requires DCF to determine whether a child has been abused, whether an identifiable person was responsible for such abuse, and whether such identifiable person should be placed on the child abuse and neglect registry.  Section 17a-101k mandates the establishment of the central registry, allows for the alleged abuser to receive notice of his potential placement on the registry and to request a hearing before placement.   If the hearing officer finds that the person's name should be added to the registry, he may take an administrative appeal.  General Statutes § 17a-101k(e)..  FN2. Section 17a-101g(b) requires DCF to determine whether a child has been abused, whether an identifiable person was responsible for such abuse, and whether such identifiable person should be placed on the child abuse and neglect registry.  Section 17a-101k mandates the establishment of the central registry, allows for the alleged abuser to receive notice of his potential placement on the registry and to request a hearing before placement.   If the hearing officer finds that the person's name should be added to the registry, he may take an administrative appeal.  General Statutes § 17a-101k(e).

FN3. In these findings of fact, the plaintiff is referred to as the “Appellant” or “Franklin.”.  FN3. In these findings of fact, the plaintiff is referred to as the “Appellant” or “Franklin.”

FN4. Under the revised procedure of P.A. 05-207, the hearing officer was obliged first to consider whether the DCF had concluded correctly that a substantiation of abuse should be made, and then determine whether the individual against which the substantiation was made was properly placed on the registry list. § 17a-101k(a)..  FN4. Under the revised procedure of P.A. 05-207, the hearing officer was obliged first to consider whether the DCF had concluded correctly that a substantiation of abuse should be made, and then determine whether the individual against which the substantiation was made was properly placed on the registry list. § 17a-101k(a).

FN5. The plaintiff also argues that his conduct was not addressed in an earlier DCF investigation of his relationship with Yomaire, and only Yomaire's mother was substantiated.   Therefore, the plaintiff claims that the DCF erred in bringing his relationship with Yomaire into this investigation.   The court has previously ruled, however, that “[a]n unsubstantiated allegation does not mean it didn't happen;  it means that, standing alone, the allegation either did not rise to the level of legal neglect or abuse and/or the evidence was sufficiently ambiguous that the allegation could not be sustained by a fair preponderance of the evidence.   However, to ignore a pattern of similar allegations in the context of a child protection investigation simply because each one standing alone is not legally sufficient would be irresponsible and create an unacceptable level of risk to the child.”   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]..  FN5. The plaintiff also argues that his conduct was not addressed in an earlier DCF investigation of his relationship with Yomaire, and only Yomaire's mother was substantiated.   Therefore, the plaintiff claims that the DCF erred in bringing his relationship with Yomaire into this investigation.   The court has previously ruled, however, that “[a]n unsubstantiated allegation does not mean it didn't happen;  it means that, standing alone, the allegation either did not rise to the level of legal neglect or abuse and/or the evidence was sufficiently ambiguous that the allegation could not be sustained by a fair preponderance of the evidence.   However, to ignore a pattern of similar allegations in the context of a child protection investigation simply because each one standing alone is not legally sufficient would be irresponsible and create an unacceptable level of risk to the child.”   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].

FN6. The plaintiff claims that he did not have an adequate opportunity to obtain the file that the DCF assembled on Rudy two months after the agency investigated the allegations against the plaintiff.   But the hearing officer did not preclude the plaintiff from testifying about his confrontation with the child over Rudy (ROR, Exhibit 6, p. 12, Transcript, p.37).   Rather the hearing officer rejected as not credible the plaintiff's position that the confrontation had led to the child inventing evidence.   The DCF investigative file on Rudy was not needed for the plaintiff's contentions..  FN6. The plaintiff claims that he did not have an adequate opportunity to obtain the file that the DCF assembled on Rudy two months after the agency investigated the allegations against the plaintiff.   But the hearing officer did not preclude the plaintiff from testifying about his confrontation with the child over Rudy (ROR, Exhibit 6, p. 12, Transcript, p.37).   Rather the hearing officer rejected as not credible the plaintiff's position that the confrontation had led to the child inventing evidence.   The DCF investigative file on Rudy was not needed for the plaintiff's contentions.

FN7. The plaintiff, who lacked an attorney at the hearing, claims that he did not have an adequate opportunity to present his case.   The court reads the transcript to show that the hearing officer tried to be helpful to the plaintiff as a self-represented party.  (For example, ROR, transcript, pp. 5, 22-23.)   The hearing did not violate the plaintiff's right to a fair trial.  “Although we are mindful of our policy to be solicitous of [self-represented parties] such policy is applicable only when it does not interfere with the rights of other parties.”  (Citations omitted;  internal quotation marks omitted.)  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 177 (2009)..  FN7. The plaintiff, who lacked an attorney at the hearing, claims that he did not have an adequate opportunity to present his case.   The court reads the transcript to show that the hearing officer tried to be helpful to the plaintiff as a self-represented party.  (For example, ROR, transcript, pp. 5, 22-23.)   The hearing did not violate the plaintiff's right to a fair trial.  “Although we are mindful of our policy to be solicitous of [self-represented parties] such policy is applicable only when it does not interfere with the rights of other parties.”  (Citations omitted;  internal quotation marks omitted.)  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 177 (2009).

Cohn, Henry S., J.