Matthew Martowsa v. Department of Children and Families (2011)

MEMORANDUM OF DECISION

The plaintiff, Matthew Martowska, appeals ¹ from a January 5, 2011 final decision, and a February 15, 2011 reconsideration ruling, of a hearing officer for the department of children and families (DCF), upholding as to one child the DCF's substantiation of the physical neglect of his four children under DCF policy manual § 34–2–7.   On June 21, 2010, the DCF had issued a Notification (Return of Record (ROR), Exhibit 1) substantiating physical neglect as to the four children.   The plaintiff then asked for a hearing before a DCF hearing officer.   The hearing was held on three dates in 2010.   On January 5, 2011, the hearing officer issued a final decision, making the following findings of fact:

1. The Appellant [plaintiff] is the father of [O,] d.o.b. 8/19/08, and [M,] d.o.b. 10/11/05 and the stepfather of [C,] d.o.b. 4/15/03 and [D,] d.o.b. 2/12/02.   The Appellant is married to Courtney M. O is the daughter of the Appellant and Courtney.   M is the daughter of the Appellant from a prior relationship.   C and D are the sons of Courtney from a prior relationship.

2. The Appellant and Courtney have a history of engaging in domestic violence.   They also engaged in domestic violence in prior relationships.   For example, the Appellant engaged in domestic violence with the mother of M, and Courtney engaged in domestic violence with the father of C and D. Both the Appellant and Courtney have attended domestic violence counseling in the state of Massachusetts.

3. M disclosed to her mother that there is constant yelling at the Appellant's home.   As a result of the yelling, M complained that her stomach hurts sometimes and she does not want to visit the Appellant or Courtney.   D and C also disclosed that the Appellant yells a lot.

4. On February 28, 2010, the Appellant and Courtney engaged in an altercation.   The argument began in the couple's bedroom, moved into D's and C's bedroom, the kitchen and then moved outside.   During the argument, Courtney went into C's and D's bedroom to retrieve a baseball bat.   The Appellant put Courtney in a choke hold and picked her up off the ground by her neck.   Courtney screamed for the children to call the police.   During this time, C and D remained in their bedroom.   The argument advanced to the kitchen and then outside to the front yard, where Courtney used the bat to break the Appellant's car window.

5. While the Appellant and Courtney were outside, C and O were inside the house and D was on the front porch.

6. M was in close proximity to the Appellant and Courtney while they were outside fighting.   The Appellant grabbed and picked up four-year-old M and placed her into the family's SUV. The Appellant placed M on the center console, not properly restraining her before speeding away.   He drove the SUV in the direction of Courtney and nearly ran her over, as he sped away.   D shouted at the Appellant “don't run my Mommy over.”   M disclosed being scared during the altercation.

7. On March 16, 2010, the Appellant was arrested and charged with Disorderly Conduct, Unlawful Restraint in the First Degree, Reckless Endangerment in the First Degree and Strangulation in the Third Degree.   The criminal charges are still pending.  (Supplemental Return of Record, Final Decision.)

On January 19, 2011, the Appellant (plaintiff) moved that the DCF hearing officer reconsider facts as found in the final decision.   On February 15, 2011, the hearing officer responded;  the following is a summary of the hearing officer's responses to each of the Appellant's claims on reconsideration.

1. While the Appellant claims otherwise, the argument on February 28, 2010, between the Appellant and Courtney advanced from inside the house to the front yard.  “The evidence in the record shows that instead of staying in the house to protect M, the Appellant grabbed [M] and proceeded to his wife's truck located outside—where his wife had just smashed the window of his car ․ The situation was volatile.   The Appellant placed M onto the center console of the truck without properly securing her in a car seat, and sped away, nearly running over Courtney ․ the hearing officer found that the Appellant acted erratically by placing M close to the conflict, thus endangering the child's physical well-being and placing her in a zone of danger of also being physically injured.”

2. The evidence established that M and the Appellant were in close proximity during the incident.

3. M was in danger of being hit while Courtney was swinging the bat.

4. His actions may not have had a physical impact on M on February 28, 2010, but the Appellant showed serious disregard for M's physical safety on that date, and this was sufficient under the DCF policy for physical neglect.

5. Although the Appellant objected to the hearing officer's consideration of M's disclosure that she did not like to visit the Appellant and Courtney because of their yelling and “it sometimes gave her a stomach ache,” the hearing officer properly considered the statement by M. It demonstrated to the hearing officer that domestic violence was common in M's presence, impacting M emotionally and physically.   M's statement also showed that the Appellant knew or should have known of how his actions negatively impacted M, including placing M in the middle of adult conflicts.

6. The condition of fear found by the hearing officer related to M's being placed by the Appellant in a zone of danger.

7. M was in danger because she was close to the Appellant during the incident on February 28 and was placed in the truck without a car seat as the truck sped away.

8. While the DCF was unable to interview the Appellant before concluding its investigation, the Appellant gave evidence before the hearing officer that was carefully considered.   The substantiations were reversed except for that of M. (ROR, Ruling on Appellant's Motion for Reconsideration.)

In the final decision of January 5, 2011, the hearing officer, based on the facts as found in the record,² concluded that the DCF had failed to meet the preponderance of evidence standard for children O, C and D for a substantiation.   With regard to M, the hearing officer concluded that the DCF had met its burden so that the substantiation of physical neglect would be upheld.

The hearing officer stated:  “In order to support a substantiation of physical neglect the Department must demonstrate:  (1) the Appellant is a person responsible for the children's health, welfare or care ․ (2) the Appellant denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being;  and (3) the failure resulted in an adverse physical impact on the children unless the act was a single incident that demonstrated a serious disregard for their welfare.   DCF Policy 34–2–7.”

As to M, the hearing officer relied on the facts as found:  (1) the altercation, first verbal and then physical, occurred between the Appellant and Courtney, (2) M's presence “in the middle of the altercation,” (3) the appellant's placing of M in the range of the swinging bat, and (4) M's being thrown into a vehicle by the appellant and his speeding off.   This was physical neglect because (1) the Appellant was M's father and responsible for her care, (2) M was denied proper care and attention through the Appellant's actions and (3) the February 28 incident demonstrated serious disregard for M's welfare and M had stated that she did not want to go to visit “the Appellant and Courtney because there's always yelling in their house and sometimes it gives her a stomach ache.”  (ROR, Supplemental Return of Record, Final Decision.) ³

The plaintiff's appeal followed.   In this appeal, the court relies on 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.) ⁴

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).

To the extent that the plaintiff seeks in this appeal to overturn the findings of the hearing officer, the above-cited cases reject this argument.   While he contends that on February 28 M was not in the middle of an argument or was not “close” to her father or that she was not in danger in the vehicle that he was driving, there is substantial evidence to the contrary.  (ROR, Exhibit 11, pp. 7, 8, 13.)   The court, under the standards of § 4–183(j), will not reverse the hearing officer on the facts found in upholding the substantiation.

The plaintiff also claims that the hearing officer was biased because M's physical injury forms the basis of the January 5 final decision, while a disregard for M's welfare is the basis of the February 15 reconsideration.   According to the plaintiff, this shows that the hearing officer was unfairly “reaching out” in the reconsideration to find a way to uphold the substantiation.

The court has reviewed both the final decision and the reconsideration ruling and does not observe any difference between the two.   In each, the hearing officer was concerned both that M had been placed at risk by the plaintiff and had also stated to her mother that the plaintiff and Courtney had engaged in domestic violence that sometimes gave her a stomach ache.⁵  The fact pattern of misbehavior by the hearing officer, as advanced by the plaintiff, is too speculative to justify a finding of bias in an administrative proceeding.   See Clisham v. Board of Police Commissioners, 223 Conn. 354, 361–62, 613 A.2d 254 (1992);  Moraski v. Board of Examiners of Embalmers, 291 Conn. 242, 967 A.2d 1199 (2009).⁶

The plaintiff also argues that M's complaint of a stomach ache does not date from the February 28 incident, but must have occurred at another time or times.   He argues that the hearing officer should not have made use of prior incidents to justify a finding of physical neglect arising from the February 28 incident.   On the contrary, this court has held that prior incidents, even if not substantiated at the time of their occurrence, may be considered by the DCF when a substantiation is eventually made.   See 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], quoting with approval a DCF hearing officer:  “An unsubstantiated allegation does not mean it didn't happen;  it means that, standing alone, the allegation 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 sufficient would be irresponsible and create an unacceptable level of risk to the child.”   As the hearing officer stated in the reconsideration ruling at page 3:  “The hearing officer finds that [M's statement regarding yelling in the plaintiff's home and her resulting stomach ache] supports a finding that domestic violence and altercations between the Appellant and his wife were common occurrences in the child's presence and that it impacted her emotionally and physically.”

The plaintiff next argues that neither § 46b–120 nor DCF Regulation § 17a–101k–1(4) contain the clause found in DCF Policy 34–2–7 that no physical impact need be shown if “the act was a single incident that demonstrated a serious disregard for [a child's] welfare.”   The plaintiff therefore contends that the clause in DCF Policy 34–2–7 is void.   The answer to this is that neither § 46b–120 nor Regulation § 17a–101k–1(4) set forth a limiting definition of “physical injury,” constituting neglect, but leave the DCF free to consider the full parameters of the term, “physical.”   The DCF has set forth its definition of physical neglect in Policy 34–2–7.   An agency is allowed to develop its own policies in keeping with its statutory duties, and the court may rely on agency policy when, as here, it is enforced over a substantial period of time.   See MacDermid, Inc. v. Dept. of Transportation, 257 Conn. 128, 138–39, 778 A.2d 7 (2001).

Finally, the plaintiff claims that the DCF's failure to interview him, as required by DCF protocol before a substantiation is made, required the hearing officer to overturn the substantiation.   The record shows that the plaintiff was not available when the investigator tried to reach him.  (ROR, Exhibit 11, p. 11.)   He did testify at the hearing, however, and his testimony was evaluated by the hearing officer.   Therefore, he has not demonstrated the prejudice, in not following the protocol, required for this court to sustain his appeal.   See Jones v. Connecticut Medical Examining Board, 129 Conn.App. 575, 581, 19 A.3d 1264, cert. granted on other grounds, 302 Conn. 921 (2011);  Papic v. Burke, supra, 113 Conn.App. 221.

The appeal is therefore dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The plaintiff is aggrieved as the hearing officer upheld the DCF substantiation as to one child..  FN1. The plaintiff is aggrieved as the hearing officer upheld the DCF substantiation as to one child.

FN2. The ruling on reconsideration did not make any additional findings of fact beyond those in the final decision;  it only stated the same facts more fully..  FN2. The ruling on reconsideration did not make any additional findings of fact beyond those in the final decision;  it only stated the same facts more fully.

FN3. Although it substantiated physical neglect against the plaintiff, the DCF did not seek to place him on its central registry. § 17a–101k..  FN3. Although it substantiated physical neglect against the plaintiff, the DCF did not seek to place him on its central registry. § 17a–101k.

FN4. The Supreme court in Hogan reversed this court in part.   In its opinion, this court had remanded the administrative appeal for the further taking of evidence of “chronicity.”   The Supreme Court read the record as it existed to demonstrate a pattern of inappropriate behavior by the plaintiff that met the requirements of substantial evidence..  FN4. The Supreme court in Hogan reversed this court in part.   In its opinion, this court had remanded the administrative appeal for the further taking of evidence of “chronicity.”   The Supreme Court read the record as it existed to demonstrate a pattern of inappropriate behavior by the plaintiff that met the requirements of substantial evidence.

FN5. The mother's statement about the domestic violence and the child's stomach ache is in the record.  (ROR, Exhibit 11, p. 10.)   The court disagrees with the plaintiff's contention that since at the hearing, a DCF witness stated that there was no evidence of physical injury on February 28, the hearing officer could not rely on the mother's statement to the DCF in Exhibit 11.   Rather it was within the province of the hearing officer to decide whether to rely on the evidence produced at the hearing or to rely on the statements in Exhibit 11, or to credit some portions of both..  FN5. The mother's statement about the domestic violence and the child's stomach ache is in the record.  (ROR, Exhibit 11, p. 10.)   The court disagrees with the plaintiff's contention that since at the hearing, a DCF witness stated that there was no evidence of physical injury on February 28, the hearing officer could not rely on the mother's statement to the DCF in Exhibit 11.   Rather it was within the province of the hearing officer to decide whether to rely on the evidence produced at the hearing or to rely on the statements in Exhibit 11, or to credit some portions of both.

FN6. The fact that the substantiations for the other children were overturned by the hearing officer undercuts the plaintiff's contention that the hearing officer was biased against him.   The claim of lack of due process is also difficult to find when the plaintiff was afforded a hearing under the Uniform Administrative Procedure Act. Pet v. Dept. of Health Services, 207 Conn. 346, 356–57 (1988) (the UAPA standards exceed the requirements of the Due Process Clause)..  FN6. The fact that the substantiations for the other children were overturned by the hearing officer undercuts the plaintiff's contention that the hearing officer was biased against him.   The claim of lack of due process is also difficult to find when the plaintiff was afforded a hearing under the Uniform Administrative Procedure Act. Pet v. Dept. of Health Services, 207 Conn. 346, 356–57 (1988) (the UAPA standards exceed the requirements of the Due Process Clause).

Cohn, Henry S., J.