Farshad Malekahmadi v. Joette Katz, Commissioner Department of Children and Families (2012)

MEMORANDUM OF DECISION

Farshad Malekahmadi (plaintiff) appeals from a final decision issued on April 6, 2011 by the Department of Children and Families (DCF) affirming the substantiation of the plaintiff for the physical and emotional neglect of his daughters and upholding his placement on the child abuse registry.¹  See General Statutes §§ 17a–101g and 17a–101k.²

The record shows that on May 21, 2010, the DCF obtained an anonymous referral concerning the plaintiff and his family.  (Return of Record, ROR, Exhibit 4, p. 4–5.)   On October 7, 2010, following the conclusion of an investigation by DCF, the plaintiff received notice from DCF that it had substantiated allegations of physical and emotional neglect involving two minor children then residing with the plaintiff.  (ROR, Exhibit 1.) Additionally, having concluded that the plaintiff posed a risk to the health, safety or well-being of children, the DCF also recommended that the plaintiff be placed on the central registry.  Id. At the request of the plaintiff (ROR, Exhibit 2), a substantiation and central registry hearing was held on January 4, 2011 and February 8, 2011.  (ROR, Exhibit 13, p. 1.)

The hearing officer thereafter made the following findings:

1.  The Appellant is the father of [two minor children].

2. The Appellant and his [spouse] have a contentious relationship.   The Appellant abused his wife in the presence of his children.   On or about May 17, 2010, the Appellant's wife moved out of the [family] home.

3. The Appellant [frequently called his first born child derisive names] and made her feel “horrible.”  [The child] also heard the Appellant call her mother bad names.  [She] is afraid of the Appellant and it bothered her when she thought about the bad names he called her and her mother.   The Appellant also physically hit, grabbed, shoved and pushed [the child] regularly.

4. The Appellant blames [his first born] for the poor relationship he has with his wife and [the child] felt she was to blame for the assaults of her mother by the Appellant.  [The child is also] afraid of the Appellant and she worries often, preventing her from concentrating in school.

5. [The child] does not feel safe with the Appellant.  [She] and her sister [ ․ ] regularly witnessed the Appellant grab, shove and hit their mother.   In one incident, while in the family car, the Appellant backhanded his wife when she changed the radio station without asking his permission.  [The children] were present when the Appellant hit their mother and they stayed quiet [so as] to not further upset him.  [The elder child] described living with the Appellant [as] walking on eggshells.   She lives in fear that the Appellant would do something [bad] to her mother.   Prior to moving out of [the] home, [she] was afraid she might say or do something wrong in Appellant's presence.

6. The Appellant regularly called his wife [demeaning names].   Sometime in May 2010, the Appellant, again, referred to his wife [in disparaging terms].  [When the first born child] told her mother what the Appellant called her, [the Appellant] got mad at [the child], physically shoving and shaking her [while] repeating the name.   In fear, [the child] ran from the Appellant and hid under the kitchen table to get away from him.

7. [The younger child] disclosed [that] the Appellant hit her mother many times.  [She] also confirmed the Appellant [ ․ ] use[d] bad words when talking to her mother.   After [the children and their mother] moved out of [the family] home, she liked living in a hotel and did not want to see the Appellant.   While in school, [the younger child] presented as anxious and withdrawn.   She wrote letters in school to everyone she could think of and the school believed it was her way to distract herself from her family issues.

8. On May 27, 2010 the mother filed for a restraining order.

9. On June 1, 2010, the Appellant went to [visit his first born at school].   When [the child] was told by school authorities that her father was in the office, wanting to see her, she became nervous and cried.   She did not want to see the Appellant and asked her guidance counselor, Michelle Boulay, to be present while she visited with the Appellant.   After the visit, [child] said “he doesn't really care that much” and “I don't trust him.”   In further describing her father, [she] told Ms. Boulay, “he's putting on an act—I don't want to see him—he doesn't care—he's just putting on a show.”  [The child repeatedly] stated that she did not want any further contact with the Appellant.

10. [The first born] was nervous when she was in the presence of the Appellant.   She disclosed not being able to eat when she was nervous.   She also bit her nails.   Once [she] moved away from the Appellant, her eating behaviors improved and she stopped biting her nails.

11. The Appellant admitted pushing and shoving his wife in the presence of [the children] and stated “I know it isn't justified ․ I shouldn't have done it.”   When asked about the shoving incident [involving his daughter], the Appellant said “it might have happened,” minimizing the [significance of the] physical altercation [ ․ ].

12.  The Appellant engaged in therapy to address his anger issues and aggressive behaviors, but he continues to place blame for his actions on his wife and minimizes the impact his behavior [has] had on [the children].

13. None of the Appellant's witnesses resided in his home and [none of the Appellant's witnesses observed] the Appellant's actions when he was alone with his family.

Id., 2–3.

The DCF originally substantiated the plaintiff for emotional neglect on the basis that he exposed his daughters to family violence and circumstances injurious to their emotional development and well-being.  Id., 4. In order to support a substantiation of emotional neglect, the DCF must demonstrate that (1) the plaintiff is a person responsible for the health and welfare of the children and that (2) the plaintiff denied the children proper care and attention, or failed to respond to their needs, and therein produced an adverse impact on their emotional well-being or interfered with their positive emotional development.   DCF Policy 34–2–7.   An adverse impact is not necessary if the behavior was so egregious it demonstrated a serious disregard for the welfare of the children.  Id.

The hearing officer found that the plaintiff emotionally neglected his children by regularly exposing them to domestic violence.  (ROR, Exhibit 13, p. 4.) Additionally, the hearing officer noted that the plaintiff blames his first born for the poor relationship he has with his wife.  Id. The hearing officer further observed that the aggressive behavior of the plaintiff caused his older daughter considerable emotional distress, preventing her from concentrating in school, disrupting her eating habits, and causing her to bite her nails.  Id. Finally, the hearing officer remarked that the younger child presented as anxious and withdrawn, and preferred living in a hotel rather than staying with her father in the family home.  Id., 5. Concluding that the behavior of the plaintiff produced an adverse impact on the emotional development and well-being of his children, the hearing officer in the final decision upheld the substantiation of emotional neglect against the plaintiff.  Id.

The DCF originally substantiated the plaintiff for physical neglect on the basis that he exposed his children to domestic violence and permitted them to live under conditions, circumstances or associations injurious to their physical well-being.  (ROR, Exhibit 13, p. 5.) In order to support a substantiation of physical neglect, the DCF must demonstrate that (1) the plaintiff is a person responsible for the health and welfare of the children, (2) the plaintiff denied the children proper care and attention, permitting 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.   DCF Policy 34–2–7.   An adverse impact is not necessary if the act was so egregious it demonstrated a serious disregard for the welfare of the children.  Id.

The hearing officer found the regular exposure of the children to domestic violence demonstrated a serious disregard for the health and welfare of the children.  (ROR, Exhibit 13, p. 5.) The hearing officer cited, by way of example, one incident wherein the plaintiff, while driving with both children in the car, backhanded his wife when she changed the radio station without first asking his permission.  Id. Observing that the plaintiff could have caused an accident during the incident, the hearing officer found that the plaintiff failed to adequately provide for the physical safety of his children.  Id. The hearing officer further remarked that regular exposure to domestic violence demonstrated a serious disregard for the welfare of the children, and noted that the plaintiff verbally and physically assaulted both children, making them live in a perpetual state of fear.  Id., 6. Concluding that the behavior of the plaintiff produced an adverse impact on the physical welfare of his children, the hearing officer, in the final decision, upheld the substantiation of physical neglect against the plaintiff.  Id.

To have placement on the central registry, the DCF must make a separate finding as to whether or not a person responsible for child abuse or neglect poses a continuing risk to children, and if so, whether or not their names should be placed on the central registry of child abusers.  (ROR, Exhibit 13, p. 6.) “Some allegations of abuse or neglect result in an automatic recommendation for placement on the registry.”  Id. For all others, the DCF must look at a variety of factors, including the intent of the responsible person, the severity of the impact on the children, the chronicity of neglectful conduct, and the involvement of substance abuse or domestic violence in the abuse or neglect, to determine whether or not the responsible person poses a risk to children.   DCF Policy 34–2–8.

In addressing intent, the hearing officer examined whether there is reason to believe the perpetrator had sufficient knowledge and resources to provide adequate care to the children, had the ability to utilize them effectively, and had an understanding of the implications for failing to provide appropriate care, but made a conscious decision not to do so.  (ROR, Exhibit 13, p. 6.) The hearing officer concluded that the plaintiff had the knowledge and resources necessary to provide adequate for his children and the ability to effectively utilize such resources.  Id. He further noted that the plaintiff had a history of exposing his family to violence, had engaged in therapy to address his anger issues, thereby effectively demonstrating familiarity with the implications of his behavior for his children.  Id.

In considering the severity of the actions of the plaintiff, the hearing officer must determine if there was a serious impact to the victims, or a serious disregard for the welfare of the children.  (ROR, Exhibit 13, p. 6.) Citing the findings supporting the substantiation of the plaintiff for physical and emotional neglect, the hearing officer held that the actions of the plaintiff evinced a serious disregard for the welfare of the children.  Id.

In determining chronicity, the hearing officer reviewed whether there was a pattern of a chronic nature to the neglect, regardless of the measurable impact to the victims.  (ROR, Exhibit 13, p. 7.) The hearing officer found that the plaintiff physically and verbally abused his wife and children over an extended period, and therefore permitted the children to live under conditions and circumstances injurious to their well-being.  Id.

Finally, when substance abuse or domestic violence is a significant contributing factor in the substantiations, the hearing officer considers whether the perpetrator refused to acknowledge these factors, whether the perpetrator refused to take responsibility for the resulting conduct, and whether the perpetrator has put forward a viable plan to address the contributing factor or factors.  (ROR, Exhibit 13, p. 7.) The hearing officer, noting that domestic violence was a significant contributing factor in the decision of the department to substantiate the plaintiff for physical and emotional neglect, found that even though the plaintiff engaged in therapy to address his anger issues and aggressive tendencies, he continues to place blame for his actions on his wife and continues to minimize the impact of his behavior on his children.  Id.

In light of the findings concerning intent, severity, chronicity and contributing factors, the hearing officer concluded that the plaintiff posed a continuing risk to the health and welfare of children, and, in the final decision, affirmed the recommendation that the plaintiff be placed upon the central child abuse registry maintained by the DCF. Id.

On April 25, 2011, the plaintiff filed a petition for reconsideration.  (ROR, Exhibit 14, p. 1.) On May 23, 2011, the hearing officer denied the petition for reconsideration, citing the failure of the plaintiff to establish an error of fact or law, the failure of the plaintiff to establish the existence of any new evidence that materially affects the merits of the decision, and the failure of the plaintiff to demonstrate good cause for reconsideration.  (ROR, Exhibit 16.)   The plaintiff now appeals from the final decision of the DCF pursuant to § 4–183.

“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 reached by the administrative agency 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.”  (Citations omitted;  internal quotation marks omitted.)  Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn.App. 714, 720–21, 20 A.3d 1272 (2011.)   See also Hogan v. Dept. of Children and Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009.)

The plaintiff first claims that the evidence upon which the DCF substantiated the claims of physical and emotional neglect against him consisted exclusively of hearsay statements recounted by an investigator who did not observe the alleged conduct directly.   The introduction of such evidence into the record, the plaintiff contends, and its subsequent consideration by the hearing officer was improper and constituted a violation of due process.  (Complaint, p. 4.) Of course where “hearsay evidence is insufficiently trustworthy to be considered substantial evidence and it is the only evidence probative of the plaintiff's culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing ․ that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants.”  (Citations omitted;  internal quotation marks omitted.)  Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977.)

Hearsay testimony is, however, generally admissible in administrative hearings so long as it is sufficiently trustworthy.   See Family Garage, Inc. v. Commissioner of Motor Vehicles, 130 Conn.App. 353, 360, 23 A.3d 752, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011.)   Among the factors which support the trustworthiness of the evidence presented in this case are (1) that the investigator had no interest in the outcome of the case;  (2) that the investigation protocol was based on personal consultation and examination in accordance with procedures established by the department;  (3) that there was no inconsistency on the face of the reports;  and (4) that such written reports compiled by investigators have long been recognized by the courts as having inherent reliability and probative worth.   See Carlson v. Kozlowski, supra, 172 Conn. 267–68 (examining the factors identified by the Supreme Court as indicative of trustworthiness in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).)   Accordingly, the consideration of hearsay evidence by the hearing officer in lieu of exposing the minor victims of verbal and physical abuse to the trauma of testifying against an immediate family member was not sufficiently prejudicial to the plaintiff so as to constitute a violation of due process.

Furthermore, should the challenged testimony not be deemed sufficiently trustworthy to stand on its own merits, the introduction thereof into the record (notably without objection from the plaintiff or a request that the declarants take the stand) and subsequent use thereof by the hearing officer was not improper because the challenged testimony was not the only evidence probative of the plaintiff's culpability presented at the hearing.   While testifying, the plaintiff was directly confronted with several statements attributed to him in the investigation protocol which suggested an ongoing pattern of physical and verbal abuse.  (ROR, Transcript, February 8, 2011, Exhibit 19, pp. 83–106.)

While claiming to have been misquoted and describing how the statements had been taken out of context, the plaintiff initially admitted pushing his daughter after becoming frustrated with her (Id., p.89);  admitted that he pushed his daughter in order to put her into a chair (Id., pp.101–02);  admitted to repeatedly pushing his wife, although in a playful manner (Id., p.98);  and, admitted to calling his wife names during their arguments, at least one of which was witnessed by a child (Id., pp.100–101.)

While claiming to have been misunderstood and describing how his statements had been mischaracterized, the plaintiff later admitted to calling his wife names in front of the children when she was not present (Id., p.104);  admitted grabbing his wife during an altercation (Id., p.104);  and, ultimately admitted having assaulted his wife a single time in the presence of his daughter (Id., p.106).   In light of the foregoing, the hearing officer was free to consider the challenged evidence in evaluating the weight and credibility of the conflicting testimony offered by the plaintiff.

The plaintiff next claims that the final decision upholding his substantiation for physical and emotional neglect and the recommendation for the placement of his name upon the central registry were not supported substantial evidence.   (Complaint, p. 4.) Noting that the sole witness presented by the department was an investigator who did not directly observe the conduct in question, the plaintiff alleges that his testimony and the testimony of four witnesses testifying on his behalf were not given sufficient weight by the hearing officer.  (Memorandum of Law in Support of Administrative Appeal, p. 8.)

However, ‘judicial review of [an administrative agency's] action is governed by the [Uniform Administrative Procedure Act, General Statutes § 4–166 et seq.  (UAPA) ] ․ and the scope of that review is very restricted.”  (Internal quotation marks omitted.)  Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008.)  “[The court may not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence of questions of fact.”  Id., 833.   “[The court] 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.)  Papic v. Burke, 113 Conn.App. 198, 210, 965 A.2d 633 (2009.)   “Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the action taken.”  (Internal quotation marks omitted.)  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 98–99 n.3, 671 A.2d 349 (1996.)   Therefore where, as here, the record before the agency ³ supports the action taken, the court is not in a position to re-evaluate the facts.   The findings and subsequent conclusions of the department may not be disturbed merely because the plaintiff is dissatisfied with the determinations made by a hearing officer concerning the weight and credibility of evidence presented.

Finally, the plaintiff contends that the DCF and the hearing officer abused their discretion and acted unreasonably, arbitrarily and illegally in considering his ancestry and national origin in deciding to substantiate allegations of physical and emotional neglect against the plaintiff.   (Complaint, p. 2–4.)   Connecticut has long prohibited discrimination on the basis of ethnicity.   Section 46a–71(a) declares that the “services of every state agency shall be performed without discrimination based upon race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness.”   The investigation protocol compiled by the DCF investigator contains substantial excepts from a work by Azad Moradian entitled “Domestic Violence Against Single and Married Women in Iranian Society.”  (ROR, Exhibit 4, p. 25–26.)   The hearing officer initially prohibited as irrelevant the introduction of evidence by the department concerning the ancestry and national origin of the plaintiff.  (ROR, Transcript, January 4, 2011, Exhibit 18, p. 7.) The evidence now complained of was subsequently introduced by the plaintiff in questioning the DCF investigator about the nature of the article and her use thereof.  (Id., 62–65.)

In response to questions posed by the plaintiff, the investigator explained that the article was included in the protocol in order to validate a statement made by the plaintiff's wife concerning her cultural background and corresponding reluctance to report the abuse.  (Id., 63–64.)   The investigation protocol prefaces the article by noting the complex cultural issues involved and the lack of familiarity therewith on the part of the investigator.  (ROR, Exhibit 4, p. 25.)   Furthermore, during the hearing the investigator repeatedly disclaimed the proposition, posed by the plaintiff, that Iranian men are more likely to commit domestic violence.  (ROR, Transcript, January 4, 2011, Exhibit 18, p. 64–65.)

“The applicable due process standards for disqualification of administrative adjudicators [due to bias] do not rise to the heights of those prescribed for judicial disqualification ․ The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator ․ Moreover, there is a presumption that administrative [officers] acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the [hearing officer] challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.”  Elf v. Dept. of Public Health, 66 Conn.App. 410, 425, 748 A.2d 979 (2001.)

The final decision issued by the hearing officer on April 6, 2011 does not reference the national origin of the plaintiff or the offending article.   Furthermore, in ruling on the petition for reconsideration submitted by the plaintiff on April 25, 2011, the hearing officer declared that he “gave no consideration to the investigator's findings about domestic violence and Persian Culture.”  (ROR, Exhibit 16, p. 2.) Therefore, although the investigation protocol includes a potentially discriminatory observation concerning the social acceptability of domestic violence in Persian culture, there is nothing in the record to suggest that the department or the hearing officer relied upon such evidence in any substantive manner.   Indeed, a considerable effort was made to avoid consideration of such information during the substantiation hearing.

Given the evidence presented at the hearing and the corresponding findings of the hearing officer, the DCF has not acted unreasonably, arbitrarily or illegally in upholding the substantiation of allegations of physical and emotional neglect against the plaintiff and subsequently recommending that the plaintiff be placed on the central registry.   Nor has it, in so doing, abused its discretion.

Accordingly, the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. For the purposes of this administrative appeal, under § 4–183(a), the plaintiff is aggrieved by the final decision upholding his placement on the central registry maintained by the DCF..  FN1. For the purposes of this administrative appeal, under § 4–183(a), the plaintiff is aggrieved by the final decision upholding his placement on the central registry maintained by the DCF.

FN2. Section 17a–101g(b) requires the 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 such person to request a hearing before placement.   If the hearing officer finds that the substantiation should be upheld, and determines that the substantiation warrants placement on the central registry, the person may take an administrative appeal per section 17–101k(e.).  FN2. Section 17a–101g(b) requires the 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 such person to request a hearing before placement.   If the hearing officer finds that the substantiation should be upheld, and determines that the substantiation warrants placement on the central registry, the person may take an administrative appeal per section 17–101k(e.)

FN3. Exhibit 4, pp. 1–6;  Transcript, January 4, 2011, pp. 10–14..  FN3. Exhibit 4, pp. 1–6;  Transcript, January 4, 2011, pp. 10–14.

Cohn, Henry S., J.