Kevin Wilson v. Department of Children and Families (2013)

MEMORANDUM OF DECISION

The plaintiff, Kevin Wilson, appeals from a July 2, 2012 final decision of the defendant department of children and families (DCF) upholding the substantiation of the plaintiff for the physical neglect of his daughter and a step son and upholding his placement on the child abuse registry.¹  See General Statutes §§ 17a–101g and 17a–101k.²

The record shows that on July 14, 2011, the plaintiff was informed by DCF that the agency had substantiated the plaintiff for physical neglect.  (Return of Record, ROR, Exhibit # 1.)   The DCF also informed the plaintiff that he was to be placed on the central registry.   At the request of the plaintiff, a substantiation and central registry hearing was held on May 24, 2012.  (ROR, Final Decision, p. 1.) On July 2, 2012, the hearing officer issued the final decision.

In the final decision the hearing officer made the following findings:

1.  The Appellant has an “on-and-off” relationship with the mother of Keturah d.o.b. 01/07/05 and Derrick d.o.b. 10/15/96.   The Appellant is the father of Keturah.

2. The Appellant does not live with Keturah, Derrick or their mother.   He and Keturah's mother have an informal visitation agreement for Keturah.

3. On July 13, 2011, the Appellant arrived at the apartment of the mother of Keturah and told her that he was taking Keturah out for the afternoon.   Keturah's mother wanted to know where the Appellant was taking the child but he would not tell her.   The couple began a verbal argument over the issue, and then it became physically violent.   The Appellant grabbed Keturah's mother's neck, pushed her around the apartment and then pushed her down onto a couch.   Keturah's mother grabbed Keturah, who was close by, and ran through the apartment to get away from the Appellant.   The Appellant chased Keturah's mother, knocking over furniture, before grabbing her again, as the woman was holding six-year-old Keturah in her arms.   The Appellant scratched the mother's cheek during the fight.

4. During the incident, fourteen-year-old Derrick came out of his room to see what all the commotion was about, at which point the Appellant grabbed Derrick by the neck and held him up against a wall, screaming “I'm going to kill you both.”   Keturah and Derrick were scared for their lives as they fled the apartment, going out to the street yelling for help from neighbors.   At the time, Keturah was crying.

5. The Appellant has verbally and physically fought with Keturah's and Derrick's mother on prior occasions.   In addition, he has a criminal history which includes assault charges dating from 1994.   The Appellant was placed on probation for eighteen months as a result of the 1994 assault charges.

6. On July 13, 2011, the Appellant was arrested and charged with Risk of Injury to Minors, or Impairing the Morals of Children;  Assault, Third Degree;  Threatening, Second Degree;  and Breach of Peace, Second Degree.   In addition, protective orders were issued by a court, which were extended to include Derrick.   At the hearing, the Appellant stated all the charges were dismissed.

(ROR, Final Decision, p. 2.)

Regarding physical neglect, the hearing officer upheld the DCF substantiation, based on the hearing officer's findings that the plaintiff “assaulted his daughter's mother in the child's presence.   In addition, the Appellant assaulted his daughter's half-brother, Derrick, a child himself, subjecting the boy to conditions, circumstances or associations injurious to his physical well-being.”  (ROR, Final Decision, p. 3.) DCF Policy 34–2–7.

Regarding placement on the central registry, the hearing officer referred to DCF Policy 34–2–8.   To uphold the DCF's recommendation based on risks to children, the hearing officer looked at the factors of intent, severity of impact, chronicity, and involvement of domestic violence.

The hearing officer found intent as “the Appellant had sufficient knowledge and resources, the ability to utilize them, and understand the implications of failing to provide appropriate care for Keturah and Derrick.”  (Id., p. 4.) He found severity in that he could have seriously injured these children “as he attacked their mother and Derrick.”  (Id.) He found chronicity as “[t]he Appellant has verbally and physically fought with Keturah's and Derrick's mother on prior occasions.”  (Id.) Finally, he found domestic violence was a significant contributing factor.  (Id., p. 5.) The hearing officer therefore accepted the central registry recommendation of the DCF. (Id.) This appeal followed.

“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, cert. denied, 302 Conn. 922, 28 A.3d 341 (2011);  see also Hogan v. Dept. of Children and Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009).

In addition, “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 plaintiff's first claim is that the hearing officer's findings are not supported by substantial evidence.   On the other hand, the record shows that the DCF introduced evidence upon which the hearing officer chose to rely.   (ROR, Exhibit # 4, pp. 4–8;  transcript, May 24, 2012, pp. 9–10.)  “[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).   The findings and subsequent conclusions of the hearing officer therefore may not be disturbed for lack of substantial evidence.

The plaintiff's main contention is that the DCF did not investigate the circumstances of the July 13, 2011 incident.   He questions why the DCF did not obtain mother's medical records as she has, according to the plaintiff, mental health issues.   He also questions why the school records of Derrick were not obtained.

On the other hand, the investigative social worker interviewed the plaintiff, the mother, Derrick and Keturah.   She reviewed the police report that referenced photographs of the mother at the time of plaintiff's arrest.  (ROR, Exhibits # 4, # 6.)   She did not find mother's mental health information relevant as the cause of the disturbance was domestic violence.  (ROR, transcript, p. 10.)   The DCF was thus “sufficiently thorough” in its investigation.   See Prioleau v. Commission on Human Rights & Opportunities, 116 Conn.App. 776, 786, 977 A.2d 267 (2009);  Ezikovich v. Commission on Human Rights & Opportunities, 57 Conn.App. 767, 773, 750 A.2d 494, cert. denied, 253 Conn. 925, 754 A.2d 796 (2000).

Finally, the plaintiff notes that his criminal charges were eventually dismissed.   However, this occurred only because he agreed to enter an anger management program under the supervision of family relations.   The plaintiff admitted to attending an anger management program at the hearing.  (ROR, transcript, pp. 15–16.)

The court has considered the plaintiff's claims and does not find that the DCF unreasonably, arbitrarily or illegally upheld the substantiation of the allegations of physical neglect and affirmed the recommendation that the plaintiff be placed on the central registry.   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 § 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 § 17–101k(e).

Cohn, Henry S., J.