GILBERT v. DEPARTMENT OF CHILDREN AND FAMILIES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2017 the plaintiff, Narkeisha Gilbert (mother), was the single parent of a sixteen year old child (child). On June 14, 2017, the Department of Children and Families (department) received a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of the child by the mother because the child was locked out of the mother's apartment. The department decided to support the allegation of neglect after conducting an investigation pursuant to G. L. c. 119, § 51B (51B report). See G. L. c. 119, § 51B (a) & (b); 110 Code Mass. Regs. § 4.32(1) (2009).

The mother requested a fair hearing for review of this decision. See 110 Code Mass. Regs. § 10.06 (2014). On October 25, 2017, a department hearing officer conducted a fair hearing at which the mother testified, along with the department response worker who authored the 51B report. After considering the testimony, the 51A report, the 51B report, and the four exhibits submitted by the mother, the hearing officer affirmed the department's decision to support the allegation of neglect. The mother then commenced a Superior Court action seeking review of the hearing officer's determination. See 110 Code Mass. Regs. § 10.30 (2014); G. L. c. 30A, § 14. The department filed a motion for judgment on the pleadings, Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), which a Superior Court judge allowed in a one-paragraph decision. The mother appeals from the judgment dismissing her complaint. We reverse.

Background. As of 2017, the mother and the child had lived in their apartment for approximately five years. In the summer of 2017, the child was attending summer school. On Monday, June 12, 2017, the child's doctor wrote a letter to the property management company of mother's building requesting that the carpet in the mother's unit be removed and an air conditioner installed as a reasonable accommodation for the child's asthma. Two days later, the child went to the property management office at 1:39 p.m. to use the telephone, stating that she was locked out of her home. The child called the mother, who told the child that “she should be somewhere else” and ended the conversation. The 51A report was then filed.

The mother told the department's response worker that her child “is very difficult and doesn't want to listen to mother.” The child has left school early and gone home during school hours; she and her friends also have “trash[ed] the apartment and [eaten] all the food” when the mother was not there. The mother refused to allow the child to enter the apartment when she was not there because the child “is supposed to be in school and cannot sit in the home during school hours.” The mother opened the door for the child after school hours, or when the mother was home. The child has been locked out of the apartment for periods of two to four hours. In the past, the child has stayed at the property management office until the mother lets her into the apartment, climbed through the window to get into the apartment, or stayed with friends until the mother is home to let her in. The property management office has fed the child on those occasions when the child became hungry while waiting in the office.

Based on these findings, the hearing officer determined there was probable cause to believe that the mother neglected the child “and her actions/inactions posed a substantial risk to [the child's] safety and well-being.” The hearing officer rejected the mother's argument that the property management company fabricated the allegations in the 51A report as retaliation for the mother's request for reasonable accommodations for her daughter's asthma.

Standard of review. “Our task on appeal is to determine whether there was substantial evidence to support [the department's] decision that there was reasonable cause to believe the [mother] was responsible for neglect.” B.K. v. Department of Children & Families, 79 Mass. App. Ct. 777, 780 (2011). “'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). “'Reasonable [c]ause to believe' means a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected.” 110 Code Mass. Regs. § 4.32(2) (2009). “Neglect” is defined as the failure by a caretaker “to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care.” 110 Code Mass. Regs. § 2.00 (2008). “[W]e examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight” when deciding whether the department's decision is supported by substantial evidence. Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999).

Discussion. Citing to hearsay statements contained in the 51A and 51B reports, the hearing officer found that “the mother locked [the child] out of the home for substantial periods of time on a regular basis regardless of the time or weather” and “deprived [the child] of minimally adequate shelter, food and sanitary facilities.” The statements upon which the hearing officer relied for these findings, however, did not relate to primary facts. They were statements of opinion and judgment, made by unidentified sources, regarding the mother's parenting style. The record contains no indication of their reliability. See Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 480 (1997) (hearsay presented at fair hearing must be reliable). The statements were not admissible for the truth of the matters asserted therein, Adoption of Luc, 484 Mass. 139, 153 & n.34 (2020), and the hearing officer's extensive references to them “suggest that they were improperly considered substantively.” Adoption of Stuart, 39 Mass. App. Ct. 380, 389 n.15 (1995). We agree with the mother that these findings do not provide substantial evidence in support of the department's decision.

The hearing officer's supported findings establish that the mother had denied the sixteen year old child access to the apartment for periods of two to four hours or until 8:00 or 9:00 p.m. in June, when it is still light out. No evidence was presented regarding the weather. The child had waited for the mother in the property management office, had climbed through the window of the apartment, or had stayed with her friends until the mother was home to let the child in. We agree with the mother that this conduct, by itself, does not provide reasonable cause to believe the child has been “neglected.”

First, the child was required by law to be in school when she called the mother at 1:39 p.m. on a Wednesday. G. L. c. 76, § 1. The mother was required by law to ensure her attendance. G. L. c. 76, § 2. Refusing to allow the child into the home (where she previously had been retreating to avoid school) during school hours is a reasonable means of ensuring that the child is not at home when she should be in school, and the department does not claim otherwise.

Second, the child had access to shelter and food while she waited for the mother at the property management office. There was no evidence that the child did not have sufficient access to sanitary facilities during those periods when she was unable to enter the apartment, but, even if she did, we see no reason why a sixteen year old child could not avail herself of the bathroom at the school she was supposed to be attending, a fast food restaurant, or simply wait at a public library for the mother to return to the apartment.² Nothing in the record suggests that the child could not obtain after-school employment. There was no evidence that the child was placed in danger by the mother's actions; that she suffered any physical harm as a result of being excluded from the home during school and after-school hours; or that she became “truly terrified” when she could not access the apartment. Lindsay v. Department of Social Servs., 439 Mass. 789, 800 (2003). Contrast id. at 799-800 (substantial evidence supported finding of neglect of young child by daycare worker because “[t]he potential consequences of leaving a small child in a vehicle, alone and totally unsupervised, for a period of hours include some that are very grave indeed”).

Finally, we cannot give our usual “great deference to the department's assessment of what degree of supervision is ‘minimally adequate’ and ‘essential,’ ” where the department offered no evidence regarding the degree of supervision that is (1) “minimally adequate” for a sixteen year old child, or (2) “essential” for this particular child.³ Lindsay, supra at 799. Because the admissible evidence in this case does not support a conclusion that the mother's actions “are sufficiently threatening to the child's well-being” to make them qualify as “neglect,” id., it simply “falls short of the threshold of substantiality required to affirm the department's decision.” Cobble, 430 Mass. at 392. The judgment therefore is reversed, and the matter is remanded to the Superior Court for entry of a new judgment reversing the decision of the department.

So ordered.

Reversed and remanded.

FOOTNOTES

2.   The department conceded at oral argument that it would not constitute neglect for the mother to require the child to stay at the library until 8:00 or 9:00 p.m.

3.   The department does not claim that, as a result of being excluded from the home, the child engaged in unspecified behaviors “indicative of problems or tendencies that may eventually lead to delinquent or criminal activity” (citation omitted). Millis Pub. Sch. v. M.P., 478 Mass. 767, 767 (2018) (discussing children requiring assistance statute, G. L. c. 119, §§ 21, 39E-39I).