MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR JUDGMENT ON THE PLEADINGS
B. Gordon, Justice
case is an administrative appeal, taken pursuant to G.L. c.
30A, § 14, of the Department of Children and
Families' (" DCF") decision to "
support" allegations of physical abuse against EP
(" EP" or " the plaintiff"). See 110 Code
Mass. Regs. § 10.30. The charges against EP arise in
connection with her foster care of B, a nine-year old
boy. EP brings a motion for judgment on the
pleadings, by which she seeks a reversal of DCF's
decision on the grounds that the Hearing Officer (1)
improperly relied on inadmissible evidence derived from
reports filed pursuant to G.L. c. 119, § § 51A,
51B; and (2) erred by adopting findings of fact from a prior
hearing concerning EP. For the following reasons, EP's
motion for judgment on the pleadings is
following facts derive from the Fair Hearing decision dated
June 17, 2015, the transcript of the Fair Hearing held on
February 20, 2015, and the documents submitted by the parties
over the course of the Fair Hearing.
professionals are statutorily mandated to write reports
(" 51A reports") regarding instances of physical
and sexual abuse of minors by a caretaker. G.L. c. 119,
§ 51A. Upon a determination that an investigation of the
allegations is warranted, DCF will, inter alia, visit the
child, consult the reporter, speak with the caretaker, and
interview third parties who may possess relevant information.
110 Code Mass. Regs. § 4.27. Based on all the
information so collected, DCF decides whether the 51A report
should be " supported" or " unsupported"
in a report issued pursuant to G.L. c. 119, § 51B
(" 51B report"). Id. § 4.32.
will deem allegations supported if there is " reasonable
cause to believe" that a caretaker inflicted abuse upon
or neglected a child. Id. § 4.32(2). "
Reasonable cause 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." Id. DCF
will consider " direct disclosure by the child(ren) or
caretaker; physical evidence of injury or harm; observable
behavioral indicators; corroboration by collaterals (e.g.,
professionals, credible family members); and the social
worker and supervisor's clinical base of knowledge."
Id. In the context of allegations of physical abuse,
DCF must find " soft tissue swelling or skin
bruising" relative to " such factors as the
child's age, circumstances under which the injury
occurred, and the number and location of bruises."
Id. § 2.00.
DCF " supports" allegations of abuse or neglect,
the aggrieved caretaker may request a " Fair
Hearing" to appeal the 51B report. Id. §
§ 10.06(8), 10.08. An impartial officer presides over a
formal Fair Hearing, which is recorded. Id. §
§ 10.01, 10.03, 10.19, 10.26. The " Hearing
Officer" may affirm, reverse, or remand the challenged
decision in a written decision issued no later than 60 days
following the close of the record. Id. § 10.29.
Although the Fair Hearing decision is considered the final
decision of DCF, an aggrieved party has the right to seek
judicial review of the decision pursuant to G.L. c. 30A.
Id. § 10.30.
and Factual Background
2012, DCF placed B and his two younger sisters (collectively,
" the children") with EP and her husband AP. At all
relevant times, B was 9 years old, and his sisters were 3 and
5 years old, respectively. EP and AP operated an approved
foster home. As EP and AP provided foster care and
pre-adoptive care to B and his sisters, they were considered
" caretakers" for purposes of the DCF's
regulations. See 110 Code Mass. Regs. § 2.00.
medication to assist him with attention deficit/hyperactive
disorder and sleeping. B also suffered from Von
Willebrand's disease, a blood-clotting disorder that
increases proneness to bruising.
first 51A report regarding the children was filed in June of
2012. The reporter charged EP and AP with neglect,
because they allegedly permitted B to take a night-time
medication in the morning. A subsequent 51B report concluded
that these allegations were unsupported.
October 18, 2014, two 51A reports concerning one of B's
sisters were filed, both alleging neglect. While assisting
B's sister in the restroom at daycare, the reporter
observed a yellowish, oval, one-inch bruise on the girl's
hip, and a smaller, half-inch, brown bruise above her vaginal
area. After investigation, DCF determined these claims to be
" unsupported." The collateral interviewees in the
investigation, however, noted that EP would often " fly
off the handle" when daycare staff confronted her about
issues regarding B's sister.
April 10, 2014, DCF received a new 51A report, alleging that
EP had physically abused and neglected B during the events of
the prior evening (" the April 2014 incident").
During that evening, EP had called the reporter because she
became extremely upset after she came to believe that B had
stolen her cellphone and given it to one of his classmates.
(In point of fact, B had hidden the phone under his
sister's bed.) When the reporter suggested to EP that she
try to get some sleep and to de-escalate the situation, EP
said, " I can't sleep so B can't sleep."
The reporter indicated that when he went to the family's
home, he discovered that everything in B's bedroom had
been strewn about the room.
DCF interviewed B about the events of the night of April 9, B
expressed anxiety that he was not " supposed" to
tell what had happened. B also communicated his desire to
" make the placement work" for the sake of
remaining with his sisters, with whom B is tightly bonded. B
ultimately disclosed that EP had squeezed his face, hit him
on his side, and grazed his face with a stick-like object. B
also described EP grabbing him by the arm and guiding him
from room to room to search for the phone.
also interviewed B's sisters regarding the events of
April 9. The sisters both reported that EP had hit B's
back, and told him that she was going to kill him. One sister
additionally disclosed that EP has grabbed B by the neck more
than 20 times.
explained that the night at issue was the culmination of a
week-long search for her cellphone, and that she had
consistently asked B about its location because she suspected
him of taking it. EP described her and AP's behavior on
the evening of April 9 as follows: " We lost our temper,
we were raising our voices, we were yelling at B. We told B
we are so angry with you, we are pissed off with you right
now." She fully admitted to telling B that she "
could kill him, " grabbing his face and pointing at his
stomach. EP, however, denied striking B.
reporter stated that EP " lost her mind" during the
phone call on April 9. He described EP as inconsolable and
unable to separate herself from B because she was " too
the investigation, the 51A reporter informed EP that B felt
unsafe at home. EP responded that " B didn't have
the right to feel unsafe because she felt unsafe with
B." EP went on to ask, " What happens when B turns
19 and he tries to kill us?" The reporter felt that this
statement took the situation to an extreme hypothetical, as B
had not exhibited any sort of homicidal ideation.
DCF's investigator and family resource worker noted in
the investigative report that EP had a history of making
complaints against collateral interviewees who had reported
concerns with her parenting. DCF staff further noted the 51A
reporter's concern that EP might terminate his services
because of the report, despite B's apparent comfort
dealing with him. The record also discloses that EP and AP
terminated in-home therapeutic services in May of 2014.
51B report dated May 21, 2014, the allegations of neglect
concerning the incident of April 9 were found to be
supported. The abuse allegations were not supported. The
report specifically found that: there was a physical incident
between EP and B that included EP squeezing B's face,
pointing to his stomach and grabbing his arm; B's
sisters' reports confirmed the physical incident; EP was
very emotional and proceeded to act inappropriately toward B,
including packing all of B's belongings and telling him
that she could kill him; and that EP failed to provide B with
minimally adequate care and emotional
3, 2014, B was taken to the hospital for evaluation following
an incident in which he was playing with matches and set fire
to two locations in the home while under EP's
supervision. A nurse noticed bruises all over B's body,
abrasions on his right hip and back, and a scratch on his
neck. Bruises on B's arm appeared to be purplish-blue,
and were consistent with the size and shape of fingerprints.
The other injuries appeared to be in more advanced stages of
healing. When the nurse asked B about the bruises, B reported
that the marks on his right arm resulted from having been
" dragged from room to room." The other bruises and
injuries, he noted, were from other causes: falling off his
bike; falling onto his bedframe and a metal pole in his room
(later determined to be part of his brass bedframe); bumping
into his dresser; and the family cat scratching his neck.
further questioning, B asked, " If I tell you this, will
I still be able to stay with my sisters?" and stated,
" Wait, if I tell then I am going to be separated from
my sisters and I ...