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EP v. Department of Children and Families

Superior Court of Massachusetts, Suffolk

May 17, 2016



          Robert B. Gordon, Justice

         This 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.[1] 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 DENIED.


         The 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.

         Statutory Framework

         Certain 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.

         DCF 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.

         When 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.

         Procedural and Factual Background

         In 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.[2] 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.

         B took 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.

         The first 51A report regarding the children was filed in June of 2012. The reporter[3] 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.

         On 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.

         On 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.

         When 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.

         DCF 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.

         EP 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.

         The 51A 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 angry."

         During 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.

         Both 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.

         In a 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 stability.[4]

         On June 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.

         Upon 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 ...

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