Kyle K. v. Dep't of Children & Families

103 Mass.App.Ct. 452

219 N.E.3d 830

KYLE K.

v.DEPARTMENT OF CHILDREN AND FAMILIES.

No. 22-P-35

Appeals Court of Massachusetts, Suffolk.

Argued November 2, 2022

Decided October 6, 2023

Brian Waller for the plaintiff.

Carol A. Frisoli, Concord, for the defendant.

Present: Rubin, Englander, & Hand, JJ.

RUBIN, J.

Today we review the decision of a hearing officer of the Department of Children and Families (department or DCF) upholding the determination that allegations of sexual abuse of a child, Adam,¹ made by Adam against his stepfather, and reported to DCF by mandated reporters pursuant to G. L. c. 119, § 51A (51A report), were "supported." See 110 Code Mass. Regs. § 4.32 (2009).

The legal term "supported" is confusing. As relevant here, a mandated reporter must notify DCF when the reporter has "reasonable cause to believe that a child is suffering physical or emotional injury resulting from: (i) abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare, including sexual abuse." G. L. c. 119, § 51A. DCF must undertake an investigation. See G. L. c. 119, § 51B. Under DCF regulations, as relevant to this case, the finding that the allegation was "supported" actually means that the department concluded there was "reasonable cause to believe" that the reported "incident ... of abuse or neglect of Adam "by a caretaker did occur." 110 Code Mass. Regs. § 4.32(2) (2009).

Among other things, a finding that an allegation made in a 51A report is supported triggers the obligation of DCF to "offer ‘appropriate services’ to the family of any child whom it has reasonable cause to believe is suffering from abuse or neglect ‘to prevent further injury to the child, to safeguard his welfare, and to preserve and stabilize family life whenever possible.’ G. L. c. 119, § 51B (g )." Adoption of Luc, 484 Mass. 139, 141, 139 N.E.3d 337 (2020).

The stepfather appealed from the finding that the allegations against him were "supported." After a fair hearing, see 110 Code Mass. Regs. §§ 10.00 (2014), a hearing officer within DCF concluded that there was reasonable cause to believe that the allegations were true. The stepfather sought judicial review in the Superior Court, and a judge of that court affirmed the hearing officer's decision, denying the stepfather's motion for judgment on the pleadings, and granting DCF's cross motion. The stepfather has now appealed.

Facts and prior proceedings. After a long history of allegations of sexual abuse of Adam which were recanted or found not to be substantiated, in January, 2019, a mandated reporter submitted a 51A report, stating that Adam had alleged that his stepfather sexually abused him. In February, 2019, a mandated reporter filed a 51A report stating that Adam had alleged sexual and physical abuse by the stepfather.

After an investigation mandated by G. L. c. 119, § 51B (51B report), the department's investigator found on March 20, 2019, that these allegations of sexual and physical abuse of Adam by the stepfather were "supported."

Adam's mother appealed through the department's fair hearing process. See 110 Code Mass. Regs. § 10.06(11) ("Whenever the Department has supported a report of abuse or neglect of a child, any parent of the subject child, any caretaker who has been identified in the Department's Central Registry as the person believed to be responsible for the abuse or neglect, any caretaker of the subject child and any Adolescent, who is the subject child, has the right to appeal the Department's decision to support the report"). The fair hearing was held before a DCF hearing officer, another executive branch official within DCF. At the hearing, the stepfather was added as an appellant when the mother's attorney said he also represented the stepfather.

At a fair hearing,

"the investigator's decision to ‘support’ an allegation of abuse or neglect is to be reversed by the hearing officer if, ‘based on information available during the investigation and/or new information not available during the investigation, the [d]epartment's decision was not in conformity with the [d]epartment's policies and/or regulations and resulted in substantial prejudice to the aggrieved party.’ 110 Code Mass. Regs. § 10.06(8)(c) (1998). Thus, the issue on such an administrative appeal from the investigator's decision is whether, based on all information then available (which may take into consideration information not considered by the investigator during the original investigation), there was -- and still is -- ‘reasonable cause to believe’ that the child was abused or neglected."

Lindsay v. Department of Social Servs., 439 Mass. 789, 799, 791 N.E.2d 866 (2003). See 110 Code Mass. Regs. § 10.06(11)(a).

After the hearing, the hearing officer concluded that DCF's decision to find the 51A reports of sexual abuse supported "was made in conformity with the Department's regulations and policies," and that "there was a reasonable basis" to believe the alleged sexual abuse occurred. See Covell v. Department of Social Servs., 439 Mass. 766, 778-779, 791 N.E.2d 877 (2003). The hearing officer concluded that there was not reasonable cause to believe the physical abuse occurred and reversed the DCF conclusion that the allegation of physical abuse was supported.

At the hearing, the stepfather, Adam's mother, and the DCF investigator assigned to the case testified. DCF introduced evidence of the two 2019 reports by Adam of sexual abuse by the stepfather, as well as evidence that Adam had recanted those reports. Adam did not appear at the hearing; his allegations of sexual assault came in through hearsay, the testimony of the DCF investigator, and various documents, including police reports. Both DCF and the stepfather offered additional documentary evidence, including 51A and 51B reports.

The statements that led to the 51A reports were first made by Adam in January, 2019, when he was thirteen years old. Adam recanted the allegations after he was hospitalized for psychiatric reasons in March, 2019.

The hearing officer examined all the evidence, including those things in the record that detracted from the weight of the evidence that Adam's allegations were true, including Adam's retraction, and the fact that earlier allegations had not been found substantiated when investigated by authorities in New Hampshire and Rhode Island. Those prior allegations and investigations were recounted in the findings of the hearing officer. Adam first accused the stepfather of sexual assault in 2010, claiming that the stepfather had coerced Adam to put the stepfather's penis in his mouth. New Hampshire and Rhode Island authorities investigated the 2010 allegations and determined them to be unfounded -- in part because Adam "stated he lied about the sexual abuse."² In the summer of 2018, DCF investigated an additional allegation that the stepfather had sexually assaulted Adam. DCF concluded then that "[t]he concerns raised around sexual abuse by [the stepfather] had no basis or validation."³

The hearing officer found that on six separate occasions over a substantial period of time, first in 2010, then in 2019, Adam reported that his stepfather sexually abused him, including by raping him twice, orally. In 2019, when Adam was thirteen years old, he provided corroborating details about the allegations, which were also introduced through hearsay evidence. At a sexual abuse intervention network (SAIN) interview, he described a rape in some detail, including specifics about the location and time of day at which the rape occurred, the fact that the stepfather removed his own clothes, but Adam remained clothed, the dialogue between himself and the stepfather leading up to Adam's taking the stepfather's penis in his mouth, and his description of "just sucking on [the stepfather's penis] like a child would do to a lollipop." Even apart from the description of the sexual abuse itself, the hearing officer recounted that Adam said that "the stepfather did not touch him and the stepfather's pants were down to his ankles and his shirt was off. [Adam] said he had his clothes on. About twenty minutes later, around noon, his mother returned home so his stepfather pulled up his pants and asked ‘who is it’ as his mother was at the door knocking. Mother rang the doorbell and the neighbor had let her in, and then she knocked on the apartment door and [the] stepfather opened the door for her. [Adam] stated he had met his stepfather only one month before this happened. [Adam] said this happened on the second floor of mother's house, which was green with two porches and on [a specified] street."

As to the recantation by Adam, the hearing officer found that "the Appellants, notably mother, directly influenced [Adam] to recant the allegations, which occurred while the child was inpatient at a hospital for psychiatric reasons in March 2019. [Adam] has recanted the allegations of sexual abuse twice after having direct contact with his mother. Therefore, the Appellants’ arguments were not persuasive."

There was also at least some corroborating evidence: Adam suffered from a lack of bowel and urinary control, the latter of which the Supreme Judicial Court has accepted as a "common behavioral symptom[ ] of abuse." Commonwealth v. Alvarez, 480 Mass. 299, 302, 103 N.E.3d 1202 (2018). Adam's therapist reported that Adam's "behaviors of bed wetting and defecating in his clothing ... [were] signs of some sort [of] sexual trauma."

The hearing officer found "that the Department, in making the decision of sexual abuse of [Adam] by [the] stepfather, and pursuant to 110 [Code Mass. Regs. §§] 2.00 & 4.32, had sufficient evidence to have reasonable cause to believe that [the] stepfather sexually abused [Adam]. The Hearing Officer finds that engaging in oral sex constituted sexual contact. [Adam] had inconsistencies regarding the age of when sexual abuse occurred. However, [Adam] has been consistent in his disclosures of sexual contact between him...