Schmitt v. Department of Children & Families

Robert Schmitt v. Department of Children and Families

No. HHBCV166032270S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

March 22, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Sheila A. Huddleston, Judge.

The plaintiff, Robert Schmitt, appeals from the final decision of the Department of Children and Families (department or DCF) substantiating allegations of sexual abuse, physical neglect and emotional neglect, and upholding his placement on the department's central registry as a person who poses a risk to children. The plaintiff argues that (1) the hearing officer's decision is clearly erroneous in view of the entire evidentiary record and is arbitrary, capricious, and characterized by an abuse of discretion; (2) the hearing officer misapplied the standards in State v Merriam, 264 Conn. 617, 835 A.2d 895 (2003), for evaluating the reliability of a child's hearsay statements; and (3) the plaintiff's inability to confront and cross examine his accuser pursuant to the Sixth Amendment of the federal constitution violated his due process rights. For the reasons stated below, the court concludes that the hearing officer's findings and conclusions are supported by substantial evidence in the record; the hearing officer correctly applied the Merriam factors; and the plaintiff's Sixth Amendment right to due process is not implicated by the administrative proceeding. Consequently the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

The record discloses the following facts. The plaintiff^[1] was a special education teacher at the MicroSociety Magnet School in New Haven, Connecticut, in the 2011-2012 and 2012-2013 school years. Return of Record (ROR) Final Decision, p. 4. The complainant, A, ^[2] was a special education student who was taught by the plaintiff in the 2011-2012 school year and part of the 2012-2013 school year. She was eleven years old and in sixth grade in the 2011-2012 school year. ROR, Final Decision, p. 4. During the 2011-2012 school year, there were times when the plaintiff was delivering special education services to A when he was alone with her in his office with the door closed. ROR, Final Decision, p. 7.

In December 2012, the department investigated a claim that the plaintiff had been physically and verbally aggressive with a special education student. He was placed on administrative leave during the investigation. The allegations were not substantiated and the plaintiff returned to work in the spring of 2013. ROR, Final Decision, p. 4.

On April 29, 2013, A was engaged in a therapeutic counseling group with a school social worker and two other children. There were no discussions about " good touching, " " bad touching, " or anything else that would steer the conversation toward inappropriate touching. The children were engaged in a therapeutic game called " Feel, Reveal . . . and Heal, " a board game designed to help children learn to express their feelings. ROR, Final Decision, p. 4.

When it was A's turn, she landed on a spot on that read, " I'm ashamed of." A shared that she was ashamed and she was having nightmares. The social worker excused the other children from the room and then asked A what she was ashamed of. A said that she was ashamed because she had been touched inappropriately by an aunt's friend and by a student who was no longer at the school. She then said that the plaintiff had touched her breasts about five times during the previous school year (2011-2012). She also said that he had rubbed her arms and legs on some occasions. She said the question on the board game made her think about it, and she just wanted to tell the social worker. She did not care about earning " chips" in the game or winning the game. ROR, Final Decision, pp. 4-5.

After A's disclosure, the social worker took her to the principal's office. A told the principal and the social worker that she felt scared all the time at school and that the plaintiff had touched her in her privates in her shirt. ROR, Final Decision, p. 5. The principal called A's mother, who came to the school, and A told her mother that the plaintiff had touched her breasts several times the previous year and had rubbed her arms and legs. ROR, Final Decision, p. 5; see also ROR, Exhibit 15, pp. 30-32. The social worker notified the department. ROR, Exhibit 9, pp. 4-5 (investigation protocol). The principal placed the plaintiff on administrative leave and escorted him from the school premises. ROR, Exhibit 9, pp. 4-5 (investigation protocol); see also ROR, Exhibit 11, p. 4 (New Haven Police Department case incident report, narrative).

At the time of her disclosure to the school social worker, A was also seeing a private counselor. After her disclosure to the school social worker, A also told her private counselor that the plaintiff had touched her breasts and legs, but did not share any further details with her. A told the private counselor that she was afraid to go to school as long as the plaintiff was there. ROR, Final Decision, p. 5; see also ROR, Exhibit 61, p. 16.

The department assigned an investigative social worker to the case. A told the investigator that the plaintiff had touched her breasts with his hands multiple times in the previous school year in his office at school when no one else was present. ROR, Final Decision, p. 5.

On May 7, 2013, A participated in a forensic interview at the Yale Child Sexual Abuse Clinic. ROR, Final Decision, p. 5; see also ROR, Exhibit 16 (forensic interview report), 18 (DVD of A's forensic interview). During the forensic interview, A reported that the plaintiff had touched her breasts and arms and that she was scared of him. She described one incident when he touched her when she was sitting down. He said it was an accident while holding her breast. She said that he touched her breasts over her clothes. He was standing behind her while she was sitting down. She also said that she slapped at his hand and ran. She said he touched her breasts four or five times over her clothes and that he rubbed her legs on top of her clothes twice. She demonstrated the plaintiff's alleged actions on dolls during the forensic interview, showing that the plaintiff grabbed her breasts from behind while she was sitting. ROR, Final Decision, pp. 5-6.

After A reported the plaintiff's actions to the school social worker and the principal, three other students came forward with allegations that the plaintiff had also touched them inappropriately. These included L, a fourteen-year-old intellectually disabled girl whom adults described as a " people pleaser" who could be easily led; and two male students, R and J. ROR, Exhibits 9, 10. L's initial disclosure was to a special education teacher. The teacher said that she had seen A talking with L, apparently shaking her head " no, " just before A and L approached the teacher to say that the plaintiff had touched L inappropriately. ROR, Exhibit p. 8. L said that he had touched her vagina under her clothes on one occasion. ROR, Exhibit 9, p. 8. R's disclosure occurred when his mother took him to the police station with his sister and asked the police to determine whether the plaintiff had touched either of them inappropriately. ROR, Exhibit 9, p. 8. J's report of inappropriate touching first occurred after news of the plaintiff's arrest for sexual assault of A, L, and R became public. ROR, Exhibit 10, p. 4.

After investigating the allegations by the students, the department substantiated allegations of sexual abuse or exploitation, physical neglect, emotional neglect, and emotional abuse of the students by the plaintiff. ROR, Exhibits 1, 8, 9, and 10. The plaintiff sought a substantiation hearing on all charges. ROR, Exhibit 3. He initially asked to defer the hearing until after his criminal charges were resolved, but subsequently decided to proceed with the administrative process. ROR, Exhibits 5, 7. The administrative hearing began on May 5, 2014, and continued on May 23, June 17, July 14, and July 25, 2014.^[3] ROR, Final Decision, p. 1. On August 5, 2014, before the administrative hearing had concluded, the plaintiff requested another deferral until the disposition of his criminal charges. ROR, Final Decision, p. 1. The final day of the hearing was November 20, 2015. ROR, Tr. 11/30/15.

While the criminal charges and the administrative proceeding both were pending, a hearing was held pursuant to General Statutes § 10-151 to determine whether to recommend termination of the plaintiff's employment. A tripartite panel heard testimony from several witnesses, including but not limited to the plaintiff himself, the school principal and social worker, other teachers, and the two male students who had accused the plaintiff of sexual misconduct. One child recanted his accusation, and the panel found that the other was not credible. Neither A nor L appeared to testify at the termination hearing, despite subpoenas that had been issued for their testimony. On January 30, 2015, based on the evidence it heard and its inability to obtain testimony from A and L, the tripartite panel recommended against termination of the plaintiff's employment but recommended that he remain on administrative leave without pay during the pendency of the criminal and administrative proceedings. The panel's opinion was highly critical of the Supreme Court's decision in State v. Merriam, supra, 264 Conn. 617. The panel observed that Merriam relied on Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was subsequently overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 158 L.Ed.2d 177 (2004). The panel emphasized the importance of cross examination in reaching its conclusion that the two children who did testify proved not to be credible. ...