Cobble v. COMMISSIONER OF THE DEPARTMENT OF SOCIAL SERVICES

• Decision Date: 17 November 1999
• Citation: Cobble v. COMMISSIONER OF THE DEPARTMENT OF SOCIAL SERVICES, 430 Mass. 385, 719 NE 2d 500 (Mass. 1999)
• Parties: DONALD R. COBBLE, JR. v. COMMISSIONER OF THE DEPARTMENT OF SOCIAL SERVICES.
• Court: Supreme Judicial Court of Massachusetts

430 Mass. 385

719 NE 2d 500

DONALD R. COBBLE, JR. v. COMMISSIONER OF THE DEPARTMENT OF SOCIAL SERVICES.

Supreme Judicial Court of Massachusetts, Suffolk.

September 13, 1999.

November 17, 1999.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, & IRELAND, JJ.

Chester Darling for the plaintiff.

Juliana deHaan Rice, Assistant Attorney General, for the defendant.

LYNCH, J.

The plaintiff appeals from a judgment of a Superior Court judge affirming an administrative determination by the Department of Social Services (department), that his hitting or spanking of his minor child constituted "abuse," as that term is defined by statute and regulation. See G. L. c. 119, § 51A; 110 Code Mass. Regs. § 2.00 (1996).¹ He argues that the department's decision to support a report of abuse was not adequately supported by the factual record. He further contends that the department's action amounts to an unjustifiable interference by the Commonwealth with his fundamental rights, under both the United States and Massachusetts Constitutions, to the free exercise of his religious beliefs and privacy in child rearing. We granted the plaintiff's application for direct appellate review and conclude that the department's decision was not supported by "substantial evidence" in the administrative record. We vacate the judgment of the Superior Court without reaching the constitutional issues.

1. Facts. We begin with a summary of relevant facts.

a. The investigation and decision under G. L. c. 119, § 51A. On March 19, 1997, the department received a report from a mandated reporter, a school teacher, made pursuant to G. L. c. 119, § 51A (51A report), regarding possible abuse and neglect of a nine year old student, the plaintiff's son.² An investigation was conducted by a department social worker, Rena L. Ugol, who separately interviewed the reporter, the plaintiff, the boy, the boy's mother, and two of the boy's physicians.³ The reporter informed Ugol that there had been no prior concerns about possible abuse of the boy, but that his parents were separated and in the process of divorcing and he had lately appeared "more depressed, angry." Although she believed the accuracy of the boy's reports of physical punishment, the reporter stated that the boy would "exaggerate sometimes" and that he might have "perceptual difficulties."

In his interview with Ugol, the plaintiff admitted to striking the boy on his buttocks with a leather belt on five or six occasions during the preceding school year. He denied being a "spontaneous spanker," explaining that he only spanked the boy as punishment for reports of misbehavior at school. He described the punishment as follows: The plaintiff would have the boy stand next to him and place his hands on the plaintiff's outstretched left hand (this latter measure to ensure that the boy would not suffer injury to his hands by attempting to shield his buttocks from the spanking); the plaintiff would grasp the belt buckle in his palm and wrap the belt, which was approximately one and one-half inches wide, around his right hand, leaving approximately one foot of leather strap exposed; he would then hit him on his clothed buttocks once or twice with the strap, explaining to him that it was punishment for bad behavior and that such discipline is required by the Bible. At Ugol's request, the plaintiff demonstrated the force with which he would spank the boy by striking a couch cushion with the belt. Ugol reported that the belt made a "solid smack." The plaintiff denied ever having caused any bruising on the boy's buttocks (although he later admitted that he had never checked for any). Both the boy and his mother confirmed much of the plaintiff's account. The mother described the plaintiff as nonviolent and controlled, and stated that his disciplining of the boy was never done in anger and "doesn't escalate" beyond spanking. She reported that, when administering a spanking, the plaintiff would hug the boy, tell him that he loved him, and explain that it was punishment for his misconduct. The boy, although expressing his fear and dislike of the spanking, told Ugol that the plaintiff "wouldn't hurt me but would spank me." He confirmed that the spankings were administered as punishment for misbehaving at school, and stated that the plaintiff would hit him once or twice (and occasionally up to five times, if he was "really bad") with a belt on his fully clothed buttocks, but that the plaintiff "doesn't whack really hard." Sometimes when the boy expected a spanking, he would put on sweat pants under his jeans. The boy variously described the physical effects of the spankings as "red marks" on the skin of his buttocks, as marks that were "not red red red" but more like "pink," and as "a teeny thing of red ... not really red." He stated that these marks would last about ten minutes and then fade.

The boy's pediatrician, Dr. Joel Solomon, informed Ugol that the boy suffers from arthrogryposis, a congenital muscle condition which requires him to wear braces on his back and legs and to undergo regular physical therapy. When asked by Ugol whether, given the boy's condition, he would have any special concerns about his being disciplined with a belt, he replied that he "sure would" and that it "wouldn't help the condition," but he did not specify any particular harmful effects. He reported never having seen bruising or other signs of physical abuse on the boy.

Dr. Michael Erlich, the boy's pediatric orthopedist, who examined his "whole body" every three to four months, also reported never having seen bruising or other marks on the boy. He stated his opinion that the boy's parents, and the plaintiff in particular, were "unbelievably devoted" to the boy, noting that it was the plaintiff who made sure that the boy performed all his required physical exercises, without which he would develop muscular deformities.

On the basis of this investigation, Ugol supported the 51A report of abuse and neglect against the plaintiff and the boy's mother, concluding that the plaintiff's use of corporal punishment put the boy "at risk of physical hurt/harm, and is not acceptable."⁴ Her report acknowledged that the boy was known to embellish facts, and concluded that the existence of temporary marks left by the spankings was, therefore, only "possible." Furthermore, although noting the boy's medical condition, Ugol stated that it was "unclear" whether this condition created any heightened risk of physical harm from the spankings. The department's northeast region clinical review team reviewed and upheld Ugol's decision, and the department offered the parents access to counselling services on a voluntary basis. When the parents declined this offer, the department simply closed the case and took no further action.⁵

b. Administrative and judicial review. Pursuant to its regulations, the department held an administrative hearing at the plaintiff's request to review Ugol's decision. See 110 Code Mass. Regs. § 10.06 (8) (1994).⁶ At this hearing, Ugol testified that she had not found that the boy had actually suffered any bruising or swelling as a result of this punishment, but agreed that her decision to support the abuse report was based on her conclusion that "hitting a child with an object, in this case a belt, puts a child at substantial risk of serious physical injury" or creates the potential for soft tissue swelling and skin bruising. She further testified that her decision was not predicated on any heightened risk of injury created by the boy's medical condition, which was uncertain, but on her assessment of the risk of injury arising from the nature of the corporal punishment itself.

The hearing officer issued detailed findings summarizing the evidence we have reviewed above. On the basis of this record, she concluded that Ugol's decision was in conformity with the department's policies and regulations, stating, "[I]t is reasonable to believe that hitting a child with an object in the manner described puts him at substantial risk of physical injury, such as skin bruising or soft tissue swelling. This constitutes physical abuse as defined by Department regulations."

The department's decision was subsequently affirmed on appeal by a Superior Court judge, who ruled that there was "substantial evidence" in the record to warrant the decision. The judge concluded that any interference with the plaintiff's religious and parental rights resulting from the department's decision was justified by the Commonwealth's interest in protecting a minor child from harm.

2. Discussion.

a. Standard of review. We may set aside the decision of an administrative agency if it is not supported by substantial evidence. See G. L. c. 30A, § 14 (7) (e); Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 199 (1991). "Substantial evidence," as defined by statute, is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). In conducting this review, we must "give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it," G. L. c. 30A, § 14 (7), and should defer to the agency on questions of fact and reasonable inferences drawn from the record. Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Significantly, however, that the record may contain some evidence from which a rational mind might draw an inference in support of the agency's decision does not dispose of our inquiry. New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981). Rather, to determine whether an agency's decision is supported by substantial evidence, we examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight. See id. See also Daniels v. Board of Registration in Medicine, 418 Mass....