Edward E. v. Department of Social Services
| Decision Date | 16 April 1997 |
| Docket Number | No. 95-P-1460,95-P-1460 |
| Citation | 678 N.E.2d 163,42 Mass.App.Ct. 478 |
| Parties | EDWARD E. v. DEPARTMENT OF SOCIAL SERVICES. |
| Court | Appeals Court of Massachusetts |
Howard I. Rosen, Boston, for plaintiff.
Katherine M. Potter, Assistant General Counsel, for defendant.
Before PERRETTA, KASS and JACOBS, JJ.
Upon oral notification by a mandated reporter that Edward E.'s three year old daughter had stated that her father had touched her "private parts," the Department of Social Services (department) assigned a social worker to investigate the allegations. That investigation led the social worker to conclude that there was reasonable cause to believe that the child had been sexually abused, and the department determined that the allegations were "supported." See 110 Code Mass. Regs. § 4.32(2) (1994). Consequently, the matter was referred to the district attorney, and the father's name was listed on the department's registry of alleged perpetrators (see G.L. c. 18B, § 7[b ] ), where it would remain for seventy-five years in the absence of reversal of the department's decision. 1 1 The father unsuccessfully sought review of the department's decision at an administrative "fair hearing." See 110 Code Mass. Regs. § 10.08 (1994). He then sought judicial review of the decision under G.L. c. 30A, § 14. A Superior Court judge found and concluded that the allegations against the father were supported by substantial evidence. 2 This appeal is from that judgment, which we reverse.
1. The administrative decision. At the conclusion of the fair hearing, the hearing officer found that the child had stated to three different people (the mandated reporter, a social worker for the department, and a therapist) that her father touched her genital area, that her use of the phrase "private parts" was not an uncommon term for a child of her age to use in referring to the genital area, that she indicated that the touchings had occurred in the bathroom, that she had not retracted the allegations, and that she remained in psychotherapy. Based upon his findings that the father, who was divorced from the child's mother, had "visitation with the child and therefore was entrusted with a degree of responsibility for the child as well as having access to the child," the hearing officer also found that the father was a "caretaker" of the child within the meaning of 110 Code Mass. Regs. § 2.00(7) (1993). 3
Concluding that the child's disclosures to three different individuals constituted substantial evidence, the hearing officer ruled that the father had failed to meet his burden of proving that the department's decision was erroneous. See 110 Code Mass. Regs. § 10.06(8)(c) (1994).
2. Substantial evidence. Both G.L. c. 30A, § 1(6), as inserted by St.1954, c. 681, § 1, and 110 Code Mass. Regs. § 4.37 (1993), define "substantial evidence" as "such evidence as a reasonable mind might accept as adequate to support a conclusion." Three witnesses testified at the fair hearing: the father, his present wife, and the child's on-going social worker for the department, Deborah Sullivan. 4 In addition to the testimony, the hearing officer had before him the report of the investigation conducted by the department after receipt of the mandated report. See G.L. c. 119, §§ 51A and 51B.
Except for Sullivan's testimony, all the evidence tending to show that the father had sexually abused his daughter was multi-level hearsay, admissible at the fair hearing under G.L. c. 30A, § 11(2), G.L. c. 119, § 21, and 110 Code Mass. Regs. § 10.21 (1993). Relying exclusively upon Sinclair v. Director of the Div. of Employment Security, 331 Mass. 101, 103, 117 N.E.2d 164 (1954), the father argues that a decision based solely upon uncorroborated hearsay cannot constitute substantial evidence.
Sinclair was explicated and limited in Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commn., 401 Mass. 526, 530, 517 N.E.2d 830 (1988): "Although in that case we said that '[i]f the pertinent evidence is exclusively hearsay, that does not constitute "substantial evidence" even before an administrative tribunal,' Sinclair, supra at 103, 117 N.E.2d 164, the line we were drawing was not between evidence admissible in a court and evidence that is inadmissible because of the rules of evidence observed by courts, but between evidence having indicia of reliability and probative value and that which does not."
The question before us is not whether the administrative decision was based exclusively upon uncorroborated hearsay but whether the hearsay presented at the fair hearing was reliable. Even then, our review does not end. New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981). See Tenneco, Inc. v. Commissioner of Revenue, 401 Mass. 380, 383-384, 516 N.E.2d 1164 (1987).
3. The evidence. We set out the evidence presented to the hearing officer, turning first to the documentary submissions. After receiving a mandated report on April 19, 1994, a social worker for the department assigned the case for investigation to another department social worker, Cherry Rooney. Rooney commenced her investigation the next day and filed her report within the week. As recounted in her report, Rooney met first with Sullivan, the child's social worker. According to Rooney's account of the meeting, Sullivan told her that an extensive sexual abuse evaluation had been done on the child by a Felicia Hagberg. At that time, the child made no disclosure of abuse. Sometime subsequent to the evaluation, again we are not advised when, but during a regularly scheduled visit between Sullivan and the child, the child told Sullivan that "my daddy touched my private parts." The child was then referred to Hagberg for therapy during which, at some undisclosed time, she talked about, according to Rooney from Sullivan from Hagberg, "bad dreams about her dad." Sullivan also told Rooney that there were "additional disclosures to Hagberg."
As part of her investigation, Rooney had a telephone conversation with Hagberg. Hagberg confirmed that a sexual abuse evaluation of the child had been done about five months earlier, and that the child had made no disclosure at that time. Therapy with the child began two months after the evaluation, and during therapy, the child told Hagberg that her father had touched her private parts and had hurt her. According to Rooney's account of her conversation with Hagberg, "[the child] has not been able to talk about specifics but she has stated that 'she has scary dreams of daddy.' " Hagberg also told Rooney that the child's mother told her (Hagberg) that the child has trouble sleeping.
In addition, Hagberg related to Rooney an incident with the child which occurred a month after therapy began. Rooney records that incident as follows:
It appears from Rooney's report that Hagberg told her that the term "private parts" came up with the child several times. As relayed by Rooney from Hagberg: "During the sexual abuse evaluation, using the anatomical dolls, the term was used and she [Hagberg] feels that ... the child has a clear understanding of what it means." 5 Rooney reported that Hagberg was of the view that the child cannot be ignored in her statements, that the child, notwithstanding many opportunities to do so, has never mentioned being touched by anyone else.
Rooney also spoke on the telephone with the mandated reporter. 6 The identity of the mandated reporter was redacted from Rooney's account of the conversation. According to Rooney, the mandated reporter stated the child disclosed on two separate occasions that her father had touched her "privates." The reporter told Rooney that the child said the touchings occurred at the home of her aunt who was at that time supervising the father's visitation. 7 Rooney noted that the reporter stated that when the child made the disclosure, she appeared withdrawn and that she regressed and put her thumb in her mouth and her head in her mother's lap.
Although we do not know when the child made these disclosures, the mandated reporter told Rooney that the child made the second disclosure just before a visit with the father and his present wife who was then supervising visitation.
Rooney also spoke with the father on the telephone. He denied ever touching his daughter and expressed his concern that someone may have abused her. He told Rooney that three weeks earlier the child asked him, "daddy did you touch my private parts?" The father asked the child if she knew the meaning of the term "private parts." When the child responded that she did not, he explained to her what the...
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