Gagliardi v. Comm'r of Children & Families

• Decision Date: 03 March 2015
• Docket Number: No. 36421.,36421.
• Citation: 110 A.3d 512,155 Conn.App. 610
• Parties: Todd GAGLIARDI v. COMMISSIONER OF CHILDREN AND FAMILIES.
• Court: Connecticut Court of Appeals

155 Conn.App. 610

110 A.3d 512

Todd GAGLIARDI

v.COMMISSIONER OF CHILDREN AND FAMILIES.

No. 36421.

Appellate Court of Connecticut.

Submitted on Briefs Jan. 9, 2015.

Decided March 3, 2015.

William B. Westcott, Westport, filed a brief for the appellant (plaintiff).

George Jepsen, attorney general, and John E. Tucker and Benjamin Zivyon, assistant attorneys general, filed a brief for the appellee (defendant).

KELLER, MULLINS and BEAR, Js.

Opinion

KELLER, J.

The plaintiff, Todd Gagliardi, appeals from the judgment rendered by the trial court dismissing his appeal from an administrative decision of the Commissioner of the Department of Children and Families (commissioner) that substantiated claims of child sexual abuse committed by the plaintiff against G.M.,¹ and placed the plaintiff's name on the commissioner's child abuse and neglect central registry (registry). On appeal, the plaintiff claims that the court erred in dismissing his appeal from that administrative decision by erroneously concluding that an exhibit containing text messages admitted during the plaintiff's substantiation hearing was sufficiently authenticated. We affirm the judgment of the court.

The following facts, as set forth by the trial court, and procedural history are relevant here. “In May 2012, G.M. was a sixteen year old junior at Branford High School. The plaintiff ... was a teacher at Branford High School, and had been G.M.'s Spanish teacher during her freshman year. Between May 26 and May 31, 2012, the plaintiff exchanged text messages of an increasingly sexual nature with G.M. The text messages include graphic descriptions of various sexual acts that G.M. and the plaintiff [purportedly] wanted to perform on each other and of sexual activities that they had engaged in with others. The plaintiff and G.M. did not have any physical contact during this week–long period.

“G.M.'s mother ‘periodically pulls' her daughter's cell phone records. On May 31, 2012, G.M.'s mother obtained [G.M.'s] text message history from her cell phone provider and discovered the texts between G.M. and the plaintiff. G.M.'s mother reported the texts to the school and provided copies of the transcribed messages to the Branford Police Department. The police then provided a copy of the transcript to [an investigator working for the commissioner, Shanelle] Ingram. G.M. admitted sending text messages to the plaintiff. [The commissioner] and the Branford Police Department completed a joint investigation, but criminal charges against the plaintiff were not filed because G.M.'s mother did not want to press charges, no physical contact had occurred, and the plaintiff had resigned from his teaching position.

“In July 2012, the plaintiff received notice that the [commissioner] had completed [the] investigation and had substantiated the allegations against him. The notice further informed the plaintiff that [the commissioner] deemed him a risk to the safety of children, and recommended that his name be placed on the [registry].² The plaintiff requested additional review of the findings in accordance with General Statutes § 17a–101k (b) and (c).

“On August 27, 2012, [the commissioner] notified the plaintiff that [she] had conducted an internal review and had chosen to uphold [her] findings. At the plaintiff's request, [the commissioner] then held a substantiation hearing on November 29, 2012. Although he was represented by counsel at the hearing, the plaintiff decided not to personally attend. At the hearing, a transcript of text messages that were sent by the plaintiff and G.M. to each other was admitted into evidence. The hearing officer, by relying on the content of the text messages themselves and other evidence in the record, concluded that the text messages were sufficiently authenticated and admitted them into evidence.

“[The commissioner] issued a final written decision on January 18, 2013, upholding the substantiation of sexual abuse and the plaintiff's placement on the [registry]. The [hearing officer's] decision was based primarily on the sexual content of the text messages, which were furnished by G.M.'s mother, who obtained them from [the cell] phone company. The [hearing officer] reasoned that ‘[t]he content of the text messages between the [plaintiff] and [G.M.] supports the [commissioner's] finding that the [plaintiff] sexually exploited her through grooming behavior designed to result in more intimate sexual conduct’ ” (Footnotes altered.)

Pursuant to General Statutes § 4–183,³ the plaintiff appealed from the commissioner's administrative decision to the trial court on the basis of his claim that the text messages at issue were improperly admitted as evidence before the hearing officer because they were not sufficiently authenticated to prove that he had authored them.

The court dismissed the plaintiff's appeal. At the outset, the court emphasized that administrative tribunals are not bound by the Connecticut Code of Evidence and may consider hearsay in determining the authenticity of exhibits that would be inadmissible under the rules of evidence so long as the exhibits are “reliable, probative, material, and not unduly repetitious.” The court acknowledged that the text messages were authenticated primarily on the basis of their content, which contained multiple layers of hearsay. Despite this, the court found that the text messages were trustworthy and reliable for three reasons. First, the court rejected the notion that the lengthy chain of custody of the text message records rendered them untrustworthy. According to the court, the text message records were transferred from (1) the company providing G.M.'s cell phone service to (2) G.M.'s mother, who transferred them to (3) the police, who transferred them to (4) the commissioner. The court found that the plaintiff had not alleged that any of the foregoing parties altered the records or had a motive to do so. Therefore, the court refused to conclude that the lengthy chain of custody of the records, without more, undermined their reliability.

Second, the court agreed with the hearing officer's finding that the record contained no evidence suggesting that G.M. had any reason to fabricate the allegations raised against the plaintiff. The court noted that G.M. admitted to the exchange of text messages between herself and the plaintiff only after her mother discovered the text messages. Further, the court emphasized the hearing officer's finding that there was no evidence presented suggesting that G.M.'s mental state was impaired or impacted the reliability of the statements concerning the text messages that she provided to Ingram during Ingram's investigation.

Third, the court found that the content of the text messages was sufficient to authenticate the plaintiff as their author. The court noted that text messages may be authenticated by circumstantial evidence of “ ‘distinctive characteristics' ” within the text messages that identify the author. The court listed the following “ ‘distinctive characteristics' ” contained in the text messages that sufficiently authenticated the identity of the author of the text messages as the plaintiff: (1) the sender identified himself as a Spanish teacher at G.M.'s school; (2) the messages contained flirting and repeated warnings about the need for secrecy, “exactly what one would expect from a teacher attempting to establish a sexual relationship with a student”; and (3) many of the text messages focused on various articles of clothing that the plaintiff and G.M. wore at school.

In addition, the court rejected the plaintiff's claims that (1) someone pretending to be the plaintiff sent the text messages, (2) there was no evidence connecting the plaintiff's cell phone account with the cell phone number that sent the text messages to G.M., and (3) there was no corroborating evidence of an inappropriate relationship between the plaintiff and G.M. The court found that the plaintiff failed to introduce any evidence in support of the first two claims. Moreover, the court stated that, in any event, the commissioner did not have the burden at the substantiation hearing to rule out every possible inconsistency with authenticity. Lastly, the court found that the plaintiff had conceded that, if the text messages were properly authenticated and admitted, then the hearing officer had substantial evidence to support her decision.

For the foregoing reasons, the court concluded that the hearing officer did not abuse her discretion by admitting the text messages into evidence and dismissed the plaintiff's appeal. This appeal followed.

The plaintiff claims that the court erred in dismissing his appeal from that administrative decision because the court erroneously concluded that the hearing officer did not abuse her discretion by admitting into evidence the text messages at issue in this appeal. Specifically, the plaintiff claims that the text messages were not properly authenticated to prove that he was their author. We disagree.

We begin by setting forth the relevant standard of review and applicable law. “We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq. ]⁴ .... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Footnote added; internal quotation marks omitted.) Family Garage, Inc. v. Commissioner of Motor Vehicles, 130 Conn.App. 353, 357, 23 A.3d 752, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011). “[T]he plaintiff bears the burden of demonstrating that a hearing...