Matthew M. v. Dep't of Children & Families

• Decision Date: 09 July 2013
• Docket Number: AC 34272
• Parties: MATTHEW M. v. DEPARTMENT OF CHILDREN AND FAMILIES
• Court: Connecticut Court of Appeals

MATTHEW M.^* v. DEPARTMENT OF

CHILDREN AND FAMILIES

AC 34272

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 9, 2013

officially released July 9, 2013

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(Appeal from Superior Court, judicial district of New Britain, Cohn, J.)

John P. Clifford, Jr., with whom was Joel M. Ellis, for the appellant (plaintiff).

Susan T. Pearlman, assistant attorney general, with whom were John E. Tucker, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (defendant).

Opinion

ROBINSON, J. The plaintiff, Matthew M., appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant, the Department of Children and Families (department), upholding the substantiation of the finding of physical neglect of M. On appeal, the plaintiff claims that (1) he was denied due process when the hearing officer improperly amended the department's allegations and based his decision on an allegation of physical neglect on which the department had not relied, and (2) there was not substantial evidence to support a finding of physical neglect because (a) the department's witness testified that the department could not prove physical impact, (b) the hearing officer found facts that were not supported by the record, (c) the substantiation of emotional neglect previously had been reversed by the department after its internal review, (d) the violation of the department's policy manual § 34-5¹ rendered the investigation improper and findings not legally supportable and (e) the department failed to produce evidence of the plaintiff's intent to harm M. We affirm the judgment of the trial court.

The record reveals the following facts, as found by the hearing officer, and procedural history. The plaintiff is married to Courtney M. and has one daughter, O, with her. The plaintiff has a daughter from a previous relationship, M, and Courtney has two children, C and D, from a previous relationship. The plaintiff and Courtney have a history of engaging in domestic violence, both with each other and with the parents of their children from previous relationships. Both the plaintiff and Courtney have attended domestic counseling in Massachusetts.

With respect to the incident at issue, the hearing officer found the following facts. ''On February 28, 2010, the [plaintiff] and Courtney engaged in an altercation. The argument began in the couple's bedroom, moved into [C's and D's] bedroom, the kitchen and then moved outside. During the argument, Courtney went into [C's and D's] bedroom to retrieve a baseball bat. The [plaintiff] put Courtney in a choke hold and picked her up off the ground by her neck. Courtney screamed for the children to call the police. During this time, [C and D] remained in their bedroom. The argument advanced to the kitchen and then outside to the front yard, where Courtney used the bat to break the [plaintiff's] car window. . . .

''[M] was in close proximity to the [plaintiff] and Courtney while they were outside fighting. The [plaintiff] grabbed and picked up four year old [M] and placed her in the family's [vehicle]. . . . The [plaintiff] drove the [vehicle] in the direction of Courtney and nearly ran her over, as he sped away. [D] shouted at the [plaintiff],'don't run my Mommy over.' [M] disclosed being scared during the altercation.'' The East Windsor Police Department was contacted, and in the course of its investigation, one of the officers notified the department through its hotline of the incident because children had been present during the altercation.

The department's initial investigation resulted in a substantiation of emotional neglect and physical neglect as to each child, but did not recommend that the plaintiff be placed on the department's central registry.²The plaintiff requested an internal review of the substantiation. The review resulted in a reversal of the allegations of emotional neglect as to each child and an upholding of the allegations of physical neglect as to each child. The plaintiff then requested an administrative hearing, which was held in September, October and November, 2010. The hearing officer issued a final decision upholding the substantiation of physical neglect as to M and reversing the substantiations of physical neglect as to the other three children. He subsequently denied the plaintiff's motion for reconsideration on February 15, 2011. The plaintiff appealed to the Superior Court, and the court issued a decision on December 30, 2011, dismissing the appeal. This appeal followed.

I

The plaintiff claims that he was denied his due process right to a fair hearing when the hearing officer upheld the substantiation of physical neglect of M on the basis of an exception to the ground relied on by the department because it had never raised that exception as a basis for physical neglect of M.³ The plaintiff's position rests on two assumptions: (1) the department's policy manual § 34-2-7, entitled ''Operational Definitions of Child Abuse and Neglect,'' contains grounds that the department is required to identify when providing notice of the substantiation of allegations of abuse or neglect; and (2) the grounds related to physical neglect include an exception that also must be identified and noticed to the plaintiff. We reject both assumptions.

The following facts and procedural history are necessary for the resolution of this claim. On April 4, 2010, the department mailed to the plaintiff a letter entitled ''Notice of Investigation Results (Substantiated)'' that substantiated the allegations of physical neglect and emotional neglect as to each of the four children and indicated that the plaintiff did ''not pose a risk to the health, safety or well-being of children.'' After the plaintiff requested an internal review, the department informed the plaintiff that the substantiations of the allegations of emotional neglect had been reversed.⁴

Prior to the first day of the hearing, the plaintiff received all of the documentation regarding the case. Included in the documentation was the department's investigation protocol, which detailed the contacts thathad been made during the initial investigation as well as the results of any reviews. At two places within the investigation protocol, there were references to the grounds that the department relied on when substantiating the allegations of physical neglect. The ground for physical neglect was first identified in the case disposition section of the initial investigation. The report noted that according to § 34-2-7 of the department's policy manual, "[p]hysical neglect is the failure, whether intentional or not, of the person responsible for the child['s] health, welfare, or care . . . to provide and maintain adequate food, clothing, supervision, and safety for the child. This includes permitting the children to live under conditions, circumstances or associations injurious to their well-being including but not limited to exposure to family violence which adversely impacts the child physically. . . . [M] was in the car when [the plaintiff] attempted to run [Courtney] over with the car. [The plaintiff] is said to have been driving erratically with [M] in the vehicle. Physical neglect of [D, C, O and M] by [the plaintiff] will be substantiated.''

The ground for physical neglect was also identified in a page entitled ''Investigation Appeals'' that detailed the results of the internal review that had been requested on May 11, 2010. The investigation appeals page listed the allegations, a short description of the basis for the allegation, the outcome of the review of the allegation and the outcome of whether the plaintiff would be placed on the central registry. The description for the allegations of physical neglect was categorized as ''[e]xposure to [family violence] w/adverse physical impact.''

The hearing officer issued his final decision on January 5, 2011. He stated: ''In order to support a substantiation of physical neglect the [d]epartment must demonstrate: (1) the [plaintiff] is a person responsible for the children's health, welfare or care; or is a person given access to the children by a person responsible, or is a person entrusted with the children's care; (2) the [plaintiff] denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being; and (3) the failure resulted in an adverse physical impact on children unless the act was a single incident that...