Talia T. v. Dep't of Children & Families
| Decision Date | 27 October 2020 |
| Docket Number | 19-P-618 |
| Parties | TALIA T. & another v. DEPARTMENT OF CHILDREN & FAMILIES. |
| Court | Appeals Court of Massachusetts |
The plaintiffs, Talia T. and Amy T., appeal from a judgment entered in the Superior Court affirming the decision of the Department of Children and Families (department) to revoke their license to provide preadoptive foster care (license). The plaintiffs argue that the department's decision to revoke the license was not supported by substantial evidence, and that they were prejudiced by the department's failure to follow its own regulations and policies in revoking their license. Because we conclude that the hearing officer's affirmance of the department's decision to revoke the plaintiffs' license was not supported by substantial evidence, we vacate the judgment and order the entry of a new judgment remanding the matter to the department for further proceedings consistent with our decision.
Background. We summarize the facts found by the hearing officer, adding some additional facts from elsewhere in the record and reserving other details for later discussion.
The plaintiffs are the married parents of a daughter, Carole,4 whom they adopted in 2013 when she was three years old. In 2015, Rachel Carvalho, an adoption social worker with Children & Family Services, Inc. (CFS),5 oversaw the placement of Alan, age three, and his brother, Bruce, age two, in the plaintiffs' home.6 Both boys had significant emotional and physical needs and developmental delays. The plaintiffs planned to adopt both boys.
On her initial visits with the boys after their placement, Carvalho found that they were doing well. They were receiving early intervention and other services, including physical therapy for Bruce, who was born with a lower limb deficiency. Soon, however, Carvalho's relations with the plaintiffs became strained. The plaintiffs told Carvalho they planned to have Bruce evaluated for autism
, and that he had been diagnosed with autism by three of his providers. Carvalho determined none of the providers had diagnosed Bruce with autism, although two of the three providers indicated they had seen behaviors that might indicate autistic features or that the plaintiffs' concerns about autism were "appropriate." Carvalho, however, thought that the plaintiffs' ongoing advocacy for an autism evaluation was inappropriate.
On subsequent visits to the home, Carvalho noted bruises on the children. The plaintiffs complied with Carvalho's request to have the boys evaluated by their pediatrician, who opined that the bruises were a result of the boys being active. Carvalho felt that the plaintiffs' expectations for the children were unreasonable, given their ages and developmental issues.
The relationship between Carvalho and the plaintiffs deteriorated further over the course of Carvalho's visits between August and December 2015. Carvalho continued to believe that the plaintiffs' expectations for the children were unreasonable. The plaintiffs asserted that Carvalho was biased against them and that she did not demonstrate competence in their parenting style, in child development, or in lesbian, gay, bisexual, and transgender family structures. After a meeting in December 2015, Carvalho and the plaintiffs reached an agreement that accommodated some of Carvalho's concerns and permitted the plaintiffs to have Bruce evaluated for autism
by a specialist whom the plaintiffs chose.
The department initiated a scheduled license renewal study of the plaintiffs' home in January 2016.7 During the same month, and while the study was pending, a G. L. c. 119, § 51A, report (51A report), was filed, based on a report that one of the plaintiffs had pushed Carole. Following an investigation, the department determined that the plaintiffs had not pushed Carole, and the report was not supported.
Bruce was evaluated for autism
by a specialist at Boston Children's Hospital selected by the plaintiffs. The specialist did not diagnose Bruce with autism. The plaintiffs were unhappy with the evaluation, but complied with Carvalho's directive that further conversation about autism was "off the table."
The evidence was undisputed that the plaintiffs met with the department whenever they were requested to do so, arranged for prompt medical evaluation of the boys at Carvalho's request, were responsive to the department's calls, and participated in efforts to identify and resolve areas of disagreement between themselves and various professionals, including Carvalho.
On February 3, 2016, the plaintiffs were informed that the department intended to conduct a "limited reassessment" of their home "due to a 51A report having been filed in January, 2016."
On February 15, 2016, a 51A report was filed regarding "bruises" observed on Alan. The discolorations in question were immediately identified as birthmarks, not bruises, and no abuse or neglect was found. Based on the fact that Alan and Bruce were in preadoptive care with the plaintiffs, however, the remaining investigation was transferred to the department's special investigations unit. The investigation addressed "many concerns," including reports that Bruce was loud at dinner and was not able to eat with the family, and that Alan had been placed in a time out for over an hour. The plaintiffs explained to Carvalho and to Marsha Donovan, the department's regional adoption development licensing supervisor, that they did not withhold food from the children; as Donovan confirmed in her hearing testimony, the department ultimately had no proof that the plaintiffs had done so. Donovan testified that Amy denied that Alan had been put in time out, and said that from time to time Alan spontaneously took himself to his room, sometimes staying there "for a long time."
All aspects of the investigation into the February 15, 2016 report, too, ultimately were unsupported, although the investigation generated additional concerns within the department about the plaintiffs' parenting style and their interactions with the boys. Carvalho discussed at least some of these new concerns with the plaintiffs, who offered to allow her access to a number of people who could speak to their parenting of the boys, including community members and providers who were familiar with the family. Carvalho did not attempt to contact any of these sources.8
The plaintiffs met with Carvalho again on February 16, 2016. At the time of this meeting, according to Carvalho, "[t]he children were ... responding very well to the structure in the home," and she told the plaintiffs that the boys seemed very happy and well adjusted.
On February 18, 2016, Carvalho spoke with a supervisor of an in-home provider for the plaintiffs' daughter, Carole. The supervisor recounted for Carvalho the provider's concerns about the plaintiffs' "expectations for the children not being age appropriate"; the plaintiffs' plans to seek additional evaluation of Bruce for autism
once the adoption was finalized; and Talia's report some weeks earlier about having been reported to the police based on her interaction with the children in a park.9
On February 19, 2016, without prior notice, Carvalho advised the plaintiffs that the boys were being "placed in respite" pending the outcome of an inquiry by the department's special investigation unit of the 51A report filed on February 15; Carvalho took Alan and Bruce out of the plaintiffs' home the same day. The plaintiffs filed a timely request for a fair hearing on the department's removal of Alan and Bruce. See 110 Code Mass. Regs. § 10.00 (2014).
Carvalho reported being informed by the foster parents with whom the boys had been placed upon removal from the plaintiffs' home that, for several weeks after the removal, Alan "displayed behaviors consistent with having food withheld from him." Carvalho did not provide any detail about those behaviors, or the basis for the opinion -- either that of the reporting foster parents or her own -- that the behaviors were "consistent with" the withholding of food.10 Carvalho also testified that after removal from the plaintiffs' home, Alan was very active, but "he's not getting any bruising," and that after removal, none of Bruce's providers expressed concerns about autism
. On April 20, 2016, the February 15, 2016, 51A report was unsupported.
Following an internal department clinical review team (CRT) meeting on May 17, 2016, the CRT recommended that the plaintiffs' license to provide preadoptive care be revoked. However, it was not until June 29, 2016 -- the first day of the fair hearing on the removal of the boys from the plaintiffs' home -- that the department informed the plaintiffs that it had decided to revoke their preadoptive care license.11 The plaintiffs timely requested a fair hearing as to this decision as well; the fair hearings on the boys' removal and the revocation of the plaintiffs' license were consolidated.
Following the completion of the combined fair hearing, the hearing officer concluded that the department's removal of Alan and Bruce from the plaintiffs' home was improper, but because she affirmed the revocation of the plaintiffs' license to provide preadoptive care, she further concluded that the issue of the boys' removal was moot. The plaintiffs appealed the hearing officer's decision affirming the revocation of their license to the Superior Court pursuant to G. L. c. 30A, § 14. A judge of that court affirmed the hearing officer's decision.
Discussion. The plaintiffs argue that the department's decision to revoke their license was unsupported by substantial evidence and must be set aside pursuant to G. L. c. 30A, § 14 (7) (e ) ; they also argue that the decision was fatally flawed based on the department's failure to adhere to its own regulations. Ultimately, they seek reinstatement of their license.12
1. Standard of review. We review the hearing officer's decision in accordance with G. L. c. 30A,...
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