Kyle K. v. Department of Children and Families ( 2023 )

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22-P-35 Appeals Court
KYLE K. vs. DEPARTMENT OF CHILDREN AND FAMILIES.
No. 22-P-35.
Suffolk. November 2, 2022. – October 6, 2023.
Present: Rubin, Englander, & Hand, JJ.
Department of Children & Families, Registry of alleged
perpetrators. Child Abuse. Administrative Law,
Administrative Procedure Act, Decision, Hearing, Judicial
review, Standard of proof, Substantial evidence, Failure to
raise issue before agency. Due Process of Law,
Administrative hearing. Evidence, Administrative
proceeding. Practice, Civil, Review of administrative
action, Judgment on the pleadings, Waiver. Waiver.
Civil action commenced in the Superior Court Department on
March 23, 2020.
The case was heard by Maureen Mulligan, J., on motions for
judgment on the pleadings.
Brian Waller for the plaintiff.
Carol A. Frisoli for the defendant.
RUBIN, J. Today we review the decision of a hearing
officer of the Department of Children and Families (department
or DCF) upholding the determination that allegations of sexual
2
abuse of a child, Adam,1 made by Adam against his stepfather, and
reported to DCF by mandated reporters pursuant to G. L. c. 119,
§ 51A (51A report), were "supported." See 110 Code Mass. Regs.
§ 4.32 (2009).
The legal term "supported" is confusing. As relevant here,
a mandated reporter must notify DCF when the reporter has
"reasonable cause to believe that a child is suffering physical
or emotional injury resulting from: (i) abuse inflicted upon
him which causes harm or substantial risk of harm to the child's
health or welfare, including sexual abuse." G. L. c. 119,
§ 51A. DCF must undertake an investigation. See G. L. c. 119,
§ 51B. Under DCF regulations, as relevant to this case, the
finding that the allegation was "supported" actually means that
the department concluded there was "reasonable cause to believe"
that the reported "incident . . . of abuse or neglect of Adam
"by a caretaker did occur." 110 Code Mass. Regs. § 4.32(2)
(2009).
Among other things, a finding that an allegation made in a
51A report is supported triggers the obligation of DCF to "offer
'appropriate services' to the family of any child whom it has
reasonable cause to believe is suffering from abuse or neglect
'to prevent further injury to the child, to safeguard his
1 A pseudonym.
3
welfare, and to preserve and stabilize family life whenever
possible.' G. L. c. 119, § 51B (g)." Adoption of Luc, 484
Mass. 139, 141 (2020).
The stepfather appealed from the finding that the
allegations against him were "supported." After a fair hearing,
see 110 Code Mass. Regs. §§ 10.00 (2014), a hearing officer
within DCF concluded that there was reasonable cause to believe
that the allegations were true. The stepfather sought judicial
review in the Superior Court, and a judge of that court affirmed
the hearing officer's decision, denying the stepfather's motion
for judgment on the pleadings, and granting DCF's cross motion.
The stepfather has now appealed.
Facts and prior proceedings. After a long history of
allegations of sexual abuse of Adam which were recanted or found
not to be substantiated, in January, 2019, a mandated reporter
submitted a 51A report, stating that Adam had alleged that his
stepfather sexually abused him. In February, 2019, a mandated
reporter filed a 51A report stating that Adam had alleged sexual
and physical abuse by the stepfather.
After an investigation mandated by G. L. c. 119, § 51B (51B
report), the department's investigator found on March 20, 2019,
that these allegations of sexual and physical abuse of Adam by
the stepfather were "supported."
4
Adam's mother appealed through the department's fair
hearing process. See 110 Code Mass. Regs. § 10.06(11)
("Whenever the Department has supported a report of abuse or
neglect of a child, any parent of the subject child, any
caretaker who has been identified in the Department's Central
Registry as the person believed to be responsible for the abuse
or neglect, any caretaker of the subject child and any
Adolescent, who is the subject child, has the right to appeal
the Department's decision to support the report"). The fair
hearing was held before a DCF hearing officer, another executive
branch official within DCF. At the hearing, the stepfather was
added as an appellant when the mother's attorney said he also
represented the stepfather.
At a fair hearing,
"the investigator's decision to 'support' an allegation of
abuse or neglect is to be reversed by the hearing officer
if, 'based on information available during the
investigation and/or new information not available during
the investigation, the [d]epartment's decision was not in
conformity with the [d]epartment's policies and/or
regulations and resulted in substantial prejudice to the
aggrieved party.' 110 Code Mass. Regs. § 10.06(8)(c)
(1998). Thus, the issue on such an administrative appeal
from the investigator's decision is whether, based on all
information then available (which may take into
consideration information not considered by the
investigator during the original investigation), there was
-- and still is —- 'reasonable cause to believe' that the
child was abused or neglected."
Lindsay v. Department of Social Servs., 439 Mass. 789, 799
(2003). See 110 Code Mass. Regs. § 10.06(11)(a).
5
After the hearing, the hearing officer concluded that DCF's
decision to find the 51A reports of sexual abuse supported "was
made in conformity with the Department's regulations and
policies," and that "there was a reasonable basis" to believe
the alleged sexual abuse occurred. See Covell v. Department of
Social Servs., 439 Mass. 766, 778-779 (2003). The hearing
officer concluded that there was not reasonable cause to believe
the physical abuse occurred and reversed the DCF conclusion that
the allegation of physical abuse was supported.
At the hearing, the stepfather, Adam's mother, and the DCF
investigator assigned to the case testified. DCF introduced
evidence of the two 2019 reports by Adam of sexual abuse by the
stepfather, as well as evidence that Adam had recanted those
reports. Adam did not appear at the hearing; his allegations of
sexual assault came in through hearsay, the testimony of the DCF
investigator, and various documents, including police reports.
Both DCF and the stepfather offered additional documentary
evidence, including 51A and 51B reports.
The statements that led to the 51A reports were first made
by Adam in January, 2019, when he was thirteen years old. Adam
recanted the allegations after he was hospitalized for
psychiatric reasons in March, 2019.
The hearing officer examined all the evidence, including
those things in the record that detracted from the weight of the
6
evidence that Adam's allegations were true, including Adam's
retraction, and the fact that earlier allegations had not been
found substantiated when investigated by authorities in New
Hampshire and Rhode Island. Those prior allegations and
investigations were recounted in the findings of the hearing
officer. Adam first accused the stepfather of sexual assault in
2010, claiming that the stepfather had coerced Adam to put the
stepfather's penis in his mouth. New Hampshire and Rhode Island
authorities investigated the 2010 allegations and determined
them to be unfounded -- in part because Adam "stated he lied
about the sexual abuse."2 In the summer of 2018, DCF
investigated an additional allegation that the stepfather had
sexually assaulted Adam. DCF concluded then that "[t]he
concerns raised around sexual abuse by [the stepfather] had no
basis or validation."3
The hearing officer found that on six separate occasions
over a substantial period of time, first in 2010, then in 2019,
2 According to department records, Adam's report in 2010 was
that "[he] put his mouth around [the stepfather's] penis." Adam
later "recanted his statement and passed a polygraph test
denying the allegations."
3 Additionally, Adam reported that after a Christmas party
in 2010 at a relative's house in Rhode Island, his grandmother's
boyfriend had touched his buttocks and testicles under his
clothing. DCF was unable to identify the grandmother's
boyfriend by name but supported the allegation that an "unknown
person" had sexually abused Adam in 2010.
7
Adam reported that his stepfather sexually abused him, including
by raping him twice, orally. In 2019, when Adam was thirteen
years old, he provided corroborating details about the
allegations, which were also introduced through hearsay
evidence. At a sexual abuse intervention network (SAIN)
interview, he described a rape in some detail, including
specifics about the location and time of day at which the rape
occurred, the fact that the stepfather removed his own clothes,
but Adam remained clothed, the dialogue between himself and the
stepfather leading up to Adam's taking the stepfather's penis in
his mouth, and his description of "just sucking on [the
stepfather's penis] like a child would do to a lollipop." Even
apart from the description of the sexual abuse itself, the
hearing officer recounted that Adam said that "the stepfather
did not touch him and the stepfather's pants were down to his
ankles and his shirt was off. [Adam] said he had his clothes
on. About twenty minutes later, around noon, his mother
returned home so his stepfather pulled up his pants and asked
'who is it' as his mother was at the door knocking. Mother rang
the doorbell and the neighbor had let her in, and then she
knocked on the apartment door and [the] stepfather opened the
door for her. [Adam] stated he had met his stepfather only one
month before this happened. [Adam] said this happened on the
8
second floor of mother's house, which was green with two porches
and on [a specified] street."
As to the recantation by Adam, the hearing officer found
that "the Appellants, notably mother, directly influenced [Adam]
to recant the allegations, which occurred while the child was
inpatient at a hospital for psychiatric reasons in March 2019.
[Adam] has recanted the allegations of sexual abuse twice after
having direct contact with his mother. Therefore, the
Appellants' arguments were not persuasive."
There was also at least some corroborating evidence: Adam
suffered from a lack of bowel and urinary control, the latter of
which the Supreme Judicial Court has accepted as a "common
behavioral symptom[] of abuse." Commonwealth v. Alvarez, 480
Mass. 299, 302 (2018). Adam's therapist reported that Adam's
"behaviors of bed wetting and defecating in his clothing . . .
[were] signs of some sort [of] sexual trauma."
The hearing officer found "that the Department, in making
the decision of sexual abuse of [Adam] by [the] stepfather, and
pursuant to 110 [Code Mass. Regs. §§] 2.00 & 4.32, had
sufficient evidence to have reasonable cause to believe that
[the] stepfather sexually abused [Adam]. The Hearing Officer
finds that engaging in oral sex constituted sexual contact.
[Adam] had inconsistencies regarding the age of when sexual
abuse occurred. However, [Adam] has been consistent in his
9
disclosures of sexual contact between him and his stepfather,
his therapist questioned sexual abuse due to [Adam]'s behaviors
of wetting the bed and having bowel movements in his pants, his
guidance counselor reporting that he was a reliable reporter."
The hearing officer further spelled out, "Given all the evidence
regarding the matters under review, the Hearing Officer is left
with credible evidence that this child has continually disclosed
these allegations over a significant period of time. Contacts
with the child's family therapist during the 51B response and
with the child's mental health clinician by the detective during
his criminal investigation indicate that the child experiences
lack of control over his bowel movements and experiences
problematic urinary functions. The therapist has always
questioned sexual abuse because [Adam] has been wetting the bed
and having bowel movements in his pants. In addition, the
child's school guidance counselor, who was questioned about the
child's veracity during the 5lB response, reported that he
believes [Adam] to be a reliable reporter of information; he is
very upfront about things he says and claims ownership. It was
also notable that [Adam] was able to remember details of who was
in the home and was not and under which circumstances he was
sexually abused such as the house they lived in and the school
he attended at the time the abuse took place."
10
The stepfather then appealed to the Superior Court,
pursuant to G. L. c. 30A, § 14, "alleg[ing] that the
Department's decision was arbitrary, capricious, [without]
proper standing, not supported by substantial evidence and was
an abuse of discretion."4 The stepfather moved for judgment on
the pleadings, and DCF filed a cross motion for judgment on the
pleadings. The Superior Court judge denied the stepfather's
motion and granted DCF's motion.
Discussion. 1. Substantial evidence. The stepfather has
now appealed to this court. The primary question before us is
whether at the time of the decision of the hearing officer,
there was substantial evidence that there was reasonable cause
to believe the allegations that the stepfather abused Adam. See
Lindsay, 439 Mass. at 798 (when appellate court looks "to see
whether there was 'substantial evidence' to support the hearing
officer's decision, G. L. c. 30A, § 14 [7] [e], there need only
be 'substantial evidence' supporting the conclusion that there
was 'reasonable cause to believe' that" caretaker abused or
neglected child). We thus are not being asked whether the
stepfather actually abused Adam, something on which we express
no opinion. Rather, we must determine only whether there was
substantial evidence before the hearing officer supporting the
4 Adam's mother did not join in the appeal to the Superior
Court and is not involved in this appeal.
11
determination that there was "reasonable cause to believe" the
stepfather sexually abused Adam.
a. The test described. The substantial evidence test is
almost as low a bar as there is in terms of standards of review.
"In order to be supported by substantial evidence, an agency
conclusion need not be based upon . . . even a preponderance of
the evidence . . . ." Lisbon v. Contributory Retirement Appeal
Bd., 41 Mass. App. Ct. 246, 257 (1996). The substantial
evidence test "takes into account the entire record, both the
evidence supporting the agency's conclusion and whatever in the
record fairly detracts from the weight of that evidence."
Covell, 439 Mass. at 783, citing New Boston Garden Corp. v.
Assessors of Boston, 383 Mass. 456, 466 (1981). "Under the
substantial evidence test, a reviewing court is not empowered to
make a de novo determination of the facts, to make different
credibility choices, or to draw different inferences from the
facts found by the [agency]." Pyramid Co. of Hadley v.
Architectural Barriers Bd., 403 Mass. 126, 130 (1988).
As to facts, where there is substantial evidence to support
the findings of the agency, the court will not substitute its
own view of the facts. The Supreme Judicial Court (SJC) has
explained that
"[t]he substantial evidence 'standard of review is highly
deferential to the agency on questions of fact and
reasonable inferences drawn therefrom.'" Flint v.
12
Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).
We uphold an agency's finding of fact as long as it is
supported 'upon consideration of the entire record' and a
'reasoning mind [could have made the finding] by reference
to the logic of experience' (quotations omitted). New
Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456,
466 (1981). See Tennessee Gas Pipeline Co. v. Assessors of
Agawam, 428 Mass. 261, 265-266 (1998) ('reasonable basis in
logic' sufficient to uphold agency finding). Factual
findings are set aside 'if the evidence points to no felt
or appreciable probability of the conclusion or points to
an overwhelming probability of the contrary.' (quotation
omitted). New Boston Garden Corp., supra."
Citrix Sys., Inc. v. Commissioner of Revenue, 484 Mass. 87, 95-
96 (2020).
Finally, as to credibility, under the substantial evidence
test, "[i]n assessing the agency's decision, we show particular
deference to credibility determinations and inferences drawn
from the facts." Collamore v. Office of Campaign & Political
Fin., 67 Mass. App. Ct. 315, 322 (2006).
The low standards chosen by the Legislature with respect to
a DCF finding that a § 51A allegation is supported –- reasonable
cause to believe, with review for substantial evidence –- make
sense because the determination that an allegation of child
abuse and neglect received under § 51A is "supported" is what
allows DCF to begin to take steps to protect the child. See
Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass.
385, 390-394 (1999) (department may find report of suspected
abuse or neglect under § 51A supported only where there is
substantial evidence that there is reasonable cause to believe
13
child was victim of abuse or neglect). This is a context to
which the reasonable cause to believe and substantial-evidence
tests are well suited. All too often, truthful allegations of
child abuse are recanted. See Adoption of Xarissa, 99 Mass.
App. Ct. 610, 616 (2021). Reports are often contradictory or
inconsistent. And as we have said, the actual issue here is not
whether the allegations in this case are sufficient to find,
even by a preponderance of the evidence, that the stepfather
abused Adam. The question is whether there is substantial
evidence sufficient to support the conclusion that there was
reasonable cause to believe the stepfather abused Adam, that is
that the 51A reports were supported, the standard that is used
routinely in all types of child abuse and neglect cases to allow
DCF to open a case for services and to assign a social worker to
the family.
Doubtless in some cases where there is substantial evidence
that there is "reasonable cause to believe" there has been child
abuse or neglect, it will ultimately be found that the alleged
perpetrator did not commit the asserted abuse or neglect, or
that it could not be proved sufficiently to meet the
preponderance of the evidence, the clear and convincing
evidence, or the beyond a reasonable doubt standard.
But the low standard for a finding that a § 51A allegation
is supported, and our deferential standard of review, reflect
14
the fact that such findings are made after only an initial
investigation and, among other things, are designed to determine
when services must immediately be provided to a family. As the
SJC has explained,
"'[R]easonable cause' . . . is used in §§ 51A and 51B . . .
as a threshold determination. . . . A threshold
determination . . . necessarily anticipates that further
proceedings regarding the particular situation will be
held. . . . [I]t is inevitable that a threshold
determination is more likely to be erroneous than an
intermediate or final determination which utilizes a more
rigorous review process."
Care & Protection of Robert, 408 Mass. 52, 64-65 (1990). The
low standard, however, is warranted by the need to provide
services or take other action immediately to protect the child.
b. The test applied. There is certainly substantial
evidence in this case sufficient to support DCF's conclusion
that there was reasonable cause to believe the stepfather in
fact sexually abused Adam.
i. The stepfather argues that the hearsay evidence of
Adam's allegations lacked indicia of reliability. "Hearings on
appeals are not subject to any formal rules of evidence, and
written materials from the department's files and records are
admissible." Covell, 439 Mass. at 778. Evidence of abuse can
be "substantial" even when the alleged victim's "statements were
presented only through hearsay sources. . . ." Id. at 785-786.
Indeed, although there was also nonhearsay evidence here, a
15
finding of "[s]ubstantial evidence may be based on hearsay alone
if that hearsay has 'indicia of reliability.'" Id. at 786.5
Even if it were not supplemented by nonhearsay evidence,
the hearsay in this case has adequate indicia of reliability to
provide substantial evidence supporting the finding that there
was reasonable cause to believe the stepfather abused Adam. It
is undisputed that on six separate occasions over a substantial
period of time, first in 2010, then in 2019, Adam reported that
his stepfather sexually abused him. After disclosing alleged
abuse in 2019 at age thirteen, Adam was also able to provide
corroborating details about an incident. As described above, at
a SAIN interview, he described a rape in some detail, including
specifics about the location and time of day at which the rape
occurred, the fact that the stepfather removed his own clothes,
but Adam remained clothed, the dialogue between himself and the
stepfather leading up to Adam's taking the stepfather's penis in
5 Given all the circumstances, including Adam's age at the
time of the reports, the level of detail of the hearsay, the
corroborative details, and the hearing officer's findings about
reliability and the basis of the recantation, we conclude as the
SJC did in Covell, 439 Mass. at 783-785, that Edward E. v.
Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997)
(multilevel hearsay report of three year old child that lacked
detail, though admissible, was not standing alone sufficiently
reliable to amount to substantial evidence), is not applicable
here. See Covell, supra at 783-784 (Edward E. inapplicable
because accuser "was thirteen years old at the time, not a small
child," and because, unlike in Edward E., the allegation did not
"place" the "abuse in [an] implausible setting and
circumstances").
16
his mouth, and his description of "just sucking on [the
stepfather's penis] like a child would do to a lollipop." The
hearing officer drew a reasonable inference that Adam's guidance
counselor's statement that Adam is a reliable reporter supports
a conclusion that Adam's reports of sexual abuse were reliable,
an inference to which we owe deference, even though the guidance
counselor's statement was made outside the context of sexual
abuse. There was also at least some corroborating evidence in
Adam's lack of bowel and urinary control, as described above.
To be sure, to the extent that this is evidence of sexual abuse,
it could be evidence of sexual abuse by someone else -- there
was a supported allegation of sexual abuse in 2010 by an unknown
perpetrator, see note 3, supra -- but this does not drain the
evidence of all corroborative value.
As the stepfather asserts, Adam recanted the allegations,
but, as quoted above, the hearing officer found that "the
Appellants, notably mother, directly influenced [Adam] to recant
the allegations, which occurred while the child was inpatient at
a hospital for psychiatric reasons in March 2019. [Adam] has
recanted the allegations of sexual abuse twice after having
direct contact with his mother. Therefore, the Appellants'
arguments were not persuasive." The stepfather argues that this
finding of fact is clearly erroneous, stating, "Mother had a
phone call with child on the day he recanted, however, there is
17
no evidence in the record to suggest that mother influenced or
coerced child to recant." It was, however, a reasonable
inference for the hearing officer to draw and this finding of
fact is not clearly erroneous.
The stepfather argues that the reports by Adam also were
inconsistent and, for that reason as well, lack indicia of
reliability. Prior to recantation, in 2019, Adam, then thirteen
years old, sometimes said he had been six years old and
sometimes said he had been eight years old when the abuse
occurred. But this is not a very serious inconsistency. See
Commonwealth v. Melchionno, 29 Mass. App. Ct. 939, 939 (1990)
("As typically occurs in child abuse cases, the testimony of the
child witnesses was often inconsistent and contradictory").
There were other inconsistencies -- like whether the stepfather
was intoxicated, whether other individuals were involved, and
whether the stepfather attempted to rape Adam another time --
but given the hearing officer's finding that the recantations
were not credible, these inconsistencies did not render the
hearsay so unreliable that it could not be relied upon. At
least where, as here, Adam's hearsay evidence was found credible
on the basis of its detail, the presence of corroborating
evidence and the hearing officer's assessment of the live
testimony of the stepfather and Adam's mother, "[u]nder the
substantial evidence test, a reviewing court is not empowered
18
. . . to make different credibility choices . . . ." Retirement
Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass.
App. Ct. 478, 480 (1992), quoting Pyramid Co., 403 Mass. at 130.
Cf. Brockton v. Energy Facilities Siting Board (No. 1), 469
Mass. 196, 213 (2014) (board "has broad discretion to weigh and
assess the credibility of evidence, including hearsay
evidence").
ii. The stepfather next argues that DCF failed to comply
with its procedural policies, which substantially prejudiced
him. The stepfather raises several arguments, which he failed
to raise in the fair hearing or the Superior Court, regarding
DCF's handling of the February 51A report, including that DCF
failed to interview Adam and the stepfather a second time about
the February report. Because the stepfather failed to raise
these arguments before the administrative agency, we treat these
claims as waived. See Lincoln Pharmacy of Milford, Inc. v.
Commissioner of the Div. of Unemployment Assistance, 74 Mass.
App. Ct. 428, 436 (2009).6
The stepfather also argues that it was arbitrary and
6
capricious for the hearing officer to "overturn[] the physical
abuse decision," but affirm the sexual abuse decision. The
stepfather suggests that the hearing officer's decision was
"incongruous[]" because both the physical abuse allegations and
the sexual abuse allegations "lack[ed] witnesses and
corroborating evidence." This claim fails because the hearing
examiner provided a reasonable explanation, see Carver v.
Commissioner of Correction, 491 Mass. 608, 619 (2023), for the
treatment of the two issues, relying on Adam's bowel issues as
19
iii. Finally, the stepfather argues that his name should
not have been placed on the registry of alleged perpetrators
(registry) of the DCF central registry. See 110 Code Mass.
Regs. § 4.37 (2009). A name of an alleged perpetrator can be
placed on the registry when an allegation against him is
supported, the allegation is referred to the district attorney,
110 Code Mass. Regs. § 4.37, "and the identification of the
perpetrator is sufficiently clear that it meets the 'substantial
evidence' test as to the identification itself," Covell, 439
Mass. at 780.
There appears to be no record evidence that the
stepfather's name has been placed on the registry. Assuming his
name was in fact placed there, this is not an appeal from that
placement, and neither the fact of such placement nor its
propriety was raised below at the fair hearing, in the complaint
for judicial review, or in the memorandum in support of his
motion for judgment on the pleadings. Cf. Covell, 439 Mass. at
767 (reviewing for substantial evidence determination that
allegation was supported made in context of administrative
appeal challenging placement on registry). We therefore decline
corroborating evidence of the sexual abuse allegations and
recognizing that it was "notable that [Adam] was able to
remember details of who was in the home and was not and under
which circumstances he was sexually abused such as the house
they lived in and the school he attended at the time the abuse
took place."
20
to address it. We do note that under a DCF regulation an
alleged perpetrator's name placed in the registry will remain on
that list for seventy-five years. See 110 Code Mass. Regs.
§ 4.37. And, although "confidential," G. L. c. 119, § 51F,
access to the registry information is not utterly restricted; it
can be made available to anyone at the discretion of the
Commissioner of DCF. See 110 Code Mass. Regs. § 4.38(4) (2009).
Because of the liberty interests involved, placement on the
registry may, therefore, be a matter of more than ordinary
concern. Nonetheless, even were the stepfather's placement on
the registry properly before us, he has raised no objection to
the regulation providing for such placement, or to the low
burden of proof and standard of review previously applied in
cases involving such placement. We therefore express no opinion
on those questions.
Conclusion. We conclude that the hearing officer's
determination that DCF had reasonable cause to believe that the
stepfather sexually abused Adam was supported by substantial
evidence.7 The judgment is affirmed.
7 The stepfather argues that a motion he filed in Superior
Court for leave to present additional evidence was improperly
denied. See G. L. c. 30A, § 14 (6) (statute) ("If application
is made to the court for leave to present additional evidence,
and it is shown to the satisfaction of the court that the
additional evidence is material to the issues in the case, and
that there was good reason for failure to present it in the
proceeding before the agency, the court may order that the
21
So ordered.
additional evidence be taken before the agency upon such
conditions as the court deems proper. The agency may modify its
findings and decision by reason of such additional evidence and
shall file with the reviewing court, to become part of the
record, the additional evidence, together with any modified or
new findings or decision"). As described by DCF in its brief,
the stepfather sought to introduce the administrative record
associated with a fair hearing decision stemming from two 51A
reports that were filed "a year after the [reports filed in] the
present case and involved a separate sibling with separate and
distinct allegations and factual circumstances." DCF reviewed
the evidence that the stepfather wished to introduce and opposed
the motion, arguing that such evidence was not material to the
issues in the case, as required by the statute. The Superior
Court judge denied the motion "for the reasons stated in the
Opposition." On appeal, the stepfather suggests that because
DCF reviewed the evidence, DCF "assented to the first prong of
the statute . . . bypass[ing] the court's discretion," and thus
the additional evidence should have "become part of the record
on review." But in responding to a motion to present additional
evidence, an agency would need to review the proffered evidence
to determine whether it should oppose the motion, on the basis,
for example, that it was immaterial. The stepfather's reading
of the statute -- that through such review an agency "waive[s]
its opportunity to oppose the additional evidence" -- would
prevent an agency from mounting even a meritorious opposition to
a motion for leave to present additional evidence. This outcome
would defeat the statute. The stepfather goes on to argue that
even if the additional evidence "ha[d] no bearing on the instant
case," there would be "no reason to oppose the inclusion of the
[additional evidence]." But, again, this misreads the statute,
which requires that the stepfather show "that the additional
evidence is material to the issues in the case." G. L. c. 30A,
§ 14 (6). We conclude that the denial of the stepfather's
motion for leave to present additional evidence was not an abuse
of discretion.
ENGLANDER, J. (concurring). As the majority states, this
is an appeal from a decision by the Department of Children and
Families (DCF or department) to "support" a report of abuse of a
child, under 110 Code Mass. Regs. § 10.06(11) (2014), not an
appeal by "[a]n individual who is listed on the Department's
Registry of Alleged Perpetrators" (registry), as set forth in
110 Code Mass. Regs. § 10.06(12) (2014). The distinction is
important in my view. In the former appeal the question is
whether there was sufficient evidence for the department to
commence providing appropriate services to the child and the
child's caretakers. See 110 Code Mass. Regs. § 4.32 (2), (5)
(2009). See also Adoption of Luc, 484 Mass. 139, 141 (2020).
The bar for such a decision is, and should be, quite low. The
due process clause may be implicated, but the imposition on
liberty interests from the commencement of government services
will generally be modest (although not necessarily
insubstantial), and thus there need be few if any limitations on
the types of evidence that can be considered in such a
proceeding. I concur with the majority that, as an appeal under
110 Code Mass. Regs. § 10.06(11), the decision of the hearing
officer can be affirmed.
I write separately, however, because although it is true
that on the record before us we do not know that the
stepfather's name has been listed on the registry, I believe we
2
can fairly assume that it has.1 And if the stepfather is listed
on the registry, on this record he should not be. As this court
has recognized previously, listing on the registry is an outcome
"of more than ordinary gravity in that it places a permanent
mark on a person." Edward E. v. Department of Social Servs., 42
Mass. App. Ct. 478, 487 (1997). Such a listing materially
infringes on that person's liberty interests, and due process
accordingly requires that "certain protections" be afforded.
Commonwealth v. Durling, 407 Mass. 108, 112 (1990). One such
protection is that the Commonwealth not rest its listing
decision on unreliable hearsay evidence. See Edward E., supra
at 484-487. In my view the hearsay evidence relied upon by the
hearing officer here was not sufficiently reliable to justify a
1 In the ordinary case, the circumstances here would result
in the stepfather's name being listed on the registry. The
hearing officer found the allegations of sexual abuse supported,
with a specific finding of the stepfather as the alleged
perpetrator. It appears that DCF referred the allegations to
the district attorney. In those circumstances, 110 Code Mass.
Regs. § 4.37 (2009) states that the alleged perpetrator "shall"
be added to the registry, where his name presumptively would
remain for seventy-five years.
Here, however, the registry was not mentioned in the
decision of the hearing officer, in the stepfather's G. L.
c. 30A complaint, or in the stepfather's cross motion for
judgment on the pleadings. As the issue of the propriety of the
stepfather's registry listing (assuming he was listed) was not
presented to the Superior Court, I cannot fault the majority for
viewing this as an appeal challenging only the sufficiency of
evidence to "support" the allegations. See Covell v. Department
of Social Servs., 439 Mass. 766, 778-781 (2003) (describing and
addressing distinction between the two types of appeals).
3
material imposition on liberty such as listing in the registry.
Cf. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender
Registry Bd., 428 Mass. 90, 100 (1998) ("Sex offenders have a
constitutionally protected liberty and privacy interest in
avoiding registration and public dissemination of registration
information").
Because Adam did not testify at the hearing, the hearing
officer based the conclusion of abuse on hearsay statements
related by the DCF investigator and contained in the G. L.
c. 119, § 51A and § 51B, reports and other documentary evidence.
The question whether such hearsay is sufficiently reliable for
due process purposes has been addressed by our courts in a
variety of genres, including proceedings before the Sex Offender
Registry Board and probation revocation hearings. See Durling,
407 Mass. at 118-122; Doe, Sex Offender Registry Bd. No. 523391
v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89-90 (2019)
(Doe No. 523391). These cases tell us to look for certain
"indicia" of reliability, which include, among other things,
whether the statements are consistent; whether they are
otherwise corroborated; "the absence of any motive or reason for
[the declarant] to make false allegations," Covell, 439 Mass. at
786-787; and "whether the statements were made under
circumstances that support their veracity," Commonwealth v.
Hartfield, 474 Mass. 474, 484 (2016) (in context of probation
4
revocation). "[O]ther inconsistent statements by [the]
declarant may or may not detract from the reliability of the
hearsay, depending on the circumstances of those statements."
Doe No. 523391, supra at 90.
It is very difficult to square the record in this case with
previous case law as to indicia of reliability. Adam's
statements, made on a number of occasions over many years,
cannot, in my view, reasonably be described as "consistent."
While it is true that Adam accused the stepfather of oral rape
several times over the years, Adam was not consistent about if,
when, or how many times the abuse took place. In 2010, Adam
claimed he was sexually abused by the stepfather, but then
recanted. Then, in January 2019 (at age thirteen), Adam claimed
that the stepfather had raped him twice when he was eight years
old, but changed this initial disclosure during the interview
process, claiming that the abuse occurred once when he was about
six.2 One month later, in February of 2019, Adam once again
changed the narrative, this time claiming that the stepfather
had abused him only two months before, in December of 2018, even
though Adam had not mentioned any December 2018 abuse when he
While it is true, as the majority emphasizes, that Adam
2
supplied detail regarding this earlier assault during an
interview in February of 2019, I note that Adam had supplied
none of this detail in his original disclosure made only one
month before, in January of 2019. On this hearsay record, the
belated provision of detail was itself an inconsistency.
5
spoke up in January of 2019. And the following month, in March
of 2019, Adam recanted his allegations altogether, stating that
he "lied about being sexually abused by his stepfather," and
that "he felt pressured to make this accusation in response to
behavioral problems and wanting to avoid responsibility."
I am mindful that child and even adult victims of sexual
abuse may, for a variety of reasons, lack perfect consistency in
their reporting, or even recant and thus contradict their
allegations. Where the victim's allegations are thereafter
presented through hearsay to an adjudicatory body, however, such
material inconsistencies must be confronted for purposes of
evaluating reliability. On the particular facts here, the
material inconsistencies and contradictions indicate that the
hearsay evidence lacked the "character of substantiality."
Edward E., 42 Mass. App. Ct. at 487 (statements "persistently
encumbered by unreliability" do not qualify as substantial
evidence). Contrast Covell, 439 Mass. at 783 (noting victim's
allegations were "specific, detailed, and consistent").
I have concerns as well about whether Adam's allegations
were corroborated in any significant way (or at all), and about
the hearing officer's treatment of certain of the hearsay
evidence presented. For example, the hearing officer's reliance
on the reported hearsay statements from Adam's guidance
counselor was, in my view, improper. Those statements were
6
murky at best, and cannot reasonably be understood as an
endorsement of Adam's reliability as a historian. But I need
not belabor the point. As the majority points out, this appeal
presents only the issue of the sufficiency of the evidence for
the department to initiate providing services to an alleged
victim of sexual abuse. The standard for whether the department
may do so is indeed a very low bar -- a lower bar, in my view,
than what is required to place an individual on the registry of
alleged perpetrators, although the case law has not yet drawn
such a distinction.3 I have no quarrel with the conclusion that
the very low standard was met here, despite my concerns over the
reliability of the hearsay presented, because the liberty
interest at stake is less substantial. See Doe, Sex Offender
Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass.
297, 309 (2015) ("deprivation of more extensive private
interests requires greater procedural protections"). See also
Durling, 407 Mass. at 113. For those reasons, I concur.
3 As the majority states, the case law sets the standard as
requiring substantial evidence that there was "reasonable cause
to believe" that the alleged abuse had occurred. Lindsay v.
Department of Social Servs., 439 Mass. 789, 793 (2003), quoting
G. L. c. 119, § 51A. That standard has been applied to both
types of appeals identified in 110 Code Mass. Regs. § 10.06(11)
and (12). I note, however, that the application of the standard
could differ, since the evidence that can be permissibly relied
upon in the two types of appeals may differ -- that is, due
process prevents the use of unreliable hearsay evidence in
decisions to place an individual on the registry list.