Frank v. Dept. of Children & Families

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NICHOLAS FRANK v. DEPARTMENT
OF CHILDREN AND FAMILIES
(SC 18980)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued December 2, 2013—officially released July 8, 2014
Gregory T. D’Auria, solicitor general, with whom
were John E. Tucker, assistant attorney general, and,
on the brief, George Jepsen, attorney general, and Ben-
jamin Zivyon, assistant attorney general, for the appel-
lant (defendant).
John R. Williams, for the appellee (plaintiff).
Opinion
EVELEIGH, J. The defendant in this administrative
appeal, the Department of Children and Families
(department), substantiated allegations of emotional
abuse by the plaintiff, Nicholas Frank, an elementary
school teacher, against one of his students, K,1 and
placed the plaintiff’s name on the department’s central
registry of child abuse and neglect (central registry).2
The department appeals, upon our grant of certification,
from the judgment of the Appellate Court, reversing the
trial court’s judgment dismissing the plaintiff’s appeal
from the department’s decision and remanding the case
to the trial court with direction to sustain the plaintiff’s
appeal. See Frank v. Dept. of Children & Families,
134 Conn. App. 288, 315–16, 37 A.3d 834 (2012). The
department contends on appeal that the Appellate Court
improperly: (1) failed to give proper deference to the
factual findings and legal conclusions of the administra-
tive hearing officer; and (2) concluded that, as applied to
the facts of the present case, the definition of ‘‘abused’’
found in General Statutes (Rev. to 2011) § 46b-120 (3)3
is not unconstitutionally vague. We now reverse the
judgment of the Appellate Court and remand the case
to that court, with direction to affirm the trial court’s
judgment dismissing the plaintiff’s appeal from the
department’s decision.
The department hearing officer found the following
facts, which are not contested on appeal. During the
fall of 2008, the plaintiff taught fifth and sixth grade at
an elementary school in the New Haven Public School
District (school district). K, a student in the plaintiff’s
sixth grade class, reported to his mother that the plain-
tiff was calling him names and pinching his cheeks.
Specifically, K reported that the plaintiff had called K
names such as ‘‘birthing mother,’’ ‘‘cheeks’’ and a ‘‘fish
out of water’’ and other students reported that the plain-
tiff called K ‘‘pregnant.’’ K found the cheek pinching to
be very painful because he had recently had metal bars
implanted in his mouth. K also believed that the plaintiff
used the cheek pinching to punish him. For example,
the plaintiff would limit K to ten questions per day, and
if K exceeded this limit, the plaintiff would ask K to
choose between having his cheeks pinched and skip-
ping lunch as a punishment.
In December, 2008, K’s mother initially met with the
principal of the school, Laura Russo,4 and complained
about the plaintiff’s behavior. K and his mother reported
that the name-calling and pinching was very upsetting
to K, and that as a result K became afraid of going to
school, his schoolwork suffered, he had trouble sleep-
ing and suffered from bedwetting due to anxiety. Russo
advised the plaintiff to have less contact with K and to
cease this behavior. Ultimately, Russo ordered Andrea
Lobo-Wadley, the school district’s personnel director,
to conduct an internal investigation of the accusations
by K and his mother against the plaintiff.5 Lobo-Wadley’s
investigation included interviews with other students,
which confirmed that the plaintiff had called K and
other students names that could be hurtful and embar-
rassing. Lobo-Wadley’s investigation also revealed that
the plaintiff had previously received verbal warnings
about his interactions with students, and had received
a written warning in November, 2008, for calling another
child a liar when the child complained that the plaintiff
had called the child fat during a ‘‘boot camp’’ exercise.6
As a result of Lobo-Wadley’s investigation, the plaintiff
was suspended for eight days without pay.7
The administrative record reveals that, following a
meeting on May 19, 2009, Russo made a referral to the
department and K’s mother also independently made
two referrals to the department. Each of these referrals
was denied.8 See footnote 5 of this opinion. Shortly after
the plaintiff began serving his suspension, an article
appeared in the New Haven Register reporting on the
situation between K’s mother, the plaintiff, and the
school system. Another referral was made by K’s
mother at this time, which the department accepted.
The department dispatched an investigator, Brooke
Morris, to determine whether the plaintiff had abused
K and whether it would be appropriate to place the
plaintiff’s name on the central registry. Morris’ investi-
gation resulted in factual findings similar to those made
by Lobo-Wadley. On the basis of her investigation, Mor-
ris determined that the plaintiff had emotionally abused
K, and substantiated the referral. Morris also recom-
mended that the plaintiff’s name be placed on the cen-
tral registry.
The opinion of the Appellate Court provides the fol-
lowing relevant procedural history. ‘‘The [department]
held an administrative hearing in [its] New Haven area
office on December 21, 2009, and March 15, 2010, to
determine whether to uphold the investigator’s substan-
tiation. The hearing officer heard testimony from Mor-
ris, Russo and the plaintiff and admitted the
[department’s investigation], the newspaper article and
the plaintiff’s personnel record into evidence. On April
30, 2010, the hearing officer rendered her final decision,
upholding the substantiation against the plaintiff and
ordering the placement of his name on the . . . central
registry . . . .
‘‘The plaintiff timely appealed from the hearing offi-
cer’s determination to the trial court, which heard argu-
ment on November 10, 2010. In a memorandum of
decision filed November 22, 2010, the court affirmed
the decision of the hearing officer, finding that there
was substantial evidence to support the hearing offi-
cer’s decision and rejecting the plaintiff’s void for
vagueness challenge.’’ Frank v. Dept. of Children &
Families, supra, 134 Conn. App. 300.
The plaintiff next appealed to the Appellate Court,
claiming that: (1) the trial court should not have upheld
the hearing officer’s substantiation of child abuse and
placement of his name on the central registry because
those decisions were not supported by substantial evi-
dence; and (2) § 46b-120 (3), as interpreted by the
department, is unconstitutionally vague as applied to
the plaintiff’s conduct in this matter. Id., 292. The Appel-
late Court considered ‘‘the substantial evidence claim
. . . to be inextricably intertwined with [the] claim that
§ 46b-120 (3) is void for vagueness as applied to [the
plaintiff’s] conduct’’ and, thus, addressed the former
issue only as part of the vagueness issue. Id., 300–301
n.13. Perhaps because it considered the underlying evi-
dentiary issue to be subsumed within the constitutional
issue, the Appellate Court adopted a statement of facts
in the case based on its own independent review of the
record instead of limiting itself to the express findings
of the hearing officer. Id., 293–300. Ultimately, the court
concluded that the statutory term of abuse was void
for vagueness as applied to the emotional abuse sub-
stantiation against the plaintiff. Id., 315. As a result, the
Appellate Court reversed the judgment of the trial court
and directed the trial court to render judgment sus-
taining the plaintiff’s appeal from the administrative
decision, and to order the department to remove the
plaintiff’s name from the central registry. Id., 315–16.
This certified appeal followed.9 Additional facts and
procedural history will be set forth as necessary.
I
We first address the issue of whether the Appellate
Court failed to properly credit the findings of the admin-
istrative hearing officer. The department argues on
appeal that the Appellate Court substituted its own
judgment for that of the trier of fact in this case, in
disregard of well established principles of administra-
tive law regarding the appropriate level of deference
afforded to the findings of a hearing officer at an admin-
istrative hearing and the conclusions he or she draws
from them. The department claims that, although the
hearing officer’s findings and conclusions were substan-
tially supported by the evidence in the record, the
Appellate Court ‘‘simply chose to credit the plaintiff’s
story’’ instead of the findings and conclusions of the
hearing officer. The plaintiff, in response, argues that
the Appellate Court implicitly credited specific factual
findings made by the hearing officer in support of the
department’s substantiation of emotional abuse, which
were found by the trial court to have been supported
by substantial evidence in the record, but nonetheless
determined that the statutory definition of abuse was
too vague to put the plaintiff on notice that such facts
could expose him to having his name placed on the
central registry. The plaintiff does not challenge the
sufficiency of the evidence to support these enumerated
findings but, instead, contends that the hearing officer’s
ten enumerated factual findings were insufficient to
substantiate her ultimate finding of emotional abuse
that effectively resulted in a sanction that caused a
‘‘tenured school teacher’’ to be considered ‘‘a child
abuser who should be barred from the profession
. . . .’’ The plaintiff relies on our decisions Dolgner v.
Alander, 237 Conn. 272, 676 A.2d 865 (1996), and Gupta
v. New Britain General Hospital, 239 Conn. 574, 687
A.2d 111 (1996), in support of this premise. We conclude
that the Appellate Court did not implicitly credit the
hearing officer’s findings and, further, we conclude that,
under the established standard to review an administra-
tive decision, the record supports the trial court’s con-
clusion that the department’s decision was supported
by substantial evidence. Therefore, we conclude that
the Appellate Court improperly substituted its own find-
ings for those of the department.
We begin with the standard of review. ‘‘[J]udicial
review of the commissioner’s action is governed by
the [Uniform Administrative Procedure Act, General
Statutes § 4-166 et seq. (UAPA)] . . . and the scope
of that review is very restricted. . . . [R]eview of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the UAPA.
[See] General Statutes § 4-183 (j) (5) and (6). An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . . It is fundamental
that a plaintiff has the burden of proving that the com-
missioner, on the facts before him, acted contrary to
law and in abuse of his discretion . . . . The law is
also well established that if the decision of the commis-
sioner is reasonably supported by the evidence it must
be sustained.’’ (Citations omitted; internal quotation
marks omitted.) Goldstar Medical Services, Inc. v. Dept.
of Social Services, 288 Conn. 790, 833–34, 955 A.2d
15 (2008).
In the present case, substantial evidence in the admin-
istrative record supported the findings and conclusions
of the hearing officer, most notably the information
contained in exhibit 7, the internal investigation con-
ducted by Lobo-Wadley of the school district, and
exhibit 4, the investigation conducted by the depart-
ment’s investigator, Morris. Specifically, in her decision
following the administrative hearing, the hearing officer
in this case made ten distinct factual findings, which
were as follows:
‘‘1. The [plaintiff] was a teacher at [the school] during
the 2008–2009 school year, teaching fifth and sixth
graders.
‘‘2. Twelve year old [K] was a student at [the school]
and had the [plaintiff] as a teacher.
‘‘3. [K] reported that during the 2008–2009 school
year, the [plaintiff] would call him names, including:
‘cheeks,’ because he has big cheeks and they are even
more pronounced since he had metal bars put in his
mouth to assist in straightening his teeth; ‘birthing
mother’ as he is overweight; and ‘fish out of water’
because of the way he looked when trying to get his
binder out from under his desk. [K] reported that he
found the names offensive and embarrassing. He was
sad and very hurt that the [plaintiff] called him names.
‘‘4. [K] reported that the [plaintiff] would pinch his
cheeks and this physically hurt due to the metal bars
in his mouth. He reported he was afraid in class as he
was afraid of what the [plaintiff] was going to say or
do next to make fun of him. He reported [that] the
[plaintiff] limited him to ten questions a day and if he
exceeded the limit, he would either get lunch detention
or the [plaintiff] would pinch his cheeks; [K] could
choose the punishment.
‘‘5. [K] reported he had good grades until he started
feeling afraid in class. His grades then went from A’s
to C’s. He reported he is upset and cannot concentrate.
He has trouble sleeping and his mother reported he had
started bedwetting right before he disclosed to her what
was occurring in the classroom. [K] stated he had prob-
lems sleeping because he was always thinking about
what was happening in the classroom.
‘‘6. [K]’s mother had a meeting with school adminis-
trators in December, 2008, and relayed her concerns
regarding the [plaintiff’s] treatment of [K]. In addition
to her concerns regarding the [plaintiff], [K’s] mother
also reported that [K] had been sexually abused by a
family member and is very sensitive to the [plain-
tiff’s] comments.
‘‘7. The [plaintiff] was advised by [Russo] to have less
contact with [K], stop calling him names and to stop
pinching his cheeks.
‘‘8. Other students in the class confirmed that the
[plaintiff] called [K] names and that the [plaintiff] also
called other students names. The students reported they
believed the [plaintiff] was joking, but that sometimes
he went too far and hurt students’ feelings and embar-
rassed them. Other students reported the [plaintiff] said
[K] was pregnant due to his weight.
‘‘9. Following an investigation by the New Haven
Board of Education, the [plaintiff] was suspended for
eight days without pay, due in part to his actions and
statements toward [K].
‘‘10. According to [e]xhibit 7, the [plaintiff’s]
[e]mployment [r]ecord, the [plaintiff] had received prior
verbal warnings regarding his comments to students.
He received at least one written warning in November,
2008, for calling another child a liar when the child
complained that the [plaintiff] had called him fat during
a boot camp exercise. An investigation of the incident
found that the [plaintiff] had called the child a turtle,
not fat.’’
In addition to these enumerated findings, the hearing
officer also made numerous additional factual findings,
as well as several legal conclusions, when applying the
relevant law, regulations, and policies to the situation
at hand. The hearing officer, relying on the guidance
provided by a department manual; see Dept. of Children
and Families, Policy Manual § 34-2-7 (policy manual);
concluded that the department had demonstrated by a
fair preponderance of the evidence that the plaintiff had
emotionally abused K. In making this determination, the
hearing officer found, for example, that at least some
of the plaintiff’s behavior was directed at K due to K’s
weight. In addition, the hearing officer determined that,
as a result of the plaintiff’s behavior, other students in
the class also began pinching K’s cheeks until the plain-
tiff stated that this behavior was inappropriate. The
hearing officer expressly found the plaintiff not to be
credible insofar as he claimed that: (1) the emotional
distress exhibited by K through his sleeping issues, bed-
wetting, fear of school, and falling grades were not
the result of the plaintiff’s conduct, but instead due to
sexual trauma previously inflicted on K by a third party;
and (2) K and his mother were complaining of the plain-
tiff’s conduct because of K’s bad grades. Instead, the
hearing officer noted that ‘‘[t]he record supports [that]
a number of students confirmed that the [plaintiff] had
a tendency to call students, including [K], derogatory
names and that he often pinched [K’s] cheeks. The
record also supports a finding that [K’s] mother main-
tained a close relationship with the school and tried
to address problems as they arose. . . . [K’s] mother
approached school officials several times to address
the [plaintiff’s] statements and actions [toward K]. Her
concern did not materialize after the poor grade was
received, but did intensify after that as [K] continued
to show signs of distress. The [plaintiff’s] name-calling
and cheek pinching resulted in [K] being fearful in class
and having difficulty sleeping.’’
Having concluded that the plaintiff emotionally
abused K, the hearing officer then determined that,
pursuant to § 34-2-8 of the policy manual, the depart-
ment was warranted in placing the plaintiff’s name on
the central registry. Regarding the issue of intent, the
hearing officer noted that the department ‘‘examines
whether there is reason to believe the perpetrator had
sufficient knowledge and resources, the ability to utilize
them and an understanding of the implications for fail-
ing to provide appropriate care, but made a conscious
decision not to do so.’’ The hearing officer found that
‘‘[t]he record . . . supports a finding that the [plaintiff]
had previously been advised by school administrators
that it was inappropriate to call students names. The
[plaintiff] had received verbal warnings and at least
one written warning. In addition, as a teacher and an
individual educated regarding child development
issues, the [plaintiff] should have the knowledge and
resources to understand the implications of failing to
provide appropriate care to children. . . . The [plain-
tiff] should have been aware of the implication of his
statements on students in his care. The record supports
a finding that the [plaintiff] made a conscious decision
to not provide appropriate care.’’ (Footnote omitted.)
The hearing officer also concluded that the record sup-
ported a conclusion that the plaintiff’s actions had had
a serious adverse impact on K, and that the plaintiff’s
behavior reflected a pattern or chronic nature of abuse,
noting that ‘‘[t]he [plaintiff] called [K] names so often
that the other students also started calling him the same
or similar names.’’
In its decision dismissing the plaintiff’s appeal, the
trial court concluded that the administrative hearing
officer’s findings, and conclusions drawn therefrom,
were supported by substantial evidence in the adminis-
trative record. The trial court concluded: ‘‘Exhibit 4,
[the department’s investigation conducted by Morris]
supports the hearing officer’s findings that the plaintiff
called [K] embarrassing names and that other students
heard these names. [Exhibit 7, the internal investigation
conducted by Lobo-Wadley] contains a reprimand
issued by the school district to the plaintiff for his
treatment of [K], as well as an admission by the plaintiff
that he makes such comments to keep the atmosphere
in the classroom light and entertaining.’’ The trial court
continued: ‘‘The court also does not accept the policy
argument made by the plaintiff that the placement of
his name on the [central] registry list would wrongly
interfere with teaching methods chosen to be employed
by classroom teachers. The court defers to the conclu-
sion of the hearing officer who noted that teachers
[throughout] the school districts are on notice that pok-
ing fun at students is inappropriate behavior.’’
When one reads the opinion of the Appellate Court,
it is immediately apparent that the panel omitted critical
findings and conclusions of the hearing officer. For
example, the Appellate Court acknowledged some of
the less egregious name calling but did not acknowledge
that K accused the plaintiff of calling him names such
as ‘‘birthing mother’’ or that other students in the class
reported that the plaintiff called K ‘‘pregnant.’’10 Simi-
larly, the Appellate Court omitted the fact that the hear-
ing officer concluded that the plaintiff called K by these
names in reference to the child’s weight. The Appellate
Court also quoted selectively from the hearing officer’s
decision. For example, the Appellate Court acknowl-
edged that ‘‘[t]he hearing officer’s findings show that
the plaintiff intended his nicknames and horseplay to be
taken in a joking manner, and that is how K’s classmates
interpreted the plaintiff’s actions, although the hearing
officer noted that some students reported that ‘some-
times [the plaintiff] went too far and hurt students’
feelings and embarrassed them.’ ’’ Frank v. Dept. of
Children & Families, supra, 134 Conn. App. 310. The
Appellate Court omitted the next sentence in that same
factual finding by the hearing officer: ‘‘Other students
reported the [plaintiff] said [K] was pregnant due to his
weight.’’ Finally, the Appellate Court opinion not only
failed to acknowledge that the hearing officer did not
find the plaintiff’s explanation for the allegations to be
credible, it credited evidence that the hearing officer
had rejected in connection with this credibility assess-
ment. For example, the Appellate Court opinion notes
that ‘‘[i]t was not until the plaintiff informed K’s mother
that K’s grade in his class had been lowered because
of K’s failure to turn in his assignments that K’s mother
complained further about the plaintiff.’’ Frank v. Dept.
of Children & Families, supra, 310 n.17. The hearing
officer expressly rejected this understanding of the
motive behind the complaints of K’s mother. In light of
these omissions and inconsistencies with the adminis-
trative record, there is simply nothing to substantiate
the plaintiff’s claim that the Appellate Court implicitly
credited the hearing officer’s conclusions. The Appel-
late Court, therefore, manifestly failed to apply the
proper standard of review. Accordingly, we now engage
in the proper inquiry.
We now examine whether the factual findings of the
hearing officer, and legal conclusions drawn therefrom,
are supported by substantial evidence in the administra-
tive record. The separate and independent investiga-
tions conducted by Morris and Lobo-Wadley reveal that
K and other students in the class told adults that the
plaintiff called K names such as ‘‘birthing mother’’ and
told them that K was ‘‘pregnant.’’ K and other students
in the class considered these remarks to be derogatory
references to K’s weight. With regard to the plaintiff’s
pinching of K’s cheeks, K reported that he had metal
bars installed in his mouth and that ‘‘the inside of his
cheeks would bleed after [the plaintiff] would pinch
them as the bars were so close to the inside of his
mouth.’’ The plaintiff engaged in this conduct with such
frequency that it prompted some of K’s classmates to
also pinch K’s cheeks. K’s mother stated that the school
was aware of the metal bars as she had notified the
school of the procedure. On another occasion, K
attempted to resist the plaintiff’s attempt to pinch his
cheeks and the plaintiff stepped on K’s foot to prevent
him from getting away, tackled him to the ground,
placed a foot on his back, and then proceeded to pinch
K’s cheeks. K also reported that, unlike other students
in the class, the plaintiff limited K to ten questions in
class per day, and if K exceeded this limit ‘‘[K] would
have lunch detention or [the plaintiff] would pinch [K’s]
cheeks’’ and that the plaintiff ‘‘would allow [K] to pick
which punishment he wanted.’’ Other students in the
class observed that K had a visible reaction to the plain-
tiff’s behavior, noting that ‘‘[K] would look sad, like he
was going to cry, but he would try to laugh with every-
one else.’’ K and his mother reported that the plaintiff’s
behavior had affected K’s sleeping patterns, his grades,
and it also resulted in K exhibiting bedwetting behavior.
The department and internal school investigations
of the plaintiff also demonstrated that the plaintiff’s
questionable behavior toward his students was not lim-
ited to the aforementioned conduct. Both investigations
revealed that, for a time, the plaintiff created an activity
called ‘‘The Mr. Frank Show,’’ which one of the investi-
gations describes as ‘‘like Jerry Springer with a micro-
phone’’ in which ‘‘[k]ids get to talk about other kids on
the microphone.’’ Russo stopped this activity when she
became aware of it. In addition, the plaintiff was disci-
plined in 2008 for an incident that occurred between
him and another student. In that situation, the student
reported to the school principal that the plaintiff and
another teacher had called the student fat during a
‘‘ ‘Boot Camp’ ’’ drill. The plaintiff, who was present at
the meeting with the school principal, ‘‘yell[ed] at [the
student], point[ed] in his face and called him a liar.’’
Another adult ‘‘pulled [the plaintiff] away from [the
student].’’ Russo noted that the student later admitted
that the plaintiff never used the word ‘‘fat’’ but had
made him feel uncomfortable about his weight during
the drill. Russo concluded, however, that ‘‘[t]he behav-
ior displayed by [the plaintiff] was intimidating to the
student and unnecessary. . . . I am going to make an
[e]mployee [a]ssistance [p]rogram referral. [The plain-
tiff] has agreed to comply with my recommendation.’’
As discussed previously in this opinion, the hearing
officer stated that she did not find the plaintiff’s testi-
mony regarding K’s motivation for reporting the plain-
tiff’s conduct to be credible and also concluded that
the plaintiff had acted intentionally. For purposes of
this issue, it is not appropriate to find that there is
insufficient evidence in support of administrative find-
ings simply because, as the Appellate Court noted in
its opinion, ‘‘there is more than one possible explana-
tion for K’s state of mind during the relevant time
period.’’ Frank v. Dept. of Children & Families, supra,
134 Conn. App. 311. Nor is it sufficient to argue, as
the plaintiff does, that a conflict exists between the
conclusion of the hearing officer and the conclusion of
the school district after it conducted its own internal
investigation that a brief suspension of the plaintiff was
the appropriate sanction. ‘‘In determining whether an
administrative finding is supported by substantial evi-
dence, the reviewing court must defer to the agency’s
assessment of the credibility of witnesses. . . . The
reviewing court must take into account contradictory
evidence in the record . . . but the possibility of draw-
ing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding
from being supported by substantial evidence . . . .’’
(Internal quotation marks omitted.) Moraski v. Con-
necticut Board of Examiners of Embalmers & Funeral
Directors, 291 Conn. 242, 266–67, 967 A.2d 1199 (2009).
Rather, the findings and conclusions of the hearing offi-
cer in the present case were supported by substantial
evidence in the record, most notably the investigations
set forth in exhibits 4 and 7. These investigations both
contained descriptions of the plaintiff’s past discipline
and accounts by students regarding the plaintiff’s
behavior toward K and K’s subsequent reaction to it.
These reports not only supported the findings made
by the hearing officer regarding the name-calling and
physical conduct that the plaintiff inflicted on K, but
also that K had experienced an adverse impact as a
result of this behavior, which was evident to some of
K’s classmates. Although the record contained evidence
that supported the plaintiff’s position, primarily in the
form of the plaintiff’s own testimony, ‘‘[i]t is well estab-
lished that it is the exclusive province of the trier of
fact to make determinations of credibility, crediting
some, all, or none of a given witness’ testimony. . . .
Additionally, [a]n administrative agency is not required
to believe any witness, even an expert. . . . Nor is an
agency required to use in any particular fashion any of
the materials presented to it as long as the conduct of
the hearing is fundamentally fair. . . . Questions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . We must defer to the trier of fact’s assessment of
the credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude.’’ (Citations omitted; internal quotation
marks omitted.) Goldstar Medical Services, Inc. v. Dept.
of Social Services, supra, 288 Conn. 830. Accordingly,
the trial court properly concluded that the ultimate
finding of the hearing officer, substantiating the allega-
tion of emotional abuse against the plaintiff, was sup-
ported by substantial evidence.
We do not find persuasive the plaintiff’s argument
that the trial court’s conclusion is contrary to our deci-
sion in Dolgner. The plaintiff argues that in Dolgner,
this court refused to uphold a finding of emotional
abuse, when in that case a day care provider had been
alleged to have subjected children in her care to ‘‘humili-
ating and frightening treatment and punishment . . . .’’
Dolgner v. Alander, supra, 237 Conn. 277. The plaintiff
misconstrues the basis for our decision in that case. In
Dolgner, this court concluded that the decision of the
Commissioner of Human Resources to revoke the plain-
tiff’s license that permitted her to run a day care center
out of her home was not supported by substantial evi-
dence. Id., 273. In that case, however, we based our
decision primarily due to the following concerns: ‘‘The
evidence presented at the [administrative] hearings
failed to disclose the factual particulars regarding inap-
propriate conduct that had occurred at the plaintiff’s
family day care home, the dates on which inappropriate
conduct occurred, the frequency of inappropriate con-
duct or any other details concerning the plaintiff’s
alleged violations . . . . Moreover, although the . . .
case summary [of the Department of Human Resources]
disclosed the age of one of the children who had
reported abusive treatment, no other evidence dis-
closed the ages of the children who had reported inap-
propriate conduct.’’ Id., 282. This court continued:
‘‘Although the reports prepared by [the Department of
Human Resources] and the . . . police . . . con-
tained the specific factual foundation of the plaintiff’s
alleged misconduct, neither report was introduced into
evidence at the administrative hearings. In the absence
of such basic factual predicates, the hearing officer was
not provided with an opportunity to assess and to weigh
independently and adequately the accuracy and the
reliability of the evidence presented.’’ Id. Unlike the
situation in Dolgner, the record in the present case,
particularly those portions discussed previously in this
opinion, was replete with evidence containing the spe-
cific factual foundation underlying the department’s
decision to substantiate the charge of child abuse
against the plaintiff and recommend that his name be
placed on the central registry.
We also reject the plaintiff’s contention that neither
courts nor the department should be ‘‘second-guessing
the judgment of the New Haven Board of Education,
which has fully investigated and decided this matter
. . . .’’ The plaintiff analogizes the present situation to
the one presented to this court in Gupta v. New Britain
General Hospital, supra, 239 Conn. 590. We do not find
the situations to be comparable. In Gupta, the dispute
arose when the plaintiff, a surgical resident, was dis-
missed in what he claimed was a breach of the residency
agreement between the plaintiff and the defendant hos-
pital. Id. In part, the plaintiff claimed that the defendant
had breached the agreement by failing to provide him
with adequate training. Id. We noted that the plaintiff’s
claim in Gupta raised issues such as standard of care,
the existence of a duty, and reasonableness that ‘‘are
difficult, if not impossible, to apply in the academic
environment’’; id., 591; and, partially for this reason, we
concluded that ‘‘[j]udicial noninterference is especially
appropriate in cases like the present one, in which the
focus of a breach of contract claim is an allegedly inade-
quate residency program.’’ Id., 592. By contrast, with
regard to the present case, the legislature has made
it quite plain by creating the central registry and its
surrounding regulatory scheme that potentially abusive
practices by teachers or other persons that fall within
the ambit of that scheme are subject to regulation by
the department and, to a lesser extent, the courts. The
central registry statutory scheme at issue plainly applies
to persons entrusted with the care of a child or youth.
See General Statutes (Supp. 2014) § 17a-101g (a)
(describing investigative steps taken by department
when reported abuser is ‘‘person entrusted with the
care of a child’’); General Statutes (Supp. 2014) § 17a-
101g (d) (providing when such report of abuse warrants
placement of abuser’s name on central registry); Gen-
eral Statutes (Supp. 2014) § 17a-101k (a) (providing that
department is required to maintain central registry of
findings of abuse pursuant to § 17a-101g). The legisla-
ture has defined the term ‘‘ ‘[p]erson entrusted with the
care of a child or youth’ ’’ to mean ‘‘a person given
access to a child or youth by a person responsible for
the health, welfare or care of a child or youth for the
purpose of providing education, child care, counseling,
spiritual guidance, coaching, training, instruction,
tutoring or mentoring of such child or youth.’’ (Empha-
sis added.) General Statutes (Supp. 2014) § 17a-93 (15).11
The hearing officer in this case determined that the
plaintiff was such a person, and the plaintiff has not
challenged this classification on appeal. Moreover, the
legislature has expressly given the department the
authority to adopt regulations to implement the central
registry. See General Statutes (Supp. 2014) § 17a-101k
(i). Thus, the legislature has plainly expressed a desire
for potentially abusive conduct between teachers and
the minor children with whom they have been entrusted
to be subject to some degree of supervision.
II
Having concluded that the ultimate finding of the
hearing officer, substantiating the allegation of emo-
tional abuse against the plaintiff, was supported by sub-
stantial evidence, we now turn to the second issue:
whether the definition of ‘‘abused’’ found in § 46b-120
(3) is void for being unconstitutionally vague as applied
to the facts of the present case. The department claims
that the Appellate Court improperly determined that the
relevant term, ‘‘emotional abuse,’’ is void for vagueness.
Specifically, the department claims that the term is not
unconstitutionally vague when one examines the
department’s regulations and policy manual in combina-
tion with the remainder of the statutory scheme and
relevant case law. Moreover, the department contends
that, as an educator, the plaintiff should have been
on fair notice that his conduct would fall within the
statutory definition of ‘‘abuse,’’ particularly in light of
Connecticut’s anti-bullying statute.12 In response, the
plaintiff claims that the Appellate Court correctly held
that § 46b-120 (3) is unconstitutionally vague as applied
to the facts in the present case because ‘‘the plaintiff
. . . could [not] have been on notice that his cheek-
pinching and name-calling behavior toward K could
amount to child abuse within the meaning of § 46b-120
(3) as interpreted by the [department’s] regulations.’’
Frank v. Dept. of Children & Families, supra, 134 Conn.
App. 315. We agree with the department.
‘‘As a threshold matter, it is necessary to discuss the
applicable standard of review. A statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . [T]he void for vagueness doctrine
embodies two central precepts: the right to fair warning
of the effect of a governing statute . . . and the guaran-
tee against standardless law enforcement. . . . If the
meaning of a statute can be fairly ascertained a statute
will not be void for vagueness since [m]any statutes
will have some inherent vagueness, for [i]n most English
words and phrases there lurk uncertainties. . . . Refer-
ences to judicial opinions involving the statute, the com-
mon law, legal dictionaries, or treatises may be
necessary to ascertain a statute’s meaning to determine
if it gives fair warning.’’ (Citations omitted; internal
quotation marks omitted.) Ferreira v. Pringle, 255
Conn. 330, 355–56, 766 A.2d 400 (2001). ‘‘[T]he degree
of vagueness that the [c]onstitution tolerates . . .
depends in part on the nature of the enactment. . . .
The [United States Supreme Court] has . . . expressed
greater tolerance of enactments with civil rather than
criminal penalties because the consequences of impre-
cision are qualitatively less severe. . . . Therefore,
[c]ivil statutes . . . may survive a vagueness challenge
by a lesser degree of specificity than in criminal stat-
utes.’’ (Citation omitted; internal quotation marks omit-
ted.) Hogan v. Dept. of Children & Families, 290 Conn.
545, 575, 964 A.2d 1213 (2009), quoting Gonzalez v.
Surgeon, 284 Conn. 573, 583–84, 937 A.2d 24 (2007).
Before reaching the merits of our analysis, we refer
to this court’s earlier decision in Hogan v. Dept. of
Children & Families, supra, 290 Conn. 568–70,13 in
which we previously rejected a different vagueness
challenge to the constitutionality of the central registry
scheme, to provide background information: ‘‘The regis-
try scheme is codified in two sections that work in
tandem: General Statutes [Rev. to 2007] §§ 17a-101g and
17a-101k. [General Statutes (Rev. to 2007)] § 17a-101g
sets forth the [department’s] responsibilities upon
receiving a report of abuse or neglect of a child: classifi-
cation; evaluation; investigation; and determination of
whether abuse or neglect has occurred. General Stat-
utes [Rev. to 2007] § 17a-101g (a) and (b). The statute
directs that, ‘[i]f the [C]ommissioner [of Children and
Families] determines that abuse or neglect has
occurred, the commissioner shall also determine
whether: (1) [t]here is an identifiable person responsi-
ble for such abuse or neglect; and (2) such identifiable
person poses a risk to the health, safety or well-being
of children and should be recommended by the commis-
sioner for placement on the child abuse and neglect
registry established pursuant to section 17a-101k.’ Gen-
eral Statutes [Rev. to 2007] § 17a-101g (b).’’ ‘‘Certain
findings of abuse may result in the placement of an
abuser’s name on the [central] registry even prior to
exhaustion of administrative remedies: ‘[i]f the child
abuse or neglect resulted in or involves [inter alia] . . .
the risk of serious physical injury or emotional harm
of a child . . . .’ General Statutes [(Rev. to 2007) § 17a-
101g (d)].’’ Hogan v. Dept. of Children & Families,
supra, 573–74. ‘‘The [department] is directed under
[General Statutes (Rev. to 2007)] § 17a-101k (i) to adopt
regulations to implement the provision of that statute.’’
Id., 570.
The definition of ‘‘abuse’’ in § 17a-101g (b) incorpo-
rates, by reference, the definition of ‘‘abused’’ in § 46b-
120 (3).14 General Statutes § (Rev. to 2011) 46b-120 (3),
in turn, defines ‘‘abused’’ to mean ‘‘that a child or youth
(A) has been inflicted with physical injury or injuries
other than by accidental means, (B) has injuries that
are at a variance with the history given of them, or (C)
is in a condition that is the result of maltreatment,
including, but not limited to, malnutrition, sexual moles-
tation or exploitation, deprivation of necessities, emo-
tional maltreatment, or cruel punishment . . . .’’
With this understanding in mind, we turn to the merits
of this issue, namely, the question of whether the defini-
tion of ‘‘abused’’ set forth in § 46b-120 (3) is void for
vagueness as applied to the present circumstances. We
begin with the plaintiff’s challenge to the department’s
policy manual as an appropriate source of notice.
Although the plaintiff claims that ‘‘there is no indication
in the record that [the department’s policy] manual has
the force of law,’’ Connecticut courts, including this
court, have previously approved of using the policy
manual as a reference in the absence of guidance in
the relevant statutory provisions or regulations. See,
e.g., Hogan v. Dept. of Children & Families, supra, 290
Conn. 576 n.16 (noting that trial courts consider policy
manual to be part of relevant scheme); Lovan C. v.
Dept. of Children & Families, 86 Conn. App. 290, 295,
860 A.2d 1283 (2004) (citing § 34-2-7 of policy manual for
examples of term ‘‘physical injury’’ when determining
whether child had been ‘‘abused’’ within definition of
§ 46b-120); Giordano-Little v. Dept. of Children & Fam-
ilies, Superior Court, judicial district of New Britain,
Docket No. CV-07-4012612-S (January 29, 2008)
(reviewing finding of emotional neglect under § 34-2-7
of policy manual); Handleman v. Dept. of Children &
Families, Superior Court, judicial district of New Brit-
ain, Docket No. CV-06-4012364-S (January 11, 2008)
(relying on § 34-2-7 of policy manual to supply definition
of ‘‘emotional abuse or maltreatment’’); Adams v. Dept.
of Children & Families, Superior Court, judicial district
of New Britain, Docket No. CV-06-4011617-S (February
26, 2007) (noting that hearing officer relied on § 34-2-
7 of policy manual for definitions of ‘‘sexual abuse’’
and ‘‘emotional abuse’’); Rucci v. Dept. of Children &
Families, Superior Court, judicial district of New Brit-
ain, Docket No. CV-02-0516990-S (November 5, 2003)
(36 Conn. L. Rptr. 7, 9) (noting that § 34-2-7 of policy
manual ‘‘provides operational definitions of child abuse
and neglect’’ and interpreting subsection defining terms
‘‘physical abuse’’ and ‘‘physical injury’’). In Hogan, we
concluded that reliance on the policy manual was
appropriate, despite the fact that the policy manual was
not formally promulgated, because the provisions at
issue were substantially the same as pending formally
promulgated regulations, the policy manual effectively
served as a gap filler, and the policy manual is published
by the defendant and, thus, available for viewing by the
public.15 See Hogan v. Dept. of Children & Families,
supra, 576 and n.16.
Recently, however, this court underscored that an
agency interpretation, whether of its own regulations
or of a statute that the agency is charged with enforcing,
is not accorded deference by the court when it has not
been ‘‘promulgated pursuant to any formal rule-making
procedures or articulated pursuant to any adjudicatory
procedures, has not been time-tested or subject to judi-
cial review in this state.’’ (Footnote omitted.) Sarrazin
v. Coastal, Inc., 311 Conn. 581, 611, 89 A.3d 841 (2014).
Thus, in Sarrazin, we declined to accord deference to
the Department of Labor’s interpretation of one of its
own regulations in a published guidebook for the pub-
lic.16 Id., 611–12. Nonetheless, for purposes of the pres-
ent case, reliance on the policy manual is appropriate
for several reasons. First, the question in the present
case is fair notice. Our courts previously had relied on
the policy manual in construing the same term at issue
in the present case. Thus, the plaintiff was on notice
of the courts’ reliance on the policy manual at the time
of the conduct in question. Second, as we explain subse-
quently in this opinion, the department’s definitions
in the policy manual are wholly consistent with the
common meaning of the term at issue, as well as other
statutory terms relevant to the present case. Therefore,
we begin with the policy manual.
In this case, the relevant provision of the policy man-
ual is located in § 34-2-7. This section defines emotional
maltreatment and abuse to include ‘‘act(s), state-
ment(s), or threats, which has had, or is likely to have
an adverse impact on the child and/or interferes with
a child’s positive emotional development.’’ Policy Man-
ual, supra, § 34-2-7. This section further indicates that
‘‘evidence’’ of such abuse is ongoing if it includes the
following types of behavior: ‘‘rejecting’’; ‘‘degrading’’;
‘‘isolating and/or victimizing a child by means of cruel,
unusual, or excessive methods of discipline’’; and
‘‘exposing the child to brutal or intimidating acts or
statements.’’ Id. Similarly, the section indicates that evi-
dence a child has suffered an adverse impact from such
behavior includes, inter alia, the following signs:
‘‘depression’’; ‘‘withdrawal’’; ‘‘low self-esteem’’; ‘‘anxi-
ety’’; ‘‘fear’’; ‘‘sleep disturbances’’; ‘‘academic regres-
sion’’; and ‘‘trust issues.’’ Id.
As noted previously in this opinion, trial courts have
relied on this specific provision when evaluating
whether particular conduct qualifies as ‘‘abuse’’ for pur-
poses of the central registry regulatory scheme. In fact,
at least one trial court has relied on this specific provi-
sion to uphold a claim of emotional abuse by a teacher
based on similar conduct. See Handleman v. Dept. of
Children & Families, supra, Superior Court, Docket
No. CV-06-4012364-S (The court affirmed the substantia-
tion of emotional abuse and placement of the plaintiff
on the central registry when ‘‘numerous witnesses
repeated identical stories that [the plaintiff] shoved the
sobbing child out of her classroom, while screaming at
him to get out of her room . . . seeing her yell at the
child, who was again in tears at the school market
place . . . . [T]he hearing officer concluded that the
[plaintiff’s] actions [toward] the child had a negative
impact on the child’s behavior who ‘was frequently cry-
ing, sobbing and complaining about no longer wish[ing]
to attend school.’ ’’); cf. Medina v. Dept. of Children &
Families, Superior Court, judicial district of New Brit-
ain, Docket No. CV-07-4013879-S (November 14, 2007)
(upholding substantiation of physical and emotional
neglect against group home employee when allegations
included choking and use of profanity against child
living in group home in such manner so that child felt
‘‘scared and unsafe’’).
This definition is consistent with other authoritative
published sources. In January, 2008, prior to the con-
duct at issue in the present case, the Centers for Disease
Control and Prevention (centers) published uniform
definitions for child maltreatment. The centers defined
‘‘psychological abuse,’’ which it noted also included the
term ‘‘emotional abuse,’’ to mean ‘‘[i]ntentional care-
giver behavior . . . that conveys to a child that he/she
is worthless, flawed, unloved, unwanted, endangered,
or valued only in meeting another’s needs.’’17 R. Leeb
et al., Centers for Disease Control and Prevention, Child
Maltreatment Surveillance: Uniform Definitions for
Public Health and Recommended Data Elements (2008)
pp. 16, 70.18 The centers included, among others, the
following behavior as examples of emotional mal-
treatment: ‘‘[b]elittling the child’’; ‘‘[d]egrading the
child’’; ‘‘[s]purning the child’’; and ‘‘[b]ehaving in a man-
ner that is harmful . . . or insensitive to the child’s
developmental needs.’’ Id., p. 69. Similarly, Merriam-
Webster’s Collegiate Dictionary (10th Ed. 1993) defines
‘‘abuse,’’ when used as a noun, to mean ‘‘language that
condemns or vilifies usu[ally] unjustly, intemperately,
and angrily’’ or, when used as a verb, ‘‘to use so as to
injure or damage’’ and ‘‘to attack in words . . . .’’ These
definitions of abuse, which were published before the
plaintiff engaged in the conduct at issue as determined
by the hearing officer, serve as additional resources
through which the plaintiff could have become aware
that his conduct could be considered emotional abuse
within the meaning of § 46b-120 (3).
Furthermore, the language contained in other stat-
utes reinforces this conclusion. The anti-bullying stat-
ute in effect during the time period relevant to the
present case included in its definition of ‘‘bullying’’ any
‘‘overt acts by a . . . group of students directed against
another student with the intent to ridicule, harass,
humiliate or intimidate the other student while on
school grounds . . . which acts are committed more
than once against any student during the school year.’’
Public Acts 2008, No. 08-160, § 4; see also footnote 12
of this opinion. Although the statute is expressly
directed at student conduct intended to cause harm, it
directs teachers to take an active role in preventing and
responding to bullying. Pursuant to the statute, schools
are required to create ‘‘safe school climate plans’’ that
outline the steps that teachers and staff are to take in
order to minimize or, ideally, eliminate bullying. Public
Acts 2008, No. 08-160, §§ 4 and 5. In addition, the registry
scheme implicitly acknowledges that abuse short of
causing severe emotional harm can result in the abus-
er’s placement on the central registry because, in cases
of serious physical or emotional harm the abuser’s name
can be placed in the central registry even prior to
exhaustion of administrative remedies. See General
Statutes (Supp. 2014) § 17a-101g (d).
In light of these sources of information, we readily
find that the plaintiff had fair notice that his conduct
could qualify as emotional abuse. The plaintiff, as K’s
teacher, was placed into a unique position to have an
impact on K’s life. A young person’s experience at
school shapes his or her identity. School is where our
youths learn about the world, how to interact with one
another, how to work together, and how to form ties
with people inside of a community infused with many
cultures. In this setting, the plaintiff made frequent,
degrading comments or references to K’s weight and
caused K further physical and mental pain by pinching
his cheeks. The plaintiff did this despite the fact that
it was quite clear to both other children in the classroom
and K’s mother that this behavior had a visible negative
effect on K. The plaintiff’s conduct continued to the
point that, according to the report authored by Lobo-
Wadley, other children joined in and carried out similar
behavior against K. In acting as he did, the plaintiff,
thus, essentially encouraged other students within the
class to aid him in causing K emotional harm. Such
behavior can only be categorized as ‘‘isolating,’’ as it is
used in § 34-2-7 of the policy manual, and it quite plainly
had a visible, profoundly negative impact on K. It should
be obvious to anyone, let alone a professional educator,
that this type of behavior—the targeting of a particular
student’s physical characteristics in a demeaning and
hurtful way—would readily fall within the terms
‘‘degrading’’ or ‘‘victimizing’’ as they are used within
§ 34-2-7 of the policy manual.
We conclude that the definition of ‘‘abused’’ found
in § 46b-120 (3), read in light of the policy manual,
related statutes, and the existing case law of Connecti-
cut courts on the subject, provided sufficient specificity
so as to give the plaintiff adequate notice that his con-
duct might lead his name to be placed on the central
registry.19
We respectfully disagree with the Appellate Court
that our decision in State v. Scruggs, 279 Conn. 698,
905 A.2d 24 (2006), warrants a determination that the
term ‘‘abused’’ as defined in § 46b-120 (3) is void for
vagueness as applied to the plaintiff. See Frank v. Dept.
of Children & Families, supra, 134 Conn. App. 308–309.
In Scruggs, the defendant was subjected to a criminal
prosecution when the defendant’s child committed sui-
cide. See State v. Scruggs, supra, 700–703. The defen-
dant was convicted by a jury of one count of risk of
injury to a child pursuant to General Statutes (Rev. to
2005) § 53-21 (a) (1)20 and the trial court denied her
subsequent motion for judgment of acquittal because it
‘‘conclud[ed] that the jury reasonably could have found
that, by maintaining a cluttered and unclean residence,
the defendant wilfully had caused her son . . . to be
placed in a situation that was likely to injure his mental
health.’’ Id., 700. We concluded that the statute as
applied to the defendant was vague, in part because
the state had failed to show that the defendant had had
any notice, including notice from ‘‘statutes, published
or unpublished court opinions in this state or from other
jurisdictions, newspaper reports, television programs
or other public information that would support a con-
clusion that the defendant should have known that the
conditions in her apartment posed an unlawful risk to
the mental health of a child.’’ Id., 719. We have already
noted that the department’s published policy manual,
relevant statutes, and earlier Connecticut case law on
the substantiation of reports of emotional abuse by
teachers would have provided the plaintiff with notice
that his conduct might result in the placement of his
name on the central registry.
In sum, we conclude that the Appellate Court improp-
erly failed (1) to give deference to the factual findings
made by the hearing officer and the factually supported
legal conclusions drawn therefrom, and (2) to give con-
sideration to sources of information available to the
plaintiff that provided him with adequate notice that
his conduct toward K would be considered abuse as
defined in § 46b-120 (3) and thus potentially result in
his name being placed on the central registry.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court dismissing the plaintiff’s appeal.
In this opinion the other justices concurred.
1
In view of this court’s policy of protecting the privacy interests of juve-
niles, we refer to the child involved in this matter as K. See Frank v. Dept.
of Children & Families, 134 Conn. App. 288, 293 n.4, 37 A.3d 834 (2012).
2
As we discuss in further detail later in this opinion, General Statutes
(Supp. 2014) § 17a-101k requires the department to maintain a central regis-
try of the names of certain individuals whom the department has found to
have abused or neglected children pursuant the investigative process set
forth in General Statutes (Supp. 2014) § 17a-101g.
We note that §§ 17a-101g and 17a-101k have been the subject of recent
amendments by our legislature that are not relevant to the present appeal.
See, e.g., Public Acts 2013, No. 13-54, §§ 1, 2. For the sake of simplicity, all
references to §§ 17a-101g and 17a-101k in this opinion, unless otherwise
noted, are to the versions of those statutes appearing in the 2014 supplement
to the General Statutes.
3
General Statutes (Rev. to 2011) § 46b-120 (3) defines ‘‘ ‘[a]bused’ ’’ to
mean ‘‘that a child or youth (A) has been inflicted with physical injury or
injuries other than by accidental means, (B) has injuries that are at variance
with the history given of them, or (C) is in a condition that is the result of
maltreatment, including, but not limited to, malnutrition, sexual molestation
or exploitation, deprivation of necessities, emotional maltreatment or cruel
punishment . . . .’’ The definition of ‘‘abused’’ found in § 46b-120 (3) is
applicable to the present case because the section is expressly referenced
in the statute that provides the criteria used to determine when a report of
child abuse must be made; see General Statutes (Supp. 2014) § 17a-101a (a)
(‘‘[a]ny mandated reporter, as defined in section 17a-101, who in the ordinary
course of such person’s employment or profession has reasonable cause to
suspect or believe that any child under the age of eighteen years [1] has
been abused or neglected, as defined in section 46b-120’’); and the statute
that provides the criteria for when the department should substantiate a
reported case of child abuse and whether the offender’s name should be
placed on the central registry. See General Statutes (Supp. 2014) § 17a-101g
(b) (‘‘After an investigation into a report of abuse or neglect has been
completed, the commissioner shall determine, based upon a standard of
reasonable cause, whether a child has been abused or neglected, as defined
in section 46b-120. If the commissioner determines that abuse or neglect
has occurred, the commissioner shall also determine whether: [1] There is
an identifiable person responsible for such abuse or neglect; and [2] such
identifiable person poses a risk to the health, safety or well-being of children
and should be recommended by the commissioner for placement on the
child abuse and neglect registry established pursuant to section 17a-101k.’’).
We note that § 46b-120 has been amended multiple times since the events
underlying the present appeal, including two amendments that renumbered
the subsections relevant to the present appeal. See, e.g., Public Acts, Spec.
Sess., June, 2007, No. 07-4, § 73 (effective January 1, 2010); Public Acts
2011, No. 11-240, § 2 (effective July 1, 2011). In light of the fact that these
amendments are not relevant to the present appeal, we refer to the 2011
revision of the statute for the sake of consistency with the Appellate Court
opinion. See Frank v. Dept. of Children & Families, supra, 134 Conn. App.
292 n.2.
We also note that § 17a-101a has been amended by our legislature since
the events underlying the present appeal. See, e.g., Public Acts 2013, No.
13-297, § 2. These amendments, however, are also not relevant to the present
appeal. Consequently, all references to § 17a-101a within this opinion are
to the version appearing in the 2014 supplement to the General Statutes.
4
We note that portions of the record in the present case also refer to the
principal by the name Laura Lynn. For the sake of simplicity, we refer to
her throughout this opinion as Russo.
5
The administrative record reveals that, following Russo’s warning to the
plaintiff to cease calling K names and pinching his cheeks, Russo asked K’s
mother if there had been any further issues between K and the plaintiff,
and K’s mother informed Russo that K had not reported any new incidents.
By February, 2009, however, K’s grades continued to suffer, and K’s mother
informed Russo that she believed that the plaintiff was retaliating against
K and his mother for bringing his earlier behavior to Russo’s attention. In
April, 2009, K’s mother again complained to Russo about the plaintiff, stating
that the behavior toward K had continued. An additional meeting was sched-
uled for May 5, 2009, between K’s mother, Russo, the plaintiff, Daniel Diaz,
who served as the school’s parent advocate, and Charles Warner, who was
an administrator at the school district’s central office. At this meeting, K’s
mother again raised her concerns regarding the plaintiff’s behavior toward
her son. Warner cut the meeting short, and informed K’s mother to file a
police report if she was concerned about the plaintiff’s behavior toward K,
which K’s mother subsequently did. Following an additional meeting on
May 19, 2009, between K’s mother, Russo, the plaintiff, Lobo-Wadley, and
Leah Pacini, another administrator with the school district’s central office,
Russo made a referral to the department and ordered Lobo-Wadley to con-
duct an internal investigation. The department did not accept Russo’s
referral.
6
In this instance, an investigation into the matter determined that the
plaintiff had not called the child fat, he had called him a turtle.
7
The administrative record also reveals that, as a result of these events,
the plaintiff was to be transferred to a different school in the fall of 2010.
8
The parties have not pointed us to any information contained in the
administrative record to explain the basis for the denial of these earlier
referrals. In the absence of such information, we decline to speculate as to
the reasoning employed by the department in declining to accept these
earlier referrals.
9
We granted the department’s petition for certification to appeal limited
to the following questions: (1) ‘‘Did the Appellate Court properly reverse
the judgment of the trial court or did it fail to properly credit the findings
of the hearing officer?’’ and (2) ‘‘If the answer to the first question is in the
affirmative, did the Appellate Court properly determine that . . . § 420b-
120 (3) is unconstitutionally vague as applied to the plaintiff’s conduct in
the classroom regarding one of his students, because the plaintiff could not
have been on notice that his behavior could be considered ‘emotional abuse’
as defined by the [department’s] regulations?’’ Frank v. Dept. of Children &
Families, 305 Conn. 909, 909–10, 45 A.3d 97 (2012).
10
Instead, the Appellate Court opinion states only that K’s mother believed
that K ‘‘had become sensitive to the use of nicknames by the plaintiff,
including the name, ‘cheeks,’ and, ‘fish out of water,’ and to the pinching
of his cheeks by the plaintiff.’’ Frank v. Dept. of Children & Families, supra,
134 Conn. App. 294.
11
We note that § 17a-93 has been amended by our legislature multiple
times since the events underlying the present appeal. See, e.g., Public Acts
2013, No. 13-40, § 3. These amendments, however, are not relevant to the
present appeal. For the sake of simplicity, all references to § 17a-93 within
this opinion are to the version appearing in the 2014 supplement to the
General Statutes.
12
Section 4 of No. 08-160 of the 2008 Public Acts, which amended Connecti-
cut’s anti-bullying statute, General Statutes (Rev. to 2007) § 10-222d, sets
forth the statutory language in effect during the time period relevant to the
present case. It provides in relevant part: ‘‘Each local and regional board
of education shall develop and implement a policy to address the existence
of bullying in its schools. Such policy shall . . . (3) require teachers and
other school staff who witness acts of bullying or receive student reports
of bullying to notify school administrators in writing . . . (5) include a
prevention and intervention strategy . . . for school staff to deal with bul-
lying, (6) provide for the inclusion of language in student codes of conduct
concerning bullying . . . [and] (9) direct the development of case-by-case
interventions for addressing repeated incidents of bullying against a single
individual or recurrently perpetrated bullying incidents by the same individ-
ual that may include both counseling and discipline . . . . For purposes of
this section, ‘bullying’ means any overt acts by a student or a group of
students directed against another student with the intent to ridicule, harass,
humiliate or intimidate the other student while on school grounds, at a
school-sponsored activity, or on a school bus, which acts are committed
more than once against any student during the school year. . . .’’ Public
Acts 2008, No. 08-160, § 4. Section 5 of Public Act 08-160 provides in relevant
part: ‘‘[t]he term ‘prevention and intervention strategy’ may include, but is
not limited to . . . (4) school rules prohibiting bullying, harassment and
intimidation and establishing appropriate consequences for those who
engage in such acts . . . [and] (8) school-wide training related to safe school
climate . . . .’’
13
We observe that this court’s decision in Hogan was released after the
events giving rise to the current dispute took place. The conduct giving rise
to the issue in Hogan, however, occurred well before the plaintiff engaged
in the conduct at issue in the present case. See Hogan v. Dept. of Children &
Families, supra, 290 Conn. 551–53 (noting that alleged abusive conduct
engaged in by plaintiff occurred in 1998, and that the administrative hearing
upholding in part department’s substantiation of physical abuse against
plaintiff occurred in 2005); see also Hogan v. Dept. of Children & Families,
Superior Court, judicial district of New Britain, Docket No. CV-06-4012236-
S (August 3, 2007), rev’d, Hogan v. Dept. of Children & Families, supra,
290 Conn. 582. Our decision in Hogan examined portions of the central
registry regulatory scheme as it existed at the time that the conduct giving
rise to the present case occurred. Thus, we at times make reference to our
decision in Hogan in this opinion as it provides some insight as to the
workings of the regulatory scheme and the accessibility of information about
the scheme that would have been available to the plaintiff in the years
leading up to the events in question in the present case. In making these
references, we do not intend to suggest that our decision in Hogan, in and
of itself, provided any notice to the plaintiff that his conduct might have
fallen within the relevant statutory definition of ‘‘abuse.’’
14
General Statutes (Supp. 2014) § 17a-101g (b) provides in relevant part:
‘‘After an investigation into a report of abuse or neglect has been completed,
the commissioner shall determine, based upon a standard of reasonable
cause, whether a child has been abused or neglected, as defined in section
46b-120. If the commissioner determines that abuse or neglect has occurred,
the commissioner shall also determine whether: (1) There is an identifiable
person responsible for such abuse or neglect; and (2) such identifiable
person poses a risk to the health, safety or well-being of children and should
be recommended by the commissioner for placement on the child abuse
and neglect registry established pursuant to section 17a-101k. If the commis-
sioner has made the determinations in subdivisions (1) and (2) of this
subsection, the commissioner shall issue notice of a recommended finding
to the person suspected to be responsible for such abuse or neglect in
accordance with section 17a-101k.’’
15
Section 34-2-7 of the policy manual is available to the public on the
department’s website, and the webpage reflects that the section has not
been modified since November 15, 2007. See Policy Manual, supra, § 34-2-
7 (last modified November 15, 2007), available at http://www.ct.gov/dcf/cwp/
view.asp?a=2639&Q=393928 (last visited June 25, 2014).
16
We note that the guidebook in Sarrazin was intended to provide guid-
ance to the public, in particular employers, whereas the department’s policy
manual is, by its express terms, intended to guide the conduct of its employ-
ees in assessing and responding to allegations of abuse and neglect. See
Connecticut Department of Labor, ‘‘A Guide to Wage and Workplace Stan-
dards Division and Its Laws’’ (Rev. 2014) p. i (noting guide provided to
assist employers); Policy Manual, supra, § 1-3-1 (‘‘[t]he [p]olicy [m]anual is
a primary staff tool covering legal requirements and agency mandates and
is to be used as a reference for informed decision-making’’).
17
Although neither party has suggested that this particular definition
would have given the plaintiff notice that his conduct might qualify as
‘‘abuse’’ within the meaning of § 46b-120 (3), this court has previously
observed that the vagueness doctrine requires ‘‘what Justice Holmes spoke
of as fair warning . . . in language that the common world will understand,
of what the law intends to do if a certain line is passed. To make the warning
fair, so far as possible the line should be clear. . . . [L]aws [must] give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.’’ (Citations omitted; internal
quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89,
99–100, 717 A.2d 117 (1998). In other cases examining the vagueness doc-
trine, we have looked to public sources of information to see if they could
have provided an actor with notice that his or her behavior could fall within
the bounds of the applicable statute. See, e.g., State v. Indrisano, 228 Conn.
795, 809–10, 640 A.2d 986 (1994) (citing dictionary to provide common
meaning of statutory terms); State v. Scruggs, 279 Conn. 698, 719, 905 A.2d
24 (2006) (finding statute at issue unconstitutionally vague as applied to
defendant, noting that ‘‘[t]he state has pointed to no statutes, published or
unpublished court opinions in this state or from other jurisdictions, newspa-
per reports, television programs or other public information that would
support a conclusion that the defendant should have known that the condi-
tions in her apartment posed an unlawful risk to the mental health of
a child’’).
18
In a footnote, the authors noted that this definition was adapted from
the Practice Guidelines of the American Professional Society on the Abuse
of Children, which was published in 1995. R. Leeb et al., supra, p. 16 n.12.
19
We reiterate that the stated legislative purpose of the central registry
is ‘‘to prevent or discover abuse of children . . . .’’ (Internal quotation marks
omitted.) Hogan v. Dept. of Children & Families, supra, 290 Conn. 573. As
a result, for this court ‘‘to require the [department] to delineate every act
that would lead to placement of a person’s name on the registry would be
impracticable when the issue is a prediction of risk.’’ Id., 577.
20
General Statutes (Rev. to 2005) § 53-21 (a) provides in relevant part:
‘‘Any person who (1) wilfully or unlawfully causes or permits any child
under the age of sixteen years to be placed in such a situation that the life
or limb of such child is endangered, the health of such child is likely to be
injured or the morals of such child are likely to be impaired, or does any
act likely to impair the health or morals of any such child . . . shall be
guilty of a class C felony . . . .’’