DocketNumber: No. 98-P-1802
Citation Numbers: 51 Mass. App. Ct. 125
Judges: Jacobs
Filed Date: 3/7/2001
Status: Precedential
Modified Date: 6/25/2022
In this appeal, John D. contends that “[o]rai statements by themselves without evidence of physical and emotional injury do not constitute sexual abuse in the context of naming a perpetrator of sexual abuse under G. L.[] c. 119, § 51B[,] and the regulations thereunder.” He also argues that the evidence
This case arises from a report made to the DSS under G. L. c. 119, § 51 A, which alleged sexual abuse and neglect by John D. of his fifteen year old stepdaughter and neglect of his four year old daughter. After an investigation and report pursuant to c. 119, § 5 IB, DSS supported
We condense the factual background, as determined by the administrative hearing officer.
In her decision, the administrative hearing officer stated that John D.’s “actions . . . coupled with his pattern of engaging in conversations replete with sexual themes and sexual activities constitute sexual contact.” She also opined that sexual contact was not limited by DSS regulations to physical touching and that John D. engaged in “verbal sexual contact” with his stepdaughter.
“the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual.” (Emphasis original.)
Because the validity of the regulation is not challenged,
That there is a broad range of possible communication between a parent (or caretaker) and a child on sexual subjects, is apparent from general experience and the dictionary definitions of “sexual.”
John D. argues that while some of his discussions with his stepdaughter may have been “inappropriate,” they did not “rise to the level of sexual abuse within the definition set forth in [G. L.] c. 119, § 51A.”
Moreover, there was evidence of a risk of harm to the stepdaughter from these inappropriately sexually laden communications. The stepdaughter told the investigator that she didn’t “feel comfortable” with John D.’s nude conduct
Accordingly, we agree with the Superior Court judge that John D.’s “engaging his stepdaughter in sexually explicit conversations and suggesting sexual contact with her, such as examining her genitals and [offering to help her with] romantic kissing, is thus consistent with the plain and ordinary meaning of the word contact.” We further find support in the record for the judge’s conclusion that this was conduct “potentially causing emotional harm to a child” and, therefore, that such behavior reasonably is within the cognizance of the regulation. Beyond the considerable deference we accord to an agency’s interpretation of its own regulation, we conclude that the interpretation by DSS of its regulation in this case was rational, reasonable, and consistent with its plain terms. See Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550-551 (1991), and cases cited. Moreover, we conclude the regulation has been applied in a manner consistent with the purposes of c. 119, § 51 A. See Massachusetts Coalition for the Homeless v. Secretary of Health & Human Servs., 422 Mass. 214, 226-227 (1996).
Finally, John D. asserts that because the hearing officer stated there was no indication that the two children were injured physically or emotionally by the domestic violence they witnessed, there is no evidence supporting the charge of neglect.
John D. urges, on due process grounds, that we consider imposing a heightened evidentiary standard, such as that of clear and convincing evidence, so as to provide greater protection against a person improperly being designated as a perpetrator of sexual abuse because of the “powerful stigma” attached to the designation. He raises no issue concerning the adequacy of the G. L. c. 30A proceeding, or of any specific evidence, nor does he indicate whether or how the result here might be different under another standard. In these circumstances, we have no reason to consider a departure from the G. L. c. 30A process and standards recently confirmed in Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 479-481 (1997). Moreover, while the decision to place a name on the registry of alleged perpetrators is a decision “of more than ordinary gravity in that it places a permanent mark on a person,” id. at 487, that decision should not result in widespread stigmatization because access to the registry may only be obtained by written authorization of the DSS commissioner.
Judgment affirmed.
After the completion of a G. L. c. 119, § 5IB, investigation, DSS makes a determination whether the report’s allegations are “supported” or “unsupported.”
“To ‘support’ a report means that [DSS] has reasonable cause to believe that an incident (reported or discovered during the investigation) of abuse or neglect by a caretaker did occur. . . . ‘Reasonable Cause to believe’ means a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected.” 110 Code Mass. Regs. § 4.32(2) (1996). (Emphasis original.)
Pursuant to G. L. c. 51B(4), DSS is required to notify the district attorney if it has reasonable cause to believe a child has died, been sexually assaulted, or suffered or disclosed sexual assault or other specified harms, as a result of abuse or neglect. Although any action taken by the district attorney is not relevant to the proceedings in this case, we note there is no indication that criminal charges subsequently were filed against John D.
DSS maintains a registry of alleged perpetrators pursuant to G. L. c. 18B, § 7(b), as a component of its central registry under G. L. c. 119, § 5IF. See 110 Code Mass. Regs. § 4.36 (1996).
“The name of the alleged perpetrator shall be added to the Registry of Alleged Perpetrators if: (1) the allegation of child abuse or neglect has been supported and referred to the District Attorney . . . and (2) there is substantial evidence indicating that the alleged perpetrator was responsible for the abuse or neglect. ...
“The name of the alleged perpetrator shall remain on the Registry of Alleged Perpetrators for 75 years or until the decision to list the name of the alleged perpetrator is reversed pursuant to 110 CMR 10.00 et. seq., or by a court of competent jurisdiction.” 110 Code Mass. Regs. § 4.37 (1996).
The consequences of adding a name to the registry of alleged perpetrators, see note 19, infra, are readily distinguishable from the requirement for registratian and public notification under G. L. c. 6, §§ 178C-1780, of persons convicted of sex offenses. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 90-95 (1998).
The documentary evidence at the hearing principally consisted of the DSS investigative report, also read into the hearing record, and several letters. No issue is raised with respect to the reliability of the investigative reports or their use in this case. For a criticism of DSS procedures, see Volterra, A Massachusetts Star Chamber in Process, 82 Mass.L.Rev. 347 (1998). In addition, testimony was given by three DSS staff persons. John D. testified and was represented by counsel who participated in the hearing. Neither the mother nor the alleged victims testified.
The regulation defining “abuse” in its present form was promulgated in 1993 (dated December 1, 1993). That version substituted the wording “creates a substantial risk of physical or emotional injury” for the former 1988 language “creates a substantial risk of serious physical or serious emotional injury,” and added the present clause “or any sexual contact between a caretaker and a child under the care of that individual.” The term “sexual contact” was not defined in the revised regulation and remains undefined in the latest version, dated December 27, 1996. (Also, the 1993 revision of the regulation followed an amendment of G. L. c. 119, § 51 A, effective on May 20, 1993. See note 16, infra.)
No issue was raised below, nor is any issue raised in this appeal, concerning the 1993 revision. We note that some of the conduct of John D. complained of' may have occurred before the effective date of the revision. Also, the administrative hearing officer does not cite the dates of the regulations referred to in her decision. The Superior Court judge does not cite a date for the regulation at issue. Because the definition of abuse in 1993 has not changed through the current (1996) version of the regulations, and because John D. does not challenge the applicability of the regulation in its present form, we accept that version in conducting our review.
There is no dispute that John D., the stepfather of the older child and the father of the younger child, is a caretaker as defined in 110 Code Mass. Regs. § 2.00 (1996).
John D.’s reliance on the definition of “sexual contact” in G. L. c. 12, § 11L, is misplaced. That section proscribes specific acts of a sexual nature between unlicensed health care professionals and their patients. That definition is so embedded in the context of professional-patient relationships as to have no significance in the parent-child relationship at issue in the present case.
In a further attempt to show that contact must be physical in nature, John D. cites Herridge v. Board of Registration in Med., 420 Mass. 154, 166 (1995), as distinguishing between “suggestive conversation” and “contact.” The statement referred to is: “If the petitioner engaged a patient under his care in personal, sexually suggestive conversation leading to sexual contact that exploited the professional relationship, the board was entitled to conclude that he had violated ethical standards governing the practice of psychiatry.” Ibid. We do not read Herridge as establishing a broad rule that physical contact is a necessary component of “sexual contact” in the context of a caretaker relationship.
“Sexual” is defined as: “Of, relating to, involving, or characteristic of sex, sexuality, the sexes, or the sex organs and their functions,” or as “[i]mplying or symbolizing erotic desires or activity.” The American Heritage Dictionary 1654 (3d ed. 1992).
“Sexual” also is defined as “of or relating to the sphere of behavior associated with libidinal gratification.” Webster’s Third New International Dictionary 2082 (1993).
Following the fair hearing, John D.’s motion in the Superior Court to submit additional evidence was allowed. That evidence is a report of his psychological evaluation, offered to show he tested “negative for pedophilia, voyeurism, frotteurism, or paraphilia.” The Superior Court judge does not refer to the report in his decision. These clinical conclusions are of no effect in the present case. We note, however, the psychologist’s conclusion that John D.’s “offer to examine [the stepdaughter’s] genitals to see if her hymen was intact was poor parental judgment, even if done in the context of a ruse to provide information that a parent might reasonably want to know. Family acceptance of and participation in nudism would still require, a respect for and reasonable observance of the basic sexual privacy of a young woman.”
John D. testified that he wanted to see the stepdaughter’s hymen “because if it wasn’t there or if I could not determine it [was] there easily, that I was going to talk to her mother and try my best to convince her to take her to the doctors and have her examined and possibly put her on protection.”
John D. does not otherwise argue that the DSS decision or the hearing procedures were not in conformity with applicable regulations. See 110 Code Mass. Regs. § 10.05 (1994) & § 10.06(8)(c) (1994). See also Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 479 (1997).
The hearing officer’s conclusion is reinforced by her distinguishing between improper conversation and conduct and permissible touching. She found an incident of touching the stepdaughter’s chest to examine for a lump did not constitute sexual contact or a sexual offense.
In so doing, the hearing officer implicitly concluded that John D., as the aggrieved party, did not meet his burden of demonstrating, by a preponderance of the evidence, the existence of administrative error. See 110 Code Mass. Regs. § 10.23 (1993).
The stepdaughter’s mother stated to the DSS investigator that her daughter was “uncomfortable” with the stepfather’s nude conduct and “hated it” when he came to talk to her, often while he was nude and while she was in the bathtub.
General Laws c. 119, § 51 A, states that certain persons who “shall have reasonable cause to believe that a child ... is suffering physical or emotional injury resulting from abuse . . . which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect,
Neglect is defined at 110 Code Mass. Regs. § 2.00 (1996) as, “failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care.” (Emphasis original.)
The record indicates that the wife had been arrested and charged criminally after one confrontation and that a court ordered therapy for the couple.
Pursuant to 110 Code Mass. Regs. § 4.38 (1996), access is limited to: “(1) The Commissioner, or his/her specifically named designee ... for the purpose of screening: (1) applicants for employment. . . , by the Department in a position with direct contact with clients or children; (2) applicants to become foster parents; and, (3) applicants to become adoptive parents.
“(4) No other individual, group, agency or department, including law enforcement, child welfare or educational agencies, may have access to the