The 51A report indicates that Mother had a restraining order against Father due to "past history." (Inv. FHT; 51A, p. 4) This should have given the 51B investigator some indication that the relationship between Mother and Father was contentious.

The 51A report also states that "Reporter said that all of this information has come from the mother." The 51A report also states that the reporter stated that Father "has a long history of being abused as a child." (51A, p. 4)

TESTIMONY

Testimony of 51B Investigator

The 51B investigator went to Mother's home for a home visit on March 16, xxxx, at 4:00 p.m. Present were Agatha Simpson (Mother), Mother's attorney, and Carla Simpson Anderson. The 51B Investigator, Investigation Supervisor, and Area Program Manager all admitted it was "unusual" for an attorney to be present during a social worker's interview with a child. (FHT)

The initial home visit on March 16 lasted approximately one to one and one-half hours. The investigator conducted a second home visit to Child in Mother's home on March 24, xxxx, at 11:00 a.m. Present at the second interview was Agatha Simpson and the daughter Carla Simpson Anderson. This was "a brief visit lasting approximately a half an hour." (Inv. FHT) Still, the child refused to speak.

The 51B investigator's attempts to interview the child "were very difficult," and the child would not speak to the 51B investigator. (51B Investigator Fair Hearing Testimony ["Inv. FHT"]) At the Fair Hearing, the 51B investigator admitted that she could not gauge the child's ability to understand because the child would not speak to her. (Inv. FHT)

The 51B investigator reported that Mother stated that Carla loves her father and returned from visits happy. (Inv. FHT; 51B Report page 2) On March 12, xxxx, the child returned home from a visit with Father. Mother stated to the reporter that while washing and preparing the child for bed, the child asked Mother if "mother wanted to know what father was doing to Carla." At this time, the child allegedly stated to the Mother that Father had been behaving in an inappropriate fashion. (Investigator FHT; 51A, p. 4; 51B Report, pp. 2-3) The 51A report also had a note that "mother reported that this is not the first time Carla has told her this." (51A, p. 4) When the 51B investigator tried to interview the child, the child "very uncomfortable and basically said that she didn't want to talk about that." (Inv. FHT)

During the SAIN interview on March 21, xxxx, the 51B investigator, the Assistant District Attorney, and a witness advocate stayed behind a two-way mirror and watched as the interviewer attempted to engage Carla. At that time she became very anxious and did not wish to cooperate without her Mother in the room. (Inv. FHT)

At that time, the interviewer left the room and asked Mother to go into the room with Carla. The assistant District Attorney, 51B investigator, the witness advocate, and the interviewer "waited on the other side. "The child voluntarily and speaking with mom made a statement, 'Are you angry at me blah blah blah will you talk to, about not talking.' Mother said she was not angry with the child but that it would be okay to talk about what she had reported about her dad. (51B FHT) At that time randomly the child said 'No, I don't want to talk about my bum-bum' and while saying this the child pointed to her buttocks. " (Inv FT)

The 51B investigator attempted to interview Carla again on March 22, xxxx, trying to get more information. The child saw the 51B investigator, became upset, and sat on Mother's lap with her face against mother's chest, and said that she was very uncomfortable speaking with the worker. (Inv. FHT)

At the Fair Hearing, the 51B investigator stated that the decision to support the 51A was "based on all the investigation and the fact that I did not pick up on anything in terms of mom being angry at this dad, the visits were not court-ordered, there was no child support, I did not feel there was any reason why mother would make up the story based on the actions that I saw in this child, the fear, the trauma, feel as though I had enough evidence to support the case" and "It was based on the fact that child has made a disclosure to her to her parent and also her behaviors in the period that I attempted to interview her and her random act witnessed by myself, the District Attorney's office when asked you know about the discomfort of her talking about or answering questions pertaining to her visit with her dad the child randomly pointed to her buttocks saying 'No, I don't want to talk about my bumbum.'" (Inv. FHT)

Based upon information gathered during her 51B investigation, the 51B investigator, with the Investigation Supervisor and Area Program Manager, supported the allegations of sexual abuse by Father on behalf of his daughter Carla. (51B Report, p. 9; Inv. FHT)

The 51B investigator stated that the decision to support the 51A was "based on the fact that the child has made a disclosure to her to her [sic] parent and also her behaviors in the period that I attempted to interview her and her random act witnessed by myself and the District Attorney's office when asked, you know, about the discomfort of her talking about or answering questions pertaining to her visit with her dad the child randomly pointed to her buttocks saying, 'No, I don't want to talk about my bumbum.'" (Inv. FHT)

The 51B investigation states that "Mother told Carla that she brought her in to talk about what she (Carla) [sic] had told her about daddy." (51B, p. 5) At the Fair Hearing, the 51B investigator admitted that the child's one statement could have been construed as something other than a reference to sexual abuse, and that the child's resistance to speaking to the 51B investigator could also have been for some reason other than sexual abuse. (Inv. FHT)

The 51B investigator indicated at the Fair Hearing that she had been working for the Department of Social Services for 21 years, and that she had attended college for one year. (Inv. FHT) The 51B investigator stated that she was a licensed social worker. (A search of However, after a search of their database, the Massachusetts Division of Professional Licensure conducted a search of its database and has determined that the 51B investigator is not a licensed social worker. (See letter from Massachusetts Department of Professional Licensure, attached)

The 51B investigator stated at the Fair Hearing that anything she deemed to be important was contained in the 51B report. The 51B investigator also admitted that if something was not contained in the 51B report (for example, contacting the child's school), she would have to say that she did not do it. (Inv. FHT) However, during the Fair Hearing, the 51B investigator stated that she had spoken to Det. Pavlov (51B, p. 4) or Pavlova (51B, p. 7) of the Cambridge Police Department, who stated that aside from a violation of a restraining order, Father did not have a criminal record. (Inv. FHT)

Prior to the filing of the 51A report in this case there was no previous history of any DSS involvement regarding Carla Simpson Anderson, Agatha Simpson, or the appellant Gerald Anderson. (Inv. FHT)

Although the 51B investigator had read in the 51A report that Father allegedly had a "long history of being abused as a child," the 51B investigator had no corroborating evidence to confirm or deny this allegation by Mother. (Inv. FHT) During two visits to Mother's home, which lasted approximately 12 hours for the first visit and approximately 2 hour for the second visit, the 51B investigator never asked Mother whether or not she had been sexually abused. (Inv. FHT) There is also no evidence that Gerald Anderson, father of Carla Simpson Anderson, had ever been a victim of sexual abuse. (Inv. FHT)

The 51B Prior to the 51A allegations made by Mother on March 12, xxxx, Mother had filed a restraining order against Father. (51B Report, pp. 2-3) The 51B investigator was aware of the restraining order. (Inv. FHT)

Father had visitation on Wednesday evenings into Thursday and on Saturday evening into Sunday. (51B Report, pp. 2-3; Inv. FHT) During these overnight visits, Father at some point would have to get the child Carla ready for bed by washing her. (Inv. FHT)

The 51B investigator indicated that she had been trained in the protocol of interviewing children which included ask the child, introducing the 51B investigator to the child; ask the child questions about school to see if the child is consistent; if the child is able to name colors and whether the child is able to stick to the information and be consistent in her reporting of things. The 51B investigator tries to see consistency in the child's reporting. (Inv. FHT) None of the protocols taught by DSS training and practice by the 51B investigator were utilized in this case because the child never spoke to the 51B investigator. And the same can be said of the SAIN interview (Inv. FHT).

The 51B investigator based her assessment of Carla's developmental skills upon her interaction with the child and what the investigator learned from her Mother (Inv. FHT). The investigator stated that "she was a bright, articulate child." However, the investigator also states that the child "refused to speak to [her]." (Inv. FHT)

The 51B investigator did not speak to any psychologist, psychiatrist, or therapist for Carla (Inv. FHT).

Mother stated to the 51B investigator that Father worked at University. (51B report; Inv. FHT) There is no place in the 51B report where the investigator asked Mother where she had worked. (51B report; Inv. FHT) Had the 51B investigator thought to ask where or if Mother worked, she would have made collateral contacts with those entrusted with care of the child while Mother was working.

The child was attending the Montessori School in Cambridge and the Montessori after-school program Monday through Friday, 9:00 to 5:00 (Father FHT) If the child had been exhibiting some bizarre behavior, the child may have exhibited such behavior at an after-school program. Those individuals at the day care or school could have corroborated or disproved Mother's allegations. The 51B investigator however did not contact any collaterals regarding school or after-school program that the child Carla Simpson Anderson was attending. (51B report; Inv. FHT)

In determining reliability of statements made, the 51B investigator would look at the circumstances under which the statements were made. In determining the clarity of the statements made allegedly made to the Mother by the child, the investigator would look at the underlying circumstances of how the statements were made. (Inv. FHT)

Because the child would not communicate with the 51B investigator, the 51B investigator was unable to determine whether the child could appreciate and give expression to what she had observed with her father and the alleged inappropriate behavior. (Inv. FHT) The child could not appreciate the possible consequences of statements -- true or false -- that she might make. The 51B investigator was also unable to determine how the child would give expression to what she had seen. (Inv. FHT)

There is no specific date, time, or location as to the alleged inappropriate conduct by Father occurred with her daughter disclosed by the child. (51B report; Inv. FHT)

There were no set questions before the attempted interview with the child. The questions that the 51B investigator would have asked the child would have been guided by the knowledge of the child's education and development. The only information that the 51B investigator had relating to the child's development and education was given by Mother and by her own observations during the visits. (Inv. FHT)

The Mother never told the 51B investigator that a couple weeks prior to the allegations being alleged against Father by a mandated reporter that she had been to a counselor with the Father to discuss, among other things, joint custody and Father taking the child to Brazil for vacation.

The Department did not take the child for another physical examination and did not arrange a sexual abuse evaluation. (Inv. FHT)

The utilization of the word by 42 year old "bumbum" would be appropriate for a child of such tender years. The 51B investigator never asked Mother if the child had utilized the word "bumbum" prior to the March 12, xxxx. (Inv. FHT)

The Department of Social Services stipulated on the record that all of Carla Simpson Anderson' medical records did not contain any physical evidence of any sexual abuse or emotional maltreatment. (Betty Dean, APM FHT)

Testimony of Dr. Peterson

At the request of Father's attorney the Department of Social Services subpoenaed in Carla Simpson Anderson' medical records. (Exhibit D) The examination performed on the child by Dr. Peterson was on March 15, xxxx. (Exhibit D; Dr. Peterson FHT)

Dr. Peterson completed an external examination of the child and took cultures. (Dr. Peterson FHT) External examination consisted of examining the child's vaginal area and rectum which gave no indication of any physical or sexual abuse. The doctor also did cultures for gonorrhea, chlamydia, and these were negative (51B rept; Inv. FHT; Dr. Peterson). Dr. Peterson did not report to the 51B investigator any bizarre behavior by Carla Simpson Anderson (Inv. FHT).

During the examination of the child by Dr. Peterson, Mother was also present. (Dr. Peterson FHT; 51B report)

Prior to the examination of the child by Dr. Peterson, Mother had told the doctor of alleged inappropriate behavior by Father to his daughter Carla. The statements of the alleged inappropriate behavior by the Father came solely from Mother and not from any disclosures by the child. Dr. Peterson testified that the allegations were the first she had heard of any possible sexual abuse. (Dr. Peterson FHT)

Dr. Peterson described Carla as a "very verbal, articulate child." Carla talked to Dr. Peterson but made no disclosures during the examination. (Dr. Peterson FHT)

Dr. Peterson testified that she is not trained in the use of a colposcope and would therefore not have conducted such an examination of the child. After examining the child, Dr. Peterson did not refer Carla for further examination regarding possible sexual abuse. (Dr. Peterson FHT)

The child was on target developmentally. Dr. Peterson further stated that didn't "have any reasons to suspect that there was any problems with her development." Dr. Peterson based the age appropriateness of the child upon "developmental screenings that she was taught to do." These "developmental skills" included "verbal age appropriate skills of the child for age."

The voluminous medical records of Carla Simpson Anderson (attached) do not show any concerns about sexual abuse.

The Department of Social Services has closed the case regarding Carla Simpson Anderson. Although no sexual abuse evaluation was performed on the child, it was the understanding of the Area Program Manager that the child was in sexual abuse treatment. (Betty Dean, APM FHT)

Testimony of Elaine Jackson, LICSW

Elaine Jackson, LICSW, has been therapist to Gerald Anderson for approximately 32 years. Elaine Jackson has degrees in social work and psychology and since 1993 has worked at University as a psychiatric social worker in the outpatient psychiatry clinic. (Elaine Jackson FHT)

Elaine Jackson meets with Father approximately every two weeks. Father calls her on the telephone if he has issues he needs to discuss between sessions.

Initially the issues for which Father saw the therapist were depression, anxiety, and alcohol abuse. The therapist continues to see Father to address issues of anxiety, depression, sobriety maintenance, and separation issues with his daughter. (Elaine Jackson FHT).

Ms. Jackson testified that Father has been sober for approximately three years. Ms. Jackson stated that she was aware of the fact that Mother had a restraining order out against Father. Ms. Jackson also testified that approximately two weeks prior to the allegations of March 14, xxxx, Mother and Father had met with a counselor to discuss joint physical and legal physical custody as well as getting court-ordered child support. (Elaine Jackson FHT)

The issues discussed during the therapy sessions also included parenting of Carla, dating of both Mother and Father, and the jealousies that went on between such dating. Father also had expressed during therapy that he would like to have some type of shared legal custody so that he could attend school functions of his daughter Carla as well as take her on vacation to such places as Brazil. Elaine Jackson and Father came up with the idea to have Father and Mother get together with a clinician to discuss these important subjects.

There was at least one meeting with a clinician and Mother and Father. This meeting took place after Mother had filed a restraining order against Father and before the March 14, xxxx allegations of sexual abuse.(Elaine Jackson FHT)

Elaine Jackson did speak to the clinician about the reason for the referral between Agatha Simpson and Gerald Anderson. After the session, it sounded to Elaine Jackson both from Father's report and by talking to the clinician that it had been a very difficult session. (Elaine Jackson FHT)

Mother was willing to take child support but was unwilling to give any type of shared legal custody rights to Father. "She did not support any court action or acknowledgment of his paternity." (Elaine Jackson FHT)

The therapist was aware of the fact that Father was on the birth certificate. (Elaine Jackson FHT)

To the best of Elaine Jackson's recollection, this meeting took place approximately two weeks prior to the allegations and certainly within one month of the allegations of sexual abuse being filed on March 14, xxxx. (Elaine Jackson FHT)

During therapy Mr. Anderson had been open to all types of topics. Early in the therapy treatment Father had discussed the fact that Mother had told him that she had been sexually abused by a friend of her father's. This issue had been discussed during the early part of therapy. Father indicated that this had happened to Agatha when she was about 8, 9, or 10 years old. Father did not during any of his therapy sessions communicate to Elaine Jackson that he had ever been sexually abused by any family member as was alleged by the Mother in the 51A report. (Elaine Jackson FHT)

Father's report of the Mother being sexually abused was "matter-of-fact" and it had been "two years prior" to Mother's allegations. "It had been something that I had understood to be the case all along so that Gerald had no reason to make up anything especially since it was part of the general discussions about parenting at a time when parents were cooperating with each other about the child. (Elaine Jackson FHT) Elaine Jackson believes that "the control and shared custody, I think that was something that has really set off other concerns." The description of the allegations and disclosure by the child "do not sound like sexual abuse to me." (Elaine Jackson FHT) Elaine Jackson also responded that she had "concern that no one who has had any treatment relationship or done any evaluation of the girl has ever talked to a clinician." Two clinicians have dealt with Gerald Anderson for over three years. (Elaine Jackson FHT)

Elaine Jackson was aware of the fact that in therapy it had been discussed by Gerald that he had been paying child support up until approximately the time that the restraining order was filed by Agatha Simpson. (Elaine Jackson FHT)

There were issues between Mother and Father regarding dating. Mother and Father. At one point Father was dating a woman about eight younger than himself and at that time Father felt that Mother was jealous. During the summer of xxxx, Father was concerned about Mother dating a man who was married and the effects that may have on his daughter. Father also felt as though this man was "sleazy." Father was concerned about "the influence of this type of relationship on Carla." Father also described during therapy that he felt "Agatha misrepresented the relationship by lying to him about that dating." (Elaine Jackson FHT)

When Elaine Jackson heard about the allegations of sexual abuse, she was "absolutely shocked." Elaine Jackson stated that "I did not believe that the sexual abuse had occurred, and that's why I was shocked." Ms. Jackson had worked with Father intensively over a long period of time and had often heard him talk about Mother and his daughter in a "very concerned, appropriate way." He was concerned at time about that there was one time when he was unable to see his daughter when it had been arranged. His daughter was sad and he was very upset that that had happened. (Elaine Jackson FHT)

Elaine Jackson has also worked closely with a child psychologist at health services, Dr. Clifford Parmenter. Dr. Parmenter initially saw Gerald Anderson prior to Elaine Jackson becoming his therapist in xxxx. Dr. Parmenter is a child trained psychiatrist who has see Father over a period of time and he was also "deeply shocked" at the allegations. Both Elaine Jackson and Dr. Parmenter had conversations about Father and had heard Father talk about his daughter over a three years of her life and heard him talk about parenting issues and his concerns and "each of us have worked with a lot of people and this is not been our usual experience." (Elaine Jackson FHT) "We realize that he wasn't able to have contact with his daughter's school. She would have things come up such as assemblies, parent-teacher meetings that he did not have legal joint custody" and that "Agatha did not want him to participate in her schooling." One of the things that Elaine Jackson spoke to Father about was how "it was important for him to really be recognized as her father and to have shared custody." (Elaine Jackson FHT)

Elaine Jackson had read the 51B investigation. One thing that concerned her was that after reading the 51B had concerns about "after the SAIN interview in the report there was a call by the mother to DSS. I believe that afternoon. The mother stated that she had taken the little girl for an ice cream cone and said that she reported that Carla had asked mother if mother was "disappointed" in her. Mother answered that she was not disappointed in her. The concern of Elaine Jackson was the use of "the vocabulary whether a 42 year old would actually use the word disappointed." (Elaine Jackson FHT) When Ms. Jackson saw Father, she asked if it sounded like his daughter. Without saying anything else to him he said, "Well no that's a big word for her." She might say were you angry with me. Ms. Jackson stated that Father had seen his daughter a week before the allegations were made. (Elaine Jackson FHT)

Prior to any allegations of inappropriate behavior or any restraining orders, very early on in treatment, Ms. Jackson asked father how parenting went and how the parents were cooperating. She stated that she was impressed that they seemed to be able to work out issues steadily and amicably, and had the ability to cooperate for the good of their daughter regarding the payment of child and visitation. " This is why I also recommended to Gerald that the parents meet with someone to talk about parenting issues including possible joint custody through the court in order to establish that since they had a track record of cooperation." (Elaine Jackson FHT)

Father was "very honest" during therapy. "I have never found him to be untruthful on any matter." (Elaine Jackson FHT)

Testimony of Gerald Anderson, Father

Under oath, Father testified that the allegations of sexual abuse and emotional maltreatment of his daughter Carla are wrong. (Father FHT)

Father wanted him and Mother to meet with a clinician to work out various issues, which included child support and shared legal and physical custody. (Father FHT) Prior to seeing the counselor to speak about shared legal and physical custody visitation and child support, Father had spoken to the Mother about taking the child to Brazil to visit his family. (Father FHT)

Father learned that Mother was dating a married man and Mother subsequently took out a restraining order against Father. (Father FHT)

Father first met Mother when he was hired by Mother at University in 1991 or 1992. Approximately two or three months after being hired by Mother, they began dating. The breakup between Father and Mother happened when Carla was approximately 14 months old. Father was living with the Mother at the time of their breakup and moved out for a couple months, then moved back to Mother's house to live in the basement. Father lived there for approximately six to seven months. Prior to the restraining order which was issued in the fall of xxxx father had keys to Agatha's home as well as to her car. The visitation that Father and Mother worked out when Father moved out of Mother's home was for Father to have Carla on Wednesday nights until Thursday morning and take Carla to school, then have Carla from Saturday at 6:00 until 1:00 on Sunday. Father also stopped by Carla's home almost every morning to drive Carla to school. (Father FHT)

After Father broke up with Mother, he still went on vacations with Mother and his child, on three different occasions to Brazil. Many times they would also go to Mother's house on Cape Cod. Mother owns approximately six apartments in three different homes.

Mother had the financial wherewithal to have the child evaluated for a sexual abuse evaluation which has not been done. Mother earns approximately $68,000 per year. Mother's mother had died a few years earlier and had left Mother approximately a quarter million dollars. The issue of insurance regarding the possibility of doing a sexual abuse evaluation should not have been an issue due to Mother's financial ability to pay for such an evaluation. (Father FHT)

Carla attended the Montessori school in Cambridge five days a week from 9:00 a.m. to 5:00 p.m. Father dropped the child off at the Montessori school many, many times and on his visits would also speak to the teachers involved in Carla's life. Father also picked up Carla at the Montessori school. The school also had knowledge of Gerald being Carla's father. Gerald also spoke to the various teachers about Carla's progress. Father's understanding was that Carla was "doing great" at the Montessori School. (Father FHT) The Montessori school records is marked as Exhibit E.

The Montessori school never brought any inappropriate or bizarre behavior as alleged by the Mother to Father's attention. (Father FHT) When Mother got the restraining order, Father was not allowed to go to the school any more.

Mother was obviously aware that the child was going to the Montessori school. In the 51B report there is no mention of the child attending any school. (51B report; Father FHT)

At the beginning of their relationship Agatha Simpson shared with Gerald Anderson the fact that she had been sexually abused and the Mother talked about that experience. Gerald had never told the Mother that he himself had also been sexually abused.

The meeting between the counselor and Mother and Father was a "disaster." One of the reasons that Father does not trust Mother is because she was seeing a married man and before that she was in a relationship for four years with a man who used to dress up as a woman. Mother was married to a psychiatrist who used to prescribe drugs for himself in Mother's name. Father was very concerned about the men in Agatha's life and their effects it would have on his daughter. (Father FHT)

LAW

Substantial Evidence

Both G.L. c. 30A, ' 1(6) and 110 CMR 480 4.37 define "substantial evidence" as "such evidence as a reasonable mind might accept as adequate to support a conclusion." All the evidence tending to show that the Father had sexually abused his daughter was multi-level hearsay, admissible at the Fair Hearing under G.L. c. 30A 11(2), G.L. c. 119 ' 21, and 110 CMR 10.21 (1993). The question in this case is whether the hearsay presented at the Fair Hearing was reliable. Even then, the review does not end. "Significantly, even when the record contains evidence from which a rational mind might draw the desired inference, the determination must be made upon consideration of the entire record. Cohen v. Board of Registration and Pharmacy, 350 Mass.246, 253, 214 N.E.2d 53 (1966), quoting from G.L. c. 30A 14(8), State Administrative Procedure Act.

"The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Cohen, supra, quoting from Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456 [464-65] 95 L.Ed.456 (1951). It cannot be clearly determined from the record whether the only statement made by the child was regarding sexual abuse. We cannot determine whether the term "bumbum" was spoken by the child or if the usage had been suggested to her. At no time did the 51B Investigator or the SAIN interviewer ask the child what she meant when she said, "I don't want to talk about my bum-bum." It is also unclear if the way the child allegedly described Father's conduct would be generally accurate for a 42 year old child. Edward E. v. Department of Social Services, 42 Mass.App.Ct. 478 (1997).

According to the 51B Investigator during the testimony at the Fair Hearing, there was a contentious litigation Between Mother and Father based upon an outstanding restraining order filed a few months earlier by Mother against Father. The 51B investigator did not explore the possibility that Mother had prompted the child to make the allegations against Father.

The physical examination of the child had been conducted by the child's pediatrician "who found insufficient data to warrant any finding of abuse." Father testified at the Fair Hearing that he had never touched or inappropriately touched his child. (Father FHT)

The reliability of multi-level hearsay statements at a Fair Hearing is not established by the mere fact that they are made admissible as evidence by statute and regulation. Statements of a child are admissible in a civil proceeding if a judge finds the statement are reliable.

For the purposes of finding circumstances demonstrating reliability ... a judge may consider whether the relator documented the child witness's statement and shall consider the following factors: (i) the clarity of the statement, meaning, the child's capacity to observe, remember, and give expression to that which the child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician; (ii) the time, content and circumstances of the statement; (iii) the existence of corroborative evidence of the substance of the statement regarding the abuse including either the act, the circumstances or identity of the perpetrator; (iv) the child's sincerity and ability to appreciate the consequences of the statement. Edward E. v. Department of Social Services, 42 Mass.App.Ct. 478 (1997).

In this matter, there are few if any indicia of reliability in the evidence to support the allegations of sexual abuse and emotional maltreatment. There was nothing in the evidence or circumstances of the child's statement to give meaning to what she meant when she said "I don't want to talk about my bumbum." Therefore, this is anything but a clear disclosure by the child as the meaning can be interpreted in other ways.

There was nothing about the circumstances of the child's statement allegedly made to the Mother that Father inappropriately touched her "that drapes them with the quality of reliability." Edward E. v. Department of Social Services, 42 Mass.App.Ct. 478 (1997). The only person to whom the child allegedly made statements that Father inappropriately touched her was Mother, who did not testify at the Fair Hearing.

The evidence upon which the 51B Investigator has "relied was so persistently encumbered unreliability that it fails to have the character of substantiality which would support the Department's decision to place the father's name on its registry of alleged perpetrators. Edward E. v. Department of Social Services, 42 Mass.App.Ct. 478 (1997).

Support of the 51A report

The issues in this matter are whether the Department had reasonable cause to believe that abuse occurred and, therefore, a basis on which to support the 51A report pursuant to G.L. c. 119, ' 51B and whether there was substantial evidence indicating that the alleged perpetrator was responsible and therefore a basis to list an individual in the Registry of Alleged Perpetrators pursuant to G.L. c. 18B, ' 7(b).

The Department supports a 51A report for abuse if it is persuaded that there is reasonable cause to believe that an incident of abuse by a "caretaker" occurred. 110 CMR 4.32(2). It is undisputed that Mr. Anderson is Carla's father and was entrusted with responsibility for her health and welfare when Carla visited her father. Consequently, Mr. Anderson meets the definition of "caretaker" as defined by Department regulations in 110 CMR 2.0.

"Reasonable Cause to believe" is defined as 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.

 Factors to consider include, but are not limited to, the following: direct disclosure by the child(ren) or caretaker; physical evidence of injury or harm; observable behavioral indicators; corroboration by collaterals (e.g., professionals, credible family members); and the social worker and supervisor's clinical base of knowledge. 110 CMR 4.32(2).

"Abuse" is defined in relevant part as the non-accidental act by a caretaker upon a child under age 18 which "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." This definition is not dependant upon location. 110 CMR 2.0.

The Department's decision to support the 51A report for sexual abuse and emotional maltreatment of Carla and to list FAther in the Registry of Alleged Perpetrators is supported based upon allegations of sexual abuse, all of which were made by Mother (who had a retraining order against Father), one statement made by Carla in response to Mother's desire that Carla would disclose at the SAIN interview, and the child's "behaviors." The 51B investigator acknowledged that Carla would not speak to her and, therefore, could not say whether Carla was "consistent" in her "disclosures." In fact, the 51B investigator admitted at the Fair Hearing that Carla made no direct disclosure. The 51B investigator also admitted at the Fair Hearing that Carla's reluctance to speak could have been hearsay statements from Carla to her Mother alleging sexual abuse by Father. Carla allegedly told Mother that Father had behaved in an inappropriate way. The only direct "disclosure" by Carla during the SAIN interview is where she stated allegedly spontaneously after a twenty-minute interview that "I don't want to talk about my bumbum." There is no evidence as to time, date, location, or how many times these alleged incidences had occurred. There is also no way to tell whether the child was telling the truth or even knew the difference between telling the truth or telling a lie.

CONCLUSION

The child made no disclosures herself. All allegations came from Mother.

The child made one statement ("I don't want to talk about my bumbum"). By the admission of the 51B investigator, this statement could have been construed to mean something other than that the child had been sexually abused. The 51B investigator also admitted that the child's reluctance to speak to anyone regarding the alleged incident could also be construed in other ways.

The timing and motivation of Mother's allegation are suspect. Mother had a restraining order against Father. Mother alleged that the child told her that Father sexually abused her after Father stated that he was going to seek joint legal and physical custody of Carla, and after father had expressed his disapproval of Mother dating a married man. The 51B investigator should have B but did not -- take into consideration the contentious relationship that existed between Mother and Father.

The Department's regulations require that "the Investigation shall include making any collateral contacts necessary to obtain reliable information which would corroborate or disprove the reported incident and the child's condition." 110 CMR 4.27(2). The 51B investigator did not contact the child's school or after-school program or the child's therapist. The enclosed records from the Montessori school provide anything but negative comments about the child's behavior. On the contrary, records state that the Child has been actively involved in the school and has done very well with no behavioral problems whatsoever. Based upon all of the foregoing, the evidence before the Fair Hearing lacks reasonable indicia of reliability to corroborate Carla's one statement. Edward E. v. the Department of Social Services, 42 Mass. App. Ct., at 484.

The 51B investigator did not corroborate Mother's allegation that father had a history of being abused as a child. Collaterals who could have corroborated or disproved Mother's allegations were never contacted by the 51B investigator. Pursuant to Edward E. v. the Department of Social Services, 42 Mass. App. Ct. at 481, quoting Cohen v. Board of Registration of Pharmacy, 350 Mass. 246, 253 (quotations omitted) ("the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.") This was not done.

There was no physical evidence of sexual abuse when the child was examined by Dr. Peterson. Dr. Peterson did not refer the child for further examination. The Department did not take the child for examination which might have proved or disproved Mother's allegations, nor did it arrange for a sexual abuse evaluation.

The requisite indicia of reliability is not established simply because the hearsay is admissible at an administrative agency proceeding. Edward E. v. Department of Social Services, 42 Mass. App. Ct. , 478, 484 (1997). The following factors are relevant in determining the reliability of hearsay; (1) the clarity of the statement; (2) the time, content and circumstances of the statement; (3) the existence of corroborative evidence of the substance of the statement regarding the abuse, including the act, the circumstances or the identity of the perpetrator; and (4) the child's sincerity and ability to appreciate the consequences of the statement. Edward E. v. the Department of Social Services, 42 Mass. App. Ct. at 484 n.9. Again, all allegations came from Mother; the only statement made by the child was under stressful circumstances (for her) and followed a statement by Mother that she wanted the child to speak; there was no corroborating evidence of abuse; and there was no indication that the child could appreciate the consequences of her statement. There is no evidence showing how the 51B Investigator interpreted the child's statement in the full context of Carla's one-line "disclosure."

Pursuant to the Department's regulations, two requirements must be met before an individual can be listed in the Registry of Alleged Perpetrators: (1) the underlying allegation has been supported and referred to the district attorney pursuant to G.L. c. 119, ' 51B, and (2) there is substantial evidence indicating that the alleged perpetrator was responsible. 110 CMR 4.37. "Substantial evidence" is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

The Department's decision to support the 51A for sexual abuse and emotional maltreatment of Carla should be reversed because it was not supported by substantial evidence. For this reason, Mr. Anderson' name should be removed from the Department's Registry of Alleged Perpetrators.