MEMORANDUM OF JANE SMITH

Date: _________ x, xxxx
To: Fiona Simmons, Fair Hearing Officer
From: Kevin Patrick Seaver, Esq.
Re: Fair Hearing of Jane Smith

November x, xxxx

Jane Smith is requesting the reversal of the Department of Social Services' _______, _______ x, xxxx decision to support the _______, _______ x, xxxx 51A alleging physical abuse of Karen Smith, as well as the listing of Jane Smith on the Department's Central Registry and/or Registry of Alleged Perpetrators as a perpetrator of abuse.

The issue presented at the Fair Hearing, held at the _______ DSS office on _______, _______ x, xxxx, and _______, _______ x, xxxx, was whether the Department's decision to support the 51A report for physical abuse and to list mother as an alleged perpetrator of abuse was in conformity with DSS regulations and policies and, if not, whether the violations resulted in substantial prejudice to Jane Smith.

The mother appeals from the determination of the Department of Social Services that moving the child up five stairs constituted "abuse" as that term is defined by statute and regulation. G.L. c. 119, § 51A; 110 CMR § 2.00 (1998).
Mother argues that Department's decision to support the 51A was not adequately supported by the factual record. She further contends that the Department's action amounts to an unjustifiable interference by the Commonwealth with her fundamental rights, under both the United States and Massachusetts Constitutions, to the free exercise of privacy in child rearing. Cobble v. DSS, 430 Mass. 385, 386, 719 NE.2d 500, 502 (1999).

The Department received a 51A report on ______ x, xxxx, at 10:30 a.m., alleging that Karen Smith, DOB x/xx/xx, had been physically abused by her mother, Jane Smith. The "Document Specific Information Regarding the Reported Allegations" section of the report states:

... the child, Karen Smith, came into school today with a big scrape along her left cheekbone that is about 2 1/2 to 3 inches long. When asked Karen stated that her mother, Ms. Jane Smith, is still very upset about Karen's progress report. Karen stated that Ms. Smith picked her up from after school care and took her home. Karen stated that Ms. Smith dragged her up the stairs by her hair .... Karen also told this story to two other people-her teacher Ms. Agnes Ames and to Ms. Sally Simmons who is a school administrator.

. . .

Screener spoke with [the Area Program Manager] regarding a DA referral. It was determined that at this time a DA referral was appropriate as Karen has a mark and she was kicked with a foot.

The "Decision Comment" section of the 51A report states:

The allegations of neglect of Karen Smith, by her adoptive mother Jane Smith are being screened in for physical abuse for the following reasons:

1. Karen stated that her mother Ms. Jane Smith pulled her up the stairs by the hair and kicked Karen in the face with her shoe on.

2. Reporter stated that Karen has a 2 1/2 to 3 inch scrape on the left side of her face.

The report was screened in for a Non-Emergency Response.

On ______ x, xxxx, a 10 day 51B investigation was assigned to Ms. Kira Carp.

The 51B investigator visited the home of the Smiths on ______ x, xxxx, at 5:00 p.m. The 51B investigator spoke to Mother, Father, and Karen Smith during her visit. The 51B investigator did not speak to Peter Smith, who was present in the home, except to say hello and goodbye (51B, Pages 3, 4).

According to the 51B investigator's notes, Ms. Smith stated that the children were "nuts, and playing at the bottom of the stairs." The boys took off when mother went to break up the squabble, but Karen remained to stare mother down. Mother had noticed a mark on Karen after the children had been playing on the stairs and stated that she thought it looked like a rug burn (51B Report, Page 2).

According to the 51B investigator's notes, Mother stated that she does not wear shoes in the home (51B Report, Page 2).

According to the 51B investigator's notes, "Karen had a mark on the left side of her face. Karen stated that she doesn't really know for sure, it could have been an accident by her mother. Karen said that she fell down and Mommy kind of hit her with part of her shoe" (51B Report, Page 3).

The 51B investigator also notes that "Karen said that her mother started to kick her and she fell down, and that that was when she was probably hit in the cheek." Karen stated that her mother had been wearing shoes (51B Report, Page 3).

On ______ x, xxxx, the 51B investigator spoke to the reporter and asked if there were any concerns about the child's behavior. The reporter stated that there were discipline problems in the classroom but "no major concerns." The 51B investigator did not ask for specifics. The reporter also stated that she would have the classroom teacher (Ms. Agnes Ames) call the 51B investigator (51B Report, Page 5).

Although mother had told the 51B investigator that "Karen tells stories to get people in trouble (51B Report, page 2), the 51B investigator did not ask the reporter if the child had problems with telling the truth. The 51B investigator did not ask the reporter if there were any concerns of abuse or neglect regarding the child.

On ______ x, xxxx, the 51B investigator spoke to Karen's pediatrician, Dr. Deanna Wagner, who indicated that Karen was up to date medically and that she had no concerns regarding physical abuse of Karen.

On ______ x, xxxx, the 51B investigator left a message for Ms. Ames to call her (51B Report, Page 5).

On ______ x, xxxx, the 51B investigator sent out a support letter. The disposition comment section of the 51B report states:

The allegation of physical abuse of Karen Smith by mother Jane Smith is being supported for the following reasons:

1.ABUSE - "the non-accidental commission of any act by a caretaker upon a child under the age of 18 which causes, or creates a substantial risk of, serious physical or emotional injury or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a person under the care of that individual".

2. Mrs. Smith admitted to dragging the child up the stairs by her collar, which may have contained her hair as well and putting her in her room and kicking her in the butt.

3. Mrs. Smith admitted to hitting the child on the hands as a form of discipline, as well as moving her when she is not moving fast enough for Mrs. Smith.

4. The child had a two-inch mark on the left side of her face, which appeared to be a scrape, which could have been a rug burn.

5. Karen stated that her mother dragged her up the stairs by her hair and put her in her room and kicked her in the face causing the mark on her face.

6. There are concerns about Mrs. Smith stating that there is an ongoing power struggle between her and Karen."

The Department's regulations at 110 CMR 4.27(2) 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." Given the lack of reliable, corroborated evidence in this case, there is no reasonable cause to believe that physical abuse of Karen occurred.

The 51B investigator left messages for the classroom teacher (Ms. Ames) but did not speak to her by telephone or make any attempt to speak to her in person. The 51B investigator made no attempt to speak to the school administrator (Ms. Simmons).

The 51B investigator made no effort to contact personnel at the After School Program, although the 51B investigator knew that Karen attended the after-school program (51A Report, Page 4, 51B Report, Page 3).

The 51B investigator made no note about whether Ms. Smith was or was not wearing shoes in the home. At the Fair Hearing, the 51B investigator claimed that she did not remember whether Ms. Smith was wearing shoes or not (Testimony of 51B investigator).

The 51B investigator notes that she "asked mother to explain again what had happened after hearing Karen's version of the events" (51B Report, page 4).

However, the 51B investigator made no mention of the fact that Karen told a different story to the reporter (51A Report, page 4) than she had told to the 51B investigator, and had also made contradictory statements to the 51B investigator (i.e.: "Karen said that she fell down and Mommy kind of hit her" and "mother started to kick her and she fell down")(51B Report, page 3).

The 51B investigator did not speak to Peter, who was present and could have corroborated mother's OR Karen's statements.

The concerns of the Department that Ms. Smith stated that there was an ongoing power struggle between her and Karen also did not constitute physical abuse. (Testimony of 51B Investigator.) The 51B investigator admitted at the Fair Hearing that the 51A was being supported for physical abuse based upon the fact that mother had moved the child up five stairs (Testimony of 51B investigator).

The 51B investigator's supervisor testified that physical abuse is the non-accidental commission of any act by a caretaker upon a child under the age of 18 which causes or creates a substantial risk of serious injury. There was no emotional injury or sexual offense of any nature caused by Jane Smith (Testimony of supervisor).

Mother contends that IF Karen's hair had been pulled (and it is unclear whether it was or was not), it was purely accidental. In any event, facilitating the child to her room for a time out would be unlikely to cause even a minor injury.

At the Fair Hearing, Timothy F. Otto testified on behalf of Jane Smith. Mr. Otto, a former DSS supervisor, is an experienced clinician and an acknowledged expert in the area of child abuse. Based upon his review of the 51A, the 51B, the 45 Day Assessment, the psychological evaluation of Karen, conversations with Dr. Joan Johnson, and personal observation of the child on two separate occasions during the 45 Day Assessment period, and based upon his experience, knowledge, skill, and education, Mr. Otto concluded that the Department did not have reasonable cause to believe that Karen Smith had been abused by her mother.

The Fair Hearing Officer must determine whether the Department's decision is supported by substantial evidence. As part of this process, the Fair Hearing Officer examines the entirety of the administrative record and takes into account whatever in the record fairly detracts from the supporting evidence's weight. Cobble v. DSS, 430 Mass. 385, 719 N.E.2d 500 (1999).

The Department supports a 51A report for abuse if it is persuaded that there is a reasonable cause to believe that an incident of abuse by a "caretaker" occurred. 110 CMR § 4.32(2).

It is undisputed that Jane Smith is Karen's mother and was entrusted with responsibility for her health and welfare. Consequently, Jane Smith meets the definition of "caretaker" as defined by 110 CMR § 2.00(7).

An administrative agency such as the Department of Social Services can give probative value to evidence which is exclusively hearsay only if the evidence carries with it an indicia of reliability. Embers of Salisbury v. Alcohol Bev. Control Comm'n, 401 Mass. 526, 530 (1988). The requisite indicium 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 a child's 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. Department of Social Services, 42. Mass. App. Ct., at 484, n. 9.

The hearsay statements made by Karen lack sufficient indicia of reliability to support the Department's decision to support the 51A report for physical abuse and to list Jane Smith in the Central Registry. First, there is an issue as to whether Karen's statements are reliable as: 1) there are inconsistencies in the child's statements; 2) there was no swelling or bruising on the child's face, which one would reasonably expect if the child had been kicked in the face with a shod foot as she claims; 3) there are no supporting statements from collaterals. The 51B investigator could not say what caused the mark, and noted in the 51B report that it "appeared to be a scrape, which could have been a rug burn." The evidence lacks reasonable indicia of reliability to corroborate Karen's statements. Edward E. v. Department of Social Services, 42 Mass. App. Ct. at 484.

"Substantial evidence" as defined by statute is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G.L. c. 30A, § 1(6).

The substantial evidence standard is fairly characterized as a test of rational probability, and thus, an agency's conclusion will fail judicial scrutiny if the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary. Cobble v. DSS, 430 Mass. 385, 719 N.E.2d 500 (1999).

The substantial evidence test accords an appropriate degree of judicial deference to administrative decisions, ensuring that an agency's judgment on questions of fact will enjoy the benefit of the doubt in close cases, but requiring reversal by a reviewing court if the cumulative weight of the evidence tends substantially toward opposite inferences. Cobble v. DSS, 430 Mass. 385, 719 N.E.2d 500 (1999).

"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's and supervisor's clinical base of knowledge. 110 CMR § 4.32(2).

"Reasonable cause to believe" that abuse has occurred means "a collection of facts, knowledge or observations which tend to support or are consistent with the allegations." 110 CMR § 4.32(2) (1966). See Care & Protection of Robert, 408 Mass. 52, 63, 556 NE.2d 1993 (1990) ("reasonable cause" serve as a "threshold function" and means "known or suspected instances of child abuse and neglect").

The 51A report informed the 51B investigator that there had been no prior concerns about possible abuse of the child.

At the Fair Hearing, the 51B investigator testified that she did not find that the child had actually suffered any bruising or swelling as a result of her mother's moving her up the stairs.

The Department's decision to support the 51A report was predicated on there being reasonable cause to believe that the mother's method of disciplining the child, moving her up the stairs, created a "substantial risk" that the child would suffer injury, which "substantial risk" of injury is encompassed by the statutory and regulatory definition of abuse. G.L. c. 119, § 51A, 110 CMR § 2.00.

The definition of "physical injury" in 110 CMR 2.00 is as follows:

(a) death; or

(b) fracture of a bone, a subdural hematoma, burns, impairment of any organ, and any other non-trivial injury; or

(c) soft tissue swelling or skin bruising depending upon such factors as the child's age, circumstances under which the injury occurred, and the number and location of bruises; or

(d) addiction to drug at birth; or

(e) failure to thrive.

Mother's physically moving the child to her room for a time out when the child refused to go did not establish substantial risk of abuse as a basis for the Department of Social Services to support a report of abuse. M.G.L.A. c. 119, § 51A; 110 CMR 2.00.

The moving of the child by the mother up five stairs did not make reasonably probable the Department of Social Services' conclusion that soft tissue swelling or skin bruising was substantially likely to result from mother's method of discipline, as basis for Department of Social Services to support a report of abuse. M.G.L.A. c. 119, § 51A; 110 CMR § 2.00.

While an agency is free to evaluate the evidence in the record in light of its expertise, it cannot rely on this expertise as a substitute for substantial evidence to support its decisions. Cobble v. DSS, 430 Mass. 385, 719 N.E.2d 500 (1999).

The 51B investigator stated that the only physical mark she observed on Karen Smith was the scrape on the child's face. The 51B investigator admitted that the report was not being supported due to the only visible mark on the child's face. (Testimony of 51B investigator.) The two-inch mark (as noted on the 51B report, not the 2˝ to 3 inches in the 51A) on the left side of Karen's face "which appeared to be a scrape, which could have been a rug burn," was not physical abuse (Testimony of 51B Investigator).

There were no other observable marks, swelling or bruising, or injuries of any physical nature on the child's body noted by the 51B investigator who observed the child on _______ x, xxxx. (Testimony of 51B Investigator.)

The 51B investigator admitted that there was confusion as to whether or not there was any of Karen's hair caught up with her collar as mother moved the child up the five stairs. (Testimony of 51B Investigator.)

The 51B investigator admitted that Ms. Smith's admission to hitting the child on the hands as a form of discipline did not constitute physical abuse. (Testimony of 51B investigator.)

There are no details as to time, date, location, or consistency as to whether Ms. Smith's moving Karen when she was not moving fast enough constituted physical abuse. (Testimony of 51B Investigator.)

Mother testified that she did not believe the child had suffered any injury which required examination by a physician. The Department also did not take the child to be examined by a physician.

In the ______ x, xxxx Neuropsychological Assessment by Janice B. Hemmings, Ph.D., there are specific references to Karen's untruthfulness:

Page 3, ¶ 2: "Correspondence between a school administrator and parents indicated concerns regarding lying at school";

Page 4, ¶ 1: "Karen is described as both underactive and, during the last year, often fidgety and out of her chair at school, possibly in an effort to seek attention. Oppositional, resistant and stubborn, Karen often doesn't like to follow rules and restrictions. She denies mistakes and frequently doesn't seem to feel guilty after misbehavior. Lying is not uncommon."

There are also various statements in the report from which one may infer that Karen might neither appreciate the consequences of her actions and statements nor comprehend questions posed to her by the 51B investigator:

Page 4: Her sense of 'appropriateness and proportion' appear to be limited...she has difficulty answering questions regarding how, why and what ... She also has difficulty understanding, expressing ideas and forgetting names ... she appears to process and produce information slowly.

P. 5: Process and production speed appeared slow.

P. 7: Additionally, Karen tends not to see the world as others see it. Her thinking is unusual. Karen's tendency is also to focus on the parts rather than the whole, missing the 'big picture'.

P. 8:[T]hinking is unusual and can become more disorganized with ambiguity. Additionally, Karen tends to miss the "big picture", focusing more on the parts...difficulties in language comprehension and production are found, particularly with word finding and syntactic complexity...Parents also report difficulties with how, why and what, subtleties of speech and syntax.

Massachusetts General Laws c. 119, § 51B(4) sets forth the criteria for both mandatory and discretionary referrals to the District Attorney. In addition:

In 1994, Ch. 119 was amended to allow DSS to make immediate reports to the DA in cases of "serious physical injury". This change allows DSS to contact the DA prior to conducting its investigation.

(Coordinating Investigations of Child Physical Abuse, Page 2).

The department shall notify in writing the district attorney for the county in which the child resides and for the county in which the offense occurred by transmitting to such district attorney a copy of the report required under sections fifty-one A and this section if, after an investigation and evaluation undertaken pursuant to clause (1), the department has reasonable cause to believe that any of the following conditions has resulted from abuse or neglect; provided, however, that the department may immediately report cases of serious physical injury to the appropriate office of the district attorney:

(a) a child has died;

(b) a child has been sexually assaulted ...;

(c) a child has suffered brain damage, loss or substantial impairment of a bodily function or organ, or substantial disfigurement;

(d) a child has been sexually exploited ...;

(e) a child has suffered serious physical abuse or injury that includes, but is not limited to:

1. A fracture of any bone, severe burn, impairment of any organ, or any other serious injury;

2. An injury requiring the child to be placed on life-support systems;

3. Any disclosure of physical abuse involving physical evidence which may be destroyed;

4. Any current disclosure by the child of sexual assault; or

5. The presence of physical evidence of sexual assault.

(M.G.L. c. 119, § 51B.)

The 51A Report noted that Karen had a "scrape" and said that mother had kicked her with a shod foot. There was no attempt to elicit any details about the "scrape," swelling, or bruising. There was no effort to ascertain whether the child needed examination by a physician, nor was there a suggestion to send her to the school nurse. Also, the reporter offered no indication that the "injury" even required First Aid treatment (51A Report, Page 4).

An immediate referral was made to the District Attorney - as DSS should have done if there had been a "serious" injury. However, there was no indication that the scrape on the child's face was a serious injury, the 51A was screened in as a Non-Emergency Response, and it was more than 30 hours before anyone from DSS viewed the child.

Referral to the District Attorney was unwarranted as the decision to refer the matter was made before anyone from the Department of Social Services had viewed or spoken to the child, to the alleged perpetrator, or to any collateral (other than the reporter). None of the criteria for District Attorney referrals set forth in 110 CMR 4.51 or 4.52 or G.L. c. 119, § 51B(4) were met.

Referral to the District Attorney was also unwarranted as the Department had marked the 51A report a Non-Emergency Response (51A Report, Pages 4, 6).

The Department may have been motivated to support the 51A as the matter had been referred to the District Attorney before any determination that the child had incurred a serious injury and before any investigation had taken place (51A Report, page 4).

CONCLUSION

The Department's decision to support the 51A report for physical abuse and to list the appellant as the alleged perpetrator was not done in conformity with Department regulations and policies.

The issues in this matter are: (1) whether the Department had reasonable cause to believe that "abuse" occurred and therefore a basis to support the 51A report pursuant to G.L. c. 119, § 51B; and (2) whether there was substantial evidence indicating that the alleged perpetrator was responsible and therefore a basis to list mother in the Central Registry.

Mother asserts that there was no "abuse"; nor was there any "injury" as injury is defined in 110 CMR 2.00.

Mother also asserts that inconsistent and contradictory statements by the child make her an unreliable reporter, and that there was no corroborating evidence by collaterals. There is doubt that the child could appreciate the enormity and possible consequences of her accusations. There is also a question of whether the child could fully comprehend the questions being asked of her in the brief time the 51B investigator spoke to her. The 51B investigator claimed to have spent one-half hour interviewing the child; Mother puts the time closer to 15 or 20 minutes.

The 51B investigator saw no marks except for one scrape on the child's face, which could have been a rug burn. The Department's investigator did not observe any physical injury or marks attributable to the mother's actions of carrying the child up five stairs.

The Department's decision to support the 51A report for physical abuse of Karen should be reversed. The Department's decision to list Jane Smith is not supported by substantial evidence.

Based upon the information contained in this Memorandum, Jane Smith respectfully requests that the Fair Hearing Officer reverse the 51B decision to support neglect in this matter and remove Jane Smith's name from the Central Registry and/or List of Alleged Perpetrators.