Arnone v. Commissioner of the Department of Social Services

680 N.E.2d 945, 43 Mass. App. Ct. 33, 1997 Mass. App. LEXIS 135
CourtMassachusetts Appeals Court
DecidedJune 24, 1997
DocketNo. 95-P-1619
StatusPublished
Cited by35 cases

This text of 680 N.E.2d 945 (Arnone v. Commissioner of the Department of Social Services) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnone v. Commissioner of the Department of Social Services, 680 N.E.2d 945, 43 Mass. App. Ct. 33, 1997 Mass. App. LEXIS 135 (Mass. Ct. App. 1997).

Opinion

Kass, J.

An administrative hearing officer of the Department of Social Services (DSS) determined after hearing that there was reasonable cause to believe that Alice Arnone, a day care teacher, had emotionally maltreated a child in her care. DSS thereupon supported a report under G. L. c. 119, § 51A, ascribing to Arnone emotional injury of the child in question. See G. L. c. 119, § 51B. Upon judicial review under G. L. c. 30A, § 14, a judge of the Superior Court concluded that there was substantial evidence supporting the administrative agency order and affirmed it. We do not think the agency action was so supported and reverse the judgment.

[34]*34There is no claim of violation of constitutional provision, overreaching of statutory authority, error of law, or unlawful procedure. See G. L. c. 30A, § 14(7)(a)-(á). The focus of review, therefore, is whether substantial evidence supported the agency decision, and, if it did, the agency decision shall stand. Tenneco, Inc. v. Commissioner of Rev., 401 Mass. 380, 383 (1987). Hickey v. Commissioner of Pub. Welfare, 38 Mass. App. Ct. 259, 262 (1995). Substantial evidence, as a matter of statutory definition, is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6), as inserted by St. 1954, c. 681, § 1. That the record contains some evidence from which a rational mind might draw an inference in support of the agency conclusion does not dispose of the reviewing court’s inquiry. New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981). Consideration of whether an agency decision is supported by substantial evidence is on the entire administrative record and “take[s] into account whatever in the record fairly detracts from [the evidence’s] weight.” Ibid. Pyfrom v. Commissioner of Pub. Welfare, 39 Mass. App. Ct. 621, 624-625 (1996). Salaam v. Commissioner of Transitional Assistance, post 38 (1997). At the same time, a court gives due weight to the experience and specialized competence of the agency. Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). The approach is one of judicial deference and restraint, but not abdication. Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 572 (1996).

With those principles in mind, we turn to the administrative record,2 in which there was evidence of the following. On March 2, 1994, DSS received a § 51A report of an incident of sexual abuse by Amone involving a four year old boy, whom we shall call Alan. The child attended a day care center at which Amone worked as a teacher. A DSS social worker who was assigned to the case reported that she had been told [35]*35by Alan’s mother that Amone had touched and hurt his “gigi” (penis). Alan also talked to his mother about a blue car, a ball, and a knife. Alan’s mother also said to the investigator that for three days after his “gigi” was hurt the child complained about going to the bathroom because it would hurt.

A teacher at the day care center, who was asked by Alan’s mother to question him, reported him to the investigator as saying that Amone had put a ball in his “gigi” and made it hurt. Alan told an interviewer from SAIN (Sexual. Abuse Investigation Network) that the teacher “just cut my ‘gigi’ with a knife” and put a “tiny ball in.” In another version, the child has Ar-none taking his pants off, ripping his “gigi,” and putting it inside of a bottle. When the interviewer asked Alan whether it was a bottle or a ball he answered, “Remember, you saw her do it.” The interviewer reminded Alan that she was not there and asked if anyone else had been. Alan first said “no,” then said it had happened in the circle room and that other children had been there, but then that the incident had occurred in the bathroom and no one else was there. It was good to lie, Alan told the SAIN interviewer, explaining that it was good because “he didn’t do it on purpose.”

A physician who examined Alan found no marks on his penis, no evidence of sexual abuse or urinary tract infection, a possible condition the physician considered because of the reported difficulty in urinating. There was evidence that Arnone sometimes spoke harshly to children at the day care center, and she had once been reprimanded for treating children too roughly, in the physical sense, when they had disobeyed her.

To support a report for emotional maltreatment, DSS must have reasonable cause to believe that a child incurred serious emotional injury at the hands of a caretaker. See G. L. c. 119, § 5 IB, and 110 Code Mass. Regs. § 4.32(2) (1993). “Serious emotional injury” is “an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child’s ability to function within normal range of performance and behavior.” 110 Code Mass. Regs. § 2.00 (1987). The evidence [36]*36before the fair hearing officer consisted of multilevel hearsay3 about a report, told three times, by a four year old that his teacher had cut or cut off his penis and put a ball in it or put it in a bottle. Manifestly that had not occurred, as the boy’s penis, on examination, was securely attached, unmarred and unscarred. Confronted with inescapable evidence that the incident had not occurred as reported by the child, the DSS investigator concluded that there was not evidence to support the § 51A complaint of sexual abuse. The investigator, a social worker with no special training in child psychology — at least so far as appears in the record — retreated to a determination that the teacher had inflicted emotional injury. In support of that conclusion, the DSS investigator pointed to the mother’s report that Alan did not want to go to the bathroom for three days, although he did go.

In Sinclair v. Director of the Div. of Employment Sec., 331 Mass. 101, 103 (1954), the court held that evidence that was exclusively hearsay could not constitute substantial evidence before an administrative agency. Since then Massachusetts cases have consistently danced around whether that principle continues to apply in the wake of the adoption, also in 1954, of the State Administrative Procedure Act, G. L. c. 30A.4 See Olde Towne Liquor Store, Inc. v. Alcoholic Bevs. Control Commn., 372 Mass. 152, 154 (1977); United Food Corp. v. Alcoholic Bevs. Control Commn., 375 Mass. 238, 244 (1978); LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459 (1983); Burlington Package Liquors, Inc. v. Alcoholic Bevs. Control Commn., 7 Mass. App. Ct. 186, 190 (1979); Boylston-Washington, Inc. v. Alcoholic Bevs. Control Commn., 8 Mass. App. Ct. 396, 398-399 (1979). In all those post -Sinclair cases, there was some primary evidence to give substantiality to the evidence before the agency, thus rendering the “hearsay only” question academic.

Here, the agency determination has overtones of a finding of criminal conduct and results in reports — to the Office for [37]*37Children and the teacher’s employer — likely to cast a shadow over the person concerned indefinitely.

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Bluebook (online)
680 N.E.2d 945, 43 Mass. App. Ct. 33, 1997 Mass. App. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnone-v-commissioner-of-the-department-of-social-services-massappct-1997.