NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-565
BENJAMIN PIERCE
vs.
DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an investigation under G. L. c. 119, § 51B (51B
investigation), the Department of Children and Families
(department) supported a report under G. L. c. 119, § 51A (51A
report), that Benjamin Pierce neglected a child in his care.
Pierce requested a fair hearing, at the conclusion of which a
hearing officer affirmed the department's decision to support
the allegation of neglect. Pierce then sought judicial review
of the hearing officer's decision under G. L. c. 30A, § 14. On
the parties' cross-motions for judgment on the pleadings, a
Superior Court judge allowed the department's motion, and Pierce
appeals. We affirm. Background. We summarize the hearing officer's findings of
fact. On April 26, 2023, the department received a 51A report
alleging that Pierce, a teacher, neglected a seven-year-old
student (child). According to the 51A report, a second teacher
was in the school gymnasium and saw the child sitting on the
floor with a ball next to him. Another student (student L) told
the second teacher that Pierce threw the ball at the child's
face because Pierce was angry that the child had hurt a third
student (student S). As stated in the 51A report, an internal
investigation by the school had revealed that the child, running
to get a ball, elbowed student S on accident; Pierce then told
the child to sit out and threw the ball at him out of anger,
hitting his face. The child was not injured.
During the 51B investigation, a department response worker
interviewed the child, student L, student S, the second teacher,
and Pierce. The three children, interviewed separately, told
the same story: the incident between the child and student S
was accidental, but Pierce became angry, told the child to sit
against the wall, and threw the ball at him, striking him on the
side of his face. The child had earlier described the incident
in the same way to his mother.
The second teacher told the response worker that she did
not see what happened but heard the ball hitting something or
someone. Almost immediately, student L came to her and said
2 that Pierce had hit the child in the face with the ball. The
child and student S told the second teacher the same story. The
response worker viewed the ball, which was "slightly smaller
than a kickball" and made of "firm foam with a thin plastic
outer layer referred to as 'gator skin.'"
Pierce told the response worker that he was frustrated when
the child hit student S, but he calmed down within a minute or
two. According to Pierce, he then asked the child to rejoin the
game and tossed the ball to him. The child missed the ball,
which bounced off the wall and brushed the side of his face.
Pierce denied hitting the child intentionally.
At the fair hearing, the response worker testified about
the results of the 51B investigation, consistently with the
facts set out above. Pierce also testified consistently with
what he told the response worker during the 51B investigation.
Based on all the evidence before her, which included the 51A
report and the 51B investigation report, the hearing officer
affirmed the department's decision to support the allegation of
neglect, concluding that the evidence was sufficient to
establish reasonable cause to believe that the neglect occurred.
Discussion. We review a final agency decision to determine
whether it is supported by substantial evidence, meaning "such
evidence as a reasonable mind might accept as adequate to
support a conclusion." B.K. v. Department of Children &
3 Families, 79 Mass. App. Ct. 777, 780 (2011), quoting G. L.
c. 30A, § 1 (6). Furthermore, in an appeal involving a decision
by the department to support an allegation of abuse or neglect,
we must also consider the low evidentiary threshold that applies
at the administrative level. In particular, to support such an
allegation, there need only be "reasonable cause to believe that
an incident (reported or discovered during the investigation) of
abuse or neglect by a caretaker did occur" (emphasis omitted).
Lindsay v. Department of Social Servs., 439 Mass. 789, 797
(2003), quoting 110 Code Mass. Regs. § 4.32(2). At the fair
hearing, the hearing officer must then determine "whether, based
on all information then available (which may take into
consideration information not considered by the investigator
during the original investigation), there was -- and still is --
'reasonable cause to believe' that the child was abused or
neglected." Lindsay, supra at 798. The inquiry on judicial
review thus becomes whether there was "'substantial evidence'
supporting the conclusion that there was 'reasonable cause to
believe'" that the plaintiff committed abuse or neglect. Id.
Here, substantial evidence supported the hearing officer's
decision that Pierce neglected the child by failing to provide
him with minimally adequate care. The hearing officer expressly
found the child's statements to be reliable, observing that
"[h]e gave a consistent account of what occurred to multiple
4 people." The hearing officer further observed that the child's
statements were corroborated by others, including two of his
classmates, and that none of the children had any motive to lie.
Based on the children's accounts, the hearing officer
permissibly found that Pierce hit the child with the ball
intentionally, and not accidentally as he claimed. See G.R. v.
Department of Developmental Servs., 84 Mass. App. Ct. 791, 794
(2014) (reviewing court must defer to agency's subsidiary
factual findings, credibility determinations, and inferences
drawn from the evidence).
The hearing officer's factual findings were in turn
sufficient to support a determination of neglect as a matter of
law. The department's regulations define "neglect" to include a
"failure by a caretaker,[1] either deliberately or through
negligence or inability, to take those actions necessary to
provide a child with minimally adequate . . . emotional
stability and growth, or other essential care." 110 Code Mass.
Regs. § 2.00. It was reasonable for the hearing officer to
conclude that Pierce deprived the child of minimally adequate
emotional stability and growth by throwing the ball at his face
out of anger, causing the child to become upset and student L to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-565
BENJAMIN PIERCE
vs.
DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an investigation under G. L. c. 119, § 51B (51B
investigation), the Department of Children and Families
(department) supported a report under G. L. c. 119, § 51A (51A
report), that Benjamin Pierce neglected a child in his care.
Pierce requested a fair hearing, at the conclusion of which a
hearing officer affirmed the department's decision to support
the allegation of neglect. Pierce then sought judicial review
of the hearing officer's decision under G. L. c. 30A, § 14. On
the parties' cross-motions for judgment on the pleadings, a
Superior Court judge allowed the department's motion, and Pierce
appeals. We affirm. Background. We summarize the hearing officer's findings of
fact. On April 26, 2023, the department received a 51A report
alleging that Pierce, a teacher, neglected a seven-year-old
student (child). According to the 51A report, a second teacher
was in the school gymnasium and saw the child sitting on the
floor with a ball next to him. Another student (student L) told
the second teacher that Pierce threw the ball at the child's
face because Pierce was angry that the child had hurt a third
student (student S). As stated in the 51A report, an internal
investigation by the school had revealed that the child, running
to get a ball, elbowed student S on accident; Pierce then told
the child to sit out and threw the ball at him out of anger,
hitting his face. The child was not injured.
During the 51B investigation, a department response worker
interviewed the child, student L, student S, the second teacher,
and Pierce. The three children, interviewed separately, told
the same story: the incident between the child and student S
was accidental, but Pierce became angry, told the child to sit
against the wall, and threw the ball at him, striking him on the
side of his face. The child had earlier described the incident
in the same way to his mother.
The second teacher told the response worker that she did
not see what happened but heard the ball hitting something or
someone. Almost immediately, student L came to her and said
2 that Pierce had hit the child in the face with the ball. The
child and student S told the second teacher the same story. The
response worker viewed the ball, which was "slightly smaller
than a kickball" and made of "firm foam with a thin plastic
outer layer referred to as 'gator skin.'"
Pierce told the response worker that he was frustrated when
the child hit student S, but he calmed down within a minute or
two. According to Pierce, he then asked the child to rejoin the
game and tossed the ball to him. The child missed the ball,
which bounced off the wall and brushed the side of his face.
Pierce denied hitting the child intentionally.
At the fair hearing, the response worker testified about
the results of the 51B investigation, consistently with the
facts set out above. Pierce also testified consistently with
what he told the response worker during the 51B investigation.
Based on all the evidence before her, which included the 51A
report and the 51B investigation report, the hearing officer
affirmed the department's decision to support the allegation of
neglect, concluding that the evidence was sufficient to
establish reasonable cause to believe that the neglect occurred.
Discussion. We review a final agency decision to determine
whether it is supported by substantial evidence, meaning "such
evidence as a reasonable mind might accept as adequate to
support a conclusion." B.K. v. Department of Children &
3 Families, 79 Mass. App. Ct. 777, 780 (2011), quoting G. L.
c. 30A, § 1 (6). Furthermore, in an appeal involving a decision
by the department to support an allegation of abuse or neglect,
we must also consider the low evidentiary threshold that applies
at the administrative level. In particular, to support such an
allegation, there need only be "reasonable cause to believe that
an incident (reported or discovered during the investigation) of
abuse or neglect by a caretaker did occur" (emphasis omitted).
Lindsay v. Department of Social Servs., 439 Mass. 789, 797
(2003), quoting 110 Code Mass. Regs. § 4.32(2). At the fair
hearing, the hearing officer must then determine "whether, based
on all information then available (which may take into
consideration information not considered by the investigator
during the original investigation), there was -- and still is --
'reasonable cause to believe' that the child was abused or
neglected." Lindsay, supra at 798. The inquiry on judicial
review thus becomes whether there was "'substantial evidence'
supporting the conclusion that there was 'reasonable cause to
believe'" that the plaintiff committed abuse or neglect. Id.
Here, substantial evidence supported the hearing officer's
decision that Pierce neglected the child by failing to provide
him with minimally adequate care. The hearing officer expressly
found the child's statements to be reliable, observing that
"[h]e gave a consistent account of what occurred to multiple
4 people." The hearing officer further observed that the child's
statements were corroborated by others, including two of his
classmates, and that none of the children had any motive to lie.
Based on the children's accounts, the hearing officer
permissibly found that Pierce hit the child with the ball
intentionally, and not accidentally as he claimed. See G.R. v.
Department of Developmental Servs., 84 Mass. App. Ct. 791, 794
(2014) (reviewing court must defer to agency's subsidiary
factual findings, credibility determinations, and inferences
drawn from the evidence).
The hearing officer's factual findings were in turn
sufficient to support a determination of neglect as a matter of
law. The department's regulations define "neglect" to include a
"failure by a caretaker,[1] either deliberately or through
negligence or inability, to take those actions necessary to
provide a child with minimally adequate . . . emotional
stability and growth, or other essential care." 110 Code Mass.
Regs. § 2.00. It was reasonable for the hearing officer to
conclude that Pierce deprived the child of minimally adequate
emotional stability and growth by throwing the ball at his face
out of anger, causing the child to become upset and student L to
seek assistance from the second teacher. See Carey v.
Pierce does not dispute that he qualifies as a 1
"caretaker."
5 Commissioner of Correction, 479 Mass. 367, 371 (2018) (court
must defer to agency's reasonable construction of regulation);
B.K., 79 Mass. App. Ct. at 781-782 (substantial evidence
supported finding that father failed to provide child with
minimally adequate emotional stability and growth, where father
violated court order by visiting child's school and sending her
letter and gifts to gain advantage in custody proceedings);
John D. v. Department of Social Servs., 51 Mass. App. Ct. 125,
133 (2001) (evidence that father allowed children to witness
domestic violence supported finding that he failed to provide
them with minimally adequate emotional stability and growth).
Although Pierce points out that the child was not injured, the
department need not wait until actual injury has occurred to
support an allegation of neglect. See Lindsay, 439 Mass. at
797.
We are unpersuaded by Pierce's contention that the hearing
officer's decision must be set aside because she did not make
express credibility determinations in the face of conflicting
testimony from the response worker and Pierce. Unlike in the
cases that Pierce cites, the response worker was not a
percipient witness; she did not testify about what occurred in
the gymnasium (nor could she because she was not there), but
rather about what she learned during the 51B investigation.
Absent any indication that the response worker fabricated the
6 results of her investigation, her credibility was not at issue.
Thus, this is not a case where an express analysis of her
credibility was required. Cf. Herridge v. Board of Registration
in Med., 420 Mass. 154, 163-165 (1995) (express analysis of
credibility required where physician and patient gave
conflicting testimony about duration of physician-patient
relationship and portions of patient's testimony gave rise to
inference of fabrication).
We are further unpersuaded by Pierce's contention that the
response worker's credibility was at issue because her testimony
showed that she was biased. In so arguing, Pierce points to the
response worker's failure to ask certain follow-up questions
when interviewing witnesses and quarrels with her word choices,
arguing, for instance, that she embellished her report by
stating that the children gave "the exact same account" of the
incident while admitting later at the hearing that the
children's accounts were not "the exact same word-for-word
statements." Suffice it to say that we have reviewed each of
Pierce's assertions and conclude that none credibly demonstrates
that the response worker was biased. The response worker
consistently testified at the hearing that, despite some
imprecision in word choices, the substance of her report was
accurate. The hearing examiner implicitly credited that
7 testimony, as was within her province to do. See G.R., 84 Mass.
App. Ct. at 794.
Pierce further claims that the hearing officer erred by
finding that he admitted to throwing the ball "at" the child,
when he actually testified that he threw the ball "to" the
child. But Pierce does not explain how this word choice
constitutes reversible error where elsewhere in her decision the
hearing officer acknowledged that Pierce "denied he
intentionally hit the child with the ball" and instead claimed
that "he tried to get the child back in the game and 'tossed'
the ball to the child and it bounced off the wall and skim[med]
the child's head." Pierce has therefore failed to demonstrate
that his substantial rights were prejudiced. See G. L.
c. 30A, 14 (7).
Finally, Pierce challenges certain aspects of the judge's
decision, claiming among other things that the judge misstated
the facts. But on appeal in a case brought under G. L. c. 30A,
§ 14, our review is of the agency's decision, and we owe no
deference to the conclusions of the judge. See Commercial Wharf
E. Condominium Ass'n v. Department of Envtl. Protection, 99
Mass. App. Ct. 834, 840 (2021). Thus, any errors in the judge's
decision are immaterial.
8 To the extent we have not specifically addressed any of
Pierce's arguments, we see nothing in them that warrants
overturning the judgment.
Judgment affirmed.
By the Court (Shin, Walsh & Allen, JJ. 2),
Clerk
Entered: March 30, 2026.
2 The panelists are listed in order of seniority.