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Department of Children And· Families Central Administrative Office 600 Washing

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Department of Children And· Families Central Administrative Office 600 Washing ·Executive Office of Health and Human Services Department of Children and· Families Central AdministrativeOffice th 600 Washington Street, (i Floor Boston, Massachusetts 02111 Linda S. Spears, Commissioner Voice: (617) 748-2000 Fax: · (617) 261-7428 INTHE MATTER OF: LB Fair Hearing# 2017-0021 FAIR HEARING DECISION Appellant,LB, appealed thedecis ion of the Department of Children and Families, pursuantto M. G.L. c.119, §51B, to supportallegatio ns of neglect of J and E. Procedural History On December 5; 2016, the Departmentof Childrenand Families ("the Department")received a report, pursuantto M.G.L. c. 119, §SIA, allegingphysical abuse of J andEby theirfoster mother, LB ("Appellant"). On December 27,_2016, the Departmentd_ecided to support the allegations of neglect, pursuant to M.G.L. c. 119, §51B, o� behalfof J and Eby Appellant: The Departmentnotified Appellant of its decision andof her rightto appeal. Appellantmade a timelyrequest for a Fai_rHearing pursuant to 110 C.M.R. § 10.06 . .The Fair Hearingwas held on June2, 2017 at the Department's Central Officein Boston, Massachusetts. Inaddition to the Hearingofficer, thefollowing persons appeared at the Fair Hearing: LB Appellant JB. Witness/Husbandof Appellant TH DepartmentInvestigator IC ProgramService Coordinator Also inattendance was·JR, interpreter. In acco_rdance with110 C.M.R. §10.03, theHearing Officer attests· to impartiality in this matter, having no direct or indirect interest, personalinvolvement, or bias in this case. The Fair Hearingwas digitally recorded. All witnesses were swornin to testify underoath. The record closed upon conclusion of the oralevidence. The followingdocumentary evidence was entered into the record forthis Fair Hearing: For the Department: ExhibitA Intake Report- Institutional Abuse Exhibit B Child-Abuse/NeglectNon-Emergency Response Exhibit C Departmententry letter Exhibit D . Departmentsupport letter For Appellant: Exhibit 1 · Fair Hearingrequest and Departmentsupport letter Exhibit 2 UnemploymentAssistance Hearing Appeal Results The Hearing Officerneed not strictly followthe rules of evidence .... Only . evidence whichis relevantand material may be admittedand may formthe basis of the decision. 110 C.M.R. § 10.21 Statement of the Issues The issue presented in this Fair Hearing is whether, based upon the evidence and the hearing record as a whole, and on theinformation av ailableat the time of and subsequentto the investigation, the Department'sdecision or procedural action in supportingthe 51A report violated applicable statutory or regulatory requirements, or the Pepartment'spolicies or procedures, andresulted in substantialprejudice to the Appellant;if there is no applicablestatute, policy, regulationor procedure, whether the Department failed to withact a reasonable basis or in a reasonable mannerwhich resulted in substantial ··prejudiceto the Appellant; fora decision to supporta report of abuse or· . neglect, giving due weight to the clinicaljudgments of the Departmentsocial workers, whether there was reasonable cause to believe that a child had been abused or neglected. 110 C.M.R. §10.05 Findings of Fact On the basis of my assessment of all the evidence, I make the following factual findings: 1. J, age eight at thetime in question, was a childin the custody of theDepartment. [Exhibit B] 2. E, age five atthe time in question, was a child in the custody of the Department. [Exhibit B] 3. J and E areunrelated. [ExhibitB] 4. At the tim� in question, Appellantwas a foster parentfor- a Department contracted agency. She had been a-fosterparent foreleven years [Exhibit B; Testimony ofAppellant] 2 5. In addition to Appellant,Appellant's husband and eighteen yearold daughter, D, lived in Appellant'shome. [Exhibit B; Testimony of Appellant; Testimony of JB] 6. � 2016, J and E were placed in Appellant's fosterhome. [Exhibit B, p. l] 7. As thefoster parentfor J andE, Appellantis deemed their caregiver pursuantto the Department'sProtective Intake Policy. See below: [Exhibit B; Testimony of Appellant] • 8. J and E both have significanttrauma histories. J has witnessedsevere domestic violence, has intervenedon occasions where his motherand aunt were being assaulted, has been exposed to drugand gang activity, has been physically abused by his aunt,and has been an "accomplice" to his auntrobbing a laundromat. E was · exposed to serious domestic violence andhad some severe behavioralissues, including being. violent when he did not get his own way. [Exhibit B, pp.7, 1 O; Testimony of Investigator] 9. J had had a significantamount of disruption and change in his living situations during the yearprevious to his placement withAppellant. J had lived with his mother,then his guardian/aunt, andthen in two fosterhomes. [Exhibit B, p.2] · 10. J's care and protection attorney feltthat J was "not themost accuratereporter." [Exhibit B, p.2] 11. Appellant's home was E's fifthfoster placement in ten months. [Exhibit B. p.7] 12. Bothboys were hyperactive and.exhibitedproblematic behaviors in Appellant's home. [Testimony of Appellant;Exhibit B, pp.5-6] 13. J had struggles withE fromthe outset of his placement in App'ellant' s home. J wanted whatever E had and wouldtry to. take it away fromE, even if it was the same as a toy that J alreadyhad. [Testimony of Appellant; Exhibit B, _p.1) 14. Appellant feltthat she had to protect E fromJ as J was bigger and stronger. [Testimony of Appellant) 15. In mid-November 2016, J reported to his individual therapistthat he "really liked" Appellant's fosterhome. [Exhibit B, p.2] 16. On the Saturdaybefore December 5, 2016, E went into D's room while she was doing homework, took everything out of her bag, screamed,-and slammeddoors. [Exhibit B, p.2] 17, By December 5, 2016, Appellant was considering having one of the children removed fromher home due to theirbehaviors and· constant fightingwith each other. She did not know which boy she wanted removed as she cared about both of themand wanted both of them. On December 5, 2016, Appellant discussed thiswith E's adoption worker andwith her ■••t worker, IC.' Appellantwanted to wait until after 3 Christmas to have one of the childrenremoved as she did.not want to disrupt their Christmas. [Testimony of Appellant;Testimony of- worker} 18. J's careand protection attorneyhired an evaluator to assess the extentof J's trauma history andhis needs. On December 5, 2016, J had his firstmeeting withthe evaluator. j disclosed that:Appellant had sla pped him on thebutt and theback; he got hit a lot; Appdlant had toldhim he was not allowed to tell anyonethat he was getting hit; he would get in trouble;E was also hit. [Exhibit B, pp.5; Exhibit A] 19. J believed that adults could hit children as much as they wanted. [Exhibit B;pp.5,10] 20. Any form of physicaldiscipline would be completely against any of the trauma evaluator'streatment recommendations fora youthwith J's history. [Exhibit B, p.SJ 21. On December 5, 2016, the Departmentreceived a report, pursuantto M.G.L., c.119, §5 lA, alleging physical abuseof J and Eby Appellant. The Departmentinitiated an investigation of the subject allegations. [Exhibit AJ 22. On December 5, 2016, the Departmentremoved E and J fromAppellant's home and placed them in separatefoster homes. [Exhibit A; Exhibit B] 23. On December 6, 2016, E's schoolcounselior spoke withE .. E told her thatAppellant would hit him and J in the arms. [Exhibit B, p.2] 24. On or aboutDecember 8, 2016, J had a situation at schoolduring which he had to be restrained. J accused school staffof choking him during thisrestraint. It took J an hourto calm down. [ExhibitB, pp.3-4]. 25. On December 9, 2016, J informedthe Department'sinvestigator that: heliked Appellant'sfoster ho me betterthan his new fosterhome because Appellant�shome had video games; D had scratched his neck at Appellant'shome; when he got in trouble at Appellant'shome, Appellanthit him; Appellant had thrownhim on the ground andthrown him in some trash; Appellant had hit him with an open hand on his head and it had hurt; Appellant hadhit him on thebutt over his clothes; E had also -been hit; J had been locked in.a closet and in the basement; E had been locked in the bathroom. [Exhibit B, p.4] 26. The investigator observed a small, old healing scratch on the inside of J's right hand which J reported Appellanthad caused by hitting himin the hand. [Exhibit B, p.4] 27. On December 9, 2016, E informed the Department'sinvestigator that: he.did not like Appellant'shome; when he did not followdirections at Appellant's home,Appellant hithim; Appellant hit him on his cheek withan open handwhen ·E woke her up; Appellant also hit him onhis cheek and armand pinched hisarm when he did not listen; Appellant locked himin the bathroom andhe would turnon the light because he was scared. [ExhibitB, p.4] 4 28. J and E were allowed to watch violent mo:viesat Appellant'shome. J reportedthat he was not scared during any of these movies but E was. [Exhibit B, p. l OJ 29. The Department'sinvestigator observed that the downstairs bathroom at Appellant's home did not have a manner by which to lock the door fromthe outside. The investigator did not observe the upstairs·bathroomdoor. Appellant had recently · moved to this home with her familyand the two fosterchildren, J andE. [ExhibitB, pp.2,6] 30. J scratched himself excessively at his new fosterhome. [Exhibit B, p_.4] 31. In his twosub sequent trauma evaluationsessions, J continued to maintainthat he was hit at Appellant's home and that Appellant had told himnot to tell anyone what happened in the home. J alsoreported to the evaluator thathe had been hit by his aunt. [E�bit B, p. l O] 32. On December 27, 2016, the Department supported allegations of neglect of J andE by Appellant. The Departmentdid not supportallegations of physical abuse as the informationgathered did not rise to thelevel of abuse.
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