Argued Sept. 13, 1999.
Decided Nov. 17, 1999.
Father
appealed the Department of Social Services' decision to support a
report of abuse, based on allegations that father spanked nine-year-old
child with a belt. The Superior Court Department, John C. Cratsley, J.,
affirmed. Father's application for direct appellate review was granted.
The Supreme Judicial Court, Lynch, J., held that the evidence did not
support the Department's finding of abuse or substantial risk of abuse.
Vacated and remanded.
West Headnotes
[1]
Reviewing court should
defer
to the agency on questions of fact and reasonable inferences drawn from
the record.
[2]
That
the record may contain some evidence from which a rational mind might
draw an inference in support of the agency's decision does not dispose
of the reviewing court's inquiry; rather, to determine whether an
agency's decision is supported by substantial evidence, the court
examines the entirety of the administrative record and takes into
account whatever in the record fairly detracts from the supporting
evidence's weight.
[3]
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.
[4]
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.
[5]
Nine-year-old
child's statements that spankings by father with belt left temporary
red or pink marks on his buttocks that would fade after ten minutes or
so did not establish abuse or substantial risk of abuse, as basis for
Department of Social Services to support a report of abuse. M.G.L.A. c.
119, § 51A; Mass.Regs. Code title 110, § 2.00.
[6]
Pediatrician's
statement that father's use of belt to spank nine-year-old child
“wouldn't help” the boy's arthrogryposis, a congenital muscle
condition, and pediatrician's voicing of his concerns in response to
questions from investigator that apparently did not accurately describe
the nature of the corporal punishment but merely referred loosely to
father's “using a belt to discipline” the child, did not establish
substantial risk of abuse, as basis for Department of Social Services
to support a report of abuse. M.G.L.A. c. 119, § 51A; Mass.Regs.
Code title 110, § 2.00.
[7]
It
is for the agency, not the reviewing court, to weigh the credibility of
witnesses and resolve factual disputes involving contradictory
testimony; nevertheless, under the substantial evidence test, the
reviewing court may disregard supporting testimony that cannot
reasonably form the basis of impartial, reasoned judgment.
[8]
Allegations
that father had spanked nine-year-old child with belt five or six times
during preceding seven-month period, that father's demonstration on
sofa cushion of force he used on child made “a solid smack,” and
child's own report of temporary red or pink marks on his buttocks did
not make reasonably probable the Department of Social Services'
conclusion that soft tissue swelling or skin bruising was substantially
likely to result from father's method of corporal punishment, as basis
for Department's decision to support a report of abuse. M.G.L.A. c.
119, § 51A; Mass.Regs. Code title 110, § 2.00.
[9]
Department
of Social Services' willingness to close the case after parents
declined to participate in counselling on voluntary basis confirmed
that Department's decision to support report of abuse, based on
father's alleged spanking of nine-year-old child with belt, was not
founded on rational inferences drawn from the record. M.G.L.A. c. 119,
§ 51A; Mass.Regs. Code title 110, §§ 2.00, 9.02, 9.04.
[10]
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.
[11]
The
principle of judicial deference to agency judgments on factual issues
does not require reviewing court to abdicate its responsibility,
pursuant to the State Administrative Procedure Act, to review the
sufficiency of the factual record. M.G.L.A. c. 30A, § 14(7)(e, f).
[12]
Judicial
deference to an agency's adjudicatory determinations is founded on a
recognition of the important role of the administrative agency in the
governmental process and a proper respect for the legislature's
decision to empower an agency with regulatory and discretionary
authority.
[13]
The
rationale for judicial deference ceases to apply where the reviewing
court concludes that the agency has failed to adhere to its own
statutory mandate and regulatory framework by making a decision without
sufficient evidentiary support, and in such cases, the reviewing court
is required by the State Administrative Procedure Act to correct the
agency's judgment by means of the court's own. M.G.L.A. c. 30A, §
14(7).
**502
*385 Chester
Darling, Boston, for the plaintiff.
Juliana deHaan Rice, Assistant Attorney General, for the defendant.
Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, &
IRELAND, JJ.
LYNCH, J.
The
plaintiff appeals from a judgment of a Superior Court judge affirming
an administrative determination by the Department of Social Services
(department), that his hitting or spanking of his minor child
constituted “abuse,” as that term is defined by statute and regulation.
See G.L. c. 119, § 51A; 110 Code Mass. Regs. § 2.00 (1996).FN1 He argues
that the department's decision to support a report of abuse was not
adequately *386
supported
by the factual record. He further contends that the department's action
amounts to an unjustifiable interference by the Commonwealth with his
fundamental rights, under both the United States and Massachusetts
Constitutions, to the free exercise of his religious beliefs and
privacy in child rearing. We granted the plaintiff's application for
direct appellate review and conclude that the department's decision was
not supported by “substantial evidence” in the administrative record.
We vacate the judgment of the Superior Court without reaching the
constitutional issues.
FN1.
It is apparent from the transcripts of the administrative hearing that
all parties mistakenly applied the definition of “abuse” in G.L. c.
119, § 51A,
as amended through St.1992, c. 115, § 1, and accompanying
regulations,
which required a showing of “serious physical or emotional injury” (an
error that was repeated in the department's hearing decision and the
Superior Court's memorandum of decision). As the department correctly
points out in its brief, in 1993 the Legislature deleted the reference
to “serious” injury and expanded the definition of “abuse” to encompass
conduct “which causes harm or substantial risk of harm to a child's
health or welfare.” G.L. c. 119, § 51A,
as amended through St.1993, c. 50, § 23. This discrepancy would
ordinarily result in a remand of the matter to the agency for a new
hearing under the proper statutory standard. Because we conclude that
the factual record in this case is not sufficient to support a finding
of abuse under the correct, more expansive definition, we decide the
case on the merits.
1. Facts. We begin with a summary of relevant facts.
a. The investigation and decision under G.L. c.
119, § 51A. On March 19, 1997, the department received a
report from a mandated reporter, a school teacher, made pursuant to
G.L. c. 119, § 51A (51A report), regarding possible abuse and
neglect of a nine year old student, the plaintiff's son. FN2
An investigation was conducted by a department social worker, Rena L.
Ugol, who separately interviewed the reporter, the plaintiff, the boy,
the boy's mother, and two of the boy's physicians.FN3
FN2.
Persons belonging to a statutorily defined class of mandated reporters
have an affirmative obligation to report to the department when they
have reason to believe that a minor “is suffering physical or emotional
injury resulting from abuse inflicted upon him which causes harm or
substantial risk of harm to the child's health or welfare.” G.L. c.
119, § 51A. Regulations promulgated by the department pursuant to
its enforcement authority, G.L. c. 119, § 51B (8),
define “[a]buse,” in pertinent part, as “the non-accidental commission
of any act by a caretaker upon a child under age 18 which causes, or
creates a substantial risk of physical or emotional injury....” 110
Code Mass. Regs. § 2.00.
“Physical [i]njury” is further defined as, inter alia, “soft tissue
swelling or skin bruising depending on such factors as the child's age,
circumstances under which the injury occurred, and the number and
location of bruises.” Id.
FN3.
On receiving a 51A report of possible abuse or neglect, the department
is required to investigate and, if it has “reasonable cause” to believe
the report, to “support” it and take remedial action, either offering
social services, placing the child in protective custody, or referring
the matter to the district attorney for criminal prosecution, depending
on the severity of the abuse. See G.L. c. 119, § 51B; 110 Code
Mass. Regs. § 4.32(2) (1996).
“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 Code Mass. Regs. §
4.32(2) (1996). See Care & Protection of Robert, 408 Mass.
52, 63, 556 N.E.2d 993 (1990)
(“reasonable cause” serves a “threshold function” and means “known or
suspected instances of child abuse and neglect”).A decision to
“support” a report means only that the department has reason to believe
that an incident of child abuse or neglect has occurred and that some
caretaker is responsible; it does not constitute a finding with regard
to the identity of the perpetrator. 110 Code Mass. Regs. §
4.32(2).
Somewhat incongruously, however, the regulations further provide that
any parent of a subject child or “any caretaker who has been identified
in the Department's records as the person believed to be responsible
for the abuse or neglect” has a right to a hearing to challenge the
department's decision to support the report. 110 Code Mass. Regs.
§ 10.06(8) (1994).
**503
*387 The
reporter informed Ugol that there had been no prior concerns about
possible abuse of the boy, but that his parents were separated and in
the process of divorcing and he had lately appeared “more depressed,
angry.” Although she believed the accuracy of the boy's reports of
physical punishment, the reporter stated that the boy would “exaggerate
sometimes” and that he might have “perceptual difficulties.”
In
his interview with Ugol, the plaintiff admitted to striking the boy on
his buttocks with a leather belt on five or six occasions during the
preceding school year. He denied being a “spontaneous spanker,”
explaining that he only spanked the boy as punishment for reports of
misbehavior at school. He described the punishment as follows: The
plaintiff would have the boy stand next to him and place his hands on
the plaintiff's outstretched left hand (this latter measure to ensure
that the boy would not suffer injury to his hands by attempting to
shield his buttocks from the spanking); the plaintiff would grasp the
belt buckle in his palm and wrap the belt, which was approximately one
and one-half inches wide, around his right hand, leaving approximately
one foot of leather strap exposed; he would then hit him on his clothed
buttocks once or twice with the strap, explaining to him that it was
punishment for bad behavior and that such discipline is required by the
Bible. At Ugol's request, the plaintiff demonstrated the force with
which he would spank the boy by striking a couch cushion with the belt.
Ugol reported that the belt made a “solid smack.” The plaintiff denied
ever having caused any bruising on the boy's buttocks (although he
later admitted that he had never checked for any).
*388 Both
the boy and his mother confirmed much of the plaintiff's account. The
mother described the plaintiff as nonviolent and controlled, and stated
that his disciplining of the boy was never done in anger and “doesn't
escalate” beyond spanking. She reported that, when administering a
spanking, the plaintiff would hug the boy, tell him that he loved him,
and explain that it was punishment for his misconduct. The boy,
although expressing his fear and dislike of the spanking, told Ugol
that the plaintiff “wouldn't hurt me but would spank me.” He confirmed
that the spankings were administered as punishment for misbehaving at
school, and stated that the plaintiff would hit him once or twice (and
occasionally up to five times, if he was “really bad”) with a belt on
his fully clothed buttocks, but that the plaintiff “doesn't whack
really hard.” Sometimes when the boy expected a spanking, he would put
on sweat pants under his jeans. The boy variously described the
physical effects of the spankings as “red marks” on the skin of his
buttocks, as marks that were “not red red red” but more like “pink,”
and as “a teeny thing of red ... not really red.” He stated that these **504 marks
would last about ten minutes and then fade.
The boy's pediatrician, Dr. Joel Solomon, informed
Ugol that the boy suffers from arthrogryposis,
a congenital muscle condition which requires him to wear braces on his
back and legs and to undergo regular physical therapy. When asked by
Ugol whether, given the boy's condition, he would have any special
concerns about his being disciplined with a belt, he replied that he
“sure would” and that it “wouldn't help the condition,” but he did not
specify any particular harmful effects. He reported never having seen
bruising or other signs of physical abuse on the boy.
Dr.
Michael Erlich, the boy's pediatric orthopedist, who examined his
“whole body” every three to four months, also reported never having
seen bruising or other marks on the boy. He stated his opinion that the
boy's parents, and the plaintiff in particular, were “unbelievably
devoted” to the boy, noting that it was the plaintiff who made sure
that the boy performed all his required physical exercises, without
which he would develop muscular deformities.
On
the basis of this investigation, Ugol supported the 51A report of abuse
and neglect against the plaintiff and the boy's mother, concluding that
the plaintiff's use of corporal punishment put the boy “at risk of
physical hurt/harm, and is not acceptable.” [FN4] *389 Her
report acknowledged that the boy was known to embellish facts, and
concluded that the existence of temporary marks left by the spankings
was, therefore, only “possible.” Furthermore, although noting the boy's
medical condition, Ugol stated that it was “unclear” whether this
condition created any heightened risk of physical harm from the
spankings. The department's northeast region clinical review team
reviewed and upheld Ugol's decision, and the department offered the
parents access to counselling services on a voluntary basis. When the
parents declined this offer, the department simply closed the case and
took no further action.FN5
FN4.
The department's finding of neglect pertained to the boy's mother,
and
was predicated on her permitting the boy to visit the plaintiff's home
despite knowing about his method of corporal punishment. Because the
boy's mother did not appeal from this finding, we do not address it
further.
FN5.
Testimony given at the administrative hearing by the department's area
program manager indicated that the department was prepared to take
steps to close the case, but that this had not yet been done. The
department's records indicate this action was taken later that same
day, June 12, 1997.
b. Administrative and judicial review.
Pursuant to its regulations,
the department held an administrative hearing at the plaintiff's
request to review Ugol's decision. See 110 Code Mass. Regs. §
10.06(8) (1994). FN6
At this hearing, Ugol testified that she had not found that the boy had
actually suffered any bruising or swelling as a result of this
punishment, but agreed that her decision to support the abuse report
was based on her conclusion that “hitting a child with an object, in
this case a belt, puts a child at substantial risk of serious physical
injury” or creates the potential for soft tissue swelling and skin
bruising. She further testified that her decision was not predicated on
any heightened risk of injury created by the boy's medical condition,
which was uncertain, but on her assessment of the risk of injury
arising from the nature of the corporal punishment itself.
FN6.
Following administrative review of a challenged decision to support a
51A report, the hearing officer must determine whether the decision
conformed to the department's policies and regulations and, if it did
not, whether it resulted in substantial prejudice to an aggrieved
party. 110 Code Mass. Regs. §§ 10.05, 10.06(8) (1994). The
challenged decision may be reversed only if there is no “reasonable
basis” in the factual record to support it. 110 Code Mass. Regs. §
10.05. The aggrieved party bears the burden of proving by a
preponderance of the evidence that a reversal is warranted. 110 Code
Mass. Regs. § 10.23 (1993).
**505 The hearing officer issued
detailed findings summarizing the *390 evidence
we have reviewed above. On the basis of this record, she concluded that
Ugol's decision was in conformity with the department's policies and
regulations, stating, “[I]t is reasonable to believe that hitting a
child with an object in the manner described puts him at substantial
risk of physical injury, such as skin bruising or soft tissue swelling.
This constitutes physical abuse as defined by Department regulations.”
The
department's decision was subsequently affirmed on appeal by a Superior
Court judge, who ruled that there was “substantial evidence” in the
record to warrant the decision. The judge concluded that any
interference with the plaintiff's religious and parental rights
resulting from the department's decision was justified by the
Commonwealth's interest in protecting a minor child from harm.
2. Discussion.
[1] [2]
a. Standard of
review. We may set aside the decision of an administrative agency
if it is not supported by substantial evidence. See G.L. c. 30A, §
14(7) ( e ); Massachusetts Mun. Wholesale Elec. Co. v.
Energy
Facilities Siting Council, 411 Mass. 183, 199, 580 N.E.2d 1028
(1991).
“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).
In conducting this review, we must “give due weight to the experience,
technical competence and specialized knowledge of the agency, as well
as to the discretionary authority conferred upon it,” G.L. c. 30A,
§ 14(7), and should defer to the agency on questions of fact and
reasonable inferences drawn from the record. Flint v. Commissioner
of Pub. Welfare, 412 Mass. 416, 420, 589 N.E.2d 1224 (1992).
Significantly, however, that the record may contain some evidence from
which a rational mind might draw an inference in support of the
agency's decision does not dispose of our inquiry. New Boston
Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d
298 (1981).
Rather, to determine whether an agency's decision is supported by
substantial evidence, we examine the entirety of the administrative
record and take into account whatever in the record fairly detracts
from the supporting evidence's weight. See id. See also Daniels
v. Board of Registration in Medicine, 418 Mass. 380, 385-386, 636
N.E.2d 258 (1994).
[3] [4]
b. Substantiality
of the evidence. The substantial evidence
standard is thus fairly characterized as a test of rational
probability: an agency's conclusion will fail judicial scrutiny if “the
evidence points to no felt or appreciable probability of the *391 conclusion
or points to an overwhelming probability of the contrary.” New
Boston Garden Corp. v. Assessors of Boston, supra, quoting
L.L. Jaffe, Judicial Control of Administrative Action 598 (1965). Thus
conceived, 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. See, e.g., Daniels v. Board of Registration in
Medicine, supra at 386, 636 N.E.2d 258, quoting Arthurs v.
Board of Registration in Medicine, 383 Mass. 299, 304, 418 N.E.2d
1236 (1981) ( “ as long as there is substantial evidence to
support the
findings
of the agency, we will not substitute our views as to the facts”
[emphasis added] ).
We
do not judge this present case to be a close one. The record contains
no affirmative evidence that the boy ever suffered actual “soft tissue
swelling or skin bruising” as a result of the plaintiff's spankings.FN7 The
department argues, however, **506 that
its decision to support the 51A report was predicated on there being
reasonable cause to believe that the plaintiff's method of disciplining
the boy with a belt created a “substantial risk” that the boy would
suffer “soft-tissue injury or swelling,” which “substantial risk” of
injury is encompassed by the statutory and regulatory definition of
“[a]buse.” See G.L. c. 119, § 51A; 110 Code Mass. Regs. §
2.00.
FN7.
The department states in its brief that the temporary marks left on the
boy's buttocks were “indicative of soft tissue injury” and that the
investigating social worker, Rena Ugol, concluded that these marks
indicated “the possible presence” of soft tissue damage or swelling.
These statements exaggerate the record, however. At the hearing, Ugol
testified that she was unable to determine whether there was in fact
any physical injury to the boy and that her decision to support was,
therefore, based on her judgment that, being hit with a belt “can cause
such harm,” creates the “potential” for such harm, and “gives the
possibility that there will be the risk of this kind of injury”
(emphasis added).
[5]
We are not persuaded that the factual record lends the weight of
probability to the department's conclusion that a substantial risk of
harm was present. The department's investigator did not observe any
physical injuries or marks attributable to the plaintiff's spankings,
nor did the boy's treating physicians-one of whom, Dr. Erlich, had
examined the boy every three to four months from birth-report ever
having seen any indicia of inflicted harm. The only evidence pertinent
to the physical effects *392 of
the punishment are the boy's own statements that the spankings left
temporary red or pink marks on his buttocks that would fade after ten
minutes or so. Such effects do not by themselves justify a conclusion
that the boy is at substantial risk of suffering the sort of injury
which the regulations denote as “abuse.” 110 Code Mass. Regs. §
2.00 (1996).
[6]
The department argues, however, that its decision to support the 51A
report is rendered reasonable by the totality of the circumstances in
this case. It cites the following factors as supportive of its
conclusion that a substantial risk of harm was present: the regularity
of the corporal punishment; the boy's age and special medical
condition; the statement by the boy's pediatrician, Dr. Solomon, that
the use of a belt “wouldn't help” the boy's muscular condition; the
force the plaintiff used in striking the boy; the plaintiff's disregard
of the boy's physical well-being, as evidenced by his never having
checked to see whether he caused any marks; and the lack of any
indication by the plaintiff that he would discontinue his practice of
disciplining the boy with a belt.
[7]
However, the evidence concerning each of these cited factors is at best
inconclusive, and its cumulative weight falls short of the threshold of
substantiality required to affirm the department's decision. We have
already noted that the department's investigator stated in her report,
and testified at the hearing, that her decision to support the 51A
report was not predicated on any additional risk of harm
arising from the
boy's medical condition, as the import of this condition was unclear.
We note, further, that Dr. Solomon, although he expressed concern about
potential harmful effects of the punishment on the boy's medical
condition, claimed never to have observed any overt signs of abuse on
the boy's body, never identified precisely what sort of harmful effects
he had in mind, and voiced his concerns in response to questions from
the investigator that (as far as the record discloses) did not
accurately describe the nature of the corporal punishment but merely
referred loosely to the plaintiff's “using a belt to discipline” the
boy, and the boy's being “hit with a belt.” Moreover, Dr. Solomon's
concerns were not corroborated by Dr. Erlich, the boy's orthopedist,
who, when asked whether the plaintiff's use of a belt to discipline the
boy posed any particular risks to the boy's condition, responded that
he *393 did
not “see anything there at all.” FN8 Dr.
Erlich**507
further remarked on the plaintiff's “devot[ion]” to ensuring that the
boy received proper medical treatment and physical therapy, which we
view as evidence of the plaintiff's genuine concern for his son's
physical well-being.
FN8.
We are mindful that it is for the agency, not the reviewing court, to
weigh the credibility of witnesses and resolve factual disputes
involving contradictory testimony. See Seagram Distillers Co. v.
Alcoholic Beverages Control Comm'n, 401 Mass. 713, 721, 519 N.E.2d
276 (1988).
Nevertheless, under the substantial evidence test, we may disregard
supporting testimony that cannot reasonably form the basis of
impartial, reasoned judgment. See New Boston Garden Corp. v.
Assessors of Boston, 383 Mass. 456, 467-468, 420 N.E.2d 298 (1981),
citing NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 660, 69 S.Ct.
1283, 93 L.Ed. 1602 (1949).
We conclude that Dr. Solomon's expressions of concern were too
indefinite and, in light of his own and Dr. Erlich's statements
regarding the absence of any observable injuries, overly speculative to
form the basis of a rational inference that the spanking created a
substantial risk of physical injury, as defined by statute and
regulation.
[8]
As to the allegation that the plaintiff spanked the boy with great
frequency and excessive force, the only pertinent evidence in the
record is the plaintiff's uncontroverted statements that he had spanked
the boy five or six times during the preceding seven-month period, the
investigator's report that the plaintiff's demonstration on a sofa
cushion of the force he used on the boy made “a solid smack,” and the
boy's own report of temporary red or pink marks on his buttocks. This
evidence, without more, does not make reasonably probable the
department's conclusion that “soft tissue swelling or skin bruising”
was substantially likely to result from the plaintiff's method of
corporal punishment.
[9]
With respect to the department's argument that the plaintiff's
unwillingness to abandon his method of corporal punishment is a factor
tending to support its conclusion that the boy is at “substantial risk”
of physical harm, we note that there is no affirmative statement by the
plaintiff in the record regarding his future intentions. Furthermore,
we must remark on what seems to us as an anomaly in the department's
handling of this case. When the parents declined to participate in
counselling on a voluntary basis, the department closed the case. The
department's regulations require closure of a supported case when a
family that is the subject of a supported 51A report refuses further
services and there are no grounds for either legal action or a new 51A
report. See 110 Code Mass. Regs. §§ 9.02, 9.04 (1994). The
commentary to § 9.04, provides that a decision to *394 “support
and close” is especially appropriate where a supported report of abuse
“does not necessarily mean that a child is at ongoing risk” of
suffering future abuse. 110 Code Mass. Regs. § 9.04.FN9
Thus the department's decision to close the case-a decision which, if
we are guided by the department's own commentary to its regulations,
must have been based on the determination that there is no ongoing
risk that the child will suffer further abuse-surely undercuts the
reasonableness of its prior decision that the boy was at substantial
risk of suffering harm in the future if the
plaintiff persisted in his method of corporal punishment. Indeed, the
department's willingness to close this case further confirms that its
decision to support the abuse report in the first place was not founded
on rational inferences drawn from the factual record.
FN9.
The second type of case discussed in the commentary, where the family
that is the subject of a supported 51A report “has disappeared” and
cannot be located by the department, is not relevant here. See 110 Code
Mass. Regs. § 9.04 commentary (2) (1994).
The
department argues, however, that it is obligated to support a report of
abuse if there is “reasonable cause” to believe that abuse has
occurred, and points out that this evidentiary threshold, as defined by
regulation and case law, is a minimal one requiring a “relatively low
degree of accuracy.” FN10
But where, as in this case, there is no substantiated claim of actual
physical injury, a finding of abuse must be predicated on there being
reasonable cause to believe that there is a substantial risk
that **508 such
injury will occur; i.e., there must be “a collection of facts,
knowledge or observations which tend to support or are consistent with
the allegations” that a substantial risk of injury is present. See 110
Code Mass. Regs. § 4.32.
We conclude that the record does not support a rational inference that
a substantial risk of physical injury, as defined by regulation, was
present and, therefore, that the department lacked reasonable cause to
believe that it was.
FN10. See
note 3, supra.
[10] [11][12] [13]
Finally, the department urges us to defer to the clinical experience
and trained judgment of its social worker and not to disturb its
findings on questions of fact. However, we have repeatedly held that,
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. See *395 Daniels v. Board of
Registration of Medicine, 418 Mass.
380, 389, 636 N.E.2d 258 (1994),
and cases cited. Moreover, the principle of judicial deference to
agency judgments on factual issues does not require us to abdicate our
responsibility, pursuant to the State Administrative Procedure Act, to
review the sufficiency of the factual record. See G.L. c. 30A, §
14(7) ( e ), ( f ). Judicial deference to an agency's
adjudicatory
determinations is founded on a recognition of the important role of the
administrative agency in the governmental process and a proper respect
for the Legislature's decision to empower an agency with regulatory and
discretionary authority. See A. Cella, Administrative Law and Practice
§ 1576 (1986).
But this rationale for judicial deference ceases to apply where, as in
this case, we conclude that the agency has failed to adhere to its own
statutory mandate and regulatory framework by making a decision without
sufficient evidentiary support. In such cases, we are required by the
State Administrative Procedure Act to correct the agency's judgment by
means of our own. See G.L. c. 30A, § 14(7).
3. Conclusion. The department's regulations,
promulgated pursuant to authority expressly granted by the Legislature,
see G.L. c. 119, § 51B (8),
clearly draw a line between permissible physical discipline and
prohibited abuse, specifying the types of physical injuries which may
not be inflicted on children and, consistent with the statute, defining
abuse as nonaccidental conduct that actually inflicts these injuries or
creates the substantial risk that they will result. See 110 Code Mass.
Regs. § 2.00.
Today, we conclude only that, on the totality of the record presented
in this case, the effects of the plaintiff's physical discipline on his
minor child did not satisfy the department's own regulatory definitions
of physical injury and abuse. However, a method of corporal punishment
similar to the plaintiff's could, in different circumstances, rise to a
level of severity that would result in the actual infliction of
impermissible injuries or, alternatively, warrant a rational inference
that it posed a substantial risk that such injuries would result. In
these circumstances, this conduct would, at the least, justify the
department to support a 51A report of abuse.
The
department's decision to support a 51A report of abuse in this case was
not supported by substantial evidence on the administrative record, and
must be set aside. See G.L. c. 30A, § 14(7).
Because we resolve this case under the State Administrative Procedure
Act, we do not reach or express an opinion on the plaintiff's
constitutional claims.
*396 The
judgment is vacated. The case is remanded to the Superior Court where a
judgment will be entered vacating the department's decision and
ordering the department to notify the plaintiff and any other person,
public or private, to whom it conveyed information of its decision,
that the 51A report of abuse on his minor son has not been supported.
(C) 2008 Thomson Reuters/West. No Claim to
Orig. US Gov. Works
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