Kyle K. v. Department of Children and Families

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22-P-35 Appeals Court

KYLE K. vs. DEPARTMENT OF CHILDREN AND FAMILIES.

No. 22-P-35.

Suffolk. November 2, 2022. – October 6, 2023.

Present: Rubin, Englander, & Hand, JJ.

Department of Children & Families, Registry of alleged
perpetrators. Child Abuse. Administrative Law,
Administrative Procedure Act, Decision, Hearing, Judicial
review, Standard of proof, Substantial evidence, Failure to
raise issue before agency. Due Process of Law,
Administrative hearing. Evidence, Administrative
proceeding. Practice, Civil, Review of administrative
action, Judgment on the pleadings, Waiver. Waiver.

Civil action commenced in the Superior Court Department on
March 23, 2020.

The case was heard by Maureen Mulligan, J., on motions for
judgment on the pleadings.

Brian Waller for the plaintiff.
Carol A. Frisoli for the defendant.

RUBIN, J. Today we review the decision of a hearing

officer of the Department of Children and Families (department

or DCF) upholding the determination that allegations of sexual
2

abuse of a child, Adam,1 made by Adam against his stepfather, and

reported to DCF by mandated reporters pursuant to G. L. c. 119,

§ 51A (51A report), were "supported." See 110 Code Mass. Regs.

§ 4.32 (2009).

The legal term "supported" is confusing. As relevant here,

a mandated reporter must notify DCF when the reporter has

"reasonable cause to believe that a child is suffering physical

or emotional injury resulting from: (i) abuse inflicted upon

him which causes harm or substantial risk of harm to the child's

health or welfare, including sexual abuse." G. L. c. 119,

§ 51A. DCF must undertake an investigation. See G. L. c. 119,

§ 51B. Under DCF regulations, as relevant to this case, the

finding that the allegation was "supported" actually means that

the department concluded there was "reasonable cause to believe"

that the reported "incident . . . of abuse or neglect of Adam

"by a caretaker did occur." 110 Code Mass. Regs. § 4.32(2)

(2009).

Among other things, a finding that an allegation made in a

51A report is supported triggers the obligation of DCF to "offer

'appropriate services' to the family of any child whom it has

reasonable cause to believe is suffering from abuse or neglect

'to prevent further injury to the child, to safeguard his

1 A pseudonym.
3

welfare, and to preserve and stabilize family life whenever

possible.' G. L. c. 119, § 51B (g)." Adoption of Luc, 484

Mass. 139, 141 (2020).

The stepfather appealed from the finding that the

allegations against him were "supported." After a fair hearing,

see 110 Code Mass. Regs. §§ 10.00 (2014), a hearing officer

within DCF concluded that there was reasonable cause to believe

that the allegations were true. The stepfather sought judicial

review in the Superior Court, and a judge of that court affirmed

the hearing officer's decision, denying the stepfather's motion

for judgment on the pleadings, and granting DCF's cross motion.

The stepfather has now appealed.

Facts and prior proceedings. After a long history of

allegations of sexual abuse of Adam which were recanted or found

not to be substantiated, in January, 2019, a mandated reporter

submitted a 51A report, stating that Adam had alleged that his

stepfather sexually abused him. In February, 2019, a mandated

reporter filed a 51A report stating that Adam had alleged sexual

and physical abuse by the stepfather.

After an investigation mandated by G. L. c. 119, § 51B (51B

report), the department's investigator found on March 20, 2019,

that these allegations of sexual and physical abuse of Adam by

the stepfather were "supported."
4

Adam's mother appealed through the department's fair

hearing process. See 110 Code Mass. Regs. § 10.06(11)

("Whenever the Department has supported a report of abuse or

neglect of a child, any parent of the subject child, any

caretaker who has been identified in the Department's Central

Registry as the person believed to be responsible for the abuse

or neglect, any caretaker of the subject child and any

Adolescent, who is the subject child, has the right to appeal

the Department's decision to support the report"). The fair

hearing was held before a DCF hearing officer, another executive

branch official within DCF. At the hearing, the stepfather was

added as an appellant when the mother's attorney said he also

represented the stepfather.

At a fair hearing,

"the investigator's decision to 'support' an allegation of
abuse or neglect is to be reversed by the hearing officer
if, 'based on information available during the
investigation and/or new information not available during
the investigation, the [d]epartment's decision was not in
conformity with the [d]epartment's policies and/or
regulations and resulted in substantial prejudice to the
aggrieved party.' 110 Code Mass. Regs. § 10.06(8)(c)
(1998). Thus, the issue on such an administrative appeal
from the investigator's decision is 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 v. Department of Social Servs., 439 Mass. 789, 799

(2003). See 110 Code Mass. Regs. § 10.06(11)(a).
5

After the hearing, the hearing officer concluded that DCF's

decision to find the 51A reports of sexual abuse supported "was

made in conformity with the Department's regulations and

policies," and that "there was a reasonable basis" to believe

the alleged sexual abuse occurred. See Covell v. Department of

Social Servs., 439 Mass. 766, 778-779 (2003). The hearing

officer concluded that there was not reasonable cause to believe

the physical abuse occurred and reversed the DCF conclusion that

the allegation of physical abuse was supported.

At the hearing, the stepfather, Adam's mother, and the DCF

investigator assigned to the case testified. DCF introduced

evidence of the two 2019 reports by Adam of sexual abuse by the

stepfather, as well as evidence that Adam had recanted those

reports. Adam did not appear at the hearing; his allegations of

sexual assault came in through hearsay, the testimony of the DCF

investigator, and various documents, including police reports.

Both DCF and the stepfather offered additional documentary

evidence, including 51A and 51B reports.

The statements that led to the 51A reports were first made

by Adam in January, 2019, when he was thirteen years old. Adam

recanted the allegations after he was hospitalized for

psychiatric reasons in March, 2019.

The hearing officer examined all the evidence, including

those things in the record that detracted from the weight of the
6

evidence that Adam's allegations were true, including Adam's

retraction, and the fact that earlier allegations had not been

found substantiated when investigated by authorities in New

Hampshire and Rhode Island. Those prior allegations and

investigations were recounted in the findings of the hearing

officer. Adam first accused the stepfather of sexual assault in

2010, claiming that the stepfather had coerced Adam to put the

stepfather's penis in his mouth. New Hampshire and Rhode Island

authorities investigated the 2010 allegations and determined

them to be unfounded -- in part because Adam "stated he lied

about the sexual abuse."2 In the summer of 2018, DCF

investigated an additional allegation that the stepfather had

sexually assaulted Adam. DCF concluded then that "[t]he

concerns raised around sexual abuse by [the stepfather] had no

basis or validation."3

The hearing officer found that on six separate occasions

over a substantial period of time, first in 2010, then in 2019,

2 According to department records, Adam's report in 2010 was
that "[he] put his mouth around [the stepfather's] penis." Adam
later "recanted his statement and passed a polygraph test
denying the allegations."

3 Additionally, Adam reported that after a Christmas party
in 2010 at a relative's house in Rhode Island, his grandmother's
boyfriend had touched his buttocks and testicles under his
clothing. DCF was unable to identify the grandmother's
boyfriend by name but supported the allegation that an "unknown
person" had sexually abused Adam in 2010.
7

Adam reported that his stepfather sexually abused him, including

by raping him twice, orally. In 2019, when Adam was thirteen

years old, he provided corroborating details about the

allegations, which were also introduced through hearsay

evidence. At a sexual abuse intervention network (SAIN)

interview, he described a rape in some detail, including

specifics about the location and time of day at which the rape

occurred, the fact that the stepfather removed his own clothes,

but Adam remained clothed, the dialogue between himself and the

stepfather leading up to Adam's taking the stepfather's penis in

his mouth, and his description of "just sucking on [the

stepfather's penis] like a child would do to a lollipop." Even

apart from the description of the sexual abuse itself, the

hearing officer recounted that Adam said that "the stepfather

did not touch him and the stepfather's pants were down to his

ankles and his shirt was off. [Adam] said he had his clothes

on. About twenty minutes later, around noon, his mother

returned home so his stepfather pulled up his pants and asked

'who is it' as his mother was at the door knocking. Mother rang

the doorbell and the neighbor had let her in, and then she

knocked on the apartment door and [the] stepfather opened the

door for her. [Adam] stated he had met his stepfather only one

month before this happened. [Adam] said this happened on the
8

second floor of mother's house, which was green with two porches

and on [a specified] street."

As to the recantation by Adam, the hearing officer found

that "the Appellants, notably mother, directly influenced [Adam]

to recant the allegations, which occurred while the child was

inpatient at a hospital for psychiatric reasons in March 2019.

[Adam] has recanted the allegations of sexual abuse twice after

having direct contact with his mother. Therefore, the

Appellants' arguments were not persuasive."

There was also at least some corroborating evidence: Adam

suffered from a lack of bowel and urinary control, the latter of

which the Supreme Judicial Court has accepted as a "common

behavioral symptom[] of abuse." Commonwealth v. Alvarez, 480

Mass. 299, 302 (2018). Adam's therapist reported that Adam's

"behaviors of bed wetting and defecating in his clothing . . .

[were] signs of some sort [of] sexual trauma."

The hearing officer found "that the Department, in making

the decision of sexual abuse of [Adam] by [the] stepfather, and

pursuant to 110 [Code Mass. Regs. §§] 2.00 & 4.32, had

sufficient evidence to have reasonable cause to believe that

[the] stepfather sexually abused [Adam]. The Hearing Officer

finds that engaging in oral sex constituted sexual contact.

[Adam] had inconsistencies regarding the age of when sexual

abuse occurred. However, [Adam] has been consistent in his
9

disclosures of sexual contact between him and his stepfather,

his therapist questioned sexual abuse due to [Adam]'s behaviors

of wetting the bed and having bowel movements in his pants, his

guidance counselor reporting that he was a reliable reporter."

The hearing officer further spelled out, "Given all the evidence

regarding the matters under review, the Hearing Officer is left

with credible evidence that this child has continually disclosed

these allegations over a significant period of time. Contacts

with the child's family therapist during the 51B response and

with the child's mental health clinician by the detective during

his criminal investigation indicate that the child experiences

lack of control over his bowel movements and experiences

problematic urinary functions. The therapist has always

questioned sexual abuse because [Adam] has been wetting the bed

and having bowel movements in his pants. In addition, the

child's school guidance counselor, who was questioned about the

child's veracity during the 5lB response, reported that he

believes [Adam] to be a reliable reporter of information; he is

very upfront about things he says and claims ownership. It was

also notable that [Adam] was able to remember details of who was

in the home and was not and under which circumstances he was

sexually abused such as the house they lived in and the school

he attended at the time the abuse took place."
10

The stepfather then appealed to the Superior Court,

pursuant to G. L. c. 30A, § 14, "alleg[ing] that the

Department's decision was arbitrary, capricious, [without]

proper standing, not supported by substantial evidence and was

an abuse of discretion."4 The stepfather moved for judgment on

the pleadings, and DCF filed a cross motion for judgment on the

pleadings. The Superior Court judge denied the stepfather's

motion and granted DCF's motion.

Discussion. 1. Substantial evidence. The stepfather has

now appealed to this court. The primary question before us is

whether at the time of the decision of the hearing officer,

there was substantial evidence that there was reasonable cause

to believe the allegations that the stepfather abused Adam. See

Lindsay, 439 Mass. at 798 (when appellate court looks "to see

whether there was 'substantial evidence' to support the hearing

officer's decision, G. L. c. 30A, § 14 [7] [e], there need only

be 'substantial evidence' supporting the conclusion that there

was 'reasonable cause to believe' that" caretaker abused or

neglected child). We thus are not being asked whether the

stepfather actually abused Adam, something on which we express

no opinion. Rather, we must determine only whether there was

substantial evidence before the hearing officer supporting the

4 Adam's mother did not join in the appeal to the Superior
Court and is not involved in this appeal.
11

determination that there was "reasonable cause to believe" the

stepfather sexually abused Adam.

a. The test described. The substantial evidence test is

almost as low a bar as there is in terms of standards of review.

"In order to be supported by substantial evidence, an agency

conclusion need not be based upon . . . even a preponderance of

the evidence . . . ." Lisbon v. Contributory Retirement Appeal

Bd., 41 Mass. App. Ct. 246, 257 (1996). The substantial

evidence test "takes into account the entire record, both the

evidence supporting the agency's conclusion and whatever in the

record fairly detracts from the weight of that evidence."

Covell, 439 Mass. at 783, citing New Boston Garden Corp. v.

Assessors of Boston, 383 Mass. 456, 466 (1981). "Under the

substantial evidence test, a reviewing court is not empowered to

make a de novo determination of the facts, to make different

credibility choices, or to draw different inferences from the

facts found by the [agency]." Pyramid Co. of Hadley v.

Architectural Barriers Bd., 403 Mass. 126, 130 (1988).

As to facts, where there is substantial evidence to support

the findings of the agency, the court will not substitute its

own view of the facts. The Supreme Judicial Court (SJC) has

explained that

"[t]he substantial evidence 'standard of review is highly
deferential to the agency on questions of fact and
reasonable inferences drawn therefrom.'" Flint v.
12

Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).
We uphold an agency's finding of fact as long as it is
supported 'upon consideration of the entire record' and a
'reasoning mind [could have made the finding] by reference
to the logic of experience' (quotations omitted). New
Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456,
466 (1981). See Tennessee Gas Pipeline Co. v. Assessors of
Agawam, 428 Mass. 261, 265-266 (1998) ('reasonable basis in
logic' sufficient to uphold agency finding). Factual
findings are set aside 'if the evidence points to no felt
or appreciable probability of the conclusion or points to
an overwhelming probability of the contrary.' (quotation
omitted). New Boston Garden Corp., supra."

Citrix Sys., Inc. v. Commissioner of Revenue, 484 Mass. 87, 95-

96 (2020).

Finally, as to credibility, under the substantial evidence

test, "[i]n assessing the agency's decision, we show particular

deference to credibility determinations and inferences drawn

from the facts." Collamore v. Office of Campaign & Political

Fin., 67 Mass. App. Ct. 315, 322 (2006).

The low standards chosen by the Legislature with respect to

a DCF finding that a § 51A allegation is supported –- reasonable

cause to believe, with review for substantial evidence –- make

sense because the determination that an allegation of child

abuse and neglect received under § 51A is "supported" is what

allows DCF to begin to take steps to protect the child. See

Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass.

385, 390-394 (1999) (department may find report of suspected

abuse or neglect under § 51A supported only where there is

substantial evidence that there is reasonable cause to believe
13

child was victim of abuse or neglect). This is a context to

which the reasonable cause to believe and substantial-evidence

tests are well suited. All too often, truthful allegations of

child abuse are recanted. See Adoption of Xarissa, 99 Mass.

App. Ct. 610, 616 (2021). Reports are often contradictory or

inconsistent. And as we have said, the actual issue here is not

whether the allegations in this case are sufficient to find,

even by a preponderance of the evidence, that the stepfather

abused Adam. The question is whether there is substantial

evidence sufficient to support the conclusion that there was

reasonable cause to believe the stepfather abused Adam, that is

that the 51A reports were supported, the standard that is used

routinely in all types of child abuse and neglect cases to allow

DCF to open a case for services and to assign a social worker to

the family.

Doubtless in some cases where there is substantial evidence

that there is "reasonable cause to believe" there has been child

abuse or neglect, it will ultimately be found that the alleged

perpetrator did not commit the asserted abuse or neglect, or

that it could not be proved sufficiently to meet the

preponderance of the evidence, the clear and convincing

evidence, or the beyond a reasonable doubt standard.

But the low standard for a finding that a § 51A allegation

is supported, and our deferential standard of review, reflect
14

the fact that such findings are made after only an initial

investigation and, among other things, are designed to determine

when services must immediately be provided to a family. As the

SJC has explained,

"'[R]easonable cause' . . . is used in §§ 51A and 51B . . .
as a threshold determination. . . . A threshold
determination . . . necessarily anticipates that further
proceedings regarding the particular situation will be
held. . . . [I]t is inevitable that a threshold
determination is more likely to be erroneous than an
intermediate or final determination which utilizes a more
rigorous review process."

Care & Protection of Robert, 408 Mass. 52, 64-65 (1990). The

low standard, however, is warranted by the need to provide

services or take other action immediately to protect the child.

b. The test applied. There is certainly substantial

evidence in this case sufficient to support DCF's conclusion

that there was reasonable cause to believe the stepfather in

fact sexually abused Adam.

i. The stepfather argues that the hearsay evidence of

Adam's allegations lacked indicia of reliability. "Hearings on

appeals are not subject to any formal rules of evidence, and

written materials from the department's files and records are

admissible." Covell, 439 Mass. at 778. Evidence of abuse can

be "substantial" even when the alleged victim's "statements were

presented only through hearsay sources. . . ." Id. at 785-786.

Indeed, although there was also nonhearsay evidence here, a
15

finding of "[s]ubstantial evidence may be based on hearsay alone

if that hearsay has 'indicia of reliability.'" Id. at 786.5

Even if it were not supplemented by nonhearsay evidence,

the hearsay in this case has adequate indicia of reliability to

provide substantial evidence supporting the finding that there

was reasonable cause to believe the stepfather abused Adam. It

is undisputed that on six separate occasions over a substantial

period of time, first in 2010, then in 2019, Adam reported that

his stepfather sexually abused him. After disclosing alleged

abuse in 2019 at age thirteen, Adam was also able to provide

corroborating details about an incident. As described above, at

a SAIN interview, he described a rape in some detail, including

specifics about the location and time of day at which the rape

occurred, the fact that the stepfather removed his own clothes,

but Adam remained clothed, the dialogue between himself and the

stepfather leading up to Adam's taking the stepfather's penis in

5 Given all the circumstances, including Adam's age at the
time of the reports, the level of detail of the hearsay, the
corroborative details, and the hearing officer's findings about
reliability and the basis of the recantation, we conclude as the
SJC did in Covell, 439 Mass. at 783-785, that Edward E. v.
Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997)
(multilevel hearsay report of three year old child that lacked
detail, though admissible, was not standing alone sufficiently
reliable to amount to substantial evidence), is not applicable
here. See Covell, supra at 783-784 (Edward E. inapplicable
because accuser "was thirteen years old at the time, not a small
child," and because, unlike in Edward E., the allegation did not
"place" the "abuse in [an] implausible setting and
circumstances").
16

his mouth, and his description of "just sucking on [the

stepfather's penis] like a child would do to a lollipop." The

hearing officer drew a reasonable inference that Adam's guidance

counselor's statement that Adam is a reliable reporter supports

a conclusion that Adam's reports of sexual abuse were reliable,

an inference to which we owe deference, even though the guidance

counselor's statement was made outside the context of sexual

abuse. There was also at least some corroborating evidence in

Adam's lack of bowel and urinary control, as described above.

To be sure, to the extent that this is evidence of sexual abuse,

it could be evidence of sexual abuse by someone else -- there

was a supported allegation of sexual abuse in 2010 by an unknown

perpetrator, see note 3, supra -- but this does not drain the

evidence of all corroborative value.

As the stepfather asserts, Adam recanted the allegations,

but, as quoted above, the hearing officer found that "the

Appellants, notably mother, directly influenced [Adam] to recant

the allegations, which occurred while the child was inpatient at

a hospital for psychiatric reasons in March 2019. [Adam] has

recanted the allegations of sexual abuse twice after having

direct contact with his mother. Therefore, the Appellants'

arguments were not persuasive." The stepfather argues that this

finding of fact is clearly erroneous, stating, "Mother had a

phone call with child on the day he recanted, however, there is
17

no evidence in the record to suggest that mother influenced or

coerced child to recant." It was, however, a reasonable

inference for the hearing officer to draw and this finding of

fact is not clearly erroneous.

The stepfather argues that the reports by Adam also were

inconsistent and, for that reason as well, lack indicia of

reliability. Prior to recantation, in 2019, Adam, then thirteen

years old, sometimes said he had been six years old and

sometimes said he had been eight years old when the abuse

occurred. But this is not a very serious inconsistency. See

Commonwealth v. Melchionno, 29 Mass. App. Ct. 939, 939 (1990)

("As typically occurs in child abuse cases, the testimony of the

child witnesses was often inconsistent and contradictory").

There were other inconsistencies -- like whether the stepfather

was intoxicated, whether other individuals were involved, and

whether the stepfather attempted to rape Adam another time --

but given the hearing officer's finding that the recantations

were not credible, these inconsistencies did not render the

hearsay so unreliable that it could not be relied upon. At

least where, as here, Adam's hearsay evidence was found credible

on the basis of its detail, the presence of corroborating

evidence and the hearing officer's assessment of the live

testimony of the stepfather and Adam's mother, "[u]nder the

substantial evidence test, a reviewing court is not empowered
18

. . . to make different credibility choices . . . ." Retirement

Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass.

App. Ct. 478, 480 (1992), quoting Pyramid Co., 403 Mass. at 130.

Cf. Brockton v. Energy Facilities Siting Board (No. 1), 469

Mass. 196, 213 (2014) (board "has broad discretion to weigh and

assess the credibility of evidence, including hearsay

evidence").

ii. The stepfather next argues that DCF failed to comply

with its procedural policies, which substantially prejudiced

him. The stepfather raises several arguments, which he failed

to raise in the fair hearing or the Superior Court, regarding

DCF's handling of the February 51A report, including that DCF

failed to interview Adam and the stepfather a second time about

the February report. Because the stepfather failed to raise

these arguments before the administrative agency, we treat these

claims as waived. See Lincoln Pharmacy of Milford, Inc. v.

Commissioner of the Div. of Unemployment Assistance, 74 Mass.

App. Ct. 428, 436 (2009).6

The stepfather also argues that it was arbitrary and
6

capricious for the hearing officer to "overturn[] the physical
abuse decision," but affirm the sexual abuse decision. The
stepfather suggests that the hearing officer's decision was
"incongruous[]" because both the physical abuse allegations and
the sexual abuse allegations "lack[ed] witnesses and
corroborating evidence." This claim fails because the hearing
examiner provided a reasonable explanation, see Carver v.
Commissioner of Correction, 491 Mass. 608, 619 (2023), for the
treatment of the two issues, relying on Adam's bowel issues as
19

iii. Finally, the stepfather argues that his name should

not have been placed on the registry of alleged perpetrators

(registry) of the DCF central registry. See 110 Code Mass.

Regs. § 4.37 (2009). A name of an alleged perpetrator can be

placed on the registry when an allegation against him is

supported, the allegation is referred to the district attorney,

110 Code Mass. Regs. § 4.37, "and the identification of the

perpetrator is sufficiently clear that it meets the 'substantial

evidence' test as to the identification itself," Covell, 439

Mass. at 780.

There appears to be no record evidence that the

stepfather's name has been placed on the registry. Assuming his

name was in fact placed there, this is not an appeal from that

placement, and neither the fact of such placement nor its

propriety was raised below at the fair hearing, in the complaint

for judicial review, or in the memorandum in support of his

motion for judgment on the pleadings. Cf. Covell, 439 Mass. at

767 (reviewing for substantial evidence determination that

allegation was supported made in context of administrative

appeal challenging placement on registry). We therefore decline

corroborating evidence of the sexual abuse allegations and
recognizing that it was "notable that [Adam] was able to
remember details of who was in the home and was not and under
which circumstances he was sexually abused such as the house
they lived in and the school he attended at the time the abuse
took place."
20

to address it. We do note that under a DCF regulation an

alleged perpetrator's name placed in the registry will remain on

that list for seventy-five years. See 110 Code Mass. Regs.

§ 4.37. And, although "confidential," G. L. c. 119, § 51F,

access to the registry information is not utterly restricted; it

can be made available to anyone at the discretion of the

Commissioner of DCF. See 110 Code Mass. Regs. § 4.38(4) (2009).

Because of the liberty interests involved, placement on the

registry may, therefore, be a matter of more than ordinary

concern. Nonetheless, even were the stepfather's placement on

the registry properly before us, he has raised no objection to

the regulation providing for such placement, or to the low

burden of proof and standard of review previously applied in

cases involving such placement. We therefore express no opinion

on those questions.

Conclusion. We conclude that the hearing officer's

determination that DCF had reasonable cause to believe that the

stepfather sexually abused Adam was supported by substantial

evidence.7 The judgment is affirmed.

7 The stepfather argues that a motion he filed in Superior
Court for leave to present additional evidence was improperly
denied. See G. L. c. 30A, § 14 (6) (statute) ("If application
is made to the court for leave to present additional evidence,
and it is shown to the satisfaction of the court that the
additional evidence is material to the issues in the case, and
that there was good reason for failure to present it in the
proceeding before the agency, the court may order that the
21

So ordered.

additional evidence be taken before the agency upon such
conditions as the court deems proper. The agency may modify its
findings and decision by reason of such additional evidence and
shall file with the reviewing court, to become part of the
record, the additional evidence, together with any modified or
new findings or decision"). As described by DCF in its brief,
the stepfather sought to introduce the administrative record
associated with a fair hearing decision stemming from two 51A
reports that were filed "a year after the [reports filed in] the
present case and involved a separate sibling with separate and
distinct allegations and factual circumstances." DCF reviewed
the evidence that the stepfather wished to introduce and opposed
the motion, arguing that such evidence was not material to the
issues in the case, as required by the statute. The Superior
Court judge denied the motion "for the reasons stated in the
Opposition." On appeal, the stepfather suggests that because
DCF reviewed the evidence, DCF "assented to the first prong of
the statute . . . bypass[ing] the court's discretion," and thus
the additional evidence should have "become part of the record
on review." But in responding to a motion to present additional
evidence, an agency would need to review the proffered evidence
to determine whether it should oppose the motion, on the basis,
for example, that it was immaterial. The stepfather's reading
of the statute -- that through such review an agency "waive[s]
its opportunity to oppose the additional evidence" -- would
prevent an agency from mounting even a meritorious opposition to
a motion for leave to present additional evidence. This outcome
would defeat the statute. The stepfather goes on to argue that
even if the additional evidence "ha[d] no bearing on the instant
case," there would be "no reason to oppose the inclusion of the
[additional evidence]." But, again, this misreads the statute,
which requires that the stepfather show "that the additional
evidence is material to the issues in the case." G. L. c. 30A,
§ 14 (6). We conclude that the denial of the stepfather's
motion for leave to present additional evidence was not an abuse
of discretion.
ENGLANDER, J. (concurring). As the majority states, this

is an appeal from a decision by the Department of Children and

Families (DCF or department) to "support" a report of abuse of a

child, under 110 Code Mass. Regs. § 10.06(11) (2014), not an

appeal by "[a]n individual who is listed on the Department's

Registry of Alleged Perpetrators" (registry), as set forth in

110 Code Mass. Regs. § 10.06(12) (2014). The distinction is

important in my view. In the former appeal the question is

whether there was sufficient evidence for the department to

commence providing appropriate services to the child and the

child's caretakers. See 110 Code Mass. Regs. § 4.32 (2), (5)

(2009). See also Adoption of Luc, 484 Mass. 139, 141 (2020).

The bar for such a decision is, and should be, quite low. The

due process clause may be implicated, but the imposition on

liberty interests from the commencement of government services

will generally be modest (although not necessarily

insubstantial), and thus there need be few if any limitations on

the types of evidence that can be considered in such a

proceeding. I concur with the majority that, as an appeal under

110 Code Mass. Regs. § 10.06(11), the decision of the hearing

officer can be affirmed.

I write separately, however, because although it is true

that on the record before us we do not know that the

stepfather's name has been listed on the registry, I believe we
2

can fairly assume that it has.1 And if the stepfather is listed

on the registry, on this record he should not be. As this court

has recognized previously, listing on the registry is an outcome

"of more than ordinary gravity in that it places a permanent

mark on a person." Edward E. v. Department of Social Servs., 42

Mass. App. Ct. 478, 487 (1997). Such a listing materially

infringes on that person's liberty interests, and due process

accordingly requires that "certain protections" be afforded.

Commonwealth v. Durling, 407 Mass. 108, 112 (1990). One such

protection is that the Commonwealth not rest its listing

decision on unreliable hearsay evidence. See Edward E., supra

at 484-487. In my view the hearsay evidence relied upon by the

hearing officer here was not sufficiently reliable to justify a

1 In the ordinary case, the circumstances here would result
in the stepfather's name being listed on the registry. The
hearing officer found the allegations of sexual abuse supported,
with a specific finding of the stepfather as the alleged
perpetrator. It appears that DCF referred the allegations to
the district attorney. In those circumstances, 110 Code Mass.
Regs. § 4.37 (2009) states that the alleged perpetrator "shall"
be added to the registry, where his name presumptively would
remain for seventy-five years.

Here, however, the registry was not mentioned in the
decision of the hearing officer, in the stepfather's G. L.
c. 30A complaint, or in the stepfather's cross motion for
judgment on the pleadings. As the issue of the propriety of the
stepfather's registry listing (assuming he was listed) was not
presented to the Superior Court, I cannot fault the majority for
viewing this as an appeal challenging only the sufficiency of
evidence to "support" the allegations. See Covell v. Department
of Social Servs., 439 Mass. 766, 778-781 (2003) (describing and
addressing distinction between the two types of appeals).
3

material imposition on liberty such as listing in the registry.

Cf. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender

Registry Bd., 428 Mass. 90, 100 (1998) ("Sex offenders have a

constitutionally protected liberty and privacy interest in

avoiding registration and public dissemination of registration

information").

Because Adam did not testify at the hearing, the hearing

officer based the conclusion of abuse on hearsay statements

related by the DCF investigator and contained in the G. L.

c. 119, § 51A and § 51B, reports and other documentary evidence.

The question whether such hearsay is sufficiently reliable for

due process purposes has been addressed by our courts in a

variety of genres, including proceedings before the Sex Offender

Registry Board and probation revocation hearings. See Durling,

407 Mass. at 118-122; Doe, Sex Offender Registry Bd. No. 523391

v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89-90 (2019)

(Doe No. 523391). These cases tell us to look for certain

"indicia" of reliability, which include, among other things,

whether the statements are consistent; whether they are

otherwise corroborated; "the absence of any motive or reason for

[the declarant] to make false allegations," Covell, 439 Mass. at

786-787; and "whether the statements were made under

circumstances that support their veracity," Commonwealth v.

Hartfield, 474 Mass. 474, 484 (2016) (in context of probation
4

revocation). "[O]ther inconsistent statements by [the]

declarant may or may not detract from the reliability of the

hearsay, depending on the circumstances of those statements."

Doe No. 523391, supra at 90.

It is very difficult to square the record in this case with

previous case law as to indicia of reliability. Adam's

statements, made on a number of occasions over many years,

cannot, in my view, reasonably be described as "consistent."

While it is true that Adam accused the stepfather of oral rape

several times over the years, Adam was not consistent about if,

when, or how many times the abuse took place. In 2010, Adam

claimed he was sexually abused by the stepfather, but then

recanted. Then, in January 2019 (at age thirteen), Adam claimed

that the stepfather had raped him twice when he was eight years

old, but changed this initial disclosure during the interview

process, claiming that the abuse occurred once when he was about

six.2 One month later, in February of 2019, Adam once again

changed the narrative, this time claiming that the stepfather

had abused him only two months before, in December of 2018, even

though Adam had not mentioned any December 2018 abuse when he

While it is true, as the majority emphasizes, that Adam
2

supplied detail regarding this earlier assault during an
interview in February of 2019, I note that Adam had supplied
none of this detail in his original disclosure made only one
month before, in January of 2019. On this hearsay record, the
belated provision of detail was itself an inconsistency.
5

spoke up in January of 2019. And the following month, in March

of 2019, Adam recanted his allegations altogether, stating that

he "lied about being sexually abused by his stepfather," and

that "he felt pressured to make this accusation in response to

behavioral problems and wanting to avoid responsibility."

I am mindful that child and even adult victims of sexual

abuse may, for a variety of reasons, lack perfect consistency in

their reporting, or even recant and thus contradict their

allegations. Where the victim's allegations are thereafter

presented through hearsay to an adjudicatory body, however, such

material inconsistencies must be confronted for purposes of

evaluating reliability. On the particular facts here, the

material inconsistencies and contradictions indicate that the

hearsay evidence lacked the "character of substantiality."

Edward E., 42 Mass. App. Ct. at 487 (statements "persistently

encumbered by unreliability" do not qualify as substantial

evidence). Contrast Covell, 439 Mass. at 783 (noting victim's

allegations were "specific, detailed, and consistent").

I have concerns as well about whether Adam's allegations

were corroborated in any significant way (or at all), and about

the hearing officer's treatment of certain of the hearsay

evidence presented. For example, the hearing officer's reliance

on the reported hearsay statements from Adam's guidance

counselor was, in my view, improper. Those statements were
6

murky at best, and cannot reasonably be understood as an

endorsement of Adam's reliability as a historian. But I need

not belabor the point. As the majority points out, this appeal

presents only the issue of the sufficiency of the evidence for

the department to initiate providing services to an alleged

victim of sexual abuse. The standard for whether the department

may do so is indeed a very low bar -- a lower bar, in my view,

than what is required to place an individual on the registry of

alleged perpetrators, although the case law has not yet drawn

such a distinction.3 I have no quarrel with the conclusion that

the very low standard was met here, despite my concerns over the

reliability of the hearsay presented, because the liberty

interest at stake is less substantial. See Doe, Sex Offender

Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass.

297, 309 (2015) ("deprivation of more extensive private

interests requires greater procedural protections"). See also

Durling, 407 Mass. at 113. For those reasons, I concur.

3 As the majority states, the case law sets the standard as
requiring substantial evidence that there was "reasonable cause
to believe" that the alleged abuse had occurred. Lindsay v.
Department of Social Servs., 439 Mass. 789, 793 (2003), quoting
G. L. c. 119, § 51A. That standard has been applied to both
types of appeals identified in 110 Code Mass. Regs. § 10.06(11)
and (12). I note, however, that the application of the standard
could differ, since the evidence that can be permissibly relied
upon in the two types of appeals may differ -- that is, due
process prevents the use of unreliable hearsay evidence in
decisions to place an individual on the registry list.