Benjamin Pierce v. Department of Children and Families.

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

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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 &

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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

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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
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"caretaker."

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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

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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

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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.

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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.

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