Frank v. Department of Children & Families

134 Conn. App. 288,
*** A.3d *** (2012)

DCF CENTRAL REGISTRY

The plaintiff appealed from the trial court’s judgment in which it affirmed the decision by a hearing officer for the department of children and families (DCF).  The officer upheld an investigator’s substantiation of allegations that the plaintiff had emotionally abused a child and ordered that his name be placed on the central registry of child abusers under General Statutes § 17a-101k.  In his appeal the plaintiff  argued that the trial court erred in affirming the decision because (1) DCF’s interpretation of General Statutes § 46b-120 (3), which defines the term “abused,”[1] is unconstitutionally vague as it was applied to his conduct; and (2) there was not substantial evidence to support the officer’s decision to uphold the substantiation of the abuse and her order that the plaintiff’s name be place on the registry.  The Appellate Court concluded that “§ 46b-210 (3) is unconstitutionally vague as applied to the plaintiff’s conduct and, accordingly [we] reverse the judgment of the trial court as to both the substantiation of emotional abuse and the placement of the plaintiff’s name on the central registry of child abusers.”  Frank v. Department of Children & Families, supra, 134 Conn. App. 292-93.

The conduct of the plaintiff, who was an elementary school teacher, came to the attention of school authorities, and eventually DCF, after a child in his class complained that the plaintiff pinched his cheeks and referred to him by nicknames.  As the court noted, “[t]he proper test for determining whether a statute is vague is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . the test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute . . .. [O]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .”  (Internal quotation marks omitted.)  Id., 301-302.

The court explained that the hearing officer mistakenly applied a subjective instead of the objective standard, and should have considered whether the plaintiff’‘s conduct “would have constituted emotional abuse as to any child, not just to a particularly sensitive child when the plaintiff had no prior knowledge of the child’s sensitivity.”  Id., 309.  Applying the correct standard, the court concluded that “the plaintiff could not have had notice that his behavior would have adversely affected [the child] to extent that his actions would qualify as emotional abuse.  Additionally the defendant did not prove that the plaintiff’s classroom behavior would amount to emotional abuse of any child.”  (Empasis in original.)  Id., 311.  Lastly, the court decided that the evidence showed that the plaintiff’s behavior “did not pose such an obvious risk of causing adverse effects to [the child] that it would be within the knowledge of an ordinary person.”  Id., 314.

According to DCF’s policy manual, the criteria used to accept a report of abuse includes that “the allegation meets the statutory definitions of abuse, neglect, or in danger of abuse.”  Frank v. Department of Children & Families, supra, 134 Conn. App. 288 n.11.

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