Evidence of Prior Actions
In an appeal involving Substantiate Neglect, the Court (Cohn, J.), explained that in the context of DCF proceedings, evidence of prior actions may be used to substantiate physical neglect. In that particular case, the appellant and his wife had a history of engaging in domestic violence, and one of their children reported constant yelling which made her stomach hurt.
During the altercation which gave rise to DCF involvement, the appellant grabbed his wife by the throat and lifted her from the ground. When the wife got free, the argument moved outside at which time she broke the appellant’s car window with a baseball bat. The appellant then grabbed the child, placed her inside his car- unrestrained on the center console- and sped away nearly running the mother over.
Support a Substantiation of Physical Neglect
In reviewing the case, the hearing officer first noted that in order to support a substantiation of physical neglect the Department must demonstrate:
(1) the Appellant is a person responsible for the children’s health, welfare or care . . .
(2) the Appellant denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being; and
(3) the conduct resulted in an adverse physical impact on the children, or the act was a single incident that demonstrated a serious disregard for the child’s welfare. Based on the evidence presented, the hearing officer found that the child was present in the middle of the altercation; that she was placed in the range of a swinging bat; and that she was thrown into a vehicle which then sped off.
The hearing officer concluded that the appellant’s conduct constituted physical neglect in that he was the child’s father and thus responsible for her care; the child was denied proper care and attention through the appellant’s actions; and the incident demonstrated a serious disregard for the child’s welfare, particularly in light of the fact that she reported there was constant yelling in the house which gave her a stomach ache.
The appellant argued that the hearing officer erred in substantiating physical neglect in that, among other things, he considered the child’s complaint of stomach aches even though they occurred at other times. He argued that the hearing officer should not have made use of prior incidents to justify a finding of physical neglect arising from the incident at issue.
On appeal, the Court held that prior incidents, even if not substantiated at the time of their occurrence, may be considered by the Department of Children and Families when substantiation is eventually made. Indeed, “An unsubstantiated allegation does not mean it didn’t happen; it means that, standing alone, the allegation did not rise to the level of legal neglect or abuse and/or the evidence was sufficiently ambiguous that the allegation could not be sustained by a fair preponderance of the evidence.
However, to ignore a pattern of similar allegations in the context of a child protection investigation simply because each one standing alone is not sufficient would be irresponsible and create an unacceptable level of risk to the child.” Vines v. Dept. of Children and Families, Superior Court, Judicial District of New Britain, Docket No. CV-08-4016779 (November 24, 2008, Cohn, J.).
Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner, Attorney Joseph C. Maya for a free initial consultation. He practices in the firm’s Westport office and can be reached at (203) 221-3100 or email@example.com.