Isabella D. v. Dept. of Children & Families ( 2016 )

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ISABELLA D. ET AL. v. DEPARTMENT OF
CHILDREN AND FAMILIES ET AL.*
(SC 19451)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 13, 2015—officially released January 19, 2016
Alan Giacomi, with whom were Robert S. Kolesnik,
Sr., and, on the brief, Stephanie E. Cummings, for the
appellants (plaintiffs).
John E. Tucker, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellees (defendants).
Opinion
EVELEIGH, J. The sole issue in this administrative
appeal is whether the trial court properly concluded
that the plaintiff Isabella D.1 lacks standing to appeal
from the final decision of the defendant the Department
of Children and Families (department)2 finding that the
alleged perpetrator was not responsible for allegations
of sexual abuse and emotional neglect against the plain-
tiff and removing his name from the central child abuse
and neglect registry (central registry).3 On appeal to this
court, the plaintiff claims that the trial court improperly
concluded that she lacks standing to bring this action.
Specifically, the plaintiff claims that she has a specific,
personal and legal interest in the department’s decision
because her constitutionally protected interests in her
reputation, privacy, safety, and family integrity were
implicated as a result of the department’s substantiation
process, and that these interests were harmed by the
department’s decision. The plaintiff further claims that
these interests were harmed by the alleged perpetrator’s
use of the department’s decision in a collateral family
court proceeding. In response, the department contends
that the plaintiff was not classically aggrieved by its
decision because the plaintiff cannot establish a spe-
cific, personal and legal interest in the substantiation
process that is distinguishable from that of the general
public. The department further claims that the plaintiff
was not statutorily aggrieved because she is not within
the zone of interests intended to be protected by the
statutory scheme. We agree with the department and
conclude that the trial court properly determined that
the plaintiff lacks standing to bring this action.4
The record reveals the following undisputed facts and
procedural history. As a result of a mandated reporter’s
anonymous referral, the department instituted an inves-
tigation into possible sexual abuse of the plaintiff pursu-
ant to General Statutes § 17a-101g.5 Following the
investigation, the department’s investigator found the
alleged perpetrator responsible for sexual abuse and
emotional neglect of the plaintiff and placed the alleged
perpetrator’s name on the central registry. As a result
of the alleged perpetrator’s request for an appeal pursu-
ant to § 17a-101k-4 (a) of the Regulations of Connecticut
State Agencies,6 the department conducted an internal
review and notified the alleged perpetrator of the deci-
sion to uphold the substantiation of sexual abuse and
emotional neglect and the decision to place the alleged
perpetrator’s name on the central registry. Thereafter,
the alleged perpetrator sought an administrative hear-
ing. After a hearing, the hearing officer found that there
was insufficient evidence to support a finding of sub-
stantiation of sexual abuse and emotional neglect by
the alleged perpetrator. The hearing officer, therefore,
reversed the department’s finding of substantiation and
removed the alleged perpetrator’s name from the cen-
tral registry.
Subsequently, the plaintiff sent a letter to the depart-
ment requesting that the hearing officer reconsider the
decision reversing the substantiation finding. As
grounds for reconsideration, the plaintiff asserted that
‘‘without the opportunity to be notified of (let alone
participate in), the hearings process, [the plaintiff] was
deprived of the opportunity to present evidence in her
own defense or to pursue challenges to the credibility,
authenticity, reliability or admissibility of any of the
evidence introduced by [the alleged perpetrator].’’ The
hearing officer denied the plaintiff’s request on the basis
that the plaintiff lacked standing to seek reconsidera-
tion. As grounds for the decision, the hearing officer
explained that because General Statutes § 4-181a7 solely
permits a party to a contested hearing to file a petition
for reconsideration and, because the plaintiff was not
a party to the substantiation hearing, the plaintiff did
not have standing to appeal the department’s decision.
From that decision, the plaintiff filed an administra-
tive appeal pursuant to General Statutes § 4-183 (a) of
the Uniform Administrative Procedure Act.8 At the trial
court, the department moved to dismiss the plaintiff’s
claims for lack of subject matter jurisdiction on the
ground that the plaintiff lacked standing to bring the
administrative appeal. Following oral argument on the
issue of standing, the trial court granted the depart-
ment’s motion to dismiss. This appeal followed.9
By way of background, we briefly summarize the
substantiation process and the central registry scheme
as set forth in General Statutes §§ 17a-101g10 and 17a-
101k.11 As this court has previously explained, ‘‘§ 17a-
101g sets forth the [department’s] responsibilities upon
receiving a report of abuse or neglect of a child: classifi-
cation; evaluation; investigation; and determination of
whether abuse or neglect has occurred.’’ (Internal quo-
tation marks omitted.) Frank v. Dept. of Children &
Families, 312 Conn. 393, 418, 94 A.3d 588 (2014). If,
after an investigation into the report, the department
has reasonable cause to believe that the child has been
‘‘ ‘neglected’ ’’ or ‘‘ ‘abused’ ’’ as defined by statute; Gen-
eral Statutes § 46b-120 (6) and (7); the allegations of
misconduct are deemed substantiated.12 Once the inves-
tigation is complete, the department must notify the
child’s parents or guardians, the alleged perpetrator,
and the mandated reporter of the outcome of the investi-
gation. Dept. of Children & Families, Policy Manual
§ 34-3-6 (Policy Manual).13
Section 17a-101k (a) requires the department to main-
tain a central registry of the names of individuals whom
the department has found to have abused or neglected
children pursuant to the investigative process. If the
allegations of abuse or neglect are substantiated after
the investigation, § 17a-101g (b) directs the department
to additionally determine ‘‘whether: (1) [t]here is an
identifiable person responsible for such abuse or
neglect; and (2) such identifiable person poses a risk
to the health, safety or well-being of children and should
be recommended . . . for placement on the child
abuse and neglect registry . . . .’’ See also Regs., Conn.
State Agencies § 17a-101k-3 (a); Policy Manual, supra,
§ 34-2-8. In some cases, however, the placement of the
alleged perpetrator’s name on the central registry is
required. See Regs., Conn. State Agencies § 17a-101k-
3 (b).14
‘‘If the commissioner determines that a person should
be listed on the [central] registry, that information is
confidential, except where authorized specifically by
statute or regulation, and unlawful disclosure is a crimi-
nal offense. . . . Statutes that authorize disclosure are
limited to specific governmental agencies or persons
directly involved with child protection and agencies
that license persons providing child care services or that
employ persons charged with child protection, such as
the [department], the [D]epartment of [P]ublic [H]ealth
and the [D]epartment of [S]ocial [S]ervices. . . . Mind-
ful of the potential effect of such disclosures, § 17a-101k
(b) (3) provides in relevant part: ‘Upon the issuance of
a recommended finding that an individual is responsible
for abuse or neglect of a child pursuant to subsection
(b) of section 17a-101g, the commissioner shall provide
notice of the finding . . . to the individual who is
alleged to be responsible for the abuse or neglect.’ ’’
(Citations omitted.) Hogan v. Dept. of Children & Fam-
ilies, 290 Conn. 545, 570–71, 964 A.2d 1213 (2009).
Section 17a-101k further provides a two stage appeal
process for individuals who have been substantiated as
responsible for child abuse or neglect. Once an individ-
ual exercises his or her right to appeal the substantia-
tion decision, ‘‘[t]he individual or the individual’s
representative may submit any documentation that is
relevant to a determination of the issue and may, at the
discretion of the commissioner or the commissioner’s
designee, participate in a telephone conference or face-
to-face meeting to be conducted for the purpose of
gathering additional information that may be relevant
to determining whether the recommended finding is
factually or legally deficient.’’ General Statutes § 17a-
101k (c) (2); see also Regs., Conn. State Agencies § 17a-
101k-5. The individual is also provided access to all
documents in the possession of the department relevant
to the substantiation of abuse or neglect. General Stat-
utes § 17a-101k (c) (1). In the event that the recom-
mended finding of abuse or neglect is found to be
‘‘factually or legally deficient,’’ the department must
notify the individual of the decision to reverse the rec-
ommended finding. General Statutes § 17a-101k (c) (3);
see also Regs., Conn. State Agencies § 17a-101k-5 (e).
If the finding is upheld, the department must notify
the individual of the right to request an administrative
hearing. General Statutes § 17a-101k (c) (3); see also
Regs., Conn. State Agencies § 17a-101k-5 (f) and (g).
Section 22-12-6 of the Policy Manual provides that
the alleged perpetrator and the department are the only
parties to the administrative hearing.15 Furthermore,
although the hearing officer has the discretion to permit
others to be present at the hearing, the Policy Manual
specifically provides that ‘‘[t]he only authorized persons
at the hearing shall be’’ the parties, their authorized
representatives, and witnesses. Policy Manual, supra,
§ 22-12-6. The alleged perpetrator can seek legal repre-
sentation for the hearing. General Statutes § 17a-101k
(d) (2); see also Regs., Conn. State Agencies § 17a-101k-
8 (a). Within thirty days, the hearing officer must issue
a written decision, either reversing or upholding the
substantiation finding. General Statutes § 17a-101k (d)
(3). Section 17a-101k (e) permits ‘‘[a]ny individual
aggrieved by the decision of the hearing officer’’ to
appeal the decision pursuant to § 4-183. See also Regs.,
Conn. State Agencies § 17a-101k-11 (b).
With this procedural background in mind, we turn
to the applicable legal principles and the standard of
review. ‘‘Standing is established by showing that the
party claiming it is authorized by statute to bring an
action, in other words, statutorily aggrieved, or is classi-
cally aggrieved. . . . [Statutory] [s]tanding concerns
the question [of] whether the interest sought to be pro-
tected by the complainant is arguably within the zone
of interests to be protected or regulated by the statute
or constitutional guarantee in question. . . .
‘‘The fundamental test for determining [classical]
aggrievement encompasses a well-settled twofold
determination: [F]irst, the party claiming aggrievement
must successfully demonstrate a specific, personal and
legal interest in [the challenged action], as distinguished
from a general interest, such as is the concern of all
members of the community as a whole. Second, the
party claiming aggrievement must successfully estab-
lish that this specific personal and legal interest has
been specially and injuriously affected by the [chal-
lenged action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Footnote omitted; internal quota-
tion marks omitted.) Handsome, Inc. v. Planning &
Zoning Commission, 317 Conn. 515, 525–26, 119 A.3d
541 (2015).
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . Because standing implicates the court’s
subject matter jurisdiction, the plaintiff ultimately bears
the burden of establishing standing. . . . Furthermore,
[a] trial court’s determination that it lacks subject mat-
ter jurisdiction because of a plaintiff’s lack of standing
is a conclusion of law that is subject to plenary review
on appeal.’’ (Internal quotation marks omitted.) Cambo-
dian Buddhist Society of Connecticut, Inc. v. Plan-
ning & Zoning Commission, 285 Conn. 381, 395, 941
A.2d 868 (2008). With these principles in mind, we turn
to the plaintiff’s claims.
The plaintiff contends that the trial court improperly
determined that she lacks standing to appeal the depart-
ment’s decision.16 Specifically, the plaintiff claims that
she has a specific, personal and legal interest in: (1)
the entire substantiation process because it implicated
her reputational and privacy interests by releasing sen-
sitive information about allegations of sexual abuse
against her without affording her the opportunity to
participate in the substantiation hearing; and (2) the
department’s decision because the alleged perpetrator
used that decision in a collateral family court proceed-
ing, implicating her constitutional rights to safety and
family integrity.17 The department responds that the
trial court correctly concluded that the plaintiff lacks
standing to appeal from the department’s decision. Spe-
cifically, the department claims that the plaintiff did
not establish that she has a specific, personal and legal
interest in the substantiation process that is distinguish-
able from that of the general public and that the plain-
tiff’s claims regarding the use of the substantiation
decision in a collateral family court proceeding do not
give rise to such an interest in the department’s deci-
sion. We agree with the department.
Resolution of the plaintiff’s claims requires us to
examine the statutory scheme and the purpose of the
central registry and the substantiation process. We have
previously explained that the ‘‘legislature’s stated pur-
pose in requiring the department to maintain the [cen-
tral] registry is ‘to prevent or discover abuse of children
. . . .’ ’’ Hogan v. Dept. of Children & Families, supra,
290 Conn. 572–73, quoting General Statutes § 17a-101k
(a). In Hogan, this court noted that, in enacting the
central registry statutes, the legislature recognized the
consequences of placing an individual’s name on the
central registry and expressed concern about ensuring
that alleged perpetrators are provided with adequate
procedural due process protections. Hogan v. Dept. of
Children & Families, supra, 581.
The department claims, and the trial court found,
that the present case is substantially similar to Doe
v. Board of Education, United States District Court,
Docket No. 3:11CV1581 (JBA) (D. Conn. September 17,
2012). The plaintiff claims that Board of Education
is distinguishable from the present case because the
reversal of the department’s substantiation finding in
Board of Education occurred at the time of the internal
review rather than at the substantiation hearing, as in
the present case. Although we are not bound by it, we
agree with the reasoning of Board of Education, and
find it useful for our resolution of the plaintiff’s appeal.
In Board of Education, after an investigation, the
department substantiated allegations that the plaintiff
minor child had been sexually abused by an educator
in the town’s school system. Id. After an internal review,
the department reversed its finding that the educator
had abused the minor child. Id. The department denied
the repeated requests of the minor child’s parents for
an opportunity to participate in the department’s review
proceedings and to rebut the findings of the depart-
ment’s internal review. Id.
Thereafter, the plaintiffs, the minor child and his par-
ents, brought a claim in federal court alleging, inter alia,
that the department’s ‘‘internal review process violated
their constitutional rights under the [d]ue [p]rocess
[c]lause of the [f]ourteenth [a]mendment [to the United
States constitution] in that they were deprived of a
meaningful opportunity to know the basis for the
[department’s] determination of abuse and to partici-
pate in a hearing or review if they disagreed with that
determination.’’ Id. In response, the department con-
tended that the plaintiffs lacked standing to bring their
due process claims because the department’s ‘‘internal
review process conducted under . . . § 17a-101k is an
administrative enforcement decision akin to the deci-
sion whether or not to pursue a criminal prosecution.’’
Id. The court in Board of Education granted the depart-
ment’s motion to dismiss for lack of standing, reasoning
as follows: ‘‘A state child welfare agency’s review of its
decision to list an individual on the state [child abuse]
registry is sufficiently similar to a prosecuting author-
ity’s review of a criminal complaint that a third party
lacks a judicially cognizable interest in the prosecution
or nonprosecution of that complaint . . . . While [the]
[p]laintiffs here certainly had a personal interest in the
outcome of [the department’s] internal review of the
decision to list [the educator’s] name on the state [child
abuse] registry, legally, this interest is not distinguish-
able from the general public’s interest in protecting
children. The internal review procedures were estab-
lished to safeguard the due process rights of those who
have been accused of abuse and listed on the state
[child abuse] registry, and thus [the educator], rather
than [the] [p]laintiffs, was the party-in-interest for the
internal review conducted by [the department].’’ Id.
We are persuaded by the court’s reasoning in Board
of Education. Like the trial court, we are unconvinced
by the plaintiff’s claim that Board of Education is dis-
tinct from the present case on the ground that in Board
of Education the department reversed its substantiation
finding at the internal review stage rather than at the
substantiation hearing. As explained in Hogan and
Board of Education, the purpose behind the substantia-
tion appeal process is to ensure that alleged perpetra-
tors of abuse or neglect are afforded an opportunity to
present evidence to rebut the department’s findings due
to the potential adverse effects of being listed on the
central registry. See Hogan v. Dept. of Children & Fam-
ilies, supra, 290 Conn. 570–71; Doe v. Board of Educa-
tion, supra, United States District Court, Docket No.
3:11CV1581 (JBA). In contrast to an abuse or neglect
proceeding conducted pursuant to General Statutes
§ 46b-129 and a termination of parental rights proceed-
ing pursuant to General Statutes § 17a-112, in which
the alleged victim is a party in interest, the plaintiff in
the present case was not an authorized party to the
substantiation proceeding. See, e.g., In re Melody L.,
290 Conn. 131, 157, 962 A.2d 81 (2009) (holding that
children have standing to appeal from judgment termi-
nating parental rights of their parents), overruled on
other grounds by State v. Elson, 311 Conn. 726, 746–47,
91 A.3d 862 (2014); see also Policy Manual, supra, § 22-
12-6.
At oral argument before this court, counsel for the
plaintiff conceded that the central registry serves a
‘‘legitimate public purpose that is not unique to [the
plaintiff],’’ but further explained to this court that this
acknowledgment was not salient to the plaintiff’s argu-
ment because the plaintiff is more concerned with the
substantiation of sexual abuse and emotional neglect
than the listing of the alleged perpetrator’s name on
the central registry. Counsel for the plaintiff contended
that the department had made two separate findings
regarding the alleged perpetrator: (1) a finding substan-
tiating claims of sexual abuse and emotional neglect
against the plaintiff; and (2) a finding that the alleged
perpetrator posed a risk to the general public. Counsel
for the plaintiff asserted that the finding of substantia-
tion directly affects the plaintiff herself. We disagree.
‘‘The predicate to consideration for placement of
one’s name on the [central] registry is a ‘finding that
an individual is responsible for abuse or neglect of a
child pursuant to subsection (b) of [§] 17a-101g . . . .’ ’’
Hogan v. Dept. of Children & Families, supra, 290
Conn. 573, quoting General Statutes § 17a-101k (b). As
previously noted in this opinion, the department must
generally substantiate abuse or neglect and make an
independent finding that the alleged perpetrator ‘‘poses
a risk to the health, safety or well-being of children’’
before recommending that the individual’s name be
placed on the central registry. General Statutes § 17a-
101g (b) (2); see also Regs., Conn. State Agencies § 17a-
101k-3 (c); Policy Manual, supra, § 34-2-8. In some cases,
however, the entry of the alleged perpetrator’s name
on the central registry is mandatory. See Regs., Conn.
State Agencies § 17a-101k-3 (b); see also footnote 14 of
this opinion. For example, an individual is automatically
‘‘deemed to pose a risk to the health, safety or well-
being of children, and listed on the central registry,
when . . . (2) the substantiation is for sexual abuse
and the individual responsible is over sixteen . . .
years of age . . . .’’ Regs., Conn. State Agencies § 17a-
101k-3 (b). Furthermore, the name of an individual who
has been substantiated as the individual responsible for
the sexual abuse of a child may be entered on the
central registry prior to the exhaustion or waiver of all
administrative appeals available to the alleged perpetra-
tor. See General Statutes § 17a-101g (d).
In the present case, placement of the alleged perpe-
trator’s name on the central registry was mandatory as
sexual abuse was substantiated and the person respon-
sible was more than sixteen years of age. Therefore,
contrary to the plaintiff’s argument, the department was
not required to conduct a separate analysis of whether
the alleged perpetrator ‘‘pose[d] a risk to the health,
safety or well-being of children . . . .’’ Regs., Conn.
State Agencies § 17a-101k-3 (b). Because the depart-
ment in the present case was not required to make any
additional findings other than the determination that the
allegations of sexual abuse were substantiated before
placing the alleged perpetrator’s name on the central
registry, we are not persuaded by the plaintiff’s argu-
ment bifurcating the department’s findings and we con-
clude that the plaintiff does not have a specific, personal
and legally protected interest in the department’s sub-
stantiation finding. This finding was an essential ele-
ment of the department’s determination that an
individual’s name should be entered on the central regis-
try, which, as previously discussed in this opinion, is
for the benefit of the general public. See Hogan v. Dept.
of Children & Families, supra, 290 Conn. 581; Doe v.
Board of Education, supra, United States District Court,
Docket No. 3:11CV1581 (JBA). We next consider the
plaintiff’s specific asserted interests.
The plaintiff first claims that she has a specific, per-
sonal and legal interest in the entire substantiation pro-
cess because it implicated her reputational and privacy
interests.18 Specifically, the plaintiff claims that because
she was statutorily required to participate in the depart-
ment’s initial substantiation investigation and testified,
revealing personal information, this created a personal
and legal interest in the entire process during which
sensitive information about the plaintiff was released.
See General Statutes § 17a-101g (a) and (b). Although
we recognize that the plaintiff was required to partici-
pate in the investigation and that her information must
remain confidential throughout the investigative and
substantiation appeal process, this does not give the
plaintiff a specific, personal and legal interest in the
department’s decision from which the plaintiff now
appeals.
As we explained in Hogan, the department’s determi-
nation to place an individual’s name on the central
registry is generally confidential. Hogan v. Dept. of Chil-
dren & Families, supra, 290 Conn. 570. There are lim-
ited statutory exceptions to this rule, however, to aid
the department in its investigation of child abuse or
neglect, and to permit specific governmental agencies
or individuals who provide child protection services,
child care service licensing agencies, and agencies ‘‘that
employ persons charged with child protection’’ to
request background checks. Id.; see also General Stat-
utes § 17a-101k (b) (3); Regs., Conn. State Agencies
§ 17a-101k-15.
In the present case, upon receiving a report of possi-
ble child abuse, the department was statutorily required
to initiate an investigation of the matter and to meet
with the alleged victim and her family. General Statutes
§ 17a-101g (a) and (b); see also Policy Manual, supra,
§ 34-3-5. Furthermore, because the report in this case
involved allegations of sexual abuse, the department
was also required to notify the State’s Attorney’s Office,
local law enforcement, and the Bureau Chief of Child
Welfare Services once it had substantiated the allega-
tions of abuse. Policy Manual, supra, § 34-3-6; see also
footnote 13 of this opinion. In support of her claim
regarding her reputational and privacy interests, the
plaintiff relies solely on a newspaper article written
about a criminal prosecution of the alleged perpetrator.
The newspaper article discussed the plaintiff’s age, the
fact that the plaintiff was a relative of the alleged perpe-
trator, the location of the alleged incident, and a video
that was used as evidence in support of the abuse in the
collateral criminal proceeding. Nothing in this article
indicates that the department revealed any confidential
information from the investigative process. Thus, the
plaintiff fails to demonstrate that the department dis-
closed her information outside the requirements of the
investigation into her allegations of abuse.
Although we recognize the importance of maintaining
the confidentiality of the victims of abuse and neglect,
their reputation and privacy rights do not give rise to
a specific, personal and legal interest in the entire sub-
stantiation process. Therefore, an administrative appeal
from the department’s final decision at a substantiation
hearing is not a proper avenue to vindicate the plaintiff’s
reputational and privacy interests.
The plaintiff further claims that the use of the depart-
ment’s decision in a collateral family court proceeding
implicated her constitutional rights to safety and family
integrity, which gave rise to a specific, personal and
legal interest in the department’s decision.19 Specifi-
cally, the plaintiff asserts that the alleged perpetrator
used the department’s decision in a collateral family
court proceeding as evidence that the alleged perpetra-
tor had not sexually abused the plaintiff and that this
substantially increased the chance of reunification with
the plaintiff. We disagree. The fact that the department’s
decision, or prior substantiation finding, was used in a
collateral family court proceeding does not create a
specific, personal and legal interest in the department’s
decision. Instead, if the plaintiff challenges the use of
the department’s decision in the collateral proceeding,
that must be addressed in that collateral proceeding or
in an appeal therefrom.
Both of the plaintiff’s claims, as we understand them,
relate to the department’s failure to notify her and allow
her to participate in the substantiation hearing. Our
resolution of the present appeal does not call upon us
to conduct a substantive review of the department’s
procedures; therefore, we decline the plaintiff’s invita-
tion to do so now. In the present case, the plaintiff has
failed to establish that she has any constitutional rights
grounded in the department’s decision and she may
not assert interests that stem from a challenge to the
department’s overall substantiation appeal process in
an attempt to circumvent the requirement of subject
matter jurisdiction.
On the basis of the foregoing analysis, we conclude
that the plaintiff has not established a specific, personal
and legally protected interest in the department’s deci-
sion greater than any other member of the community.
The plaintiff’s asserted interests in her reputation, pri-
vacy, safety, and family integrity constitute an insuffi-
cient basis upon which classical aggrievement may be
claimed. Because the plaintiff has failed to satisfy the
first prong of the classical aggrievement test, we need
not reach the question of whether the plaintiff’s asserted
interest ‘‘has been specially and injuriously affected’’
by the department’s decision. (Internal quotation marks
omitted.) Handsome, Inc. v. Planning & Zoning Com-
mission, supra, 317 Conn. 526.
The plaintiff does not specifically claim statutory
aggrievement on appeal to this court. Nevertheless, to
the extent that her claim that there is no statutory,
regulatory, or Policy Manual provision that bars an
alleged victim from participating in a substantiation
hearing can be understood as a statutory aggrievement
claim, we address it. The department contends that the
statutory scheme does not entitle the alleged victim
to formal participation in the administrative hearing
process. We agree with the department and conclude
that, to the extent that the plaintiff contends that she
was statutorily aggrieved by the department’s substanti-
ation appeal process, the statutory scheme does not
create an interest for the alleged victim in the substanti-
ation hearing.
A review of the statutory scheme demonstrates that
the alleged victim is not a party to the substantiation
appeal process and, as we have discussed previously
in this opinion, the process is designed to protect the
community. Although the alleged victim is entitled to
be notified of the outcome of the department’s initial
investigation into the alleged victim’s allegations of
abuse or neglect; see Policy Manual, supra, § 34-3-6; the
department’s substantiation appeal process does not
afford the alleged victim an opportunity to challenge
the department’s determination that such allegations
are unfounded. Moreover, despite the fact that the
department is required to provide the alleged perpetra-
tor with notice of the substantiation hearing, no statute,
regulation, or provision in the Policy Manual requires
that the alleged victim be informed of the substantiation
hearing or its outcome. Lastly, it is notable that the
alleged victim who is the subject of the substantiation is
prohibited from testifying at the substantiation hearing.
Regs., Conn. State Agencies § 17a-101k-8 (h); see also
Policy Manual, supra, § 22-12-7.
In support of her argument that she maintains an
interest in the department’s decision, the plaintiff cites
to a provision in the Policy Manual that provides that
‘‘[o]ther persons may be permitted to be present for all
or part of the hearing at the discretion of the hearing
officer . . . .’’ (Emphasis added.) Policy Manual,
supra, § 22-12-6. The fact that ‘‘other persons’’ may be
present at a substantiation hearing at the discretion of
the hearing officer, however, does not translate into a
right for the alleged victim to participate in these hear-
ings. In fact, in light of the lack of a provision entitling
the alleged victim to notice of the substantiation hearing
and the prohibition on the alleged victim’s testimony
at the substantiation hearing, it seems clear that this
provision is not intended to provide alleged victims with
an opportunity to be present at substantiation hearings.
See General Statutes § 17a-101k (c) (3); Regs., Conn.
State Agencies § 17a-101k-8 (h). Nothing in the statutory
scheme makes alleged victims parties to substantiation
hearings or otherwise affords them rights to appeal
from the reversal of a decision. Accordingly, we con-
clude that the plaintiff is not ‘‘within the zone of inter-
ests’’ intended to be covered by the statutory scheme.
(Internal quotation marks omitted.) Handsome, Inc. v.
Planning & Zoning Commission, supra, 317 Conn. 525.
The plaintiff cannot demonstrate that the statutory
scheme was designed to protect any interest of hers or
that she has a specific, personal and legal interest in the
department’s decision, or any part of the department’s
substantiation appeal process. Therefore, the plaintiff
is not a proper party to request an adjudication of the
issue. Accordingly, we conclude that the trial court
properly dismissed the plaintiff’s claims for lack of
standing.
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
We note that, although Isabella D. is the named plaintiff, the only claim
in the present case was brought on Isabella D.’s behalf by her mother as
next friend. We also note that, although Isabella D.’s mother is also named
as a plaintiff in the present case, she has not asserted any claim in her
individual capacity. For the sake of simplicity, we refer to Isabella D., acting
through her mother as next friend, as the plaintiff.
2
We note that the Commissioner of Children and Families (commissioner)
was also named as a defendant in the underlying action and is a party
to the present appeal. Because the commissioner acts on behalf of the
department, references in this opinion to the department include the commis-
sioner. References to the commissioner contained within quotations have
been retained for the sake of simplicity.
3
Section 17a-101k-1 (14) of the Regulations of Connecticut State Agencies
defines ‘‘ ‘[c]entral registry’ ’’ as ‘‘the confidential data file maintained as
part of the department’s computerized database, of persons who have been
substantiated as individuals responsible for an act or acts of child abuse or
neglect and for whom the commissioner has made a determination, based
upon a standard of reasonable cause, that the individual poses a risk to the
health, safety or well-being of children . . . .’’
Before the trial court, the plaintiff framed the issue as ‘‘whether the
[plaintiff] has standing to seek reconsideration of the finding that insufficient
evidence existed to support a finding of substantiation of abuse.’’ The depart-
ment contended before the trial court that the dispositive issue was ‘‘whether
the [plaintiff] has standing to appeal the actual decision that insufficient
evidence existed to support a finding of substantiation of abuse.’’ The trial
court addressed this discrepancy and noted that ‘‘[w]hile the plaintiff may
be technically correct, it does not appear to make a difference because if
a minor child lacks standing to challenge the underlying determination, the
court does not see how she can have standing to challenge a refusal to
reconsider that determination.’’ We agree with the trial court and find it
necessary to address only whether the plaintiff has standing to appeal from
the decision of the department determining that there was insufficient evi-
dence to support a finding of substantiation of abuse and neglect.
4
We note that the department also offered two alternative grounds for
affirmance of the trial court’s judgment: (1) the plaintiff’s petition for recon-
sideration did not comply with General Statutes § 4-181a because the plaintiff
was not a party to the substantiation hearing; and (2) the department’s denial
of the plaintiff’s petition for reconsideration was not a ‘‘ ‘[f]inal decision’ ’’
pursuant to General Statutes § 4-166 (5) and, therefore, was not appealable
to the trial court pursuant to General Statutes § 4-183 (a). We do not reach
either of the department’s alternative grounds for affirmance, however,
because we conclude that the plaintiff lacks standing to bring this action.
5
General Statutes § 17a-101g provides in relevant part: ‘‘(a) Upon receiving
a report of child abuse or neglect, as provided in sections 17a-101a to 17a-
101c, inclusive, or section 17a-103, in which the alleged perpetrator is (1)
a person responsible for such child’s health, welfare or care, (2) a person
given access to such child by such responsible person, or (3) a person
entrusted with the care of a child, the Commissioner of Children and Fami-
lies, or the commissioner’s designee, shall cause the report to be classified
and evaluated immediately. If the report contains sufficient information to
warrant an investigation, the commissioner shall make the commissioner’s
best efforts to commence an investigation of a report concerning an immi-
nent risk of physical harm to a child or other emergency within two hours
of receipt of the report and shall commence an investigation of all other
reports within seventy-two hours of receipt of the report. A report classified
by the commissioner, or the commissioner’s designee, as lower risk may
be referred for family assessment and services pursuant to subsection (g)
of this section. Any such report may thereafter be referred for standard
child protective services if safety concerns for the child become evident. A
report referred for standard child protective services may be referred for
family assessment and services at any time if the department determines
there is a lower risk to the child. If the alleged perpetrator is a school
employee, as defined in section 53a-65, or is employed by an institution or
facility licensed or approved by the state to provide care for children, the
department shall notify the Department of Education or the state agency
that has issued such license or approval to the institution or facility of the
report and the commencement of an investigation by the Commissioner of
Children and Families. The department shall complete any such investigation
not later than forty-five calendar days after the date of receipt of the report.
If the report is a report of child abuse or neglect in which the alleged
perpetrator is not a person specified in subdivision (1), (2) or (3) of this
subsection, the Commissioner of Children and Families shall refer the report
to the appropriate local law enforcement authority for the town in which
the child resides or in which the alleged abuse or neglect occurred.
‘‘(b) The investigation shall include a home visit at which the child and
any siblings are observed, if appropriate, a determination of the nature,
extent and cause or causes of the reported abuse or neglect, a determination
of the person or persons suspected to be responsible for such abuse or
neglect, the name, age and condition of other children residing in the same
household and an evaluation of the parents and the home. The report of
such investigation shall be in writing. The investigation shall also include,
but not be limited to, a review of criminal conviction information concerning
the person or persons alleged to be responsible for such abuse or neglect
and previous allegations of abuse or neglect relating to the child or other
children residing in the household or relating to family violence. After an
investigation into a report of abuse or neglect has been completed, the
commissioner shall determine, based upon a standard of reasonable cause,
whether a child has been abused or neglected, as defined in section 46b-
120. If the commissioner determines that abuse or neglect has occurred,
the commissioner shall also determine whether: (1) There is an identifiable
person responsible for such abuse or neglect; and (2) such identifiable
person poses a risk to the health, safety or well-being of children and should
be recommended by the commissioner for placement on the child abuse
and neglect registry established pursuant to section 17a-101k. If the commis-
sioner has made the determinations in subdivisions (1) and (2) of this
subsection, the commissioner shall issue notice of a recommended finding
to the person suspected to be responsible for such abuse or neglect in
accordance with section 17a-101k. . . .
‘‘(d) If the child abuse or neglect resulted in or involves (1) the death of
a child; (2) the risk of serious physical injury or emotional harm of a child;
(3) the serious physical harm of a child; (4) the arrest of a person due to
abuse or neglect of a child; (5) a petition filed by the commissioner pursuant
to section 17a-112 or 46b-129; or (6) sexual abuse of a child, entry of the
recommended finding may be made on the child abuse or neglect registry and
information concerning the finding may be disclosed by the commissioner
pursuant to a check of the child abuse or neglect registry or request for
information by a public or private entity for employment, licensure, or
reimbursement for child care purposes pursuant to programs administered
by the Department of Social Services or pursuant to any other general statute
that requires a check of the child abuse or neglect registry, prior to the
exhaustion or waiver of all administrative appeals available to the person
suspected to be responsible for the abuse or neglect as provided in section
17a-101k. . . .’’
6
Section 17a-101k-4 (a) of the Regulations of Connecticut State Agencies
provides: ‘‘Any person: (1) who has been substantiated as an individual
responsible for child abuse or neglect; (2) against whom a determination
is made that the individual’s name should be entered on the central registry;
or (3) who is the parent or guardian of a child who has been substantiated
as an individual responsible for child abuse or neglect, and who disagrees
with such substantiation or registry finding may request an internal review
of the substantiation or registry finding.’’
7
Section 17a-101k-11 (a) of the Regulations of Connecticut State Agencies
provides that ‘‘[a]ny request for reconsideration of a final decision [of the
department’s hearing officer] is governed by section 4-181a of the Connecti-
cut General Statutes.’’ General Statutes § 4-181a (a) (1) provides in relevant
part: ‘‘Unless otherwise provided by law, a party in a contested case may,
within fifteen days after the personal delivery or mailing of the final decision,
file with the agency a petition for reconsideration of the decision . . . .’’
8
In her complaint, the plaintiff alleged, inter alia, that: (1) she was
‘‘aggrieved’’ within the meaning of § 4-183 because ‘‘[t]he conduct of the
substantiation hearing was arbitrary, capricious, characterized by abuses
of discretion and clearly unwarranted exercises of discretion—including,
but not limited to, the consideration of inflammatory, unsupported and
uncorroborated hearsay evidence’’; (2) General Statutes § 17a-101k is uncon-
stitutional, as applied to the facts of this case; and (3) the department ‘‘failed
to properly, completely or fully present all relevant and reasonably available
evidence at the substantiation hearing . . . .’’
9
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
10
See footnote 5 of this opinion.
11
General Statutes § 17a-101k provides in relevant part: ‘‘(a) The Commis-
sioner of Children and Families shall maintain a registry of the commission-
er’s findings of abuse or neglect of children pursuant to section 17a-101g
that conforms to the requirements of this section. The regulations . . . shall
provide for the use of the registry on a twenty-four-hour daily basis to
prevent or discover abuse of children and the establishment of a hearing
process for any appeal by a person of the commissioner’s determination
that such person is responsible for the abuse or neglect of a child pursuant
to subsection (b) of section 17a-101g. The information contained in the
registry and any other information relative to child abuse, wherever located,
shall be confidential, subject to such statutes and regulations governing
their use and access as shall conform to the requirements of federal law or
regulations. Any violation of this section or the regulations adopted by the
commissioner under this section shall be punishable by a fine of not more
than one thousand dollars or imprisonment for not more than one year.
‘‘(b) Upon the issuance of a recommended finding that an individual is
responsible for abuse or neglect of a child pursuant to subsection (b) of
section 17a-101g, the commissioner shall provide notice of the finding, by
first class mail, not later than five business days after the issuance of such
finding, to the individual who is alleged to be responsible for the abuse or
neglect. . . .
‘‘(c) (1) Following a request for appeal, the commissioner or the commis-
sioner’s designee shall conduct an internal review of the recommended
finding to be completed no later than thirty days after the request for appeal
is received by the department. The commissioner or the commissioner’s
designee shall review all relevant information relating to the recommended
finding, to determine whether the recommended finding is factually or legally
deficient and ought to be reversed. Prior to the review, the commissioner
shall provide the individual access to all relevant documents in the posses-
sion of the commissioner regarding the finding of responsibility for abuse
or neglect of a child, as provided in section 17a-28.
‘‘(2) The individual or the individual’s representative may submit any
documentation that is relevant to a determination of the issue and may, at
the discretion of the commissioner or the commissioner’s designee, partici-
pate in a telephone conference or face-to-face meeting to be conducted for
the purpose of gathering additional information that may be relevant to
determining whether the recommended finding is factually or legally
deficient.
‘‘(3) If the commissioner or the commissioner’s designee, as a result of
the prehearing review, determines that the recommended finding of abuse
or neglect is factually or legally deficient, the commissioner or the commis-
sioner’s designee shall so indicate, in writing, and shall reverse the recom-
mended finding. The commissioner shall send notice to the individual by
certified mail of the commissioner’s decision to reverse or maintain the
finding not later than five business days after the decision is made. If the
finding is upheld, the notice shall be made in accordance with section 4-
177 and shall notify the individual of the right to request a hearing. The
individual may request a hearing not later than thirty days after receipt of
the notice. The hearing shall be scheduled not later than thirty days after
receipt by the commissioner of the request for a hearing, except for good
cause shown by either party.
‘‘(d) . . . (2) At the hearing, the individual may be represented by legal
counsel. The burden of proof shall be on the commissioner to prove that
the finding is supported by a fair preponderance of the evidence submitted
at the hearing.
‘‘(3) Not later than thirty days after the conclusion of the hearing, the
hearing officer shall issue a written decision to either reverse or uphold the
finding. The decision shall contain findings of fact and a conclusion of law
on each issue raised at the hearing.
‘‘(e) Any individual aggrieved by the decision of the hearing officer may
appeal the decision in accordance with section 4-183. . . .’’
12
Section 17a-101k-1 (11) of the Regulations of Connecticut State Agencies
defines ‘‘ ‘[s]ubstantiated’ ’’ to mean ‘‘that the department has found after
investigation of a report, pursuant to section 17a-101g of the Connecticut
General Statutes, that there is reasonable cause to believe that child abuse
or neglect has occurred and that a specific person is the individual responsi-
ble for an act or acts of child abuse or neglect . . . .’’
13
We note that the aforementioned individuals are notified of the outcome
of the department’s initial investigation regardless of whether the allegations
are substantiated or unsubstantiated. Policy Manual, supra, § 34-3-6. Further-
more, in the event that allegations of sexual abuse or serious physical abuse
are substantiated, the department must notify the State’s Attorney’s Office,
local law enforcement, and the Bureau Chief of Child Welfare Services. Id.
14
Section 17a-101k-3 (b) of the Regulations of Connecticut State Agencies
provides: ‘‘A person shall be deemed to pose a risk to the health, safety or
well-being of children, and listed on the central registry, when: (1) the child
abuse or neglect resulted in or involves (A) the death of a child, (B) the
risk of serious physical injury of a child, or (C) the serious physical or
emotional harm of a child; (2) the substantiation is for sexual abuse and
the individual responsible is over sixteen (16) years of age; (3) there is a
second substantiation for physical or emotional abuse; (4) the individual
responsible for physical or emotional abuse is a person entrusted with the
care of a child within the meaning of section 17a-101k-1 (6) of the Regulations
of Connecticut State Agencies; (5) the individual responsible is arrested for
the act of abuse or neglect that is substantiated; or (6) a petition alleging
that a child is neglected or uncared for, or a petition alleging grounds for
the termination of parental rights pursuant to section 46b-129 or section
17a-112 of the Connecticut General Statutes respectively, and based at least
in part on the allegations that form the basis of the substantiation, is pending
in Superior Court or on appeal.’’
15
Section 22-12-6 of the Policy Manual also provides that in the event that
the alleged perpetrator is a minor, the parent or guardian of such individual
is also a party to the substantiation hearing.
16
We note that the plaintiff also contends on appeal that the victim’s rights
amendment of the Connecticut constitution is broad enough to afford the
plaintiff protection in this case. See Conn. Const., amend. XXIX. At oral
argument before the trial court, however, the plaintiff conceded that this
constitutional provision does not apply to the present case. Therefore, we
decline to address this claim on appeal.
17
The plaintiff asserts that her constitutionally protected rights to safety
and family integrity were harmed by a collateral family court proceeding
and cites to Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982), Wooley v. Baton Rouge, 211 F.3d 913 (5th Cir. 2000), and In re
Angel A., Superior Court, judicial district of Middlesex, Child Protection
Session at Middletown, 2004 WL 2167036, *1 (August 27, 2004), in support
of her claim. We do not find these cases to be relevant authority because
they involved parental rights termination and custody proceedings, which
are not the subject of this appeal.
18
The plaintiff cites to Doe v. Boland, 698 F.3d 877 (6th Cir. 2012), and
Doe v. Barrington, 729 F. Supp. 376 (D.N.J. 1990), in support of her claim.
We find these cases wholly inapplicable to the present case.
In Boland, in an attempt to help the defendants avoid child pornography
charges, an attorney downloaded images of two identifiable children from
a stock photography website and digitally manipulated the photographs to
make it appear as though the children were engaged in sexual acts. Doe v.
Boland, supra, 698 F.3d 879. The question presented in Boland was whether
the plaintiffs satisfied the requirements for obtaining relief under 18 U.S.C.
§ 2255, which provides a civil remedy of a minimum of $150,000 for ‘‘[a]ny
person who, while a minor, was a victim’’ of various sex crimes ‘‘and who
suffers personal injury as a result . . . .’’ Id., 880. The court in Boland held
that ‘‘[b]y sharing the morphed images with defense counsel and court
staff and displaying the images in a courtroom, [the attorney] invaded [the
children’s legally protected reputational] interests’’ and that this sufficed
‘‘to establish standing . . . .’’ Id., 882.
The plaintiff further cites to Doe v. Barrington, supra, 729 F. Supp. 376,
for the general proposition that an individual maintains a right to privacy
under the fourteenth amendment. In Barrington, after police officers
revealed to the plaintiff’s neighbors that the plaintiff’s husband had con-
tracted Acquired Immune Deficiency Syndrome (AIDS), the neighbor con-
tacted the media and the parents of children in the local school, which the
plaintiff’s four children also attended. Id., 378–79. The plaintiff, as guardian
for her minor children, brought an action pursuant to 42 U.S.C. § 1983 against
the police officers for violation of her children’s rights to privacy. Id., 386.
The court held that the plaintiff’s ‘‘children ha[d] standing to sue for the
violation of their right to privacy from governmental disclosure of their
father’s infection with AIDS’’ because a family member’s diagnosis with
AIDS constitutes a ‘‘personal matter’’ that is constitutionally protected. Id.
Neither of these cases supports the plaintiff’s claim that she has a specific,
personal and legal interest in the proceeding in the present case because
it implicated her reputational and privacy interests.
19
The plaintiff further claims that her interests were harmed because she
was deprived of the protective services that flow from a substantiation
finding. To the extent that the plaintiff contends that this gives her a specific,
personal and legal interest in the substantiation process, we decline to
address this contention because the plaintiff raised it for the first time in
her reply brief. See, e.g., Rathbun v. Health Net of the Northeast, Inc., 315
Conn. 674, 703–704, 110 A.3d 304 (2015).