Gagliardi v. Commissioner of Children & Families ( 2015 )

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TODD GAGLIARDI v. COMMISSIONER OF CHILDREN
AND FAMILIES
(AC 36421)
Keller, Mullins and Bear, Js.
Submitted on briefs January 9—officially released March 3, 2015
(Appeal from Superior Court, judicial district of New
Britain, Prescott, J.)
William B. Westcott filed a brief for the appellant
(plaintiff).
George Jepsen, attorney general, and John E. Tucker
and Benjamin Zivyon, assistant attorneys general, filed
a brief for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Todd Gagliardi, appeals
from the judgment rendered by the trial court dismiss-
ing his appeal from an administrative decision of the
Commissioner of the Department of Children and Fami-
lies (commissioner) that substantiated claims of child
sexual abuse committed by the plaintiff against G.M.,1
and placed the plaintiff’s name on the commissioner’s
child abuse and neglect central registry (registry). On
appeal, the plaintiff claims that the court erred in dis-
missing his appeal from that administrative decision by
erroneously concluding that an exhibit containing text
messages admitted during the plaintiff’s substantiation
hearing was sufficiently authenticated. We affirm the
judgment of the court.
The following facts, as set forth by the trial court,
and procedural history are relevant here. ‘‘In May 2012,
G.M. was a sixteen year old junior at Branford High
School. The plaintiff . . . was a teacher at Branford
High School, and had been G.M.’s Spanish teacher dur-
ing her freshman year. Between May 26 and May 31,
2012, the plaintiff exchanged text messages of an
increasingly sexual nature with G.M. The text messages
include graphic descriptions of various sexual acts that
G.M. and the plaintiff [purportedly] wanted to perform
on each other and of sexual activities that they had
engaged in with others. The plaintiff and G.M. did not
have any physical contact during this weeklong period.
‘‘G.M.’s mother ‘periodically pulls’ her daughter’s cell
phone records. On May 31, 2012, G.M.’s mother obtained
[G.M.’s] text message history from her cell phone pro-
vider and discovered the texts between G.M. and the
plaintiff. G.M.’s mother reported the texts to the school
and provided copies of the transcribed messages to the
Branford Police Department. The police then provided
a copy of the transcript to [an investigator working
for the commissioner, Shanelle] Ingram. G.M. admitted
sending text messages to the plaintiff. [The commis-
sioner] and the Branford Police Department completed
a joint investigation, but criminal charges against the
plaintiff were not filed because G.M.’s mother did not
want to press charges, no physical contact had
occurred, and the plaintiff had resigned from his teach-
ing position.
‘‘In July 2012, the plaintiff received notice that the
[commissioner] had completed [the] investigation and
had substantiated the allegations against him. The
notice further informed the plaintiff that [the commis-
sioner] deemed him a risk to the safety of children, and
recommended that his name be placed on the [registry].2
The plaintiff requested additional review of the findings
in accordance with General Statutes § 17a-101k (b)
and (c).
‘‘On August 27, 2012, [the commissioner] notified the
plaintiff that [she] had conducted an internal review and
had chosen to uphold [her] findings. At the plaintiff’s
request, [the commissioner] then held a substantiation
hearing on November 29, 2012. Although he was repre-
sented by counsel at the hearing, the plaintiff decided
not to personally attend. At the hearing, a transcript of
text messages that were sent by the plaintiff and G.M.
to each other was admitted into evidence. The hearing
officer, by relying on the content of the text messages
themselves and other evidence in the record, concluded
that the text messages were sufficiently authenticated
and admitted them into evidence.
‘‘[The commissioner] issued a final written decision
on January 18, 2013, upholding the substantiation of
sexual abuse and the plaintiff’s placement on the [regis-
try]. The [hearing officer’s] decision was based primar-
ily on the sexual content of the text messages, which
were furnished by G.M.’s mother, who obtained them
from [the cell] phone company. The [hearing officer]
reasoned that ‘[t]he content of the text messages
between the [plaintiff] and [G.M.] supports the [commis-
sioner’s] finding that the [plaintiff] sexually exploited
her through grooming behavior designed to result in
more intimate sexual conduct.’ ’’ (Footnotes altered.)
Pursuant to General Statutes § 4-183,3 the plaintiff
appealed from the commissioner’s administrative deci-
sion to the trial court on the basis of his claim that the
text messages at issue were improperly admitted as
evidence before the hearing officer because they were
not sufficiently authenticated to prove that he had
authored them.
The court dismissed the plaintiff’s appeal. At the out-
set, the court emphasized that administrative tribunals
are not bound by the Connecticut Code of Evidence and
may consider hearsay in determining the authenticity of
exhibits that would be inadmissible under the rules of
evidence so long as the exhibits are ‘‘reliable, probative,
material, and not unduly repetitious.’’ The court
acknowledged that the text messages were authenti-
cated primarily on the basis of their content, which
contained multiple layers of hearsay. Despite this, the
court found that the text messages were trustworthy
and reliable for three reasons. First, the court rejected
the notion that the lengthy chain of custody of the text
message records rendered them untrustworthy.
According to the court, the text message records were
transferred from (1) the company providing G.M.’s cell
phone service to (2) G.M.’s mother, who transferred
them to (3) the police, who transferred them to (4) the
commissioner. The court found that the plaintiff had
not alleged that any of the foregoing parties altered the
records or had a motive to do so. Therefore, the court
refused to conclude that the lengthy chain of custody of
the records, without more, undermined their reliability.
Second, the court agreed with the hearing officer’s
finding that the record contained no evidence sug-
gesting that G.M. had any reason to fabricate the allega-
tions raised against the plaintiff. The court noted that
G.M. admitted to the exchange of text messages
between herself and the plaintiff only after her mother
discovered the text messages. Further, the court empha-
sized the hearing officer’s finding that there was no
evidence presented suggesting that G.M.’s mental state
was impaired or impacted the reliability of the state-
ments concerning the text messages that she provided
to Ingram during Ingram’s investigation.
Third, the court found that the content of the text
messages was sufficient to authenticate the plaintiff as
their author. The court noted that text messages may
be authenticated by circumstantial evidence of ‘‘ ‘dis-
tinctive characteristics’ ’’ within the text messages that
identify the author. The court listed the following ‘‘ ‘dis-
tinctive characteristics’ ’’ contained in the text mes-
sages that sufficiently authenticated the identity of the
author of the text messages as the plaintiff: (1) the
sender identified himself as a Spanish teacher at G.M.’s
school; (2) the messages contained flirting and repeated
warnings about the need for secrecy, ‘‘exactly what one
would expect from a teacher attempting to establish a
sexual relationship with a student’’; and (3) many of
the text messages focused on various articles of cloth-
ing that the plaintiff and G.M. wore at school.
In addition, the court rejected the plaintiff’s claims
that (1) someone pretending to be the plaintiff sent the
text messages, (2) there was no evidence connecting
the plaintiff’s cell phone account with the cell phone
number that sent the text messages to G.M., and (3)
there was no corroborating evidence of an inappropri-
ate relationship between the plaintiff and G.M. The
court found that the plaintiff failed to introduce any
evidence in support of the first two claims. Moreover,
the court stated that, in any event, the commissioner
did not have the burden at the substantiation hearing to
rule out every possible inconsistency with authenticity.
Lastly, the court found that the plaintiff had conceded
that, if the text messages were properly authenticated
and admitted, then the hearing officer had substantial
evidence to support her decision.
For the foregoing reasons, the court concluded that
the hearing officer did not abuse her discretion by
admitting the text messages into evidence and dis-
missed the plaintiff’s appeal. This appeal followed.
The plaintiff claims that the court erred in dismissing
his appeal from that administrative decision because
the court erroneously concluded that the hearing officer
did not abuse her discretion by admitting into evidence
the text messages at issue in this appeal. Specifically,
the plaintiff claims that the text messages were not
properly authenticated to prove that he was their
author. We disagree.
We begin by setting forth the relevant standard of
review and applicable law. ‘‘We review the issues raised
by the plaintiff in accordance with the limited scope of
judicial review afforded by the [Uniform Administrative
Procedure Act (UAPA), General Statutes § 4-166 et
seq.]4 . . . . Judicial review of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . Our ultimate duty is to determine,
in view of all of the evidence, whether the agency, in
issuing its order, acted unreasonably, arbitrarily, ille-
gally or in abuse of its discretion.’’ (Footnote added;
internal quotation marks omitted.) Family Garage, Inc.
v. Commissioner of Motor Vehicles, 130 Conn. App.
353, 357, 23 A.3d 752, cert. denied, 302 Conn. 931, 28
A.3d 345 (2011). ‘‘[T]he plaintiff bears the burden of
demonstrating that a hearing officer’s evidentiary ruling
is arbitrary, illegal or an abuse of discretion.’’ (Internal
quotation marks omitted.) Lucarelli v. Freedom of
Information Commission, 135 Conn. App. 807, 817, 43
A.3d 237 (2012).
‘‘An administrative finding is supported by substantial
evidence if the record affords a substantial basis of fact
from which the fact in issue can be reasonably inferred.
. . . The substantial evidence rule imposes an
important limitation on the power of the courts to over-
turn a decision of an administrative agency . . . and
. . . provide[s] a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . [I]t is some-
thing less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence. . . .
‘‘[A]s to questions of law, [t]he court’s ultimate duty
is only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion. . . . Conclusions of law
reached by the administrative agency must stand if the
court determines that they resulted from a correct appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts.’’ (Internal quota-
tion marks omitted). Family Garage, Inc. v. Commis-
sioner of Motor Vehicles, supra, 130 Conn. App. 357–58.
‘‘Authentication is . . . a necessary preliminary to
the introduction of most writings in evidence . . . .’’
(Internal quotation marks omitted.) Nash v. Stevens,
144 Conn. App. 1, 39, 71 A.3d 635, cert. denied, 310
Conn. 915, 76 A.3d 628 (2013). ‘‘The requirement of
authentication as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding
that the offered evidence is what its proponent claims
it to be. . . . In general, a writing may be authenticated
by a number of methods, including direct testimony or
circumstantial evidence. . . . Both courts and com-
mentators have noted that the showing of authenticity
is not on a par with the more technical evidentiary rules
that govern admissibility, such as hearsay exceptions,
competency and privilege. . . . Rather, there need
only be a prima facie showing of authenticity to the
court. . . . Once a prima facie showing of authorship
is made to the court, the evidence, as long as it is
otherwise admissible, goes to the [finder of fact], which
ultimately will determine its authenticity.’’ (Citation
omitted; internal quotation marks omitted.) Id., 38–39.
‘‘[T]he bar for authentication of evidence is not partic-
ularly high. . . . [T]he proponent need not rule out all
possibilities inconsistent with authenticity, or . . .
prove beyond any doubt that the evidence is what it
purports to be . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) United States v. Vayner, 769 F.3d
125, 130 (2d Cir. 2014).5 In addition, ‘‘[a]n electronic
document may . . . be authenticated by traditional
means such as direct testimony of the purported author
or circumstantial evidence of ‘distinctive characteris-
tics’ in the document that identify the author.’’ State v.
Eleck, 130 Conn. App. 632, 640, 23 A.3d 818 (2011), aff’d,
314 Conn. 123, 100 A.3d 817 (2014).
Furthermore, this court need not consider whether
the text messages were authenticated and admitted in
accordance with the Connecticut Code of Evidence. It is
axiomatic that ‘‘administrative tribunals are not strictly
bound by the rules of evidence . . . . [T]hey may con-
sider exhibits [that] would normally be incompetent in
a judicial proceeding, so long as the evidence is reliable
and probative.’’ (Internal quotation marks omitted.)
F.M. v. Commissioner of Children & Families, 143
Conn. App. 454, 477, 72 A.3d 1095 (2013). According to
General Statutes § 4-178, in a contested case before an
agency, ‘‘[a]ny oral or documentary evidence may be
received, but the agency shall, as a matter of policy,
provide for the exclusion of irrelevant, immaterial or
unduly repetitious evidence . . . .’’ See also Regs.,
Conn. State Agencies § 17a-101k-8 (g).
‘‘Moreover, hearsay evidence is not prohibited in
administrative proceedings . . . . Hearsay testimony
generally is admissible in administrative hearings as
long as it is sufficiently trustworthy.’’ (Citation omitted;
internal quotation marks omitted.) F.M. v. Commis-
sioner of Children & Families, supra, 143 Conn.
App. 477.
On appeal, the plaintiff asserts that the text messages
admitted into evidence during the substantiation hear-
ing were not properly authenticated.6 According to the
plaintiff, the trial court’s focus on the chain of custody
of the text message records and G.M.’s alleged lack
of motivation to fabricate the allegations against the
plaintiff was misplaced because the foregoing factors
have no bearing on whether the plaintiff authored the
text messages to G.M. Furthermore, the plaintiff claims
that the content of the text messages alone, without
corroboration, was insufficient to prove that he
authored them. The plaintiff also claims that the multi-
ple layers of hearsay contained within the text messages
rendered them untrustworthy.
After a careful review of the record, we agree with
the court and conclude that the text messages were
sufficiently authenticated to identify the plaintiff as
their author. The court correctly found that there was
no evidence of tampering in the chain of custody of the
text message records, which bolsters the reliability of
the records. Furthermore, the court correctly found
that there was no evidence indicating that G.M. fabri-
cated the allegations against the plaintiff, which further
buttresses the reliability of the records.
The plaintiff’s chief assertion is that the content of
the text messages did not establish that he authored
them. Although the plaintiff concedes that, on the basis
of the content of the text messages and the time period
within which they were exchanged, he fell within the
category of individuals who may have authored them,
he claims that the evidence failed to prove affirmatively
that he was their author. The plaintiff argues that there
was no evidence that there was any inappropriate physi-
cal contact between the plaintiff and G.M., or that the
plaintiff had a cell phone account associated with the
cell phone number from which G.M. received the text
messages. The plaintiff claims that, without such cor-
roborating evidence, the text messages, taken alone,
did not sufficiently establish that he authored them.
We disagree.
As we previously explained in this opinion, the bar
for a finding of authenticity is not high. United States v.
Vayner, supra, 769 F.3d 130. A party proffering evidence
does not have the burden to disprove all possible incon-
sistencies with authenticity, or prove beyond all doubt
that the text messages are what the party purports them
to be. Id. All that is required is a prima facie showing
of authenticity. Nash v. Stevens, supra, 144 Conn. App.
39. This may be illustrated through circumstantial evi-
dence drawn from the content of the text messages
alone, without additional evidence. See State v. Eleck,
supra, 130 Conn. App. 642–44 (noting that cases estab-
lishing authorship of messages based on their content
focus on particularly distinctive identifying characteris-
tics of messages and often, but not always, corroborat-
ing evidence).
Here, the contents of the text messages established
a prima facie showing that the plaintiff authored them.
As the trial court correctly found, the text messages
contained distinctive characteristics sufficient to
authenticate the identity of the author as the plaintiff.
The exhibit containing the text message records
spanned forty two pages and included numerous,
detailed conversations. Cf. State v. Eleck, supra, 130
Conn. App. 642 (contents of single electronic message
vaguely referencing history between parties insufficient
to prove authorship). In the text messages sent to G.M.,
the author provided the following information: he iden-
tified himself as a teacher at G.M.’s school; he noted
detailed physical characteristics of G.M. and also com-
plimented G.M. on her appearance at school on certain
days; he repeatedly asked G.M. to delete the text mes-
sages and expressed concern about losing his job if a
third party discovered the text messages; he referenced
sending text messages to another female student at the
school; he mentioned seeing G.M. at her high school’s
junior prom and specifically stated that G.M. did not
speak to him at the prom, a fact G.M. confirmed in a
subsequent text message; he noted that G.M.’s sister
oftentimes looked at him at school, a fact G.M. con-
firmed in a subsequent text message; he mentioned
seeing G.M.’s mother at a parent teacher conference
and noted similarities between G.M. and her mother;
he asked G.M. whether she believed that a female stu-
dent she knew disliked him as a result of the attention
he gave to G.M.; he listed the names of a few female
students at the school whom he considered attractive;
he discussed interactions he had with teachers he knew
in the school; he mentioned seeing G.M. during lunch
breaks at the school; he described having a ‘‘special’’
relationship with G.M. ‘‘since the beginning,’’ a state-
ment G.M. agreed with in a subsequent text; he noted
giving G.M. a ‘‘high five’’ at school, a fact G.M. confirmed
in a subsequent text; and he mentioned observing at
one point G.M. speaking with another student at school,
a fact G.M. confirmed in a subsequent text. The forego-
ing details contained in the text messages provided the
hearing officer with sufficient evidence to find that the
plaintiff authored the text messages sent to G.M. The
lack of corroborating evidence, such as evidence of
other interactions between the plaintiff and G.M. or
phone records linking the plaintiff to the cell phone
number that sent the text messages to G.M., did not
diminish the probative value of the text message
records.
The plaintiff further claims that the text messages
were unreliable because they contained layers of hear-
say and, therefore, the hearing officer abused her discre-
tion by primarily relying on them to find that the plaintiff
had authored the text messages. We disagree. Evidence
containing hearsay may be admitted during administra-
tive hearings so long as it is sufficiently trustworthy.
F.M. v. Commissioner of Children & Families, supra,
143 Conn. App. 477. The record contains no evidence
indicating that the text messages are untrustworthy. As
we previously mentioned, the chain of custody did not
indicate any evidence of alterations to the text mes-
sages, and there was no evidence indicating that G.M.
had any motive to fabricate the allegations against the
plaintiff. Therefore, the hearing officer did not abuse
her discretion by admitting the exhibit containing the
text messages because the mere fact that the text mes-
sages contained hearsay did not render them untrust-
worthy.
For the foregoing reasons, we agree with the court
and conclude that the hearing officer had substantial
evidence indicating that the plaintiff authored the text
messages sent to G.M. Despite the fact that the text
messages contained hearsay, the hearing officer did not
act unreasonably, arbitrarily, illegally, or in abuse of
her discretion in admitting into evidence the exhibit
containing the text messages.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
General Statutes § 17a-101k (a) provides in relevant part: ‘‘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
. . . . 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. . . .’’
General Statutes § 17a-101g provides in relevant part: ‘‘(b) . . . 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.
‘‘(c) Except as provided in subsection (d) of this section, no entry of the
recommended finding shall be made on the child abuse or neglect registry
and no information concerning the finding shall be disclosed by the commis-
sioner pursuant to a check of the child abuse or neglect registry . . . until
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. . . .’’
3
General Statutes § 4-183 (a) provides: ‘‘A person who has exhausted all
administrative remedies available within the agency and who is aggrieved
by a final decision may appeal to the Superior Court as provided in this
section. The filing of a petition for reconsideration is not a prerequisite to
the filing of such an appeal.’’
4
General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall
not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. The court shall affirm the decision of the
agency unless the court finds that substantial rights of the person appealing
have been prejudiced because the administrative findings, inferences, con-
clusions, or decisions are: (1) In violation of constitutional or statutory
provisions; (2) in excess of the statutory authority of the agency; (3) made
upon unlawful procedure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or (6) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. . . .’’
5
Vayner concerns rule 901 of the Federal Rules of Evidence, which is
similar § 9-1 of the Connecticut Code of Evidence regarding the requirement
of authentication.
6
In his appellate brief, in the context of his analysis of the authentication
issue, the plaintiff broadly claims that a procedural due process violation
occurred on the basis of his alleged failure to have a sufficient opportunity
to conduct cross-examination regarding the foundation and origin of the
text messages. The commissioner argues that, to the extent the plaintiff
raises this claim, he inadequately briefed it. We conclude that his summary
treatment of this claim is inadequate. See Practice Book § 67-4 (a) and (d).
Thus, we agree with the commissioner and decline to review this claim.
See Clelford v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014) (‘‘[i]t is
well settled that [w]e are not required to review claims that are inadequately
briefed’’ [internal quotation marks omitted]).