Matthew C. v. Commissioner of Children & Families , 188 Conn. App. 687 ( 2019 )

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MATTHEW C. v. COMMISSIONER
OF CHILDREN AND FAMILIES*
(AC 40957)
Lavine, Keller and Beach, Js.
Syllabus
The plaintiff father appealed to the trial court from the decision by the
defendant, the Commissioner of Children and Families, denying him a
hearing to challenge the defendant’s decision to substantiate allegations
that he neglected his two minor children. The trial court rendered judg-
ment dismissing the appeal, from which the plaintiff appealed to this
court. On appeal, he claimed, inter alia, that the trial court improperly
declined to equate a certain provision (§ 22-12-4) of the Policy Manual of
the Department of Children and Families, as derived from a department
regulation (§ 17a-101k-7), with the doctrine of collateral estoppel. Held:
1. The plaintiff could not prevail on his claim that the trial court improperly
decided his administrative appeal on a basis not decided by the defen-
dant’s administrative hearing officer, which was based on his claim that
because the hearing officer dismissed his request for a substantiation
hearing only on the basis of collateral estoppel, the court was not
permitted to consider the applicability of § 22-12-4 of the policy manual:
the issue of whether § 22-12-4 of the policy manual and the department
regulation precluded the plaintiff from a hearing was clearly in the
administrative record, the court, which questioned, at oral argument,
as a matter of law, the applicability of collateral estoppel in light of the
existence of the department regulation and policy manual provision that
were applicable to the case, did not substitute its judgment for that of
the agency as to the weight of the evidence on questions of fact, there
was no support for the proposition that the trial court was limited to
considering the same conclusions of law that the administrative body
reached, and it was evident from the record that the court determined
that the application of collateral estoppel by the hearing officer consti-
tuted legal error, not on the basis that the hearing officer’s collateral
estoppel analysis was erroneous, but because the hearing officer applied
the common-law doctrine to the case instead of the relevant department
regulation and policy manual provision; moreover, the court properly
determined that the department regulation and the policy manual provi-
sion were not substantively identical to the common-law doctrine of
collateral estoppel and that it was proper to apply them, and, under the
facts of this case, pursuant thereto the court was permitted to dismiss
the appeal.
2. The trial court having properly determined that the department regulation
and the policy manual provision were not substantively identical to the
common-law doctrine of collateral estoppel, it properly applied the
applicable regulation rather than the common-law doctrine in evaluating
the plaintiff’s request for a hearing.
3. The plaintiff could not prevail on his claim that the trial court improperly
dismissed his request for a substantiation hearing; although a judgment
adjudicating neglect of a child in and of itself concerns only the status
of the child, the subordinate facts found by the juvenile court, which
were clearly articulated by the hearing officer, demonstrated that the
juvenile court made a factual determination that the plaintiff was respon-
sible for the neglect of his children, which precluded him from being
afforded a substantiation hearing under the department regulation and
policy manual.
4. The dismissal of the plaintiff’s request for a substantiation hearing pursu-
ant to the department regulation did not violate the plaintiff’s right to
fundamental fairness; through the course of the hearing before the
juvenile court on both an order for temporary custody and the neglect
petitions regarding the plaintiff’s children, the plaintiff was provided
with the protections that fundamental fairness dictate, as he was on
notice that the factual allegations in support of both the applications
for orders of temporary custody and neglect petitions were premised
almost exclusively on his conduct, the record demonstrated that the
plaintiff was represented by counsel, who defended his position at a two
day hearing, and the plaintiff testified at the hearing, called witnesses,
presented his own evidence and had his counsel cross-examine other wit-
nesses.
Argued November 27, 2018—officially released March 26, 2019
Procedural History
Administrative appeal from the decision by the defen-
dant denying the plaintiff’s request for a hearing regard-
ing the decision by the defendant to substantiate
allegations that the plaintiff neglected his two minor
children, brought to the Superior Court in the judicial
district of New Britain and tried to the court, Hon.
Henry S. Cohn, judge trial referee; judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appel-
lant (plaintiff).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, were Benjamin Zivyon, assistant
attorney general, and George Jepsen, former attorney
general, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Matthew C., appeals from
the judgment of the trial court dismissing his adminis-
trative appeal following a decision by the defendant,
the Commissioner of Children and Families, denying
him a hearing to challenge the defendant’s decision to
substantiate allegations that he neglected his two minor
children. The plaintiff avers that the trial court erred
by (1) deciding the plaintiff’s appeal on a basis not
decided by the defendant’s administrative hearing offi-
cer, (2) declining to equate § 22-12-4 of the policy man-
ual (policy manual) of the Department of Children and
Families (department),1 as derived from § 17a-101k-7
of the department’s regulations,2 with the doctrine of
collateral estoppel, (3) dismissing his appeal from the
denial of his request for a substantiation hearing irre-
spective of whether § 22-12-4 of the policy manual and
collateral estoppel are equivalent, and (4) violating his
right to fundamental fairness by dismissing his appeal
after denying him a substantiation hearing. We affirm
the judgment of the trial court.
The facts and procedural history of the case are as
follows. The plaintiff is the father of two minor children,
B and E. He became legally involved with the depart-
ment on September 16, 2015, when neglect petitions
were filed by the defendant pursuant to General Stat-
utes § 46b-129, alleging that B and E, who were twelve
and ten years of age at the time, had been neglected
pursuant to General Statutes (Rev. to 2015) § 46b-120.3
On the same date, the Superior Court for Juvenile Mat-
ters granted applications filed by the defendant seeking
ex parte temporary custody orders and vested tempo-
rary custody of the children ex parte in their mother,
pending a further hearing, after finding that the children
were in immediate physical danger from their surround-
ings, and that continuation in those surroundings was
contrary to their welfare.4
The summary of facts accompanying the neglect peti-
tions alleged, inter alia, that the plaintiff had demon-
strated a pattern of coercive, controlling, and abusive
behavior toward the children’s mother, to which the
children were exposed; that the children had witnessed
their mother being screamed at, demeaned, and threat-
ened by the plaintiff; that B had mimicked the plaintiff’s
behavior in that he engaged in verbally and physically
aggressive behavior toward his mother and sister; that
B was hospitalized after he damaged his mother’s car
with a hammer or ax, broke a window, and set four small
fires outside the home; that the plaintiff was unwilling
to accept voluntary services in order to help B with
his mood disorder diagnosis; and that E was directly
affected by the plaintiff’s actions in that she was fearful
in the home, had emotional outbursts, and had become
dysregulated with her emotions.
The juvenile court, Hon. Barbara M. Quinn, judge
trial referee, held a consolidated hearing on October 2
and 19, 2015, on the applications for orders of temporary
custody and on the adjudicatory phase of each of the
neglect petitions, which the plaintiff, through his coun-
sel, contested.5 On November 3, 2015, the juvenile court
rendered its decision concluding that the allegations of
the affidavit seeking the orders of temporary custody
and the grounds for the neglect alleged in the neglect
petitions had been proven. The court sustained the
orders of temporary custody and adjudicated both of
the children neglected on the basis that they were being
denied proper care and attention, physically, education-
ally, emotionally or morally, and were being permitted
to live under conditions, circumstances or associations
injurious to their well-being.
After being notified that the defendant substantiated
allegations that the plaintiff was responsible for the
neglect of his children, the plaintiff filed a request for
an administrative hearing on February 18, 2016.6 On
April 4, 2016, the department moved to dismiss the
plaintiff’s appeal from the substantiation pursuant to
the department regulation and § 22-12-4 of the policy
manual because the juvenile court already had factually
determined that the plaintiff was the perpetrator of the
neglect. On April 19, 2016, the plaintiff filed an objection
to the motion to dismiss arguing that § 22-12-4 did not
apply because there was no determination by the juve-
nile court that the plaintiff was responsible for the abuse
or neglect of his children. He went on to argue that
the motion ‘‘should also be denied because the policy
behind the denial [of hearing] clause of § 22-12-4 does
not apply to the facts of the present case.’’ In particular,
he argued that § 22-12-4 was based on the common-law
doctrine of collateral estoppel and that ‘‘the doctrine
of collateral estoppel, or the [department] equivalent,
§ 22-12-4, does not apply because,’’ inter alia, the issue
of whether the plaintiff was the perpetrator of the
neglect was not actually litigated.
After receiving the motion to dismiss and the objec-
tion to the motion, the hearing officer required that the
department ‘‘submit the [s]ummary of [f]acts submitted
to the [j]uvenile [c]ourt in the neglect proceedings’’ and
ordered the parties to ‘‘submit a brief on the issue of
whether the [plaintiff] is collaterally estopped from pro-
ceeding with his substantiation hearing if the issue was
actually litigated and necessarily determined in the
prior action.’’7 On September 26, 2016, the hearing offi-
cer issued a written decision granting the department’s
motion to dismiss, denying the plaintiff’s request for a
substantiation hearing on the basis of collateral estop-
pel. In her decision, the hearing officer indicated that
the ‘‘issue of whether the [plaintiff] has emotionally or
physically neglected [his] children has been actually
decided . . . in the juvenile court proceedings, and,
therefore is subject to collateral estoppel.’’
On November 9, 2016, the plaintiff filed an administra-
tive appeal pursuant to General Statutes § 4-183. The
parties submitted briefs to the court and, on August 1,
2017, the court, Hon. Henry S. Cohn, judge trial referee,
held oral argument on the merits. During argument,
the court expressed some skepticism about whether
collateral estoppel and § 22-12-4 of the policy manual
were substantively identical and whether it was proper
for the hearing officer to have applied collateral estop-
pel instead of the policy manual provision directly
related to this matter. Accordingly, with the consent of
the parties, the court ordered the parties to provide
supplemental briefs pursuant to General Statutes § 4-
183 (g) on the issue of whether § 22-12-4 of the policy
manual was identical to collateral estoppel and whether
§ 22-12-4 provided an independent administrative basis
for dismissal of the request for a substantiation hearing.
On October 2, 2017, the court issued a memorandum
of decision in which it concluded that although the
policy manual provision and the doctrine of collateral
estoppel were similar in some respects, ‘‘the two con-
cepts are not identical.’’ On the basis of the department
regulation and § 22-12-4 of the policy manual, the court
concluded that the dismissal of the administrative
appeal was proper. This appeal followed. Additional
facts will be set forth as necessary.
We commence our discussion by setting forth the
standard of review. Judicial review of an administrative
decision is governed by statute. See Celentano v.
Rocque, 282 Conn. 645, 652, 923 A.2d 709 (2007). When
reviewing the trial court’s decision, we seek to deter-
mine whether that decision is in harmony with the Uni-
form Administrative Procedure Act (act), General
Statutes § 4-166 et seq. See Dickman v. Office of State
Ethics, Citizen’s Ethics Advisory Board, 140 Conn.
App. 754, 766, 60 A.3d 297, cert. denied, 308 Conn. 934,
66 A.3d 497 (2013). With regard to questions of fact,
our cases have made clear that review of administrative
agency decisions is limited and ‘‘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. . . . Neither this court nor
the trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact.’’ (Internal
quotation marks omitted.) Matthew M. v. Dept. of Chil-
dren & Families, 143 Conn. App. 813, 824, 71 A.3d
603 (2013).
Our Supreme Court also has noted that ‘‘[j]udicial
review of the conclusions of law reached administra-
tively is also limited. The 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 deter-
mines that they resulted from a correct application of
the law to the facts found and could reasonably and
logically follow from such facts.’’ (Internal quotation
marks omitted.) Goldstar Medical Services, Inc. v. Dept.
of Social Services, 288 Conn. 790, 800, 955 A.2d 15
(2008). ‘‘Cases that present pure questions of law, how-
ever, invoke a broader standard of review than is ordi-
narily involved in deciding whether, in light of the
evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion. . . . Fur-
thermore, when a state agency’s determination of a
question of law has not previously been subject to judi-
cial scrutiny . . . the agency is not entitled to special
deference.’’ (Internal quotation marks omitted.)
Palomba-Bourke v. Commissioner of Social Services,
312 Conn. 196, 203, 92 A.3d 932 (2014). Thus, when
an agency’s interpretation has not been ‘‘subjected to
judicial scrutiny or consistently applied by the agency
over a long period of time, our review is de novo.’’
(Internal quotation marks omitted.) Chairperson, Con-
necticut Medical Examining Board v. Freedom of
Information Commission, 310 Conn. 276, 283, 77 A.3d
121 (2013).
I
We first address the plaintiff’s claim that the trial
court erred by deciding the plaintiff’s appeal on a basis
not decided by the hearing officer. In his view, because
judicial review under the act ‘‘ ‘is very restricted’ ’’ and
because the hearing officer dismissed his request for a
substantiation hearing only on the basis of collateral
estoppel, the court was not permitted to determine
whether § 22-12-4 of the policy manual was the applica-
ble law to govern the present matter. In other words,
the plaintiff claims that the trial court was not permitted
to consider the applicability of the policy manual and
could only evaluate the correctness of the collateral
estoppel analysis undertaken by the hearing officer.
We disagree.
To support his argument, the plaintiff contends that
Dortenzio v. Freedom of Information Commission, 42
Conn. App. 402, 679 A.2d 978 (1996), is determinative.
In Dortenzio, this court addressed a claim of whether
the trial court improperly substituted its judgment for
that of the Freedom of Information Commission (com-
mission). Id., 407. The commission argued that the trial
court ‘‘failed to confine its review of the [commission’s]
decision to the issues raised and the findings in the
administrative record.’’ Id. In reversing the trial court’s
judgment, this court concluded that the trial court
‘‘needlessly enlarged the issue on appeal . . . by exam-
ining . . . an argument not found in the administrative
record . . . [that was] neither raised before nor
addressed by the [commission].’’ (Citations omitted;
internal quotation marks omitted.) Id., 409.
The present case is easily distinguishable. The issue
of whether § 22-12-4 of the policy manual and the
department regulation precluded the plaintiff from a
hearing was clearly in the administrative record—the
department’s sole argument for its motion to dismiss
was that § 22-12-4 of the policy manual and the regula-
tion precluded the plaintiff from obtaining a substantia-
tion hearing. The plaintiff then argued in his opposition
motion that § 22-12-4 of the policy manual did not apply
and, by relying on Superior Court authority, equated it
to the doctrine of collateral estoppel. After receiving
the motion to dismiss and the opposition to the motion,
the hearing officer appears also to have equated § 22-
12-4 of the policy manual and the doctrine of collateral
estoppel because she requested briefing solely on
whether the plaintiff was collaterally estopped from
receiving a substantiation hearing. The hearing officer
ultimately dismissed the appeal on the basis of collat-
eral estoppel. On appeal in the Superior Court, the
court, rather than addressing whether the hearing offi-
cer’s analysis of collateral estoppel was correct, deter-
mined that the applicable department policy manual
provision, as authorized by the department regulation,
was the proper basis for denying the plaintiff’s request
for a substantiation hearing.
We recognize and agree with the plaintiff that the act
limits judicial review of agency decisions but disagree
with him as to the extent it does so with respect to
questions of law. The plaintiff avers that the trial court’s
decision dismissing his appeal pursuant to the policy
manual provision and its failure to consider the issue
under the doctrine of collateral estoppel ‘‘was error in
light of the clear precedent that a trial court may not
retry the case or substitute its own judgment for that
of the agency.’’ We reject this argument for several
reasons.
First, the act makes clear that a ‘‘court shall not
substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact.’’ General
Statutes § 4-183 (j). On the basis of our review of the
record, it is clear that the court did not do so. The court
did not attempt to substitute or retry the case with
respect to any questions of fact found by the hearing
officer. Instead, it questioned at oral argument, as a
matter of law, the applicability of collateral estoppel in
light of the existence of a department regulation and
policy manual provision that were applicable to the
case. The court also went as far as to note in its memo-
randum of decision that the court had ‘‘raised a legal
argument, the effect of the policy manual, and is not
seeking to overturn a factual finding made by the hear-
ing officer.’’
Second, our case law provides that ‘‘[c]onclusions of
law reached by the administrative agency must stand
if the court determines that they resulted from a correct
application of the law to the facts found and could
reasonably and logically follow from such facts.’’ (Inter-
nal quotation marks omitted.) Commissioner of Emer-
gency Services & Public Protection v. Freedom of
Information Commission, 330 Conn. 372, 379, 194 A.3d
759 (2018); Freedom of Information Officer, Dept. of
Mental Health & Addiction Services v. Freedom of
Information Commission, 318 Conn. 769, 781, 122 A.3d
1217 (2015). These cases, however, do not stand for
the proposition that incorrect conclusions of law must
stand. As the defendant aptly points out in her appellate
brief, the plaintiff has not cited to any authority for
his contention that, as part of the limited nature of
administrative review, the trial court is always limited
to considering the same conclusions of law that the
administrative body reached. Contrary to that position,
§ 4-183 (j) allows for a court to modify the agency deci-
sion or remand the case for further proceedings if ‘‘the
court finds that substantial rights of the person appeal-
ing have been prejudiced because the administrative
findings, inferences, conclusions, 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.’’ (Emphasis added.)
It is evident from the record that the court determined
that the application of collateral estoppel by the hearing
officer constituted legal error, not on the basis that
the hearing officer’s collateral estoppel analysis was
erroneous, but because the hearing officer applied the
common-law doctrine to the case instead of the relevant
department regulation and policy manual provision.
During a colloquy with counsel at oral argument, the
court stated: ‘‘You’ve got a policy manual. You enforce
the policy manual.’’ The court also made clear that it
agreed with the defendant’s description that the regula-
tion is ‘‘an administrative rule about an administrative
designation and the administrative body of law applies.’’
It indicated that ‘‘the law is clear that if a case is . . .
an administrative appeal; I’m not bound by the legal
reasoning of the hearing officer. I can decide whether
or not, as a matter of law whether this was the right
outcome or not.’’ The court then gave the parties an
opportunity to brief the issue. After reviewing those
briefs, the court set forth in its memorandum of decision
that the doctrine of collateral estoppel and § 22-12-4 of
the policy manual were not identical. Although the court
ultimately agreed with the hearing officer’s conclusion
that the appeal should be dismissed, it determined dis-
missal was proper because the department regulation
and policy manual did not entitle the plaintiff to a hear-
ing. We agree with the court that the department regula-
tion and the policy manual provision are not
substantively identical to the common-law doctrine of
collateral estoppel, and that it was proper to apply the
regulation and policy manual provision. See part II of
this opinion. On the basis of our review of the record
and the relevant authorities, we conclude that the facts
of this case permitted the court to dismiss the appeal
pursuant to the department regulation and the policy
manual.
II
The plaintiff next avers that even if this court finds
that the trial court correctly considered the policy man-
ual when it dismissed his appeal, that this court should
reverse the trial court’s decision because it erred when
it held that § 22-12-4 of the policy manual and the doc-
trine of collateral estoppel were not substantively the
same. The defendant argues, however, that if we were
to conclude that the regulation and the common-law
doctrine of collateral estoppel are the same, we would
ultimately be impugning common-law principles into
the regulation and would be stepping far beyond the
constraints of General Statutes § 1-2z. We agree with
the defendant.
The plaintiff’s argument primarily relies on the
unpublished Superior Court decision of Lang v. Dept.
of Children & Families, Superior Court, judicial district
of New Britain, Docket No. CV-XX-XXXXXXX-S (July 18,
2008), which, prior to the underlying proceeding, was
authored by the trial court judge in this case. By grasp-
ing upon language in Lang where the court stated that
the facts of the case ‘‘hardly justif[y] the conclusion
that applying collateral estoppel, or the [department]
equivalent, § 22-12-4, is warranted,’’ the plaintiff appears
to argue that this language is a binding conclusion that
the two concepts are substantively identical.8 It is
unclear, however, how this trial level decision binds us
to conclude the same. Because we do not have the
benefit of either a prior judicial or time-tested agency
construction of whether the policy manual and regula-
tion are substantively the same as the doctrine of collat-
eral estoppel, we construe in a plenary fashion whether
§ 22-12-4 of the policy manual and its regulatory coun-
terpart, § 17a-101k-7, are substantively the same as the
common-law doctrine of collateral estoppel. See Wil-
liams v. General Nutrition Centers, Inc., 326 Conn.
651, 657, 166 A.3d 625 (2017).
We begin our interpretation of the regulation by look-
ing to its plain meaning. Id. (‘‘because regulations have
the same force and effect as statutes, we interpret both
using the plain meaning rule’’); see General Statutes
§ 1-2z. Section 17a-101k-7 (i) of the Regulations of Con-
necticut State Agencies provides: ‘‘A request for an
administrative hearing shall be denied by the depart-
ment when a civil court proceeding has been finally
disposed with a factual determination by the court that
the identified person committed the act of child abuse
or neglect that is the subject of the substantiation.’’ A
plain reading of the regulation clearly delineates the
circumstances in which the agency may deny an individ-
ual’s request for an administrative hearing. We have
not found, nor has the plaintiff demonstrated, how the
regulation can be susceptible to more than one reason-
able interpretation. Accordingly, we conclude that the
regulation is plain and unambiguous, which means we
need not look to extratextual evidence to discern its
meaning. See General Statutes § 1-2z; McCoy v. Com-
missioner of Public Safety, 300 Conn. 144, 150–51, 12
A.3d 948 (2011) (‘‘The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ [Internal quotation marks omitted.]).
Although the plaintiff contends that the regulation,
which was promulgated by the defendant, and the com-
mon-law doctrine of collateral estoppel are substan-
tively identical, the regulation is conspicuously devoid
of the requirements of common-law collateral estoppel.9
For example, there is no language in the regulation that
indicates that the factual issues presented by both cases
must be identical, or that they must have been necessary
for the outcome of the prior civil case, or even that the
identified person must have been a party to the prior
proceeding. Additionally, the regulation does not indi-
cate that the provision was intended to track the com-
mon-law doctrine of collateral estoppel.
While it appears that the two principles are similar
in that they determine the preclusive effect that a prior
proceeding has on a subsequent action, they are by no
means identical. Nonetheless, we agree with the trial
court that the regulation, like the doctrine of collateral
estoppel, requires that there be a full opportunity for
the respondent to be heard. This requirement ensures
fairness. See part IV of this opinion. But to conclude that
the regulation and the doctrine of collateral estoppel
are substantively identical would require us to read
language into the regulation that does not exist. We
decline to do so. We, therefore, conclude that the court
properly determined that the department regulation and
the policy manual are not substantively identical to the
common-law doctrine of collateral estoppel, and that
the trial court properly applied the applicable regulation
rather than the common-law doctrine in evaluating the
plaintiff’s request for a hearing.
III
The plaintiff next argues that, irrespective of whether
§ 22-12-4 of the policy manual and collateral estoppel
are substantively identical, the court erred by dismiss-
ing his request for a substantiation hearing. In particu-
lar, he argues that, on the basis of this court’s
precedents, a trial court’s finding of neglect is not
directed against the parents but rather goes to the status
of the children. For the reasons set forth herein, we
disagree with the plaintiff.
We briefly set forth additional facts necessary for the
disposition of this claim. After temporary custody was
vested ex parte with the mother, the juvenile court
held a consolidated hearing on the orders of temporary
custody and the neglect petitions. On November 3, 2015,
the juvenile court rendered its decision concluding that
the allegations of the affidavit seeking the orders of
temporary custody and the grounds for neglect that
were alleged in the neglect petitions had been proven.
The juvenile court sustained the order of temporary
custody and adjudicated both of the children neglected
on the basis of the grounds alleged.
The defendant substantiated the allegations that the
plaintiff was responsible for the neglect of both his
children and, on February 18, 2016, the plaintiff
requested that the defendant provide him with a sub-
stantiation hearing. On September 26, 2016, the hearing
officer rendered her final decision on whether the
request for a substantiation hearing should be dismissed
and concluded that the plaintiff, who was represented
by counsel and had a full opportunity to be heard, was
precluded from a hearing because the juvenile court
had already ruled on the issue of the plaintiff’s neglect.
The hearing officer set forth the following facts: ‘‘The
[juvenile court] rendered [its] decision on November 3,
2015. In the bench order, [the juvenile court] noted that
the children were removed on September 16, 2015, after
the [plaintiff] refused voluntary [department] services
on [B’s] behalf, and the mother indicated that she feared
for her safety and that of the children. A temporary ex
parte [order of] custody of both children was vested in
the mother by the court on September 16.
‘‘In [the juvenile court’s] order, [it] concluded that
‘the allegations in the affidavit seeking the order[s] of
[temporary] custody [and] the neglect petition[s] have
been proven. Specifically, the court finds that both chil-
dren appear to have significant emotional disturbances,
and at the time of their removal were being permitted
to live under conditions injurious to their health and
well-being; each was being denied the proper care and
attention they required.’
‘‘[The juvenile court] further concluded that ‘the rela-
tionship between their parents had deteriorated to the
point where the atmosphere was toxic for the children
and their mother. [The plaintiff] exerted control over
the minutia of their home lives while expecting their
mother to carry out the routine and daily duties with
constant second guessing, criticism and much anger
and yelling.’
‘‘The [juvenile] court commented on the [plaintiff’s]
‘hostile and out of control behavior’ noting that a video
in evidence showing the [plaintiff] ‘completely out of
control’ would lead ‘any rational person’ to be ‘afraid
under these circumstances, regardless of the provoca-
tion.’ [The juvenile court] also noted that the text
exchanges indicate that the [plaintiff] is ‘unwilling to
cede any respect to his wife and believes he is justified
in the many small and major ways his coercive and
threatening behavior inhibits her life and that of his
children.’
‘‘In [its] decision, [the juvenile court] noted that [B]
has ‘picked up [the plaintiff’s] utter disregard of wife
and mother, and so he yells at her and refuses to obey
normal parental strictures’ and that [E] ‘is clearly suffer-
ing under this male regimen of terror.’ [The juvenile
court] noted that the [plaintiff] blocked the [In-Home
Child and Adolescent Psychiatric Services (IICAPS)10]
. . . for [B] in any way he could because ‘such an
intrusion into the family of which he believes himself
to be the sovereign head was completely unacceptable
to [the plaintiff].’
‘‘[The juvenile court] concluded that ‘[b]ased on all
the detailed and probative, credible evidence adduced
at trial, only a small portion of which the court has just
reviewed, the court finds at the time of the [order of
temporary custody] the children were in immediate
physical danger from their surroundings.’ [The juvenile
court] further adjudicated [B] and [E] ‘as neglected
under the [grounds] set forth in the petition.’ [The juve-
nile court] also set forth that the [plaintiff’s] access to
the children shall be ‘therapeutic access only until such
time as the psychological evaluation ordered in this
case shall be completed and further orders entered.’ ’’
(Footnotes added and omitted.)
The hearing officer also noted in her decision that
the reasons for the neglect petitions, which were set
forth in the summary of facts attached to each of the
petitions, were based solely on the plaintiff’s actions.
The hearing officer set forth the summary of facts in
her final decision and concluded that the plaintiff was
collaterally estopped from receiving a substantiation
hearing. The plaintiff appealed the decision to the Supe-
rior Court.
After proceedings before the trial court, Hon. Henry
S. Cohn, judge trial referee, the court set forth its deci-
sion in an October 2, 2017 memorandum of decision.
Therein, the court summarized the record, highlighted
the summary of facts that accompanied the neglect
petitions, and quoted the hearing officer’s final decision.
The court concluded, inter alia, that ‘‘[s]ince the civil
proceeding was held and concluded that the plaintiff
was a perpetrator of child neglect, the question
becomes whether he had the opportunity to state his
position before [the juvenile court]. Since as the record
. . . clearly shows, the [plaintiff] was present at the
[juvenile court] trial that took place over two days, had
an opportunity to testify fully, and to summarize his
position, the exception to a hearing provided in the
[department] regulation and policy manual apply in this
matter. The hearing officer was correct in dismissing
the plaintiff’s request.’’11
The question before us is whether, under the unique
circumstances of this case and pursuant to the depart-
ment regulation, the plaintiff is precluded from receiv-
ing a substantiation hearing. To begin, § 17a-101k-7 (i)
of the Regulations of Connecticut State Agencies pro-
vides: ‘‘A request for an administrative hearing shall be
denied by the department when a civil court proceeding
has been finally disposed with a factual determination
by the court that the identified person committed the
act of child abuse or neglect that is the subject of the
substantiation.’’
The parties do not dispute that that the proceeding
before the juvenile court was a ‘‘civil court proceeding.’’
To be sure, this court has made clear that ‘‘[c]hild pro-
tection proceedings are civil matters.’’ In re Natalie J.,
148 Conn. App. 193, 207, 83 A.3d 1278, cert. denied, 311
Conn. 930, 86 A.3d 1056 (2014); see Practice Book § 32a-
2 (a). Nor do the parties dispute that the decision
‘‘finally disposed’’ of the matter.12 The plaintiff contends
only that our decisions in In re Alba P.-V., 135 Conn.
App. 744, 42 A.3d 393, cert. denied, 305 Conn. 917, 46
A.3d 170 (2012), and In re Claudia F., 93 Conn. App.
343, 888 A.2d 1138, cert. denied, 277 Conn. 924, 895
A.2d 796 (2006), are determinative in that they hold that
‘‘a trial court’s adjudication of a child as neglected does
not foreclose a parent from proceeding with a substanti-
ation hearing to determine that parent’s culpability.’’
He argues that these cases have concluded that adjudi-
cations of neglect are not findings about a particular
individual’s responsibility for the neglect but, rather,
are directed to the status of the children.
In In re Alba P.-V., the respondent mother appealed
from the judgments of the trial court adjudicating two
of her children neglected and ordering a six month
period of protective supervision. In re Alba P.-V., supra,
135 Conn. App. 745. This court dismissed the appeal as
moot because the period of protective supervision had
already passed. Id., 746–47. The mother argued that as
a collateral consequence, dismissal of her case would
foreclose her from challenging her placement on the
central registry and the substantiations through the
administrative process because, in her view, § 22-12-4
of the policy manual would preclude her from doing
so. Id., 752–54. The court ultimately rejected this argu-
ment by noting ‘‘that the court’s adjudications of neglect
challenged on appeal are not findings about the respon-
dent, but are directed at the status of her children.’’ Id.,
754–55. In reaching this conclusion, the court cited to,
inter alia, the following language in In re Zamora S.,
123 Conn. App. 103, 108, 998 A.2d 1279 (2010): ‘‘[A]n
adjudication of neglect relates to the status of the child
and is not necessarily premised on parental fault. A
finding that the child is neglected is different from find-
ing who is responsible for the child’s condition of
neglect.’’ (Internal quotation marks omitted.) In re Alba
P.-V., supra, 749 n.4.
Additionally, in In re Alba P.-V., this court noted that
the respondent mother did not argue that there were
subordinate factual findings in the record concerning
her culpable conduct. Id., 755 n.14. To the contrary, the
court determined that the respondent argued only ‘‘that
the court’s finding of neglect was improper because it
reached only ‘two factual conclusions—that there were
prior substantiations and that [her daughter] was preg-
nant.’ ’’ Id.
In In re Claudia F., the respondent mother appealed
from the judgments of the trial court adjudicating three
of her children neglected and committing them to the
care, custody, and guardianship of the commissioner.
In re Claudia F., supra, 93 Conn. App. 344. The commis-
sioner argued that the mother voluntarily terminated
her parental rights, which rendered the appeal moot.
Id., 346. The mother claimed specifically that her appeal
was not moot because, as a result of the underlying
finding of neglect, it was reasonably likely that she
would be listed on the child abuse registry and that her
appeal was ‘‘the only recourse for having her name
expunged from that registry.’’ Id., 347. The court noted
that ‘‘[a] judgment of neglect is not directed at the
[mother] as a parent, but rather is directed at the condi-
tion of the children, namely, that they are neglected.’’
Id. The court further stated that ‘‘any concern [by the
mother] about the dissemination of the records . . .
will not be remedied by a reversal of the finding of
neglect because the department’s record of its concerns
regarding medical neglect, domestic violence and unre-
solved mental health issues will still be in the records
because the [mother] did not appeal from the order of
temporary custody.’’ Id. The applicability of the depart-
ment regulation and policy manual was not an issue in
the case.
The plaintiff appears to rely on these cases primarily
for the proposition that ‘‘[a]n adjudication of neglect
relates to the status of the child and is not necessarily
premised on parental fault.’’ (Emphasis added; internal
quotation marks omitted.) In re Zamora S., supra, 123
Conn. App. 108. While the plaintiff is correct in that a
judgment adjudicating neglect of a child in and of itself
speaks only to the status of the child, the plaintiff seems
to conflate an adjudication of neglect with the subordi-
nate facts found by a court that give rise to that adjudica-
tion. Although a court is not required to determine who
was responsible for the neglect in adjudicating neglect
of a child; see General Statutes § 46b-129; that is not
to say that a court’s subordinate factual findings cannot
clearly identify who is responsible.
In the present case, the defendant’s summary of facts
in each of the neglect petitions were based almost exclu-
sively on allegations that the plaintiff was responsible
for the children’s neglect. The hearing officer made
clear, and we agree, that the defendant ‘‘placed squarely
before the court the issue of the [plaintiff’s] conduct
and findings on this issue were therefore necessary to
the judgment.’’ The hearing officer stated: ‘‘The court
found specifically that the [plaintiff] ‘exerted control
over the minutia of their home lives while expecting
their mother to carry out the routine and daily duties
with constant second guessing, criticism and much
anger and yelling’ and ‘hostile and out of control behav-
ior’ noting that a video in evidence showing the [plain-
tiff] ‘completely out of control’ would lead ‘any rational
person’ to be ‘afraid under these circumstances, regard-
less of the provocation.’ . . . [The juvenile court] also
noted that the text exchanges indicate that the [plaintiff]
is ‘unwilling to cede any respect to his wife and believes
he is justified in the many small and major ways his
coercive and threatening behavior inhibits her life and
that of his children.’ . . . [The juvenile court] found
that the mother’s ‘attempt to set what are standard
forms of discipline have consistently been undercut and
countermanded by [the plaintiff].’ . . . [The juvenile
court] noted that it ‘is apparent that [B] has picked up
his father’s utter disregard of wife and mother, and
so yells at her and refused to obey normal parental
strictures,’ and that [E] is ‘clearly suffering under this
male regimen of terror.’ . . . When the mother made
efforts to secure voluntary services for [B’s] mental
health needs, the [plaintiff] felt that ‘[s]uch an intrusion
into the family of which he believes himself to be the
sovereign head was completely unacceptable to [the
plaintiff].’ . . . The [juvenile court’s] decision and
order clearly made the causal connection between the
[plaintiff’s] actions and how the children’s emotional
disturbance related to his actions.’’ (Citations omitted.)
On the basis of our review of the findings by the
juvenile court, which were clearly articulated by the
hearing officer in her final decision, we conclude that
the juvenile court made a factual determination that the
plaintiff was responsible for the neglect of his children,
which precluded him from being afforded a substantia-
tion hearing under the department regulation and pol-
icy manual.
IV
The plaintiff, however, has one final arrow in his
quiver. He argues that a denial of a substantiation hear-
ing would violate his right to fundamental fairness. He
argues that he was unable ‘‘to prepare knowingly and
intelligently for a hearing on the issue of whether he
[was] a perpetrator of neglect’’ because the issue of
who was responsible for the neglect was not before the
juvenile court. We disagree.
The question of whether the right to fundamental
fairness has been violated in administrative proceedings
is a question of law over which our review is plenary.
Recycling, Inc. v. Commissioner of Energy & Environ-
mental Protection, 179 Conn. App. 127, 149, 178 A.3d
1043 (2018). Although the parties in their appellate
briefs direct us to cases that address the fundamental
fairness of actual hearings held by various administra-
tive agencies, no administrative evidentiary hearing was
in fact held in the present case. Nevertheless, we review
the hearing officer’s decision to deny the plaintiff’s
request for a substantiation hearing to determine
whether the action taken was fundamentally fair. See
Altholtz v. Dental Commission, 4 Conn. App. 307, 310,
493 A.2d 917 (1985) (‘‘[j]udicial review of administrative
process is intended to assure that the evidence upon
which an administrative agency acts is probative and
reliable and that the action taken is fundamentally
fair’’); see also Unistar Properties, LLC v. Conserva-
tion & Inland Wetlands Commission, 293 Conn. 93,
124, 977 A.2d 127 (2009) (administrative proceedings
must be conducted so as not to violate fundamental
rules of natural justice).
The plaintiff’s contention that his right to fundamen-
tal fairness was violated is belied by the record. The
department regulation puts an individual on notice that
he or she will be denied a substantiation hearing when
a civil court proceeding that has been finally disposed
of makes a factual determination identifying that indi-
vidual as the person responsible for the neglect at issue.
See Regs., Conn. State Agencies § 17a-101k-7 (i). Our
review of the record clearly indicates that, through the
course of the hearing before the juvenile court on both
the order of temporary custody and the neglect petitions
regarding his children, the plaintiff was provided the
protections that fundamental fairness mandate. First,
he was on notice that the factual allegations in support
of both the applications for orders of temporary custody
and neglect petitions were premised almost exclusively
on his conduct. Second, the record clearly demonstrates
that the plaintiff was represented by counsel who
defended his position at a two day consolidated hearing
on the orders of temporary custody and the neglect
petitions. Last, the record makes manifest that he testi-
fied at the hearing, called witnesses, presented his own
evidence, and had his counsel cross-examine other wit-
nesses. See Grimes v. Conservation Commission, 243
Conn. 266, 274, 703 A.2d 101 (1997) (‘‘[f]undamentals
of natural justice require that ‘there must be due notice
of the hearing, and at the hearing no one may be
deprived of the right to produce relevant evidence or to
cross-examine witnesses produced by his adversary’ ’’).
On the basis of the facts of this case, we have little
difficulty concluding that the dismissal of the plaintiff’s
request for a substantiation hearing pursuant to the
department regulation was not fundamentally unfair.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
We note that § 22-12-4 of the policy manual was the applicable subsection
when this matter was before the department. The department’s policy man-
ual has since been changed, and the contents of that subsection transferred,
effective January 2, 2019. For the sake of clarity, each reference to § 22-12-
4 in this opinion is to the version of the subsection in use while the plaintiff’s
request for an administrative hearing was before the department.
2
The language of § 22-12-4 of the policy manual largely mirrored the
language of the department regulation from which it was derived. Section
17a-101k-7 of the Regulations of Connecticut State Agencies provides in
relevant part: ‘‘(i) A request for an administrative hearing shall be denied
by the department when a civil court proceeding has been finally disposed
with a factual determination by the court that the identified person commit-
ted the act of child abuse or neglect that is the subject of the substantiation.’’
Section 22-12-4 of the policy manual provided: ‘‘A request for a substantiation
hearing shall be denied by the Department when a criminal, civil, probate
court or administrative proceeding has resulted in a finding that the perpetra-
tor has committed the act of child abuse or neglect that is the subject of
the substantiation.’’
We note that in the present matter, the parties and the adjudicatory
bodies occasionally referred to the department policy manual provision
and regulation interchangeably. The trial court, however, made clear that
dismissal of the plaintiff’s request for a hearing was proper pursuant to both
the department regulation and the policy manual provision. Although the
plaintiff almost exclusively refers to the policy manual in crafting his argu-
ments on appeal, we are mindful that the language of the regulation controls.
See Amaral Bros., Inc. v. Dept. of Labor, 325 Conn. 72, 85, 155 A.3d 1255
(2017) (regulations issued by administrative agency have same force and
effect as statute).
3
The petitions alleged as grounds for neglect that each child was being
denied proper care and attention, physically, educationally, emotionally or
morally, and being permitted to live under conditions, circumstances or
associations injurious to the well-being of the child or youth. See General
Statutes (Rev. to 2015) § 46b-120 (6) (B) and (C).
4
General Statutes § 46b-129 (b) provides in relevant part: ‘‘If it appears
from the specific allegations of the petition and other verified affirmations
of fact accompanying the petition and application, or subsequent thereto,
that there is reasonable cause to believe that (1) the child or youth is
suffering from serious physical illness or serious physical injury or is in
immediate physical danger from the child’s or youth’s surroundings, and
(2) as a result of said conditions, the child’s or youth’s safety is endangered
and immediate removal from such surroundings is necessary to ensure the
child’s or youth’s safety, the court shall either (A) issue an order to the
parents or other person having responsibility for the care of the child or
youth to appear at such time as the court may designate to determine
whether the court should vest the child’s or youth’s temporary care and
custody in a person related to the child or youth by blood or marriage or
in some other person or suitable agency pending disposition of the petition,
or (B) issue an order ex parte vesting the child’s or youth’s temporary care
and custody in a person related to the child or youth by blood or marriage
or in some other person or suitable agency. A preliminary hearing on any
ex parte custody order or order to appear issued by the court shall be held
not later than ten days after the issuance of such order. . . .’’
5
Practice Book § 33a-7 (e) provides in relevant part: ‘‘Subject to the
requirements of Section 33a-7 (a) (6), upon motion of any party or on its
own motion, the judicial authority may consolidate the hearing, on the order
of temporary custody or order to appear with the adjudicatory phase of the
trial on the underlying petition. At a consolidated order of temporary custody
and neglect adjudication hearing, the judicial authority shall determine the
outcome of the order of temporary custody based upon whether or not
continued removal is necessary to ensure the child’s or youth’s safety,
irrespective of its findings on whether there is sufficient evidence to support
an adjudication of neglect or uncared for. . . .’’
6
General Statutes § 17a-101g (b) provides the criteria for when the com-
missioner should substantiate a reported case of child abuse or neglect and
whether the offender’s name should be placed on the child abuse and neglect
registry. General Statutes (Rev. to 2015) § 17a-101g (b) provides in relevant
part: ‘‘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.
. . .’’ See Frank v. Dept. of Children & Families, 312 Conn. 393, 396–97
n.3, 94 A.3d 588 (2014). The commissioner’s determination that an individual
is responsible for the abuse or neglect of a child is referred to as a substantia-
tion. See Regs., Conn. State Agencies § 17a-101k-7 (h) and (i).
General Statutes § 17a-101k (b) provides: ‘‘Upon the issuance of a recom-
mended 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. The notice shall: (1) Contain a short
and plain description of the finding that the individual is responsible for
the abuse or neglect of a child; (2) Inform the individual of the existence
of the registry and of the commissioner’s intention to place the individual’s
name on the registry unless such individual exercises his or her right to
appeal the recommended finding as provided in this section; (3) Inform the
individual of the potential adverse consequences of being listed on the
registry, including, but not limited to, the potential effect on the individual
obtaining or retaining employment, licensure or engaging in activities involv-
ing direct contact with children and inform the individual of the individual’s
right to administrative procedures as provided in this section to appeal the
finding; and (4) Include a written form for the individual to sign and return,
indicating if the individual will invoke the appeal procedures provided in
this section.’’
We note that in the present case, the plaintiff was not recommended for
entry on the child abuse and neglect registry.
7
The defendant’s brief to the hearing officer cited to the regulation and
policy manual language and argued that ‘‘[w]hile the court need not identify
parental fault in order to adjudicate a child as a neglected child, in this case
the court did.’’ The defendant argued that ‘‘[t]he [juvenile] court attributed
the neglect of the children to the out of control and coercive behaviors of
[the plaintiff], including his undermining . . . disregard . . . and . . .
uncontrolled anger towards [his wife].’’ The defendant then went on to
address the hearing officer’s request of whether collateral estoppel applied
in the case. The defendant concluded her argument by stating: ‘‘The findings
of the court in the [November 3, 2015] decision are directly on point with
respect to the factors required of the [defendant] to substantiate [the plain-
tiff] as a perpetrator of physical and emotional neglect of the children. [The
plaintiff] had the opportunity to fully and fairly litigate the issue, and as
such, [he] should be precluded from relitigating the same issue in a second
proceeding pursuant to [§] 17a-101k-7 (i) of the [d]epartment’s [a]gency
[r]egulations and [§] 22-12-4 of the [d]epartment’s policy.’’
In the plaintiff’s brief, he set forth an analysis of why the doctrine of
collateral estoppel did not apply in this matter and requested that the hearing
officer ‘‘find that the doctrine of collateral estoppel does not apply to the
issue of whether [he] committed the act of child neglect as that issue is not
identical to the issue of whether the children were neglected, was not
actually litigated in the trial court and was not necessarily determined in
the trial court.’’
8
We note that there is nothing to suggest that the use of the word ‘‘equiva-
lent’’ is anything other than loose language, not intended to mean that the
standards are identical. We also note that after the court concluded in its
memorandum of decision that the two concepts were not identical, the
court took time to explain its earlier decision in Lang and distinguished it
from the present case. The court indicated that ‘‘[o]f course there must be
a full hearing with the opportunity for the respondent to testify in the
Superior Court proceeding. In this, the policy manual is identical to common-
law issue preclusion; this is what the case of Lang . . . recognized. Respon-
dent Lang had admitted in [the] Superior Court . . . to [the] criminal charge
[of] risk of injury to a child. The [criminal] court took no evidence on the
plea, and Lang had merely been canvassed as to his acceptance of the
plea. Under either collateral estoppel or the [department] regulation or the
[department] policy manual, in Lang a substantiation hearing was war-
ranted.’’
9
‘‘[C]ollateral estoppel precludes a party from relitigating issues and facts
actually and necessarily determined in an earlier proceeding between the
same parties or those in privity with them upon a different claim. . . .
Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated
in the new proceeding must be identical to those considered in the prior
proceeding.’’ (Internal quotation marks omitted.) In re Kyllan V., 180 Conn.
App. 132, 138, 181 A.3d 606, cert. denied, 328 Conn. 929, 182 A.3d 1192 (2018).
10
‘‘IICAPS provides home-based treatment to children, youth and families
in their homes and communities. Services are provided by a clinical team
which includes a Master’s-level clinician and a Bachelor’s-level mental health
counselor. The clinical team is supported by a clinical supervisor and a
child & adolescent psychiatrist. IICAPS Services are typically delivered for
an average of 6 months. IICAPS staff also provide 24-hour/7-day emergency
crisis response.’’ State of Connecticut Department of Children and Families,
‘‘Intensive Home Based Services,’’ available at https://portal.ct.gov/DCF/
Behavioral-Health-Partnership/Intensive-Home-Based-Services#Intensive_
In-Home_Child_and_Adolescent_Psychiatric_Services_(IICAPS) (last
visited March 21, 2019).
11
Only the transcript of the juvenile court’s oral decision was included
in the record before the hearing officer. On August 1, 2017, the parties
agreed during oral argument before the trial court to supplement the record
with a full transcript of the proceedings that took place before the juvenile
court on October 2 and 19, 2015.
12
We also note that the plaintiff did not pursue any challenge to the
juvenile court’s decision sustaining the orders of temporary custody and
adjudicating his children neglected.