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DSS Law, Regulations, and Definitions
These laws and regulations are from Chapter 119 of the Massachusetts General Laws, and Section 110 of the Code of Massachusetts Regulations. I have also included one case from the Supreme Judicial Court where spanking is held NOT to be abuse. I have put some of my own comments and observations in [brackets] throughout
this section. They are not part of the text. [Comment: Sets up a network of professional snitches, consisting of
a long list of professionals who parents could traditionally turn to for help,
but are now required by law to report any suspected abuse. You will notice
that the list includes virtually anyone and anywhere a child is likely to be.
If they don't report, they are in trouble, so, when in doubt, they report.
About three quarters of the reports end up being false! They are told: "Better
safe than sorry". It doesn't matter that in so doing, they destroy the families
of the children they are supposed to help.] § 51A. Persons Required to Report Cases of Injured, Abused, or Neglected Children; Immunity from Criminal Action; Privilege Not to Be Invoked; Penalty. Any physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker or any person paid to care for or work with a child in any public or private facility, or home or program funded by the commonwealth or licensed pursuant to the provisions of chapter twenty-eight A, which provides day care or residential services to children or which provides the services of child care resource and referral agencies, voucher management agencies, family day care systems and child care food programs, probation officer, clerk/magistrate of the district courts, parole officer, social worker, foster parent, firefighter or policeman, office for children licensor, school attendance officer, allied mental health and human services professional as licensed pursuant to the provisions of section one hundred and sixty-five of chapter one hundred and twelve, drug and alcoholism counselor, psychiatrist, and clinical social worker, who, in his professional capacity shall have reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth, shall immediately report such condition to the department by oral communication and by making a written report within forty-eight hours after such oral communication; provided, however, that whenever such person so required to report is a member of the staff of a medical or other public or private institution, school or facility, he shall immediately either notify the department or notify the person in charge of such institution, school or facility, or that person's designated agent, whereupon such person in charge or his said agent shall then become responsible to make the report in the manner required by this section. Any such hospital personnel preparing such report, may take, or cause to be taken, photographs of the areas of trauma visible on a child who is the subject of such report without the consent of the child's parents or guardians. All such photographs or copies thereof shall be sent to the department together with such report. Any such person so required to make such oral and written reports who fails to do so shall be punished by a fine of not more than one thousand dollars. Any person who knowingly files a report of child abuse that is frivolous shall be punished by a fine of not more than one thousand dollars. Said reports shall contain the names and addresses of the child and his parents or other person responsible for his care, if known; the child's age; the child's sex; the nature and extent of the child's injuries, abuse, maltreatment, or neglect, including any evidence of prior injuries, abuse, maltreatment, or neglect; the circumstances under which the person required to report first became aware of the child's injuries, abuse, maltreatment or neglect; whatever action, if any, was taken to treat, shelter, or otherwise assist the child; the name of the person or persons making such report; and any other information which the person reporting believes might be helpful in establishing the cause of the injuries; the identity of the person or persons responsible therefor; and such other information as shall be required by the department. Any person required to report under this section who has reasonable cause to believe that a child has died as a result of any of the conditions listed in said paragraph shall report said death to the department and to the district attorney for the county in which such death occurred and to the medical examiners as required by section six of chapter thirty-eight. Any such person who fails to make such a report shall be punished by a fine of not more than one thousand dollars. In addition to those persons required to report pursuant to this section, any other person may make such a report if any such person has reasonable cause to believe that a child is suffering from or has died as a result of such abuse or neglect. No person so required to report shall be liable in any civil or criminal action by reason of such report. No other person making such report shall be liable in any civil or criminal action by reason of such report if it was made in good faith; provided, however, that such person did not perpetrate or inflict said abuse or cause said neglect. Any person making such report who, in the determination of the department or the district attorney may have perpetrated or inflicted said abuse or cause said neglect, may be liable in a civil or criminal action. No employer of those persons required to report pursuant to this section shall discharge, or in any manner discriminate or retaliate against, any person who in good faith makes such a report, testifies or is about to testify in any proceeding involving child abuse or neglect. Any such employer who discharges, discriminates or retaliates against such a person shall be liable to such person for treble damages, costs and attorney's fees. Within sixty days of the receipt of a report by the department from any person required to report, the department shall notify such person, in writing, of its determination of the nature, extent and cause or causes of the injuries to the child, and the social services that the department intends to provide to the child or his family. Any privilege established by sections one hundred and thirty-five A and one
hundred and thirty-five B of chapter one hundred and twelve or by section twenty
B of chapter two hundred and thirty-three, relating to confidential communications
shall not prohibit the filing of a report pursuant to the provisions of this
section or the provisions of section twenty-four. § 51B. Duties of Department as to Child Abuse Reports. The department shall:-- (1) investigate and evaluate the information reported under section fifty-one A. Said investigation and evaluation shall commence within two hours of initial contact and be completed within twenty-four hours if the department has reasonable cause to believe the child's health or safety is in immediate danger from further abuse and neglect. Said investigation and evaluation shall commence within two working days of initial contact and be completed within ten calendar days for all other such reports. The investigation shall include a home visit at which the child is viewed, if appropriate, a determination of the nature, extent and cause or causes of the injuries, the identity of the person or persons responsible therefor, the name, age and condition of other children in the same household, an evaluation of the parents and the home environment, and all other pertinent facts or matters. Such determinations and evaluations shall be in writing; (2) evaluate the household of the child named in the report and make a written determination of the risk of physical or emotional injury to any other children in the same household; provided, further, that if such child named in the report is an out-of-home placement, the department shall notify his parent that a report has been filed when such report is supported by the department; provided, further, that the department shall notify the biological parent of other children in the same placement if the child named in such supported report died or was seriously injured; provided, further, that such notification shall not be required if in the commissioner's judgment such notification would be against the best interests of the child; provided, further, that when appropriate, the department shall consult with the biological parent of the child who is the subject of the report and the other children in the decisions regarding the children's removal or further placement; (3) take a child into immediate temporary custody if the department has reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect; provided, however, that the department shall make a written report stating the reasons for such removal; and provided further, that if any child is so taken into custody, the department must file a petition pursuant to section twenty-four on the next court day; (4) notify in writing the district attorney for the county in which the child resides and for the county in which the offense occurred by transmitting to such district attorney a copy of the report required under section fifty-one A and this section if, after an investigation and evaluation undertaken pursuant to clause (1), the department has reasonable cause to believe that any of the following conditions has resulted from abuse or neglect; provided, however, that the department may immediately report cases of serious physical injury to the appropriate office of the district attorney: (a) a child has died; (b) a child has been sexually assaulted, as set forth in sections thirteen B, thirteen H, twenty-two, twenty-two A, twenty-three, twenty-four, and twenty-four B of chapter two hundred and sixty-five or section thirty-five A of chapter two hundred and seventy-two; (c) a child has suffered brain damage, loss or substantial impairment of a bodily function or organ, or substantial disfigurement; (d) a child has been sexually exploited, which shall mean encouraging a child to engage in prostitution as defined in sections four A and four B of chapter two hundred and seventy-two or in the obscene or pornographic photographing, filming, or depicting of a child as defined in section twenty-nine A of chapter two hundred and seventy-two; or (e) a child has suffered serious physical abuse or injury that includes, but is not limited to: (i) a fracture of any bone, severe burn, impairment of any organ, or any other serious injury; (ii) an injury requiring the child to be placed on life-support systems; (iii) any other disclosure of physical abuse involving physical evidence which may be destroyed; (iv) any current disclosure by the child of sexual assault; or (v) the presence of physical evidence of sexual assault. The department shall within forty-five days after making such notification further notify the district attorney of the service plan, if any, developed for such child and his family. No provision of chapter sixty-six A, section one hundred and thirty-five of chapter one hundred and twelve, and sections fifty-one E and fifty-one F of this chapter relating to confidential data or confidential communications shall prohibit the department from making such notifications or from providing to the district attorney any information obtained pursuant to clause (1) or furnished pursuant to this clause. No person providing notification or information to a district attorney pursuant to the provisions of this clause shall be liable in any civil or criminal action by reason of such action. Nothing herein shall be construed to prevent the department from notifying a district attorney relative to any incidents reported to the department pursuant to section fifty-one A or to limit the prosecutorial power of a district attorney. The department shall forward to the local law enforcement authorities in the town in which the child resides and the town in which the offense occurred a copy of the report provided to the district attorney pursuant to this clause. (5) offer to the family of any child which it has reasonable cause to believe is suffering from any of the conditions described in the report appropriate social services to prevent further injury to the child, to safeguard his welfare, and to preserve and stabilize family life whenever possible. If the family declines or is unable to accept or to participate in the offered services, the department, or any person may file a petition pursuant to section twenty-four requesting an appropriate order with reference to the care and protection of the child; (6) file in the central registry established under section fifty-one F a written report containing information sufficient to identify each child whose name is reported pursuant to section fifty-one A or fifty-one B. A notation shall be sent to such central registry whenever further reports on each such child are filed with the department. If the department determines during the initial screening period of an investigation that said report under section fifty-one A is frivolous, or other absolute determination that abuse or neglect has not taken place, then said report shall be declared as "allegation invalid". If such reports are declared "allegation invalid", the name of the child, or identifying characteristics relating to the child, or the names of his parents or guardian or any other person relevant to the report, shall not be placed in the central registry, nor under any other computerized program utilized in the department; (7) utilize or purchase and utilize such protective services of private and voluntary agencies as it determines necessary; (8) promulgate regulations to implement the provisions of sections fifty-one A to fifty-one F, inclusive. (9) notify in writing the office for children by transmitting to said office a copy of the report received under section fifty-one A and a copy of the report prepared under section fifty-one B if and when such report alleges that abuse or neglect occurred at a facility operated by a person subject to licensure or approval by said office under section ten of chapter twenty-eight A, and when the department has substantiated said report. Said department and said office may coordinate their activities conducted under this section and paragraph (f) of said section ten. No provision of chapter sixty-six A, section one hundred and thirty-five of chapter one hundred and twelve, sections fifty-one E and fifty-one F of this chapter, or any other provision of law, shall prohibit the department from transmitting a copy of the reports prepared under the provisions of sections fifty-one A and fifty-one B to said office, or from conducting coordinated activities and sharing information with said office as herein provided, or from having its employees testify at administrative hearings held by said office in connection with matters about which said department has provided notice to said office under this section. Said department and said office shall make all reasonable efforts to minimize the number of interviews of any child-victim which may be necessary. If as a result of any report made under the provisions of said section fifty-one A or an investigation made under the provisions of said section fifty-one B, said department is made aware of information or circumstances indicating a licensing violation in any facility operated by a person subject to licensure or approval by said office, said department shall forthwith notify said office of such information. No provision of chapter sixty-six A, sections fifty-one E and fifty-one F of this chapter, or any other provision of law shall prohibit said office from providing information to said department in connection with matters about which said department has provided notice to said office under this section. (10) notify in writing the department of mental health, the department of mental retardation, the department of public health, and the department of youth services by transmitting to any of said departments a copy of the report received under section fifty-one A and a copy of the report prepared under section fifty-one B if and when that report alleges that abuse or neglect occurred at a facility owned, operated or funded, in whole or in part, by any of said departments, and when the department of social services has substantiated said report. Said department of social services and any of said departments may coordinate their respective activities conducted under this section, and shall make all reasonable efforts to minimize the number of interviews of any child-victim which may be necessary. No provision of chapter sixty-six A, section one hundred and thirty-five of chapter one hundred and twelve, sections fifty-one E and fifty-one F of this chapter, or any other provision of law, shall prohibit said department of social services from transmitting a copy of said reports made under the provisions of said sections fifty-one A and fifty-one B to any of said departments or from conducting coordinated activities and sharing information with any of said departments as herein provided, or from having its employees testify at administrative hearings held by any of said departments in connection with matters about which said department of social services has provided notice to any of said departments under this section. Notwithstanding any privilege created by statute or common law relating to confidential communications or any statute prohibiting the disclosure of information, any person required to make a report pursuant to section fifty-one A who has information which he believes might aid the department in determining whether a child has been abused or neglected pursuant to an investigation under this section shall, if requested by the department, disclose such information relevant to the specific investigation to the department. Such statutory or common law privileges shall not preclude the admission of any such information in any civil proceeding concerning abuse or neglect of a child, placement or custody of a child. No person required to provide such information pursuant to this section or permitted to disclose information pursuant to section 5A of chapter 119A shall be liable in any civil or criminal action for providing such information. No employer of a person required to provide information pursuant to this section shall discharge, or in any manner discriminate or retaliate against any such person who in good faith provides such information, testifies or is about to testify in any proceeding involving child abuse or neglect; provided, however, that such person did not perpetrate or inflict such abuse or neglect. Any such employer who discharges, discriminates or retaliates against such person shall be liable for treble damages, costs and attorney's fees. In all cases in which the department determines that a report of abuse or
neglect is not substantiated, the department shall notify in writing any and
all sources or recipients of information in connection with the investigation
that the report of abuse or neglect has not been substantiated, unless the
target of the investigation requests that such notification not occur. [Comment: The Department of Social Services often files a lawsuit against
parents known as a "Care and Protection", after kidnapping their children.
These statutes describe the legal requirements that the DSS must meet before
stealing children from families, which they rarely respect, and whose requirements
they rarely meet.] [Comment: This statute sets out what DSS must do before taking children.
Note that there must be SERIOUS abuse (not psychic harm) and it must be likely
to continue.] § 24. Powers and Duties of Divisions of Juvenile Court Department as to Custody of Children. The divisions of the juvenile court department, upon the petition under oath of a person alleging on behalf of a child under the age of 18 within the jurisdiction of the court that the child: (a) is without necessary and proper physical or educational care and discipline; (b) is growing up under conditions or circumstances damaging to the child's sound character development; (c) lacks proper attention of the parent, guardian with care and custody or custodian; or (d) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention, may issue a precept to bring the child before the court, shall issue a notice to the department and summonses to both parents of the child to show cause why the child should not be committed to the custody of the department or that any other appropriate order should not be made. The summonses shall include notice that the court may dispense with the right of the parents to notice of or consent to the adoption, custody or guardianship or any other disposition of the child named therein if it finds that the child is in need of care and protection and that the best interests of the child would be served by any such disposition. Notice shall be by personal service upon the parent. If the identity or whereabouts of a parent is unknown, the petitioner shall cause notice in a form prescribed by the court to be served upon such parent by publication once in each of three successive weeks in any newspaper as the court may order. If, after reasonable search, no parent can be found, a summons shall be issued to the child's legal guardian, if any, known to reside within the commonwealth and, if none, to the person with whom such child last resided, if known. If, after a recitation under oath by the petitioner of the facts of the condition of the child who is the subject of the petition, the court is satisfied that there is reasonable cause to believe that the child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect and that immediate removal of the child is necessary to protect the child from serious abuse or neglect, the court may issue an emergency order transferring custody of the child to the department or to a licensed child care agency or individual described in clause (2) of the first paragraph of section 26. A transfer of custody shall be for a period not exceeding 72 hours except that upon the entry of the order, notice shall be given to either or both parents, guardian with care and custody or other custodian to appear before the court. The court shall, at that time, determine whether temporary custody shall continue until a hearing on the merits of the petition for care and protection is concluded before the court. The court shall also consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C. Upon the issuance of the precept and order of notice, the court shall appoint a person qualified under section 21 to make a report to the court under oath of an investigation into conditions affecting the child. The report shall then be attached to the petition and be a part of the record. If a child who is the subject of a petition is alleged to be abandoned as
defined in section 3 of chapter 210, hearings on the petition under section
26 shall be scheduled and heard on an expedited basis. Any child may be committed
to the department under this section without a hearing or notice with the consent
of the parents or guardian. [Comment: Note that the court must certify that the DSS has made reasonable
efforts to keep a child in a home, before kidnapping the child. They rarely
do, and they will often hide the form so that you can't see it. Some are
signed in advance, so the DSS can just fill in the blanks.] § 29C. Certification of Court Upon Commitment, Grant of Custody or Transfer of Responsibility of Child to Department. If a court of competent jurisdiction commits, grants custody or transfers responsibility for a child to the department or its agent, the court shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department or its agent, as appropriate, has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home. Except as provided herein, if a court has previously committed, granted custody or transferred responsibility for a child to the department or its agent, the court shall determine not less than annually whether the department or its agent has made reasonable efforts to make it possible for the child to return safely to his parent or guardian. In making any determination, the health and safety of the child shall be of paramount concern. Reasonable efforts by the department prior to removal of a child from the home or to return the child to a parent or guardian shall not be required if the court finds that: (1) the child has been abandoned as defined in section 3 of chapter 210; (2) the parent's consent to adoption of a sibling of the child was dispensed with under section 26 or under said section 3 of said chapter 210, or the parent's rights were involuntarily terminated in a case involving a sibling of the child; (3) the parent has been convicted of one of the following crimes by a court of competent jurisdiction: (a) murder or voluntary manslaughter of another child of the parent or aiding, abetting, attempting, conspiring or soliciting to commit such a murder or voluntary manslaughter; or (b) an assault constituting a felony which resulted in serious bodily injury to the child or another child of the parent; or (4) a parent has subjected the child to aggravated circumstances consisting of murder of another parent of the child in the presence of the child or by subjecting the child or other children in the home to sexual abuse or exploitation or severe or repetitive conduct of a physically or emotionally abusive nature. For the purposes of this section, conduct of an "emotionally abusive nature" shall mean any conduct causing an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child's ability to function within a normal range of performance and behavior. For the purposes of this section, "serious bodily injury" shall mean bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. If a court has determined at a permanency hearing convened pursuant to section 29B, that reasonable efforts to safely return the child to his parent or guardian are inconsistent with the permanency plan for the child or if a court has determined that reasonable efforts are not required as set forth herein, the court shall determine at least annually thereafter whether the department has made reasonable efforts to place the child in a timely manner in accordance with the permanency plan determined and reviewed under section 29B. The court shall make the certification and determinations required under this
section in written form, which shall include the basis for the certification
and determinations. A determination by the court that reasonable efforts were
not made shall not preclude the court from making any appropriate order conducive
to the child's best interest. [Comment: This law allows the DSS to take your children forever and
put them up for adoption. Note that several provisions for terminating parental
rights are based on the fact that the DSS has kept your children against your
will for a long time, as the very reason to not give them back!. After all,
it would be too traumatic to take them from a foster parent and give them back
to you.] Mass. Ann. Laws ch. 210, § 3 - Consent Not Required in Certain Cases. (a) Whenever a petition for adoption is filed by a person having the care or custody of a child, the consent of the persons named in section 2, other than that of the child, shall not be required if:- (i) the person to be adopted is 18 years of age or older; or (ii) the court hearing the petition finds that the allowance of the petition is in the best interests of the child pursuant to paragraph (c). (b) The department of social services or a licensed child care agency may commence a proceeding, independent of a petition for adoption, in the probate court in Suffolk county or in any other county in which the department or agency maintains an office, to dispense with the need for consent of any person named in section 2 to adoption of the child in the care or custody of the department or agency. Notice of such proceeding shall be given to such person in a manner prescribed by the court. The court shall appoint counsel to represent the child in the proceeding unless the petition is not contested by any party. The court shall issue a decree dispensing with the need for consent or notice of any petition for adoption, custody, guardianship or other disposition of the child named therein, if it finds that the best interests of the child as provided in paragraph (c) will be served by the decree. Pending a hearing on the merits of a petition filed under this paragraph, temporary custody may be awarded to the petitioner. The entry of such decree shall have the effect of terminating the rights of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein. The department shall provide notice of the hearing on the merits to any foster parent, pre-adoptive parent or relative providing care for the child informing the foster parent, pre-adoptive parent or relative of his right to attend the hearing and be heard. The provisions of this paragraph shall not be construed to require that a foster parent, pre-adoptive parent or relative be made a party to the proceeding. A petition brought pursuant to this paragraph may be filed and a decree entered notwithstanding the pendency of a petition brought under chapter 119 or chapter 201 regarding the same child. The chief justice for administration and management of the trial court may, pursuant to the provisions of section 9 of chapter 211B, assign a justice from any department of the trial court to sit as a justice in any other department or departments of the trial court and hear simultaneously a petition filed under this paragraph and any other pending case or cases involving custody or adoption of the same child. A temporary or permanent custody decree shall not be a requirement to the filing of such petition. A juvenile court or a district court shall enter a decree dispensing with the need for consent of any person named in section 2 to the adoption of a child named in a petition filed pursuant to section 24 of chapter 119 in such court upon a finding that such child is in need of care and protection pursuant to section 26 of said chapter 119 and that the best interests of the child as defined in paragraph (c) will be served by such decree. The entry of such decree shall have the effect terminating the rights of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein. Facts may be set either in the care and protection petition filed pursuant to said section 24 of said chapter 119 or upon a motion made in the course of a care and protection proceeding, alleging t allowance of the petition or motion is in the best interests of the child. The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to section 26 of chapter 119 to dispense with parental consent to adoption, custody, guardianship or other disposition of the child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of any assault constituting a felony which results in serious bodily injury to the child or to another child of the parent; or (iii) the child has been in foster care in the custody of the commonwealth for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or section 26 of chapter 119, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on which the child is removed from the home. For the purposes of this paragraph, "serious bodily injury" shall mean bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. The department shall concurrently identify, recruit, process and approve a qualified family for adoption. The department need not file a motion or petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, or, where the child is the subject of a pending petition pursuant to section 26 of chapter 119, a motion to amend the petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, if the child is being cared for by a relative or the department has documented in the case plan a compelling reason for determining that such a petition would not be in the best interests of the child or that the family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home if reasonable efforts as set forth in section 29C of said chapter 119 are required to be made with respect to the child. (c) In determining whether the best interests of the child will be served by granting a petition for adoption without requiring certain consent as permitted under paragraph (a), the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in section 2 to assume parental responsibility and shall also consider the ability, capacity, fitness and readiness of the petitioners under said paragraph (a) to assume such responsibilities. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern. In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in section 2 to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern. In considering the fitness of the child's parent or other person named in section 2, the court shall consider, without limitation, the following factors: (i) the child has been abandoned; (ii) the child or another member of the immediate family of the child has been abused or neglected as a result of the acts or omissions of one or both parents, the parents were offered or received services intended to correct the circumstances which led to the abuse or neglect and refused, or were unable to utilize such services on a regular and consistent basis so that a substantial danger of abuse or neglect continues to exist, or have utilized such services on a regular and consistent basis without effectuating a substantial and material or permanent change in the circumstances which led to the abuse or neglect; (iii) a court of competent jurisdiction has transferred custody of the child from the child's parents to the department, the placement has lasted for at least six months and the parents have not maintained significant and meaningful contact with the child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized services intended to correct the circumstances; (iv) the child is four years of age or older, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 12 of the immediately preceding 15 months and the child cannot be returned to the custody of the parents at the end of such 15-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis; (v) the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12 months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis; (vi) the parent, without excuse, fails to provide proper care or custody for the child and there is a reasonable expectation that the parent will not be able to provide proper care or custody within a reasonable time considering the age of the child provided that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis; (vii) because of the lengthy absence of the parent or the parent's inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal; (viii) a lack of effort by a parent or other person named in section 2 to remedy conditions which create a risk of harm due to abuse or neglect of the child; (ix) severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home; (x) the willful failure to visit the child where the child is not in the custody of the parent or other person named in section 2; (xi) the willful failure to support the child where the child is not in the custody of the parent or other person named in section 2. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child's care when the contribution has been requested by the department or ordered by the court; (xii) a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely to provide minimally acceptable care of the child; (xiii) the conviction of a parent or other person named in section 2 of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights; or (xiv) whether or not there has been a prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child based on such prior pattern or assault. For the purposes of this section "abandoned" shall mean being left without any provision for support and without any person responsible to maintain care, custody and control because the whereabouts of the person responsible therefor is unknown and reasonable efforts to locate the person have been unsuccessful. A brief and temporary absence from the home without intent to abandon the child shall not constitute abandonment. Hearings on petitions to dispense with consent to adoption that allege that a child has been abandoned shall be scheduled and heard on an expedited basis. Notwithstanding the foregoing, the following circumstances shall constitute grounds for dispensing with the need for consent to adoption, custody, guardianship or other disposition of the child: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another child of the parent. For the purposes of this section, "serious bodily injury" shall mean bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. (d) Nothing in this section shall be construed to prohibit the petitioner and a birth parent from entering into an agreement for post-termination contact or communication. The court issuing the termination decree under this section shall have jurisdiction to resolve matters concerning the agreement. Such agreement shall become null and void upon the entry of an adoption or guardianship decree. Notwithstanding the existence of any agreement for post-termination or post-adoption contact or communication, the decree entered under this section shall be final. Nothing in this section shall be construed to prohibit a birth parent who
has entered into a post-termination agreement from entering into an agreement
for post-adoption contact or communication pursuant to section 6C once an adoptive
family has been identified. FORMS [Comment: This case, decided in late 1999, gave the DSS a drastic setback,
when the Massachusetts Supreme Judicial Court ruled that it was not ‘abuse'
to spank a child. DSS often ignores this case, and continues take children
away anyhow. However, it gives you a tool to fight back. The very mention of
the Cobble case makes DSS agents grind their teeth.] SUPREME JUDICIAL COURT OF MASSACHUSETTS 430 Mass. 385; 719 N.E.2d 500; 1999 Mass. LEXIS 683 September 13, 1999, Argued November 17, 1999, Decided PRIOR HISTORY: [***1] Suffolk. Civil action commenced in the Superior Court Department on August 20,1997. The case was heard by John C. Cratsley, J. The Supreme Judicial Court granted an application for direct appellate review. DISPOSITION: Vacated and remanded. PROCEDURAL POSTURE: Plaintiff appealed from a judgment of the Superior Court Department, Suffolk (Massachusetts), affirming an administrative determination by the Department of Social Services that his hitting or spanking his minor child constituted "abuse," as that term is defined by statute and regulation. Mass. Gen. Laws ch. 119, § 51A; Mass. Regs. Code tit. 110, § 2.00 (1996). OVERVIEW: The department of social services received a report from a school teacher, made pursuant to Mass. Gen. Laws ch. 119, § 51A, regarding possible abuse and neglect of plaintiff's son. An investigation was conducted by a department social worker. The plaintiff admitted to striking the boy on his buttocks with a leather belt on five or six occasions for disciplinary purposes. The mother described plaintiff as nonviolent and controlled, and stated that his disciplining of the boy was never done in anger. The department supported the report of abuse and neglect against plaintiff and the boy's mother. The department's decision was affirmed on appeal by the superior court. Plaintiff appealed. The court held that, on the totality of the record, the effects of plaintiff's physical discipline on his minor child did not satisfy the regulatory definitions of physical injury and abuse. OUTCOME: Judgment was vacated and remanded. The court held that, on the totality of the record, the effects of the plaintiff's physical discipline on his minor child did not satisfy the department of social services' regulatory definitions of physical injury and abuse. COUNSEL: Chester Darling for the plaintiff. JUDGES: Present: Marshall, C.J., Abrams, Lynch, Greaney, & Ireland, JJ. OPINION BY: LYNCH OPINION: [*385] [**502] LYNCH, J. The plaintiff appeals from a judgment of a Superior Court judge affirming an administrative determination by the Department of Social Services (department), that his hitting or spanking his minor child constituted "abuse," as that term is defined by statute and regulation. See G. L. c. 119, § 51A; 110 Code Mass. Regs. § 2.00 (1996). n1 He argues that the department's decision to support a report of abuse was not adequately [*386] supported by the factual record. He further contends that the department's action amounts to an unjustifiable interference by the Commonwealth with his fundamental rights, under both the United [***2] States and Massachusetts Constitutions, to the free exercise of his religious beliefs and privacy in child rearing. We granted the plaintiff's application for direct appellate review and conclude that the department's decision was not supported by "substantial evidence" in the administrative record. We vacate the judgment of the Superior Court without reaching the constitutional issues. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 It is apparent from the transcripts of the administrative hearing that all parties mistakenly applied the definition of "abuse" in G. L. c. 119, § 51A, as amended through St. 1992, c. 115, § 1, and accompanying regulations, which required a showing of "serious physical or emotional injury" (an error that was repeated in the department's hearing decision and the Superior Court's memorandum of decision). As the department correctly points out in its brief, in 1993 the Legislature deleted the reference to "serious" injury and expanded the definition of "abuse" to encompass conduct "which causes harm or substantial risk of harm to a child's health or welfare." G. L. c. 119, § 51A, as amended through St. 1993, c. 50, § 23. This discrepancy would ordinarily result in a remand of the matter to the agency for a new hearing under the proper statutory standard. Because we conclude that the factual record in this case is not sufficient to support a finding of abuse under the correct, more expansive definition, we decide the case on the merits. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***3] 1. Facts. We begin with a summary of relevant facts. a. The investigation and decision under G. L. c. 119, § 51A. On March 19, 1997, the department received a report from a mandated reporter, a school teacher, made pursuant to G. L. c. 119, § 51A (51A report), regarding possible abuse and neglect of a nine year old student, the plaintiff's son. n2 An investigation was conducted by a department social worker, Rena L. Ugol, who separately interviewed the reporter, the plaintiff, the boy, the boy's mother, and two of the boy's physicians. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Persons belonging to a statutorily defined class of mandated reporters have an affirmative obligation to report to the department when they have reason to believe that a minor "is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare." G. L. c. 119, § 51A. Regulations promulgated by the department pursuant to its enforcement authority, G. L. c. 119, § 51B (8), define "abuse," in pertinent part, as "the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury . . . ." 110 Code Mass. Regs. § 2.00. "Physical injury" is further defined as, inter alia, "soft tissue swelling or skin bruising depending on such factors as the child's age, circumstances under which the injury occurred, and the number and location of bruises." Id. [***4] n3 On receiving a 51A report of possible abuse or neglect, the department is required to investigate and, if it has "reasonable cause" to believe the report, to "support" it and take remedial action, either offering social services, placing the child in protective custody, or referring the matter to the district attorney for criminal prosecution, depending on the severity of the abuse. See G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.32 (2) (1996). "Reasonable Cause to believe" that abuse has occurred means "a collection of facts, knowledge or observations which tend to support or are consistent with the allegations." 110 Code Mass. Regs. § 4.32 (2) (1996). See Care & Protection of Robert, 408 Mass. 52, 63, 556 N.E.2d 993 (1990) ("reasonable cause" serves a "threshold function" and means "known or suspected instances of child abuse and neglect"). A decision to "support" a report means only that the department has reason to believe that an incident of child abuse or neglect has occurred and that some caretaker is responsible; it does not constitute a finding with regard to the identity of the perpetrator. 110 Code Mass. Regs. § 4.32 (2). Somewhat incongruously, however, the regulations further provide that any parent of a subject child or "any caretaker who has been identified in the Department's records as the person believed to be responsible for the abuse or neglect" has a right to a hearing to challenge the department's decision to support the report. 110 Code Mass. Regs. § 10.06 (8) (1994). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***5] [*387] [**503] The reporter informed Ugol that there had been no prior concerns about possible abuse of the boy, but that his parents were separated and in the process of divorcing and he had lately appeared "more depressed, angry." Although she believed the accuracy of the boy's reports of physical punishment, the reporter stated that the boy would "exaggerate sometimes" and that he might have "perceptual difficulties." In his interview with Ugol, the plaintiff admitted to striking the boy on his buttocks with a leather belt on five or six occasions during the preceding school year. He denied being a "spontaneous spanker," explaining that he only spanked the boy as punishment for reports of misbehavior at school. He described the punishment as follows: The plaintiff would have the boy stand next to him and place his hands on the plaintiff's outstretched left hand (this latter measure to ensure that the boy would not suffer injury to his hands by attempting to shield his buttocks from the spanking); the plaintiff would grasp the belt buckle in his palm and wrap the belt, which was approximately one and one-half inches wide, around his right hand, leaving approximately one foot of leather strap [***6] exposed; he would then hit him on his clothed buttocks once or twice with the strap, explaining to him that it was punishment for bad behavior and that such discipline is required by the Bible. At Ugol's request, the plaintiff demonstrated the force with which he would spank the boy by striking a couch cushion with the belt. Ugol reported that the belt made a "solid smack." The plaintiff denied ever having caused any bruising on the boy's buttocks (although he later admitted that he had never checked for any). [*388] Both the boy and his mother confirmed much of the plaintiff's account. The mother described the plaintiff as nonviolent and controlled, and stated that his disciplining of the boy was never done in anger and "doesn't escalate" beyond spanking. She reported that, when administering a spanking, the plaintiff would hug the boy, tell him that he loved him, and explain that it was punishment for his misconduct. The boy, although expressing his fear and dislike of the spanking, told Ugol that the plaintiff "wouldn't hurt me but would spank me." He confirmed that the spankings were administered as punishment for misbehaving at school, and stated that the plaintiff would hit him once [***7] or twice (and occasionally up to five times, if he was "really bad") with a belt on his fully clothed buttocks, but that the plaintiff "doesn't whack really hard." Sometimes when the boy expected a spanking, he would put on sweat pants under his jeans. The boy variously described the physical effects of the spankings as "red marks" on the skin of his buttocks, as marks that were "not red red red" but more like "pink," and as "a teeny thing of red .. not really red." He stated that these [**504] marks would last about ten minutes and then fade. The boy's pediatrician, Dr. Joel Solomon, informed Ugol that the boy suffers from arthrogryposis, a congenital muscle condition which requires him to wear braces on his back and legs and to undergo regular physical therapy. When asked by Ugol whether, given the boy's condition, he would have any special concerns about his being disciplined with a belt, he replied that he "sure would" and that it "wouldn't help the condition," but he did not specify any particular harmful effects. He reported never having seen bruising or other signs of physical abuse on the boy. Dr. Michael Erlich, the boy's pediatric orthopedist, who examined his "whole body" every [***8] three to four months, also reported never having seen bruising or other marks on the boy. He stated his opinion that the boy's parents, and the plaintiff in particular, were "unbelievably devoted" to the boy, noting that it was the plaintiff who made sure that the boy performed all his required physical exercises, without which he would develop muscular deformities. On the basis of this investigation, Ugol supported the 51A report of abuse and neglect against the plaintiff and the boy's mother, concluding that the plaintiff's use of corporal punishment put the boy "at risk of physical hurt/harm, and is not acceptable." n4 [*389] Her report acknowledged that the boy was known to embellish facts, and concluded that the existence of temporary marks left by the spankings was, therefore, only "possible." Furthermore, although noting the boy's medical condition, Ugol stated that it was "unclear" whether this condition created any heightened risk of physical harm from the spankings. The department's northeast region clinical review team reviewed and upheld Ugol's decision, and the department offered the parents access to counselling services on a voluntary basis. When the parents declined this [***9] offer, the department simply closed the case and took no further action. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 The department's finding of neglect pertained to the boy's mother, and was predicated on her permitting the boy to visit the plaintiff's home despite knowing about his method of corporal punishment. Because the boy's mother did not appeal from this finding, we do not address it further. n5 Testimony given at the administrative hearing by the department's area program manager indicated that the department was prepared to take steps to close the case, but that this had not yet been done. The department's records indicate this action was taken later that same day, June 12, 1997. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - b. Administrative and judicial review. Pursuant to its regulations, the department held an administrative hearing at the plaintiff's request to review Ugol's decision. See 110 Code Mass. Regs. § 10.06 (8) (1994). n6 At this hearing, Ugol testified that she had not found that the boy had actually suffered any bruising or swelling as a result of this [***10] punishment, but agreed that her decision to support the abuse report was based on her conclusion that "hitting a child with an object, in this case a belt, puts a child at substantial risk of serious physical injury" or creates the potential for soft tissue swelling and skin bruising. She further testified that her decision was not predicated on any heightened risk of injury created by the boy's medical condition, which was uncertain, but on her assessment of the risk of injury arising from the nature of the corporal punishment itself. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Following administrative review of a challenged decision to support a 51A report, the hearing officer must determine whether the decision conformed to the department's policies and regulations and, if it did not, whether it resulted in substantial prejudice to an aggrieved party. 110 Code Mass. Regs. §§ 10.05, 10.06 (8) (1994). The challenged decision may be reversed only if there is no "reasonable basis" in the factual record to support it. 110 Code Mass. Regs. § 10.05. The aggrieved party bears the burden of proving by a preponderance of the evidence that a reversal is warranted. 110 Code Mass. Regs. § 10.23 (1993). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***11] [**505] The hearing officer issued detailed findings summarizing the [*390] evidence we have reviewed above. On the basis of this record, she concluded that Ugol's decision was in conformity with the department's policies and regulations, stating, "It is reasonable to believe that hitting a child with an object in the manner described puts him at substantial risk of physical injury, such as skin bruising or soft tissue swelling. This constitutes physical abuse as defined by Department regulations." The department's decision was subsequently affirmed on appeal by a Superior Court judge, who ruled that there was "substantial evidence" in the record to warrant the decision. The judge concluded that any interference with the plaintiff's religious and parental rights resulting from the department's decision was justified by the Commonwealth's interest in protecting a minor child from harm. 2. Discussion. a. Standard of review. We may set aside the decision of an administrative agency if it is not supported by substantial evidence. See G. L. c. 30A, § 14 (7) (e); Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 199, 580 N.E.2d 1028 (1991). [***12] "Substantial evidence," as defined by statute, is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). In conducting this review, we must "give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it," G. L. c. 30A, § 14 (7), and should defer to the agency on questions of fact and reasonable inferences drawn from the record. Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420, 589 N.E.2d 1224 (1992). Significantly, however, that the record may contain some evidence from which a rational mind might draw an inference in support of the agency's decision does not dispose of our inquiry. New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981). Rather, to determine whether an agency's decision is supported by substantial evidence, we examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence's weight. See id. See also Daniels v. Board of Registration in Medicine, 418 Mass. 380, 385-386, 636 N.E.2d 258 (1994). [***13] b. Substantiality of the evidence. The substantial evidence standard is thus fairly characterized as a test of rational probability: an agency's conclusion will fail judicial scrutiny if "the evidence points to no felt or appreciable probability of the [*391] conclusion or points to an overwhelming probability of the contrary." New Boston Garden Corp. v. Assessors of Boston, supra, quoting L.L. Jaffe, Judicial Control of Administrative Action 598 (1965). Thus conceived, the substantial evidence test accords an appropriate degree of judicial deference to administrative decisions, ensuring that an agency's judgment on questions of fact will enjoy the benefit of the doubt in close cases, but requiring reversal by a reviewing court if the cumulative weight of the evidence tends substantially toward opposite inferences. See, e.g., Daniels v. Board of Registration in Medicine, supra at 386, quoting Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 304, 418 N.E.2d 1236 (1981) ("as long as there is substantial evidence to support the findings of the agency, we will not substitute our views as to the facts" [emphasis added]). [***14] We do not judge this present case to be a close one. The record contains no affirmative evidence that the boy ever suffered actual "soft tissue swelling or skin bruising" as a result of the plaintiff's spankings. n7 The department argues, however, [**506] that its decision to support the 51A report was predicated on there being reasonable cause to believe that the plaintiff's method of disciplining the boy with a belt created a "substantial risk" that the boy would suffer "soft-tissue injury or swelling," which "substantial risk" of injury is encompassed by the statutory and regulatory definition of "abuse." See G. L. c. 119, § 51A; 110 Code Mass. Regs. § 2.00. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The department states in its brief that the temporary marks left on the boy's buttocks were "indicative of soft tissue injury" and that the investigating social worker, Rena Ugol, concluded that these marks indicated "the possible presence" of soft tissue damage or swelling. These statements exaggerate the record, however. At the hearing, Ugol testified that she was unable to determine whether there was in fact any physical injury to the boy and that her decision to support was, therefore, based on her judgment that, being hit with a belt "can cause such harm," creates the "potential" for such harm, and "gives the possibility that there will be the risk of this kind of injury" (emphasis added). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***15] We are not persuaded that the factual record lends the weight of probability to the department's conclusion that a substantial risk of harm was present. The department's investigator did not observe any physical injuries or marks attributable to the plaintiff's spankings, nor did the boy's treating physicians -- one of whom, Dr. Erlich, had examined the boy every three to four months from birth -- report ever having seen any indicia of inflicted harm. The only evidence pertinent to the physical [*392] effects of the punishment are the boy's own statements that the spankings left temporary red or pink marks on his buttocks that would fade after ten minutes or so. Such effects do not by themselves justify a conclusion that the boy is at substantial risk of suffering the sort of injury which the regulations denote as "abuse." 110 Code Mass. Regs. § 2.00 (1996). The department argues, however, that its decision to support the 51A report is rendered reasonable by the totality of the circumstances in this case. It cites the following factors as supportive of its conclusion that a substantial risk of harm was present: the regularity of the corporal punishment; the boy's age and special medical [***16] condition; the statement by the boy's pediatrician, Dr. Solomon, that the use of a belt "wouldn't help" the boy's muscular condition; the force the plaintiff used in striking the boy; the plaintiff's disregard of the boy's physical well-being, as evidenced by his never having checked to see whether he caused any marks; and the lack of any indication by the plaintiff that he would discontinue his practice of disciplining the boy with a belt. However, the evidence concerning each of these cited factors is at best inconclusive, and its cumulative weight falls short of the threshold of substantiality required to affirm the department's decision. We have already noted that the department's investigator stated in her report, and testified at the hearing, that her decision to support the 51A report was not predicated on any additional risk of harm arising from the boy's medical condition, as the import of this condition was unclear. We note, further, that Dr. Solomon, although he expressed concern about potential harmful effects of the punishment on the boy's medical condition, claimed never to have observed any overt signs of abuse on the boy's body, never identified precisely what [***17] sort of harmful effects he had in mind, and voiced his concerns in response to questions from the investigator that (as far as the record discloses) did not accurately describe the nature of the corporal punishment but merely referred loosely to the plaintiff's "using a belt to discipline" the boy, and the boy's being "hit with a belt." Moreover, Dr. Solomon's concerns were not corroborated by Dr. Erlich, the boy's orthopedist, who, when asked whether the plaintiff's use of a belt to discipline the boy posed any particular risks to the boy's condition, responded that he [*393] did not "see anything there at all." n8 Dr. Erlich [**507] further remarked on the plaintiff's "devotion" to ensuring that the boy received proper medical treatment and physical therapy, which we view as evidence of the plaintiff's genuine concern for his son's physical well-being. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 We are mindful that it is for the agency, not the reviewing court, to weigh the credibility of witnesses and resolve factual disputes involving contradictory testimony. See Seagram Distillers Co. v. Alcoholic Beverages Control Comm'n, 401 Mass. 713, 721, 519 N.E.2d 276 (1988). Nevertheless, under the substantial evidence test, we may disregard supporting testimony that cannot reasonably form the basis of impartial, reasoned judgment. See New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 467-468, 420 N.E.2d 298 (1981), citing NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 660, 93 L. Ed. 1602, 69 S. Ct. 1283 (1949). We conclude that Dr. Solomon's expressions of concern were too indefinite and, in light of his own and Dr. Erlich's statements regarding the absence of any observable injuries, overly speculative to form the basis of a rational inference that the spanking created a substantial risk of physical injury, as defined by statute and regulation. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***18] As to the allegation that the plaintiff spanked the boy with great frequency and excessive force, the only pertinent evidence in the record is the plaintiff's uncontroverted statements that he had spanked the boy five or six times during the preceding seven-month period, the investigator's report that the plaintiff's demonstration on a sofa cushion of the force he used on the boy made "a solid smack," and the boy's own report of temporary red or pink marks on his buttocks. This evidence, without more, does not make reasonably probable the department's conclusion that "soft tissue swelling or skin bruising" was substantially likely to result from the plaintiff's method of corporal punishment. With respect to the department's argument that the plaintiff's unwillingness to abandon his method of corporal punishment is a factor tending to support its conclusion that the boy is at "substantial risk" of physical harm, we note that there is no affirmative statement by the plaintiff in the record regarding his future intentions. Furthermore, we must remark on what seems to us as an anomaly in the department's handling of this case. When the parents declined to participate in counselling on [***19] a voluntary basis, the department closed the case. The department's regulations require closure of a supported case when a family that is the subject of a supported 51A report refuses further services and there are no grounds for either legal action or a new 51A report. See 110 Code Mass. Regs. §§ 9.02, 9.04 (1994). The commentary to § 9.04, provides that a decision to [*394] "support and close" is especially appropriate where a supported report of abuse "does not necessarily mean that a child is at ongoing risk" of suffering future abuse. 110 Code Mass. Regs. § 9.04. n9 Thus the department's decision to close the case -- a decision which, if we are guided by the department's own commentary to its regulations, must have been based on the determination that there is no ongoing risk that the child will suffer further abuse -- surely undercuts the reasonableness of its prior decision that the boy was at substantial risk of suffering harm in the future if the plaintiff persisted in his method of corporal punishment. Indeed, the department's willingness to close this case further confirms that its decision to support the abuse report in the first place was not founded on rational inferences [***20] drawn from the factual record. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The second type of case discussed in the commentary, where the family that is the subject of a supported 51A report "has disappeared" and cannot be located by the department, is not relevant here. See 110 Code Mass. Regs. § 9.04 commentary (2) (1994). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The department argues, however, that it is obligated to support a report of abuse if there is "reasonable cause" to believe that abuse has occurred, and points out that this evidentiary threshold, as defined by regulation and case law, is a minimal one requiring a "relatively low degree of accuracy." n10 But where, as in this case, there is no substantiated claim of actual physical injury, a finding of abuse must be predicated on there being reasonable cause to believe that there is a substantial risk that [**508] such injury will occur; i.e., there must be "a collection of facts, knowledge or observations which tend to support or are consistent with the allegations" that a substantial risk of injury is present. See 110 Code Mass. [***21] Regs. § 4.32. We conclude that the record does not support a rational inference that a substantial risk of physical injury, as defined by regulation, was present and, therefore, that the department lacked reasonable cause to believe that it was. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n10 See note 3, supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, the department urges us to defer to the clinical experience and trained judgment of its social worker and not to disturb its findings on questions of fact. However, we have repeatedly held that, while an agency is free to evaluate the evidence in the record in light of its expertise, it cannot rely on this expertise as a substitute for substantial evidence to support its decisions. See Daniels v. Board of Registration of Medicine, 418 Mass. 380, 389, [*395] 636 N.E.2d 258 (1994), and cases cited. Moreover, the principle of judicial deference to agency judgments on factual issues does not require us to abdicate our responsibility, pursuant to the State Administrative Procedure Act, to review the sufficiency of the factual [***22] record. See G. L. c. 30A, § 14 (7) (e), (f). Judicial deference to an agency's adjudicatory determinations is founded on a recognition of the important role of the administrative agency in the governmental process and a proper respect for the Legislature's decision to empower an agency with regulatory and discretionary authority. See A. Cella, Administrative Law and Practice § 1576 (1986). But this rationale for judicial deference ceases to apply where, as in this case, we conclude that the agency has failed to adhere to its own statutory mandate and regulatory framework by making a decision without sufficient evidentiary support. In such cases, we are required by the State Administrative Procedure Act to correct the agency's judgment by means of our own. See G. L. c. 30A, § 14 (7). 3. Conclusion. The department's regulations, promulgated pursuant to authority expressly granted by the Legislature, see G. L. c. 119, § 51B (8), clearly draw a line between permissible physical discipline and prohibited abuse, specifying the types of physical injuries which may not be inflicted on children and, [***23] consistent with the statute, defining abuse as nonaccidental conduct that actually inflicts these injuries or creates the substantial risk that they will result. See 110 Code Mass. Regs. § 2.00. Today, we conclude only that, on the totality of the record presented in this case, the effects of the plaintiff's physical discipline on his minor child did not satisfy the department's own regulatory definitions of physical injury and abuse. However, a method of corporal punishment similar to the plaintiff's could, in different circumstances, rise to a level of severity that would result in the actual infliction of impermissible injuries or, alternatively, warrant a rational inference that it posed a substantial risk that such injuries would result. In these circumstances, this conduct would, at the least, justify the department to support a 51A report of abuse. The department's decision to support a 51A report of abuse in this case was not supported by substantial evidence on the administrative record, and must be set aside. See G. L. c. 30A, § 14 (7). Because we resolve this case under the State Administrative Procedure Act, we do not reach or express an opinion [***24] on the plaintiff's constitutional claims. [*396] The judgment is vacated. The case is remanded to the Superior Court where a judgment will be entered vacating the department's decision and ordering the department to notify the plaintiff and any other person, public or private, to whom it conveyed information of its decision, that the 51A report of abuse on his minor son has not been supported. So ordered. |
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