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In re L.B.

Superior Court of Connecticut, Judicial District of New Britain, New Britain

September 10, 2015

In re L.B.
v.
Department of Children and Families

MEMORANDUM OF DECISION

Henry S. Cohn, S.J.

The plaintiff appeals from a final decision of a hearing officer for the Department of Children and Families (DCF) dated October 1, 2014, upholding the substantiation of sexual abuse/exploitation of a child. and placing of the plaintiff's name on the DCF's central registry.[1] See General Statutes § § 17a-101g(b); 17a-101k.[2]

After the DCF completed an investigation in this matter and concluded that a substantiation should be made (Return of Record, ROR, Exhibit 1), the plaintiff, pursuant to § 17a-101k(c)(3), requested a substantiation hearing. (ROR, Exhibit 4.) The hearing was held on September 25, 2014. The hearing officer subsequently issued the final decision on October 1, 2014, making the following findings of fact:

1. The Appellant, [3] was living with the mother, the child and his daughter at the time of the report in this case. The mother was his fiancé, and the Appellant had been in a parenting role to the child for about six years.
2. Prior to the incidents reported in the child's disclosure, the child had no problems or concerns with her relationship with the Appellant. The child's relationship with her biological father was inconsistent. At the time of the disclosures, the child was having some conflict with the mother, not allowing the child to see her biological father, due to his substance abuse issues. Nothing in the record supports a conclusion that this issue regarding the father's visitation motivated the child to fabricate any claims against the Appellant.
3. On October 23, 2012, the Department received a report from the mother's therapist that the mother had brought the child to the therapist with the Appellant after reading in the child's journal that the Appellant had put his hands down the front part of the child's pants. The child told the therapist that the Appellant did this, but she had not wanted to report it because she didn't want her two-year-old sister to grow up without a father. The therapist recommended that the child engage in counseling at the time of the disclosure.
4. The report related to an incident which occurred two days earlier on Sunday, October 21. The child (age 11 at the time) had discussed plans to go for a jog with the Appellant on Sunday morning. The Appellant went into the child's bedroom that morning. The child's journal entry noted that the Appellant came to get her and put his hand on her hip and said " let me be a bad boy" and put his hand under her underwear. She said no and pushed him away. He kept saying " pls pls and sorry, " according to the journal entry.
5. The mother spoke to the child, who confirmed that the touching occurred as discussed in the journal. The only inconsistency in the child's report of the story to the mother was whether or not the Appellant was kneeling by the bed or standing when the touching occurred. The mother was ambivalent about believing the child's story regarding the Appellant, but stated in her interview with the investigator that she was supporting her daughter.
6. When the child was interviewed by the investigative social worker, she was reluctant to talk out loud about the incident, but she wrote down that " The Appellant touched me in a bad place. It happened in the morning." The child said that the " big thing" happened one time and there were two minor things that happened. The child was then referred to a CAC forensic interview.
7. At the CAC forensic interview the child disclosed that on the Sunday morning, the Appellant came into the room. He had placed his hands on her side, and that he then slid his fingers down her pants under her underwear. She stated that he was going to the " down there area, " and identified the area as the vagina on the anatomically correct diagrams. She said she asked him what he was doing and he kept saying " please, please, sorry, sorry" to her.
8. During the CAC forensic interview, the child also explained what she had termed the two minor incidents, which were in the car. She stated that the Appellant sometimes lets her drive on the dirt road to their house. She would sit on his lap in the driver's seat. She stated that he would put his hand on " it" and again pointed to the vagina on the diagram. She stated that he touched her over her clothes. This happened twice, once on a Tuesday and then once on the Saturday, right before the Sunday incident. The child was upset and crying during the forensic interview.
9. The Appellant was charged with risk of injury to a minor and sexual assault in the fourth degree. His application for accelerated pretrial rehabilitation was granted for the period of probation, which included a no contact order with the complainant and no unsupervised contact with the Appellant's minor child, unless ordered differently in family court.
10. When the Appellant was in the process of applying for the diversionary program, he was administered a risk assessment evaluation, which included an assessment of sexual offender risk. During testimony, the evaluator noted that but there was no way for the psychological evaluation to make determination of the fact of whether or not the Appellant engaged in the actions which were reported by the child. The evaluator also did not have access to the investigation protocol, or the investigative social worker, when he conducted the assessment. The evaluator concluded that it is not possible to determine if someone presents an increased risk for sexual offending until he has been convicted of a sexual offense charge. Nevertheless, the evaluator concluded that the Appellant would be a low risk for reoffending. (ROR, Final Decision, pp. 2-3.)

Based on these findings of fact, the hearing officer first addressed the DCF substantiation for sexual abuse.[4] The hearing officer upheld the substantiation under DCF Policy 34-2-7, which requires a finding (1) that the plaintiff was a " person given access to the child by a person responsible" and (2) the plaintiff " had an incident of non-accidental exposure to sexual behavior with the child." Here the facts ...


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