JOHN D. [Note 1] vs. DEPARTMENT OF SOCIAL SERVICES

JACOBS, J. In this appeal, John D. contends that "[o]ral statements by themselves without evidence of physical and emotional injury do not constitute sexual abuse in the context of naming a perpetrator of sexual abuse under G. L.[] c. 119, s. 51B[,] and the regulations thereunder." He also argues that the evidence

Page 126

was insufficient to support a finding of child neglect made by the Department of Social Services (DSS).

This case arises from a report made to the DSS under G. L. c. 119, s. 51A, which alleged sexual abuse and neglect by John D. of his fifteen year old stepdaughter and neglect of his four year old daughter. After an investigation and report pursuant to c. 119, s. 51B, DSS supported [Note 2] that report, referred the allegation of sexual abuse to the district attorney [Note 3], and listed John D.'s name on its registry of alleged perpetrators [Note 4]. An administrative hearing, termed a "fair hearing," was held pursuant to 110 Code Mass. Regs. s. 10.00 (1993) & s. 10.05 (1994), to consider

Page 127

John D.'s challenge to the DSS decision. After that decision was upheld by the administrative hearing officer, John D. obtained a review in the Superior Court pursuant to G. L. c. 30A, s. 14. The Superior Court judge affirmed the DSS decision.

We condense the factual background, as determined by the administrative hearing officer [Note 5]. John D. is the stepfather of the older and the biological father of the younger of the two alleged victims. He had been married to their mother for about six years at the time the mother reported that the older daughter disclosed that John D. had told her he needed to examine her genitals because he suspected she had been sexually active with her eighteen year old boyfriend. The stepdaughter told the DSS investigator that John D. is a nudist, that she does not like seeing him nude, and that she disliked his entering the bathroom and starting conversations with her while she was in the bathtub. She reported that he asked her if she knew "how to give a 'blow job"' and if she had gone beyond kissing, and that he stated he would help her with kissing if she needed help. He also asked if he could see her hymen, while noting it would be alright if she declined, and telling her that she should not tell her mother of the request. She indicated that he regularly said things that were "weird." There also was evidence of incidents of physical confrontation between John D. and his wife, including that of the wife hitting him in the presence of the children.

In her decision, the administrative hearing officer stated that John D's "actions . . . coupled with his pattern of engaging in conversations replete with sexual themes and sexual activities constitute sexual contact." She also opined that sexual contact was not limited by DSS regulations to physical touching and that John D. engaged in "verbal sexual contact" with his stepdaughter.

Page 128

The principal issue in this case is the interpretation by DSS of its regulation at 110 Code Mass. Regs. s. 2.00 (1996), defining abuse 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, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual." (Emphasis original.)

Because the validity of the regulation is not challenged [Note 6], and there is no claim of unlawful procedure, cf. Arnone v. Commissioner of the Dept. of Social Servs., 43 Mass. App. Ct. 33 , 34 (1997), and cases cited, the precise issue is whether the hearing officer correctly ruled that John D.'s "verbal sexual contact" in the context of his conduct with his stepdaughter and in the absence of physical contact, constitutes abuse [Note 7]. While the noun "contact" is defined in Webster's Third New International Dictionary 490 (1993), as the "union or junction of body surfaces," it also is defined as "association or relationship," and

Page 129

"a condition or an instance of . . . communicating [Note 8]." In the somewhat analogous circumstances of interpreting G. L. c. 209A protective orders, we have given a broad interpretation to the word "contact." See Commonwealth v. Mendonca, 50 Mass. App. Ct. 684 , 687 (2001), and cases cited. We also do so here, using the nonphysical definition, because our focus is not limited to the precise nature of the interaction between parent and child, but additionally takes into account the purpose of that interaction and its potential effect upon the child.

That there is a broad range of possible communication between a parent (or caretaker) and a child on sexual subjects, is apparent from general experience and the dictionary definitions of "sexual [Note 9]." On the facts of this case, we need not declare particular standards as to what sexual communications may be improper between children and their caretakers. It is enough that we determine that the sexually oriented communications at issue constitute abuse, within the reach of the regulation, if they are not reasonably intended to provide information and direction for the child's education and physical and emotional well-

Page 130

being [Note 10]. Here, the hearing officer concluded that John D. was not acting "out of concern for [the stepdaughter's] physical well-being" when he discussed oral sexual acts and asked his stepdaughter whether he could examine her genital area to determine whether she was a virgin [Note 11]. The administrative hearing officer appears not to have credited his explanations because she concluded he "offered so many different accounts of what occurred indicat[ing] that he is not being truthful." This determination was hers to make. See Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684 , 698 (1998).

John D. argues that while some of his discussions with his stepdaughter may have been "inappropriate," they did not "rise to the level of sexual abuse within the definition set forth in [G. L.] c. 119, s. 51A [Note 12]. Two DSS supervisory staff members testified that "[t]here is almost no situation in which an adult male, a stepfather especially, father included, as far as this office is concerned, [in which it] would in any way be appropriate to look at the genitals or discuss the genitals" and that a "show and tell atmosphere" in sex education is "clearly not appropriate." This testimony, based on agency experience, constitutes the kind of evidence upon which the hearing officer could rely in concluding that John D. did not act out of concern for his stepdaughter's well-being. The administrative hearing officer noted that the DSS regulations "do not limit sexual

Page 131

contact to physical touching [Note 13]." She concluded that John D.'s "verbal sexual contact" constituted abuse within the meaning of the regulation [Note 14]. "The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency." G. L. c. 30A, s. 14(7). Evans v. Contributory Retirement Appeal Bd., 46 Mass. App. Ct. 229 , 233 (1999), and cases cited.

Moreover, there was evidence of a risk of harm to the stepdaughter from these inappropriately sexually laden communications. The stepdaughter told the investigator that she didn't "feel comfortable" with John D.'s nude conduct [Note 15] and his asking to see her hymen. She also stated that John D. thought he could say anything without offending her and that she felt he should move away. The evidence that John D's conduct was not only inappropriate but unwanted, reasonably gives rise to an inference of a substantial risk of emotional injury to the stepdaughter. While there was no direct or expert evidence of emotional harm presented at the fair hearing, we do not think such proof was required to justify the conclusion that the kind of inappropriate and unwanted conduct and sexually explicit remarks and questions as occurred in this case constitute the type of abuse the regulation encompasses. Section 51A speaks of a "substantial risk of harm," and the definition of abuse in 110 Code Mass. Regs. s. 2.00 (1996), includes "a substantial risk of . . . emotional injury [Note 16]." The DSS need not wait until a risk is actuated before intervening. The statutes under which it

Page 132

operates are "intended to apply to threatened harm to children as well as actual harm." Op. Atty. Gen., No. 59 at 139, 140-141 (May 27, 1975).

Accordingly, we agree with the Superior Court judge that John D.'s "engaging his stepdaughter in sexually explicit conversations and suggesting sexual contact with her, such as examining her genitals and [offering to help her with] romantic kissing, is thus consistent with the plain and ordinary meaning of the word contact." We further find support in the record for the judge's conclusion that this was conduct "potentially causing emotional harm to a child" and, therefore, that such behavior reasonably is within the cognizance of the regulation. Beyond the considerable deference we accord to an agency's interpretation of its own regulation, we conclude that the interpretation by DSS of its regulation in this case was rational, reasonable, and consistent with its plain terms. See Warcewicz v. Department of Envtl. Protection, 410 Mass. 548 , 550-551 (1991), and cases cited. Moreover, we conclude the regulation has been applied in a manner consistent with the purposes of c. 119, s. 51A. See Massachusetts Coalition for the Homeless v. Secretary of Health & Human Servs., 422 Mass. 214 , 226-227 (1996).

Finally, John D. asserts that because the hearing officer stated there was no indication that the two children were injured physically or emotionally by the domestic violence they witnessed, there is no evidence supporting the charge of neglect [Note 17]. The hearing officer concluded that the physical and verbal conflict between John D. and his wife, witnessed by the children, and acknowledged by John D., "constitutes a failure to provide the children with minimally adequate stability and growth [Note 18]." There was evidence, as related by the investigator, that the stepdaughter was upset by the frequent fighting of the parents over her and

Page 133

that the younger child told the investigator that her parents fought. "It is well documented that witnessing domestic violence . . . has a profound impact on children." Custody of Vaughn, 422 Mass. 590 , 599 (1996), and authorities cited. The associated risk of psychological problems in children who witness domestic violence justifies the hearing officer's conclusion that John D., albeit in conjunction with the mother, failed to provide minimal emotional stability to the children and that such a failure constituted neglect under the regulation. In the circumstances, this conclusion also reinforces the finding of abuse because John D's conduct contributed to the creation of a substantial risk of emotional injury.

John D. urges, on due process grounds, that we consider imposing a heightened evidentiary standard, such as that of clear and convincing evidence, so as to provide greater protection against a person improperly being designated as a perpetrator of sexual abuse because of the "powerful stigma" attached to the designation. He raises no issue concerning the adequacy of the G. L. c. 30A proceeding, or of any specific evidence, nor does he indicate whether or how the result here might be different under another standard. In these circumstances, we have no reason to consider a departure from the G. L. c. 30A process and standards recently confirmed in Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478 , 479-481 (1997). Moreover, while the decision to place a name on the registry of alleged perpetrators is a decision "of more than ordinary gravity in that it places a permanent mark on a person," id. at 487, that decision should not result in widespread stigmatization because access to the registry may only be obtained by written authorization of the DSS commissioner [Note 19]. Compare Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 102 (1998) ("stigma of being required to register as a

Page 134

sex offender and of having information regarding sex offenses disseminated to the public, [not] sufficient to require a higher standard of proof than that generally required in civil proceedings").

Judgment affirmed.