ADELE LINDSAY vs. DEPARTMENT OF SOCIAL SERVICES.

SOSMAN, J. Adele Lindsay, the owner and director of a day care center, sought judicial review of the decision of the Department of Social Services (department) to "support" an allegation that a child had suffered "neglect" at that center. See G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.32 (2000). A judge in the Superior Court affirmed the department's decision, and the present appeal followed. We transferred the case to this court on our own motion. On appeal, Lindsay raises three arguments: (1) that an allegation of neglect cannot be supported unless the neglect has actually caused the child to suffer physical or emotional injury (no such injury having occurred here); (2) that the department's decision was not supported by substantial evidence; and (3) that the standard for supporting an allegation of abuse or neglect, "reasonable cause" to believe that the abuse or neglect did occur (see G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.32[2]), violates due process because it is a lesser standard than preponderance of the evidence. We reject each of these arguments and therefore affirm the judgment in favor of the department.

1. Facts. Following an investigator's report supporting allegations that Lindsay was responsible for two instances of "neglect" of a child, Lindsay sought an administrative appeal of that decision. See 110 Code Mass. Regs. §§ 10.00 (2000). After an evidentiary hearing, the hearing officer upheld the investigator's decision with respect to one of the incidents and overturned the decision with respect to the other incident. The hearing officer's decision was based on the following factual findings, most of which were undisputed.

Adele Lindsay is the operator of two day care centers in Fall River. Adrianna Dockery, between three and four years old at the time of these events, attended the center located on Somerset Street. Lindsay provided transportation for the children to and from the center, carrying up to seven children at a time in her station wagon. Children would ride in the front seat, the rear seat, and in seats located at the back of the vehicle that were accessed through the rear hatch. When bringing children

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to the center, the customary procedure was for Lindsay to park the vehicle on the street in front of the facility and sound the horn as a signal. A teacher's aide would then come outside to retrieve the children and escort them into the center. Lindsay would remain in the vehicle with the children until such time as the aide appeared to take over their supervision.

One day in June, 1999, sometime between 8:30 and 9 A.M., Lindsay transported children to the center and parked the vehicle in front as usual. Adrianna was in the farthest seat to the rear. Lindsay sounded the horn and an aide came out to get the children, whereupon Lindsay apparently left the vehicle. The aide retrieved the children, but failed to notice Adrianna in the rear seat and, as a result, abandoned Adrianna, who was buckled into her seat in the vehicle. At around 10:30 A.M., one of the teachers was outside when she heard a child crying. She discovered Adrianna, removed her from the vehicle, and brought her inside the day care center. Her clothes were wet with sweat, but she suffered no other ill effects from the incident.

Approximately one month later, on July 21, 1999, Lindsay was again transporting Adrianna to the center. Another child, age five years old, was in the front seat with Lindsay. Adrianna was again in the rearmost seat. Lindsay parked the vehicle on the street in front of the facility, and the child in the front seat got out and went into the center on her own. Lindsay had not sounded her horn, and no one had yet appeared to retrieve Adrianna. Lindsay got out of the vehicle and proceeded in through the front door. As she was entering, a teacher's aide was coming out and asked Lindsay if she had sounded her horn. Lindsay replied that she had not. Understanding Lindsay's negative response to mean that there were no children to be retrieved, the aide went back to her classroom. Lindsay proceeded to the kitchen, leaving Adrianna in the vehicle. [Note 1]

Another employee leaving the center at sometime between

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11 and 11:30 A.M. went by and heard a child whimpering. She discovered Adrianna in the station wagon and ran inside the center calling for someone to give her the keys to the vehicle. Lindsay gave her the keys, and the employee went back out and removed Adrianna from the vehicle. As with the prior incident, other than crying or whimpering while she was alone in the car and emerging with sweaty clothes, Adrianna showed no other adverse effects from this incident.

The hearing officer determined that, as to the first incident of the child being left in Lindsay's vehicle, Lindsay had not neglected the child because Lindsay had transferred responsibility to the aide who had come out and retrieved all of the children except Adrianna. Having made that transfer, Lindsay was no longer Adrianna's "caretaker" at the time the child was abandoned in the vehicle. See 110 Code Mass. Regs. § 2.00 (2000) (defining "[n]eglect" with reference to failure by "caretaker" to take necessary action to provide for child, and defining "caretaker" to include any person "entrusted with the responsibility for a child's health or welfare").

As to the July 21, 1999, incident, the hearing officer found that the department had properly supported the allegation of neglect. Lindsay had not transferred responsibility to any other staff member when she left Adrianna in the vehicle, and her failure to signal to or alert anyone that a child needed to be retrieved was negligent. Id. (to constitute "[n]eglect," caretaker's failure to provide for child must be either deliberate or due to "negligence or inability"). While Lindsay characterized the incident as a misunderstanding between herself and the aide who inquired whether the horn had sounded, the hearing officer concluded that any such "misunderstanding" was caused by Lindsay. Lindsay had failed to sound the horn at a time when she knew (or should have known) that a child was still in the car, and when questioned by a staff member about the absence of that signal, Lindsay answered the question literally without informing the aide that there was nevertheless a child in the car. The hearing officer thus held that Lindsay had negligently failed to provide "minimally adequate supervision" for the child at a time when she was the child's sole caretaker,

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and that she had therefore "neglect[ed]" the child within the meaning of the department's regulations. See 110 Code Mass. Regs. § 2.00.

2. Discussion. a. Absence of physical or emotional injury. Lindsay contends that, under G. L. c. 119, §§ 51A and 51B, the department's "jurisdiction" is limited to cases where a child has suffered "physical or emotional injury" as a result of abuse or neglect, and that the department's regulation defining "neglect" is beyond the department's authority because it does not include any prerequisite of actual "injury." The regulation defines "neglect" as "failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care" (emphasis in original). 110 Code Mass. Regs. § 2.00. Here, the hearing officer made no finding with respect to "physical or emotional injury" from the alleged neglect, but found a failure to provide "minimally adequate supervision," a form of "neglect" as defined in the regulation.

Lindsay's argument that only neglect causing actual injury can constitute "neglect" of a child for purposes of G. L. c. 119, §§ 51A and 51B, is premised on a parsing of the statute that we do not accept. The first section Lindsay cites, G. L. c. 119, § 51A, requires that persons in certain occupations report suspected incidents of child abuse or neglect to the department. Such persons must make a report when they 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." Id. Lindsay reads this clause to cover a child's "suffering physical or emotional injury resulting from . . . neglect," making some resulting "injury" from the "neglect" a threshold requirement for a report to the department. Because the department's

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investigation under § 51B is predicated on a § 51A report, Lindsay contends that any finding of "neglect" under that section must similarly be premised on an "injury." [Note 2]

Before turning to the issue of how this reference to "injury" in § 51A is to be interpreted, we agree with the department's contention that § 51A only defines what circumstances trigger the requirement that certain professionals notify the department. It does not purport to cabin the department's own authority to investigate and address cases of child abuse and neglect under § 51B (which requires the department to "investigate and evaluate the information reported"). In other words, even if Lindsay's reading of § 51A were correct, that would only mean that a person who is a required reporter under § 51A would not have to report suspected "neglect" unless the reporter also observed "injury" resulting from that neglect. It would not prevent the department from investigating allegations of neglect if, even in the absence of any "injury," a report had been made.

As to the interpretation of § 51A itself, the department proposes, and we accept, an alternative connecting of the phrases in that section, namely, that a mandated reporter notify the department if a child is "suffering . . . from neglect." Under that reading, "injury" is a necessary component of "abuse" (requiring reporting where a child is "suffering physical or emotional injury resulting from abuse") but not a necessary

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component of "neglect." [Note 3]

Both readings of this somewhat cumbersome phrase are plausible, but it is the department's proposed reading that best comports with the purpose of the statute and with common sense. The purpose of this statutory scheme is to alert the department to instances where children may have been abused or neglected and, if the department's investigation confirms those reported suspicions, to take steps to protect the child and correct the underlying situation that led to the abuse or neglect. G. L. c. 119, §§ 51A, 51B. Depending on the circumstances, those steps may include the department's taking custody of the child, notifying the district attorney, offering services to the child and the child's family, [Note 4] and notifying other State agencies. G. L. c. 119, § 51B (3), (4), (5), (9), (10). If children are to be protected from "neglect," it makes no sense for the department to wait until neglect has already run its course to the point of producing a physical or emotional injury. The particular form of neglect at issue in this case -- lack of adequate supervision -- may, in some circumstances, result in no injury at all, but, when it does cause injury, it can do so suddenly and irreparably. For example, a toddler left unsupervised to cross a heavily traveled street may emerge totally unscathed, but may also be run over and killed. If the department is advised of a caretaker's failure

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to supervise such a child, it is nonsensical to suggest that the department can make no finding of neglect and may take no action to address that neglect unless and until a vehicle strikes the child. Other types of neglect -- for example, failure to provide a child with basic hygiene -- will not inflict any immediate injury but will, over time, lead to a variety of ailments. Again, the department cannot be required to wait until unsanitary conditions in the home or an evident lack of hygiene have led to infection or disease before it may take steps to protect the child from the foreseeable consequences of that neglect. Such an interpretation would make no sense and would instead preclude the department from addressing the underlying neglect while there was still time to prevent injury. [Note 5]

Where, as here, two readings of the statute are possible, we choose the reading that best comports with the statute's apparent intent and purpose, and we reject a reading that would hobble the statute's effectiveness. "The construction of a statute which leads to a determination that a piece of legislation is ineffective will not be adopted if the statutory language 'is fairly susceptible to a construction that would lead to a logical and sensible result.' " Adamowicz v. Ipswich, 395 Mass. 757, 760 (1985), quoting Lexington v. Bedford, 378 Mass. 562, 570 (1979). "If a liberal, even if not literally exact, interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, such interpretation is to be adopted rather than one which will defeat the purpose." North Shore Realty Trust v. Commonwealth, 434 Mass. 109, 112 (2001), quoting Champigny v. Commonwealth, 422 Mass. 249, 251 (1996).

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Nothing in the regulatory definition of "neglect" conflicts with the statute, undermines its purpose, or extends the department's authority beyond what the Legislature intended. The Legislature gave the department broad authority to "promulgate regulations to implement the provisions of [G. L. c. 119, §§ 51A-51F]," G. L. c. 119, § 51B (8), and "there is a presumption that the regulation does not exceed the statute which is as strong as the presumption that a statute squares with the Constitution." White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 477 (1980). "When the Legislature delegates to an administrative agency a broad grant of authority to implement a program of reform or social welfare, the administrative agency generally has a wide range of discretion in establishing the parameters of its authority pursuant to the enabling legislation." Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 525 (1979). "However, an administrative agency has no authority to promulgate rules or regulations that conflict with the statutes or exceed the authority conferred by the statutes by which the agency was created." Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 194 (1991). Here, the department's regulatory definition of "neglect" allows it to identify and provide services to any child whose caretaker is failing to provide a "minimally adequate" level of "essential" care for that child. 110 Code Mass. Regs. § 2.00. That approach is thoroughly consistent with, not contrary to, the purposes of the statute. We therefore reject Lindsay's contention that the department is powerless to act merely because less than "minimally adequate" care has not yet resulted in palpable "injury" to the child.

b. Substantial evidence. Lindsay contends that the hearing officer's decision is not supported by substantial evidence. At the outset, we must clarify the application of the "substantial evidence" standard of G. L. c. 30A, § 14 (7) (e), to the standard that governs the department's decision to "support" an allegation of abuse or neglect. An investigator's initial decision to "support" an allegation requires only that there be "reasonable cause to believe that an incident (reported or discovered during the investigation) of abuse or neglect by a caretaker did occur"

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(emphasis in original). 110 Code Mass. Regs. § 4.32(2). See 110 Code Mass. Regs. § 2.00 (defining "[s]upport" as "to find after an investigation that there is reasonable cause to believe a report" of child abuse or neglect). [Note 6] The phrase "reasonable cause to believe" is in turn defined as "a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected." 110 Code Mass. Regs. § 4.32(2). On appeal before the agency, the investigator's decision to "support" an allegation of abuse or neglect is to be reversed by the hearing officer if, "based on information available during the investigation and/or new information not available during the investigation, the [d]epartment's decision was not in conformity with the [d]epartment's policies and/or regulations and resulted in substantial prejudice to the aggrieved party." 110 Code Mass. Regs. § 10.06(8)(c) (1998). Thus, the issue on such an administrative appeal from the investigator's decision is whether, based on all information then available (which may take into consideration information not considered by the investigator during the original investigation), there was -- and still is -- "reasonable cause to believe" that the child was abused or neglected. When we now look to see whether there was "substantial evidence" to support the hearing officer's decision, G. L. c. 30A, § 14 (7) (e), there need only be "substantial evidence" supporting the conclusion that there was "reasonable cause to believe" that Lindsay neglected Adrianna.

The evidence in this record easily meets that test. In large measure, Lindsay's lack of substantial evidence argument relies on her theory that there had to be some actual "injury" suffered

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by Adrianna in order for the department to find any "neglect" of Adrianna. For the reasons stated above, evidence of actual injury was not a prerequisite to the department's supporting the allegation, and we therefore need not consider whether the child's crying, whimpering, or copious sweating amounted to a sufficient "injury."

Lindsay next contends that there was not substantial evidence of her negligence in abandoning Adrianna. We disagree. By her own admission, Lindsay did not take the customary action to alert personnel to the child's arrival. She then left the car and went into the center, when she either knew or should have known that there was still a small child buckled into her seat inside the car. When she encountered an employee coming out the door, she confirmed to that employee that she had not given the customary signal indicating the arrival of a child, but failed to tell that employee that there was nevertheless a child outside in the vehicle. Both Lindsay and the employee then went inside and, from this record, it appears that Lindsay should have known that the employee did not proceed outside to retrieve the child. The child was Lindsay's responsibility, and she failed to take reasonable measures either to take the child into the center herself or to see to it that someone else did. The evidence readily supports a reasonable cause to believe that Lindsay was negligent.

Lindsay finally contends that this incident did not place Adrianna at any significant risk and that her supervision of Adrianna was therefore not less than "minimally adequate." See 110 Code Mass. Regs. § 2.00. We give great deference to the department's assessment of what degree of supervision is "minimally adequate" and "essential" and, conversely, to the department's assessment whether the particular circumstances surrounding a given incident of abandonment of a child are sufficiently threatening to the child's well-being to make the abandonment qualify as "neglect." See G. L. c. 30A, § 14 (7) (court gives "due weight to the experience, technical competence, and specialized knowledge of the agency"). Here, Lindsay has shown no flaw in the department's assessment, and certainly none that would warrant our reversing that assessment. The potential consequences of leaving a small child in a vehicle,

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alone and totally unsupervised, for a period of hours include some that are very grave indeed. In mid-summer, such a child can suffer severe injury, depending on the prevailing temperatures and the amount of time that elapses before the child is rescued. [Note 7] An abandoned child can be abducted or kidnapped. Even if not physically injured, a small child can become truly terrified by such abandonment, a potential all the more likely here because the same child had been abandoned in a similar manner just one month earlier. On each occasion, the amount of time that elapsed before the child was retrieved was a matter of happenstance. But for the fortuity of an employee happening to hear the child's "whimpering," the child could have been left in the car the entire day. We see no reason to disturb the department's determination that abandoning Adrianna in this fashion constitutes "neglect."

c. Due process. Lindsay contends that the department's utilization of a "reasonable cause to believe" standard violates due process, arguing that nothing less than a "preponderance of the evidence" standard can comport with due process. See Care & Protection of Robert, 408 Mass. 52, 68 (1990); Valmonte v. Bane, 18 F.3d 992, 1003-1005 (2d Cir. 1994). She claims that the liberty interest at stake is her interest in her license to operate a day care facility, because the department notifies the office of child care services of any supported reports of child abuse or neglect that are alleged to have occurred at a licensed day care facility, see G. L. c. 119, § 51B (9), and because the office of child care services allegedly treats such a supported report as an automatic disqualification for licensure, see 102 Code Mass. Regs. § 1.05(1)(a)(4). [Note 8] See Vaccaro v. Vaccaro, 425 Mass. 153, 160-161 (1997), and cases cited (interest in reputation not

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protected liberty interest unless injury to reputation also causes change in status or rights). [Note 9]

The viability of Lindsay's due process claim is clouded by the fact that she has, in the wake of these proceedings, settled the related licensing proceedings before the office of child care services and, as part of that settlement, has retained a conditional license. Thus, whatever due process ramifications may theoretically lurk in the interplay between a supported report of abuse or neglect under § 51B and the licensing regulations of the office of child care services, we are here confronted with a situation where Lindsay has resolved the dispute over her license with the licensing agency. Due process claims concerning the role played by the department's supported report of neglect in licensing proceedings conducted by a separate agency appear moot in light of that settlement. [Note 10]

We also note that the nature of Lindsay's due process claim

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does not involve any infirmity in the procedural protections offered to her by the department's regulations. She had notice, an opportunity to be heard (first by the investigator, and again before the hearing officer), an opportunity to present evidence, and an opportunity to cross-examine witnesses at the evidentiary hearing. The sole defect alleged is the department's use of what she claims is an inadequate standard of proof, not a defect in the procedural protections afforded prior to the rendering of a decision based on that standard. "The due process test requires a balancing of the individual interest at stake and the risk of an erroneous deprivation of liberty or property under the procedures that the State seeks to use against the governmental interest in achieving its goals." Doe v. Attorney Gen., 426 Mass. 136, 140 (1997), citing Aime v. Commonwealth, 414 Mass. 667, 675 (1993). Here, the department utilizes the "reasonable cause to believe" standard for purposes of triggering its formulation of plans to provide appropriate services to a child and that child's family. In formulating and providing such services, the department is merely carrying out its mission to protect and treat children who may be suffering abuse or neglect, and its provision of such services does not deprive anyone of any liberty or property interest. For those purposes, we see nothing constitutionally infirm in the department's utilizing a standard of "reasonable cause to believe" that a child needs such services. [Note 11]

The constitutional defect, if any there be, lies not in the department's use of that standard of proof for its own purposes, but rather in the manner that the office of child care services allegedly denies or revokes a day care facility's license based on the department's decision to "support" an allegation of child abuse or neglect. Put differently, the department has not denied Lindsay due process merely because, in the wake of the department's lawful proceedings, some other agency has denied Lindsay due process. Lindsay's due process claim, if any, is a

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claim against the office of child care services for allegedly denying, revoking, or placing conditions on her license without a constitutionally adequate basis. [Note 12] Again, however, having settled her license proceedings, and never having sought review of the decision of the office of child care services concerning her license, we are in no position to assess whether the office of child care services has denied Lindsay due process in the course of those license proceedings. Whatever due process infirmities there may be in the manner that some other agency uses a supported report of abuse or neglect, they do not require the department

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to adopt a higher standard of proof for purposes of its mission to protect and provide services to children.

Judgment affirmed.