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NICHOLAS FRANK v. DEPARTMENT

OF CHILDREN AND FAMILIES

(SC 18980)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.

Argued December 2, 2013—officially released July 8, 2014

Gregory T. D’Auria, solicitor general, with whom

were John E. Tucker, assistant attorney general, and,

on the brief, George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellant (defendant).

John R. Williams, for the appellee (plaintiff).
Opinion

EVELEIGH, J. The defendant in this administrative

appeal, the Department of Children and Families

(department), substantiated allegations of emotional

abuse by the plaintiff, Nicholas Frank, an elementary

school teacher, against one of his students, K,1 and

placed the plaintiff’s name on the department’s central

registry of child abuse and neglect (central registry).2

The department appeals, upon our grant of certification,

from the judgment of the Appellate Court, reversing the

trial court’s judgment dismissing the plaintiff’s appeal

from the department’s decision and remanding the case

to the trial court with direction to sustain the plaintiff’s

appeal. See Frank v. Dept. of Children & Families,

134 Conn. App. 288, 315–16, 37 A.3d 834 (2012). The

department contends on appeal thattheAppellateCourt

improperly: (1) failed to give proper deference to the

factual findings and legal conclusions of the administrative hearing officer; and (2) concluded that, as applied to

the facts of the present case, the definition of ‘‘abused’’

found in General Statutes (Rev. to 2011) § 46b-120 (3)3

is not unconstitutionally vague. We now reverse the

judgment of the Appellate Court and remand the case

to that court, with direction to affirm the trial court’s

judgment dismissing the plaintiff’s appeal from the

department’s decision.

The department hearing officer found the following

facts, which are not contested on appeal. During the

fall of 2008, the plaintiff taught fifth and sixth grade at

an elementary school in the New Haven Public School

District (school district). K, a student in the plaintiff’s

sixth grade class, reported to his mother that the plaintiff was calling him names and pinching his cheeks.

Specifically, K reported that the plaintiff had called K

names such as ‘‘birthing mother,’’ ‘‘cheeks’’ and a ‘‘fish

out of water’’ and other students reported that the plaintiff called K ‘‘pregnant.’’ K found the cheek pinching to

be very painful because he had recently had metal bars

implanted in his mouth. K also believed that the plaintiff

used the cheek pinching to punish him. For example,

the plaintiff would limit K to ten questions per day, and

if K exceeded this limit, the plaintiff would ask K to

choose between having his cheeks pinched and skipping lunch as a punishment.

In December, 2008, K’s mother initially met with the

principal of the school, Laura Russo,4 and complained

about the plaintiff’s behavior. K and his motherreported

that the name-calling and pinching was very upsetting

to K, and that as a result K became afraid of going to

school, his schoolwork suffered, he had trouble sleeping and suffered from bedwetting due to anxiety. Russo

advised the plaintiff to have less contact with K and to

cease this behavior. Ultimately, Russo ordered Andrea

Lobo-Wadley, the school district’s personnel director,

to conduct an internal investigation of the accusations
by Kand his mother against the plaintiff.5 Lobo-Wadley’s

investigation included interviews with other students,

which confirmed that the plaintiff had called K and

other students names that could be hurtful and embarrassing. Lobo-Wadley’s investigation also revealed that

the plaintiff had previously received verbal warnings

about his interactions with students, and had received

a written warning in November, 2008,for calling another

child a liar when the child complained that the plaintiff

had called the child fat during a ‘‘boot camp’’ exercise.6

As a result of Lobo-Wadley’s investigation, the plaintiff

was suspended for eight days without pay.7

The administrative record reveals that, following a

meeting on May 19, 2009, Russo made a referral to the

department and K’s mother also independently made

two referrals to the department. Each of these referrals

was denied.8 See footnote 5 of this opinion. Shortly after

the plaintiff began serving his suspension, an article

appeared in the New Haven Register reporting on the

situation between K’s mother, the plaintiff, and the

school system. Another referral was made by K’s

mother at this time, which the department accepted.

The department dispatched an investigator, Brooke

Morris, to determine whether the plaintiff had abused

K and whether it would be appropriate to place the

plaintiff’s name on the central registry. Morris’ investigation resulted in factual findings similar to those made

by Lobo-Wadley. On the basis of her investigation, Morris determined that the plaintiff had emotionally abused

K, and substantiated the referral. Morris also recommended that the plaintiff’s name be placed on the central registry.

The opinion of the Appellate Court provides the following relevant procedural history. ‘‘The [department]

held an administrative hearing in [its] New Haven area

office on December 21, 2009, and March 15, 2010, to

determine whetherto uphold the investigator’s substantiation. The hearing officer heard testimony from Morris, Russo and the plaintiff and admitted the

[department’s investigation], the newspaper article and

the plaintiff’s personnel record into evidence. On April

30, 2010, the hearing officer rendered her final decision,

upholding the substantiation against the plaintiff and

ordering the placement of his name on the . . . central

registry . . . .

‘‘The plaintiff timely appealed from the hearing officer’s determination to the trial court, which heard argument on November 10, 2010. In a memorandum of

decision filed November 22, 2010, the court affirmed

the decision of the hearing officer, finding that there

was substantial evidence to support the hearing officer’s decision and rejecting the plaintiff’s void for

vagueness challenge.’’ Frank v. Dept. of Children &

Families, supra, 134 Conn. App. 300.

The plaintiff next appealed to the Appellate Court,
claiming that: (1) the trial court should not have upheld

the hearing officer’s substantiation of child abuse and

placement of his name on the central registry because

those decisions were not supported by substantial evidence; and (2) § 46b-120 (3), as interpreted by the

department, is unconstitutionally vague as applied to

the plaintiff’s conduct in this matter. Id., 292. The Appellate Court considered ‘‘the substantial evidence claim

. . . to be inextricably intertwined with [the] claim that

§ 46b-120 (3) is void for vagueness as applied to [the

plaintiff’s] conduct’’ and, thus, addressed the former

issue only as part of the vagueness issue. Id., 300–301

n.13. Perhaps because it considered the underlying evidentiary issue to be subsumed within the constitutional

issue, the Appellate Court adopted a statement of facts

in the case based on its own independent review of the

record instead of limiting itself to the express findings

of the hearing officer. Id., 293–300. Ultimately, the court

concluded that the statutory term of abuse was void

for vagueness as applied to the emotional abuse substantiation against the plaintiff. Id., 315. As a result, the

Appellate Court reversed the judgment of the trial court

and directed the trial court to render judgment sustaining the plaintiff’s appeal from the administrative

decision, and to order the department to remove the

plaintiff’s name from the central registry. Id., 315–16.

This certified appeal followed.9 Additional facts and

procedural history will be set forth as necessary.

I

We first address the issue of whether the Appellate

Court failed to properly credit the findings of the administrative hearing officer. The department argues on

appeal that the Appellate Court substituted its own

judgment for that of the trier of fact in this case, in

disregard of well established principles of administrative law regarding the appropriate level of deference

afforded to the findings of a hearing officer at an administrative hearing and the conclusions he or she draws

from them. The department claims that, although the

hearing officer’s findings and conclusions were substantially supported by the evidence in the record, the

Appellate Court ‘‘simply chose to credit the plaintiff’s

story’’ instead of the findings and conclusions of the

hearing officer. The plaintiff, in response, argues that

the Appellate Court implicitly credited specific factual

findings made by the hearing officer in support of the

department’s substantiation of emotional abuse, which

were found by the trial court to have been supported

by substantial evidence in the record, but nonetheless

determined that the statutory definition of abuse was

too vague to put the plaintiff on notice that such facts

could expose him to having his name placed on the

central registry. The plaintiff does not challenge the

sufficiency of the evidence to support these enumerated

findings but, instead, contends that the hearing officer’s

ten enumerated factual findings were insufficient to
substantiate her ultimate finding of emotional abuse

that effectively resulted in a sanction that caused a

‘‘tenured school teacher’’ to be considered ‘‘a child

abuser who should be barred from the profession

. . . .’’ The plaintiff relies on our decisions Dolgner v.

Alander, 237 Conn. 272, 676 A.2d 865 (1996), and Gupta

v. New Britain General Hospital, 239 Conn. 574, 687

A.2d 111 (1996), in support of this premise. We conclude

that the Appellate Court did not implicitly credit the

hearing officer’s findings and, further, we conclude that,

under the established standard to review an administrative decision, the record supports the trial court’s conclusion that the department’s decision was supported

by substantial evidence. Therefore, we conclude that

the Appellate Court improperly substituted its own findings for those of the department.

We begin with the standard of review. ‘‘[J]udicial

review of the commissioner’s action is governed by

the [Uniform Administrative Procedure Act, General

Statutes § 4-166 et seq. (UAPA)] . . . and the scope

of that review is very restricted. . . . [R]eview of an

administrative agency decision requires a courtto determine whetherthere is substantial evidence in the administrative record to support the agency’s findings of basic

fact and whether the conclusions drawn from those

facts are reasonable. . . . Neither this court nor the

trial court may retry the case or substitute its own

judgment for that of the administrative agency on the

weight of the evidence or questions of fact. . . . Our

ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted

unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

‘‘The substantial evidence rule governs judicial

review of administrative fact-finding under the UAPA.

[See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if

the record affords a substantial basis of fact from which

the fact in issue can be reasonably inferred. . . . The

substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision

of an administrative agency . . . . It is fundamental

that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to

law and in abuse of his discretion . . . . The law is

also well established that if the decision of the commissioner is reasonably supported by the evidence it must

be sustained.’’ (Citations omitted; internal quotation

marks omitted.) Goldstar Medical Services,Inc. v. Dept.

of Social Services, 288 Conn. 790, 833–34, 955 A.2d

15 (2008).

In the present case, substantial evidence in the administrative record supported the findings and conclusions

of the hearing officer, most notably the information

contained in exhibit 7, the internal investigation con-
ducted by Lobo-Wadley of the school district, and

exhibit 4, the investigation conducted by the department’s investigator, Morris. Specifically, in her decision

following the administrative hearing, the hearing officer

in this case made ten distinct factual findings, which

were as follows:

‘‘1. The [plaintiff] was a teacher at [the school] during

the 2008–2009 school year, teaching fifth and sixth

graders.

‘‘2. Twelve year old [K] was a student at [the school]

and had the [plaintiff] as a teacher.

‘‘3. [K] reported that during the 2008–2009 school

year, the [plaintiff] would call him names, including:

‘cheeks,’ because he has big cheeks and they are even

more pronounced since he had metal bars put in his

mouth to assist in straightening his teeth; ‘birthing

mother’ as he is overweight; and ‘fish out of water’

because of the way he looked when trying to get his

binder out from under his desk. [K] reported that he

found the names offensive and embarrassing. He was

sad and very hurt that the [plaintiff] called him names.

‘‘4. [K] reported that the [plaintiff] would pinch his

cheeks and this physically hurt due to the metal bars

in his mouth. He reported he was afraid in class as he

was afraid of what the [plaintiff] was going to say or

do next to make fun of him. He reported [that] the

[plaintiff] limited him to ten questions a day and if he

exceeded the limit, he would either get lunch detention

or the [plaintiff] would pinch his cheeks; [K] could

choose the punishment.

‘‘5. [K] reported he had good grades until he started

feeling afraid in class. His grades then went from A’s

to C’s. He reported he is upset and cannot concentrate.

He has trouble sleeping and his mother reported he had

started bedwetting right before he disclosed to her what

was occurring in the classroom. [K] stated he had problems sleeping because he was always thinking about

what was happening in the classroom.

‘‘6. [K]’s mother had a meeting with school administrators in December, 2008, and relayed her concerns

regarding the [plaintiff’s] treatment of [K]. In addition

to her concerns regarding the [plaintiff], [K’s] mother

also reported that [K] had been sexually abused by a

family member and is very sensitive to the [plaintiff’s] comments.

‘‘7. The [plaintiff] was advised by [Russo] to have less

contact with [K], stop calling him names and to stop

pinching his cheeks.

‘‘8. Other students in the class confirmed that the

[plaintiff] called [K] names and that the [plaintiff] also

called other students names. The students reported they

believed the [plaintiff] was joking, but that sometimes

he went too far and hurt students’ feelings and embar-
rassed them. Other students reported the [plaintiff] said

[K] was pregnant due to his weight.

‘‘9. Following an investigation by the New Haven

Board of Education, the [plaintiff] was suspended for

eight days without pay, due in part to his actions and

statements toward [K].

‘‘10. According to [e]xhibit 7, the [plaintiff’s]

[e]mployment [r]ecord, the [plaintiff] had received prior

verbal warnings regarding his comments to students.

He received at least one written warning in November,

2008, for calling another child a liar when the child

complained that the [plaintiff] had called him fat during

a boot camp exercise. An investigation of the incident

found that the [plaintiff] had called the child a turtle,

not fat.’’

In addition to these enumerated findings, the hearing

officer also made numerous additional factual findings,

as well as several legal conclusions, when applying the

relevant law, regulations, and policies to the situation

at hand. The hearing officer, relying on the guidance

provided by a department manual; see Dept. of Children

and Families, Policy Manual § 34-2-7 (policy manual);

concluded that the department had demonstrated by a

fair preponderance of the evidence that the plaintiff had

emotionally abused K. In making this determination, the

hearing officer found, for example, that at least some

of the plaintiff’s behavior was directed at K due to K’s

weight. In addition, the hearing officer determined that,

as a result of the plaintiff’s behavior, other students in

the class also began pinching K’s cheeks until the plaintiff stated that this behavior was inappropriate. The

hearing officer expressly found the plaintiff not to be

credible insofar as he claimed that: (1) the emotional

distress exhibited by K through his sleeping issues, bedwetting, fear of school, and falling grades were not

the result of the plaintiff’s conduct, but instead due to

sexual trauma previously inflicted on K by a third party;

and (2) K and his mother were complaining of the plaintiff’s conduct because of K’s bad grades. Instead, the

hearing officer noted that ‘‘[t]he record supports [that]

a number of students confirmed that the [plaintiff] had

a tendency to call students, including [K], derogatory

names and that he often pinched [K’s] cheeks. The

record also supports a finding that [K’s] mother maintained a close relationship with the school and tried

to address problems as they arose. . . . [K’s] mother

approached school officials several times to address

the [plaintiff’s] statements and actions [toward K]. Her

concern did not materialize after the poor grade was

received, but did intensify after that as [K] continued

to show signs of distress. The [plaintiff’s] name-calling

and cheek pinching resulted in [K] being fearful in class

and having difficulty sleeping.’’

Having concluded that the plaintiff emotionally

abused K, the hearing officer then determined that,
pursuant to § 34-2-8 of the policy manual, the department was warranted in placing the plaintiff’s name on

the central registry. Regarding the issue of intent, the

hearing officer noted that the department ‘‘examines

whether there is reason to believe the perpetrator had

sufficient knowledge and resources, the ability to utilize

them and an understanding of the implications for failing to provide appropriate care, but made a conscious

decision not to do so.’’ The hearing officer found that

‘‘[t]he record . . . supports a finding that the [plaintiff]

had previously been advised by school administrators

that it was inappropriate to call students names. The

[plaintiff] had received verbal warnings and at least

one written warning. In addition, as a teacher and an

individual educated regarding child development

issues, the [plaintiff] should have the knowledge and

resources to understand the implications of failing to

provide appropriate care to children. . . . The [plaintiff] should have been aware of the implication of his

statements on students in his care. The record supports

a finding that the [plaintiff] made a conscious decision

to not provide appropriate care.’’ (Footnote omitted.)

The hearing officer also concluded that the record supported a conclusion that the plaintiff’s actions had had

a serious adverse impact on K, and that the plaintiff’s

behavior reflected a pattern or chronic nature of abuse,

noting that ‘‘[t]he [plaintiff] called [K] names so often

that the other students also started calling him the same

or similar names.’’

In its decision dismissing the plaintiff’s appeal, the

trial court concluded that the administrative hearing

officer’s findings, and conclusions drawn therefrom,

were supported by substantial evidence in the administrative record. The trial court concluded: ‘‘Exhibit 4,

[the department’s investigation conducted by Morris]

supports the hearing officer’s findings that the plaintiff

called [K] embarrassing names and that other students

heard these names. [Exhibit 7, the internal investigation

conducted by Lobo-Wadley] contains a reprimand

issued by the school district to the plaintiff for his

treatment of [K], as well as an admission by the plaintiff

that he makes such comments to keep the atmosphere

in the classroom light and entertaining.’’ The trial court

continued: ‘‘The court also does not accept the policy

argument made by the plaintiff that the placement of

his name on the [central] registry list would wrongly

interfere with teaching methods chosen to be employed

by classroom teachers. The court defers to the conclusion of the hearing officer who noted that teachers

[throughout] the school districts are on notice that poking fun at students is inappropriate behavior.’’

When one reads the opinion of the Appellate Court,

it is immediately apparent that the panel omitted critical

findings and conclusions of the hearing officer. For

example, the Appellate Court acknowledged some of

the less egregious name calling but did not acknowledge
that K accused the plaintiff of calling him names such

as ‘‘birthing mother’’ or that other students in the class

reported that the plaintiff called K ‘‘pregnant.’’10 Similarly, the Appellate Court omitted the fact that the hearing officer concluded that the plaintiff called K by these

names in reference to the child’s weight. The Appellate

Court also quoted selectively from the hearing officer’s

decision. For example, the Appellate Court acknowledged that ‘‘[t]he hearing officer’s findings show that

the plaintiff intended his nicknames and horseplay to be

taken in a joking manner, and that is how K’s classmates

interpreted the plaintiff’s actions, although the hearing

officer noted that some students reported that ‘sometimes [the plaintiff] went too far and hurt students’

feelings and embarrassed them.’ ’’ Frank v. Dept. of

Children & Families, supra, 134 Conn. App. 310. The

Appellate Court omitted the next sentence in that same

factual finding by the hearing officer: ‘‘Other students

reported the [plaintiff] said [K] was pregnant due to his

weight.’’ Finally, the Appellate Court opinion not only

failed to acknowledge that the hearing officer did not

find the plaintiff’s explanation for the allegations to be

credible, it credited evidence that the hearing officer

had rejected in connection with this credibility assessment. For example, the Appellate Court opinion notes

that ‘‘[i]t was not until the plaintiff informed K’s mother

that K’s grade in his class had been lowered because

of K’s failure to turn in his assignments that K’s mother

complained further about the plaintiff.’’ Frank v. Dept.

of Children & Families, supra, 310 n.17. The hearing

officer expressly rejected this understanding of the

motive behind the complaints of K’s mother. In light of

these omissions and inconsistencies with the administrative record, there is simply nothing to substantiate

the plaintiff’s claim that the Appellate Court implicitly

credited the hearing officer’s conclusions. The Appellate Court, therefore, manifestly failed to apply the

proper standard of review. Accordingly, we now engage

in the proper inquiry.

We now examine whether the factual findings of the

hearing officer, and legal conclusions drawn therefrom,

are supported by substantial evidence in the administrative record. The separate and independent investigations conducted by Morris and Lobo-Wadley reveal that

K and other students in the class told adults that the

plaintiff called K names such as ‘‘birthing mother’’ and

told them that K was ‘‘pregnant.’’ K and other students

in the class considered these remarks to be derogatory

references to K’s weight. With regard to the plaintiff’s

pinching of K’s cheeks, K reported that he had metal

bars installed in his mouth and that ‘‘the inside of his

cheeks would bleed after [the plaintiff] would pinch

them as the bars were so close to the inside of his

mouth.’’ The plaintiff engaged in this conduct with such

frequency that it prompted some of K’s classmates to

also pinch K’s cheeks. K’s mother stated that the school
was aware of the metal bars as she had notified the

school of the procedure. On another occasion, K

attempted to resist the plaintiff’s attempt to pinch his

cheeks and the plaintiff stepped on K’s foot to prevent

him from getting away, tackled him to the ground,

placed a foot on his back, and then proceeded to pinch

K’s cheeks. K also reported that, unlike other students

in the class, the plaintiff limited K to ten questions in

class per day, and if K exceeded this limit ‘‘[K] would

have lunch detention or [the plaintiff] would pinch [K’s]

cheeks’’ and that the plaintiff ‘‘would allow [K] to pick

which punishment he wanted.’’ Other students in the

class observed that K had a visible reaction to the plaintiff’s behavior, noting that ‘‘[K] would look sad, like he

was going to cry, but he would try to laugh with everyone else.’’ K and his mother reported that the plaintiff’s

behavior had affected K’s sleeping patterns, his grades,

and it also resulted in K exhibiting bedwetting behavior.

The department and internal school investigations

of the plaintiff also demonstrated that the plaintiff’s

questionable behavior toward his students was not limited to the aforementioned conduct. Both investigations

revealed that, for a time, the plaintiff created an activity

called ‘‘The Mr. Frank Show,’’ which one of the investigations describes as ‘‘like Jerry Springer with a microphone’’ in which ‘‘[k]ids get to talk about other kids on

the microphone.’’ Russo stopped this activity when she

became aware of it. In addition, the plaintiff was disciplined in 2008 for an incident that occurred between

him and another student. In that situation, the student

reported to the school principal that the plaintiff and

another teacher had called the student fat during a

‘‘ ‘Boot Camp’ ’’ drill. The plaintiff, who was present at

the meeting with the school principal, ‘‘yell[ed] at [the

student], point[ed] in his face and called him a liar.’’

Another adult ‘‘pulled [the plaintiff] away from [the

student].’’ Russo noted that the student later admitted

that the plaintiff never used the word ‘‘fat’’ but had

made him feel uncomfortable about his weight during

the drill. Russo concluded, however, that ‘‘[t]he behavior displayed by [the plaintiff] was intimidating to the

student and unnecessary. . . . I am going to make an

[e]mployee [a]ssistance [p]rogram referral. [The plaintiff] has agreed to comply with my recommendation.’’

As discussed previously in this opinion, the hearing

officer stated that she did not find the plaintiff’s testimony regarding K’s motivation for reporting the plaintiff’s conduct to be credible and also concluded that

the plaintiff had acted intentionally. For purposes of

this issue, it is not appropriate to find that there is

insufficient evidence in support of administrative findings simply because, as the Appellate Court noted in

its opinion, ‘‘there is more than one possible explanation for K’s state of mind during the relevant time

period.’’ Frank v. Dept. of Children & Families, supra,

134 Conn. App. 311. Nor is it sufficient to argue, as
the plaintiff does, that a conflict exists between the

conclusion of the hearing officer and the conclusion of

the school district after it conducted its own internal

investigation that a brief suspension of the plaintiff was

the appropriate sanction. ‘‘In determining whether an

administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s

assessment of the credibility of witnesses. . . . The

reviewing court must take into account contradictory

evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s finding

from being supported by substantial evidence . . . .’’

(Internal quotation marks omitted.) Moraski v. Connecticut Board of Examiners of Embalmers & Funeral

Directors, 291 Conn. 242, 266–67, 967 A.2d 1199 (2009).

Rather, the findings and conclusions of the hearing officer in the present case were supported by substantial

evidence in the record, most notably the investigations

set forth in exhibits 4 and 7. These investigations both

contained descriptions of the plaintiff’s past discipline

and accounts by students regarding the plaintiff’s

behavior toward K and K’s subsequent reaction to it.

These reports not only supported the findings made

by the hearing officer regarding the name-calling and

physical conduct that the plaintiff inflicted on K, but

also that K had experienced an adverse impact as a

result of this behavior, which was evident to some of

K’s classmates. Although the record contained evidence

that supported the plaintiff’s position, primarily in the

form of the plaintiff’s own testimony, ‘‘[i]t is well established that it is the exclusive province of the trier of

fact to make determinations of credibility, crediting

some, all, or none of a given witness’ testimony. . . .

Additionally, [a]n administrative agency is not required

to believe any witness, even an expert. . . . Nor is an

agency required to use in any particular fashion any of

the materials presented to it as long as the conduct of

the hearing is fundamentally fair. . . . Questions of

whether to believe or to disbelieve a competent witness

are beyond our review. As a reviewing court, we may

notretry the case or pass on the credibility of witnesses.

. . . We must defer to the trier of fact’s assessment of

the credibility of the witnesses that is made on the basis

of its firsthand observation of their conduct, demeanor

and attitude.’’ (Citations omitted; internal quotation

marks omitted.) Goldstar Medical Services,Inc. v. Dept.

of Social Services, supra, 288 Conn. 830. Accordingly,

the trial court properly concluded that the ultimate

finding of the hearing officer, substantiating the allegation of emotional abuse against the plaintiff, was supported by substantial evidence.

We do not find persuasive the plaintiff’s argument

that the trial court’s conclusion is contrary to our decision in Dolgner. The plaintiff argues that in Dolgner,

this court refused to uphold a finding of emotional
abuse, when in that case a day care provider had been

alleged to have subjected children in her care to ‘‘humiliating and frightening treatment and punishment . . . .’’

Dolgner v. Alander, supra, 237 Conn. 277. The plaintiff

misconstrues the basis for our decision in that case. In

Dolgner, this court concluded that the decision of the

Commissioner of Human Resources to revoke the plaintiff’s license that permitted her to run a day care center

out of her home was not supported by substantial evidence. Id., 273. In that case, however, we based our

decision primarily due to the following concerns: ‘‘The

evidence presented at the [administrative] hearings

failed to disclose the factual particulars regarding inappropriate conduct that had occurred at the plaintiff’s

family day care home, the dates on which inappropriate

conduct occurred, the frequency of inappropriate conduct or any other details concerning the plaintiff’s

alleged violations . . . . Moreover, although the . . .

case summary [of the Department of Human Resources]

disclosed the age of one of the children who had

reported abusive treatment, no other evidence disclosed the ages of the children who had reported inappropriate conduct.’’ Id., 282. This court continued:

‘‘Although the reports prepared by [the Department of

Human Resources] and the . . . police . . . contained the specific factual foundation of the plaintiff’s

alleged misconduct, neither report was introduced into

evidence at the administrative hearings. In the absence

of such basic factual predicates, the hearing officer was

not provided with an opportunity to assess and to weigh

independently and adequately the accuracy and the

reliability of the evidence presented.’’ Id. Unlike the

situation in Dolgner, the record in the present case,

particularly those portions discussed previously in this

opinion, was replete with evidence containing the specific factual foundation underlying the department’s

decision to substantiate the charge of child abuse

against the plaintiff and recommend that his name be

placed on the central registry.

We also reject the plaintiff’s contention that neither

courts nor the department should be ‘‘second-guessing

the judgment of the New Haven Board of Education,

which has fully investigated and decided this matter

. . . .’’ The plaintiff analogizes the present situation to

the one presented to this court in Gupta v. New Britain

General Hospital, supra, 239 Conn. 590. We do not find

the situations to be comparable. In Gupta, the dispute

arose when the plaintiff, a surgical resident, was dismissed in what he claimed was a breach of the residency

agreement between the plaintiff and the defendant hospital. Id. In part, the plaintiff claimed that the defendant

had breached the agreement by failing to provide him

with adequate training. Id. We noted that the plaintiff’s

claim in Gupta raised issues such as standard of care,

the existence of a duty, and reasonableness that ‘‘are

difficult, if not impossible, to apply in the academic
environment’’; id., 591; and, partially for this reason, we

concluded that ‘‘[j]udicial noninterference is especially

appropriate in cases like the present one, in which the

focus of a breach of contract claim is an allegedly inadequate residency program.’’ Id., 592. By contrast, with

regard to the present case, the legislature has made

it quite plain by creating the central registry and its

surrounding regulatory scheme that potentially abusive

practices by teachers or other persons that fall within

the ambit of that scheme are subject to regulation by

the department and, to a lesser extent, the courts. The

centralregistry statutory scheme at issue plainly applies

to persons entrusted with the care of a child or youth.

See General Statutes (Supp. 2014) § 17a-101g (a)

(describing investigative steps taken by department

when reported abuser is ‘‘person entrusted with the

care of a child’’); General Statutes (Supp. 2014) § 17a101g (d) (providing when such report of abuse warrants

placement of abuser’s name on central registry); General Statutes (Supp. 2014) § 17a-101k (a)(providing that

department is required to maintain central registry of

findings of abuse pursuant to § 17a-101g). The legislature has defined the term ‘‘ ‘[p]erson entrusted with the

care of a child or youth’ ’’ to mean ‘‘a person given

access to a child or youth by a person responsible for

the health, welfare or care of a child or youth for the

purpose of providing education, child care, counseling,

spiritual guidance, coaching, training, instruction,

tutoring or mentoring of such child or youth.’’ (Emphasis added.) General Statutes (Supp. 2014) § 17a-93 (15).11

The hearing officer in this case determined that the

plaintiff was such a person, and the plaintiff has not

challenged this classification on appeal. Moreover, the

legislature has expressly given the department the

authority to adopt regulations to implement the central

registry. See General Statutes (Supp. 2014) § 17a-101k

(i). Thus, the legislature has plainly expressed a desire

for potentially abusive conduct between teachers and

the minor children with whom they have been entrusted

to be subject to some degree of supervision.

II

Having concluded that the ultimate finding of the

hearing officer, substantiating the allegation of emotional abuse against the plaintiff, was supported by substantial evidence, we now turn to the second issue:

whether the definition of ‘‘abused’’ found in § 46b-120

(3) is void for being unconstitutionally vague as applied

to the facts of the present case. The department claims

that the Appellate Court improperly determined that the

relevant term, ‘‘emotional abuse,’’ is void for vagueness.

Specifically, the department claims that the term is not

unconstitutionally vague when one examines the

department’s regulations and policy manual in combination with the remainder of the statutory scheme and

relevant case law. Moreover, the department contends

that, as an educator, the plaintiff should have been
on fair notice that his conduct would fall within the

statutory definition of ‘‘abuse,’’ particularly in light of

Connecticut’s anti-bullying statute.12 In response, the

plaintiff claims that the Appellate Court correctly held

that § 46b-120 (3) is unconstitutionally vague as applied

to the facts in the present case because ‘‘the plaintiff

. . . could [not] have been on notice that his cheekpinching and name-calling behavior toward K could

amount to child abuse within the meaning of § 46b-120

(3) as interpreted by the [department’s] regulations.’’

Frank v. Dept. of Children & Families, supra, 134 Conn.

App. 315. We agree with the department.

‘‘As a threshold matter, it is necessary to discuss the

applicable standard of review. A statute is not void

for vagueness unless it clearly and unequivocally is

unconstitutional, making every presumption in favor

of its validity. . . . [T]he void for vagueness doctrine

embodies two central precepts: the right to fair warning

of the effect of a governing statute . . . and the guarantee against standardless law enforcement. . . . If the

meaning of a statute can be fairly ascertained a statute

will not be void for vagueness since [m]any statutes

will have some inherent vagueness, for[i]n most English

words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be

necessary to ascertain a statute’s meaning to determine

if it gives fair warning.’’ (Citations omitted; internal

quotation marks omitted.) Ferreira v. Pringle, 255

Conn. 330, 355–56, 766 A.2d 400 (2001). ‘‘[T]he degree

of vagueness that the [c]onstitution tolerates . . .

depends in part on the nature of the enactment. . . .

The [United States Supreme Court] has . . . expressed

greater tolerance of enactments with civil rather than

criminal penalties because the consequences of imprecision are qualitatively less severe. . . . Therefore,

[c]ivil statutes . . . may survive a vagueness challenge

by a lesser degree of specificity than in criminal statutes.’’ (Citation omitted; internal quotation marks omitted.) Hogan v. Dept. of Children & Families, 290 Conn.

545, 575, 964 A.2d 1213 (2009), quoting Gonzalez v.

Surgeon, 284 Conn. 573, 583–84, 937 A.2d 24 (2007).

Before reaching the merits of our analysis, we refer

to this court’s earlier decision in Hogan v. Dept. of

Children & Families, supra, 290 Conn. 568–70,13 in

which we previously rejected a different vagueness

challenge to the constitutionality of the central registry

scheme, to provide background information: ‘‘The registry scheme is codified in two sections that work in

tandem: General Statutes [Rev. to 2007] §§ 17a-101g and

17a-101k. [General Statutes (Rev. to 2007)] § 17a-101g

sets forth the [department’s] responsibilities upon

receiving a report of abuse or neglect of a child: classification; evaluation; investigation; and determination of

whether abuse or neglect has occurred. General Statutes [Rev. to 2007] § 17a-101g (a) and (b). The statute
directs that, ‘[i]f the [C]ommissioner [of Children and

Families] determines that abuse or neglect has

occurred, the commissioner shall also determine

whether: (1) [t]here is an identifiable person responsible for such abuse or neglect; and (2) such identifiable

person poses a risk to the health, safety or well-being

of children and should be recommended by the commissioner for placement on the child abuse and neglect

registry established pursuant to section 17a-101k.’ General Statutes [Rev. to 2007] § 17a-101g (b).’’ ‘‘Certain

findings of abuse may result in the placement of an

abuser’s name on the [central] registry even prior to

exhaustion of administrative remedies: ‘[i]f the child

abuse or neglect resulted in or involves [inter alia] . . .

the risk of serious physical injury or emotional harm

of a child . . . .’ General Statutes [(Rev. to 2007) § 17a101g (d)].’’ Hogan v. Dept. of Children & Families,

supra, 573–74. ‘‘The [department] is directed under

[General Statutes (Rev. to 2007)] § 17a-101k (i) to adopt

regulations to implement the provision of that statute.’’

Id., 570.

The definition of ‘‘abuse’’ in § 17a-101g (b) incorporates, by reference, the definition of ‘‘abused’’ in § 46b120 (3).14 General Statutes § (Rev. to 2011) 46b-120 (3),

in turn, defines ‘‘abused’’ to mean ‘‘that a child or youth

(A) has been inflicted with physical injury or injuries

other than by accidental means, (B) has injuries that

are at a variance with the history given of them, or (C)

is in a condition that is the result of maltreatment,

including, but notlimited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment, or cruel punishment . . . .’’

With this understanding in mind, we turn to the merits

of this issue, namely, the question of whether the definition of ‘‘abused’’ set forth in § 46b-120 (3) is void for

vagueness as applied to the present circumstances. We

begin with the plaintiff’s challenge to the department’s

policy manual as an appropriate source of notice.

Although the plaintiff claims that ‘‘there is no indication

in the record that [the department’s policy] manual has

the force of law,’’ Connecticut courts, including this

court, have previously approved of using the policy

manual as a reference in the absence of guidance in

the relevant statutory provisions or regulations. See,

e.g., Hogan v. Dept. of Children & Families, supra, 290

Conn. 576 n.16 (noting that trial courts consider policy

manual to be part of relevant scheme); Lovan C. v.

Dept. of Children & Families, 86 Conn. App. 290, 295,

860 A.2d 1283 (2004)(citing § 34-2-7 of policy manual for

examples of term ‘‘physical injury’’ when determining

whether child had been ‘‘abused’’ within definition of

§ 46b-120); Giordano-Little v. Dept. of Children & Families, Superior Court, judicial district of New Britain,

Docket No. CV-07-4012612-S (January 29, 2008)

(reviewing finding of emotional neglect under § 34-2-7

of policy manual); Handleman v. Dept. of Children &
Families, Superior Court, judicial district of New Britain, Docket No. CV-06-4012364-S (January 11, 2008)

(relying on § 34-2-7 of policy manual to supply definition

of ‘‘emotional abuse or maltreatment’’); Adams v. Dept.

of Children & Families, Superior Court, judicial district

of New Britain, Docket No. CV-06-4011617-S (February

26, 2007) (noting that hearing officer relied on § 34-2-

7 of policy manual for definitions of ‘‘sexual abuse’’

and ‘‘emotional abuse’’); Rucci v. Dept. of Children &

Families, Superior Court, judicial district of New Britain, Docket No. CV-02-0516990-S (November 5, 2003)

(36 Conn. L. Rptr. 7, 9) (noting that § 34-2-7 of policy

manual ‘‘provides operational definitions of child abuse

and neglect’’ and interpreting subsection defining terms

‘‘physical abuse’’ and ‘‘physical injury’’). In Hogan, we

concluded that reliance on the policy manual was

appropriate, despite the fact that the policy manual was

not formally promulgated, because the provisions at

issue were substantially the same as pending formally

promulgated regulations, the policy manual effectively

served as a gap filler, and the policy manual is published

by the defendant and, thus, available for viewing by the

public.15 See Hogan v. Dept. of Children & Families,

supra, 576 and n.16.

Recently, however, this court underscored that an

agency interpretation, whether of its own regulations

or of a statute that the agency is charged with enforcing,

is not accorded deference by the court when it has not

been ‘‘promulgated pursuant to any formal rule-making

procedures or articulated pursuant to any adjudicatory

procedures, has not been time-tested or subject to judicial review in this state.’’ (Footnote omitted.) Sarrazin

v. Coastal, Inc., 311 Conn. 581, 611, 89 A.3d 841 (2014).

Thus, in Sarrazin, we declined to accord deference to

the Department of Labor’s interpretation of one of its

own regulations in a published guidebook for the public.16 Id., 611–12. Nonetheless, for purposes of the present case, reliance on the policy manual is appropriate

for several reasons. First, the question in the present

case is fair notice. Our courts previously had relied on

the policy manual in construing the same term at issue

in the present case. Thus, the plaintiff was on notice

of the courts’ reliance on the policy manual at the time

of the conduct in question. Second, as we explain subsequently in this opinion, the department’s definitions

in the policy manual are wholly consistent with the

common meaning of the term at issue, as well as other

statutory terms relevant to the present case. Therefore,

we begin with the policy manual.

In this case, the relevant provision of the policy manual is located in § 34-2-7. This section defines emotional

maltreatment and abuse to include ‘‘act(s), statement(s), or threats, which has had, or is likely to have

an adverse impact on the child and/or interferes with

a child’s positive emotional development.’’ Policy Manual, supra, § 34-2-7. This section further indicates that
‘‘evidence’’ of such abuse is ongoing if it includes the

following types of behavior: ‘‘rejecting’’; ‘‘degrading’’;

‘‘isolating and/or victimizing a child by means of cruel,

unusual, or excessive methods of discipline’’; and

‘‘exposing the child to brutal or intimidating acts or

statements.’’ Id. Similarly, the section indicates that evidence a child has suffered an adverse impact from such

behavior includes, inter alia, the following signs:

‘‘depression’’; ‘‘withdrawal’’; ‘‘low self-esteem’’; ‘‘anxiety’’; ‘‘fear’’; ‘‘sleep disturbances’’; ‘‘academic regression’’; and ‘‘trust issues.’’ Id.

As noted previously in this opinion, trial courts have

relied on this specific provision when evaluating

whether particular conduct qualifies as ‘‘abuse’’ for purposes of the central registry regulatory scheme. In fact,

at least one trial court has relied on this specific provision to uphold a claim of emotional abuse by a teacher

based on similar conduct. See Handleman v. Dept. of

Children & Families, supra, Superior Court, Docket

No. CV-06-4012364-S (The court affirmed the substantiation of emotional abuse and placement of the plaintiff

on the central registry when ‘‘numerous witnesses

repeated identical stories that [the plaintiff] shoved the

sobbing child out of her classroom, while screaming at

him to get out of her room . . . seeing her yell at the

child, who was again in tears at the school market

place . . . . [T]he hearing officer concluded that the

[plaintiff’s] actions [toward] the child had a negative

impact on the child’s behavior who ‘was frequently crying, sobbing and complaining about no longer wish[ing]

to attend school.’ ’’); cf. Medina v. Dept. of Children &

Families, Superior Court, judicial district of New Britain, Docket No. CV-07-4013879-S (November 14, 2007)

(upholding substantiation of physical and emotional

neglect against group home employee when allegations

included choking and use of profanity against child

living in group home in such manner so that child felt

‘‘scared and unsafe’’).

This definition is consistent with other authoritative

published sources. In January, 2008, prior to the conduct at issue in the present case, the Centers for Disease

Control and Prevention (centers) published uniform

definitions for child maltreatment. The centers defined

‘‘psychological abuse,’’ which it noted also included the

term ‘‘emotional abuse,’’ to mean ‘‘[i]ntentional caregiver behavior . . . that conveys to a child that he/she

is worthless, flawed, unloved, unwanted, endangered,

or valued only in meeting another’s needs.’’17 R. Leeb

et al., Centers for Disease Control and Prevention, Child

Maltreatment Surveillance: Uniform Definitions for

Public Health and Recommended Data Elements (2008)

pp. 16, 70.18 The centers included, among others, the

following behavior as examples of emotional maltreatment: ‘‘[b]elittling the child’’; ‘‘[d]egrading the

child’’; ‘‘[s]purning the child’’; and ‘‘[b]ehaving in a manner that is harmful . . . or insensitive to the child’s
developmental needs.’’ Id., p. 69. Similarly, MerriamWebster’s Collegiate Dictionary (10th Ed. 1993) defines

‘‘abuse,’’ when used as a noun, to mean ‘‘language that

condemns or vilifies usu[ally] unjustly, intemperately,

and angrily’’ or, when used as a verb, ‘‘to use so as to

injure or damage’’ and ‘‘to attack in words . . . .’’ These

definitions of abuse, which were published before the

plaintiff engaged in the conduct at issue as determined

by the hearing officer, serve as additional resources

through which the plaintiff could have become aware

that his conduct could be considered emotional abuse

within the meaning of § 46b-120 (3).

Furthermore, the language contained in other statutes reinforces this conclusion. The anti-bullying statute in effect during the time period relevant to the

present case included in its definition of ‘‘bullying’’ any

‘‘overt acts by a . . . group of students directed against

another student with the intent to ridicule, harass,

humiliate or intimidate the other student while on

school grounds . . . which acts are committed more

than once against any student during the school year.’’

Public Acts 2008, No. 08-160, § 4; see also footnote 12

of this opinion. Although the statute is expressly

directed at student conduct intended to cause harm, it

directs teachers to take an active role in preventing and

responding to bullying. Pursuant to the statute, schools

are required to create ‘‘safe school climate plans’’ that

outline the steps that teachers and staff are to take in

order to minimize or, ideally, eliminate bullying. Public

Acts 2008, No. 08-160, §§ 4 and 5.In addition, the registry

scheme implicitly acknowledges that abuse short of

causing severe emotional harm can result in the abuser’s placement on the central registry because, in cases

of serious physical or emotional harm the abuser’s name

can be placed in the central registry even prior to

exhaustion of administrative remedies. See General

Statutes (Supp. 2014) § 17a-101g (d).

In light of these sources of information, we readily

find that the plaintiff had fair notice that his conduct

could qualify as emotional abuse. The plaintiff, as K’s

teacher, was placed into a unique position to have an

impact on K’s life. A young person’s experience at

school shapes his or her identity. School is where our

youths learn about the world, how to interact with one

another, how to work together, and how to form ties

with people inside of a community infused with many

cultures. In this setting, the plaintiff made frequent,

degrading comments or references to K’s weight and

caused K further physical and mental pain by pinching

his cheeks. The plaintiff did this despite the fact that

it was quite clearto both other children in the classroom

and K’s mother that this behavior had a visible negative

effect on K. The plaintiff’s conduct continued to the

point that, according to the report authored by LoboWadley, other children joined in and carried out similar

behavior against K. In acting as he did, the plaintiff,
thus, essentially encouraged other students within the

class to aid him in causing K emotional harm. Such

behavior can only be categorized as ‘‘isolating,’’ as it is

used in § 34-2-7 of the policy manual, and it quite plainly

had a visible, profoundly negative impact on K. It should

be obvious to anyone, let alone a professional educator,

that this type of behavior—the targeting of a particular

student’s physical characteristics in a demeaning and

hurtful way—would readily fall within the terms

‘‘degrading’’ or ‘‘victimizing’’ as they are used within

§ 34-2-7 of the policy manual.

We conclude that the definition of ‘‘abused’’ found

in § 46b-120 (3), read in light of the policy manual,

related statutes, and the existing case law of Connecticut courts on the subject, provided sufficient specificity

so as to give the plaintiff adequate notice that his conduct might lead his name to be placed on the central

registry.19

We respectfully disagree with the Appellate Court

that our decision in State v. Scruggs, 279 Conn. 698,

905 A.2d 24 (2006), warrants a determination that the

term ‘‘abused’’ as defined in § 46b-120 (3) is void for

vagueness as applied to the plaintiff. See Frank v. Dept.

of Children & Families, supra, 134 Conn. App. 308–309.

In Scruggs, the defendant was subjected to a criminal

prosecution when the defendant’s child committed suicide. See State v. Scruggs, supra, 700–703. The defendant was convicted by a jury of one count of risk of

injury to a child pursuant to General Statutes (Rev. to

2005) § 53-21 (a) (1)20 and the trial court denied her

subsequent motion for judgment of acquittal because it

‘‘conclud[ed] that the jury reasonably could have found

that, by maintaining a cluttered and unclean residence,

the defendant wilfully had caused her son . . . to be

placed in a situation that was likely to injure his mental

health.’’ Id., 700. We concluded that the statute as

applied to the defendant was vague, in part because

the state had failed to show that the defendant had had

any notice, including notice from ‘‘statutes, published

or unpublished court opinions in this state orfrom other

jurisdictions, newspaper reports, television programs

or other public information that would support a conclusion that the defendant should have known that the

conditions in her apartment posed an unlawful risk to

the mental health of a child.’’ Id., 719. We have already

noted that the department’s published policy manual,

relevant statutes, and earlier Connecticut case law on

the substantiation of reports of emotional abuse by

teachers would have provided the plaintiff with notice

that his conduct might result in the placement of his

name on the central registry.

In sum, we conclude that the Appellate Court improperly failed (1) to give deference to the factual findings

made by the hearing officer and the factually supported

legal conclusions drawn therefrom, and (2) to give con-
sideration to sources of information available to the

plaintiff that provided him with adequate notice that

his conduct toward K would be considered abuse as

defined in § 46b-120 (3) and thus potentially result in

his name being placed on the central registry.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

render judgment affirming the judgment of the trial

court dismissing the plaintiff’s appeal.

In this opinion the other justices concurred.

1

In view of this court’s policy of protecting the privacy interests of juveniles, we refer to the child involved in this matter as K. See Frank v. Dept.

of Children & Families, 134 Conn. App. 288, 293 n.4, 37 A.3d 834 (2012).

2 As we discuss in further detail later in this opinion, General Statutes

(Supp. 2014) § 17a-101k requires the department to maintain a central registry of the names of certain individuals whom the department has found to

have abused or neglected children pursuant the investigative process set

forth in General Statutes (Supp. 2014) § 17a-101g.

We note that §§ 17a-101g and 17a-101k have been the subject of recent

amendments by our legislature that are not relevant to the present appeal.

See, e.g., Public Acts 2013, No. 13-54, §§ 1, 2. For the sake of simplicity, all

references to §§ 17a-101g and 17a-101k in this opinion, unless otherwise

noted, are to the versions of those statutes appearing in the 2014 supplement

to the General Statutes.

3 General Statutes (Rev. to 2011) § 46b-120 (3) defines ‘‘ ‘[a]bused’ ’’ to

mean ‘‘that a child or youth (A) has been inflicted with physical injury or

injuries other than by accidental means, (B) has injuries that are at variance

with the history given of them, or (C) is in a condition that is the result of

maltreatment, including, but not limited to, malnutrition, sexual molestation

or exploitation, deprivation of necessities, emotional maltreatment or cruel

punishment . . . .’’ The definition of ‘‘abused’’ found in § 46b-120 (3) is

applicable to the present case because the section is expressly referenced

in the statute that provides the criteria used to determine when a report of

child abuse must be made; see General Statutes (Supp. 2014) § 17a-101a (a)

(‘‘[a]ny mandated reporter, as defined in section 17a-101, who in the ordinary

course of such person’s employment or profession has reasonable cause to

suspect or believe that any child under the age of eighteen years [1] has

been abused or neglected, as defined in section 46b-120’’); and the statute

that provides the criteria for when the department should substantiate a

reported case of child abuse and whether the offender’s name should be

placed on the central registry. See General Statutes (Supp. 2014) § 17a-101g

(b) (‘‘After an investigation into a report of abuse or neglect has been

completed, the commissioner shall determine, based upon a standard of

reasonable cause, whether a child has been abused or neglected, as defined

in section 46b-120. If the commissioner determines that abuse or neglect

has occurred, the commissioner shall also determine whether: [1] There is

an identifiable person responsible for such abuse or neglect; and [2] such

identifiable person poses a risk to the health, safety or well-being of children

and should be recommended by the commissioner for placement on the

child abuse and neglect registry established pursuant to section 17a-101k.’’).

We note that § 46b-120 has been amended multiple times since the events

underlying the present appeal, including two amendments that renumbered

the subsections relevant to the present appeal. See, e.g., Public Acts, Spec.

Sess., June, 2007, No. 07-4, § 73 (effective January 1, 2010); Public Acts

2011, No. 11-240, § 2 (effective July 1, 2011). In light of the fact that these

amendments are not relevant to the present appeal, we refer to the 2011

revision of the statute for the sake of consistency with the Appellate Court

opinion. See Frank v. Dept. of Children & Families, supra, 134 Conn. App.

292 n.2.

We also note that § 17a-101a has been amended by our legislature since

the events underlying the present appeal. See, e.g., Public Acts 2013, No.

13-297, § 2. These amendments, however, are also not relevant to the present

appeal. Consequently, all references to § 17a-101a within this opinion are

to the version appearing in the 2014 supplement to the General Statutes.

4 We note that portions of the record in the present case also refer to the

principal by the name Laura Lynn. For the sake of simplicity, we refer to

her throughout this opinion as Russo.
5 The administrative record reveals that, following Russo’s warning to the

plaintiff to cease calling K names and pinching his cheeks, Russo asked K’s

mother if there had been any further issues between K and the plaintiff,

and K’s mother informed Russo that K had not reported any new incidents.

By February, 2009, however, K’s grades continued to suffer, and K’s mother

informed Russo that she believed that the plaintiff was retaliating against

K and his mother for bringing his earlier behavior to Russo’s attention. In

April, 2009, K’s mother again complained to Russo about the plaintiff, stating

that the behavior toward K had continued. An additional meeting was scheduled for May 5, 2009, between K’s mother, Russo, the plaintiff, Daniel Diaz,

who served as the school’s parent advocate, and Charles Warner, who was

an administrator at the school district’s central office. At this meeting, K’s

mother again raised her concerns regarding the plaintiff’s behavior toward

her son. Warner cut the meeting short, and informed K’s mother to file a

police report if she was concerned about the plaintiff’s behavior toward K,

which K’s mother subsequently did. Following an additional meeting on

May 19, 2009, between K’s mother, Russo, the plaintiff, Lobo-Wadley, and

Leah Pacini, another administrator with the school district’s central office,

Russo made a referral to the department and ordered Lobo-Wadley to conduct an internal investigation. The department did not accept Russo’s

referral.

6

In this instance, an investigation into the matter determined that the

plaintiff had not called the child fat, he had called him a turtle.

7 The administrative record also reveals that, as a result of these events,

the plaintiff was to be transferred to a different school in the fall of 2010.

8 The parties have not pointed us to any information contained in the

administrative record to explain the basis for the denial of these earlier

referrals. In the absence of such information, we decline to speculate as to

the reasoning employed by the department in declining to accept these

earlier referrals.

9 We granted the department’s petition for certification to appeal limited

to the following questions: (1) ‘‘Did the Appellate Court properly reverse

the judgment of the trial court or did it fail to properly credit the findings

of the hearing officer?’’ and (2) ‘‘If the answer to the first question is in the

affirmative, did the Appellate Court properly determine that . . . § 420b120 (3) is unconstitutionally vague as applied to the plaintiff’s conduct in

the classroom regarding one of his students, because the plaintiff could not

have been on notice that his behavior could be considered ‘emotional abuse’

as defined by the [department’s] regulations?’’ Frank v. Dept. of Children &

Families, 305 Conn. 909, 909–10, 45 A.3d 97 (2012).

10 Instead, the Appellate Court opinion states only that K’s mother believed

that K ‘‘had become sensitive to the use of nicknames by the plaintiff,

including the name, ‘cheeks,’ and, ‘fish out of water,’ and to the pinching

of his cheeks by the plaintiff.’’ Frank v. Dept. of Children & Families, supra,

134 Conn. App. 294.

11 We note that § 17a-93 has been amended by our legislature multiple

times since the events underlying the present appeal. See, e.g., Public Acts

2013, No. 13-40, § 3. These amendments, however, are not relevant to the

present appeal. For the sake of simplicity, all references to § 17a-93 within

this opinion are to the version appearing in the 2014 supplement to the

General Statutes.

12 Section 4 of No. 08-160 of the 2008 Public Acts, which amended Connecticut’s anti-bullying statute, General Statutes (Rev. to 2007) § 10-222d, sets

forth the statutory language in effect during the time period relevant to the

present case. It provides in relevant part: ‘‘Each local and regional board

of education shall develop and implement a policy to address the existence

of bullying in its schools. Such policy shall . . . (3) require teachers and

other school staff who witness acts of bullying or receive student reports

of bullying to notify school administrators in writing . . . (5) include a

prevention and intervention strategy . . . for school staff to deal with bullying, (6) provide for the inclusion of language in student codes of conduct

concerning bullying . . . [and] (9) direct the development of case-by-case

interventions for addressing repeated incidents of bullying against a single

individual or recurrently perpetrated bullying incidents by the same individual that may include both counseling and discipline . . . . For purposes of

this section, ‘bullying’ means any overt acts by a student or a group of

students directed against another student with the intent to ridicule, harass,

humiliate or intimidate the other student while on school grounds, at a

school-sponsored activity, or on a school bus, which acts are committed

more than once against any student during the school year. . . .’’ Public
Acts 2008, No. 08-160, § 4. Section 5 of Public Act 08-160 provides in relevant

part: ‘‘[t]he term ‘prevention and intervention strategy’ may include, but is

not limited to . . . (4) school rules prohibiting bullying, harassment and

intimidation and establishing appropriate consequences for those who

engage in such acts . . . [and] (8) school-wide training related to safe school

climate . . . .’’

13 We observe that this court’s decision in Hogan was released after the

events giving rise to the current dispute took place. The conduct giving rise

to the issue in Hogan, however, occurred well before the plaintiff engaged

in the conduct at issue in the present case. See Hogan v. Dept. of Children &

Families, supra, 290 Conn. 551–53 (noting that alleged abusive conduct

engaged in by plaintiff occurred in 1998, and that the administrative hearing

upholding in part department’s substantiation of physical abuse against

plaintiff occurred in 2005); see also Hogan v. Dept. of Children & Families,

Superior Court, judicial district of New Britain, Docket No. CV-06-4012236-

S (August 3, 2007), rev’d, Hogan v. Dept. of Children & Families, supra,

290 Conn. 582. Our decision in Hogan examined portions of the central

registry regulatory scheme as it existed at the time that the conduct giving

rise to the present case occurred. Thus, we at times make reference to our

decision in Hogan in this opinion as it provides some insight as to the

workings of the regulatory scheme and the accessibility of information about

the scheme that would have been available to the plaintiff in the years

leading up to the events in question in the present case. In making these

references, we do not intend to suggest that our decision in Hogan, in and

of itself, provided any notice to the plaintiff that his conduct might have

fallen within the relevant statutory definition of ‘‘abuse.’’

14 General Statutes (Supp. 2014) § 17a-101g (b) provides in relevant part:

‘‘After an investigation into a report of abuse or neglect has been completed,

the commissioner shall determine, based upon a standard of reasonable

cause, whether a child has been abused or neglected, as defined in section

46b-120. If the commissioner determines that abuse or neglect has occurred,

the commissioner shall also determine whether: (1) There is an identifiable

person responsible for such abuse or neglect; and (2) such identifiable

person poses a risk to the health, safety or well-being of children and should

be recommended by the commissioner for placement on the child abuse

and neglect registry established pursuant to section 17a-101k. If the commissioner has made the determinations in subdivisions (1) and (2) of this

subsection, the commissioner shall issue notice of a recommended finding

to the person suspected to be responsible for such abuse or neglect in

accordance with section 17a-101k.’’

15 Section 34-2-7 of the policy manual is available to the public on the

department’s website, and the webpage reflects that the section has not

been modified since November 15, 2007. See Policy Manual, supra, § 34-2-

7 (last modified November 15, 2007), available at http://www.ct.gov/dcf/cwp/

view.asp?a=2639&Q=393928 (last visited June 25, 2014).

16 We note that the guidebook in Sarrazin was intended to provide guidance to the public, in particular employers, whereas the department’s policy

manual is, by its express terms, intended to guide the conduct of its employees in assessing and responding to allegations of abuse and neglect. See

Connecticut Department of Labor, ‘‘A Guide to Wage and Workplace Standards Division and Its Laws’’ (Rev. 2014) p. i (noting guide provided to

assist employers); Policy Manual, supra, § 1-3-1 (‘‘[t]he [p]olicy [m]anual is

a primary staff tool covering legal requirements and agency mandates and

is to be used as a reference for informed decision-making’’).

17 Although neither party has suggested that this particular definition

would have given the plaintiff notice that his conduct might qualify as

‘‘abuse’’ within the meaning of § 46b-120 (3), this court has previously

observed that the vagueness doctrine requires ‘‘what Justice Holmes spoke

of as fair warning . . . in language that the common world will understand,

of what the law intends to do if a certain line is passed. To make the warning

fair, so far as possible the line should be clear. . . . [L]aws [must] give the

person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.’’ (Citations omitted; internal

quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89,

99–100, 717 A.2d 117 (1998). In other cases examining the vagueness doctrine, we have looked to public sources of information to see if they could

have provided an actor with notice that his or her behavior could fall within

the bounds of the applicable statute. See, e.g., State v. Indrisano, 228 Conn.

795, 809–10, 640 A.2d 986 (1994) (citing dictionary to provide common

meaning of statutory terms); State v. Scruggs, 279 Conn. 698, 719, 905 A.2d
24 (2006) (finding statute at issue unconstitutionally vague as applied to

defendant, noting that ‘‘[t]he state has pointed to no statutes, published or

unpublished court opinions in this state or from other jurisdictions, newspaper reports, television programs or other public information that would

support a conclusion that the defendant should have known that the conditions in her apartment posed an unlawful risk to the mental health of

a child’’).

18 In a footnote, the authors noted that this definition was adapted from

the Practice Guidelines of the American Professional Society on the Abuse

of Children, which was published in 1995. R. Leeb et al., supra, p. 16 n.12.

19 We reiterate that the stated legislative purpose of the central registry

is ‘‘to prevent or discover abuse of children . . . .’’ (Internal quotation marks

omitted.) Hogan v. Dept. of Children & Families, supra, 290 Conn. 573. As

a result, for this court ‘‘to require the [department] to delineate every act

that would lead to placement of a person’s name on the registry would be

impracticable when the issue is a prediction of risk.’’ Id., 577.

20 General Statutes (Rev. to 2005) § 53-21 (a) provides in relevant part:

‘‘Any person who (1) wilfully or unlawfully causes or permits any child

under the age of sixteen years to be placed in such a situation that the life

or limb of such child is endangered, the health of such child is likely to be

injured or the morals of such child are likely to be impaired, or does any

act likely to impair the health or morals of any such child . . . shall be

guilty of a class C felony . . . .’’