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22-P-35 Appeals Court

KYLE K. vs. DEPARTMENT OF CHILDREN AND FAMILIES.

No. 22-P-35.

Suffolk. November 2, 2022. – October 6, 2023.

Present: Rubin, Englander, & Hand, JJ.

Department of Children & Families, Registry of alleged 

perpetrators. Child Abuse. Administrative Law, 

Administrative Procedure Act, Decision, Hearing, Judicial 

review, Standard of proof, Substantial evidence, Failure to 

raise issue before agency. Due Process of Law, 

Administrative hearing. Evidence, Administrative 

proceeding. Practice, Civil, Review of administrative 

action, Judgment on the pleadings, Waiver. Waiver.

Civil action commenced in the Superior Court Department on 

March 23, 2020.

The case was heard by Maureen Mulligan, J., on motions for 

judgment on the pleadings.

Brian Waller for the plaintiff.

Carol A. Frisoli for the defendant.

RUBIN, J. Today we review the decision of a hearing 

officer of the Department of Children and Families (department 

or DCF) upholding the determination that allegations of sexual 
2

abuse of a child, Adam,1 made by Adam against his stepfather, and 

reported to DCF by mandated reporters pursuant to G. L. c. 119, 

§ 51A (51A report), were "supported." See 110 Code Mass. Regs.

§ 4.32 (2009).

The legal term "supported" is confusing. As relevant here, 

a mandated reporter must notify DCF when the reporter has

"reasonable cause to believe that a child is suffering physical 

or emotional injury resulting from: (i) abuse inflicted upon 

him which causes harm or substantial risk of harm to the child's 

health or welfare, including sexual abuse." G. L. c. 119, 

§ 51A. DCF must undertake an investigation. See G. L. c. 119, 

§ 51B. Under DCF regulations, as relevant to this case, the 

finding that the allegation was "supported" actually means that 

the department concluded there was "reasonable cause to believe" 

that the reported "incident . . . of abuse or neglect of Adam 

"by a caretaker did occur." 110 Code Mass. Regs. § 4.32(2)

(2009).

Among other things, a finding that an allegation made in a 

51A report is supported triggers the obligation of DCF to "offer 

'appropriate services' to the family of any child whom it has 

reasonable cause to believe is suffering from abuse or neglect 

'to prevent further injury to the child, to safeguard his 

1 A pseudonym.
3

welfare, and to preserve and stabilize family life whenever 

possible.' G. L. c. 119, § 51B (g)." Adoption of Luc, 484 

Mass. 139, 141 (2020).

The stepfather appealed from the finding that the 

allegations against him were "supported." After a fair hearing, 

see 110 Code Mass. Regs. §§ 10.00 (2014), a hearing officer 

within DCF concluded that there was reasonable cause to believe 

that the allegations were true. The stepfather sought judicial 

review in the Superior Court, and a judge of that court affirmed 

the hearing officer's decision, denying the stepfather's motion 

for judgment on the pleadings, and granting DCF's cross motion. 

The stepfather has now appealed.

Facts and prior proceedings. After a long history of 

allegations of sexual abuse of Adam which were recanted or found 

not to be substantiated, in January, 2019, a mandated reporter 

submitted a 51A report, stating that Adam had alleged that his 

stepfather sexually abused him. In February, 2019, a mandated 

reporter filed a 51A report stating that Adam had alleged sexual 

and physical abuse by the stepfather.

After an investigation mandated by G. L. c. 119, § 51B (51B 

report), the department's investigator found on March 20, 2019, 

that these allegations of sexual and physical abuse of Adam by 

the stepfather were "supported."
4

Adam's mother appealed through the department's fair 

hearing process. See 110 Code Mass. Regs. § 10.06(11)

("Whenever the Department has supported a report of abuse or 

neglect of a child, any parent of the subject child, any 

caretaker who has been identified in the Department's Central 

Registry as the person believed to be responsible for the abuse 

or neglect, any caretaker of the subject child and any 

Adolescent, who is the subject child, has the right to appeal 

the Department's decision to support the report"). The fair 

hearing was held before a DCF hearing officer, another executive 

branch official within DCF. At the hearing, the stepfather was 

added as an appellant when the mother's attorney said he also 

represented the stepfather.

At a fair hearing, 

"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."

Lindsay v. Department of Social Servs., 439 Mass. 789, 799

(2003). See 110 Code Mass. Regs. § 10.06(11)(a).
5

After the hearing, the hearing officer concluded that DCF's 

decision to find the 51A reports of sexual abuse supported "was 

made in conformity with the Department's regulations and 

policies," and that "there was a reasonable basis" to believe 

the alleged sexual abuse occurred. See Covell v. Department of 

Social Servs., 439 Mass. 766, 778-779 (2003). The hearing 

officer concluded that there was not reasonable cause to believe 

the physical abuse occurred and reversed the DCF conclusion that 

the allegation of physical abuse was supported.

At the hearing, the stepfather, Adam's mother, and the DCF 

investigator assigned to the case testified. DCF introduced 

evidence of the two 2019 reports by Adam of sexual abuse by the 

stepfather, as well as evidence that Adam had recanted those 

reports. Adam did not appear at the hearing; his allegations of 

sexual assault came in through hearsay, the testimony of the DCF 

investigator, and various documents, including police reports. 

Both DCF and the stepfather offered additional documentary 

evidence, including 51A and 51B reports.

The statements that led to the 51A reports were first made 

by Adam in January, 2019, when he was thirteen years old. Adam

recanted the allegations after he was hospitalized for 

psychiatric reasons in March, 2019.

The hearing officer examined all the evidence, including 

those things in the record that detracted from the weight of the 
6

evidence that Adam's allegations were true, including Adam's

retraction, and the fact that earlier allegations had not been 

found substantiated when investigated by authorities in New 

Hampshire and Rhode Island. Those prior allegations and 

investigations were recounted in the findings of the hearing 

officer. Adam first accused the stepfather of sexual assault in 

2010, claiming that the stepfather had coerced Adam to put the 

stepfather's penis in his mouth. New Hampshire and Rhode Island 

authorities investigated the 2010 allegations and determined 

them to be unfounded -- in part because Adam "stated he lied 

about the sexual abuse."2 In the summer of 2018, DCF 

investigated an additional allegation that the stepfather had 

sexually assaulted Adam. DCF concluded then that "[t]he 

concerns raised around sexual abuse by [the stepfather] had no 

basis or validation."3

The hearing officer found that on six separate occasions 

over a substantial period of time, first in 2010, then in 2019, 

2 According to department records, Adam's report in 2010 was 

that "[he] put his mouth around [the stepfather's] penis." Adam

later "recanted his statement and passed a polygraph test 

denying the allegations." 

3 Additionally, Adam reported that after a Christmas party 

in 2010 at a relative's house in Rhode Island, his grandmother's 

boyfriend had touched his buttocks and testicles under his 

clothing. DCF was unable to identify the grandmother's 

boyfriend by name but supported the allegation that an "unknown 

person" had sexually abused Adam in 2010.
7

Adam reported that his stepfather sexually abused him, including 

by raping him twice, orally. In 2019, when Adam was thirteen 

years old, he provided corroborating details about the 

allegations, which were also introduced through hearsay 

evidence. At a sexual abuse intervention network (SAIN)

interview, he described a rape in some detail, including 

specifics about the location and time of day at which the rape 

occurred, the fact that the stepfather removed his own clothes, 

but Adam remained clothed, the dialogue between himself and the 

stepfather leading up to Adam's taking the stepfather's penis in 

his mouth, and his description of "just sucking on [the 

stepfather's penis] like a child would do to a lollipop." Even 

apart from the description of the sexual abuse itself, the 

hearing officer recounted that Adam said that "the stepfather 

did not touch him and the stepfather's pants were down to his 

ankles and his shirt was off. [Adam] said he had his clothes 

on. About twenty minutes later, around noon, his mother 

returned home so his stepfather pulled up his pants and asked 

'who is it' as his mother was at the door knocking. Mother rang 

the doorbell and the neighbor had let her in, and then she 

knocked on the apartment door and [the] stepfather opened the 

door for her. [Adam] stated he had met his stepfather only one 

month before this happened. [Adam] said this happened on the 
8

second floor of mother's house, which was green with two porches 

and on [a specified] street."

As to the recantation by Adam, the hearing officer found 

that "the Appellants, notably mother, directly influenced [Adam] 

to recant the allegations, which occurred while the child was 

inpatient at a hospital for psychiatric reasons in March 2019. 

[Adam] has recanted the allegations of sexual abuse twice after 

having direct contact with his mother. Therefore, the 

Appellants' arguments were not persuasive."

There was also at least some corroborating evidence: Adam

suffered from a lack of bowel and urinary control, the latter of 

which the Supreme Judicial Court has accepted as a "common 

behavioral symptom[] of abuse." Commonwealth v. Alvarez, 480 

Mass. 299, 302 (2018). Adam's therapist reported that Adam's 

"behaviors of bed wetting and defecating in his clothing . . .

[were] signs of some sort [of] sexual trauma."

The hearing officer found "that the Department, in making 

the decision of sexual abuse of [Adam] by [the] stepfather, and 

pursuant to 110 [Code Mass. Regs. §§] 2.00 & 4.32, had 

sufficient evidence to have reasonable cause to believe that 

[the] stepfather sexually abused [Adam]. The Hearing Officer 

finds that engaging in oral sex constituted sexual contact. 

[Adam] had inconsistencies regarding the age of when sexual 

abuse occurred. However, [Adam] has been consistent in his 
9

disclosures of sexual contact between him and his stepfather, 

his therapist questioned sexual abuse due to [Adam]'s behaviors

of wetting the bed and having bowel movements in his pants, his 

guidance counselor reporting that he was a reliable reporter." 

The hearing officer further spelled out, "Given all the evidence 

regarding the matters under review, the Hearing Officer is left 

with credible evidence that this child has continually disclosed 

these allegations over a significant period of time. Contacts 

with the child's family therapist during the 51B response and 

with the child's mental health clinician by the detective during

his criminal investigation indicate that the child experiences 

lack of control over his bowel movements and experiences 

problematic urinary functions. The therapist has always 

questioned sexual abuse because [Adam] has been wetting the bed 

and having bowel movements in his pants. In addition, the 

child's school guidance counselor, who was questioned about the 

child's veracity during the 5lB response, reported that he 

believes [Adam] to be a reliable reporter of information; he is 

very upfront about things he says and claims ownership. It was 

also notable that [Adam] was able to remember details of who was 

in the home and was not and under which circumstances he was 

sexually abused such as the house they lived in and the school 

he attended at the time the abuse took place."
10

The stepfather then appealed to the Superior Court, 

pursuant to G. L. c. 30A, § 14, "alleg[ing] that the 

Department's decision was arbitrary, capricious, [without] 

proper standing, not supported by substantial evidence and was

an abuse of discretion."4 The stepfather moved for judgment on 

the pleadings, and DCF filed a cross motion for judgment on the 

pleadings. The Superior Court judge denied the stepfather's 

motion and granted DCF's motion.

Discussion. 1. Substantial evidence. The stepfather has 

now appealed to this court. The primary question before us is 

whether at the time of the decision of the hearing officer, 

there was substantial evidence that there was reasonable cause 

to believe the allegations that the stepfather abused Adam. See 

Lindsay, 439 Mass. at 798 (when appellate court looks "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" caretaker abused or 

neglected child). We thus are not being asked whether the 

stepfather actually abused Adam, something on which we express 

no opinion. Rather, we must determine only whether there was 

substantial evidence before the hearing officer supporting the

4 Adam's mother did not join in the appeal to the Superior 

Court and is not involved in this appeal.
11

determination that there was "reasonable cause to believe" the 

stepfather sexually abused Adam.

a. The test described. The substantial evidence test is 

almost as low a bar as there is in terms of standards of review.

"In order to be supported by substantial evidence, an agency 

conclusion need not be based upon . . . even a preponderance of 

the evidence . . . ." Lisbon v. Contributory Retirement Appeal 

Bd., 41 Mass. App. Ct. 246, 257 (1996). The substantial 

evidence test "takes into account the entire record, both the 

evidence supporting the agency's conclusion and whatever in the 

record fairly detracts from the weight of that evidence." 

Covell, 439 Mass. at 783, citing New Boston Garden Corp. v. 

Assessors of Boston, 383 Mass. 456, 466 (1981). "Under the 

substantial evidence test, a reviewing court is not empowered to 

make a de novo determination of the facts, to make different 

credibility choices, or to draw different inferences from the 

facts found by the [agency]." Pyramid Co. of Hadley v. 

Architectural Barriers Bd., 403 Mass. 126, 130 (1988).

As to facts, where there is substantial evidence to support 

the findings of the agency, the court will not substitute its 

own view of the facts. The Supreme Judicial Court (SJC) has 

explained that

"[t]he substantial evidence 'standard of review is highly 

deferential to the agency on questions of fact and 

reasonable inferences drawn therefrom.'" Flint v. 
12

Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). 

We uphold an agency's finding of fact as long as it is 

supported 'upon consideration of the entire record' and a 

'reasoning mind [could have made the finding] by reference 

to the logic of experience' (quotations omitted). New 

Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 

466 (1981). See Tennessee Gas Pipeline Co. v. Assessors of 

Agawam, 428 Mass. 261, 265-266 (1998) ('reasonable basis in 

logic' sufficient to uphold agency finding). Factual 

findings are set aside 'if the evidence points to no felt 

or appreciable probability of the conclusion or points to 

an overwhelming probability of the contrary.' (quotation 

omitted). New Boston Garden Corp., supra."

Citrix Sys., Inc. v. Commissioner of Revenue, 484 Mass. 87, 95-

96 (2020).

Finally, as to credibility, under the substantial evidence 

test, "[i]n assessing the agency's decision, we show particular 

deference to credibility determinations and inferences drawn 

from the facts." Collamore v. Office of Campaign & Political 

Fin., 67 Mass. App. Ct. 315, 322 (2006).

The low standards chosen by the Legislature with respect to 

a DCF finding that a § 51A allegation is supported –- reasonable 

cause to believe, with review for substantial evidence –- make 

sense because the determination that an allegation of child 

abuse and neglect received under § 51A is "supported" is what 

allows DCF to begin to take steps to protect the child. See 

Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 

385, 390-394 (1999) (department may find report of suspected 

abuse or neglect under § 51A supported only where there is 

substantial evidence that there is reasonable cause to believe 
13

child was victim of abuse or neglect). This is a context to 

which the reasonable cause to believe and substantial-evidence 

tests are well suited. All too often, truthful allegations of 

child abuse are recanted. See Adoption of Xarissa, 99 Mass. 

App. Ct. 610, 616 (2021). Reports are often contradictory or 

inconsistent. And as we have said, the actual issue here is not

whether the allegations in this case are sufficient to find, 

even by a preponderance of the evidence, that the stepfather

abused Adam. The question is whether there is substantial 

evidence sufficient to support the conclusion that there was 

reasonable cause to believe the stepfather abused Adam, that is 

that the 51A reports were supported, the standard that is used 

routinely in all types of child abuse and neglect cases to allow 

DCF to open a case for services and to assign a social worker to 

the family.

Doubtless in some cases where there is substantial evidence 

that there is "reasonable cause to believe" there has been child 

abuse or neglect, it will ultimately be found that the alleged 

perpetrator did not commit the asserted abuse or neglect, or 

that it could not be proved sufficiently to meet the 

preponderance of the evidence, the clear and convincing

evidence, or the beyond a reasonable doubt standard.

But the low standard for a finding that a § 51A allegation 

is supported, and our deferential standard of review, reflect 
14

the fact that such findings are made after only an initial 

investigation and, among other things, are designed to determine 

when services must immediately be provided to a family. As the 

SJC has explained,

"'[R]easonable cause' . . . is used in §§ 51A and 51B . . .

as a threshold determination. . . . A threshold 

determination . . . necessarily anticipates that further 

proceedings regarding the particular situation will be 

held. . . . [I]t is inevitable that a threshold 

determination is more likely to be erroneous than an 

intermediate or final determination which utilizes a more 

rigorous review process."

Care & Protection of Robert, 408 Mass. 52, 64-65 (1990). The 

low standard, however, is warranted by the need to provide 

services or take other action immediately to protect the child.

b. The test applied. There is certainly substantial 

evidence in this case sufficient to support DCF's conclusion 

that there was reasonable cause to believe the stepfather in 

fact sexually abused Adam.

i. The stepfather argues that the hearsay evidence of 

Adam's allegations lacked indicia of reliability. "Hearings on 

appeals are not subject to any formal rules of evidence, and 

written materials from the department's files and records are 

admissible." Covell, 439 Mass. at 778. Evidence of abuse can 

be "substantial" even when the alleged victim's "statements were 

presented only through hearsay sources. . . ." Id. at 785-786. 

Indeed, although there was also nonhearsay evidence here, a 
15

finding of "[s]ubstantial evidence may be based on hearsay alone 

if that hearsay has 'indicia of reliability.'" Id. at 786.5

Even if it were not supplemented by nonhearsay evidence, 

the hearsay in this case has adequate indicia of reliability to 

provide substantial evidence supporting the finding that there 

was reasonable cause to believe the stepfather abused Adam. It 

is undisputed that on six separate occasions over a substantial 

period of time, first in 2010, then in 2019, Adam reported that 

his stepfather sexually abused him. After disclosing alleged 

abuse in 2019 at age thirteen, Adam was also able to provide 

corroborating details about an incident. As described above, at 

a SAIN interview, he described a rape in some detail, including 

specifics about the location and time of day at which the rape 

occurred, the fact that the stepfather removed his own clothes, 

but Adam remained clothed, the dialogue between himself and the 

stepfather leading up to Adam's taking the stepfather's penis in 

5 Given all the circumstances, including Adam's age at the 

time of the reports, the level of detail of the hearsay, the 

corroborative details, and the hearing officer's findings about 

reliability and the basis of the recantation, we conclude as the 

SJC did in Covell, 439 Mass. at 783-785, that Edward E. v. 

Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997)

(multilevel hearsay report of three year old child that lacked 

detail, though admissible, was not standing alone sufficiently 

reliable to amount to substantial evidence), is not applicable 

here. See Covell, supra at 783-784 (Edward E. inapplicable 

because accuser "was thirteen years old at the time, not a small 

child," and because, unlike in Edward E., the allegation did not 

"place" the "abuse in [an] implausible setting and 

circumstances").
16

his mouth, and his description of "just sucking on [the 

stepfather's penis] like a child would do to a lollipop." The 

hearing officer drew a reasonable inference that Adam's guidance 

counselor's statement that Adam is a reliable reporter supports 

a conclusion that Adam's reports of sexual abuse were reliable, 

an inference to which we owe deference, even though the guidance 

counselor's statement was made outside the context of sexual 

abuse. There was also at least some corroborating evidence in 

Adam's lack of bowel and urinary control, as described above. 

To be sure, to the extent that this is evidence of sexual abuse, 

it could be evidence of sexual abuse by someone else -- there 

was a supported allegation of sexual abuse in 2010 by an unknown 

perpetrator, see note 3, supra -- but this does not drain the 

evidence of all corroborative value.

As the stepfather asserts, Adam recanted the allegations, 

but, as quoted above, the hearing officer found that "the 

Appellants, notably mother, directly influenced [Adam] to recant 

the allegations, which occurred while the child was inpatient at 

a hospital for psychiatric reasons in March 2019. [Adam] has 

recanted the allegations of sexual abuse twice after having 

direct contact with his mother. Therefore, the Appellants' 

arguments were not persuasive." The stepfather argues that this 

finding of fact is clearly erroneous, stating, "Mother had a 

phone call with child on the day he recanted, however, there is 
17

no evidence in the record to suggest that mother influenced or 

coerced child to recant." It was, however, a reasonable 

inference for the hearing officer to draw and this finding of 

fact is not clearly erroneous.

The stepfather argues that the reports by Adam also were 

inconsistent and, for that reason as well, lack indicia of

reliability. Prior to recantation, in 2019, Adam, then thirteen 

years old, sometimes said he had been six years old and 

sometimes said he had been eight years old when the abuse 

occurred. But this is not a very serious inconsistency. See 

Commonwealth v. Melchionno, 29 Mass. App. Ct. 939, 939 (1990)

("As typically occurs in child abuse cases, the testimony of the 

child witnesses was often inconsistent and contradictory"). 

There were other inconsistencies -- like whether the stepfather 

was intoxicated, whether other individuals were involved, and 

whether the stepfather attempted to rape Adam another time --

but given the hearing officer's finding that the recantations 

were not credible, these inconsistencies did not render the 

hearsay so unreliable that it could not be relied upon. At 

least where, as here, Adam's hearsay evidence was found credible 

on the basis of its detail, the presence of corroborating 

evidence and the hearing officer's assessment of the live 

testimony of the stepfather and Adam's mother, "[u]nder the 

substantial evidence test, a reviewing court is not empowered 
18

. . . to make different credibility choices . . . ." Retirement 

Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass. 

App. Ct. 478, 480 (1992), quoting Pyramid Co., 403 Mass. at 130. 

Cf. Brockton v. Energy Facilities Siting Board (No. 1), 469 

Mass. 196, 213 (2014) (board "has broad discretion to weigh and 

assess the credibility of evidence, including hearsay 

evidence").

ii. The stepfather next argues that DCF failed to comply 

with its procedural policies, which substantially prejudiced 

him. The stepfather raises several arguments, which he failed

to raise in the fair hearing or the Superior Court, regarding 

DCF's handling of the February 51A report, including that DCF 

failed to interview Adam and the stepfather a second time about 

the February report. Because the stepfather failed to raise 

these arguments before the administrative agency, we treat these 

claims as waived. See Lincoln Pharmacy of Milford, Inc. v. 

Commissioner of the Div. of Unemployment Assistance, 74 Mass. 

App. Ct. 428, 436 (2009).6

6 The stepfather also argues that it was arbitrary and 

capricious for the hearing officer to "overturn[] the physical 

abuse decision," but affirm the sexual abuse decision. The 

stepfather suggests that the hearing officer's decision was

"incongruous[]" because both the physical abuse allegations and 

the sexual abuse allegations "lack[ed] witnesses and 

corroborating evidence." This claim fails because the hearing 

examiner provided a reasonable explanation, see Carver v. 

Commissioner of Correction, 491 Mass. 608, 619 (2023), for the 

treatment of the two issues, relying on Adam's bowel issues as 
19

iii. Finally, the stepfather argues that his name should 

not have been placed on the registry of alleged perpetrators 

(registry) of the DCF central registry. See 110 Code Mass. 

Regs. § 4.37 (2009). A name of an alleged perpetrator can be 

placed on the registry when an allegation against him is 

supported, the allegation is referred to the district attorney, 

110 Code Mass. Regs. § 4.37, "and the identification of the 

perpetrator is sufficiently clear that it meets the 'substantial 

evidence' test as to the identification itself," Covell, 439 

Mass. at 780.

There appears to be no record evidence that the 

stepfather's name has been placed on the registry. Assuming his 

name was in fact placed there, this is not an appeal from that 

placement, and neither the fact of such placement nor its 

propriety was raised below at the fair hearing, in the complaint 

for judicial review, or in the memorandum in support of his 

motion for judgment on the pleadings. Cf. Covell, 439 Mass. at 

767 (reviewing for substantial evidence determination that 

allegation was supported made in context of administrative 

appeal challenging placement on registry). We therefore decline 

corroborating evidence of the sexual abuse allegations and 

recognizing that it was "notable that [Adam] was able to 

remember details of who was in the home and was not and under 

which circumstances he was sexually abused such as the house 

they lived in and the school he attended at the time the abuse 

took place." 
20

to address it. We do note that under a DCF regulation an 

alleged perpetrator's name placed in the registry will remain on 

that list for seventy-five years. See 110 Code Mass. Regs.

§ 4.37. And, although "confidential," G. L. c. 119, § 51F, 

access to the registry information is not utterly restricted; it 

can be made available to anyone at the discretion of the 

Commissioner of DCF. See 110 Code Mass. Regs. § 4.38(4) (2009). 

Because of the liberty interests involved, placement on the 

registry may, therefore, be a matter of more than ordinary 

concern. Nonetheless, even were the stepfather's placement on 

the registry properly before us, he has raised no objection to 

the regulation providing for such placement, or to the low 

burden of proof and standard of review previously applied in 

cases involving such placement. We therefore express no opinion 

on those questions.

Conclusion. We conclude that the hearing officer's 

determination that DCF had reasonable cause to believe that the 

stepfather sexually abused Adam was supported by substantial 

evidence.7 The judgment is affirmed.

7 The stepfather argues that a motion he filed in Superior 

Court for leave to present additional evidence was improperly 

denied. See G. L. c. 30A, § 14 (6) (statute) ("If application 

is made to the court for leave to present additional evidence, 

and it is shown to the satisfaction of the court that the 

additional evidence is material to the issues in the case, and 

that there was good reason for failure to present it in the 

proceeding before the agency, the court may order that the 
21

So ordered.

additional evidence be taken before the agency upon such 

conditions as the court deems proper. The agency may modify its 

findings and decision by reason of such additional evidence and 

shall file with the reviewing court, to become part of the 

record, the additional evidence, together with any modified or 

new findings or decision"). As described by DCF in its brief, 

the stepfather sought to introduce the administrative record 

associated with a fair hearing decision stemming from two 51A 

reports that were filed "a year after the [reports filed in] the 

present case and involved a separate sibling with separate and 

distinct allegations and factual circumstances." DCF reviewed 

the evidence that the stepfather wished to introduce and opposed 

the motion, arguing that such evidence was not material to the 

issues in the case, as required by the statute. The Superior 

Court judge denied the motion "for the reasons stated in the 

Opposition." On appeal, the stepfather suggests that because 

DCF reviewed the evidence, DCF "assented to the first prong of 

the statute . . . bypass[ing] the court's discretion," and thus 

the additional evidence should have "become part of the record 

on review." But in responding to a motion to present additional 

evidence, an agency would need to review the proffered evidence 

to determine whether it should oppose the motion, on the basis, 

for example, that it was immaterial. The stepfather's reading 

of the statute -- that through such review an agency "waive[s] 

its opportunity to oppose the additional evidence" -- would 

prevent an agency from mounting even a meritorious opposition to 

a motion for leave to present additional evidence. This outcome 

would defeat the statute. The stepfather goes on to argue that 

even if the additional evidence "ha[d] no bearing on the instant 

case," there would be "no reason to oppose the inclusion of the 

[additional evidence]." But, again, this misreads the statute, 

which requires that the stepfather show "that the additional 

evidence is material to the issues in the case." G. L. c. 30A, 

§ 14 (6). We conclude that the denial of the stepfather's 

motion for leave to present additional evidence was not an abuse 

of discretion.
ENGLANDER, J. (concurring). As the majority states, this 

is an appeal from a decision by the Department of Children and 

Families (DCF or department) to "support" a report of abuse of a 

child, under 110 Code Mass. Regs. § 10.06(11) (2014), not an 

appeal by "[a]n individual who is listed on the Department's 

Registry of Alleged Perpetrators" (registry), as set forth in 

110 Code Mass. Regs. § 10.06(12) (2014). The distinction is 

important in my view. In the former appeal the question is 

whether there was sufficient evidence for the department to 

commence providing appropriate services to the child and the 

child's caretakers. See 110 Code Mass. Regs. § 4.32 (2), (5)

(2009). See also Adoption of Luc, 484 Mass. 139, 141 (2020). 

The bar for such a decision is, and should be, quite low. The 

due process clause may be implicated, but the imposition on 

liberty interests from the commencement of government services 

will generally be modest (although not necessarily 

insubstantial), and thus there need be few if any limitations on 

the types of evidence that can be considered in such a 

proceeding. I concur with the majority that, as an appeal under 

110 Code Mass. Regs. § 10.06(11), the decision of the hearing 

officer can be affirmed.

I write separately, however, because although it is true 

that on the record before us we do not know that the 

stepfather's name has been listed on the registry, I believe we 
2

can fairly assume that it has.1 And if the stepfather is listed 

on the registry, on this record he should not be. As this court 

has recognized previously, listing on the registry is an outcome 

"of more than ordinary gravity in that it places a permanent 

mark on a person." Edward E. v. Department of Social Servs., 42

Mass. App. Ct. 478, 487 (1997). Such a listing materially 

infringes on that person's liberty interests, and due process 

accordingly requires that "certain protections" be afforded. 

Commonwealth v. Durling, 407 Mass. 108, 112 (1990). One such 

protection is that the Commonwealth not rest its listing 

decision on unreliable hearsay evidence. See Edward E., supra

at 484-487. In my view the hearsay evidence relied upon by the

hearing officer here was not sufficiently reliable to justify a

1 In the ordinary case, the circumstances here would result 

in the stepfather's name being listed on the registry. The 

hearing officer found the allegations of sexual abuse supported, 

with a specific finding of the stepfather as the alleged 

perpetrator. It appears that DCF referred the allegations to 

the district attorney. In those circumstances, 110 Code Mass. 

Regs. § 4.37 (2009) states that the alleged perpetrator "shall" 

be added to the registry, where his name presumptively would 

remain for seventy-five years.

Here, however, the registry was not mentioned in the 

decision of the hearing officer, in the stepfather's G. L. 

c. 30A complaint, or in the stepfather's cross motion for 

judgment on the pleadings. As the issue of the propriety of the 

stepfather's registry listing (assuming he was listed) was not 

presented to the Superior Court, I cannot fault the majority for 

viewing this as an appeal challenging only the sufficiency of 

evidence to "support" the allegations. See Covell v. Department 

of Social Servs., 439 Mass. 766, 778-781 (2003) (describing and 

addressing distinction between the two types of appeals).
3

material imposition on liberty such as listing in the registry. 

Cf. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender 

Registry Bd., 428 Mass. 90, 100 (1998) ("Sex offenders have a 

constitutionally protected liberty and privacy interest in 

avoiding registration and public dissemination of registration 

information").

Because Adam did not testify at the hearing, the hearing 

officer based the conclusion of abuse on hearsay statements 

related by the DCF investigator and contained in the G. L. 

c. 119, § 51A and § 51B, reports and other documentary evidence. 

The question whether such hearsay is sufficiently reliable for 

due process purposes has been addressed by our courts in a 

variety of genres, including proceedings before the Sex Offender 

Registry Board and probation revocation hearings. See Durling, 

407 Mass. at 118-122; Doe, Sex Offender Registry Bd. No. 523391

v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89-90 (2019) 

(Doe No. 523391). These cases tell us to look for certain 

"indicia" of reliability, which include, among other things, 

whether the statements are consistent; whether they are 

otherwise corroborated; "the absence of any motive or reason for 

[the declarant] to make false allegations," Covell, 439 Mass. at 

786-787; and "whether the statements were made under 

circumstances that support their veracity," Commonwealth v. 

Hartfield, 474 Mass. 474, 484 (2016) (in context of probation 
4

revocation). "[O]ther inconsistent statements by [the] 

declarant may or may not detract from the reliability of the 

hearsay, depending on the circumstances of those statements." 

Doe No. 523391, supra at 90.

It is very difficult to square the record in this case with 

previous case law as to indicia of reliability. Adam's 

statements, made on a number of occasions over many years, 

cannot, in my view, reasonably be described as "consistent." 

While it is true that Adam accused the stepfather of oral rape 

several times over the years, Adam was not consistent about if, 

when, or how many times the abuse took place. In 2010, Adam

claimed he was sexually abused by the stepfather, but then 

recanted. Then, in January 2019 (at age thirteen), Adam claimed 

that the stepfather had raped him twice when he was eight years 

old, but changed this initial disclosure during the interview 

process, claiming that the abuse occurred once when he was about 

six.2 One month later, in February of 2019, Adam once again 

changed the narrative, this time claiming that the stepfather

had abused him only two months before, in December of 2018, even 

though Adam had not mentioned any December 2018 abuse when he 

2 While it is true, as the majority emphasizes, that Adam

supplied detail regarding this earlier assault during an 

interview in February of 2019, I note that Adam had supplied

none of this detail in his original disclosure made only one 

month before, in January of 2019. On this hearsay record, the 

belated provision of detail was itself an inconsistency.
5

spoke up in January of 2019. And the following month, in March 

of 2019, Adam recanted his allegations altogether, stating that 

he "lied about being sexually abused by his stepfather," and 

that "he felt pressured to make this accusation in response to 

behavioral problems and wanting to avoid responsibility."

I am mindful that child and even adult victims of sexual 

abuse may, for a variety of reasons, lack perfect consistency in 

their reporting, or even recant and thus contradict their 

allegations. Where the victim's allegations are thereafter 

presented through hearsay to an adjudicatory body, however, such 

material inconsistencies must be confronted for purposes of 

evaluating reliability. On the particular facts here, the 

material inconsistencies and contradictions indicate that the 

hearsay evidence lacked the "character of substantiality." 

Edward E., 42 Mass. App. Ct. at 487 (statements "persistently 

encumbered by unreliability" do not qualify as substantial 

evidence). Contrast Covell, 439 Mass. at 783 (noting victim's 

allegations were "specific, detailed, and consistent"). 

I have concerns as well about whether Adam's allegations 

were corroborated in any significant way (or at all), and about 

the hearing officer's treatment of certain of the hearsay 

evidence presented. For example, the hearing officer's reliance 

on the reported hearsay statements from Adam's guidance 

counselor was, in my view, improper. Those statements were 
6

murky at best, and cannot reasonably be understood as an 

endorsement of Adam's reliability as a historian. But I need 

not belabor the point. As the majority points out, this appeal 

presents only the issue of the sufficiency of the evidence for 

the department to initiate providing services to an alleged 

victim of sexual abuse. The standard for whether the department 

may do so is indeed a very low bar -- a lower bar, in my view, 

than what is required to place an individual on the registry of 

alleged perpetrators, although the case law has not yet drawn 

such a distinction.3 I have no quarrel with the conclusion that 

the very low standard was met here, despite my concerns over the 

reliability of the hearsay presented, because the liberty 

interest at stake is less substantial. See Doe, Sex Offender 

Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 

297, 309 (2015) ("deprivation of more extensive private 

interests requires greater procedural protections"). See also 

Durling, 407 Mass. at 113. For those reasons, I concur.

3 As the majority states, the case law sets the standard as 

requiring substantial evidence that there was "reasonable cause 

to believe" that the alleged abuse had occurred. Lindsay v. 

Department of Social Servs., 439 Mass. 789, 793 (2003), quoting 

G. L. c. 119, § 51A. That standard has been applied to both 

types of appeals identified in 110 Code Mass. Regs. § 10.06(11) 

and (12). I note, however, that the application of the standard 

could differ, since the evidence that can be permissibly relied 

upon in the two types of appeals may differ -- that is, due 

process prevents the use of unreliable hearsay evidence in 

decisions to place an individual on the registry list.