| Date: | 12/26/2025 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | DPPC-24-0118 |
The Petitioner appeals a decision by the Disabled Persons Protection Commission (“DPPC”) that she be placed on a registry of abusers. The DPPC has not met its burden of proving by a preponderance of the evidence that the Petitioner committed “registrable abuse” for purposes of M.G.L. c. 19C, § 15. The DPPC may not place her on the registry of abusers.
The Petitioner appeals a determination by the DPPC that she should be placed on the DPPC Abuser Registry.
I held a hearing on May 9, 2025 via the WebEx conferencing platform. I admitted Exhibits A-R into evidence. In addition to the Petitioner, the following witnesses testified:
I had neglected to record the first half of the hearing, so the testimony of KC and CA was not recorded. The testimony of KF and the Petitioner was recorded. I invited the parties to furnish proposed findings of fact in any post-hearing submissions.
On June 24 and 25, the parties filed post-hearing submissions, at which point the record was closed.
The DPPC’s post-hearing submission includes a detailed recitation of facts. The Petitioner’s submission, for the most part, did not attempt to recapitulate the evidence. For KC’s and CA’s testimony, I rely on the DPPC’s post-hearing brief and my own notes, which were consistent with one another.
FINDINGS OF FACT
Based on the evidence presented by the parties, along with reasonable inferences drawn therefrom, I make the following findings of fact:
KC: Hi [Petitioner] I’m out right now and can’t really talk, what’s the matter?
Petitioner: Ok sorry about that it’s [WD] kept seeing it stold her stuff in her room she told [CO] don’t tell me i was so upset about that that’s why I called you.
KC: I don’t understand, [WD] thinks someone stole something?
Petitioner: I was so mad i never go to her room never without her because i knew she said that about [another residential counselor] before, so now it’s my turn.
KC: Just pay her no mind I will talk to her on Monday, I’m sorry,
Petitioner: Thank you [KC] she needs [the text exchange reproduced in the record is cut off at that point]
(Exhibit D).
CONCLUSION AND ORDER
The DPPC has determined that the Petitioner has committed abuse and abuse per seand that her name should be placed on “a registry of care providers against whom [DPPC] has made a substantiated finding of registrable abuse.” M.G.L. c. 19C, § 15(b). The DPPC bears the burden in this appeal to “establish[] registrable abuse by the care provider, based on a preponderance of the evidence.” M.G.L. c. 19C, § 15(c).
“Registrable abuse” is defined as
an act or omission of a care provider that results in serious physical or emotional injury or constitutes abuse per se of a person with an intellectual or developmental disability; provided, however, that “registrable abuse” shall not include instances in which the commission, upon weighing the conduct of the care provider and its outcome, determines that the incident was isolated and unlikely to reoccur and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities.
M.G.L. c. 19C, § 15(a).
The parties do not dispute that WD is a “person with an intellectual or developmental disability” and that the Petitioner was a “care provider” within the meaning of the statute. Accordingly, this appeal turns on whether the Petitioner caused WD a “serious physical or emotional injury” or engaged in “abuse per se.”
A “serious physical injury” is defined as an “[i]mpairment of the physical condition of a Person with a Disability.” 118 CMR 2.02. A “serious emotional injury” is “injury to the intellectual functioning or emotional state” of a person with a disability. “Abuse per se” includes “the intentional, wanton or reckless application of a physical force in a manner that inflicts physical pain or Serious Emotional Injury.” 118 CMR 2.02.
The DPPC contends that the Petitioner inflicted a serious physical and emotional injury on WD and engaged in abuse per se by shaking WD and repeatedly punching her, causing her to suffer a bruised eye. The DPPC’s theory is that the Petitioner became so enraged by WD’s accusation that the Petitioner was using her bodywash on other residents that she punched and shook her. Before addressing the evidence upon which the DPPC relies, I first make some general observations about DPPC’s theory of the case.
Although the DPPC was not required to proffer a motive for the Petitioner’s alleged actions, evidence of a motive – or the lack of same – is relevant to the question of whether the Petitioner engaged in the conduct alleged. Cf. Commonwealth v. Brea, 488 Mass. 150, 165 (2021) (observing that motive is not an element of crime of homicide, but the presence or absence of motive may be relevant to determinations regarding issues such as identity of perpetrator and intent).
The conduct alleged was extreme and shocking. If it occurred, it did not represent a poor spur-of-the-moment response to aggressive or surprising behavior. It would have instead been a violent reprisal for a perhaps irritating, but essentially inconsequential, rumor. Why would the Petitioner, trained to deal with a variety of difficult behaviors and with ten years of experience, risk her career and betray the trust placed in her by violently attacking a developmentally disabled women in her care on such slight provocation?
The DPPC’s theory is that the Petitioner attacked WD because she was very angry about the rumor WD spread – that anger being displayed in her conversation with CA and her text exchange with KC. This is a dubious explanation.
It is true that the Petitioner was quite angry about WD’s accusation, but based on the testimony and my observations of the Petitioner’s demeanor during the hearing, it appears that she forms strong opinions about various subjects, voices those opinions in an emphatic and vehement fashion, and may get angry. Accordingly, although one might view the anger the Petitioner displayed as disproportionate to the situation, it does not necessarily appear out of proportion to her baseline reactions to behavior she considers unreasonable or objectionable. The fact that the Petitioner was angered by WD’s accusation and made her displeasure known does not mean that she was angry enough to lay hands on a resident in her care.
Moreover, I do not consider it probable that the Petitioner would have asked CO to accompany her to WD’s room and then violently attack WD in full view of CO, who also happened to be WD’s best friend. It is not impossible that the Petitioner was so transported by anger that she disregarded CO’s presence, but, as indicated above, I do not find that hypothesis probable.
In addition, if the Petitioner had, in fact, attacked WD, it is not likely that she would have contacted her supervisor after the fact and volunteered that she was “so upset” and “so mad” about WD’s accusation. And, even if she did, she would have likely sought to minimize what had occurred or attempted to justify it. Instead, the Petitioner appears to have been focused not on her encounter with WD, but on responding to the substance of WD’s bodywash allegation itself: she insisted that she never goes to WD’s room without WD because she wishes to avoid such allegations by WD.
None of the foregoing observations, individually or collectively, are dispositive. They must be considered alongside, and in the light of, the evidence supporting DPPC’s position, to which I now turn.
The DPPC’s principal supporting evidence is: (1) the statements of WD and CO; (2) the testimony of CA; (3) the implausibility of the Petitioner’s explanations for why WD, CO, and CA made their statements; and (4) the Petitioner’s admission to sufficient facts in her criminal case. I discuss each of these in turn.
I begin with WD. At the hearing, KC and CA described WD as a reliable reporter.[7] I do not give this characterization much evidentiary weight in this case in view of the statements in WD’s ISP that she might “embellish stories or fill in parts of it with untruths,” that she may “confuse pieces of different stories or activities,” and that she “may also get upset when directly challenged on a statement she had made to others.”
In any case, people who are otherwise reliable reporters sometimes say things that are inaccurate, incomplete, or untrue. And it is difficult to assess the accuracy of WD’s account because she did not testify and the record does not indicate that WD was pressed on her statements.[8]
The DPPC argues that WD’s consistency in her accounts of her encounter with the Petitioner is a sign of her reliability. WD does not appear to have been entirely consistent in her reports, however, since she initially said that she did not know how she got the black eye and that she just “woke up that way.” But even the consistency in the narratives she provided about her encounter with the Petitioner in her room is not suggestive of reliability. WD’s version of events is not complicated and, as I noted above, there is no indication it was subject to any testing.
Turning to CO, I assign little weight to CO’s statements corroborating WD’s account. I appreciate KF’s forthrightness in acknowledging that CO had been deemed unreliable in the past. My assessment of her credibility relies just as much, however, on the lack of reliability displayed in this case: CO falsely or mistakenly told KC that the Petitioner punched her (CO) as well. That is a significant detail. The fact that she either lied or was confused about such a basic and important detail undermines the overall credibility of her account.
I turn next to CA’s testimony that the Petitioner was angry about WD’s accusation and admitted shaking her. I credit her statement that WD was angry. I do not credit her testimony that the Petitioner admitted shaking WD.
It is notable that CA did not report to KC (or anyone else) that the Petitioner had confessed to engaging in that sort of abusive behavior. I am unpersuaded by CA’s explanation that the reason she did not report anything is that she had not witnessed what had happened and WD had no visible injuries on December 9. She did not need to have witnessed the shaking – by her account, an agitated Petitioner confessed to it. Nor is it of any consequence that there were no visible physical injuries – according to CA, when she checked in on WD, she had found her visibly upset and hiding under the covers and noticed that her “left arm was shaking uncontrollably, more than normal.” And she says that, later that evening, she noticed that WD was not acting like her normal self. CA’s explanation is unconvincing.
In fact, even CA’s report of WD’s condition on December 9 is doubtful. None of the other residential counselors noted in the shift reports or, apparently, in their interviews with KF, anything unusual about WD’s condition on December 9 or 10 - except for WD’s black eye. Indeed, CA’s shift report not only fails to note any concerns about WD’s state or condition, it has a decidedly positive tone, observing that WD “ate all of her dinner!” (Exhibit H (exclamation mark in original)).
Moreover, CA’s report that the Petitioner had said that she told WD to go to her room is inconsistent with all of the other testimony that when the Petitioner had her encounter with WD, WD was already in her room.
I find that CA is not a reliable reporter on this issue.
The DPPC points out that when KF interviewed the Petitioner, she could not provide an explanation as to why CA, CO, and WD would lie about what they had seen and heard and that in her petition, she seems to make the implausible suggestion that the accusations against her were somehow the product of animosity towards her by KC. While I agree with the DPPC that any theory that the accusations against the Petitioner were orchestrated by KC is far-fetched and unsupported, the fact that the Petitioner cannot proffer convincing explanations for the conduct and motivations of third parties is immaterial.
It is not surprising that a pro se party facing untrue allegations of serious misconduct might proffer explanations for the allegations (e.g., long-simmering tensions with a supervisor boiling over in false accusations) that may be grounded in preexisting interpersonal conflicts, but are implausible to neutral, unconnected observers.
And the fact remains that the DPPC is the party that bears the burden of proof here. Although the relative implausibility of alternative scenarios may sometimes assist a party in meeting its burden of proof, in some cases the record may be simply insufficient for the fact-finder to determine what happened by the evidence’s preponderance. The evidence-bearing party does not necessarily win merely because other explanations for the relevant events also fall short.[9]
An admission to sufficient facts is admissible “as an admission of a party opponent.” Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 613 (2000). It is not, however, necessarily “conclusive as to the facts admitted.” Id. (citations omitted). The Supreme Judicial Court has observed that “[f]actors other than consciousness of guilt – including expedience or avoidance of publicity – may motivate a defendant to admit to sufficient facts in exchange for a continuance and eventual dismissal.” Wardell v. Director of Div. of Employment Sec., 397 Mass. 433, 437 (1986).
Here, I have found that the Petitioner entered into an admission to sufficient facts because of the financial strain, as well as the stress and anxiety associated with the criminal proceedings. Without wishing to minimize the solemnity that should attach to the entry of a plea, I assign the Petitioner’s admission to sufficient facts little evidentiary weight in this case.
This decision has so far focused on the evidence presented by the DPPC. I turn briefly to the Petitioner’s testimony. The Petitioner denied the accusations against her flatly and without the sort of equivocations that sometimes accompany denials. For example, there was no discernable attempt to deny a physical confrontation while also implying that if there had been a physical confrontation it might not have been quite as blameworthy or inexcusable as one might think. Although I do not accept a theory that staff and residents conspired against her and do not necessarily agree with her assessments of people and events, I am persuaded that she truthfully testified about facts and circumstances as she understood them.
For all of the foregoing reasons, the DPPC has not proved by a preponderance of the evidence that the Petitioner engaged in registrable abuse. The DPPC may not place her on the registry of abusive care providers.
Division of Administrative Law Appeals
/s/ Timothy M. Pomarole
___________________________________________
Timothy M. Pomarole, Esq.
Administrative Magistrate
Dated: December 18, 2025
