Frank v. Department of Children and Families
A teacher could not have been on notice that his cheek-pinching and nick name-calling behavior towards his student could amount to child abuse within the meaning of C.G.S. §46b-120(3) as interpreted by the Department of Children and Families' regulations and, under the facts, C.G.S. §46b-120(3) was unconstitutionally vague as applied to the teacher's conduct. Nicholas Frank taught elementary school in New Haven. K was Frank's student for his fifth and sixth grade years. During K's sixth grade year, K's mother spoke with school principal Laura Russo about a traumatic familial event K experienced. K's mother told Russo that K had become sensitive to Frank's use of nicknames including being called "cheeks" and to Frank pinching K's cheeks. Russo advised Frank to stop. No further behaviors were reported. But, K's mother later accused Frank of lowering K's grade in retaliation for her complaints. She demanded Frank's removal and filed a police report. The police questioned Frank and Russo and declined to investigate further. DCF denied three referrals. Following the school system's investigation and hearing, Frank was suspended without pay for eight days for exercising "poor judgment." The New Haven Register reported on the situation. The next day, DCF began an investigation. The investigator substantiated a finding of emotional abuse and recommended Frank's placement on the central registry of child abusers. A hearing officer upheld the substantiation and ordered Frank's name placed on the registry. On appeal, the trial court affirmed the decision. Frank appealed claiming, relevantly, that C.G.S. §46b-120 was unconstitutionally vague as applied to his conduct. The Appellate Court agreed and reversed the judgment. Under the 2006 Connecticut Supreme Court analysis in State v. Scruggs, the hearing officer was required to determine whether Frank's behavior would have constituted emotional abuse as to any child, not just to a particularly sensitive child when Frank had no prior knowledge of the child's sensitivity. Under the circumstances, Frank could not have had notice that his behavior would have adversely affected K to the extent that his actions would qualify as emotional abuse. DCF did not prove that Frank's classroom behavior would amount to emotional abuse of any child. The school system determined that Frank did not emotionally abuse K. This determination demonstrated that Frank's behavior did not pose such an obvious risk that it would be within the knowledge of an ordinary person.