## Facts

- John D. was the stepfather of a 15-year-old girl.
- The girl reported that John D. regularly walked nude in the home and entered the bathroom while she was bathing to talk to her.
- She reported that he asked to examine her genitals and asked to see her hymen, and requested she not tell her mother.
- She also reported that he asked if she knew how to perform oral sex and offered to help her “practice kissing.”
- The girl disclosed these events to her mother, who reported them to the Department of Social Services (DSS).
- DSS investigated, substantiated sexual abuse/sexual misconduct, and referred the matter to the district attorney, who placed John D. on a list of sexual perpetrators.
- John D. sought administrative review; a DSS hearing officer found a pattern of sexually themed conversations and behavior directed at the child and upheld the substantiation and registry consequences.
- The Superior Court affirmed the administrative decision, and John D. appealed.

## Issues

1. Whether repeated sexually intrusive verbal and contextual conduct toward a minor, without physical touching, can constitute “sexual abuse” or “sexual misconduct” for DSS substantiation and registry purposes.
2. Whether the hearing officer’s determination was supported by substantial evidence and was consistent with the governing statutes and DSS regulations.

## Decision

- The Massachusetts Appeals Court affirmed the judgment upholding DSS’s substantiation.
- The court accepted that “sexual conduct” for child-protection purposes is not limited to physical contact and may include verbal conduct and sexually intrusive behavior.
- The court concluded that the hearing officer permissibly treated the reported conduct as a pattern of inappropriate sexual conduct posing a risk of harm to the child.
- Applying substantial-evidence review and deference to the agency’s reasonable interpretation of its regulations, the court found no basis to overturn the agency’s findings.

## Legal Principles

- In child-protection administrative proceedings, sexual abuse/sexual misconduct may be found based on persistent sexually charged verbal and contextual conduct directed at a child; physical touching is not required.
- The relevant inquiry includes whether the conduct creates a substantial risk of harm to the child’s health or welfare, including psychological and developmental harm.
- On judicial review of DSS substantiation decisions, courts defer to reasonable agency interpretations of their regulations and uphold findings supported by substantial evidence.
- A pattern of conduct and the surrounding context may justify an administrative substantiation even if the conduct might not satisfy elements required for criminal liability.

## Conclusion

The Appeals Court held that DSS could substantiate child sexual abuse based on a repeated pattern of sexually intrusive conversations and behavior toward a minor, even absent physical contact, and it upheld the substantiation and related registry consequences under substantial-evidence review and deference to the agency’s reasonable regulatory interpretation.


John D. v. Dep't of Soc. Servs., 51 Mass. App. Ct. 125, 744 N.E.2d 659 (2001)