The opinion
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SJC-11864
GREGORY T. MAGAZU & another1 vs. DEPARTMENT OF CHILDREN AND
FAMILIES.
Worcester. September 10, 2015. - January 4, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Department of Children & Families. Adoption, Foster parents.
Constitutional Law, Freedom of religion. Religion.
Administrative Law, Substantial evidence.
Civil action commenced in the Superior Court Department on
July 25, 2013.
The case was heard by Brian A. Davis, J., on a motion for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
David P. Bodanza (Amanda M. Mastalerz with him) for the
plaintiffs.
Annapurna Balakrishna, Assistant Attorney General, for the
defendant.
1
Melanie A. Magazu.
2
SPINA, J. Gregory T. Magazu and his wife, Melanie, appeal
from a judgment of the Superior Court that dismissed their
appeal from a final decision of the Department of Children and
Families (department) denying their application to become foster
and preadoptive parents because of their use of corporal
punishment as a form of discipline in their home. The Magazus
argue that the department's decision is inconsistent with its
regulations, is arbitrary and capricious, and is not supported
by substantial evidence where they were willing to agree not to
use corporal punishment on a foster child. They also contend
that, because physical discipline is an integral aspect of their
Christian faith, the department's decision impermissibly
infringes on their constitutional right to the free exercise of
religion. We transferred the case to this court on our own
motion. For the reasons that follow, we conclude that the
department's decision to deny the Magazus' application is based
on a reasonable interpretation of its enabling legislation and
related regulations, is not arbitrary or capricious, and is
supported by substantial evidence. We also conclude that
although the department's decision imposes a substantial burden
on the Magazus' sincerely held religious beliefs, this burden is
outweighed by the department's compelling interest in protecting
the physical and emotional well-being of foster children.
Accordingly, we affirm the judgment of the Superior Court.
3
1. Statutory and regulatory framework. We begin with an
overview of the relevant statutory and regulatory provisions
that govern the foster care proceedings in this case. The
Legislature has vested the department with the authority to
provide substitute care for children when "the family itself or
the resources available to the family are unable to provide the
necessary care and protection to insure the rights of any child
to sound health and normal physical, mental, spiritual and moral
development." G. L. c. 119, § 1. See Blixt v. Blixt, 437 Mass.
649, 663 (2002), cert. denied, 537 U.S. 1189 (2003) (State has
compelling interest in keeping children safe from physical or
emotional trauma that may scar them well into adulthood). In
providing such care, "[t]he health and safety of the child shall
be of paramount concern and shall include the long-term well-
being of the child." G. L. c. 119, § 1. The department shall
define the "best interests of the child" as including, among
other considerations, "the effectiveness, suitability and
adequacy of . . . placement decisions." Id.
In accordance with its authority, the department has
promulgated regulations concerning eligibility requirements and
standards of licensure for a foster or preadoptive parent. See
110 Code Mass. Regs. §§ 7.100, 7.104 (2009). See also G. L.
c. 119, § 37 ("The department shall make rules and regulations
concerning the administration of its duties"). The department
4
is required to evaluate an applicant's home and all members of
the household. See 102 Code Mass. Regs. § 5.10(5) (1998). The
assessment shall be completed by a social worker who has met
specified qualifications, see 102 Code Mass. Regs. §§ 5.05(2),
5.10(11)-(12) (1998), and must document, among other things,
"parenting ability, including child rearing and discipline."
102 Code Mass. Regs. § 5.10(5)(d)(6). An applicant must
demonstrate, to the satisfaction of the department, numerous
attributes, including "the ability: (a) to assure that a child
placed in his or her care will experience a safe, supportive,
nurturing and stable family environment which is free from abuse
or neglect; . . . (d) to promote the physical, mental, and
emotional well-being of a child placed in his or her care . . .
; and (q) to assume and carry out all other responsibilities of
a foster/pre-adoptive parent as detailed in the standard written
agreement between the [d]epartment and foster/pre-adoptive
parents." 110 Code Mass. Regs. § 7.104(1).
Within ten working days after the completion of its
comprehensive assessment, the department shall decide whether to
license the applicant, see 110 Code Mass. Regs. § 7.107(5)
(2009), and within ten working days thereafter shall provide
written notice of its decision to the applicant. See id. at
§ 7.107(6). In those cases where the department decides not to
license the applicant, the written notice must include the
5
reasons for such decision, as well as information about the
applicant's right to appeal the determination. See id. at
§ 7.107(6)(b). The regulations provide that once an applicant
has been licensed as a foster parent and has completed the
requisite parent training, the department and the foster parent
shall enter into a written agreement that will govern the foster
care arrangement. See 102 Code Mass. Regs. § 5.10(7)(a); 110
Code Mass. Regs. § 7.111 (2009). The agreement "shall be
renewed annually, and shall include at least the following
terms: . . . (3) a prohibition against the use of any form of
corporal punishment by foster/pre-adoptive parents upon any
foster child(ren)." 110 Code Mass. Regs. § 7.111(3). The
department shall reimburse foster parents for each child placed
in their home at rates that the department has established for
the provision of foster care. See 110 Code Mass. Regs.
§ 7.130(1) (2008).
2. Factual and procedural background. The Magazus are a
married couple whose lives are guided by their deeply held
Christian beliefs. They have two young daughters. In
September, 2012, the Magazus filed an application with the
department for a "family resource license" that would enable
them to become foster and preadoptive parents.2 During the
2
It was the Magazus' intention to eventually adopt one or
more of the foster children placed in their care. Consequently,
6
application process, they completed the "Massachusetts Approach
to Partnership in Parenting" training program and the "Family
Resource License Study" (license study), as required by the
department's regulations. See 110 Code Mass. Regs. § 7.107(1),
(2) (2009). As part of the license study, the department asked
the Magazus about their personal histories as well as their
parenting experiences and attitudes, including methods of
discipline. In response to the department's questions, the
Magazus stated that they "have used physical discipline on their
daughters," and that such discipline is "appropriate when there
is a continuous pattern of disobedience." More specifically,
they explained that their parenting style includes "spanking on
the buttocks, using Greg or Melanie's hand, in the privacy of
their bed room so that [the children] are not humiliated in
front of others."
The Magazus "feel [that physical discipline] is a small
part of their parenting style, and only used when necessary."
They acknowledged their understanding of the department's policy
against corporal punishment, and expressed a willingness to
refrain from using physical discipline on a foster child placed
in their home. Because they discipline their own two daughters
from the beginning of the application process, the department
assessed the Magazus as a permanent placement. For ease of
reference, we refer to the status of the Magazus during these
proceedings simply as foster parents.
7
in private, the Magazus are of the view that a foster child
would not actually witness any corporal punishment. Throughout
the application process, the Magazus were forthcoming, honest,
and cooperative in answering the department's inquiries, and
they thought that they had been portrayed accurately and fairly
in the license study.
By decision dated February 7, 2013, the department notified
the Magazus that their application had been denied because of
their use of corporal punishment, and their expressed belief
that such punishment "is an appropriate and effective means of
discipline for [their] children." The department determined
that the Magazus had not met specific licensing standards,
including the ability to sign the department's standard written
agreement prohibiting the use of any form of corporal punishment
on a foster child. See 110 Code Mass. Regs. §§ 7.104(1)(q),
7.111(3). Therefore, the department concluded that it was
unable to license the Magazus as an unrestricted foster or
adoptive family.
The Magazus made a timely request for a so-called "fair
hearing" pursuant to 110 Code Mass. Regs. § 10.06(4)(a) (2008).
An evidentiary hearing was held on May 8, 2013, at which the
Maguzus testified, as did three witnesses on behalf of the
department. On June 24, 2013, a hearing officer affirmed the
8
decision of the department not to approve the Magazus'
application to become foster parents.
The hearing officer concluded that the Magazus had failed
to show by a preponderance of the evidence that the decision did
not conform with the department's regulations and policies, or
that it was unreasonable. She found that the department
expressly prohibits the use of corporal punishment on foster
children, see 110 Code Mass. Regs. § 7.111(3), and that the
department's "clinical practice" prohibits exposing foster
children to the use of corporal punishment on other children in
a household. The hearing officer highlighted the Magazus'
inability "to recognize that the employment of physical
punishment [on] any child in their home could lead to serious
emotional consequences for the [d]epartment[']s children." She
pointed out that children placed by the department have been
exposed to an array of neglect and abuse, and their awareness of
acts of corporal punishment in their foster homes "could well
trigger the very trauma the placement was intended to mitigate."
The hearing officer stated that the department could not simply
place with the Magazus a child who had not been physically
abused because foster children often do not disclose the full
extent of their experiences until after being placed in
substitute care. Moreover, she continued, the Magazus'
willingness to refrain from using corporal punishment on a
9
foster child did not alleviate the department's concerns
regarding the discipline of such child postadoption, when the
child would no longer be under the purview of the department.
The hearing officer found that the Magazus are "people of deep
faith," but she stated that there was no evidence to support
their assertion that the denial of their application was due to
their Christian beliefs. Recognizing that the Magazus have "a
sincere desire to offer permanency to children in need," the
hearing officer said that, even though the Magazus could not
provide foster care for children placed by the department, they
were free to pursue adoption through another agency that might
be more compatible with their values.
The Magazus appealed the department's decision by filing a
complaint for judicial review in the Superior Court pursuant to
G. L. c. 30A, § 14. They alleged that their substantial rights
had been prejudiced because the department's decision violated
constitutional provisions (§ 14 [7] [a]), exceeded the
department's authority (§ 14 [7] [b]), was based on errors of
law (§ 14 [7] [c]), was not supported by substantial evidence
(§ 14 [7] [e]), and was arbitrary or capricious (§ 14 [7] [g]).
The Magazus also alleged that the department had violated their
right to the free exercise of religion under the Federal and
State Constitutions. The department filed the administrative
record as its answer. Thereafter, the Magazus filed a motion
10
for judgment on the pleadings pursuant to Mass. R. Civ. P. 12
(c), 365 Mass. 754 (1974), and Standing Order 1-96(4) of the
Superior Court, Mass. Ann. Laws Court Rules, at 1138-1139
(LexisNexis 2015-2016).
Following a hearing, a judge denied the Magazus' motion for
judgment on the pleadings and dismissed their complaint. The
judge first concluded that the Magazus' substantial rights had
not been prejudiced by the department's decision, and,
therefore, they were not entitled to relief under G. L. c. 30A,
§ 14 (7) (b), (c), (e), or (g). He stated that the
administrative record in this case contained substantial
evidence to support the department's rational belief that
children who already have been traumatized by abuse should not
be subjected to corporal punishment in their foster or adoptive
homes, either directly or indirectly, for fear that the
experience will revive or exacerbate their trauma. Further, the
judge continued, the administrative record contained substantial
evidence to show that the department's decision to deny the
Magazus' application did not result from its desire to meddle in
the Magazus' parenting of their own two daughters. Rather, the
decision reflected the department's genuine concern that a
foster child placed in the Magazus' care "likely would be
subjected to potentially traumatic episodes of corporal
punishment, if only from a distance, and that any child the
11
[Magazus] ultimately might adopt likely would be subjected to
potentially traumatic episodes of corporal punishment in a very
direct way." Having determined that a substantial evidentiary
basis existed for the department's concerns, the judge stated
that the department had acted in a reasonable manner according
to its statutory and regulatory authority in denying the
Magazus' application to become foster parents.
The judge next concluded that the Magazus were not entitled
to relief under G. L. c. 30A, § 14 (7) (a), for the purported
violation of their constitutional right to the free exercise of
religion. Relying on Wisconsin v. Yoder, 406 U.S. 205 (1972),
and Attorney Gen. v. Desilets, 418 Mass. 316 (1994), the judge
stated that the department's decision did not impose a
"substantial burden" on the Magazus' ability to exercise their
sincerely held religious beliefs. In the judge's view, the
department's decision did not prevent the Magazus from
disciplining their own two daughters in accordance with their
Christian values, or otherwise coerce the Magazus into acting in
violation of those values. Rather, the judge continued, such
decision merely precluded the Magazus -- for wholly secular
reasons -- from subjecting any child in the department's care to
the Magazus' religiously based disciplinary practices. The
12
judge determined that this result did not violate the Magazus'
constitutional rights.3 The present appeal ensued.
3. Standard of review. Judicial review of a decision by
the department is governed by G. L. c. 30A, § 14, and is
"confined to the record," except in limited circumstances not
present here. Id. at § 14 (5). See 110 Code Mass. Regs.
§ 10.30 (2008) (decision by hearing officer is final decision of
department and is subject to appeal under G. L. c. 30A). A
reviewing court will not disturb the department's decision
unless it determines that "the substantial rights of any party
may have been prejudiced" because the decision was (a) in
violation of constitutional provisions; (b) in excess of the
department's authority or jurisdiction; (c) based on an error of
law; (d) made on unlawful procedure; (e) unsupported by
substantial evidence; (f) unwarranted by the facts; or (g)
arbitrary or capricious, an abuse of discretion, or otherwise
not in accordance with law. G. L. c. 30A, § 14 (7). See Doe,
Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry
3
Because the judge concluded that the Magazus had not
satisfied their initial burden of demonstrating that the
department's denial of their application imposed a "substantial
burden" on their right to freely exercise their religious
beliefs, the judge did not consider whether the department's
prohibition on subjecting foster children to corporal punishment
"pursues an unusually important governmental goal," and whether
granting the Magazus an exemption from such prohibition "would
substantially hinder the fulfillment of [that] goal." Attorney
Gen. v. Desilets, 418 Mass. 316, 323 (1994), quoting L.H. Tribe,
American Constitutional Law § 14-12, at 1242 (2d ed. 1988).
13
Bd., 470 Mass. 102, 108-109 (2014). "The court shall give due
weight to the experience, technical competence, and specialized
knowledge of the [department], as well as to the discretionary
authority conferred upon it." G. L. c. 30A, § 14 (7). See
Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651, 657
(2006), and cases cited. "We ordinarily accord an agency's
interpretation of its own regulation[s] considerable deference."
Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222,
228 (2010), quoting Warcewicz v. Department of Envtl.
Protection, 410 Mass. 548, 550 (1991). See J.M. Hollister, LLC
v. Architectural Access Bd., 469 Mass. 49, 55 (2014). Such
deference, however, is not unlimited, and a reviewing court will
overrule an agency's interpretation of its governing statutes
and regulations where such interpretation is "not rational."
Ten Local Citizen Group, supra. See J.M. Hollister, LLC, supra.
4. Right to relief under G. L. c. 30A, § 14 (7) (b), (c),
(e), or (g). The Magazus contend that the department's
regulations do not preclude foster parent applicants from using
appropriate corporal punishment on their own children, or
disqualify such applicants from licensure. Rather, they
continue, the regulations only prohibit the use of corporal
punishment on a foster child. The Magazus assert that, in
accordance with 110 Code Mass. Regs. § 7.111(3), they were
willing to sign and comply with the department's standard
14
written agreement that sets forth such prohibition. In their
view, the department's concern that a foster child could be
traumatized by living in a home where the foster parents' own
children are physically disciplined is unwarranted where, as in
this case, such corporal punishment would occur outside the
sight and hearing of the foster child. Moreover, the Magazus
argue that by effectively prohibiting the use of any physical
discipline in a foster home, the department has improperly
grafted a new requirement onto its regulations. The Magazus
claim that, because the department's decision does not conform
with its own regulations and is arbitrary and capricious, they
have suffered substantial prejudice. Further, they continue,
the department's decision is not based on substantial evidence
where, in their view, they have satisfied all of the necessary
requirements for licensure as foster parents. We disagree with
the Magazus' contentions.4
4
Pursuant to 110 Code Mass. Regs. § 7.107(6) (2009), the
written notice not to license an applicant as a foster parent
shall include "the reason(s) for the decision." The Magazus
point out that the only two regulations specifically cited in
the written notice were 110 Code Mass. Regs. §§ 7.104(1)(q) and
7.111(3) (2009), which require a foster parent to sign the
department's standard written agreement prohibiting the use of
corporal punishment on a foster child. That being the case, the
Magazus seem to suggest that these are the only regulations on
which the department's decision was based. Contrary to their
suggestion, we read the entirety of the language in the written
notice as more broadly informing the Magazus that the basis for
the denial of their application was the department's concern
about their use of corporal punishment, not merely their related
15
The Magazus have the burden of showing, by a preponderance
of the evidence, that the department's decision "was not in
conformity with [its] policies and/or regulations and resulted
in substantial prejudice to the [Magazus]." 110 Code Mass.
Regs. § 10.23(a) (2008). The Legislature has vested the
department with the authority to arrange substitute care for
children whose own families are unable to protect their best
interests.5 See G. L. c. 119, § 1. Consonant with its enabling
legislation, the department has determined that an applicant for
licensure as a foster parent must demonstrate, among other
qualities, the ability "to promote the physical, mental, and
emotional well-being of a child placed in his or her care." 110
Code Mass. Regs. § 7.104(1)(d). The department's unwritten
policy of not placing a foster child in a home where the parents
use corporal punishment on their own children falls under the
umbrella of this regulation.
inability to sign the written agreement. Indeed, the notice
states that the licensing standards not met by the Magazus
"include" their inability to satisfy 110 Code Mass. Regs.
§§ 7.104(1)(q) and 7.111(3). The fact that the written notice
did not specifically cite additional regulations pertaining to
the department's responsibility to protect the safety and well-
being of children placed in its care, see, e.g., 110 Code Mass.
Regs. § 7.104(1)(d) (2009), is not significant where the reasons
for the department's decision are readily apparent from the
notice.
5
We note that foster parents are "temporary contract
service providers with a defined set of rights and
responsibilities that clearly differs from those of a child's
parents." Kerins v. Lima, 425 Mass. 108, 112 n.6 (1997).
16
At the fair hearing, Jamie Caron, the regional clinical
director for the department, testified that corporal punishment
is not appropriate for children in need of substitute care
through the department, and that individuals who use this form
of discipline in their homes have not been approved as foster
parents. She and Patricia Savelli, the adoption licensing and
development supervisor for the department, both explained that
the department's explicit prohibition against the use of
corporal punishment on foster children, see 110 Code Mass. Regs.
§ 7.111(3), arises from the fact that these children typically
have a history of neglect or abuse.6 Caron acknowledged that the
department does not have a written policy stating that parents
who use physical discipline on their own children will not be
approved as foster parents. Nonetheless, she pointed out that
the department has an obligation to evaluate the "family
dynamics" of a household, including whether foster children are
treated in the same manner as biological and adopted children,
6
The resource materials provided to the Magazus as part of
the "Massachusetts Approach to Partnership in Parenting"
training program state, in relevant part, that "[f]or
children/youths who have been abused, spanking or smacking can
be terribly damaging. Sometimes, of course, a child/youth's
foster parents will not know for certain that a child/youth has
been physically or sexually abused until the child/youth's
behavior in the foster home so indicates. Therefore, using
alternatives to physical punishment has two important benefits.
First, it minimizes the risk of additional injury to a
child/youth. Second, it helps break the intergenerational cycle
of physical abuse."
17
both at the time of the foster care placement and into the
future, given that the department's mission is to find permanent
homes for foster children. Caron emphasized that the
department's assessment is of "an overall family, family
functioning, and how a child will fit into [a particular] home."
She stated that "the use of corporal punishment for some
children and not for others, can have a significant bearing on
the family, those respective children's sense of belonging and
their place within their family." Further, she continued, "any
significant discrepancies in the practices with respect to
parenting kids can lead to some struggles or some issues that
[the department] think[s] are not optimal for all the kids
involved." Caron expressed the department's belief that, where
a foster child has been placed with "an open, expressive and
communicative family," the foster child will be aware of and
affected by the use of corporal punishment on other children in
the home. According to Savelli, a foster child exposed to this
form of discipline could reexperience feelings of trauma based
on the child's history.7 Caron stated that because the
7
Pursuant to G. L. c. 30A, § 11 (5), pertaining to the
conduct of adjudicatory proceedings before administrative
agencies, such "[a]gencies may utilize their experience,
technical competence, and specialized knowledge in the
evaluation of the evidence presented to them." Fair hearing
officers who are employed by the department "shall have, at a
minimum, two years of direct service experience as well as legal
training and/or experience." 110 Code Mass. Regs. § 10.03
18
department could not always be certain about the precise nature
and scope of a foster child's prior trauma, it was neither
realistic nor feasible for the department to attempt to place
with the Magazus only a foster child who had not been the victim
of physical or sexual abuse.
In the department's opinion, what made this case unique was
the fact that, notwithstanding their awareness of the
department's policy against corporal punishment, the Magazus had
made it clear during their assessment that physical discipline
is an important, albeit infrequently used, aspect of their
parenting style. That being the case, Caron testified that the
department reasonably assumed and was concerned that if a foster
child was placed with and subsequently adopted by the Magazus,
the child eventually would be subjected to corporal punishment
just like the Magazus' own daughters. The Magazus' willingness
to sign the department's standard written agreement, stating
(2008). Consistent with the "great deference" we afford to the
department's expertise and experience, Lindsay v. Department of
Social Servs., 439 Mass. 789, 799 (2003), we conclude that the
department was not required to present expert testimony
regarding the harm that a foster child could experience as a
consequence of being exposed to corporal punishment, either
directly or indirectly, in a foster home. The hearing officer,
based on her background and specialized knowledge, would have
understood the nature and scope of such harm. See Alsabti v.
Board of Registration in Med., 404 Mass. 547, 549 (1989),
quoting New Boston Garden Corp. v. Assessors of Boston, 383
Mass. 456, 466 (1981) (agency's decision will be upheld if it
"could have been made by reference to the logic of experience"
[emphasis in original]).
19
that they would not use corporal punishment on a foster child,
did not alleviate the department's concerns about the use of
physical discipline in the home and the use of such discipline
on a foster child after adoption. In light of the Magazus'
values and practices concerning discipline, which were not
compatible with the department's expectations, Caron stated that
the Magazus were not a "suitable match" for the department.8
Although 110 Code Mass. Regs. § 7.111(3) explicitly forbids
the use of corporal punishment on a foster child, we agree with
the Magazus that the department's policy and practice of not
placing a foster child in a home where parents administer
physical discipline to their own children is not similarly
articulated in express terms. Nonetheless, we conclude that
such a policy falls squarely within the parameters of the
department's enabling legislation and companion regulations, and
8
We note that in the context of criminal proceedings
charging a father with assault and battery for spanking his
minor child, we recently held that "a parent or guardian may not
be subjected to criminal liability for the use of force against
a minor child under the care and supervision of the parent or
guardian, provided that (1) the force used against the minor
child is reasonable; (2) the force is reasonably related to the
purpose of safeguarding or promoting the welfare of the minor,
including the prevention or punishment of the minor's
misconduct; and (3) the force used neither causes, nor creates a
substantial risk of causing, physical harm (beyond fleeting pain
or minor, transient marks), gross degradation, or severe mental
distress." Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015).
This holding was based, in part, on an awareness that "a
privilege to use reasonable force in disciplining a minor child
has long been recognized at common law." Id. at 8.
20
is rationally related to the department's objectives in the
placement of foster children. See generally Anusavice v. Board
of Registration in Dentistry, 451 Mass. 786, 795 (2008) (where
board's policy "is not contrary to the language of its enabling
statute, and is rationally related to furthering the board's
purpose to safeguard the public health and welfare, it will be
upheld"); Arthurs v. Board of Registration in Med., 383 Mass.
299, 312-313 (1981) ("It is a recognized principle of
administrative law that an agency may adopt policies through
adjudication as well as through rulemaking"). As such, the
department's decision to deny the Magazus' application to become
foster parents did not exceed the department's authority, is not
arbitrary or capricious, and is supported by substantial
evidence. Accordingly, the Magazus are not entitled to relief
under G. L. c. 30A, § 14 (7) (b), (c), (e), or (g).
5. Right to relief under G. L. c. 30A, § 14 (7) (a), for
violation of constitutional provisions. The Magazus assert
that, in accordance with their sincerely held Christian beliefs,
they use appropriate corporal punishment on their own two
daughters as a matter of loving parenting and biblical
understanding. They contend that the department's denial of
their application to become foster parents substantially burdens
their right to the free exercise of religion under art. 46, § 1,
of the Amendments to the Massachusetts Constitution, amending
21
art. 18 of the Amendments, and that the department has failed to
demonstrate a sufficiently compelling State interest to justify
this burden. Therefore, the Magazus continue, because the
department's decision impermissibly infringes on their
constitutional right, their application to become foster parents
should be allowed. We disagree.
Article 46, § 1, of the Amendments provides, "No law shall
be passed prohibiting the free exercise of religion," and
parallels the First Amendment to the United States Constitution,
which states, "Congress shall make no law . . . prohibiting the
free exercise [of religion] . . . ."9 See Commonwealth v.
Nissenbaum, 404 Mass. 575, 578 & n.3 (1989). Notwithstanding
the similarity between these two constitutional provisions, "the
scope of protection afforded the right to freely exercise one's
religion under the Massachusetts Constitution is greater than
that afforded by the United States Constitution." Rasheed v.
Commissioner of Correction, 446 Mass. 463, 467 (2006). We
9
The right to freely exercise one's religion also is
embodied in art. 2 of the Massachusetts Declaration of Rights,
which ensures that no person "shall be hurt, molested, or
restrained, in his person, liberty, or estate, for worshipping
GOD in the manner and season most agreeable to the dictates of
his own conscience; or for his religious profession or
sentiments; provided he doth not disturb the public peace, or
obstruct others in their religious worship." See Rasheed v.
Commissioner of Correction, 446 Mass. 463, 466 (2006). In the
present appeal, the Magazus' free exercise claim focuses on the
purported violation of art. 46, § 1, of the Amendments to the
Massachusetts Constitution, amending art. 18 of the Amendments.
22
assess a claim that the Commonwealth has impermissibly burdened
the free exercise of religion in violation of art. 46, § 1, of
the Amendments by using the balancing test articulated in
Desilets, 418 Mass. at 321-323.10 See Rasheed, supra; Society of
Jesus of New England v. Commonwealth, 441 Mass. 662, 669-670
(2004).
This balancing test requires that we determine whether the
State action about which a party has complained (here, a
10
In Desilets, 418 Mass. at 321, this court stated that it
"should reach its own conclusions on the scope of the
protections of art. 46, § 1, [of the Amendments] and should not
necessarily follow the reasoning adopted by the Supreme Court of
the United States under the First Amendment." This
pronouncement arose as a consequence of the Supreme Court's
decision in Employment Div., Dep't of Human Resources of Or. v.
Smith, 494 U.S. 872 (1990), "a much criticized opinion that
weakened First Amendment protections for religious conduct."
Desilets, supra. See Abdul-Alázim v. Superintendent, Mass.
Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 453-
454 & n.8 (2002). Prior to Smith, the Supreme Court had
employed a balancing test to analyze free exercise claims under
the First Amendment, requiring a State to identify a compelling
interest that would outweigh the burden on the free exercise of
religion. See Wisconsin v. Yoder, 406 U.S. 205, 214-215 (1972);
Sherbert v. Verner, 374 U.S. 398, 403-409 (1963). See also
Society of Jesus of New England v. Commonwealth, 441 Mass. 662,
669 n.7 (2004). In Smith, supra at 878, the Supreme Court
rejected this approach, holding that if the burden on free
exercise is "merely the incidental effect of a generally
applicable and otherwise valid provision, the First Amendment
has not been offended." See Society of Jesus of New England,
supra. We subsequently stated in Desilets, supra at 321-322,
that when interpreting art. 46, § 1, of the Amendments,
Massachusetts courts would adhere to the standards of First
Amendment jurisprudence that predated Smith, and would continue
to use the compelling State interest balancing test for claims
alleging an impermissible burden on the free exercise of
religion.
23
prohibition on the use of corporal punishment in a foster home)
"substantially burdens [the] free exercise of religion, and, if
it does, whether the Commonwealth has shown that it has an
interest sufficiently compelling to justify that burden."
Desilets, 418 Mass. at 322. See Alberts v. Devine, 395 Mass.
59, 73-74, cert. denied sub nom. Carroll v. Alberts, 474 U.S.
1013 (1985); Attorney Gen. v. Bailey, 386 Mass. 367, 375, cert.
denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). See
also Yoder, 406 U.S. at 215 ("only those interests of the
highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion"); Sherbert
v. Verner, 374 U.S. 398, 403-409 (1963). More specifically, the
party claiming an unconstitutional burden on the free exercise
of religion "must show (1) a sincerely held religious belief,
which (2) conflicts with, and thus is burdened by, the [S]tate
requirement. Once the claimant has made that showing, the
burden shifts to the [S]tate. The [S]tate can prevail only by
demonstrating both that (3) the requirement pursues an unusually
important governmental goal, and that (4) an exemption would
substantially hinder the fulfillment of the goal" (footnotes
omitted). Desilets, supra at 322-323, quoting L.H. Tribe,
American Constitutional Law § 14-12, at 1242 (2d ed. 1988). See
Rasheed, 446 Mass. at 467, 472. "[T]he State's assertion of a
compelling interest, and the balancing of that interest against
24
the burden imposed on the exercise of religion, is considered in
a concrete, pragmatic, and fact-specific way." Society of Jesus
of New England, 441 Mass. at 671.
As an initial matter, the Magazus suggest that the
department, through its regulations and policies, has
impermissibly infringed on the Magazus' religious beliefs, not
their conduct. We disagree with this characterization of the
department's purported constitutional infringement. The free
exercise of religion "embraces two separate concepts, 'freedom
to believe and freedom to act.'" Bailey, 386 Mass. at 375,
quoting Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). See
note 9, supra. "Religious beliefs -- what a person thinks, what
faith he holds in his heart and mind -- are indeed protected
absolutely" from governmental interference. Society of Jesus of
New England, 441 Mass. at 676. See Sherbert, 374 U.S. at 402
("The door of the Free Exercise Clause stands tightly closed
against any governmental regulation of religious beliefs as
such" [emphasis in original]); Murphy v. I.S.K.Con. of New
England, Inc., 409 Mass. 842, 851, cert. denied, 502 U.S. 865
(1991). "Conduct in furtherance of those beliefs, however, is
the 'exercise' of religion, and government infringements on
religiously inspired conduct are permissible if they satisfy the
compelling State interest balancing test." Society of Jesus of
New England, supra. See Yoder, 406 U.S. at 220 ("activities of
25
individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare");
Alberts, 395 Mass. at 73 (freedom to act on religious beliefs
subject to regulation for societal protection). Contrary to the
Magazus' suggestion, this case is not about their freedom to
believe particular religious tenets, including those pertaining
to the raising and disciplining of children. Rather, these
proceedings are about specific conduct -- corporal punishment --
that is and would continue to be used in the Magazus' home even
if they became foster parents. To the extent that the
department may have infringed on the Magazus' constitutional
rights, such infringement is on their freedom to act, not on
their freedom to believe. We turn now to consideration of the
balancing test articulated in Desilets.
The department has not challenged the Magazus' contention
that their use of corporal punishment is based on their
sincerely held religious beliefs. Therefore, in order to
succeed on their claim, the Magazus must establish that the
department's prohibition against the use of corporal punishment
in a foster home constitutes a "substantial burden" on their
exercise of those beliefs. Curtis v. School Comm. of Falmouth,
420 Mass. 749, 761 (1995), cert. denied, 516 U.S. 1067 (1996),
quoting Hernandez v. Commissioner of Internal Revenue, 490 U.S.
26
680, 699 (1989). See Rasheed, 446 Mass. at 472; Desilets, 418
Mass. at 322. "[A] 'substantial burden' is one that is coercive
or compulsory in nature." Curtis, supra. "[I]ncidental effects
of government programs, which may make it more difficult to
practice certain religions but which have no tendency to coerce
individuals into acting contrary to their religious beliefs, [do
not] require government to bring forward a compelling
justification for its otherwise lawful actions." Id. at 762,
quoting Lyng v. Northwest Indian Cemetery Protective Ass'n, 485
U.S. 439, 450-451 (1988).
Here, because the department's prohibition against the use
of corporal punishment in a foster home is inherently
incompatible with the Magazus' religious beliefs, the Magazus
are compelled to make a choice. On the one hand, they can
adhere to the teachings of their religion and use corporal
punishment as a form of discipline in their home, thereby
forfeiting the opportunity to become foster parents. On the
other hand, they can abandon this particular religious tenet in
the hope of being approved as foster parents. We conclude that,
by conditioning the Magazus' opportunity to become foster
parents on their willingness to forsake a sincerely held
religious belief, the department has substantially burdened the
Magazus' constitutional right under art. 46, § 1, of the
Amendments to the free exercise of religion. See, e.g.,
27
Rasheed, 446 Mass. at 474 (prohibiting prison inmate from
acquiring Islamic festival meats that inmate believed he must
consume to comply with faith constituted substantial burden on
free exercise of religion). That being the case, we proceed to
consider whether the department has demonstrated a sufficiently
compelling interest to justify this burden. See Desilets, 418
Mass. at 322, and cases cited.
"It cannot be disputed that the State has a compelling
interest to protect children from actual or potential harm."
Blixt, 437 Mass. at 656. This is especially true with respect
to foster children whose need for safety, security, and
stability is readily apparent. See generally Petition of the
Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383
Mass. 573, 587-588 (1981), quoting Richards v. Forrest, 278
Mass. 547, 553 (1932) ("The State as parens patriae may act to
protect minor children from serious physical or emotional
harm. . . . In such matters 'the first and paramount duty of
courts is to consult the welfare of the child. To that
governing principle every other public and private consideration
must yield'"). Consistent with this compelling State interest,
the department has determined that a foster child should not be
placed in a home where corporal punishment is used as a
disciplinary measure. Creating an exception to this policy for
individuals like the Magazus who employ physical discipline in
28
conformity with their religious beliefs would severely undermine
the department's substantial interest in protecting the physical
and emotional well-being of children whose welfare has been
entrusted to the department's care. Moreover, expecting the
department to place with the Magazus children who have not
suffered neglect or abuse is neither realistic nor feasible
given the type of children served by the department and the
potential dearth of information concerning the precise nature
and scope of their prior trauma. Based on the department's
compelling interest in protecting the welfare of foster
children, we conclude that its prohibition against the use of
corporal punishment in a foster home outweighs the burden on the
Magazus' right to employ physical discipline in accordance with
their religious beliefs. Accordingly, the Magazus are not
entitled to relief under G. L. c. 30A, § 14 (7) (a).
6. Conclusion. The judgment of the Superior Court
dismissing the Magazus' appeal from the final decision of the
department is affirmed.
So ordered.
CORDY, J. (concurring, with whom Botsford and Duffly, JJ.,
join). I concur in the court's conclusion that the Department
of Children and Families (department) has a compelling interest
in protecting the physical and emotional well-being of foster
children, and that it could reasonably interpret its enabling
legislation to deny an application to become foster and
preadoptive parents because of the applicants' use of physical
discipline as a form of disciplining their own children. I
write separately to question the uniformity of the department's
application of its standards for assessing the suitability of
foster parents and their licensing across the department's
western region, and the consistency of the rigor it applied to
the plaintiffs' application compared to the applications of
others who posed significant risks to the compelling interests
the department is charged with protecting.1
I begin with several propositions that I expect would be
beyond dispute. First, the department's filings for custody
have been significantly increasing, some would say "soaring,"
1
In its 2015 annual report, the Office of the Child
Advocate reported that on the basis of its reviews of G. L.
c. 119, § 51A, neglect and abuse reports filed with,
investigated, and supported by the Department of Children and
Families (department) in the prior year, its staff had found
"concerning trends" within foster homes and regarding the
selection of certain foster homes. Of the § 51A reports it
reviewed, more than sixty per cent involved children in foster
homes. See Office of the Child Advocate, Annual Report: Fiscal
Year 2015, at 9-10.
2
over the last several years.2 Second, the department is in dire
need of qualified foster parents and homes to care for this
burgeoning population of children who have been removed from the
custody of their parents because of severe abuse and neglect.
Third, the challenges facing foster parents can be as daunting
as their role is important, and the department must provide them
both an appropriate level of oversight and support to ensure the
successful transition of the children in their care.
Turning to the plaintiffs and their interest in providing a
safe, caring, and nurturing environment to this particularly
vulnerable population, it is apparent from the record that in
every respect (but for one) they were ideal foster and
preadoptive candidates. They had a very stable home
environment, a nurturing supportive relationship with their own
two children, and an excellent record of employment and
community involvement. The department's file reveals that it
conducted an indepth and thorough inquiry into and review of the
plaintiffs' personal and family experiences and upbringing, as
well as their home life. The plaintiffs cooperated fully and
candidly in detailing their experiences, their reasons for
2
In June, 2014, the Boston Globe reported that from December
2013, through May, 2014, the department had filed 2,000 court
petitions to gain custody of children it determined to be at
risk of abuse or neglect, a fifty-two per cent increase from the
previous year. It further reported that in May, 2014, the
department filed 265 petitions, a seventy per cent jump from
May, 2013. See P. Schworm, State Filings for Custody of
Children Soaring, Boston Globe, June 20, 2014, at A.1.
3
wanting to serve as foster parents, and the relationship with
their two children.
In the end, the only flaw latched onto by the department
was the plaintiffs' explanation that their deeply held Christian
religious beliefs included the use of physical discipline
(albeit sparingly applied) in the upbringing of their children.
This honest revelation led to further intense inquiry as to
whether such punishment would be used on children placed into
their care by the department, which would be contrary to its
explicit regulation against the use of such discipline on foster
children. The plaintiffs advised the department that they fully
understood this limitation and would comply with the regulation
and the required written contract provisions that would govern
their relationship.
The department conceded that there was no reason for the
department to doubt the sincerity of the plaintiffs, but wanted
additional assurances (beyond what was required in its
regulations and its contract) that the plaintiffs would not
physically discipline their own children during periods when
they had foster children in their care. The plaintiffs could
not agree to this condition because of their religious views,
but advised that they did not physically discipline either of
their children in the presence of the other and would not do so
in the presence of the foster children in their care. This
4
apparently was not good enough, and the department found that
the plaintiffs did not meet the department's licensing standards
because they physically disciplined their own children.
While the department's position might, when balanced
against all of the positives the plaintiffs possessed, seem
overly rigid and cautious in the extreme, the department's
responsibility to children already exposed to abuse or neglect
is very substantial. That heightened responsibility could
justify the department's declining a family setting in which
such a child might feel insecure or unsafe or traumatized if
they become aware that physical discipline was being meted out
to other children.
One is left to wonder, however, whether the real problem in
this case was not so much the department's concern for child
safety, but rather a disagreement with the plaintiff's beliefs
regarding the upbringing of their children. While we have no
other licensing investigation files in the record before us, it
is hard to ignore the highly public tragedies of the last two
years regarding children under the supervision of the department
in foster homes, and not to question whether the high standards
and intensive assessment and scrutiny applied to the plaintiffs
is the exception rather than the norm, particularly in the
western region.
5
Fuel for this concern comes most recently in an official
investigative report of the death and near death of two foster
children placed in the foster home of a woman, also located in
the western region.3 The death and injury were due to severe
neglect. The investigative report of the case is revealing in
many respects, but most particularly in its description of the
licensing investigation, and its inadequacies, that led to the
licensure of the woman as a foster parent shortly after the
plaintiffs' application was denied. According to the report,
the applicant was an unmarried woman with medical issues, who
was supported by Supplemental Security Income disability
payments, and who had two children who no longer had contact
with their father, as well as an adopted third child. At least
one of these children also had serious medical issues, and
during the licensing investigation the doctor for the woman's
children advised that she was already overwhelmed by managing
her own children's medical needs. In addition, G. L. c. 119,
§ 51A, reports of abuse and neglect had been filed against her;4
3
See generally, "Case Review: The Foster Home of Kimberly
Malpass, September 30, 2015," prepared by the Executive Office
of Health and Human Services, Department of Children and
Families.
4
One of these reports, filed in June of 2012 (before she
was licensed), alleged neglect of her three children and that
one or more of her children had been beaten with a belt by her
boy friend. After the woman was licensed, and six months prior
to the death of one of the foster children placed in her care,
the department received another report that the woman's boy
6
the school attended by one of her children reported that the
child was chronically absent, and was out of control; and it was
known that there was a family history of neglect. Further, the
licensing investigation did not include a routine check with the
local police, which would have revealed that the police had been
called at least twenty-five times in response to problems at her
home. Regardless, the woman was licensed by the department, and
at the time of the tragedy, she had three children assigned to
her care by the department (in addition to her other three
children).5
Whether the department's process and standards resulting in
the licensing of this foster mother is the norm or the
exception, we do not know. Hopefully, it is the exception and,
whatever the licensing standard actually is, it will be
uniformly applied.
friend had been living in the home (unreported), was a drug
user, was a "disciplinarian in the home and [had] hit [one of
the foster children] in the head . . . when [the foster child]
was not listening." Although it was apparent that she likely
was not truthful in the subsequent "investigation," at least
with respect to her relationship with her boy friend and their
living arrangements, no action was taken except that it was
"emphasized" to her that "all frequent visitors needed to be
approved by [the department]."
5
Foster parents receive a daily financial stipend from the
department for each child in their care, plus allowances for
clothing, birthdays, and holidays.