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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.
