2018 COA 2
Colo. Ct. App.2018Background
- Larimer County DHS confirmed that Steven Romero sexually abused two grandchildren (K.P., age 3, and A.R.), listing him in the statewide child-abuse registry (Trails); Romero appealed under Colorado’s APA.
- At pre-hearing deposition Romero invoked his Fifth Amendment right to remain silent for nearly all questions; deposition transcript was part of the administrative record.
- An ALJ heard testimony (medical personnel, therapist, psychologist, mother, grandmother); the ALJ found the evidentiary facts but concluded DHS had not proven abuse by a preponderance and did not reference an adverse inference.
- The Department (final agency) accepted the ALJ’s evidentiary findings but reversed the ALJ’s ultimate conclusions, applying an adverse inference from Romero’s invocation of the Fifth Amendment and finding the evidence (including corroborating facts) sufficient to confirm abuse.
- The district court reversed the Department, holding the Department improperly applied an adverse inference without an adequate explanation and remanded to the ALJ; the Court of Appeals reversed the district court.
Issues
| Issue | Plaintiff's Argument (Romero) | Defendant's Argument (DHS/Department) | Held |
|---|---|---|---|
| Whether an agency’s decision to apply an adverse inference from Fifth Amendment invocation is an ultimate conclusion of fact under the APA | Romero: The ALJ was the proper factfinder; adverse-inference weight is for the ALJ and the Department lacked a non-generic explanation | Department: Applying the adverse inference and assigning its weight are ultimate conclusions of fact that the agency must make and may substitute for the ALJ | Held: Yes — applying and weighing the adverse inference is an ultimate conclusion of fact the agency must make; Department may substitute its judgment for the ALJ on that issue |
| Whether the Department permissibly applied an adverse inference here | Romero: There was insufficient probative evidence; applying the inference effectively punished invocation and tipped an evidentiary tie | Department: Deposition showed incriminating questions and invocation; other probative corroborating evidence existed so inference was permissible and not dispositive alone | Held: Department permissibly applied the adverse inference in context with other probative evidence; its decision was not arbitrary or capricious |
| Whether the Department’s confirmations were supported by substantial evidence | Romero: Facts relied upon were speculative and insufficient to meet preponderance | Department: Agency expertise and the record (medical observations, forensic interviews, therapy notes/drawings, corroboration) supplied substantial evidence | Held: The Department’s confirmations were supported by substantial evidence and were not speculative |
| Whether the district court erred in remanding to the ALJ | Romero: N/A (plaintiff sought reversal) | Department: District court misapplied APA; it improperly prevented agency from making ultimate conclusions of fact | Held: District court erred; remand to ALJ was improper because the agency must make the ultimate determinations |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (criminal law: no adverse inference from silence at criminal trial)
- Baxter v. Palmigiano, 425 U.S. 308 (Fifth Amendment does not bar adverse inferences in civil or disciplinary proceedings)
- Lefkowitz v. Cunningham, 431 U.S. 801 (test against imposing penalties solely for asserting the privilege)
- Lawley v. Dep’t of Higher Educ., 36 P.3d 1239 (Colo. 2001) (agency may substitute judgment for ALJ on ultimate conclusions of fact)
- State Bd. of Med. Exam’rs v. McCroskey, 880 P.2d 1188 (Colo. 1994) (distinguishing evidentiary facts from ultimate conclusions of fact)
- Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo. App. 1984) (adverse inference may be drawn in civil proceedings and from discovery refusals)
- Asplin v. Mueller, 687 P.2d 1329 (Colo. App. 1984) (defines adverse-inference rule in civil context)
- Commodity Futures Trading Comm’n v. Collins, 997 F.2d 1230 (7th Cir. 1993) (administrative agencies may draw adverse inferences from invocation of Fifth Amendment)