ARKANSAS DEPARTMENT OF HUMAN SERVICES CRIMES AGAINST CHILDREN DIVISION v. STEVEN D. MITCHELL
No. CV-19-62
SUPREME COURT OF ARKANSAS
October 21, 2021
2021 Ark. 187
APPEAL FROM THE IZARD COUNTY CIRCUIT COURT [NO. 33CV-18-77] HONORABLE MAUREEN HARROD, JUDGE ADMINISTRATIVE LAW JUDGE DECISION AFFIRMED; CIRCUIT COURT ORDER REVERSED; COURT OF APPEALS OPINION VACATED.
COURTNEY RAE HUDSON, Associate Justice
Aрpellant, the Arkansas Department of Human Services (DHS), appeals the Izard County Circuit Court‘s order reversing the DHS administrative law judge‘s (ALJ‘s) determination that allegations of child maltreatment made against appellee, Steven Mitchell, were true and that Mitchell should be listed on the Arkansas Child Maltreatment Central Registry. For reversal, DHS argues that (1) the ALJ‘s decision was supported by substantial evidence, (2) DHS did not violate Mitchell‘s due process rights, and (3) Mitchell did not suffer prejudice under applicable Arkansas law. We granted Mitchell‘s petition for review after the court of appeals reversed the circuit court‘s order and affirmed the ALJ‘s order. We affirm the ALJ‘s decision and reverse the circuit court‘s order.
Mitchell was employed at Melbourne High School as an agricultural teacher from 1999 to 2004. On June 4, 2004, the Arkansas State Police Crimes Against Children Division (CACD)
The investigative file includes a summary of a statement that B.T. gave to Cooper. According to the summary, the interview was recorded but the tape stopped about halfway through the interview. The summary indicates that B.T. initially denied any inappropriate activity but later in the interview admitted that Mitchell had exposed himself to him and other boys and that B.T. had exposed himself to Mitchell. B.T. reportedly alleged that Mitchell grabbed his penis, and made him grab Mitchell‘s erect penis, so that they could “jerk each other off.” The investigative file alsо contains summaries of statements made by other students, but, in violation of DHS policy, DHS failed to retain audio recordings of the statements. The file contained no documentation that Mitchell was charged with a crime, but it was noted that he had been arrested and charged “with a number of sexual offenses.”
Ultimately, DHS entered multiple true findings of abuse involving different children. With respect to B.T., the investigation concluded on June 18, 2004. DHS concluded that Mitchell had sexually abused B.T. through indecent exposure and sexual contact. The investigator cited Mitchell‘s refusal to give a statement, the criminal charges, and the statements obtained from the students as the bases for closing the investigation with a determination that the allegations of sexual abuse were true. The final DHS report to the prosecuting attorney noted that, on the advice of his attorney, Mitchell refused to give a statement. In violation of
About thirteen years after the DHS true findings, Mitchell requested a sex-offender-rating reassessment. During that reassessment, DHS generated and sent Mitchell the notice of the true finding relating to B.T. Although the true finding was entered on June 18, 2004, the notice document that Mitchell received was dated December 27, 2017. According to the notice, Mitchell had thirty days to request an administrative hearing; otherwise, his name would be placed on the maltreatment registry. Mitchell requested a hearing.
The administrative hearing was held on April 18, 2018. It concerned all the true findings and not just those regarding B.T. Before the hearing, Mitchell filed a motion to exclude the witness-statement summaries. Mitchell also objected to the use of his guilty plea and moved for declaratory judgment. In the filings, Mitchell argued that there was no basis for the true findings and that the interview summaries must be excluded. He also alleged due process violations. According to Mitchell, due process requires that he have the opportunity to be heard at a meaningful time and in a meaningful manner. He claimed that because the meaningful time was fourteen years earlier,
At the administrative hearing, DHS‘s case in support of the true findings included Mitchell‘s testimony and documentary evidence. The documents included B.T.‘s interview summary, summaries of other interviews, Mitchell‘s criminal judgment and disposition order, and his sex-offender-screening assessment. Mitchell introduced evidence that DHS procedures had not been followed. This included the failure to maintain audio recordings of the interviews and the use of inappropriate interviewing techniques. After the hearing, the ALJ concluded that the CACD incorrectly made a finding of indecent exposure. However, the ALJ determined that the CACD made a correct finding that Mitchell sexually abused B.T. by sexual contact, that the child-maltreatment allegations were true, and that Mitchell‘s name should be placed on the child-maltreatment registry. Mitchell moved for reconsideration and argued that the ALJ improperly considered his guilty plea and that
We granted Mitchell‘s petition for review. We consider the appeal as though it was originally filed in this court. Calhoun v. Area Agency on Aging of Se. Ark., 2021 Ark. 56, 618 S.W.3d 137. Our review on appeal is directed toward the decision of the administrative agency rather than the decision of the circuit court. Hurd v. Ark. Oil & Gas Comm‘n, 2020 Ark. 210, 601 S.W.3d 100. As with all appeals from administrative decisions under the Administrative Procedure Act, either the circuit court or the appellate court may reverse the agency decision if it concludes that thе substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency‘s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Ethics Comm‘n v. Weaver, 2021 Ark. 38, 617 S.W.3d 680;
At the time of the DHS investigation in 2004, the Arkansas Child Maltreatment Act defined sexual abuse to include sexual contact by a caretaker to a person younger than eighteen years old.
In 2005, when Mitchell entered his guilty pleas, a person committed sexual assault in the second degree if the person “[e]ngaged in sexual contact with another person who is less than eighteen (18) years of age” and the person was, among other things, “an employee in the minor‘s school or school district.”
We turn now to DHS‘s points on appeal. DHS first argues that the ALJ‘s finding was supported by substantial evidence. As a threshold matter, we must consider Mitchell‘s contention that we lack jurisdiction to consider this argument because the circuit court did not address the sufficiency of the evidence at all in its order. This argument is misplaced. An agency decision may be set aside if it is not supported by substantial evidence.
Assured of our jurisdiction, we turn to the merits of DHS‘s argument that substantial evidence supports the ALJ‘s finding. Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and fоrce the mind to pass beyond speculation and conjecture. Teston v. Ark. State Bd. of Chiropractic Exam‘rs, 361 Ark. 300, 206 S.W.3d 796 (2005). We review the entire record and give the evidence its strongest probative force in favor of the agency‘s decision. Ark. Pub. Emps. Ret. Sys. v. Taylor, 2013 Ark. 37, 425 S.W.3d 738. The question is not whether the evidence would have supported a contrary finding but whether it would support the finding that was made. Id. To establish an absence of substantial evidence to support the decision, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Weaver, 2021 Ark. 38, 617 S.W.3d 680. When the agency‘s decision is supported by substantial evidence, it automatically follows that the decision cannot be classified as arbitrary and capricious. Wright v. Ark. State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
In this instance, the ALJ considered the summary of B.T.‘s statement indicating that B.T. and Mitchell had touched each other‘s penises. He noted that B.T.‘s dеscription of Mitchell‘s penis as being erect and their discussion of masturbation supported a finding that the touching was for sexual gratification. The evidence before the ALJ also included Mitchell‘s sex-offender assessment, which reported that Mitchell “admitted to sexual contact with two male students (who he was convicted for).” Finally, Mitchell pled guilty to second-degree sexual assault, and he acknowledged during the administrative hearing thаt one of those convictions related to his conduct with B.T. The ALJ noted that by virtue of this guilty plea, Mitchell admitted that the touching was for sexual gratification. At the time, B.T. was less than eighteen years old, and Mitchell was approximately twenty-eight years old, or older, and a caretaker as defined by the Arkansas Child Maltreatment Act. Thus, the evidence was not “so nearly undisputed that fair-minded persons could not reach [the agency‘s] conclusion.” Weaver, 2021 Ark. 38, at 4, 617 S.W.3d at 683. Instead, the evidence was enough that “a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture.” Teston, 361 Ark. at 305, 206 S.W.3d at 799.
Although the evidence before the ALJ was sufficiently persuasive, Mitchell claims that the ALJ should not have considered the witness statements, his guilty plea, or the statements that he made in connection with his sex-offender assessment. Essentially, he claims thаt the evidence was not “valid” and “legal.” Id., 206 S.W.3d at 799. First, Mitchell challenged the use of the witness summaries as a violation of various provisions of the Arkansas Rules of Evidence. However, it is well settled that the rules of evidence need not be strictly adhered to in an administrative proceeding. Ark. Dep‘t of Hum. Servs. v. A.B., 374 Ark. 193, 286 S.W.3d 712 (2008). It is the prerogative of the agency to decide what weight to accord the evidence. Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, 368 S.W.3d 69. Although the ALJ overruled Mitchell‘s objection to the summariеs’ use, he recognized that recordings of the actual statements were missing. He expressed concerns with
Next, Mitchell argued that the ALJ could not use his guilty plea as evidence for the agency‘s determination in the administrative proceeding. He claims that his criminal case was not fully litigated and that principles of collateral estoppel preclude consideration of his plea. Before the circuit court, Mitchell bolstered this argument by noting that the court of appeals had previously rejected his guilty pleas as a basis for finding his own children dependent-neglectеd. For estoppel purposes, a guilty plea in a criminal case is not equivalent to a criminal conviction that has been actually litigated. Bradley Ventures v. Farm Bureau Mut. Ins. Co. of Arkansas, 371 Ark. 229, 264 S.W.3d 485 (2007). Even in cases of a trial, the common-law rule is that a judgment in a criminal prosecution is not a bar to a subsequent civil proceeding founded on the same facts or proof of anything other than its rendition. Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). In Zinger, we overruled the common law with respect to a murder conviction and sаid that “a defendant who has been adjudged guilty of murdering a person is collaterally estopped from relitigating the same issue in a later civil proceeding to inherit or take the victim‘s property.” Id. at 430, 985 S.W.2d 741. We did not address the issue of collateral estoppel for other types of convictions. But the mere fact that Mitchell is not estopped from relitigating the issue of his guilt in a civil proceeding does not mean that his guilty plea mаy not be considered at all in an administrative hearing. In fact, Mitchell was not estopped from contesting the true finding. The ALJ did not treat Mitchell‘s plea as conclusive proof that he abused B.T. Instead, the fact that Mitchell pled guilty to a criminal offense involving B.T. was part of the evidence that the ALJ considered. Additionally, the court of appeals decision in Arkansas Department of Health and Human Services v. Mitchell, 100 Ark. App. 45, 263 S.W.3d 574 (2007), does not compel a conclusion that the ALJ erred in considering Mitchell‘s
Finally, contrary to Mitchell‘s contention, the ALJ did not err in considering the statements that Mitchell made in his sex-offender assessment. Mitchell stresses that
DHS next argues that Mitchell was not deprived of due process because he was given a hearing.2 We have held that parties appearing before an administrativе agency are entitled to due process. A.B., 374 Ark. 193, 286 S.W.3d 712. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319 (1976). Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he or she is deprived of property by state action. Owings v. Econ. & Med. Servs., 302 Ark. 475, 790 S.W.2d 438 (1990). Determining what process is due involves
In this instance, Mitchell does not challenge the specific procedures that DHS has provided for those who wish to contest a true finding. Instead, he argues that those procedures were not followed. According to Mitchell, the fact that he was not notified for fourteen years after the true finding was a violation of his due process rights.
At the time of the truе finding, the Child Maltreatment Act required that the subject be notified.
Finally, DHS contends that Mitchell has suffered no prejudice that would warrant reversing the ALJ‘s findings. Mitchell was successful in convincing the ALJ tо reverse the true finding that he abused B.T. through indecent exposure. DHS also observes that Mitchell testified that there was a “good chance” he “would have lost the hearing” if it had been held fourteen years earlier.
In sum, DHS should have been more diligent in following its own statutory-notice procedures. Its failure to do so violated Mitchell‘s statutory rights when DHS placed his name on the maltreatment registry in 2004. However, those failures do not vitiate the 2018 agency decision that we review today. Substantial evidence supports that decision. Further, before the decision was made, Mitchell reсeived the required notice, he had an opportunity for a meaningful hearing, and his substantial rights were not prejudiced.
Administrative law judge decision affirmed; circuit court order reversed; court of appeals decision vacated.
Ellen K. Howard, Office of Chief Counsel, for appellant.
Steven D. Mitchell, pro se appellee.