ARKANSAS DEPARTMENT OF HUMAN SERVICES, DIVISION OF CHILDREN AND FAMILY SERVICES, APPELLANT
MELVY NELSON, APPELLEE
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DIVISION. NO. CV-13-829. HONORABLE J. MICHAEL FITZHUGH, JUDGE.
Jerald A. Sharum, Office of Policy & Legal Services, for appellants.
Huffman Butler, PLLC, by: Bryan R. Huffman, for appellee.
RAYMOND R. ABRAMSON, Judge. HIXSON and HOOFMAN, JJ., agree.
RAYMOND R. ABRAMSON, Judge
Arkansas Department of Human Services (DHS), Division of Children & Family Services (DCFS) appeals from the circuit court's reversal of the decision of the DHS Office of Appeals and Hearings, which found that a preponderance of the evidence supported the true determination made by DCFS that appellee Melvy Nelson physically abused her son, V.M., specifically by striking the child on the face, which resulted in a physical injury that was without justifiable cause. Appellant argues on appeal that substantial evidence supports the finding that Melvy Nelson abused V.M. We affirm the circuit court's decision.
On October 22, 2012, a report was made to the child-abuse hotline regarding alleged child maltreatment of V.M. (DOB: 9-25-03). The report of physical abuse of V.M. by Nelson alleged that Nelson struck V.M. in the face with a belt while punishing him. Based on the investigation by Victoria Clark, a DCFS employee, a finding of child maltreatment was entered against Nelson. On March 23, 2013, Nelson filed a timely request for an administrative hearing with the DHS Office of Appeals and Hearings.
At the telephone hearing, the contested issue was whether Nelson intentionally or knowingly struck V.M. on the face, which resulted in a physical injury that was without justifiable cause. Present at the hearing were Nelson and her attorney, Joshua Bugeja; Olga Lombardi, an interpreter; Shannon Bates, a teacher at Central Elementary
School; Steve Horriat, a family friend of Ms. Nelson's; V.M., the alleged victim; Victoria Clark, DCFS; Sandra Hough, DHS attorney; and Sheila J. McDaniel, Administrative Law Judge (ALJ). Both Nelson and her son, V.M., required a translator to interpret the proceedings and translate their respective testimony.
Although there were discrepancies in Nelson's testimony as to how she punished her child, there was no indication that she ever intended to strike V.M. in the face. Her initial testimony was that she never hit V.M. in the face. She then testified that she was spanking V.M. with a belt but because he was moving around so much, she never hit him with the belt. Nelson later said that she was trying to hit him on the buttocks and may have hit him on the face, but that was not her intention. She also testified that her former mother-in-law put make-up on his face, took pictures of him, and then took him to the police station for him to say that Nelson had hit him. Nelson also said, as far as she remembered, the mark was not as red as the pictures show. She clearly stated that it was never her intention to hit him on the face and if she did, it was an accident.
V.M. testified that his mother did, in fact, hit him on the face, but that it was an accident. Nelson and V.M. both acknowledged that Nelson was hitting V.M. with a belt as punishment after V.M. scratched his brother with a coat hanger. V.M. testified that he moved to try to get out of the way of the belt. He is currently living with his mother, and he testified that he is happy. When questioned by the ALJ if his mother is a " pretty good mom," he responded, " Yes."
The ALJ found that Nelson's actions rose to the level of child maltreatment and ordered that Nelson's name be placed on the Arkansas Child Maltreatment Central Registry. Nelson then petitioned for judicial review by the circuit court, which reversed the ALJ's decision. The circuit court noted that the ALJ's " Findings of Fact" were both confusing and contradictory, and found that there was no substantial evidence in the record to support a finding that the ...