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Smith v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 26, 2018

CLEVELAND EARL SMITH APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-16-5622] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Hewett Law Firm, by: Marceliers Hewett, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          BART F. VIRDEN, JUDGE

         Appellant Cleveland Smith appeals from the Pulaski County Circuit Court's decision affirming a determination by an administrative law judge (ALJ) with the Arkansas Department of Human Services (DHS) that his name shall remain on the Arkansas Child Maltreatment Central Registry as a result of a true finding of abuse stemming from an incident that occurred in 2002. Smith argues that (1) his name should be removed from the registry because the finding of abuse is not supported by substantial evidence, (2) his due-process rights were violated when DHS failed to notify him of the true report in 2002, and (3) the true finding of abuse should be overturned because DHS failed to timely conduct an administrative hearing. We affirm the decision reached by both the agency and the circuit court.

         I. Standard of Review

         Review of administrative agency decisions, by both the circuit court and an appellate court, is limited in scope. Ark. Dep't of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005). The review by an appellate court is directed not to the decision of the circuit court, but rather to the decision of the administrative agency. Ark. Dep't of Human Servs. v. A.B., 374 Ark. 193, 286 S.W.3d 712 (2008). It is not the role of the circuit court or an appellate court to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency's decision. Id.

         Substantial evidence is defined as "valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and forces the mind to pass beyond conjecture." Id. at 199, 286 S.W.3d at 717 (quoting Ark. State Police Comm'n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id.

         The Arkansas Administrative Procedure Act (APA) provides that a reviewing court may reverse or modify the agency's decision if it concludes that the 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. Code Ann. § 25-15-212(h) (Supp. 2017).

         The supreme court has previously noted that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. A.B., supra. This recognition accounts for the limited scope of judicial review and the refusal of an appellate court to substitute its judgment and discretion for that of the administrative agency. Id. Thus, in making the substantial-evidence determination, we review the entire record and give the evidence its strongest probative force in favor of the agency's ruling. Id. Between two fairly conflicting views, even if the reviewing court might have made a different choice, the agency's decision must not be displaced. Id.

         II. Procedural History

         In June 2002, a report was made to the Arkansas Child Abuse Hotline alleging that Smith had abused his then teenage daughter, V.S. Matthew Caton, an investigator with the Arkansas State Police Crimes Against Children Division (CACD), was assigned to investigate the allegations of child maltreatment. During the investigation, those persons who were involved were interviewed, and photographs were taken of V.S.'s injuries. The CACD determined that the evidence supported the allegations against Smith, and the investigation was referred to the Division of Children and Family Services. Based on the true report, Smith's name was placed on the Child Maltreatment Central Registry.

         A hearing by telephone was held in August 2016 to determine whether Smith had received notice of the investigative determination in 2002 and whether his name should remain on the registry. The ALJ later found that the record contained insufficient evidence that Smith had received notice of the true report in 2002.

         During the hearing, Smith testified that he had been driving freight trucks in June 2002 and that he had come home one evening and could not find V.S. According to Smith, V.S., then thirteen or fourteen years old, was rebellious and would not stay away from a young man of whom Smith did not approve. Smith and his wife searched for V.S. and finally found her at her cousin's house around 1:00 a.m. Smith testified that he was "upset ...


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