FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-16-5622] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Law Firm, by: Marceliers Hewett, for appellant.
Goff, Office of Chief Counsel, for appellee.
F. VIRDEN, JUDGE
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.
Standard of 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.
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.
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).
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.
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.
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.
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 ...