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Arkansas Department of Human Services v. Salcido

Court of Appeals of Arkansas, Division I

November 28, 2018

ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLANT
v.
SANTINO SALCIDO APPELLEE

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCV-16-523] HONORABLE JAMES O. COX, JUDGE

          Mary Goff, Ark. Dep't of Human Services, Office of Chief Counsel, for appellant.

         One brief only.

          RITA W. GRUBER, CHIEF JUDGE

         The Arkansas Department of Human Services (DHS) appeals from the circuit court's reversal of an administrative decision placing Santino Salcido's name on the Child Maltreatment Central Registry. The DHS Office of Appeals and Hearings (OAH) dismissed Salcido's appeal due to his failure to timely provide it with a copy of the final disposition of his criminal proceeding. On Salcido's petition for review of the administrative order dismissing his appeal, the circuit court remanded for a hearing on the merits. We reverse the decision of the circuit court and affirm OAH's order dismissing the case.

         On April 2, 2014, a referral alleging the child maltreatment of AP listed Salcido as the alleged offender. The investigative agency determined the allegation to be true based on the preponderance of the evidence. On July 1, 2014, notice of the finding was mailed to Salcido, who timely submitted a written request for an administrative hearing. OAH set the hearing for September 4, 2014. Salcido subsequently obtained counsel. Pursuant to his counsel's request, OAH granted Salcido a continuance and reset the hearing for October 12, 2014, to allow counsel to familiarize himself with the case.

         Before the September hearing occurred, the parties learned that criminal charges regarding the matter had been filed on June 12, 2014, and the OAH administrative law judge (ALJ) sent a letter to Salcido's counsel staying the administrative hearing pending resolution of the criminal charges. The ALJ's letter dated October 13, 2014, stated the following:

Based on information provided to the Office of Appeals and Hearings by CACD that a criminal charge has been filed regarding the occurrence that is the subject of the administrative hearing, the hearing is stayed. The 180 day time limit shall not apply during this stay.
Pursuant to Ark. Code Ann. 12-18-801, the hearing is stayed pending final disposition of the charges. It shall be your duty as the petitioner to report the final disposition of the proceeding to this office, including a file-marked copy of the disposition. The administrative case will be dismissed and your name will be placed on the Child Maltreatment Central Registry, if you as the petitioner fail to provide a file-marked copy of the final disposition of the criminal proceedings within thirty (30) days of the entry of a dispositive judgment or order.
At the expiration of one (1) year from the date the criminal charge was filed, the stay will be lifted and the case will be set for an administrative hearing if no final disposition has been provided to the OAH.
A stay may only be extended after one (1) year upon a written notice from the party requesting the extension that the criminal proceeding is still ongoing. Please pay careful attention to the reporting requirements imposed on the Petitioner in this letter.

(Emphasis in original.)

         On February 24, 2016, over a year and a half after the criminal charges had been filed, OAH sent a notice that a hearing had been scheduled for May 5, 2015. A corrected notice was emailed on March 8, 2016, with the correct hearing date of May 5, 2016. On March 8, Salcido's counsel emailed OAH stating that the criminal matter was still pending and it was his understanding the administrative hearing could not proceed until the criminal process was complete. After checking Court Connect records for Salcido, OAH discovered that Salcido's case had been "nolle prossed," at which point OAH emailed a request to Salcido's counsel for the new criminal-hearing date.

         On April 21, 2016, Salcido's counsel emailed OAH indicating that he had "just talked to the Circuit Clerk in Logan County" regarding the criminal case and discovered that it had been dismissed on August 7, 2015. He explained that he had not been provided a copy of the order of dismissal until that day. On May 3, 2016, the ALJ sent an email to Salcido's counsel and DHS counsel notifying them that the appeal was dismissed because a file-marked copy of the order in the criminal case had not been provided to OAH within thirty days of its filing, that the hearing was canceled, and that he would promptly issue an order to that effect. An order was issued the same day dismissing Salcido's appeal due to his ...


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