Donna Ambrose v. Arkansas Department of Human Services

ca02-639

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CA02-639

DECEMBER 4, 2002

DONNA AMBROSE AN APPEAL FROM THE CONWAY APPELLANT COUNTY CIRCUIT COURT

v. [CV-2000-044 DIV. 2 ]

ARKANSAS DEPARTMENT OF HONORABLE WILLIAM R. BULLOCK,

HUMAN SERVICES JUDGE

APPELLEE

AFFIRMED

This is an appeal from the Conway County Circuit Court affirming the decision of the Department of Human Services's administrative law judge (ALJ) requiring that the name of appellant, Donna Ambrose, be placed on the Child Maltreatment Central Registry due to the maltreatment of her minor son J.C. We conclude that there is substantial evidence to support the ALJ's decision; therefore, we affirm.

The standard of review is well-settled. Review of administrative agency decisions, both by the circuit court and by appellate courts, is limited in scope. Arkansas Dep't of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The review by appellate courts is directed not to the decision of the circuit court but to the decision of the administrative agency. Id. We will affirm if there is substantial evidence to support the agency's decision. See id. We review the entire record in making that determination. Arkansas Professional Bail Bondsman v. Oudin, 348 Ark 48, 69 S.W.3d 855 (2002). For purposes of judicial review, we have described the considerable deference to be given to an agency decision:

We have recognized 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, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

Arkansas Dep't of Human Servs. v. Thompson, 331 Ark. 181, 185, 959 S.W.2d 46, 48-9 (1998). (Citation omitted.)

Arkansas Code Annotated section 12-12-503(6) (Repl. 1999) defines child maltreatment as "abuse, sexual abuse, neglect, sexual exploitation, or abandonment." Subsection (2)(A) defines abuse as:

acts or omissions by a parent, guardian, custodian, foster parent, or any person who is entrusted with the juvenile's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible for the juvenile's welfare:

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(ii) physical, psychological, or sexual abuse of any juvenile which includes, but is not limited to, intentionally, knowingly, or negligently and without justifiable cause:

(b) Any nonaccidental physical injury or mental injury.

Ark. Code Ann. § 12-12-503(2)(A)(ii)(b) (Repl. 1999). Abuse does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child. Ark. Code Ann. § 12-12-503(2)(B)(i) (Repl. 1999). Any act that is likely to cause and which does cause, bodily harm greater than transient pain or minor temporary marks is not reasonable or moderate when used to correct or restrain a child. Ark. Code Ann. § 12-12-503(2)(B)(ii)(h) (Repl. 1999). The age, size, and condition of the child, and the location of the injury and the frequency or recurrence of injuries shall be considered when determining whether the bodily harm is reasonable or moderate. See Ark. Code Ann. § 12-12-503(B)(2)(iii) (Repl. 1999).

The findings of fact established by the ALJ were as follows:

1. On September 23, 1999, a report was made to the Division of Family and Children Services regarding an allegation of child maltreatment committed against J.C., a minor child born, July 11, 1990, by Donna Ambrose.

The allegation was investigated and subsequently a finding of some credible evidence of child abuse was made by the Division of Family and Children Services against Ms. Ambrose. The bases for the determination was [sic] the statement made by Ms. Ambrose, photos of the injury, and that the child was under professional care and was not to be given physical punishment except to protect him from harming himself or others.

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In September of 1999, J.C., a minor of 9 years, visited for a weekend at his mother's house on a scheduled visitation. While Ms. Ambrose was at work, Mr. Ambrose, the child's stepfather was watching J.C. Due to J.C.'s medical conditions, he needs constant supervision. He has been diagnosed with ADHD, hyperactive, and may be mildly retarded. Mr. Ambrose allowed the child to go to the bathroom unsupervised. J.C. went and used the bathroom. Prior to going outside after using the bathroom he stopped in his parents' bedroom. While in the bedroom he went through his mother's jewelry and took a pair of earrings that had been given to his mother after her mother had died. Mr. Ambrose found the child and reported this to Ms. Ambrose when she came home from work. At some point it was discovered that the earrings were missing. When J.C. was asked if he had been in his parents' bedroom he denied it, but later admitted it. When J.C. was asked if he took the earrings he also denied it, but later admitted it.

Ms. Ambrose testified that she did use a switch on J.C. a number of times through out [sic] the weekend concerning his taking the earrings. She stated that the reason she disciplined him was because she felt he had lied to her about the incident. After having J.C. show his parents where he had gone after taking the earrings, the earrings were never found. Ms. Ambrose testified that when she switched him the second time he moved around and the switch hit part of his leg. Ms. Ambrose as well as other family members testified that they have been told by professionals working with J.C. that due to his mental disabilities discipline other than physical discipline should be used. The only time physical discipline should be used is if his behavior is putting himself or others at risk of injury.

About two weeks after the incident an investigation was conducted based on a report made to the Division of Children and Family Services. When Ms. Ambrose was interviewed she admitted using a small switch on her son because she felt he had lied about being in her room and taking the earrings. She testified at the hearing that it was a small switch about as thick as a cigarette and about a foot and one half long. Mr. Ambrose was present when she spanked the child with the switch and testified that he did not believe the switch could have caused the noted bruises and that J.C. did not cry when she spanked him with the switch.

When J.C. was interviewed for services offered by the DHS he was interviewed at his school. At this time J.C. disclosed that he had been whipped with a switch by his mother for losing a pair of earrings. The worker took pictures of the bruises and completed a body diagram depicting the type and location of the bruises. Ms. Strope [, a family service worker,] testified that there was skin still broken in the buttocks region. [Emphasis added.] The diagram shows dime and quarter size bruises on the front and back of the buttocks and legs and a three to four inch red mark with skin abrasions on the inner front leg.

Mrs. Cook, the grandmother of J.C. and mother of the father of J.C. testified that when J.C. returned from visiting with Ms. Ambrose she was told about the use of a switch on J.C. She testified that the bruises at this time were about one inch wide and dark and lasted about three weeks. Mr. James Cook, the father of J.C. testified also that the bruises lasted about three weeks.

Ms. Strope testified that in February of 2000, while on a visit with J.C. he brought her a stick and told her that this was the kind his mother had hit himwith when she used the switch on him. The stick was about three feet in length and about one inch in width.

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At the hearing, Ms. Strope, the family service worker, testified that:

There was an approximately 3-4 inch long bruise on [J.C.'s] inner thigh, which also had a skin abrasion where it had broken the skin and there was still some skin broken on it. It was red and crusty. It was healing. [J.C.] said he had received those bruises with his last visit with his mother, approximately two weeks earlier. (Emphasis added.)

This testimony established that J.C. sustained more than transient pain or minor temporary marks. He sustained bruises that had broken the skin and were still apparent some two weeks later. Therefore, based on the entire record, we find that there is substantial evidence to support the agency's decision.

Affirmed.

Pittman and Griffen, JJ., agree.