Manley Fox v. Arkansas Department of Human Services

ca02-488

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

MANLEY FOX

APPELLANT

V.

DEPARTMENT OF HUMAN

SERVICES

APPELLEE

CA 02-488

March 5, 2003

APPEAL FROM THE

INDEPENDENCE COUNTY

CIRCUIT COURT [CV-2001-208-2]

HONORABLE JOHN NORMAN

HARKEY, CIRCUIT JUDGE

AFFIRMED

This appeal arises from a Department of Human Services opinion, which found that appellant, Manley Fox, sexually abused KW and that appellant's name should therefore remain on the Arkansas Child Maltreatment Central Registry. Appellant filed a petition for review in circuit court, but after reviewing exhibits and hearing arguments of counsel the petition to remove his name from the registry was denied. This appeal followed. We affirm.

At the administrative hearing in this case, Susan Estes, a licensed psychological examiner and psychology specialist, testified that she was a supervisor at Batesville Behavioral Healthcare Center. She stated that KW was referred to her agency for therapy after she attempted to commit suicide. She said that she had been KW's therapist for three sessions, in June and July 2000, and that KW told her that one of the issues involved in the suicide attempt was that she was having difficulty dealing with being sexually abused by her ex-stepfather, appellant. Estes stated that KW was born in May 1984; that appellant and KW's mother were divorced when KW was about nine years old; and that KW and her mother continued to see appellant after the divorce. She testified that she learned from her interview with KW that appellant would hug her and rub his chest against her breasts, making KW feel very uncomfortable; that KW was about twelve when appellant came in, sat on her bed, and fondled her breast; and that the fondling occurred on two occasions, when she was twelve to fourteen years old. Estes testified that KW told her KW's mother did not believe these things had actually occurred. Estes stated that the mother told Estes that appellant contributed to the support of the family and that such support might be disrupted if they did not continue to have contact with him. Estes also testified that she had been trained to determine when someone is fabricating a story and that she believed KW was telling her the truth about the abuse.

KW testified at the hearing to a limited extent. She stated that she was seventeen years old; that she did not really want to be there; and that she did not want to talk about the allegations concerning appellant. She said that a tape had been made of her explaining her allegations and that she told the truth on the tape. However, she also stated that it made her uncomfortable when she was taped without her mother being present because she felt threatened. She said that she had been on vacation with her family the week before the hearing and that appellant had joined them for part of the time. She stated that she rode back with him and that she did not have any problems being around him.

Brian Brokaw testified that he is employed by DHS; that he is familiar with KW; and that he was present at the taped interview between KW and Investigator Lisa Earls. He said that Earls did not threaten or intimidate KW and that KW made a statement about appellant abusing her several years ago. He said that he thought KW was credible.

Appellant testified that he and KW's mother were married in 1988; that KW was four at that time; and that he was essentially the only father she had ever known. He denied the allegations of abuse. He said that the reason KW attempted suicide had nothing to do with him; that she and her boyfriend had broken up just before the prom and she was upset. Appellant offered three possible reasons why KW might lie about him: (1) because she wanted to get his attention, (2) because he was more strict than her mother, and (3) because he had a girlfriend and KW was jealous of that woman's kids.

Sheri Fox, KW's mother, testified that she is a surgical technologist; that during the time when KW's boyfriend broke up with her before the prom, she was having problems with KW. She said that KW was lying; that she was having sex with boys; and that she showed hostility and anger. She stated that KW improved under the care of Dr. Vuppala and Dr. Patilla; and that she got worse under Estes. She stated that "they" feel KW was so scared when she was interviewed by Earls that she would say anything. She further testified that she does not believe the allegations against appellant; that he is still a friend; that they talk on the phone every day; that she sleeps with him when they are together; and that he does not contribute to her financially.

The administrative order of the Department of Human Services explains that KW told Investigator Earls about her sexual contact with appellant and that her taped interview "sounds credible and convincing." In addition, the order lists as a finding of fact that

In a taped interview with Investigator Lisa Earls, KW stated that once while on visitation at the petitioner's home, Mr. Fox fondled her breast. She explained that while lying beside Manley Fox watching T.V., he reached his arm around her, pulled up her shirt, reached under her bra and fondled her breast. Further, she stated, he unzipped his pants and attempted to unzip hers, as well. KW stated that the petitioner then began acting like he was having sex with her by bumping his pelvis against her back. She said that she got up and left the room.

In Arkansas Department of Human Services v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998), the Arkansas Supreme Court clarified the appropriate standard for reviewing an agency decision:

The Administrative Procedure Act makes it perfectly clear that the circuit courts and appellate courts review state agency decisions to determine whether they pass muster under the six criteria set out in § 25-15-212(h). Thus, under the APA it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record to determine whether some credible evidence of child maltreatment exists. Rather, we review the case to ascertain whether there is substantial evidence to support the agency decision or whether the agency decision runs afoul of one of the other criteria set out in § 25-15-212(h).

(Emphasis added.) Arkansas Code Annotated section 25-15-212(h) provides:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if 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.

In making this determination, we review the entire record and give the evidence its strongest probative force in favor of the agency's ruling. Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). Between two fairly conflicting views, even if the reviewing court might have made a different choice, the board's choice must not be displaced. Id. Substantial evidence is defined as "valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture." Id. 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 tribunal 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.

Appellant contends that the evidence is insufficient to support the ALJ's finding that he sexually abused KW for the following reasons: (1) the alleged victim, KW, did not testify with regard to the substance of the allegations at the administrative hearing, thereby precluding appellant from cross-examining her in violation of constitutional provisions; (2) the administrative law judge improperly admitted into evidence an audio-taped interview of KW, upon unlawful procedure; (3) the administrative law judge improperly shifted the burden of proof to appellant, upon unlawful procedure; (4) the administrative law judge did not properly weigh the credibility of witnesses who testified at the administrative hearing against that of the alleged victim. In addition, appellant challenges the overall sufficiencyof the evidence supporting the ALJ's decision and also contends that the investigation did not satisfy statutory requirements. We find no basis for reversal of the ALJ's opinion.

First, we find that there was sufficient evidence to support the ALJ's decision. Giving the evidence its strongest probative force in favor of the agency's ruling, we find that the ALJ was presented with the audio-taped testimony of KW, which KW acknowledged as true at the hearing, and which was recounted in the ALJ's findings of fact. In addition, there was testimony from Mr. Brokaw concerning his presence during the taping of that interview, the conditions surrounding it, and his opinion that KW was telling the truth in that interview. Finally, there was testimony from Ms. Estes, which also recounted KW's reports to her of sexual abuse by appellant. To establish an absence of substantial evidence, appellant is required to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. This he has not done. We conclude that reasonable minds could accept the evidence before the ALJ as adequate to support the conclusion that appellant sexually abused KW.

(1) Cross-examination of KW

Under this subpoint, appellant contends that his "substantial rights" were prejudiced because the administrative findings, inferences, conclusions, or decisions were in violation of constitutional provisions, i.e., his right to cross-examine KW. Appellant makes this argument for the first time on appeal, and therefore we do not address it. Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998) (ruling that appellate court was not able to reach constitutional issue because it was not raised before the Commission).

(2) Audio-taped interview

At the hearing, appellant made the following objection to appellee's request to the ALJ that the record be held open to include the audio-taped interview with KW:

The grounds are that this hearing is over and the record should be closed. Mr. Fuqua has had 8 months at least to get all this stuff together and here we are had to continue this thing on. It needs to be ended today. That the record should not be kept open, he's had a chance to make his case and he didn't do it, it should be ended.

On appeal, appellant challenges the admissibility of the tape, contending that it was inadmissible hearsay, that it was not authenticated, and that the interview itself was coerced. With respect to the hearsay argument, we have held that hearsay evidence is normally admissible in administrative proceedings if it is reliable and probative. Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983). KW testified that the contents of the tape were truthful. The remaining arguments were not raised below, and therefore we do not address them on appeal. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Arkansas State Racing Comm'n v. Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001).

(3) Burden of proof

Under this subpoint, appellant contends that the ALJ improperly shifted the burden of proof away from appellee and to him. He bases this argument on the ALJ's comment that "Petitioner gave no plausible reason why this child would lie about these allegations." The argument is somewhat artificial and needs little discussion. The ultimate burden in this case clearly remained with appellee, and the quoted comment merely reflects the ALJ's opinion that appellant's testimony on this issue had not credibly rebutted appellee's evidence, even though he testified to three possible reasons why KW might have lied about him.

(4) Credibility of witnesses

Under this subpoint, appellant challenges the credibility of appellee's witnesses. However, the credibility and the weight of the evidence is within the administrative agency's discretion. Olsten Hlth. Servs., Inc. v. Arkansas Hlth. Servs. Comm'n, 69 Ark. App. 313, 12 S.W.3d 656 (2000). It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. An administrative agency, like a jury, is free to believe or disbelieve any witness. Williams v. Scott, Director, 278 Ark. 453, 647 S.W.2d 115 (1983). We give the evidence its strongest probative force to support the administrative decision. Id. Here, it is clear that the ALJ did not find appellant's testimony nor that of Ms. Fox to be particularly credible, and she was within her prerogative to do so. Finally, appellant contends that appellee's investigation of KW's allegations did not meet the statutory requirements of Arkansas Code Annotated § 12-12-509 (Repl. 1999 & Supp. 2001) because this statute provides that the investigation shall include interviews with the parents and any other relevant persons. He argues that Investigator Earls's one telephone interview with KW's mother and "the brief telephone conversation she had with Appellant (as parent of the child)" cannot satisfy the statutory requirements, and that other specific persons were relevant to the investigation but were not interviewed. This argument was not raised below, and therefore we do not address it on appeal.

We therefore find no basis for reversal of the decision of the Department of Human Services that appellant's name should remain on the Arkansas Child Maltreatment Central Registry because of his sexual abuse of KW.

Affirmed.

Neal and Vaught, JJ., agree.