Natosha Moody v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

NATOSHA MOODY

APPELLANT

v.

DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-283

NOVEMBER 19, 2003

APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT

[NO. CV2002-1255]

HONORABLE J. MICHAEL FITZHUGH, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Natosha Moody appeals from the circuit court's order affirming the decision of the Department of Human Services's administrative law judge (ALJ), who found that Moody's name should remain on the Arkansas Child Maltreatment Central Registry due to the maltreatment of her one-year-old son, S.C. On appeal, Moody challenges the sufficiency of the evidence supporting the ALJ's decision. We affirm. On November 2, 2001, the Arkansas State Police Crimes Against Children Division (CACD) received a report to the child abuse hotline regarding alleged maltreatment of S.C. by Moody, due to what appeared to be cigarette burns on S.C.'s leg. After an investigation, CACD found that the preponderance of the evidence supported the allegations of maltreatment by Moody, and the matter was referred to the Department of Human Services (DHS), Division of Children and Family Services. Moody was notified that her name was being placed on the Child Maltreatment Central Registry. She then filed an appeal with the Appeals and Hearings Office of DHS, and an administrative hearing was held.

According to the evidence presented at the hearing, Moody had joint custody of S.C., along with the father, who lives with his mother, Debby Nichols. The parties had custody of S.C. on alternating weeks and would exchange the child at the sheriff's department. Debby Nichols testified that Moody had S.C. from October 26, 2001, until November 2, 2001. On November 2, Nichols testified that Moody's mother, Wanda Moody, brought S.C. to the sheriff's department for the exchange. According to Nichols, as she was leaving the sheriff's department with S.C., she noticed a burn on his left leg. She went immediately to her attorney's office to show her the burns and then went home and called the child abuse hotline to report the abuse. Mary Rawlins, Nichols's attorney, confirmed that Nichols brought S.C. by on November 2 to show her the burns and that she told Nichols to call the abuse hotline.

Nichols testified that she called the pediatrician, who told her that if the injuries were not life-threatening, she could wait until Monday to bring S.C. to see him. Nichols stated that she also called the police and made arrangements to bring S.C. in the next morning so that photographs of the burns could be taken. Nichols further testified that she took pictures of the injuries every day as they healed. Nichols also testified that when she and her son would receive S.C. after he had been with his mother, he would "always have a rash on either his face or bottom." She stated that she had gotten S.C. back "with marks that looked like burns on his bottom, but were nothing but neglect." She also testified that S.C. was filthy, that he had blood in his diapers and open sores on his bottom, and that it looked like his entire face was scalded. Nichols stated that the parties were currently involved in a custody battle over S.C. at the time of the hearing.

Mena Police Officer Jeremy McBee testified that he took pictures of the abrasions on S.C.'s leg. He stated that he did not know what the abrasions were, although they looked like a "pretty good cut or burn, possibly." McBee testified that he could not determine what caused the abrasions, but that he could not see how the marks could be accidental. The pictures of the abrasions were introduced into evidence.

Dr. Floyd Gonzales, S.C.'s pediatrician, testified that he examined S.C. on November 5, 2001, and saw burns on his left leg. Gonzales stated that the burns were round in shape and appeared to have been inflicted with some force. He testified that the burns were not fresh and that although it wasdifficult to place an age on this type of burn, that they were "likely" five to ten days old "at the most." He further stated that these burns were closer to five days old, because by ten days, they are usually almost healed. Gonzales also indicated that S.C.'s burns were infected.

Jeanna Potter, a DHS caseworker, testified on behalf of Moody. Potter stated that she had been in Moody's home on numerous occasions and that she always found the home to be clean and neat. She further testified that S.C. had been free of any diaper rash or other marks each time that she had visited the home. According to Potter, she had worked closely with Moody for four months and she did not believe that Moody burned or intentionally harmed S.C. in any way.

Moody testified that on many occasions, when S.C. came to her from his father and Nichols, he would have bumps and bruises, as well as rashes on his face and bottom. On October 26, 2001, when Moody received S.C., she testified that he had what appeared to be scrapes or marks on his leg. Moody stated that she put antibiotic cream on the scrapes. According to Moody, the pictures taken of the marks on S.C.'s leg did not look like the marks he had when he left her care on November 2. Moody testified that the marks in the pictures were "fresh looking and red, and they did not look good." She testified that S.C. did not have those injuries when he left her. Moody stated that Nichols must have done something to S.C. after her mother dropped him off, such as peeling off the scab or something else to make the abrasions look worse. Moody further testified that Nichols has three other grandchildren whom she does not get to see, and that she had stated to Moody on several occasions that she would not lose another grandchild. In response to DHS's allegation that she had done drugs while pregnant with S.C. and that she was currently using drugs, Moody introduced evidence of a drug test taken on November 6, 2001, which was clean.

Moody's mother, Wanda, testified that she was with her daughter when she picked up S.C. from Nichols on October 26 and that he had scrapes on his leg. Wanda stated that S.C. had those scrapes when she returned him to Nichols on November 2 and that he did not have any burns at that time. According to Wanda, Nichols would do "whatever it takes to try and gain custody of" S.C. Wanda further testified that although she loved her daughter, she would not lie for her if she had done anything to S.C.

In addition, the report from DHS's investigation of the maltreatment allegations was entered into evidence, which indicated that Nichols had stated that she had seen Moody smoking while holding S.C. on numerous occasions. In the report, Moody admitted that she smoked cigarettes, but she denied that she ever smoked while holding S.C.

The Hearing Officer found that DHS had met its burden of proving by a preponderance of the evidence that Moody had maltreated S.C. and ordered that Moody's name remain on the Child Maltreatment Central Registry. Moody then filed a petition for review in the Sebastian County Circuit Court. After reviewing the evidence, the circuit court found that substantial evidence existed to support the agency's decision and that Moody's name should remain on the Central Registry. Moody then filed a timely notice of appeal from this decision.

On appeal, Moody argues that the decisions of the agency and the circuit court are not supported by substantial evidence. Under Ark. Code Ann. § 12-12-512(a) (Supp. 2003), DHS shall first determine whether allegations of child maltreatment are supported by a preponderance of the evidence. Review of such administrative agency decisions, by both the circuit court and appellate courts, is limited in scope. Arkansas Dep't of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Contrary to Moody's assertions, the correct standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. Id. Thus, the review by appellate courts is directed not to the decision of the circuit court, but rather to the decision of the administrative agency. Id. Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. Arkansas Prof'l Bail Bondsman v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002).

The challenging party has the burden of proving an absence of substantial evidence and 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 evidence would have supported a contrary finding, but rather whether it supports the finding that was made. Id. Because administrative agencies are better equipped than courts, by specialization, experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies, the court may not substitute its judgment and discretion for that of the administrative agency. Thompson, supra. It is also the prerogative of the agency to believe or disbelieve the testimony of any witness and to decide what weight to give the evidence. Arkansas State Police Comm'n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999).

Arkansas Code Annotated section 12-12-503(2)(A) (Supp. 2003) defines "abuse" as any of the following acts or omissions by a parent:

Any nonaccidental physical injury;

Any of the following intentional or knowing acts, with physical injury and without justifiable cause:

Throwing, kicking, burning, biting, or cutting a child

In the Hearing Officer's findings, she noted the testimony of Dr. Gonzales, who identified the marks as definite burns and who aged the burns at five to ten days old as of the time of his examination on November 5, 2001. The Hearing Officer also noted Moody's testimony that she had the child from October 26 until November 2, 2001, and found that this "clearly places the child with her when he was injured." In addition, the Hearing Officer noted that the burns were infected and required treatment. The Hearing Officer found that the injuries were a "direct, non-accidental action on the part of Ms. Moody," and that DHS did meet its burden of showing by a preponderance of the evidence that it was not an accidental injury.

In challenging the sufficiency of the evidence supporting the agency's decision, Moody argues that Dr. Gonzales's testimony is not convincing because he was not positive as to the time frame in which the burn had occurred or as to the cause of the burn. Moody also challenges the credibility of Nichols's testimony because of her involvement in the "heated custody battle" over S.C. and argues that she was the one who initially reported the abuse. However, it was the prerogative of the Hearing Officer to decide what testimony to believe or disbelieve and to decide what weight to give the evidence. Smith, supra. Moody also argues that there is no evidence in the record to show that she smoked around S.C.; however, the report based on DHS's investigation that was entered into evidence does indicate that Nichols had reported seeing Moody smoke while holding S.C. on many occasions.

Moody alleges that Nichols must have done something to the child because the injuries were not as severe as depicted in the photographs when he left her custody. However, Dr. Gonzales testified that the injuries appeared to be circular burns, inflicted with some force, and that they were between five and ten days old as of his examination on November 5, which places the child with Moody when they occurred. In addition, Officer McBee testified that he could not see how the marks would be accidental. Moody has not shown that the evidence in this case was so nearly undisputed that fair-minded persons could not reach the administrative agency's conclusion. Oudin, supra. Because substantial evidence supports the agency's decision, we affirm.

Affirmed.

Pittman and Robbins, JJ., agree.