Arkansas Dep't of Human Servs. v. Thompson

ARKANSAS DEPARTMENT OF HUMAN SERVICES, 
St. Francis Division of Children 
and Family Services v. Richard THOMPSON

97-269                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1998


1.   Administrative law & procedure -- limited review of agency decisions --
     directed to decision of agency. -- Review of administrative agency
     decisions, both by the circuit court and by appellate courts,
     is limited in scope; the review by appellate courts is
     directed not to the decision of the circuit court but to the
     decision of the administrative agency.

2.   Administrative law & procedure -- when reviewing court may reverse agency
     decision. -- Under the Administrative Procedure Act, at Ark.
     Code Ann.  25-15-212(h) (Repl. 1996), a circuit or appellate
     court may reverse an agency 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.

3.   Administrative law & procedure -- factors underlying deference to agencies.
     -- The supreme court has 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; 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.

4.   Juveniles -- child maltreatment -- test for entry of perpetrator in central
     registry. -- Throughout various amendments to the section of the
     Child Abuse Reporting Code dealing with child maltreatment
     investigations and the requirement that some credible evidence
     exist for inclusion of a perpetrator's name in the central
     registry, the test has remained the same: entry of a name of
     one who engages in child maltreatment will be entered on the
     central registry when some credible evidence supports the
     agency decision.

5.   Administrative law & procedure -- standard of review clarified -- Kelly
     case overruled on standard of review. -- Under the Administrative
     Procedure Act, it is not the role of the circuit or the
     appellate courts to conduct a de novo review of the record to
     determine whether some credible evidence of child maltreatment
     exists; rather, the courts 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 Ark. Code Ann.  25-15-212(h);
     the supreme court was incorrect when it said in
     Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989), that it reviewed a decision to determine
     whether there was some credible evidence of child abuse; the
     supreme court overruled the Kelly case on this point.

6.   Administrative law & procedure -- substantial evidence supported agency's
     final order entering appellee's name on central registry for child
     maltreatment cases. -- Using the proper standard of review, the
     supreme court held that substantial evidence existed to
     support the agency's decision that credible evidence supported
     allegations that appellee had sexually abused his stepdaughter
     and that appellee's name should be entered on the central
     registry for the collection of records of cases involving
     allegations of child maltreatment; where the stepdaughter
     testified in detail about appellee's sexual abuse over the
     course of three years, and her mother admitted to her own
     suspicions on one occasion, though she later recanted and
     testified that she believed her daughter was not telling the
     truth about appellee's abuse, the proof easily qualified as
     substantial evidence supporting the state agency's final
     order; in a similar vein, the supreme court has held
     repeatedly that the testimony of a rape victim, standing
     alone, meets the substantial-evidence criterion; the circuit
     court's order was reversed and the agency's decision was
     reinstated.


     Appeal from Crittenden Circuit Court; David Burnett, Judge;
reversed.
     Candice B. Dickson, for appellant.
     Rieves & Mayton, by: Eric Newkirk, for appellee.

     Robert L. Brown, Justice.
     Appellant Arkansas Department of Human Services, St. Francis
Division of Children and Family Services (DCFS) appeals the circuit
court's order reversing the final order of the Appeals and Hearings
Office of the Department of Human Services (DHS) and directing that
the name of appellee Richard Thompson be removed from the central
registry for the collection of records of cases involving
allegations of child maltreatment.  Because we conclude that there
is substantial evidence to support the final order of DHS, we
affirm the agency order and reverse the order of the circuit court.
     On August 9, 1995, DCFS received a report that Richard
Thompson had sexually abused his fourteen-year-old stepdaughter,
JS.  An investigation was conducted by DCFS, and on August 28,
1995, the investigative report concluded that there was some
credible evidence of child maltreatment.
     Thompson requested a hearing to review the determination by
DCFS, and a hearing was held before a DHS hearing officer, Sue
Tolzer.  At the hearing, DCFS presented testimony from its
investigating caseworker, Brenda Lewis, and the victim, JS.  Brenda
Lewis testified that JS told her that for the past three years
Thompson had touched her sexually.  The incidents included Thompson
fondling and sucking her breasts, and once exposing his penis to
her and taking her hand and trying to make her touch his penis. 
More recently, the abuse  had escalated to his fondling her and
inserting his finger in her vagina.  On occasion, he would touch
her sexually while þpoppingþ her back or wrestling with her.
     JS gave a very similar account at the hearing but with more
detail.  She explained that the encounters usually occurred in the
middle of the night or early in the morning when Thompson would
enter her room to wake her up for school.  The abuse recently was
occurring one to three times a week.  Brenda Lewis and JS both
testified that Charlene Thompson, JS's mother, had once become
suspicious of Thompson when she entered her daughter's room and
found Thompson rubbing JS's upper torso.  Charlene Thompson could
not see whether he was rubbing JS's front or back because she was
not wearing her glasses.
     Thompson's counsel contended that JS fabricated the
allegations because she was angry with him for limiting her
activity with her new boyfriend.  Charlene Thompson, JS's half
brother, Craig Yarbrough, and Thompson himself all testified in his
behalf.  Charlene Thompson admitted that initially she believed her
daughter about the sexual abuse and was suspicious about Thompson's
actions in JS's room on that one particular occasion.  But she
added that her daughter had never complained to her about
Thompson's actions in any way.  She also testified that JS had a
serious problem with lying.  She further stated that she had never
noticed any unusual behavior by JS or Thompson after he left her
bedroom.  She concluded that her daughter was not telling the truth
about what Thompson had done to her.  Craig Yarbrough, JS's half-
brother, testified that JS had never told him about any problem she
had with Thompson.  Thompson testified that he had been cooperative
with everyone investigating the matter and again denied the
charges.
     The DHS hearing officer issued a final order in which she
concluded that there was credible evidence to support the
allegations that Thompson had sexually abused JS.  Thompson then
filed a petition for judicial review in the circuit court under the
Administrative Procedure Act.  See Ark. Code Ann.  25-15-212
(Repl. 1996).  The circuit court heard oral arguments from counsel
and entered an order finding that there was no credible evidence to
support the allegations of sexual abuse by Thompson.  The court
ordered DHS to remove Thompson's name from the central registry.
     On appeal to this court, DCFSþs first point concerns the
standard of review.  The agency argues that we must review the
orders of the circuit court and state agency to determine if there
was some credible evidence to support the agency's decision and
then decide whether the circuit court abused its discretion. 
Thompson responds that the only question on review is whether there
was some credible evidence to support placing Thompson's name in
the central registry.  Both parties direct this court's attention
to Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989).
     Review of administrative agency decisions, both by the circuit
court and by appellate courts, is limited in scope. Thomas v.
Arkansas Dep't of Human Serv., 319 Ark. 782, 894 S.W.2d 584 (1995);
Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863
(1994).  The review by appellate courts is directed not to the
decision of the circuit court but to the decision of the
administrative agency.  Hankins v. Department of Finance & Admin.,
330 Ark. 492, ___ S.W.2d ___(November 6, 1997); Thomas v. Arkansas
Dep't of Human Serv., supra.  As with all appeals from
administrative decisions under the Administrative Procedure Act,
the circuit court or appellate court may reverse the agency
decision if it concludes:
          (h) [T]he 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)(Repl. 1996).  See also Wright v.
Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).  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.
Wright, 311 Ark. at 130, 842 S.W.2d  at 45.
     Turning to the instant case, DCFS argues that DHS's decision
was supported by credible evidence and that the decision was not
arbitrary, capricious, or characterized by an abuse of discretion. 
We observe that the sole basis for the circuit court's reversal of
that decision was the court's de novo review of the record and its
finding that there was no credible evidence to support sexual abuse
by Thompson.  Thus, we initially must decide whether the circuit
court invoked the correct standard of review.
     In Crawford/Sebastian County SCAN v. Kelly, supra, we used the
statutory standard of þsome credible evidenceþ to affirm the state
agency's decision.  At the time Kelly was decided, the applicable
statute was Ark. Code Ann.  12-12-516(a) (1987), and it read in
pertinent part:
     [u]nless an investigation of a report conducted pursuant
     to this subchapter determines that there is some credible
     evidence of alleged abuse, sexual abuse, or neglect, all
     information identifying the subject of the report shall
     be expunged from the central registry forthwith.
     [Emphasis added.]
We concluded in Kelly as follows:
          Under Ark. Code Ann.  12-12-516, the apposite
     question is whether there is some credible evidence of
     alleged child abuse to support the maintenance of
     appellee's name in the State Central Registry, not
     whether there is substantial evidence of such abuse.
Kelly, 300 Ark. at 209, 778 S.W.2d  at 221.
     Since the Kelly decision in 1989, the applicable section of
the Child Abuse Reporting Code dealing with child maltreatment
investigations and the requirement that some credible evidence
exist for the inclusion of a perpetratorþs name in the central
registry has been amended several times.  See Act 1334 of 1997; Act
1341 of 1995; Act 809 of 1995; Act 1126 of 1993; Act 1208 of 1991,
now codified at Ark. Code Ann.  12-12-512 (Repl. 1995, Supp.
1997).  Throughout these amendments, the test has remained the same
that entry of a name of one who engages in child maltreatment will
be entered on the central registry when some credible evidence
supports the agency decision.
     We are now confronted with the question of whether our
reasoning in Kelly was correct on the proper standard to use in our
review.  We conclude that it was not.  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).  This court was simply incorrect when we said in
Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989), that we review a decision to determine whether there is
some credible evidence of child abuse.  We overrule the Kelly case
on this point.
     Using the proper standard of review, we hold that substantial
evidence does exist to support the agency's decision.  JS testified
in detail about Thompson's sexual abuse over the course of three
years.  Her mother, Charlene Thompson, even admitted to her own
suspicions on one occasion, though she later recanted and testified
that she believed her daughter was not telling the truth about
Thompsonþs abuse. This proof easily qualifies as substantial
evidence supporting the state agencyþs final order.  In a similar
vein, we have held repeatedly that the testimony of a rape victim,
standing alone, meets the substantial evidence criterion.  See,
e.g., Puckette v. State, 324 Ark. 81, 918 S.W.2d 707 (1996);
Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).
     The order of the circuit court is reversed and the decision of
DHS is reinstated.