Arkansas Department of Human Services v. A.B., a Minor
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SUPREME COURT OF ARKANSAS
No.
07-897
ARKANSAS DEPARTMENT OF
HUMAN SERVICES,
APPELLANT,
VS.
Opinion Delivered September
11, 2008
APPEAL FRO M THE BENTO N
COUNTY CIRCUIT COURT,
NO. CV-05-914-4,
HON. JOHN SCOTT, JUDGE,
A.B., A MINOR,
APPELLEE,
A R K A N SA S D EPA R T M E N T O F
HU M AN SERVIC ES AFFIRM ED;
CIRCUIT COURT REVERSED.
ANNABELLE CLINTON IMBER, Associate Justice
1.
ADMINISTRATIVE LAW & PROCEDURE — CONSTITUTIONAL SUFFICIENCY OF ADMINISTRATIVE
PROCEDURES — FACTORS TO BE CONSIDERED . —
In Mathews v. Eldridge, the United States
Supreme Court identified three factors that generally must be considered in analyzing the
constitutional sufficiency of administrative procedures: (1) the private interest that will be
affected by the official action, (2) the risk of an erroneous deprivation of such interest
through the procedures used and the probable value, if any, of additional or substitute
procedural safeguards, and (3) the government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.
2.
ADMINISTRATIVE LAW & PROCEDURE — APPLICATION OF MATHEWS V. ELDRIDGE FACTORS
— POTENTIAL
FOR PREJUDICE IS NOT SUFFICIENT .
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— Mere damage to reputation is not a
liberty interest that must be protected; here, appellee has shown nothing but the potential for
prejudice.
3.
ADMINISTRATIVE LAW & PROCEDURE — APPLICATION OF MATHEWS V. ELDRIDGE FACTORS
—
CURRENT ADMINISTRATIVE PROCEDURES DO NOT CREATE A SIGNIFICANT RISK OF
ERRONEOUS DEPRIVATION OF ALLEGED OFFENDER ’S DUE -PROCESS RIGHT TO CONFRONT AND
CROSS-EXAMINE ACCUSER WHEN COMPARED TO GOVERNMENT ’S INTEREST IN PRESENTING ITS
CASE WITHOUT UNNECESSARILY TRAUMATIZING CHILD VICTIMS. — In
light of the statutory
requirement that DHS issue subpoenas at the request of the alleged offender, the current
procedures cannot be said to create a significant risk of erroneous deprivation of the alleged
offender’s due-process rights; moreover, additional safeguards—namely placing the burden
of calling the accuser on DHS—cannot be said to effectively decrease that already minute
risk; when compared to the government’s interest in presenting its case without unnecessarily
traumatizing child victims, these factors demonstrate that appellant was not and should not
have been required to call the victim to testify.
4.
ADMINISTRATIVE
LAW
& PROCEDURE — DUE-PROCESS
RIGHT TO CONFRONT AND CROSS-
EXAMINE ADVERSE WITNESSES — APPELLEE WAIVED RIGHT BECAUSE APPELLEE WAS GIVEN
THE OPPORTUNITY TO SUBPOENA AND CALL ADVERSE WITNESSES BUT FAILED TO DO SO . —
The right to cross-examine may be waived by a failure to exercise it; here, it appears from
the record that appellee did in fact subpoena the victim but failed to obtain his testimony
during the administrative hearing; the record suggests that appellee chose not to call the
victim and other adverse witnesses because he was under the impression that DHS was
required to do so in order to meet its burden of proof; because appellee was given the
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opportunity to subpoena and call adverse witnesses but failed to do so, he cannot now
successfully argue that his due-process rights were violated.
5.
ADMINISTRATIVE LAW — CHILD MALTREATMENT — THERE WAS SUBSTANTIAL EVIDENCE TO
SUPPORT THE CONCLUSION THAT APPELLEE ENGAGED IN BOTH DEVIATE SEXUAL ACTIVITY
AND SEXUAL CONTACT BY FORCIBLE COMPULSION WITH THE VICTIM . — There was substantial
evidence to support the conclusion that appellee engaged in both deviate sexual activity and
sexual contact by forcible compulsion with the victim where the statements of both boys
indicated that appellee’s penis penetrated the victim’s mouth; where both boys admitted that
appellee had touched the victim’s sex organs and buttocks; where the victim’s father testified
that his son had disclosed to him that the appellee had “encouraged” the touching; and where
the victim’s statement indicated that the acts were committed against his will.
6.
ADMINISTRATIVE LAW — CHILD MALTREATMENT — EVIDENCE OF SEXUAL GRATIFICATION
COULD BE INFERRED FROM THE ATTENDANT CIRCUMSTANCES. — Evidence of the element of
sexual gratification may be inferred from the attendant circumstances surrounding the
specific complaint of child maltreatment; here, the attendant circumstances showed that the
conduct began after appellee viewed pornographic photographs and magazines; such
evidence easily gives rise to an inference that appellee, a pubescent male, was motivated by
sexual gratification.
7.
ADMINISTRATIVE LAW — CHILD MALTREATMENT — RELATIVE AGES OF AND RELATIONSHIP
BETWEEN THE TWO BOYS SUPPORT A FINDING OF FORCIBLE COMPULSION .
— The Arkansas
Child Maltreatment Act provides that the age, developmental stage, and stature of the victim
and the relationship of the victim to the assailant, shall be considered in weighing the
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sufficiency of the evidence to prove compulsion; at the time of the alleged incidents, appellee
was between twelve and thirteen years of age, while the victim was between eight and nine
years of age; the stark difference in their developmental stages is reflected in their videotaped
interviews; in addition, the boys were close friends who, by virtue of their parents’ very close
friendship, spent significant amounts of time together.
8.
ADMINISTRATIVE
LAW
—
STANDARD OF REVIEW
—
EVEN THOUGH ISSUE OF FORCIBLE
COMPULSION WAS STRONGLY CONTROVERTED , SUBSTANTIAL EVIDENCE SUPPORTED THE
FINDING OF CHILD MALTREATMENT .
— The standard of review of administrative decisions
is highly deferential; the question is not whether the testimony would have supported a
contrary finding but whether it supports the finding that was made; between two fairly
conflicting views, even if the reviewing court might have made a different choice, the
agency’s choice must not be displaced; here, the issue of forcible compulsion was strongly
controverted—appellee’s testimony conflicted with the victim’s statements and suggested
that all contact was mutual; pursuant to the applicable standard of review, substantial
evidence supports the finding of child maltreatment.
9.
ADMINISTRATIVE
LAW
&
PROCEDURE
—
ADVERSE INFERENCE RULE
ARGUMENT THAT RULE SHOULD APPLY WAS WITHOUT MERIT .
—
APPELLEE ’S
— The case relied upon by
appellee in support of his argument that the adverse inference rule should apply notes that
the presumption is “always open to explanation by circumstances which make some other
hypothesis a more natural one than the party’s fear of exposure”; at the administrative
hearing, DHS offered a reasonable explanation for its decision not to present the victim’s
testimony; specifically, DHS sought to avoid further traumatizing the child; appellee’s
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argument regarding application of the adverse inference rule was therefore without merit.
Appeal from Benton Circuit Court; John Scott, Judge; reversed; Arkansas Department of
Human Services, affirmed.
Arkansas Dep’t of Human Servs., Office of Chief Counsel, by: Gray Allen Turner, for
appellant.
Larry R. Froelich and George D. Oleson, for appellee.
The Arkansas Department of Human Services (“DHS”) appeals from an order of the
Benton County Circuit Court reversing an administrative law judge’s decision that A.B., a
minor proceeding under a fictitious name, must remain listed on the Arkansas Child
Maltreatment Central Registry. DHS argues on appeal that A.B.’s due-process right to
confront and cross-examine adverse witnesses was not violated and that the administrative law
judge’s finding of child maltreatment is supported by substantial evidence. Because this case
involves the interpretation and construction of the United States and Arkansas Constitutions,
our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(1) (2008). We agree with
DHS on both points; accordingly, we affirm the administrative law judge’s decision and
reverse the order of the Benton County Circuit Court.1
In early October of 2003, a report of suspected child maltreatment was called into the
1
The circuit court also declared the Arkansas Child Maltreatment Act unconstitutional to
the extent that it does not require pre-deprivation notice and opportunity to be heard, absent an
emergency or exigent circumstances. DHS does not seek review of this issue and notes that it has
modified its policies in compliance with the court’s declaratory judgment. Thus, we reverse the
Benton County Circuit Court’s order only to the extent that it found a violation of A.B.’s rights
of confrontation and cross-examination and reversed the administrative law judge’s decision for
lack of substantial evidence.
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Arkansas Child Abuse Hotline. A school official reported that, in dealing with a disciplinary
issue, she asked nine-year-old student B.C. if “anyone had ever touched his private parts or
did anything to make him feel uncomfortable.” B.C. indicated that A.B., the thirteen-yearold son of close family friends, had touched B.C.’s “privates” with his hand and with his
mouth. He also stated that A.B. had made him touch A.B.’s privates. B.C. told the school
official that he had recently avoided spending time alone with A.B.
B.C. provided further information in an interview conducted at the Children’s
Advocacy Center a few days later. A detective with the local police department observed the
interview. B.C. disclosed that the genital touching occurred on multiple occasions during the
2002-2003 school year, with the latest incident occurring during the summer of 2003. He
also disclosed that each of them had performed oral sex on each other and that A.B. had
“humped” him. Information revealed in the interview suggested that the conduct was not
consensual: B.C. stated that A.B. pulled B.C.’s pants and underwear down, instructed B.C.
not to tell his parents, asked B.C. to engage in the conduct, and on one occasion grabbed
B.C. by the shoulders and blocked him from leaving the room. B.C. also stated that the
“humping” hurt him.
The police department continued its investigation with interviews of B.C.’s twelveyear-old sister and father. An investigator with the Arkansas State Police Crimes Against
Children Division visited B.C.’s home and found no safety concerns or health hazards. The
investigation appears to have ended at that point, however, and the report to the hotline was
“screened out.”
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The investigation was reopened in July of 2004, for reasons that are not made clear in
the record. A detective who had not been previously involved in the case interviewed A.B.
A.B. disclosed that the conduct began when he received pornographic photographs and
magazines from friends, which he then showed to B.C. A.B. stated that he and B.C. were
interested in what was shown in the pictures and began playing games with their sisters that
involved touching each other. At some point, A.B. and B.C. began secretly going into A.B.’s
closet, shutting the door behind them, and touching each other. A.B. stated that he and B.C.
would stop the genital touching when they became uncomfortable, that neither did anything
the other did not like, and that neither asked the other to engage in the conduct.
A.B. admitted to pulling B.C.’s pants and underwear down but stated that B.C. also
pulled his pants and underwear down. A.B. alleged that B.C. never informed him that the
contact was painful. He eventually admitted that they had briefly engaged in oral sex on one
occasion. A.B. averred that neither one of them asked the other to do it and that they
discussed it beforehand.
A.B. was arrested for rape on July 30, 2004. He was issued a citation and released back
into his father’s custody. The State declined to file criminal charges against A.B. On August
16, 2004, the State Police closed the investigation with a “true” finding of child maltreatment.
In a “Child Maltreatment Investigation Determination Notification” dated August 17, 2004,
the Crimes Against Children Division notified A.B.’s parents that the investigation had
resulted in a “true” finding. The notification also informed the parents that A.B.’s name
would be placed on the Arkansas Child Maltreatment Central Registry. Notices of the
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finding were also sent to A.B. and B.C.’s respective schools.
Through counsel, A.B. timely requested an administrative hearing. The hearing
commenced on January 25, 2005, before an administrative law judge with the DHS Office
of Appeals and Hearings. The only witness called by DHS was the detective who interviewed
A.B. in 2004. He testified that, while he was not present for the interview of B.C., he had
viewed a videotape of the interview and concluded based on its content that the sexual
contact was not consensual. The hearing was then continued to March 15, 2005, to allow
A.B.’s counsel an opportunity to view the tape-recordings of the subjects’ interviews, the
existence of which had not been previously disclosed. At the second hearing, DHS called no
other witnesses. A.B. testified on his own behalf and also called B.C.’s father and A.B.’s
mother. Although B.C. was present in the building and available to testify, neither DHS nor
A.B. called him as a witness. When the administrative law judge inquired about DHS’s
decision not to call the alleged victim, counsel for DHS responded as follows: “Because he
is nine years old, Your Honor, or at least he was nine years old when this incident happened.
The Department of Human Services, as a policy, do[es] not like to traumatize children any
more than absolutely necessary. . . . [Counsel for A.B.] subpoenaed the victim, Your Honor.
Your Honor, DHS deals with children all the time. We do not, we do not believe in
traumatizing them, that is the reason why.”
The administrative law judge issued an order on April 26, 2005, finding that DHS had
met its burden of proving by a preponderance of the evidence that A.B. sexually abused B.C.
and, more specifically, that the acts of sexual conduct were by forcible compulsion. The order
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directed that A.B.’s name would remain on the Arkansas Child Maltreatment Central
Registry. A.B. timely filed a petition for judicial review with the Benton County Circuit
Court, in accordance with the Arkansas Administrative Procedure Act, Ark. Code Ann. §§
25-15-201 to -218 (Repl. 2002 & Supp. 2007). The circuit court remanded the case to the
Office of Appeals and Hearings on December 8, 2005, so that constitutional arguments raised
by A.B. could be argued before the administrative law judge. The administrative law judge
issued a revised final order on May 22, 2006, affirming his original order and finding that he
had no authority to hold any statutes or procedures unconstitutional.
The Benton County Circuit Court heard oral arguments on A.B.’s petition on March
23, 2007. The court entered its order on April 16, 2007, reversing for lack of substantial
evidence the administrative law judge’s decision that A.B. must remain on the registry. In
that regard, the court concluded that the detective’s testimony was insufficient to establish that
A.B. employed forcible compulsion. Additionally, the court held that A.B. was denied a
meaningful opportunity to be heard “when the State’s only witness was a police officer who
never interviewed the alleged victim of abuse, and whose conclusion that forcible compulsion
occurred was in fact based only on another officer’s opinion; and when the alleged victim, his
interviewer, and the officer who observed the interview were all available to testify but the
State chose not to call them to give evidence.” To the extent that DHS procedures do not
ensure a meaningful opportunity to be heard, to cross-examine witnesses, and to confront
one’s accuser, the court declared them to be unconstitutional. The court’s order enjoined
DHS from further due-process violations and ordered A.B.’s name removed from the
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Arkansas Child Maltreatment Central Registry.
DHS filed a motion to stay the declaratory injunction, a motion to vacate, and a notice
of appeal. The parties agreed to temporarily stay that part of the circuit court’s order that
declared certain portions of the Arkansas Child Maltreatment Act and DHS procedures
unconstitutional and that enjoined DHS from further due-process violations. The circuit
court denied DHS’s motion to vacate, and DHS subsequently filed an amended notice of
appeal.
Standard of Review
This court has stated that review of administrative agency decisions, both by the circuit
court and by appellate courts, is limited in scope. Ark. Dep’t of Human Servs., St. Francis Div.
of Children & Family 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. at 185, 959 S.W.2d at 48. It is not the role of the circuit courts
or the appellate courts to conduct a de novo review of the record; rather, review is limited
to ascertaining whether there is substantial evidence to support the agency’s decision. Ark.
Prof’l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). We review
the entire record in making that determination. Id. at 53, 69 S.W.3d at 859.
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. at 55, 69 S.W.3d at 860 (quoting Ark. State Police Comm’n v. Smith,
338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). The challenging party has the burden of
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proving an absence of substantial evidence. Id., 69 S.W.3d at 860. 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., 69 S.W.3d at 860. The question is not whether the testimony would have
supported a contrary finding but whether it supports the finding that was made. Id., 69
S.W.3d at 860.
This court has previously noted 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. Id. at 53, 69 S.W.3d
at 859. 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. Id., 69 S.W.3d at 859. Thus, in making the substantial-evidence
determination, we review the entire record and give the evidence its strongest probative force
in favor of the agency’s ruling. Id. at 54, 69 S.W.3d at 859. We have stated that, between
two fairly conflicting views, even if the reviewing court might have made a different choice,
the agency’s choice must not be displaced. Id., 69 S.W.3d at 859.
The Arkansas Administrative Procedure Act also provides that a reviewing court may
reverse or modify the agency’s decision if the substantial rights of the petitioner have been
prejudiced because the administrative findings, inferences, conclusions, or decisions are in
violation of constitutional or statutory provisions, in excess of the agency’s statutory authority,
made upon unlawful procedure, affected by other error or law, not supported by substantial
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evidence of record, or arbitrary, capricious, or characterized by abuse of discretion. Ark.
Code Ann. § 25-15-212(h) (Repl. 2002). Thus, review is limited to ascertaining whether
there is substantial evidence to support the agency’s decision or whether the agency’s decision
runs afoul of one of the other criteria set out in section 25-15-212(h). Ark. Prof’l Bail
Bondsman Licensing Bd. v. Oudin, supra.
Due-Process Rights
In support of its position that A.B.’s due-process rights of confrontation and crossexamination were not violated, DHS asserts that it did not shoulder the burden of calling
A.B.’s accuser in the non-criminal administrative hearing. DHS also argues that A.B. was
given a meaningful opportunity to subpoena and cross-examine adverse witnesses but waived
this opportunity by failing to do so. In response, A.B. avers that when the government seeks
to take away constitutionally protected interests of an individual through an accusation of
criminal wrongdoing, the government should present its proof in a form against which
effective defense can be made through confrontation and cross-examination, unless the
government can show compelling reasons to limit confrontation. In essence, A.B. argues that
DHS should have presented the testimony of his accuser.
The United States Supreme Court has stated that “[t]he fundamental requisite of due
process of law is the opportunity to be heard.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970)
(quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). Furthermore, “[i]n almost every
setting where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses.” Id. at 269. More specifically,
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the Supreme Court has extended the due-process rights of confrontation and crossexamination to certain types of administrative proceedings. Greene v. McElroy, 360 U.S. 474
(1959).
In accordance with these principles, our court has recently reiterated that a party
appearing before an administrative agency is entitled to due process in the proceedings.
C.C.B. v. Ark. Dep’t of Health & Human Servs., 368 Ark. 540, 247 S.W.3d 870 (2007). We
have also held that a fair trial by a fair tribunal is a basic requirement of due process, and that
this rule applies to administrative agencies as well as to courts. Id. at 545, 247 S.W.3d at 873.
While it is well settled that an administrative proceeding is civil in nature and that the rules
of evidence need not be strictly adhered to, id. at 548, 247 S.W.3d at 875, our court has
recognized the due-process rights of confrontation and cross-examination in certain types of
administrative proceedings. Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982); see also
Priest v. United Parcel Serv., 58 Ark. App. 282, 950 S.W.2d 476 (1997).
[1] In Hannah v. Larche, 363 U.S. 420, 442 (1960), the Supreme Court set forth the
standard used to determine when due process applies and, more importantly, what process is
due:
“Due process” is an elusive concept. Its exact boundaries are undefinable,
and its content varies according to specific factual contexts. Thus, when governmental
agencies adjudicate or make binding determinations which directly affect the
legal rights of individuals, it is imperative that those agencies use the procedures
which have traditionally been associated with the judicial process. On the
other hand, when governmental action does not partake of an adjudication, as
for example, when a general fact-finding investigation is being conducted, it is
not necessary that the full panoply of judicial procedures be used. Therefore,
as a generalization, it can be said that due process embodies the differing rules
of fair play, which through the years, have become associated with differing
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types of proceedings. Whether the Constitution requires that a particular right
obtain in a specific proceeding depends upon a complexity of factors. The
nature of the alleged right involved, the nature of the proceeding, and the
possible burden on that proceeding, are all considerations which must be taken
into account.
(Emphasis added.) In other words, whether administrative procedures are constitutionally
sufficient requires analysis of the private and governmental interests that are affected. Mathews
v. Eldridge, 424 U.S. 319 (1976). The United States Supreme Court has identified three
factors that generally must be considered: the private interest that will be affected by the
official action, the risk of an erroneous deprivation of such interest through the procedures
used and the probable value, if any, of additional or substitute procedural safeguards, and the
government’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail. Id.
The Court has also stated that “[t]he ultimate balance involves a determination as to
when, under our constitutional system, judicial-type procedures must be imposed upon
administrative action to assure fairness.” Id. at 348. In Mathews, the Court cautioned against
“wholesale transplantation” of judicial rules of procedure to all administrative proceedings, in
light of the vast differences in the function and nature of administrative agencies. Id. In short,
“[a]ll that is necessary is that the procedures be tailored, in light of the decision to be made,
to ‘the capacities and circumstances of those who are to be heard,’ to insure that they are
given a meaningful opportunity to present their case.” Id. at 349 (quoting Goldberg, 397 U.S.
at 268-69).
The Arkansas Child Maltreatment Act acknowledges the rights of confrontation and
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cross-examination in administrative reviews of agency findings of child maltreatment. The
Act provides that DHS’s chief counsel is authorized to require the attendance of witnesses
through the issuance of subpoenas when the testimony is necessary to adequately present the
position of DHS, the investigating protective services agency, or the alleged offender. Ark.
Code Ann. § 12-12-512(c)(3) (Supp. 2007). Requests for subpoenas are required to be
granted by DHS if the testimony or documents desired are considered necessary and material
without being unduly repetitious of other available evidence. Id. § 12-12-513(a) (Repl.
2003). A consideration of the factors set out in Mathews v. Eldridge, supra, leads us to the
conclusion that the statutorily recognized due-process rights were not violated in the instant
case.
[2,3] First, we have held that mere damage to reputation is not a liberty interest that
must be protected. See C.C.B. v. Ark. Dep’t of Health & Human Servs., supra. Where a
petitioner in the same situation as A.B. complained that placement on the Arkansas Child
Maltreatment Central Registry might impede him from obtaining employment, we held that
there was no liberty interest at stake because he had not shown that he had ever sought or was
denied a specific employment opportunity due to his placement on the registry. Id. at 547,
247 S.W.3d at 875. Similarly, A.B. has shown nothing but the potential for prejudice.
Second, in light of the statutory requirement that DHS issue subpoenas at the request of the
alleged offender, we cannot say that the current procedures create a significant risk of
erroneous deprivation of the alleged offender’s due-process rights. Moreover, we cannot say
that additional safeguards - namely, placing the burden of calling the accuser on DHS - would
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effectively decrease that already minute risk. When compared to the government’s interest
in presenting its case without unnecessarily traumatizing child victims, these factors
demonstrate that DHS was not and should not have been required to call B.C. to testify.
[4] Furthermore, it is clear from the record that A.B. was afforded the opportunity to
confront and cross-examine adverse witnesses but waived his right by failing to present their
testimony. The Arkansas Court of Appeals has summarized the practical implications of the
right to confront and cross-examine adverse witnesses in the non-criminal context. Farmer
v. Everett, 8 Ark. App. 23, 648 S.W.2d 513 (1983). “First, a party must know or have an
opportunity to know what evidence is being considered.” Id. at 28, 648 S.W.2d at 516. This
is based on the United States Supreme Court’s holding that, “where governmental action
seriously injures an individual, and the reasonableness of the action depends on fact findings,
the evidence used to prove the Government’s case must be disclosed to the individual so that
he has an opportunity to show that it is untrue.” Greene, 360 U.S. at 496. “Second, when
hearsay evidence has been submitted to the fact-finding body, a party must have the right of
a rehearing for the purpose of subpoenaing and cross-examining adverse witnesses.” Farmer,
8 Ark. App. at 29, 648 S.W.2d at 516. Our court of appeals has also recognized that the right
to cross-examine may be waived by failure to exercise it. A petitioner cannot “successfully
argue that he was denied an opportunity to cross-examine when it is clear that he was
afforded such an opportunity but declined to exercise it.” Palazzolo v. Nelms Chevrolet, 46
Ark. App. 130, 135, 877 S.W.2d 938, 941 (1994).
As previously noted, the Arkansas Child Maltreatment Act provides for the issuance
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of subpoenas by DHS at the request of the alleged offender. Ark. Code Ann. § 12-12-513.
It appears from the record that A.B. did in fact subpoena B.C., but he failed to obtain his
testimony during the administrative hearing. Thus, A.B. waived the right to confront and
cross-examine his accuser. The record suggests that A.B. chose not to call B.C. and other
adverse witnesses because he was under the impression that DHS was required to do so in
order to meet its burden of proof. As stated earlier, this assertion is not supported by
authority. Because A.B. was given the opportunity to subpoena and call adverse witnesses but
failed to do so, he cannot now successfully argue that his due-process rights were violated.
Substantial Evidence
For its next point on appeal, DHS asserts that the administrative law judge’s finding
of child maltreatment is supported by substantial evidence. In response, A.B. claims that DHS
failed to prove the required elements of sexual gratification and forcible compulsion. A.B.
also argues that the “adverse inference rule” should have given rise to a presumption or
inference that B.C.’s testimony would have been harmful to DHS’s case for forcible
compulsion, due to its failure to obtain his testimony.
“Child maltreatment” is defined in the Arkansas Child Maltreatment Act as “abuse,
sexual abuse, neglect, sexual exploitation, or abandonment.” Ark. Code Ann. § 12-12-503(6)
(Supp. 2007). The administrative law judge concluded that A.B. had committed child
maltreatment by sexually abusing B.C. The definition of sexual abuse includes any of the
following by a person ten years of age or older to a person younger than eighteen years of age:
1) sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; 2)
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attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion;
3) indecent exposure; 4) forcing the watching of pornography or live sexual activity. Id. § 1212-503(17)(A). It is undisputed that A.B. was ten years of age or older at the time of the
alleged incidents and that B.C. was younger than eighteen years of age at the time of the
alleged incidents.
DHS did not allege indecent exposure or forcing the watching of
pornography or live sexual activity. Thus, all that is required is proof that A.B. engaged in
actual or attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible
compulsion with B.C.
“Deviate sexual activity” is defined as any act of sexual gratification involving
penetration, however, slight, of the anus or mouth of one person by the penis of another
person or penetration, however slight, or the labia majora or anus of one person by any body
member or foreign instrument manipulated by another person. Ark. Code Ann. § 12-12503(8). “Sexual contact” is defined as any act of sexual gratification involving the touching,
directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of
a female, the encouraging of a child to touch the offender in a sexual manner, or the offender
requesting to touch a child in a sexual manner. Id. § 12-12-503(18)(A)(i) (Supp. 2007).
Evidence of sexual gratification may be inferred from the attendant circumstances surrounding
the specific complaint of child maltreatment. Id. § 12-12-503(18)(A)(ii). Finally, “forcible
compulsion” is defined as physical force, intimidation, or a threat, express or implied, of
physical injury to or death, rape, sexual abuse, or kidnapping of any person. Id. § 12-12503(9)(A)(i).
If the act was committed against the will of the juvenile, then forcible
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compulsion has been used. Id. § 12-12-503(9)(A)(ii).
[5] We hold that there is substantial evidence to support the conclusion that A.B.
engaged in both deviate sexual activity and sexual contact by forcible compulsion with B.C.
The statements of both boys indicated that A.B.’s penis penetrated B.C.’s mouth. Moreover,
both boys admitted that A.B. had touched B.C.’s sex organs and buttocks. B.C.’s father
testified at the administrative hearing that his son had disclosed to him that A.B. had
“encouraged” the touching. Finally, B.C.’s statement indicated that the acts were committed
against his will, which supports a finding of forcible compulsion. He disclosed that A.B.
pulled B.C.’s pants and underwear down, instructed B.C. not to tell his parents, asked B.C.
to engage in the conduct, and on one occasion grabbed B.C. by the shoulders and blocked
him from leaving the room.
In addition, B.C. reported that pain resulted from the
“humping.”
[6] We do not find merit in A.B.’s argument that DHS failed to prove sexual
gratification. As to sexual contact, evidence of sexual gratification may be inferred from the
attendant circumstances surrounding the specific complaint of child maltreatment. Ark. Code
Ann. § 12-12-503(18)(A)(ii). A.B. claims that his testimony pointed to childish curiosity,
rather than sexual gratification, as a motive. However, the attendant circumstances showed
that the conduct with B.C. began after A.B. viewed pornographic photographs and
magazines. Such evidence easily gives rise to an inference that A.B., a pubescent male, was
motivated by sexual gratification.
[7] We also reject A.B.’s argument that DHS failed to prove forcible compulsion. In
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addition to the evidence showing that the acts occurred against B.C.’s will, the relative ages
of and relationship between the two boys support a finding of forcible compulsion. The
statute provides that the age, developmental stage, and stature of the victim and the
relationship of the victim to the assailant, as well as the threat of deprivation of affection,
rights, and privileges from the victim by the assailant, shall be considered in weighing the
sufficiency of the evidence to prove compulsion. Ark. Code Ann. § 12-12-503(9)(B). At the
time of the alleged incidents, A.B. was between twelve and thirteen years of age, while B.C.
was between eight and nine years of age. The stark difference in their developmental stages
is reflected in their videotaped interviews.2 In addition, the boys were close friends who, by
virtue of their parents’ very close friendship, spent significant amounts of time together.
[8] We acknowledge that the issue of forcible compulsion was strongly controverted.
A.B.’s testimony conflicted with B.C.’s statements and suggested that all contact was mutual.
However, our standard for review of administrative decisions is highly deferential. The
question is not whether the testimony would have supported a contrary finding but whether
it supports the finding that was made. Ark. Prof’l Bail Bondsman Licensing Bd. v. Oudin, supra.
We have stated that, between two fairly conflicting views, even if the reviewing court might
have made a different choice, the agency’s choice must not be displaced. Id. at 54, 69 S.W.3d
at 859. Pursuant to this standard, we must conclude that substantial evidence supports the
finding of child maltreatment.
[9] Finally, we find A.B.’s argument regarding the “adverse inference rule” to be
2
The record filed under seal includes these taped interviews.
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meritless.
First, the case relied upon by A.B., Int’l Union v. NLRB, notes that the
presumption is “always open to explanation by circumstances which make some other
hypothesis a more natural one than the party’s fear of exposure.” 459 F.2d 1329, 1336 (D.C.
Cir. 1972) (quoting 2 J. Wigmore, Evidence § 285 (3d ed. 1940)). At the administrative
hearing, DHS offered a reasonable explanation for its decision not to present B.C.’s testimony;
specifically, DHS sought to avoid further traumatizing the child. Moreover, our cases
recognizing the inference have done so in situations where documentary evidence was not
produced, see Corn v. Ark. Warehouse Corp., 243 Ark. 130, 419 S.W.2d 316 (1967); Mutual
Relief Ass’n v. Weatherly, 172 Ark. 991, 291 S.W. 74 (1927), or in situations where a witness
with special knowledge of a transaction does not testify, see Nat’l Life Co. v. Brennecke, 195
Ark. 1088, 115 S.W.2d 855 (1938). A.B. has failed to point us to authority that would
support the application of the presumption in the instant case.
The order of the circuit court is reversed, and the decision of the Arkansas Department
of Human Services is reinstated.
G LAZE, J., not participating.
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