Jack Nelson Jones Professional Association

March 18-24, 2019

J. C. v. Arkansas Department of Human Services, 2019 Ark. App. 131, (February 27, 2019)

 

This case comes on appeal Pulaski County Circuit Court, the Honorable Timothy Davis Fox presiding. J.C. appealed the circuit court’s order affirming the administrative decision of the Arkansas Department of Human Services (DHS) that he had committed sexual abuse of a minor and that his name should be placed on the Arkansas Child Maltreatment Central Registry (CMCR). J.C. argued that the agency’s decision was arbitrary, capricious, and an abuse of discretion. The Court of Appeals affirmed.

 

On August 23, 2013, a report was made to the child-abuse hotline alleging maltreatment of C.K. by J.C., who was one of C.K.’s teachers at the time of the alleged maltreatment. C.K. was 14 at the time of the alleged incident. DHS conducted an investigation at the conclusion of which a finding of child maltreatment was entered against J.C., who timely requested a hearing. The hearing was stayed due to pending criminal charges against J.C. related to the alleged abuse, but, after some time, the prosecuting attorney nolle prossed those charges. An administrative hearing was held on November 29, 2016. C. K. did not appear, but two videotaped recordings of her interviews with investigators and her written statement were admitted as evidence. She alleged that while she and J.C. were alone in his locked classroom, he put his hand down her pants and touched her underneath her underwear on her private area. She also said he kissed her, and that he later asked her forgiveness and said he had been praying about it. 

 

Suzanne Harris, an investigator with the Crimes Against Children Division (CACD) of the Arkansas State Police, testified that she investigated C.K.’s allegations and spoke with her in a recorded interview. C.K. told Harris that she would have lunch in J.C.’s classroom and that he once had tickled her. She said that they had gone to the River Market together during lunch. C.K. told Harris that J.C. had touched her on her “lady area” and on her butt. In her written statement, C.K. stated that J.C. had put his hands inside her panties and said he wanted to feel her once. Harris testified that it was not uncommon for children to delay disclosing sexual abuse or sexual contact. She said that the basis for her true finding of sexual contact was that, after an in-depth interview with C.K. and reviewing C.K.’s written statement, a Little Rock Police Department detective sought an arrest warrant for J.C.. Harris stated, “We can’t go against law enforcement.” She said that after the charges had been dropped, her “attitude toward the case” did not change. She said that child-maltreatment law is different than criminal law. Harris said that she spoke to Ms. Rook, who worked at the school. Ms. Rook said that J.C. had talked to her about C.K. being upset with him for giving her a “B.” He had told Rook that C.K. and he had texted each other, and that they had lunch together in his classroom; Rook advised him that was not a good idea but J.C. wanted to argue over the issue.

 

Harris said that she had talked to J.C., who refused to be formally interviewed or taped, but told her he believed C.K.’s allegation was in retaliation for a grade of “86” that he had given her. Harris also talked to C.K.’s mother and obtained written statements from other students. At the hearing J.C. testified that he was C.K.’s English teacher and that she had eaten lunch with him in his classroom. J.C. said that it was not against school policy to take a student off campus for lunch but that he had not known he was supposed to sign them out. He said that his mentor, another English teacher, took students off campus for lunch. He said that this was his first teaching job out of college, and the allegation occurred six weeks into his job. 

 

J.C. denied that anything sexual had occurred between him and C.K. He said when he dropped C.K.’s grade to a B for failing to turn in a homework assignment, she became very upset, red faced and teary eyed. He told Ms. Rook that C.K. had eaten lunch in his classroom and that they had texted each other. He said that a counselor at school talked to C.K. and that C.K. denied that he had “done anything.” He said that it was a week later that C.K. made the allegations against him.

 

The administrative law judge (ALJ) issued an opinion after reviewing the videotaped evidence as well, finding in part that C.K.’s video interview was credible and plausible, her manner straightforward, detailed, and found no significant motive for her to make up the allegation. He found J.C. not credible in his stated reasoning for texting C.K., phoning her, lunching alone with her in his classroom, and taking her off campus for lunch alone.  The ALJ further found that those actions were inappropriate for a teacher and appeared to be more about grooming the child for a sexual encounter. His going to the counselor after the incident with C.K., claiming she was upset about a “B” grade, appeared to be an attempt to explain away C.K. making a complaint about inappropriate touching. The ALJ found that J.C. touched C.K.’s vagina for a sexual purpose. The ALJ found sufficient evidence to support a true finding of sexual abuse by a preponderance of the evidence and ordered J.C.’s name to be placed on the CMCR. J.C. appealed the ALJ’s decision to the Pulaski County Circuit Court, which affirmed the agency’s decision without a hearing. J.C. then filed this appeal. 

 

As an initial matter, the Court of Appeals noted that, in Arkansas, reviews of administrative-agency decisions, by a circuit and appellate court, are limited in scope. The standard of review is whether there was substantial evidence to support the decision. Appellate courts do not substitute their judgment for that of an agency. The Court observed that the hearing officer is in the best position to determine the credibility of witnesses and decide the proper weight to give the evidence. It is the appellant’s obligation to raise an issue first to the administrative agency and obtain a ruling to preserve an argument for appeal. The Court noted that the agency decision may have been reversed if the court concluded the substantial rights of J.C. were prejudiced by a decision in violation of law, in excess of the agency’s statutory authority, during an unlawful procedure or other error or law, or a decision other than one based upon substantial evidence that was valid, legal, persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. The Court held that on appeal, J.C. had to prove an absence of substantial evidence and demonstrate that the proof before the agency was so nearly undisputed that fair-minded persons could not reach its conclusion. 

 

J.C. claimed that the agency’s decision was arbitrary, capricious, and an abuse of discretion, that the skimpy findings ignored the weaknesses in the evidence and the inconsistencies in the agency’s allegations. J.C. argued that he was a new teacher, full of enthusiasm, and the accuser mistook his enthusiasm for a peer-to-peer friendship. He claimed that when confronted with the reality that she had to do the work for her grade, C.K. lashed out and, over time, manufactured a story that he had sexually assaulted her. He noted that CACD automatically found the allegations as true. He took issue with the ALJ’s findings of believability of C.K.’s video-recorded interview and argued the ALJ did not consider that C.K. was not subjected to cross-examination and did not testify at the hearing, that the ALJ ignored a shoplifting arrest of C.K. after the incident, and that she changed her story over time, making the decision insufficient under the law.

 

J.C. claimed that the findings regarding his credibility were “significantly unmoored from the actual allegations.” He made an evidentiary argument that the ALJ permitted irrelevant profile evidence as to what other accusers do, and finally J.C. argued that the ALJ presumed the worst about him, attributing to him nefarious motives, when the evidence showed that he was a naïve and enthusiastic first-year teacher, unaware of how vulnerable a teacher is to false charges of abuse. 

 

DHS claimed that J.C. was twenty-four years old and that C.K. was fourteen years old when J.C. engaged in sexual contact with her for the purpose of sexual gratification. Sexual gratification may be inferred from the attendant circumstances. DHS contended that the evidence included C.K.’s consistent disclosures, the undisputed facts concerning J.C.’s contact with C.K. (lunches alone, texting and phone calls), and the ALJ’s determination of credibility. In all of C.K.’s disclosures – to the school counselor; in an interview with Detective Trent; in an interview with the CACD investigator; and in a written statement – she said the same thing – that she was in J.C.’s classroom for lunch when he touched her on her vagina. The Court noted that, despite J.C.’s contentions that nothing sexual happened between him and C.K., it was the ALJ’s responsibility to assess credibility and determine truthfulness. The Court found that it was clear the ALJ had considered the defenses J.C. offered, but that it was within his prerogative to reject them. The Court noted that J.C. was asking the Court to reweigh the evidence but noted that an appellate court does not act as a super–factfinder, substituting its own judgment for the credibility determination of the agency. Finally, the Court held that J.C. could not complain on appeal that he was denied an opportunity to cross-examine a witness when he had failed to subpoena her. 

 

The Court held that because the agency’s decision was supported by substantial evidence, the decision could not be classified as arbitrary or capricious and affirmed that J.C.’s name was to be placed on the CMCR, albeit more than five years after the initial report was made.