Arkansas Dept. of Human Services v. Holman

• Decision Date: 04 October 2006
• Docket Number: No. CA 05-1197.,CA 05-1197.
• Citation: 96 Ark.App. 243,240 S.W.3d 618
• Parties: ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Shelly HOLMAN, Appellee.
• Court: Arkansas Court of Appeals

240 S.W.3d 618

96 Ark.App. 243

ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Shelly HOLMAN, Appellee.

No. CA 05-1197.

Court of Appeals of Arkansas.

October 4, 2006.

Arkansas Department of Health & Human Services Office of Chief Counsel, by: Gray Allen Turner, Little Rock, AR, for appellant.

Taylor Law Firm, by: Russell C. Atchley, Fayetteville, AR, for appellee.

JOHN MAUZY PITTMAN, Chief Judge.

The Division of Children and Family Services found that appellee, assistant principal at Berryville Elementary School, committed child maltreatment when she caused bruises on D.B. while disciplining him. Appellee requested an administrative hearing. The administrative law judge found that appellee committed child maltreatment while disciplining D.B. and ordered that appellee's name be placed on the Central Registry of Child Abusers. Appellee then sought judicial review. After reviewing the record, the circuit court found that the administrative law judge's opinion was not supported by substantial evidence and ordered that appellee's name be stricken from the Central Registry. The Arkansas Department of Human Services brought the present appeal seeking reinstatement of the administrative decision. The Department argues that there is substantial evidence to support the administrative law judge's findings that appellee committed child maltreatment. We disagree.

A decision by the Department of Human Services is governed by the Administrative Procedure Act, Ark.Code Ann. § 25-15-212 (Supp.2005). The appellate court's review is directed not toward the circuit court, but instead toward the decision of the agency. Batiste v. Arkansas Department of Human Services, 361 Ark. 46, 204 S.W.3d 521 (2005). Review of administrative decisions is limited in scope; the agency's decision will be upheld if there is any substantial evidence to support it. Id.; Teston v. Arkansas State Board of Chiropractic Examiners, 361 Ark. 300, 206 S.W.3d 796 (2005). Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Arkansas Board of Examiners v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Id. It is the prerogative of the board to believe or disbelieve any witness and to decide what weight to accord the evidence. Id.

At the hearing, held on January 25, 2005, it was uncontested that D.B. had been disciplined for fighting at school; that D.B.'s parents were given the choice of a three-day suspension or corporal punishment; that the parents opted for corporal punishment; that the punishment consisted of spanking with a paddle approximately two and one-half inches wide and two feet in length; that both of the parents were present when the punishment was administered, as was school administrator Matt Summers; that D.B. was wearing jeans during the punishment; that the punishment consisted of three swats with the paddle; that none of the witnesses told appellee to stop or that she was hitting D.B. too hard; that D.B. did not cry out during the punishment; that D.B. expressed no pain to anyone; that D.B.'s mother disagreed with the concept of corporal punishment; that D.B.'s mother photographed D.B.'s buttocks several times approximately ninety minutes after the paddling; that the photographs showed some bruising; that D.B.'s mother took D.B. to a physician for examination two days later; and that the physician was of the opinion that the bruises did not suggest child abuse.

Pursuant to Arkansas Code Annotated § 12-12-503(2)(a)(v) (Repl.2003), "abuse" includes infliction of a nonaccidental physical injury by any person who is entrusted with the juvenile's care by a parent, guardian, custodian, or foster parent, including an agent or employee of a public or private school. However, the School Discipline Act authorizes every teacher to hold every pupil strictly...