Jefferson v. Colorado Dept. of Social Services, 92CA1472
| Decision Date | 07 October 1993 |
| Docket Number | No. 92CA1472,92CA1472 |
| Citation | 874 P.2d 408 |
| Parties | Dwayne JEFFERSON, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF SOCIAL SERVICES, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wade Livingston, First Asst. Atty. Gen., Denver, for plaintiff-appellee.
Joe Pickard & Associates, P.C., Doris A. Waters, Joe Pickard, Denver, for defendant-appellant.
Opinion by Judge NEY.
Respondent, the Colorado Department of Social Services (Department), appeals a district court judgment which vacated the final agency order denying a request to expunge from the central registry of child protection the name of the petitioner, Dwayne Jefferson, as a known or suspected child abuser. The district court based its decision on the fact that the Administrative Law Judge (ALJ) excluded the petitioner from the hearing when the victim testified. The district court remanded the matter to the agency for a new hearing. We affirm.
Following an investigation, a report that the petitioner had committed an act of sexual abuse on a child was placed in the central registry of child protection. See § 19-3-313, C.R.S. (1993 Cum.Supp.). Subsequently, the petitioner requested that the director of the central registry expunge the report, which request was denied. Thereafter, pursuant to § 19-3-313(7)(a), C.R.S. (1993 Cum.Supp.), a hearing was held before an ALJ who affirmed the decision of the director. However, at that hearing the petitioner was excluded during the victim's testimony.
After exhausting his administrative remedies, see § 19-3-313(13), C.R.S. (1993 Cum.Supp.), the petitioner sought judicial review of the Department's decision. Relying on In re Wolf, 231 N.J.Super. 365, 555 A.2d 722 (1989), the district court concluded that the exclusion of the petitioner from the hearing during the victim's testimony was a violation of his due process rights.
The sole issue on appeal is whether this exclusion of the petitioner constitutes a violation of his right to due process. We conclude that it does.
In Watso v. Dept. of Social Services, 841 P.2d 299 (Colo.1992), the supreme court concluded that a post-deprivation hearing affords a person named on the central registry due process. The fundamental requisites of due process are notice and the opportunity to be heard. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App.1990). If, as here, an administrative adjudication turns on questions of fact, due process requires that the parties be apprised of all the evidence to be submitted and considered and that they be afforded a reasonable opportunity in which to confront adverse witnesses and to present evidence and argument in support of their position. Puncec v. Denver, 28 Colo.App. 542, 475 P.2d 359 (1970).
The essence of the fundamental right to confront one's accuser is to meet adverse witnesses face-to-face and to have the opportunity to cross-examine them. The purpose of the right to confrontation and cross-examination is to prevent conviction by ex parte affidavits, to sift the conscience of the witness, and to test the recollection of the witness to determine if his or her story is worthy of belief. See People v. District Court, 719 P.2d 722 (Colo.1986) and People v. Sallis, 857 P.2d 572 (Colo.App.1993).
In the instant case, the limitation placed on petit...
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