JM v. Department of Family Services

• Decision Date: 16 August 1996
• Docket Number: No. 96-13,96-13
• Citation: 922 P.2d 219
• Parties: JM, Appellant (Contestant), v. DEPARTMENT OF FAMILY SERVICES, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 219

922 P.2d 219

JM, Appellant (Contestant), v. DEPARTMENT OF FAMILY SERVICES, Appellee (Respondent).

No. 96-13.

Supreme Court of Wyoming.

Aug. 16, 1996.

John M. Scorsine, Burns, and Andrew McConnell, Student Intern, Laramie, for Appellant.

William U. Hill, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Cynthia L. Harnett, Assistant Attorney General, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

MACY, Justice.

Appellant JM (the father) appealed to the district court from the decision entered by Appellee Department of Family Services. ¹ This Court accepted certification of this case pursuant to W.R.A.P. 12.09(b).

We reverse the department's decision.

ISSUES

The father presents the following issues for our review:

1. When the Department of Family Services takes adverse action against an individual and provides the individual a "fair hearing" upon which party, the individual or the agency, do the burdens of persuasion and production fall?

2. Are the Rules of The Department of Family Services, which provide that a "fair hearing" afforded a party aggrieved by Agency action is limited to the issue of whether or not the Agency acted in accordance with law and its rules, constitutional under the Federal and State Constitutions?

3. In a "fair hearing" what is the evidentiary standard, preponderance of the evidence or clear and convincing evidence?

4. In this case, was the Final Decision of the Agency contrary to the evidence and to law?

FACTS

On October 19, 1994, a report was made to the agency that the father had physically abused his four sons. The agency investigated the abuse allegations against the father and substantiated the reports as to all four boys. The father's name was placed on a central registry of persons who were the subjects of child abuse complaints. After receiving notice of the agency's determination, the father requested that a contested case hearing be held.

The contested case hearing was held in May 1995 before a hearing examiner from the Office of Administrative Hearings. In his recommended decision, the hearing examiner determined that the child abuse reports as to the three younger boys had not been substantiated but that it was more likely than not that the father had abused his eldest son. The hearing examiner concluded, however, that "there [was] a low likelihood of imminent harm to [the] children."

On August 21, 1995, the department issued its final decision in the case, rejecting many of the hearing examiner's recommendations. The department concluded that the father bore the burden of proof and that its role in the case was limited to determining whether the agency had acted arbitrarily or capriciously, had abused its discretion, or had The father appealed to the district court from the department's final decision. The district court certified certain questions to this Court. We declined to answer the district court's certified questions but agreed to review the entire case under W.R.A.P. 12.09(b).

acted contrary to the law. The department ruled that all the abuse allegations against the father had been substantiated.

DISCUSSION

A. Standard of Review

When we are reviewing cases which have been certified to us pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to a reviewing court of the first instance. Hepp v. State ex rel. Wyoming Workers' Compensation Division, 881 P.2d 1076, 1077 (Wyo.1994). When we are conducting our review,

[o]ur task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions.

Latimer v. Rissler & McMurry Co., 902 P.2d 706, 708-09 (Wyo.1995) (citations omitted).

We do not, however, defer to an agency's conclusions of law. "Instead, if the 'correct rule of law has not been invoked and correctly applied, ... the agency's errors are to be corrected.' " Thunder Basin Coal Company v. Study, 866 P.2d 1288, 1291 (Wyo.1994) (quoting Devous v. Wyoming State Board of Medical Examiners, 845 P.2d 408, 414 (Wyo.1993)).

Celotex Corporation v. Andren, 917 P.2d 178, 180 (Wyo.1996).

B. Burden of Proof

The hearing examiner determined that the agency had the burden of proof at the contested case hearing. When the case was submitted to the department for a final decision, the department ruled that the father bore the burden of proof. On appeal, the father argues that the department erred by determining that the burden of proof was on him.

"Allocation of the burden of proof is a matter of law." Corman v. State ex rel. Wyoming Workers' Compensation Division, 909 P.2d 966, 970 (Wyo.1996). The general rule in administrative law is that, unless a statute otherwise assigns the burden of proof, the proponent of an order has the burden of proof. BERNARD SCHWARTZ, ADMINISTRATIVE LAW § 7.8 (2d ed. 1984). "In general, an agency is the proponent of its orders, while an applicant for benefits or for a license is the proponent in eligibility determinations." 4 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 24.02 at 24-21 (1987).

We considered the complex burden-of-proof subject in Casper Iron & Metal, Inc. v. Unemployment Insurance Commission of Department of Employment of the State of Wyoming, 845 P.2d 387, 393 (Wyo.1993) (quoting 1 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE § 66 (1977)):

The general term, burden of proof, identifies two separate legal doctrines: the burden of persuasion; and the burden of production, also termed the burden of producing evidence or the burden of going forward with the evidence. The burden of persuasion is attached to the party who "runs the risk of nonpersuasion." During a trial, this means if the "party with the burden of persuasion has not sustained it by a fair preponderance of the evidence--if the evidence is in equipoise or the opposing party's preponderates--the party with the burden must fail." The burden of producing evidence is "the obligation of the party to present at the appropriate time ... evidence on the issue involved of sufficient substance to permit the fact finder to act upon it." The burden of producing evidence shifts during the presentation of evidence. The burden of persuasion, which generally does not shift unless by the operation of a legal presumption, becomes operative only after all the evidence is submitted.

In determining which party bears the burden of proof, we consider the applicable substantive statutes. Id.; see also STEIN, supra, § 24.02 at 24-31 to 24-32. WYO. STAT. §§ 14-3-201 to -215 (1994 & Supp.1996) govern child abuse cases such as this one. Section 14-3-201 relates the general purpose of the article:

The purpose of W.S. 14-3-201 through 14-3-215 is to protect the best interest of the child ..., to further offer protective services when necessary in order to prevent any harm to the child or any other children living in the home ..., to protect children ... from abuse or neglect which jeopardize their health or welfare, to stabilize the home environment and to preserve family life whenever possible.

This section clearly states that protecting children's well-being is the paramount purpose of the pertinent statutory provisions. Section 14-3-201 also states, however, that it is important to maintain family life whenever it is possible. Other sections within the article recognize that child abuse accusations are very serious and, therefore, seek to maintain confidentiality during investigations and to ensure that the names of those who have been improperly accused are cleared. See §§ 14-3-212 to -214. We conclude that, in acknowledging the seriousness of child abuse accusations, the legislature intended for the general rule which places the burden of proof upon the agency to apply. The agency was the proponent of an order holding that the child abuse allegations against the father had been substantiated and, therefore, had both the initial burden of production and the ultimate burden of persuasion. The burden of producing evidence, of course, shifts as the evidence is being presented in the course of a contested case hearing. Casper Iron & Metal, Inc., 845 P.2d at 393.

Public policy also supports placing the burden of proof upon the agency. The relationship between a parent and his children is an important fundamental right. Michael v. Hertzler, 900 P.2d 1144, 1147 (Wyo.1995); DS v. Department of Public Assistance and Social Services (Parental Rights to X, Y, and Z), 607 P.2d 911, 918 (Wyo.1980). That fundamental right may not be infringed upon lightly. If the agency has truly substantiated the child abuse reports, it should not be reluctant to assume the burden of proof at the hearing.

The parties discussed the language of the various administrative rules that, they argue, apply in determining which party bears the burden of proof. Their analysis of the regulatory language is unavailing. The father looks to the rules which pertain to the Department of Family Services. Although those rules do include a section which addresses fair hearings, they do not address the burden-of-proof issue. RULES OF THE DEPARTMENT OF FAMILY SERVICES, DIVISION OF YOUTH SERVICES Chapter I, Section 9 (1994).

Both parties refer to the procedures for conducting contested case proceedings promulgated by the Department of Health and Social Services. We have reviewed those rules and conclude that they do not affect our decision in this case. The rules pertain to cases in which the hearing examiner is an employee of the agency or is an individual who was specifically chosen by the agency to be the hearing examiner in a particular case. See PROCEDURES FOR THE CONDUCT OF CONTESTED CASE HEARINGS Chapter I, Section 4(g).

The...