Raboin v. North Dakota Dept. of Human Services, 950391

• Decision Date: 27 June 1996
• Docket Number: No. 950391,950391
• Citation: 552 N.W.2d 329
• Parties: Jim RABOIN and Kim Raboin, Petitioners and Appellants, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 329

552 N.W.2d 329

Jim RABOIN and Kim Raboin, Petitioners and Appellants, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Respondent and Appellee.

Civil No. 950391.

Supreme Court of North Dakota.

June 27, 1996.

Monty G. Mertz, Mertz Law Office, Fargo, for petitioners and appellants.

Candace Ann Prigge, Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellee. Appearance by Jean R. Mullen, Assistant Attorney General.

SANDSTROM, Justice.

Jim and Kim Raboin appealed from a judgment of the district court affirming the North Dakota Department of Human Services' (the Department) finding of probable cause to indicate child abuse by the Raboins in disciplining their children. We conclude there is a statutory right of appeal to the courts from the Department's finding of probable cause to believe child abuse or neglect is indicated. We also conclude the Department's finding of probable cause is not supported by a preponderance of the evidence and is not in accordance with the law, and we reverse and remand to vacate the probable cause finding.

I

The Raboins were married in 1983 and live in Fargo with their six children, all of whom were under 11 years of age at the time of these proceedings. It is undisputed the Raboins' children are healthy, happy, and well-adjusted. As a last resort for disciplining the children, the Raboins impose corporal punishment by spanking the children on the buttocks with a plastic spoon or leather belt a predetermined number of "whacks," according to the seriousness of the misconduct.

In October 1994, Cass County Social Services received a report from a person expressing concern the Raboins were striking their children with objects as a form of discipline. The Department, as required under N.D.C.C. § 50-25.1-05, investigated the report of suspected child abuse through the Cass County Social Services office. On November 21, 1994, the social worker who conducted the investigation filed a written report, as provided by N.D.C.C. §§ 50-25.1-05.1 and 50-25.1-05.2, concluding there was probable cause to believe child abuse had occurred. The report shows services and assistance were offered to the family but declined by the Raboins. The case was referred by Cass County Social Services to the state's attorney, who concluded there was no basis to bring charges or to begin legal proceedings.

The Raboins filed a written request for a review by the Department of the investigation under N.D.C.C. § 50-25.1-05.4 and N.D. Admin. Code § 75-03-18-02. After a formal administrative hearing, the hearing officer filed a written recommendation the determination of probable cause of abuse should be reversed and the reversal noted in the Department's child abuse information index under NDAC § 75-03-18-13. The director of the Department, after reviewing the record, rejected the hearing officer's recommendation and upheld the probable cause determination. The Raboins appealed to the district court, which upheld the Department's determination of probable cause. The Raboins then appealed to this Court.

II

The right of appeal in this state is statutory and is a jurisdictional matter which we will consider sua sponte. Midwest Federal Savings Bank v. Symington, 393 N.W.2d 753, 754 (N.D.1986); see also In Interest of C.L.L., 507 N.W.2d 900 (N.D.1993). Before we consider the merits of an appeal we must have jurisdiction, and if there is no right to appeal we must dismiss. Community Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d 364, 365 (N.D.1993).

A

N.D.C.C. § 50-25.1-05.4 authorizes a review procedure for child abuse investigations:

"The department of human services shall adopt rules to resolve complaints and conduct appeal hearings requested by the subject of a report of suspected child abuse or neglect who is aggrieved by the conduct or result of the investigation of a probable cause finding of the suspected child abuse or neglect."

The language of this statute directs the Department to adopt rules for Department administrative review of probable cause investigations and determinations. The statute, however, contains no language authorizing an appeal to the courts, and we therefore conclude none was intended. Our reading of this statute is supported by the legislative history of its adoption.

The original bill (Senate Bill 2059) was drafted in 1989, following an interim study by the Law Enforcement Committee, to establish "policies and procedures by the department of human services to resolve complaints and conduct reviews concerning investigations of reports of child abuse or neglect." The original bill provided extensive procedures for informal and formal agency review, and included a provision stating, "Chapter 28-32 applies to reviews conducted by the department pursuant to this section." The 1989 Report of the North Dakota Legislative Council, at 164-165, addressed this language:

"The committee heard considerable testimony concerning the need for implementation of an administrative review procedure to provide persons with a forum to present grievances concerning the investigative process or determinations of probable cause relating to reports of child abuse or neglect.... The bill draft provided that the review procedure conducted by the Department of Human Services is subject to the Administrative Agencies Practice Act, which provides an adjudicatory procedure to be followed by administrative agencies and for appeals from administrative agency decisions to the judicial system."

In testimony before the Human Services and Veteran's Affairs Committee during the 1989 legislative session, Gladys Cairns, the Department's Administrator of Child Protective Services, recommended the bill draft be amended to delete the application of Chapter 28-32 in the review process, thereby eliminating the statutory basis for appeals to the judicial system from these administrative agency determinations. One committee member expressed concern the original bill draft, with its multiple reviews, created a great deal of expense and waste of resources when there was no practical legal effect to the determination of probable cause. Senate Bill 2059 was extensively amended in committee, and the reference to Chapter 28-32 was omitted from the final bill draft passed by the legislature. S.L.1989 Ch. 587. This history of the adoption of N.D.C.C. § 50-25.1-05.4 supports our conclusion the legislature's intent was to provide only an internal administrative review of probable cause determinations under this statute. We must also review, however, if the decision is appealable under the Administrative Agencies Practice Act.

B

The Administrative Agencies Practice Act, N.D.C.C. § 28-32-15, authorizes appeals from "final orders" of administrative agencies. Bashus v. N.D. Dep't of Human Services, 519 N.W.2d 296, 297 (N.D.1994). N.D.C.C. § 28-32-01(7), defines "order" as "any agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons...." To determine whether this statute gives the Raboins a right to appeal, we must decide whether the Department's determination of probable cause the Raboins abused their children is an order.

Upon completing an investigation of reported child abuse, the Department must make a determination whether there is probable cause to believe child abuse is indicated. N.D.C.C. § 50-25.1-05.1. If the Department finds probable cause to believe there is child abuse, it must promptly make a written report to the juvenile court and file it in a child abuse information index. N.D.C.C. § 50-25.1-05.2. The legislature expressly made these reports confidential and, consequently, exempt from public access under the open records law. N.D.C.C. § 50-25.1-11; see Adams County Record v. Greater North Dakota Ass'n, 529 N.W.2d 830, 833 (N.D.1995). As originally enacted, a finding of probable cause under N.D.C.C. § 50-25.1-05.1 did not affect legal rights or privileges of the persons against whom the finding was made. The finding could trigger action by others, such as the state's attorney or juvenile court, which might result in future proceedings affecting legal interests of the parties involved. The mere filing of the probable cause report, however, did not carry a legal effect or consequence. We conclude subsequent statutory enactments have elevated the consequences of a probable cause finding so that a finding of probable cause of child abuse now affects legal rights or interests of the person against whom it is directed and, therefore, constitutes an appealable final order under N.D.C.C. Ch. 28-32.

In 1991, the legislature created a process for persons providing child care services to voluntarily be listed in a "carecheck registry" showing they do not have a criminal record or past history of child abuse. The law precludes a person from being listed in the registry if the Department has filed against that person a determination of probable cause of child abuse:

"The applicant for placement in the carecheck registry, after satisfying requirements imposed by the department, must be placed in the carecheck registry if no relevant criminal history record information is found and no report of a determination of probable cause for child abuse or neglect filed pursuant to section 50-25.1-05.2 is found which would disqualify the person...."

N.D.C.C. § 50-11.1-06.2. There is no appeal process or other recourse written into this legislation for a person denied placement in the carecheck registry. The statute further provides "The division ... shall provide, through a toll-free telephone line maintained by the department, a means to allow interested parents or guardians, employment agencies, or child care referral groups to determine if a person has met the requirements for placement in the carecheck registry. The division shall undertake a public awareness effort to explain the existence...