{ "id": 6140549, "name": "ARKANSAS DEPARTMENT of HUMAN SERVICES v. Shelly HOLMAN", "name_abbreviation": "Arkansas Department of Human Services v. Holman", "decision_date": "2006-10-04", "docket_number": "CA 05-1197", "first_page": "243", "last_page": "247", "citations": [ { "type": "official", "cite": "96 Ark. App. 243" }, { "type": "parallel", "cite": "240 S.W.3d 618" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "39 Ark. App. 14", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136073 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0014-01" ] }, { "cite": "Ark. Code Ann. \u00a7 6-18-503", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "pin_cites": [ { "page": "(b)(l)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 6-18-505", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "pin_cites": [ { "page": "(b) and (c)(1)" } ], "opinion_index": 0 }, { "cite": "334 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655490 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0614-01" ] }, { "cite": "361 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5682931 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/361/0300-01" ] }, { "cite": "361 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5682883 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/361/0046-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "opinion_index": 0 } ], "analysis": { "cardinality": 474, "char_count": 7767, "ocr_confidence": 0.753, "pagerank": { "raw": 7.181100842601303e-08, "percentile": 0.42991097164352055 }, "sha256": "6e8a82d85bcc25c3e7535ee4fae23d4460b3c4880c852726a665c5fa00920f7a", "simhash": "1:05da6e8403111721", "word_count": 1235 }, "last_updated": "2023-07-14T22:00:30.615780+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin and Glover, JJ., agree." ], "parties": [ "ARKANSAS DEPARTMENT of HUMAN SERVICES v. Shelly HOLMAN" ], "opinions": [ { "text": "John Mauzy Pittman, Chief Judge.\nThe 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\u2019s 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\u2019s opinion was not supported by substantial evidence and ordered that appellee\u2019s 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\u2019s findings that appellee committed child maltreatment. We disagree.\nA decision by the Department of Human Services is governed by the Administrative Procedure Act, Ark. Code Ann. \u00a7 25-15-212 (Supp. 2005). The appellate court\u2019s 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\u2019s 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.\nAt the hearing, held on January 25, 2005, it was uncontested that D.B. had been disciplined for fighting at school; that D.B.\u2019s 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.\u2019s mother disagreed with the concept of corporal punishment; that D.B.\u2019s mother photographed D.B.\u2019s buttocks several times approximately ninety minutes after the paddling; that the photographs showed some bruising; that D.B.\u2019s 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.\nPursuant to Arkansas Code Annotated \u00a7 12-12-503(2)(a)(v) (Repl. 2003), \u201cabuse\u201d includes infliction of a nonaccidental physical injury by any person who is entrusted with the juvenile\u2019s 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 accountable for any disorderly conduct in school or on the playground of the school, and provides that any teacher or school administrator in a school district that authorizes use of corporal punishment in the district\u2019s written student discipline policy may use corporal punishment against any pupil in order to maintain discipline and order within the public schools, provided only that the punishment is administered in accord with the district\u2019s written student discipline policy. Ark. Code Ann. \u00a7 6-18-505(b) and (c)(1) (Repl. 1999). A school district discipline policy authorizing the use of corporal punishment must include provisions for administration of the punishment, including that it be administered only for cause, be reasonable, follow warnings that the misbehavior will not be tolerated, and be administered by a teacher or a school administrator and only in the presence of a school administrator or his designee. Ark. Code Ann. \u00a7 6-18-503(b)(l) (Repl. 1999).\nThe disciplinary policy in effect in the Berryville Elementary-School when D.B. was disciplined authorized reasonable corporal punishment of unruly students with the caveat that such punishment should be administered with extreme care and caution. The administrative law judge\u2019s finding that appellee abused D.B. was based solely on his finding that the punishment she administered was not reasonable or exercised with extreme care and caution. That finding, in turn, was expressly founded on the following reasoning:\nThe punishment administered by the petitioner was not reasonable, because it was not administered with extreme care and caution. The lack of care and caution is evidenced by D.B.\u2019s injuries. The injuries sustained as a result of the discipline are excessive. D.B. sustained [a] very large and very intensely red bruise on his right buttock and a smaller red bruise on the left buttock. Due to their size, these bruises were more than mere minor marks.\nBased on our review of the record, including the photographs, we conclude that the circuit court correctly reversed the agency\u2019s determination of abuse. It is true that photographs taken less than two hours after the paddling display bruising that is clearly visible. However, we have held that evidence of bruising, standing alone, cannot be used as a legal litmus test for abuse to the exclusion of all other attendant circumstances. Arkansas Department of Human Services v. Caldwell, 39 Ark. App. 14, 832 S.W.2d 510 (1992). Here, the punishment was approved by the child\u2019s parents and was conducted according to the procedures set out in the school handbook in the presence of both of the child\u2019s parents and a school administrator. The child, a 90-pound boy, was given three swats with a paddle by the 110-pound teacher. The boy did not cry out, no one complained or attempted to stop the punishment, and the child returned to class immediately afterward without complaint or incident. We are especially impressed with the evidence that the physician who examined D.B. two days afterward was of the opinion that the marks still visible were not indicative of abuse and, above all, by D.B.\u2019s candid testimony at the hearing that:\nLast April, I got in trouble at school. Ms. Holman spanked me. When she spanked me, I just felt a sting. It hurt a couple of minutes afterwards but that\u2019s all.\nFinally, we note that appellant relies on several other items of testimony that, if found to be true by the agency, might arguably have supported its decision. However, courts may not accept the appellate counsel\u2019s post hoc rationalizations for an agency action; an agency\u2019s action must be upheld on a basis articulated by the agency itself.\nCircuit court affirmed; agency decision reversed.\nGladwin and Glover, JJ., agree.", "type": "majority", "author": "John Mauzy Pittman, Chief Judge." } ], "attorneys": [ "Arkansas Department of Human Services, Office of Chief Counsel, by: Gray Allen Turner, for appellant.", "Taylor Law Firm, by: Russell C. Atchley, for appellee." ], "corrections": "", "head_matter": "ARKANSAS DEPARTMENT of HUMAN SERVICES v. Shelly HOLMAN\nCA 05-1197\n240 S.W.3d 618\nCourt of Appeals of Arkansas\nOpinion delivered October 4, 2006\nArkansas Department of Human Services, Office of Chief Counsel, by: Gray Allen Turner, for appellant.\nTaylor Law Firm, by: Russell C. Atchley, for appellee." }, "file_name": "0243-01", "first_page_order": 271, "last_page_order": 275 }