Posted by: koherston | September 26, 2011

Administrative “Indication” of Child Sexual Abuse: Tennessee Dept. of Children’s Services v. Davis

Facts: Davis was the Executive Director of the Youth Emergency Shelter. Shortly after Child reviewed a comic book designed to help children recognize and disclose child sexual abuse, Child told Mother, a long-time employee at the youth shelter, that Davis had touched her inappropriately. Neither Mother nor a counselor who evaluated Child believed Child was being truthful. After a year’s delay, Mother finally reported the disclosure to law enforcement, who declined to bring any charges against Davis. The Tennessee Department of Children’s Services (“DCS”) initiated an investigation and “indicated” Davis as a perpetrator of child sexual abuse. As the Court of Appeals notes,

[t]o be “indicated” means that the report of abuse has been “validated” by DCS after some sort of investigation. Upon being “indicated,” DCS notifies the person and/or any employer that he or she is not allowed to work around children. Thus, a person can be branded a pedophile for life based simply on a DCS investigation.

Davis requested an administrative hearing. The administrative law judge (“ALJ”) found Child’s statements to Mother and later to a forensic interviewer were credible because they were “consistent.” Davis appealed the ALJ’s finding to the trial court. The trial court sustained the findings of the ALJ. Davis appealed.

On Appeal: The Court of Appeals reversed the trial court.

In order to classify an allegation as “indicated,” at least one “Validation Factor” must be met per Policy No. 14.7 of DCS’s Administrative Policies and Procedures. In this case, DCS used the validation factor of “consistency”of the Child’s statements to “indicate” Davis. DCS found the two disclosures by Child to be consistent, although Child told Mother she was touched on her buttocks and told a forensic interviewer she was touched on her outer thigh.

The Court faults the ALJ’s reliance on a “checklist approach” to analysis:

It is clear to us that the ALJ primarily focused on the “validation factors” of the subject regulation in making her “preponderance of the evidence” evaluation. The ALJ seems to have “mechanically” applied the regulation — focusing as she did on her perception of “consistency” of the Child’s stories — rather than focusing on the real issue, i.e., does the totality of the evidence preponderate in favor of a finding that Davis committed an act that falls within the statutory definition of child abuse. Our conclusion is strengthened by the fact that the ALJ referenced a portion of the “Department of Children’s Services Policies” as a basis for her findings, which policies, as pertinent here, focus on whether the statements of the victim are “consistent. . . .” We have previously observed that, in determining whether child sexual abuse has occurred, the fact finder should focus on whether the applicable burden of proof has been met, and be guided by that determination rather than on DCS regulations which purport to define the quantum of proof necessary to prove a case.

Even under the faulty analytical framework employed by the ALJ, the Court opines there was no evidence to support the ALJ’s finding:

Nevertheless, even under the DCS checklist used by the ALJ to sustain the accusation against Davis, there is no substantial and material evidence to support the finding. The one and only “validation factor” present was the Child’s story as told to Mother and as told to [the forensic interviewer]. The ALJ determined that the two versions were consistent and therefore credible. The ALJ found, however, that one part of the story as related to Mother, i.e., the alleged touching on the front pubic area outside the clothing, was not substantiated for numerous reasons. Since the sole basis for the ALJ’s determination is the consistency of the stories, we believe that even one significant inconsistency is a factor that deserved attention and that it fairly detracts from the weight of the testimony that the ALJ credited. . . .

In addition to all the problems with the ALJ’s analysis of the evidence that we have noted above, we find the disclosure as related to the forensic interviewer to be patently inconsistent with the disclosure to Mother.

The Court then details a laundry list of undisputed facts that constitute “weighty evidence that no sexual abuse occurred.” The Court, after noting its role is not to determine the preponderance of the evidence, concludes with this rather strong statement: “In short, there is not ‘such relevant evidence as a reasonable mind might accept to . . . furnish a reasonably sound basis for’ the ALJ’s decision.”

Dept. of Children’s Services v. Davis (Tennessee Court of Appeals, Eastern Section, July 28, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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