Cite as 2021 Ark. App. 162 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CV-20-302 2023.06.26 15:20:23 -05'00' 2023.001.20174 Opinion Delivered April 14, 2021 LYLYN MITCHELL APPELLANT APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT V. [NO. 67CV-18-106]
ARKANSAS DEPARTMENT OF HONORABLE TOM COOPER, HUMAN SERVICES JUDGE APPELLEE AFFIRMED
N. MARK KLAPPENBACH, Judge
An administrative law judge (ALJ) with the Arkansas Department of Human Services
(DHS) determined that Lylyn Mitchell’s name shall be listed on the Arkansas Child
Maltreatment Central Registry. The Sevier County Circuit Court affirmed the ALJ’s
determination. Mitchell now appeals and argues that substantial evidence does not support
the findings of abuse. We affirm.
This case began with allegations that Mitchell’s husband, Daryl, had abused their
foster child, SS, in public. An investigation was initiated by Jessica Bragg of the Crimes
Against Children Division of the Arkansas State Police (CACD). Bragg conducted
interviews with Mitchell, Daryl, their eight-year-old son EM, and two foster children who
had been placed in their home for approximately eight months—four-year-old SS and three-year-old RS. 1 The investigation resulted in multiple true findings of child
maltreatment against Mitchell and Daryl, who both requested an appeal. A hearing was held
before an ALJ with DHS’s Office of Appeals and Hearings to determine whether a
preponderance of the evidence supported findings that the allegations of child maltreatment
were true. Bragg, Mitchell, Daryl, and others testified at the hearing. The ALJ also stated
that she would listen to the recordings of the interviews before making her decision. The
ALJ ultimately found that three allegations against Mitchell were supported by a
preponderance of the evidence and that Mitchell’s name shall be listed on the Arkansas
Child Maltreatment Central Registry. Mitchell petitioned for review in the Sevier County
Circuit Court. The parties filed briefs and made arguments in the circuit court, which
affirmed the order of the ALJ.
Our review is limited in scope and is directed not to the decision of the circuit court
but rather to the decision of the administrative agency. Smith v. Ark. Dep’t of Human Servs.,
2018 Ark. App. 438, 559 S.W.3d 291. It is not the role of the circuit court or an appellate
court to conduct a de novo review of the record; rather, review is limited to ascertaining
whether there is substantial evidence to support the agency’s decision. Id.
Substantial evidence is defined as valid, legal, and persuasive evidence that a
reasonable mind might accept as adequate to support a conclusion and forces the mind to
pass beyond conjecture. Id. To establish an absence of substantial evidence, the challenging
party must demonstrate that the proof before the administrative agency was so nearly
undisputed that fair-minded persons could not reach its conclusion. Id. The question is not
1 Due to his young age, RS did not answer questions and was merely observed.
2 whether the testimony would have supported a contrary finding but whether it supports the
finding that was made. Id.
The Arkansas Administrative Procedure Act (APA) provides that a reviewing court
may reverse or modify the agency’s decision if it concludes that the substantial rights of the
petitioner have been prejudiced because the administrative findings, inferences, conclusions,
or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the
agency’s statutory authority, (3) made upon unlawful procedure, (4) affected by other error
or law, (5) not supported by substantial evidence of record, or (6) arbitrary, capricious, or
characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h) (Supp. 2019).
This court has previously noted that administrative agencies are better equipped than
courts, by specialization, insight through experience, and more flexible procedures, to
determine and analyze underlying legal issues affecting their agencies. Smith, supra. This
recognition accounts for the limited scope of judicial review and the refusal of an appellate
court to substitute its judgment and discretion for that of the administrative agency. Id.
Thus, in making the substantial-evidence determination, we review the entire record and
give the evidence its strongest probative force in favor of the agency’s ruling. Id. Between
two fairly conflicting views, even if the reviewing court might have made a different choice,
the agency’s decision must not be displaced. Id.
Arkansas Code Annotated section 12-18-103 (Supp. 2019) provides definitions of
abuse under the Child Maltreatment Act, which include acts or omissions by a foster parent.
Ark. Code Ann. § 12-18-103(3)(A). The ALJ found that Mitchell had committed abuse
under two definitions. First, the ALJ found that Mitchell’s actions had resulted in a
3 “nonaccidental physical injury” to RS. See Ark. Code Ann. § 12-18-103(3)(A)(v). The ALJ
found that Mitchell admitted hitting the children with a ruler as a form of discipline, and
she found that it was more likely than not that blunt, linear bruising on RS’s back and leg
was caused by the ruler and was a result of Mitchell’s actions. The ALJ also attributed a
bruise on EM’s leg to Mitchell’s use of the ruler, but the ALJ found that EM’s injury was
excluded from the definition of abuse under the physical-discipline exception. The ALJ
found that the physical-discipline exception was not applicable to RS’s injuries because
Mitchell was not RS’s parent or guardian.
The ALJ also found that Mitchell had committed abuse by intentionally or knowingly
striking a child six years of age or younger on the face or head with or without physical
injury. See Ark. Code Ann. § 12-18-103(3)(A)(vii)(a). This finding was made regarding both
SS and RS. The ALJ found that Mitchell had admitted in her recorded interview that she
would “bop” the children on the head with a ruler when they misbehaved. Mitchell stated
that although she was aware that it is against DHS policy to administer corporal punishment
to foster children, she elected to disregard the rules, and she stated that she used the ruler as
an aide in disciplining the children due to her petite stature. The ALJ found that EM and
SS had credibly disclosed in their interviews that Mitchell had hit them and RS on the head
with the ruler on more than one occasion. 2 The ALJ noted that Mitchell attempted to justify
her actions by stating that she only “bopped” the children on their heads and did not rear
2 Although the ALJ found that Mitchell would intentionally strike EM on the head, this act was not found to be abuse because EM was over the age of six and there was insufficient evidence that he had ever sustained an injury from this act as required under Arkansas Code Annotated section 12-18-103(3)(A)(vi)(d).
4 back and strike them hard; however, the ALJ found that using the ruler on the children’s
heads as a planned form of discipline was not justified by the excuse that the actions were
not “hard.” The ALJ found that the purpose of corporal discipline is to inflict some degree
of pain to a child in an effort to modify the child’s misbehavior.
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Cite as 2021 Ark. App. 162 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CV-20-302 2023.06.26 15:20:23 -05'00' 2023.001.20174 Opinion Delivered April 14, 2021 LYLYN MITCHELL APPELLANT APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT V. [NO. 67CV-18-106]
ARKANSAS DEPARTMENT OF HONORABLE TOM COOPER, HUMAN SERVICES JUDGE APPELLEE AFFIRMED
N. MARK KLAPPENBACH, Judge
An administrative law judge (ALJ) with the Arkansas Department of Human Services
(DHS) determined that Lylyn Mitchell’s name shall be listed on the Arkansas Child
Maltreatment Central Registry. The Sevier County Circuit Court affirmed the ALJ’s
determination. Mitchell now appeals and argues that substantial evidence does not support
the findings of abuse. We affirm.
This case began with allegations that Mitchell’s husband, Daryl, had abused their
foster child, SS, in public. An investigation was initiated by Jessica Bragg of the Crimes
Against Children Division of the Arkansas State Police (CACD). Bragg conducted
interviews with Mitchell, Daryl, their eight-year-old son EM, and two foster children who
had been placed in their home for approximately eight months—four-year-old SS and three-year-old RS. 1 The investigation resulted in multiple true findings of child
maltreatment against Mitchell and Daryl, who both requested an appeal. A hearing was held
before an ALJ with DHS’s Office of Appeals and Hearings to determine whether a
preponderance of the evidence supported findings that the allegations of child maltreatment
were true. Bragg, Mitchell, Daryl, and others testified at the hearing. The ALJ also stated
that she would listen to the recordings of the interviews before making her decision. The
ALJ ultimately found that three allegations against Mitchell were supported by a
preponderance of the evidence and that Mitchell’s name shall be listed on the Arkansas
Child Maltreatment Central Registry. Mitchell petitioned for review in the Sevier County
Circuit Court. The parties filed briefs and made arguments in the circuit court, which
affirmed the order of the ALJ.
Our review is limited in scope and is directed not to the decision of the circuit court
but rather to the decision of the administrative agency. Smith v. Ark. Dep’t of Human Servs.,
2018 Ark. App. 438, 559 S.W.3d 291. It is not the role of the circuit court or an appellate
court to conduct a de novo review of the record; rather, review is limited to ascertaining
whether there is substantial evidence to support the agency’s decision. Id.
Substantial evidence is defined as valid, legal, and persuasive evidence that a
reasonable mind might accept as adequate to support a conclusion and forces the mind to
pass beyond conjecture. Id. To establish an absence of substantial evidence, the challenging
party must demonstrate that the proof before the administrative agency was so nearly
undisputed that fair-minded persons could not reach its conclusion. Id. The question is not
1 Due to his young age, RS did not answer questions and was merely observed.
2 whether the testimony would have supported a contrary finding but whether it supports the
finding that was made. Id.
The Arkansas Administrative Procedure Act (APA) provides that a reviewing court
may reverse or modify the agency’s decision if it concludes that the substantial rights of the
petitioner have been prejudiced because the administrative findings, inferences, conclusions,
or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the
agency’s statutory authority, (3) made upon unlawful procedure, (4) affected by other error
or law, (5) not supported by substantial evidence of record, or (6) arbitrary, capricious, or
characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h) (Supp. 2019).
This court has previously noted that administrative agencies are better equipped than
courts, by specialization, insight through experience, and more flexible procedures, to
determine and analyze underlying legal issues affecting their agencies. Smith, supra. This
recognition accounts for the limited scope of judicial review and the refusal of an appellate
court to substitute its judgment and discretion for that of the administrative agency. Id.
Thus, in making the substantial-evidence determination, we review the entire record and
give the evidence its strongest probative force in favor of the agency’s ruling. Id. Between
two fairly conflicting views, even if the reviewing court might have made a different choice,
the agency’s decision must not be displaced. Id.
Arkansas Code Annotated section 12-18-103 (Supp. 2019) provides definitions of
abuse under the Child Maltreatment Act, which include acts or omissions by a foster parent.
Ark. Code Ann. § 12-18-103(3)(A). The ALJ found that Mitchell had committed abuse
under two definitions. First, the ALJ found that Mitchell’s actions had resulted in a
3 “nonaccidental physical injury” to RS. See Ark. Code Ann. § 12-18-103(3)(A)(v). The ALJ
found that Mitchell admitted hitting the children with a ruler as a form of discipline, and
she found that it was more likely than not that blunt, linear bruising on RS’s back and leg
was caused by the ruler and was a result of Mitchell’s actions. The ALJ also attributed a
bruise on EM’s leg to Mitchell’s use of the ruler, but the ALJ found that EM’s injury was
excluded from the definition of abuse under the physical-discipline exception. The ALJ
found that the physical-discipline exception was not applicable to RS’s injuries because
Mitchell was not RS’s parent or guardian.
The ALJ also found that Mitchell had committed abuse by intentionally or knowingly
striking a child six years of age or younger on the face or head with or without physical
injury. See Ark. Code Ann. § 12-18-103(3)(A)(vii)(a). This finding was made regarding both
SS and RS. The ALJ found that Mitchell had admitted in her recorded interview that she
would “bop” the children on the head with a ruler when they misbehaved. Mitchell stated
that although she was aware that it is against DHS policy to administer corporal punishment
to foster children, she elected to disregard the rules, and she stated that she used the ruler as
an aide in disciplining the children due to her petite stature. The ALJ found that EM and
SS had credibly disclosed in their interviews that Mitchell had hit them and RS on the head
with the ruler on more than one occasion. 2 The ALJ noted that Mitchell attempted to justify
her actions by stating that she only “bopped” the children on their heads and did not rear
2 Although the ALJ found that Mitchell would intentionally strike EM on the head, this act was not found to be abuse because EM was over the age of six and there was insufficient evidence that he had ever sustained an injury from this act as required under Arkansas Code Annotated section 12-18-103(3)(A)(vi)(d).
4 back and strike them hard; however, the ALJ found that using the ruler on the children’s
heads as a planned form of discipline was not justified by the excuse that the actions were
not “hard.” The ALJ found that the purpose of corporal discipline is to inflict some degree
of pain to a child in an effort to modify the child’s misbehavior.
Mitchell argues that the physical-discipline exception, which the ALJ applied to
exclude a bruise on EM from the definition of abuse, should also apply to the discipline of
foster children. Section 12-18-103(3)(C) provides that abuse does not include physical
discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian
for purposes of restraining or correcting the child. (Emphasis added.) Mitchell argues that
anyone who has custody of a child as a result of any judicial process or by means of statutory
authority must be deemed to be a “parent or guardian” for the purpose of the abuse statutes.
She claims that although DHS was the court-appointed guardian for SS and RS, DHS had
delegated its authority to her as foster parent. Mitchell further argues that it leads to an
absurd result to construe the statute such that the discipline imposed on her son is not abuse
but the same discipline imposed on her foster child is abuse.
In Arkansas Department of Human Services v. Parker, 88 Ark. App. 222, 197 S.W.3d 33
(2004), a stepparent sought to have the physical-discipline exception applied to him. The
exception, then codified at Arkansas Code Annotated section 12-12-503, applied only to
parents and guardians. “Guardian” was not defined by the statute, but the Parker court
adopted a broad definition to include stepparents, foster parents, and others. The supreme
court applied this definition in Arkansas Department of Health & Human Services v. R.C., 368
Ark. 660, 249 S.W.3d 797 (2007). In 2009, however, section 12-12-503 was repealed, and
5 the Child Maltreatment Act was codified at sections 12-18-101 et seq. Since that time,
“guardian” has been defined in the statute to mean “any person, agency, or institution, as
defined by § 28-65-101 et seq., whom a court of competent jurisdiction has so appointed.”
Ark. Code Ann. § 12-18-103(11). 3 It is undisputed that Mitchell is not a guardian pursuant
to this definition. The statute refers to foster parents and other caretakers in other
subsections, but the legislature clearly intended to limit the physical-discipline exception to
parents and guardians. We do not agree with Mitchell that this leads to an absurd result;
instead, it reflects the discipline limitations for foster parents. Accordingly, we agree with
the ALJ that the exception does not apply to Mitchell’s discipline of her foster children.
Mitchell also argues that her acts of “bopping” the children on the head with a ruler
do not constitute “striking” a child on the head as required by the statute. Mitchell testified
that her ruler was “rubbery” and that by bopping she meant “tapping.” She argues that
striking is defined in dictionaries as dealing a “blow or stroke” or coming into contact
forcefully. She claims that there was no evidence that the children were injured or suffered
any pain from her actions.
The statute defines abuse as intentionally or knowingly striking a child six years of
age or younger on the face or head with or without physical injury. Ark. Code Ann. § 12-
18-103(3)(A)(vii)(a). In EM’s recorded interview, he disclosed that Mitchell hits all of the
children on the head with the ruler when they are bad. When SS was asked in her interview
3 “Parent” is also defined in the statute to mean “a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has been found by a court of competent jurisdiction to be the biological father of the child.” Ark. Code Ann. § 12-18-103(15).
6 if she had ever been spanked with the ruler, SS answered that she sometimes gets spankings
on the head with the ruler and that it “hurts really bad.” As stated above, the ALJ found
that EM and SS had credibly disclosed in their interviews that Mitchell had intentionally
struck SS and RS on the head with a ruler as a form of punishment. The ALJ found that
using the ruler on the children’s heads as a planned form of discipline, with the likely purpose
of inflicting some degree of pain, was not justified by Mitchell’s excuse that her actions were
not “hard.” Based on the children’s disclosures, we hold that there was substantial evidence
for the ALJ to find that Mitchell’s actions constituted striking the head. Accordingly, we
affirm the ALJ’s findings of abuse.
Affirmed.
GRUBER and MURPHY, JJ., agree.
Churchwell Law Office, by: Joseph Churchwell, for appellant.
One brief only.