L.E.H. v. Kansas Dept. of SRS

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No. 100,893

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

L.E.H., a Minor Child, by and through D.H.,
Appellant,

v.

STATE OF KANSAS DEPARTMENT
OF SOCIAL AND REHABILITATION SERVICES,
Appellee.

SYLLABUS BY THE COURT

1.
The Kansas Department of Social and Rehabilitation Services is not required to
find that an individual is a danger to children generally before it can substantiate a claim
of child abuse. There is no such requirement whether the purpose of the determination is
for the protection of the child involved in the abuse allegation or for potential listing on
the child abuse and neglect registry.

2.
When the Kansas Department of Social and Rehabilitation determines whether
child abuse has been proved by clear and convincing evidence, the definition for that
standard is set out in In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). Under
that standard, clear and convincing evidence must show that the truth of the facts asserted
is highly probable.

Appeal from Shawnee District Court; DAVID E. BRUNS, judge. Opinion filed October 22, 2010.
Reversed and remanded with directions.


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Craig E. Collins and Donna L. Huffman, of Law Office of Craig E. Collins, of Topeka, for
appellant.

Matthew W. Boddington, regional attorney, of Kansas Department of SRS, for appellee.

Before LEBEN, P.J., GREEN and CAPLINGER, JJ.

LEBEN, J.: Everyone agrees that Christopher spanked his daughter, L.E.H., but not
everyone agrees that the spanking was child abuse. Her mother, Donna, sought a
determination that he had abused L.E.H. The hearing officer who heard the testimony of
the mother, father, daughter, and a physician determined that the father had committed
abuse, but an agency appeals committee ruled that the evidence was insufficient because
(1) the medical doctor "did not testify with 100 percent certainty" that the father's actions
had caused the daughter's substantial bruising and (2) no one had shown that the father
was a danger to other children. We find that the appeals committee applied a too rigid
burden of proof and misread the statute and regulation at issue here; we therefore send
this case back to the administrative agency for further proceedings that will apply the
proper legal standards.

FACTUAL AND PROCEDURAL BACKGROUND

L.E.H. is the daughter of Donna and Christopher, and she lives primarily with
Donna. In May 2005, while L.E.H. was on a weekend visit with Christopher when she
was 7 years old, she used nail polish while riding in Christopher's car, which was not
allowed. Everyone agrees that Christopher spanked L.E.H. when they got home.
According to the girl, her father spanked her on her bare bottom many times in
punishment. Christopher said he spanked her through her clothing more than once but
that he couldn't remember how many times.

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After L.E.H. returned to her mother's home, Donna noticed bruising on the
daughter's buttocks. She took the child to her pediatrician, Dr. Harold Parr, who
determined that the bruising was consistent with a spanking and not with an accidental
trauma. Dr. Parr reported the incident to law-enforcement authorities, stating: "These
bruises could only have been caused by someone using significantly excessive force in
the spanking and this type of injury represents child abuse by any definition that I know
of."

The Kansas Department of Social and Rehabilitation Services (SRS) conducted an
investigation. Within 2 months, SRS mailed a notice to Donna advising that the
allegation of child abuse was unsubstantiated. Donna requested an evidentiary hearing
(what SRS refers to as a "fair hearing"), but SRS denied that request. Donna appealed
that decision to the Shawnee County District Court, which ordered SRS to hold the
requested hearing.

At that hearing, L.E.H. testified that after she had returned home that day,
Christopher had spanked her on her bare bottom with his hand "[l]ots" of times. She said
she had cried and asked him to stop. She testified that her bottom hurt when she sat
down—even when wearing underwear. During cross-examination, though, she said that
after the spanking she had played outside on "some big rocks" and slides. But she denied
that she had slid down the rocks or fallen down.

Christopher testified that although he couldn't recall how many times he spanked
her, L.E.H. was fully clothed and he only used his hand. He agreed that L.E.H. had cried
during the spanking but did not remember her asking him to stop. Christopher said that
L.E.H. played with the kids next door later in the day and that she never complained she

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had been hurt. Christopher said that the spanking couldn't have caused the bruising and
that the most likely explanation was that she injured herself while playing outside.

Dr. Parr testified that he had examined L.E.H. 3 days after the spanking. He
observed no other injuries beyond the bruising to her buttocks. Dr. Parr said he
determined that the bruises were consistent with a hand spanking done with excessive
force and that they were not consistent with any sort of accidental trauma, such as falling
down. But Dr. Parr declined on cross-examination to agree with SRS counsel's
characterization that the doctor had testified on direct examination that the bruising could
only have been inflicted by a spanking.

Kolissa Tate, a former SRS employee who had investigated this abuse allegation,
said that she had found the allegation unsubstantiated after she and her supervisor
concluded that it didn't meet the criteria for physical abuse under an SRS regulation. She
said that she'd seen more significant bruising in other cases and that the photographs of
the bruises did not show a hand print or "anything that's clear and convincingly the result
of a spanking." She said that because no one was with L.E.H. "every minute of the day,"
there was no way to know what else had occurred after the spanking. She also said that
for abuse to be substantiated, there must be clear and convincing evidence that the
perpetrator is a danger to all children, not just the one involved in the allegation.

The administrative hearing officer who heard this testimony entered an initial
order finding that the alleged abuse against L.E.H. by Christopher had been established
by clear and convincing evidence. But SRS sought review before the agency's state
appeals committee, as provided for in K.S.A. 75-37,121 and 77-527. Based on its review
of the record and without oral argument, the committee reversed the decision. While it
found that L.E.H. had physical injuries to her buttocks and that Dr. Parr's testimony was

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sufficient to support the position that the injuries were caused by nonaccidental trauma,
the committee found that it couldn't attribute the injuries to an act by Christopher because
"Dr. Parr did not testify with 100 percent certainty that the bruising was caused from a
spanking."

The appeals committee concluded that the SRS regulation governing the
substantiation of a "perpetrator" of abuse, K.A.R. 30-46-10(j), requires that two things be
proven by clear and convincing evidence: (1) that an act of abuse was committed and (2)
that the perpetrator is a danger to children generally. See K.A.R. 30-46-10(a) (defining
abuse). The committee found that there was clear and convincing evidence that
Christopher had spanked L.E.H. and that the child had bruising on her buttocks. But the
committee found that the evidence was insufficient to meet either of the required tests
under the regulation. First, the committee found the evidence wasn't sufficient to
conclude that the bruising was caused by the spanking. Second, the committee found that
the evidence wasn't sufficient to conclude that Christopher is a threat to children in
general: "One cannot assume that because one child was spanked on one occasion, the
perpetrator of the spanking is a danger to all children." The committee thus found the
abuse allegation unsubstantiated.

Donna appealed to the district court, which affirmed the agency finding. The
district court noted that the agency's conclusion that there was insufficient proof that the
spanking had caused the bruising was what's considered a "negative" finding, which
meant that it had to be upheld by the court unless the agency had disregarded undisputed
evidence or the agency had been motivated by bias, passion, or prejudice. See General
Building Contr., LLC v. Board of Shawnee County Comm'rs, 275 Kan. 525, 541, 66 P.3d
873 (2003). The court said that it was "likely that this Court would not have reached the
same conclusion" had it reviewed the matter independently but that it could not overturn

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the agency's order under the negative-findings standard. The district court did not
determine whether proof that a perpetrator was a danger to all children was required to
substantiate an abuse allegation; the court concluded that because the appeals committee
"would have reached the same conclusion" whether the test had one part (abuse of one
child) or two (abuse of one child plus danger to all children), it did not need to address
that legal issue.

STANDARD OF REVIEW

We review the decision of a state agency under the Kansas Judicial Review Act,
K.S.A. 77-601 et seq. Donna has the burden to show agency error, which on the facts of
this case is argued on primarily three bases: (1) that the agency misinterpreted the law,
K.S.A. 77-621(c)(4); (2) that the agency has made a factual finding central to its decision
that substantial evidence does not support, K.S.A. 77-621(c)(7); and (3) that the agency's
action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(8). We are
obligated to make an independent determination without any required deference to the
district court. See Jones v. Kansas State University, 279 Kan. 128, 140, 106 P.3d 10
(2005).

After appellate briefs were filed, the Kansas Legislature made some changes to the
Kansas Judicial Review Act, which were effective July 1, 2009. See L. 2009, ch. 109,
sec. 28 (amending K.S.A. 77-621). But we must review the administrative action under
the statute as it existed when the agency action was taken. Redd v. Kansas Truck Center,
291 Kan. ___, ___ P.3d ___, 2010 WL 3516168, at *6 (2010). We therefore review the
record to determine whether the agency's determination was supported by evidence "that
is substantial when viewed in light of the record as a whole." K.S.A. 77-621(a)(7). Thus,
we look to determine whether relevant evidence of substance supports the decision, even

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if there may be some contrary evidence. Redd, 2010 WL 3516168, at *6. "Substantial
evidence . . . furnishes a basis of fact from which an issue can be resolved reasonably."
Graham v. Dokter Trucking Group, 284 Kan. 547, 553, 161 P.3d 695 (2007).

Whether abuse occurred is determined based on the statutes and regulations in
effect at the time it allegedly happened. We therefore generally cite in this opinion to the
statutes and regulations in effect at that time. Some of the duties of SRS to handle reports
of child abuse were then found in the Kansas Code for Care of Children, K.S.A. 38-1501
et seq., which was recodified effective January 1, 2007, as the Revised Kansas Code for
Care of Children, K.S.A. 2009 Supp. 38-2201 et seq. For the sections we reference in this
opinion from those codes, the newer provisions are essentially the same as their
predecessors; we have provided citations to both for the convenience of the reader.

I. SRS Wrongly Interpreted Its Own Regulation to Require that a Person Be a
Danger to All Children Before the Person Could Be Substantiated for Committing
an Act of Physical Child Abuse.

This case revolves around a series of related statutes and administrative
regulations, and one of those regulations is at the center of the dispute. Before we discuss
the specific statutes and regulations, we note the role of regulations adopted by an
administrative agency and our rules for interpreting them. When an administrative agency
adopts a regulation within the agency's statutory authority, that regulation has the force
and effect of law. See K.S.A. 77-425; Tonge v. Werholtz, 279 Kan. 481, 483-84, 109 P.3d
1140 (2005). The parties agree that SRS adopted the regulations at issue in this case
within its statutory authority. Courts generally give deference to an agency's
interpretation of its own regulation unless it's clearly wrong or inconsistent with the
regulation. Winston v. Kansas Dept. of SRS, 274 Kan. 396, Syl. & 3, 49 P.3d 1274, cert.

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denied 537 U.S. 1088 (2002). But when a regulation's meaning is clear from the plain
language used in it, a court generally should give the regulation its plain-language
meaning. See Ussery v. Kansas Dept. of SRS, 258 Kan. 187, 194, 899 P.2d 461 (1995).

SRS is charged with the responsibility to receive and investigate reports of child
abuse for the purpose of determining whether the report is valid and whether action is
required to protect a child. K.S.A. 38-1523(a); see K.S.A. 2009 Supp. 38-2226(a).
Moreover, there are ramifications of an SRS finding of abuse beyond determining
whether action is required to protect a specific child; thus, these interrelated statutes must
be considered when interpreting K.S.A. 38-1523(a). The Kansas Legislature has
separately provided that no person running a child-care facility may knowingly let any
person who has committed an act of physical, mental, or emotional abuse against a child
reside, work, or volunteer at that facility. K.S.A. 65-516(a)(3).

The legislature has also defined what is "[p]hysical, mental or emotional abuse,"
which "means the infliction of physical, mental or emotional harm or the causing of a
deterioration of a child." The term includes "maltreatment or exploiting a child to the
extent that the child's health or emotional well-being is endangered." K.S.A. 38-1502(b);
see 2009 Supp. 38-2202(x).

None of these statutes indicate that a person cannot commit abuse unless the
person is a danger to all children. Nor does the statute that prevents those who have
abused children from involvement in child-care facilities indicate that the person must
separately be found to be a danger to all children before the prohibition on child-care
involvement kicks in.


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SRS contends that this requirement comes from one of its regulations, which has
the force of law as we have noted. SRS points to its regulations providing the procedural
steps under which it determines whether abuse has occurred. One regulation, K.A.R. 30-
46-10(i), provides that a "'[s]ubstantiated abuse or neglect'" is a report of abuse or neglect
that "has been confirmed by clear and convincing evidence." A separate provision,
K.A.R. 30-46-10(j), then defines a "'[s]ubstantiated perpetrator'" to mean a person who
has "committed an act of substantiated abuse or neglect." That provision goes on to
mention "a danger to children," which SRS cites as the source of a separate legal
requirement that a person be found to be a danger to all children before that person may
be substantiated as a perpetrator of child abuse:

"'Substantiated perpetrator' and 'perpetrator' mean a person who has been
validated by the secretary or designee, using clear and convincing evidence, to have
committed an act of substantiated abuse or neglect, regardless of where the person resides
and, consequently, to pose a danger to children. These terms shall replace the term
'validated perpetrator.'" K.A.R. 30-46-10(j).

But the SRS interpretation of this regulation makes no sense under either its plain
language or under the statutory framework. SRS ignores the key term: "consequently,"
which means "as a result." American Heritage Dictionary 391 (4th ed. 2006). Replacing
"consequently" with "as a result," the regulation provides, in essence: Substantiated
perpetrator means a person who has been validated to have committed an act of
substantiated abuse or neglect and, as a result, to pose a danger to children. Under the
words used in this SRS regulation, no separate factual element is required that would
prove the person is a danger to all children; a person who abuses one child is presumed a
risk or danger to other children.


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That makes sense under the statutory framework of K.S.A. 65-516(a)(3). We have
already noted that the statute provides that a child-care provider may not knowingly
allow a person who "has committed an act of physical, mental or emotional abuse or
neglect or sexual abuse" to have any involvement with the child-care facility. The statute
also has a second requirement, but it is ministerial, not substantive: the person's name
must also be "listed in the child abuse and neglect registry" maintained by SRS. The
listing requirement suggests nothing more than that SRS has determined by clear and
convincing evidence that the person has committed an act of abuse. See K.A.R. 30-46-15;
K.A.R. 30-46-16. SRS does not suggest otherwise. The listing requirement also allows a
person to obtain removal from the list through expungement after the passage of at least 3
years or upon the discovery of new information. See K.A.R. 30-46-17(a)(1). Nothing in
the language used by our legislature in K.S.A. 65-516(a)(3) even hints that a person may
be involved with a child-care facility—despite having committed at least one act of child
abuse—so long as there hasn't been a separate finding that the person is a danger to all
children.

Of course, SRS does not base its claim on the statutory language. It relies on the
language of K.A.R. 30-46-10(j). That language ("consequently, to pose a danger to
children") simply does not support the SRS position for the reasons we've already
discussed. The district court also considered the provisions of some policy manuals used
internally by SRS. We have not relied upon them because they have not been adopted
under the procedures used to adopt rules and regulations and thus have no legal effect.
See K.S.A. 77-425; Bruns v. Kansas State Bd. of Technical Professions, 255 Kan. 728,
Syl. ¶¶ 1-4, 877 P.2d 391 (1994).

We are unable to give any deference to the SRS interpretation of K.A.R. 30-46-
10(j) because we find no support for it either in the regulation's wording or in the related

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statutory provisions. SRS may have misinterpreted the regulation based on earlier
regulations. Before a 2004 amendment, a person could be "substantiated" as having
committed abuse if it was more likely true than not that the person had committed abuse
(a lesser standard of proof than the present clear-and-convincing-evidence requirement),
K.A.R. 30-46-10(e) (2003), and such a person then could be separately "validated" by a
separate finding "that a substantiated perpetrator poses a danger to children and should
not be permitted to operate, reside in, be employed by, or volunteer" in a child-care
facility. K.A.R. 30-46-10(f) (2003). The current version of K.A.R. 30-46-10(j), adopted
prior to the alleged abuse against L.E.H., eliminates the separate requirement of
validation, explicitly replacing the former term "validated perpetrator" with the terms
"substantiated perpetrator" and "perpetrator." Because no statute or regulation presently
in effect supports the SRS position, we find that the agency erred as a matter of law when
it ruled that a person must be shown to be a danger to children generally before the
person may be substantiated for having committed an act of child abuse.

II. SRS Appears to Have Applied an Incorrect Legal Standard for what Constitutes
Clear and Convincing Evidence, So We Remand for Reconsideration Under the
Proper Standard.

SRS had to determine whether Christopher committed abuse against L.E.H.
K.S.A. 38-1502(b) provides that abuse includes "the infliction of physical, mental or
emotional harm," and an SRS regulation, K.A.R. 30-46-10(a)(2), provides that abuse
includes "any act . . . that results in . . . physical injury." The SRS appeals committee
concluded that L.E.H. sustained "physical injuries to her buttocks," a finding that has not
been appealed. Thus, the only factual matter at issue on appeal is whether that physical
injury was caused by the spanking Christopher gave her.


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To find that substantiated abuse has occurred, SRS requires that the evidence be
clear and convincing. See K.A.R. 30-46-10(j). After the SRS appeals committee made its
decision in this case, our Supreme Court decided In re B.D.-Y., 286 Kan. 686, 187 P.3d
594 (2008), which set out a new standard for determining when evidence meets the level
of clear and convincing proof. Under B.D.-Y., clear and convincing evidence shows that
the truth of the facts asserted is highly probable. 286 Kan. 686, Syl. & 3. The SRS appeals
committee did not provide any description of the way it understood the clear-and-
convincing-evidence standard. In its brief on appeal, SRS argues for a very high standard,
citing a definition from a decades-old edition of Black's Law Dictionary, which defined
"clear and convincing proof" as "proof beyond a reasonable, i.e., a well-founded doubt."
Black's Law Dictionary 317 (rev. 4th ed. 1968). But the Kansas Supreme Court held in
B.D.-Y. that the clear-and-convincing-evidence standard is an intermediate standard of
proof between the preponderance standard (more likely than not) and the beyond-a-
reasonable-doubt standard used in criminal cases and cited in SRS's appellate brief. See
286 Kan. 686, Syl. ¶ 2.

It thus appears likely that the SRS appeals committee applied a more difficult
standard than is required by B.D.-Y. Dr. Parr said in his written report that "these bruises
could only have been caused by someone using significantly excessive force in the
spanking." He then testified that he observed bruising, but no scratches, when he
examined L.E.H. He concluded that the injuries weren't caused by accidental trauma, like
falling on rocks: "I can't think of a scenario where this could occur in an accidental
trauma." Dr. Parr also testified about how he believed the marks shown in a photograph
matched what would have occurred through a spanking.

The SRS appeals committee emphasized in its decision that "Dr. Parr did not
testify with 100 percent certainty that the bruising was caused from a spanking." That

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conclusion is based upon a portion of the cross-examination of Dr. Parr, in which he
refused to accept the SRS attorney's characterization of his earlier testimony:

"Q. I was not able to see the demonstration that you made, so I'm going to walk you
through it again. And it's your contention that you believe that these injuries were caused
by a hand print or a hand spanking?
"A. A hand spanking, yes.
"Q. Where do you see a palm and the fingerprints in this particular picture?
"A. Well, I don't see a palm or fingerprints. What I see is these two parallel lines here
(indicating) which, as I said before, if her buttocks [were] clenched could approximate
somewhat and the palm of the hand could have produced that sort of an injury. And then
these linear marks here (indicating) would be consistent with the fingers.
"Q. So you think these are finger marks?
"A. Correct.
"Q. Not a palm print?
"A. Correct.
"Q. Where's the palm print? Here in the middle?
"A. I think the palm did that. I'm not saying that's a palm print.
"Q. Then what are these over here (indicating)?
"A. Well, those could also be caused by the palm of a hand.
"Q. And these were approximately how old? When did the injuries—
"A. A few days. Less than a week.
"Q. Now, in your testimony before the Court previously you were not as—you said
that there are other circumstances that could have caused these. Do you remember your
testimony?
"A. I can't say that I do.
[Objection omitted.]
. . . .
"Q. So you're unequivocal in your position that these could only have been inflicted
by a spanking to the buttocks?
"A. No, that's not what I said.
"Q. Okay. Then what did you say?

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"A. I said that the injuries are consistent with the—with the little girl's testimony,
what she told me. It wasn't testimony, what she—her history that she gave to me."
(Emphasis added.)

In context, Dr. Parr appears to have testified that it was highly probable that
L.E.H.'s bruising was caused by a spanking. All parties agreed she had been spanked, and
everyone agreed that Christopher had spanked her. Dr. Parr did not rule out all other
possibilities, but he could not even think of a way in which the bruising could have been
caused in a nonaccidental manner. No one suggested anyone other than Christopher who
could have intentionally caused any physical injury or harm to L.E.H.

The SRS appeals committee did not provide any indication either how it
understood the clear-and-convincing-evidence standard or why it concluded that the
evidence was insufficient to meet it. Based on our review of the entire record, see K.S.A.
77-621(c)(7), we think it likely that the committee applied a higher, more difficult burden
of proof than called for under B.D.-Y. We do not believe we should analyze that issue
further, however, without a better understanding of the position of the appeals committee.
After all, it is the responsibility of the administrative agency, not this court, to make the
factual findings in this case. When we perceive that the agency's factual findings have
been made under an incorrect standard, however, we may remand the matter to the
agency for reconsideration under the correct standard. E.g., In re Tax Appeal of Colorado
Interstate Gas Co., 270 Kan. 303, 321, 14 P.3d 1099 (2000); see Frick v. City of Salina,
289 Kan. 1, 24, 208 P.3d 739 (2009); State v. Toevs, 2008 WL 5401488, at *2 (Kan. App.
2008) (unpublished opinion); Berberich v. U.S.D. No. 609. S.E. Ks. Reg. Educ. Center,
2007 WL 3341766, at *2 (Kan. App. 2007) (unpublished opinion). Without a better
understanding of the basis for the agency's conclusion in this case, we are unable to
analyze fully whether the agency's factual findings are supported by substantial evidence

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in light of the whole record, K.S.A. 77-621(c)(7), or whether the agency's action is
"otherwise unreasonable, arbitrary, or capricious." K.S.A. 77-621(c)(8).

III. No Other Issues of Merit Require Our Ruling.

Donna has raised several other issues on appeal, but no issue of potential merit
requires a ruling from us at this time. First, she claims that SRS limited the scope of the
record before the hearing officer but then expanded the record to other matters before the
appeals committee. But she has not provided a citation to the documents that she claims
were wrongly supplied to the appeals committee; her claim fails in the absence of a
citation to the record establishing the error. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d
803 (2008).

Second, she claims that the members of the SRS appeals committee lacked the
competence and expertise appropriate for their task. But she did not present that issue to
the district court, and issues not raised before the district court generally cannot be raised
on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). She has not
claimed the application of any exception to that general rule. See In re Estate of
Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 129 S. Ct. 1320
(2009).

Last, she claims that the district court failed to award her costs and fees. Of course,
the district court did not rule in her favor; instead, it said that Donna could request relief
after the appeal was completed in the event this court ruled in her favor. We will send the
case back to the district court with directions to consider any award of fees and costs that
may be appropriate. We express no opinion about whether that issue would be properly
considered before a further ruling on the merits by the agency in response to our decision.

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We also note that because Donna has been successful on this appeal, she is entitled to
recover the docket fee and any transcript expenses incurred in the appeal under Supreme
Court Rule 7.07(a) (2009 Kan. Ct. R. Annot. 61).

CONCLUSION

The SRS appeals committee refused to find substantiated child abuse for two
reasons. We have found that its first reason—that the perpetrator must first be shown a
danger to all children—was based on an incorrect understanding of the law. We are
unable to determine whether its second reason—that it had not been shown by clear and
convincing evidence that L.E.H.'s physical injuries were caused by Christopher's
spanking—was based on the proper evidentiary standard. We therefore reverse the
district court's judgment affirming the agency decision, vacate the agency's decision, and
remand the case for further consideration. We remand the case first to the district court to
consider any issues of the award of fees or costs that may properly be before it; we then
direct the district court to remand the case to the agency for further consideration in light
of the clear-and-convincing evidence standard set out in B.D.-Y. and the rulings made in
this opinion.