Phillip B. v. adcs/faust

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PHILLIP B., Appellant,

v.

ARIZONA DEPARTMENT OF CHILD SAFETY; MIKE FAUST,
as Director of Arizona Department of Child Safety, Appellees.

No. 1 CA-CV 20-0569
FILED 6-14-2022

Appeal from the Superior Court in Maricopa County
No. LC2019-000306-001
The Honorable Douglas Gerlach, Judge Retired

REVERSED AND REMANDED

COUNSEL

Pacific Legal Foundation, Arlington, Virginia
By Aditya Dynar
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellees

Goldwater Institute, Phoenix
By Timothy Sandefur
Counsel for Amicus Curiae
 PHILLIP B. v. ADCS/FAUST
Opinion of the Court

OPINION

Presiding Judge D. Steven Williams delivered the opinion of the court, in
which Vice Chief Judge David B. Gass and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 The Arizona Department of Child Safety (“DCS” or the
“Department”) maintains a Central Registry (“Registry”) of substantiated
reports of child abuse and neglect. A.R.S. § 8-804(A). Placement on the
Registry can, inter alia, disqualify an individual from obtaining or
maintaining various licenses, certifications, or employment in working
with children. In this appeal, we are tasked with interpreting the definition
of a ”substantiated finding” of child abuse or neglect under the Arizona
Administrative Code (“A.A.C.”) R21-1-501(17)(a), warranting placement of
an individual on the Registry. For reasons that follow, we reverse the
superior court’s order affirming the Department’s decision to place Phillip
B. on the Registry and direct DCS to remove Phillip B.’s name from the
Registry for the alleged conduct giving rise to this appeal.

FACTUAL AND PROCEDURAL HISTORY

¶2 For nearly three decades Phillip B. has worked with children
in various capacities, including as a teacher and as an athletic coach. From
2010 until 2018 he worked as a caregiver at a group home. One June day in
2018, a minor resident became agitated, refused to do chores, and refused
to follow instructions given by the caregivers. In an attempt to calm him,
Phillip B. placed his hand on the minor’s shoulder and held onto his shirt
for several minutes while speaking with the minor and trying to get him to
sit in a chair. Three others witnessed the incident: two group home
residents (who were also minors) and one adult caregiver, Lam L. No one
disputed the minor’s tee-shirt was ripped at the neck during the incident.
However, the witnesses’ recollections diverge at that point. The group
home residents, including the minor, told an interviewer that Phillip B.
used his forearm or hand to put pressure on the minor’s neck so that he had
trouble breathing; they accused Phillip B. of choking the minor. Phillip B.
and Lam L., however, denied that Phillip B. put his arm, hand, or pressure
on the minor’s neck and denied that the minor had any trouble breathing
during the incident. Eventually, the minor calmed down, and Phillip B. and
the minor apologized to each other for the confrontation.

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Opinion of the Court

¶3 Several weeks after the incident, one of the group home
resident witnesses reported the incident to the DCS hotline for child abuse.
A DCS caseworker investigated by interviewing all five persons present at
the incident. The caseworker made notes about her interviews,
summarizing what the witnesses told her. Based upon that investigation,
the DCS Protective Services Review Team (“PSRT”) found probable cause
that Phillip B. abused the minor and proposed to make an entry to the
Registry that Phillip B. caused the minor to have difficulty breathing by
placing pressure on his neck with his forearm. The PSRT notified Phillip B.
of the proposed finding, and Phillip B. requested a hearing to require the
Department to show probable cause for the entry.

¶4 At the hearing before an Administrative Law Judge (“ALJ”)
with the Office of Administrative Hearings, the Department presented the
caseworker’s notes of the interviews as evidence of probable cause.
Foundation for the caseworker’s notes was provided by testimony from a
Regional Review Specialist of the PSRT, not the caseworker. Phillip B.
testified on his own behalf, as did the group home manager and Lam L. The
group home manager testified that when he spoke to the minor after the
event, the minor did not say he could not breathe during the incident. Lam
L. testified that Phillip B. held the minor by the shirt, that the minor did not
have difficulty breathing, and that Phillip B. did not use his forearm on the
minor’s neck. Phillip B. testified that he held the minor at “arm’s length”
because he did not want to be “nose-to-nose” with him. He denied choking
the minor. The ALJ issued Findings of Fact, Conclusions of Law, and an
Order in which she summarized the caseworker’s interview notes and the
witness statements reflected in the notes, as well as the testimony at the
hearing. In her decision, the ALJ specifically found that the three adults
who testified at the hearing were credible. She, therefore, found no probable
cause existed to substantiate the allegation of abuse against Phillip B.

¶5 The DCS Director, acting under authority of A.R.S.
§ 41-1092.08(B), issued a Decision and Order (“Director’s Decision”) in
which he partially accepted, partially rejected, and modified the ALJ’s
findings and conclusions.1 The Director adopted all but two of the ALJ’s

1 Phillip B. has not argued, either in the superior court or in this court
(except untimely in his reply brief), that the Director has no statutory
authority to accept, reject, or modify an ALJ order regarding substantiation
of a proposed entry to the Registry under the language of A.R.S. § 8-811(K).
See Joseph V. v. McKay, 1 CA-CV 17-0052, 2018 WL 4208988, at *5-6,
¶¶ 34-35 (Ariz. App. Sept. 4, 2018) (mem. decision) (Perkins, J., specially

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Opinion of the Court

factual findings without modification. The accepted findings included the
statements of the minor and two group home resident witnesses, as well as
the testimony of the two adult caregivers and the group home manager.
The Director pointed out that the group home resident witnesses’
statements contradicted the two adult caregivers’ testimony. The Director
“deleted” the ALJ’s finding that the three adults were credible. The Director
specifically rejected Phillip B.’s and Lam L.’s “denials,” stating that the
“denials” were “unavailing and not supported [by] the evidence.” The
Director’s Decision substantiated the allegation against Phillip B. and
ordered his name be entered in the Registry.

¶6 Phillip B. filed a judicial review action in superior court. He
argued that the probable cause standard of proof used at the hearing and
the authority of the Director to modify an ALJ’s findings violate due process
of law. He also argued that allowing DCS to define “probable cause” in its
rules, hold hearings to enforce that standard, and make the final decision
about whether that standard has been met violates the constitutional
doctrine of separation of powers. He requested a trial de novo under A.R.S.
§ 12-910(C), to submit additional evidence under A.R.S. § 12-910(B), and to
stay the implementation of the Director’s Decision. The superior court
rejected those arguments, denied those requests, found substantial
evidence in the record for the Director’s Decision, and affirmed the
Director’s Decision.

¶7 This appeal followed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-913, -120.21(A)(1),
and -2101(A)(1).

DISCUSSION

I. Standard of Review

¶8 On appeal from a superior court’s review of an administrative
action, we directly review the Director’s Decision and are not bound by the
superior court’s judgment because we examine the same record. See M & M
Auto Storage Pool, Inc. v. Chemical Waste Mgmt., Inc., 164 Ariz. 139, 143 (App.
1990). Like the superior court, we will uphold the Director’s Decision unless
it is “contrary to law, is not supported by substantial evidence, is arbitrary

concurring) (positing that A.R.S. § 8-811(K) can be construed to make the
ALJ’s order final and not able to be modified by the Director). We therefore
accept the Director’s authority to do so for the purposes of this appeal and
do not address that issue here.

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and capricious or is an abuse of discretion.”See A.R.S. § 12-910(F); Gaveck v.
Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436, ¶¶ 11-12 (App. 2009).
We do not independently weigh the evidence; we instead determine
whether there was substantial evidence to support the agency’s decision.
Havasu Heights Ranch and Dev. Corp. v. Desert Valley Wood Products, Inc., 167
Ariz. 383, 387 (App. 1990). But we apply our own judgment as to questions
of law. Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13 (App. 2007).

II. Substantiated Findings

¶9 As he did in superior court, Phillip B. asserts multiple errors
by the Director in substantiating the allegations against him and entering
his name on the Registry. One of Phillip B.’s arguments challenges the
Director’s authority to place his name on the Registry under the DCS
regulatory rules, specifically A.A.C. R21-1-501(17)(a), when an ALJ has not
found probable cause at a hearing. He argues the Department’s rules only
allow entry in the Registry when an ALJ finds probable cause and the
Director accepts that decision, which did not occur here. We agree.

A. Waiver

¶10 The Director argues that the issue has been waived on appeal
because it was not properly raised in the superior court. The superior court
found that Phillip B.’s argument based on the Department’s definition of
“substantiated finding” under A.A.C. R21-1-501(17)(a) was raised initially
during oral argument in the superior court. However, the court then
conceded the issue had also been mentioned in a footnote in Phillip B.’s
opening brief. The court concluded the issue had not been sufficiently
preserved by the footnote, and ruled that alternatively it had not been
developed enough in the briefs to warrant consideration. The superior
court, therefore, considered that argument waived.

¶11 Arguing that this court should treat the issue as waived on
appeal, the Director relies on Harris v. Cochise Health Sys., 215 Ariz. 344
(App. 2007). In Harris, the appellant challenged the dismissal of his
complaint on different grounds than he had asserted to the trial court. Id. at
349, ¶ 16. This court noted the general rule that an appellate court will not
consider issues raised for the first time on appeal. Id. at ¶ 17. However, we
also noted there are exceptions to this rule, as the rule is “procedural rather
than jurisdictional.” Id. at 350, ¶ 19. We have discretion to hear arguments
first raised on appeal. See Liristis v. Am. Family Mut. Ins. Co., 204 Ariz. 140,
143, ¶ 11 (App. 2002). We have also said that if “application of a legal
principle, even if not raised below, would dispose of an action on appeal

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and correctly explain the law, it is appropriate for us to consider the issue.”
Evenstad v. State, 178 Ariz. 578, 582 (App. 1993). An exception to the rule is
especially appropriate where the issue is of a general public nature that
affects the state at large, Town of S. Tucson v. Bd. of Supervisors of Pima Cnty.,
52 Ariz. 575, 583 (1938), where the issue is one of interpretation and
application of statutes or rules, see Evenstad, 178 Ariz. at 582, and where
justice requires it, Liristis, 204 Ariz. at 143, ¶ 11.

¶12 Whether Phillip B. waived his argument in the superior court,
or whether he did not, we are not persuaded it should be treated as waived
on appeal because the issue has been fully developed in the opening,
answering, and reply briefs, is of statewide importance, and “the public
interest is better served by having the issue considered rather than
deferred.” Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482 (1986). We
therefore address the merits of Phillip B.’s argument that, under DCS rules,
the allegation against him cannot be entered into the Registry because the
ALJ did not find probable cause.

B. Merits

¶13 The substantiation process as set forth by the Department’s
rules provides that after the investigation is completed and the Department
believes probable cause exists, the PSRT notifies the accused that the
Department intends to substantiate the finding and informs him of the right
to a probable cause hearing. A.A.C. R21-1-502. If the accused timely
requests a hearing2 and is not legally excluded from a hearing,3 an ALJ
conducts the hearing. A.R.S. § 8-811(J). At the hearing, the ALJ is asked to
determine if the proposed finding of abuse or neglect is “true by a probable
cause standard of proof.” A.A.C. R21-1-501(17)(a). If the ALJ finds probable
cause, the Director is asked to review the ALJ’s determination and, if
appropriate, “accept[] the decision.” A.A.C. R21-1-501(17)(a).

¶14 Thus, when a hearing is held, only if both conditions are met
– (1) an ALJ’s finding of probable cause and (2) the Director’s acceptance of

2 A.A.C. R21-1-503 provides twenty days from PSRT notification in which
to timely request a hearing.

3A person is excluded from a hearing if the same issue of abuse or neglect
has been ruled upon or is pending in another proceeding. A.R.S. § 8-811(F);
A.A.C. R21-1-505.

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the ALJ’s finding of probable cause – is a finding “substantiated” and
entered into the Registry. See A.A.C. R21-1-508(B).

¶15 Here, neither of the two prerequisite events happened. The
ALJ did not find probable cause following the hearing and the Director did
not accept the ALJ decision. Thus, the Director’s Decision is not (and could
not be) a substantiated finding under A.A.C. R21-1-501(17)(a) and does not
meet the requirements for entry into the Registry under A.A.C. R21-1-508.
For this reason, the allegation against Phillip B. should not have been
entered.

¶16 The Director admits the proposed finding against Phillip B.
does not meet the rule’s requirements stated above for Registry entry, but
argues he has authority to enter it anyway. He argues that because A.A.C.
R21-1-501(17)(a) does not address the situation at hand—namely, when an
ALJ has not found probable cause but upon review the Director has—it is
therefore ambiguous. We cannot agree. The definition of “substantiated
finding” in A.A.C. R21-1-501(17)(a) is clear and specific. There are three
ways a substantiated finding is created: (a) an ALJ finding of probable cause
and acceptance by the Director; (b) a failure to timely appeal the proposed
finding; and (c) exclusion from a hearing. A.A.C. R21-1-501(17)(a). These
three avenues are repeated when the Department provides for entry into
the Registry in A.A.C. R21-1-508(A), (B), and (D). Indeed, A.A.C.
R21-1-508(B) provides that entry in the Registry shall be made when the
ALJ finds probable cause and the Director accepts it.4 This rule is consistent
with A.A.C. R21-1-501(17)(a).5 The failure to include the circumstance
presented by this case within A.A.C. R21-1-501(17)(a) does not make the
rule ambiguous. It simply means that this case does not fall within the
Department’s definition of ”substantiated finding.”

¶17 Neither are we persuaded by the argument that “[b]y
necessary implication, the Director’s [rejection of the ALJ’s finding of no
probable cause] creates a substantiated finding under A.A.C.
R21-1-501(17)(a).” Just because the Director may have authority to accept,
reject, or modify an ALJ’s findings does not negate the clear definition of
“substantiated finding” promulgated by the Department itself. That

4The rule uses the phrase “administrative decision” but the only reasonable
interpretation is that it means the ALJ decision.

5This rule is also consistent with A.R.S. § 8-811(K), which states that if the
ALJ finds probable cause, the allegation shall be substantiated and the entry
made in the Registry.

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definition clearly excludes the circumstance in Phillip B.’s case. We will not
assume the Department meant something other than what is stated clearly
in the rule. See Sell v. Gama, 231 Ariz. 323, 327 ¶ 16 (2013) (“‘When the plain
text of a statute is clear and unambiguous,’ it controls unless an absurdity
or constitutional violation results.” (quoting State v. Christian, 205 Ariz. 64,
66 ¶ 6 (2003))); see also Stapert v. Arizona Bd. of Psychologist Examiners, 210
Ariz. 177, 180, ¶ 7 (App. 2005) (“The rules for interpreting statutes apply
equally to administrative regulations.”).

¶18 We hold that, under the Department’s regulatory rules, there
is no substantiated finding to enter into the Registry in this case. Therefore,
the Director’s Decision ordering entry into the Registry cannot serve as a
basis to enter Phillip B.’s name into the Registry for the proposed
allegations.

III. Other Issues Raised by Phillip B.

¶19 As noted above, Phillip B. has argued that other errors were
made, including violations of the Arizona and United States Constitutions.
Given our holding, we need not address those issues. Because of our
disposition of the case, we need not address Phillip B.’s arguments
regarding the superior court’s denial of trial de novo, denial of his request
to add to the record, and denial of a stay by the superior court. In addition,
Arizona courts will generally not reach constitutional questions if a case can
be fairly decided on nonconstitutional grounds. Brush & Nib Studio, LC
v. City of Phoenix, 247 Ariz. 269, 281, ¶ 43 (2019). Since we have decided this
case on nonconstitutional grounds, we decline to address the remaining
arguments raised by Phillip B.

IV. Attorney’s Fees and Costs on Appeal

¶20 Phillip B. requests attorney’s fees and costs under A.R.S.
§§ 41-1001.01 and 12-348.6 Section 12-348(A)(2) authorizes an award of fees
to a prevailing party in a judicial review action. Because Phillip B. has
prevailed in this matter, he is entitled to an award of fees and costs barring
any exceptions, limitations, or reductions provided for in A.R.S.
§ 12-348(C). We will take up that issue and any other objections upon a

6 Phillip B. also invokes the “private attorney general” doctrine but
provides no authority in support of entitlement under that theory.
Therefore, fees under that theory will not be addressed and are denied. See
ARCAP 21(a)(2) (notice of claim for fees must specifically state the
authority, including decisional law, upon which it is based).

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Opinion of the Court

timely fee request in compliance with Arizona Rule of Civil Appellate
Procedure 21.

CONCLUSION

¶21 Because the Director’s Decision here does not meet the
regulatory requirements for a substantiated finding, there is no legal
authority for the Director to enter Phillip B.’s name into the Registry.
Accordingly, we remand this case and direct DCS to remove Phillip B.’s
name from the Registry for the alleged conduct in this appeal.

AMY M. WOOD • Clerk of the Court
FILED: AA

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