Atkinson v. Ledbetter

Beasley, Judge,

dissenting.

Based on the any evidence rule, the superior court affirmed the Department of Human Resources’ decision to suspend Atkinson’s in*742dividual portion of the Aid to Families of Dependent Children payments which she and her children were receiving. The DHR found that claimant failed to cooperate in establishing paternity for her out-of-wedlock child, Amy, frustrating its efforts to obtain financial aid for that child from the child’s father. See 42 USCA § 602 (a) (26) (B); 45 CFR § 232.12 (a) & (b).

Cooperate, as mandated by 45 CFR 232.12 and defined by this regulation, embraces the obligation of affirmative participation by the claimant in the fact-finding process and the giving of honest answers to relevant questions. Refusing to answer, or giving information which may reasonably be found not credible, are among the responses of the claimant which would constitute refusal to cooperate.

While the initial hearing officer’s two expressly stated findings of fact were deficient as such, he specifically stated that he “carefully considered the entire available evidence” and reached his decision “based on the preponderance of the credible evidence.” He had observed and listened to Atkinson as a witness.

In the final administrative hearing, upon appeal from the live hearing, the officer considered and gave “a careful review” to the entire record; this included “the recorded testimony” and the fact that it was presented live before the initial hearing officer. It is that final agency decision which the superior court affirmed and we review. The administrative appeal officer had “all the powers it would have in making the initial decision,” OCGA § 50-13-17 (a), and thus was authorized to finally determine credibility of the witnesses and weight of the evidence.1

The officer found that the negative report on the HLA test was admissible under OCGA § 50-13-15 (1). Besides the test results and the dismissal, the hearing officer expressly listed four other factors contributing to the finding that claimant failed to cooperate.

1) The stipulation of claimant for the HLA test was that it would be taken and govern. The parties to the paternity proceeding had agreed to be bound by the result of the HLA blood test unless the result was challenged within fifteen days and another test was accomplished at the requesting party’s expense. Claimant did not invoke the opportunity to protest. The hearing officer took into account that claimant cited poverty as an excuse for failing to protest (since an additional test would cost $275) but was of the opinion she at least could have protested and requested additional time for financial help.

2) Robert denied paternity of Amy. Yet he admitted paternity as to another child of claimant. The admission gave strength to his de*743nial, in the hearing officer’s judgment. Moreover, shortly after Amy’s birth, claimant initiated action against Robert but dismissed it. Although claimant asserted she wished to avoid the humiliation and harassment of court proceedings, the hearing officer found her other actions did not indicate a reluctance to invoke the aid of courts or other tribunals.

3) Claimant had a third illegitimate child by another person and admitted a number of close male friends. This would not rule out the possibility of Amy being the result of a “casual relationship with yet another man.”

4) Claimant testified that she and Robert lived together for several years and that their relationship terminated abruptly when he moved in with a neighbor. The hearing officer reasoned that jealousy and anger could be the cause of her accusing Robert.

Based upon all the circumstances, and giving great weight to the blood test results, the administrative officer found claimant “refused to name the correct father of her child Amy, whose identity she must certainly know.” Thus, the officer, like the initial hearing officer who saw and listened to Atkinson, did not believe the claimant and found that the lack of credibility constituted failure to cooperate.

OCGA § 50-13-19 sets the bounds for court review of administrative determinations. The prime caveat regarding review of a final administrative decision is in subsection (h): “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Somewhat analogous are the findings of the full board, which supersede those of the ALJ in workers’ compensation cases and must be upheld if there is “any evidence” to support them. Royal Globe Ins. Co. v. Hartford Ins. Co., 175 Ga. App. 95, 96 (1) (332 SE2d 387) (1985).

1. It was not error to admit the HLA test result. Such eviden-tiary matter falls squarely within the language of OCGA § 50-13-15 (1) permitting the reception of a “medical . . . evaluation of a type routinely submitted to and relied upon by the agency in the normal course of its business.”

This proof was not submitted to conclusively establish that claimant had failed to cooperate, which it did not, but was properly considered as evidence that claimant was not naming the correct father.

2. Beside the result reached by the factfinder that claimant had failed to name the father, there were additional factors which led to the conclusion that claimant’s answers in this crucial area were not credible, and that in this regard she did not cooperate. Considering the record in its entirety, I cannot conclude that the findings of the agency were clearly erroneous. OCGA § 50-13-19 (h) (5). This removes the basis for reversal.

*744Decided July 16, 1987. Patricia D. Barron, for appellant. Michael J. Bowers, Attorney General, Mary Foil Russell, Assistant Attorney General, for appellee.

I am authorized to state that Presiding Judge Deen joins in this dissent.

The case cited by the majority, Crawley v. MARTA, 147 Ga. App. 293 (1) (248 SE2d 555) (1978), does not involve administrative proceedings but rather a jury trial. The administrative appeal officer’s role differs significantly from that of a receiving judge.