concurring and dissenting. I agree with the majority that the administrative law judge (ALJ) erred in determining that the Batiste children were not in the custody of appellee Arkansas Department of Human Services (DHS) at the time of the adoption. However, I dissent from that part of the majority’s opinion where it reaches the merits of the Batistes’ claim that DHS had a duty to inform them of the availability of an adoption subsidy and failed to do so. The reason I dissent is that the issue of duty-to-inform was raised to the ALJ by the Batistes, but she never ruled on it. I would remand this case to allow the ALJ to make a determination, both with respect to the law and the facts.
As the majority notes in this case, the ALJ first determined that the Batistes were not entitled to the state adoption subsidy, because the children were not in the custody of DHS at the time of the adoption. This was error; yet this is the reason the ALJ never ruled on whether the Batistes were informed of an available adoption subsidy. Nevertheless, the majority goes forward and decides the legal issue of whether DHS had a legal duty to advise the Batistes of the subsidy pre-adoption under federal regulations, state law, and a U.S. Department of Health and Human Services policy announcement. The majority concludes that failure to notify of the subsidy is an extenuating circumstance that warrants a fair hearing under the policy announcement. After deciding the legal question, the majority remands so that the ALJ can decide the factual issue of whether the Batistes were notified by DHS of the subsidy.
There is no dispute that the ALJ never ruled on the legal issues now decided by the majority opinion. By deciding these issues, the majority usurps the role of the ALJ after noting in its opinion that this court has historically deferred to administrative agencies. The majority states that these agencies are better equipped by specialization, possess insight through experience, and use more flexible procedures than courts to determine and analyze legal issues affecting their agencies. The majority then cites authority to that effect. See Ford Motor Co. v. Arkansas Motor Veh. Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004); Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). The majority also refers to Ark. Code Ann. § 25-15-212(h) (Repl. 2002), which sets out the criteria for judicial review. The criteria include an agency decision in violation of statutory authority or otherwise in violation of the law. See Ark. Code Ann. § 25-15-212(h) (1)-(4) (Repl. 2002). This presupposes that the administrative agencies decided the legal issues first. That, of course, has not been done in the instant case. In addition, Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002), requires that an agency’s final decision include findings of fact and conclusions of law. See Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002).
Moreover, I would do a general remand to the ALJ so that she may also rule on the issue of adoption subsidies in connection with the post traumatic stress syndrome of one child, the blindness of another child, and the asthmatic condition of a third. There is no question but that the Batistes raised these eligibility issues after the adoption took place, and there was no ruling by the ALJ.
For these reasons, I concur in part and dissent in part.
Imber, J., joins.