dissenting. I respectfully dissent. I agree with the circuit court and the court of appeals that the ALJ’s decision is not supported by substantial evidence. In this case, the majority agrees “with the ALJ’s findings that, under Ark. Code Arm. § 12-12-503(12)(G), the Bixlers’ failure to appropriately supervise their children resulted in the children being left alone in inappropriate circumstances that put them in danger.” (Emphasis added.) The majority goes on to construe the word danger to include potential and actual danger, particularly in the context of child-maltreatment cases. Then, the majority holds that “the Bixlers’ allowing their children to stay overnight at the house of a known sex offender without another adult present constitutes a potential danger to their children.” The problem with this holding is that the ALJ never made a finding that the Bixlers’ actions put their children in danger. Rather, the ALJ concluded:
... I find that the Petitioners’ actions in this matter constitute a violation of Ark. Code Ann. § 12-12-503(12)(G) because the Petitioners allowed their children to be left alone overnight in inappropriate circumstances; i.e., the home of a convicted sexual offender.
It is not for this court to act as a fact finder and, certainly, this court cannot affirm a finding that was never made by the ALJ.
Even assuming that there is an implied finding that the Bixlers’ actions put their children in danger, I still disagree with the majority’s conclusion that there is substantial evidence of a violation of Ark. Code Ann. § 12-12-503(12)(G). DHS points out that “[t]here are no bright lines to determine what are inappropriate circumstances, or what constitutes an unreasonable danger.” The crux of DHS’s argument is that even though the Bixlers had no specific information about Roger’s conviction, they should have at least inquired as to the nature of Roger’s offense. This argument suggests that this proceeding would not have occurred had the Bixlers made the inquiry first and then made the decision to allow their children to spend the night with their step-grandfather. In addition, it appears that DHS is arguing that with the information gained from an inquiry, i.e., the facts and circumstances surrounding the conviction, the Bixlers would have or should have known that it would be neglectful to leave the children alone with Roger. I might agree with DHS if I had before me the facts and circumstances surrounding the conviction; however, since DHS failed to present that evidence at the hearing, I cannot agree.
In support of its argument that the ALJ’s decision was supported by substantial evidence, DHS claims that “because [Roger’s] crime involved his eleven and twelve-year-old relatives, the ALJ correctly found that allowing the children to stay in [Roger’s] home was unreasonably inappropriate and dangerous.” During the telephone hearing, the following colloquy took place between DHS counsel and Sharon Bixler:
Q: Were you aware that he’d gone to prison?
A: I’d only heard rumors there.
Q: Okay, did you ever ask Mr. Bonds... or Mrs. Bonds, the grandmother, for more information?
A: No.
Q: Okay. Um, why not?
A: Because the way I see it, people wanted to tell me, they would tell me but if I had seen after rumors I had heard, if I’d seen or felt like Mr. Bonds was a threat to me or my children in any way there would be no way on earth I would have let them gone near him but I did not feel like there was a threat.
Q: Okay, but my question to you is how could you make a decision that he was not a danger to your children if you didn’t know the details of what he had done to other children? You didn’t know the details, could you really say for sure whether or not he was a danger?
A: It was just a feeling I had about him.
Q: Oh. Um, as far as your opinion that he was not a danger, I want to test that opinion a little bit more. What if you had asked him about the details or you had found out the details from someone and they, the details were his victims were eleven and twelve-year-old girls that he was somehow related to?
A: Yes.
Q: Would that have changed your opinion as to whether or not he was dangerous to your eleven and twelve-year-old girls?
A: It would have a strong effect on what I thought about him.
In their brief on appeal, the Bixlers take issue with DHS’s assertion on appeal that Roger’s conviction involved his eleven and twelve-year-old relatives. The Bixlers state that the record contains no such information, and that the question at the hearing regarding eleven and twelve-year-old girls was posed merely as a hypothetical question by the DHS attorney. DHS offers no response to this argument. Was the question a hypothetical, or was the question supported by the facts and circumstances surrounding Roger’s conviction? We do not know because the record contains no evidence of the facts and circumstances surrounding the conviction.
The Bixlers contend that by finding them in violation of Ark. Code Ann. § 12-12-503(12)(G), the ALJ held them to a burden of discovering the nature and circumstances of Roger’s conviction, but allowed DHS to present no evidence of it. I agree. Simply put, DHS failed to meet its burden of proof. Both the circuit court and the court of appeals recognized this, and I fail to understand why the majority of this court does not. Because I believe there is insufficient evidence to support the ALJ’s decision that the Bixlers neglected their children as defined in § 12-12-503(12)(G) and that the Bixlers’ names shall be permanently placed on the Arkansas Child Maltreatment Central Registry, I would reverse.