ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KIMBERLY KERR

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA 03-733

March 3, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

THIRD DIVISION [CV 02-5275]

HONORABLE JAMES MAXWELL

MOODY, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Following an investigation, appellee, the Arkansas Department of Human Services, determined that appellant, Kimberly Kerr, had engaged in child maltreatment while she was employed by a licensed daycare center. Appellant received written notification of the determination on March 2, 2000. It is undisputed that she did not seek an administrative hearing to challenge the finding of child maltreatment until February 2002. ADHS moved to dismiss appellant's request for a hearing as untimely. The Administrative Law Judge granted the motion. Appellant then appealed that dismissal to the Pulaski County Circuit Court, which affirmed the findings of the ALJ. We affirm.

Appellant was employed by a licensed daycare center in February 2000. One of the two-year-olds at the daycare suffered a broken wrist and told his parents that "Miss Kim" did

it. The incident was investigated by ADHS and the State Police. A letter dated February 24, 2000, and received by appellant on March 2, 2000, provided in pertinent part:

__x__ There was some preponderance of evidence of Child Maltreatment and _ Kim Kerr __ was named as the offender(s).

. . .

If you have been the subject of a true report and you disagree with the assessment determination, you may request an administrative hearing within thirty (30) days of the receipt of the hand delivery or mailing of this notice of determination. Mail your request for an administrative hearing along with a copy of this notice to: Appeals and Hearings Officer, Slot 1001, P.O. Box 1437, Little Rock, AR 72203. See the publication "Child Protective Services: A Caretaker's Guide" (PUB-052) for additional information or call 501-682-2288.

(Emphasis added.)

As a result of this incident, appellant was fired from her daycare job. She began working at Kroger. According to her testimony, she asked a security guard at the Kroger store how she could find out about the status of her case. She stated that she followed his advice, called the police department, and was told that the case had been dropped. She then reported that information to the daycare facility, applied for her old job, and was rehired. As part of the hiring process, the daycare center checked appellant's name with the Child Maltreatment Central Registry and learned that her name was listed in the registry. Although not entirely clear from the testimony at the hearing, it appears that appellant was fired as a result of her name appearing on the registry.

Appellant then sought to appeal the maltreatment determination. Appellee responded that the thirty-day time limit had long expired, and appellant's attorney requested a hearing. At the hearing before the ALJ, Judge Mackey, appellant did not develop nor obtain a ruling on the constitutional issues that she asserts in this appeal, as demonstrated by the following excerpt from that hearing:

[Appellant's Attorney]: . . . Furthermore, I don't mind saying that if this goes to circuit court, I'm going to challenge the constitutionality of the notice. The notice does not give anyone, it doesn't even tell them that their name is on the Central Registry. Furthermore, it doesn't tell them what the consequences are of that. Now, I don't know if this court has the power to declare unconstitutional a statute.

Judge Mackey: It'd be my position that I don't.

[Appellant's attorney]: And in light of that, your honor, I still think you have the authority and I think you have the duty to determine in a particular case, I think you've got the discretion . . . to determine in a particular case, whether this individual got meaningful notice or not and whether she should be held to the statute. And I want to put on evidence to try to persuade the court that in this particular case, the 30-day limitation shouldn't apply. Granted the statute says that it should, but this is why we have hearing officers and judges is to make a determination in a particular case, whether it's fundamentally fair to allow this to apply to her. And I want to put on evidence to the effect that, in fact, she didn't get adequate notice, even though she signed for the green card and received the notice that was sent to her.

[DHS attorney]: I think the State's position would be that, we would feel that [appellant's attorney] should proffer his evidence that he has, but that it shouldn't be put to the hearing officer to make a decision when the statute is clear and I understand that he's saying that you have the discretion to change this and that, but just in the interest of judicial economy of resources, if we did every case like this, we'd never be able to handle it all. There had to be rules and guidelines and, in this case, the rules and guidelines are extremely clear.

Judge Mackey: The date of the notification letter, which is the date that the investigation would have been completed is February 24, 2000, and I understand that it's agreed that she made her appeal on February 27, 2002. So, by that, she's beyond the two-year limitation. I would also find, and this may be unnecessary, but that she's beyond the 30-day limitation, that she received the notice, as I understand, she agreed that she received the notice on March 2, 2000, and didn't file her request for a hearing until February 27, 2002, which is beyond the 30-day limitation as well.

[Appellant's Attorney]: Can I proffer testimony on that?

Judge Mackey: Sure.

(Emphasis added.) Even though appellant then proffered the testimony, there was no development of the constitutional argument. Appellant's counsel did not set forth what is required under case law to satisfy constitutional due-process requirements, did not explain why the statute and the notice at issue did not satisfy those requirements, and did not obtain a ruling on the constitutional challenge.

The ALJ's final order is dated May 6, 2002. On May 15, 2002, appellant petitioned for judicial review in circuit court, asserting her constitutional arguments for the first time. By order dated February 27, 2003, and file-marked March 2, 2003, the trial court denied appellant's administrative appeal, explaining that the "petitioner's only issue before this court is whether the statutory notice set forth in A.C.A. 12-12-512 comports with the Due Process Clause of the 14^th Amendment." The court found that appellant's "due process rights were not violated by the Department of Human Services and that A.C.A. 12-12-512 is not unconstitutional as applied to the facts in this case." This appeal followed.

Points of Appeal  

The trial court erred in finding that the statutory notice provisions in Arkansas Code Annotated section 12-12-512(c)(1)(A) are constitutionally adequate because the statute fails to require notice that the recipient will be put on the child maltreatment central registry and that recipients may be deprived of future employment.

The trial court erred in finding that the notice was constitutionally adequate as it applied to the appellant because neither the appellant nor any other recipient would reasonably understand the implications of the notice.

The trial court erred in finding that the constitutionally defective notice tolled the 30-day and the 2-year limitation periods.

Standard of Review

On appeal from circuit court, our review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Vallaroutto v. Alcoholic Bev. Cntrl. Bd., 81 Ark. App. 318, 101 S.W.3d 836 (2003). We rely heavily upon the principle that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying issues. Id. Judicial review is limited in scope, and the administrative agency decision will be upheld if supported by substantial evidence and not arbitrary, capricious or an abuse of discretion. Id. When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the agency's decision. Id.

Moreover, as our supreme court explained in Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 148, 958 S.W.2d 7, 8-9 (1998):

We first mention our inability to reach, at least directly, the trial court's Equal Protection Clause ruling, because that constitutional issue was never raised before the Commission. In this respect, we cite the settled law in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), where the court of appeals adopted the rule that, even though the Workers' Compensation Commission may not have the authority to declare statutes unconstitutional, such constitutional issues should first be raised at the Administrative Law Judge or Commission level because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can be done only at the hearing level. The Hamilton court concluded that requiring constitutional issues to be considered by the Commission can assure such issues will be thoroughly developed before an appellate court is asked to rule on a statute's validity. The rule in Hamilton has been consistently followed by the court of appeals, see Green v. Smith & Scott Logging, 54 Ark. App. 53, 54, 922 S.W.2d 746 (1996), and we believe the rule is a sound one and applicable here.

Desiderata did not raise its Equal Protection Clause argument until its appeal to circuit court; thus, under the Hamilton rule, it is barred from arguing that issue now.

(Emphasis added.)

Here, each of the three arguments raised by appellant on appeal involve constitutional questions. However, those issues were not properly preserved because she waited to develop them until she reached the circuit court level. These constitutional issues should have been developed at the agency level, which is better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Because that was not done, under the Hamilton rule set forth above, appellant is barred from making those arguments now.

Affirmed.

Bird and Vaught, JJ., agree.