Ansel v. State Dep't of Human Servs.

480 P.3d 758

Amanda ANSEL, Plaintiff-Appellant,

v.State DEPARTMENT OF HUMAN SERVICES, Defendant-Appellee.

Court of Appeals No. 19CA1676

Colorado Court of Appeals, Division VII.

Announced December 17, 2020

As Modified February 11, 2021

Pickard Law, P.C., Joe Pickard, Jay Pickard, Kevin Massaro, Jennifer Gehring, Littleton, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Megan A. Embrey, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE TOW

¶ 1 El Paso County Department of Human Services (the County) found that plaintiff, Amanda Ansel, committed institutional abuse or neglect at her in-home child care facility when a child was injured while in her care. Ansel pursued an administrative appeal challenging the finding, and an administrative law judge (ALJ) agreed that Ansel's actions did not constitute child abuse or neglect. However, the Colorado Department of Human Services (CDHS), in a final agency action issued by CDHS's Office of Appeals, reversed the ALJ. The Office of Appeals issued a final agency decision concluding that Ansel had failed to comply with licensing regulations regarding supervision of children by licensed child care providers and that she had thus committed child abuse as defined in section 19-1-103(1)(a)(III), C.R.S. 2020. After unsuccessfully challenging the final agency decision in district court, Ansel asks us to reverse that decision.

¶ 2 To resolve this appeal, we must interpret the "prudent parent" standard found in section 19-1-103(1)(a)(III), as applied to a licensed child care provider. Contrary to the determination of CDHS and the district court, we conclude that, to support a finding of child abuse or neglect under section 19-1-103(1)(a)(III), the "prudent parent" standard simply requires determining whether a licensed child care provider acted as a prudent parent would have under the circumstances. Because CDHS either misinterpreted the "prudent parent" standard or misapplied the standard to the facts of this case, we reverse the district court's judgment affirming the final agency decision and remand with directions.

I. Background

¶ 3 On July 8, 2016, Ansel was supervising eight children at the family child care program she operated at her residence. At the time, Ansel homeschooled three children and was licensed by CDHS to provide child care from her home for up to five additional children.

¶ 4 One of the children in Ansel's care that day was D.A., an eleven-year-old boy. In the afternoon, D.A. and several other children went outside into Ansel's yard to play a game called "pets" — a game where one child pretends to be a pet while another pretends to be the pet's owner. Ansel stayed inside with the remaining children.

¶ 5 While Ansel was not watching, D.A. found a retractable dog leash and incorporated it into the game by tying it around his neck. He then climbed up onto the roof of a playhouse and accidentally slipped off. Because he had placed the leash handle on a nearby tree branch, the leash tightened around his neck as he fell, causing significant ligature marks. D.A. later reported the he also "saw black" after he fell.

¶ 6 D.A. removed the leash and went inside to inform Ansel what happened. Approximately five minutes had elapsed from when D.A. went outside to play to when D.A. reported the incident to Ansel. Ansel was unaware of the incident until D.A. informed her about it.

¶ 7 Ansel tended to D.A. and contacted his father, who took D.A. to the emergency room. Hospital staff reported the incident to the County. Upon investigation, the County determined that Ansel was responsible for institutional neglect by failing to adequately supervise D.A. The County reported its finding to CDHS's statewide child abuse registry, known as "TRAILS."

¶ 8 Ansel appealed the County's finding of institutional abuse or neglect on the grounds that (1) the finding was not supported by a preponderance of credible evidence and (2) her actions did not meet the statutory or regulatory definitions of child abuse or neglect. A hearing was held before an ALJ, who determined that the licensing rules for child care providers were irrelevant to the standard of care. Rather, the ALJ concluded, the appropriate level of supervision was that which a prudent parent would provide, which in this case would not require constant supervision of an eleven-year-old child playing in a fenced front yard. Because, the ALJ determined, Ansel provided a level of supervision that a prudent parent would have provided, her actions did not constitute child abuse or neglect under the relevant definitions found in section 19-1-103(1)(a)(III) and section 19-3-102(1)(b), C.R.S. 2020. Accordingly, the ALJ issued an initial decision reversing the County's finding.

¶ 9 CDHS filed exceptions to the ALJ's initial decision with CDHS's Office of Appeals, the body within CDHS responsible for final agency actions. CDHS argued that, under the "prudent parent" standard found in section 19-1-103(1)(a)(III), the ALJ was required to consider Ansel's status as a licensed child care provider and determine whether she complied with CDHS licensing rules. By failing to do so, it argued, the ALJ erred in its decision.

¶ 10 The Office of Appeals agreed with CDHS. Specifically, the Office of Appeals concluded that "[t]he ‘parental decisions’ made by [Ansel] and level of supervision must meet child care licensing rules because that is what is reasonable under the circumstances in this case." Because Ansel failed to comply with the licensing rules by (1) not providing "developmentally appropriate" supervision while the child was in the front yard and (2) not knowing the location and activity of all of the children at all times, the Office of Appeals concluded that she failed to meet the standard of the "prudent parent." Dep't of Hum. Servs. Rules 7.707.741.A, 7.707.933.B, 12 Code Colo. Regs. 2509-8. The Office of Appeals thus issued a final agency decision reversing the ALJ's decision and upholding the County's finding.

¶ 11 Ansel sought judicial review of the final agency decision pursuant to section 24-4-106, C.R.S. 2020, arguing that the Office of Appeals erred in interpreting and applying section 19-1-103(1)(a)(III) ’s "prudent parent" standard and that the Office of Appeals overstepped its authority by substituting its own findings of historical fact for those of the ALJ. The district court affirmed the final agency decision.

II. The Office of Appeals Applied the Wrong Legal Standard

A. Standard of Review

¶ 12 On appeal from a district court's review of a final agency action, we apply the same standard of review as the district court — the standard set forth in section 24-4-106(7). § 24-4-106(7), (11)(e) ; Romero v. Colo. Dep't of Hum. Servs. , 2018 COA 2, ¶ 25, 417 P.3d 914. In particular, "[i]n all cases under review, the court shall determine all questions of law and interpret the statutory and constitutional provisions involved and shall apply the interpretation to the facts duly found or established." § 24-4-106(7)(d). As relevant here, we may set aside a final agency action if it is "contrary to law." § 24-4-106(7)(b)(IX).

¶ 13 Additionally, whether the Office of Appeals erred by reversing the ALJ's decision turns on the interpretation of sections 19-1-103(1)(a)(III) and 19-3-102(1)(b), which we review de novo. BP Am. Prod. Co. v. Colo. Dep't of Revenue , 2016 CO 23, ¶ 9, 369 P.3d 281.

B. Applicable Law

¶ 14 The Child Protection Act of 1987 (the Act) creates a structure by which incidents of child abuse are investigated, reported, and documented. §§ 19-3-301 to - 317, C.R.S. 2020. When a county department of human services investigates and confirms an incident of child abuse or neglect, it is statutorily required to submit a report to CDHS. § 19-3-307, C.R.S. 2020. Those found responsible for a confirmed incident of child abuse or neglect are then afforded an opportunity to appeal that finding to CDHS. § 19-3-313.5(3), C.R.S. 2020; Dep't of Hum. Servs. Rule 7.111, 12 Code Colo. Regs. 2509-2. Should CDHS and the appellant be unable or unwilling to resolve the appeal, CDHS "shall forward the appeal to the Office of Administrative Courts to proceed to a fair hearing before an [ALJ]," who issues an initial decision. Dep't of Hum. Servs. Rule 7.111.A, 12 Code Colo. Regs. 2509-2; Dep't of Hum. Servs. Rule 3.850.71, 9 Code Colo. Regs. 2503-8. The Office of Appeals must then review the initial decision of the ALJ and enter a final agency decision affirming, modifying, or reversing the initial decision. Dep't of Hum. Servs. Rule 3.850.72, 9 Code Colo. Regs. 2503-8.

¶ 15 Under CDHS regulations, a party may only appeal a finding of abuse or neglect on two grounds: (1) the finding is "not supported by a preponderance of credible evidence" or (2) "[t]he actions ultimately found to be abusive or neglectful do not meet the statutory or regulatory definitions of child abuse or neglect." Dep't of Hum. Servs. Rules 7.111.B.1, .2, 12 Code Colo. Regs. 2509-2. At issue here is CDHS's finding as to the latter ground for appeal — whether Ansel's actions constituted institutional child abuse or neglect.

¶ 16 For purposes of the Act, "[i]nstitutional abuse" means "any case of abuse, as defined in [ section 19-1-103(1) ], that occurs in any public or private facility in the state that provides child care out of the home, supervision, or maintenance."¹ § 19-1-103(66). The CDHS regulation defining "child abuse and/or neglect" similarly adopts the definition provided in section 19-1-103(1). Dep't of Hum. Servs. Rule 7.000.2.A, 12 Code Colo. Regs. 2509-1. However, it also incorporates the definition found in section 19-3-102(1). Id. Hence, to determine whether Ansel's actions constituted institutional abuse or neglect, the Office of Appeals applied sections 19-1-103(1) and 19-3-102(1).

¶ 17 As relevant here, section 19-1-103(1) defines "abuse" or "child abuse or neglect" as

an act or omission ... that threatens the health or

...