Romero v. Colo. Dep't of Human Servs.

417 P.3d 914

Steven ROMERO, Plaintiff-Appellee,

v.COLORADO DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant.

Court of Appeals No. 16CA2159

Colorado Court of Appeals, Division VI.

Announced January 11, 2018

Bauer & Furman, P.C., Steven M. Furman, Fort Morgan, Colorado, for Plaintiff-Appellee

Cynthia H. Coffman, Attorney General, Theodore A. B. McCombs, Assistant Attorney General, Denver, Colorado, for Defendant-Appellant

Opinion by CHIEF JUDGE LOEB

¶ 1 In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that plaintiff, Steven Romero, sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry, known as Trails. Romero appealed DHS's confirmations pursuant to Colorado's State Administrative Procedure Act (APA). §§ 24-4-101 to - 204, C.R.S. 2017. An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHS's confirmation decisions. DHS appealed, and defendant, Colorado Department of Human Services (Department), reversed the ALJ's initial decision, concluding that the evidentiary facts, including an adverse inference based on Romero's invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren.

¶ 2 Romero appealed to the district court, which reversed the Department's final decision, and the Department now appeals the district court's judgment.¹ Because we conclude that the Department properly applied an adverse inference to Romero's invocation of his Fifth Amendment rights and did not otherwise err in its final decision, we reverse the district court's judgment.

I. Procedural History and Background

¶ 3 The following facts and procedural history are taken from the administrative record in this case.

¶ 4 In 2014, L.R. (mother)² brought her three-year-old daughter, K.P., to the doctor for pain and swelling around her vagina. The medical personnel asked mother if K.P. had been sexually abused and ran tests for various sexually transmitted diseases, all of which were negative.³ Mother asked K.P. the next day if anyone had touched her in a "bad spot," and K.P. answered "Papa," referring to Romero. K.P. disclosed that Romero touched her "front butt" with his hand. And, in a later statement, she stated that Romero had put his fingers in her "front butt." The record also includes copies of an anatomically correct drawing where K.P. pointed to the vaginal area when asked where the "front butt" was.

¶ 5 At the time of K.P.'s disclosure, mother, K.P., and mother's older child, A.R., lived with Romero and the children's maternal grandmother, who was also Romero's common law wife (grandmother). After K.P.'s disclosure, grandmother alerted mother to Romero's potential abuse of A.R. Mother reported the potential abuse of K.P. and A.R. to the Morgan County Department of Human Services. However, Romero was the director of that office at the time, so the case was referred to DHS in Larimer County. DHS began an investigation of the alleged abuse simultaneously with a criminal investigation by law enforcement.⁴

¶ 6 Both children were forensically interviewed, and A.R. was interviewed twice. A.R. was very reluctant in his interviews, and neither interview disclosed improper contact. However, a month later, A.R. disclosed in therapy, through words and pictures, that Romero had touched him inappropriately, focusing on an incident in a swimming pool.

A. DHS Decision and Romero's Listing in Trails

¶ 7 Ultimately, DHS found by a preponderance of the evidence that Romero had sexually abused K.P. and A.R. Both of these findings, or "confirmations," were listed in Trails.

¶ 8 Romero timely appealed the confirmations to the Department's Child Abuse/Neglect Dispute Review Section. The Department referred Romero's appeal to an ALJ.

¶ 9 As part of the discovery process for the administrative appeal, DHS deposed Romero. Romero was represented by counsel and answered a few questions about his education and background, but he invoked his Fifth Amendment right to remain silent on the advice of his attorney for the remainder of the deposition. The questions bore heavily on whether Romero sexually abused his grandchildren, including such direct questions as whether Romero touched K.P. and A.R. in intimate areas and whether those touches were for Romero's sexual gratification. It is clear from the deposition transcript that Romero invoked the Fifth Amendment to protect himself in the ongoing criminal investigation into A.R.'s and K.P.'s allegations of sexual abuse.⁵

B. ALJ Hearing and Initial Decision

¶ 10 At the hearing, the ALJ heard testimony from mother; grandmother; the medical personnel who initially treated K.P.; the children's therapist, Cassie Potts; and a clinical and forensic psychologist, Dr. Richard Spiegle. Dr. Spiegle was the only witness called by Romero; Romero did not otherwise present evidence disputing DHS's proffered evidence.

¶ 11 The forensic interviews as well as the transcript of Romero's deposition were admitted into evidence at the hearing. During closing arguments, DHS requested that the ALJ make an adverse inference regarding the questions that Romero declined to answer based on his invocation of the Fifth Amendment.

¶ 12 The ALJ made numerous findings of evidentiary fact and reversed DHS's confirmations as to the ultimate conclusion that Romero was responsible for sexual abuse of his grandchildren.

¶ 13 Because the Department and this court must defer to the ALJ's findings of evidentiary or historical fact, we detail those findings here.

• Romero is the grandfather of K.P. and A.R.• A.R. was living with Romero and grandmother, and Romero was A.R.'s legal guardian.

• A.R. had been suffering from encopresis⁶ since sometime in 2012.

• At the time of the allegations, K.P. and mother were also living with Romero and grandmother.

• While A.R. and K.P. were living under Romero's roof, they often slept in the same bed with Romero.

• Mother took K.P. to see a pediatrician because of a bumpy rash on her inner thighs and pain and swelling in her vaginal area.

• The doctor and nurse practitioner who treated K.P. asked mother if K.P. had been sexually abused and ran tests to determine if K.P. had a sexually transmitted disease. However, no cause for the rash or swelling was ever "medically determined."

• The doctor testified that K.P. was more scared or worried by the doctor's examination of her groin than is typical for a child of her age.

• Grandmother alerted mother to Romero's potential abuse of A.R., centered on an incident in a swimming pool.

• K.P. stated that Romero touched her "front butt" and put his fingers in her "front butt," but K.P.'s forensic interview was inconclusive.

• A.R.'s first forensic interview did not disclose any inappropriate touching.

• After the first forensic interview, A.R. disclosed that Romero touched him on his butt in the pool. A.R. was forensically interviewed a second time, but the ALJ determined that the second interview was tainted by leading questions.

• Both children began counseling with Potts, a therapist at Sexual Abuse Response Associates specializing in trauma. A.R. was having issues with nightmares, avoidance, shyness, sleeplessness, and difficulty focusing. Potts testified that she believed these symptoms were associated with past trauma.

• After fifteen sessions with Potts, A.R. drew a picture with stick figures of himself and Romero in a pool and described Romero touching him over his clothes. A.R. also wrote a letter to Romero that began with "why did you tuch me?" He also wrote that "in the pool grampa dad did tuched me on butt with his finger it hert." Similarly, he drew a picture of him and Romero in the pool and wrote at the bottom "tuch me in swimming pool over close."

• K.P. engaged in play therapy with Potts, and during the therapy K.P. used anatomically correct dolls in sexual positions.

• After the allegations and commencement of the investigation, Romero voluntarily relinquished his guardianship of A.R.

¶ 14 Dr. Spiegle testified that A.R.'s shyness could be attributed to encopresis. He further testified that if the encopresis was brought on by emotional turmoil, that turmoil could have derived from mother's inconsistent presence in A.R.'s life. However, Dr. Spiegle also admitted that sexual abuse could contribute to the onset of encopresis in a child.

¶ 15 The ALJ ultimately concluded that DHS "failed to establish by a preponderance of the evidence that [Romero] is a person responsible for incidents of child abuse or neglect." In making that conclusion, the ALJ emphasized the following:

• The medical examination of K.P. did not reveal the cause of the bumpy rash and pain in her genital area, although there was suspicion that they resulted from abuse.

• K.P. is very young and her forensic interview reflected her "immaturity." Her accounts were inconsistent and confusing.

• Regarding both children, there was no evidence that any contact occurred with the requisite purpose of sexual arousal, gratification, or abuse. §§ 18-3-401(4), - 405, C.R.S. 2017.

• Regarding A.R., neither forensic interview revealed any inappropriate touching and his drawings were inconclusive, even with the testimony of Potts.

• Dr. Spiegle's testimony indicated that A.R.'s encopresis could have been triggered by emotional issues with mother, not Romero.

• The ALJ opined that "the evidence does not preponderate on such an important issue as is presented here."

¶ 16 In the initial decision, the ALJ made no reference to the Department's request for an adverse inference.

C. DHS's Appeal to the Department

¶ 17 DHS appealed the ALJ's order to the Department for a final decision. DHS argued that the ALJ erred in failing to draw an adverse inference from Romero's invocation of his Fifth Amendment right against self-incrimination. Specifically, DHS argued that the...