      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-18-00034-CV



               Texas Department of Family and Protective Services, Appellant

                                                   v.

                                           C. A., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. D-1-GN-16-003718, HONORABLE KARIN CRUMP, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Texas Department of Family and Protective Services appeals from a final

judgment of the district court reversing the Department’s order concluding that C.A. “neglected a

child” and that the Department was authorized to list her name in its central registry of reported cases

of child abuse or neglect. See Tex. Fam. Code §§ 261.002 (central registry), .401 (defining “neglect”

for purposes of investigations of neglect in child-care facilities).1 We will reverse the trial court’s

judgment and render judgment affirming the Department’s order.




        1
          Texas Family Code section 261.401 was amended effective September 1, 2017. See Act
of May 24, 2017, 85th Leg., R.S., ch. 1136, §§ 5, 14, 2017 Tex. Gen. Laws 4339, 4342, 4346
(codified at Tex. Fam. Code § 261.401(a), (b)). Citations in this opinion are to the version of section
261.401 in effect at the relevant time period.
                                         BACKGROUND2

               In November 2014, C.A. was employed as a caregiver at a child care center operated

by the YMCA. On November 14, 2014, C.A. and a second caregiver, J.F., were responsible for a

group of eight children they were transporting from the Ambassador Preparatory Academy to a

YMCA facility. On the way to the YMCA facility, C.A. stopped at a nearby park to allow the

children to play. Before leaving the park, C.A. lined the children up to be loaded into the van. J.F.

was at the back of the van loading equipment while C.A. checked off the names of the children

standing in line to board the van. H., a four-year-old child, was in line and was counted. Once C.A.

and J.F. got in the van, neither one of them recounted the children in the van before leaving the park.

After C.A. had driven five blocks away from the park, she asked J.F. to count the children. It was

then that they discovered that H. had been left behind at the park.3 H. was alone and unsupervised

at the park for approximately ten minutes when he was found by a stranger and taken to a nearby

elementary school. C.A. then retrieved H. and took him to the YMCA facility.

               The Department investigated whether C.A. had neglected H. while he was in her

care. See Tex. Fam. Code § 261.401. At the conclusion of its investigation, the Department staff

issued an investigative report and determined that C.A. had neglected H. by leaving him alone and

unattended at a park. See id. § 261.401(a)(3); 40 Tex. Admin. Code § 745.8559 (Dep’t of Family

& Protective Servs., What is neglect?). Based on its finding that C.A. committed neglect, specifically



       2
         The facts recited herein are derived from evidence presented at a contested case hearing held
before an Administrative Law Judge and, unless otherwise indicated, are not disputed by the parties.
       3
          The evidence was conflicting as to whether H. boarded the van and then got off or whether
he failed to board the van at all. It was, however, undisputed that H. was left behind at the park.

                                                  2
neglectful supervision, as defined by the Texas Family Code and the Texas Administrative Code,

the Department placed her name on the Department’s central registry for reported child abuse and

neglect.4 Contesting the finding of neglect and the placement of her name on the registry, C.A. sought

a “due process hearing” in accordance with Department administrative rules. See Tex. Fam. Code

§§ 261.308-.309; 40 Tex. Admin. Code §§ 745.8831-.8855 (Dep’t of Family & Protective Servs.,

Due Process Hearings). The Department referred the case to the State Office of Administrative

Hearings, where a contested case hearing was held before an administrative law judge (ALJ). See

40 Tex. Admin. Code §§ 745.8843-.8845. Following the hearing, the ALJ issued a decision and order,

upholding the decision of the Department. Id. § 745.8849 (providing that “ALJ may uphold, reverse,

or alter [Department’s] decision or action”). In relevant part, the ALJ found the following facts:


       1. On November 14, 2014, C.A. (Petitioner) was employed as a caregiver with
       YMCA Building, a child-care center, and was responsible for supervising Child [H.],
       age 4.

       2. [C.A.] was responsible for transporting the children from the Ambassador
       Preparatory Academy to the center. [C.A.] allowed the children to play at Schreiber
       Park before taking them to the center.

       3. [C.A.] failed to ensure that all children were accounted for before leaving the park
       because she did not recount the children after they were loaded onto the van.


       4
           When the Department makes a “summary finding” that it has “reason to believe” that
an individual is a “designated perpetrator” of “abuse” or “neglect,” see 40 Tex. Admin. Code
§§ 700.511(a)(1) (Dep’t of Family & Protective Servs., Disposition of Allegations of Abuse or
Neglect), .512(b)(2) (Conclusions about Roles), that individual’s name is placed in the Department’s
central registry of reported child abuse and neglect. See Tex. Fam. Code § 261.002(a); 40 Tex.
Admin. Code § 700.104 (Dep’t of Family & Protective Servs., Child Abuse and Neglect Central
Registry). Unless overturned, the individual’s status as a “designated perpetrator” may be disclosed
to third parties, such as licensed child-care facilities investigating the individual’s background for
prospective employment. See Tex. Hum. Res. Code § 42.0445; see also 40 Tex. Admin. Code
§ 745.615 (Dep’t of Family & Protective Servs., On whom must I request background checks?).

                                                  3
       4. Child was left at the park for approximately 10 minutes without supervision.

       5. Child was found by a stranger and taken to an elementary school near the park.

       6. [C.A.] did not realize that Child was unaccounted for until after she had driven
       five blocks away from the park, and then requested her co-worker J.F. to count the
       children.

       7. Petitioner did not maintain proper audio and visual awareness of Child.

       8. During the time the Child was alone and unsupervised, he was placed at risk of
       being kidnapped or struck by a motor vehicle.


Based on these underlying facts, the ALJ concluded that:


       5. [C.A.’s] conduct, evidenced by Finding of Fact Nos. 1-8, meets the definition of
       neglect set out in Texas Family Code § 261.401(a)(3) and 40 Texas Administrative
       Code § 745.8559(3).

       6. Based on Conclusion of Law No. 5, the Department’s finding that [C.A.] neglected
       a child should be sustained.

       7. The Department is authorized to list [C.A.’s] name in its central registry.


C.A. subsequently sought judicial review of the ALJ’s order in district court. See id. §§ 745.8845

(providing that due-process hearing is governed, in part, by chapter 2001 of Texas Government

Code); .8849 (providing that Department will follow decision of ALJ).

               After a hearing, the district court rendered a final judgment in which it found that “no

duty existed for [C.A.] to perform any actions above and beyond those actions taken and supported

in the record” and that C.A. “did not breach any duty under Texas Family Code § 261.401 and

40 Texas Administrative Code §§ 745.8559 and 746.1205.” The district court concluded that the

ALJ’s order was “not reasonably supported by substantial evidence considering the reliable and

                                                  4
probative evidence in the record as a whole” and, consequently, it reversed the ALJ’s order. The

Department then perfected this appeal and, in one issue, argues that the ALJ’s finding of neglectful

supervision was supported by substantial evidence and should be affirmed.


                                     STANDARD OF REVIEW

                Our review of the Department’s order is governed by the same analysis as in the

district court—the “substantial evidence” rule codified in Texas Government Code section 2001.174.

See Tex. Gov’t Code § 2001.174. Under this standard, we must reverse and remand an agency

decision if it prejudices substantial rights because its findings, inferences, conclusions, or decisions

(1) violate a constitutional or statutory provision; (2) exceed statutory authority; (3) were made

through unlawful procedure; (4) were affected by other error of law; (5) are not reasonably supported

by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(6) are arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted

exercise of discretion. Id. Substantial evidence review is essentially a rational-basis test to determine,

as a matter of law, whether an agency’s order finds reasonable support in the record. Employees Ret.

Sys. of Tex. v. Garcia, 454 S.W.3d 121, 132 (Tex. App.—Austin 2014, pet. denied) (citing Texas

Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984)). “The

true test is not whether the agency reached the correct conclusion, but whether some reasonable

basis exists in the record for the action taken by the agency.” Charter Med.-Dallas, 665 S.W.2d

at 452. We apply this analysis without deference to the district court’s judgment. See Texas Dep’t of

Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). We presume that the agency’s

findings, inferences, conclusions, and decisions are supported by substantial evidence, and the

                                                    5
burden is on the party challenging the order to demonstrate otherwise. Slay v. Texas Comm’n on

Envt’l Quality, 351 S.W.3d 532, 549 (Tex. App.—Austin 2011, pet. denied). “Ultimately, we are

concerned not with the correctness of the agency’s decisions, but its reasonableness.” Jenkins v.

Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.).

               Substantial evidence analysis entails two inquiries: (1) whether the agency made

findings of underlying facts that logically support the ultimate facts and legal conclusions

establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the

findings of underlying fact are reasonably supported by evidence. See Vista Med. Ctr. Hosp. v.

Texas Mut. Ins. Co., 416 S.W.3d 11, 26-27 (Tex. App.—Austin 2013, no pet.). The second inquiry,

which has been termed the “crux” of the substantial evidence review, is highly deferential to the

agency’s determination. Garcia, 454 S.W.3d at 132. “[S]ubstantial evidence” in this sense “does

not mean a large or considerable amount of evidence”—in fact, the evidence may even preponderate

against the agency’s finding—but requires only “such relevant evidence as a reasonable mind

might accept as adequate to support a [finding] of fact.” Id. (citing Slay, 351 S.W.3d at 549).

The fact-finder, here the ALJ, determines the credibility of the witnesses and the weight to give

their testimony, see Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex.

App.—Austin 2005, no pet.), and we “may not substitute [our] judgment for the judgment of the

state agency on the weight of the evidence on questions committed to agency discretion.” Tex.

Gov’t Code § 2001.174(1). In contrast, the first inquiry, concerning the extent to which the

underlying facts found by the agency logically support its ultimate decision or action, may entail

questions of law that we review de novo. Garcia, 454 S.W.3d at 133; see Railroad Comm’n of Tex.

v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).

                                                6
                                           DISCUSSION

                The Department’s order rests on the ultimate finding and conclusion that C.A.

neglected H., based on the definition of “neglect” in section 261.401(a)(3) of the Family Code.

Section 261.401(a)(3) defines “neglect” as:


        a negligent act or omission by an employee, volunteer, or other individual working
        under the auspices of a facility or program, including failure to comply with an
        individual treatment plan, plan of care, or individualized service plan, that causes or
        may cause substantial emotional harm or physical injury to, or the death of, a child
        served by the facility or program as further described by rules or policy.


Tex. Fam. Code § 261.401(a)(3). The Department has further defined “neglect” by rule as an “act

or omission that is a breach of duty by a person working under the auspices of an operation that

causes or may cause substantial physical injury to a child.” 40 Tex. Admin. Code § 745.8559. The

rule provides that “breach of a duty” includes:


        (1) Failure to take an action that a reasonable member of that profession, reasonable
        caregiver, or reasonable person should take in the same situation;

        ••••

        (3) Placing a child in or failing to remove him from a situation that a reasonable
        member of that profession, reasonable caregiver, or reasonable person should realize
        requires judgment or actions beyond the child’s level of maturity, physical condition,
        or mental abilities;

        (4) Leaving a child in a situation where a reasonable member of that profession,
        reasonable caregiver, or reasonable person would expect the child to be exposed to
        substantial physical injury or substantial emotional harm without arranging for
        necessary care for the child; . . . .


40 Tex. Admin. Code § 745.8559 (1), (3), (4) (Tex. Dep’t of Family & Protective Servs., What

is neglect?).

                                                  7
                 At the hearing before the ALJ, the Department presented Child Care Licensing

Investigator Josolyn Davis-McGowan. Davis-McGowan testified that her investigation revealed

that C.A., along with co-worker J.F., was responsible for transporting eight children from a school

to a YMCA facility. On the way, C.A. stopped at a park so that the children could play. After

playing at the park for approximately two hours, C.A. and J.F. prepared to leave the park to take the

children to the YMCA facility. On direct examination, Davis-McGowan testified that during the

course of her investigation she learned that C.A. lined the children up to get in the van and checked

a list to be sure that all children were present. According to Davis-McGowan, the children got into

the van, after which C.A. got into the van. J.F. was outside the van loading equipment into the back

of the van for an undetermined amount of time. J.F. then got in the van and C.A. then drove from

the park. Shortly thereafter either C.A. asked J.F. to recount the children or J.F. informed C.A. that

there were only seven children on the bus. It was undisputed, however, that H., a four-year-old

child, was not on the bus. C.A. drove back to the park where J.F. looked for, but did not find, H.

Meanwhile, C.A. had called her supervisor and learned that H. had been found by an unidentified

person who took him to a nearby elementary school. C.A. and J.F. picked H. up at the school and

rode in the van with all the children to the YMCA facility.

                 On cross-examination, counsel for C.A. asked Davis-McGowan whether it was

possible that, after C.A. lined the children up and checked a list to be sure all eight were there, she

got on the van before them and expected J.F. to “come up behind the children.”5 Davis-McGowan

agreed that the events could have transpired that way, but that, regardless, H. was left at the park and


        5
            C.A. did not testify at the hearing before the ALJ.

                                                   8
would not have been had C.A. recounted the children once they got on the bus. Counsel for C.A.

asked if it was possible that H. “ran off” while the children were standing in line, as one of the

other children had reported to an investigator, and suggested that J.F. was responsible for leaving

H. behind at the park because he did not ensure that all eight children boarded the van. Davis-

McGowan testified that even if that were the case, both C.A. and J.F. were caregivers equally

responsible for the children and that H. would not have been left behind had C.A. ensured, before

driving away, that all eight children were on the van. The Department argued that in failing to ensure

H. was actually on the van before driving away, C.A. violated Minimum Standards that required

that she maintain visual or auditory awareness and physical proximity to H., particularly given his

young age. See 40 Tex. Admin. Code § 746.1205 (Tex. Dep’t of Family & Protective Servs., What

does Licensing mean by “supervise children at all times”?) (supervising children at all times includes

responsibility for ongoing activity of each child, appropriate visual and/or auditory awareness, and

physical proximity, taking into account age of child).

               With respect to the finding that C.A. “failed to ensure that all children were accounted

for before leaving the park because she did not recount the children after they were loaded onto

the van,” and the finding that H. “was left at the park for approximately 10 minutes without

supervision,” we conclude that these factual findings are supported by competent, substantial

evidence. These findings logically support the ALJ’s conclusion of law that C.A. was a designated

perpetrator of “neglect” as that term is defined in the Department’s rules, specifically section

745.5889. There was substantial evidence before the ALJ that C.A. was a caregiver charged with

supervising H. and that she committed a “breach of duty” as that term is defined in the Department’s



                                                  9
rule when, by leaving him alone at the park, she placed H. or failed to remove H. from a situation

that a reasonable caregiver should realize requires judgment or actions beyond the child’s level of

maturity. See 40 Tex. Admin. Code § 745.8559(3). There was evidence that C.A. failed to maintain

visual or auditory awareness of H. sufficient to ensure that he was on the van when she drove

away, such as by conducting a pre-departure count of the children. There was also evidence that

such measures would have ensured that H.’s absence would have been noticed and would have

prevented him from being left at the park. Substantial evidence supports the legal conclusion that

C.A. committed neglectful supervision of H. such that her name could be maintained in the

Department’s Central Registry. We sustain the Department’s issue on appeal.


                                        CONCLUSION

               Having sustained the Department’s issue, we reverse the district court’s judgment

and render judgment affirming the order and decision of the ALJ and the Department. See Tex.

Gov’t Code § 2001.174.



                                             _____________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Reversed and Rendered

Filed: September 19, 2018




                                                10
