     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 11, 2018

                                 2018COA2

No. 16CA2159, Romero v. Colo. Dep’t of Human Servs. —
Administrative Law — State Administrative Procedure Act —
Ultimate Conclusion of Fact; Constitutional Law — Fifth
Amendment — Right to Remain Silent — Adverse Inference

     In this administrative law case, a division of the court of

appeals considers the intersection of Colorado’s State

Administrative Procedure Act (APA) and application of an adverse

inference to a civil defendant’s invocation of his Fifth Amendment

right to remain silent. As an issue of first impression, the division

holds that an agency’s determination in a final agency action to

apply an adverse inference to a defendant’s invocation of his right to

remain silent is an ultimate conclusion of fact under the APA.

Consequently, the agency is required, as a matter of law, to make

its own determination regarding the adverse inference and can

substitute its own judgment for that of the administrative law judge
regarding the inference and the weight to give the inference in light

of the other evidence presented. Accordingly, a majority of the

division reverses the district court’s judgment because it effectively

precluded the Department of Human Services from making its own

determination on whether to apply the adverse inference to plaintiff,

Steven Romero’s invocation of his Fifth Amendment right to remain

silent.

        The division also considers whether the district court’s

decision overturning the Department’s final agency action should be

upheld because the Department’s decision was based on

insufficient evidence. A majority of the division concludes that the

Department’s decision was based on sufficient evidence and that

the evidence was not speculative.

        The dissent disagrees with the applicability of the adverse

inference under the procedural and factual circumstances of this

case.

        The majority opinion reverses the district court’s judgment

and allows the final agency decision to stand.
COLORADO COURT OF APPEALS


Court of Appeals No. 16CA2159
City and County of Denver District Court No. 16CV31561
Honorable A. Bruce Jones, Judge


Steven Romero,

Plaintiff-Appellee,

v.

Colorado Department of Human Services,

Defendant-Appellant.


                            JUDGMENT REVERSED

                                 Division VI
                       Opinion by CHIEF JUDGE LOEB
                              Nieto*, J. concurs
                            Davidson*, J. dissents

                         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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶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




                                   1
 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


 1 The Department’s appeal focuses on the application of the adverse
 inference to the confirmations of sexual abuse against Romero’s
 grandchildren. However, the Department’s briefs make it clear that
 it is also appealing the judgment as it relates to DHS’s confirmation
 that Romero subjected his grandson to an injurious environment by
 exposing him to domestic violence. Because we decide the merits of
 the case based on the Department’s authority to draw an adverse
 inference, our opinion is equally applicable to both the sexual abuse
 confirmations and the injurious environment confirmation. For
 brevity’s sake, we focus our analysis on the sexual abuse
 confirmations.
 2 Mother is Romero’s adopted daughter.
 3 The swabs taken to test for Herpes were inadvertently never sent

 for testing.

                                    2
 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



 4 The record on appeal includes no information on the criminal
 investigation. This appeal is solely concerned with the
 Department’s administrative, civil decision confirming the abuse
 and neglect allegations and subsequently listing Romero in the
 Trails system.

                                   3
¶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.


                                    4
  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.




  5 Romero invoked the Fifth Amendment for every question,
  including his address, which his attorney stated could relate to
  where the children alleged the abuse took place.

                                    5
¶ 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.




  6 Testimony at the hearing revealed that encopresis is a kind of fecal
  incontinence that begins with severe, chronic constipation and can
  be caused by a variety of factors, including diet, emotional distress,
  and trauma.

                                     6
 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

                            7
  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.”




                          8
           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.




                                    9
          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

                                   10
  adverse inference from Romero’s invocation of his Fifth Amendment

  right against self-incrimination. Specifically, DHS argued that the

  ALJ did not consider Romero’s deposition transcript because the

  ALJ failed to mention it in any of his findings of fact or conclusions

  and it was not listed as an exhibit in the ALJ’s order. Romero

  responded that there was no credible evidence or substantive

  testimony to be disputed, and that, therefore, an adverse inference

  was not “helpful.”

¶ 18   The Department accepted the ALJ’s findings of evidentiary

  fact, but overturned the ALJ’s ultimate conclusion of fact and found

  that DHS had proven by a preponderance of the evidence that

  Romero sexually abused K.P. and A.R. In doing so, the Department

  first concluded that the ALJ had not considered Romero’s

  invocation of his Fifth Amendment rights. However, based on that

  invocation, the Department made its own determination to apply

  the adverse inference in its analysis. Specifically, the Department

  focused on the questions regarding whether Romero ever touched

  K.P.’s or A.R.’s private areas, and if so, whether he did that for his

  own sexual gratification. The Department found that the adverse

  inference, combined with a number of other facts supported by the


                                     11
  record, showed by a preponderance of evidence that Romero abused

  his grandchildren.

¶ 19   The Department emphasized the following evidentiary facts

  pertaining to Romero’s sexual abuse of K.P.:

          K.P. presented as more scared during the medical exam

            of her groin and genitals than was typical of children her

            age.

          K.P. asked the medical personnel not to stick their

            fingers in her “front butt.”

          The medical personnel strongly suspected sexual abuse

            as evidenced by the questions they asked mother and the

            tests they chose to run.

          K.P. disclosed in her forensic interview that Romero

            touched her “front butt.”

          K.P. sometimes slept with Romero.

          Children as young as K.P. often cannot express

            themselves in words, but can express themselves

            through play. K.P. used anatomically correct dolls to

            show sexual situations.




                                    12
          The Colorado Supreme Court has “extensive case

            authority holding that such statements of very young

            children relating to incidents of sexual abuse tend to be

            reliable.” Here, K.P. was three years old when she was

            taken to the pediatrician for vaginal pain and forensically

            interviewed.

¶ 20   Similarly, with regard to A.R., the Department emphasized the

  following to support a confirmation of sexual abuse:

          A.R.’s drawings, including their written notes and labels,

            were clear when put into context, and they disclosed

            abuse.

          A.R. had a withdrawn and tearful demeanor while

            making the “trauma narrative” drawings.

          A.R. made the statement of “why did u tuch me?” while

            in trauma therapy.

          A.R. sometimes slept with Romero.

          A.R. eventually disclosed that Romero touched him over

            his clothes.

          Dr. Spiegle’s testimony that A.R.’s encopresis could have

            been caused by the instability of mother in his life was

                                   13
             not conclusive. Moreover, Dr. Spiegle acknowledged that

             sexual abuse could contribute to the onset of encopresis.

               D.   Romero’s Appeal to the District Court

¶ 21    Romero timely appealed the Department’s final decision to the

  district court. The district court reviewed the briefs and the record

  and concluded that the Department had failed “to provide an

  adequate explanation for why it chose to draw a negative inference”

  from Romero’s invocation of the Fifth Amendment. The court stated

  that “[u]nder the circumstances of this case, a non-generic

  explanation by [the Department] was legally necessary. . . . [T]his

  Court is concerned that the privilege has been reduced to ‘a hollow

  mockery’ because [the Department] equated remaining silent with

  guilt.”

¶ 22    The court ruled that, while the Department could substitute

  its own judgment for that of the ALJ with respect to ultimate

  conclusions of fact, the Department “based its reversal almost

  entirely on Romero’s invocation of the Fifth Amendment. . . . As a

  result, the court finds that [the Department’s] decision was both

  arbitrary and capricious and contrary to law.”




                                    14
¶ 23   The court further concluded that the ALJ was best suited to

  consider whether the adverse inference should be applied.

  Consequently, the court remanded the case to the Department with

  instructions to remand to the ALJ to determine whether the adverse

  inference should be applied, and if so, whether DHS showed by a

  preponderance of the evidence that Romero was responsible for the

  alleged abuse.

¶ 24   The Department now appeals, arguing that the district court

  erred by overruling the Department’s final decision and by

  restricting the application of the adverse inference to situations

  where the Department provides an “adequate explanation” of why it

  has applied the inference. For the reasons discussed below, we

  conclude the Department properly applied the adverse inference to

  uphold DHS’s confirmations, and, accordingly, we reverse the

  judgment of the district court.

                        II.   Standard of Review

¶ 25   On appeal from a district court’s review of a final agency

  action, this court applies the same standard of review as the district

  court — the standard set forth in section 24-4-106(7), C.R.S. 2017.

  § 24-4-106(7), (11)(e); see also Gessler v. Grossman, 2015 COA 62,


                                    15
  ¶ 9 (cert. granted June 20, 2016). Pursuant to section 24-4-106(7),

  a reviewing body may set aside an agency’s decision only when the

  agency action is

              arbitrary or capricious, a denial of statutory
              right, contrary to constitutional right, power,
              privilege, or immunity, in excess of statutory
              jurisdiction, authority, purposes, or
              limitations, not in accord with the procedures
              or procedural limitations of this article or as
              otherwise required by law, an abuse or clearly
              unwarranted exercise of discretion, based
              upon findings of fact that are clearly erroneous
              on the whole record, unsupported by
              substantial evidence when the record is
              considered as a whole, or otherwise contrary to
              law . . . .

  If the reviewing court finds no error, it must affirm the agency

  action. Id. In applying this standard, we presume the validity and

  regularity of the administrative proceedings and resolve all

  reasonable doubts as to the correctness of the administrative ruling

  in favor of the agency. Gessler, ¶ 11.

       III.   Adverse Inference for a Party’s Invocation of the Fifth
                        Amendment in Civil Cases

¶ 26   The central issue in this case is whether the Department

  correctly applied an adverse inference from Romero’s invocation of

  his Fifth Amendment rights to its analysis of whether the evidence



                                     16
  supported DHS’s confirmations of sexual abuse.7 We conclude that

  it did.

                        A.    Preliminary Matter

¶ 27    Before addressing the Department’s arguments on the merits,

  we first address Romero’s argument that the issue of the

  applicability of the adverse inference was not preserved for appellate

  review. Romero argues that, because the Department filed its

  appeal before the case could be remanded to the ALJ for a

  determination of whether the adverse inference should apply, the

  Department “waived the right to argue the issue of a potential

  adverse inference here.” We disagree.

¶ 28    First, Romero cites no case law, and we have found none, that

  supports his hybrid preservation/waiver argument in this context.

  Indeed, the law is to the contrary. See Benchmark/Elite, Inc. v.

  Simpson, 232 P.3d 777, 778 (Colo. 2010) (reversing a remand order

  to an ALJ). Second, one of the Department’s primary arguments is

  that the district court erred in overturning the Department’s

  adverse inference decision and remanding to the ALJ for findings on


  7 As noted above, the same issue applies to the confirmation of
  injurious environment as well.

                                   17
  the adverse inference. Third, Romero concedes in his answer brief

  that the ALJ’s silence on the adverse inference was, in fact, a

  decision that the inference did not apply, thereby presenting that

  issue to the district court for a decision, which it made. The district

  court’s decision was a final judgment, and the Department has a

  right to appeal that decision.

                            B.     Applicable Law

¶ 29   This case turns on the intersection of the Department’s

  authority under the APA and the jurisprudence concerning a party’s

  invocation of the Fifth Amendment in the context of a civil case. We

  outline the relevant areas of law below.

                     1.    The Department and Trails

¶ 30   The Office of Children, Youth and Families within the

  Department is tasked with, among other duties, overseeing the

  state’s Division of Child Welfare. See § 26-1-105(2)(a), C.R.S. 2017;

  § 26-20-110(1)(a), C.R.S. 2017 (A working group within the division

  of youth services consists of “[t]he director of the office of children,

  youth, and families in the division of child welfare within the

  [Department]. . . .”); see also Colorado Department of Human

  Services, Management Team & Organization,


                                      18
  https://perma.cc/8Q6W-CB4Z. The Department administers

  services to individual children and families through the county

  department of human services offices. § 26-1-118(1), C.R.S. 2017;

  see also Colorado Department of Human Services, Child Welfare,

  https://perma.cc/82KB-QQCJ.

¶ 31   As relevant here, county department of human services offices

  receive reports of known or suspected child abuse or neglect. § 19-

  3-307(1), C.R.S. 2017. The Department is statutorily required to

  train county department of human services offices in investigating

  these reports of child abuse or neglect and reporting confirmed

  incidents of child abuse or neglect to the Department. § 19-3-

  313.5(2)(a), (b), C.R.S. 2017. The goal of the Department’s training

  is to “achieve consistency and standardization” in investigating

  reports of child abuse or neglect and reporting the confirmed cases

  to the Department. § 19-3-313.5(2). A “confirmed” incident means

  “any report made pursuant to article 3 of [title 19] that is found by

  a county department . . . to be supported by a preponderance of the

  evidence.” § 19-1-103(27), C.R.S. 2017.

¶ 32   When a county department of human services office confirms

  a report of child abuse or neglect, information on the incident and


                                    19
  the person found to be responsible for the abuse is added to Trails.

  See § 19-3-313.5(3). This confirmation determination is separate

  and apart from any criminal investigation into the suspected abuse

  or neglect. The department of human services investigation and

  confirmation process is an agency action, civil in nature, and,

  accordingly, subject to the “preponderance of the evidence”

  standard. § 19-1-103(27).

¶ 33   A person found responsible for a confirmed report of child

  abuse or neglect may appeal the department of human services

  decision that confirmed the incident(s) of abuse or neglect. Id. The

  department of human services confirmation decision is appealed to

  an ALJ, and a decision by an ALJ is considered an initial decision of

  the Department. § 26-1-106(1)(a), C.R.S. 2017. When a party files

  exceptions to the ALJ’s decision, as was the case here, review of the

  ALJ’s decision proceeds in accordance with the APA, section 24-4-

  105(15), C.R.S. 2017.

                              2.   The APA

¶ 34   Section 24-4-105(15)(a) provides that the initial decision of the

  ALJ should be appealed to the governing agency. Here, the case

  was appealed to the Office of Appeals within the Department. In


                                   20
  such an appeal, there is a significant difference in the agency’s

  treatment of findings of evidentiary fact and ultimate conclusions of

  fact. § 24-4-105(15)(b). Findings of evidentiary or historical facts

  made by the ALJ “shall not be set aside by the agency on review of

  the initial decision unless such findings of evidentiary fact are

  contrary to the weight of the evidence.” Id.

¶ 35   In contrast, an agency can substitute its own judgment for

  that of the ALJ on “ultimate conclusions of fact” as long as the

  agency’s conclusions have a reasonable basis in law and are

  supported by substantial evidence in the record. Lawley v. Dep’t of

  Higher Educ., 36 P.3d 1239, 1245 (Colo. 2001) (citing Lee v. State

  Bd. of Dental Exam’rs, 654 P.2d 839, 844 (Colo. 1982)); accord State

  Bd. of Med. Exam’rs v. McCroskey, 880 P.2d 1188, 1193 (Colo.

  1994). Indeed, it is legal error for an agency to abdicate its

  “responsibility to make its own ultimate conclusions of fact.” Nixon

  v. City & Cty. of Denver, 2014 COA 172, ¶ 25.

¶ 36   Our supreme court has acknowledged that the line between

  evidentiary facts and ultimate conclusions of fact is not always

  clear. Lawley, 36 P.3d at 1245; see Nixon, ¶ 20. “[E]videntiary

  facts generally include the detailed factual or historical findings on


                                    21
  which a legal determination rests.” Lawley, 36 P.3d at 1245.

  Alternatively, ultimate conclusions of fact typically involve “a

  conclusion of law, or at least a mixed question of law and fact,” and

  often “settle[] the rights and liabilities of the parties.” Ritzert v. Bd.

  of Educ. of Acad. Sch. Dist. No. 20, 2015 CO 66, ¶ 30 (quoting

  McCroskey, 880 P.2d at 1193); see also Lawley, 36 P.3d at 1245.

                   3.    Adverse Inference in Civil Cases

¶ 37   It is error in a criminal case to draw an adverse inference of

  guilt from an accused’s refusal to testify about facts relevant to his

  or her case. E.g., Griffin v. California, 380 U.S. 609, 613-14 (1965);

  Fitzgerald v. People, 2017 CO 26, ¶¶ 17-18. However, that is not

  the rule in cases of a civil nature. Although a party in a civil case

  has a Fifth Amendment right to refuse to answer questions that

  might incriminate him or her in a future criminal proceeding, “the

  Fifth Amendment does not forbid adverse inferences against parties

  to civil actions when they refuse to testify in response to probative

  evidence offered against them.” Asplin v. Mueller, 687 P.2d 1329,

  1331-32 (Colo. App. 1984) (quoting Baxter v. Palmigiano, 425 U.S.

  308, 318 (1976)). This inference is equally applicable to a party

  who claims the Fifth Amendment privilege in response to properly


                                      22
  posed discovery questions, as Romero did here. Chaffin, Inc. v.

  Wallain, 689 P.2d 684, 689 (Colo. App. 1984). Moreover, the

  adverse inference has been extended to cases involving

  administrative agencies. Commodity Futures Trading Comm’n v.

  Collins, 997 F.2d 1230, 1234 (7th Cir. 1993) (“No law forbids a

  regulatory agency to draw the logical inference from a regulated

  entity’s refusing on Fifth Amendment grounds to play ball with the

  agency.” (citing Baxter, 425 U.S. at 318)).

¶ 38   The adverse inference rule is defined as follows: “Failure of a

  party . . . to answer questions based on the privilege against self-

  incrimination raises a strong inference that the answers would have

  been unfavorable and damaging to him, and comment to that effect

  is proper.” Asplin, 687 P.2d at 1332. Whether to apply this

  inference is discretionary and is not mandatory. Chaffin, Inc., 689

  P.2d at 689 (“[T]he finder of fact in a civil case should be permitted

  to draw an adverse inference against a party who claims the Fifth

  Amendment privilege . . . .”) (emphasis added).8 However, although


  8Finders of fact — juries, courts, and ALJs — make both findings of
  evidentiary or historical fact and ultimate conclusions of fact, such
  as guilt or innocence, liability or nonliability, reasonable or
  unreasonable, etc. Stating that a fact finder should be permitted to

                                    23
  the fact finder may draw the adverse inference, a penalty cannot

  automatically be imposed solely because the accused remained

  silent and exercised his or her Fifth Amendment rights. E.g.,

  Lefkowitz v. Cunningham, 431 U.S. 801, 806-07 (1977).

                              C.    Analysis

       1.   The Fifth Amendment Adverse Inference is an Ultimate
                          Conclusion of Fact

¶ 39    We first conclude that whether to apply the Fifth Amendment

  adverse inference in a civil proceeding and what weight to give that

  adverse inference in the agency’s determination is an ultimate

  conclusion of fact. In its final decision, the Department was,

  therefore, required to make a determination of whether to apply the

  adverse inference, see Nixon, ¶ 25, and state what weight it held, if

  any, in its determination of whether the incidents of abuse and

  neglect against K.P. and A.R. should be confirmed as to Romero.

¶ 40    In order to apply an adverse inference for invocation of the

  constitutional right against self-incrimination, at least two factual

  events must have happened: (1) a party in a civil case must have


  draw the Fifth Amendment adverse inference does not necessarily
  imply that the adverse inference is a finding of historical or
  evidentiary fact. See, e.g., Chaffin, Inc. v. Wallain, 689 P.2d 684,
  687 (Colo. App. 1994).

                                    24
  been asked questions to which his or her answers would have been

  potentially incriminating in a future criminal action and (2) the

  party must have invoked his or her Fifth Amendment rights.

  Asplin, 687 P.2d at 1331-32. It is undisputed that during the

  discovery phase for the ALJ hearing, DHS conducted a deposition

  with Romero and asked him pointed and incriminating questions,

  including whether he touched K.P. and A.R. for his own sexual

  gratification. It is also undisputed that Romero explicitly invoked

  his Fifth Amendment rights for the entirety of the deposition except

  for the first few questions. The record is clear that had Romero

  been called to testify at the ALJ hearing, he would have invoked his

  Fifth Amendment rights and refused to answer questions because of

  the ongoing criminal investigation into K.P.’s and A.R.’s allegations.

¶ 41   But, for the inference to apply, there must also have been

  probative evidence offered against the person claiming the privilege.

  Id. at 1332 (citing Baxter, 425 U.S. at 318); cf. Olin Corp. v. Castells,

  428 A.2d 319, 321-22 (Conn. 1980) (listing the other evidence

  presented against the defendant in the trial court and affirming the

  trial court’s order relying on a Fifth Amendment adverse inference

  against the defendant). “Probative evidence” means “[e]vidence that


                                     25
  tends to prove or disprove a point in issue.” Black’s Law Dictionary

  677 (10th ed. 2014).

¶ 42   Thus, in applying the adverse inference, the fact finder must

  first conclude that two historical facts were present: asking

  potentially incriminating questions of a party and that party’s

  invocation of the Fifth Amendment protections. The fact finder

  must then take those historical facts in the context of the other

  evidence presented and determine that the party refused to answer

  the potentially incriminating questions in the face of probative

  evidence against him.

¶ 43   Finally, if all three of these elements are present, the court or

  agency can choose whether to apply the inference. Chaffin, Inc.,

  689 P.2d at 689. If the fact finder determines that the adverse

  inference should be applied, it then must be careful to ensure that

  other facts besides the adverse inference support a penalty being

  imposed on the party in order to avoid the evil of penalizing a

  person solely based on his or her assertion of a constitutional

  privilege. See Lefkowitz, 431 U.S. at 807 (“Section 22 confronted

  appellee with grave consequences solely because he refused to

  waive immunity from prosecution and give self-incriminating


                                    26
  testimony. Section 22 is therefore constitutionally

  indistinguishable from the coercive provisions we struck down in

  [previous cases] . . . .”) (emphasis added).

¶ 44   In our view, this multi-step approach to determining whether

  and how to apply the adverse inference makes the inference an

  ultimate conclusion of fact because it applies the legal principles of

  an adverse inference and constitutional rights to evidentiary facts.

  See McCroskey, 880 P.2d at 1194 (stating that when an

  administrative body applies legal principles to the evidentiary facts

  it is an indication of an ultimate conclusion of fact). As relevant

  here, the Department used the Fifth Amendment adverse inference

  jurisprudence to determine if the historical facts of Romero’s refusal

  to answer pointed and incriminating deposition questions based on

  his Fifth Amendment privileges triggered the inference; this is a

  classic application of a legal standard to historical facts. Id.

¶ 45   The Department also was required to determine that there was

  “probative evidence” offered against Romero in the face of his

  invocation. Although the Department did not explicitly state that it

  was making this determination in its final decision, the record

  shows that this part of the analysis was satisfied by the


                                     27
  Department’s meticulous listing and consideration of “other

  corroborating evidence” that supported confirming the abuse

  allegations against Romero. Again, this type of analysis involves

  applying a legal principle — probative evidence — to the evidentiary

  facts found by the ALJ. Id.

¶ 46   We reject Romero’s argument that there was no probative

  evidence offered against him, and thus the adverse inference should

  not apply. This argument is clearly belied by the record. DHS

  offered numerous kinds of evidence in support of the sexual abuse

  allegations made by K.P. and A.R., which included, but were not

  limited to, the children’s own statements, testimony by the

  children’s therapist, A.R.’s drawings and letters, and evidence from

  the medical professionals who examined K.P. (including their

  inquiries to mother about whether K.P. had been sexually assaulted

  and the numerous tests for sexually transmitted diseases). This

  evidence tended to show abuse occurred and was, therefore,

  probative. The fact that Romero disputes the weight and sufficiency

  of the evidence does not negate the fact that probative evidence of

  sexual abuse was proffered at the hearing. See People in Interest of

  A.J.L., 243 P.3d 244, 250 (Colo. 2010) (Weighing the evidence


                                   28
  presented and whether evidence is sufficient and probative are

  separate analyses: “while a trial court may properly attach more

  weight to . . . evidence, whether it should do so is necessarily

  determined by . . . its analysis of the sufficiency and probative value

  of the evidence presented at trial.”) (citation omitted); Black’s Law

  Dictionary 677 (10th ed. 2014) (defining “probative evidence”).

¶ 47   Moreover, the determination of whether to apply the adverse

  inference directly implicated Romero’s constitutional rights.

  Whether a decision determines a party’s rights or liabilities is

  another indication that the decision is an ultimate conclusion of

  fact. E.g., McCroskey, 880 P.2d at 1193. The Department

  methodically discussed the evidentiary facts found by the ALJ that

  supported confirming the allegations. This supporting and

  corroborative evidence ensured that Romero’s invocation of his Fifth

  Amendment rights did not automatically subject him to the

  penalties of the confirmations of abuse and subsequent listing in

  the Trails system. See Lefkowitz, 431 U.S. at 807. This type of

  balancing act between applying a legal principle and protecting a

  party’s constitutional rights further indicates that the adverse




                                    29
  inference here can determine a party’s scope of rights and is,

  therefore, an ultimate conclusion of fact.

       2.     The District Court Erred in Overturning the Department’s
                   Final Decision and Remanding to the ALJ

¶ 48        Next, we consider the Department’s argument that the district

  court erred by effectively precluding it from making its own

  determination regarding the application of the adverse inference by

  holding that the ALJ was best suited to make such a determination.

  We conclude that the district court erred because its decision did

  not properly apply the pertinent statutory standard of review.

¶ 49        The district court could only overturn the Department’s

  ultimate conclusion of fact regarding the application of the adverse

  inference if it was an abuse of discretion, arbitrary or capricious, or

  contrary to law. § 24-4-106(7); Gessler, ¶ 9. Here, the district

  court found that the Department’s final order was arbitrary and

  capricious because the Department did not offer a “non-generic

  explanation” as to why it was imposing the adverse inference and

  because the Department reversed the ALJ “almost entirely on

  Romero’s invocation of the Fifth Amendment.” The court further

  concluded that the ALJ was “best suited to consider the [adverse



                                       30
  inference] issue and determine its applicability.” As a result, the

  district court instructed the Department to remand the case to the

  ALJ to “determine whether, given the potential adverse inference,

  [DHS] has shown by a preponderance of the evidence that Romero

  is a person responsible for the alleged abuse.” In our view, the

  court’s analysis misapplied the APA and the applicable law on the

  Fifth Amendment adverse inference.

¶ 50   As we have concluded above, whether to apply the adverse

  inference is an ultimate conclusion of fact. Thus, as a matter of

  law, the Department was required to determine whether to apply the

  adverse inference and could substitute its judgment on that issue

  for that of the ALJ. Nixon, ¶ 25. Thus, the ALJ was not in the best

  position to make the adverse inference determination because the

  Department could substitute its own judgment for the ALJ’s on

  ultimate conclusions of fact. § 24-4-105(15)(b); Lawley, 36 P.3d at

  1245.

¶ 51   Based on our review of the Department’s final decision, we

  conclude that it was not arbitrary and capricious, contrary to

  constitutional rights, or otherwise contrary to law. § 24-4-106(7).

  The Department’s final decision was not arbitrary and capricious


                                    31
  because it was supported by the record; it took into consideration

  Romero’s constitutional rights; and it was not contrary to the law

  on the Fifth Amendment adverse inference.

¶ 52   We are not persuaded by the district court’s reasoning to the

  contrary. The district court deemed the Department’s application of

  the adverse inference arbitrary and capricious because it did not

  provide a “non-generic explanation” for why it was applying the

  inference. We have found no authority that supports the district

  court’s imposition of such a duty on the Department. None of the

  jurisprudence on the adverse inference requires an explanation as

  to why the fact finder chose to consider it. More importantly, as

  discussed below, the Department’s thorough discussion of the

  record itself shows why the Department decided to apply the

  adverse inference in this case.

¶ 53   The district court expressed a concern that the Department

  confirmed the allegations of abuse “almost entirely” based on

  Romero’s invocation of his Fifth Amendment rights and therefore

  made a “hollow mockery”9 of Romero’s constitutional rights. We


  9The phrase “a hollow mockery” appears in Garrity v. New Jersey,
  385 U.S. 493, 499-500 (1967), and refers to the fact that one’s

                                    32
  take this to mean that the district court was concerned that, as in

  Lefkowitz, Romero’s invocation of his constitutional rights led to the

  automatic imposition of a penalty. This concern is not borne out by

  the Department’s final decision.

¶ 54   In the first part of the Department’s analysis, it concluded that

  it could apply the adverse inference to the incriminating questions

  Romero was asked in his deposition. The Department specifically

  referenced the questions where Romero was asked if he touched

  K.P.’s and A.R.’s private areas for his own sexual gratification in

  order to nullify the concern in the ALJ’s initial decision regarding

  proof of the requisite purpose of sexual assault as defined in section

  18-3-405. Importantly, the Department did not stop its analysis

  there, but proceeded to detail “other corroborating evidence to

  support a reasonable basis in the law pertaining to [Romero’s]

  sexual abuse of K.P.,” and it did the same regarding A.R.

¶ 55   The Department’s analysis of other corroborating evidence for

  each confirmation was thorough and detailed. The Department

  enumerated the findings of historical fact made by the ALJ that



  exercise of Fifth Amendment rights cannot be taken as an
  admission of guilt or a conclusive presumption of perjury.

                                     33
supported the ultimate conclusion that the abuse allegations

against Romero should be confirmed. These findings included

specific instances in which the Department disagreed with the ALJ’s

interpretation of the facts (not the facts themselves, but whether

they supported the confirmations against Romero as found by

DHS). Thus, the record shows that the Department did not reverse

the ALJ solely based on Romero’s invocation of the Fifth

Amendment. Indeed, the Department’s conclusion regarding the

confirmations of sexual abuse explicitly shows that the adverse

inference was applied in context with all the other findings of

historical fact found by the ALJ:

          [T]he admitted exhibits as well as the
          undisputed testimony of the witnesses compel
          an ultimate conclusion, by a preponderance of
          the evidence, that the abuse took place and
          that [Romero’s] refusal to testify resulted in
          nearly all of the substantive testimony being
          undisputed. Additionally, the [Department]
          considers the questions asked of [Romero]
          during the deposition regarding sexually
          touching A.R. in the swimming pool . . . as well
          as [Romero’s] invocation of the Fifth and the
          negative inference that [Romero’s] answers
          would be unfavorable and damaging to
          [Romero].

(Emphasis added.)



                                    34
¶ 56   Moreover, the Department’s detailed findings and conclusions

  also show that the penalty here ― the confirmations of abuse and

  their listing in Trails ― was not imposed automatically simply

  because Romero exercised his constitutional rights.

¶ 57   In sum, we conclude that the Department’s application of the

  adverse inference was not an abuse of discretion, arbitrary or

  capricious, or contrary to law or Romero’s constitutional rights.

  Thus, we further conclude that the district court erred by effectively

  precluding the Department from making its own ultimate

  conclusion regarding the adverse inference.

          IV.   Romero’s Sufficiency of the Evidence Argument

¶ 58   In his answer brief, Romero argues that the district court’s

  judgment should be upheld because the “facts” relied on by DHS to

  support findings of sexual abuse are nothing more than supposition

  and speculation and that none of the “facts” support such ultimate

  findings. We disagree.

¶ 59   Whether the administrative record contains substantial

  evidence to support an agency’s final decision is a question of law

  we review de novo. Rags Over the Ark. River, Inc. v. Colo. Parks &

  Wildlife Bd., 2015 COA 11M, ¶ 55.


                                    35
¶ 60   We defer to an agency’s decision involving factual and

  evidentiary matters within an agency’s specialized or technical

  expertise. Id. Here, the Department has specialized expertise in

  investigating and confirming allegations of child abuse and neglect

  and is charged with training department of human services offices

  in how to investigate such allegations and when and how to confirm

  and report them to the Department. § 19-3-313.5(2)(a), (b).

¶ 61   The APA provides that the Department was required to accept

  the ALJ’s findings of evidentiary facts, but it was also equally

  required to make its own ultimate conclusions as to whether the

  evidentiary facts supported the confirmations that Romero abused

  and neglected K.P. and A.R. § 24-4-105(15)(b); Lawley, 36 P.3d at

  1245.

¶ 62   Here, the Department thoroughly reviewed the facts found by

  the ALJ, explained instances where it disagreed with the ALJ’s view

  as to the weight of the evidence, and, where appropriate, supported

  its conclusions with pertinent Colorado case law.

¶ 63   Based on its review of the record, the Department concluded

  that the exhibits and uncontradicted testimony showed by a

  preponderance of the evidence that the abuse as to both children


                                    36
  took place. It further concluded that Romero’s refusal to testify

  “resulted in nearly all of the substantive testimony being

  undisputed.” We perceive no abuse of discretion in these

  conclusions and, moreover, we defer to an agency’s specialized or

  technical expertise. Rags Over the Ark. River, Inc., ¶ 55.

¶ 64   The Department outlined its disagreement with the ALJ’s

  conclusions in the following areas. First, as to K.P.’s disclosures

  and play therapy, the Department relied on its expertise to disagree

  with the ALJ’s conclusions that K.P.’s disclosures were confusing

  and that her placement of anatomically correct dolls in sexual

  positions was inconclusive. The Department reasoned that

            the Colorado Supreme court has referred to
            the extensive case authority holding that such
            statements of very young children relating [to]
            incidents of sexual abuse tend to be reliable.
            In [a supreme court case], the child was three
            years old at the time she made disclosures
            regarding sexual abuse. In the present case,
            K.P. was three years old when she made
            disclosures of sexual abuse. Therefore the
            [Department] takes into account that K.P. was
            a very young child at the time of her forensic
            interview in August 2014 and that the
            statements of very young children tend to be
            reliable (despite some inconsistencies).
            Additionally, regarding play therapy, Ms. Potts
            . . . testified that ‘[c]hildren, especially K.P.’s
            age, are not able to adequately express


                                    37
             themselves verbally. They express themselves
             through play.’ This may well explain some of
             K.P.’s accounts or difficulty expressing herself
             during her forensic interview.

¶ 65   Second, the Department found it significant that the medical

  personnel attending K.P. immediately asked about sexual abuse

  and ran tests for sexually transmitted diseases. The conclusion the

  Department drew from this evidence was that medical personnel

  believed K.P.’s rash and swelling were caused by sexual acts,

  contrary to the ALJ’s focus that the medical personnel did not

  conclusively determine the cause for the rash and swelling.

¶ 66   Third, the Department found A.R.’s drawings and writings

  significant as to his claims of abuse, specifically noting the stage in

  therapy when A.R. completed those exhibits. In contrast to the

  ALJ, the Department concluded that the context the children’s

  therapist provided was valuable because the evidence showed that

  the drawings and letters were completed when A.R. was asked

  about trauma in his life and “expressing that trauma.”

¶ 67   Fourth, as to Romero’s only witness, Dr. Spiegle, the

  Department found that his testimony was inconclusive and was

  presented at the ALJ hearing only as a “strong hypothesis.”



                                    38
  Moreover, Dr. Spiegle conceded that sexual abuse could contribute

  to the onset of encopresis. In contrast, the ALJ focused on Dr.

  Spiegle’s hypothesis that A.R.’s encopresis was caused by

  abandonment issues resulting from mother’s behavior.

¶ 68   Lastly, in drawing the adverse inference from Romero’s

  invocation of his Fifth Amendment rights, the Department

  specifically drew attention to the deposition questions regarding

  whether Romero touched his grandchildren for sexual gratification,

  and it concluded that “[w]ith the negative inference drawn, there is

  a reasonable basis in the law to establish that [Romero] sexually

  touched A.R. and K.P. with the requisite purpose of sexual

  gratification.”

¶ 69   As discussed, the Department was authorized and required to

  make its own ultimate conclusion regarding whether the evidence

  supported confirmations of abuse by a preponderance of the

  evidence. The record shows the Department did so and explained

  where it departed from the ALJ’s conclusions. The fact that Romero

  disagrees as to the weight of the evidence propounded by DHS does

  not render the evidence speculative or insufficient. We cannot

  conclude that the Department’s view of the evidence, especially


                                   39
  given its technical expertise, was speculative or contrary to the

  weight of the evidence presented to the ALJ.

                                V.   Conclusion

¶ 70   The district court’s judgment overturning the Department’s

  final decision is reversed.

       JUDGE NIETO concurs.

       JUDGE DAVIDSON dissents.




                                      40
       JUDGE DAVIDSON, dissenting.

¶ 71   I recognize the general rule that the adverse inference of guilt

  may be drawn in civil cases, including administrative proceedings.

  I respectfully dissent because I disagree with its applicability here.

¶ 72   First, I question whether the adverse inference of guilt should

  be permitted in an administrative enforcement proceeding in which,

  as here, the administrative penalties are serious, the investigation

  is done in conjunction with law enforcement, nearly identical

  charges are pursued by both the agency and law enforcement, and

  exactly the same facts will form the basis of both the criminal

  prosecution and the agency proceedings, except that the latter

  demands a lower burden of proof.

¶ 73   Ineluctably, these circumstances create for an accused like

  Romero “a catch-22 between invoking a constitutional right that

  could result in an adverse inference and waiving a constitutional

  right and assisting a criminal case against [himself].” Tom

  Hanusik, Averse to Adverse Inferences? Rethinking the Scope of the

  Fifth Amendment Protections in SEC Proceedings, 41 Sec. Reg. & L.

  Rep. (BNA) 574 (Mar. 30, 2009), reprinted at

  https://perma.cc/UTR8-58KC, at 4-5 (The article suggests that


                                    41
drawing the adverse inference in SEC enforcement proceedings is a

deterrent to the exercise of a valid constitutional right; “[t]he time

has come to rethink whether such a deterrent by a government

agency that has concurrent jurisdiction with federal criminal

prosecutors is either wise or constitutional.”); see John M. Priester,

The Impact of Adverse Inferences in Administrative Hearings, 22 J.

Nat’l Ass’n Admin. L. Judges 139, 142 (2002) (noting when the

penalty for invoking the privilege is of high consequence, it

“effectively destroy[s] the privilege,” and urging caution in drawing

an adverse inference of guilt in administrative agency proceedings);

see also Baxter v. Palmigiano, 425 U.S. 308, 335 (1976) (Brennan,

J., concurring in part and dissenting in part) (“In a civil suit

involving only private parties, no party brings to the battle the

awesome powers of the government, and therefore to permit an

adverse inference to be drawn from exercise of the privilege does not

implicate the policy considerations underlying the privilege. But

where the government ‘deliberately seeks’ the answers to

incriminatory questions, allowing it to benefit from the exercise of

the privilege aids, indeed encourages, governmental circumvention

of our adversary system.”).


                                   42
¶ 74   Second, I question whether the Department properly exercised

  its discretion to apply the adverse inference here. As the district

  court noted, without the inference, the case against Romero was an

  evidentiary draw. For the Department to use Romero’s invocation of

  his constitutional privilege to refuse to answer incriminating

  questions to tip the scales under the circumstances here was, in my

  view, arbitrary and capricious.

¶ 75   Indeed, by applying the adverse inference post-hearing and for

  the first time on review, the Department not only penalized

  Romero’s exercise of his constitutional right, it effectively shifted the

  burden of proof from the Department to Romero. This is

  particularly so because implicit in its unchallenged evidentiary

  findings, in determining that sexual abuse against either child had

  not been proved by a preponderance of the evidence, the ALJ gave

  little or no credit to the accusatory testimony from mother or

  grandmother, found no medical evidence of sexual abuse, saw no

  evidence corroborative of abuse in either child’s forensic interview,

  viewed A.R.’s drawings as inconclusive, and viewed K.P.’s doll play

  as irrelevant to the allegations here. Cf. Hanusik, at 4 (“Given the

  extensive nature of the sanctions it can impose, the SEC ought to


                                     43
  be able to prove violations . . . without an inference that the

  accused must have committed a certain act if [he] refuse[s] to

  provide testimony about it.”).

¶ 76    Third, because I view the adverse inference as more a measure

  to determine how much weight to give certain evidence than an

  “ultimate fact,” even if it were otherwise appropriate to consider it

  under the circumstances here, I agree with the district court that

  “the ALJ was best suited to consider the issue and determine its

  applicability.” See, e.g., Colo. Dep’t of Human Servs. v. Maggard,

  248 P.3d 708, 712 (Colo. 2011) (An agency “must defer to the ALJ’s

  assessment of the credibility of the testimony and the weight to be

  given to the evidence.”); Ricci v. Davis, 627 P.2d 1111, 1118 (Colo.

  1981) (“Evidentiary facts are found by a hearing panel after it has

  taken and weighed evidence, as to both accuracy and

  credibility . . . .”).

¶ 77    Accordingly, if an adverse inference of guilt were to be

  considered here at all, I would agree with the district court that the

  final decision of the Department should be reversed and the case

  remanded to the ALJ to determine the weight, if any, the adverse

  inference should be given, and in light of that, to determine whether


                                    44
the Department has shown by a preponderance of the evidence that

Romero was responsible for the alleged sexual abuse.




                                45
