                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       May 3, 2011 Session

            STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S
                        SERVICES v. EDDIE DAVIS

                  Appeal from the Chancery Court for Hamblen County
                  No. 2009-463    Jon Kerry Blackwood, Senior Judge


                  No. E2010-02016-COA-R3-CV-FILED-JULY 28, 2011


A nine-year-old child, whose initials are C.M. (“the Child”), told her mother, whose initials
are also C.M. (“Mother”), that Eddie Davis had touched her inappropriately. The disclosure
was made shortly after the Child had reviewed a comic book that is designed to help children
recognize and disclose child sexual abuse. Davis is the executive director of the Youth
Emergency Shelter (“Y.E.S.”) in Hamblen County. The Department of Children’s Services
(“DCS”), a state agency, initiated an investigation and “indicated”1 Davis as a perpetrator of
child sexual abuse. Davis requested an administrative hearing. The administrative law judge
(“the ALJ”) found that the Child’s statements to Mother and later to a forensic interviewer
were credible because they were “consistent” in that she told both a story of Davis putting
his hand on her buttocks inside her panties. Davis appealed the ALJ’s finding to the trial
court. The trial court sustained the findings of the ALJ. Davis appealed to this Court. Because
there is no substantial and material evidence to support the findings of the ALJ, we reverse.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Reversed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and J OHN W. M CC LARTY, J., joined.

Wayne R. Stambaugh, Morristown, Tennessee, for the appellant, Eddie Davis.



        1
          To be “indicated” means that the report of abuse has been “validated” by DCS after some sort of
investigation. Upon being “indicated,” DCS notifies the person and/or any employer that he or she is not
allowed to work around children. Thus, a person can be branded a pedophile for life based simply on a DCS
investigation. See Brown v. State, No. E2004-01272-COA-R3-CV, 2004 WL 2715283 at *6-7 (Tenn. Ct.
App. E.S., filed Nov. 30, 2004).
Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Associate Solicitor
General; and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

                                         OPINION

                                              I.

      Y.E.S. provides a temporary home for children in crisis. It is located in Morristown.
Davis has been employed there since 1978. He has an impeccable reputation. Until the
accusation at issue in this appeal, he had never been accused or implicated in any way in the
abuse of a child.

       Mother was a long-time employee of the youth shelter; she had worked there since
1992. She and the Child were close to Davis and his wife. It is undisputed that both families
considered the other like family. Mother adopted the Child when she was seven months old.
Davis and his wife allowed the Child to accompany Mother to work, where the Child played
at the shelter and often visited Davis in his office. Mother worked at the shelter
approximately an hour a day, five days a week.

        Part of Mother’s job required her to have the children at the shelter read a comic book
that instructs them on how to recognize and report sexual abuse. One day in October 2007,
the Child read the comic book and then reported to Mother that Davis had touched her
inappropriately on several occasions in his office. Mother initially did not believe the Child
and tried to talk her out of her story. The Child stated that Davis touched her in her panties
in the back at least five times and that he touched her once in the front, outside her panties.
According to Mother, the Child described that Davis touched her in a groping motion on her
bottom.

       On November 1, 2007, Wayne Tasker, a professional counselor, talked to the Child
as a favor to Mother. He told Mother that he believed the Child to be lying.

       Almost a year passed before Mother reported the Child’s disclosure. Mother’s
explanation of the delay was that she did not initially want to pursue the allegation but
decided to report Davis after she learned that he was going to be a “house parent” at Y.E.S.,
where he would be in a more hands-on environment with children. She also feared that she
might lose her adopted daughter if she did not pursue the allegation and expressed concern
that she might lose her job as a guidance counselor if she did not report the alleged abuse.
During that year, Mother did not have the Child medically examined nor did the Child
receive any counseling.

                                              -2-
      Mother initially brought the allegation to the district attorney’s office. No criminal
charges were ever brought against Davis.

       On September 1, 2008, DCS received a referral which alleged that Davis had
committed acts of sexual abuse against the Child while acting as director of Y.E.S. DCS
began an investigation led by Terry Ryan of its special investigations unit. On September
9, 2008, the Child underwent a “forensic” interview by Daniel Velez. Velez’s report stated
“[the Child] reported that [Davis] touched her on her thighs while she sat on his lap.” The
Child stated that she had “known [Davis] for some time and would stay with him in his office
while [Mother] went to work. [The Child] reported that she would sit on his lap, on his desk
chair, while [Davis] did some work . . . [The Child] denied that [Davis] did anything else to
her. She denied [Davis] telling her anything after she would leave his office.” She stated that
Davis only touched her outer thigh; “[the Child] denied [Davis] did anything other than touch
her on her thigh.” Velez made no comments, either in his report or in his later testimony, on
the emotional state of the Child nor did he express a professional opinion on the matter. His
role was only to take the Child’s statement.

       In order to classify an allegation as “indicated,” at least one “Validation Factor” must
be met per Policy No. 14.7 of DCS’s Administrative Policies and Procedures. Investigator
Ryan used the validation factor of “consistency”2 of the Child’s statements to “indicate”
Davis. Ryan found the two disclosures by the Child to be consistent, although the Child told
Mother she was touched on her buttocks and told Velez that she was touched on her outer
thigh.

       Ryan’s classification of the referral was upheld by the Commissioner’s case file
review process. Davis was notified on October 15, 2008, that he had been “indicated,” and
he exercised his right to an administrative “fair hearing.” Y.E.S. was immediately informed
of Davis’s alleged status as “indicated,” the effect of which was to prevent Davis from
working with children.

       Before the administrative hearing could be held, DCS filed suit against Davis in
juvenile court. DCS sought (1) a declaration that the Child was dependent and neglected, (2)


       2
           Policy 14.7 states:

                 Consistency. If the child is interviewed more than once, the
                 responses and statements are generally consistent from one interview
                 to the next. Parts of the story are corroborated by other circumstances
                 and/or witnesses.

                                                  -3-
an order preventing Davis from working at Y.E.S., and (3) an order preventing contact
between Davis and the Child. The juvenile court held a hearing and entered its Final Order
on December 15, 2008. The court found that the Child was not dependent and neglected,
dismissed the ex parte restraining order it had earlier entered, and upheld the no contact with
the Child based on Davis’s stipulation that he would not have contact with the Child. The
court held “the ... allegations against [Davis] do not qualify as abuse under T.C.A. §
37-1-152(1) since [Davis] is not a parent, guardian, or caretaker of the minor child.” In
addition, the court found that DCS “had alleged no statute or allegations that would provide
for a restraining order against [Davis] with regards to the Youth Emergency Shelter, its
residents, or any other individual.” The decision in juvenile court was not appealed.

       The administrative hearing was held on July 10, 2009. Davis testified on his behalf
and denied ever touching the Child inappropriately. The only explanation that Davis could
think of regarding the allegation was that there were times when the Child sat directly on top
of his keys and he had to pick her up and place her on his other leg. There were multiple
character witnesses that testified on Davis’s behalf to the effect that thousands of children
had passed through the shelter and yet there had never been any complaint lodged against
Davis in over thirty years of service at Y.E.S. Further, it is undisputed that at no time while
the Child was in Davis’s office was the door ever closed or locked. Thus, at all times when
Davis was allegedly touching the Child inappropriately, an employee or resident of Y.E.S.
could have freely walked in and seen what was happening. There were no witnesses to the
alleged abuse other than the Child.

       The Child did not testify. Her statements to Velez and to Mother were admitted into
evidence as hearsay exceptions pursuant to Tenn. R. Evid. 803(25).3 Wayne Tasker
submitted an affidavit with respect to what the Child told him. The ALJ found that the
affidavit of Tasker did not carry weight in assessing the consistency of disclosures made by
the Child because Tasker interviewed the Child in 2007, without taking any notes or making
any record. Tasker did not prepare his affidavit until 2009.

       Interestingly, witness Velez also did not make any notes other than his short report,
but his testimony was given considerable weight by the ALJ. We will provide a lengthy
excerpt of that testimony:

                Q:      Did [the Child] ever disclose any occasions in which
                        [Davis] touched any other body parts on her?


        3
          Hearsay is generally not admissible evidence. Tenn. R. Evid. 803(25). The list of exceptions that
“are not excluded” includes “statements about abuse or neglect made by a child alleged to be the victim of
physical, sexual, or psychological abuse or neglect.” Tenn. R. Evid. 803(25).

                                                   -4-
A:     No. She did not.

Q:     Is that all accurate? Is that all as reflected in your report
       here?

A:     That’s correct.

Q:     Okay, How did she come – how did she come to be in a
       position where he would put his hand down her pants?

A:     How she described it was that she sat in his lap and he
       put his hand behind, behind like this; and then he laid his
       hand right there under her underclothes.

Q:     Okay.

             The Court: When you say, “right there,” where is
your hand indicating today?

                The Witness: Right here in this area.

               Mr. Stambaugh: You need to – can you name the
body part for us because there’s no video here. We need to have
it –

                The Witness: That’s her thigh.

                Mr. Stambaugh: And well, what part –

               The Court: Upper thigh, below what would be
traditionally a panty line on a girl. Is that right?

                The Witness: She went like this. This is how she
described it.

              The Court: Well, did she use her – I’m sorry. Did
she use her hand to show?

                The Witness: Yes, she did. Yes.



                                -5-
             The Court: And I’m going to describe it for my
own benefit because I’m recording this.

             Mr. Stambaugh: If I can stand up and just see
where his hand is placed.

              The Court: It appears – to me anyway – that you
have demonstrated that the [C]hild showed the alleged
perpetrator’s hand going down through the top of a panty,
through the leg portion of a panty, to the outside top of the
thigh.
              In fact, the very top of the thigh just under the
bottom part of a girl’s panty leg opening. Is that a sufficient
description?

              (No response.)

              The Court: Does anyone disagree with that?

              Mr. Smithwick: No. I don’t disagree.

              The Court: Mr. Stambaugh?

               Mr. Stambaugh: I can because we’re talking the
difference in the size of a man versus a small girl.
               But he is down – and I would say a little bit upper
– not mid thigh, but a little bit higher than mid thigh.

              The Court: All right.

              Mr. Stambaugh: But definitely not the side of the
waist and not the side of the hip.

              The Court: That’s fine. All right.

                            *   *     *

Q:     . . . [T]here is no doubt that in your report there is no
       information containing the fact that [the Child] was ever
       touched on her breasts, correct?

                                -6-
A:   That’s correct.

Q:   Or her genital area?

A:   That’s correct.

Q:   Or her groin?

A:   That’s correct.

Q:   Or her inner thigh?

A:   That’s correct.

Q:   Or her buttocks?

A:   That’s correct.

Q:   So, you’re saying that the only place [Davis] is alleged
     to have touched [the Child] is on her outer thigh?

A:   That’s correct.

                            *   *     *

Q:   [The Child] couldn’t even tell you what kind of clothing
     she wore on any of these occasions?

A:   That’s correct.

Q:   So, how do you know that he reached down, even
     through what is alleged to be her panties, to touch her
     outer thigh if you did not know what she was wearing?

A:   My job is basically to report what the child says. I do not
     state an opinion about whether she’s telling the truth or
     not.

                            *   *     *



                                -7-
                Q:      And I want you to think about the statement that [the
                        Child]...gave to you, and you state to me where it is in
                        your statement anywhere in here that she was touched in
                        a private area.

                A:      She did not ever say that she was touched in a private
                        area.

(Emphasis added.)

       After reviewing the disclosures the Child made to Mother and to the forensic
interviewer, the ALJ found Davis’s touching of the Child’s outer thigh, alone, did not fall
within the definition of Tenn. Code Ann. § 37-1-602 (2010)4 . Also, the ALJ treated the
alleged touching disclosed to Mother on the outside of the child’s clothing in the front part
or the vaginal area as not substantiated.

       Despite the ALJ’s finding that the touching of the Child’s outer thigh did not fall
within the definition of child sexual abuse, she did conclude that to touch the Child on her
outer thigh, Davis would have also had to touch her in other private places:

                The question is whether the area covered by the child’s panties
                qualifies as being an area included in the definition of child
                sexual abuse....[T]he testimony given eliminated several areas
                of the body as those that were touched....A practical view of the
                descriptions of the touching does show that [Davis’s] hand
                would have had to enter around a waistband area and descend
                into the buttocks area. The statute lists “buttocks” as an area
                included in the definition of child sex abuse.

(Emphasis added.)

       The ALJ found that this was likely the circumstance because the Child’s disclosures
to Mother and Velez, in the judgment of the ALJ, were consistent. She concluded that the
Child’s testimony was made consistent by the following factors: setting, identification of
Davis, description of Davis putting his hand inside the Child’s panties, and the alleged
position where the hand was placed. Because Tenn. Code Ann. § 37-1-602 lists “buttocks”

        4
          The statute defines child sexual abuse as “the intentional touching of the genitals or intimate
parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering
them.”

                                                  -8-
as an area included in the definition of child sexual abuse, the ALJ therefore concluded that
“Validation Factor (d)” of DCS’s Administrative Policy 14.7 was met and held that Davis’s
actions fell within the definition of sexual abuse.

       By its initial order on September 15, 2009, the ALJ found, ostensibly by a
preponderance of the evidence, that “[Davis] committed child sexual abuse involving [the
Child],” and upheld DCS’s classification of Davis as “the indicated perpetrator in a validated
case of child sexual abuse involving [the Child].” The initial order was adopted by the
Commissioner of DCS.

      Davis timely appealed to the trial court. The trial court affirmed the decision of the
ALJ. The court stated that

              [t]he Administrative Judge was able to observe the testimony,
              assess the consistency of the [C]hild’s statements to the
              witnesses, as well as observe the descriptions of [the Child’s]
              demonstration of the hand movement while she was in [Davis’s]
              lap. This Court did not have that opportunity. Certainly this
              Court cannot conclude that the Administrative Judge’s decision
              lacked a rational basis for its conclusion.

The court also found that res judicata did not apply as between the dependency and neglect
case in juvenile court and the administrative agency proceeding.

                                             II.

       Davis filed a timely notice of appeal to this Court. He raises two issues, which we
have restated:

              Whether the juvenile court’s refusal to enjoin Davis from
              performing his job at Y.E.S. is res judicata to the DCS
              determination that effectively prevents him from working
              around children at Y.E.S. because he has been indicated in the
              sexual abuse of a child.

              Whether there is substantial and material evidence to support the
              determination that Davis touched the Child inappropriately.




                                             -9-
                                              III.

        The issue of whether one action is barred by the res judicata effect of a previous action
is a question of law. In re Estate of Boote, 198 S.W.3d 699, 719 (Tenn. Ct. App. 2005). A
trial court’s determination regarding res judicata is reviewed de novo with no presumption
of correctness. Id.

        When a challenge is made to the sufficiency of the evidence to support an
administrative agency decision made by an administrative law judge, we review the entire
record to determine whether the decision is supported by “evidence which is both substantial
and material.” Tenn. Code Ann § 4-5-322(h)(5)(2005); Papachristou v. University of
Tennessee, 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000). Substantial and material evidence
is “such relevant evidence as a reasonable mind might accept to support a rational conclusion
and such as to furnish a reasonably sound basis for” the decision being reviewed.
Papachristou, 29 S.W.3d at 490 (quoting Clay County Manor v. State of Tennessee, 849
S.W.2d 755, 759 (Tenn. 1993)). Our review of the trial court’s decision is essentially a
determination of whether or not the trial court properly applied the “substantial and material
evidence” standard of review. Id. We do not substitute our judgment for the administrative
fact-finder, but we do consider evidence in the record that detracts from the weight of
evidence that the ALJ found persuasive. See Jones v. Bureau of TennCare, 94 S.W.3d 495,
501 (Tenn. Ct. App. 2002).

                                              IV.

                                               A.

        Davis argues that the judgment of the juvenile court bars the DCS determination that
he is “indicated” as a perpetrator of child sexual abuse because the practical effect of the
DCS determination is to prevent him from working around children whereas the juvenile
court refused to grant an injunction preventing him from working around children. We
disagree with Davis’s position. Generally, a valid judgment bars a subsequent action
concerning all issues litigated as well as those that could have been litigated. See Lien v.
Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998). However, a favorable judgment does not
bar a later action unless the person asserting res judicata as a defense proves numerous
elements including that “both proceedings involved the same cause of action.” Id. The
action in juvenile court in the instant case was a proceeding seeking to declare that the Child
was dependent and neglected. The burden of proof applicable to such a proceeding is clear
and convincing evidence. State Dept. of Children’s Services v. M.P., 173 S.W.3d 794, 801
(Tenn. Ct. App. 2005)(“A finding of dependency and neglect must be based on clear and
convincing evidence. Tenn.Code Ann. § 37–1–129(c).”). The burden of proof that the ALJ

                                              -10-
purported to apply in this action was a preponderance of the evidence and the standard of
appellate review is the lesser standard of substantial and material evidence. The differing
burdens of proof and elements involved make the juvenile court case a different cause of
action from that of the DCS administrative case. See Clements v. Pearson, 209 Tenn. 223,
227, 352 S.W.2d 236, 238 (1961)(discussing why acquittal in a criminal case does not bar
a later civil action). Accordingly, we hold that Davis’s argument that the administrative
proceeding was barred by the juvenile court judgment is without merit.

                                               B.

       We move now to the question of the sufficiency of the evidence. Before we reach the
specifics of the testimony, we note troubling aspects of the ALJ’s analysis.

       The ALJ, in making her “preponderance of the evidence” evaluation, seems to have
been greatly influenced by a principle lifted from a consolidated appeal of a dependency and
neglect case and a termination of parental rights case. The ALJ’s reference to this principle,
in her own words, is as follows:

              The Tennessee Court of Appeals in DCS v. M.P., 173 S.W.3d
              794, 2005 Tenn. App. LEXIS 105, cited a Tennessee statute
              which recognizes,

                      In all cases, when the best interests of the child
                      and those of the adults are in conflict, such
                      conflict shall always be resolved to favor the
                      rights and the best interests of the child, which
                      interests are hereby recognized as constitutionally
                      protected and, to that end, this part shall be
                      liberally construed. Tenn. Code Ann. § 36-1-
                      101(d).

(Underlining in original.) The significance of this principle to the ALJ and her
“understanding” of what it means and how she believes it applies to this case are shown by
its purposeful insertion in the ALJ’s opinion between (1) her discussion of the testimony of
Mother and Velez and (2) her discussion of how Davis must have touched the Child’s
“buttocks area.” The subject principle, as used in the Court of Appeals’ case referenced by
the ALJ, comes from an adoption statute, Tenn. Code Ann. § 36-1-101(d) (2010). The
principle also comes into play in custody cases. See Bryan v. Bryan, 620 S.W.2d 85, 87
(Tenn. Ct. App. 1981) (quoting Riddick v. Riddick, 497 S.W.2d 740, 742 (Tenn. Ct. App.
1973)) (“The rights, desires and interests of the adult parties, parents, grandparents and others

                                              -11-
seeking the custody of small children are relegated to the background and are subordinated
to what is considered to be in the best interest of the children.”); see also Gaskill v. Gaskill,
936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). In both of these two types of cases, i.e.,
adoption and custody, an adult has a valid interest, i.e., a desire to maintain or obtain a status
with a child that is recognized by law. In our judgment, the subject principle has absolutely
no relevancy to a case where DCS is attempting in an administrative proceeding to prove an
individual is “indicated” as the perpetrator of child sexual abuse.

        The question remains: how did the ALJ believe this principle is relevant to this case?
We suspect, but do not know for sure, that the ALJ thought this principle meant that, in a
case involving an alleged act of child abuse, the fact finder was required to tip the balance
in favor of the child’s story and against the denial of an adult because “[i]n all cases, when
the best interests of the child and those of the adults are in conflict, such conflict shall always
be resolved to favor the rights and the best interests of the child.” DCS v. M.P., 173 S.W.3d
794, 813 (Tenn. Ct. App. 2005). If this is what the ALJ thought, she was incorrect. As we
have pointed out, this principle simply recognizes that in adoption and custody cases there
is a valid interest of an adult that must give way to the best interest of a child.

                                                C.

       The ALJ relied upon the following regulation:

               (1) A report made against an alleged perpetrator shall be
               classified as “indicated” if the preponderance of the evidence,
               in light of the entire record, proves that the individual committed
               abuse, severe child abuse, child sexual abuse, or neglect. Proof
               of one or more of the following factors, linking the abusive
               act(s) to the alleged perpetrator, may constitute a preponderance
               of the evidence:

               (a) Medical and/or psychological information from a licensed
               physician, medical center, or other treatment professional, that
               substantiates that physical abuse, sexual abuse, or severe
               physical abuse occurred;

               (b) An admission by the perpetrator;

               (c) The statement of a credible witness or witnesses to the
               abusive or neglectful act;



                                               -12-
              (d) The child victim’s statement that the abuse occurred;

              (e) Physiological indicators or signs of abuse or neglect,
              including, but not limited to, cuts, bruises, burns, broken bones
              or medically diagnosed physical conditions;

              (f) Physical evidence that could impact the classification
              decision;

              (g) The existence of behavioral patterns that may be indicative
              of child abuse/neglect and corroborates other evidence of abuse,
              severe child abuse, child sexual abuse, or neglect should be
              examined;

              (h) The existence of circumstantial evidence linking the alleged
              perpetrator to the abusive or neglectful act(s) (e.g., child was in
              care of the alleged perpetrator at the time the abuse occurred and
              no other reasonable explanation of the cause of the abuse exists
              in the record).

Tenn. Comp. R. & Regs. ch. 0250-7-9-.05 (2006).

       In her findings sustaining the allegations against Davis as “indicated,” the ALJ stated:

              Validation Factors (a), (b), (c), (e), (f), (g), or (h) were not
              presented and those Factors are not found to be met.

              Validation Factor (d) has been met. The [C]hild victim . . .
              made credible statements to the [M]other and forensic
              interviewer who testified at the hearing. . . .

              There is a preponderance of the evidence, which establishes that
              [Davis] committed child sexual abuse involving [the Child].

(Paragraph numbering omitted.)

       It is clear to us that the ALJ primarily focused on the “validation factors” of the
subject regulation in making her “preponderance of the evidence” evaluation. The ALJ
seems to have “mechanically” applied the regulation – focusing as she did on her perception
of “consistency” of the Child’s stories – rather than focusing on the real issue, i.e., does the

                                              -13-
totality of the evidence preponderate in favor of a finding that Davis committed an act that
falls within the statutory definition of child abuse. Our conclusion is strengthened by the fact
that the ALJ referenced a portion of the “Department of Children’s Services Policies” as a
basis for her findings, which policies, as pertinent here, focus on whether the statements of
the victim are “consistent.” The focus of the ALJ’s analysis was whether the statements to
Mother were consistent with the statements to interviewer Velez. We have previously
observed that, in determining whether child sexual abuse has occurred, the fact finder should
focus on whether the applicable burden of proof has been met, and be guided by that
determination rather than on DCS regulations which purport to define the quantum of proof
necessary to prove a case. Brown v. State, No. E2004-01272-COA-R3-CV, 2004 WL
2715283, at *6 (Tenn. Ct. App. E.S., filed Nov. 30, 2004).

                                              D.

         Nevertheless, even under the DCS checklist used by the ALJ to sustain the accusation
against Davis, there is no substantial and material evidence to support the finding. The one
and only “validation factor” present was the Child’s story as told to Mother and as told to
Velez. The ALJ determined that the two versions were consistent and therefore credible.
The ALJ found, however, that one part of the story as related to Mother, i.e., the alleged
touching on the front pubic area outside the clothing, was not substantiated for numerous
reasons. Since the sole basis for the ALJ’s determination is the consistency of the stories,
we believe that even one significant inconsistency is a factor that deserved attention and that
it fairly detracts from the weight of the testimony that the ALJ credited.

       We also note that the forensic interviewer was unable to specify many details. Some
lack of detail was related directly to the inadequacy of the story told by the Child. The
interviewer testified that the Child was unable to provide some specifics, such as the number
of times the alleged abuse occurred or the kind of clothing she was wearing at the time.
Other details, such as the names the child used in identifying the body parts that Davis
allegedly touched, were missing because the interviewer did not take notes. Since the ALJ’s
finding is based on the DCS checklist, and the DCS checklist includes the presence of detail
as being supportive of abuse, we believe the lack of detail in the forensic examiner’s
testimony repeating the Child’s disclosure also detracts from the evidence that the ALJ
credited.

       In addition to all the problems with the ALJ’s analysis of the evidence that we have
noted above, we find the disclosure as related to the forensic interviewer to be patently
inconsistent with the disclosure to Mother. According to Mother, the Child disclosed at least
five events that, with the one exception of touching in the front outside the clothing, all
involved groping of the Child’s buttocks under her panties. According to Velez’s report

                                              -14-
which was introduced as an exhibit to his testimony, the Child “denied Mr. Davis did
anything other than touch her on her thigh.” Velez testified at the hearing that his report was
accurate and complete. He reiterated in his testimony that “[s]he did not” disclose any
touching of any body part other than her outer thigh. The Child could not say how many
times this sort of touching occurred; only that it happened more than once. There was no
cupping of the hand or groping such as described by Mother in the disclosure as related by
Velez.

       The trial court placed considerable emphasis on the fact that a “demonstration”
occurred and that the ALJ saw the demonstration. We are not convinced that such deference
to the ALJ’s senses is warranted in light of the full record in this case. The ALJ narrated the
demonstration on the record as follows:

               . . . It appears . . . that you have demonstrated that the [C]hild
               showed [Davis’s] hand going down through the top of a panty,
               through the leg portion of a panty, to the outside top of the thigh.

               In fact, the very top of the thigh just under the bottom part of a
               girl’s panty leg opening. . . .

Davis’s counsel offered the clarification that the touching was “definitely not the side of the
waist and not the side of the hip,” which the ALJ accepted. This description by counsel is
inconsistent with the ALJ’s later interpretation of the demonstration as Davis’s hand passing
across the Child’s buttocks to reach her thigh. This distinction is important not only for the
criterion of “consistency,” but also because the ALJ specifically noted that “the outer thigh
is not one of the areas of the . . . body set out in the statutory definition of child sexual abuse,
[therefore] the mere touching of the [C]hild’s outer thigh would not constitute child sexual
abuse.”

        Before concluding our analysis, we think it important to note some of the facts that
detract from a finding of sexual abuse. Most of these missing facts fall within the DCS
checklist we have previously discussed. The disclosure was made approximately a year after
the alleged abuse. No physical evidence, as is often associated with pedophiles, was found.
Davis has an impeccable reputation during a lengthy career with troubled youth. The door
of Davis’s office was never closed or locked. There were no eyewitnesses. As set forth in
the interviewer’s report, Davis did not tell the Child to keep what had happened a secret. The
Child showed no behavioral changes indicative of abuse. At least one professional friend of
Mother – to whom the Child spoke – told her the Child was fabricating the story. There were
no physical signs of abuse; there was not even a professional examination or counseling
session.

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       In conclusion, we hold that contrary to the trial court’s judgment, the ALJ’s findings
are not supported by substantial and material evidence. The findings are based solely on the
erroneous determination that the disclosure to Velez was consistent with the disclosure to
Mother. The disclosures are in fact, inconsistent. There is weighty evidence that no sexual
abuse occurred. While our role on review is not to determine the preponderance of the
evidence, we think it important in light of the impact upon Mr. Davis to state that the ALJ
did not make an appropriate determination of the preponderance of the evidence as an
independent fact finder. Rather, the ALJ appears to have erroneously invoked a presumption
in favor of the Child and worked though a checklist and erroneously found the presence of
one item on the checklist. In short, there is not “such relevant evidence as a reasonable mind
might accept to . . . furnish a reasonably sound basis for” the ALJ’s decision. See
Papachristou, 29 S.W.3d at 490.

                                             V.

       The judgment of the trial court is reversed. Judgment is entered in favor of Eddie
Davis. Costs on appeal are taxed to the State of Tennessee Department of Children’s
Services. This matter is remanded, pursuant to applicable law, for such further proceedings
as may be necessary for collection of costs and to give effect to the judgment.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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