DEHESA VS. CLARK CTY. DEP'T OF FAMILY SERVS.

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed a district court order denying a petition for judicial review of an administrative decision. It applied the standard that review of petitions for judicial review is the same for the appellate court as for the district court, giving no deference to the district court's decision. Elizondo v. Hood Machine, Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013); City of North Las Vegas v. Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718 (2011). Questions of law, including statutory interpretation, are reviewed de novo; factual findings are reviewed for clear error or arbitrary abuse of discretion and will not be overturned if supported by substantial evidence. Warburton, 127 Nev. at 686, 262 P.3d at 718. Substantial evidence "exists if a reasonable person could find the evidence adequate to support the agency's conclusion," and the court "will not reweigh the evidence or revisit an appeals officer's credibility determination." Elizondo, 129 Nev. at 784, 312 P.3d at 482. On statutory/regulatory interpretation, the court applied plain-language analysis. Valenti v. State, Dep't of Motor Vehicles, 131 Nev. 875, 879, 362 P.3d 83, 85 (2015); Williams v. United Parcel Servs., 129 Nev. 386, 391-92, 302 P.3d 1144, 1147 (2013). The court noted that these rules of statutory construction also apply to administrative regulations. Warburton, 127 Nev. at 687, 262 P.3d at 718. NRS 432B.020(1) defines abuse or neglect to include physical or mental injury of a nonaccidental nature caused or allowed by a person responsible for a child's welfare. NAC 432B.020 further defines "nonaccidental" as "arising from an event or effect that a person responsible for a child's welfare could reasonably be expected to foresee, regardless of whether that person did not intend to abuse or neglect a child or was ignorant of the possible consequences of his actions or failure to act." The court held that the regulation focuses on foreseeability and that intent is not a factor. It declined to apply DeHesa's cited insurance-context authorities, Allstate Ins. Co. v. Sanders, 495 F. Supp. 2d 1104 (D. Nev. 2007), and Catania v. State Farm Life Ins. Co., 95 Nev. 532, 598 P.2d 631 (1979), because they interpreted "accidental" in insurance policies, not in the child-welfare context. Applying the foreseeability standard to the record, the court concluded the injury was nonaccidental. On procedural due process, the court held that DeHesa failed to preserve the subpoena issue because the record showed he never requested a subpoena from the hearing officer. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (issues not argued below are deemed waived and will not be considered on appeal). The court distinguished Gete v. INS, 121 F.3d 1285, 1291 (9th Cir. 1997), noting the district court here did not dismiss for lack of jurisdiction but confined its review to the record consistent with NRS 233B.135(1)(b). The court further held that even if the request had been made, subpoena authority under NRCP 45 does not apply in administrative hearings. Dutchess Bus. Servs., Inc. v. Nev. State Bd. of Pharmacy, 124 Nev. 701, 713, 191 P.3d 1159, 1167 (2008); see also NRCP 1. The court also observed that NRS 233B does not grant administrative agencies subpoena power. Andrews v. Nev. State Bd. of Cosmetology, 86 Nev. 207, 208, 467 P.2d 96, 97 (1970) (citing NRS 233B.123). In a footnote, the court found no prejudice to DeHesa's substantial rights because the sought testimony was immaterial to the foreseeability-based substantiation. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). On the final issue, the court rejected the claim that the hearing officer held DeHesa to a higher standard due to his position. The court found the record showed DeHesa failed to follow shift-change procedures required of all probation officers and thus was held to the applicable probation-officer standard, not that of a parent. Because the finding rested on substantial evidence, the court found no abuse of discretion. Warburton, 127 Nev. at 686, 262 P.3d at 718; Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008). The court also declined DeHesa's related arbitrary-and-capricious argument in light of its holding that intent was not required.

In plain language

Dana DeHesa worked for 14 years as a probation officer at the Clark County juvenile detention center. In August 2018, he was assigned to a unit that included a 15-year-old boy, referred to as J.J., who was on suicide watch. According to the opinion, DeHesa and J.J. engaged in "horseplay" - the two playing at slapping each other. When DeHesa went to close the door to J.J.'s room, J.J. stuck out his arm and tried to slap him. Even though DeHesa saw the boy's arm sticking out, he continued to close the door onto the forearm, pressing the door with both arms and his foot three times before letting J.J. pull his arm away. J.J. was injured. Several days later, J.J. told his parents about the incident during a visit. His parents raised concerns with a probation officer on duty. A report was eventually filed, and DFS investigated and "substantiated" - meaning it officially concluded there was enough evidence to support - an allegation of physical abuse. DeHesa appealed within the agency, lost, and then requested a formal administrative hearing. At that hearing, a hearing officer found DeHesa credible when he said the officers and juveniles engaged in horseplay and that he did not intend to hurt the boy. But the hearing officer concluded that intent to injure did not matter under the applicable state regulation, and that DeHesa's actions were "nonaccidental." The officer upheld the finding of abuse. DeHesa then asked the district court to review the decision. He argued two main things: first, that the hearing officer defined "nonaccidental" incorrectly by not requiring an intent to injure; and second, that his constitutional right to fair procedures (called "procedural due process") was violated because he could not use subpoenas to compel witnesses and documents that, he said, would have shown he properly reported the incident and that J.J. had a reason to lie. The district court rejected these arguments and denied his petition. Although DeHesa has since resigned, his name was placed on the Nevada State Central Registry - a state database of substantiated child abuse or neglect reports - which the opinion notes may adversely affect him. The Court of Appeals affirmed. It held that under the state regulation defining "nonaccidental," what matters is whether a person responsible for a child could reasonably foresee the harmful event - not whether the person intended to cause harm. Because DeHesa saw the boy's arm in the doorway, pressed the door repeatedly, worried about dislocating a shoulder or elbow, and admitted horseplay could be dangerous, the court concluded the injury was foreseeable and therefore nonaccidental. On the subpoena issue, the court explained that the record showed DeHesa never actually asked the hearing officer to issue a subpoena, so he did not preserve the issue for appeal. The court added that even if he had asked, it would not have changed things: the rule allowing subpoenas in regular court cases does not apply in administrative hearings, and Nevada law does not grant administrative agencies general subpoena power. The court also noted that the witness testimony he wanted would not have mattered because the finding of abuse rested on the injury being foreseeable, not on any failure to report. Finally, the court rejected DeHesa's claim that he was unfairly held to a higher standard than a parent would be. The court found the record showed he failed to follow the procedures required of all probation officers during shift changes, so he was held to the standard applicable to probation officers generally.