The petitioner’s name should be expunged from the Michigan Child Abuse Neglect Central Registry because the trial court erred in applying MCL 24.287, the Michigan Court of Appeals has ruled.

In Chavies v. Dep’t of Health and Human Services (Docket No. 352552),  the petitioner’s name was placed on the Michigan Child Abuse Neglect Central Registry (the Registry) after an investigation by the respondent, Department of Health and Human Services. The petitioner subsequently asked that her name be removed from the Registry. A hearing was held and the administrative law judge (ALJ) ruled the petitioner’s name should be expunged. The respondent then requested a rehearing due to a computer “glitch” that prevented it from obtaining risk assessment information. A second ALJ granted the respondent’s request for a rehearing. At the rehearing, a third ALJ reversed the first ALJ and concluded that the petitioner’s name should be on the Registry. The petitioner appealed to the Ingham County Circuit Court, which denied her request for expungement.

On appeal, the petitioner argued the Ingham County trial court erroneously applied MCL 24.287, which provides the basis on which a rehearing may be granted.

“We agree,” the Court of Appeals said. “Although respondent failed to present the individual scoring for the risk assessment at the first hearing, this did not make the record inadequate for judicial review. The record by all accounts met the requirements of MCL 24.286(1) and contained the entirety of the evidence necessary for the ALJ’s decision. The record may have been incomplete, but not necessarily inadequate.”

Accordingly, the Court of Appeals reversed the trial court’s decision. “On remand, the circuit court shall reinstate the first ALJ’s decision expunging petitioner’s name from the Registry.”

Judges Michael F. Gadola, David H. Sawyer and Michael J. Riordan were on the panel that issued the opinion.

Background

The respondent investigated the petitioner for child abuse and determined that she had physically abused her child, TQ. As part of its investigation, the respondent completed a risk assessment and determined the petitioner was a “high risk” for further abuse. The petitioner was assessed three points for “neglect” and four points for “abuse.” This assessment placed the petitioner into “Category II,” which mandated that her name be placed on the Registry pursuant to MCL 722.628d(1)(d).

The petitioner sought judicial review and asked that her name be expunged from the Registry. An ALJ conducted a hearing and held the respondent “failed to justify” that the petitioner was a “high risk of abuse.” The ALJ explained this decision was based on the respondent’s failure to show the scoring for individual questions that were part of the risk assessment. The ALJ ordered that the petitioner’s name be expunged from the Registry.

The respondent sought a rehearing, arguing that a computer “glitch” prevented it from printing the scoring for the individual questions on the petitioner’s risk assessment. A second ALJ granted the respondent’s motion for a rehearing.

The rehearing was conducted by a third ALJ. The parties agreed the evidence from the first hearing would be incorporated into the rehearing. The only new evidence came from the respondent in the form of the printed risk assessment scoresheet. The ALJ found the petitioner had a neglect score of three and an abuse score of four, which placed her “within the high range and thus requires placement on Central Registry with the substantiation of physical abuse.” Accordingly, the ALJ reversed the first ALJ’s decision.

The petitioner appealed to the Ingham County Circuit Court. The trial court denied the petitioner’s request for expungement from the Registry.

The petitioner appealed. 

‘Clear And Adequate Record’

In its analysis, the Court of Appeals pointed out that MCL 24.287 explains when a rehearing may be granted: “… (2) Where for justifiable reasons the record of testimony made at the hearing is found by the agency to be inadequate for purposes of judicial review, the agency on its own motion or on request of a party shall order a rehearing.”

Likewise, the Court of Appeals noted that Mich Admin Code, R 792.10136(1), says: “Where for justifiable reasons the record of testimony made at the hearing is found to be inadequate for purposes of judicial review, the administrative law judge on his or her own initiative, or on request of a party, shall order a rehearing.”

Meanwhile, the Children’s Protective Services Manual (known as the PSM) - specifically PSM 717.3 - “appears to offer an additional reason for a rehearing,” the Court of Appeals observed. According to PSM 717.3:

“A rehearing is a full hearing, which is granted when the original hearing record is inadequate for purposes of judicial review or there is newly discovered evidence that could affect the outcome of the original hearing.”

“A reconsideration is a paper review of the facts, law and any new evidence or legal arguments. A reconsideration is granted when the original hearing record is adequate for judicial review and a rehearing is not necessary but a party believes the ALJ failed to accurately address all the issues.”

…

“The department should file a written request for rehearing/reconsideration if any of the following exists:

• Newly discovered evidence, which could affect the outcome of the original hearing.”

The PSM “goes beyond that which is provided in the statute,” the Court of Appeals wrote. “The circuit court appears to have relied on both PSM 717.3 and MCL 24.287, but it is not clear from its decision to what extent it relied on each. Petitioner raises a challenge to PSM 717.3, contending that it is merely an internal department manual with no binding force of law. We agree.”

The Court of Appeals explained that an agency can promulgate rules that have the full force and effect of law. In order for a rule to be properly promulgated, the agency must follow certain procedures and, if this procedure is not satisfied, a rule will not have the force of law. “There is no indication from the record that the PSM is a promulgated rule with the binding force of law, and respondent has presented no evidence or authority indicating otherwise,” the appeals court said. “In fact, the manual itself makes no suggestion that it is binding and, instead, gives every indication that it is an internal guidance manual for respondent. Furthermore, Michigan law suggests that such a manual does not have the full force of law. Therefore, to the extent that the second ALJ or the circuit court believed that the PSM was binding, such a belief was erroneous. A rehearing could be granted only under the terms of MCL 24.287, which did not include criteria for newly discovered evidence.”

Next, the Court of Appeals examined MCL 24.287 and agreed with the petitioner’s argument that the record “was not inadequate for judicial review such that a rehearing was warranted.” Subsection (2) of the statute provides that a rehearing is permitted when “the record of testimony made at the hearing is found by the agency to be inadequate for purposes of judicial review,” the appeals court observed.

The Court of Appeals further said MCL 24.286(1) provides that the “official record” of a hearing shall include:

“(a) Notices, pleadings, motions and intermediate rulings.

 (b) Questions and offers of proof, objections and rulings thereon.

 (c) Evidence presented.

 (d) Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose.

 (e) Proposed findings and exceptions.

 (f) Any decision, opinion, order or report by the officer presiding at the hearing and by the agency.”

Here, the record “was clear and adequate” and the first ALJ “provided a sufficient explanation for its decision to allow meaningful judicial review,” the Court of Appeals said. “The language of MCL 24.287 is clear and plain, and we must follow its terms without deviation and without injecting our own language or meaning into the statute. … Although the first ALJ’s decision was based on respondent’s failure to present evidence - and although that failure was apparently attributable to a computer error - a rehearing is not permitted for the failure to present evidence. Moreover, we note that, based on our review of the record, respondent made no attempt to request an adjournment or to even alert the first ALJ to the computer system error. Accordingly, the circuit court made an error of law in upholding the second ALJ’s decision to order a rehearing.”

The Court of Appeals concluded by rejecting the respondent’s claim that the petitioner waived any challenge to the rehearing. “Respondent maintains that, because petitioner did not respond to the motion for rehearing, petitioner waived this issue for appeal. Respondent presents no authority demonstrating that petitioner had to file a response opposing the motion for rehearing. … Furthermore, MCL 24.301 prohibits immediate judicial review of preliminary, procedural, or intermediate agency actions or rulings. The second ALJ’s decision to grant the motion for rehearing was not a final order but merely a preliminary, procedural, or intermediate ruling. Finally, there is no indication from the record that petitioner or her counsel agreed to the rehearing. Rather, petitioner agreed that evidence from the first hearing could be incorporated into the second hearing. This was already after the rehearing had been granted, and such actions can hardly constitute the relinquishment or abandonment of her right to challenge the rehearing process itself.”

Based on the foregoing, the Court of Appeals reversed and remanded, with instructions that the trial court reinstate the first ALJ’s decision.