Romero v. Colorado Department of Human Services , 417 P.3d 914 ( 2018 )

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