Brown v. Department of Human Servs.

Lawrence BROWN v. DEPARTMENT OF HUMAN
SERVICES

97-479                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 18, 1997


1.   Administrative law & procedure -- argument not presented to
     agency -- administrative determination cannot be set aside on
     argument not presented to agency. -- The supreme court did not
     reach the issue of whether the delay prejudiced the
     appellants' due process rights because they did not present
     this argument to the Office of Hearing and Appeals; the
     supreme court will not set aside an administrative
     determination on a ground not presented to the agency; the
     trial court correctly rejected the appellants' argument for
     this reason.

2.   Administrative law & procedure -- appeal & error -- argument
     not presented at administrative hearing -- argument not
     considered on appeal. -- The record revealed that no objection
     was made below to the granting of a continuance; because the
     appellants failed to present this argument at the
     administrative hearing, the supreme court did not consider it
     on appeal.

3.   Administrative law & procedure -- trial court may reverse if
     it finds that substantial rights of petitioner have been
     prejudiced due to agency's decision -- no error found in trial
     court's affirmance of decision. -- The trial court may reverse
     or modify an agency's decision if it determines that the
     substantial rights of the petitioner have been prejudiced due
     to an agency's decision that is in violation of constitutional
     or statutory provisions; thus, under Ark. Code Ann.  25-12-
     212(h), even if the supreme court were to agree that the
     appellants' due process rights were violated, it would have
     been within the trial court's discretion to reverse and remand
     their case; the supreme court could not say that the trial
     court erred in upholding the agency's decision that there was
     some credible evidence to support the allegations of abuse.


     Appeal from Pulaski Circuit Court; John Ward, Judge; affirmed.
     Law Offices of Treeca J. Dyer, P.A., by:  Treeca J. Dyer, for
appellant.
     Joel P. Landreneau, for appellee.
     W.H."Dub" Arnold, Chief Justice.
     The appellants, Lawrence Brown and Charles Murdock, appeal an
order of the Pulaski County Circuit Court upholding the decision of
the Office of Hearing and Appeals of the Arkansas Department of
Human Services that there was some credible evidence to support
allegations that they had abused a juvenile at a youth facility in
North Little Rock.  Finding no merit to the appellantsþ three
arguments for reversal, we affirm the trial courtþs judgment.
     The appellants first argue that the trial court erred in
rejecting their argument that their due process rights were
violated because OHA did not complete its hearing process within
ninety days from the date that it received their request for a
hearing.  Under the Arkansas Administrative Procedures Act,
particularly Ark. Code Ann.  12-12-512 (Repl. 1995), the
administrative hearing process must be completed within ninety days
from the date of receipt of the request for a hearing.   Appellants
filed their request for a hearing on January 31, 1996, but OHA did
not conclude the hearing until May 21, 1996.  
     We need not decide whether this delay prejudiced the
appellantsþ due process rights because they did not present this
argument to OHA.  It is well-settled that we do not set aside an
administrative determination on a ground not presented to the
agency.  Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189,
685 S.W.2d 511 (1985).  The trial court correctly rejected the
appellantsþ argument for this reason.
     Next, the appellants assert that the trial court erred in
rejecting their argument that the continuance of the hearing from
May 2, 1996, to May 21, 1996, on DHSþs motion so that it could
secure the presence of its key witness in the case, violated their
due process rights.  We cannot reach this argument because the
record reveals that no objection was made below to the granting of
a continuance.  Because the appellants failed to present this
argument at the administrative hearing, we do not consider it on
appeal.  Riverways Home Care v. Ark. Health Serv. Commþn, 309 Ark.
452, 831 S.W.2d 611 (1992).
     Finally, the appellants contend that because the trial court
found that there was some credible evidence of abuse, it erroneously
felt compelled to reject their due process arguments, as it reasoned
that it þmust affirm the DHS decision.þ  Arkansas Code Annotated 
25-12-212(h) (Repl. 1996) provides in part that the trial court
þmayþ reverse or modify an agencyþs decision if it determines that
the substantial rights of the petitioner have been prejudiced due
to an agencyþs decision that is in violation of constitutional or
statutory provisions.  Thus, under our statute, even if we were to
agree that the appellantsþ due process rights were violated, it
would have been within the trial courtþs discretion to reverse and
remand their case.  When reviewing the trial courtþs order, it
appears to us that he made separate findings with respect to the
substantive evidence of abuse and the appellantsþ due process
claims.  In any event, we cannot say that the trial court erred. 
     For the foregoing reasons, we affirm the trial courtþs
decision.