Arizona has a large population of vulnerable adults.  Arizona adopted the Adult Protective Services Act (“APSA”) in 1980.  The Arizona legislature has amended and supplemented APSA several times since.

The goal of APSA is to protect Arizona’s large population of vulnerable adults from abuse, neglect and financial exploitation.  In order to further the objective of protecting vulnerable adults, in 2006, Arizona added A.R.S. § 46-459, which provides for the Adult Protective Services Registry.

Pursuant to the law, the Arizona Department of Economic Security (the “Department” or “ADES”) is required to “maintain a registry of substantiated reports of abuse, neglect and exploitation of vulnerable adults made pursuant to § 46-458.”  “The registry shall contain the name and date of birth of the person determined to have abused, neglected or exploited a vulnerable adult, the nature of the allegation made and the date and description of the disposition of the allegation. The names of the vulnerable adult and reporting source shall not be reported to the registry.”  A.R.S. § 46-459(B).  The Department is required to maintain a report in the registry for 25 years.  The registry is a public record available on the Department’s website or by written request to the Department.

In order to protect the safety of children and vulnerable adults, the Department is required to conduct a background check on anyone applying to provide direct services to children or vulnerable adults, including to determine whether they are listed on the registry.

APSA provides due process to those accused of abuse, neglect or exploitation who ADES intends to list in the registry.  After completing an investigation into abuse, neglect and/or exploitation and finding that the allegations are substantiated, such that ADES intends to enter the incident into the registry, not more than 15 days after completing its investigation, the Department is required to notify the person.  The notice must state that “the department intends to enter a substantiated finding of abuse, neglect or exploitation in the registry and of that person’s right: 1. To receive a copy of the report containing the allegation and findings. 2. To a hearing before entry into the registry pursuant to § 46-459.”

Some of the issues that may arise at such a hearing were addressed in a recent Arizona Court of Appeals decision in Soto v. Arizona Department of Economic Security.

Soto v. Arizona Department of Economic Security

In this case, Stephen Soto appealed a superior court’s ruling upholding the ADES decision placing his name on the registry. Under A.R.S. § 12-910(E), a final administrative decision “shall be affirmed” unless the court concludes “the agency’s action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion.”

The following is from the Court’s decision.  Soto lived with and cared for his 81-year-old father, a “vulnerable adult” who suffered from dementia and Parkinson’s disease. After returning home from a long day at work, Soto became frustrated with his father for not listening and having to change two soiled pairs of adult diapers. Soto punched his father’s shoulder to make him “behave,” and hit him on the head with a diaper. A “tussle” ensued when his father tried sitting on the bed and pushed Soto away. Soto then lost it and shoved his father, causing him to fall into a dresser, resulting in a gash on his forehead. Soto was arrested and charged with vulnerable adult abuse and assault under A.R.S. §§13-3623(B)(1) and 1203(A)(1). He later pled guilty to disorderly conduct. A.R.S. §13-2904(A)(1).

Following the incident, Police referred the incident to Adult Protective Services (“APS”), a division of ADES that investigates vulnerable adult abuse, neglect and financial exploitation. After the investigation, APS substantiated a claim of elder abuse, which was upheld by the Administrative Law Judge (“ALJ”) and adopted as the ADES’ final agency decision. Following APS’ claim, Soto’s name was placed on the Adult Protective Services Registry (“Registry”) as follows:

On or about December 22, 2017, STEPHEN CABRERA SOTO (date of birth 07/18/1966) abused a vulnerable adult by intentionally inflicting physical harm on the vulnerable adult. Specifically, while providing care for the vulnerable adult, Mr. Soto punched the vulnerable adult in the back, hit the vulnerable adult on the head with a soiled paper, and pushed the vulnerable adult, causing the vulnerable adult to fall, hit his head on a dresser, and sustain an approximately eight centimeter laceration on his forehead. Such conduct constitutes abuse pursuant to A.R.S. §46-451-(A)(1)(a).

Soto raised several issues in his appeal, arguing that his name should not be listed in the registry.

Hearsay

First, he argued APS improperly relied on hearsay evidence in the administrative proceedings based on the fact that the APS investigator merely “read from various reports,” including police and medical reports, “which were not generated by APS.” Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies.  Rule 801(c) defines hearsay as

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(Emphasis added.)

Prior precedent, Weisler v. Prins, concluded that “reliable hearsay is admissible in administrative proceedings and may even be the only support for an administrative decision.” 167 Ariz. 223, 227 (App. 1990). Further, “a written statement from the reporting source may be admitted [at the hearing] if the time, content and circumstances of that statement are sufficiently indicative of its reliability.” A.R.S. §46-458(G)(4).  So, the court rejected Soto’s first argument because he provided no evidence that doubted the police or medical reports as unreliable.

Abuse

Second, Soto argued that the evidence did not prove he intended to physically harm his father, which is an element of abuse. Since APSA is a “statutory scheme that protects vulnerable adults,” courts construe it “broadly to effectuate the legislatures purpose.” In the instant case, APSA defines “abuse” as the “intentional infliction of physical harm.” A.R.S. § 46-451(A)(1)(a).

Soto admitted to paramedics and police officers that he had a “rough day” at work, was “getting frustrated,” ultimately “lost it” and “deserved to go to jail.” Soto also knew his father had recently fallen and injured himself. Previously, Soto testified to the ALJ that he pushed his father so he would not slip on feces or soil the bed. The ALJ rejected that version of events.

The court refused to second-guess that credibility determination because the ALJ is the sole arbiter of witness credibility. Mustard v. Indus. Comm’n, 164 Ariz. 320, 321 (App. 1990). In a tort context, “intent” is defined as knowing “the consequences are certain, or substantially certain, to result from his act.” Restatement (Second) of Torts § 8A cmt. b (1965). Therefore, the ALJ could infer from the circumstances that Soto knew his father would fall when pushed. The court held that substantial evidence supported the superior court’s and ADES’ conclusion of abuse.

Adult Protective Services Registry

Finally, Soto claimed that the Registry erroneously stated he committed three acts of abuse:

  • Soto punched the vulnerable adult in the back;
  • hit the vulnerable adult on the head with a soiled paper; and
  • pushed the vulnerable adult.

Rather, Soto believed only the push caused “physical harm” to his father causing a laceration on his forehead. Soto attempted to segregate his movement into three discrete acts as if in slow motion, but these movements occurred in rapid succession, forming an incidence of alleged abuse. Under APSA’s criminal counterpart, A.R.S. § 13-3623(B), the state may allege multiple acts that caused a single result and were part of a single criminal undertaking.

The court rejected Soto’s argument.  While the final push may have drawn blood, the movements could not be separated from one another for purposes of alleged elder abuse.

For the all the foregoing reasons, the Court of Appeals affirmed the ADES’ decision.

We are here to help

If you have any questions about abuse, neglect or exploitation of vulnerable adults in Arizona, please give us a call at 480.607.7900 or contact our office.

The post Arizona’s Adult Protective Services Act Registry appeared first on Berk Law Group, P.C..