Becker-Witt v. Board of Examiners of Social Workers , 256 Mich. App. 359 ( 2003 )

663 N.W.2d 514 (2003) 256 Mich. App. 359

Mary K. BECKER-WITT, Petitioner-Appellee/Cross-Appellant,
v.
BOARD OF EXAMINERS OF SOCIAL WORKERS, Department of Consumer and Industry Services, Respondent-Appellant/Cross-Appellee.

Docket No. 226923.

Court of Appeals of Michigan.

Submitted January 21, 2003, at Grand Rapids. Decided April 24, 2003, at 9:05 a.m. Released for Publication June 13, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Michael A. Lockman, Assistant Attorney General, for the respondent.

Robert F. Kaufman, Traverse City, for the petitioner.

Before OWENS, P.J., and MURPHY and CAVANAGH, JJ.

PER CURIAM.

Respondent Board of Examiners of Social Workers appeals by leave granted a trial-court order reversing the board's revocation of petitioner Mary K. Becker Witt's social worker's license. Petitioner also filed a cross-appeal. We reverse.

Subsection 3(1) of the Child Protection Law, M.C.L. § 722.623(1), provides in pertinent part that a social worker who has reasonable cause to suspect child abuse must immediately make an oral report of the suspected abuse, and then file a written report within seventy-two hours of the oral report. Here, the hearing referee found that petitioner had reasonable cause to believe that one of her clients sexually abused the client's child. The referee further found that petitioner failed to properly report the sexual abuse. The referee found that petitioner's failure to comply with the Child Protection Law constituted both gross negligence and incompetence, as defined by the Occupational Code, M.C.L. § 339.604(e) and (g). On the basis of the referee's findings, respondent revoked petitioner's license.

However, the trial court reversed the agency's decision. In support of its ruling, the trial court opined that respondent had essentially abandoned the allegations of incompetence. In addition, the trial court noted that petitioner could not have been grossly negligent absent ordinary negligence. The trial court also noted that petitioner could only be negligent if she was somehow negligent in treating the client. The trial court ruled that, even if petitioner failed to comply with the Child Protection Law, petitioner did not owe a duty to her client's child. Thus, the trial court ruled that respondent failed to establish petitioner's negligence, thereby precluding a finding that she was grossly negligent. Finally, the trial court opined that respondent was without jurisdiction to enforce sanctions for a violation of the Child Protection Law where our Legislature expressly provided only civil and criminal penalties.

On appeal, respondent contends that the trial court erred in reversing respondent's administrative decision to revoke petitioner's social worker's license. Generally, an "``administrative agency decision is reviewed by the circuit court to determine whether the decision was authorized by law and supported by competent, material, and substantial evidence on the whole record.'" Barak v. Oakland Co. Drain Comm'r, 246 Mich.App. 591, 597, 633 N.W.2d 489 (2001), quoting Michigan Ed. Ass'n Political Action Committee (MEAPAC) v. Secretary of State, 241 Mich.App. 432, 443-444, 616 N.W.2d 234 (2000). "Substantial evidence" is defined as "``any evidence that reasonable minds would accept as adequate to support the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence.'" Barak, supra at 597, 633 N.W.2d 489, quoting MEAPAC, supra at 444, 616 N.W.2d 234.

We review a trial court's review of an agency decision to determine "``whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency's factual findings.'" Dignan v. Michigan Pub. School Employees Retirement Bd., 253 Mich.App. 571, 575, 659 N.W.2d 629 (2002), quoting Boyd v. Civil Service Comm., 220 Mich.App. 226, 234, 559 N.W.2d 342 (1996). This is essentially a "clearly erroneous" standard of review.^[1]Dignan, supra at 575-576, 659 N.W.2d 629, citing Boyd, supra at 234-235, 559 N.W.2d 342.

First, respondent challenges the trial court's conclusion that respondent was without jurisdiction to enforce the Child Protection Law. Here, respondent penalized petitioner under the Occupational Code, which provides that a person is subject to penalties if the person commits either "an act of gross negligence in practicing an occupation," M.C.L. § 339.604(e), or "an act which demonstrates incompetence," M.C.L. § 339.604(g). Respondent found that petitioner's failure to comply with the Child Protection Law constituted both gross negligence and incompetence. Where, as here, the purported act of gross negligence or incompetence is the violation of a separate statutory scheme that is closely related to the occupation at issue, we do not believe that an agency is "enforcing" the separate statutory scheme. Accordingly, the trial court erred in ruling that respondent's lack of jurisdiction to enforce the Child Protection Law prevented it from penalizing petitioner.

Next, respondent contends that the trial court erred in reversing its finding that petitioner's failure to comply with the Child Protection Law constituted an act demonstrating both gross negligence and incompetence.^[2] The Occupational Code defines "incompetence" as "a departure from, or a failure to conform to, minimal standards of acceptable practice for the occupation," M.C.L. § 339.104(8). As noted above, the Occupational Code provides for penalties where a person commits "an act which demonstrates incompetence." MCL 339.604(g). Thus, the Occupational Code plainly provides that a single act of incompetence may lead to penalties. Here, the trial court's rulings assumed that petitioner violated subsection 3(1) of the Child Protection Law — a statutory provision that is professionally relevant to social workers. Indeed, we believe that respondent could find that failing to comply with this professionally relevant statutory provision was a failure to conform to a minimal standard of acceptable practice. Accordingly, respondent could have found that petitioner committed an act demonstrating "incompetence" under the Occupational Code.

However, the Occupational Code does not define "gross negligence." As noted above, the trial court ruled that petitioner could not have been grossly negligent because she only owed a legal duty to her client.

Indeed, our Supreme Court has ruled that there can be no gross negligence in the absence of a legal duty. Maiden v. Rozwood, 461 Mich. 109, 135, 597 N.W.2d 817 (1999). Whether a duty is owed is a question of law. Beaudrie v. Henderson, 465 Mich. 124, 130, 631 N.W.2d 308 (2001). In Cipri v. Bellingham Frozen Foods, Inc., 235 Mich.App. 1, 596 N.W.2d 620 (1999), we noted that a duty of care may derive from either a statute or "``the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his action as not to unreasonably endanger the person or property of others.' " Id. at 15, 596 N.W.2d 620, quoting Clark v. Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967). "``Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part.'" Id., quoting Clark, supra at 261, 150 N.W.2d 755.

Here, it is undisputed that petitioner owed her client a legal duty. However, we believe that the Child Protection Law also imposed a legal duty on petitioner, on behalf of her client's children, to report her client's suspected child abuse. Indeed, the purpose of the Child Protection Law is to protect abused and neglected children. See Williams v. Coleman, 194 Mich.App. 606, 614-615, 488 N.W.2d 464 (1992). Alternatively, petitioner may have owed a duty to the public to report the suspected child abuse. Cipri, supra at 15, 596 N.W.2d 620. Accordingly, we believe that the trial court's interpretation of gross negligence was too narrow; as a matter of law, we are not persuaded that petitioner only owed a legal duty to her client. Consequently, the trial court erred to the extent that it ruled that respondent could not have found petitioner to be grossly negligent.

However, petitioner contends that the trial court properly reversed the revocation of her license because respondent failed to prove petitioner's gross negligence or incompetence. Indeed, it is well established that we may affirm where the trial court reaches the right result, but for the wrong reason. People v. Jory, 443 Mich. 403, 425, 505 N.W.2d 228 (1993). This issue requires our examination of the evidence introduced below.

As a preliminary matter, we note that petitioner challenges the referee's ruling admitting her prior testimony. Ordinarily, a trial court's decision to admit evidence is reviewed for an abuse of discretion. People v. Cain, 238 Mich.App. 95, 122, 605 N.W.2d 28 (1999). "An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion." Churchman v. Rickerson, 240 Mich.App. 223, 233, 611 N.W.2d 333 (2000). It should be noted that a somewhat relaxed evidentiary standard applies to administrative hearings: "[T]he rules of evidence as applied in a nonjury civil case in circuit court shall be followed as far as practicable, but an agency may admit and give probative effect to evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs." MCL 24.275.

Having reviewed petitioner's prior testimony, we believe that there is ample evidentiary support for the referee's finding that petitioner had reasonable cause to suspect that her client committed an act of abuse.^[3] Moreover, two Family Independence Agency employees testified that petitioner's client's files did not reveal any evidence that petitioner ever made an oral or written report of the possible abuse.^[4] As such, we believe that there was substantial evidence supporting the referee's finding that petitioner violated the Child Protection Law. Barak, supra at 597, 633 N.W.2d 489. As a result, we reject petitioner's contention that there is an alternate basis for affirming the trial court's ruling.

Petitioner's remaining contentions of error were not addressed by the trial court below.^[5] Consequently, we decline to address them on appeal. Herald Co., Inc. v. Ann Arbor Pub. Schools, 224 Mich.App. 266, 278, 568 N.W.2d 411 (1997).

Reversed. We do not retain jurisdiction.

NOTES

[1] A finding is clearly erroneous where, after reviewing the entire record, we are "left with the definite and firm conviction that a mistake has been made." Walters v. Snyder, 239 Mich.App. 453, 456, 608 N.W.2d 97 (2000).

[2] Respondent contends that the trial court erred in failing to even consider whether petitioner's purported violation of the Child Protection Law constituted incompetence. As noted above, the trial court essentially ruled that respondent had abandoned this issue. We agree with respondent's contention that the record does not indicate that respondent ever abandoned this claim.

[3] Petitioner contends that her prior testimony was inadmissible as hearsay, MRE 802. However, MRE 801(d)(2)(A) provides that a statement that would otherwise be hearsay is not considered hearsay if the statement is offered against a party and is the party's own statement. Here, petitioner was obviously a party. Thus, her prior statements — at trial or otherwise — were not hearsay. Accordingly, petitioner's trial testimony was admissible. Again, we need not reverse where the right result is reached, but for the wrong reason. Jory, supra at 425, 505 N.W.2d 228.

[4] We are not persuaded that this "negative evidence" was inadmissible pursuant to MRE 803(10). The admissibility of this evidence is further supported by the relaxed evidentiary rules that apply to administrative hearings. MCL 24.275.

[5] We also reject petitioner's contention that respondent's brief failed to comply with MCR 7.212(C)(6).