Opinion
01-20-00315-CV
01-27-2022
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellant v. K.G., Appellee
On Appeal from the 345th District Court Travis County, Texas Trial Court Case No. D-1-GN-15-000175
The Texas Supreme Court transferred this appeal to this Court from the Court of Appeals for the Third District of Texas, pursuant to its docket-equalization authority. See Tex. Gov't Code § 73.001 ("The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer."). We are unaware of any conflict between the precedent of the Court of Appeals for the Third District and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
Panel consists of Chief Justice Radack and Justices Kelly and Landau.
MEMORANDUM OPINION
Sherry Radack, Chief Justice
The Texas Department of Family and Protective Services ("the Department") appeals from a district court judgment reversing the Department's order, which had concluded that that K.G. "neglected children" and directed that K.G's name be maintained in the Department's central registry as a person found to have neglected a child. See Tex. Fam. Code §§ 261.002 (defining "central registry"); 40 Tex. Admin. Code § 745.8559 (defining "neglect" for purposes of child-care-facilities investigations). We reverse the district court's judgment and render judgment affirming the Department's order.
To protect the confidentiality of the investigation in this case, initials or pseudonyms were used in the underlying proceedings. See Tex. Fam. Code § 261.201. We do the same.
BACKGROUND
The Incident
On January 12, 2012, a five-year-old boy, Ethan, wandered away from the after-school program he was attending at an elementary school in Houston, Texas. Ethan's mother found him several blocks from the school walking toward his home. Ethan's mother was very upset and returned with him to the school, and the incident was reported to the Department.
The Investigative Report
As required by law, the Department conducted an investigation and prepared an Investigative Report of the incident. See Tex. Fam. Code §§ 261.401(b), .402(a). A summary of the relevant portions of the Investigative Report is as follows:
On November 15, 2012, Jane Hirsch, an investigator with the Department, conducted an inspection of the facility. While there, Hirsch met with Mr. K.C., the Vice Principal at the school where the after-school program was held. Mr. K.C. showed Hirsch video that was taken during the incident. The video showed that, on the day in question, J.F. and K.G. were supervising the children. Two times that day, Ethan can be seen trying to leave the gymnasium, and both times he was stopped by J.F. On a third attempt, Ethan was successful in leaving the gymnasium without being seen by either J.F. or K.G. "During this time, video footage inside the gymnasium showed Mr. [J.] F. engaged with other children doing activities and Mr. K.G. repeatedly on his cell phone. Both teachers did not realize [Ethan] had left the program and did not appear to conduct a headcount of the children in the program.
Mrs. C.B., a program liaison with the after-school program, reported that K.G. is a "floater" and "will go from campus to campus where he's needed." Mrs. C.B. also stated that "she believed this was an isolated incident and that both [J.F. and K.G.] still have the potential for being good employees.
Mrs. I.P., a School Resource Counselor at the school, gave a statement, in which she expressed "some concerns with the after-school program[.]" She stated that "she believes the staff members are not paying attention to the children and have difficulty being assertive when telling them what to do. She stated that the program is also disorganized and that they need strong leadership so that it trickles down to the other staff members."
K.G. was interviewed as part of the investigation. He stated that J.F. "was the responsible caregiver in charge of the children in care as he is the site lead of the program." K.G. claimed that he "was solely in charge
of the sports program as the children rotated around in groups." K.G. estimated that Ethan was "gone for only approximately 5 minutes." He was helping to look for Ethan when Ethan's mother came in with him; she "was very upset about what happened and began yelling at them." K.G. said that "he was supervising the children in his care appropriately" and that he did not remember being on his phone for more than "a couple of seconds."
J.F., the site lead at the after-school program, gave a written statement. He stated that Ethan "snuck out of the after-school-program unnoticed." The last time J.F. saw Ethan, he was playing with K.G., while J.F. conducted a game of musical chairs with some other children. When he noticed Ethan was missing, he and his staff split up and began looking for the child. He noted that Ethan "often tries to hide, so at that point we figured he was simply playing hide and seek with us behind a curtain or table (his favorite activities, seemingly, stem from the enjoyment found in being pursued.)" When Ethan's mother showed up with the child, she was very upset. J.F. and Ethan's mother "talked at length, and together drafted and signed an incident report form." "She mentioned that she understands that [Ethan] is a struggle to manage, and that there have been incidents during the school day as well." Ethan's mother told J.F. "that [Ethan] frequently asks her if he can be a 'walker' (if he can walk home) and that this was likely an attempt to do just that".
The Investigative Report found that there was reason to believe the allegations, and included the following findings:
Based on the information obtained during the investigation, there is sufficient evidence to support that the two Caregivers (J.F. and K.G.) . . . were negligent in supervision of a child in care.
On Monday, November 12, 2012[, ] five-year-old [Ethan] was in attendance at the [after-school program]. At approximately, 5:20 P.M., [Ethan] exited the afterschool program unsupervised and attempted to walk home with no adult supervision. When leaving the after-school program, [Ethan] ran east to Arizona Street and continued northbound where he was eventually found by his Mother . . . three blocks away on the corner of Howard Drive and Arizona Street. [Ethan] was returned to the operation unharmed, after being picked up by his Mother.
According to the responsible caregivers' . . . statements, they both confirmed the incident occurred, in which [Ethan] was discovered missing while in their care. A recorded view of the afterschool program area was observed through a surveillance video camera located in the gymnasium and outside in the bus loop on the school property. [Ethan] was observed leaving the program through the gymnasium doors and proceeded eastbound off the school property. Surveillance video inside the gymnasium showed [Ethan] attempting to leave unsupervised twice, both times being caught by J.F. K.G. was observed on his cellular phone while supposed to be supervising children in care. Both Caregivers failed to prevent [Ethan] from leaving a third time after knowing he had attempted this already twice before.
J.F. and K.G. committed a breach of duty when they failed to ensure the safety of [Ethan]. It is a reasonable expectation of the responsible caregivers to ensure the safety, supervision, and well being of children at all times.
Review by the Administrative Law Judge
K.G. requested and was granted a hearing before an administrative law judge ["ALJ"] to contest the Department's findings that he neglected a child. At the hearing, the Department moved to admit the Investigative Report and the following exchange took place before the ALJ:
[K.G.'s counsel]: With regard to [the Investigative Report], Your Honor. The narrative provided by I.P [the School Counselor] and K.C. [the Vice Principal], objection to those as hearsay within hearsay. More importantly, with regard to I.P.'s narrative, the objection is based on relevance as this is a statement regarding generalized observations of an after care program and general and non-specific in any way to the incident reference in this case.
[ALJ]: Response?
[Department's counsel]: Your Honor, with respect to the hearsay objection, anything contained within this document, all of it falls under the public records. We can have our witness testify as to the duty that the Department has with conducting these investigations and creating a report. K.C. on page 15 was interviewed by the Department and these are the statements that the Department obtained from Mr. [K.] C. With respect to I.P. and-all of these are about a video that is surveillance video that the Department also observed, and the actions in the video. So[, ] they fall under the public records exception as well as under the Texas Administrative Code, under 745.8833. The purpose of the hearing, and the Judge for the State Office of Administrative Hearings will decide the facts that existed at the time that the Department made the decision or took action to justify that decision
* * * *
[ALJ]: Well, all these documents are normally admitted in these cases. They're required to be something that the Department is required to do, so I'm going to overrule the objection and admit [the Investigative Report]. However, I'm going to take your objections to admissibility as an argument as to the sufficiency and the weight I should give them, and their relevancy. If they're not relevant of course I'm not going to consider them, and you can argue that.
Thereafter, two witnesses-K.G. and Kelly Wyatt-testified before the ALJ.
K.G. testified that he was working at the after-school program in November 2012, and that he was assisting J.F. with the children. He was a "floater" and worked "from school-to-school." K.G. acknowledge that Ethan was able to get out of the gymnasium and that he was looking for him when Ethan's mother came to the school and said that she found him out of the street. K.G. testified that Ethan's mother "was upset because her son was outside." K.G. said that J.F. was his supervisor and that J.F. never told him that Ethan required "special supervision." K.G. denied using his cell phone on the day of the incident. He suggested that he may have been using a "walkie talkie" that looked like a cell phone. K.G. stated that he gave a truthful statement to the Department investigators and that if he admitted to them that he was on his cell phone instead of a walkie talkie he was being honest the time.
Wyatt, a supervisor for the Department, testified that the Department received a report of a child that was unsupervised. She stated: "So, of course there was an intake and a report called in, and those type of incidents we do investigate." Wyatt stated that the Department concluded that Ethan "was outside on his way home going through the streets unsupervised, by himself" and that K.G.'s failure to watch the child appropriately could have caused substantial emotional harm or physical injury to the child. Wyatt testified that "[t]he minimum standard" required the caregivers to "maintain[] appropriate visual or auditory awareness of the child." On cross-examination, Wyatt acknowledged that she had not viewed the video from the day of the incident herself. She also admitted that it was a "possibility" that "when there are two or more persons who are being cited or being investigated for an incident of this sort, one may be willing to implicate the other in order to remove themselves from culpability[.]" Wyatt also testified that a supervising caregiver does not "hold all the duty, and that all caregivers, including assistants and floaters [have] the responsibility to supervise children. Part of supervision . . . is awareness, understanding of where the child is at all times, auditory, visual, just a reasonable person that would supervise children and not allow them to be unsupervised." Wyatt concluded that, even as a "floater," K.G. had a duty to supervise Ethan. Wyatt concluded that "when two teachers are inside of the same room," both have a duty to supervise all the children in the room.
After the hearing, the ALJ entered an order upholding the Department's finding that K.G. neglected Ethan. The order included the following findings of fact:
On November 12, 2012, [K.G.] was employed . . . as an after-school caregiver.
On November 12, 2012, [K.G.] was assigned to work at the after-school program at Bonner Elementary School, Houston, Texas.
On November 12, 2012, a 5-year-old child (Child) was one of the students at Bonner Elementary being supervised by Petitioner and [J.F.], another employee of [the after-school program].
On November 12, 2012, Child left the gym alone without being noticed by [K.G.] or [J.F.].
Child proceeded down the street three or four blocks toward his home before being discovered by his mother.
Child was gone unnoticed [sic] by [K.G. or J.F.] for about 5 minutes.
The ALJ's order contained the following conclusion of law:
"[K.G.] neglected Child on November 12, 2012. Tex. Fam. Code § 261.401(a)(3) and 40 TAC §745.8559.
Judicial Review by District court
K.G. then filed a petition for judicial review of the ALJ's order in the 345th District Court of Travis County. At the hearing on K.G.'s petition, the parties stipulated to the admission of the original administrative record. The remainder of the hearing was not recorded.
After the hearing, the district court reversed the ALJ's order, stating:
The Court finds that the Honorable Administrative Law Judge erred in overruling the objections made by K.G. to the admission and consideration of matters not properly authenticated and excepted from the hearsay rule exclusion. Accordingly, absent the improperly admitted testimony and documentary evidence proffered by the Texas Department of Family and Protective Services ("the Department"), in the underlying proceeding, the Department, as a matter of law, failed to establish Neglect of a Child by Petitioner, K.G.
The Department then filed this appeal.
STANDARD OF REVIEW
Our review of the Department's order is governed by the same analysis as in the district court-the "substantial evidence" rule codified in Texas Government Code section 2001.174. See Tex. Gov't Code § 2001.174. Under this standard, we reverse and remand an agency decision if it prejudices substantial rights because its findings, inferences, conclusions, or decisions (1) violate a constitutional or statutory provision; (2) exceed statutory authority; (3) were made through unlawful procedure; (4) were affected by other error of law; (5) are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) are arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Id. Substantial evidence review is essentially a rational-basis test to determine, as a matter of law, whether an agency's order finds reasonable support in the record. Employees Ret. Sys. of Tex. v. Garcia, 454 S.W.3d 121, 132 (Tex. App.-Austin 2014, pet. denied) (citing Tex. Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984)). "The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency." Charter Med.-Dallas, 665 S.W.2d at 452. We apply this analysis without deference to the district court's judgment. See Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). We presume that the agency's findings, inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on the party challenging the order to demonstrate otherwise. See Froemming v. Tex. State Bd. of Dental Exam'rs, 380 S.W.3d 787, 790 (Tex. App.-Austin 2012, no pet.). "Ultimately, we are concerned not with the correctness of the agency's decisions, but its reasonableness." Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.-Austin 2017, no pet.).
Substantial evidence analysis entails two inquiries: (1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency's decision or action and, in turn, (2) whether the findings of underlying fact are reasonably supported by evidence. See Vista Med. Ctr. Hosp. v. Texas Mut. Ins. Co., 416 S.W.3d 11, 26-27 (Tex. App.-Austin 2013, no pet.). The second inquiry, which has been termed the "crux" of the substantial evidence review, is highly deferential to the agency's determination. Garcia, 454 S.W.3d at 132. "[S]ubstantial evidence in this sense does not mean a large or considerable amount of evidence-in fact, the evidence may even preponderate against the agency's finding-but requires only such relevant evidence as a reasonable mind might accept as adequate to support a [finding] of fact." Id. (internal quotations omitted). The factfinder, here the ALJ, determines the credibility of the witnesses and the weight to give their testimony, see Granek v. Tex. State Bd. of Med. Exam'rs, 172 S.W.3d 761, 778 (Tex. App.-Austin 2005, no pet.), and we "may not substitute [our] judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion." Tex. Gov't Code § 2001.174(1). In contrast, the first inquiry, concerning the extent to which the underlying facts found by the agency logically support its ultimate decision or action, may entail questions of law that we review de novo. Garcia, 454 S.W.3d at 133; see Railroad Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).
ANALYSIS
In its sole issue on appeal, the Department contends that the district court erred in reversing the ALJ's decision because (1) the ALJ properly admitted the Investigative Report, and (2) even without the Investigative Report, substantial evidence supports the ALJ's findings that K.G. provided negligent supervision.
Was the Investigative Report Admissible?
The hearing before the ALJ was governed by the Texas Administrative Procedure Act ("the APA"). 40 Tex. Admin. Code § 745.8845. The APA provides that "the rules of evidence as applied in a nonjury civil case in district court in this state" apply to the adjudication of contested cases. Tex. Gov't Code § 2001.081. We review an ALJ's ruling on the admission or exclusion of evidence for abuse of discretion. See Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 802-03 (Tex. App.-Corpus Christi-Edinburg, 2002, pet. denied). The ALJ abused its discretion if it acted without reference to guiding rules or principles. Tex. Dep't of Pub. Safety v. Williams, 303 S.W.3d 356, 358 (Tex. App.-El Paso 2009, no pet.).
On appeal, the Department contends that the ALJ properly admitted the Investigative Report and that the district court erred in reversing the ALJ's ruling and holding that the ALJ "erred in overruling the objections made by K.G. to the admission and consideration of matters not properly authenticated and excepted from the hearsay rule exclusion."
Before both the ALJ and the district court, the Department argued that the Investigative Report was admissible under the public-records exception found in Rule 803(8) of the Texas Rules of Evidence. Rule 803, applicable in district courts, states that a "record or statement of a public office" is not excluded by the hearsay rule if it sets out: (1) "the office's activities"; (2) "a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personal"; or (3) "in a civil case . . . factual findings from a legally authorized investigation" when the party opposing admission "fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness." Tex. R. Evid. 803(8). There is a presumption of admissibility, and the burden is on the party opposing admission, here, K.G., to show that the record is untrustworthy. See Corrales v. Dep't of Family & Protective Servs., 155 S.W.3d 478, 486 (Tex. App.-El Paso 2004, no pet.).
Rule 803 is applicable because the investigative report included "factual findings from a legally authorized investigation." Tex. R. Evid. 803(8)(A)(iii); see Tex. Fam. Code § 261.401(b) (requiring "prompt, thorough investigation of a report that a child has been or may be abused, neglected, or exploited in the facility or program") and Id. § 261.402(a) (requiring Department to "prepare and keep on file a complete written report of each investigation . . ."). And, as the ALJ noted, "all these documents are normally admitted in these cases. They're required to be something that the Department is required to do, so I'm going to overrule the objection and admit the documents." Thus, the ALJ's decision to admit the investigative report was consistent with the application of Rule 803(8). See Tex. Dep't of Pub. Safety v. Caruana, 363 S.W.3d 558, 564-65 (Tex. 2012) (holding police officer's unsworn report properly admitted by ALJ under Rule 803(8) at administrative license revocation hearing); see also Tex. Dep't. of Pub. Safety v. Cardenas, No. 13-15-00091-CV, 2015 WL 4593517, at *4 (Tex. App.-Corpus Christi-Edinburg July 30, 2015, no pet.) (mem. op.) (holding same); Tex. Dep't of Pub. Safety v. Narvaez, 2014 WL 5410758, at *7 (Tex. App.-Corpus Christi-Edinburg Oct. 23, 2014, no pet.) (mem. op.) (holding same).
And, to the extent that the Investigative Report also contained statements by non-agency witnesses that might not qualify as public records, see Kratz v. Exxon Corp., 890 S.W.2d 899, 905, n.3 (Tex. App.-El Paso, no pet.), the rule provides that the reports are nevertheless admissible unless the sources of information in the public record indicate a lack of trustworthiness. See Tex. R. Evid. 803(8). In other words, there is a presumption of admissibility, and the burden is placed on the party opposing the admission of a report to show its untrustworthiness. Corrales, 155 S.W.3d at 486-87.
At the hearing before the ALJ, K.G. objected on the basis that the report included hearsay testimony from witnesses not at trial, but never argued that their statements were untrustworthy. See Tex. State Secs. Bd. v. Miller, No. 03-06- 00365-CV, 2009 WL 1896075, at *2 (Tex. App.-Austin July 1, 2009, no pet.) (mem. op.) (holding that administrative-hearing participant must properly object to admission of evidence to preserve error for appeal). Thus, we conclude that K.G. failed to meet his burden to show the untrustworthiness of the sources of information in the investigative report. See Corrales, 155 S.W.3d at 486-87.
Nevertheless, K.G. argued for the first time in his brief before the district court that he raised and conclusively proved to the ALJ that the sources of information in the Investigative Report were untrustworthy because Wyatt testified that there was a "possibility" that "when there are two or more persons who are being cited or being investigated for an incident of this sort, one may be willing to implicate the other in order to remove themselves from culpability."
However, the ALJ heard this testimony and necessarily concluded that it did not prove that the objected-to statements in the report were untrustworthy. Giving great latitude to the ALJ as sole judge of the credibility of the witnesses, see Granek, 172 S.W.3d at 778, yet reviewing the record de novo, see Garcia, 454 S.W.3d at 133, we conclude that the record "demonstrates some reasonable basis" for the ALJ's determination that the sources of information in the Investigative Report were not untrustworthy. This is especially true because the objected-to statements in the Investigative Report were made by I.P (the School Counselor) and K.C. (the Vice Principal), neither of whom were present during the incident or responsible for the care of the children at the time. In fact, K.C.'s statements concerned only what he saw on the surveillance video, which was also seen by Hirsch from the Department. Because the ALJ did not abuse its discretion by admitting the Investigative Report under the public-records exception to the hearsay rule, the district court erred in overruling the ALJ's order on this basis.
We also note that, even though K.G. made no effort to segregate any inadmissible parts of the Investigative Report from admissible parts, the district court ruled that the ALJ should have excluded the entire Investigative Report and refused to consider any of it in its "substantial evidence" review. We disagree with the district court. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (holding that burden is on objecting party to specifically point out which portion of exhibit is inadmissible and that trial court does not abuse its discretion in admitting exhibit in entirety if objecting party fails to do so). Thus, the ALJ's admission of the entire Investigative Report was not error.
Did Substantial Evidence Support the Department's Decision?
Having determined that the ALJ did not err in admitting the Investigative Report and that the district court did err in excluding it, we now consider whether there was "substantial evidence" in the record to support the Department's decision that K.G. "neglected" Ethan.
The Texas Family Code defines "neglect" as "an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person's blatant disregard for the consequence of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety" and "includes"
a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy[.]Tex. Fam. Code § 261.001(4)(A)(iv).
The Texas Administrative Code further defines "neglect" as "an act or omission that is a breach of a duty by a person working under the auspices of an operation that causes or may cause substantial emotional harm or substantial physical injury to a child" and "includes"
Placing a child in or failing to remove him from a situation that a reasonable member of that profession, reasonable caregiver, or reasonable person should realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities[.]40 Tex. Admin. Code § 745.8559(3).
In applying the statute and code, the ALJ considered three pieces of evidence: (1) the Investigative Report, (2) K.G.'s own testimony, and (3) Wyatt's testimony.
The record shows that K.G. owed a duty to Ethan on the day of the incident. See 40 Tex. Admin Code § 745.8553(4) (defining "anyone who has responsibility for the child in care" as person who works "under the auspices of an operation"). The Investigative Report shows that K.G. was working for the after-school program on the day that Ethan disappeared, and Ethan was last seen while playing with K.G. in the gym. Surveillance video from the gym showed K.G. "repeatedly on his cell phone." Neither K.G. nor J.F., the lead caregiver on the site, saw Ethan leave the gym. K.G.'s own testimony before the ALJ shows that he was working with J.F. in the after-school program on the day Ethan escaped.
The record also shows that, while Ethan was under the care of K.G. and J.F. at the after-school program, he escaped from the gym and was found by his mother several blocks away; he was trying to walk home by himself. The Investigative Report shows that Ethan "was found walking down the street without supervision" and "was absent from the center for approximately 15 to 30 minutes." The Report stated that K.G. began looking for the child and then Ethan's "mother came into the program with him by her side," and she "was very upset about what happened and began yelling at them." J.F. reported that the child was last seen playing with K.G. before he disappeared. The Investigative Report also provided that surveillance video from the gym showed K.G. on his phone before the incident, although K.G. stated in the Investigative Report that he was not on his phone "for more than a couple of seconds." In his own testimony before the ALJ, K.G. acknowledged that the legal proceeding was taking place "because [Ethan] was able to get out of the gym" and that his mother "found him out in the street." K.G. also agreed that a five- year-old child presented "a risk of abduction or being run over by a car while [walking home alone]."
The record before the ALJ also showed that both J.F., the lead caregiver at the site, and K.G., the floater, were responsible for Ethan's care at the time he escaped the after-school program. The Investigative Report concluded that both J.F. and K.G. "were negligent in supervision of a child in care." The Investigative Report stated that "both caregivers failed to prevent [Ethan] from leaving a third time after knowing he had attempted [to escape] twice before." Though K.G. denied using his cell phone while on duty, he acknowledged that if he told investigators that he had been on his phone and not a walkie talkie, he had been telling the truth. And, Wyatt, the Department representative, testified that "[a]ny caregiver has the responsibility to supervise children" and that, even though he was a "floater," K.G. had a duty to supervise "all the children."
Based on this evidence, the Department's findings of underlying facts logically support the ultimate facts and legal conclusions establishing the legal authority for the Department's decision or action and, in turn, the findings of underlying fact are reasonably supported by evidence. See Vista Med. Ctr. Hosp., 416 S.W.3d at 26-27. Thus, the district court erred by reversing the ALJ's judgment affirming the Department's decision.
We also agree that, even if we were to disregard the Investigative Report, there would be "substantial evidence" to support the Department's decision. K.G.'s own testimony showed that he was a caregiver at the after-school program and that, for a period of time, he was unaware of Ethan's whereabouts until Ethan's mother found him walking outside. Thus, even if the Investigative Report were erroneously admitted by the ALJ, which we have held that it was not, we would nonetheless reverse the trial court's decision and affirm the Department's decision. See R.P. v. Tex. Dep't of Fam. & Protective Servs., No. 03-16-00308-CV, 2017 WL 160912, at *4 (Tex. App.-Austin Jan. 13, 2017, no pet.) (mem. op) ("We will not reverse an administrative order based on the erroneous admission of evidence if, after disregarding that evidence, there is sufficient competent evidence to support the agency's findings of fact and conclusions of law").
We sustain the Department's issues.
CONCLUSION
Having sustained the Department's issues, we reverse the district court's judgment and we render judgment affirming the October 30, 2014 Decision and Order of the State Office of Administrative Hearings, Docket No. 530-14-1164.E. See Tex. Gov't Code § 2001.174.