Parent files complaint after 5-year-old wanders away from after-school program

A complaint of negligent supervision was filed against an employee of an after-school program with the Texas Department of Family and Protective Services. The complaint was filed by a parent after her 5-year-old child wandered away from the building. She found him several blocks from the school, walking toward home.

The department conducted an investigation and concluded that the employee had been negligent in supervising the child and ordered that his name be maintained in the department's registry as a person found have to neglected a child. The employee appealed that determination, first to the State Office of Administrative Hearings, which upheld the decision, then to district court and ultimately, the Texas Court of Appeals.

He argued on appeal that the courts lacked evidence to uphold the decision because they considered the investigative report issued by the Texas Department of Family and Protective Services without calling the investigators and witnesses mentioned in the report to testify.

The court of appeals reviewed the investigative report. It included a video that captured the incident in question. The video showed that two adults were supervising the children. The child attempted to leave the room twice and both times he was prevented from leaving by the adults.

On the third attempt, the child was successful in leaving the room without being detected. The video footage showed that one adult was engaged in activities with other children and the other employee was on his phone. Neither adult realized the child had left the building and neither adult conducted a headcount. The child was missing for about five minutes before the after-school care providers realized he was gone and began to look for him. The employee who was on the phone claimed that he was only on his phone for a short time.

A program liaison who was interviewed by the Texas Department of Family and Protective Services stated that she believed that this was an isolated incident and that both adults still had the potential to be good employees.

The investigative report concluded that there was "reason to believe" that both adults had been negligent in supervising the child.

On appeal, the employee argued that the investigative report was hearsay and should not have been admitted into evidence without having the investigator and others be made available to testify. Without calling those witnesses, they were not subjected to cross-examination or questioning about their findings.

The court of appeals disagreed. A "record or statement of a public office" is not generally considered to be hearsay if it sets out factual findings from a legally authorized investigation, unless there is some evidence to show that the report is not trustworthy. There was no such evidence in this case.

Based on the information in the report and the testimony of witnesses, the court of appeals held that the department's conclusion that the employee was negligent in supervising the child should be upheld.