Appeal from the Iowa District Court for Buchanan County, Bradley J. Harris, Judge.
Noel Kurt appeals from the district court's affirmance of the Department of Human Services and the Department of Inspections and Appeals (as an agent for the Department of Human Services) finding he engaged in sexual exploitation as a counselor, therapist, or school employee.
John J. Hines and Laura L. Folkerts of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Diane M. Stahle, Special Assistant Attorney General, for appellees.
Heard by Potterfield, P.J., and Danilson and Mullins, JJ.
Noel Kurt appeals from the district court's affirmance of the Department of Human Services and Department of Inspections and Appeals (as an agent for the Department of Human Services) finding he engaged in sexual exploitation as a counselor, therapist, or school employee. Kurt argues substantial evidence does not support the finding of the agency and adoption by the district court.
We reverse finding the decision of the administrative law judge is not supported by substantial evidence when the record is viewed as a whole. See Iowa Code § 17A.19(10)(f) (2009).
I. Facts and Proceedings.
This case turns on two different versions of events occurring in a therapist's office at the Independence Mental Health Institute (MHI) between the middle of January and March 6, 2009: one reported by A.V., an adolescent patient at MHI; the other recounted by Noel Kurt, a psychologist who worked at MHI for fifteen years. A.V.'s version of events, which accused Kurt of inappropriate sexual behavior, was admitted at the administrative hearing through nine different recorded statements, including a discovery deposition transcript and trial transcript from the trial of criminal charges based on A.V.'s allegations. Kurt's version, which denied the allegations made by A.V., was submitted through his live testimony at the administrative hearing.
MHI is operated by the Iowa Department of Human Services (DHS) and has three programs for children. The Cromwell Child's Center (Cromwell) is a unit for children ages seven through eighth grade who are in acute psychiatric distress and who pose an imminent danger to themselves or others. The Adolescent Unit is for high school-aged children in the same psychiatric category. The Psychiatric Medical Institution for Children (PMIC) is a step-down unit for children in the other two units. It serves as a bridge between acute care and placement back in the community.
At the time A.V. made the allegations, Kurt was a fifteen-year employee of MHI as a psychologist for and administrator of Cromwell. Kurt consistently received favorable performance reviews, was generally well-liked by the staff and the students, and was regarded as a good psychologist. Kurt was known as a "very hard worker, " was "always eager to help out, " and had never been in trouble at work or in the community prior to A.V.'s report during his tenure at MHI.
As a psychologist at Cromwell, Kurt had one-on-one therapy sessions with patients. A large part of his work as a therapist dealt with incentivizing his patients to improve their behavior by giving them something to work for. This technique was known as "behavior contracting" or "behavior modification therapy." For example, if Kurt determined that a patient desired to play basketball, Kurt would give the patient that opportunity as a reward for certain behavior. Kurt also used tangible items like pop and candy as rewards if he determined that it was something that a patient would work toward. Often Kurt had to purchase these tangible incentives himself because there was no money for it in the MHI budget. Sometimes Kurt purchased individualized items that a particular patient stated a preference for, such as cologne, mini-skateboards, or matchbox cars. At one point he created a puppet as a reward that a particular patient could work towards. In general, he would do what he thought would motivate the children to improve their behavior. These formal treatment plans would be written down and progress would be recorded.
Cromwell and PMIC both had level systems that worked in conjunction with the treatment plans. Patients were placed on a level between one and four depending on their behavior and if they were meeting their goals. Patients were better rewarded for reaching higher levels. For example, Kurt might develop a plan that a patient would earn a can of pop if that patient reached and maintained level three by the following week. Kurt had a lot of success with this reward-based therapy. The notes in eleven of his fifteen yearly performance reviews mention that Kurt either did a good job or an excellent job implementing his behavior modification programs.
A.V. was admitted to the Cromwell Unit on May 15, 2008, when she was almost fourteen years old. A.V. had an extensive history of behavioral problems; she had been diagnosed with oppositional defiance disorder, parent-child relational disorder, and mood disorder. She had a record of self-injury, sexually acting out, disregarding boundaries, poor judgment, impulsivity, physical aggressiveness, and cruelty to animals. One of A.V.'s goals at the Cromwell Unit was to refrain from sexually inappropriate comments or sexually inappropriate behavior.
Kurt was A.V.'s therapist during her time at Cromwell. Kurt used a behavior modification plan to help A.V. improve her behavior. A.V.'s behavior improved; however, she continued to act out sexually by kissing, inappropriately touching, and asking out other female Cromwell patients. After her behavior improved, A.V. was transferred from Cromwell to PMIC on November 17, 2008. Kurt was no longer A.V.'s assigned therapist, but his office was in the same building as the classroom where A.V. went to school. Maureen Janssen was A.V.'s new assigned therapist in PMIC.
In early January 2009, Kurt participated in a staff meeting initiated by MHI management. In the meeting, according to Kurt, staff members were advised that the institution was in grave financial straits. Management explained that, in part, this was because Cromwell was full and PMIC had open beds. PMIC was the only profit generating branch for MHI; so they advised the Cromwell staff to refer children from Cromwell to PMIC as soon as possible and to help maintain an increased number of children in PMIC. Management told the staff that they were to be supportive of children who moved to PMIC.
After this meeting, Kurt began to see children that were enrolled in PMIC. Between the middle of January and March 6, 2009, Kurt saw roughly thirteen PMIC children between one and twenty times each. He would only meet with a PMIC child if the child had requested to meet with him, either in person or by giving Kurt a note. When requested, Kurt would sit down and talk with the child in his office. He was not acting as a therapist—the children already had an assigned PMIC therapist. He was acting more like an informal school counselor. Kurt was not the only Cromwell staff member that met with PMIC children after the January staff meeting. Sue Woods, a social worker at Cromwell, acted in a similar manner, although not as frequently. The PMIC children typically would ask to meet with the Cromwell staff they knew from their previous time in Cromwell. The meetings with Kurt usually lasted for about twenty minutes. Kurt did not document the informal visits. PMIC teachers, therapists, and other staff were aware that Kurt was having these meetings with the PMIC children; in part because the children sometimes left the classroom for the meetings. The content of the meetings was not generally discussed with the PMIC staff and the meetings were not coordinated with the children's PMIC treatment plans. Kurt always closed his door when he had meetings with children unless they asked him to keep it open. This was the ...