Texas Health and Human Services Commission v. Amy Bazan A/K/A Amy Fairbank

ACCEPTED
15-25-00130-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
10/6/2025 2:41 PM
Cause No. 15-25-00130-CV CHRISTOPHER A. PRINE
_______________________________________________________ CLERK
FILED IN
15th COURT OF APPEALS
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
_______________________________________________________
10/6/2025 2:41:05 PM
CHRISTOPHER A. PRINE
Clerk
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,

v.

AMY BAZAN a/k/a AMY FAIRBANK,
Appellee.
____________________________________________________

On Appeal from the 353rd Judicial District Court of Travis County, Texas
No. D-1-GN-22-000773

BRIEF OF APPELLANT, THE TEXAS
HEALTH AND HUMAN SERVICES COMMISSION
____________________________________________________

KEN PAXTON ERNEST C. GARCIA
Attorney General of Texas Chief, Administrative Law Division

BRENT WEBSTER TED A. ROSS
First Assistant Attorney General Assistant Attorney General
State Bar No. 24008890
RALPH MOLINA Office of the Attorney General
Deputy First Assistant Attorney P.O. Box 12548 (MC 018)
General Austin, Texas 78711-2548
(512) 475-4191
AUSTIN KINGHORN ted.ross@oag.texas.gov
Deputy Attorney General for Civil
Litigation Attorneys for Appellant, the Texas Health
and Human Services Commission
October 6, 2025
TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................... 3

RECORD AND PARTY REFERENCES ........................................................ 5

STATEMENT OF THE CASE ....................................................................... 6

ISSUE PRESENTED FOR REVIEW............................................................... 7

STATEMENT REGARDING ORAL ARGUMENT ...................................... 7

STATEMENT OF FACTS .............................................................................. 7

SUMMARY OF THE ARGUMENT ............................................................... 9

STANDARD OF REVIEW ............................................................................. 10

ARGUMENT.................................................................................................. 13

I. The Decision and Order on the abuse issue furthers the goals of
the Texas Family Code and the state’s interest in protecting
children from physical abuse .................................................................. 13

II. The Decision and Order on the abuse issue is supported by
substantial evidence. .............................................................................. 15

CONCLUSION AND PRAYER ..................................................................... 19

CERTIFICATE OF COMPLIANCE ............................................................. 20

CERTIFICATE OF SERVICE....................................................................... 20

APPENDIX ..................................................................................................... 21

2
INDEX OF AUTHORITIES

Cases
Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn,
149 S.W.3d 166 (Tex. App.—Austin 2004, pet. denied)..................................... 13

Bd. of Trs. of the Emps. Ret. Sys. v. Benge,
942 S.W.2d 742 (Tex. App.—Austin 1997, writ denied) .................................... 12

Dyer v. Tex. Comm’n on Envtl. Quality,
646 S.W.3d 498 (Tex. 2022) .............................................................................. 11

Lippincott v. Whisenhunt,
462 S.W.3d 507 (Tex. 2015) ............................................................................... 15

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619 (Tex. 2011) ................................................................................ 12

Sergeant Enter., Inc. v. Strayhorn,
112 S.W.3d 241 (Tex. App.—Austin 2003, no pet.)............................................ 12

Tex. Comm’n on Envtl. Quality v. Maverick Cnty.,
642 S.W.3d 537 (Tex. 2022), reh’g denied (Apr. 22, 2022).................................. 11

Tex. Health Facilities Comm’n. v. Charter Med.-Dallas, Inc.,
665 S.W.2d 446 (Tex. 1984) .......................................................................... 11, 12

Statutes
Tex. Fam. Code
§ 261.001(1)(C) .................................................................................................. 14
§ 261.002 ............................................................................................................ 6
§ 261.002(a) ....................................................................................................... 13
§ 261.002(b) ....................................................................................................... 13
§ 261.005(1) ....................................................................................................... 13
§ 271.001(1)(c)(C).............................................................................................. 18

Tex. Gov’t Code
§ 531.02011(3) ..................................................................................................... 6
3
§ 2001.174 .......................................................................................................... 16
§ 2001.174(2)(A-F) ............................................................................................ 11

Tex. Hum. Res. Code
§ 40.066 .............................................................................................................. 9
§ 40.066(c) ......................................................................................................... 9
§ 48.406(c) ........................................................................................................ 10

Rules
40 Tex. Admin. Code
§ 700.455 ........................................................................................................... 18
§ 707.455 ...................................................................................................... 15, 18
§ 707.455(b)(2) ............................................................................................ 14, 17

Other
Senate Bill 14 ........................................................................................................ 13

4
RECORD AND PARTY REFERENCES
Parties

HHSC: Defendant/Appellant, Texas Health and
Human Services Commission

Fairbank: Petitioner/Appellee Amy Bazan a/k/a Amy
Fairbank 1

Administrative Record 2
AR at ____ (Bates stamp no.): The HHSC Administrative Record, which is
part of the Clerk’s record in this appeal

Appendix
App. Tab ___ The Appendix attached to this brief

OTHER REFERENCES

ALJ The SOAH Administrative Law Judge

Decision and Order The SOAH Administrative Law Judge’s
Decision and Order signed on November 22,
2021 (App. Tab 1)

SOAH The State Office of Administrative Hearings

1
Plaintiff/Appellee stated at the SOAH hearing that she preferred to go by her maiden name, Amy
Fairbank. Plaintiff’s brief may sometimes refer to Plaintiff as “Fairbank” and at other times to
“Fairbanks” and “Bazan.”

2 The administrative record filed with the Court has been redacted to delete the names of the

patients/clients in this proceeding. HHSC is willing to provide unredacted pages for in camera
inspection if the Court so desires.

5
STATEMENT OF THE CASE

Nature of the Case: This is a suit for judicial review of a SOAH
Decision and Order dated November 22, 2021,
determining that Fairbank abused one of her
children.

Administrative Proceedings: The Department of Family and Protective
Services (DFPS) placed Fairbank on the Child
Abuse and Neglect Central Registry (Central
Registry) 3 as a person who has abused and
neglected a child. HHSC timely notified Fairbank
of a due process hearing at SOAH, which was
held on September 21, 2021.

Agency Disposition: The SOAH Decision and Order found that
Fairbank abused one of her children and ordered
that Fairbank’s name be maintained on the
Central Registry based on that finding. The
Decision and Order further found that the
determination that Fairbank neglected a child
was not proven and ordered that HHSC remove
Fairbank’s name from the Central Registry with
respect to the neglect findings.

After briefing and oral argument, the Travis
County District Court reversed the Decision and
District Court Disposition: Order in a Final Judgment signed on July 17,
2025. App. Tab 2.

3 The Child Abuse and Neglect Central Registry is a registry of substantiated cases of child abuse

or neglect maintained by DFPS. Tex. Fam. Code § 261.002. The regulatory functions related to
childcare set forth in chapter 42 of the Texas Human Resources Code, including background
checks, were transferred to HHSC effective September 1, 2017. Tex. Gov’t Code § 531.02011(3)
(now expired). HHSC is now the agency responsible for checking the Central Registry as part of
the background check process and providing a person whose name is on the registry with the
opportunity for a due process hearing.
6
ISSUE PRESENTED FOR REVIEW

Are the findings and conclusions in the SOAH Order supported by substantial

evidence?

STATEMENT REGARDING ORAL ARGUMENT

HHSC does not request oral argument in this appeal because the factual issues

are straightforward and the legal issues have previously been addressed by the courts.

However, HHSC requests the opportunity to present oral argument if the Court

otherwise determines that oral argument is warranted.

STATEMENT OF FACTS

On July 26, 2017, the Texas Department of Family and Protective Services

(DFPS) received an intake report concerning allegations that Fairbank abused one of

her children. AR 4; 123-125; App. Tab 1 (Decision and Order). 4 It was reported that

Fairbank struck one of her children (Child 1), causing her leg to bleed. AR 81, 123.

At the time of the report, Child 1 was 6 years old. AR 123.

DFPS Child Protective Services (CPS) investigator Andrew Chestnut

investigated the allegation and concluded that Fairbank physically abused one of her

children, Child 1. AR 7, 10, 125, 131. Fairbank’s two children made outcry statements

to the amicus attorney, Cynthia Kent. AR 65, 66, 124. Child 2, who was 9 years old

4
Subsequent references to the Decision and Order will be to the bates labeled page(s) in the record.
7
at the time, told Ms. Kent that Fairbank had spanked her sister with a fly swatter,

hitting her sister’s leg and causing her sister’s leg to bleed. AR 81, 124. Child 2 also

stated that on multiple occasions Fairbank would hit Child 1 and leave purple marks

on her legs. AR 66, 124. Child 1 also told Ms. Kent that Fairbank recently spanked

her, and it made blood marks. AR 79, 125.

The Children’s father confirmed that Fairbank had hit Child 1 on the leg

causing her to bleed in four spots on her leg. AR 81, 124. A certified forensic

interviewer confirmed the fact that Fairbank spanked Child 1 with a fly swatter, and

it left a big purple mark. AR 61, 124-125. And Fairbank herself admitted that she

struck Child 1 with a broken fly swatter and that it cut Child 1, and that she hit Child

1 this way because Child 1 had flooded the bathroom floor. AR 61, 124, 125. The fly

swatter left a mark on the child’s leg and caused a partial skin break. AR 10, 61, 125.

The amicus attorney also concluded that Fairbank is struggling with physically

abusing her children. AR 86, 124.

Based on the foregoing, the investigator concluded that Fairbank abused Child

1. AR 7, 10, 125, 131.

A due process contested case hearing pursuant to Texas Human Resources

Code section 40.066 was held at SOAH on September 22, 2021, via Zoom. AR 132,

COL 3. After hearing the evidence, the ALJ affirmed the finding of physical abuse

8
and reversed the finding of neglect in a Decision and Order signed on November 22,

2021.5

Fairbank filed a motion for rehearing on December 13, 2021, regarding the

physical abuse finding. The motion was denied in an order signed by the ALJ on

January 14, 2022. AR 146.

Fairbank filed a suit for judicial review of the Decision and Order in a Travis

County District Court on February 11, 2022. After briefing and oral argument, the

district court reversed the Decision and Order. HHSC then timely commenced this

appeal. CR 80-85.

SUMMARY OF THE ARGUMENT

This appeal involves a traditional suit for judicial review. The SOAH ALJ’s

findings of abuse were supported by substantial evidence—a standard which the

district court completely ignored. There is more than substantial evidence in the

record that Fairbank abused her child, thus warranting her placement on the Child

Abuse and Neglect Central Registry.

In reversing the SOAH Decision and Order (SOAH Order), the district court

ignored the substantial evidence and substituted its judgment for the judgment of the

5
Section 40.066 of the Texas Human Resources Code provides that the ALJ shall make the final
decision in a proceeding involving physical abuse to a child. Tex. Hum. Res. Code § 40.066(c).
9
state agency on the weight of the evidence. Questions of weight are committed to the

agency’s discretion and the district court improperly usurped the agency’s authority

as the trier of fact. This Court should reverse the district court’s judgment and affirm

the SOAH Order because the evidence in the record supports the finding of abuse.

STANDARD OF REVIEW

Judicial review of SOAH’s order is subject to the substantial evidence

standard under the Texas Administrative Procedure Act (APA), Texas Government

Code section 2001.174. Tex. Hum. Res. Code § 48.406(c) (“Judicial review of the

order: . . . is instituted by filing a petition by Subchapter G, Chapter 2001,

Government Code”). A court may affirm the agency decision in whole or in part, or

the APA provides six grounds, subsections (A)–(F), for reversing or remanding an

agency decision for further proceedings:

[I]f substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence

10
considering the reliable and probative evidence in the record

as a whole; or

(F) arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code § 2001.174(2)(A-F).

“In conducting (a substantial evidence review, a court ‘may not substitute its

judgment for the judgment of the state agency on the weight of the evidence.’” Dyer

v. Tex. Comm’n on Envtl. Quality, 646 S.W.3d 498, 514 (Tex. 2022) (quoting Tex.

Gov’t Code § 2001.174). A court “must uphold the agency’s ultimate decision if the

evidence ‘is such that reasonable minds could have reached the conclusion that the

agency must have reached in order to justify its action.’” Dyer, 646 S.W.3d at 514

(quoting Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446,

453 (Tex. 1984)). “We ask ‘not whether the agency’s decision is correct, but

whether the record demonstrates a reasonable basis for it.’” Tex. Comm’n on Envtl.

Quality v. Maverick Cnty., 642 S.W.3d 537, 547 (Tex. 2022), reh’g denied (Apr. 22,

2022). “The findings, inferences, conclusions, and decisions of an administrative

agency are presumed to be supported by substantial evidence, and the burden is on

the contestant to prove otherwise.” Id. “Although substantial evidence is more than

a mere scintilla, the evidence in the record actually may preponderate against the

11
decision of the agency and nonetheless amount to substantial evidence.” Charter

Med.–Dallas, Inc., 665 S.W.2d at 452 (internal citations omitted). In addition, a

reviewing court may uphold an agency action based on any legal basis shown in the

record. Bd. of Trs. of the Emps. Ret. Sys. v. Benge, 942 S.W.2d 742, 744 (Tex. App.—

Austin 1997, writ denied).

In reviewing questions of statutory construction, the courts give “serious

consideration” to an agency’s interpretation of a statute that it is charged with

enforcing. R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d

619, 625 (Tex. 2011). “In ascertaining the scope of an agency’s authority, a reviewing

court gives great weight to the contemporaneous construction of a statute by the

administrative agency charged with its enforcement, and recognizes that the

legislature intends an agency created to centralize expertise in a certain regulatory

area ‘be given a large degree of latitude in the methods it uses to accomplish its

regulatory function.’” Sergeant Enter., Inc. v. Strayhorn, 112 S.W.3d 241, 246 (Tex.

App.—Austin 2003, no pet.). “If the agency’s interpretation is consistent with the

language and the purposes of the statute, the court will accept it, even if other

12
reasonable interpretations exist.” Anderson-Clayton Bros. Funeral Home, Inc. v.

Strayhorn, 149 S.W.3d 166, 178 (Tex. App.—Austin 2004, pet. denied). 6

ARGUMENT

I. The Decision and Order on the abuse issue furthers the goals of the Texas
Family Code and the state’s interest in protecting children from physical
abuse.

The central purpose of Chapter 261 of the Texas Family Code is to protect

children by ensuring that reports of suspected abuse or neglect are made and

investigated promptly. The law establishes a broad and immediate duty for all

citizens to report suspected child abuse or neglect. To that end, Chapter 261 directs

the Texas Department of Family and Protective Services (DFPS) to establish and

maintain a central registry of the names of individuals found by the department to

have abused or neglected a child. Tex. Fam. Code § 261.002(a). Chapter 261 also

directs the DFPS executive commissioner7 to adopt rules necessary to carry out the

requirements of the Central Registry. Tex. Fam. Code § 261.002(b).

6 Senate Bill 14, signed into law on April 25, 2024, amended the Texas Government Code to

explicitly state that Texas courts are not required to give deference to a state agency’s legal
determination regarding the construction, validity, or applicability of the law or a rule. However,
Courts are still not prohibited from giving consideration to a state agency’s legal determination.

7 Unless otherwise provided, a reference in Chapter 261 to the executive commissioner or the

executive commissioner of the HHSC means the commissioner of the DFPS. Tex. Fam. Code §
261.005(1).

13
Section 261.001(1)(C) of the Texas Family Code defines “abuse” as:

(C) physical injury that results in substantial harm to the child, or the
genuine threat of substantial harm from physical injury to the child,
including an injury that is at variance with the history or explanation
given and excluding an accident or reasonable discipline by a parent,
guardian, or managing or possessory conservator that does not expose
the child to a substantial risk of harm;

Tex. Fam. Code § 261.001(1)(C).

“Physical injury that results in substantial harm to the child” means “real and

significant physical injury or damage to a child,” and that includes but is not limited

to:

(A) Any of the following, if caused by an action of the alleged
perpetrator directed toward the alleged victim: substantial or frequent
skin bruising; substantial cuts, welts, lacerations, or pinch marks;
skull or other bone fractures; damage to cartilage; brain damage;
subdural hematoma; soft tissue swelling; impairment of or injury to
any bodily organ or function; any other internal injury otherwise not
specified; permanent or temporary disfigurement; burns; scalds;
wounds, including puncture wounds; bite marks; causing or permitting
a child to consume or inhale a poisonous or noxious substance that has
the capacity to interfere with normal physiological functions; exposing
a child to dangerous chemicals; starvation; concussions; dislocations;
sprains; subjecting a child to Munchausen syndrome by proxy or a
fictitious illness by proxy if the incident is confirmed by medical
personnel; death; or any other cruel act that causes pain or suffering to
the child.

40 Tex. Admin. Code § 707.455(b)(2) (emphasis added).

14
Chapter 261 and Rule 707.455 are plain and unambiguous, and for that reason

Texas courts interpret the statute according to their plain meaning. See Lippincott v.

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).

The unambiguous language of the statue and rule furthers the interests of

Texas citizens by protecting their children from physical abuse, and it is from that

perspective the Court should view the substantial evidence in this case.

II. The Decision and Order on the abuse issue is supported by substantial
evidence.

Here, Fairbank’s actions—supported by more than substantial evidence—fall

squarely within the definitions of abuse and physical injury to a child. In that regard,

the SOAH ALJ found that

4. In April 2017, Petitioner (Fairbank) struck Child 1 with a broken fly swatter
because Child 1 flooded the floor in the bathroom.

5. Child 1’s leg bled and was bruised due to Petitioner (Fairbank) striking her
with the broken fly swatter. Child 1’s leg was bloody in four places. This was
more than minor temporary marks.

6. Petitioner (Fairbank) struck Child 1 with the fly swatter as a form of
discipline.

7. Striking Child 1 with the fly swatter and causing bleeding and bruising was
not reasonable discipline.

AR (SOAH Order) 119-133.

15
These findings are important because they require placement on central

registry, which is a database used to filter people with a history of abuse and neglect

from working in regulated child care, including foster and adoption under chapter 42

of the Human Resources Code and other applicable prohibitions under federal and

state law. The findings do not violate the substantial rights of the appellant; are not

in violation of a constitutional or statutory provision; are not in excess of the agency’s

statutory authority; are not made through unlawful procedure; are not affected by

other error of law; are clearly and undisputedly supported by substantial evidence,

considering the reliable and probative evidence in the record as a whole; and are in

no way arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion. See Tex. Gov’t Code § 2001.174.

It is clear that substantial evidence supports the ALJ’s findings listed above.

DFPS received a report that Fairbank struck one of her children (Child 1, who was

six years old), causing her leg to bleed. DFPS Child Protective Services (CPS)

investigator Andrew Chestnut investigated the allegation and concluded that

Fairbank physically abused one of her children, Child 1. Fairbank’s two children

made outcry statements to the amicus attorney, Cynthia Kent. Child 2, who was 9

years old at the time, told Ms. Kent that Fairbank had spanked her sister with a fly

swatter, hitting her sister’s leg and causing her sister’s leg to bleed. Child 2 also

16
stated that on multiple occasions that Fairbank would hit her and leave purple marks

on her legs. Child 1 also told Ms. Kent that Fairbank recently spanked her, and it

made blood marks.

In addition, the Children’s father confirmed that Fairbank had hit Child 1 on

the leg causing her to bleed in four spots on her leg. A certified forensic interviewer

also confirmed the fact that Fairbank spanked Child 1 with a fly swatter, and it left a

big purple mark.

Indeed, even Fairbank herself admitted that she struck Child 1 with a broken

fly swatter, that it cut Child 1, leaving a mark on the child’s leg and causing a partial

skin break, and that she struck the child because Child 1 had flooded the bathroom

floor.

It is also noteworthy that the amicus attorney concluded that Fairbank is

struggling with physically abusing her children.

Causing a child to bleed and bruise falls squarely into the list of examples of

forms of abuse pursuant to the Texas Administrative Code. The record substantial

evidence demonstrates that Child 1 suffered a physical injury as a direct result of

Fairbank’s actions, particularly “substantial or frequent skin bruising; substantial

cuts or welts or lacerations, permanent or temporary disfigurement; burns; scalds;

wounds.” 40 Tex. Admin. Code § 707.455(b)(2).

17
Fairbank will argue that the abuse of Child 1 was in fact reasonable discipline.

To the contrary, reasonable discipline is the correction of a child’s behavior which

does not create a risk of substantial harm from physical injury. 40 Tex. Admin. Code

§ 707.455. 8 See also Tex. Fam. Code § 271.001(1)(c)(C). The law further provides

that discipline should be reasonable and moderate in degree. Hitting a child with a

fly swatter and causing that child to bleed and bruise is not moderate in degree. And

reasonable discipline does not include an act that is likely to cause or causes injury

more serious than transient pain or minor temporary marks. 40 Tex. Admin. Code §

707.455.

As noted above, in applying the substantial evidence test to an agency’s

decision, the reviewing court is prohibited from substituting its judgment for that of

the agency as to the weight of the evidence on questions committed to agency

discretion. This is precisely what the district court did, i.e., reweighed the evidence

and ignored the substantial record evidence showing abuse in order to reverse the

agency decision.

8 The ALJ refers to 40 Tex. Admin. Code § 700.455 in the SOAH Order. That rule clarified the

definition of physical abuse in effect at the time the abuse occurred in this case. The rule was
adopted to be effective in April 2016 and repealed in 2020, at which point the clarifying definitions
of abuse and neglect were codified in 40 Tex. Admin. Code § 707.455.
18
CONCLUSION AND PRAYER

Affirmance of the district court’s judgment would be tantamount to

sanctioning that court’s flagrant disregard for the well-established substantial

evidence standard of review. Thus, for the reasons stated herein, HHSC respectfully

requests this Court to reverse the district court’s judgment and affirm the Decision

and Order in all respects.

Dated: October 6, 2025

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA
Chief, Administrative Law Division

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
19
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Email: ted.ross@oag.texas.gov

Attorneys for Appellant, Texas Health and Human
Services Commission

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2)(B), this brief

contains 2,707 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and forgoing
document has been served on the 6th day of October 2025 to the following counsel:

Prema Autry via e-Service
Texas State Bar No. 24082357
223 S. Bonner Ave.
Tyler, Texas 75702
T: (903) 705-7211
F: (903) 705-7221
pautry@laddtxlaw.com
Attorney for Appellee,
Amy Bazan a/k/a Amy Fairbank

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General

20
APPENDIX

App. Tab 1 – 11/22/2021 Decision and Order

App. Tab 2 -7/17/25 Judgment

21
APP. TAB 1

11/22/2021 Decision and Order
STATE OFFICE OF ADMINISTRATIVE HEARINGS RECEIVED ON 11/22/2021 10:49 AM

CONFIDENTIAL
FILED ACCEPTED
XXX-XX-XXXX XXX-XX-XXXX
11/22/2021 10:49 AM 11/22/2021 10:57:41 am
STATE OFFICE OF STATE OFFICE OF
ADMINISTRATIVE HEARINGS ADMINISTRATIVE HEARINGS
Jessie Harbin, CLERK Jessie Harbin, CLERK

State Office of Administrative Hearings
Kristofer S. Monson
Chief Administrative Law Judge

November 22, 2021

Cecile Young VIA EFILE TEXAS
Executive Commissioner
Texas Health and Human Services Commission
4900 North Lamar Avenue, 4th Floor
Austin, Texas 78751

RE: SOAH Docket No. XXX-XX-XXXX.FPS; A.B. v. Texas Health and
Human Services Commission

Dear Commissioner Young:

Please find enclosed a Decision and Order in this case. Motions for rehearing may
be filed with the State Office of Administrative Hearings in accordance with Texas Gov’t
Code § 2001.146.

Rachael Airen
Administrative Law Judge

RA/sp
Enclosure

xc: Jennifer Kilibarda, Legal Assistant Legal Services – Administrative Process Unit, Mail Code
Y-956, P.O. Box 149030, Austin, TX 78714-9030 - VIA EFILE TEXAS
Jennifer Grayson, Staff Attorney, Texas Health and Human Services Commission, P.O. Box
149030, Mail Code Y-956, Austin, TX 78714-9030 – VIA EFILE TEXAS
Norman Ladd, III, Petitioner Attorney, 223 South Bonner Ave., Tyler, Texas 75702 – VIA EFILE
TEXAS

P.O. Box 13025 Austin, Texas 78711-3025 | 300 W. 15th Street Austin, Texas 78701
Phone: 512-475-4993 | www.soah.texas.gov
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS

AMY BAZAN, § BEFORE THE STATE OFFICE
Petitioner §
§
v. § OF
§
TEXAS HEALTH AND HUMAN §
SERVICES COMMISSION, §
Respondent § ADMINISTRATIVE HEARINGS

DECISION AND ORDER

Amy Bazan 1 (Petitioner) requested a hearing to contest findings by the
Texas Department of Family and Protective Services (DFPS) that she abused her daughter (Child
1) and neglected both daughters (Child 1 and Child 2), collectively referred to as the Children.2
The Administrative Law Judge (ALJ) finds that the evidence presented by the Texas Health and
Human Services Commission (HHSC) 3 was sufficient to support DFPS’s findings that Petitioner
abused Child 1 and was insufficient to support DFPS’s findings that Petitioner neglected the
Children. Therefore, Petitioner’s name shall be maintained on the central registry in reference to
the abuse finding but shall not be maintained on the central registry in reference to the neglect
finding.

1
Petitioner preferred to go by her maiden name F during the hearing.
2
For the purposes of confidentiality, the Children involved in this case will be referred to individually as Child 1 and
Child 2.
3
Although the DFPS continues to maintain the central registry, the regulatory functions related to childcare set forth
in chapter 42 of the Texas Human Resources Code, including background checks, were transferred to HHSC effective
September 1, 2017. Tex. Gov’t Code § 531.02011(3). Therefore, after September 1, 2017, HHSC is the agency
responsible for checking the central registry as part of the background check process and providing a person whose
name is on the central registry with the opportunity for a due process hearing.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 2

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Notice, venue, and jurisdiction were not contested and are addressed only in the Findings
of Fact and Conclusions of Law.

On September 22, 2021, a hearing convened by telephone before ALJ Rachael Airen with
the Dallas office of the State Office of Administrative Hearings (SOAH). Petitioner appeared at
the hearing and was represented by attorney Norman Ladd. HHSC appeared through attorney
Jennifer Grayson. The record closed on September 22, 2021.

II. APPLICABLE LAW

The Texas Family Code requires DFPS to maintain a central registry of the names of
persons found by DFPS to have abused or neglected a child. 4 HHSC searches this central registry
as part of a background check of persons who work or are applying to work around children, who
are seeking to adopt or provide foster care, or who otherwise require a background check under
the laws that pertain to HHSC’s regulation of childcare operations.

Upon receiving an allegation of abuse or neglect, DFPS conducts an investigation using
the definitions found in the Texas Family Code and applicable rules and completes a written
report. 5 A person found to have neglected or abused a child may contest the finding through a due
process hearing. 6 If an ALJ determines that the preponderance of the evidence supports the finding
of abuse or neglect, the ALJ will uphold DFPS’s finding, and HHSC may release the abuse or
neglect finding to outside parties.

4
Tex. Fam. Code § 261.002(a). All citations in this Decision and Order are to the substantive provisions in effect at
the time the alleged incidents occurred. The current version of the procedural rules is cited.
5
Tex. Fam. Code §§ 261.001, .301, .308.
6
40 Tex. Admin. Code (TAC) § 745.8831 et seq.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 3

Pursuant to Texas Family Code § 261.001(1)(C), “abuse” is defined as the following acts
or omissions:

[P]hysical injury that results in substantial harm to the child, or the genuine threat
of substantial harm from physical injury to the child, including injury that is at
variance with the history or explanation given and excluding an accident or
reasonable discipline by a parent, guardian, or managing or possessory conservator
that does not expose the child to a substantial risk of harm[.]

The Texas Administrative Code further elaborates on the definition of abuse by defining
the following:
(6) "Physical injury that results in substantial harm to the child" means real and
significant physical injury or damage to a child that includes but is not limited to:

(A) Any of the following, if caused by an action of the alleged
perpetrator directed toward the alleged victim: substantial or frequent
skin bruising; substantial cuts, welts, lacerations, or pinch marks…or
any other cruel act that causes pain or suffering to the child.

(7) "Reasonable discipline" means discipline that is reasonable in manner and
moderate in degree; does not constitute cruelty, reckless behavior, or grossly
negligent behavior; and is administered for purposes of restraining or correcting the
child. It shall not include an act that is likely to cause or causes injury more serious
than transient pain or minor temporary marks. The age, size, and condition of the
child; the location of the injury; and the frequency or recurrence of injuries shall be
considered when determining whether the discipline is reasonable and moderate.

....

(9) "Substantial risk" means a real and significant possibility or likelihood.7

Pursuant to Texas Family Code Chapter 261.001(4)(A)(ii)(a), “neglect” is defined as:

[P]lacing a child in or failing to remove a child from a situation that a reasonable
person would realize requires judgment or actions beyond the child’s level of
maturity, physical condition, or mental abilities and that results in bodily injury or
a substantial risk of immediate harm to the child[.]

7
40 TAC § 700.455.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 4

Further, a person responsible for a child’s care, custody or welfare includes a parent,
guardian, managing or possessory conservator or foster parent of the child. 8

The purpose of this hearing is to determine whether Petitioner abused and neglected a child
within the definitions above. HHSC has the burden of proving that the findings of abuse and
neglect should be upheld. 9

III. EVIDENCE

HHSC submitted two exhibits and called witness Andrew Chestnut, a Child Protective
Services (CPS) investigator with DFPS. Petitioner testified on her own behalf and submitted no
exhibits.
A. Abuse Finding

1. HHSC’s Evidence

a. Investigative Report

On July 26, 2017, DFPS received an intake report concerning Petitioner (mother) abusing
the Children. 10 It was reported that Petitioner had spanked the Children and left bruises on them.11
It was further reported that Petitioner struck Child 1 causing her leg to bleed. At the time of the
report, Child 1 and Child 2 were 6 years old and 9 years old, respectively.

8
Tex. Fam. Code § 261.001(5)(A)
9
1 TAC § 155.427.
10
HHSC Ex. 2 at 4.
11
HHSC Ex. 2 at 10.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 5

CPS investigator Andrew Chestnut investigated the allegation and concluded that
Petitioner physically abused Child 1. For his investigation, Mr. Chestnut interviewed both parents,
reviewed the amicus attorney report and listened to the Children’s forensic interviews. The
Children made outcry statements to the amicus attorney, Cynthia Kent. 12 Child 2 told Ms. Kent
that Petitioner had spanked her sister with a fly swatter, hitting her sister’s leg and causing her
sister’s leg to bleed. 13 Child 2 also stated that on multiple occasions Petitioner would hit her and
leave purple marks on her legs. Child 1 told Ms. Kent that Petitioner recently spanked her, and it
made blood marks. 14 Ms. Kent interviewed the Children’s father, R
-- B
Petitioner had hit Child 1 on the leg causing her to bleed in four spots on her leg. However,
, and he confirmed

Mr. Bazan did not witness the incident but stated Petitioner told him about it afterwards. Mr. Bazan
told Ms. Kent that the incident occurred around April 2017. Ms. Kent interviewed Petitioner and
she admitted hitting Child 1 with a broken fly swatter and that it cut Child 1. According to the
Children, Petitioner had hit them on several occasions causing bruising. The amicus attorney
concluded that Petitioner is struggling with physically abusing her children.

On August 4, 2017, the Children were forensically interviewed. 15 Child 2 stated to
Jennifer Kelly, a certified forensic interviewer, that her mother spanked Child 1 with a fly swatter,
and it left a big purple mark. 16

As part of his investigation, Mr. Chestnut, interviewed both parents. Petitioner admitted to
Mr. Chestnut, that she struck Child 1 with a broken fly swatter because Child 1 had flooded the

12
During the CPS investigation there was a pending divorce between Petitioner and R
-- B (father) and as part
of the pending divorce the court appointed Guardian ad Litem/ amicus attorney, Cynthia Kent. Cynthia Kent conducted
interviews of the children and both parents.
13
HHSC Ex. 2 at 42.
14
HHSC Ex. 2 at 44.
15
HHSC Ex. 2 at 24-25.
16
HHSC Ex. 2 at 25.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 6

bathroom floor. She stated that the fly swatter left a mark on the child’s leg and caused a partial
skin break. 17 Based on his investigation Mr. Chestnut concluded that Petitioner abused Child 1.

b. Mr. Chestnut’s Testimony

Mr. Chestnut testified that he conducted the investigation into the allegations of abuse and
neglect of the Children. Mr. Chestnut believed that the abuse finding was appropriate. He said
Child 1 sustained injuries when Petitioner hit Child 1 with the fly swatter. The Children provided
consistent statements that Petitioner had spanked Child 1 with a broken fly swatter which caused
Child 1’s leg to bleed. According to Mr. Chestnut, the Children appeared credible and provided
consistent statements.

2. Petitioner’s Testimony

Petitioner testified that she spanked Child 1 with a broken fly swatter; however, she
adamantly denied that it broke the skin or caused Child 1 to bleed. Petitioner did not recall if
striking Child 1 left a bruise on her leg. She further testified that she has spanked Child 1 with a
fly swatter on multiple occasions and used this as a form of discipline. Regarding the incident that
occurred around April 2017, Petitioner testified that it was bath time and Child 1 had flooded the
floor in the bathroom; therefore, she disciplined Child 1 by spanking her with a broken fly swatter.
Petitioner believed that spanking Child 1 with a broken fly swatter was reasonable discipline.

17
HHSC Ex. 2 at 26.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 7

B. Neglect Finding

1. HHSC Evidence

a. Investigative Report

On July 26, 2017, DFPS received an intake report concerning Petitioner neglecting the
Children. Mr. Chestnut investigated the neglect allegations. He interviewed both parents, reviewed
amicus attorney report and listened to the Children’s forensic interview. Petitioner admitted to
Mr. Chestnut that she told the Children to bring her a beer. Petitioner denied drinking frequently
in the presence of the Children or that she is alone while intoxicated with the Children. Mr. Bazan
stated to Mr. Chestnut that he has concerns about Petitioner’s drinking and her being around the
Children. Also, he stated that Petitioner has a temper when drinking but gave no further elaboration
or examples. Mr. Bazan never mentioned an incident involving a picture frame to either
Mr. Chestnut or Ms. Kent.

As part of his investigation, Mr. Chestnut reviewed Ms. Kent’s report. Ms. Kent
interviewed the parents and the Children. Mr. Bazan told Ms. Kent that Petitioner would drink and
then cuss and yell at him and the Children. 18 The Children disclosed to Ms. Kent that Petitioner
drinks alcohol often. The Children also disclosed to Ms. Kent that the Petitioner threw a picture
frame at the wall almost hitting Child 1. Child 2 told Ms. Kent that Petitioner threw the picture
frame after drinking and getting angry. Based on her interviews Ms. Kent was concerned about
Petitioner’s drinking and physical abuse of the children.

Both Children stated in the forensic interview that Petitioner threw a picture frame that
almost hit Child 1, but neither stated that this occurred while Petitioner was intoxicated. Child 1

18
HHSC Ex. 2 at 46.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 8

stated she brought Petitioner a refill of beer. Child 2 also stated in the forensic interview that
Petitioner drinks alcohol but does not know how often Petitioner drinks.

Based on his investigation, Mr. Chestnut determined that the neglect finding against
Petitioner was appropriate. HHSC alleges that by drinking to the point of intoxication while caring
for the Children the Petitioner placed them in a situation beyond the children’s level of maturity,
of maturity, physical condition, or mental abilities, resulting in bodily injury or a substantial risk
of immediate harm. 19 HHSC argues Petitioner placed the Children in harm’s way by consuming
alcohol, which impaired her mental and physical capabilities.

b. Mr. Chestnut’s Testimony

Mr. Chestnut testified that Petitioner was under the influence in the presence of the children
and that put the Children in substantial harm. Mr. Chestnut testified that he believed Petitioner was
alone with the Children when she drank because Child 1 stated in the forensic interview that she
had brought her mother a beer and he interpreted that to mean that Petitioner was alone with the
Children. Mr. Chestnut further testified that he did not have any evidence that the Children were
alone when Petitioner drank alcohol. He also did not have any evidence that she was intoxicated.
Mr. Chestnut testified that he concluded that Petitioner was intoxicated in the presence of the
Children from the forensic interviews with the Children and his personal interview with
Mr. Bazan. Mr. Chestnut acknowledges that Mr. Bazan and Petitioner were going through a
divorce and custody battle during the time period that the alleged events occurred.

2. Petitioner’s Testimony

Petitioner testified that she did drink alcohol in the presence of the Children. However,
Petitioner denied drinking and getting intoxicated while alone with the Children. She denied being

19
HHSC Ex. 1 at 6.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 9

angry and aggressive when drinking alcohol. Petitioner denied excessive drinking or drinking to
the point of intoxication. During her testimony, she admitted to throwing objects at Mr. Bazan
while drinking and arguing with Mr. Bazan with the Children present. Petitioner testified that she
was not required by the court to attend any treatment program or substance abuse program.

IV. ANALYSIS

A. HHSC proved that Petitioner abused Child 1.

HHSC proved by a preponderance of the evidence that Petitioner abused Child 1. Pursuant
to Texas Family Code §261.00l(l)(C), abuse occurs when a person acts in a manner, excluding
reasonable discipline or accident, causing a physical injury to a child that results in substantial
harm or the risk of substantial harm. It is undisputed that Petitioner struck Child 1 with a broken
fly swatter during April 2017. A preponderance of the evidence shows that when Petitioner hit
Child 1 with the fly swatter she caused substantial harm—causing Child 1’s leg to bleed and bruise.

The children consistently reported that Petitioner hit Child 1 with a fly swatter, and it
caused Child 1 to bleed and bruise. Child 2 disclosed to Ms. Kent that Petitioner spanked Child 1
so bad it caused Child 1 to bleed and cut Child’s 1 leg. 20 Child 1 told Ms. Kent that Petitioner
spanked her and it made her bleed. Further, Petitioner admitted to the CPS investigator that she
spanked Child 1 with the fly swatter and it caused partial skin breaking from contact with the fly
swatter. Petitioner admitting partial skin breaking corroborates Child’s 2 description of the
incident. Despite Petitioner’s later denial at the hearing, the preponderance of the evidence shows
that Petitioner hit Child 1 with a fly swatter causing Child 1 to bleed and bruise.

20
HHSC at 42.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 10

Hitting Child 1 with the broken fly swatter was not an accident. Petitioner admitted that
she spanks the Children with a fly swatter as a form of discipline. She also admitted intentionally
hitting Child 1 with the fly swatter because Child 1 flooded the bathroom.

Hitting Child 1 with the broken fly swatter was not reasonable discipline. Reasonable
discipline is the correction of a child's behavior which does not create a risk of substantial harm
from physical injury. 21 The law states the discipline should be reasonable and moderate in degree.
Hitting a child with a fly swatter and causing that child to bleed and bruise is not moderate in
degree. Further the law states, reasonable discipline does not include an act that is likely to cause
or causes injury more serious than transient pain or minor temporary marks. 22 The Children stated
that Child 1’s leg bled and Child 1 stated that there was a bruise on her leg. A bruise is more than
a temporary minor mark. Petitioner testified she believed spanking Child 1 with a broken fly
swatter was reasonable discipline. But the law provides that causing injury to a child is not
reasonable discipline and causing a child to bleed is an injury. In this case the evidence shows the
discipline was not reasonable.

In short, causing a child to bleed and bruise falls squarely into the list of examples of forms
of abuse pursuant to the Texas Administrative Code. Child 1 suffered a physical injury by the
actions of the Petitioner. Therefore, the preponderance of the credible evidence supports a finding
that Petitioner abused Child 1. Petitioner’s name should be maintained on the central registry as a
person having abused a child.

B. HHSC failed to prove that Petitioner neglected the Children.

HHSC failed to establish by a preponderance of the evidence that Petitioner neglected the
Children. The evidence fails to show that Petitioner was intoxicated to the point that she placed

21
40 TAC § 700.455.
22
40 TAC § 700.455.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 11

the Children in a situation beyond their level of maturity, physical condition, or mental abilities.
HHSC failed to establish that Petitioner’s intoxication placed her children in a situation that a
reasonable person would realize requires judgment or actions beyond the children’s level of
maturity, physical condition, or mental abilities. There is no evidence that Petitioner was
intoxicated around the children. Petitioner admits to having a beer in the presence of the children
and she admits asking Child 1 to bring her a beer. This does not rise to the level of neglect.
Petitioner admits to having beer in the presence of the Children along with Mr. Bazan being
present. Neither child stated that Petitioner was intoxicated with them alone. Petitioner testified
Mr. Bazan is present when she has a beer around the Children. Mr. Chestnut assumed based on the
forensic interviews that Petitioner was intoxicated alone with the Children. Drinking a beer or two
in the presence of your children is not illegal and does not prove intoxication. There is insufficient
evidence to demonstrate intoxication.

Second, HHSC failed to establish that Petitioner’s drinking around the Children resulted in
bodily injury or substantial risk of immediate harm to the Children. The ALJ acknowledges that,
in a single instance the Petitioner got angry with the father and threw objects. However, there is
no actual evidence that this caused a substantial risk of immediate harm or injury to the Children.

Having reviewed all the evidence, the ALJ finds that Petitioner did not neglect Child 1 or
Child 2. Petitioner’s name should not be maintained on the central registry as a person having
neglected a child.

V. FINDINGS OF FACT

1. Amy Bazan (Petitioner) is the mother of Child 1 and Child 2, collectively the Children,
who were 6 years old and 9 years old, respectively, in July 2017.

2. On July 26, 2017, the Texas Department of Family and Protective Services (DFPS)
received a referral regarding the Children.

3.

--
In 2017, Petitioner was involved in a contentious custody dispute over the Children with
her husband, R B .
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 12

4. In April 2017, Petitioner struck Child 1 with a broken fly swatter because Child 1 flooded
the floor in the bathroom.

5. Child 1’s leg bled and was bruised due to Petitioner striking her with the broken fly swatter.
Child 1’s leg was bloody in four places. This was more than minor temporary marks.

6. Petitioner struck Child 1 with the fly swatter as a form of discipline.

7. Striking Child 1 with the fly swatter and causing bleeding and bruising was not reasonable
discipline.

7. Petitioner drank alcohol in the presence of the Children and Mr. Bazan.

8. A preponderance of the evidence fails to show that Petitioner was intoxicated while alone
with the Children.

9. A preponderance of the evidence fails to show the Children were left in a situation that a
reasonable person would realize requires judgment or actions beyond the child’s level of
maturity, physical condition, or mental abilities and that results in bodily injury or a
substantial risk of immediate harm to the child.

10. DFPS investigated the allegations and notified Petitioner that it had determined that she
abused Child 1 and neglected the Children.

11. DFPS placed Petitioner’s name on its central registry as a person who had abused and
neglected a child.

12. DFPS notified Petitioner of her right to a due process hearing.

13. Petitioner timely requested a hearing.

14. The Texas Health and Human Services Commission (HHSC) sent its notice of hearing to
Petitioner on January 28, 2021. The notice contained a statement of the time, place, and
nature of the hearing; a statement of the legal authority and jurisdiction under which the
hearing was to be held; a reference to the particular sections of the statutes and rules
involved; and either a short, plain statement of the factual matters asserted or an attachment
that incorporates by reference the factual matters asserted in the complaint or petition filed
with the state agency.

15. On September 22, 2021, a telephone hearing convened before Administrative Law Judge
Rachael Airen with the Dallas office of the State Office of Administrative Hearings
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 13

(SOAH). Petitioner and was represented by attorney Norman Ladd. HHSC appeared
through attorney Jennifer Grayson. The record closed on September 22, 2021.

VI. CONCLUSIONS OF LAW

1. HHSC has jurisdiction over this matter. Tex. Hum. Res. Code ch. 42; Tex. Gov’t Code
§ 531.02011(3).

2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the
authority to issue a decision and order. Tex. Hum. Res. Code § 40.066;
Tex. Gov’t Code ch. 2003.

3. The hearing was conducted pursuant to the Administrative Procedure Act,
Texas Government Code ch. 2001, and SOAH’s rules, 1 Texas Administrative Code (TAC)
ch. 155.

4. Venue was properly established in this matter according to Texas Human Resources Code
§ 40.066(f).

5. Proper and timely notice of the hearing was provided to Petitioner. Tex. Gov’t Code
§§ 2001.051-.052.

6. HHSC has the burden of proof by a preponderance of the evidence. 1 TAC § 155.427.

7. HHSC proved, by a preponderance of the evidence, that Petitioner abused a child as
“abuse” was defined at the time of the incident. Tex. Fam. Code
§ 261.001(1)(C).

8. HHSC failed to prove, by a preponderance of the evidence, that Petitioner neglected a child
as “neglect” was defined at the time of the incident. Tex. Fam. Code
§ 261.001(4)(A)(ii)(a).

9. Petitioner’s name shall be maintained in the DFPS central registry as a person having
abused a child.

9. Petitioner’s name shall be removed from the DFPS central registry as a person having
neglected a child.
CONFIDENTIAL
Pursuant to Tex. Hum.
Res. Code § 40.005

SOAH DOCKET NO. XXX-XX-XXXX.FPS DECISION AND ORDER PAGE 14

ORDER

IT IS ORDERED that the finding that Petitioner abused a child is upheld, and her name
shall be maintained on the central registry in reference to the abuse finding. IT IS FURTHER
ORDERED that the finding that Petitioner neglected a child are reversed, and her name shall be
removed from the central registry in reference to the neglect findings. As set forth in Texas
Government Code § 2001.146, either party may file a written motion for rehearing with the ALJ.

SIGNED November 22, 2021.

~~
Rachael Airen
Administrative Law Judge
State Office of Administrative Hearings
APP. TAB 2

07/17/2025 Final Judgment
07/17/2025 11:09:38 AM
Velva L. Price
District Clerk
Travis County
D-1-GN-22-000773

CAUSE NO. D-1-GN-22-000773

AMY BAZAN (A!K/A AMY § IN THE DISTRICT COURT
FAIRBANK) §
Plaintiff, §
§
v. § OF TRAVIS COUNTY, TEXAS
§
TEXAS HEALTH AND HUMAN §
SERVICES COMMISSION §
Defendant. § 353RD JUDICIAL DISTRICT

FINAL JUDGMENT

On July 17, 2025, the above styled suit came before the Court for a judicial review

merits hearing. Plaintiff, Amy Bazan (a/k/a Amy Fairbank), was present through~ f wiflt

counsel, Prema Autry. Defendant, the Texas Health and Human Services Commission

(HHSC), was present through its counsel, Assistant Attorney General Ted A. Ross, Office

of the Attorney General.

Having considered the administrative record, the parties' briefs, and other relevant

material, and having heard the argument of the parties, the Court finds that the HHSC

Decision and Order signed on November 22, 2021, which is the subject of the proceeding

(HHSC Order), is not supported by substantial evidence.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows :

1. The HHSC Order is in all respects REVERSED;

2. If the court deems it necessary, the HHSC Order in all respects is REVERSED
and REMANDED;

3. All costs are taxed against Defendant; and

4. All relief not expressly granted herein in DENIED.
IT IS ORDERED, ADJUDGED, AND DECREED this \ :,- day of July, 2025.

THE H BLE MAY AG ERRA GAMBLE
Judge o· the 353 rd Judicial District Court
Travis County, Texas

APPROVED AS TO FORM:

Isl Prema Autry
Norman R. Ladd
State Bar No. 24041285
PremaAutry
State Bar No. 24082357
223 S. Bonner Ave.
Tyler, Texas 75702
T: (903) 705-7211
nladd@laddtxlaw.com
pautry@laddtxlaw.com
ATTORNEYS FOR PLAINTIFF
AMY BAZAN

Ted A. Ross
Assistant Attorney General
State Bar N. 24008890
Office of the Attorney General of Texas
Administrative Law Division
P. 0. Box 12548, Capitol Station
Austin, Texas 78711-2548
T: (512) 475-4191
ted.ross@oag.texas.gov
ATTORNEY FOR DEFENDANT
TEXAS HEALTH AND HUMAN
SERVICES COMMISSION

2
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Jeff Lutz on behalf of Ted Ross
Bar No. 24008890
jeff.lutz@oag.texas.gov
Envelope ID: 106496479
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 2025 1006 Appellant HHSCs Brief
Status as of 10/6/2025 2:51 PM CST

Associated Case Party: Texas Health and Human Services Commission

Name BarNumber Email TimestampSubmitted Status

Jeff Lutz jeff.lutz@oag.texas.gov 10/6/2025 2:41:05 PM SENT

Ted Ross ted.ross@oag.texas.gov 10/6/2025 2:41:05 PM SENT

Associated Case Party: Amy Bazan

Name BarNumber Email TimestampSubmitted Status

Cheryl Kuester ckuester@laddtxlaw.com 10/6/2025 2:41:05 PM SENT

Norman Ladd nladd@laddtxlaw.com 10/6/2025 2:41:05 PM SENT

Prema Autry pautry@laddtxlaw.com 10/6/2025 2:41:05 PM SENT