Opinion by CHIEF JUDGE LOEB
¶ 1 In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that plaintiff, Steven Romero, sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry, known as Trails. Romero appealed DHSs confirmations pursuant to Colorados State Administrative Procedure Act (APA). §§ 24-4-101 to - 204, C.R.S. 2017. An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHSs confirmation decisions. DHS appealed, and defendant, Colorado Department of Human Services (Department), reversed the ALJs initial decision, concluding that the evidentiary facts, including an adverse inference based on Romeros invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren.
¶ 2 Romero appealed to the district court, which reversed the Departments final decision, and the Department now appeals the district courts judgment. Because we conclude that the Department properly applied an adverse inference to Romeros invocation of his Fifth Amendment rights and did not otherwise err in its final decision, we reverse the district courts judgment.
I. Procedural History and Background
¶ 3 The following facts and procedural history are taken from the administrative record in this case.
¶ 4 In 2014, L.R. (mother) brought her three-year-old daughter, K.P., to the doctor for pain and swelling around her vagina. The medical personnel asked mother if K.P. had been sexually abused and ran tests for various sexually transmitted diseases, all of which were negative. Mother asked K.P. the next day if anyone had touched her in a bad spot, and K.P. answered Papa, referring to Romero. K.P. disclosed that Romero touched her front butt with his hand. And, in a later statement, she stated that Romero had put his fingers in her front butt. The record also includes copies of an anatomically correct drawing where K.P. pointed to the vaginal area when asked where the front butt was.
¶ 5 At the time of K.P.s disclosure, mother, K.P., and mothers older child, A.R., lived with Romero and the childrens maternal grandmother, who was also Romeros common law wife (grandmother). After K.P.s disclosure, grandmother alerted mother to Romeros potential abuse of A.R. Mother reported the potential abuse of K.P. and A.R. to the Morgan County Department of Human Services. However, Romero was the director of that office at the time, so the case was referred to DHS in Larimer County. DHS began an investigation of the alleged abuse simultaneously with a criminal investigation by law enforcement.
¶ 6 Both children were forensically interviewed, and A.R. was interviewed twice. A.R. was very reluctant in his interviews, and neither interview disclosed improper contact. However, a month later, A.R. disclosed in therapy, through words and pictures, that Romero had touched him inappropriately, focusing on an incident in a swimming pool.
A. DHS Decision and Romeros Listing in Trails
¶ 7 Ultimately, DHS found by a preponderance of the evidence that Romero had sexually abused K.P. and A.R. Both of these findings, or confirmations, were listed in Trails.
¶ 8 Romero timely appealed the confirmations to the Departments Child Abuse/Neglect Dispute Review Section. The Department referred Romeros appeal to an ALJ.
¶ 9 As part of the discovery process for the administrative appeal, DHS deposed Romero. Romero was represented by counsel and answered a few questions about his education and background, but he invoked his Fifth Amendment right to remain silent on the advice of his attorney for the remainder of the deposition. The questions bore heavily on whether Romero sexually abused his grandchildren, including such direct questions as whether Romero touched K.P. and A.R. in intimate areas and whether those touches were for Romeros sexual gratification. It is clear from the deposition transcript that Romero invoked the Fifth Amendment to protect himself in the ongoing criminal investigation into A.R.s and K.P.s allegations of sexual abuse.
B. ALJ Hearing and Initial Decision
¶ 10 At the hearing, the ALJ heard testimony from mother; grandmother; the medical personnel who initially treated K.P.; the childrens therapist, Cassie Potts; and a clinical and forensic psychologist, Dr. Richard Spiegle. Dr. Spiegle was the only witness called by Romero; Romero did not otherwise present evidence disputing DHSs proffered evidence.
¶ 11 The forensic interviews as well as the transcript of Romeros deposition were admitted into evidence at the hearing. During closing arguments, DHS requested that the ALJ make an adverse inference regarding the questions that Romero declined to answer based on his invocation of the Fifth Amendment.
¶ 12 The ALJ made numerous findings of evidentiary fact and reversed DHSs confirmations as to the ultimate conclusion that Romero was responsible for sexual abuse of his grandchildren.
¶ 13 Because the Department and this court must defer to the ALJs findings of evidentiary or historical fact, we detail those findings here.
• Romero is the grandfather of K.P. and A.R.
• A.R. was living with Romero and grandmother, and Romero was A.R.s legal guardian.
• A.R. had been suffering from encopresis since sometime in 2012.
• At the time of the allegations, K.P. and mother were also living with Romero and grandmother.
• While A.R. and K.P. were living under Romeros roof, they often slept in the same bed with Romero.
• Mother took K.P. to see a pediatrician because of a bumpy rash on her inner thighs and pain and swelling in her vaginal area.
• The doctor and nurse practitioner who treated K.P. asked mother if K.P. had been sexually abused and ran tests to determine if K.P. had a sexually transmitted disease. However, no cause for the rash or swelling was ever medically determined.
• The doctor testified that K.P. was more scared or worried by the doctors examination of her groin than is typical for a child of her age.
• Grandmother alerted mother to Romeros potential abuse of A.R., centered on an incident in a swimming pool.
• K.P. stated that Romero touched her front butt and put his fingers in her front butt, but K.P.s forensic interview was inconclusive.
• A.R.s first forensic interview did not disclose any inappropriate touching.
• After the first forensic interview, A.R. disclosed that Romero touched him on his butt in the pool. A.R. was forensically interviewed a second time, but the ALJ determined that the second interview was tainted by leading questions.
• Both children began counseling with Potts, a therapist at Sexual Abuse Response Associates specializing in trauma. A.R. was having issues with nightmares, avoidance, shyness, sleeplessness, and difficulty focusing. Potts testified that she believed these symptoms were associated with past trauma.
• After fifteen sessions with Potts, A.R. drew a picture with stick figures of himself and Romero in a pool and described Romero touching him over his clothes. A.R. also wrote a letter to Romero that began with why did you tuch me? He also wrote that in the pool grampa dad did tuched me on butt with his finger it hert. Similarly, he drew a picture of him and Romero in the pool and wrote at the bottom tuch me in swimming pool over close.
• K.P. engaged in play therapy with Potts, and during the therapy K.P. used anatomically correct dolls in sexual positions.
• After the allegations and commencement of the investigation, Romero voluntarily relinquished his guardianship of A.R.
¶ 14 Dr. Spiegle testified that A.R.s shyness could be attributed to encopresis. He further testified that if the encopresis was brought on by emotional turmoil, that turmoil could have derived from mothers inconsistent presence in A.R.s life. However, Dr. Spiegle also admitted that sexual abuse could contribute to the onset of encopresis in a child.
¶ 15 The ALJ ultimately concluded that DHS failed to establish by a preponderance of the evidence that [Romero] is a person responsible for incidents of child abuse or neglect. In making that conclusion, the ALJ emphasized the following:
• The medical examination of K.P. did not reveal the cause of the bumpy rash and pain in her genital area, although there was suspicion that they resulted from abuse.
• K.P. is very young and her forensic interview reflected her immaturity. Her accounts were inconsistent and confusing.
• Regarding both children, there was no evidence that any contact occurred with the requisite purpose of sexual arousal, gratification, or abuse. §§ 18-3-401(4), - 405, C.R.S. 2017.
• Regarding A.R., neither forensic interview revealed any inappropriate touching and his drawings were inconclusive, even with the testimony of Potts.
• Dr. Spiegles testimony indicated that A.R.s encopresis could have been triggered by emotional issues with mother, not Romero.
• The ALJ opined that the evidence does not preponderate on such an important issue as is presented here.
¶ 16 In the initial decision, the ALJ made no reference to the Departments request for an adverse inference.
C. DHSs Appeal to the Department
¶ 17 DHS appealed the ALJs order to the Department for a final decision. DHS argued that the ALJ erred in failing to draw an adverse inference from Romeros invocation of his Fifth Amendment right against self-incrimination. Specifically, DHS argued that the ALJ did not consider Romeros deposition transcript because the ALJ failed to mention it in any of his findings of fact or conclusions and it was not listed as an exhibit in the ALJs order. Romero responded that there was no credible evidence or substantive testimony to be disputed, and that, therefore, an adverse inference was not helpful.
¶ 18 The Department accepted the ALJs findings of evidentiary fact, but overturned the ALJs ultimate conclusion of fact and found that DHS had proven by a preponderance of the evidence that Romero sexually abused K.P. and A.R. In doing so, the Department first concluded that the ALJ had not considered Romeros invocation of his Fifth Amendment rights. However, based on that invocation, the Department made its own determination to apply the adverse inference in its analysis. Specifically, the Department focused on the questions regarding whether Romero ever touched K.P.s or A.R.s private areas, and if so, whether he did that for his own sexual gratification. The Department found that the adverse inference, combined with a number of other facts supported by the record, showed by a preponderance of evidence that Romero abused his grandchildren.
¶ 19 The Department emphasized the following evidentiary facts pertaining to Romeros sexual abuse of K.P.:
• K.P. presented as more scared during the medical exam of her groin and genitals than was typical of children her age.
• K.P. asked the medical personnel not to stick their fingers in her front butt.
• The medical personnel strongly suspected sexual abuse as evidenced by the questions they asked mother and the tests they chose to run.
• K.P. disclosed in her forensic interview that Romero touched her front butt.
• K.P. sometimes slept with Romero.
• Children as young as K.P. often cannot express themselves in words, but can express themselves through play. K.P. used anatomically correct dolls to show sexual situations.
• The Colorado Supreme Court has extensive case authority holding that such statements of very young children relating to incidents of sexual abuse tend to be reliable. Here, K.P. was three years old when she was taken to the pediatrician for vaginal pain and forensically interviewed.
¶ 20 Similarly, with regard to A.R., the Department emphasized the following to support a confirmation of sexual abuse:
• A.R.s drawings, including their written notes and labels, were clear when put into context, and they disclosed abuse.
• A.R. had a withdrawn and tearful demeanor while making the trauma narrative drawings.
• A.R. made the statement of why did u tuch me? while in trauma therapy.
• A.R. sometimes slept with Romero.
• A.R. eventually disclosed that Romero touched him over his clothes.
• Dr. Spiegles testimony that A.R.s encopresis could have been caused by the instability of mother in his life was not conclusive. Moreover, Dr. Spiegle acknowledged that sexual abuse could contribute to the onset of encopresis.
D. Romeros Appeal to the District Court
¶ 21 Romero timely appealed the Departments final decision to the district court. The district court reviewed the briefs and the record and concluded that the Department had failed to provide an adequate explanation for why it chose to draw a negative inference from Romeros invocation of the Fifth Amendment. The court stated that [u]nder the circumstances of this case, a non-generic explanation by [the Department] was legally necessary.... [T]his Court is concerned that the privilege has been reduced to a hollow mockery because [the Department] equated remaining silent with guilt.
¶ 22 The court ruled that, while the Department could substitute its own judgment for that of the ALJ with respect to ultimate conclusions of fact, the Department based its reversal almost entirely on Romeros invocation of the Fifth Amendment.... As a result, the court finds that [the Departments] decision was both arbitrary and capricious and contrary to law.
¶ 23 The court further concluded that the ALJ was best suited to consider whether the adverse inference should be applied. Consequently, the court remanded the case to the Department with instructions to remand to the ALJ to determine whether the adverse inference should be applied, and if so, whether DHS showed by a preponderance of the evidence that Romero was responsible for the alleged abuse.
¶ 24 The Department now appeals, arguing that the district court erred by overruling the Departments final decision and by restricting the application of the adverse inference to situations where the Department provides an adequate explanation of why it has applied the inference. For the reasons discussed below, we conclude the Department properly applied the adverse inference to uphold DHSs confirmations, and, accordingly, we reverse the judgment of the district court.
II. Standard of Review
¶ 25 On appeal from a district courts review of a final agency action, this court applies the same standard of review as the district court-the standard set forth in section 24-4-106(7), C.R.S. 2017. § 24-4-106(7), (11)(e) ; see also Gessler v. Grossman , 2015 COA 62, ¶ 9, --- P.3d ---- (cert. granted June 20, 2016). Pursuant to section 24-4-106(7), a reviewing body may set aside an agencys decision only when the agency action is
arbitrary or capricious, a denial of statutory right, contrary to constitutional right, power, privilege, or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures or procedural limitations of this article or as otherwise required by law, an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial evidence when the record is considered as a whole, or otherwise contrary to law....
If the reviewing court finds no error, it must affirm the agency action. Id. In applying this standard, we presume the validity and regularity of the administrative proceedings and resolve all reasonable doubts as to the correctness of the administrative ruling in favor of the agency. Gessler , ¶ 11.
III. Adverse Inference for a Partys Invocation of the Fifth Amendment in Civil Cases
¶ 26 The central issue in this case is whether the Department correctly applied an adverse inference from Romeros invocation of his Fifth Amendment rights to its analysis of whether the evidence supported DHSs confirmations of sexual abuse. We conclude that it did.
A. Preliminary Matter
¶ 27 Before addressing the Departments arguments on the merits, we first address Romeros argument that the issue of the applicability of the adverse inference was not preserved for appellate review. Romero argues that, because the Department filed its appeal before the case could be remanded to the ALJ for a determination of whether the adverse inference should apply, the Department waived the right to argue the issue of a potential adverse inference here. We disagree.
¶ 28 First, Romero cites no case law, and we have found none, that supports his hybrid preservation/waiver argument in this context. Indeed, the law is to the contrary. See Benchmark/Elite, Inc. v. Simpson , 232 P.3d 777, 778 (Colo. 2010) (reversing a remand order to an ALJ). Second, one of the Departments primary arguments is that the district court erred in overturning the Departments adverse inference decision and remanding to the ALJ for findings on the adverse inference. Third, Romero concedes in his answer brief that the ALJs silence on the adverse inference was, in fact, a decision that the inference did not apply, thereby presenting that issue to the district court for a decision, which it made. The district courts decision was a final judgment, and the Department has a right to appeal that decision.
B. Applicable Law
¶ 29 This case turns on the intersection of the Departments authority under the APA and the jurisprudence concerning a partys invocation of the Fifth Amendment in the context of a civil case. We outline the relevant areas of law below.
1. The Department and Trails
¶ 30 The Office of Children, Youth and Families within the Department is tasked with, among other duties, overseeing the states Division of Child Welfare. See § 26-1-105(2)(a), C.R.S. 2017; § 26-20-110(1)(a), C.R.S. 2017 (A working group within the division of youth services consists of [t]he director of the office of children, youth, and families in the division of child welfare within the [Department]....); see also Colorado Department of Human Services, Management Team & Organization , https://perma.cc/8Q6W-CB4Z. The Department administers services to individual children and families through the county department of human services offices. § 26-1-118(1), C.R.S. 2017; see also Colorado Department of Human Services, Child Welfare , https://perma.cc/82KB-QQCJ.
¶ 31 As relevant here, county department of human services offices receive reports of known or suspected child abuse or neglect. § 19-3-307(1), C.R.S. 2017. The Department is statutorily required to train county department of human services offices in investigating these reports of child abuse or neglect and reporting confirmed incidents of child abuse or neglect to the Department. § 19-3-313.5(2)(a), (b), C.R.S. 2017. The goal of the Departments training is to achieve consistency and standardization in investigating reports of child abuse or neglect and reporting the confirmed cases to the Department. § 19-3-313.5(2). A confirmed incident means any report made pursuant to article 3 of [title 19] that is found by a county department ... to be supported by a preponderance of the evidence. § 19-1-103(27), C.R.S. 2017.
¶ 32 When a county department of human services office confirms a report of child abuse or neglect, information on the incident and the person found to be responsible for the abuse is added to Trails. See § 19-3-313.5(3). This confirmation determination is separate and apart from any criminal investigation into the suspected abuse or neglect. The department of human services investigation and confirmation process is an agency action, civil in nature, and, accordingly, subject to the preponderance of the evidence standard. § 19-1-103(27).
¶ 33 A person found responsible for a confirmed report of child abuse or neglect may appeal the department of human services decision that confirmed the incident(s) of abuse or neglect. Id. The department of human services confirmation decision is appealed to an ALJ, and a decision by an ALJ is considered an initial decision of the Department. § 26-1-106(1)(a), C.R.S. 2017. When a party files exceptions to the ALJs decision, as was the case here, review of the ALJs decision proceeds in accordance with the APA, section 24-4-105(15), C.R.S. 2017.
2. The APA
¶ 34 Section 24-4-105(15)(a) provides that the initial decision of the ALJ should be appealed to the governing agency. Here, the case was appealed to the Office of Appeals within the Department. In such an appeal, there is a significant difference in the agencys treatment of findings of evidentiary fact and ultimate conclusions of fact. § 24-4-105(15)(b). Findings of evidentiary or historical facts made by the ALJ shall not be set aside by the agency on review of the initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence. Id.
¶ 35 In contrast, an agency can substitute its own judgment for that of the ALJ on ultimate conclusions of fact as long as the agencys conclusions have a reasonable basis in law and are supported by substantial evidence in the record. Lawley v. Dept of Higher Educ. , 36 P.3d 1239, 1245 (Colo. 2001) (citing Lee v. State Bd. of Dental Examrs , 654 P.2d 839, 844 (Colo. 1982) ); accord State Bd. of Med. Examrs v. McCroskey , 880 P.2d 1188, 1193 (Colo. 1994). Indeed, it is legal error for an agency to abdicate its responsibility to make its own ultimate conclusions of fact. Nixon v. City & Cty. of Denver , 2014 COA 172, ¶ 25, 343 P.3d 1051.
¶ 36 Our supreme court has acknowledged that the line between evidentiary facts and ultimate conclusions of fact is not always clear. Lawley , 36 P.3d at 1245 ; see Nixon , ¶ 20. [E]videntiary facts generally include the detailed factual or historical findings on which a legal determination rests. Lawley , 36 P.3d at 1245. Alternatively, ultimate conclusions of fact typically involve a conclusion of law, or at least a mixed question of law and fact, and often settle[ ] the rights and liabilities of the parties. Ritzert v. Bd. of Educ. of Acad. Sch. Dist. No. 20 , 2015 CO 66, ¶ 30, 361 P.3d 966 (quoting McCroskey , 880 P.2d at 1193 ); see also Lawley , 36 P.3d at 1245.
3. Adverse Inference in Civil Cases
¶ 37 It is error in a criminal case to draw an adverse inference of guilt from an accuseds refusal to testify about facts relevant to his or her case. E.g. , Griffin v. California , 380 U.S. 609, 613-14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ; Fitzgerald v. People , 2017 CO 26, ¶¶ 17-18, 394 P.3d 671. However, that is not the rule in cases of a civil nature. Although a party in a civil case has a Fifth Amendment right to refuse to answer questions that might incriminate him or her in a future criminal proceeding, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. Asplin v. Mueller , 687 P.2d 1329, 1331-32 (Colo. App. 1984) (quoting Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ). This inference is equally applicable to a party who claims the Fifth Amendment privilege in response to properly posed discovery questions, as Romero did here. Chaffin, Inc. v. Wallain , 689 P.2d 684, 689 (Colo. App. 1984). Moreover, the adverse inference has been extended to cases involving administrative agencies. Commodity Futures Trading Commn v. Collins , 997 F.2d 1230, 1234 (7th Cir. 1993) (No law forbids a regulatory agency to draw the logical inference from a regulated entitys refusing on Fifth Amendment grounds to play ball with the agency. (citing Baxter , 425 U.S. at 318, 96 S.Ct. 1551 )).
¶ 38 The adverse inference rule is defined as follows: Failure of a party ... to answer questions based on the privilege against self-incrimination raises a strong inference that the answers would have been unfavorable and damaging to him, and comment to that effect is proper. Asplin , 687 P.2d at 1332. Whether to apply this inference is discretionary and is not mandatory. Chaffin, Inc. , 689 P.2d at 689 ([T]he finder of fact in a civil case should be permitted to draw an adverse inference against a party who claims the Fifth Amendment privilege....) (emphasis added). However, although the fact finder may draw the adverse inference, a penalty cannot automatically be imposed solely because the accused remained silent and exercised his or her Fifth Amendment rights. E.g. , Lefkowitz v. Cunningham , 431 U.S. 801, 806-07, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).
C. Analysis
1. The Fifth Amendment Adverse Inference is an Ultimate Conclusion of Fact
¶ 39 We first conclude that whether to apply the Fifth Amendment adverse inference in a civil proceeding and what weight to give that adverse inference in the agencys determination is an ultimate conclusion of fact. In its final decision, the Department was, therefore, required to make a determination of whether to apply the adverse inference, see Nixon , ¶ 25, and state what weight it held, if any, in its determination of whether the incidents of abuse and neglect against K.P. and A.R. should be confirmed as to Romero.
¶ 40 In order to apply an adverse inference for invocation of the constitutional right against self-incrimination, at least two factual events must have happened: (1) a party in a civil case must have been asked questions to which his or her answers would have been potentially incriminating in a future criminal action and (2) the party must have invoked his or her Fifth Amendment rights. Asplin , 687 P.2d at 1331-32. It is undisputed that during the discovery phase for the ALJ hearing, DHS conducted a deposition with Romero and asked him pointed and incriminating questions, including whether he touched K.P. and A.R. for his own sexual gratification. It is also undisputed that Romero explicitly invoked his Fifth Amendment rights for the entirety of the deposition except for the first few questions. The record is clear that had Romero been called to testify at the ALJ hearing, he would have invoked his Fifth Amendment rights and refused to answer questions because of the ongoing criminal investigation into K.P.s and A.R.s allegations.
¶ 41 But, for the inference to apply, there must also have been probative evidence offered against the person claiming the privilege. Id. at 1332 (citing Baxter , 425 U.S. at 318, 96 S.Ct. 1551 ); cf. Olin Corp. v. Castells , 180 Conn. 49, 428 A.2d 319, 321-22 (1980) (listing the other evidence presented against the defendant in the trial court and affirming the trial courts order relying on a Fifth Amendment adverse inference against the defendant). Probative evidence means [e]vidence that tends to prove or disprove a point in issue. Blacks Law Dictionary 677 (10th ed. 2014).
¶ 42 Thus, in applying the adverse inference, the fact finder must first conclude that two historical facts were present: asking potentially incriminating questions of a party and that partys invocation of the Fifth Amendment protections. The fact finder must then take those historical facts in the context of the other evidence presented and determine that the party refused to answer the potentially incriminating questions in the face of probative evidence against him.
¶ 43 Finally, if all three of these elements are present, the court or agency can choose whether to apply the inference. Chaffin, Inc. , 689 P.2d at 689. If the fact finder determines that the adverse inference should be applied, it then must be careful to ensure that other facts besides the adverse inference support a penalty being imposed on the party in order to avoid the evil of penalizing a person solely based on his or her assertion of a constitutional privilege. See Lefkowitz , 431 U.S. at 807, 97 S.Ct. 2132 (Section 22 confronted appellee with grave consequences solely because he refused to waive immunity from prosecution and give self-incriminating testimony. Section 22 is therefore constitutionally indistinguishable from the coercive provisions we struck down in [previous cases]....) (emphasis added).
¶ 44 In our view, this multi-step approach to determining whether and how to apply the adverse inference makes the inference an ultimate conclusion of fact because it applies the legal principles of an adverse inference and constitutional rights to evidentiary facts. See McCroskey , 880 P.2d at 1194 (stating that when an administrative body applies legal principles to the evidentiary facts it is an indication of an ultimate conclusion of fact). As relevant here, the Department used the Fifth Amendment adverse inference jurisprudence to determine if the historical facts of Romeros refusal to answer pointed and incriminating deposition questions based on his Fifth Amendment privileges triggered the inference; this is a classic application of a legal standard to historical facts. Id.
¶ 45 The Department also was required to determine that there was probative evidence offered against Romero in the face of his invocation. Although the Department did not explicitly state that it was making this determination in its final decision, the record shows that this part of the analysis was satisfied by the Departments meticulous listing and consideration of other corroborating evidence that supported confirming the abuse allegations against Romero. Again, this type of analysis involves applying a legal principle-probative evidence-to the evidentiary facts found by the ALJ. Id.
¶ 46 We reject Romeros argument that there was no probative evidence offered against him, and thus the adverse inference should not apply. This argument is clearly belied by the record. DHS offered numerous kinds of evidence in support of the sexual abuse allegations made by K.P. and A.R., which included, but were not limited to, the childrens own statements, testimony by the childrens therapist, A.R.s drawings and letters, and evidence from the medical professionals who examined K.P. (including their inquiries to mother about whether K.P. had been sexually assaulted and the numerous tests for sexually transmitted diseases ). This evidence tended to show abuse occurred and was, therefore, probative. The fact that Romero disputes the weight and sufficiency of the evidence does not negate the fact that probative evidence of sexual abuse was proffered at the hearing. See People in Interest of A.J.L. , 243 P.3d 244, 250 (Colo. 2010) (Weighing the evidence presented and whether evidence is sufficient and probative are separate analyses: while a trial court may properly attach more weight to ... evidence, whether it should do so is necessarily determined by ... its analysis of the sufficiency and probative value of the evidence presented at trial.) (citation omitted); Blacks Law Dictionary 677 (10th ed. 2014) (defining probative evidence).
¶ 47 Moreover, the determination of whether to apply the adverse inference directly implicated Romeros constitutional rights. Whether a decision determines a partys rights or liabilities is another indication that the decision is an ultimate conclusion of fact. E.g. , McCroskey , 880 P.2d at 1193. The Department methodically discussed the evidentiary facts found by the ALJ that supported confirming the allegations. This supporting and corroborative evidence ensured that Romeros invocation of his Fifth Amendment rights did not automatically subject him to the penalties of the confirmations of abuse and subsequent listing in the Trails system. See Lefkowitz , 431 U.S. at 807, 97 S.Ct. 2132. This type of balancing act between applying a legal principle and protecting a partys constitutional rights further indicates that the adverse inference here can determine a partys scope of rights and is, therefore, an ultimate conclusion of fact.
2. The District Court Erred in Overturning the Departments Final Decision and Remanding to the ALJ
¶ 48 Next, we consider the Departments argument that the district court erred by effectively precluding it from making its own determination regarding the application of the adverse inference by holding that the ALJ was best suited to make such a determination. We conclude that the district court erred because its decision did not properly apply the pertinent statutory standard of review.
¶ 49 The district court could only overturn the Departments ultimate conclusion of fact regarding the application of the adverse inference if it was an abuse of discretion, arbitrary or capricious, or contrary to law. § 24-4-106(7) ; Gessler , ¶ 9. Here, the district court found that the Departments final order was arbitrary and capricious because the Department did not offer a non-generic explanation as to why it was imposing the adverse inference and because the Department reversed the ALJ almost entirely on Romeros invocation of the Fifth Amendment. The court further concluded that the ALJ was best suited to consider the [adverse inference] issue and determine its applicability.
As a result, the district court instructed the Department to remand the case to the ALJ to determine whether, given the potential adverse inference, [DHS] has shown by a preponderance of the evidence that Romero is a person responsible for the alleged abuse. In our view, the courts analysis misapplied the APA and the applicable law on the Fifth Amendment adverse inference.
¶ 50 As we have concluded above, whether to apply the adverse inference is an ultimate conclusion of fact. Thus, as a matter of law, the Department was required to determine whether to apply the adverse inference and could substitute its judgment on that issue for that of the ALJ. Nixon , ¶ 25. Thus, the ALJ was not in the best position to make the adverse inference determination because the Department could substitute its own judgment for the ALJs on ultimate conclusions of fact. § 24-4-105(15)(b) ; Lawley , 36 P.3d at 1245.
¶ 51 Based on our review of the Departments final decision, we conclude that it was not arbitrary and capricious, contrary to constitutional rights, or otherwise contrary to law. § 24-4-106(7). The Departments final decision was not arbitrary and capricious because it was supported by the record; it took into consideration Romeros constitutional rights; and it was not contrary to the law on the Fifth Amendment adverse inference.
¶ 52 We are not persuaded by the district courts reasoning to the contrary. The district court deemed the Departments application of the adverse inference arbitrary and capricious because it did not provide a non-generic explanation for why it was applying the inference. We have found no authority that supports the district courts imposition of such a duty on the Department. None of the jurisprudence on the adverse inference requires an explanation as to why the fact finder chose to consider it. More importantly, as discussed below, the Departments thorough discussion of the record itself shows why the Department decided to apply the adverse inference in this case.
¶ 53 The district court expressed a concern that the Department confirmed the allegations of abuse almost entirely based on Romeros invocation of his Fifth Amendment rights and therefore made a hollow mockery of Romeros constitutional rights. We take this to mean that the district court was concerned that, as in Lefkowitz , Romeros invocation of his constitutional rights led to the automatic imposition of a penalty. This concern is not borne out by the Departments final decision.
¶ 54 In the first part of the Departments analysis, it concluded that it could apply the adverse inference to the incriminating questions Romero was asked in his deposition. The Department specifically referenced the questions where Romero was asked if he touched K.P.s and A.R.s private areas for his own sexual gratification in order to nullify the concern in the ALJs initial decision regarding proof of the requisite purpose of sexual assault as defined in section 18-3-405. Importantly, the Department did not stop its analysis there, but proceeded to detail other corroborating evidence to support a reasonable basis in the law pertaining to [Romeros] sexual abuse of K.P., and it did the same regarding A.R.
¶ 55 The Departments analysis of other corroborating evidence for each confirmation was thorough and detailed. The Department enumerated the findings of historical fact made by the ALJ that supported the ultimate conclusion that the abuse allegations against Romero should be confirmed. These findings included specific instances in which the Department disagreed with the ALJs interpretation of the facts (not the facts themselves, but whether they supported the confirmations against Romero as found by DHS). Thus, the record shows that the Department did not reverse the ALJ solely based on Romeros invocation of the Fifth Amendment. Indeed, the Departments conclusion regarding the confirmations of sexual abuse explicitly shows that the adverse inference was applied in context with all the other findings of historical fact found by the ALJ:
[T]he admitted exhibits as well as the undisputed testimony of the witnesses compel an ultimate conclusion, by a preponderance of the evidence, that the abuse took place and that [Romeros] refusal to testify resulted in nearly all of the substantive testimony being undisputed. Additionally , the [Department] considers the questions asked of [Romero] during the deposition regarding sexually touching A.R. in the swimming pool ... as well as [Romeros] invocation of the Fifth and the negative inference that [Romeros] answers would be unfavorable and damaging to [Romero].
(Emphasis added.)
¶ 56 Moreover, the Departments detailed findings and conclusions also show that the penalty here-the confirmations of abuse and their listing in Trails-was not imposed automatically simply because Romero exercised his constitutional rights.
¶ 57 In sum, we conclude that the Departments application of the adverse inference was not an abuse of discretion, arbitrary or capricious, or contrary to law or Romeros constitutional rights. Thus, we further conclude that the district court erred by effectively precluding the Department from making its own ultimate conclusion regarding the adverse inference.
IV. Romeros Sufficiency of the Evidence Argument
¶ 58 In his answer brief, Romero argues that the district courts judgment should be upheld because the facts relied on by DHS to support findings of sexual abuse are nothing more than supposition and speculation and that none of the facts support such ultimate findings. We disagree.
¶ 59 Whether the administrative record contains substantial evidence to support an agencys final decision is a question of law we review de novo. Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd. , 2015 COA 11M, ¶ 55, 360 P.3d 186.
¶ 60 We defer to an agencys decision involving factual and evidentiary matters within an agencys specialized or technical expertise. Id. Here, the Department has specialized expertise in investigating and confirming allegations of child abuse and neglect and is charged with training department of human services offices in how to investigate such allegations and when and how to confirm and report them to the Department. § 19-3-313.5(2)(a), (b).
¶ 61 The APA provides that the Department was required to accept the ALJs findings of evidentiary facts, but it was also equally required to make its own ultimate conclusions as to whether the evidentiary facts supported the confirmations that Romero abused and neglected K.P. and A.R. § 24-4-105(15)(b) ; Lawley , 36 P.3d at 1245.
¶ 62 Here, the Department thoroughly reviewed the facts found by the ALJ, explained instances where it disagreed with the ALJs view as to the weight of the evidence, and, where appropriate, supported its conclusions with pertinent Colorado case law.
¶ 63 Based on its review of the record, the Department concluded that the exhibits and uncontradicted testimony showed by a preponderance of the evidence that the abuse as to both children took place. It further concluded that Romeros refusal to testify resulted in nearly all of the substantive testimony being undisputed. We perceive no abuse of discretion in these conclusions and, moreover, we defer to an agencys specialized or technical expertise. Rags Over the Ark. River, Inc. , ¶ 55.
¶ 64 The Department outlined its disagreement with the ALJs conclusions in the following areas. First, as to K.P.s disclosures and play therapy, the Department relied on its expertise to disagree with the ALJs conclusions that K.P.s disclosures were confusing and that her placement of anatomically correct dolls in sexual positions was inconclusive. The Department reasoned that
the Colorado Supreme court has referred to the extensive case authority holding that such statements of very young children relating [to] incidents of sexual abuse tend to be reliable. In [a supreme court case], the child was three years old at the time she made disclosures regarding sexual abuse. In the present case, K.P. was three years old when she made disclosures of sexual abuse. Therefore the [Department] takes into account that K.P. was a very young child at the time of her forensic interview in August 2014 and that the statements of very young children tend to be reliable (despite some inconsistencies). Additionally, regarding play therapy, Ms. Potts ... testified that [c]hildren, especially K.P.s age, are not able to adequately express themselves verbally. They express themselves through play. This may well explain some of K.P.s accounts or difficulty expressing herself during her forensic interview.
¶ 65 Second, the Department found it significant that the medical personnel attending K.P. immediately asked about sexual abuse and ran tests for sexually transmitted diseases. The conclusion the Department drew from this evidence was that medical personnel believed K.P.s rash and swelling were caused by sexual acts, contrary to the ALJs focus that the medical personnel did not conclusively determine the cause for the rash and swelling.
¶ 66 Third, the Department found A.R.s drawings and writings significant as to his claims of abuse, specifically noting the stage in therapy when A.R. completed those exhibits. In contrast to the ALJ, the Department concluded that the context the childrens therapist provided was valuable because the evidence showed that the drawings and letters were completed when A.R. was asked about trauma in his life and expressing that trauma.
¶ 67 Fourth, as to Romeros only witness, Dr. Spiegle, the Department found that his testimony was inconclusive and was presented at the ALJ hearing only as a strong hypothesis. Moreover, Dr. Spiegle conceded that sexual abuse could contribute to the onset of encopresis. In contrast, the ALJ focused on Dr. Spiegles hypothesis that A.R.s encopresis was caused by abandonment issues resulting from mothers behavior.
¶ 68 Lastly, in drawing the adverse inference from Romeros invocation of his Fifth Amendment rights, the Department specifically drew attention to the deposition questions regarding whether Romero touched his grandchildren for sexual gratification, and it concluded that [w]ith the negative inference drawn, there is a reasonable basis in the law to establish that [Romero] sexually touched A.R. and K.P. with the requisite purpose of sexual gratification.
¶ 69 As discussed, the Department was authorized and required to make its own ultimate conclusion regarding whether the evidence supported confirmations of abuse by a preponderance of the evidence. The record shows the Department did so and explained where it departed from the ALJs conclusions. The fact that Romero disagrees as to the weight of the evidence propounded by DHS does not render the evidence speculative or insufficient. We cannot conclude that the Departments view of the evidence, especially given its technical expertise, was speculative or contrary to the weight of the evidence presented to the ALJ.
V. Conclusion
¶ 70 The district courts judgment overturning the Departments final decision is reversed.
Nieto , J. concurs
Davidson, J. dissents
The Departments appeal focuses on the application of the adverse inference to the confirmations of sexual abuse against Romeros grandchildren. However, the Departments briefs make it clear that it is also appealing the judgment as it relates to DHSs confirmation that Romero subjected his grandson to an injurious environment by exposing him to domestic violence. Because we decide the merits of the case based on the Departments authority to draw an adverse inference, our opinion is equally applicable to both the sexual abuse confirmations and the injurious environment confirmation. For brevitys sake, we focus our analysis on the sexual abuse confirmations.
Mother is Romeros adopted daughter.
The swabs taken to test for Herpes were inadvertently never sent for testing.
The record on appeal includes no information on the criminal investigation. This appeal is solely concerned with the Departments administrative, civil decision confirming the abuse and neglect allegations and subsequently listing Romero in the Trails system.
Romero invoked the Fifth Amendment for every question, including his address, which his attorney stated could relate to where the children alleged the abuse took place.
Testimony at the hearing revealed that encopresis is a kind of fecal incontinence that begins with severe, chronic constipation and can be caused by a variety of factors, including diet, emotional distress, and trauma.
As noted above, the same issue applies to the confirmation of injurious environment as well.
Finders of fact-juries, courts, and ALJs-make both findings of evidentiary or historical fact and ultimate conclusions of fact, such as guilt or innocence, liability or nonliability, reasonable or unreasonable, etc. Stating that a fact finder should be permitted to draw the Fifth Amendment adverse inference does not necessarily imply that the adverse inference is a finding of historical or evidentiary fact. See, e.g. , Chaffin, Inc. v. Wallain , 689 P.2d 684, 687 (Colo. App. 1984).
The phrase a hollow mockery appears in Garrity v. New Jersey , 385 U.S. 493, 499-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and refers to the fact that ones exercise of Fifth Amendment rights cannot be taken as an admission of guilt or a conclusive presumption of perjury.
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.