Opinion
NO. 2016-CA-001260-MR
03-09-2018
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. ANGELA T. PATTERSON APPELLEE
BRIEFS FOR APPELLANT: Kathleen Hines Frankfort, Kentucky BRIEF FOR APPELLEE: Jarrod H. Jackson Princeton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 15-CI-00107 OPINION
AFFIRMING
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BEFORE: CLAYTON, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: The Cabinet for Health and Family Services appeals from the Caldwell Circuit Court's order on petitioner's motion for judgment on the pleadings ruling that Angela T. Patterson was denied due process.
In 2009, Patterson and her husband were granted temporary custody of three grandchildren who were removed from their parents by the Cabinet. Patterson qualified to receive financial assistance under the kinship care program, with the conditions of the kinship care program set out in a statement of rights and responsibilities. Patterson and a Cabinet representative signed the statement. In the statement, Patterson agreed to several conditions including that she would seek permanent custody of her grandchildren and participate in annual eligibility reviews. Patterson fully complied with these conditions, including gaining permanent custody of her grandchildren in 2010, through an agreed order.
In 2013, changes were made to the kinship care program due to lack of funding. Existing participants were to continue receiving funding, but new applications were not permitted. Patterson was never notified of this change to the program.
On May 15, 2014, Patterson was sent a notice of renewal interview for kinship care benefits. The notice stated "[w]e have to interview you to see if you can still get Kinship Care benefits." The notice instructed her to call or be interviewed in person to complete her renewal interview prior to June 9, 2014, and listed the type of information she could be asked to provide.
On June 9, 2014, Patterson was sent a missed kinship care interview notice that stated "[y]ou did not call or come in to complete your Kinship Care Interview by June 09, 2014. You must be interviewed by June 19, 2014, or your Kinship Care benefits will stop on July 01, 2014." Patterson was instructed to call for a phone interview or go to her local Cabinet office for an interview.
On July 2, 2014, Patterson called for an interview and was told she missed the deadline and could not reapply for kinship care benefits. Except for missing the interview deadline, Patterson met all the conditions for continuing to receive kinship care benefits.
Patterson sought and received administrative review. A Cabinet representative testified that two letters were automatically generated and sent to Patterson. The representative introduced copies of the letters into evidence but could offer no proof that Patterson received them. Patterson admitted receiving one of the two letters.
Patterson testified that caring for six grandchildren left her with little time and she thought if she missed the deadline, she could reapply for kinship care benefits. She did not realize that missing the deadline would result in her being permanently ineligible for kinship care benefits. Patterson argued the notices were defective because they did not inform her that a failure to timely complete the interview would result in a permanent denial of benefits and the letters failed to refer to any statute or regulation which would put her on notice.
The administrative hearing officer recommended the decision of the Cabinet denying benefits be affirmed because Patterson received notice that verification was required and failed to timely respond. Patterson filed objections, arguing that the notice was deficient because it did not inform her that she could not reapply for benefits. The final order by the Appeal Board for Public Assistance adopted the hearing officer's recommended order.
Patterson filed a petition before the circuit court for de novo review of the final order. The circuit court, treating Patterson's motion for judgment on the pleadings as a motion for summary judgment, reversed and reinstated her benefits without interruption. The circuit court acknowledged the Cabinet had acted within its powers and Patterson generally received due process by receiving notice and an opportunity to be heard because she received a letter and failed to timely respond and, thereafter, received appropriate administrative process. However, the circuit court determined the Cabinet denied Patterson due process rights by failing to give her appropriate notice by not informing her of the results of failing to timely complete the interview:
This Court does not believe that the efforts at notification and termination of benefits, particularly permanently, were sufficient to put [Patterson] on notice of such repercussions by lack of timely reapplication. The Court concludes that this does not comport with [Patterson's] procedural due process rights to clear notice of the consequences.
. . .
Having found and concluded that the [Cabinet] did not properly notify [Patterson] of the repercussions from the failure to timely reapply for the benefits, the [Cabinet] acted arbitrarily in this case.
The Cabinet appeals, arguing Patterson received sufficient due process for her benefits to be terminated where she admitted receiving notice that she was required to schedule an interview, failed to do so and was aware that such failure would result in her benefits stopping. It argues she received appropriate administrative process with a full and fair adjudication of her claims.
We review appeals from an administrative agency to ensure that the agency did not act arbitrarily. "If the Court concludes that the agency applied the correct rule of law to the facts supported by substantial evidence, the final order of the agency must be affirmed." Commonwealth, Energy & Env't Cabinet v. Spurlock, 308 S.W.3d 221, 223 (Ky.App. 2010).
We review the parameters of Patterson's entitlement to kinship care benefits before considering what notice she was due as to the consequences of her failure to timely participate in her annual eligibility review.
The kinship care program was set up to encourage permanent placement of children in foster care with qualified relatives by paying those relatives a monthly payment "[t]o the extent funds are available[.]" Kentucky Revised Statutes (KRS) 605.120(5). See 42 United States Code (U.S.C.) § 671(a)(28) (making kinship guardianship assistance payments optional for states); 42 U.S.C. § 673(d) (establishing the parameters for states to establish kinship guardianship assistance payments).
Administrative regulations implementing the kinship care program appear in 922 Kentucky Administrative Regulations (KAR) 1:130 as authorized by KRS 605.120(6). In 2013, these regulations were revised to deny funding for Kentucky's kinship care program for any child whose initial eligibility for the program was made on or after April 1, 2013. 922 KAR 1:130 § 2(1)(a), (5)(b), § 9(7). However, existing kinship care participants continued to receive payments.
Existing kinship care participants are required to complete renewal interviews to maintain their funding pursuant to the administrative requirement that "[t]he cabinet shall redetermine eligibility every twelve (12) months to reassess a Kinship Care case for continued eligibility and financial assistance." Id. at § 13(2). The consequence of failing to comply is that "[f]inancial assistance under the Kinship Care Program shall not be provided to a child: . . . [i]f the kinship caregiver fails to meet eligibility redetermination requirements as specified in Section 13 of this administrative regulation[.]" Id. at § 16(1)(a).
While a child's kinship care eligibility follows that child for reapplication and redetermination of eligibility in certain limited circumstances, id. at § 12, this does not include a reapplication following a kinship caregiver's failure to meet eligibility redetermination requirements. Kentucky has no obligation to pay relatives for providing care for children who were formerly under the Cabinet's custody where those relatives have become the children's permanent guardians. D.O. v. Glisson, 847 F.3d 374, 383-84 (6th Cir. 2017). While the kinship care program is discontinued for new applicants or existing recipients who fail to meet eligibility redetermination requirements, there are other Cabinet resources to support existing permanent relative placement for qualified relatives. 922 KAR 1:130 § 2(b).
It is undisputed that once Patterson began receiving kinship care benefits for taking care of her grandchildren, she had a property interest in her continued receipt of such benefits. See Goldberg v. Kelly, 397 U.S. 254, 261-64, 90 S.Ct. 1011, 1017-19, 25 L.Ed.2d 287 (1970). It is also undisputed that when Patterson applied for kinship care benefits, if she missed an eligibility interview and her benefits were terminated, she could have reapplied for benefits until the program was changed in 2013. There is also no dispute that the Cabinet failed to inform Patterson of the change to the program, either in a separate correspondence or in the notices related to her obligation to complete her annual eligibility interview.
"The essence of due process is the requirement that 'a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.'" Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).
Notice of the serious consequences of one's actions is key in determining whether due process is satisfied. For example, notice was sufficient in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686, 106 S.Ct. 3159, 3166, 92 L.Ed.2d 549 (1986), which held that a high school student's due process rights were not violated by suspension because he was adequately warned about the potential consequences for giving a lewd speech by a school disciplinary rule and by teachers; in Atkins v. Parker, 472 U.S. 115, 131, 105 S.Ct. 2520, 2530, 86 L.Ed.2d 81 (1985), which held that due process was not violated where food stamp recipients were given a general individual written notice in advance of a change in the earned income deduction which might result in the reduction or termination of their food stamp benefits because such notice "would prompt an appropriate inquiry if it is not fully understood[;]" and in Lumaj v. Holder, 388 F.App'x 469, 474-75 (6th Cir. 2010), which held that a noncitizen who knowingly filed a frivolous application for asylum received appropriate notice that he could be permanently barred from seeking asylum where the asylum application warned of this consequence in bold-faced font above his signature. In contrast, notice was not sufficient in Hamby v. Neel, 368 F.3d 549, 562 (6th Cir. 2004), which held that notices of TennCare denials violated procedural due process on several grounds including failing to advise the plaintiffs of "the consequences of re-applying after a denial instead of appealing such decisions."
Having considered these precedents, we agree with the circuit court that Patterson failed to receive due process because the Cabinet failed to appropriately advise her that failing to complete an annual interview would permanently bar her from obtaining any future kinship care benefits for her grandchildren. Given the significance of Patterson's property interest in kinship care benefits, the fact that she may have obtained permanent custody of her grandchildren in reliance on such benefits and the serious consequences she faced in having to support her grandchildren without these benefits, the circuit court acted appropriately in reversing the administrative proceedings.
Accordingly, we affirm the Caldwell Circuit Court's order.
ALL CONCUR. BRIEFS FOR APPELLANT: Kathleen Hines
Frankfort, Kentucky BRIEF FOR APPELLEE: Jarrod H. Jackson
Princeton, Kentucky