Opinion
NO. 2018-CA-000103-MR
05-22-2020
NECCO, LLC APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
BRIEFS FOR APPELLANT: David F. Broderick Brandon T. Murley Bowling Green, Kentucky BRIEF FOR APPELLEE: Lucas Roberts Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 16-CI-01195 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. ACREE, JUDGE: Necco, LLC, appeals the Warren Circuit Court's order affirming, in part, an order of the Cabinet for Health and Family Services citing Necco for deficiencies relative to its role as a foster child placement agency. We affirm.
BACKGROUND
Necco is a foster child placement agency whose operations are regulated by the Cabinet. Necco approved Teresa and Terry Manley as foster parents, and the Manleys served as foster parents for at least four children during the time in question.
On March 11, 2016, Foster Child #1 was discharged from Rivendell Behavioral Health Hospital, after serving forty-five days for substance abuse treatment. He was placed that day with the Manleys. A Necco employee met with Foster Child #1 and the Manleys and, together, they developed an Initial Treatment Plan and a Safety and Supervision Plan ("Plan").
Specifically, the Necco employee informed the Manleys of Foster Child #1's experience at Rivendell and his propensity for lying, stealing, and going AWOL (absent without leave or permission). Sadly, seven days later, Teresa Manley found Foster Child #1 dead in his bedroom. The cause of his death was determined to be multiple drug intoxication.
The Cabinet's investigation resulted in a Statement of Deficiencies against Necco. In all, there were five initial violations. Two of those were rescinded upon Necco's administrative appeal. Thereafter, a Second Level Informal Dispute Resolution was conducted, and the remaining three citations were upheld and a final agency order was entered. Necco sought review of that order in Warren Circuit Court.
The original five citations were identified as: C3621, C3761, C3791, C3981, and C4181. Citations C3761 and C4181 were rescinded.
The circuit court affirmed two of the citations. Necco filed a motion to alter, amend, or vacate and, for the first time, included a due process argument. The circuit court denied Necco's motion. This appeal followed pursuant to KRS 13B.160.
Kentucky Revised Statutes.
STANDARD OF REVIEW
The final order of an agency that is not otherwise exempt is reviewed by the circuit court in accordance with KRS 13B.150. In relevant part, the statute says:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court . . . may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:KRS 13B.150(2).
. . .
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion . . . .
In general terms, this standard means if there is any evidence of substance to support the agency action, the reviewing court must defer to the agency decision because such action could not be arbitrary. Borkowski v. Commonwealth, 139 S.W.3d 531, 533 (Ky. App. 2004) ("If there is any substantial evidence to support the decision of the administrative agency, it cannot be found to be arbitrary and will be sustained." (internal quotation marks omitted)). The test for substantiality of evidence is whether the evidence, when taken alone, or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable persons. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
ANALYSIS
Substantial evidence supports Citations C3621 and C3791
Necco disputes Citation C3621 by arguing the Manleys adequately supervised Foster Child #1. Therefore, goes the argument, the citation cannot be corroborated by substantial evidence. The basis for Citation C3621 is found at 922 KAR 1:310 §12(1)(i), which says: "[a]n approved foster parent . . . or therapeutic foster care parent shall: (1) Provide a child placed by the child-placing agency with a family life, including . . . (i) [a]dequate supervision[.]" And 922 KAR 1:310 §1(1) defines adequate supervision as "adult oversight of a child's activities with consideration of the child's past and current: (a) [i]ncidents; (b) [h]igh risk behaviors; and (c) [n]eeds."
Kentucky Administrative Regulations.
When the Necco worker, the Manleys, and Foster Child #1 first met, they developed the placement plan, carefully based on Foster Child #1's past history, high risk behaviors, and emotional needs. This included specific discussion of Foster Child #1's issues with substance abuse. The Manleys were to: (1) have 24-hour crisis management; (2) have weekly case management; (3) have Foster Child #1 submit to random drug screens; and (4) record, daily, any criminal activity of Foster Child #1. Additionally, they were to notify the therapist or case manager if Foster Child #1 increased in aggression, made threatening statements, was suspected of substance abuse, or behaved oddly.
As evidence of the Manleys' failure to comply with these requirements, the circuit court and Cabinet considered the witness statements of the other foster children in the Manley home. Necco argues the witness statements should be discounted as unreliable. Special focus was on the statement of Foster Child #4, who was placed in the Manleys' home in 2016. Necco contends Foster Child #4 had multiple opportunities to report any issues in the Manleys' home and failed to do so. Furthermore, Necco states Foster Child #1's supervision did not have to be 24-hours. While that may be true, we are not persuaded by Necco's argument.
A finding of substantial evidence can be supported by circumstantial evidence. B.E.K. v. Cabinet for Health and Family Services, 487 S.W.3d 457 (Ky. App. 2016). The circuit court did not limit its review of the evidence considered by the Cabinet to Foster Child #4. The statements from all the foster children were considered. The children said that the Manleys only came into their rooms to wake them for school, they allowed the children to go to Kereiakes Park without supervision, and, most disturbingly, that drugs and alcohol were regularly consumed in the children's bedrooms.
Additionally, the Cabinet and circuit court considered statements from the Manleys, Necco, social workers, and a police detective working the case before reaching its conclusion. The Cabinet is afforded great latitude in its evaluation of the evidence and in assessing the credibility of the witnesses. Fuller, 481 S.W.2d at 308. Because of this, the circuit court found the witness statements - including the foster children - constituted substantial evidence sufficient to support the Cabinet's order and Citation C3621.
Necco makes the same argument for Citation C3791. As provided by 922 KAR 1:310 §12(17), approved foster parents shall "[c]omply with general supervision and direction of the child-placing agency or, if applicable, the state agency that has custody of the child, concerning the care of the child placed by the child-placing agency." Necco's own policy states, "in order to prevent overdose or unauthorized use of medications, all medications (prescription or non-prescription) taken by anyone in the home must be kept in a locked container/box which can only be removed from locked storage at the time they are administered/taken." This citation is based on the Manleys' failure to comply with these requirements.
In the Cabinet's interview notes, the Manleys confirmed that medications were kept in a fireproof safe in a bedroom that needed a key and combination to open. However, Terry Manley suffers from cancer. Because of this, Terry keeps a bag with his medications in the living room, so he does not have to frequently get up. This information surprised Necco. A Necco representative said the agency had verified during home visits that the Manleys stored all medications in a locked container. Additionally, as part of the initial and re-approval process, Necco twice conducted safety audits and, on both occasions, all medication was locked away. Necco contends it was never on notice that the foster parents were in violation of its medication policy. Because of that, Necco believes the circuit court erred by concluding there was substantial evidence that Necco was in violation of the standards set forth in 922 KAR 1:310, as relating to its medication storage.
While we are sympathetic to Necco's plight, 922 KAR 1:310 §12(17) does not require the agency to be on notice. It sanctions the agency when the foster parents act contrary to agency policies, which the Manleys did. This breach by the Manleys was corroborated by several witness statements and admissions by the Manleys themselves. Therefore, we must affirm the circuit court's ruling regarding Citation C3791. Procedural Due Process
Necco contends because it could not confront the witnesses interviewed by the Cabinet, its right to due process was violated. We cannot address this argument.
Necco believes it preserved this argument for appeal in its CR 59.05 motion before the circuit court to alter, amend, or vacate the court's ruling. It did not. A party cannot use CR 59.05 as a vehicle to raise new arguments. Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005).
Kentucky Rules of Civil Procedure. --------
The procedural due process argument was a new argument before the circuit court, only being offered after entry of the final order. This Court will not entertain such arguments here, either. The circuit court is affirmed.
CONCLUSION
For the foregoing reasons, we affirm the Warren Circuit Court's final order.
ALL CONCUR. BRIEFS FOR APPELLANT: David F. Broderick
Brandon T. Murley
Bowling Green, Kentucky BRIEF FOR APPELLEE: Lucas Roberts
Frankfort, Kentucky