GIVENS (JOYCE E.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000280-MR
JOYCE E. GIVENS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS CLARK, JUDGE
ACTION NO. 09-CI-04239
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND MOORE, JUDGES; ISAAC, SENIOR JUDGE.1
MOORE, JUDGE: In a July 13, 2009 order, the Cabinet for Health and Family
Services substantiated an allegation, i.e., determined that it was more probable than
not, that Joyce E. Givens had failed to adequately supervise and had therefore
neglected C.B., a foster child in her care, within the meaning of Kentucky Revised
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Statute (KRS) 600.020(1)(h). Givens sought review of the Cabinet’s order with
the Fayette Circuit Court. The circuit court affirmed the Cabinet’s decision and
dismissed Givens’ petition after concluding that Givens had failed to preserve any
error for its review. Givens now appeals. Finding no error, we likewise affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The June 24, 2009 recommended order of the Cabinet’s hearing
officer describes the specifics of this case and, due to the posture of this case, it is
critical to our analysis. In relevant part, it states:
FINDINGS OF FACT
1. Joyce Givens is a fifty-four year old, single, female
resident of Lexington, Kentucky. She has been a foster
parent for sixteen years. At the time of the incident at
issue, Ms. Givens had three foster children in her home;
two girls, seventeen year old T.S. and fifteen year old
C.B., and one boy, twelve year old L.K. Testimony of
Joyce Givens; DCBS Exhibit 2.
2. On September 26, 2008, the DCBS issued a
Substantiated Investigation Notification Letter to Joyce
Givens. The letter stated, in pertinent part, as follows:
The factual basis for the finding of abuse or
neglect (KRS 600.020(1)) is as follows:
A preponderance of the evidence suggests
that you neglected [C.B.] in that you did
[not] appropriately supervise her in
administering medications timely and daily.
Therefore, [C.B.] did not take medications
as prescribed. In addition, leading to
possible rejection of her Kidney [sic] and
loss of certain function in the Kidney. [sic].
[2]
2
The following footnote appears in this part of the recommended order:
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3. C.B. was placed in Ms. Givens’ foster home in April
of 2008. She remained there for approximately two
months. C.B. had been the recipient of a kidney
transplant in 2004. Before the transplant she had
suffered kidney failure and required home dialysis
approximately twelve hours each day. The donor was
her biological father. C.B. previously resided with her
biological mother from whose home she was removed.
Immediately prior to her placement with Ms. Givens,
C.B. resided with her uncle and his family. C.B. had a
history of noncompliance with her medication routine of
which Ms. Givens testified she [was] not informed.
Testimony of Joyce Givens; Testimony of C.B.; DCBS
Exhibit 2.
4. C.B. was prescribed a number of medications to
prevent rejection of her transplanted kidney. Ms. Givens
testified that nobody explained to her the potential
consequences of C.B.’s failure to take her medications.
C.B. took approximately eight pills, both at 7:00 a.m. and
7:00 p.m. The medication was stored in a locked box, to
which C.B. and Ms. Givens each had keys. Additionally,
Ms. Givens was required to maintain a log regarding the
administering of C.B.’s medication. A nurse visited
monthly to review the log and otherwise monitor C.B.’s
progress and condition. Testimony of Joyce Givens;
DCBS Exhibit 2; Testimony of C.B.
5. Ms. Givens testified that she had not had foster
children with serious medical conditions in her home
prior to T.S. and C.B. Ms. Givens stated that C.B. was
not designated a medically fragile child at the time she
was placed in her home. In February 2008, Ms. Givens
had completed the necessary training for approval to
operate a medically fragile foster home, but had not yet
been certified at the time of C.B.’s placement. T.S., who
was already residing with Ms. Givens at the time of
The substantiated Investigation Notification Letter does not specify
whether the facts alleged involved abuse or neglect, however, the
DCBS’ witness, Rebecca Strouse, testified that the substantiation
was made for neglect. Neither was the applicable provision of
KRS 600.020(1) specified in the letter or through testimony, but the
allegation and evidence presented are indicative of a lack of
adequate supervision. KRS 600.020(1)(h); DCBS Exhibit 2.
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C.B.’s arrival, was designated a medically fragile child
and took daily medication. Because T.S. was seventeen
years old and preparing for independent living, she was
permitted to manage her own medication. Testimony of
Joyce Givens; DCBS Exhibit 2.
6. Ms. Givens acknowledged that C.B. did not have a
serious attitude regarding her medical condition. She
stated that C.B. asserted that she could always get
another kidney from her father if anything went wrong
with the one he had already donated. Ms. Givens
initially filled C.B.’s pill box, administered the
medication, and maintained the log. In June, however,
Ms. Givens relinquished these responsibilities to C.B.
Testimony of Joyce Givens.
7. C.B. testified that she often forgot to take her
medication, particularly in the morning when she
generally slept-in. Nonetheless, she completed the log as
if she had. When asked by Ms. Givens whether she had
taken her medication, she lied and said she had. C.B.
additionally informed the nurse that she was compliant
with her medication routine, although she knew it was
untrue. C.B. was aware that the purpose of her
medication was to keep the transplanted kidney stable
and prevent rejection and was aware of the consequences
of non-compliance. Testimony of C.B.
8. During a medical visit in late June 2008, blood tests
revealed that the kidney was not functioning properly and
C.B. was hospitalized for approximately a week. At that
time, it came to light that she had been non-compliant
with her medication routine. C.B. did not lose her
kidney, but failure to take her medication placed her at
increased risk for kidney rejection or failure. Her
treating physician stated that if C.B. were to lose this
kidney because of non-compliance with her medication
routine, she would not receive priority upon her return to
the donor list. DCBS Exhibit 2; Testimony of C.B.;
Testimony of Rebecca Strouse; Testimony of Joyce
Givens.
9. C.B. was removed from Ms. Givens home after her
release from the hospital. Ms. Givens expressed remorse
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for the incident and stated that she would do things
differently if they could be done over. She stated that she
was a single parent and was working three jobs at that
time. She further stated that C.B. was a dramatic child
who was difficult to manage and was in frequent trouble
at school. Ms. Givens described the situation as
overwhelming. Testimony of Joyce Givens.
10. Rebecca Strouse investigated the incident for the
DCBS. Ms. Strouse concluded that Ms. Givens’ conduct
constituted neglect of C.B. Ms. Strouse testified that Ms.
Givens exercised insufficient oversight of C.B.’s
medication routine by allowing her a key to the pill box,
failing to supervise C.B. in taking her medications, and
permitting C.B. to maintain the medication log herself.
Ms. Givens failure to properly monitor C.B.’s medication
routine brought about a potentially life-threatening
situation and placed C.B. at risk of losing her
transplanted kidney. Testimony of Rebecca Strouse.
CONCLUSIONS OF LAW
...
6. There are no material facts in dispute in this case. It is
undisputed that C.B. was hospitalized in late June of
2008 as a result of failure to comply with the medication
routine necessary to sustain function and prevent
rejection of her transplanted kidney. It is further
undisputed that Ms. Givens delegated her own
responsibility of administering medication and
maintaining the required medication log to C.B. herself.
As a result, Ms. Givens was unaware that C.B. was not
taking her medication.
7. As a fifteen year old, it would be hoped that C.B.
would have been capable of understanding the
importance of taking her medication as prescribed and
shouldering the responsibility to do so, however, this was
not the case. Ms. Givens herself testified that C.B. did
not have [a] serious attitude with regards to taking her
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medication, therefore it is all the more a matter of
concern that she would abandon all direct oversight of
C.B.’s medication routine, even to the point of allowing
C.B. to maintain the medication log herself.
8. More rigorous supervision would have prevented the
health crisis that occurred. Instead, C.B. was placed in a
potentially life-threatening situation. A preponderance of
the evidence of record supports a finding that Ms.
Givens’ supervision of C.B. was inadequate to provide
for her well-being and constituted neglect pursuant to
KRS 600.020(1)(h). Therefore, the Cabinet’s decision
must be affirmed.
RECOMMENDED ORDER
This decision RECOMMENDS that the September 26,
2008, substantiation of neglect against Joyce Givens be
AFFIRMED and that her name be placed on the central
registry of those who have abused or neglected
children.[3]
EXCEPTIONS AND APPEAL RIGHTS
Pursuant to KRS 13B.110, each party may file written
exceptions objecting to any part of this Recommended
Order with the Commissioner. Any written exceptions to
this Recommended Order must be filed with the
Commissioner, Department for Community Based
Services, Cabinet for Health and Family Services, 275 E.
Main Street, 3W-A, Frankfort, KY 40621, by the close of
business fifteen (15) days from the date this
Recommended Order was mailed.
The parties may appeal a Final Order in accordance with
KRS 13B.140(1), which provides that a party appealing a
Final Order must file a petition in the proper Circuit
Court with venue within thirty (30) days after the Final
3
A “substantiated allegation” of neglect carries no criminal penalties, and merely indicates a
finding by the Cabinet that it is more likely than not that the accused abused or neglected a child.
See 922 Kentucky Administrative Regulation (KAR) 1:330 § 1(11). However, if the Cabinet
affirms that an allegation is substantiated by a preponderance of the evidence, then the accused's
name is filed on a central registry of individuals for whom abuse allegations have been
substantiated, and remains on that registry for a minimum of seven years. See generally, 922
KAR 1:470.
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Order is mailed or delivered to that party. If no other law
provides for where an appeal must be filed, then a party
may file an appeal petition in the Franklin Circuit Court,
or in the Circuit Court of the county in which the party
appealing resides or operates a place of business.
On July 9, 2009, the Commissioner of DCBS received the following
written statement from Givens:
I Joyce Givens is [sic] objecting to the order with the
Commissioner that the finding be reversed! I will file a
petition in Circuit Court.
On July 13, 2009, the Commissioner of DCBS entered the Cabinet’s
final order in this matter. The Cabinet’s final order fully adopted the hearing
officer’s recommended order.
During the administrative proceedings, Givens represented herself pro
se. However, Givens retained counsel to timely petition the Fayette Circuit Court
for review. In her petition, Givens did not attack the constitutionality of any
statute or regulation the Cabinet had applied against her in the underlying
proceedings. Instead, Givens contended that it was “unconstitutional” for the
Cabinet to enforce those rules against her under the circumstances of this case.
She argued, first, that she was entitled to rescind the contract she had entered with
the Cabinet that gave rise to her duties as C.B.’s foster parent and that the Cabinet
was therefore precluded from substantiating her alleged neglect of C.B. based upon
those duties.
In support, Givens pointed to the parts of the recommended order
reflecting her testimony that: 1) the Cabinet had not informed her that C.B. had a
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history of failing to take medications; 2) the Cabinet had not informed her that
C.B. routinely lied about taking medications; and 3) the Cabinet had not informed
her of the consequences if C.B. did not take those medications. In her words,
Givens contended that the Cabinet’s hearing officer had failed to “connect the
dots” of her testimony and consider, sua sponte, whether the Cabinet had
concealed C.B.’s pertinent medical history from Givens to fraudulently induce
Givens to accept C.B. as a foster child. Givens further alleged that the
investigation of the neglect allegation, conducted by the Cabinet’s Department for
Community Based Services (DCBS), was retaliation for a report Givens had
previously made with the Cabinet regarding a Cabinet social worker’s failure to
attend monthly nursing meetings regarding one of Givens’ other foster children.4’ 5
4
Givens provides no citation to any part of the record supporting that she filed such a report, and
the record provides nothing in support of this contention beyond Givens’ statement to this effect
in her petition for review.
5
Givens did not classify her theory with any specific label, but it is apparent from her pleadings
before the circuit court that her various points and contentions regarding fraud and rescission of
contract coalesce into an affirmative defense of “equitable estoppel.” See, e.g., Fluke
Corporation v. LeMaster, 306 S.W.3d 55, 62 (Ky. 2010):
Under Kentucky law, equitable estoppel requires both a material
misrepresentation by one party and reliance by the other party[.]
The essential elements of equitable estoppel are: (1) conduct which
amounts to a false representation or concealment of material facts,
or, at least, which is calculated to convey the impression that the
facts are otherwise than, and inconsistent with, those which the
party subsequently attempts to assert; (2) the intention, or at least
the expectation, that such conduct shall be acted upon by, or
influence, the other party or other persons; and (3) knowledge,
actual or constructive, of the real facts. And, broadly speaking, as
related to the party claiming the estoppel, the essential elements
are (1) lack of knowledge and of the means of knowledge of the
truth as to the facts in question; (2) reliance, in good faith, upon the
conduct or statements of the party to be estopped; and (3) action or
inaction based thereon of such a character as to change the position
or status of the party claiming the estoppel, to his injury, detriment,
or prejudice.
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Second, Givens asserted that the Cabinet’s hearing officer had
engaged in several acts constituting fraud and misconduct, and that, as a
consequence, the circuit court was permitted rely upon evidence outside the
administrative record, try the merits of her estoppel argument, and, based upon the
circuit court’s findings, either reverse the Cabinet’s final order or remand the
matter back to the Cabinet for further proceedings. In support of this proposition,
Givens quoted the portion of KRS 13B.150(1), which provides that “Review of a
final order [of an administrative agency] shall be conducted by the court without a
jury and shall be confined to the record, unless there is fraud or misconduct
involving a party engaged in administration of this chapter. . . .”
As to what Givens believed the Cabinet’s hearing officer had done to
constitute fraud or misconduct, Givens asserted that the Cabinet’s hearing officer:
1) failed to object, on Givens’ behalf, to leading questions or hearsay testimony
presented by the DCBS during the administrative proceedings; 2) failed to
assemble a list of witnesses, subpoena those witnesses, and call those witnesses to
testify during the administrative proceedings on behalf of Givens’ defense; 3)
failed to assemble other forms of exculpatory evidence and introduce that evidence
(Internal citations omitted.)
In exceptional circumstances, Kentucky recognizes that equitable estoppel can be applied
against a state agency, such as the Cabinet, and can be used to estop an administrative agency
from performing its statutory duties. See Board of Trustees, Kentucky Retirement Systems v.
Grant, 257 S.W.3d 591, 594-5 (Ky. App. 2008). However, Grant also provides that “[T]he
existence of an equitable estoppel claim is a question of fact. The determination of that fact is
first the responsibility of the hearing officer, KRS 13B.090(1), .110(1), and then the Board [or
Agency Head]. KRS 13B.120(2), (3). We cannot set aside those findings lightly. KRS
13B.150(2).” Id. at 595. Grant further provides that “Prior to remanding a case for failure to
make a finding of fact on an essential issue, we are required to determine whether [the appellant]
preserved the issue in accordance with KRS 13B.140.” (Citing Rapier v. Philpot, 130 S.W.3d
560, 563-64 (Ky. 2004)).
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during those proceedings, also on behalf of Givens’ defense; 4) allegedly asked
Givens only one question during the administrative hearing; 5) failed to advise
Givens, prior to the hearing, that Givens had the right to be represented by counsel,
to call witnesses on her own behalf, and to ask the agency to reschedule the date of
the administrative hearing; and 6) was incapable of impartially deciding the
underlying matter because the hearing officer and DCBS were both a part of the
same agency.
However, on October 13, 2009, the circuit court dismissed Givens’
petition. The court affirmed the Cabinet’s decision after determining that Givens
had failed to file exceptions capable of preserving any issue for judicial review.
Givens moved the circuit court to alter, amend, or vacate its October
13, 2009 order, per Kentucky Rule of Civil Procedure (CR) 59.05. There, she
argued that 1) the July 9, 2009 statement she submitted to the DCBS
Commissioner qualified as an exception sufficient to preserve her estoppel
argument; 2) even if her July 9, 2009 statement did not sufficiently preserve her
estoppel argument, the General Assembly did not intend for the filing of
exceptions, within the context of KRS 13B administrative proceedings, to be a
prerequisite for preserving error for judicial review; 3) the circuit court could
nevertheless review her argument because the hearing officer’s recommended
order failed to properly advise her of her exception rights; 4) the circuit court could
still review her argument under the palpable error standard of CR 61.02; or, failing
that, 5) the circuit court could review her argument because, as she alleged, the
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administrative proceedings were tainted by the Cabinet hearing officer’s fraud and
misconduct.
Also in that motion, and for the first time, Givens argued that “[The
Cabinet’s] final order placing [Givens’] name on the central registry of those who
have abused or neglected children is unconstitutionally cruel and unusual
punishment.”
In a January 11, 2010 order in response to Givens’ motion, the circuit
court reaffirmed that Givens’ July 9, 2009 statement failed to preserve any error
for its review. This appeal followed.
II. ANALYSIS
On appeal, Givens restates each of the arguments she posed before the
circuit court, listed above. Each of Givens’ arguments is directed to one common
theme: the legal significance of filing exceptions to a recommended order of a
hearing officer in an administrative proceeding governed by KRS 13B.00513B.170. Thus, before we delve into the substance of her arguments, it is
necessary to review the relevant provisions of those statutes, and discuss what an
“exception” is.
Notably, KRS 13B et seq. does not provide an explanation or
definition of the term “exceptions.” That term, as it is used in those provisions, has
been the subject of further interpretation and explanation by decisions of our
courts, particularly Rapier v. Philpot, 130 S.W.3d 560, 563-4 (Ky. 2004). There,
the Supreme Court of Kentucky stated:
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Under Chapter 13B, the filing of exceptions provides the
means for preserving and identifying issues for review by
the agency head. In turn, filing exceptions is necessary
to preserve issues for further judicial review. Cf. Eiland
v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997) (failure to
file objections to a domestic relations commissioner’s
report adopted by the trial court precluded challenging,
on appeal, whether the trial court’s order was supported
by sufficient evidence). Under Kentucky law, this rule of
preservation precludes judicial review of any part of the
recommended order not excepted to and adopted in the
final order. Cf. United States v. Central Bank & Trust
Co., Ky., 511 S.W.2d 212, 214 (1974). (The failure to
file written objections to a commissioner’s report
precluded aggrieved party from “questioning on appeal
the action of the circuit court in confirming the
commissioner’s [report].”) Thus, when a party fails to
file exceptions, the issues the party can raise on judicial
review under KRS 13B.140 are limited to those findings
and conclusions contained in the agency head’s final
order that differ from those contained in the hearing
officer’s recommended order.
Rapier provides one of the more succinct explanations of the function
that an “exception” serves within the context of KRS 13B et seq. Rapier also
emphasizes that the purpose behind filing exceptions within the meaning of those
statutes is the same as raising an objection at a trial: doing so preserves alleged
mistakes of fact or errors of law for further review. The legal significance of filing
exceptions in general is, however, a subject that Kentucky jurisprudence addressed
long before Rapier. In Collins v. Conley, 216 Ky. 582, 288 S.W. 316 (1926), for
example, the former Court of Appeals described the consequence of a party’s
failure to file exceptions to a master commissioner’s report:
It is earnestly insisted that the master commissioner’s
report is clearly unsupported by the evidence taken by
him, but back of this is the question, Can Collins
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complain of the commissioner’s report in this court when
he filed no exceptions to the report in the circuit court?
In 21 C.J. 618, the rule is thus stated:
“As a general proposition in order to obtain a review of
the findings or recommendations of a master specific
exceptions to his report must be filed. All findings of
fact not excepted to will be accepted as true by the court,
and the parties to the suit are concluded thereby.”
To the same effect is 10 R. C. L. p. 517:
“When there is in the master’s report a mistake or error
which can be pointed out in the report itself or in any
document contained in the record, the party aggrieved
should resort to the use of exceptions, since findings of
the master on questions of fact are always binding where
no exceptions are taken, or where they are improperly
taken, and only such matters of law and of fact as are
brought before the court by exceptions will be reviewed.”
So far as we have seen, the authorities are clear and
consistent on this question. The reason for the rule is that
the appellate court simply reviews the action of the
circuit court. An exception to the report was necessary to
require the circuit court to review the findings of the
commissioner; for the court properly assumed that the
commissioner’s report was correct when it was not
complained of. For the parties to allow the
commissioner’s report to be confirmed without exception
and then for the first time to present their objections to
the report in this court, by way of a brief, would be to
require this court in the first instance to try the merits of
the case when there had been no trial in the circuit court.
This cannot be done.
Id. at 317.
Collins also underscores that exceptions must be specific. Id. A clear,
concise statement of a party’s objection or objections obviates the need for the
agency head or the Court, on subsequent judicial review, to guess at, or decipher,
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the party’s intended argument regarding error. For this reason, even properly filed
exceptions, containing objections “couched in general terms with no specification
of any concrete or particular error . . . are insufficient to authorize us or the court
below to consider or disturb the verdict for any alleged error, though valid, that
may be argued as embraced in such general language.” Challinor v. Axton, 246
Ky. 76, 54 S.W.2d 600, 601 (1932).
Challinor itself cites several examples of objections that are too
general to qualify as preservations of error. These include: “irregularity in the
proceedings of the court and in the prevailing party, by which the plaintiff was
prevented from having a fair trial”; “error of law occurring at the trial”; and, “the
verdict was contrary to law.” Id.; see also Couch v. Natural Res. & Envtl. Prot.
Cabinet, 986 S.W.2d 158, 161 (Ky.1999) (citing Challinor in the context of
exceptions filed in administrative proceedings; holding that a statement to the
effect that the hearing officer’s findings were contrary to “the law and to the facts,
to KRS Chapter 350, and to the administrative regulations issued pursuant to KRS
Chapter 350,” was insufficient to preserve any error for judicial review).
On the other hand, an example of an exception that adequately
preserved a contention of error and provided a basis for remand can be found in
Grant, 257 S.W.3d at 596. That exception, as a panel of this Court described it,
was simply to the effect that the complaining party had raised the defense of
equitable estoppel before the hearing officer, and that the hearing officer had failed
to address it. Id. This example is particularly relevant to the case at bar because
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equitable estoppel is precisely the defense that Givens purports to have asserted
before the Cabinet’s hearing officer and, similarly, Givens believes that the hearing
officer erred by not addressing it, or, in her words, by failing to “connect the dots.”
With this in mind, we examine Givens’ first argument: She believes
that her July 9, 2009 statement adequately notified the Cabinet’s agency head that
she had raised the defense of equitable estoppel before the hearing officer, and that
the hearing officer had erred by failing to consider it.6 Her July 9, 2009 statement
reads:
I Joyce Givens is [sic] objecting to the order with the
Commissioner that the finding be reversed! I will file a
petition in Circuit Court.
We disagree that this statement was capable of preserving any
defense, let alone one regarding equitable estoppel. This statement specifies no
particular error, and matches the examples cited in Challinor and Couch, as
“couched in general terms with no specification of any concrete or particular
error.” Challinor, 54 S.W.2d at 601. Consequently, this statement is “insufficient
to authorize us or the court below to consider or disturb the verdict for any alleged
error, though valid, that may be argued as embraced in such general language.” Id.
In rebuttal, Givens urges that her July 9, 2009 statement should be
“liberally construed” because she was representing herself pro se when she filed it
before the Cabinet’s agency head. We recognize that pro se pleadings are not to be
held to the same standard as those of an attorney. See Case v. Commonwealth, 467
6
As previously noted, equitable estoppel is a defense that must be preserved at the administrative
level. Grant, 257 S.W.3d at 595-6.
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S.W.2d 367, 368 (Ky. 1971)). However, pro se litigants are still required to
preserve error. Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009)
(“Kentucky courts still require pro se litigants to follow the Kentucky Rules of
Civil Procedure.”) And, to interpret Givens’ July 9, 2009 statement to raise and
preserve an issue regarding equitable estoppel would go beyond merely construing
its existing language; doing so would require this Court to add language and
meaning to it where neither exists.
Givens’ second argument is that even if her July 9, 2009 statement did
not sufficiently preserve her estoppel argument, the General Assembly did not
intend for the filing of exceptions, within the context of KRS 13B administrative
proceedings, to be a prerequisite for preserving error for judicial review.
Therefore, she reasons that the Supreme Court of Kentucky placed an unintended
meaning upon the word “exceptions,” as it is used in KRS 13B et seq., and thus
violated the separation of powers doctrine. We disagree.
The General Assembly chose not to define “exceptions” when it
enacted KRS 13B et seq. And, in that circumstance, “A universally accepted rule
of statutory construction is that the General Assembly is presumed to know the
status of the law and the constructions placed on it by the courts.” Butler v. Groce,
880 S.W.2d 547, 550 (Ky. (1994), J. Lambert dissenting (citing Baker v. White,
251 Ky. 691, 65 S.W.2d 1022 (1933); Commonwealth, Dept. of Banking & Secur.
v. Brown, 605 S.W.2d 497 (Ky.1980)). Collins, quoted above, explored the legal
construction of “exceptions” as early as 1926. The General Assembly chose to
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adopt that term, without further defining it, into the language of KRS 13B et seq.
decades later. Rapier did nothing more than reassert the meaning of the term
“exceptions” as illustrated by decades of Kentucky precedent. And, since Rapier,
the General Assembly has done nothing to alter the meaning of that term.
In sum, there is no separation of powers violation in this instance
because we presume that the General Assembly intended for our courts to treat the
term “exceptions,” within the context of KRS 13B et seq., the same way that our
courts have always treated that term.
Givens’ third argument is that the circuit court could nevertheless
review her argument because the hearing officer’s recommended order failed to
properly advise her of her exception rights. This argument also has no merit.
Pursuant to KRS 13B.110(1), a hearing officer’s recommended order
must include “a statement advising parties fully of their exception and appeal
rights.” KRS 13B.110(4) also provides each party fifteen days in which to file
exceptions. In Rapier, the Supreme Court of Kentucky held that the following
statement fully advised a litigant of his exception rights within the meaning of
these provisions:
Any Exceptions and/or requests for Oral Arguments
hereto shall be filed within fifteen (15) days hereof and
any Response to Exceptions shall be filed within five (5)
days of the date the Exceptions are filed with the Board.
Rapier, 130 S.W.3d at 564.
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In the case at bar, the hearing officer’s recommended order contained
just as much, if not more, of an explanation of Givens’ exception rights.
Therefore, the notice Givens was provided was adequate as a matter of law.
Givens’ fourth argument is that the circuit court could have reviewed
her argument under the palpable error standard of CR 61.02. In support of this
proposition, she relies upon Herndon v. Herndon, 139 S.W.3d 822 (Ky. 2004),
which held that a court could review the report of a domestic commissioner for
palpable error. However, Herndon involved appellate review of judicial, rather
than administrative, proceedings. Moreover, although the objections to a domestic
relations or other report filed in a judicial proceeding generally are waived unless
timely raised before the trial court, the trial court in fact may consider an untimely
objection or may conduct a review in order to prevent manifest injustice. Eiland v.
Ferrell, 937 S.W.2d 713, 716-17 (Ky. 1997); see also CR 61.02; Herndon, 139
S.W.3d at 823, 826-27.
The duty of a trial court in an administrative proceeding, by contrast,
is not to interpret the rules of the Court of Justice. Instead, the court must
“interpret procedural statutes and give effect to legislative intent[.]” Herndon, 139
S.W.3d at 826. A party to an administrative hearing, therefore, must except to a
recommended order as required by statute and, despite Givens’ argument to the
contrary, judicial review of the final order specifically is limited to a review of any
factual or legal “findings and conclusions” which differ from those which were
recommended. Rapier, 130 S.W.3d at 564; see also KRS 13B.140. Because
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Givens filed no exceptions capable of preserving any error regarding the hearing
officer’s recommended order and the Cabinet adopted the recommended order
without change, it follows that no issues existed for the trial court’s consideration.
Givens’ fifth argument is that the circuit court could review her
argument because, as she alleged, the administrative proceedings were tainted by
the Cabinet hearing officer’s fraud and misconduct. In support, she restates the
same instances of the hearing officer’s alleged misconduct as she did before the
circuit court.
This argument is also without merit. By not filing any specific
exceptions, Givens failed to preserve or provide notice of the factual findings and
conclusion to which she objected. Whether the hearing officer acted fraudulently
had no bearing on Givens’ disagreements with and objections to the hearing
officer’s rulings. In this light, the specific acts of the hearing officer that Givens
classifies as fraud and misconduct are irrelevant to this appeal.
Moreover, Givens’ various arguments point to nothing indicative or
supportive of her allegations that the hearing officer acted fraudulently or
committed misconduct. Givens provides no citation to any evidence of record
supporting that any of these alleged acts occurred. Similarly, Givens presents no
authority supporting that any of these alleged acts could constitute misconduct.
Indeed, making evidentiary objections and preparing evidence for a defense are not
the responsibility of a hearing officer. They are the responsibility of an attorney,
pro se or otherwise.
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Givens’ assertion that the hearing officer failed to advise her of her
rights to be represented by counsel and to call witnesses on her behalf is also
directly contradicted by the record. The record contains a “Notice of Scheduled
Hearing,” entered one month prior to the hearing date in this matter and sent to
Givens, which extensively advised her of both of these rights. And, as to her
contention that the hearing officer failed to tell her that she had a right to ask for
the hearing to be rescheduled, the Notice also contained all of the hearing officer’s
relevant contact information. Givens makes no contention that she ever attempted
to contact the hearing officer.
Finally, as to Givens’ assertion that the hearing officer was unable to
impartially decide the underlying matter because both the hearing officer and
DCBS were part of the same agency, we would respond by stating that this, in and
of itself, is insufficient to demonstrate bias. “Without a showing to the contrary,
state administrators ‘are assumed to be men of conscience and intellectual
discipline, capable of judging a particular controversy fairly on the basis of its own
circumstances.’” Withrow v. Larkin, 421 U.S. 35, 55, 95 S.Ct. 1456, 1468 (1975)
(quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed.
1429 (1941)).
Finally, Givens again argues, as she did for the first time in her CR
59.05 motion to vacate, that the Cabinet’s final order authorizing the placing of her
name on the central registry of those who have abused or neglected children is
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cruel and unusual punishment. She further argues that the trial court erred when it
failed to address this argument in its final order.
Givens’ argument, as well as the majority of her brief, is couched in
terms of constitutionality. Curiously, Givens has strictly confined her arguments to
the constitutionality of the Cabinet’s and circuit court’s respective final orders; she
has never challenged the constitutionality of any regulation or statute, let alone any
regulation or statute authorizing the existence of the Central Registry itself.
Regardless, however, the circuit court was entitled to disregard this
argument. “A party cannot invoke CR 59.05 to raise arguments and introduce
evidence that could and should have been presented during the proceedings before
the entry of the judgment.” Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky. App.
1997). And without question Givens was aware, long before the circuit court
entered its October 13, 2009 order affirming the Cabinet’s decision, that her name
would be placed on the Central Registry.
III. CONCLUSION
For these reasons, the order of the Fayette Circuit Court is
AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gayle E. Slaughter
Lexington, Kentucky
Jerry M. Lovitt, Esq.
Lexington, Kentucky
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