Carolyn Whitmore and Carolyn Child Care v. Arkansas Department of Health and Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION IV
CA 0786
CAROLYN WHITMORE and
CAROLYN CHILD CARE
APPELLANTS
V.
ARKANSAS DEPARTMENT OF
HEALTH AND HUMAN SERVICES
APPELLEE
NOVEMBER 7, 2007
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, THIRD
DIVISION, [NO. CV 0511109]
HONORABLE JAMES MAXWELL
MOODY, JR., JUDGE
AFFIRMED
Appellant Carolyn Whitmore appeals the revocation of her probationary license to run
a daycare. Appellee, the Arkansas Department of Health and Human Services (DHHS),
obtained an emergency revocation of her license in June 2005, followed by a full hearing on
the matter. The administrative proceeding resulted in affirmation of the revocation. On
appeal to the Pulaski County Circuit Court, it remanded for findings of fact. Those findings
were made, stating the reasons for revocation. Thereafter the circuit court upheld the
revocation as supported by substantial evidence and not violative of due process. The circuit
court ordered appellant responsible for the cost of the record. This appeal followed.
Appellant argues (1) that it was error to assess appellant the cost of preparing the
record ($580); (2) that the administrative proceedings violated the statutory administrative
procedures and violated due process in failing to determine as a matter of fact whether the
daycare was open for business on the day in question; and (3) that the proceedings violated
due process where the administrative process is pursued by and heard before State
employees, exemplified by the rejection of her videotape from consideration in evidence. We
disagree with her arguments and affirm.
Review of administrative agency decisions, by both the circuit court and appellate
courts, is limited in scope. Arkansas Dep’t of Corr. v. Bailey, ___ Ark. ___, ___ S.W.3d ___,
(Jan. 25, 2007). The standard of review to be used by both the circuit court and the appellate
court is whether there is substantial evidence to support the agency's findings. Id. Thus, the
review by appellate courts is directed not to the decision of the circuit court, but rather to the
decision of the administrative agency. Id. The circuit court or appellate court may reverse
the agency decision if it concludes:
(h) [T]he substantial rights of the petitioner have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are: (1) In violation of
constitutional or statutory provisions; (2) In excess of the agency's statutory authority;
(3) Made upon unlawful procedure; (4) Affected by other error or law; (5) Not
supported by substantial evidence of record; or (6) Arbitrary, capricious, or
characterized by abuse of discretion.
Ark. Code Ann. § 2515212(h) (Repl. 2002). An administrative agency's interpretation of its
own regulation will not be overturned unless it is clearly wrong. Dukes v. Norris, ___ Ark.
___, ___ S.W.3d ___ (May 3, 2007). Administrative agencies, due to their specialization,
experience, and greater flexibility of procedure, are better equipped than courts to analyze
legal issues dealing with their agencies. Id.
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It should be noted that a party appearing before an administrative agency is entitled to
due process in the proceedings. See C.C.B. v. Arkansas Dep’t of Human Servs., 368 Ark. 540,
__ S.W.3d __ (2007). A fair trial by a fair tribunal is a basic requirement of due process. Id.
However, an appellant, in attacking an administrative procedure on the basis of a denial of due
process, has the burden of proving its invalidity. Id.
The first point concerns the recovery of costs associated with the record prepared for
review. Pursuant to statute, the agency (here DHHS) is responsible for preparation of the
record for review, but if the agency prevails, then the appealing party “shall” bear those costs.
In this instance, the circuit court, after remand for specific findings of fact, reviewed the
agency’s decision to revoke appellant’s license. The agency decision was upheld, and
pursuant to Ark. Code Ann. § 2515212(d)(2), appellant was made responsible for the cost
of the record. Appellant contends that this was error. We disagree.
Arkansas Code Annotated section 2515212(d) provides that:
(1) Within thirty (30) days after service of the petition or within such further time as
the court may allow but not exceeding an aggregate of ninety (90) days, the agency
shall transmit to the reviewing court the original or a certified copy of the entire record
of the proceeding under review.
(2) The cost of the preparation of the record shall be borne by the agency. However,
the cost of the record shall be recovered from the appealing party if the agency is the
prevailing party.
Appellant argues that because there was a preparation of the record in the initial appeal that
resulted in a remand, then there was no additional cost incurred when she did not prevail after
remand. In short, appellant argues that it was improper to have her pay the cost on the second
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round of her appeal on the identical record. While there might be an equitable argument to
be made on this issue, there is no discretion vested in the circuit court on this subject by use
of the term “shall” in the statute. Therefore, appellant’s argument for reversal on this point
is not well taken. See, e.g., Hankins v. Ark. Dep’t of Fin. & Admin., 330 Ark. 492, 954 S.W.2d
259 (1997) (holding that because DF&A paid for a transcript and was the prevailing party, the
circuit court did not err in ordering Hankins to reimburse the agency, even though DF&A
failed to provide a complete record for review on appeal). We affirm this point.
Next, appellant argues that the primary issue was whether the child care facility was
open on the day of the inspection on June 29, 2005. This specific question, appellant argues,
was not answered by the administrative agency, and thus the administrative action cannot
stand. We disagree.
The testimony and evidence leading to the suspension of appellant’s license is
necessary to give context to this argument. Appellant was given a oneyear probationary
license in February 2005, to run a daycare in her sister’s home in Little Rock, Arkansas, with
the limitation that she care for no more than five children at any given time. On June 29,
2005, a licensing specialist, Pamela Parker, made an unannounced visit to the daycare. As she
approached, Parker observed four children being driven away by Ms. Covington (the owner
of the home). The children were unbuckled in a van. Once inside the facility, Parker
observed ten children ranging from age nine to eight months in the facility. No adult was
present to oversee the children. Parker stayed for approximately one hour before appellant
arrived. Parker noted that there were more children than permissible, and appellant made
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efforts to find placements for the additional children. Parker asked for required documents
on the children in her care; appellant was able to produce documentation for only four. The
staff at the licensing agency entered an emergency revocation of appellant’s license.
Appellant appealed to the Child Care Appeal Review Panel, wherein testimony was
taken and letters from parents were submitted, but appellant did not introduce a videotape
showing the inside of her facility. Appellant and her witnesses testified that the daycare was
technically closed that day for a birthday party. Appellant was permitted to submit letters from
some parents reflecting that sentiment. Parker testified that appellant never mentioned a
birthday party in her visit that day, nor did any of the children, and that there was no evidence
of a birthday party such as decorations or supplies typically associated with a birthday party.
The agency presented evidence that a voucher program was billed for services rendered for
ten of the children on June 29, 2005.
The Review Panel upheld the agency decision by vote at the conclusion of the hearing.
Appellant appealed to circuit court, which court remanded the case for findings of fact and
conclusions of law. The Review Panel prepared a more extensive set of findings of fact and
conclusions of law, after which the circuit court affirmed and ordered that appellant be
responsible for the costs associated with preparation of the record. Appellant appeals to our
court.
The relevant findings made were that (1) appellant’s secondary child care giver, her
sister Ms. Covington, left a nineyearold child in charge of nine other children in the daycare
violating the requirement for prudent supervision, (2) on June 29, 2005, the number of
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children in daycare exceeded appellant’s permitted number of five, (3) children were
transported in an unlicensed vehicle without proper restraints, and (4) on June 29, 2005,
appellant was unable to provide records for all the children in her care, but rather provided
documents for only four of the children.
Assuming for the sake of argument that appellant’s facility was in fact closed on the
day in question, appellant was found to have violated at least one condition of her
probationary license that did not depend upon the daycare being open, that being proper
record keeping. Any violation left unrebutted would suffice as substantial evidence to support
the agency decision.
It is apparent that without specifically stating so, the agency deemed the facility to be
open for business on June 29, 2005. This is made apparent by the findings of fact that discuss
the lack of supervision and lack of required records on this particular date. While not found
by date certain, the findings also determine that Ms. Covington left a child in charge of
supervising the other nine children found inside the daycare, and Ms. Covington drove four
children in an unsafe manner by failure to have them in safety restraints on that day. Only by
finding that appellant was in business on that day could the agency make these findings of fact
relevant to the daycare license.
Appellant’s final argument is a general attack on the fairness of these proceedings
where the Review Panel, the Panel facilitator, and the DHHS attorney seeking to uphold the
agency action, are all employed by the State. Appellant argues that this unfairness is
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demonstrated by the initial hearing officer’s rejection of appellant’s videotape being played
at the administrative hearing.
Appellant submitted letters from parents for consideration at the hearing, which were
admitted into evidence. Appellant noted that she had a videotape showing the layout of her
daycare facility. The hearing officer stated in that regard:
[W]e’ll discuss the tape a little more in detail when it gets time for it to be shown, and
maybe that it’s published to the Board if not actually accepted as an Exhibit, because
it probably, from what she’s explained to me, has pictures of children in that–on it. So,
we’ll have to wait and see what it is completely, before we accept it or reject it.
At no point thereafter did appellant seek to introduce the tape. Therefore, she can show no
prejudice where she was not denied any request.
As to the other component of this argument, appellant asserts that the overall process
is unfair where the “prosecutor” via DHHS and the “judge” via the hearing officer for the
agency stem from the same seed. Appellant did not raise this argument to the hearing officer
or the Review Panel, although it was raised to the circuit court at the final stage of those
proceedings. Appellant has failed to preserve this issue. See Arkansas Contractors Licensing
Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001) (holding that an
appellant must obtain a ruling from the Board in order to preserve an argument, even a
constitutional one, for an appeal from an administrative proceeding). It is the appellant's
obligation to raise such matters first to the administrative agency and obtain a ruling. See
Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468,892 S.W.2d 262 (1995) (declining
to review appellant’s arguments that she was denied due process and her right to a hearing
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under Ark. Code Ann. § 2515208 where such arguments were not made to the administrative
tribunal); Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992) (declining
to reach “several arguments” that were not raised before the Board); Alcoholic Bev. Control
Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985) (declining to reach a challenge to the
timing of two local option elections because the argument was not raised before the Board).
The rationale behind this rule is that, if the appellate court were to set aside an administrative
determination on a ground not presented to the agency, it would usurp the agency’s function
and deprive the agency of the opportunity to consider the matter, make its ruling, and state the
reasons for its action. See Wright, supra. For this reason, this issue is not preserved for
appellate review.
Even were we to conclude that the issue was fully developed at the agency level, we
would reject it. In C.C.B. v. Arkansas Department of Health & Human Services, ___ Ark.
___, ___ S.W.3d ___ (Jan. 25, 2007), the supreme court held that an allegation regarding the
appearance of impropriety, based on the fact that the administrative law judge and prosecutor
were employees of the same agency seeking to keep the alleged maltreater on the
childmaltreatment registry, standing alone, was insufficient to demonstrate bias or even an
appearance of bias. The supreme court required more than a bare allegation of bias in order
to demonstrate denial of due process. See id.
For the foregoing reasons, we affirm the agency decision to revoke appellant’s daycare
license.
VAUGHT and BAKER, JJ., agree.
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