VYACHESLAVA "SLAVA" VOLKOVITSKAYA AND LYUDMILA "MILA" VOLKOVITSKAYA v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001980-MR
VYACHESLAVA "SLAVA" VOLKOVITSKAYA
AND LYUDMILA “MILA” VOLKOVITSKAYA
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 05-CI-003757
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
COMBS, CHIEF JUDGE:
Vyacheslava (“Slava”) and Ludmila (“Mila”)
Volkovitskaya appeal from an Opinion and Order of the Jefferson
Circuit Court that dismissed their complaint against the
Commonwealth of Kentucky, Cabinet for Health and Family Services
(“the Cabinet”).
Slava had appealed a determination by the
Cabinet that he committed child abuse, and Mila joined in the
appeal as co-owner of the child care center involved.
The
circuit court denied the appeal as untimely, finding that it
lacked subject matter jurisdiction to consider their complaint
because they had failed to exhaust their administrative
remedies.
On appeal, Slava and Mila contend that the circuit
court acted in an arbitrary and capricious manner in refusing to
hear the merits of their case.
Slava and Mila were co-owners of the Little Stars Day
Care Center in Louisville.
Mila was the operator and director,
while Slava worked on a part-time basis, opening the center in
the morning and performing maintenance services.
In the fall of
2004, the Cabinet received a report that Slava had sexually
abused a child at the day care center.
The Cabinet conducted an
investigation and concluded that the abuse report was
substantiated.
On November 9, 2004, Slava was arrested and
charged with sexual abuse in the first degree.
The Cabinet’s
Office of the Inspector General immediately ordered an emergency
suspension of the license of Little Stars to operate as a child
care facility.
Julia Long, an employee of the Department for
Community Based Services (an agency within the Cabinet that is
charged with investigating allegations of child abuse, neglect,
or dependency), sent Slava a Child Protective Service
Substantiated Notification Letter (“notification letter”).
Although the letter was dated November 3, 2004, the record shows
that Slava did not receive it until November 15, 2004.
-2-
(Appellant’s brief, appendix 4.)
The letter informed Slava that
the allegations of sexual abuse against him had been
substantiated and explained what the implications of such a
finding could be:
The role of the Department for Community
Based Services in investigating reports of
child abuse or neglect is to assess the risk
to the child and to make efforts to protect
children from further risk. The Department
is not responsible for criminal prosecution.
However, this finding may be the basis for
denying you certain rights and privileges,
such as approval for foster parenting,
adoption, or employment as required by state
or federal law.
The letter then specified the procedures to be followed if Slava
wished to appeal this determination.
Pursuant to 922 Kentucky Administrative
Regulation (KAR) 1:330, Section 10(1),
individuals who are found to be
substantiated perpetrators of child abuse or
neglect shall be given the right to request
an administrative hearing to challenge the
finding of (abuse, risk or abuse, or
neglect). Requests for an administrative
hearing must be made by completing the
attached DPP-155 form and submitting it,
postmarked within thirty (30) calendar days
of receipt of this letter[.] (Emphasis
added.)
It is undisputed that the required DPP-155 form was
not attached to the letter and that Slava did not file his
appeal in a timely fashion.
His attorney submitted a letter and
a completed DPP-155 form to the Cabinet on February 1, 2005,
forty-seven days after his limit of 30 days time ran following
-3-
receipt of the notification letter (from the deadline of
December 15, 2004 to February 1, 2005).
By way of explanation,
the letter stated that “the [notification] Letter was received
much later than the date it was written and was not accompanied
by the required appeal form.
appeal as timely.”
Therefore, please accept this
The Cabinet denied the appeal, stating:
Kentucky Administrative Regulation, 922 KAR
1:480, Section 3, Sub-section 3(a)(2),
states that “A request for appeal shall be
submitted to the cabinet no later than
thirty (30) calendar days from the date the
notice of a substantiated finding of child
abuse or neglect is mailed; or of delivery
of the notice if not mailed.” After giving
due consideration to your explanation, I
must advise you that you have not
established just cause for this office to
grant an exception. Your appeal is
therefore denied based upon your failure to
file your appeal in a timely manner.
Slava and Mila filed a complaint in the Jefferson
Circuit Court, appealing the Cabinet’s denial of the
administrative appeal.
The Cabinet filed a motion to dismiss
the complaint, which the court granted on the ground that it
lacked subject matter jurisdiction because Slava and Mila had
failed to exhaust their administrative remedies.
We review de novo the circuit court’s granting of a
motion to dismiss.
American Premier Insurance Co. v. McBride,
159 S.W.3d 342, 345 (Ky.App. 2005).
-4-
The pertinent regulations governing appeals of child
abuse and neglect determinations are found at 922 KAR1 1:480.
Section 2 of the regulation provides that “[a] person who has
been found by the cabinet to have abused or neglected a child
may appeal the cabinet’s finding through an administrative
hearing.”
Section 3 of the same regulation requires that the
Cabinet provide the following to the alleged perpetrator:
(a) Notice of a substantiated finding of
child abuse or neglect . . . and
(b) A copy of the Request for Appeal of
Child Abuse or Neglect Investigative
Finding, form DPP-155, incorporated by
reference.
A request for an appeal must be submitted to the
Cabinet:
no later than thirty (30) calendar days from
the date: a. The notice of a substantiated
finding of child abuse or neglect is mailed;
or b. Of delivery of the notice if not
mailed[.]
922 KAR 1:480, Section 3(3)(a).
Finally, the regulation provides that “[t]he cabinet
shall not dismiss a request for appeal as untimely if an
appellant demonstrates good cause.”
Good cause is defined as follows:
1
Kentucky Administrative Regulations.
-5-
Id., Section 3, (5).
“Good cause” means justification for failure
to carry forward with a legal obligation
related to an appeal, including:
(a) An appellant’s inability to comprehend
the cabinet’s written statement describing
appeal rights; or
(b) A cabinet-sanctioned determination that
the appellant or the appellant’s legal
representative is not at fault for failure
to:
1. Submit a written request for appeal; or
2. Participate in a proceeding related to an
administrative hearing.
Id., Section 1, Definitions (5).
In regard to the Cabinet’s determination that Slava
and Mila failed to establish good cause to justify a late
appeal, we note that “an administrative agency’s interpretation
of its own regulation is entitled to substantial deference.”
Commonwealth, Cabinet for Health Services v. Family Home Health
Care, Inc., 98 S.W.3d 524, 527 (Ky.App. 2003).
Furthermore,
[a] reviewing court is not free to
substitute its judgment as to the proper
interpretation of the agency’s regulations
as long as that interpretation is compatible
and consistent with the statute under which
it was promulgated and is not otherwise
defective as arbitrary or capricious.
Id.
We are also mindful of the following principle relied
upon by the circuit court in its decision to dismiss the appeal:
-6-
[I]t has been repeatedly held that an appeal
from an administrative decision is a matter
of legislative grace and not a right. Thus,
the failure to follow the statutory
guidelines for such an appeal is fatal. The
person seeking review of administrative
decisions must strictly follow the
applicable procedures.
Triad Development/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43,
47 (Ky. 2004), citing Taylor v. Duke, 896 S.W.2d 618 (Ky.App.
1995).
Slava and Mila argue that the trial court erred in
failing to consider that Slava did not receive the notification
letter from the Cabinet until November 15, 2004; and that Slava,
who is a native Russian speaker, is functionally illiterate in
English and was unable to comprehend the terms of the letter.
Additionally, the Cabinet failed to enclose the DPP form, which
was required to be completed and returned to the Cabinet in
order to comply with its rules for filing an administrative
appeal.
Thus, the Cabinet’s omission in this regard is
partially responsible for the running of some additional time.
Slava and Mila contend that the circuit court ignored these
issues, which vitally affected the sufficiency of the notice
afforded to Slava by the notification letter.
We agree that the Cabinet ignored the rudimentary
elements of due process:
be heard.
adequate notice and an opportunity to
It failed to make allowance for the 12-day delay in
-7-
Slava’s receipt of the letter or perhaps his inability to
readily comprehend its import due to the impediment of the
language barrier.
Additionally, the Cabinet itself neglected to
include the DPP-155 form, which it represented in its letter to
be a necessary component to perfect an administrative appeal.
Whether or not it was in fact a necessary component, the
Cabinet’s letter most certainly made it appear to be so.
The delay of 47 days in filing the letter and the DPP155 form is not great, and the fault for the delay arguably was
not entirely his own -- attributable at least in part to the
Cabinet’s own omission.
The charge of child abuse is serious
and perhaps one of the most heinous and reprehensible offenses
which afflict our society.
In light of the gravity of the
charge, the rather small amount of time involved in the delay,
and the reasons underlying the delay, we conclude that the
Cabinet acted both arbitrarily and capriciously in refusing to
hear this administrative appeal.
Due process remains a sacrosanct right of any person
subject to governmental reprisals in our constitutional
framework.
It may not be lightly disregarded or explained away:
Basically, judicial review of
administrative action is concerned with the
question of arbitrariness. On this ground
the courts will assume jurisdiction even in
the absence of statutory authorization of an
appeal.
-8-
. . . .
There is an inherent right of appeal from
orders of administrative agencies where
constitutional rights are involved, and
section (2) of the Constitution prohibits
the exercise of arbitrary power.
American Beauty Homes Corporation v. Louisville and Jefferson
County Planning and Zoning Commission, 379 S.W.2d 450, 456, (Ky.
1964) (citations omitted).
See also, City of Louisville v.
Slack, 39 S.W.3d 809, 812 (Ky. 2001).
We hold that the Cabinet acted arbitrarily and
capriciously in failing to find good cause shown for the delay
in filing this administrative appeal.
Because the Cabinet
improperly deprived the appellants of their opportunity for
administrative review, we conclude that the failure to exhaust
administrative remedies occurred through no fault of their own.
The circuit court erred in declining to exercise jurisdiction
under these circumstances.
We vacate its order and remand this matter for entry
of an order directing the Cabinet to grant review.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Stanley W. Whetzel, Jr.
Ruth Ann Cox Pence
Louisville, Kentucky
Jon R. Klein
Frankfort, Kentucky
-9-
ORAL ARGUMENT FOR APPELLANTS:
Stanley W. Whetzel, Jr.
Louisville, Kentucky
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
