RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1466-MR
IMELDA CURTIN APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 20-CI-00116
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES AND
ERIC FRIEDLANDER, SECRETARY OF THE
CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Imelda Curtin appeals from an order of the Franklin
Circuit Court which affirmed a final order from the Secretary of the Cabinet for
Health and Family Services. The order from the Cabinet substantiated an
allegation that Appellant placed her foster child, M.M. (hereinafter referred to as
Child),1 at risk of emotional abuse. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
Child was placed in the care of Appellant and her husband on August
26, 2016. About one year later, the Cabinet received a report that Child was being
abused by Appellant. Specifically, the allegation was that Appellant was calling
Child names and making other statements that could be considered emotionally
abusive. The Cabinet investigated the allegation and eventually substantiated it,
finding that Appellant was neglecting Child by putting her at risk of emotional
abuse.2 Appellant then initiated an administrative appeal. A hearing was held over
two days on March 1, 2018, and March 15, 2018. About 511 days after the
hearing, the administrative law judge (ALJ) issued a recommended order. The
order upheld the original substantiation of neglect due to risk of emotional abuse
and requested that the Secretary of the Cabinet, who had final say in the matter,
adopt the recommended order. Appellant then timely filed exceptions to the
recommended order. About 117 days after the recommended order was filed with
the Secretary of the Cabinet, the Secretary adopted the ALJ’s recommended order.
1
This case concerns the allegations of abuse against a minor child; therefore, we will not identify
the child by her name. Although the child has now reached the age of majority, we will still not
use her full name.
2
Kentucky Revised Statute (KRS) 600.020(1)(a)2. indicates that a child can be deemed abused
or neglected if there is a risk of physical or emotional injury.
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Upon entry of the Cabinet’s final order, Appellant filed a petition for
review with the Franklin Circuit Court. Appellant argued that there was
insufficient evidence to substantiate the charge of risk of emotional abuse.
Appellant also argued that the ALJ and Secretary violated two statutes regarding
timeframes for issuing recommended orders and final orders. The circuit court
held that there was substantial evidence to support the Cabinet’s conclusion that
Appellant neglected Child by putting her at risk of emotional abuse. The court also
held that the ALJ and Secretary did violate two statutes regarding the timeframe
for entering a recommended order and final order, but concluded that such error
was harmless. This appeal followed.
ANALYSIS
On appeal, Appellant argues that there was not substantial evidence to
show she abused Child and that the ALJ and Secretary violated two statutes. We
will first address the statute issue.
A court which reviews a final decision of an administrative agency
may reverse if the agency’s decision is in violation of a statute. KRS
13B.150(2)(a); Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). Here, the two statutes which the Cabinet violated are KRS 13B.110(1) and
KRS 13B.120(4). KRS 13B.110(1) states that an ALJ “shall” submit to the agency
head a recommended order “no later than sixty (60) days after receiving a copy of
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the official record of the proceeding[.]” KRS 13B.120(4) states an agency head
“shall” render a final order within 90 days after the ALJ submits a recommended
order. In this case, a final order should have been issued, at most, about 150 days
after the final day of the administrative hearing. Instead, a final order was issued
628 days after the hearing. That is an extra 478 days.
The circuit court held that while the Cabinet violated KRS 13B.110(1)
and KRS 13B.120(4), it was harmless error because Appellant ultimately received
her administrative and judicial appeals, albeit belatedly, and the circuit court found
that there was substantial evidence to support the Cabinet’s decision. We agree
that this was harmless error.
Kentucky Rules of Civil Procedure (CR) 61.01 states:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with
substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of
the parties.
KRS 446.010(39) states that when examining terms found in statutes,
“shall” means “mandatory”; however, this is not always the case. “[T]he use of the
word ‘shall’ with reference to some requirements . . . is usually indicative that it is
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mandatory, but it will not be so regarded if the legislative intention appears
otherwise.” Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884, 886 (1936).
In order to determine whether strict compliance or
substantial compliance is sufficient to satisfy a statutory
provision, it first must be determined whether the
applicable provision is mandatory or directory. This
determination is vital because “[a] proceeding not
following a mandatory provision of a statute is rendered
illegal and void, while an omission to observe or failure
to conform to a directory provision is not.” In
considering whether the provision is mandatory or
directory, we depend “not on form, but on the legislative
intent, which is to be ascertained by interpretation from
consideration of the entire act, its nature and object, and
the consequence of construction one way or the other.”
In other words, “if the directions given by the statute to
accomplish a given end are violated, but the given end is
in fact accomplished, without affecting the real merits of
the case, then the statute is to be regarded as directory
merely.”
Knox County v. Hammons, 129 S.W.3d 839, 842-43 (Ky. 2004) (citations omitted).
If a statutory provision is directory, “substantial compliance may satisfy its
provisions.” Id. at 843. Substantial compliance occurs when the purpose of a
statute is accomplished and no harm results. Webster County v. Vaughn, 365
S.W.2d 109, 111 (Ky. 1962).
Case law from this Court indicates that timeframes, such as the ones
described above, are directory and not mandatory. In Coleman v. Eastern Coal
Corp., 913 S.W.2d 800, 802 (Ky. App. 1995), Bentley v. Aero Energy, Inc., 903
S.W.2d 912, 914 (Ky. App. 1995), Hutchins v. Summa Technology/Ken-Mar, No.
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2005-CA-000127-WC, 2005 WL 1993439, at *2 (Ky. App. Aug. 19,
2005), aff’d, No. 2005-SC-0734-WC, 2006 WL 1652575 (Ky. Jun. 15, 2006), and
Morgan v. Kentucky Board of Medical Licensure, No. 2004-CA-001609-MR, 2005
WL 1792198, at *3 (Ky. App. Jul. 29, 2005), this Court held that administrative
agencies that miss statutory deadlines for issuing orders or decisions do not violate
a litigant’s procedural due process rights and substantially comply with the
directory timeframes. We conclude the same applies to this case.
Procedural due process “includes a hearing, the taking and weighing
of evidence, if such is offered, a finding of fact based upon consideration of the
evidence, the making of an order supported by substantial evidence, and, where the
party’s constitutional rights are involved, a judicial review of the administrative
action.” Kentucky Alcoholic Beverage Control Bd. v. Jacobs, 269 S.W.2d 189, 192
(Ky. 1954). Here, Appellant was afforded due process. She availed herself of
administrative and judicial review of the Cabinet’s decision, she was allowed to
present evidence at a hearing, and a decision was entered against her based on
substantial evidence. We find no error in the circuit court’s holding that the failure
to adhere to the statutory timeframe was harmless error.3
3
We are compelled to state that the delay in issuing the recommended order was unreasonably
long. We would urge hearing officers and administrative law judges to follow the statutory
deadlines as close as possible. We would also recommend that litigants before administrative
bodies make a motion or file a writ of mandamus seeking the issuance of delayed orders.
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We will now discuss Appellant’s argument that the circuit court erred
in finding that the evidence relied upon by Secretary Friedlander was substantial
evidence of a risk of emotional abuse. This Court’s standard of review for an
administrative adjudicatory decision is the clearly erroneous standard. Stallins v.
City of Madisonville, 707 S.W.2d 349, 351 (Ky. App. 1986). A decision is clearly
erroneous if it is not supported by substantial evidence. Id.
Substantial evidence is defined as evidence, taken alone
or in light of all the evidence, that has sufficient
probative value to induce conviction in the minds of
reasonable people. If there is substantial evidence to
support the agency’s findings, a court must defer to that
finding even though there is evidence to the contrary. A
court may not substitute its opinion as to the credibility
of the witnesses, the weight given the evidence, or the
inferences to be drawn from the evidence. A court’s
function in administrative matters is one of review, not
reinterpretation.
Thompson v. Kentucky Unemployment Ins. Com’n, 85 S.W.3d 621, 624 (Ky. App.
2002) (footnotes and citations omitted). “[A] reviewing court, whether it be one of
the circuit courts, the Court of Appeals, or [the Kentucky Supreme Court], should
refrain from reversing or overturning an administrative agency’s decision simply
because it does not agree with the agency’s wisdom.” Kentucky Unemployment
Ins. Com’n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d
575, 582 (Ky. 2002) (citation omitted).
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Secretary Friedlander adopted the ALJ’s recommended order in full.
The order concluded that Appellant called Child hurtful names, had unrealistic
expectations, and described Child in a derogatory manner. The order also held that
Child was at a risk of depression, self-harm, poor academic functioning, and social
withdrawal. The ALJ and Secretary believed that Appellant’s hurtful comments to
Child were emotional abuse and that Child’s continued exposure to Appellant
would result in an increased risk of emotional injury. The order concluded that the
Cabinet met its burden in proving Child was at risk for sustaining an emotional
injury due to Appellant’s hurtful name calling, both to her face and behind her
back.
This Court has reviewed the arguments presented, relevant case law,
and the entire record, including testimony from the two-day hearing. Based on the
review of the evidence, we find that the conclusions of the Secretary are based
upon substantial evidence. Tami Stone, a case manager with the Behavioral Health
Program with Necco4 in Florence, Kentucky, testified that she witnessed Appellant
state to Child that Child was lazy and ungrateful. Ms. Stone also testified that
Appellant would generally say hurtful things to Child during Ms. Stone’s home
visits; however, the record is not clear if these other general comments were said
privately to Ms. Stone or to Child in Ms. Stone’s presence.
4
Necco provides foster care, adoption, and counseling services to children and families.
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Tracy Bischoff, the Cabinet’s child permanency case worker assigned
to Child’s case, testified that she witnessed Appellant state to Child that Child was
lazy and fat. She also testified that Appellant stated that Child was “the most
annoying person she ever met”; however, it is not clear from the record whether
this was said in private to Ms. Bischoff or said to Child in front of Ms. Bischoff.
In addition, Ms. Bischoff testified that when Appellant would say hurtful things to
Child, Child would become quiet and sad.
Dr. James Rosenthal testified that he examined Child on two
occasions for one hour each. He testified that Child was guarded and did not want
to discuss her past or relationship with the Appellant and Appellant’s husband. As
part of his assessment of Child, Dr. Rosenthal also spoke to multiple other people:
Ms. Bischoff; Ms. Pat Moore, one of Child’s therapists; Rob Rosnake, another of
Child’s therapists; and Appellant. Dr. Rosenthal also examined records from
Necco, Holly Hill,5 the Cabinet, and other therapy and foster care providers who
have interacted with Child over the years. Ultimately, Dr. Rosenthal concluded
that Appellant’s statements and behavior toward Child were emotionally abusive
and put Child at and increased risk of mental and emotional problems.
Based on the testimony of Dr. Rosenthal, Ms. Bischoff, and Ms.
Stone, we hold that the circuit court did not err by finding the administrative order
5
Holly Hill provides therapy services to children.
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was based on substantial evidence. We too believe the order is based on
substantial evidence. While there was some evidence presented that Child wanted
to stay in Appellant’s home and evidence that could put the relationship between
Appellant in Child in a positive light, the Secretary, as fact finder, can choose
which evidence to believe and which to discount. It is also up to the Secretary to
weigh the evidence and determine what evidence is more credible. Our standard of
review does not allow us to question those decisions unless they are made without
substantial evidence. Such is not the case here; therefore, we affirm.
Appellant’s next argument on appeal states that the evidence relied
upon in the recommended order was all hearsay and inadmissible. We disagree.
KRS 13B.090(1) states:
In an administrative hearing, findings of fact shall be
based exclusively on the evidence on the record. The
hearing officer shall exclude evidence that is irrelevant,
immaterial, unduly repetitious, or excludable on
constitutional or statutory grounds or on the basis of
evidentiary privilege recognized in the courts of this
Commonwealth. Hearsay evidence may be admissible, if
it is the type of evidence that reasonable and prudent
persons would rely on in their daily affairs, but it shall
not be sufficient in itself to support an agency’s findings
of facts unless it would be admissible over objections in
civil actions.
It is true that hearsay evidence was introduced during the hearing;
however, it was not the only evidence relied upon by the ALJ. The ALJ’s findings
were based on the medical findings of Dr. Rosenthal and the testimony of Ms.
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Bischoff and Ms. Stone. Ms. Bischoff and Ms. Stone both testified at the hearing
regarding statements made by Appellant to Child that they believed were
inappropriate and harmful. These statements were all witnessed by Ms. Bischoff
and Ms. Stone. In addition, while some of Dr. Rosenthal’s testimony was based on
hearsay, it was corroborated by documentary evidence and testimony in the record.
Dr. Rosenthal indicated that he spoke with Child, Ms. Bischoff, Ms. Moore, Mr.
Rosnake, and Appellant. He also reviewed the therapy records of Ms. Moore and
Mr. Rosnake. Mr. Rosnake did not testify at the hearing and his records were not
introduced into evidence. Ms. Moore also did not testify at the hearing, but her
records were introduced into evidence.
We believe it was reasonable for Dr. Rosenthal to rely on the
statements and records of Mr. Rosnake and Ms. Moore even though they did not
testify at the hearing. Furthermore, because some of the evidence relied upon by
Dr. Rosenthal was introduced at the hearing, and that evidence supported Dr.
Rosenthal’s assessment, we conclude that the ALJ did not rely solely on
inadmissible hearsay evidence. In addition, during the hearing the ALJ stated that
she usually allows all hearsay evidence into the record, but does not use it as the
sole basis of her findings. In other words, the ALJ specifically recognized the
hearsay limitations set forth in KRS 13B.090(1). We find no error regarding this
hearsay issue.
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Appellant’s final argument on appeal is that Dr. Rosenthal did not
adequately explain how he formed his opinions or the methodology he used in
evaluating Child’s case. Again, we find no error.
The admissibility of expert testimony is governed
by Kentucky Rules of Evidence (KRE) 702. That rule
provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts
or data;
(2) The testimony is the product of reliable
principles and methods; and
(3) The witness has applied the principles and
methods reliably to the facts of the case.
KRE 702 was written in light of guidance set forth by the
Supreme Court in Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993). Daubert requires the trial court to play the role
of gatekeeper to prevent the admission of unreliable
pseudoscientific evidence. [A] trial court’s task in
assessing proffered expert testimony is to determine
whether the testimony both rests on a reliable foundation
and is relevant to the task at hand. . . .
...
In making its reliability determination, the trial court
must consider whether the reasoning or methodology
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underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be
applied to the facts in issue. To evaluate whether the
proffered expert testimony is reliable, a trial court may
consider a number of non-exclusive factors such as:
whether the principle, theory, or method in question can
be (and has been) tested, whether it has been subjected to
peer review and publication, whether it has a known or
potential rate of error, and whether it enjoys acceptance
within a relevant scientific community.
The decisions of trial courts as to the admissibility
of expert witness testimony under Daubert are generally
entitled to deference on appeal because trial courts are in
the best position to evaluate firsthand the proposed
evidence. Accordingly, whether a witness qualifies as an
expert is reviewed under an abuse of discretion
standard. The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.
Holbrook v. Commonwealth, 525 S.W.3d 73, 78-79 (Ky. 2017) (internal quotation
marks and citations omitted).
In the case at hand, Appellant made no KRE 702 objections regarding
Dr. Rosenthal’s opinion before or during the hearing. In addition, Appellant did
not request a Daubert hearing to determine the reliability of Dr. Rosenthal’s
testimony. In fact, Appellant stipulated to the fact that Dr. Rosenthal was a
qualified mental health expert. Finally, Appellant had the opportunity to question
Dr. Rosenthal about his methodology or retain her own expert. Appellant did
neither.
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We also believe Dr. Rosenthal did adequately explain his
methodology. He testified that he had two sessions with Child, spoke to other
witnesses and mental health treatment providers, and reviewed therapy treatment
records. Dr. Rosenthal also testified that reviewing these collateral sources is
common and part of his usual practice when conducting mental health assessments.
Dr. Rosenthal also testified that his conclusions were based on a reasonable degree
of psychological certainty. The ALJ did not abuse its discretion in allowing Dr.
Rosenthal’s expert testimony.
CONCLUSION
Based on the foregoing, we conclude that the circuit court did not err
in affirming the decision of the Secretary or the rulings made by the ALJ;
therefore, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
W. Steven Middleton Kaitlin A. Dierking
Frankfort, Kentucky Covington, Kentucky
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