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Arkansas Department of Human Services v Pope

Case No. CV-12-1125 (AR Ct. App., Jun. 26, 2013)

RM, a mentally impaired adult under the care of Brenda Pope, a certified caregiver, sexually abused a child. The Department of Human Services Division of Adult Protective Services (DHS) found that allegations of caregiver neglect by Brenda were founded. She appealed and a DHS administrative law judge upheld the true finding of maltreatment of RM. As a consequence, Brenda’s name was placed on the Adult Abuse Registry. Brenda then appealed to the Pulaski County Circuit Court, which reversed and dismissed the DHS finding, concluding that it was not supported by substantial evidence and was arbitrary, capricious, and/or characterized by abuse of discretion. The trial court ordered DHS to remove Brenda’s name from any lists that it maintained. DHS now appeals, contending that the trial court erred 1) in finding that there was not substantial evidence to support DHS’s finding of negligent supervision of RM and 2) in finding that DHS abused its discretion in finding negligent supervision of RM. Agency decisions, rather than circuit court decisions, are reviewed by our court on appeal. Arkansas Dep’t of Human Servs. v. Koprovic, 2012 Ark. App. 645. We reverse the agency’s decision and affirm the circuit court’s order.





I. Background



Brenda retired after working at a DHS human-development center for twentyeight years. She has an associate degree in health care and nursing-home administration, and she never had any employment or disciplinary problems. Brenda had also earlier served as a respite caregiver for RM. For these reasons, she was contacted by Independent Care Management (ICM) in March 2009 after an incident in his previous placement. At the time RM came to live at the Popes’ home, he had been removed from an earlier placement because he had sexually abused a four-year-old child.

RM was placed in the Popes’ home where Brenda and her husband, Eddie, were certified caregivers under the Medicaid-waiver program. At the time of his placement in their home, it is undisputed that Brenda told the contract supervisor, ICM, that she could not provide a child-free environment for RM because she frequently had children visiting their home. She acknowledged that she was aware of the abuse incident that caused RM’s relocation to their home and that she had been advised that “he was never to be left alone around children at any time.”
 

 

Judge(s): David M. Glover
Jurisdiction: Arkansas Court of Appeals
Related Categories: Health Care
 
Trial Court Judge(s)
Jay Moody

 
Court of Appeals Judge(s)
Waymond Brown
David Glover
Rita Gruber
Brandon Harrison
Larry Vaught
Phillip Whiteaker

 
Appellant Lawyer(s) Appellant Law Firm(s)
Tabitha McNulty

 
Appellee Lawyer(s) Appellee Law Firm(s)
Bruce Tidwell Friday Eldredge & Clark

 

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Click the maroon box above for a formatted PDF of the decision.
misplaced in this case. the issue presented is not whether the arkansas department of the trial court. ark. dep’t of human servs. v. koprovic, 2012 ark. app. 645, at 6. and it is (5) not supported by substantial evidence of record; or [no. cv-12-1095] served as a respite caregiver for rm. for these reasons, she was contacted by independent children; that she also works with senior citizens; and that if her name remained on the situation where the impaired person was not harmed. although an agency’s interpretation request to go into r.m.’s room when pope was in the living room with visitors; she the process of buying brenda and eddie’s house. according to brenda, she turned the result of the sexual-abuse incident and that pope’s supervision was not reasonable, i would human servs. v. koprovic, 2012 ark. app. 645. we reverse the agency’s decision and medical services to an endangered person or an impaired person[.] the time rm came to live at the popes’ home, he had been removed from an earlier establish an abuse of discretion, it must be shown that the agency’s discretion was supervision statute under these circumstances was arbitrary, capricious, and an abuse of divisions i & iv discretion. we therefore reverse the agency’s decision and affirm the circuit court’s (3) made upon unlawful procedure; ark. 291, 299, 925 s.w.2d 404, 409 (1996); fontana v. gunter, 11 ark. app. 214, 215, an impaired person, to be in the position to act out a known propensity for abuse. as a eddie testified that he was the actual designated caregiver on the day of the statute relied upon by dhs. moreover, we conclude that applying this negligent- administrative law judge (alj) concluded that “there was a preponderance of the evidence negligently, or unreasonably, can be quickly summarized. icm came to brenda in an in sum, the alj found that pope negligently supervised r.m. by permitting him, required her goddaughter to sit in the doorway of r.m.’s room, about eight feet away 8 lap, and rm was standing beside the bed. brenda testified that the amount of time that she was aware of r.m.’s 2009 sexual contact with a four-year-old minor, that she was david m. glover, judge app. 222, 197 s.w.3d 33 (2004). we hold that there was not substantial evidence to not provide a child-free environment for rm because she frequently had children visiting ii. standard of review 7 forbidden to be around kids; that in the medicaid-waiver program, they want to allow a denied it at first but then “admitted to what he had done.” brenda attempted at once to cite as 2013 ark. app. 429 minutes when he was left alone in his bedroom with a child, and in that time period r.m. several persons about the incident. servs., inc. v. ark. health servs. comm’n, 69 ark. app. 313, 320, 12 s.w.3d 656, 661 between last observing the child in the doorway and realizing that she had moved was “a conclusions of law. furthermore, it is a decision supported by substantial evidence. (2000). tabitha mcnulty, for appellant. brenda that the child had reported that rm had touched her “privates.” code ann. § 25-15-212(h). arkansas code annotated section 25-15-212(h) more fully support the agency’s decision that brenda negligently supervised rm, especially where it honorable jay moody, judge mind that this case is about r.m. and whether pope neglected him pursuant to the adult 4 10 accordingly, i dissent. improvidently exercised, i.e., exercised thoughtlessly and without due consideration. 669 s.w.2d 487, 488 (1984); see also ark. code ann. § 25-15-212(h)(5), (6) (repl. 2002). from pope; and while visiting with company, pope was also watching the child. she pope insists that other evidence in this case establishes that she was supervising were at least three other adults in the house at the time. while it is unclear whether the incident. to show that pope neglected r.m. by failing to provide the necessary supervision to substantial evidence of record to support it and it is not arbitrary, capricious, or result, r.m. was harmed. he was incarcerated and then reassigned to a more restrictive rm. it is undisputed that icm accepted her situation and placed rm in the popes’ home child on one side of the bed at the foot and rm standing on the other side just a little way conversation that her husband was having with the buyers. further, her husband went than brenda, it was not dhs that failed to exercise good judgment in placing rm—a our review of an administrative-agency decision is governed by the administrative opinion delivered june 26, 2013 the circumstances under which the agency determined that brenda had acted caregiver, sexually abused a child. the department of human services division of adult but at approximately 11:00 that night, she got a call from the child’s mother, who told i. background whether the evidence would have supported a contrary finding but whether it supported v. affirm the decision and reverse the trial court. therefore, i dissent. procedure act (ark. code ann. §§ 25–15–201 to –219 (repl. 2002 & supp. 2011)). 5 3 is an entirely different question. negligence, generally, is defined as the failure to do cite as 2013 ark. app. 429 cite as 2013 ark. app. 429 brenda occurred in june 2010, approximately fifteen months after rm came to live with television off; the child became upset and persisted in wanting to go to rm’s room; and inferences, conclusions, or decisions are: appeal from the pulaski rm, a mentally impaired adult under the care of brenda pope, a certified founded. she appealed and a dhs administrative law judge upheld the true finding of evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind and she never had any employment or disciplinary problems. brenda had also earlier no evidence in this case that the alj exercised its discretion improvidently or without due conjecture. id. to establish a lack of substantial evidence, an appellant is required to because he had in fact already been removed once from another home under this program way around, in our opinion dhs had to stretch the statute beyond its bounds to find that reasonably careful person would not do. see, e.g., sammons v. seeco, inc., 2012 ark. cite as 2013 ark. app. 429 moreover, as explained by clara palmer, the purpose of the medicaid-waiver affirmed would be guilty of neglect under the rigorous standard dhs is attempting to impose.” cite as 2013 ark. app. 429 contact her icm supervisor, but could not reach her; she then contacted the area manager protective services (dhs) found that allegations of caregiver neglect by brenda were months, without incident. brenda was at the end of a hallway, eight feet away from the dhs abused its discretion in finding negligent supervision of rm. agency decisions, dismissed the dhs finding, concluding that it was not supported by substantial evidence gruber, j., joins. contends that she looked away only for a couple of minutes. she argues, “if losing sight of further proceedings. it may reverse or modify the decision if the substantial rights cite as 2013 ark. app. 429 incarceration and reassignment to a more restrictive setting following the incident. are arbitrary, capricious, or characterized by an abuse of discretion. olsten, supra; ark. appellant to surmount. and it should be. however, that does not mean that our review is affirm the circuit court’s order. fair-minded persons could not reach the same conclusion. id. the question is not goddaughter had come home with them after church. she had been in their home around review that it was the child, not rm, who was harmed. thus, this case is presented to us parents, and other children in rm’s presence. on the day of the incident, their decision is faulty and is not supported by substantial evidence. rather, it is clear from our was not sitting in the doorway, and she walked into rm’s bedroom where she found the something that a reasonably careful person would do, or the doing of something that a because substantial evidence supports the alj’s decision that r.m. was neglected as a appeals, contending that the trial court erred 1) in finding that there was not substantial (2) in excess of the agency’s statutory authority; gruber and vaught, jj., dissent. provided activities for her there, and both rm and the child were in her view. there app. 650, ___s.w.3d___. neglect is defined in pertinent part in arkansas code world” should be providing their children. rather, this case is about the amount of i would further hold that the alj’s finding was not an abuse of its discretion. to the incident in the popes’ home that formed the basis for the allegations against 9 third division cite as 2013 ark. app. 429 11 and that a normal setting involves children from time to time, with supervision. although it is undeniable that rm was not so closely supervised as to prevent him the facts and circumstances of the case. id. appellant rm had been harmed under these circumstances. the harm to rm asserted by dhs was multiple witnesses. the alj’s final order is five-and-a-half pages long, and it includes larry d. vaught, judge, dissenting. the majority opinion’s focus is from harming the child who was visiting the popes’ home, whether that amounts to an eye on the child. brenda got an art pad and some markers for the child. rm was however, this case is not about what amount of supervision “every parent in the was harmed, i.e., “incarcerated,” by brenda’s “negligent supervision,” resulting in her human services olsten health servs., inc. v. arkansas health servs. comm’n, 69 ark. app. 313, 12 s.w.3d on cross-examination, she explained that from where she was standing in the rm was placed in the popes’ home where brenda and her husband, eddie, were certified caregivers under the medicaid-waiver program. at the time of his placement in relocation to their home and that she had been advised that “he was never to be left alone support the alj’s decision and force the mind to pass beyond conjecture. olsten health emergency-type situation to obtain a new placement for rm, who everyone involved characterized by an abuse of discretion. files v. ark. state highway & transp. dep’t, 325 adult abuse registry, she would not be able to engage in those activities anymore. sexually abused the child. these undisputed facts constitute substantial evidence supporting their home. she acknowledged that she was aware of the abuse incident that caused rm’s maltreatment act (ark. code ann. §§ 12–12–1701 to –1722 (repl. 2009 & supp. 2011)) protection of the impaired person. here, that person would be rm. annotated section 12-12-1703(15)(b) as: final order credits the time span of “two minutes,” it is undeniable that the little girl was placement on an adult abuse registry. we conclude that this basic premise of the dhs brenda told her that she had to sit in the doorway of his room, which was approximately cite as 2013 ark. app. 429 necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or (emphasis added.) the act and, in particular this statute, is clearly designed for the cite as 2013 ark. app. 429 (1) in violation of constitutional or statutory provisions; popes’ home, which was undisputedly not child free. it begs the question to ask if, rather county circuit court, live in the least restrictive setting possible. here, dhs was on notice of rm’s problems open doorway to rm’s room, having instructed the child to sit in the doorway and the alj’s decision that pope negligently supervised r.m. in other words, these undisputed similar child abuse. because it is the impaired person who abused a child, not the other times in the presence of children, she did not supervise r.m. for a period of at least two we fully recognize that the standard of review in these cases is difficult for an the facts relied on by pope to be true, it still found that she was negligent in her mean anything other than what it says. arkansas dep’t of human servs. v. parker, 88 ark. their home, it is undisputed that brenda told the contract supervisor, icm, that she could no. cv-12-1125 harrison, whiteaker, and brown, jj., agree. morning, and she contacted the sheriff’s office. brenda was subsequently interviewed by human services (dhs) was negligent in placing r.m. with the popes. and while pope’s undisputed that brenda told them she could not provide a child-free environment for supervision pope was required to provide r.m. and despite the fact that the alj assumed petitioner have been prejudiced because the administrative findings, inferences, setting. the undisputed and substantial evidence supports the alj’s conclusion. from the end of the bed. the child was on the floor on her knees with the art pad in her brenda pope ordered dhs to remove brenda’s name from any lists that it maintained. dhs now the court may affirm the decision of the agency or remand the case for cite as 2013 ark. app. 429 as arbitrary and capricious where it is not supportable on any rational basis. to have an order. into rm’s bedroom three times during this time frame to get paperwork out of a file the child, unsupervised, in a fashion that constitutes negligence, especially under the that he was “incarcerated” as a result of brenda’s maltreatment/negligent supervision of supervision cited by the alj was the actual sexual abuse r.m. perpetrated against pope’s citations to documentary evidence and statutory authority, multiple findings of fact, and goddaughter is undoubtedly and unfortunately a victim in this scenario, we must keep in cite as 2013 ark. app. 429 and long-term care facility resident maltreatment act. on that issue, the registry. brenda then appealed to the pulaski county circuit court, which reversed and rather than circuit court decisions, are reviewed by our court on appeal. arkansas dep’t of iii. discussion couple of minutes maybe.” at that point, brenda “had no clue” anything had happened, brenda immediately went to rm’s room and asked him what happened. he sexually abused. the alj’s finding of negligence was primarily based on pope’s testimony admitting program is to allow the impaired person to exist in the most normal setting possible, i.e., to eight feet down the hallway from where brenda then positioned herself so she could keep consideration. to the contrary, the alj held a hearing and accepted testimony from supervision of r.m. based on the undisputed evidence that she knew of r.m.’s proclivity eight years. she has an associate degree in health care and nursing-home administration, rm would always require supervision around children; that she never knew he was a child for a period of two (2) minutes could be deemed neglect, every parent in the world of the petitioner have been prejudiced because the administrative findings, placement because he had sexually abused a four-year-old child. for abusing a child. yet, dhs, with this knowledge, persisted in placing him in the the agency’s decision and whether it is arbitrary or capricious. olsten, supra. substantial 656 (2000). we may reverse or modify an agency decision if the substantial rights of the with a tortured application of a statute that is designed to protect the impaired person in a appellee told by icm that r.m. was to “never be left alone with children at any time,” and that friday, eldredge & clark, by: bruce b. tidwell, for appellee. we review the entire record to determine whether there is substantial evidence to support (4) affected by other error or law; arkansas court of appeals knew had been removed from his old placement because he had abused a child. it is brenda testified that she works with different programs in her church involving first or the second placement. brenda retired after working at a dhs human-development center for twenty- 13 him. put another way, however, rm was simply reassigned to a more restrictive setting meaningless. the dhs decision we are reviewing is based on a determination that rm well settled that we must affirm the decision of an administrative agency if there is who worked with rm in the afternoons. the icm supervisor was notified the next administrative action set aside on this basis, the party challenging the action must prove conclusions, or decisions are, inter alia, not supported by substantial evidence of record or clara palmer (who worked at se arkansas hdc for almost 30 years) testified that to engage in sexual misconduct with children, she knew r.m. had to be supervised at all evidence to support dhs’s finding of negligent supervision of rm and 2) in finding that around children at any time.” negligent supervision of him under the adult and long-term care facility resident endangered person or an impaired person constituting: (i) negligently failing to provide rm numerous times before. also at the home that afternoon was a couple who was in provides: facts constitute valid, legal, and persuasive evidence that a reasonable mind might accept to because the purpose of the medicaid-waiver program did not work for him in either the 12 the finding that was actually made. id. the evidence is given its strongest probative force and was arbitrary, capricious, and/or characterized by abuse of discretion. the trial court maltreatment of rm. as a consequence, brenda’s name was placed on the adult abuse in favor of the administrative agency’s ruling. id. administrative action may be regarded r.m., an impaired person.” our review is of the administrative decision and not that of was a third party, and not rm, who was actually harmed. rm was not “left alone” with r.m. at the time of the incident. she cites evidence that she denied her goddaughter’s care management (icm) in march 2009 after an incident in his previous placement. at him in many church activities, and entertained their five-year-old goddaughter, her disbelieve any witness and also to decide what weight to accord the evidence. id. there is around children at any time. rm had been incorporated into the popes’ home for fifteen arkansas department of person like rm the most normal setting—to live in the least restrictive setting possible; her goddaughter was alone in a room with r.m. further evidence of negligent (6) arbitrary, capricious, or characterized by abuse of discretion. sitting on his bed playing games on his laptop. at some point, brenda noticed the child that it was a willful and unreasoning action, without consideration, and with disregard of cite as 2013 ark. app. 429 an act or omission by a caregiver responsible for the care and supervision of an hallway, she “had a view of rm” and the child in the doorway as she was listening to the 2 cabinet, and she also made trips down the hall to “peek in.” demonstrate that the proof before the administrative tribunal was so nearly undisputed that koprovic, 2012 ark. app. 645, at 7. it is the prerogative of the agency to believe or them. during this period, brenda and eddie had vacationed with rm in florida, engaged of a statute is highly persuasive, if the statute is not ambiguous, we will not interpret it to 6 anyway. it is undisputed that brenda knew she was instructed never to leave rm alone might accept as adequate to support a conclusion and force the mind to pass beyond second time—in a “least restrictive setting,” after his first such placement resulted in five-year-old goddaughter while she was alone with him in his room and r.m.’s cite as 2013 ark. app. 429


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