Givens v. Commonwealth

359 S.W.3d 454, 2011 Ky. App. LEXIS 266, 2011 WL 2120188
CourtCourt of Appeals of Kentucky
DecidedApril 8, 2011
DocketNo. 2010-CA-000280-MR
StatusPublished
Cited by5 cases

This text of 359 S.W.3d 454 (Givens v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Givens v. Commonwealth, 359 S.W.3d 454, 2011 Ky. App. LEXIS 266, 2011 WL 2120188 (Ky. Ct. App. 2011).

Opinion

OPINION

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 Statute (KRS) 600.020(l)(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]f2]
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 approxi[457]*457mately 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 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 noncompliance. 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 noncompliance 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.
[458]*4589. C.B. was removed from Ms. Givens[’] home after her release from the hospital. Ms. Givens expressed remorse 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. Givensf] 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
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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.

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359 S.W.3d 454, 2011 Ky. App. LEXIS 266, 2011 WL 2120188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/givens-v-commonwealth-kyctapp-2011.