Atkinson v. Ind. Family & Social Serv. Admin.

• Decision Date: 05 July 2011
• Docket Number: No. 49A02-1101-PL-28,49A02-1101-PL-28
• Parties: KATHY ATKINSON, Appellant-Petitioner, v. INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, Appellee-Respondent.
• Court: Indiana Appellate Court

KATHY ATKINSON, Appellant-Petitioner,

v.INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, Appellee-Respondent.

No. 49A02-1101-PL-28

COURT OF APPEALS OF INDIANA

July 5, 2011

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

APPELLANT PRO SE:

KATHY ATKINSON

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ELIZABETH ROGERS

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Timothy W. Oakes, Judge

Cause No. 49D13-0907-PL-34111

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant-Petitioner Kathy Atkinson appeals the trial court's decision on judicial review affirming the State of Indiana Family and Social Services Administration's ("FSSA") determination that she owed the agency $4956.00 due to overpayment of food stamp benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

Atkinson's household was certified to receive food stamps for the period beginning June 1, 2001, and ending April 30, 2008, by the Marion County Department of Family Resources ("DFR"). In December of 2006, the FSSA-DFR Program Integrity Section conducted an audit of Atkinson's case, during which it discovered that Atkinson owned a certificate of deposit ("CD") that she had previously failed to report. FSSA determined that Atkinson opened the CD on or before September 9, 1996, and that its value as of September 1, 2006, was $4305.31. On April 18, 2008, FSSA requested that Atkinson submit information verifying the value of the CD for each month during the period that she was certified to receive food stamps. Atkinson failed to submit the requested information.

On August 6 and August 7, 2008, FSSA notified Atkinson that "there was an over issuance of $1843.00, $1062.00 and $2051.00 ($4956.00) in Food Stamp benefits during the period from June 1, 2001 through April 30, 2008 for the reason: Incorrect resources used to determine eligibility and failure to report all or some resources." Appellee's App. p. 103. On September 10, 2008, Atkinson requested an administrative review of the determination that she received overpayment of $4956.00 in food stamp benefits. An administrative law judge ("ALJ") conducted a hearing on May 13, 2009, and upheld FSSA's determination regardingAtkinson's recovery of the overpayment of food stamp benefits. Per Atkinson's request, the FSSA conducted an agency review of the ALJ's decision. On June 18, 2009, FSSA issued a "Notice of Final Agency Action" affirming the ALJ's decision. Appellee's App. p. 119.

On July 21, 2009, Atkinson filed a verified petition for judicial review in the Marion Superior Court challenging the FSSA's determination that she received an overpayment of food stamp benefits. The trial court entered judgment affirming FSSA's determination on October 5, 2010. Atkinson subsequently filed a motion to correct error, which the trial court granted on October 27, 2010. Following a hearing on November 1, 2010, the trial court instructed the parties to submit proposed findings of fact and conclusions thereon. On December 20, 2010, the trial court approved FSSA's proposed findings of fact and conclusions of law and affirmed FSSA's determination that Atkinson received overpayment of $4956.00 in food stamp benefits. This pro se appeal follows.

DISCUSSION AND DECISION

I. Waiver

An appellant who proceeds pro se is "held to the same established rules of procedure that a trained legal counsel is bound to follow and, therefore, must be prepared to accept the consequences of his or her action." Ramsey v. Review Bd. of Indiana Dep't of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (quotation marks omitted). While we prefer to decide cases on their merits, we will deem alleged errors waived where an appellant's noncompliance with the rules of appellate procedure is so substantial it impedes our appellate consideration of the errors. Id. The purpose of our appellate rules, especially Indiana Appellate Rule 46, is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case. Id.

Indiana Appellate Rule 46(A)(8)(a) states that the argument section of an appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supportedby citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on...." It is well settled that we will not consider an appellant's assertion on appeal when he has not presented cogent argument supported by authority and references to the record as required by the rules. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999). Additionally, „"[w]e will not become an advocate for a party, nor will we address arguments which are either inappropriate, too poorly developed or improperly expressed to be understood.'" Ramsey, 789 N.E.2d at 486 (quoting Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind.Ct.App.1985), trans. denied).

Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).

We observe that Atkinson, who is appearing before this court pro se, raises a number of contentions in the "Statement of Issues" section of her brief that she fails to subsequently develop.¹ These contentions are not subsequently discussed in the argument section² of Atkinson's brief and are not supported by cogent argument, citations to relevant authority, or references to the record. Upon review, we will not become an advocate for Atkinson, and we will not consider any unsupported contentions raised by Atkinson. See Ind. Appellate Rule 46(A)(8)(a); Thacker, 797 N.E.2d at 345. Thus, to the extent that Atkinson raises contentions in the "Statement of Issues" section of her brief but later fails to develop the contentions with cogent argument, we conclude that the unsupported contentions are too poorly developed to be understood. As a result, Atkinson has waived these contentions onappeal. See id. (providing that pro se Appellant waived his argument on appeal because his assertions were too poorly developed to be understood).

II. Whether Atkinson had Access to the CD

We turn our attention to Atkinson's surviving claim. Atkinson contends that the trial court erroneously affirmed FSSA's determination that she received an overpayment of food stamp benefits as a result of her failure to disclose certain accessible funds. Specifically, Atkinson claims that the trial court erroneously affirmed FSSA's determination that she had access to the CD.

When reviewing the decision of an administrative agency, this court stands in the same position as the trial court. Taylor v. Ind. Family & Soc. Servs. Admin., 699 N.E.2d 1186, 1189 (Ind. Ct. App. 1998). We review the record in the light most favorable to the administrative proceeding. U.S. Outdoor Adver. Co., Inc. v. Ind. Dept. of Transp., 714 N.E.2d 1244, 1251 (Ind. Ct. App. 1999). Moreover, we may not retry the facts or substitute our judgment on factual matters for that of the agency, Taylor, 699 N.E.2d at 1189, and will grant relief only if we determine that the person seeking judicial relief has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind. State Bd. of Health Facility Adm'rs v. Werner, 841 N.E.2d 1196, 1206 (Ind. Ct. App. 2006), clarified on reh'g, 846 N.E.2d 669 (Ind. Ct. App. 2006) (citing Ind. Code § 4-21.5-5-14(d)).

A decision is arbitrary and capricious if it is made without any consideration of the facts and lacks any basis that may lead a reasonable person to make the same decision made by the administrative agency. Id. A decision may also be arbitrary and capricious where only speculation furnishes the basis for a decision. Id. Simply said, an agency decision is arbitrary and capricious where there is no reasonable basis for the decision. Id. at 1207. The burden of demonstrating the invalidity of agency action is on the party seeking judicial review. Id. at 1206 (citing Ind. Code § 4-21.5-5-14(a)).

A. Federal Food Stamp Program

The Food Stamp Program is a federal program that was developed to raise the levels of nutrition among low income households. 7 U.S.C. § 2011, et seq. This program is administered and funded by the federal government in conjunction with the participating states. Id.; 7 C.F.R. § 271.1, et. seq. Indiana has elected to participate in the Food Stamp Program. See Ind. Code § 12-13-7-2; 470 IAC § 6-0.5-1. FSSA's Division of Family Resources administers the program and enforces the program regulations promulgated by the State. Ind. Code § 12-13-7-2.

A household's eligibility to participate in the Food Stamp Program is determined by calculating the income and resources available to the household. 7 U.S.C. § 2014. The basic eligibility standards are detailed in 7 C.F.R. §§ 273.8-273.10. In order to insure thathouseholds meet these standards, a participating household is required to periodically provide information to the State administrator of the Food Stamp Program. A household's benefits may be terminated or its application for benefits may be denied if its members do not cooperate in providing verification of income, resources, or other eligibility documentation. See 7 U.S.C. § 2015(c); 7 C.F.R. § 273.2(d)(1).

In the instant matter, the FSSA-DFR Program Integrity Section conducted an audit of Atkinson's case in December of 2006, during which it discovered that Atkinson owned a CD that she had previously failed to report. FSSA...