Ballard v. Nebraska Dept. of Social Services

• Court: Nebraska Court of Appeals
• Writing for the Court: HANNON and MILLER-LERMAN, Judges, and WARREN; WARREN
• Citation: Ballard v. Nebraska Dept. of Social Services, 515 N.W.2d 437, 2 Neb.App. 809 (Neb. App. 1994)
• Decision Date: 19 April 1994
• Docket Number: No. A-93-292,A-93-292
• Parties: Marjorie J. BALLARD, Appellee, v. NEBRASKA DEPARTMENT OF SOCIAL SERVICES, Appellant.

Page 437

515 N.W.2d 437

2 Neb.App. 809

Marjorie J. BALLARD, Appellee, v. NEBRASKA DEPARTMENT OF SOCIAL SERVICES, Appellant.

No. A-93-292.

Court of Appeals of Nebraska.

April 19, 1994.

Syllabus by the Court.

1. Administrative Law: Judgments: Final Orders: Appeal and Error. Appeals from the judgment or final order of the district court in cases filed after July 1, 1989, are required by Neb.Rev.Stat. § 84-918 (Cum.Supp.1992) to be taken in the manner provided by law for appeals in civil cases, and the judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.

2. Appeal and Error. An appellate court will address only issues that are both assigned as error and discussed in the brief of the party alleging prejudicial error.

3. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

4. Administrative Law: Appeal and Error. When a court's review of an action taken by an administrative agency is de novo on the record, the court makes independent findings of fact without reference to those made by the agency whose action is being reviewed.

5. Administrative Law: Evidence: Appeal and Error. Where the evidence is in conflict, the court can consider and may give weight to the fact that the agency hearing examiner observed the witnesses and accepted one version of the facts rather than another.

6. Administrative Law: Licenses and Permits. When the Department of Social Services denies a caregiver's license application "for cause," such decision must be based upon reasonable grounds, as distinguished from frivolous, arbitrary, or incompetent grounds.

Don Stenberg, Atty. Gen., and Royce N. Harper, Lincoln, for appellant.

Claude E. Berreckman, Jr., of Berreckman & Berreckman, P.C., Cozad, for appellee.

HANNON and MILLER-LERMAN, Judges, and WARREN, District Judge, Retired.

WARREN, District Judge, Retired.

The Nebraska Department of Social Services (Department) appeals the Lancaster County District Court's reversal of the Department's order which denied a day-care license application. The Department had denied the day-care facility license to Marjorie J. Ballard because while she had held a previous day-care facility license she had administered nonprescription medication to children in her care in a manner which allegedly violated the Department's rules and regulations. Ballard appealed the Department's order to the Lancaster County District Court, which reversed and modified the Department's order, finding that under the Department's rules and regulations Ballard could be issued a conditional license, provided she did not administer any medication to children in her care. The Department appeals.

I. STATEMENT OF FACTS

Marjorie J. Ballard became licensed in 1985 by the Nebraska Department of Social Services to provide group day care to children of parents residing in Gothenburg and surrounding communities. Ballard's license was then renewed on April 18, 1991, and the Department conducted an investigation. The Department's investigation included checking the records of the central register for reports of child abuse and neglect. The register had no indication of any reports of child abuse or neglect by Ballard.

On October 8, 1991, the Department revoked Ballard's license by emergency order, pursuant to Neb.Rev.Stat. § 71-1915(3) (Reissue 1990). The Dawson County Attorney had filed a charge against Ballard on October 4, accusing Ballard of negligent child abuse pursuant to Neb.Rev.Stat. § 28-707(1)(a) and (3) (Reissue 1989).

The charge of child abuse arose out of an incident in July 1990, in which Ballard administered a mixture of adult-strength Tylenol, dissolved and diluted in water, to a 9-month-old infant who was placed in her care. The record reflects that the infant was brought to Ballard the evening of July 17 by a neighbor of the infant's mother. The evidence indicates that the child's mother and father had gone to Lexington to be with the infant's paternal grandfather, who had been hospitalized and was dying. The infant's mother telephoned the neighbor and told the neighbor to take the infant over to Ballard to be cared for. In a letter written to the Department, the neighbor stated that, at that time, the child had felt hot to her. During the night, Ballard noticed that the child had a fever of 102 degrees Fahrenheit. Ballard mixed five to seven adult-strength Tylenol pills in 3 to 4 ounces of water and gave the child approximately a teaspoon of the mixture. At the hearing, a pharmacist testified that the approximate strength of such a dose was 200 milligrams. Ballard testified that her family doctor had told her she could mix Tylenol in this manner to administer to children. Ballard administered approximately three-quarters of a teaspoon of the mixture to the infant the next day. The record contains a form filled out and signed by the infant's father which permitted Ballard to administer certain nonprescription medications to the infant, including children's Tylenol. The infant's parents picked up the infant at Ballard's day-care facility at 10 o'clock the next morning. They took him to a doctor, who informed the parents the infant had an ear infection. The infant again was placed in Ballard's care overnight. At some point, the parents administered additional Tylenol, which had been prescribed by the infant's doctor, to the infant. The infant died approximately 3 days after he had been originally placed at Ballard's. The charge brought against Ballard accused her of poisoning the child through an overdose of Tylenol.

Ballard was acquitted of the charge of negligent child abuse on January 7, 1992. Ballard then applied to the Department for a group day-care license. Ballard was then notified by the Department that her application for a group day-care license had been denied. Ballard appealed the Department's action under the Administrative Procedure Act's provision for contested cases, Neb.Rev.Stat. § 84-913 (Reissue 1987). A hearing was held, in part, on March 2.

On March 6, Ballard requested of the Department a grant of alternative compliance, under which she would be granted a license upon the condition that she not administer any medication of any kind to a child in her care. The Department denied Ballard's request on March 10, and the hearing on the denial of Ballard's license was resumed on March 12. The Department then issued an order denying Ballard's appeal.

The order stated that the Department found that Ballard had failed to keep an accurate record of salt tablets which were administered by parents to their own children at Ballard's day care; that Ballard had administered Tylenol to an infant in violation of Department rules, which require medications to be administered from their original containers or from a container labeled for an individual child; and that the administration of Tylenol did not meet reasonable or acceptable clinical standards, which could have been injurious to a child's health. Ballard appealed the Department's order to the Lancaster County District Court.

The district court noted that under the Department's regulation regarding alternative compliance, the Department may grant alternative compliance with its minimum regulations if the Department determines that the alternative offers equal protection to children and meets the intent of the regulation for which alternative compliance is sought. The court found that if Ballard agreed not to administer any medications, then the intent of the regulation regarding administration of medications would be met. The court found that the Department's summary refusal to grant Ballard's request for a license based on alternative compliance was not for cause. The district court reversed the Department's order and directed the Department to issue a license to Ballard with a restriction that she not be allowed to administer medications to any child in her care. The Department appealed the district court's ruling.

II. ASSIGNMENTS OF ERROR

The Department alleges the district court erred (1) when it did not find that the denial was proper based upon the Department's regulation which requires day-care providers to not engage in or have a history of behaviors so as to injure or endanger the health or morals of children; (2) when it disregarded evidence in the record which showed that Ballard had questionable judgment and a pattern of ignoring Department regulations, which was cause for denial; (3) when it considered only the regulation regarding administration of medications as reason for denial of Ballard's license; (4) when it violated the separation of powers doctrine by modifying the order of the Department; and (5) when it failed to give due deference to the Department's decision.

III. STANDARD OF REVIEW

Appeals from the judgment or final order of the district court in cases filed after July 1, 1989, are required by Neb.Rev.Stat. § 84-918 (Cum.Supp.1992) to be taken in the manner provided by law for appeals in civil cases, and the " 'judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.' " Davis v. Wright, 243 Neb. 931, 941, 503 N.W.2d 814, 820 (1993). Under such a standard of review, "an appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings." Id. at 941-42, 503 N.W.2d at 820.

IV. ANALYSIS

In its brief, the Department does not discuss its assigned error that "[t]he court erred in its decision in view of the entire record which showed questionable judgment and a pattern of ignoring regulations vital to the best...