RENDERED: MAY 14, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0732-MR

NECCO, LLC. APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE KEN M. HOWARD, JUDGE

ACTION NO. 18-CI-01172

COMMONWEALTH OF KENTUCKY, 

CABINET FOR HEALTH AND 

FAMILY SERVICES APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Necco, LLC (“Appellant”) appeals from an order of 

the Hardin Circuit Court affirming two citations issued by the Commonwealth of 

Kentucky, Cabinet for Health and Family Services (“Appellee”). Appellant argues 

that the citations were not supported by substantial evidence and that Appellant did 
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not receive the procedural due process to which it was entitled. For the reasons 

addressed below, we find no error and affirm the order of the Hardin Circuit Court.

FACTS AND PROCEDURAL HISTORY

Appellant is a child-placing agency licensed by the Commonwealth of 

Kentucky. Appellee regulates child-placing agencies in the Commonwealth. On 

March 7, 2018, Appellant placed three minor children into foster care at the home 

of Billy and Travis Embry-Martin. On May 8, 2018, one of the children, “H.P.”,

1

was taken to the emergency room at Hardin Memorial Hospital and then 

transferred to Kosair Hospital in Louisville, Kentucky with a head injury sustained 

while in the care of Billy Embry-Martin. H.P. died of the injury on May 10, 2017.2

Appellee conducted an investigation into H.P.’s death and an audit 

beginning on May 15, 2017. The audit resulted in a Statement of Deficiencies 

being issued against Appellant for three regulatory citations, namely C2761,

C3271, and C3791. Pursuant to Kentucky Revised Statutes (“KRS”) 199.670(4), 

an informal dispute resolution proceeding was conducted resulting in the citations 

being upheld. A second level informal dispute resolution proceeding was held on 

 

1 We will use the child’s initials because he was a minor.

2 Billy Embry-Martin claimed that H.P. sustained the injury when he fell off a bench in the 

kitchen. Though not part of the appellate record, we take judicial notice that Billy Embry-Martin 

was charged with murder in the death of H.P. In 2019, a Hardin County jury found him not 

guilty of the charge.
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June 7, 2018, which rescinded citation C2761 and upheld the remaining two 

citations.

Pursuant to KRS 199.670(5), Appellant appealed the Statement of 

Deficiencies to the Hardin Circuit Court. On February 4, 2020, the circuit court 

entered an order sustaining the Statement of Deficiencies. In support of the order, 

the court determined that the record contained substantial evidence sufficient to 

support the regulatory citations. As to the first citation, which alleged that Billy 

Embry-Martin failed to comply with the general supervision and direction of the 

child-placing agency directing the foster parent to maintain a safe environment, the 

court cited evidence that Mr. Embry-Martin did not provide H.P. with a safe 

environment. On the second citation, the court found substantial evidence that 

Appellant failed to provide a required exception allowing more than four children 

to be placed in the foster home. Having found substantial evidence to support the 

citations, the circuit court dismissed the appeal and remanded the matter to 

Appellee for further proceedings. As to Appellant’s arguments that the record was 

incomplete and that Appellant failed to receive procedural due process, the court 

determined that these arguments “simply do not rise to the level of impacting this 

appellate review of a regulatory agency’s notice of deficiencies to licensee.” 

Appellant’s subsequent motion to alter, amend, or vacate, and motion for a 

rehearing or new trial were denied. This appeal followed.
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ARGUMENTS AND ANALYSIS

Appellant first argues that the Hardin Circuit Court erred in finding 

that citations C3271 and C3791 were supported by substantial evidence. In its 

final order, Appellee found that Appellant violated 922 Kentucky Administrative 

Regulation (“KAR”) 1:310 § 8(4) by placing five foster children in the EmbryMartin home without obtaining an exception from the Cabinet (citation C3271). 

Appellant argues that it substantially complied with this regulatory provision 

because Appellee was aware of the composition of the Embry-Martin home, as 

well as the number of children who would be living there, before approving the 

residence. Appellant asserts that it substantially complied with 922 KAR 1:310 § 

8(4) by providing the information to Appellee, which then approved the residence.

In addressing this issue, the Hardin Circuit Court noted that its role 

was to determine if substantial evidence in the record supports the Statement of 

Deficiencies issued by Appellee. See Wasson v. Kentucky State Police, 542

S.W.3d 300, 302 (Ky. App. 2018). It found that both parties acknowledged 922 

KAR 1:310 § 8(4) requires that an exception be obtained by Appellant in order to 

place more than four children in a foster home. It further found that both parties 

acknowledged that no exception was sought or granted. The court noted that §

8(5) provides that “a child-placing agency shall follow the procedure set forth in §

6(b) of this administrative regulation” to request such an exception. (Emphasis 
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added). As compliance is mandatory, and because the parties agree there was no 

compliance, the circuit court found substantial evidence sufficient to support the 

issuance of the citation. 

We find no error in this conclusion. The record contains substantial 

evidence to support Appellee’s action, and the Hardin Circuit Court properly so 

found. Nothing in the record or the law supports the conclusion that Appellee’s 

apparent knowledge of the number of children residing at the Embry-Martin home, 

taken alone, satisfies the regulatory scheme. Rather, the “shall follow the 

procedure” language of § 8(5) is clear and unambiguous, and requires an exception 

to be issued in advance of placement. The Hardin Circuit Court properly so 

concluded, and we find no error.

As to citation C3791, Appellant asserts that the evidence supporting 

the citation does not satisfy the definition of substantial evidence recognized under 

Kentucky law. 922 KAR 1:310 § 12(17) provides that an approved foster parent 

shall “[c]omply with general supervision and direction of the child-placing agency, 

or, if applicable, the state agency that has custody of the child, concerning the care 

of the child placed by the child-placing agency.” Appellant argues that Appellee’s 

final order as to citation C3791, and the basis for sustaining that citation as found 

by the Hardin Circuit Court, was the fact that Billy Embry-Martin was charged 

with the murder of H.P., and that Billy Embry-Martin did not provide a safe 
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environment as required by the regulatory scheme. Appellant argues that though 

the death of H.P. is obviously tragic, Appellant was improperly cited for the 

failure, if any, of Billy Embry-Martin to follow the policies and training provided 

by Appellant. Appellant also contends that it provided ample proof that it trained 

Billy Embry-Martin, thus satisfying its regulatory obligation. The substance of its 

argument on this issue is that no evidence was adduced that Appellant could have 

done anything to prevent the injury and death of H.P. As such, it argues that the 

Hardin Circuit Court erred in sustaining citation C3791.

We must first note that contrary to Appellant’s assertion, the Hardin 

Circuit Court expressly stated that it did not rely on the criminal charge against 

Billy Embry-Martin, nor the outcome of that criminal proceeding, as a basis for 

sustaining Appellee’s action as to citation C3791. Rather, the circuit court found 

that Appellant “argues facts in its brief that are not contained in the record of this 

appeal. The disposition of the criminal charges against the foster parent did not 

occur during the administrative review of the Statement of Deficiencies and are 

thus not part of the appeal record.” Instead, the circuit court cited the extensive 

record resulting from the investigation which followed H.P.’s death, including the 

statements of Billy and Travis Embry-Martin, medical providers, and law 

enforcement. Those voluminous records included the Kentucky State Medical 

Examiner’s Office finding of “inflicted closed head injury” by Dr. Amy 
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Burroughs-Beckham; the Jefferson County Coroner’s Office classification of 

H.P.’s death as a “homicide”; and a detailed evaluation by Dr. Melissa L. Curry, 

medical director of Kosair Charities Division of Pediatric Forensic Medicine,

agreeing with the medical examiner’s finding of “inflicted closed head injury” and 

expressing “GRAVE concern for the safety of any young child in environment in 

which H.P.’s fatal injuries occurred[.]” (Emphasis in original.) 

The circuit court determined that the testimony and the medical record 

constituted substantial evidence to support citation C3791, i.e., that the EmbryMartins failed to provide a safe environment for H.P. As another panel of this 

Court previously noted, 

While we are sympathetic to Necco’s plight, 922 KAR

1:310 § 12(17) does not require the agency to be on 

notice. It sanctions the agency when the foster parents 

act contrary to agency policies, which the Manleys did.

This breach by the Manleys was corroborated by several 

witness statements and admissions by the Manleys 

themselves. Therefore, we must affirm the circuit court’s 

ruling regarding Citation C3791.

Necco, LLC v. Cabinet for Health and Family Services, No. 2018-CA-0103-MR, 

2020 WL 2611148, 3 (Ky. App. May 22, 2020). We find no error.

Lastly, Appellant argues that the Hardin Circuit Court erred in finding 

that Appellant was afforded procedural due process. It asserts that a deprivation of 

its right to due process occurred because it was not allowed to confront or crossexamine any witnesses that were interviewed by Appellee.
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The circuit court summarily dismissed Appellant’s argument on this 

issue. We will note, however, that the statutory scheme addressing dispute 

resolution between a child-placing agency and Appellee is expressly held to be 

“informal,” KRS 199.670, and the record reveals that Appellant received each 

element of the statutory process. Appellant requested informal dispute resolution, 

specified the deficiencies in dispute, and provided supportive documentation. 

Additionally, Appellant met with the Secretary’s designee pursuant to KRS 

199.670(4)(b)(2), was given notice of both informal dispute resolution 

proceedings, and had counsel present at these proceedings. We find no basis for 

concluding that Appellant was denied procedural due process.

CONCLUSION

The Hardin Circuit Court properly concluded that citations C3271 and 

C3791 were supported by substantial evidence of record and that Appellant was 

not denied procedural due process. Accordingly, we affirm the order of the Hardin 

Circuit Court.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

David F. Broderick

Brandon T. Murley

Bowling Green, Kentucky

BRIEF FOR APPELLEE:

Lucas Roberts

Cabinet for Health and Family 

Services

Frankfort, Kentucky