COUNTY OF GUILFORD / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DHR 5443
A+ Child Development Center LLC,
Petitioner,
v.
North Carolina Department of Health and Human Services, Division of Child Development,
Respondent. / )
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This matter was heard before the Honorable J. Randall May, Administrative Law Judge, on January 25, 2010, in High Point, North Carolina.
APPEARANCES
For Petitioner:
Norman B. Smith, Esq. Lee D. Andrews, Esq.
Smith, James, Rowlett & Cohen LLP Attorney at Law
Attorneys at Law PO Box 21472
PO Box 990 Greensboro, North Carolina 27420
Greensboro, North Carolina 27402
For Respondent:
Alexandra S. Gruber
Assistant Attorney General
North Carolina Department of Justice
PO Box 629
Raleigh, North Carolina 27699-0629
APPLICABLE STATUTES AND RULES
N.C.G.S. §§ 110-85, 110-90, 110-98, 110-102.2, 110-105.2
10A N.C.A.C. 09.2206
10A N.C.A.C. 09.1716
ISSUES
Whether the Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when it revoked Petitioner’s license to operate a childcare center.
EXHIBITS ADMITTED INTO EVIDENCE
Petitioner’s Exhibits 1 and 2
Respondent’s Exhibits 1-4; 7-18
FINDINGS OF FACT
The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing; and the entire record in this proceeding. In making the findings of fact, the undersigned has weighed all the evidence, and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to: the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:
Parties/Witnesses
1. Respondent, Division of Child Development (the “Division”), is an administrative agency of North Carolina State Government operating under the laws of North Carolina and administering the licensing program for child care facilities in the State of North Carolina.
2. The Division has a mandate to ensure that children in child care facilities are in physically safe and healthy environments where the developmental needs of the children are met pursuant to N.C.G.S. § 110-85. (R. Ex. 18).
3. Deanna Hoxworth is the team supervisor for the Central Child Abuse/Neglect Team. Ms. Hoxworth has worked with the Division for seven and a half years and holds a bachelor’s degree in child and family development from the University of Charlotte. (T. p. 93-94). Ms. Hoxworth’s responsibilities as a team supervisor for the Division include supervising four (4) abuse/neglect consultants and overseeing their investigations. Ms. Hoxworth also reviews the consultants’ cases, discusses violations with them as needed, and conducts staffings of cases to determine if administrative actions are warranted. (T. p. 95).
4. Elizabeth Nichols is an abuse/neglect consultant with the Division of Child Development. Prior to coming to work for the Division, Ms. Nichols was a Child Protective Services investigator with the Forsyth County Department of Social Services. Ms. Nichols holds a bachelor’s degree in psychology and a master’s degree in child development and family relations from East Carolina University. Ms. Nichol’s responsibilities as an abuse/neglect consultant for the Division include investigating allegations of child abuse/neglect and violations of child care requirements in childcare homes and centers. (T. p. 132).
5. Jinx Kenan is the program manager for the Division of Child Development in the Child Abuse/Neglect Unit. Ms. Kenan has worked for the Division for about sixteen and a half years, serving as a child abuse/neglect consultant, child abuse/neglect team supervisor and in her current position. (T. pp. 162-63). Ms. Kenan holds a bachelor’s degree from Northwestern University and a master’s degree from Lesley College of Education. Ms. Kenan’s responsibilities as program manager include overseeing the Division’s investigations of child abuse and neglect in facilities statewide. (T. p. 163).
6. Tamara Barnes is the licensing enforcement program manager for the Division of Child Development. Ms. Barnes has worked for the Division for sixteen years and, prior to her current position, served as an abuse/neglect consultant and abuse/neglect supervisor. (T. p. 163). Before coming to work at the Division, Ms. Barnes worked at two childcare facilities, Head Start, and a resource and referral agency placing children with special needs in typically development childcare facilities. (T. pp. 163-64). Ms. Barnes’ responsibilities as licensing enforcement program manager include overseeing the administrative action and contested case processes for the Division. (T. p. 184).
7. Petitioner, A+ Child Development Center (“A+” or “Petitioner”), is licensed as a one-star childcare facility and may care for children on three (3) shifts. Petitioner’s licensed capacity is for one-hundred fifty (150) children. The licensee of A+ Child Development Center is A+ Child Development Center, LLC. (T. pp. 99-101, R. Ex. 1).
8. Although the corporate owner of Petitioner is an L.L.C., Cynthia Blackmon testified, and the undersigned finds as fact that Ms. Blackmon testified that her husband is the “owner” of A+ Child Development Center, L.L.C. (T. p. 200). Ms. Blackmon was the owner of A+ prior to her husband taking over. (T. p. 99) and director of the facility (T. p.200). Ms. Blackmon is currently the administrator of Freedom Cathedral, another childcare center, and is the manager for a third childcare facility, It Starts Here. (T. p. 100).
Background
9. The Division licenses approximately 8,800 childcare facilities in the State of North Carolina. Of those 8,800 facilities, approximately 5,000 are childcare centers. (T. p. 184).
10. In the last fiscal year, the Division issued three-hundred and twenty-five administrative actions to childcare facilities. Of those three-hundred and twenty-five actions, six were revocations of childcare centers. (T. p. 184-85).
11. Transportation of children in North Carolina can become very hazardous to the children and for that reason it is taken very seriously. (T. p. 191).
12. Administrative actions may include a “corrective action plan” or “CAP”, which is meant to assist childcare providers to achieve compliance with all applicable childcare requirements. A CAP may include training and developing policies and procedures to address areas of non-compliance. (T. pp. 108-09).
13. Under N.C.G.S. § 110-90(5), the Division has the authority to revoke a childcare license for noncompliance with the law and rules pertaining to childcare. (R. Ex. 18).
14. Under Rule 10A NCAC 09.2206, the Division may revoke a childcare license were “violation of any section of the status or rules [governing child care] has been willful, continual, or hazardous to health or safety”. (R. Ex. 18).
Prior Administrative Action History
15. Petitioner has a history of administrative actions relating to transportation issues. (T. p. 102).
16. On June 7, 2008, Respondent issued a Written Warning and levied a $250.00 civil penalty against Petitioner for leaving a child unattended on a childcare van in Petitioner’s parking lot. The Guildford County Department of Social Services (“DSS”) substantiated child neglect based upon this incident. Petitioner did not appeal the June 7, 2008 administrative action. (T. pp. 102-03, R. Ex. 2).
17. On July 10, 2008, Respondent issued Petitioner a Provisional License based upon an incident in which Petitioner’s child care van was carjacked while idling in the driveway, picking up a child, as well as Petitioner’s failure to comply with the Corrective Action Plan (“CAP”) issued with the June 7, 2008 Written Warning. Petitioner was cited by Respondent for leaving children unattended on the van while the van driver, Timothy Blackmon, went to knock on the child’s door, a violation of 10A NCAC 09.1003(g) regarding supervision of children during transportation. (T. p. 104-07, R. Ex. 3).
18. Although no children were injured in the carjacking incident, Respondent’s investigation resulted in violations being cited for: (1) the driver’s underage and unqualified son having been left in charge of the children on the van; (2) another driver who was transporting children for Petitioner having a conviction of DWI within the past three (3) years, despite Petitioner’s knowledge of the DWI conviction; (3) failure to have all of the children’s identification and emergency information available on the vehicle; (4) improper supervision of children on a vehicle; (5) violations of staff/child ratios for van staffing; (6) vehicles being in poor repair; and (7) unsafe environment. (R. Ex. 3).
19. Petitioner contested the Provisional License, and the parties entered into a settlement agreement. As a result of the Settlement Agreement, on December 31, 2009, Respondent amended the Provisional License to a Written Warning and Three-thousand dollar ($3,000.00) civil penalty. (T. p. 108, R. Ex. 4). Pursuant to the amended Corrective Action Plan included with the Written Warning, Petitioner mandated, among other things, that: (1) Petitioner “comply with child care rules regarding the transportation of children”; (2) Timothy Blackmon and Cynthia Blackmon “shall not be responsible for the day to day operation of the facility”; (3) Timothy Blackmon could not transport children enrolled at the facility or provide staff training relating to transportation of children; (4) Petitioner arrange for two (2) technical assistance visits from Respondent, and; (5) Petitioner develop a position of “Director of Transportation Services” at the facility to assist Petitioner in complying with transportation requirements. (R. Ex. 4).
20. On March 4, 2009, Respondent declared Petitioner to be in material breach of the settlement agreement resulting in the December 31, 2009 Written Warning based upon three (3) violations relating to transportation of children relating to an incident which occurred on February 5, 2009 in which two children were not properly restrained in a child care vehicle and identification and emergency information for the children being transported was not provided on the vehicle. (T. pp. 116-117). As a result of the breach, Respondent issued Petitioner an amended one-star license with the restriction, “No transportation of children allowed,” printed on it and issued an additional Corrective Action Plan which provided, among other things, “A+ Child Development Center is prohibited from providing or otherwise offering transportation services of any kind.” (T. p. 117, R. Ex. 7) (emphasis added).
Administrative Action
21. On March 12, 2009, Respondent received a complaint report alleging that staff at Montlieu Elementary school had seen Petitioner transporting children. (T. p. 138, R. Ex. 8).
22. On March 12, 2009, Elizabeth Nichols and Meg Riddle, childcare consultants for the Division of Child Development, conducted a complaint visit to Petitioner’s facility in response to the March 12, 2009 complaint report, arriving at 1:45 p.m. and remaining on the premises until 4:45 p.m. (T. pp. 138-139, R. Ex. 9). During that visit, different women began arriving at the center with groups of children, and the consultants watched the women sign the children into the facility on the “sign-in/sign-out” sheets. The consultants documented the names of the children and their arrival times. (T. pp. 138-140, R. Ex. 11). Ms. Nichols recognized the names of the women who had transported the children to the facility, Shanetta Bostic and Shakera Morgan, as current and former employees of Petitioner or other, affiliated centers. (T. pp. 141, 143-44).
23. Also at the March 12, 2009 visit, Ms. Nichols interviewed the facility director, Sue Robbins. From her conversation with Ms. Robbins, Ms. Nichols learned that A+ had arranged for transportation through Send Me/I’ll Go, a local transportation service, after A+ was no longer permitted to transport children. Ms. Robbins told Ms. Nichols that A+ had used the transportation service for at least one day after the transportation restrictions were put into place, but that on the day the service transported the children, she canceled the arrangement because she did not care for the way the service was operating. (T. pp. 141-144).
24. On March 12, 2009, Ms. Morgan transported one group of children, arriving at 2:34 p.m., and a second group of children, arriving at 2:51 p.m. (T. p. 73-75, R. Ex. 11). Ms. Morgan was working at Freedom Cathedral for whom Mrs. Blackmon was the administrator on March 12, 2009 during the hours of 1 p.m. to 8 p.m. (T. p. 50, R. Ex. 12). Ms. Morgan completed a time card for that day, but did not clock out for lunch. Ms. Morgan was transporting children for at least an hour and half on March 12, 2009. (T. p. 55, R. Ex. 12).
25. Shanetta Bostic testified, and the undersigned finds as fact that Ms. Bostic became a self-described “parent volunteer” to transport children after Sue Robbins, the Director of A+, “asked [her] if she would be available.” (T. p. 72). The undersigned also finds as fact that, on March 12, 2009, that, although Ms. Bostic was employed by It Starts Here, she was also paid to transport children for A+, at least up until the date that A+ was ordered to cease providing transportation services by Respondent. (T. pp.73-75)
26. On March 12, 2009, another A+ employee, Karen Ezekial, permitted her vehicle to be used to transport children to the facility. (T. pp. 80-83, 85).
27. Sue Robbins, the Director of A+ at the time of the March 12, 2009 visit testified, and the undersigned finds as fact, that the Petitioner attempted to find another means of transportation by contacting parents and other “volunteers” to transport children, compiled the list of “volunteers” and provided contact information for those “volunteers” to parents. (T. pp. 66, 70).
28. Petitioner, A+, arranged transportation after the order restricting transportation was issued by Respondent. (T. p. 70).
29. Petitioner, A+, and its employees allowed “volunteers” to utilize its own vehicles to transport children, in contravention of the order prohibiting the facility “from providing or otherwise offering transportation services of any kind.” (T. p. 80-83, 85. 211).
30. Petitioner understood and was aware of the restriction against arranging transportation, as evidenced by the sworn affidavits of Shakera Morgan and Shanetta Bostic, which both of whom swore under oath that they “were told by A+ that they could have no involvement in the arrangements” relating to transportation. (T. p. 193, R. Ex. 16).