STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 02 DHR 0070

BETTY CARR, )

Petitioner, )

)

v. )

) DECISION

DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DIVISION OF )

FACILITY SERVICES, )

Respondent. )

This contested case was heard before Julian Mann, III, Chief Administrative Law Judge, on May 6, 2002, in Charlotte, North Carolina. The record in this contested case was held open to give Petitioner the opportunity to file a medical affidavit to assist the trier of facts to resolve a credibility issue. Ample opportunity was given to Petitioner to file such an affidavit but Petitioner has failed to do so and the record closed by Order of August 17, 2002.

APPEARANCES

For Petitioner: Tracy L. Gaston, Attorney at Law

1410-9 Green Oaks Lane

Charlotte, North Carolina 28205

For Respondent: Jane L. Oliver, Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

Whether Respondent acted erroneously, failed to act as required by law, or substantially prejudiced Petitioner’s rights when it determined that, on or about June 29, 2001, Petitioner, a health care personnel, neglected S.C. and H.N., residents of a therapeutic foster home, a health care facility in Charlotte, North Carolina, by leaving the residents unattended and locked out of the facility because Ms. Carr did not return home on time.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. 131E-256

N.C. Gen. Stat. 150B-23

42 CFR 488.301

10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence:

Respondent’s Exhibits 1, 3, 6, 7 and 8.

Based upon the preponderance of the admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner was employed as a therapeutic foster parent by the Family Group in Charlotte, North Carolina at all times relevant to this matter. At the time of the incident at issue in this case, Petitioner had been a licensed therapeutic foster parent for approximately five years. As a condition of licensure, Petitioner agreed to comply with all rules regulating therapeutic foster care. Petitioner knew that licensure rules provide that a minimum of one therapeutic foster parent must be present with clients at all times. (T pp 10-12, 26, 39, 140)

2. As a licensed provider of therapeutic foster care, Petitioner operated a “residential facility,” as that term is defined in N.C. Gen. Stat. 122C-3(14)(e). As such, Petitioner’s therapeutic foster facility is a “health care facility” as defined by N.C. Gen. Stat. 131E-256(b)(8). (T pp 10-11)

3. In June 2001, Petitioner was the therapeutic foster parent for two adolescent clients, H.N. and S.C. H.N. was fifteen years old and was in the ninth grade; S.C., was fifteen and in the eighth grade. S.C. had an infant daughter who lived with her at the facility. In June 2001, S.C.’s daughter was five and one-half months. Each of the clients, H.N. and S.C., had an individualized treatment plan which the therapeutic foster parent was responsible for implementing. Both H.N. and S.C. were diagnosed as having oppositional defiant disorder. S.C. had a history of running away. (T pp 10, 13-15, 119)

4. At the time of the hearing, Petitioner was unable to state the diagnoses for either of the clients who had been in her care and was unable to fully state the specific problems or treatment goals that she, as the therapeutic foster parent, was supposed to work on with each of the clients. ( T pp 14-17)

5. On June 28, 2001, S.C.’s mother called Petitioner to arrange to take S.C. to an appointment at the Department of Social Services the next day. S.C.’s mother told Petitioner that she would bring S.C. back sometime around noon that day. S.C. had a doctor’s appointment that afternoon but S.C.’s mother could not take her so an arrangement was made to have a taxicab pick S.C. up at 12:30 p.m. to take her to her appointment. On the morning of June 29, 2001, S.C.’s mother called to let S.C. know that she should be ready at approximately 9:25 a.m. At that time, Petitioner said that she was going to go to the doctor. The night before Petitioner had said that she planned to get her hair done the next day. H.N. also left to go visit her grandmother in the hospital that morning. H.N.’s mother picked her up and she left the house before S.C. When S.C.’s mother arrived to pick up S.C. and the baby, Petitioner told S.C.’s mother that she would be home around 12:00. That way, S.C. would have time to eat lunch and fix some bottles for the baby. (T pp 52-54, 59, 74, 80-81, 83, 89, 130-33)

6. While S.C. was out with her mother, a family emergency came up and S.C.’s mother took her back to Petitioner’s house at approximately 11:30 a.m. S.C. and her mother tried to call Petitioner to let her know they were coming but Petitioner was not at home. They also left a message on Petitioner’s answer machine at the house and tried Petitioner’s cell phone. When they arrived at Petitioner’s house, the house was locked and Petitioner was not there. S.C. rang the doorbell several times but no one answered. S.C., who did not have a key, was not able to get into the house. S.C.’s mother waited with her for about ten minutes. S.C. decided she could wait outside until 12:00 when Petitioner had said she would be getting back. Petitioner did not return to the house. S.C. continued to wait outside with her baby. She testified that it was extremely hot outside and that her baby began to get hot, fussy and aggravated. S.C. took the baby’s clothes off because they were soaked. (T pp 53-54, 57-58, 70-71, 74)

7. At approximately 12:40 p.m., the taxi came to pick up S.C. to go to her doctor’s appointment. While at the doctor’s office, S.C. called Petitioner. Again, she left a message because there was no answer at Petitioner’s home. S.C. returned to the foster home at approximately 3:45 p.m. When she arrived, H.N. was there with her mother. Because it was so hot, H.N.’s mother stayed to wait with H.N. They were sitting in H.N.’s mother’s car in the driveway. H.N. had tried to call Petitioner’s husband on his cell phone but did not get an answer. The clients tried all the doors and found them locked. S.C. gave H.N.’s mother Petitioner’s cell phone number. H.N.’s mother tried to call Petitioner but did not get an answer. H.N. and S.C. waited in the car for thirty to forty-five minutes. (T pp 53-54, 56, 58, 65, 75, 81-82)

8. Cyteria Knight, who was H.N.’s social worker, had decided to make an unplanned visit to check on H.N. that afternoon. Between 3:30 and 4:00 p.m., Ms. Knight telephoned Petitioner to let her know she would be coming over but Petitioner did not answer the phone. Ms. Knight left a message on the answering machine in case Petitioner came in. When Ms. Knight arrived at Petitioner’s home, she found S.C., H.N. and H.N.’s mother waiting in the driveway. They said they had been waiting for approximately one hour. H.N. said that she had tried to contact Petitioner but had been unable to. Ms. Knight talked with H.N.’s mother about H.N.’s care for approximately thirty minutes and H.N. , S.C. and her baby got into Ms. Knight’s car to stay cool. A little later, H.N.’s mother left and Ms. Knight stayed with the girls. (T pp 87-89, 96, 99)

9. Ms. Knight and the girls waited another twenty-five to thirty minutes. While waiting, Ms. Knight called Petitioner’s number several more times to make sure no one was in the house. No one answered. Because it was getting late on a Friday afternoon and no one was at home to provide supervision for the girls, Ms. Knight called the Family Group to report the situation. Ms. Knight explained to the people at Family Group that they needed to come up with a plan to take care of the girls because they did not have any supervision or a place to be at that point. Ms. Knight left with the girls at approximately 5:15 p.m. At that point, neither Petitioner nor her husband had returned to the house. (T pp 91-92, 97, 99)

10. Ms. Knight then drove the girls over to the Family Group office where the girls stayed for one to two hours. Family Group made arrangements to provide respite care for the girls in another foster home. The Family Group was eventually able to contact Petitioner but not right away. The girls then went back to Petitioner’s house to get their things. When they arrived, Petitioner and her husband were at home. (T pp 57-59, 93, 96-98)

11. The Family Group reported to the Health Care Personnel Registry an allegation that Petitioner had neglected H.N. and S.C. Patricia Epps, R.N., an investigator for the Health Care Personnel Registry, investigated the allegation. Ms. Epps interviewed S.C., Cyteria Knight and Petitioner. Ms. Epps attempted to interview H.N. but was unable to locate her. She also reviewed the girls records. During her interview, Petitioner stated that she had gone to the emergency room on the afternoon of June 29, 2001 for back pain. Ms. Epps asked Petitioner to provide documentation to show that she had been in the emergency room but Petitioner did not do so. (T pp 22, 101-04)

12. As a result of her investigation, Ms. Epps concluded that Petitioner neglected the two clients in her care by leaving the residents unsupervised and locked out of the facility because Ms. Carr was not at home and had left the doors locked. The Health Care Personnel Registry notified Petitioner, by letter dated December 13, 2001, that it had substantiated an allegation that she neglected the two clients in her care and that it intended to list a finding of neglect at her name on the Health Care Personnel Registry (T pp 103-6, 108-09; Resp Exh 6)

13. Petitioner’s testimony was both internally inconsistent and was inconsistent with her prior statements. In addition, Petitioner’s testimony conflicted with that of other witnesses, including witnesses who testified on her behalf.

At the hearing, Petitioner initially testified that neither S.C.’s mother nor H.N.’s mother told her when they would be bringing the girls back to Petitioner’s house. Petitioner later testified that S.C.’s mother had “sort of mentioned that – well she sort of mentioned that maybe [she would be back at ]12:00 pr 12:30 p.m.” (T pp 18, 132)

Petitioner initially testified that she had been deathly ill on June 29, 2001 because she was suffering from Bell’s Palsy, vertigo and shingles. She later testified that she had Ramsey Hunt Syndrome and needed treatment for headache pain. On November 16, 2001, Petitioner told the HCPR investigator that, on June 29, 2001, she had gone to the Presbyterian Orthopedic Emergency Room for treatment of back pain. Petitioner testified that she tried to see her doctor but that the doctor’s office staff told her that the doctor did not see patients on Friday. The office suggested that Petitioner go to the emergency room instead. Petitioner testified that, at approximately one hour after S.C. had left, or 10:30 a.m., her son-in-law, Jeffery Battle, took her to the emergency room. Petitioner testified that, while they were in transit to the hospital, Petitioner got a call from one of the girls. Petitioner could not remember which of the two had called. At any rate, the girls told her that they were at home and that the social worker was on her way to pick them up. During the HCPR investigation, Petitioner told the investigator that she was in the emergency room when she got a call from her husband. Her husband was at home for some reason and he called to tell her that Cyteria Knight was there to take the girls because Petitioner was not home. Petitioner testified that she left the house in the morning and returned home at approximately 2:00 p.m. to 3:00 p.m., having been gone for approximately one hour. Petitioner later testified that she left the house in the afternoon and that she did not return home until 4:30 p.m. or later. Petitioner also testified that she was home in the morning at around 11:35 a.m. when S.C.’s mother had dropped her off. She testified that she tried to get S.C. to come into the house but that S.C. had refused. Petitioner said that she was also at home when the cab arrive to pick S.C. up. This testimony conflicts with Petitioner’s earlier testimony that she had gone to the hospital with her son-in-law at about 10:30 a.m. and did not return until 2:00 p.m. Petitioner’s testimony also conflicts with S.C.’s testimony that Petitioner was not there when her mother dropped her off and was not there when the taxi cab arrived. Petitioner initially testified that, when she arrived home in the afternoon, the girls were in the social worker’s car and that the social worker told her that she was taking the children. Petitioner testified that, even though she was deathly ill, she did not return to the emergency room for treatment and did not see her physician until the next week. (T pp 18-20, 21-22, 29, 42-43, 49-50, 124-25, 133-34, 136, 141-43; Resp Exh 1, 7, 8)

Jeffrey Battle, Petitioner’s son-in-law, testified on Petitioner’s behalf. Mr. Battle testified that he picked Petitioner up in the early afternoon and that he first took Petitioner to her doctor’s office where she went in while he waited in the car for several hours. Mr. Battle testified that he then took Petitioner to Presbyterian Hospital. Mr. Battle testified that he and Petitioner arrived back at Petitioner’s house between 4:00 and 5:00 p.m. and that Petitioner’s husband was home. (T pp 149-51)

Petitioner also testified that the girls left her house during the morning and that, after the social worker took them away, the girls were never returned to her care. Nevertheless, Petitioner documented in the resident’s care plan that she had provided services to the clients on June 29, and June 30, 2001. (T pp 29-29; Resp Exh 7 and 8)

Petitioner testified that S.C. often went away with her mother. S.C. testified that this was the first time her mother had come to get her since she had been staying with Petitioner. Petitioner testified that she thought she had left the door to the house unlocked and that she usually left the back door unlocked. Petitioner told Ms. Epps during the investigation that she usually left the side door unlocked. (T pp 24, Resp Exh 1)