COUNTY OF WAKE / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DHR 4239
Elizabeth Ivonne Hawley
Petitioner,
vs.
Division of Child Development, NC Department of Health and Human Services,
Respondent. / )
)
)
)
)
)
)
)
)
)
) / DECISION
On November 19, 2009, Administrative Law Judge Melissa Owens Lassiter conducted an administrative hearing for this contested case in Raleigh, North Carolina. On December 1, 2009, the undersigned ruled that Respondent acted properly and did not otherwise substantially prejudice Petitioner’s rights in denying Petitioner’s application for a license to operate a family child care home. On December 17, 2009, pursuant to the undersigned’s request, Respondent filed a proposed Decision with the Office of Administrative Hearings.
APPEARANCES
For Petitioner:Elizabeth Yvonne Hawley
110 S. Smithfield Road
Post Office Box 601
Knightdale, NC 27545 / For Respondent:
Alexandra Gruber
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27699-0629
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. §§ 110-85, 110-90, 110-91 and 10A N.C.A.C. § 09 .1702.
ISSUES
Did Respondent act erroneously or otherwise substantially prejudice Petitioner’s rights and when it denied Petitioner a license to operate a family child care home?
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner: None
For Respondent: 1-10
Judicial notice taken of NC General Statutes and administrative rules contained in Respondent’s Exhibit No. 13.
FINDINGS OF FACT
Parties
Respondent
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. Pursuant to N.C. Gen. Stat. §110-85, the Division is mandated to ensure that children in child care facilities are in physically safe and healthy environments where the developmental needs of the children are met.
3. Respondent is authorized to deny a child care license to an applicant who fails to comply with the North Carolina Child Care Act, N.C. Gen. Stat. § 110-85, et seq. or the North Carolina Child Care Rules, 10A NCAC 09.0100, et seq. See N.C. Gen. Stat. § 110-90(5), 10A NCAC 09.1702(g).
4. “Any effort to falsify information provided to” the Respondent is a violation of the North Carolina Child Care Act and “shall constitute a cause for revoking or denying” an application to operate a licensed child care facility. N.C. Gen. Stat. § 110-91(14).
5. Respondent’s consultants and supervisors determine when to recommend taking administrative action against a facility or proposed facility. Field staff submit the proposed action to Respondent’s Raleigh office, and is considered by an Internal Review Committee. The Internal Review Committee considers the nature and frequency of the violations, the proposed action, and compares the proposed action to other actions taken by the Division in similar situations across the state.
6. The Internal Review Committee meets several times in considering a denial of a child care license, and considers any information provided by the applicant in making a final determination whether it will issue a denial of an application to operate a family child care home.
7. Jeffrey Gaster is a licensing supervisor with the Division assigned to Wake County. Mr. Gaster has a four year degree in Sociology from Pembroke State University, and has worked as a licensing supervisor for the Division since 2004. As a licensing supervisor, Gaster’s duties include supervising seven child care consultants, monitoring their work, ensuring that visits to facilities are conducted in a timely manner and in accordance with Division policies, training new consultants, reviewing paperwork, and drafting administrative actions when warranted. Gaster’s prior employment included working as a child care licensing consultant and lead consultant for the Division before 2004, and working as a day care program coordinator for the subsidized child care program at the Child Care Network, a resource and referral agency in Chatham County.
8. Kimberly Mallady is the Licensing Enforcement Program Supervisor for the Division. Ms. Mallady has worked for the Division for about six and a half years. Her responsibilities as Licensing Enforcement Program Supervisor include overseeing the administrative action process, and helping to ensure the consistency of action. Before her current position, Mallady served as a licensing consultant in Wake County for the Division. Before that, Ms. Mallady was a teacher and a director of a child care center. Ms. Mallady holds a bachelor’s degree in Family and Community Services from East Carolina University.
9. Sherri Hall is a Licensing Supervisor with the Regulatory Services Section of the Division of Child Development. Ms. Hall supervises eight Child Care Consultants that cover Durham, Granville, Vance, Warren, Franklin and Person counties. Ms. Hall has a BS Degree from UNC-Greensboro in Elementary Education and Early Childhood Development. Ms. Hall’s responsibilities with the Division include supervising the Child Care Consultants in her territory, monitoring their work for accuracy and consistency, training new consultants, preparing Administrative Actions as needed, and serving on policy and planning committees and workgroups in the Regulatory Services Section of the Division. Ms. Hall has been a Licensing Supervisor since 2000, and was a Child Care Consultant with DCD from 1994-2000. In her prior employment, Hall was the Director of a large child care facility in Durham, North Carolina for five years.
10. Respondent has demonstrated knowledge and expertise with respect to facts and inferences within its specialized areas of knowledge, of child care, and the enforcement of North Carolina’s laws and rules governing the operation of child care facilities.
Petitioner
11. On or about February 24, 2009, Petitioner submitted a license application to Respondent to operate a family child care home known as Hawley’s Child Care, at 2209 Poole Road, Raleigh, NC 27610. (R. Ex. 8).
12. Previously, Petitioner held six (6) licenses to operate family child care homes at six (6) different locations. (R. Ex. 8).
13. From September 25, 2004 until July 13, 2006, Petitioner operated Creative Angels Childcare (“Creative Angels”) at 108 Gill Street in Oxford, North Carolina, pursuant to a three-star rated license issue. (R. Exs. 2 & 7). Petitioner’s license allowed Petitioner to care for a maximum capacity of five (5) preschool children at any given time. (Id.)
14. On February 2, 2006, the Division’s child care consultant, Terri Salim, and her supervisor, Sherri Hall, conducted a routine, unannounced visit at Creative Angels to monitor Petitioner for compliance with the North Carolina child care requirements. (R. Ex. 3). At that visit, the Division documented a total of thirty-seven (37) violations of child care rules and statutes. (Id.) The most serious of these violations included: exceeding the licensed capacity of the child care facility; improper supervision of children; and falsification of information provided to the Division. (Id.)
15. During the February 2, 2006 visit, Sherri Hall observed an infant car seat and baby bottles filled with formula, but did not immediately observe any infants in the Petitioner’s care. (R. Ex. 3). When Ms. Hall asked Petitioner if she was caring for any infants, Petitioner denied that she had any infants in her care. Yet, Hall pressed Petitioner on the issue, Petitioner admitted there was an infant in the home. Petitioner explained that the infant belonged to Petitioner’s niece.
16. When Ms. Hall began to inspect the rest of the home, she discovered an infant hidden underneath the bed covers in a back bedroom. (Id.) Ms. Hall observed two adults in the bed with the infant. (Id.) When Ms. Hall asked Petitioner again if the child was enrolled at the child care facility, Petitioner admitted that the child was, in fact, enrolled at the facility and in Petitioner’s care. (Id.) Petitioner explained that she had hidden the baby, because she did not want to be cited by the Division for being over her licensed capacity. (Id.) Due to Petitioner’s efforts to hide a child from Respondent’s personnel, Respondent cited Petitioner for willful falsification of information provided to Respondent. (Id.)
17. On May 25, 2006, the Division’s consultant, Toni Fuller, and Ms. Hall visited Creative Angels to conduct an unannounced Annual Compliance Visit. (R. Ex. 5). At that visit, Ms. Hall and Ms. Fuller observed and cited Petitioner for ten (10) violations of the North Carolina Child Care Rules and statutes. Some violations were repeated from prior visits. (Id.) The most important violations involved Petitioner transporting kids to the grocery store, on a daily basis, without properly restraining the kids in child car seats. Petitioner admitted that she did not have car seats in her vehicle when she drove kids to the grocery store. In addition, Petitioner’s vehicle required one child ride in the front seat, and the vehicle had an operational passenger-side airbag. This was a violation of 10 NCAC09 .1723(5) . (R. Ex. 5)
The Administrative Action
18. Jeff Gaster received a copy of Petitioner’s application to operate a new family child care home from Antionette Williams. Williams is the Licensing Consultant assigned to the territory in which Petitioner’s facility would be located. Mr. Gaster checked Petitioner’s name in the Division’s database of former child care providers, and determined that Petitioner had operated six (6) facilities prior to her current application. Mr. Gaster reviewed Petitioner’s prior history of compliance at those facilities, and the Division’s files at the most recent of those facilities.
19. In reviewing Petitioner’s application, Mr. Gaster considered the consultants’ visit to Creative Angels on February 2, 2006, and on May 25, 2006. Based on the information he reviewed, Gaster recommended the Division take administrative action against Petitioner, and deny Petitioner’s application for a child care license in Wake County. Mr. Gaster issued a written recommendation to deny Petitioner’s child care home license application. He forwarded his recommendation to the Division’s Internal Review Committee for an initial review.
20. On May 12, 2009, the Internal Review Committee recommended proceeding with the denial of Petitioner’s license application based upon Petitioner’s prior history as an operator of a child care facility. (R. Ex. 8).
21. On May 14, 2009, Respondent sent Petitioner a Notice of Proposed Administrative Action. In that Notice, Respondent advised Petitioner that Respondent was proposing denial of Petitioner’s child care license application based on the February 2, 2006 and May 25, 2006 visits to Creative Angels facility. Respondent advised Petitioner that it had fifteen (15) days to submit a response to Respondent, explaining why Respondent should not deny Petitioner’s license application. (R. Ex. 8).
22. By letter dated May 26, 2009, Petitioner timely responded to the Notice of Administrative Action. Petitioner indicated that she had always remained a compliant operator, contrary to Respondent’s assertion in the Notice of Proposed Administrative Action. (R. Ex. 9)
a. Petitioner explained that she had a 75% compliance history assessment from 4/22/02 until 9/30/04. She contended that Sherri Hall handled the situation at the 108 Gill Street facility in a very threatening manner on February 2, 2006, and that Hall had contacted various agencies regarding allegations that were later proven to be “untrue.”
b. Petitioner questioned some of the alleged violations raised during the February 2, 2006 and May 25, 2006 visits to her child care home. Petitioner submitted a corrective action plan to Respondent regarding the violations alleged during each visit. However, Petitioner’s corrective action plans were missing from her records on file with the Division.
c. The food program representative visited Petitioner’s child care home, all problems were corrected, and Petitioner participated in the food program until the day Petitioner closed Creative Angels. Petitioner further explained that Respondent contacted her through a letter, assuring her that things were fine, and Petitioner could continue operating her business as usual. That letter was also missing from Respondent’s records on Petitioner. She did not think that an incident from three years ago, that was resolved positively, should determine her eligibility to obtain a license from the Division.
23. Antionette Williams and Mr. Gaster addressed Petitioner’s May 26, 2009 letter in a June 3, 2009 memorandum to June Locklear, Chief of Regulatory Services Section. (R. Ex. 9)
a. Gaster and Williams explained that Division records indicated that 30 violations of child care requirements were observed and documented at Petitioner’s child care home from 4/22/02 – 9/30/04 involving supervision, capacity, safety, storage of hazardous substances, equipment in disrepair, children’s records, nutrition, and sanitation. From May 17, 2005 through July 14, 2006, Division records showed 49 violations of child care requirements by Petitioner were observed and documented regarding providing false information, supervision, capacity, transportation, safe sleep and safety.
b. Although Petitioner stated she corrected the alleged violations, violations continued to occur during Respondent’s subsequent visits to Petitioner’s facility, including falsification of information.
c. The Division’s denial of Petitioner’s license application was not based on a substantiation of abuse or neglect, but instead, was based on willful, repeated issues of noncompliance, and providing false information to Division representatives. Williams and Gaster continued to recommend denial of Petitioner’s license application due to Petitioner’s “demonstrated noncompliance with child care requirements” during Petitioner’s previous licensures.
24. On June 9, 2009, the Internal Review Committee conducted a second review of the proposed action on Petitioner’s child care license application. The Committee considered Gaster and Williams’ memorandum, and Petitioner’s response to the Notice of Proposed Action. (Id.) Based upon Petitioner’s previous noncompliance with child care requirements, and Petitioner’s attempt to falsify information concerning the infant in her care on February 2, 2006, the Internal Review Committee recommended Respondent proceed with a denial of Petitioner’s license application. (Id.)
25. On June 16, 2009, the Division issued an administrative action denying Petitioner’s application to open a new family child care home in Wake County. (R. Ex. 10).
26. At the contested case hearing, Petitioner admitted that the majority of the things Respondent’s witnesses said were true, and she was sorry for it. She also contended that some of the things Respondent’s witnesses said were not true, but Petitioner failed to specify which violations were untrue. Petitioner explained that while her electric smoke detector did not work when she opened her facility, the detector passed inspection later. Petitioner explained that her some of records were not at facility during the compliance visit, because one of her employees had taken some of her records home with her to review, unbeknownst to Petitioner. She indicated that she does not keep a dirty facility, contrary to what Respondent alleged. In addition, she thought Sherri Hall acted disrespectful to Petitioner during the February 2, 2006 visit. Petitioner didn’t contest any of Hall’s criticisms, but should not have allowed Hall to treat her disrespectfully. Petitioner corrected all of the alleged violations against her, and submitted a correction plan to Respondent. (See R. Ex. 5, pg 7) Petitioner could not find that plan in Respondent’s records of Petitioner’s facility.