STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF PERSON 11 DHR 05885
Sneed Academy,Annissianna Sneed,
Petitioner,
vs.
North Carolina Department of Health and
Human Services, Child Development Division,
Respondent. / )
)
))
)
)))) / DECISION
This matter was heard before Beecher R. Gray, Administrative Law Judge, on September 28, 2011 in Raleigh, North Carolina.
APPEARANCES
5
For Petitioner:
Brian L. Crawford
Attorney at Law
PO Box 25442
Durham, NC 27702
ATTORNEY FOR PETITIONER
For Respondent:
Letitia C. Echols
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27699-0629
ATTORNEY FOR RESPONDENT
5
APPLICABLE STATUTES AND RULES
N.C.G.S. §§ 110-85, 110-91, 110-98, 110-102.2(1), 110-105.2 and Child Care Rules 10A N.C.A.C. 09.0302, .0304, .0707, .0714, .1904, .2203, and .2213.
ISSUES
Whether Respondent substantially prejudiced Petitioner’s rights and exceeded its authority or jurisdiction, acted erroneously, or acted arbitrarily or capriciously when it issued a written warning and corrective action plan to Petitioner, operator of Sneed Academy.
EXHIBITS ADMITTED INTO EVIDENCE
Petitioner’s Exhibit 2 and Respondent’s Exhibits 1-16.
FINDINGS OF FACT
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge makes the following Findings of Fact. In making these Findings of Fact, the undersigned has weighed all the evidence and 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 witnesses, 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.
1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.
2. Respondent, the Division of Child Development and Early Education (“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.
3. Under N.C.G.S. § 110-85, 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.
4. Child care is highly regulated in North Carolina.
5. Danielle Lyons is a child care licensing consultant with the Division. Consultant Lyons has worked with the Division for four (4) years and, prior to that position, was a Developmental therapist for ages 0 to 3. She also has been an Assistant Child Care Center Director and a lead teacher at Head Start. Consultant Lyons holds a four-year degree in Child Development and Family Relations from East Carolina University. Consultant Lyons’ responsibilities as a child care licensing consultant for the Division include: monitoring Family Child Care Homes and Child Care Centers by making annual compliance and routine unannounced visits; taking applications for new Family Child Care Homes and Child Care Centers; and managing changes of locations of child care homes and centers. Consultant Lyons also provides technical assistance to child care providers for achieving and maintaining compliance with child care requirements.
6. Sherri Hall is a licensing supervisor with the Division. Supervisor Hall has been a licensing supervisor for eleven (11) years, and, prior to that position, was a licensing consultant at the Division. Supervisor Hall holds a four-year degree in Early Education from the University of North Carolina at Greensboro. Supervisor Hall was the director of a large child care center for five (5) years before coming to work at the Division. Supervisor Hall’s responsibilities as a licensing supervisor include managing the work of eight (8) licensing consultants.
7. Tammy Tanner is the Central Regional Program Manager for the Division. Program Manager Tanner has worked as a regional manager for over ten (10) years. She holds a four-year degree in Home Economics from North Carolina Central University and a Master of Science degree in Education and Human Development. Program Manager Tanner’s responsibilities as a regional manager include managing five (5) supervisors and thirty-six (36) consultants in all aspects of child care licensure.
8. Heather Marler is an education evaluation specialist with the Division. Specialist Marler has worked as an education evaluation specialist for five (5) years and, prior to that position, was credentialing and testing program coordinator. She holds a Bachelor of Science degree in Birth to Kindergarten from East Carolina University. Specialist Marler’s responsibilities as an education evaluation specialist include: reviewing and evaluating the education and equivalency for Lead Teachers, Teachers, Family Child Care Home Providers, Program Coordinators, Group Leaders, EC and SA Administrators; evaluating Expedite requests from Regulatory field staff; and responding to Webmaster emails concerning education and supervision.
9. Petitioner Annissianna Sneed operates “Sneed Academy,” a child care center located at 1191 Leasburg Road, Roxboro, North Carolina 27573, under a one-star license issued by Respondent.
10. Sneed Academy initially received its one-star license on May 5, 2008. Its current one-star license was issued on August 10, 2011. (R. Ex. 1)
11. On May 11, 2010, Consultant Lyons visited Sneed Academy to conduct a routine unannounced visit to monitor child care requirements. (R. Ex. 2). She observed that the administrator neither had the North Carolina Early Childhood Administration Credential or its equivalent nor was working towards its completion, as required by N.C.G.S. § 110-91(8). (R. Ex. 2, 11) Additionally, no lead teachers had been qualified by the Division to supervise children at Sneed Academy, as required by 10A N.C.A.C. 09 .0714. Id.
12. On May 20, 2010, Petitioner sent a letter stating that transcripts had been submitted and that Petitioner had asked the proposed lead teacher, Mrs. Torian, to submit the forms for lead teacher qualification within thirty days. (R. Ex. 3).
13. On August 18, 2010, Consultant Lyons visited Sneed Academy to provide technical assistance at Petitioner’s request. (R. Ex. 4) In addition to other topics discussed, she identified the courses required to obtain the necessary credentials for administrators and lead teachers. Id. Consultant Lyons further explained that educational transcripts and credentials for administrators and lead teachers must be submitted to the Division’s Workforce section for approval. Id. She reminded Petitioner that the Division had not received required paperwork for Sneed Academy’s administrator and lead teachers and that it was Petitioner’s responsibility to ensure that the necessary information is received by the Workforce section. Id.
14. During her Annual Compliance Visit to Sneed Academy on January 13, 2011, Consultant Lyons observed that two lead teachers had not been qualified by the Division to supervise children at Sneed Academy, potentially a repeat violation of 10A N.C.A.C. 09 .0714(c). (R. Ex. 5, 11) Additionally, she observed the following additional potential violations: Three staff members had not completed in-service training (potentially violating 10A N.C.A.C. 09 .0707(c)); Sneed Academy had not passed fire inspection (potentially violating 10A N.C.A.C. 09 .0304); Sneed Academy did not provide a Summary of North Carolina Child Care Law to all parents (potentially violating N.C.G.S. § 110-102); medical exams were not on file for each child (potentially violating N.C.G.S. § 110-92(1) and 10A N.C.A.C. 09 .0302(d)); and a parent’s statement regarding disciplinary policy changes was not on file for each child enrolled (potentially violating 10A N.C.A.C. 09.1801(a)). Id.
15. During a routine unannounced visit to Sneed Academy on March 8, 2011, Consultant Lyons observed that criminal record checks had not been submitted to the Division in a timely manner (potentially violating 10A N.C.A.C. 09 .2702(a) and (c)) and children were being cared for in unapproved space (potentially violating N.C.G.S. § 110-91(1)). (R. Ex. 7, 11).
16. After reviewing the violations cited at recent visits to Sneed Academy, the field staff, including Consultant Lyons, Supervisor Hall, and Program Manager Tanner, recommended that a written warning and corrective action plan be issued to Petitioner, operator of Sneed Academy. (R. Ex. 11)
17. On April 15, 2011, Respondent issued a written warning and corrective action plan to Petitioner to correct the alleged violations included in the administrative action. (R. Ex. 11)
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this contested case under Chapters 110 and 150B of the North Carolina General Statutes.
2. All parties correctly have been designated and there is no question as to misjoinder or nonjoinder.
3. As stated by N.C.G.S. § 110-85, the primary purpose of child care regulation in this State is to provide for the health, safety, and developmental well-being of children in child care facilities.
4. At all times relevant to this matter, Petitioner’s facility was subject to the child care licensure laws and rules of the State of North Carolina.
5. At all times relevant to this matter, Petitioner’s facility operated under a license issued by Respondent.
6. The Division has not substantially prejudiced Petitioner’s rights.
7. The Division has the authority to issue a written warning and corrective action plan to a licensee which “describe[s] those actions necessary for the operator to be in full compliance with requirements and shall specify a time period for compliance to be achieved.” 10A NCAC 09 .2203(b).
8. The Division is responsible for qualifying administrators and lead teachers.
9. The Division is entitled to appropriate deference in determining if the necessary qualifications have been met.
10. The Division has been patient with Petitioner and has not abused its discretion by issuing a written warning and corrective action plan to Petitioner.
11. The Division has not acted arbitrarily or capriciously or exceeded its authority or jurisdiction.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
Respondent’s decision to issue a written warning and corrective action plan to Petitioner is supported by the evidence and is AFFIRMED.
NOTICE
The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Child Development.
The Agency is required by N.C. Gen. Stat. § 150-36(a) to give each party an opportunity to file exceptions to the decision and to present written arguments to those in the Agency who will make the final decision. The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorneys of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36, the Agency shall adopt each finding of fact contained in the Administrative Law Judge's decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth, separately and in detail, the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge's decision, the agency shall set forth, separately and in detail, the evidence in the record relied upon by the agency in making the finding of fact.
This the 5th day of December, 2011.
______
Beecher R. Gray
Administrative Law Judge
5
5