STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF BLADEN 05DHR 0097

______

RestorationChurch of God in Christ,)

d/b/a Restoration’s Joys of the Heart )

ChildCareCenter,)

Petitioner,)

)

v.)DECISION

)

N.C. Department of Health and Human)

Services, Division of Child Development,)

Respondent.)

______

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Augustus B. Elkins II, onMay 25, 26 and 27, 2005 in Fayetteville, North Carolina; July 11, 2005 in Bolivia, North Carolina; and, February 21, 2006, in Fayetteville, North Carolina.

APPEARANCES

For Petitioner:H. Clifton Hester, Attorney at Law

Hester, Grady & Hester, P.L.L.C.

115 Courthouse Drive

Elizabethtown, NC28337

For Respondent:Ann B. Wall, Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, NC27699-0629

The Petition in this case (05 DHR 0097) was filed on January 14, 2005. The Petition in Contested Case No. 05 DHR 0124 was filed on February 3, 2005. On March 15th, 2005, by Order of Chief Administrative Law Judge Julian Mann, III the two cases were consolidated. A case involving the Petitioner and the CACFP program was joined for purposes of hearing but severed for decision purposes, due to the fact that there are two different final agency decisionmakers. A Protective Order was entered on May 3, 2005, sealing the record and setting forth conditions related to disclosure of confidential information. The transcript was received on or about March 27, 2006 and proposed findings were due on May 26, 2006. The Undersigned granted an extension of time up to and including June 9, 2006, and subsequently granted an additional extension of time up to and including July 1, 2006 to submit proposed findings of fact and conclusions of law. All filings, electronic and written, were received and the record closed on July 11, 2006.

ISSUE

Did the Respondent exceed its authority or jurisdiction, act erroneously, arbitrarily or capriciously or otherwise substantially prejudice Petitioner’s rights when it revoked Petitioner’s Notice of Compliance (NOC) which then led to suspension from the Child and Adult Care Food Program?

EXHIBITS

The Undersigned received numerous exhibits in this case to wit, generally: Exhibits as listed below received on behalf of the North Carolina Department of Health and Human Services, Division of Child Development (Child Development), Exhibits A-C on behalf of the North Carolina Department of Health and Human Services Division of Public Health, Child and Adult Care Food Program (CACFP) and Exhibits as listed below on behalf of the Petitioner Restoration Church of God in Christ International d/b/a Restoration Joys of the Heart Child Care Center(Center). To the extent that any evidentiary objections were made to materials contained in any of the said exhibits, the rulings at trial shall govern their admissibility and use in this proceeding and the courts findings of fact as stated herein take into consideration those rulings.

Petitioner’s exhibits2-11, 13-17 were admitted into evidence.

Respondent’s exhibits1-5C, 5E-19, 22 were admitted into evidence.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 110-90(5); N.C. Gen. Stat. § 110-98; N.C. Gen. Stat. § 110-102.2(5); N.C. Gen. Stat. § 110-105.2; N.C. Gen. Stat. § 110-106; N.C. Gen. Stat. § 150B-3(b); Child Care Rules 10A NCAC 09 .2206

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In make 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 judgment of credibility, including but not limited to the demeanor of the witnesses, any interests, bias, or prejudice a witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witnesses testified, whether the testimony of the witness is reasonable, whether the testimony is consistent with all other believable evidence in the case, and the qualifications of the witness as an expert.

FINDINGS OF FACT

1.This matter is before the Office of Administrative Hearings (OAH) contesting a notice of administrative action revoking the Notice of Compliance issued previously to the Petitioner, Restoration’s Joys of the HeartChildCareCenter (Center), by the Division of Child Development and a subsequent suspension issued by theDivision of Public Health, Child and Adult Care Food Program (CACFP). The Division of Child Development revoked the Petitioner’s Notice of Compliance and consequently terminated Petitioner’s eligibility for subsidized child care based upon a determination by the Columbus County Department of Social Services substantiating child abuse that occurred in the Center. CACFP terminated claimant’s eligibility for food supplement payments based upon the termination of the Petitioner’s Notice of Compliance, a prerequisite for eligibility in the program

2.Respondent in this case, Division of Child Development, (the Division or DCD) is an administrative agency of North Carolina State Government operating under the laws of North Carolina. The Division’s responsibilities include: regulation, licensure and monitoring of child care facilities in North Carolina; investigation of abuse, neglect and complaint reports regarding child care facilities; criminal record checks of child care providers; evaluation of child care provider education qualifications; training, and contracts related to child care. (T pp. 257-258)

3.The Division’s responsibilities also include managing a program that provides approximately four hundred million dollars in State and federal funding to county departments of social services to pay for child care services for eligible families. (T p. 218)

4.The Division licenses and/or regulates approximately 9,000 child care facilities, of which approximately 4,000 are child care centers. (T p. 258)

5.The Division issues Notices of Compliance (NOC or revocation) rather than licenses to certain religious sponsored child care facilities which then do not have to comply with all child care requirements. G.S. §110-106 (2005) The Division issues 18-20 revocations of licenses or orders to cease operations of facilities operated pursuant to NOCs each year. (T pp. 272)

6.Respondent administers a child care subsidy program in which federal and State funds are distributed to county departments of social services to reimburse approved child care providers for the care of the children of eligible parents. (T Vol. 2, pp. 220-221) Child care providers sign a Provider Agreement which includes notice of the terms and conditions of approval to enroll subsidy eligible children. (R Ex. 15, 19; T Vol. 2, p. 221)

7.Respondent’s Licensing Enforcement Manager, Tamara Rhoney, has two and one half years experience as Licensing Enforcement Program Manager, eight and one half years experience as an abuse/neglect consultant and supervisor, and 16 years of experience working in child care facilities. (Vol 2, T pp. 256-257)

8.DCD’s Subsidy Services Section Chief, Nancy Guy, has experience relating to child care subsidy, and subsidy-related State and federal policies and regulations, including: twenty-six years in county and State government, and service as Section Chief since 2000. (Vol. 2, T pp. 217-218)

9.DCD’s Abuse/Neglect (A/N) Supervisor, Candice Britt, has her Bachelor's and Master’s degrees in social work; as well as one and one half years as an abuse/neglect supervisor with the Division, and eight and one half years as a county child protective services social worker. She also has experience as a State child protective services policy consultant, and writing State policies. (Vol. 4, T pp. 758-760)

10.DCD’s A/N Consultant, Holli Britt, has a Bachelor’s degree in sociology and child life studies. She also has seven and one half years experience as a DCD Abuse/Neglect Consultant, andseven years of work in child care in all positions, including administration. (T Vol. 4, p. 647)

11.DCD’s Child Care Consultant, Sallie Jones has a Masters degree in child development, as well as, twenty years of experience as a DCD consultant. She has worked in the child care field as a teacher and a child care center director; and has been a community college teacherfor providers of care of young children. (Vol. 2, T pp. 406-407)

12.Joys of the HeartChildCareCenter (Center) is a child care center sponsored by the Restorations Church of God in Christ International located inElizabethtown, North Carolina. (R Ex. 1; T Vol. 1, p. 38) Since its opening in 1999, and during all times relevant to this matter, the Center operated pursuant to an NOC issued by the Respondent. (R Ex. 3, 5D; Vol. 1, p. 39)

13.At the time of the Division’s administrative action against the Petitioner, the Center’s three (3) year compliance history score was 72%. (R Ex. 3; T Vol. 2, pp. 265-266) The minimum acceptable three (3) year compliance history score is 60%. (T Vol. 2, p. 266)

14.During all times relevant to this matter, the Center operated three (3) shifts, 24 hours a day with a capacity of 45 children ages 0 through 12 years old, but did not operate on weekends. (R Ex. 3, 5D; T Vol. 1, p. 45) The Center director did not know how many children were actually enrolled at the center, but estimated the number to be 22. (R Ex. 5C, p. 3; Vol. 4, T p. 669) Bladen County DSS informed the Respondent that eighteen (18) children were in care at the time the first report of abuse/neglect was received, with six (6) in care in the evening. (R Ex. 5C)

15.When the numbers of children enrolled at the Center were low, staff would be laid off. (T Vol. 2, pp. 210-211). There was not enough money to hire an additional employee in October 2003. (T Vol. 1, p. 112)

16.From 3 p.m. until 4 p.m. each day, there were ten (10) to fifteen (15) children present at the Center, with another four (4) children arriving for second shift about 3:15-3:30 p.m. (T Vol. 1, pp. 70-71) Unless the two (2) children from the G. family were present, most of the second shift children left the Center by 8:00 p.m. or 9:00 p.m. (T Vol. 1, p. 119) During third shift two (2) to six (6) children might be present at the Center. (T Vol. 1, p. 90)

17.On week nights, when there were only two (2) G. children present at the Center, it was “not feasible to open the center for the second shift”. (R Ex. 5C, p. 2; T Vol. 4, pp. 668, 762, 765) On the nights when only the G. children were present, the second shift administrator, Jacqueline “Jackie” Clark, would take the children home with her. (R Ex. 5C, Ex. 10, T Vol. 4, pp. 668, 670, 762, 765) When the G. children were the only children at the Center on week nights, Ms. Clark regularly called their mother, T.G., at work. (T Vol. 3, p. 466) Ms. Clark would ask if it was okay to take the children home with her. (R Ex. 5C, T Vol. 3, pp. 466, 477, 478, 485, 486)

18.The Center was not open on weekends during the period from October through December 2003. (T Vol. 1, p. 45, 83)

19.At her own home, Ms. Clark cared for a number of children enrolled at the Center on weekends and other days that the Center was closed, including the G. children. (R Ex. 5C; T Vol. 1, p. 83, p. 6 - 13, p. 181, Vol 3, p. 464)

20.Ms. Clark’s home was not licensed or an approved child care space. (R Ex. 5C, T Vol. 2, pp. 411-412) Family child care homes in BladenCounty must comply not only with State child care licensure requirements but are subject to a local requirement for a fire inspection. (T Vol. 2, p. 412)

21.A child care provider may not care for an enrolled child in unapproved or unlicensed space during the time the child is supposed to be at the Center. (T Vol. 2, p. 413) Children for whom child care subsidy is paid must be cared for in the designated location. (T Vol. 2, p. 223, p. 429) The Center received subsidy payments for the G. children for week nights during November and December 2003, at times when the children were being cared for overnight at Ms. Clark’s home. (R Ex. 5C, 16; T Vol. 3, p. 466, p. 477, p. 478, p. 485, p. 486)

22.Larry David, pastor of the Church, and his wife, Krisandra David (although correctly spelled “Krisandra” or “Kris” in the first volume of the transcript, in later volumes, the name is spelled “Cassandra” and “Chris”), both testified that Mr. David was in charge of the day care. (T Vol. I, p. 59, pp. 94-96, T Vol. 2, p. 202) Mr. David testified that he was the person who laid off staff when layoffs were necessary. (T Vol. 2, p. 210) Mr. David, however, testified that Ms. David was the person in charge of day to day operations of the center. (Vol. 2, T pp. 202) Mr. David also testified that Ms. David was the individual who supervised the second shift director, his (Pastor David) sister,Jackie Clark. (T Vol. 2, p. 215) Mr. David testified that when the question of providing weekend care arose, he went to Ms. David to find out if it was possible. (T Vol. 2, p. 206)

23.Ms. David testified that she was the first shift supervisor. (Vol. 1, T p. 58) Ms. David admitted that she signed the 2003 application for an NOC; she was designated as the person responsible for speaking for the corporation, and, she was the person who always dealt with the Respondent’s employees when they made site visits. (Vol. 1, p.96) Ms. David also admitted that she was designated as executive director on the food program (CACFP) application. (Vol. 1, T pp. 100-102) Ms. David also supervised the work of the third shift care giver, ordering that she be up and preparing the children to leave for school by 6:30 a.m. (Vol. 1, T pp. 104-24)

24.Sallie Jones is the child care consultant who had regularly monitored the Center since 2002. (T Vol. 2, p. 407-408) Ms. Jones testified that she first learned during the hearing in this matter that Mr. David was purported to be the Center administrator or director. (T Vol. 2, p. 407) In response to a question from the Undersigned, Ms. Jones stated that she had never met Mr. David before this hearing. (Vol. 3, pp. 453-454)

25.A/N consultant Britt investigated the two reports of abuse/neglect which led to the Respondent’s revocation of Petitioner’s NOC. (T Vol. 4, pp. 648) A/N consultant Britt testified and documented Ms. David’s identification of herself as the Director of the Center. (R Ex. 5C, Vol. 4, T p. 667) A/N consultant Britt testified that she neither met nor spoke with Pastor David during the investigation. (T Vol. 4, p. 704)

26.The evidence supports the finding that Krisandra David, not Larry David, was the person who was in charge of and responsible for the child care center and was in truth and fact the Director of the Center.

27.Ms. David, the Center Director, has an Associates degree in early childhood development. (T Vol. 1, p. 97) Ms. David was responsible for younger children who were present during first shift hours of 8 a.m. to 4 p.m. (T Vol. 1, pp. 58, p. 68)

28.Jackie Clark, Ms. David’s sister-in-law was the second shift supervisor. As second shift administrator or supervisor, Ms. Clark was paid $400.00 every two weeks or about $800.00 a month. (R Ex. 5C, T Vol. 1, p. 50, p. 58, p. 94) Ms. Clark was qualified to be an administrator. (R Ex. 5C) Second shift ran from 4 p.m. to 12 midnight and included school age children. (Vol. 1, T p. 58) Ms. Clark arrived at 3 p.m. (T Vol. 1, p. 61) Only from 3 p.m. to 4 p.m. each day were both Ms. David and Ms. Clark present at the Center. (T Vol. 1, p. 68)

29.According to Ms. David, Alice Walls was also a paid second shift care giver. (T Vol. 1, p. 69) A/N consultant Britt stated that she asked Ms. David if there were any other care givers who worked with LJ on second shift and was told that there were not. (R Ex. 5C, T Vol. 4, p. 714) Ms. David never told A/N consultant Britt that Alice Walls was a second shift care giver. (T Vol. 4, p. 714) A/N consultant Britt stated that she had never heard of Alice Walls before this hearing and that she would have tried to interview Alice Walls if she had known about her. (T Vol. 4, p. 714, p. 721-722) Ms. David was the only one of Petitioner’s witnesses to claim that Alice Walls was a second shift care giver.

30.Keisha Walls was, according to Ms. David, the paid third shift care giver. (T Vol. 1, p. 88) Neither Mr. David nor Ms. Clark confirmed that Keisha Walls was a third shift care giver. However, A/N consultant Britt did document that Ms. David told her that there was a third shift care giver. (R Ex. 5C)

31.Ms. David, the Center Director, admitted to A/N consultant Britt that staff members on second and third shift occasionally slept while on duty. (R Ex. 5A, 5B, 5C, T Vol. 1, p. 92, p. 98) Ms. David said that she had been informed by consultant Jones that it was okay for staff to sleep while the children were sleeping. (R Ex. 5A, T Vol. 2, pp. 410-411; Vol. 4, p. 664) When testifying about the children’s sleeping arrangements, Ms. David also admitted that children slept on cots placed 6 inches apart, a violation of Environmental Health Rule 15A NCAC 18A. 2821 which requires 18 inch separation of such bedding in use. (T Vol. 1, p. 92) Ms. Jones stated that staff sleeping while children sleep is not permitted in child care centers, but is permitted in limited circumstances in family child care homes. (T Vol. 2, pp. 409, pp. 412-413) Ms. Jones did not authorize staff sleeping at the Center. (T Vol. 2, p. 410) After consulting Ms. Jones, Ms. Britt informed Ms. David that a violation would be cited. (R Ex. 5A - C; T Vol. 4, p. 665, lines 15 - 24)

32.Joseph, Little Joe “LJ”, Clark is the son of Ms. Clark and the nephew of Pastor Larry David. (R Ex. 5C,T Vol. 1, p. 47, p. 111) On April 1, 2003, Mr. Clark was released from the Western Youth Institution prison after serving more than two (2) years following a conviction related to possession of a stolen vehicle. (R Ex. 5C, T Vol. 1, pp. 132) Mr. Clark also spent time in the county jail in Lumberton. (T Vol. 1, pp. 149-150) While in jail in Lumberton, Mr. Clark was convicted on charges of burning a public building following an incident with a cigarette while in segregation. (T Vol. 1, pp. 151-152) After release from Western Youth Institution, Mr. Clark lived in Wilson, North Carolina from about June to September or October 2003. (T Vol. 1, p. 153) While in Wilson, Mr. Clark spent time in the Wilson County Jail in relation to charges of breaking and entering a motor vehicle. (T Vol. 1, p. 152)

33.When he returned home, LJ Clark lived with his parents. (T Vol 1, p. 132) LJ had his own room in his parents’ home. (T Vol. 1, p. 125) LJ had a Play Station™ set up in his room near the foot of the bed. (R Ex. 5C, R Ex. 10, T Vol. 1, pp. 124)

34.By the end of October 2003, around the time he turned 20, Mr. Clark lost a job due to his criminal record. (R Ex. 21A; T Vol. 1, p. 1133) In an effort to keep LJ off the streets and out of trouble, Ms. Clark went to the Davids and asked if LJ could be employed by the Center. (T Vol. 1, pp. 112-113) She was told that the Center did not have enough money to hire LJ. (T Vol. 1, p. 112) LJ began working at the Center on October 29, 2003 or November 1, 2003, the day his TB test was read. (R Ex. 8, T Vol. p. , lines )

35.The Petitioner’s witnesses asserted that LJ was a volunteer. LJ was, however, paid for his volunteer work. (R Ex. 8) When asked how LJ was paid, Ms. David told A/N consultant Britt that Mr. David gave Ms. Clark cash, and she divided it appropriately. (R Ex. 8) In his second interview with A/N consultant Britt, LJ stated that he was “paid $250.00 every two weeks for working at the daycare” and that he received a Christmas bonus. (R Ex. 5C) His mother, the second shift administrator, testified that she paid LJ twice. (T Vol. 1, p. 114)