STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF RICHMOND 08 DHR 2571
Pepper Dawn Kirk-McLendonPeppermint Daycare
Petitioner
vs.
N. C. Department of Health and Human
Services, Division of Child Development
Respondent / )
)
))
)
)))) / DECISION
This contested case was heard before Julian Mann, III, Chief Administrative Law Judge, on February 23 and 27, 2009 in the Guilford County Courthouse, High Point, North Carolina.
APPEARANCES
For Petitioner: Pepper Dawn Kirk-McLendon, Pro se
189 North Street
Hamlet, North Carolina 28345
For Respondent: Susannah B. Cox
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, 105.2; Child Care Rules 10A N.C.A.C. §§ 09.1716, 09 .1718, 09 .1719, 09 .1722.
ISSUES
Whether Respondent prejudiced Petitioner’s rights and failed to follow proper procedure when it issued a Special Provisional License to Petitioner.
EXHIBITS
For Petitioner: Exhibits 1 – 30 and 32 – 40.
For Respondent: Exhibits 2-7, 9-12 and 14.
WITNESSES
For Petitioner: Roberta Gay Sealey
Ronald Ross Kirk
A.M.
Pepper Dawn Kirk-McClendon, Petitioner
For Respondent: Amy Michelle Griffin
Courtney Mabe
Christina Murray Bennett
Shelby Lampley Johnson
Pamela Cobb
Dena Hoxworth
Gamara Phony Barnes
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 makes the following Findings of Fact. In making these Findings of Fact, the undersigned has weighed the admissible evidence and has carefully 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 directly observe, participate, 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 credible evidence in the case.
FINDINGS OF FACT
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. Respondent Division has a mandate to ensure that children in child care facilities are in phycially safe and healthy environments where the developmental needs of the children are met pursuant to N.C. Gen. Stat. §110-85.
3. Pamela Cobb is a child abuse and neglect consultant with Respondent Division and has held this position for over thirteen (13) years. (T. Vol. I, p. 166) Before joining the Division she was a child care director for a program within the Department of Defense and a middle school teacher. Id.
4. Shelby Johnson is a case manager with the Richmond County Department of Social Services. (T. Vol. I, p. 126) She has held this position for seven (7) years.
5. Amy Griffin and Courtney Mabe are sisters and are mothers of children who attended the Petitioner’s day care family child day care home. (T. Vol. I, pp. 31, 59, 149)
6. Amy Griffin’s three daughters attended Petitioner’s family child day care home for several months until November 2007. (T. Vol. I, p. 37, Pet. Ex. 38)
7. Courtney Mabe’s three children, including D.L., attended Petitioner’s family child day care home for several years and were in Petitioner’s vehicle on February 13, 2008. (T. Vol. 1, pp. 59-60)
8. Deanna Hoxworth is the supervisor for Respondent’s Central Child Abuse and Neglect Team with prior experience as a child protective services investigator. (T. Vol. I, p. 201)
9. Tamara Rhoney Barnes is the Respondent’s Licensing Enforcement Program Manager. (T. Vol. II, p. 244)
10. Respondent’s Division licenses approximately eight thousand three hundred (8,300) child care facilities across the state. (T. Vol. II, p. 246)
11. Respondent’s Division issued approximately twelve (12) Special Provisional licenses in the past year and, of those, two (2) were issued to Family Child Care Homes. (T. Vol. 2, p. 246)
12. Petitioner, Pepper Dawn Kirk-McLendon, owns and operates a one-star family child care home named, Peppermint Day Care, located at 189 North Street, Hamlet, Richmond County, North Carolina.
13. Petitioner received an Associates Degree and then took course work in early childhood education at University of North Carolina Pembroke. (T. Vol. II, pp. 345-46)
14. Roberta Sealy and Ronald Kirk are Petitioner’s parents.
15. A.M. is the Petitioner’s six-year old son.
16. Christina Bennett is the mother of two children who attend Petitioner’s family child day care home.
17. Respondent’s Division’s abuse and neglect consultants investigate reports of child abuse and neglect in child care facilities. (T. Vol. I, p. 166)
18. When investigating a report of child abuse and neglect, an abuse/neglect consultant first receives a written report from the Respondent Division’s intake office in Raleigh. (T. Vol. I, p. 167) The abuse/neglect consultlant then checks the Respondent Division’s regulatory system to obtain a history of the facility, and contacts the local department of social services (“DSS”) social worker to discuss the allegations of abuse and/or neglect. Id. The abuse/neglect consultant and social worker then generally attempt to make a joint visit to the child care facility. Id. The abuse/neglect consultant also contacts the regular licensing child care consultant assigned to the facility in order to gather additional information regarding the facility. Id.
19. When DSS is involved in the invetigation, the Respondent’s Division’s consultant cannot directly interview the children and must rely on the DSS reports regarding what the children have said. (T. Vol. I, p. 176)
20. The Respondent’s Division has specific procedures in place for issuing Special Provisional Licenses which involves multiple levels of investigation and scrutiny.
21. The Respondent’s Division carefully documents the Special Provisional decision-making process.
22. When appropriate, the Respondent’s Division’s field staff and managers recommend the issuance of an administrative action and send a proposed action to the Respondent’s Division’s Raleigh office for review. (T. Vol. II, p. 250)
23. The Respondent Division employs an internal review process to review the issuance of a Special Provisional action. This process includes an initial review of the proposed action, time for the child care provider to respond to the prosed action, and a second review of the proposed action following the provider’s response. The people who conduct the review have no prior knowledge about the facility in question and are not affiliated with the regulatory section of the Respondent’s Division. (T. Vol. II, pp. 250-51)
24. The Respondent Division maintains a matrix of administrative actions throughout North Carolina, documenting the types of actions taken, as well as the reasons for the actions. Before issuing an administrative action, the Respondent Division consults the matrix to maintain consistency throughout the State and to ensure that child care providers are treated fairly. (T. Vol. II, p. 263)
25. The Respondent’s Division may issue a Special Provisional License in cases where it determines that abuse or neglect has occurred in a child care center or home. (T. Vol. II, p. 246)
26. Respondent assigned Pamela Cobb to the investigation. She is a child abuse and neglect consultant and has held this position for approximately thirteen (13) years. She investigated the allegations against Petitioner by contacting DSS, the mother of the child, the Petitioner, another mother who had an earlier complaint and another mother who had no complaints. Ms. Cobb also went to Petitioner’s family child day care home and made her own observations. (T. Vol. II, p. 126, 168-69)
27. On February 19, 2008, Ms. Cobb went to Petitioner’s family child day care home and spoke with Petitioner.
28. Amy Griffin allegedly found her children alone in Petitioner’s house in November, 2007, the last day that she used Petitioner’s service and when Petitioner arrived at the house she allegedly told Ms. Griffin she had been out searching for her lost goat. (T. Vol. I, pp. 34-5, p. 50, T. Vol. II, p. 355)
29. Petitioner testified that she lost a pet goat in the same time frame that Ms. Griffin testified she found her children alone in the house. (T. Vol. I, p. 34, Pet. Ex. 7)
30. The Respondent’s representatives explained their concerns to Petitioner about Petitioner’s family child day care home concerning allegations that a child was placed outside the vehicle beside Highway 74 and children were locked in the bathroom in addition to concerns about children being left in the residence unattended. T. Vol. I, pp. 203-4, 219-20)
31. Ms. Cobb and Ms. Hoxworth discussed the results of the investigation and reviewed the documentation then recommended that Respondent’s Division issue a Special Provisional License to Petitioner. (T. Vol. I, pp. 177-210)
32. The specific rules violations cited to support the allegations in the administrative action were: 10A N.C.A.C. 09 .1718(10)(a) adequate supervision was not provided for children who were awake for requiring a child to get out of a vehicle alone beside a public road and for leaving children alone in the home; 10A N.C.A.C. 09 .1722(8) discipline not appropriate for the child’s age for instructing a child to do push-ups outside vehicle beside a heavily-traveled highway; 10A N.C.A.C. 09 .1722(d) a person in the home place the child in a locked room in violation of discipline rules for at least two children being locked in the bathroom; 10A N.C.A.C. 09 .1719 the operator did not maintain a safe environment for requiring the child to get outside of the vehicle beside a heavily-traveled highway; and N.C.G.S. 110-105(2)(a) there was a substantiation of child abuse or neglect. (T. Vol. I, pp. 220-21, Resp. Ex. 11, p. 8)
33. The Respondent’s Division determined that a Special Provisional license was appropriate based on the allegations which resulted in the substantiations of neglect and the violations of child care requirements. (T. Vol. I, pp. 210-11, T. Vol. II, p. 263)
34. On August 21, 2008, Respondent sent notice to Petitioner that it proposed to issue a Special Provisional License based on the investigation into Petitioner’s alleged actions. (Resp. Ex. 9)
35. Petitioner submitted her response to the proposed action including letters of support from other parents (T. Vol. pp. 211, 213)
36. Ms. Cobb and Ms. Hoxworth submitted their response to Petitioner’s submission with specific comments about Petitioner’s documents and recommended that the Respondent’s Division proceed with the Special Provisional License. (T. Vol. I, pp. 215-18)
37. On October 14, 2008, the Internal Review Panel at Respondent’s Division considered all the submitted documents including all documents from the Petitioner and amended the action to allow enrollment of new children and to remove a violation regarding transportation of children. (T. Vol. II, p. 258, Resp. Ex. 10)
38. On October 23, 2008, the Respondent’s Division issued the Administrative Action of a Special Provisional License. (Resp. Ex. 11)
39. Findings of Facts # 40-89 are facts found from the record primarily from credible witnesses who either directly observed or participated in the incidents that Respondent contends supports the imposition of disciplinary measures against Petitioner. These findings, at times, contain extensive quotations from the testimony, exhibits, or combination thereof.
40. D.L’s disabilities included ADHD, ODD and deafness in his left ear.
Q. Now, you mentioned that your son (D.L.) has ADHD. Does he have any other kind of – any other physical or developmental impairments?
A. He’s completely deaf in his left ear, and which when I found out from the doctor, I let Pepper know that he was completely deaf in his left ear. And he also has ODD, which is oppositional defiant disorder, so you do have problems with him. But when I put him in day care, I explained that to her to make sure she would be able to handle him. ( Testimony of Courtney Mabe, T. Vol. I, p. 61-62)
41. D.L. routinely batters his sister, C.M., when riding with her in a family automobile.
Q. Now, do you ever have problems with him and his sisters when you’re driving your car?
A. Of course.
Q. Do they fight in the car when you’re ----
A. Yes, they do. (Testimony of Courtney Mabe, T. Vol. I, p. 62)
42. Ms. Mabe accepted D.L.’s conduct towards his sister at home and in the family car. She did not object to the conduct while in Petitioner’s care.
“Ms. McLendon (Petitioner) was asked if she ever reported to their mother that D.L. was beating his sisters. She stated that she had but that the mother told her that he also did it at home. The mother also told her that if her children could fight at home, they could do it at the day care.” (Resp. Exh. 7, p. 4).
43. D.L.’s oppositional and aggressive behavior became more pronounced in the weeks before February 13th.
…But, like I stated to Shelby Johnson and to Pamela Cobb, the last three weeks of them attending, something was going on because of their fighting was – D.L. would kind of – it was like he would try to hurt C.M., the littlest one. And even M.L., like I stated, how she was punching at him in the van – she would even get – it was something – for three weeks, something that I couldn’t pinpoint.