State of North Carolina s33

5

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 07 DHR 0612

Sandra Leathers
Sand's Daycare Home
Petitioner
vs.
N. C. State Dept of Health & Human
Services, Division of Child Development
Respondent / )
)
))
)
)))) / DECISION

Background

This matter was heard before Beecher R. Gray, Administrative Law Judge, on September 25, 2007, in Raleigh, North Carolina. At the conclusion of the September 25, 2007 hearing, the undersigned upheld the Respondent’s administrative action revoking Petitioner’s child care license. The record closed upon receipt of the Proposed Decision on October 29, 2007.

APPEARANCES

For Petitioner: For Respondent:

Stellyne E. Curtis Alexandra Gruber

P.O. Box 1221 Assistant Attorney General

Raleigh, North Carolina 27602 N.C. Department of Justice

ATTORNEY FOR PETITIONER Post Office Box 629

Raleigh, North Carolina 27699-0629

ATTORNEY FOR RESPONDENT

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 110-85, -90, -91, -98, -102, -105.2; N.C. Gen. Stat. § 150B; 10A NCAC 09.1716(b) and .2206.

ISSUES

Whether the Division of Child Development otherwise substantially prejudiced Petitioner’s rights, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and capriciously, or failed to act as required by law or rule when it revoked Petitioner’s license to operate Sand’s Daycare Home.

EXHIBITS

Respondent’s Exhibits 1-18 were admitted into evidence. Petitioner did not offer any exhibits.

FINDINGS OF FACT

Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings:

Parties/Witnesses

1.  The parties stipulated on the record that each received notice of hearing by certified mail more than fifteen (15) days prior to the date of hearing and that notice was proper.

2.  Respondent, North Carolina Department of Health and Human Services, Division of Child Development (the “Division”), is an administrative agency of the North Carolina State Government operating under the laws of North Carolina, which licenses and regulates child care facilities in North Carolina.

3.  Respondent licenses approximately 9,200 facilities in the State of North Carolina. Of those, approximately 3,800 are family child care homes. (T.p. 102).

4.  Respondent takes approximately 350-400 administrative actions each year, of which approximately 35 were revocations in the last fiscal year. (T.pp. 102-03). The Division issues revocations to facilities for abuse and neglect situations and serious non-compliance with child care requirements. (T.p. 103).

5.  Dianne Pankey is a CPS Investigator with the Durham County Department of Social Services. Ms. Pankey investigates allegations of abuse and neglect in day care facilities, group homes, and foster homes. Ms. Pankey conducts approximately one hundred (100) investigations every year, and about thirty percent (30%) of those investigations involve child care facilities. Ms.Pankey’s investigations of child care facilities consist of interviewing children and parents, as well as day care staff and owners, and communicating that information to the Division. (T.p. 11-13).

6.  Holli Britt is an abuse/neglect investigator for the Division and has been employed by the Division for ten (10) years. Ms. Britt’s supervisor was Melissa Stevenson. Ms. Britt investigates child abuse and neglect reports and works with child care facilities to correct violations of the child care requirements and to assist facilities in maintaining compliance with the Child Care Rules and statutes. Ms. Britt investigates from eighty (80) to one-hundred twenty (120) cases a year for the Division. (T.pp. 28-29).

7.  Pamelia Pinchback is an abuse/neglect investigator for the Division and has been employed by the Division for nearly five (5) years. Ms. Pinchback’s supervisor was Melissa Stevenson. Ms. Pinchback investigates approximately forty (40) to fifty (50) reports of child abuse and neglect each year for the Division. (T.pp. 66-67).

8.  Melissa Stevenson is an intake supervisor for the Division and formerly was the Division’s Northeastern Child Abuse and Neglect Supervisor. In her former position, she supervised both Ms. Britt and Ms. Pinchback. As an abuse and neglect supervisor, Ms. Stevenson reviewed cases with her staff, as well as documentation and proposed administrative actions. (T.pp. 72-73).

9.  Tamara Barnes is the Licensing Enforcement Program Manager for the Division. She is part of the Division’s management team and oversees the administrative action process. Ms.Barnes has worked for the Division for fifteen (15) years. (T.pp. 101-02).

10.  Petitioner operated Sand’s Daycare Home, ID # 32001203, located at 2-36 Buffalo Way, Durham, North Carolina (the “Home”), under a Three-Star License. (Resp. Ex. 6). Petitioner’s facility was licensed for a maximum of five (5) preschool children at any time. (Id.).

11.  Stanley E. Harris is Petitioner’s brother. Mr. Harris is a Detective Lieutenant with the Durham County Sheriff’s Office and has been in law enforcement for approximately eighteen (18) years. (T.pp. 123-24).

12.  Rontika Redden is the parent of two children who attend Ms. Leathers’ child care home. Her children have attended the Petitioner’s facility since April of 2004. (T.pp. 130-31).

Background

13.  The Division’s field personnel do not carry anything to protect themselves, such as mace. The Division recommends that its field personnel who feel unsafe making a visit to a child care facility work with local law enforcement. (T.pp. 73-74).

14.  When a new child care facility opens, the Division reviews the child care laws and rules with the operator of the facility. Child care operators are responsible for knowing and complying with all the applicable laws and rules. (T.p. 74).

15.  The Division’s master file in this case indicates that, when Petitioner first applied to open her facility, the Division conducted a rules review with Petitioner. (T.p. 84).

16.  The Division’s field staff review child care rules and laws with providers during annual compliance visits made to facilities, as well as during abuse and neglect investigations. (T.p.75).

17.  The most serious violations cited at Petitioner’s facility included unsafe transportation, improper supervision of children, and overcapacity at the facility. (T.pp. 79-80). A supervision violation is cited when a provider cannot directly see the children she is caring for. (T.p.82).

18.  Local departments of social services and the Division of Child Development share responsibility for investigation allegations of abuse and neglect at child care facilities throughout the State. (T.p. 75). The two agencies conduct parallel investigations at child care facilities. (T.p. 76). The Division of Child Development is responsible for determining if there have been any violations of the child care laws and rules subsequent to an investigation. (Id.).

Licensing and Monitoring of Petitioner

19.  Petitioner’s family child care home had a maximum licensed capacity of five (5) preschool children. (T.p. 32, R. Ex. 6). The capacity is listed on the facility’s child care license, which is displayed at the facility. (Id.). Only one (1) adult provider is required to be present to care for children at a family child care home. (Id.).

20.  The Durham Department of Social Services (“DSS”) works with the Division of Child Development in investigating allegations of abuse and neglect in child care facilities. (T.p. 13). When DSS has concerns regarding conditions at a child care facility, DSS contacts the child care consultant assigned to that facility to discuss the case. (T.pp. 13-14).

21.  Following its investigation, DSS makes a decision to substantiate or unsubstantiate allegations of abuse or neglect. (T.p. 14). A substantiation means that DSS determines that abuse or neglect occurred at the facility. (Id.). An unsubstantiation means that DSS was unable to confirm that abuse or neglect occurred at the facility. (Id.). The Division takes into consideration a substantiation of abuse or neglect in making its decision regarding the child care facility, but bases its decision mainly upon its own investigation. (T.p. 76).

22.  When the Division receives a complaint regarding allegations of abuse or neglect at a child care facility, the consultant first checks the Division’s database to gather a history of the facility, contacts witnesses and the reporter of the complaint, if any. The consultant then visits the facility. (T.p. 29).

23.  At the end of the investigation, if the allegations of the complaint are confirmed, the consultant completes an administrative action and works with the facility to correct any violations of the child care requirements. (T.pp. 29-30).

Investigation of Allegations of Neglect at Petitioner’s Facility

24.  In October of 2005, Durham DSS received a report that Petitioner, Sandra Leathers, was transporting children without proper seatbelts and car seats, and that Ms. Leathers had more than seven (7) children in her care. (T.p. 14).

25.  Dianne Pankey from DSS visited Petitioner’s facility on October 25, 2005. At that visit, Petitioner admitted to Ms. Pankey that she was missing a car seat for one of the children. Ms.Pankey also confirmed that Petitioner had two (2) more children in care than she was licensed to care for. (T.pp. 16-17). Ms. Pankey contacted parents of two (2) of the children present and asked the parents to come pick up their children so that Petitioner would not be over-capacity. (T.p. 17).

26.  DSS substantiated child neglect as a result of Ms. Pankey’s October 25, 2005 visit, citing inadequate supervision as the basis for the substantiation. (T.pp. 17-18, R. Ex. 7).

27.  On October 26, 2005, the Division received a complaint alleging inadequate supervision, inadequate care, and inappropriate discipline at Petitioner’s facility. (T.p. 34, R.Ex. 1). The Division’s consultant, Holli Britt, made a visit to Petitioner’s facility the same day. (Id.).

28.  At approximately 11:35 AM on October 26, 2005 visit, Ms. Britt observed Petitioner arriving at the child care home, and confirmed that Petitioner was missing a car seat for a two (2) year-old child. (T.p. 36, R. Ex. 3). Petitioner stated that the child’s parent had failed to leave a car seat for the child that day. (Id.).

29.  Ms. Pankey called Ms. Britt at about 4:30 PM on October 26, 2005 from Petitioner’s facility. (R.Ex. 3). At that time, Ms. Pankey told Ms. Britt that the facility was over-capacity. (R.Ex.3. T.pp 39-40).

30.  Following her October 26, 2007 visit to Petitioner’s family child care home, Ms. Britt spoke with Ms. Pankey. At that time, Ms. Pankey confirmed that the facility had been over-capacity when Ms. Pankey visited. (T.pp. 39-40).

31.  Ms. Britt made a number of follow-up visits to Petitioner’s facility. At one visit on November 3, 2005, Ms. Britt observed the children in Petitioner’s care in the backyard, unattended, while she waited for Petitioner to answer the door. Ms. Britt did not cite an improper supervision at that time, since Ms. Britt did not want to be the cause of a violation. Instead, Ms. Britt provided technical assistance to Petitioner, and explained that Petitioner could not leave the children alone, even if it meant not answering the doorbell. (T.pp. 40-41).

32.  During the November 3, 2005 visit, Ms. Britt cited a violation because Petitioner failed to keep proper attendance records. Petitioner was not using the Division’s attendance records form and, therefore, was not documenting the arrival and departure time of children. (T.pp. 41-42).

33.  At the November 3, 2005 visit, Petitioner became very upset, and told Ms. Britt she was calling the police. Ms. Britt repeatedly asked Petitioner to calm down, and “not act that way in front of the children.” (T.p. 43). Ms. Britt was concerned that it would upset the children to see their caregiver so upset. (Id.).

34.  On January 3, 2006, Ms. Britt made another visit to Petitioner’s facility. Ms. Britt explained to Petitioner that she needed to monitor for compliance with safe transportation rules. Petitioner became very upset and began to “jerk” children out of their car seats by their arms. Ms.Britt asked Petitioner to stop jerking the children out of their seats because she was concerned Petitioner would dislocate a child’s elbow or shoulder. (T.pp. 44-45, R. Ex. 5). After Petitioner removed all the children from the car, Ms. Britt followed Petitioner and the children into Petitioner’s home. When she got inside the home, Ms. Britt observed a toddler-aged child in a highchair left unattended. (T.p. 45).

35.  Ms. Britt decided to end the January 3, 2006 visit early because Petitioner was uncooperative and disrespectful, and because Ms. Britt was concerned that the children would be upset. (T.pp. 46-47). Ms. Britt was concerned for her own safety. (T.p. 47).

36.  Following the January 3, 2006 visit, Ms. Britt attempted to inspect Petitioner’s facility on January 16, 2006, but Petitioner asked Ms. Britt to leave, and told Ms. Britt that she had a restraining order against her and that Ms. Britt could not be on her property. (T.p. 49, R. Ex. 13.) Ms. Britt consulted with her supervisors and sought and obtained an administrative warrant to enter Petitioner’s home. (Id.).

37.  On June 27, 2006, the Division issued a Notice of Administrative Action revoking Petitioner’s child care home license based upon violations of child care requirements regarding licensed capacity of a family child care home, discipline of children, record keeping and falsification of information, inadequate supervision of children, and unsafe transportation of children. (R.Ex.11).

38.  After obtaining the warrant, Ms. Britt went back to Petitioner’s home on January 19, 2007 with a police officer. Ms. Britt was accompanied by her supervisor, Melissa Stevenson, at that visit. (T.pp. 49-50). Petitioner was very upset, and refused to open her door until the police officer intervened. (T.p. 51). Petitioner did not let Ms. Britt or Ms. Stevenson inside her home. (T.p. 87).

39.  During the January 19, 2007 visit, Petitioner held one child on her hip and left some of the children in her care unattended in her home while she went into her garage to talk to Ms.Stevenson and Ms. Britt. Ms. Stevenson reminded Petitioner on several occasions not to leave the other children alone inside. (T.p. 87). Petitioner continued to raise her voice in front of the children, and Ms. Stevenson reminded her to not do so because it might upset the children. (Id.).

40.  Following the January 19, 2007 visit, the Division sent Petitioner a letter detailing violations Ms. Stevenson and Ms. Britt cited during the January 19th visit, including failure to provide proper nurture and care of children, improper supervision of children, failure to notify parents of children enrolled at the facility of the substantiation of neglect by DSS, and failure to post the June 27, 2006 Revocation at the facility. (R. Ex. 15).