COUNTY OF CUMBERLAND / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
05 DHR 0991
FRANK HALEY,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, HEALTH CARE PERSONNEL REGISTRY SECTION,
Respondent. / )
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This contested case was commenced by the filing of a petition on June 20, 2005. The case was heard before administrative law judge Beecher R. Gray on December 12, 2005 in Fayetteville, North Carolina.
APPEARANCES
Petitioner: Frank Haley, appearing pro se
Respondent: Susan Hackney, Assistant Attorney General
ISSUE
Whether Petitioner abused a resident (J.G.) of Woodbridge Alternatives, Inc. (Woodbridge) on or about January 30, 2005 by using inappropriate techniques resulting in bruises on J.G.’s head and a laceration on his lip.
FINDINGS OF FACT
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. Petitioner worked as a childcare worker at Woodbridge for approximately six (6) years before his dismissal following an incident on January 30, 2005 with resident J.G. Petitioner’s duties at Woodbridge consisted of providing personal care to approximately five residents, each of whom required significant attention and discipline because of emotional or physical problems or both.
3. On January 30, 2005 Petitioner and Earl Jones, child care worker III, both were on duty in the Woodbridge home.The two childcare workers and the residents were having a group meeting to discuss various topics the staff wanted to discuss, including J.G.’s recent behavior. J.G. had been placed in a therapeutic hold by staff at his school, HillsboroStreetElementaryAlternative School, approximately two days prior for inappropriate behavior.No one has challenged that invocation of therapeutic hold intervention as inappropriate.Therapeutic holds are authorized to be employed by childcare workers in the Woodbridge home to prevent run away, harm to the resident, or harm to staff or other residents.
4. As the staff and residents began to discuss J.G.’s behavior, J.G. became angry and began to curse the staff and other residents. J.G. began to stomp the floor with his feet and hurled a book at Petitioner. Childcare worker Jones removed the other residents from the room where the group meeting was taking place to prevent the outburst from being copied by other residents who were beginning to identify with it. Childworker Jones observed J.G. kicking Petitioner, striking him about his legs and thighs. Petitioner verbally was trying to calm J.G.
5. When J.G. grabbed a second book, Petitioner, having failed in his verbal efforts to calm J.G.,attempted to remove the book from J.G. to prevent its use as a weapon.In the ensuing struggle, Petitioner and J.G. fell to the floor where the struggle continued. Petitioner was successful in removing the book from J.G. Petitioner was physically struggling with J.G. and employed some manner of physical restraint in order to prevent harm to himself, the home, or to J.G. There is no credible evidence that Petitioner employed an inappropriate hold or unnecessary force in order to restrain and control the actions of J.G.
6. Childcare worker Jones observed some lacerations and bruising on J.G.’s face prior to the struggle between J.G. and Petitioner. Bobby Huey, employed at the Woodbridge home in a residential capacity, also observed 3 or 4 facial injuries from the incident between J.G. and the staff at HillsboroStreetSchool two days prior to the incident with Petitioner. The lacerated lip did occur during the struggle between Petitioner and J.G. On or about January 31, 2005, J.G. reported to Cal Davis, Social Worker assigned to HillsboroStreetElementaryAlternative School, that Petitioner had put him into an inappropriate hold the day before. Social Worker Davis reported the allegation to the Cumberland County Department of Social Services.
7. Both Alvin Midgette, Woodbridge’s Qualified Mental Health Professional, and Toby Foster, Social Worker III Investigator, conducted investigations into the alleged incident. J.G. told both of them that he had started the incident by throwing a book at Petitioner and told at least Toby Foster that he had tried to hit Petitioner. Social Worker Foster found J.G.’s version of the incident believable and substantiated the incident as neglect but not abuse. Qualified Mental Health Professional Midgette did not substantiate the incident as neglect or abuse against Petitioner.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I make the following conclusions of law.
1. The parties properly are before the Office of Administrative Hearings.
2. Petitioner did not abuse or neglect resident J.G. in the Woodbridge Alternatives, Inc. home on January 30, 2005 when Petitioner struggled with J.G. in attempting to stop J.G. from throwing books at Petitioner and to prevent J.G. from harming himself or other residents or Petitioner or causing property damage during J.G.’s episode of out of control misbehavior.Petitioner neither intentionallycaused physical pain or injuryto J.G. nor caused mental anguish or intimidation of J.G. in his actions to control J.G.’s extreme behavior.
DECISION
Based upon the foregoing findings of fact and conclusions of law, I find that the evidence in this case is insufficient to demonstrate that Petitioner abused or neglected resident J.G. on or about January 30, 2005. It hereby is ordered that Petitioner’s name be removed from the North Carolina Health Care Personnel Registry for lack of evidence to substantiate neglect or abuse.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 MailServiceCenter, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services.
This the 27th day of December 2005.
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Beecher R. Gray
Administrative Law Judge
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