COUNTY OF ONSLOW / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 DHR 5520
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Stephanie L. Phillips,
Petitioner,
v.
North Carolina Department of Health and Human Services, Division of Child Development,
Respondent. / )
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THIS MATTER came on to be heard before the undersigned Administrative Law Judge, Augustus B. Elkins II, on October 11, 2011 in Bolivia, North Carolina. Petitioner, Stephanie L. Phillips, was represented by counsel, Jeffrey S. Miller, at the hearing. The North Carolina Department of Health and Human Services, Division of Child Development, appeared represented by Alexandra Gruber, Assistant Attorney General. After receipt of the hearing transcript, thirty days was allowed for submission of proposals, memorandum and other material. By request from Petitioner’s counsel and Order from the Undersigned, Mr. Miller was allowed to withdraw as Petitioner’s counsel on November 30, 2011. Petitioner was given an additional thirty-five days to submit proposals, memorandum and other material. Receiving none and previously receiving materials from Respondent, the record was closed on January 4, 2012.
APPLICABLE STATUTES AND RULES
N.C.G.S. §§ 110-85, 110-88, 110-90, 110-98, 110-102.2, and 110-105.2
Child Care Rules 10A N.C.A.C. 09 .1716 and .2206.
ISSUE
Whether the Respondent deprived Petitioner of property, acted erroneously, failed to use proper procedure, or acted arbitrarily or capriciously when it revoked the license issued to Stephanie L. Phillips, operator of Tiny Steps Childcare (ID #67000963).
EXHIBITS
Petitioner’s Exhibit A and Respondent’s Exhibits 1- 5, 8-16, 18, 20 were admitted. Official Notice was taken of Respondent’s Exhibit 17.
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 (ALJ) makes the following Findings of Fact. In making these Findings of Fact, the ALJ has weighed all the evidence and has 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.
FINDINGS OF FACT
1. Respondent, Division of Child Development and Early Education (In July of 2011, the Division of Child Development became The Division of Child Development and Early Education or DCDEE), 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. The Respondent (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 pursuant to N.C.G.S. § 110-85.
3. The Division has the authority to issue administrative actions, up to and including revocation of a license, when it determines that child abuse or neglect occurs in a licensed facility. See N.C.G.S. §§ 110-88 (6a), 110-102.2, 110-105.2. The Division also has the authority to issue a revocation of a license where a violation of the “statutes or the rules has been willful, continual, or hazardous to the health or safety” of children. 10A NCAC 09 .2206(a).
4. Rubetta Shackleford has been a child abuse and neglect consultant with the Division for seven years. Prior to her current position, Ms. Shackleford was a child protective services social worker with Pitt County Department of Social Services. Ms. Shackleford holds a Bachelor of Science degree from North Carolina Central University. Ms. Shackleford’s responsibilities as a child abuse and neglect consultant for the Division include conducting investigations, recommending the issuance of administrative actions based on the conclusion of the investigation, and following up on administrative actions.
5. Tammy Ross has been a child care licensing consultant with the Division for ten years. Prior to her employment at the Division, Ms. Ross was a child care social worker with Duplin County Department of Social Services for five years. Ms. Ross holds a Bachelor’s Degree in social work from the University of North Carolina at Wilmington. Ms. Ross’ responsibilities as child care licensing consultant include issuing licenses and monitoring child care facilities for compliance with the rules and regulations of North Carolina.
6. Molly Berkoff, MD, is Medical Director of the North Carolina Child Medical Evaluation Program at the University of North Carolina-Chapel Hill in the School of Medicine. Dr. Berkoff is licensed to practice medicine by the State of North Carolina and board certified in pediatrics and child abuse pediatrics. Dr. Berkoff received her undergraduate degree from the University of Wisconsin at Madison, and her medical training from Columbia University College of Physicians and Surgeons. She did her internship and residency at Yale-New Haven Hospital in pediatrics and was a fellow in Preventive Medicine at the University of North Carolina at Chapel Hill. Dr. Berkoff’s responsibilities include treating children who have been victims of abuse and neglect and setting guidelines and procedures for other providers who treat children suspected of being victims of abuse and neglect. Dr. Berkoff has been accepted as an expert in child abuse approximately twenty (20) times in various cases involving abusive head trauma, physical abuse, sexual abuse and neglect, and was qualified by the Undersigned as an expert child abuse in this contested case. (R. Ex. 4)
7. Susanne Patterson has worked for the Onslow County Department of Social Services for 16 years and has held the position of child protective social worker with the Onslow County Department of Social Services since April 29, 2002. Ms. Patterson holds a degree in psychology from Campbell University. Ms. Patterson’s responsibilities as a child protective social worker include investigating allegations of child abuse, neglect, and dependency.
8. Kimberly Mallady is the Licensing Enforcement Section Chief for the Division. Prior to her current position, Ms. Mallady served as the Licensing Enforcement Program Supervisor at the Division. Before coming to work at the Division, Ms. Mallady was a teacher and a director at various child care facilities. Ms. Mallady holds a Bachelor’s Degree in child development and family relations from East Carolina University. Ms. Mallady’s responsibilities as Licensing Enforcement Section Chief include overseeing the administrative action process, as well as facilitating settlement agreements and informal settlement conferences.
9. Petitioner, Stephanie Phillips, operates Tiny Steps Family Childcare (Tiny Steps), a family child care home, pursuant to a four-star rated license issued by DCDEE. (R. Ex. 2) Ms. Phillips applied for and received her current license in September of 2008. (R. Ex. 1) Prior to operating Tiny Steps, Ms. Phillips operated a child care facility on Camp LeJeune which was overseen by the United States Marine Corp. (R. Ex. 12). Ms. Phillips was also listed as an operator on a license for a child care facility along with Vicki O’Pharrow, which was later denied by DCDEE. (P. Ex. A, R. Ex. 17)
10. There are approximately 8,500 child care facilities in the State of North Carolina, and approximately 3,500 of them are family child care homes. Family child care homes are licensed in an individual’s home or residence. There is usually only one provider to care for children at a family child care home, and homes normally are licensed for a maximum of five preschool aged children and three school-aged children.
11. Abuse/neglect consultants with the Division investigate complaints of child abuse or neglect in licensed child care facilities. The Division’s abuse/neglect consultants generally investigate in cooperation with local departments of social services.
12. Licensing consultants license facilities and ensure that those facilities comply with state laws and regulations.
13. The usual steps in licensing a family child care home involve the Division receiving an application in the mail from an interested operator, followed by a visit by a Division consultant. The application for a family child care home license includes several questions relevant to prior child care facilities. (R. Ex. 1) Those questions include: (1) “Have you, or any other person listed on this application, previously operated a child care facility,” and (2) “Have you been an owner, co-owner, partner, shareholder, principal or affiliate of a licensed facility or agency had its license revoked, suspended or downgraded to Probationary, Provision, and Special Provisional?” (Id.) As part of the application process, the prospective provider must certify that the application is complete and accurate, and must initial that s/he understands “that false information provided to the Division of Child Development may be grounds for termination of this license and rejection of further application to operate a regulated child care facility.” (Id.)
14. If a provider has previously been denied a license by the Division, s/he can be denied a new license based upon that previous denial pursuant to 10A NCAC 09 .1702(g). In the previous fiscal year, the Division issued approximately 20 revocations similar to the Revocation issued against Petitioner’s license.
15. Administrative actions are generally proposed by a child care consultant and supervisor, and then sent to the regional manager for their review. The regional manager then submits the proposed action to the Licensing Enforcement Section for review. After Licensing Enforcement reviews the action, it is submitted to an internal review panel to determine if the administrative action is accurate, consistent, objective, and that it is in keeping with other, similar actions throughout the state.
16. In making a diagnosis of abusive head trauma, a medical professional will review the patient’s history and medical records, conduct a complete physical examination of the child, and use radiologic studies to determine what is happening physically to the child. The medical treatment team will look for external signs of trauma and abnormal findings on the neurological exam such as irritability, poor muscle tone, and changes in overall strength. When a medical professional makes a diagnosis of abusive head trauma, s/he is looking for things such as bruising on the face, intracranial findings such as subdural hemorrhage or subarachnoid hemorrhage, skull fractures, or retinal hemorrhages. “Shaken baby syndrome” is the lay term for a medical diagnosis of “abusive head trauma.”
17. Subarachnoid and subdural bleeding can be caused by trauma, both accidental and non-accidental. There are also non-traumatic causes, such as genetic abnormalities and bleeding problems that can lead to the formation of a hemorrhage. The same is true for retinal hemorrhages. Accidental trauma can include things such as car accidents or other significant trauma that a caregiver would remember.
18. Infants are more vulnerable to head trauma than older children because their heads are larger in relation to their body size, and the muscles that control their head movements are not as developed.
19. When a baby is shaken, the brain “is rotated and doesn’t always comply with the same direction that the skull and the rest of the baby’s body is moving in.” (T. p. 100) This can be described as the brain “sloshing around” inside the skull, and not necessarily moving in the same direction as the skull. (T. p. 101)
20. On October 18, 2010, the Division received a complaint alleging that a child at Petitioner’s facility “suffered injuries” while in care.
21. On October 19, 2010, Ms. Shackleford, the child care consultant assigned to investigate the complaint, contacted Sue Patterson, the social worker assigned by the Onslow County Department of Social Services (DSS) to investigate the complaint at Petitioner’s facility. Ms. Shackleford learned that three-month-old N.H. had been diagnosed with a subdural hematoma, retinal hemorrhages, and a torn frenulum. Ms. Shackleford also learned that DSS had put a “Protection Plan” in place with Petitioner which prohibited Petitioner from caring for children during the DSS investigation.
22. On October 19, 2010, Rubetta Shackleford, made a visit to Petitioner’s facility. (R. Ex. 4) At that visit, Petitioner entered into a “Protection Plan” with Respondent which prohibited Petitioner from caring for children aged two and under. (R. Ex. 5) The DCDEE plan was intended to remain in place regardless of when the DSS protection plan was lifted.
23. Ms. Shackleford determined that N.H. had been dropped off at Tiny Steps by his mother around 6:30 or 7:00 a.m. on October 14, 2010. N.H. had, by all accounts, been acting normally at the time he was dropped off. At around 2:15 p.m., N.H. woke up and Petitioner changed him. When she laid him down on the changing mat, he stopped crying “and his cry went from being his regular cry to more or less like a…moan.” (T. pp. 22-23) N.H. would not take the bottle Petitioner offered him and was “not acting right.” (T. p. 23)
24. Petitioner called N.H.’s mother because Petitioner was concerned about N.H.’s behavior. N.H.’s mother said that she would come and pick him up from the child care facility. After N.H.’s breathing became heavier, Petitioner called N.H.’s mother again and told her, “[Y]ou need to come get him right now because I’m calling 911.” (T. pp. 24, 68-69)
25. On October 21, 2010, Ms. Patterson contacted Ms. Shackleford to inform her that Petitioner had been previously investigated for two incidents which occurred at her Camp LeJeune facility. In one incident, a child sustained a broken femur, and in another incident a child was diagnosed with shaken baby syndrome. Both incidents were unsubstantiated by DSS because a perpetrator could not be identified.
26. During the investigation, the Division learned that Petitioner had been listed as an operator on a child care facility license issued to Millennium, which had been denied at the end of the temporary time period. (P. Ex. A) The Denial issued to Millennium was appealed pursuant to N.C.G.S. § 150B-23, and was heard before Administrative Law Judge Beryl E. Wade. (R. Ex. 17) Judge Wade affirmed the Division’s denial of Millennium’s license. The Final Agency Decision in that case was entered on August 9, 2004, and was not subsequently appealed. (R. Ex. 18)
27. Tammy Ross, the Division’s licensing consultant who helped Petitioner open Tiny Steps, testified at the hearing. Ms. Ross testified and the Undersigned finds as fact that pages one and two of Petitioner’s application to operate a child care facility were completed and mailed in to the Division.