STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 06 DHR 2122

MALISSA SCOTT, )

Petitioner, )

)

v. )

) DECSION

N.C. DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DIVISION OF )

FACILITY SERVICES )

Respondent, )

THIS MATTER came on to be heard before the undersigned Administrative Law Judge, Augustus B. Elkins II, on September 5, 2007 in Raleigh, North Carolina. The record was left open for submission of materials by the parties after receipt of a copy of the transcript of the proceeding. After filing by Respondent on October 29, 2007, the record was held open for filing by Petitioner and closed on November 9, 2007.

APPEARANCES

For Petitioner: Meleisa C. Rush-Lane

The Lane Law Firm

213 Dick Street, Suite B

Fayetteville, North Carolina 28301

For Respondent: Bethany A. Burgon

Assistant Attorney General

North Carolina Department of Justice

114 West Edenton Street

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

Whether Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation, that on or about August 29, 2006, Petitioner abused a resident (MB) of Ollane & Associates, Sunflower House, in Fayetteville, North Carolina, by engaging in a non-therapeutic sexual relationship with him.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256; N.C. Gen. Stat. §150B-23

N.C. Gen. Stat. § 14-27.5; N.C. Gen. Stat. § 14-27.1

N.C. Gen. Stat. § 122C-65; N.C. Gen. Stat. § 7B-101

42 CFR § 488.301

10A N.C.A.C. 13O.0101

EXHIBITS

Respondent’s exhibits 1-19 were admitted into the record.

WITNESSES

Shirley Anderson

Malissa Scott

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making 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 judging credibility, including but not limited to the demeanor of the witness, 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. From the sworn testimony of witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Malissa Scott, was employed as a residential manager by Ollane & Associates (Sunflower House). Sunflower House is a residential care facility and subject to N.C. Gen. Stat. § 131E-256. (Res. Exs. 2, 15)

2. Petitioner’s duties were to oversee the residents at Sunflower House. Her responsibilities included implementing individual treatment which provided high risk intervention services to emotionally disturbed children. Petitioner was to provide therapeutic modeling and treatment interventions, including crisis and behavioral management, ensuring consumer confidentiality, ensuring and protecting consumer rights, ensuring that the consumer had a safe living environment, and providing appropriate therapeutic interventions. (Res. Ex. 15)

3. Petitioner was trained in client rights, abuse, neglect and exploitation. Petitioner understood that under no circumstances are the residents to be sexually abused. (Res. Exs. 10, 15)

4. Resident MB, who was 15 years old at the time, had a diagnosis of adjustment disorder with mixed disturbance of emotional features. Resident MB’s assessment revealed he had limited judgment and insight. (Res. Exs. 11, 17)

5. The evidence shows that on or about August 29, 2006, Petitioner engaged Resident MB of Sunflower House in the following acts: hugging/kissing the resident, fondling the resident, performing oral sex on the resident, and exposing herself to the resident. (Res. Exs. 15, 16)

6. On August 29, 2006 at 4:30 pm, staff member La-Khiva Goss overheard a verbal confrontation between Petitioner and Residents MB and KB. She heard Resident KB state that Petitioner was stupid for giving his brother (Resident MB) “some head.” Resident MB stated to Petitioner, “I was just playing you to get what I wanted.” Goss heard Petitioner reply, “I was just playing along with you.” Resident KB repeatedly called Petitioner stupid. Petitioner sent Resident KB to his room. (Res. Ex. 9)

7. On August 29, 2006 Petitioner called Chris Simmons, the Executive Director of Sunflower House. Simmons received the call from Petitioner and she explained she was having problems with Resident KB. Simmons spoke with Resident KB over the telephone. KB explained that if Petitioner was “was going to lie on him than he was going to tell on her.” He stated that Petitioner was going to go to jail and that she would be placed on the sex offender registry. Resident KB informed Simmons that he would find out why he made this statement. Simmons told Resident KB to go to his room. (Res. Ex 11)

8. On August 29, 2006 Simmons called staff member Lynda Conway and requested she go and relieve Petitioner from her duties. Conway arrived at the Sunflower House around 9:00 pm on August 29, 2006. Conway noticed none of the residents were in bed. She also noticed Petitioner was alone with Resident MB in his room with the door closed. The next day Resident MB told Conway that Petitioner had performed oral sex on him and that he had been feeling her breasts. (Res. Exs. 6, 11)

9. Simmons conducted an internal investigation and completed an Incident Report. He met with Resident MB, Resident “QB” (sic) (KB), Resident CF, Conway, Charletta Tatum, and Petitioner to discuss the allegation of sexual abuse. (Res. Exs. 1, 3, 4, 6, 9, 10, 11)

10. Resident MB explained that a relationship with Petitioner started on an outing to a DVD store when Petitioner gave him a kiss. The relationship escalated and he “got oral sex” and “fingered her vagina.” He said they would “kiss and talk all the time.” Resident MB said that Petitioner had given him her phone number and he showed Simmons a phone number written in Petitioner’s handwriting. Resident MB explained how Petitioner told him she had a Crip boyfriend and a Crip brother. She also told him that she had a son conceived through rape that stayed with her parents. (Res. Exs. 3, 4, 11)

11. Resident “QB” (sic) (KB) stated he saw Petitioner go into Resident MB’s room. He said they hugged and kissed daily. Resident “QB” (sic) (KB) stated he told Petitioner that he was going to tell Simmons everything. (Res. Ex. 11)

12. Resident CF said that he saw Petitioner alone with Resident MB in his room. Resident MB told Resident CF that he had sexual contact and oral sex with Petitioner. (Res. Exs. 11, 17)

13. Petitioner told Simmons she had the residents come out of their room for “group” at 4:30 pm on August 28, 2006. She told the group they would discuss current events and she brought up “JonBnae Ramsey” and Petitioner “gave a brief description of what the case was about.” Rather than talking about current events, Petitioner asked what was on everyone’s mind. Petitioner explained that Resident MB and Resident KB were being disrespectful to her. Petitioner reported that she had KB go to his room. Petitioner stated that she called Mr. Simmons to “let him know the events that occurred.” Petitioner stated that the next day Resident KB was also being disrespectful to her and she called Simmons again. (Res. Exs. 1, 11)

14. Petitioner denied to Simmons that she had a brother and boyfriend in the Crips. She denied performing oral sex on Resident MB or having a relationship with him. She denied kissing and hugging Resident MB and she denied being alone in the room with the client when Conway came back for the medication keys. (Res. Ex. 11)

15. Chris Simmons took a statement from Charletta Tatum. Tatum told Simmons that Petitioner said she could lie her way out of anything. Tatum reported that Petitioner had stated to her (Tatum) that she (Petitioner) “leaked and told the clients things personally pertaining to their files.” Petitioner stated her boyfriend was in a rival gang and she could have the residents handled by the rival gang members. Petitioner told Tatum the resident’s mother had moved but she could find them after they got out. (Res. Ex. 11)

16. As part of his investigation, Mr. Simmons took a statement from Lynda Conway. Conway stated that she went to the facility to pick up the medication keys from staff around 9:00 pm on August 29, 2006. Conway stated that Petitioner was alone with Resident MB in his room with the door closed. Conway also stated that Petitioner had mentioned on one occasion that her boyfriend had ties to the Crips gang. (Res. Ex. 11)

17. Mr. Simmons did not substantiate sexual abuse but concluded that Petitioner had been inappropriate. (Res. Exs. 10, 11) Simmons noted in the Incident Report that though he was unable to substantiate the sexual conduct allegation, it seems likely to have occurred, given Petitioner’s dishonesty and the honesty of the clients and other staff members. Simmons found Petitioner to have been dishonest regarding the fact that she had been in the resident’s room alone with the resident, the fact that Petitioner disclosed confidential information, and the fact that she had a nontherapeutic relation with the residents. The Incident Report noted that it was known in the facility that Petitioner mentioned to staff members and residents that she had someone in a gang who would act on her behalf if anything happened to her. (Res. Ex. 11)

18. The Division of Facility Services, Licensure Section completed a survey of Sunflower House on September 27, 2006 and issued a statement of deficiencies and plan of correction. The Qualified Professional’s Incident Report of September 3, 2006, indicated that according to staff and clients, sexual events occurred between Petitioner and Resident MB. Petitioner spent time alone in Resident MB’s room and touched his genitals. She performed oral sex on Resident MB and allowed him to touch her genitals. During an interview on September 19, 2006, Resident MB stated that Petitioner came to his room, closed the door, and gave him oral sex. (Res. Ex. 17)

19. At all times relevant to this incident, Shirley Anderson was employed as an investigator for the Health Care Personnel Registry (HCPR). Anderson has investigated for the HCPR for five years and has been a registered nurse for over thirty years. Anderson is charged with investigating allegations against health care personnel in the southeastern region of North Carolina. Ollane & Associates Facility is in her region and she received and investigated the complaint that Petitioner had abused Resident MB.

20. Initially Anderson could not obtain sufficient information. The facility did not provide names and contact information. Anderson could only contact Resident KB, Conway, and Petitioner, so in March of 2007, she could not substantiate the allegation. Anderson later received additional information and re-opened the investigation. She received the facility investigation file after numerous requests and was able to locate Resident MB. (Res. Exs. 5, 16, 18, 19)

21. Anderson took Petitioner’s statements into consideration, viewed all the information including the fact that Anderson had asked Petitioner if Petitioner was ever alone in the room with MB at any time, and Petitioner denied that; the fact that the residents were minors, they were in the facility due to lack of structure and boundaries; and, Petitioner’s role as their custodian was to guide and lead them and model an appropriate relationship. (Res. Exs. 2, 15, 17)

22. Anderson considered the findings and documentation of the facility survey team regarding an investigation close to the date of the incident, and found those findings were consistent with what Anderson was told during her investigation months later. Anderson concluded that the relationship between Petitioner and Resident MB did not meet the definition of a therapeutic relationship and that Petitioner abused Resident MB. Anderson wrote an investigation report which documented the conclusion substantiating the allegation of sexual abuse of a minor. (Res. Exs. 2, 15, 17) Anderson determined Petitioner willfully abused Resident MB by fondling the resident, performing oral sex on the resident, and exposing herself to the resident. (Res. Ex. 15)

23. Petitioner testified on her behalf. She denied the allegation of sexual abuse. She stated that her son had been conceived through rape when she was 16. She stated that as a result she was very cautious about sexual relationships. Petitioner goes to church when she is not working. She stated, “I love church,” and found that being a Christian meant a great deal to her. Petitioner said that she was getting her masters degree in counseling and would like to open her own practice and be a private counselor.

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings (OAH) has jurisdiction over the parties and the subject matter of this case pursuant to the North Carolina General Statutes. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain conclusions of law, or that the Conclusions of Law are findings of fact, they should be so considered without regard to the given labels.

2. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. §131E-256 to maintain a Registry that contains the names of all health care personnel working in health care facilities who are subject to a finding by the Department that they abused a resident in a health care facility or who have been accused of abusing a resident if the Department has screened the allegation and determined that an investigation is warranted.

3. As residential counsel/manager working in a residential care facility, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-256.