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STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF GUILFORD 02 DHR 2326 Deloris Johnson, ) Cogic Cathedral Day Care Center, ) Petitioner, ) ) DECISION v. ) ) Division of Child Development, ) Respondent. ) This matter was heard before James L. Conner, II, Administrative Law Judge, on June 24, 2003 and September 24, 2003, in High Point, North Carolina. Counsel for Respondent filed a Proposed Decision on December 18, 2003. Counsel for Respondent moved that the record be sealed. On March 4, this office requested clarification of the motion. Counsel responded with a clarification on March 11, 2004. By Order dated March 25, 2004, the undersigned sealed parts of the record. This contested case closed with the filing of that Order. APPEARANCES For Petitioner: For Respondent: Deloris Johnson Ann B. Wall 202 Textile Drive Assistant Attorney General Greensboro, NC 27405 N.C. Department of Justice PETITIONER, Pro Se Post Office Box 629 Raleigh, North Carolina 27699-0629 COUNSEL FOR RESPONDENT APPLICABLE STATUTES AND RULES1 N.C. Gen. Stat. §§110-88, -90, -91, -94, -98, -102.2, -105, -105.2; N.C. Gen. Stat. §150B; 10A NCAC 9 .0201, .0304, .0714, .1606, .1904, .2203, .2800. ISSUES Whether the Division of Child Development acted erroneously, arbitrarily or capriciously or failed to use proper procedure or to act as required by rule or law when it issued a Written Warning to Petitioner. 1 The numbering of all Division of Child Development rules changed effective August 1, 2003, due to recodification by the North Carolina Department of Health and Human Services pursuant to G.S. § 150B. The Division’s rules are now found in Title 10A at Chapter 09. The recodified rule number will be used throughout these Findings and Conclusions of Law. EXHIBITS Respondent’s Exhibits 1 and 3 through 16 were admitted into evidence. No Petitioner exhibits were offered or admitted. FINDINGS OF FACT Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings: The Respondent 1. Respondent, North Carolina Department of Health and Human Services, Division of Child Development (hereafter referred to as ―the Division), is an administrative agency of the North Carolina State Government operating under the laws of North Carolina. 2. The Division’s responsibilities include regulation and licensure of more than 9,200 child care facilities in North Carolina. (T p. 146, lines 7 – 13). The Division investigates approximately 1,000 reports of abuse or neglect in child care facilities each year. (T p. 147, lines 5 – 10). 3. The Respondent has demonstrated knowledge and expertise with respect to facts and inferences within its specialized area of knowledge, i.e., child care and enforcement of the laws and rules of North Carolina governing the operation of child care facilities. The Petitioner 4. Petitioner had a Three Star License to operate a child care center, Cogic Cathedral Day Care Center, ID # 41000740, which was located on East Washington Street in Greensboro, North Carolina in May 2002. (R Ex. 3A, T p. 44, lines 12 – 21) The Center has since moved to Textile Drive in Greensboro, where it continues to have a Three Star License, ID # 41001008. (R Ex. 3B, T p. 44, lines 12-21) A Three Star License is a voluntary rated license indicative of a higher quality child care facility, pursuant to the State’s rated license requirements. (T pp. 163, line 18-164, line 1) 5. When located on East Washington Street, Cogic Cathedral Day Care Center (hereafter, ―Cogic‖) had a fenced playground area which had a gate with a latch. (T pp. 91, line 25-92, line 8) The gate opened directly onto a parking lot which had direct access to a busy street which adjoined a railroad. (R Ex. 6; T pp. 91, line 25-92, line 8, 104, lines 15-18). Petitioner was put on notice in June 2001 that the gate was unlocked on at least one occasion. (R Ex. 15, item 7, p. 2; T p. 168, lines 1-21) The Abuse/Neglect Incident and Investigation 6. Rena Richardson is a full time college student majoring in nursing at North Carolina Agricultural and Technical University (hereafter, ―NC A&T‖) while also employed. (T p. 116, lines 10-25). Rena Richardson is also the mother of twins, a boy, J.L., and a girl, J.A., born in July 2000. (T p. 116, lines 4-9). From the time of their birth until their enrollment at 2 Solomon’s World Day Care about age one, Ms. Richardson cared for the twins. (T pp. 107, line 6-9, 117, lines 2-8). 7. In late April or early May 2001, because of an incident in which the boy twin was injured, the twins’ mother removed them from Solomon’s World. (T p. 117, lines 2-23). Family members took care of the twins in the week between their withdrawal from Solomon’s World and their enrollment at Petitioner’s facility on or about May 3, 2002. (T p. 119, line 8-16) 8. The twins’ father took them to Cogic Cathedral Day Care Center in the morning on May 6, 2002. (T p. 119, lines 21-22). Their grandmother was supposed to pick them up at the end of the day. (T p. 119, lines 23-25) 9. Ms. Rachel Richardson, the twins’ aunt, is a full time art student at NC A & T and is employed at a local restaurant. (T p. 88, lines 2-13) 10. On May 6, 2002, when the twins’ grandmother was unable to pick them up, their aunt Rachel, accompanied by a friend, went to pick them up. (T pp. 88, line 19-89, line 3, p. 91, lines 9-11) 11. When the twins’ aunt arrived at Cogic, she found the twins’ teacher, Ms. Bell, with J.L., the boy. (T p. 90, lines 2-9). Ms Bell said that J.A., the little girl twin, was out on the playground. (T p. 90, lines 4-6) 12. Upon going from the building to the playground, Ms. Richardson found two older women sitting in chairs, with one holding a baby. (T p. 90, lines 19017). She could see no other children but could not see her niece, J.A. (T pp. 90, lines 10-91, line 8). She asked one of the women where J.A. was, but got no reply. (T. pp. 90, line 22-91, line 5) 13. Ms. Richardson finally spotted her niece near the fence. (T p. 91, lines 15-17). When she walked over to the fence, she found J.A. by herself and outside the fence. (T p. 91, lines 15-21). The gate latch was up and the gate was open about ―half a foot‖. (T pp. 97, lines 19-24, 99, lines 6-13) 14. Ms. Richardson took her niece back into the building where she found Ms. Bell changing her nephew’s diapers. (T p. 92, lines 11-23). She told Ms. Bell that she had found J.A. alone and outside the fences area. (T p. 92, lines 11-23). Ms. Bell responded that people came in and out of that gate without always locking it behind them. (T p. 93, lines 9-12) 15. After she took the twins home, Ms. Richardson, very upset, informed their mother about finding J.A. outside the fence, unsupervised. (T pp. 93, lines 17-25, 120, lines 14-21) 16. Within a day, the twins’ mother and aunt went to the center to discuss the matter. (T pp. 122, line 14-123, line 8). At that time, the decision to withdraw the twins from Cogic had already been made. (T p. 126, lines 17-20). The Richardson sisters both testified that Petitioner refused to acknowledge that there had been a problem or indicate that steps would be taken to prevent similar future incidents. (T pp. 96, lines 7-20, 127, lines 1-2) 3 Petitioner’s Defense 17. Teacher Angela Bell testified credibly that she went inside to diaper J.L., the boy twin, at a little after five o’clock. (T p. 64, lines 13-16) Ms. Bell had no recollection of having asked that the remaining children in her class be watched by another teacher. (T pp. 67, line 19- 68, line 9). Ms. Bell admitted that she was not outside when Ms. Richardson found J.A. and, therefore, did not know whether the child was inside or outside the fence. (T p. 68, lines 20-25) 18. Teacher Felicia Fox testified that while she was getting her last child ready to leave, she did see Ms. Richardson and the twins at the water fountain inside the building. (T p. 72, lines 2-5) She testified that Ms. Richardson did not appear to be upset. (R Ex. 6; T pp. 73, lines 4-9, 215, lines 1-12). Ms. Fox also admitted that she was not on the playground and did not see where Ms. Richardson found her niece. (T p. 74, lines 2-4) 19. Zabrina Stimpson, another Cogic teacher, asserted that it was not possible that J.A. could have gotten outside the fence without other children on the playground seeing it and notifying the teachers. (T p. 79, lines 13-25). Ms. Stimpson also denied that the exit gate was ever unlocked and stated that it was hard to open. (T pp. 78, line 23-79, line 6, 79, line 24-80, line 3). Ms. Stimpson conceded, however, that she did not see Ms. Richardson find her niece. (R Ex. 6; T pp. 81, lines 23-25, 214, lines 10-21) 20. Pauline McCray, a foster grandparent then working at the center, testified that she saw Ms. Richardson pick the child up ―over there standing near the gate‖. (T p. 281, lines 7-8). Ms. McCray testified that the gate ―is always closed‖. (T p. 281, lines 8-9) She admitted that when she stated that the child was never outside the gate, she was relying on the fact that the gate was never open. (T p. 281, lines 21-23) She also admitted that she was paying attention to two other children and did not actually know where Ms. Richardson found J.A. (T p. 282, lines 19- 23). 21. Foster grandparent Mary Jo Cathcart testified that she did not see Ms. Richardson pick up J.A. (T p. 285, lines 1-5). Ms. Cathcart confirmed that she did sometimes enter the facility through the gate in question and sometimes found it unlocked. (T p. 285, lines 17-25) In addition, Ms. Cathcart testified that ―[s]ometimes the gate would be almost open a little bit and I had to close it – when I walked in and close it and put the latch down on it.‖ (T p. 286, lines 3- 6). 22. Petitioner Delores Johnson was not present when Ms. Richardson arrived to pick up her niece. (T p. 28, lines 14-17). Ms. Johnson admitted that her knowledge of the incident was derived from what the twins’ mother and aunt had told her, as well as what her own employees told her. (R Ex. 6; T pp. 39, lines 5-11, 217, lines 4-12). Petitioner asserted that when the twins’ mother and aunt came to the center after the incident, the aunt initially pointed to a spot inside the fence as the location where the child was found. (T pp. 31, line 24-32, line 4). 23. Petitioner declared that because the child was ―eighteen months old and the fence was a four-feet fence‖, the child could not have opened the gate. (T pp. 30, line 23-31, line 2). Petitioner testified that the one individual who used the gate always locked in and that the gate was never left unlocked. (T pp. 31, lines 2-6, 56, lines 11-16). 4 The DSS Investigation 24. A Guilford County Department of Social Services’ (―DSS‖) Child Protective Services Worker, Connie Bowman, conducted a thorough investigation including interviews of all potential witnesses. (R Ex. 7; T p. 246, lines 4-11). Ms. Bowman testified that DSS substantiated child neglect because no staff member at Cogic could state affirmatively where the little girl was when her aunt found her. (R Ex. 7; T p. 246, lines 14-25). In addition, DSS substantiated because there was not a staff member who could even see the area J.A. was in at that time. (T p. 255, lines 7-18). Ms. Bowman stated that she tested the gate in the fence and found that a child could push it enough to get through the resulting small opening. (T pp. 248, line 4-249, line 9). Ms. Bowman noted that there was a latch rather than a lock on the gate. (T p. 250, lines 11-15) The Respondent’s Investigation 25. As a result of its investigation, Respondent cited several violations directly related to J.A. being unsupervised and getting outside the fences area of the playground. Respondent correctly cited a violation based on the substantiation of neglect by Guilford DSS. (R Ex. 1; T p. 162, lines 7-11). Respondent also correctly cited a violation of the requirement that children be supervised at all times. (R Ex. 1; T p. 162, lines 14—25). 26. Respondent also cited a violation of staff-child ratio requirements related to the playground incident. (R Ex. 1; T p. 163, lines 1-7). Respondent held Petitioner to the higher standards required of a licensee with a Three Star License. (T pp. 164, lines 4-7). Petitioner maintained that she had been told by one of Respondent’s consultants that she could count foster grandparents as part of her staff-child ratio. (T pp. 33, lines 22-25, 36, lines 5-16). Respondent incorrectly cited Petitioner for a staff-child ratio violation because it did not count the foster grandparents in the ratio. (R Ex. 1; T pp. 176, lines 15-22; 177, line 9-178, line 7). Respondent also incorrectly cited a staff-child ratio violation on May 14, 2002 because it did not count a foster grandparent in the staff-child ratio. (R Ex. 1; T p. 176, lines 15-22). 27. Respondent correctly cited a violation on July 31, 2002 related to maximum group sizes for the age of children in care and the type of license. (R Ex. 1; T pp. 219, line 13- 220, line 10). 28. The Respondent followed its normal administrative procedures in its investigation and subsequent administrative action issuing a Written Warning against the Petitioner, including: receiving a report of possible abuse or neglect (R Ex. 4; T pp. 147, line 18-148, line 10); investigating and documenting the investigation (R Ex. 5, 6, 8, 9, 12; T pp. 150, lines 1-15, 153, lines 22-25); receiving the DSS report of investigative findings and reviewing them; (R Ex. 7; T pp. 154, lines 18-24); review of proposed administrative action by management (T pp. 157, line 22-158, line 9); issuance of the written warning administrative action (R Ex. 1); informal review meeting pursuant to Petitioner’s request (R Ex. 11A, 11B; T pp. 170, line 11-19, 171, lines 12- 17); review of information submitted by Petitioner during the informal meeting; and, amendment of the corrective action plan (R Ex. 12, 13,14; T pp. 172, line 24-173, line 6). 5 Credibility 29. The Petitioner is sincere and obviously very serious about running an excellent day care center. The Petitioner is, however, not credited with regard to J.A. Richardson being properly supervised and her denials that J.A. got outside the fenced playground area. The Petitioner admitted that she had not personal knowledge of the incident, but instead relied upon information given her by her staff. Petitioner’s repeated assertions that the gate was always locked were directly contradicted by credible evidence that gate was unlocked on more than one occasion. Her adamant assertions in this regard are also contrary to human nature and experience. With people coming and going through that gate, and no procedure for checking to ensure that the gate was always locked, it simply is not probable that the gate was always locked. People who go through gates sometimes leave them ajar. 30. Although the teachers who testified regarding the events of May 6, 2002 were generally sincere, it is noted that Petitioner has a policy requiring disciplinary action against employees who fail to properly supervise children in their care. Thus, I find that Ms. Fox, Ms. Bell and Ms. Stimpson had reason to stretch the truth and are not credible insofar as they testified that the gate was always locked and that there was no way a child could have escaped the fenced playground area. 31. Foster grandparent Cathcart was a genuine witness whose testimony was heartfelt and credible. Ms. Cathcart admitted that she sometimes found the gate open when she entered through it. 32. Rachel Richardson, the twins’ aunt, and their mother, Rena, were both highly credible witnesses. Both testified forthrightly. There was no evidence that either witness had any axe to grind or that their involvement was for any other reason than that stated, i.e., to ensure that future problems involving other children were prevented. 33. Respondent’s employees, Jinx Kenan and Elizabeth Nichols, demonstrated wide- ranging and extensive knowledge, experience and expertise relating to child care and to regulation of child care in North Carolina. Similarly, DSS employee Connie Bowman testified in detail and with a professional demeanor. Respondent’s witnesses are found to be credible. Based upon the foregoing Findings of Fact, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this contested case pursuant to Chapter 110 and 150B of the North Carolina General Statutes. 2. All parties have been correctly designated, there is no question as to misjoinder or nonjoinder, and the notice of hearing was proper. 3. As the licensed operator of Cogic Cathedral Day Care Center, ID #s 41000740 and 41001008, a childcare facility, Petitioner is subject to the provisions of Chapter 110 of the North Carolina General Statutes and rules adopted pursuant thereto. 6 4. The North Carolina Child Care Commission has authority, pursuant to N.C. Gen. Stat. § 110-88 and 110-90 to adopt, and has adopted, rules relating to the enforcement of the child care laws of North Carolina, including rules relating to inspection of child care facilities, and to administrative actions such as the issuance of written warnings. 5. Respondent has the authority, pursuant to N.C. Gen. Stat. §§ 110-98 and 110- 102.2, to issue various types of administrative actions against child care facilities for violations of the Child Care Act, including written warnings. 6. Respondent followed its established and proper procedures throughout the process of investigating a report of possible neglect at Petitioner’s facility, including citing violations, and then issuing a Written Warning and amended corrective action plan to Petitioner. 7. Respondent acted as required by rule and law when it issued a Written Warning and amended corrective action plan to Petitioner. 8. Respondent did not act arbitrarily or capriciously when it issued a Written Warning and amended corrective action plan to Petitioner, or in any of its actions leading to the Issuance of the Written Warning. 9. Respondent did not err when it cited a supervision violation at Petitioner’s facility pursuant to 10A NCAC 09.0714(f) or when it cited a violation of G.S. § 110-105.2(a) due to a substantiation of child neglect by Guilford County DSS. 10. Respondent erred when it did not count foster grandparents in the staff/child ratio and then cited two violations of 10A NCAC 09.1606(a). 11. Respondent’s Written Warning to Petitioner is supported by a preponderance of the evidence in the record. Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following: DECISION The Respondent’s Written Warning to the Petitioner is supported by the preponderance of the evidence and is affirmed. NOTICE The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Facility Services. The Agency is required to give each party an opportunity to file exceptions to the recommended decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. § 7 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact. This the 30th day of March, 2004. __________________________________ James L. Conner, II Administrative Law Judge 8
"Published - STATE OF NORTH CAROLINA"