STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS RANDOLPH COUNTY 05 DHR 0465

ANTHONY WAYNE SANDO ) Petitioner, ) ) vs. ) DECISION ) NORTH CAROLINA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES ) Respondent. )

THIS CONTESTED CASE COMING ON TO BE HEARD AND BEING HEARD before Beecher R. Gray, Administrative Law Judge, on the 22nd day of September, 2006 in High Point, North Carolina for a contested case hearing following administrative action by Respondent in revoking the family foster home license of Petitioner via a Notice of Administrative Action dated January 21, 2005.

APPEARANCES

For Petitioner: David A. Perez Attorney at Law Suite C 32 Trade Street Thomasville NC 27360

For Respondent: Jane R. Thompson Assistant Attorney General NC Department of Justice 4265 Brownsboro Rd - Ste 115 Winston Salem, NC 27106

FINDINGS OF FACT

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. At the time of the events in this case, Susan Craig was the Davidson County Department of Social Services (DSS) Supervisor of Foster Care Licensing, Placements, and Adoptions. In March of 2003, she placed two foster children, brothers C.E. and L.E. with Petitioner in his foster home with Petitioner as the foster parent. She told Petitioner that the brothers possibly had been sexually abused. 3. Ashley Collins was a social worker in the Davidson County DSS at the time of the events in this case and was the assigned social worker for Petitioner’s foster children C.E and L.E., ages 8 and 7, respectively. She identified the foster brothers in Petitioner’s care as having problems of fighting, flashing, humping, masturbating, and C.E. defecating at inappropriate times and places. Petitioner informed social worker Collins in March of 2003 that he was letting L.E. sleep in Petitioner’s bed with Petitioner for purposes of bonding with C.E. allowed to sleep on the floor because of his defecating problem. Petitioner had his own separate bed and each of the foster brothers had a separate bunk bed.

4. Petitioner was advised by a Dr. Leslie, at a DSS sponsored event, that it was permissible to allow a foster child to sleep with a foster parent for bonding. At some point after March, 2003, a child mental health evaluation was conducted for DSS by a Dr. Devarona who advised that the foster brothers should be sleeping in their own individual beds and not with a foster parent. No one at Davidson County DSS told Petitioner about this or required him to observe Dr. Devarona’s recommendation. Petitioner called social worker Collins in May, 2003 following the child mental health evaluation to discuss the evaluations. At that time, Petitioner still was allowing L.E. to sleep in Petitioner’s bed with Petitioner, a fact made known to social worker Collins by Petitioner.

5. In September, 2003, C.E. was removed from Petitioner’s foster home at Petitioner’s request.

6. For the one and one-half years that she was the assigned social worker, social worker Collins never prohibited Petitioner from allowing L.E. to sleep in Petitioner’s bed. She did not consider that practice neglect or abuse and did not report it. In October, 2004, L.E. was removed from Petitioner’s foster home because of an allegation of sexual abuse of another child.

7. Rowan County child protective services forensic investigator Shannon McClattie was assigned to investigate the allegation of inappropriate sleeping arrangements against Petitioner. Following her investigation, investigator McClattie substantiated the neglect allegation against Petitioner because of his allowing L.E. to sleep in Petitioner’s bed. She did not approach or interview Dr. Leslie during this investigation about her recommendation to Petitioner that it was appropriate for Petitioner to allow L.E. to sleep with him for bonding purposes.

8. Respondent put on no evidence regarding any allegations of sexual abuse of any child by Petitioner.

9. Petitioner, at the close of Respondent’s evidence, made a motion to dismiss due to the insufficiency of Respondent’s evidence to justify revocation of Petitioner’s family foster home license. The undersigned granted said motion to dismiss.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has proper jurisdiction in this case, and has jurisdiction over the parties and the issues herein.

2 2. The evidence produced in this contested case is insufficient to establish, by a preponderance, that Petitioner abused or neglected either of the foster brothers L.E. or C.E. or any other child placed in his care.

DECISION

Respondent’s decision to revoke Petitioner’s foster home license on the grounds of sexual abuse and neglect of foster children in his care is not supported by the evidence and should be dismissed.

NOTICE

The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human 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. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorneys 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 14th day of November, 2006.

______Beecher R. Gray Administrative Law Judge

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