State of North Carolina s102

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF FORSYTH 10 DHR 2594

Tracy Herron, ) ) Petitioner, ) ) v. ) DECISION ) Division of Child Development/Department ) of Health and Human Services, ) ) Respondent. ) )

BACKGROUND

This contested case was heard before the Honorable Julian Mann, III, Chief Administrative Law Judge, on August 23, 2010 in High Point, North Carolina.

APPEARANCES

For Petitioner: For Respondent:

Tracy Herron, pro se Alexandra Gruber 2113 Taney Court Assistant Attorney General Winston Salem, NC 27106 N.C. Department of Justice PETITIONER Post Office Box 629 Raleigh, NC 27699-0629 ATTORNEY FOR RESPONDENT

APPLICABLE STATUTES AND RULES

N.C.G.S. §§ 110-85, 110-90, 110-91, 10A NCAC 09.1702, 10A NCAC 09.1721, 10A NCAC 09.2206.

ISSUES

Whether the Respondent whether the Division deprived Petitioner of property and failed to use proper procedure when it revoked Petitioner’s license to operate a family child care home.

1 EXHIBITS ADMITTED INTO EVIDENCE

Petitioner’s Exhibits A and B, and Respondent’s Exhibits 1-6, 10-18. The Court took official notice of the relevant statutes and rules contained in Respondent’s Exhibit 19.

FINDINGS OF FACT

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.

Parties/Witnesses

1. Respondent, Division of Child Development (the “Division”), 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. Pursuant to the North Carolina Child Care Act, N.C.G.S. § 110-85, et seq, the

Division has a mandate to ensure that children in child care facilities are cared for in physically safe and healthy environments, where the developmental needs of the children are met.

2 3. Tammy Burcham is an abuse/neglect child care consultant with the Division. Ms.

Burcham has worked with the Division for four years and worked previously as a Child

Protective Services Social Worker. Ms. Burcham holds a bachelor’s degree with a major in psychology and a minor in social welfare from Winston-Salem State University. Ms. Burcham’s responsibilities as a consultant for the Division include investigating complaints of alleged abuse and neglect at child care facilities.

4. Jinx Kenan is the Program Manager for the Division of Child Development in the

Child Abuse/Neglect Unit. Ms. Kenan has worked for the Division for about seventeen years, serving as a child abuse/neglect consultant, child abuse/neglect team supervisor and in her current position. Ms. Kenan holds a bachelor’s degree from Northwestern University and a master’s degree from Lesley College of Education. Ms. Kenan’s responsibilities as Program

Manager include overseeing the Division’s investigations of child abuse and neglect in facilities statewide.

5. Kimberly Mallady is the Licensing Enforcement Section Chief for the Division. Ms.

Mallady has worked for the Division since 2003 and, prior to her current position, served as the

Licensing Enforcement Program Supervisor. Ms. Mallady also worked for the Division as a licensing consultant in Wake County. Before being employed at the Division, Ms. Mallady was a teacher and a director of a child care center. Ms. Mallady holds a bachelor’s degree in Family and Community Services from East Carolina University. Her responsibilities as Licensing

Enforcement Program Section Chief include overseeing the entire administrative action process, supervising the members of the licensing enforcement unit, and helping to ensure the consistency of administrative actions.

3 6. Petitioner Tracy Herron operates Jitter Bugs Learning Center (“Jitter Bugs”), a family child care home located in Forsyth County, North Carolina, pursuant to a three-star license issued by the Division. Jitter Bugs is operated from Ms. Herron’s home located at 2113 Taney

Court, Winston-Salem, North Carolina. Ms. Herron’s facility operates on all three shifts. Jitter

Bugs is licensed to care for no more than five (5) preschool children and three (3) school age children at any one time. (R. Ex. 1)

7. Before opening Jitter Bugs, Petitioner was the co-owner/operator of another licensed child care facility, Next to Mom Learning Center, LLC (“Next to Mom”). That facility operated from March, 2003 until January, 2006. On December 7, 2006, the Division issued Petitioner and her co-owner a Notice of Administrative Action revoking the license to operate Next to Mom.

The revocation was based, in part, upon non-compliance with child care rules and law, as well as falsification of records provided to the Division. (R. Ex. 18).

8. When Petitioner applied to open Jitter Bugs, the Division initially recommended denial of Petitioner’s application. However, following Petitioner’s reassurances that she would comply with all applicable statutes and rules pertaining to her new facility, the Division permitted Jitter Bugs to open under a probationary license. In her letter to the Division waiving her right to appeal the denial of her license, Petitioner wrote, “I know I am totally responsible for my center and I am willing to always have appropriate paper work that can be reviewed by the consultant at any given time.” (R. Ex. 2).

4 Background

9. The Division licenses approximately 8600 child care facilities in the State of North

Carolina. Of those 8600 facilities, approximately 3600 are family child care homes.

10. Child care providers are expected to comply at all times with all statutes and rules governing child care facilities, or they are subject to administrative action, up to and including revocation.

11. A “family child care home” is a facility in which up to eight (8) children are cared for, with no more than five (5) of those children being preschool aged. The capacity of a family child care home is limited by N.C.G.S. § 110-91(7(b)). (R. Ex. 19).

12. Pursuant to 10A NCAC 09.1721(b)(6), family child care home providers must keep accurate daily attendance records for all children in care which indicate the date and time of arrival and departure of each child. (R. Ex. 19).

13. Child care providers who transport children must ensure that children are “restrained by an appropriate seat safety belt or restraint device when the vehicle is in motion” pursuant to

N.C.G.S. § 110-90(13). (R. Ex. 19).

14. The Division has authority to revoke a license issued to a child care facility pursuant to N.C.G.S. § 110-90(5). (R. Ex. 19).

15. The Division may revoke a license to operate a child care facility for violations of child care rules and statutes that are willful, continual or hazardous to the safety of children pursuant to 10A NCAC 09.2206. (R. Ex. 19).

5 16. The Division may also revoke a child care license if a child care provider makes an effort to provide false information to the Division pursuant to N.C.G.S. § 110-91(14).

17. In the most recent fiscal year, the Division issued approximately three-hundred (300) administrative actions against license child care facilities. Of those three-hundred (300) actions, approximately thirty (30) were revocations.

18. Jinx Kenan testified, and the undersigned finds as fact, that a violation regarding capacity of a child care facility is one of the most serious because it can directly impact upon the health and safety of children in emergency situations. Overcapacity can result in inadequate supervision of children, accidents and injuries.

19. Ms. Kenan also testified, and the undersigned finds as fact, that violations relating to transportation are especially serious given the nature of harm that can result and that, in the past year, there have been two child fatalities of children enrolled at child care facilities related to transportation.

Investigation

20. On September 16, 2009, the Division received a report that a van transporting children from Petitioner’s facility had been involved in an accident on September 15, 2009. (R.

Ex. 3).

21. Investigation of the September 16, 2009 was assigned to Tammy Burcham,

Abuse/Neglect Child Care Consultant for the Division. (R. Ex. 4).

6 22. Ms. Burcham began her investigation by checking the Division’s Regulatory Services database, and confirmed that the capacity of Jitter Bugs was eight (8) children, and that the facility was licensed for three (3) shifts of care. (R. Ex. 10).

23. On September 18, 2009, Ms. Burcham made a complaint visit to Jitter Bugs, to investigate the allegations in the September 16, 2009 report. No one answered the door at the facility, but Ms. Burcham observed a fifteen passenger van in the driveway with the front bumper missing. (R. Ex’s. 5, 10).

24. Ms. Burcham returned to the facility on September 22, 2009. At that visit, Ms.

Burcham spoke to Petitioner to discuss the allegations in the report. Petitioner confirmed that there had been an accident involving children enrolled at her facility, and stated that her cousin,

Tyneria Tanner, was transporting the children on the day of the accident. At that time, Petitioner showed Ms. Burcham seven (7) citations issued to Ms. Tanner, each stating that the children involved were not appropriately restrained in carseats. Petitioner claimed that all the children were in carseats, but that the carseats were not the appropriate type for the age of the children.

(R. Ex’s. 5, 10).

25. Although Petitioner later disputed it, at the September 20, 2009 visit, Petitioner told

Ms. Burcham that there were seven (7) citations and seven (7) children on the vehicle.

26. Ms. Burcham asked Petitioner if she was still transporting children, and she said

“yes,” using her own vehicle. Petitioner admitted that the registration for the van had expired at the time of the accident, but told Ms. Burcham that she now had a current, valid registration.

When Ms. Burcham asked to see the current registration, Petitioner handed her an expired

7 registration. Petitioner then told Ms. Burcham that the current registration was in the van, which was at a repair shop at the time of the visit. (R. Ex. 10).

27. Ms. Burcham contacted the Winston-Salem Police Department following her visit to

Petitioner’s facility. She later spoke with Corporal Ben Jones, the officer responsible for the case involving Petitioner’s facility, and he repeated that there were at least fifteen (15) children on the van and that there were approximately fourteen (14) citations issued at the scene of the accident for improper child restraints. (R. Ex. 10). Corporal Jones testified, and the undersigned finds as fact, that there were more than just fifteen (15) children on the van at the time of the accident, but that while Corporal Jones and his colleague, Officer Honaker, were investigating the accident scene, parents came to pick children up. Corporal Jones spoke with Petitioner by telephone from the scene of the accident, and advised her of the number of citations issued as a result of the accident. (R. Ex. 10).

28. Ms. Burcham conducted another follow-up visit to Petitioner’s facility on October 6,

2009. At that visit, Ms. Burcham again spoke to Petitioner. Petitioner confirmed that there were only seven (7) children on the van the day of the accident. Ms. Burcham also asked Petitioner about the van registration. Ms. Burcham observed that the front bumper of the van was still damaged, although Petitioner did provide Ms. Burcham with valid registration for the vehicle.

Ms. Burcham also observed eight (8) high back booster seats, with only one of the seats having the part of the seat that goes over the child’s head and buckles between the legs. Ms. Burcham also observed a ninth carseat without a back. None of the seats appeared to be new, and two were missing backing in them and were just plastic. (R. Ex. 10).

8 29. At the October 6, 2009 visit, Ms. Burcham had Petitioner review the information on the visit summary, confirming that there were only seven (7) children from Petitioner’s facility on the van at the time of the accident. During that visit, Petitioner informed Ms. Burcham that there were other children on the van as well, from her sister’s child care facility. Petitioner claimed that, at the time of Ms. Burcham’s prior visit, she was unaware that there were any other children on the van, although she confirmed she had spoke with a police officer who had called from the scene of the accident. (R. Ex. 10).

30. Following the October 6, 2009 visit, Ms. Burcham confirmed that Petitioner’s sister,

Tonya Nails, operated a family child care home, Happy Feet Learning Center.

31. Officer Ben Jones testified, and the undersigned finds as fact, that there was only one

(1) adult on the child care van at the time of the accident, and that was the driver, Tyneria

Tanner. (R. Ex. 10).

32. Darius Simmons, the driver of the other vehicle involved in the September 15, 2009 accident, testified, and the undersigned finds as fact, that there was only one (1) adult on the child care van at the time of the accident.

33. Ms. Burcham reviewed attendance sheets for subsidized child care for Petitioner’s facility and child care vouchers with indicated that Petitioner’s facility was operating over capacity, with nineteen (19) children enrolled at the same time. Although Petitioner disputed this fact at the hearing, Petitioner did not present any other evidence to show that her facility was in compliance with the limit on operating capacity.

9 34. Respondent presented evidence, and the undersigned finds as fact that, on the day of the accident, September 15, 2009, Petitioner sought reimbursement from the State Subsidy

Program for ten (10) full-day children and four (4) before/after care children on first shift and ten

(10) full day children present on second shift. (R. Ex. 12).

35. Respondent presented evidence, and the undersigned finds as fact that, on September

22, 2009, Petitioner sought reimbursement from the State Subsidy Program for eleven (11) full- day children and four (4) before/after care children on first shift and ten (10) full-day children present on second shift. (R. Ex. 12).

36. Tyneria Tanner testified, and the undersigned finds as fact, that at least nine (9) of the children on the van at the time of the accident on September 15, 2009 were enrolled at

Petitioner’s facility. Ms. Tanner confirmed the same number with Ms. Burcham during a telephone call on December 1, 2009. (R. Ex. 10).

37. At the September 22, 2009 visit Ms. Burcham conducted, Ms. Burcham asked

Petitioner to complete the Family Child Care Enrollment Worksheet by listing the names of all the children enrolled at her facility. Petitioner signed this form. The form lists only eight (8) children as enrolled at the facility, despite the fact that Petitioner sought reimbursement for more than eight (8) children from the State subsidy program for that same date. (R. Ex. 5).

38. Petitioner has consistently denied that her facility was operating over its licensed capacity. The undersigned finds as fact that Petitioner’s reported number of children enrolled does not comport with the number of children she cared for at her facility, both orally and in writing.

10 39. Petitioner’s facility was cited for being over capacity in August of 2007. At that visit, the Division’s child care consultant documented twelve (12) children present and (19) children enrolled. (R. Ex. 13). Petitioner was asked to disenroll children as a result of this visit; however, some of the children reported as disenrolled on August 28, 2007, were still enrolled at the

Petitioner’s facility when Ms. Burcham was investigating the September 15, 2009 accident.

(Id.).

Administrative Action

40. On December 8, 2009, Tammy Burcham and her supervisor, Gavin Deal, recommended issuance of an administrative action against Petitioner’s facility revoking

Petitioner’s license (“Revocation”). (R. Ex. 13). Mr. Deal’s supervisor, Jinx Kenan, reviewed and approved the recommendation.

41. On February 9, 2010, Respondent’s Internal Review Panel met to consider the recommendation Revocation of Petitioner’s license. At that meeting, Internal Review decided to proceed with Revocation based upon “multiple incidents of falsifying information” to the

Division. The Internal Review Panel determined that revocation in this case was consistent with other, similar cases. (R. Ex. 14).

42. On March 1, 2010, Respondent sent Petitioner a copy of a proposed administrative action revoking Petitioner’s license and giving Petitioner fifteen (15) days to respond with any additional information Respondent should consider before taking final action. (R. Ex. 16). On

March 9, 2010, Respondent received a response from Petitioner regarding the proposed action.

(R. Ex. 16).

11 43. On April 6, 2010 Respondent’s Internal Review Panel met for the final review of the proposed administrative action. (R. Ex. 16). The Panel considered Petitioner’s response to the proposed action at that time. (Id.). The Panel recommended proceeding with the Revocation.

(Id.).

44. On April 13, 2010, Respondent sent Petitioner the Revocation and notified Petitioner of her right to appeal the administrative action. (R. Ex. 17).

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this contested case pursuant to Chapters 110 and 150B of the North Carolina

General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder and the notice of hearing was proper.

3. The primary purpose of child care regulation in the state is defined as providing for the health, safety and developmental well-being of children in child care facilities. N.C.G.S. §

110-85.

4. At all times relevant, Petitioner’s facility was subject to the child care licensure laws and rules of the State of North Carolina.

5. At all times relevant, Petitioner’s facility operated pursuant to a license issued by the

Respondent.

6. Petitioner’s facility was never licensed to accommodate more than five (5) preschool children and three (3) school-age children on any one shift of care. See N.C.G.S. § 110-91(7).

12 7. Petitioner intentionally misrepresented attendance information regarding her facility to the Division’s representatives.

8. Petitioner was regularly operating in excess of her licensed capacity.

9. Petitioner permitted children enrolled at her facility to be transported without proper restraints, as required by N.C.G.S. § 110-91(13).

10. Respondent has the authority to revoke a child care license when any “violation of… the statutes or rules has been willful, continual, or hazardous to health or safety.” 10A NCAC

09.2206. See N.C.G.S. § 110-90(5).

11. Respondent has the authority to revoke a child care license if a provider intentionally misrepresented information provided to the Division. See N.C.G.S. § 110-91(14).

12. Petitioner was required to keep daily attendance records “for all children in care” which “indicate the date and time of arrival and departure” of the children. See 10A NCAC

09.1721(b)(6).

13. Petitioner failed to keep attendance records as required by Rule.

14. Petitioner willfully violated the provisions of N.C.G.S. § 110-86 relating to the capacity of a family child care home.

15. Petitioner’s violations of child care requirements governing capacity, child restraints, and recordkeeping were willful.

16. Petitioner’s violations of child care requirements governing capacity and child restraints were hazardous to the safety and well-being of the children placed in her care.

17. Respondent has lawfully deprived Petitioner of property in revoking her child care license.

18. Respondent used proper procedure in revoking Petitioner’s child care license.

13 Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

The Respondent’s decision to revoke Petitioner’s child care license 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 Child Development. The agency is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C.G.S. §

150-36(a). The agency is required by N.C.G.S. § 150B-36(b)(3) 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.

This the _____ day of October, 2010.

______Julian Mann III Administrative Law Judge

14 A copy of the foregoing was mailed to:

Tracy Herron 2113 Taney Court Winston Salem, NC 27106 PETITIONER

Alexandra Gruber Assistant Attorney General NC Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

This the ______day of October, 2010.

______Office of Administrative Hearings 6714 Mail Service Center Raleigh, North Carolina 27699-6714 919/431-3000 FAX: 919/431-3100