STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF BLADEN 00 DHR 1419

Esther M. Huntley, Treasurer, ) Rainbow Nursery Parents Club, Inc. ) Petitioner, ) ) v. ) ) RECOMMENDED DECISION North Carolina Department of Health ) & Human Services, Division of Child ) Development ) Respondent.

BACKGROUND

This matter was heard before Administrative Law Judge Beecher Gray, on April 9, 2001 in Fayetteville, North Carolina. Counsel for Respondent was ordered to file proposed findings of fact, conclusions of law and recommended decision. The record closed upon receipt of the above-described documents September 17, 2001.

APPEARANCES

For Petitioner: Petitioner Esther M. Huntley, Treasurer represented herself and Rainbow Nursery Parents Club, Inc. For Respondent: Ann B. Wall, Assistant Attorney General

ISSUE

Whether Respondent failed to follow procedure when, on October 3, 2000, it issued a Notice of Administrative Action containing a Corrective Action Plan which included restrictions on Esther Huntley’s involvement with Rainbow Nursery, including a prohibition on Ms. Huntley being in the center when children are present.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 110-88(6a), -90, -91, -94, -98, -99, -102.2, -103.1, -105, -105.2(d); 10 N.C.A.C. 3U .2009, .2206. EXHIBITS

Petitioner’s Exhibits 1 through 4 were offered and received into evidence. Respondent’s exhibits 4, 7, 8, 21 through 25, 27, 35, 42, 44 through 46, 49 through 51, 53, 54, 56 through 58, 61 through 64 and 69 were offered and received into evidence.

FINDINGS OF FACT

Based upon the documents filed in this matter, exhibits, and sworn testimony admitted into evidence at the hearing, the undersigned finds the following:

1. Petitioner, Esther M. Huntley, Treasurer, Rainbow Nursery Parents Club, Inc., operates Rainbow Nursery Day Care, a child care center, at 303 S. Morehead Street, Elizabethtown, Bladen County, North Carolina, subject to license ID#0955033 issued by the Respondent.

2. Respondent, North Carolina Department of Health and Human Services, Division of Child Development (hereafter, the Division or Respondent) is an administrative agency of the North Carolina State Government operating under the laws of North Carolina. The Division is charged by law with, among other things, enforcing the laws governing the operation of child care facilities.

3. The Respondent’s letter constituting agency action was mailed to the Petitioner by certified mail on October 3, 2000.

4. Petitioner received Respondent’s agency action letter on October 3, 2000.

5. The agency action taken by Respondent Division was the issuance of a Notice of Administrative Action which included a Probationary License, a civil penalty of $250.00 and of a Corrective Action Plan. The bases for Respondent’s action were the Center’s history of failure to comply with child care requirements, a history of child neglect, a new substantiation of child neglect, and additional violations of child care requirements, including repeated violations.

6. Petitioner conceded at the hearing in this matter that the violations cited were correct. Petitioner also conceded that the Probationary License and civil penalty issued by Respondent were not at issue. Petitioner further agreed during the hearing that the sole remaining issue is the first paragraph in the Corrective Action Plan which was included with the Notice of Administrative Action.

7. The first paragraph of the Corrective Action Plan issued by Respondent states that:

“ Esther Huntley shall not assume any administrative or caregiving responsibilities at Rainbow Nursery. Esther Huntley shall not be employed or work in any full-time, part- time, substitute, auxiliary or volunteer capacity without approval of the Division of Child Development. Ms. Huntley is prohibited from being in the center when children are present.” (Emphasis in original) 8. Official notice was taken that on July 25, 1988, the Respondent issued a revocation of child day care license to Esther Huntley, Director, Rainbow Nursery School, due in part to a substantiation of child neglect involving Ms. Huntley.

9. Official notice was also taken that on February 8, 1989, Administrative Law Judge Jeannie Rogers issued a Recommended Decision regarding an appeal of the revocation referred to in paragraph 8 above.

10. Official notice was taken that on April 5, 1989, a Final Agency Decision was issued, sustaining the revocation referred to in paragraph 8 above.

11. Official notice was taken that on September 13, 1989, Superior Court Judge Donald Stephens filed an order affirming the Final Agency Decision referred to in paragraph 8 above.

12. On July 30, 1990, a temporary license was issued to Ms. Esther Huntley’s daughter and Rainbow Nursery Parents Club, Inc., to operate Rainbow Nursery Day Care. A condition of the license was that Ms. Esther Huntley not be the director of the facility and never have sole responsibility for the center.

13. On a number of occasions between September 13, 1989 and October 3, 2000, Respondent confirmed to Ms. Huntley or her legal counsel and others that Ms. Huntley was not permitted to assume administrative or sole caregiving responsibilities at the center.

14. Over the years, Ms. Esther Huntley has contributed positively to her community in a variety of ways.

15. On or about April 13, 1999, Respondent received and subsequently substantiated a complaint that Ms. Huntley yelled at workers at the center, as well as at parents and children at the center.

16. On or about April 13, 1999, Respondent received and subsequently substantiated a complaint that Ms. Huntley took the phone off the hook for long periods of time during the day.

17. On or about September 3, 1999, the staff of the center walked out of the center because the owner of the building, Ms. Esther Huntley, yelled at the staff in front of the children who were present. Ms. Huntley arranged for substitute caregivers within twenty minutes of the staff walkout. There had been a previous incident in which the staff had threatened to walk out because of Ms. Huntley’s presence and behavior. On that occasion, the situation was resolved when Ms. Huntley agreed not to be further involved and then left the premises.

18. On or about September 9, 1999, Respondent substantiated a complaint regarding Ms. Huntley yelling at staff in front of children and precipitating a staff walkout on September 3, 1999. 19. On or about September 9, 1999, Ms. Huntley and Center Director, Ilka McElveen, admitted to a representative of Respondent that ms. Huntley was interfering with the Director’s performance of her duties, specifically by “chasing staff off.”

20. On or about November 3, 1999, Ms. Huntley instigated a dispute with the Director in front of the children at the center with regard to a particular individual whom she did not want the Director to continue to employ at the center. During the dispute, Ms. Huntley refused to move the dispute into the center office and away from the children.

21. On or about November 3, 1999, during and as a result of the dispute referred to in paragraph above, law enforcement officers were called to the center.

22. On several occasions between November 3, 1999 and October 3, 2000, representatives of Respondent were contacted about Ms. Huntley interfering with Ms. McElveen’s direction of the center.

23. On or about July 13, 1999, Ms. Huntley represented the center during an investigation of a child abuse/neglect complaint. During the abuse/neglect investigation, Ms. Huntley had to be asked to leave by a representative of the Bladen Department of Social Services because she became so emotional she was disrupting the investigation.

24. On one or more occasions beginning in 1999, a community member was called into the center to help resolved disputes between Ms. Huntley and center Director McElveen.

25. On at least one occasion since 1998, after center Director McElveen terminated a child from the day care center, Ms. Huntley re-enrolled the child.

26. On more than one occasion, Ms. Esther Huntley gave the staff of the center directions which were contrary to instructions given by the center’s director.

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 Chapters 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. Respondent has the authority, pursuant to N.C. Gen. Stat. § 110-105.2(d) to permanently remove from child care a person against whom neglect has been substantiated. 4. By repeatedly raising her voice to parents, children and staff at the center, Ms. Esther Huntley violated the requirements of the Child Care Act that children in child care be provided with a safe and nurturing environment.

5. By precipitating incidents in which staff threatened to walk out of the center and did walk out of the center, Ms. Huntley created an environment with the potential for harm to children.

6. By precipitating at least one incident in which law enforcement was called to the center, Ms. Huntley created an environment which was not safe and nurturing for children in care at the center.

7. By taking the telephone in the center off the hook, Ms. Huntley created a violation of child care requirements.

8. Ms. Huntley violated the conditions of the center’s license which prohibited her from administrative responsibilities by countermanding instructions given staff by the director, injecting herself into the DSS investigation by re-enrolling a student terminated by the Director, and by otherwise interfering with staff and the Director and by performing administrative responsibilities.

9. Respondent followed its established procedures during the investigation, decision making process and issuance of its Notice of Administrative Action and Corrective Action Plan referred to in paragraph 6 above.

RECOMMENDED DECISION

That the Respondent adopt the Findings of Fact and Conclusions of Law set forth above and AFFIRM Paragraph 1 of the Corrective Action Plan which imposes specific restrictions on the involvement of Esther Huntley at the Rainbow Nursery Day Care. Based upon Ms. Huntley’s failure to comply with restrictions regarding her administrative responsibilities, her behavior and actions in violation of child care requirements and her creation of an environment at the Rainbow Nursery Day Care which was not safe and nurturing for children in care there.

ORDER

It is hereby ordered that the Agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27611-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Agency making the final decision in this contested case 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. Gen. § 150B-36(a). The Agency is required by N.C. Gen. § 150B-36(b) to serve a copy of the Final Decision on all parties and to furnish a copy to the attorneys of record and to the Office of Administrative Hearings.

The Agency that will make the Final Decision in this contested case is the Department of Health and Human Services.

This the 21 st day of September, 2001.

______Beecher Gray Administrative Law Judge